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[ { "docid": "22446694", "title": "", "text": "was passed by virtue of a power reserved in the act of 1862. The suit was brought to enforce the duties and obligations imposed by those statutes on the railway company. The statutes are quoted in the opinion, and the act of 1866 is referred to only as reinforcing the provisions of the statute of 1862. It was only necessary* therefore, to declare the policy of the act of 1866 as a grant of rights to all telegraph companies. The consideration of the court was not directed to anything else. The extent of the rights granted as presented , in the case at bar could not have been in contemplation. They were not in issue, and it could not have been intended to anticipate and decide the controversies which might be based upon them. St. Louis v. Western Union Telegraph Company, 148 U. S. 92, is also urged by the Telegraph Company as inconsistent with the Ann Arbor case. It is clearly not so. The case involved the validity of a charge or rental made by the city of St. Louis for the use of its streets by the telegraph company. The charge was imposed by the same ordinance that gave permission to the telegraph company to occupy the streets of the city. The telegraph company resisted the charge upon several grounds, among which were the provisions of the act of 1866, and its acceptance by the company. The charge was held to be a valid one, but on no ground which involved the consideration of the right of the telegraph company to occupy the streets. The right was not disputed. The ordinance of the ■ city conferred it. The claim made under the act of 1866 wTas that it exempted the telegraph company from a payment of any compensation. But compensation was decreed on the ground that the franchise or privilege granted by the act of 1866 could only be exercised in subordination 'to public as well as private rights, and, as entry upon the latter could only be made upon the payment of just compensation, entry upon the" } ]

[ { "docid": "23653321", "title": "", "text": "(citing Penn Central). Because the Supreme Court held in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), that the extent of interference with the actual use of the property becomes irrelevant when the deprivation is physical, the panel is forced to characterize this ordinance as authorizing a “physical occupation.” Its decision relies almost exclusively upon Justice Marshall’s opinion in Loretto. That opinion therefore deserves close attention. Loretto makes a sharp distinction between permanent, physical occupations, on the one hand, and regulations impairing use, or even causing temporary injury to property, on the other. The hallmark of the physical invasion described in Loretto is actual appropriation of the land itself through physical contact, as, for example, through flooding or direct occupancy. Lor-etto concerned the installation of cable, a “direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building’s exterior wall.” Id. at 438, 102 S.Ct. at 3177. Under the Loretto analysis, “placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute.” Id. at 437, 102 S.Ct. at 3177. Once the fact of occupation is shown, compensation is required regardless of the extent of the physical occupation. Id. at 436-37, 102 S.Ct. 3176-77. Thus Loretto holds that physical invasion requires compensation for a relatively minor and almost insignificant interference with the use of property. Moreover, a taking can be found under this theory without consideration of the important public benefits achieved by the action. Id. at 434-35, 102 S.Ct. at 3175. The panel’s appellation of rent control as a “physical invasion,” is built upon the notion that economic regulation can “shade” into physical invasion. Panel op. supra at 1280. This is antithetical to the reasoning of Loretto. In the final pages of Loretto, the Court expressly characterized its holding as a “very narrow” one, 419 U.S. at 441, 102 S.Ct. 3179, and distinguished the physical occupation from cases involving the government’s power to regulate land — specifically," }, { "docid": "22689607", "title": "", "text": "physical occupations. See ante, at 432-435, and 435, n. 12. While the Court relies on historical dicta to support its per se rule, the only holdings it cites fall into two categories: a number of cases involving flooding, ante, at 427-428, and St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), cited ante, at 428. In 1950, the Court noted that the first line of cases stands for “the principle that the destruction of privately owned land by flooding is ‘a taking’ to the extent of the destruction caused,” and that those rulings had already “been limited by later decisions in some respects.” United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810. Even at the time of its decision, St. Louis v. Western Union Telegraph Co. addressed only the question “[wjhether the city has power to collect rental for the use of streets and public places” when a private company seeks exclusive use of land whose “use is common to all members of the public, and . . . [is] open equally to citizens of other States with those of the State in which the street is situate.” 148 U. S., at 98-99. On its face, that issue is distinct from the question here: whether appellant may extract from Teleprompter a fee for the continuing use of her roof space above and beyond the fee set by statute, namely, “any amount which the commission shall, by regulation, determine to be reasonable.” N. Y. Exec. Law § 828(1)(b) (McKinney Supp. 1982). In my view, the fact that § 828 incidentally protects so-called “crossover” wires that do not currently serve tenants, see ante, at 422, n. 2, does not affect § 828’s fundamental character as a piece of landlord-tenant legislation. As the Court recognizes, ante, at 422, crossovers are crucial links in the cable “highway,” and represent the simplest and most economical way to provide service to tenants in a group of buildings in close proximity. Like the Court, I find “no constitutional difference between a crossover and a noncrossover installation,” ante, at 438. Even" }, { "docid": "13388014", "title": "", "text": "Ass’n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). Takings jurisprudence has thus evolved into two distinct branches that purport to protect the same right but use tests that share virtually no common elements. However, by abandoning the multi-factor balancing test in favor of a per se rule, the physical occupation branch of takings jurisprudence has overlooked an important subspecies of physical takings: the temporary physical taking. Unfortunately, this appears to be precisely the issue presented here. Returning to the facts here, there is little doubt that Plaintiffs have presented sufficient evidence as to the first and third requirements for showing a permanent physical occupation: MOSA’s activities deprive them of the right to possess and exclude; and, a purchaser will also be unable to make any use of the occupied space. Twenty-four monitoring wells- and eight piezometers remain on the property. These well and meter casings are four inches in diameter and extend two to three feet above the ground. Although the amount of space occupied by MOSA is arguably minimal, the Loretto court stated that permanent physical occupations are takings “even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land.” 458 U.S. at 430, 102 S.Ct. at 3173. However, the second requirement, that the government action must “forever den[y] the owner any power to control the use of the property,” see Southview Associates, 980 F.2d at 95, is far less clear here. In Loretto, the Supreme Court expressly distinguished its set of facts from those involving a temporary occupation. The Court stated: The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they" }, { "docid": "9860975", "title": "", "text": "480 U.S. 470, 493-96, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (looking to whether the regulation makes the property owner’s business operation “commercially impracticable”); Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (looking to the possibility of other economic uses besides sale, which was prohibited by the challenged regulation). Similarly, the “character of the governmental action” depends on several things, including whether the action is properly characterized as a physical occupation of the property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), and whether the regulation advances a legitimate public purpose, see Keystone Bituminous Coal Ass’n, 480 U.S. at 485-6, 107 S.Ct. 1232; Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The Supreme Court has identified two specific circumstances in which it will find a government regulation to constitute a “categorical” taking without performing an ad hoc balancing under Penn Central. The first situation involves regulations that compel a property owner to suffer a permanent physical “invasion” or “occupation” of his property. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). In that circumstance, the “character of the governmental action”— ordinarily one of the factors balanced under Penn Central — itself becomes sufficient to effect a taking. As the Court held in Loretto: [A] “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government .... [w]hen the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, “the character of the government action” not only is an important factor in resolving whether the action works a taking but also is determinative. Loretto, 458 U.S. at 426, 102 S.Ct. 3164. The categorical rule applicable to physical invasion cases is clearly not applicable to the present case. “The second situation in which [the Court] ha[s] found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.”" }, { "docid": "22689552", "title": "", "text": "contrast, “[n]o entry was made upon the plaintiffs’ lot.” 99 U. S., at 642. Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. See United States v. Lynah, 188 U. S. 445, 468-470 (1903); Bedford v. United States, 192 U. S. 217, 225 (1904); United States v. Cress, 243 U. S. 316, 327-328 (1917); Sanguinetti v. United States, 264 U. S. 146, 149 (1924) (to be a taking, flooding must “constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property”); United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810 (1950). In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one presented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a telegraph company’s placement of telegraph poles on the city’s public streets. The Court reasoned: “The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The ordinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation thereof are temporary and shifting. The space he occupies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as" }, { "docid": "22689555", "title": "", "text": "character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land. See, e. g., Lovett v. West Va. Central Gas Co., 65 W. Va. 739, 65 S. E. 196 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922). See generally 2 J. Sackman, Nichols’ Law of Eminent Domain § 6.21 (rev. 3d ed. 1980). More recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U. S. 256 (1946), the Court ruled that frequent flights immediately above a landowner’s property constituted a taking, comparing such overflights to the quintessential form of a taking: “If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.” Id., at 261 (footnote omitted). As the Court further explained, “We would not doubt that, if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it.” Id., at 264 — 265. The Court concluded that the damages to the respondents “were not merely consequential. They were the product of a direct invasion of respondents’ domain.” Id., at 265-266. See also Griggs v." }, { "docid": "19643419", "title": "", "text": "fit their claim into one of the three narrow categories in which we have assessed takings claims more categorically. In the \"special context of land-use exactions,\" we have held that \"government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit\" constitute takings unless the government demonstrates a nexus and rough proportionality between its demand and the impact of the proposed development. Lingle,544 U.S., at 538, 546, 125 S.Ct. 2074; see Dolan v. City of Tigard,512 U.S. 374, 386, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal Comm'n,483 U.S. 825, 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). We have also held that a regulation that deprives a property owner of \"alleconomically beneficial us[e]\" of his or her land is a per setaking. Lucas v. South Carolina Coastal Council,505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)(emphasis in original). The Hornes have not relied on either of these rules in this Court. See Brief for Petitioners 42, 55. Finally-and this is the argument the Hornes do rely on-we have held that the government effects a per setaking when it requires a property owner to suffer a \"permanent physical occupation\" of his or her property. Loretto, 458 U.S., at 426, 102 S.Ct. 3164. In my view, however, Loretto-when properly understood-does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Where some property right is retained by the owner, no per setaking under Lorettohas occurred. This strict rule is apparent from the reasoning in Lorettoitself. We explained that \"[p]roperty rights in a physical thing have been described as the rights 'to possess, use and dispose of it.' \" Id.,at 435, 102 S.Ct. 3164(quoting United States v. General Motors Corp.,323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945)). A \"permanent physical occupation\" of property occurs, we said, when governmental action \"destroys eachof these rights.\" 458 U.S., at 435, 102 S.Ct. 3164(emphasis in original); see ibid.,n. 12 (requiring that an owner be \"absolutely" }, { "docid": "15245143", "title": "", "text": "between an act passed with exclusive reference to the police power of the State, without any purpose to take and apply property to public uses, and a statute like the one here involved, which, for the general good, ordains and establishes regulations declaring the existence of a nuisance 159 U.S. at 398-99, 16 S.Ct. at 48 (emphasis in original). . Loretto does inform us, however, that even for public use a taking within the meaning of the constitution is likely to be found only when the invasion is permanent in character rather than temporary or intermittent. In so holding, the court distinguished cases such as Transportation Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879) (temporary flooding caused by construction), and cited with approval Professor Michelman’s observation that: [t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, “regularly” use, or “permanently” occupy, space or a thing which theretofore was understood to be under private ownership. 458 U.S. at 427 & n. 5, 102 S.Ct. at 3172 & n. 5, quoting Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165, 1184 (1967). . It is understandable that the “public use” aspect of the taking clause analysis should become closely identified with the question of the permanent physical nature of the intrusion. New exercises of the police power require permanent physical intrusion onto private property. In contrast, many public uses — for example, roads, dams, power and communication grids — necessarily involve physical seizure or intrusion. Consequently, most Supreme Court decisions holding governmental action violative of the taking clause have involved both physical intrusion and classic public use. See, e.g., Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-30, 43 S.Ct. 135, 136-37, 67 L.Ed. 287 (1922) (military use); Western Union Telegraph Co. v. Pennsylvania R.R., 195 U.S. 540, 567-71, 25 S.Ct. 133, 140-41, 49 L.Ed. 312 (1904) (telegraph lines); Loretto, 458 U.S. at 429-30, 102 S.Ct. at 3172-73." }, { "docid": "22558555", "title": "", "text": "newsrack, “the mechanical cousin” of the traditional means of selling papers on city streets, the “newsboy.” See Brief for Appellee 10; cf. NLRB v. Hearst Publications, Inc., 322 U. S. 111, 115-116 (1944). This “characterization” of its activities is unpersuasive. While news-boxes may not be “permanent” structures in the way that buildings are, they are not a peripatetic presence either. See Tr. of Oral Arg. 37-38; cf. McDonald v. Gannett Publications, 121 Misc. 2d 90, 90-91, 467 N. Y. S. 2d 300, 301 (1983); Editor & Publisher, Apr. 9, 1983, p. 8., col. 1 (discuss ing “bolting” of newsracks to city sidewalks). Here, the District Court found that the “placement of a newspaper dispensing device on property is normally of a permanent nature, the device generally occupying a specific portion of property for months or years.” App. to Juris. Statement A30-A31. There is little doubt that if a State were to place an object of the size, weight, and permanence of a newsrack on private property, this “physical occupation” would constitute a “taking” of that property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427-430, 434-435 (1982); Lovett v. West Virginia Central Gas Co., 65 W. Va. 739, 742-743, 65 S. E. 196, 197-198 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). The character of the newsrack’s intrusion on city sidewalks is not lessened by the fact that the property here is public, the occupation is by a private party, or that the purpose of the “taking” is the communication of ideas. See generally St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 98-99 (1893) (discussed in text infra this page and 780). The conflict between cities’ efforts to protect important public interests and the desire of publishers to place newsracks on city property no doubt accounts for the recent spate of litigation in the lower courts over the constitutionality of city regulation of newsracks. See, e. g., Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F. 2d 767 (CA2 1984); Miami Herald Publishing Co." }, { "docid": "22689606", "title": "", "text": "mail or telegrams directed to him.” Ibid., citing Regulation of Cable Television by the State of New York, Report to the New York Public Service Commission by Commissioner William K. Jones 207 (1970). Section 828 carefully regulates the cable television company’s physical intrusion onto the landlord’s property. If the landlord requests, the company must conform its installations “to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants.” N. Y. Exec. Law § 828(l)(a)(i) (McKinney Supp. 1981-1982). Furthermore, the company must “agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities.” § 828(l)(a)(iii). Finally, the statute authorizes the landlord to require either “the cable television company or the tenant or a combination thereof [to] bear the entire cost of the installation, operation or removal” of any equipment. § 828(1)(a)(ii). The Court properly acknowledges that none of our recent takings decisions have adopted a per se test for either temporary physical invasions or permanent physical occupations. See ante, at 432-435, and 435, n. 12. While the Court relies on historical dicta to support its per se rule, the only holdings it cites fall into two categories: a number of cases involving flooding, ante, at 427-428, and St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), cited ante, at 428. In 1950, the Court noted that the first line of cases stands for “the principle that the destruction of privately owned land by flooding is ‘a taking’ to the extent of the destruction caused,” and that those rulings had already “been limited by later decisions in some respects.” United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810. Even at the time of its decision, St. Louis v. Western Union Telegraph Co. addressed only the question “[wjhether the city has power to collect rental for the use of streets and public places” when a private company seeks exclusive use of land whose “use is common to all members of the public, and . ." }, { "docid": "21616731", "title": "", "text": "Court noted that “[m]ore recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property.” Id. at 430, 102 S.Ct. 3164. The Court held that of the three, only a permanent physical occupation is a per se taking, and courts therefore need not engage in a balancing test when confronted with such a situation. Id. at 434-35, 102 S.Ct. 3164. Physical invasions (as distinct from physical occupations) thus fall outside the Loretto rule. A physical occupation, as defined by the Court, is a permanent and exclusive occupation by the government that destroys the owner’s right to possession, use, and disposal of the property. The Court defined the destruction of these interests as follows: (1) possession, “the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space,” id. at 435, 102 S.Ct. 3164; (2) use, “the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property,” id. at 436, 102 S.Ct. 3164; and (3) disposal, “even though the owner may retain the bare legal right to dispose of the occupied space ..., the permanent occupation of that space ... will ordinarily empty the right of any value, sincé the purchaser will also be unable to make any use of the property,” id. The Court carefully distinguished physical occupations (to which the Loretto rule applies) from temporary physical iny^sions of property by the government (to which the Loretto rule does not apply): The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins [447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980)]; Kaiser Aetna v. United States [444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)], and the intermittent flooding cases reveal, such temporary" }, { "docid": "13388020", "title": "", "text": "Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)). However, the cases cited do not support Hendler’s holding, and, in fact, undercut its reasoning. The World War II seizure cases are factually inapposite because they involved total appropriations: i.e., the government appropriated the claimant’s entire property, albeit for durations as little as 5% months. Stated in modem takings lexicon the War Department seizure cases involved the destruction of one hundred percent of the economic value of the entire parcel of land, see generally Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (applying per se rule where government action destroyed all economic value of the land), a situation that was not present in Hendler and which is not present here. Furthermore, in stating that “a permanent physical occupation does not require in every instance that the occupation be exclusive, or continuous and uninterrupted,” see Hendler, 952 F.2d at 1377, the Hendler decision is in clear conflict with Supreme Court precedent, particularly Loretto. The Loretto Court cautioned: The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking.... [Temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his. rights to use, and exclude others from, his property. 458 U.S. at 436 n. 12, 102 S.Ct. at 3176 n. 12; see also Sanguinetti v. United States, 264 U.S. 146, 149, 44 S.Ct. 264, 265, 68 L.Ed. 608 (1924) (taking must “constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property”). Moreover, the Hendler standard is also in conflict with precedent in this circuit. In Southview Associates, the Second Circuit stated" }, { "docid": "21616730", "title": "", "text": "that a permanent physical occupation of property, no matter how slight, is a per se taking. Loretto, 458 U.S. at 441, 102 S.Ct. 3164. Loretto involved a New York statute that compelled landlords to allow cable companies to install boxes on their buildings. Id. at 423-24, 102 S.Ct. 3164. The question before the Court was whether the balancing test articulated in Penn Central should apply in such a situation. The Court rejected the application of Penn Central and held that the compelled cable installation was subject to a traditional rule that all permanent physical invasions are takings. Id. at 438, 102 S.Ct. 3164. The holding of Loretto is quite narrow. It applies only to permanent physical occupations either by the government or by a third party acting under government authority. The Court distinguished permanent physical occupations, in which it had always found a taking, from “cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within,” which were not always takings. Id. at 428, 102 S.Ct. 3164. The Court noted that “[m]ore recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property.” Id. at 430, 102 S.Ct. 3164. The Court held that of the three, only a permanent physical occupation is a per se taking, and courts therefore need not engage in a balancing test when confronted with such a situation. Id. at 434-35, 102 S.Ct. 3164. Physical invasions (as distinct from physical occupations) thus fall outside the Loretto rule. A physical occupation, as defined by the Court, is a permanent and exclusive occupation by the government that destroys the owner’s right to possession, use, and disposal of the property. The Court defined the destruction of these interests as follows: (1) possession, “the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space,” id. at 435, 102 S.Ct. 3164; (2) use, “the permanent physical occupation of property forever denies the" }, { "docid": "22689554", "title": "", "text": "respects its actual use for purposes of highway and personal travel, wholly lost to the public. . . . “. . . It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated.” Id., at 98-99,101-102 (emphasis added). Similarly, in Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 (1904), a telegraph company constructed and operated telegraph lines over a railroad’s right of way. In holding that federal law did not grant the company the right of eminent domain or the right to operate the lines absent the railroad’s consent, the Court assumed that the invasion of the telephone lines would be a compensable taking. Id., at 570 (the right-of-way “cannot be appropriated in whole or in part except upon the payment of compensation”). Later cases, relying on the character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land. See, e. g., Lovett v. West Va. Central Gas Co., 65 W. Va. 739, 65 S. E. 196 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922). See generally 2 J. Sackman, Nichols’ Law of Eminent Domain § 6.21 (rev. 3d ed. 1980). More recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U. S. 256 (1946), the Court ruled that frequent flights immediately above a landowner’s property constituted a taking, comparing such overflights to the" }, { "docid": "22689553", "title": "", "text": "analogous to the one presented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a telegraph company’s placement of telegraph poles on the city’s public streets. The Court reasoned: “The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The ordinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation thereof are temporary and shifting. The space he occupies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for purposes of highway and personal travel, wholly lost to the public. . . . “. . . It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated.” Id., at 98-99,101-102 (emphasis added). Similarly, in Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 (1904), a telegraph company constructed and operated telegraph lines over a railroad’s right of way. In holding that federal law did not grant the company the right of eminent domain or the right to operate the lines absent the railroad’s consent, the Court assumed that the invasion of the telephone lines would be a compensable taking. Id., at 570 (the right-of-way “cannot be appropriated in whole or in part except upon the payment of compensation”). Later cases, relying on the" }, { "docid": "23653320", "title": "", "text": "2042, 64 L.Ed.2d 741 (1980); Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124-25, 98 S.Ct. 2646, 2659-60, 57 L.Ed.2d 631 (1978). See also Troy, 727 F.2d at 300; Kargman v. Sullivan, 582 F.2d 131, 134 (1st Cir.1978). The Santa Barbara ordinance does not deprive landlords of a reasonable return on their investment. In fact, the ordinance mandates that park owners receive a fair investment return. S.B.Ord. § 26.08.020(D). The panel therefore attempts to distinguish this case from all other cases involving economic regulation of property by asserting that the claimed interference here is tantamount to a “physical invasion” of the property. Panel op. supra at 1276. This is, of course, the same argument the Supreme Court refused to consider in Fresh Pond; the Hall analysis is borrowed from Justice Rehnquist’s lone dissent from that dismissal. 464 U.S. at 875, 104 S.Ct. at 218 (Rehnquist, J., dissenting). The panel acknowledges that the economic regulation cases withstand even “drastic diminution in the value and usefulness” of property. Panel op. supra at 1275 (citing Penn Central). Because the Supreme Court held in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), that the extent of interference with the actual use of the property becomes irrelevant when the deprivation is physical, the panel is forced to characterize this ordinance as authorizing a “physical occupation.” Its decision relies almost exclusively upon Justice Marshall’s opinion in Loretto. That opinion therefore deserves close attention. Loretto makes a sharp distinction between permanent, physical occupations, on the one hand, and regulations impairing use, or even causing temporary injury to property, on the other. The hallmark of the physical invasion described in Loretto is actual appropriation of the land itself through physical contact, as, for example, through flooding or direct occupancy. Lor-etto concerned the installation of cable, a “direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building’s exterior wall.” Id. at 438, 102 S.Ct. at 3177. Under the Loretto analysis, “placement" }, { "docid": "20010904", "title": "", "text": "482 U.S. 304, 328, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). However, cases involving flooding and flow-age easements are different. Both Supreme Court precedent and our own precedent dictate that we must distinguish between a tort and a taking. An injury that is only “in its nature indirect and consequential,” i.e. a tort, cannot be a taking. Sanguinetti v. United States, 264 U.S. 146, 150, 44 S.Ct. 264, 68 L.Ed. 608 (1924). The Supreme Court has long recognized that to be considered a taking overflows must “constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” Id. at 149, 44 S.Ct. 264 (emphases added). The Court has stated that an invasion is permanent when there is a “permanent condition of continual overflow” or “a permanent liability to intermittent but inevitably recurring overflows.” United States v. Cress, 243 U.S. 316, 328, 37 S.Ct. 380, 61 L.Ed. 746 (1917); see also United States v. Kansas City Life Ins. Co., 339 U.S. 799, 810 n. 8, 70 S.Ct. 885, 94 L.Ed. 1277 (1950) (quoting Cress and finding a taking where the plaintiffs land was “permanently invaded by the percolation of ... waters”). In Cress, the Court found a taking where the erection of a lock and dam on the Cumberland River “subjected] [the plaintiffs land] to frequent overflows of water.” Cress, 243 U.S. at 318, 37 S.Ct. 380. The Court explained that these intermittent overflows showed “that this [was] not a case of temporary flooding or consequential injury,” where takings liability would be denied, “but [instead] a permanent condition, resulting from the erection of the lock and dam.” Id. at 327, 37 S.Ct. 380 (emphasis added). It further stated that there was “no difference of kind ... between a permanent condition of continual overflow [which had previously been found to constitute a taking] ... and a permanent liability to intermittent but inevitably recurring overflows.” Id. at 328, 37 S.Ct. 380 (emphasis added). In United States v. Dickinson, 331 U.S. 745, 746-47, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), the Court also found" }, { "docid": "20256348", "title": "", "text": "the other. A taking has always been found only in the former situation. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The Federal Circuit, moreover, has emphasized the narrow scope of the per se rule for physical takings set forth in Loretto: The holding of Loretto is quite narrow. It applies only to permanent physical occupations either by the government or by a third party acting under government authority. A physical occupation, as defined by the Court, is a permanent and exclusive occupation by the government that destroys the owner’s right to possession, use, and disposal of the property. Boise Cascade Corp. v. United States, 296 F.3d 1339, 1353 (Fed.Cir.2002). In each of the flooding cases cited by the parties in which a court has awarded or upheld compensation for a physical taking of private property, the government had engaged in activity that resulted in the permanent flooding, destruction or invasion of fast land located above or beyond the ordinary high water line or along a non-navigable body of water. See, e.g., United States v. Kansas City Life Ins. Co., 339 U.S. 799, 805-11, 70 S.Ct. 885, 94 L.Ed. 1277 (1950) (holding that the subsurface invasion of fast land beyond the bed of a navigable river was beyond the scope of the servitude); Dickinson, 331 U.S. at 747-50, 67 S.Ct. 1382 (holding that flooding and erosion of land located above the ordinary high water line was not barred by the federal navigational servitude); Cress, 243 U.S. at 319-28, 37 S.Ct. 380 (holding that the construction of a dam that resulted in the flooding of riparian land located on a non-navigable stream was beyond the scope of the servitude); Owen, 851 F.2d at 1408-16 (holding that public improvements to a navigable river that caused a house located on upland property to collapse into the river were not protected by the navigational servitude); Cooper v. United States, 827 F.2d 762, 763-64 (Fed.Cir.1987) (holding that the inundation of upland property that resulted in the destruction of trees was beyond the scope of the navigational" }, { "docid": "22689551", "title": "", "text": "qualification, that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181. Seven years later, the Court reemphasized the importance of a physical occupation by distinguishing a regulation that merely restricted the use of private property. In Northern Transportation Co. v. Chicago, 99 U. S. 635 (1879), the Court held that the city’s construc tion of a temporary dam in a river to permit construction of a tunnel was not a taking, even though the plaintiffs were thereby denied access to their premises, because the obstruction only impaired the use of plaintiffs’ property. The Court distinguished earlier cases in which permanent flooding of private property was regarded as a taking, e. g., Pumpelly, supra, as involving “a physical invasion of the real estate of the private owner, and a practical ouster of his possession.” In this case, by contrast, “[n]o entry was made upon the plaintiffs’ lot.” 99 U. S., at 642. Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. See United States v. Lynah, 188 U. S. 445, 468-470 (1903); Bedford v. United States, 192 U. S. 217, 225 (1904); United States v. Cress, 243 U. S. 316, 327-328 (1917); Sanguinetti v. United States, 264 U. S. 146, 149 (1924) (to be a taking, flooding must “constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property”); United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809-810 (1950). In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely" }, { "docid": "13388015", "title": "", "text": "the Loretto court stated that permanent physical occupations are takings “even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land.” 458 U.S. at 430, 102 S.Ct. at 3173. However, the second requirement, that the government action must “forever den[y] the owner any power to control the use of the property,” see Southview Associates, 980 F.2d at 95, is far less clear here. In Loretto, the Supreme Court expressly distinguished its set of facts from those involving a temporary occupation. The Court stated: The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property. Loretto, 458 U.S. at 436 n. 12, 102 S.Ct. at 3176 n. 12. Indeed, the Loretto majority cautioned that “[o]ur holding today is very narrow.” 458 U.S. at 441, 102 S.Ct. at 3179. The Loretto majority did not, however, provide a precise definition for the term “permanent.” Justice Blackmun, joined by two other justices in dissent, strongly criticized this oversight: Surprisingly, the Court draws an even finer distinction today — between “temporary physical invasions” and “permanent physical occupations.” ... [W]hat does the Court mean by “permanent”? Since all “temporary limitations on the right to exclude” remain “subject to a more complex balancing process to determine whether they are a taking,” the Court presumably describes a government intrusion that lasts forever. But as the Court itself concedes, [the regulation at issue] does not require appellant to permit the cable installation forever, but only “[s]o long as the property remains residential and" } ]

[ { "docid": "11920908", "title": "", "text": "the day to day operations of the corporation. Stephens maintained its continuity of business activity, had stockholders and a Board of Directors, accepted liabilities and receivables in its corporate name and was operated for the purpose of making a profit. 26 U.S.C.A. § 7701(a) (3) defines “corporation” as including “associations, joint-stock companies, and insurance companies” and, while its status may possibly have changed under Missouri law, its tax status for federal purposes remains the same. Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935); Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 46 S.Ct. 48, 70 L.Ed. 183 (1925); Coast Carton Co. v. Commissioner, 149 F.2d 739 (9th Cir. 1945); Crocker v. Commissioner, 84 F.2d 64 (7th Cir. 1936). Finally, Lumetta challenges the court’s Instructions Nos. XIII and XVII. It is argued that Instruction Xm “ * * * allowed the jury to consider, as an offense, the failure to sign the returns.” There is no valid basis for this argument as the instruction does nothing more than tell the jury in the language of the statute the persons who shall sign corporate income tax returns. Lumetta was charged in the indictment with being required by law to make an income tax return on behalf of the corporation, and in order to convict, the jury had to find under other instructions of the court that he was a proper person required by law to file the corporate return. In order for the jury to intelligently perform its fact-finding function, it was proper and necessary for the court to instruct the jury as to the persons under law required to sign corporate returns. We know of no better way to instruct the jury than by the plain and simple language of the statute. It is proper practice to employ the language of a statute in an instruction when the statute is composed of clear and simple language. Compare Caldwell v. United States, 338 F.2d 385 (8th Cir. 1964); Williams v. United States, 328 F.2d 256 (8th Cir. 1964), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12" } ]

[ { "docid": "16431463", "title": "", "text": "37 (1999). To prove a false statement in violation of 18 U.S.C. § 1001, the government must show that the defendant: (1) knowingly and willfully, (2) made a statement, (3) in relation to a matter within the jurisdiction of a department or agency of the United States, (4) with knowledge of its falsity. See United States v. Wiener, 96 F.3d 35, 37 (2d Cir.1996), aff'd sub nom. Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998). To prove obstruction of correspondence in violation of 18 U.S.C. § 1702, the government must prove that the defendant (1) knowingly took mail from a post office or authorized depository for mail, (2) before it was delivered, (3) with the specific intent to obstruct correspondence or pry into the business or secrets of another. See United States v. Gaber, 745 F.2d 952, 955 (5th Cir.1984). As a preliminary matter, it is beyond cavil that Duelos, absent his affirmative defense, admitted the elements of both crimes. Duelos attempts to dispute his intent, saying that he committed the act in question so quickly and without thinking that he did not have time to form the requisite intent. This argument, however, confuses intent with premeditation. Duelos admitted at trial that he knew the nature of his act, and that he knew what its likely effect would be. This amounts to intent. Duclos’s more complicated argument on sufficiency of the evidence involves the question of his affirmative defense. Duelos notes correctly that his behavior might be excused by the defense of necessity. This defense, like other justification defenses, allows a defendant to evade responsibility for otherwise criminal actions notwithstanding proof of the elements of the offense. See United States v. Smith, 160 F.3d 117, 123 (2d Cir.1998). The essence of the defense is that otherwise criminal conduct may be excused when the defendant commits the acts in order to avoid a greater evil. In one formulation of this defense (on which Duelos himself relies in his brief on appeal), the defense requires that the defendant had no legal alternative to violating the law;" }, { "docid": "14514815", "title": "", "text": "SANBORN, Circuit Judge. Shirley Ann Maxwell has appealed in forma pauperis from a judgment of conviction under Section 1702, Title 18, U.S. C. She was charged, by Information filed October 21, 1955 (indictment having been waived), with having unlawfully taken, at Kansas City, Missouri, on April 12, 1955, “a letter addressed to Sarah Dodd, 3239 East 32nd Street, Kansas City, Missouri, which letter had been in a Post Office and an authorized depository for mail matter, before it had been delivered to the person to whom it was directed, with design to obstruct the correspondence and to pry into the business and secrets of another, and did open, secrete and embezzle the contents of the same, to wit, a State of Missouri check in the amount of $10.50, No. 824979, dated April 12, 1955, payable to Sarah Dodd, in violation of Section 1702, Title 18, United States Code.” Section 1702, Title 18, U.S.C. reads as follows: “Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both.” The District Court appointed Mr. Rodger J. Walsh, of the Kansas City, Missouri, bar, to represent the defendant. Upon arraignment on October 21, 1955, she entered a plea of guilty. On October 28, 1955, by leave of court, she withdrew that plea and entered a plea of not guilty. She waived trial by jury, and the case was tried to the court upon written stipulations of the facts. It was stipulated that the defendant on April 12,1955, lived at 3239 East 32nd Street, Kansas City, Missouri, a residence which had been converted into" }, { "docid": "9518878", "title": "", "text": "jury on the district court’s own instructions; certain instructions requested by the defendant at the close of the testimony were refused. The jury found the defendant guilty on both counts. Thereafter, the defendant filed an alternative motion for a new trial. On August 22, 1975 the district court filed a memorandum discussing in detail the motions pending before it, including the alternative motion for a new trial. It was held that defendant’s motion to dismiss Count I and her motion for judgment of acquittal on that count should be denied. As to Count II defendant’s motions were granted. The motion for a new trial was denied. On August 26, 1975 the district court adjudged the defendant guilty on Count I and imposed a probationary sentence conditioned on the defendant’s making restitution to Bank Americard in the sum of $577.21. The defendant appeals. For reversal the defendant contends basically that her connection and dealings with the letter referred to in the indictment did not constitute a violation of § 1702, and that her motion for judgment of acquittal on Count I should have been granted. What is now § 1702 is an old statute and is designed to protect the mails and correspondence moving therein from theft, embezzlement, obstruction, and meddlesome prying. The statute reads: Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both. While there is authority to the effect that the protection extended by § 1702 ends when a piece of mail matter passes legitimately out of the control and beyond the responsibility of what is now" }, { "docid": "9518891", "title": "", "text": "elements of the offense charged. Batsell v. United States, 403 F.2d 395 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969); Lumetta v. United States, 362 F.2d 644 (8th Cir. 1966); Williams v. United States, 328 F.2d 256 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964). [H] Had the defendant made an appropriate request, we think that she might well have been entitled to a more detailed instruction with respect to her status as a “c/o addressee” as bearing upon whether she acted with unlawful intent to obstruct the correspondence in question. The jury might well have been told that it might consider her status, along with her explanation of her conduct, and along with all of the other evidence in the case in determining whether or not she acted with the requisite criminal intent. But, no appropriate request for such an instruction was made, and we do not consider that the district court was required to give a more elaborate instruction on its own motion. Two other contentions advanced by the defendant may be disposed of briefly- During its deliberations the jury inquired of the district court as to whether a private mail box is an authorized depository for mail matter. Over the objection of defense counsel the district court answered that inquiry in the affirmative. In asking the question we do not know whether the jury was concerned with Count I or Count II; in any event the answer given was correct, and we see no error in the district court’s answering the question. In instructing the jury on the weight of the evidence and credibility of witnesses the district court advised that in making its judgments in those areas the jury might consider the interest, if any, that a witness might have in the outcome of the case. Defendant contends that the instruction amounted to a comment on the fact that the defendant had testified and invited the jury to disbelieve her testimony. We consider that contention to be frivolous. United States v. Brown, 453" }, { "docid": "744387", "title": "", "text": "court held that “intent to defraud the United States” was an essential element of the offense which must be alleged in the indictment. Contrary to the argument advanced by the government, our subsequent decision in Gearing v. United States, 5 Cir. 1970, 432 F.2d 1038, did nothing to alter the effect of Walker on the indictment in this case. See United States v. Fischetti, 5 Cir. 1971, 450 F.2d 34 at 39. Count II of the indictment is therefore defective because it fails to allege an essential element of the crime. Due to our disposition of the preceding issues, it becomes unnecessary to consider the other three issues raised by appellant. For all of the above reasons the conviction of appellant is hereby Reversed and remanded. . 18 U.S.C. § 1702: “Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 495: “Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money ; or “Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited ; or “Whoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any" }, { "docid": "13931582", "title": "", "text": "mail” and thus eliminates the need for judicial determination of the termini of the statute’s protection. By tracking the language of the second and third paragraphs of § 1708, the trial court accurately and adequately defined the essential elements of the offense charged. See United States v. Ashford, 530 F.2d 792, 798 (8th Cir. 1976); Batsell v. United States, 403 F.2d 395 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). II. The appellant’s claim that the evidence is insufficient to support the conviction is likewise without merit. It is axiomatic that when evaluating the sufficiency of the evidence, the reviewing court must view the evidence in the light most favorable to the government. United States v. Shahane, 517 F.2d 1173, 1174 (8th Cir. 1975); United States v. Powell, 513 F.2d 1249, 1250 (8th Cir.), cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77 (1975). Upon review of the record, we find that there clearly was sufficient evidence to sustain the verdict. Finding no error in the proceedings below, we affirm the judgment of conviction. . § 1708. Theft or receipt of stolen mail matter generally Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any" }, { "docid": "5757647", "title": "", "text": "mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; . . This count was laid on 18 U.S.C. § 1702 (1976), providing: Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both. . The indictment read: On or about November 21, 1975, within the District of Columbia, ALBERT P. CHILDS did take a letter addressed to George F. Warner and Co., 101 Q Street, Northwest, Washington, D.C. which had been in an authorized depository for mail matter, before the same had been delivered to the person to whom it was directed, with the design to obstruct the correspondence of the letter. Tr. 86. . See Stirone v. United States, 361 U.S. 212, 217, 80 S.ct. 270, 273, 4 L.Ed.2d 252, 256-257 (1960). . See note 10 supra (emphasis supplied). . See note 10 supra. . Tr. 15, 18 19. . See note 9 supra. . United States v. Wade, 364 F.2d 931, 934 (6th Cir. 1966); United States v. Bradford, 493 F.2d 1282, 1284 (7th Cir.), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); United States v. Maxwell, 137 F.Supp. 298 (W.D.Mo. 1955), aff’d, 235 F.2d 930, 932 (8th Cir.), cert. denied, 352 U.S. 943, 77 S.Ct. 266, 11 L.Ed.2d 239 (1956); McCowan v. United States, 376 F.2d 122, 124 (9th Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 66, 19 L.Ed.2d 102 (1967); United States v. Ashford, 403 F.Supp. 461, 464 466 (N.D.Iowa 1975), aff’d," }, { "docid": "9518888", "title": "", "text": "constitute a violation of § 1702 by a “c/o addressee” or by anyone else for that matter, there must be a mens rea, the specific evil intent to obstruct correspondence or to pry into the business or secrets of another. Such an intent was alleged in this case, and, as indicated, the jury could have found, and evidently did find, that such intent existed. Our conclusion, then, is that the government made a submissible case on Count I, and that the verdict of the jury was sustained by substantial evidence. Thus, the district court did not err when it refused to grant defendant’s motions for judgment of acquittal on Count I. The district court did not err in refusing to give any of the four requests for instructions submitted by counsel for the defendant. Of those four instructions only Request No. 3 has any real significance here. That request, which counsel refers to as the defendant’s “theory of defense” instruction, would have told the jury that if a letter is addressed to one person in care of another person, delivery of the letter to either is proper under the law. The request essentially stated the rule laid down in 39 CFR (1974 ed.) § 154.1(a)(f), and it was correct as an abstract proposition. However, as far as Count I was concerned, the issue was not whether the Postal Service might properly deliver the letter to the defendant or whether she could properly receive it into her physical possession. The question was what she had a right to do with the letter and its contents after delivery. Request No. 3 does not touch that question and was not adequate to present defendant’s ultimate theory to the jury. It was not error to refuse the request. The district court on its own motion gave twenty-two numbered instructions. Most of those instructions were standard instructions, and it seems to us that most of the substantive instructions were more closely geared to the second count of the indictment than to the first. As far as Count I was concerned, the two most crucial instructions" }, { "docid": "9518890", "title": "", "text": "were No. 7 which set out the essential elements of the offense charged in Count I, and No. 14 which told the jury that intent may be proved by circumstantial evidence, and that ordinarily a person may be presumed to intend the natural and probable consequences of his acts. Instruction No. 7 advised the jury that before it could properly convict the defendant of violating § 1702 it must find from the evidence beyond a reasonable doubt: (1) that the defendant took a letter which had been in a Post Office or authorized depository for mail matter or in the custody of a letter carrier; (2) that the letter was taken before it was delivered to the person to whom it was directed; and (3) that the letter was taken “with the specific intent to obstruct the correspondence or to pry into the business of secrets of another.” In defining the elements of the offense charged in Count I the district court tracked the language of § 1702, and accurately and adequately defined the essential elements of the offense charged. Batsell v. United States, 403 F.2d 395 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969); Lumetta v. United States, 362 F.2d 644 (8th Cir. 1966); Williams v. United States, 328 F.2d 256 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964). [H] Had the defendant made an appropriate request, we think that she might well have been entitled to a more detailed instruction with respect to her status as a “c/o addressee” as bearing upon whether she acted with unlawful intent to obstruct the correspondence in question. The jury might well have been told that it might consider her status, along with her explanation of her conduct, and along with all of the other evidence in the case in determining whether or not she acted with the requisite criminal intent. But, no appropriate request for such an instruction was made, and we do not consider that the district court was required to give a more elaborate instruction on" }, { "docid": "9518879", "title": "", "text": "of acquittal on Count I should have been granted. What is now § 1702 is an old statute and is designed to protect the mails and correspondence moving therein from theft, embezzlement, obstruction, and meddlesome prying. The statute reads: Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both. While there is authority to the effect that the protection extended by § 1702 ends when a piece of mail matter passes legitimately out of the control and beyond the responsibility of what is now the United States Postal Service, later and more authoritative cases establish that the statute is applicable until the mailed material is physically delivered to the person to whom it is directed or to his authorized agent, and this court is committed to that view. Ross v. United States, 374 F.2d 97, 103 (8th Cir. 1967); Maxwell v. United States, 235 F.2d 930 (8th Cir.), cert. denied, 352 U.S. 943, 77 S.Ct. 266, 1 L.Ed.2d 239 (1956). See also United States v. Brown, 425 F.2d 1172 (9th Cir. 1970); United States v. Wade, 364 F.2d 931 (6th Cir. 1966). As thus construed, § 1702 is a broader statute than § 1708 under which the second count of the indictment was drawn. The protection of § 1708 is limited to mail matter which is still in the possession or control of the Postal Service or which has been placed in an authorized receptacle for mail matter such as a private letter box and which has not lawfully been removed therefrom. United States v. Matzker, 473 F.2d 408" }, { "docid": "9518887", "title": "", "text": "directed is guilty of violating § 1702, we see no reason to hold that a “c/o addressee” who wrongfully appropriates a letter that comes into his hands as such an addressee should be immune from prosecution under that statute. Indeed, the connection between the mails and a theft or embezzlement of a letter by a “c/o addressee” is arguably closer than the connection that exists when a third party steals a letter that has left the mails but has not been delivered to the addressee. We hasten to add that a “c/o addressee” who retains or opens a letter designed ultimately for someone else does not necessarily violate § 1702. The “c/o addressee” may do so inadvertently or by mistake, or he may be authorized by the true addressee, either expressly or by implication, to retain or open the letter, or even in the absence of such an authorization the conduct of the “c/o addressee” in connection with the letter may be justified or excused by the circumstances of a particular case. In order to constitute a violation of § 1702 by a “c/o addressee” or by anyone else for that matter, there must be a mens rea, the specific evil intent to obstruct correspondence or to pry into the business or secrets of another. Such an intent was alleged in this case, and, as indicated, the jury could have found, and evidently did find, that such intent existed. Our conclusion, then, is that the government made a submissible case on Count I, and that the verdict of the jury was sustained by substantial evidence. Thus, the district court did not err when it refused to grant defendant’s motions for judgment of acquittal on Count I. The district court did not err in refusing to give any of the four requests for instructions submitted by counsel for the defendant. Of those four instructions only Request No. 3 has any real significance here. That request, which counsel refers to as the defendant’s “theory of defense” instruction, would have told the jury that if a letter is addressed to one person in" }, { "docid": "12893866", "title": "", "text": "PER CURIAM. Defendant Rufus Brown was convicted of taking a letter addressed to Mrs. Phoebe Brown, which had been in a post office, before it had been delivered to the addressee, “with design to obstruct the correspondence,” and opening, secreting and embezzling the letter, in violation of 18 U.S.C. § 1702. Defendant Nolen was convicted of aiding and abetting the commission of the offense. The government’s evidence established that the letter in question, containing Mrs. Brown’s paycheck, was misdelivered into defendant Brown’s mailbox; that he opened the letter and discovered the mistake, but decided to keep the check; and that he gave the check to Nolen to cash. Citing several early decisions under a predecessor statute, defendants argue that section 1702 does not apply because the post office voluntarily terminated its custody of the letter by delivering it to defendant Brown’s mailbox. But later authority makes it clear that section 1702 protects the mail until it is actually received by the addressee. McCowan v. United States, 376 F.2d 122, 124 (9th Cir. 1967); United States v. Wade, 364 F.2d 931, 934 (5th Cir. 1966); Devine v. United States, 278 F.2d 552, 554 (9th Cir. 1960); United States v. Maxwell, 235 F.2d 930 (8th Cir. 1956); see also Rosen v. United States, 245 U.S. 467, 473, 38 S.Ct. 148, 62 L.Ed. 406 (1918); United States v. Logwood, 360 F.2d 905, 908 (7th Cir. 1966). Defendant Nolen contends that the evidence was insufficient to support his conviction. Section 1702 requires a specific intent “to obstruct the correspondence, or to pry into the business or secrets of another.” The evidence shows that Brown opened the letter, took out the check, and threw the envelope away; and that he later gave the check to Nolen when the latter came to his apartment to borrow money. There is no proof that Nolen knew that defendant Brown had taken the check from Mrs. Brown's letter, nor any other evidence direct or circumstantial that Nolen had the requisite specific intent. Absence of proof of this essential element of the section 1702 offense requires reversal of defendant Nolen’s" }, { "docid": "9518893", "title": "", "text": "F.2d 101, 107 (8th Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); Taylor v. United States, 390 F.2d 278, 284-85 (8th Cir.), cert. denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137 (1968); Foley v. United States, 290 F.2d 562, 569 (8th Cir. 1961). No error appearing, the judgment of the district court is affirmed. . Defendant also argues that her motion to dismiss Count I should have been granted. We disagree. Regardless of whether the defendant was guilty on Count I, we think that the count, which was drawn in the language of the statute, charged an offense within the jurisdiction of the district court. . When criminal charges against the defendant were filed, she was suspended indefinitely from her employment and was so suspended when she testified. . In the brief filed on behalf of the defendant it is at least suggested that defendant might be considered as the agent of Bank Americard. We attach no weight to that suggestion or argument even if we indulge the assumption that defendant had nothing to do with the first letter and did not cause the second letter to be mailed. . Request No. 1 related to Count II of the indictment on which count the defendant was ultimately acquitted. Request No. 2 purported to set out the elements of the offense charged in Count I; those elements were adequately set out in the court’s Instruction No. 7. Request No. 4 related to circumstantial evidence and was not a correct statement of the law. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 S.Ed.2d 124 (1975). . We note that in Instruction No. 14 the district court told the jury, among other things, that in passing upon a question of intent it might consider “any statements made and acts done or omitted by the accused, and ail facts and circumstances in evidence which may aid determination of state of" }, { "docid": "9518892", "title": "", "text": "its own motion. Two other contentions advanced by the defendant may be disposed of briefly- During its deliberations the jury inquired of the district court as to whether a private mail box is an authorized depository for mail matter. Over the objection of defense counsel the district court answered that inquiry in the affirmative. In asking the question we do not know whether the jury was concerned with Count I or Count II; in any event the answer given was correct, and we see no error in the district court’s answering the question. In instructing the jury on the weight of the evidence and credibility of witnesses the district court advised that in making its judgments in those areas the jury might consider the interest, if any, that a witness might have in the outcome of the case. Defendant contends that the instruction amounted to a comment on the fact that the defendant had testified and invited the jury to disbelieve her testimony. We consider that contention to be frivolous. United States v. Brown, 453 F.2d 101, 107 (8th Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); Taylor v. United States, 390 F.2d 278, 284-85 (8th Cir.), cert. denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137 (1968); Foley v. United States, 290 F.2d 562, 569 (8th Cir. 1961). No error appearing, the judgment of the district court is affirmed. . Defendant also argues that her motion to dismiss Count I should have been granted. We disagree. Regardless of whether the defendant was guilty on Count I, we think that the count, which was drawn in the language of the statute, charged an offense within the jurisdiction of the district court. . When criminal charges against the defendant were filed, she was suspended indefinitely from her employment and was so suspended when she testified. . In the brief filed on behalf of the defendant it is at least suggested that defendant might be considered as the agent of Bank Americard. We attach no weight to that suggestion or argument even if we indulge" }, { "docid": "13931581", "title": "", "text": "“from the mails” is a prerequisite to conviction for unlawful possession of stolen mail under 18 U.S.C. § 1708; and that had the trial court defined when an article is “in the mail” the jury might well have concluded that the letters, when found by the appellant on the vestibule floor, were not “in the mail” within the meaning of the statute. The cases cited by the appellant are inapposite here. In those cases, prosecution was under the first and third paragraphs of § 1708, requiring a showing of possession of one of the enumerated articles which had been stolen “from or out of any mail.” Therefore, a definition of “mail” or “from the mail” was indeed critical. The prosecution in the instant case, however, was under the second and third paragraphs of § 1708. The second paragraph of § 1708, by requiring a finding that the article was stolen while “left for collection upon or adjacent to a collection box or other authorized receptacle,” expressly delineates when articles are to be considered “in the mail” and thus eliminates the need for judicial determination of the termini of the statute’s protection. By tracking the language of the second and third paragraphs of § 1708, the trial court accurately and adequately defined the essential elements of the offense charged. See United States v. Ashford, 530 F.2d 792, 798 (8th Cir. 1976); Batsell v. United States, 403 F.2d 395 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). II. The appellant’s claim that the evidence is insufficient to support the conviction is likewise without merit. It is axiomatic that when evaluating the sufficiency of the evidence, the reviewing court must view the evidence in the light most favorable to the government. United States v. Shahane, 517 F.2d 1173, 1174 (8th Cir. 1975); United States v. Powell, 513 F.2d 1249, 1250 (8th Cir.), cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77 (1975). Upon review of the record, we find that there clearly was sufficient evidence to sustain the verdict. Finding no error in the" }, { "docid": "2375691", "title": "", "text": "the offenses it interdicts enumerates the postal custody, mail receptacles, and “other authorized depository for mail matter” it is designed to protect against theft. The section evinces no congressional intent to afford federal protection to items beyond those points. The letter and its contents here purloined were not stolen from a custody or locus within the purview of § 1708 and consequently the evidence does not establish that the defendant was in possession of a “letter * * * or any article or thing contained therein * * * so stolen * * * as herein described”. The government’s reliance upon Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406, is misplaced. That case involved letters containing checks which were stolen from boxes placed by tenants for the receipt of mail in the halls of the building in which they had their places of business. The boxes, which bore the names of their owners, were held to be authorized mail depositories under the provisions of a Post Office Department regulation. In the instant case there is nothing to indicate that the landlady was an authorized custodian of the tenant’s mail pursuant to any postal regulation or that the window sill of her apartment was an authorized mail depository. Maxwell v. United States, 8 Cir., 235 F.2d 930, cited by the government, turns on the express language utilized in 18 U.S.C.A. § 1702 which serves to extend the protective mantle of that particular section to embrace matter which has been in postal custody or in an authorized depository and is intercepted “before it has been delivered to the person to whom it was directed”. § 1702 appears to be primarily directed at an invasion of privacy “with design to obstruct the correspondence, or to pry into the business or secrets of another” and it encompasses a latitude commensurate with that purpose. But in our opinion it is obvious from the differences in the specific language and terminology employed that § 1708 is not intended to and does not reach as far as § 1702 extends. In United" }, { "docid": "5757636", "title": "", "text": "that appellant had removed the letter from the mailbox, but that he appropriated the letter, which at some prior time had been in an authorized depository, “before the same had been de livered to the person Lo whom it was directed.” We thus are unable to discern any variance between the charge specified in the indictment and the Government’s proof at trial. The evidence demonstrated beyond peradventure that the County Decorators check had been introduced into the mail in the misaddressed envelope and that the addressee had never received it. The videotape of appellant’s visit to the warehouse loft had captured his declarations to Officer Lilly that the check had been delivered to his residence and that he had come by it there. From this showing, the jury might reasonably have deduced that appellant committed the taking described in the indictment. It goes without saying that the indictment must charge misconduct within the ambit of a criminal law. But the indictment here closely tracked the text of the statute upon which the prosecution was based, which forbids the taking, with intent to obstruct the correspondence, of any letter which “has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed.” This language connotes plainly enough that the required taking may occur at any time before the letter reaches the addressee, regardless of whether it was in the physical custody of the postal service or was on deposit in an authorized mailbox when taken, and so the courts have consistently held. Decisions under this statute teach, too, that even when mailed matter has been removed from an authorized mail depository by another, one obstructs if with the intent interdicted he appropriates it thereafter and before it arrives in the hands of the addressee. Mailed matter is thus protected against obstruction from the time it enters the postal system until it is manually delivered to the addressee. Anyone who intentionally obstructs its journey through the postal process invites the statutory sanctions." }, { "docid": "5757648", "title": "", "text": "Washington, D.C. which had been in an authorized depository for mail matter, before the same had been delivered to the person to whom it was directed, with the design to obstruct the correspondence of the letter. Tr. 86. . See Stirone v. United States, 361 U.S. 212, 217, 80 S.ct. 270, 273, 4 L.Ed.2d 252, 256-257 (1960). . See note 10 supra (emphasis supplied). . See note 10 supra. . Tr. 15, 18 19. . See note 9 supra. . United States v. Wade, 364 F.2d 931, 934 (6th Cir. 1966); United States v. Bradford, 493 F.2d 1282, 1284 (7th Cir.), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); United States v. Maxwell, 137 F.Supp. 298 (W.D.Mo. 1955), aff’d, 235 F.2d 930, 932 (8th Cir.), cert. denied, 352 U.S. 943, 77 S.Ct. 266, 11 L.Ed.2d 239 (1956); McCowan v. United States, 376 F.2d 122, 124 (9th Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 66, 19 L.Ed.2d 102 (1967); United States v. Ashford, 403 F.Supp. 461, 464 466 (N.D.Iowa 1975), aff’d, 530 F.2d 792 (8th Cir. 1976). See also United States v. McCready, 11 F. 225, 237 (C.C.W.D.Tenn. 1882). In this respect, the reach of the anti-obstruction statute, 18 U.S.C. § 1702, quoted supra note 9, is thus greater than that of the theft-from-the-mail provision, 18 U.S.C. § 1708 (1976), quoted supra note 8. Compare United States v. Davis, 461 F.2d 83, 88-90 (5th Cir.), cert. denied, 409 U.S. 921, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972); United States v. Anton, 547 F.2d 493, 495 496 (9th Cir. 1976); United States v. Ashford, supra, 403 F.Supp. at 464 465. . E. g., United States v. Maxwell, supra note 16, where the accused took a letter from a table in a hallway after it had been innocently removed from a mailbox by another. In the view of the District Court, [t]hat she took [the letter] from a table in the hallway on which the “letter” had been placed, after innocently being taken from an authorized depository for mail matter, does not militate against or exculpate her from" }, { "docid": "9518885", "title": "", "text": "found that there was no evidence to sustain that theory. Assuming that the defendant had no connection with the first letter and did not procure the delivery of the second letter to her apartment, nevertheless, in the special circumstances proved in this case, the jury could have found that the defendant, who had special knowledge because of her position as a post office employee, knew that the letter had been misdirected and that she had neither a right nor a privilege to open the letter and appropriate its contents, and that she knew that if she kept the letter, whether she opened it or not, it would not be delivered to Mr. Ashford, and that by retaining possession of the letter she would obstruct the correspondence between Bank Americard and Ashford, and that she intended to obstruct it. The defendant could not contend successfully that she had any authority from Mr. Ashford to receive or open his mail or to use a credit card intended for him and his wife. Consequently, her argument here boils down to the proposition that a “c/o addressee” of a letter is a person to whom the letter is directed within the meaning of § 1702, and that as far as that statute is concerned, a “c/o addressee” can deal with a letter and its contents received in that capacity as he or she chooses. We do not accept that proposition. Whether a “c/o” designation appearing on an envelope is simply part of the address or whether it amounts to something else, we do not think that the designation automatically entitles the “c/o addressee” to hold the letter indefinitely or to open it or to appropriate the contents thereof to his or her own use. And, we think that in dealing improperly with a letter so received a “c/o addressee” can be guilty of violating § 1702 where the appropriate unlawful intent is shown. If, as in Maxwell, supra, a third party thief who steals mail which has been lawfully removed from a letter box but not delivered to the person to whom it was" }, { "docid": "9518889", "title": "", "text": "care of another person, delivery of the letter to either is proper under the law. The request essentially stated the rule laid down in 39 CFR (1974 ed.) § 154.1(a)(f), and it was correct as an abstract proposition. However, as far as Count I was concerned, the issue was not whether the Postal Service might properly deliver the letter to the defendant or whether she could properly receive it into her physical possession. The question was what she had a right to do with the letter and its contents after delivery. Request No. 3 does not touch that question and was not adequate to present defendant’s ultimate theory to the jury. It was not error to refuse the request. The district court on its own motion gave twenty-two numbered instructions. Most of those instructions were standard instructions, and it seems to us that most of the substantive instructions were more closely geared to the second count of the indictment than to the first. As far as Count I was concerned, the two most crucial instructions were No. 7 which set out the essential elements of the offense charged in Count I, and No. 14 which told the jury that intent may be proved by circumstantial evidence, and that ordinarily a person may be presumed to intend the natural and probable consequences of his acts. Instruction No. 7 advised the jury that before it could properly convict the defendant of violating § 1702 it must find from the evidence beyond a reasonable doubt: (1) that the defendant took a letter which had been in a Post Office or authorized depository for mail matter or in the custody of a letter carrier; (2) that the letter was taken before it was delivered to the person to whom it was directed; and (3) that the letter was taken “with the specific intent to obstruct the correspondence or to pry into the business of secrets of another.” In defining the elements of the offense charged in Count I the district court tracked the language of § 1702, and accurately and adequately defined the essential" } ]

[ { "docid": "22636860", "title": "", "text": "that for triers of fact totally to reject an opposed view impeaches neither their impartiality nor the propriety of their conclusions. We said, “We are constrained to reject the court’s conclusion that an objective finder of fact could not resolve all factual conflicts arising in a legal proceeding in favor of one litigant. The ordinary lawsuit, civil or criminal, normally depends for its resolution on which version of the facts in dispute is accepted by the trier of fact. . . .” Labor Board v. Pittsburgh Steamship Co., 337 U. S. 656, 659. Rule 52, Federal Rules of Civil Procedure, provides, among other things: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them. If defendants’ witnesses spoke the truth, the findings are admittedly justified. The trial court listened to and observed the officers who had made the records from which the Government would draw an inference of guilt and concluded that they bear a different meaning from that for which the Government contends. It ought to be unnecessary to say that Rule 52 applies to appeals by the Government as well as to those by other litigants. There is no exception which permits it, even in an antitrust case, to come to this Court for what virtually amounts to a trial de novo on the record of such findings as intent, motive and design. While, of course, it would be our duty to correct clear error, even in findings of fact, the Government has failed to establish any greater grievance here than it might have in any case where the evidence would support a conclusion either way but where the trial court has decided it to weigh more heavily for the defendants. Such a choice between two permissible views of the weight of evidence is not “clearly erroneous.” Judgment affirmed." } ]

[ { "docid": "22652139", "title": "", "text": "the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U. S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 (1982). This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. To be sure, various Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. See, e. g., Orvis v. Higgins, 180 F. 2d 537 (CA2 1950); Lydle v. United States, 635 F. 2d 763, 765, n. 1 (CA6 1981); Swanson v. Baker Industries, Inc., 615 F. 2d 479, 483 (CA8 1980). This theory has an impressive genealogy, having first been articulated in an opinion written by Judge Frank and subscribed to by Judge Augustus Hand, see Orvis v. Higgins, supra, but it is impossible to trace the theory’s lineage back to the text of Rule 52(a), which states straightforwardly that “findings of fact shall not be set aside unless clearly erroneous.” That the Rule goes on to emphasize the special deference to be paid credibility determinations does" }, { "docid": "12592192", "title": "", "text": "the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).” We thus must limit review of the evidence to determine whether the trial court’s finding is “plausible in light of the record viewed in its entirety.” In its brief, the plaintiff makes several arguments based on its interpretation of the facts in an attempt to have this court hold the trial court’s finding clearly erroneous that all reasonable relevant delay was attributable to him. The plaintiff’s primary argument is that Palmer Johnson grossly underestimated the man-hours required to complete the yacht, and therefore was unable to complete the yacht as originally agreed upon, thus Palmer Johnson should be held responsible for the delays. The district court gave several cogent reasons in finding that the plaintiff was primarily responsible for the delay, among them the late delivery of the architect’s drawings (supported by testimony at trial) and the plain tiff’s unavailability to review the ship’s progress for four of the nine months of the construction period. We hold that the trial court’s finding was indeed more than plausible when reviewing the record in its entirety. b. The plaintiff also argues that the court’s finding that he was primarily responsible" }, { "docid": "1134924", "title": "", "text": "court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. See also In re Southern Industrial Banking Corp., 809 F.2d 329, 331 (6th Cir.1987). The Supreme Court has further enunciated this principle as follows: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 [70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982). Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1984). A bankruptcy court’s conclusions of law, on the other hand, are subject to de novo review on appeal. In re Edward M. Johnson, 845 F.2d at 1398. Also, “if a finding of fact is premised upon an improper legal standard, or a proper one improperly applied, that finding loses the insulation of the clearly erroneous rule.” In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206, 209 (5th Cir.1983). Wolf Creek appeals five conclusions drawn by" }, { "docid": "4458826", "title": "", "text": "district court’s account of the evidence is plausible in light of the record viewed in its entirety, [we] may not reverse it even though convinced that had [we] been sitting as the trier of fact, [we] would have weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In other words, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504. Thus, 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.’ ” Id. at 573, 105 S.Ct. 1504 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). This is so whether or not the district court’s findings rest on credibility determinations. But where, as here, findings are based on credibility determinations, even greater deference is required, “for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. at 575, 105 S.Ct. 1504 (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). We cannot say that the District Court’s conclusion on the voluntariness of Isiofia’s consent is clearly erroneous. The Court’s finding of coerciveness stemming from the length of Isiofia’s detention is grounded in the record. As the District Court noted, the evidence showed that Isiofia consented to the search of his apartment and car only after being handcuffed to a table for over thirty minutes in the presence of numerous law enforcement agents, some of whom extracted detailed personal and financial information from him. Although the officers testified that they neither threatened nor yelled at Isiofia, his affidavit testimony, which the District Court considered, tells a different story. In that sworn affidavit, Isiofia claims that the agents “demanded” his consent and told him “that if" }, { "docid": "21440614", "title": "", "text": "decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.... When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.... [Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Anderson v. Bessemer City, 470 U.S. 564, 573-575, 105 S.Ct. 1504, 1511-1512, 84 L.Ed.2d 518 (1985). Under this extremely narrow standard of review, we are unable to say that either of the challenged findings are clear error. As for the discriminatory non-promotion claim, the district court applied appropriately strict scrutiny to the defendants proffered reason for Bruhwiler’s non-promotion. As we have noted previously, “the legitimacy of the articulated reason for the employment decision is subject to particularly close scrutiny where the evaluation is subjective and the evaluators themselves are not members of the protected minority.” Grano v. Dept. of Development of City of Columbus, 699 F.2d 836, 837 (6th Cir.1983). The district court plausibly found that Bruhwiler was fully qualified and that the defendant’s proffered reason for non-promotion was pretext for discriminatory action. Consequently, the district court’s finding of discriminatory non-promotion cannot be set aside. The law in this circuit is clear that a constructive discharge exists if working conditions are such that a reasonable person in the plaintiff’s shoes would feel compelled to" }, { "docid": "14896040", "title": "", "text": "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.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of the fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511-12. The district court s account of the evidence” in this case, was at the very least “plausible”. The majority, by ignoring the prescribed standard of review has performed precisely the type of de novo review forbidden by the Supreme Court in Anderson. C. In order to establish a prima facie case of age discrimination on the basis of a facially neutral employment policy’s disparate impact, a plaintiff is not required to demonstrate that the policy is the result of an employer’s discriminatory intent," }, { "docid": "22931604", "title": "", "text": "it would have decided the case differently. The reviewing court oversteps the bounds of its duty ... if it undertakes to duplicate the role of the lower court.... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. 470 U.S. at 578-74, 105 S.Ct. 1504 (emphasis added); see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (“An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court ‘might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent.’ ” (quoting United States v. Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950))). In particular, where credibility determinations are at issue, Anderson counsels that “even greater deference” must be afforded to the I J’s factual findings, “for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. at 575, 105 S.Ct. 1504 (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Similarly, the Fourth Circuit very recently noted that “Us hear witnesses and determine the credibility of evidence. The BIA reviews a paper record, devoid of the nuances of weighing evidence first hand. The IJ is thus in a better position to make factual determinations than the BIA acting in an appellate capacity.” Turkson, 667 F.3d at 527. Of course, as the Anderson Court rightly pointed out, “[t]his is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors" }, { "docid": "12592191", "title": "", "text": "cause of the delay. Rule 52(a) of the Federal Rules of Civil Procedure provides that: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge ... the credibility of the witnesses.” The Supreme Court in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985) discussed the clearly erroneous standard: “ ‘[a] finding is clearly erroneous when although there’s 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.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duties under Rule 52 if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).” We thus must limit review of the evidence to determine whether the trial" }, { "docid": "16571452", "title": "", "text": "not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). In regard to findings based on determinations involving the credibility of witnesses, the Anderson court explained, When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See e.g., United States v. United States Gypsum Co., supra, 333 U.S. at 396, 68 S.Ct. at 542. But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told" }, { "docid": "21440613", "title": "", "text": "her sex and that she was constructively discharged were clearly erroneous. The applicable standard of review has been fully set out by the Supreme Court. Because a finding of intentional discrimination is a finding of fact, the standard governing appellate review of a district court’s finding of discrimination is that set forth in Federal Rule of Civil Procedure 52(a): “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” ... This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.... When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.... [Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear" }, { "docid": "7670458", "title": "", "text": "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Fed.R.Civ.P. 52(a). Clear error is a highly deferential standard of review. See, e.g., Manning, 244 F.3d at 940. As the Supreme Court has explained, 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.” Anderson v. City of Bessemer City, 470 U.S. 564, 573,105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier, of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 573-74, 105 S.Ct. 1504. The Plaintiffs first challenge the district court’s finding that the District has taken all practicable steps to eliminate the vestiges of de jure segregation. They say that the district court’s finding that demographics were the substantial cause of" }, { "docid": "3805651", "title": "", "text": "account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts____ When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility. determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Anderson v. City of Bessemer City, 470 U.S. at —, 105 S.Ct. at 1511-13 (citations omitted). With these principles in mind, we now turn to an examination of the district court’s finding that Andre was fired because of her sex. III. Bendix challenges a number of the factual findings upon which the district court predicated its ultimate finding of sex discrimination." }, { "docid": "16768826", "title": "", "text": "reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his [or her] findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. But when a trial judge’s finding is based on his [or her] decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible ' story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Anderson, 470 U.S. at 574-75, 105 S.Ct. 1504 (citations omitted); see, e.g., FDIC v. Lee, 988 F.2d 838, 841-42 (8th Cir.1993). In the present case the district court correctly applied the Fourth Amendment “objective reasonableness” test to Moore’s excessive force claim. Slip op." }, { "docid": "15478616", "title": "", "text": "a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also id. at 577, 105 S.Ct. 1504 (the question is not whether a contrary finding by the court of appeals would be clearly erroneous, but only whether the finding made by the district court was clearly erroneous). These standards apply whether the district court’s findings are based on oral testimony or solely on documentary evidence. See, e.g., id. at 574, 105 S.Ct. 1504; Fed.R.Civ.P. 52(a). Determinations as to the existence and cause of racial discrimination are findings of fact, and hence are subject to the clearly-erroneous standard of review. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1986); Pullman-Standard v. Swint, 466 U.S. 273, 287-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); United States v. Yonkers Board of Education, 837 F.2d 1181, 1218 (2d Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). We apply no different standard for the district court’s findings as to the likely future discriminatory effects of actual or proposed conduct. Even as to past events, a trial judge cannot always be confident that he “knows” what happened. Often, he can only determine whether" }, { "docid": "22608721", "title": "", "text": "to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. ” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 [70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982). Id. 470 U.S. at 573-74, 105 S.Ct. at 1511; see also Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). While the Supreme Court’s discussion of “clearly erroneous” was within the context of one judicial tribunal reviewing another judicial tribunal, the same principles govern our situation. This Court, a judicial tribunal, reviews the BVA, an administrative tribunal, which functions as a factfinder in a manner similar to that of a trial court, although, for the most part, in a non-adversarial setting. It is clear from the legislative history of the Veterans’ Judicial Review Act, 38 U.S.C. §§ 4051-4092 (1988) (hereinafter VJRA), that Congress intended that this Court’s application of the “clearly erroneous” standard parallel that of the Article III courts. Rule 52(a) of the Federal Rules of Civil Procedure provides that “[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless" }, { "docid": "16571451", "title": "", "text": "the phrase ‘clearly erroneous’ is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles ... is that ‘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.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). In regard to findings based on determinations involving the credibility of witnesses, the Anderson court explained, When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of" }, { "docid": "15478615", "title": "", "text": "the court’s findings of fact only if they are clearly erroneous. See Fed.R.Civ.P. 52(a). Although the meaning of the phrase “clearly erroneous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from [Supreme Court] cases. The foremost of these principles ... is that “[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.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also id. at 577, 105 S.Ct. 1504 (the question is not whether a contrary finding" }, { "docid": "9919117", "title": "", "text": "at 256-58, 101 S.Ct. at 1095-96. In Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), the Court made clear that discriminatory motivation, although it is the ultimate issue in Title VII cases, is still a question of fact governed by the clearly erroneous standard of review prescribed in Rule 52(a) of the Federal Rules of Civil Procedure. 456 U.S. at 289-90,102 S.Ct. at 1790-91. And just last year in Anderson v. Bessemer City, — U.S.-, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Court carefully delineated the bounds of the clearly erroneous standard of review as it applies to Title VII cases. The Supreme Court’s direction to the courts of appeals was: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Id. 105 S.Ct. at 1511-12 (citations omitted; emphasis added). The Court further directly focused on appellate court treatment of findings of fact based on credibility determinations. When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly" }, { "docid": "3805650", "title": "", "text": "of the clearly erroneous standard. Although the meaning of the phrase “clearly erroneous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles ... is that “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.” This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts____ When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility. determinations, for factors other than demeanor and inflection go into the decision" }, { "docid": "18886601", "title": "", "text": "applying the clearly erroneous standard to the findings of a court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. Id. If the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 573-74,105 S.Ct. at 1511-12, cited in Zant, 108 S.Ct. at 1777. See also Wardley International Bank, Inc. v. Nasipit Bay Vessel, 841 F.2d 259, 261 n. 1 (9th Cir.1988). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511, cited in Zant, 108 S.Ct. at 1778. This is so even when the trial court’s findings do not rest on credibility determinations, but are based on inferences from other facts. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Id. However when findings are based on determinations regarding the credibility of witnesses, an even greater deference to the trial court’s findings is demanded. Only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. Id. When a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Id. See also Clady v. County of Los Angeles, 770 F.2d 1421, 1431 (9th Cir.) cert. denied 475 U.S. 1109," } ]

[ { "docid": "1306388", "title": "", "text": "that Hill’s appearance before the Grand Jury, and the questions to be asked of her, were the result of any illegal electronic surveillance, and denied Hill’s specific claim of surveillance. As noted above, the AUSA submitted, in addition, an ex parte in camera affidavit detailing the sources of the information providing the basis for the questions to put to Hill. A showing of illegal wiretapping constitutes a defense to contempt charges. Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972). Once a claim of illegal electronic surveillance is made, the Government must “ ‘affirm or deny the occurrence of the alleged unlawful act.’ ” In re Quinn, 525 F.2d 222, 225 (1st Cir.1975) (citation omitted); see In re Pantojas, 628 F.2d 701, 703-04 (1st Cir.1980). Courts have interpreted [18 U.S.C. § 3504] to require the Government to make it reasonably clear that its denial is based on sufficient knowledge to be meaningful____ In general, we shall expect the Government’s denial to be amplified to the point of showing that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place; but we shall not ordinarily require evidentiary hearings nor shall we require unrealistically perfect affidavits____ Quinn, 525 F.2d at 225 (citations omitted). We have recently noted that it is relevant to consider whether the attorney conducting the Grand Jury investigation files an affidavit in response to a § 3504 claim. In re Tse, 748 F.2d 722, 728 (1st Cir.1984). This factor is significant because “the attorney investigating and formulating the questions to the witness will likely have sifted through the evidence and thus will be in a position to recognize whether the evidence on which the questions are based is the product of, say, direct interviews with informants or something else.” Id. After considering the identity of the affiants and the substance of the affidavits, we conclude that the affidavits submitted by the Government were adequate, under Quinn, to discharge its duty to deny the use of unlawfully obtained material. Right" } ]

[ { "docid": "23077489", "title": "", "text": "The government’s denial of illegal electronic surveillance is usually based on inquiries to the relevant government agencies and requests for searches of agency files. The predicate for acceptance of the government’s denial is that the government official making the denial have sufficient information upon which a reasonable response can be based. In general, we shall expect the Government’s denial to be amplified to the point of showing that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place.... In re Quinn, 525 F.2d 222, 225 (1st Cir.1975). Again, courts measure the adequacy of the source or sources of information against the specificity of the claimant’s allegations on a case-by-case basis. The government agencies closest to the investigation must be checked, see In re Millow, 529 F.2d 770, 774 (2d Cir.1976), and the government’s denial should provide some basis for concluding that the agencies checked are those that reasonably might have been involved. See United States v. Alter, 482 F.2d 1016, 1027 (9th Cir.1973). Courts rightly have been reluctant to find the government’s denial inadequate for failure to make inquiries of state or local agencies that conceivably could have engaged in the alleged illegal surveillance. See In re Grand Jury Proceedings, 664 F.2d 423, 428 & n. 11 (5th Cir. Unit B Nov. 1981) (per curiam) (rejecting argument that federal government must extend scope of inquiry to cooperating state agencies; reserving question where federal agency “exercised considerable dominion and control over a state agency’s resources in pursuing a federal investigation”); United States v. Kember, 648 F.2d 1354, 1370 (D.C.Cir.1980) (“nothing in [§ 3504(a)(1)] that requires the Government to inquire into state or local electronic monitoring”); In re Brogna, 589 F.2d 24, 29 (1st Cir.1978) (government’s denial adequate despite failure to check records of assisting state agencies; dicta that “in different circumstances the federal authorities might ... be required to inquire of a cooperating state agency”). Finally, the manner or form in which the government presents its denial may be critical. While courts have sometimes required the government’s denial" }, { "docid": "23634385", "title": "", "text": "gun and drug charges had been joined in the same indictment. The Sufficiency of the Evidence as to the Identity of the Manufactured Substance Appellant argues that the sum total of the government’s evidence of the presence of an illegal substance fails to meet the required burden of proof. We have thoroughly reviewed the complex and copious testimony of the expert witnesses and find that there was more than enough evidence from which the jury could reasonably conclude that the residue of the manufactured substance was phencyclidine. The Demand for a Hearing on the Issue of Electronic Surveillance Appellant filed a pre-trial motion requesting production and disclosure of any and all electronic or other monitoring of his activities. In addition, appellant moved that in the event that the government denied any electronic surveillance in connection with the case, that the Court order a hearing to determine the legal sufficiency of that denial. The government responded with an affidavit sworn to by the Assistant U. S. Attorney which stated: “There was no electronic means used in making these two cases. Should the Court so order, the case agent involved will be made available to so testify.” At the motion to suppress hearing, appellant informed the Court that he had discovered under his car a bumper beeper monitoring device and he felt that the issue should be further explored. Appellant’s counsel, Mr. Horn; the Assistant U. S. Attorney, Mr. Ludwick; and Judge Freeman then had the following colloquy: MR. HORN: Do you state specifically that you have investigated thoroughly and you find no electronic surveillance prior to the arrest, nor that any material that you have obtained was obtained in any part as a result of electronic surveillance, either bumper beeper or wiretap or other? MR. LUDWICK: I have investigated and, to the best of my knowledge and belief, that is an accurate statement. There has been none whatsoever. MR. HORN: There apparently has been some surveillance since this of an electronic nature. MR. LUDWICK: Mr. Horn, we are' talking about this case, and I state that I have been informed by" }, { "docid": "5936926", "title": "", "text": "United States v. Hunt, 513 F.2d 129 (10th Cir. 1975). We hold that it was sufficient for the government to show that there was a valid court order authorizing a wiretap in answer to Millow’s charges of illegally obtained evidence. Judge Pierce was clearly correct in rejecting Millow’s claim that the government’s statement was proof that it had violated the order, as it is clear that the statement showed nothing of the sort. Millow’s original request for a hearing on the existence of any wiretap was based on his attorney’s knowledge that some electronic surveillance had been used in the investigation of other persons involved in the same activities that led to the examination of Millow and on the mere suspicion that some of the wiretaps might have been placed on Mil-low’s telephone lines without an appropriate court order. The government responded to this demand by presenting to Judge Pierce the court orders issued by Westchester County Court Judge Rubin and the affidavits submitted at the time that order was requested. After a review of this material, Judge Pierce found that there had been a sufficient basis for authorizing the wiretap. The government’s submission of a court order authorizing electronic surveillance and Judge Pierce’s determination of the validity of that order precludes Millow from further litigating in a contempt proceeding the legality of that surveillance. In In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974), this court confronted a claimed inconsistency in a statute that forbids the use in grand jury proceedings of evidence derived from illegal wiretapping, 18 U.S.C. § 2515, and yet precludes the use of suppression hearings of the type Millow originally requested to determine the legality of the seizure of evidence to be used in grand jury proceedings, 18 U.S.C. § 2518(10)(a). We resolved the ambiguity by holding that a refusal to testify under 18 U.S.C. § 2515 would be permissible only where the government has admitted its illegal conduct or failed to produce a court order authorizing the challenged surveillance, as in either case" }, { "docid": "6137175", "title": "", "text": "of counsel may have been compromised by wiretapping intruding on the attorney-client relationship. We turn first to the fourth amendment claims. Challenges to the introduction of evidence allegedly tainted by illegal wiretapping are governed by 18 U.S.C. § 3504(a)(1), which requires the Government when challenged to “affirm or deny the occurrence of the alleged unlawful act.” In this case the Government filed a number of denials of any wiretapping of defendants, the last and most comprehensive of which was filed shortly after defendants were found guilty. This last affidavit stated that the Justice Department had canvassed all law enforcement agencies of the federal government having any likelihood of having overheard defendants and that no wiretapping had occurred. There was thus “an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed.” In re Quinn, 525 F.2d 222, 226 (1st Cir. 1975). Nor do we see how the lateness of the filing of the last affidavit prejudiced appellants. They do not suggest that they have any information to undermine the affiant’s assertions which they were somehow prevented from developing because of the Government’s tardiness. Nor is it suggested that such information exists for use in a hearing on remand. Not only were the denials sufficient, but we fail to see any likelihood that any of the evidence used to convict appellants could have been the fruit of wiretapping. The conduct giving rise to the contempt charges — the continued strike in disobedience of the injunction — was out in the open for all to see. Documentary proof consisted of a telegram which the Union sent to the NLRB and the payroll records of the construction company. Testimonial evidence consisted of the eyewitness observations of construction company employees at the time of the strike. It strains credulity to suggest that the Government came upon any of this evidence as a result of electronic surveillance. Appellants’ sixth amendment claim relies not on the possibility that evidence used to convict the defendants may have been tainted but on the possibility that governmental intrusions on the attorney-client relationship may have poisoned" }, { "docid": "14321220", "title": "", "text": "such a claim, the government bears the burden under 18 U.S.C. § 3504 to “affirm or deny the occurrence of the alleged unlawful act.” 525 F.2d at 225; In re Lochiatto, 497 F.2d 803, 806, 808 (1st Cir.1974). We have held that the government cannot meet this burden of denying the alleged illegality until it demonstrates that: those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place; ... for the § 3504 response to be adequate in this case, there must be included an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed. Quinn, 525 F.2d at 225-26; see also In re Tse, 748 F.2d 722, 727 (1st Cir.1984) (affidavit of attorney for President’s Commission on Organized Crime adequate under Quinn where it stated the attorney and others with whom he had checked were in a position definitively to know what information had been supplied to the Commission and the sources of the information); In re Pantojas, 628 F.2d 701, 704 (1st Cir.1980) (investigating attorney’s affidavit stating he had searched FBI files, discussed case with relevant officials and knew of no electronic interception by the FBI or other law enforcement sufficient to satisfy Quinn standard). As we observed in Quinn, “[a] denial of knowledge ... is obviously worth nothing if the affiant was in a position to know nothing.” 525 F.2d at 225 n. 5. The government, as represented by its prosecu tors in court, is under a duty of inquiry regarding information concerning the criminal past of its cooperating witnesses similar to the duty imposed in Quinn when, as here, a specific discovery request is made and granted. Trial counsel for “the government” will not have discharged that duty unless all those in the government in a position to know of such information have been canvassed. We close this portion of our discussion by observing that it would be no adequate response for trial counsel to suggest negligence on the part of the case agent or the relevant investigative agency. Trial" }, { "docid": "14321219", "title": "", "text": "those in a position to have relevant knowledge. The criminal responsibility of a corporation can be founded on the collective knowledge of its individual employees and agents. United States v. Bank of New England, N.A., 821 F.2d 844, 855 (1st Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987). There is no reason why similar principles of institutional responsibility should not be used to analyze the actions of individual government attorneys called upon to represent the government as an institution in matters of court-ordered disclosure obligations. We have recognized institutional responsibility for inquiry on the part of the government in other aspects of the criminal process. In the context of grand jury proceedings, a witness who has been called to testify under a grant of immunity may refuse to answer questions if that witness asserts the inquiry is based on illegal electronic surveillance. In re Quinn, 525 F.2d 222, 225 (1st Cir.1975) (citing Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972)). Once a witness makes such a claim, the government bears the burden under 18 U.S.C. § 3504 to “affirm or deny the occurrence of the alleged unlawful act.” 525 F.2d at 225; In re Lochiatto, 497 F.2d 803, 806, 808 (1st Cir.1974). We have held that the government cannot meet this burden of denying the alleged illegality until it demonstrates that: those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place; ... for the § 3504 response to be adequate in this case, there must be included an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed. Quinn, 525 F.2d at 225-26; see also In re Tse, 748 F.2d 722, 727 (1st Cir.1984) (affidavit of attorney for President’s Commission on Organized Crime adequate under Quinn where it stated the attorney and others with whom he had checked were in a position definitively to know what information had been supplied to the Commission and the sources of the information); In re Pantojas," }, { "docid": "15099994", "title": "", "text": "role in his decision to interview appellant, in the formulation of questions to be posed, or in any other aspect of the current investigation. II. Such a denial of the use of surveillance is plainly sufficient. We have stated that a § 3504 response ordinarily must include “an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed.” In re Quinn, 525 F.2d 222, 226 (1st Cir.1975); accord, e.g., In re Pantojas, 628 F.2d 701, 704 (1st Cir.1980); In re Santiago, 533 F.2d 727, 729 (1st Cir.1976). Here, each agency involved in the investigation has been heard from directly. We have also indicated that, in general, “those responding [must have been] in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place [or were used].” In re Quinn, 525 F.2d at 225; accord, e.g., In re Hodges, 524 F.2d 568, 569-70 (1st Cir.1975). Here, those responding plainly have firsthand knowledge as they are the principals leading the investigation; in addition, they examined the files of their respective agencies and made further inquiries before preparing their affidavits. And we have said it is “important” that the attorney conducting the grand jury investigation has submitted an affidavit, as he or she is likely to know the source of “the evidence on which the questions are based.” In re Tse, 748 F.2d 722, 728 (1st Cir.1984); accord, e.g., In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). Here, both government attorneys have done so. In the face of this all-encompassing denial, the fact that Sergeant McGreal participated in the 1985 surveillance, and subsequently sought out appellant for an interview which prompted his appearance before the grand jury, causes only momentary pause. To be sure, an affidavit from Sergeant McGreal detailing the investigative basis for the interview (submitted ex parte and in camera if necessary, see id. at 5; In re Tse, 748 F.2d at 727) could have eliminated any suspicion of a link to the earlier surveillance. Yet given the unrelated nature of the two investigations," }, { "docid": "1306389", "title": "", "text": "that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place; but we shall not ordinarily require evidentiary hearings nor shall we require unrealistically perfect affidavits____ Quinn, 525 F.2d at 225 (citations omitted). We have recently noted that it is relevant to consider whether the attorney conducting the Grand Jury investigation files an affidavit in response to a § 3504 claim. In re Tse, 748 F.2d 722, 728 (1st Cir.1984). This factor is significant because “the attorney investigating and formulating the questions to the witness will likely have sifted through the evidence and thus will be in a position to recognize whether the evidence on which the questions are based is the product of, say, direct interviews with informants or something else.” Id. After considering the identity of the affiants and the substance of the affidavits, we conclude that the affidavits submitted by the Government were adequate, under Quinn, to discharge its duty to deny the use of unlawfully obtained material. Right to Confrontation Hill argues finally that her right to confrontation was violated when the court considered an ex parte affidavit in camera in deciding her motion to quash, her § 3504 motion, and her motion for an evidentiary hearing. The basis of her argument appears to be that since she is incarcerated, and since throughout the proceedings this possibility was not entirely remote, she should have been accorded the right to confront all the evidence against her. While one found in civil contempt may be incarcerated, it is not established that a potential contemnor is entitled to the full panoply of rights afforded an accused in a criminal proceeding. It is generally agreed that “[a] person charged with civil or criminal contempt is entitled to have counsel present, to be given adequate notice, and to have an opportunity to be heard.” United States v. Anderson, 553 F.2d 1154, 1155 (8th Cir.1977); see In re Grand Jury Investigation, 600 F.2d 420, 423 n. 7 (3d Cir.1979); In re Bianchi, 542 F.2d 98, 101 (1st Cir.1976); United" }, { "docid": "15099993", "title": "", "text": "witness was based solely on an interview which Sergeant McGreal held with him on February 6, 1990, and that no electronic surveillance was used as a basis for the decision to conduct such interview. The questions to be posed to appellant, according to AUSA Schwartz’s statements at the hearing, pertain solely to the content of that interview; according to all four affidavits, they were derived exclusively from the investigatory efforts of ATF and the State Police. Finally, all but Sergeant McGreal disclaim any familiarity with the 1985 surveillance; Agent Horan states he first learned of it on the date of the contempt hearing, AUSA Schwartz states she has not reviewed any material therefrom, and AUSA Herbert states that he only “ha[s] been informed” that it occurred. Sergeant McGreal, by contrast, aeknowl-edges having participated in the surveillance. He emphasizes, however, that the 1985 narcotics investigation and the instant firearms investigation are entirely unrelated, and that the former was completed several years before the alleged offenses here occurred. And he reiterates that the 1985 surveillance played no role in his decision to interview appellant, in the formulation of questions to be posed, or in any other aspect of the current investigation. II. Such a denial of the use of surveillance is plainly sufficient. We have stated that a § 3504 response ordinarily must include “an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed.” In re Quinn, 525 F.2d 222, 226 (1st Cir.1975); accord, e.g., In re Pantojas, 628 F.2d 701, 704 (1st Cir.1980); In re Santiago, 533 F.2d 727, 729 (1st Cir.1976). Here, each agency involved in the investigation has been heard from directly. We have also indicated that, in general, “those responding [must have been] in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place [or were used].” In re Quinn, 525 F.2d at 225; accord, e.g., In re Hodges, 524 F.2d 568, 569-70 (1st Cir.1975). Here, those responding plainly have firsthand knowledge as they are the principals leading the investigation; in addition, they examined" }, { "docid": "4521852", "title": "", "text": "the government to employ electronic surveillance in order to uncover the complete range, of operations of the target organization. Cf. United States v. Scibelli, 549 F.2d 222, 227 (1st Cir.1977) (“A large-scale gambling conspiracy may by its structure and modus operandi give rise to a reasonable inference that other investigative procedures ... reasonably appear to be unlikely to succeed if tried.” (internal citations omitted)). In the alternative, Naranjo-Rosa claims that the district court erred in denying him an evidentiary hearing on the government’s application for a wiretap. He claims that he presented the district court with sufficient evidence of duplicity in the government’s affidavit to secure the wiretap so as to warrant an evidentiary hearing on the issue. In order to obtain the requested evidentiary hearing, a defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... is necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 154-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Material omissions in a government’s application are also sufficient to constitute the basis for a Franks evidentiary hearing. See United States v. Parcels of Land, 903 F.2d 36, 46 (1st Cir.1990). “A district court’s determination, however, that the requisite showing has not been made will be overturned only if clearly erroneous.” Id. To support his argument that he was entitled to an evidentiary hearing, Naranjo-Rosa claims that the government made a material omission in its affidavit supporting the wiretap. He claims that the government failed to disclose that they knew of a witness, Angel Ruiz-Adorno, who had a cooperation agreement with the government and had information on some of the investigation’s targets. Because we find that Ruiz-Adorno had no relevant information regarding the charged conspiracy, we conclude that the government’s omission was not sufficiently material to warrant a Franks hearing. Ruiz-Adorno had some knowledge of one co-conspirator’s activities that occurred between 1992 and 1993. This knowledge, however, was immaterial to the government’s investigation for several reasons: (1) any information" }, { "docid": "12158576", "title": "", "text": "of the Iremite, testified that all the questions to be propounded to the witness were based on information generated by the F.B.I. alone. Although Agent Smolinski was relying on his review of the investigation file and on conversations with the former case agent who actually conducted the investigation, and the supervisor of the local F.B.I. office, the district court clearly credited his testimony. While there is some doubt in our minds that this representation is completely accurate, the agent’s testimony was uncontradicted as to this point and not inherently incredible. Therefore, we hold that the testimony was legally sufficient, albeit barely so, to identify the local F.B.I. office as the only agency to be canvassed in a search for illegal electronic surveillance. The question then becomes whether the U. S. Attorney and the case agent were in a position, through inquiry, “reasonably to ascertain whether or not relevant illegal activities took place”. 525 F.2d at 225. The U. S. Attorney, Morales Sanchez, testified that he had asked three F.B.I. agents, Mr. Dwyer, the F.B.I. Supervisor, Mr. Ganon, the case agent for most of the investigation, and Mr. Smolinski, the current ease agent, whether they had conducted any electronic surveillance in relation to the investigation of the theft of the Iremite or in relation to Maury. He testified that their answers were in the negative. Mr. Smolinski, as noted above, also testified. He stated that he made inquiries of Messrs. Dwyer and Ganon, and received the answer that no electronic surveillance had been performed. He testified further that a thorough review of the case file revealed no notation of electronic surveillance. We affirm the district court’s judgment that the government’s denial was sufficient to satisfy the requirements of In re Quinn, supra. We note, however, that the choice of the U. S. Attorney to present the denial in the form of live testimony probably made our task in evaluating the evidence more difficult than if the relevant information had been contained in affidavits. The required showings were made piecemeal during the testimony, and some through responses on cross-examination. Further, the testimony" }, { "docid": "12158575", "title": "", "text": "the court reporter read Maury’s statement in support of his refusal to testify into the record. We see no merit in appellant’s challenge to the grant of immunity. Maury also claimed a statutory privilege not to testify based on allegations of electronic surveillance pursuant to Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). This court has recently reviewed the obligation of the government in response to a claim of privilege under 18 U.S.C. § 3504 by a grand jury witness. In re Quinn, 525 F.2d 222 (1st Cir. 1975); see also In re Hodges, 524 F.2d 568 (1st Cir. 1975). This case involves the application of the principles of Quinn to a different factual situation. Under Quinn, the first step in evaluating a denial of electronic surveillance is the identification of the governmental agencies which contributed information to the investigation, and which participated in the preparation for the grand jury proceedings. In the present case, F.B.I. Agent Smolinski, who is currently in charge of the investigation into the theft of the Iremite, testified that all the questions to be propounded to the witness were based on information generated by the F.B.I. alone. Although Agent Smolinski was relying on his review of the investigation file and on conversations with the former case agent who actually conducted the investigation, and the supervisor of the local F.B.I. office, the district court clearly credited his testimony. While there is some doubt in our minds that this representation is completely accurate, the agent’s testimony was uncontradicted as to this point and not inherently incredible. Therefore, we hold that the testimony was legally sufficient, albeit barely so, to identify the local F.B.I. office as the only agency to be canvassed in a search for illegal electronic surveillance. The question then becomes whether the U. S. Attorney and the case agent were in a position, through inquiry, “reasonably to ascertain whether or not relevant illegal activities took place”. 525 F.2d at 225. The U. S. Attorney, Morales Sanchez, testified that he had asked three F.B.I. agents, Mr. Dwyer, the F.B.I. Supervisor," }, { "docid": "5936932", "title": "", "text": "will the court conduct a hearing to determine the source of the evidence on which the grand jury interrogation is based, Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Although the allegations of unlawful wiretapping required to trigger the government’s obligation to respond by affidavit or sworn testimony need only set forth a colorable claim, the claims made in this case do not satisfy even that threshold criteria. Millow has indicated no factual circumstances from which it could be inferred that he was the subject of an illegal wiretap. He made no allegation such as those in United States v. Grusse, 515 F.2d 157 (2d Cir. 1975), where we held that a claim of unlawful wiretapping based, as the district court said, “on conclusory statements that the questions asked must have come from such surveillance, as well as more particularized claims to telephone malfunctioning and unusual sounds heard on telephones” were sufficiently answered by an affidavit of the Assistant United States Attorney and his testimony that he had checked with the FBI agent in charge of the investigation that no electronic surveillance had occurred. Compare In re Vigil, 524 F.2d 209, 214 (10th Cir. 1975), holding that under similar facts not even this was required. At the October 31 contempt hearing, Millow did submit an affidavit to bolster his assertion of illegal wiretapping. That affidavit, however, merely recounted the patently frivolous contention we have dealt with above, namely, that the government had conceded misconduct in its October 29 statement concerning electronic and physical surveillance of Mil-low. Unsupported suspicion and patently frivolous assertions of government misconduct do not constitute a “claim” under § 3504 sufficient to trigger the government’s obligation to disrupt grand jury proceedings and check thoroughly the applicable agency records. We know of no authority to the contrary. While in United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974), we cited with approval language from In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239, 1242 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972) to the effect" }, { "docid": "8148512", "title": "", "text": "the receipt of any information gained through electronic surveillance. The Department of Justice attorney conducting the grand jury investigation submitted an affidavit to the court wherein he stated that, after search of the F.B.I. files and after discussion with relevant officials, he knew of no interception of wire or oral communications by the F.B.I. in this case. He further affirmed that neither he nor the F.B.I. had been furnished the results of any such surveillance by other federal or local law enforcement officials. Such an affidavit satisfies the government’s duty to “affirm or deny” the occurrence of electronic surveillance. 18 U.S.C. § 3504. In re Maury Santiago, 533 F.2d 727 (1st Cir. 1976); In re Quinn, 525 F.2d 222 (1st Cir. 1975). Appellant disputes this conclusion; he argues that the affidavit was inadequate because the affiant could not knowingly deny that other federal or local law enforcement officials had subjected him to electronic surveillance. We think appellant’s suggestion would place too great a burden on the prosecutor, leading to unnecessary delays in the grand jury process. The evil which section 3504 attempts to prevent is the use by prosecutors of information obtained through unlawful surveillance to solicit further evidence from a witness. The inability of the affiant to deny with certainty that any government instrumentality had subjected the witness to such surveillance seems to us irrelevant when the affiant can knowingly deny that the results of any such surveillance were passed to the investigators conducting the investigation with the grand jury. The affidavit in this case was sufficient to assure the court that the request to the witness to appear in a lineup was not tainted by a prior receipt of unlawful information. In re Quinn, supra, generally supports this reading of the statute. There we found an affidavit to be inadequate when the affiant was not in a position to know “the means used by other federal agencies to gather the information, if any, that was furnished to their respective staffs for use in the Quinn investigation.” 525 F.2d at 225. Here, the investigators denied that any information supplied" }, { "docid": "6137174", "title": "", "text": "court was not satisfied that the case against him was adequate to establish guilt beyond a reasonable doubt; acquittal is not tantamount to an affirmative finding by the judge that the defendant was uninvolved in the strike. Certainly Grant’s acquittal does not support any inference that he or any other Union, officials had taken steps to effect compliance with the injunction as directed. On the entire record, which points strongly in the direction of full Union involvement in the strike and contains not the slightest hint of disagreement between the Union and its striking adherents, we believe that the district court could properly adjudge the Union in criminal contempt. II. Wiretapping. Appellants argue that the Government’s responses to their demands for disclosure of electronic surveillance were inadequate and that the case must be remanded for a full hearing on this issue. Appellants’ claim falls into two categories: that their fourth amendment rights may have been violated by the introduction of evidence tainted by illegal wiretapping and that their sixth amendment right to the effective assistance of counsel may have been compromised by wiretapping intruding on the attorney-client relationship. We turn first to the fourth amendment claims. Challenges to the introduction of evidence allegedly tainted by illegal wiretapping are governed by 18 U.S.C. § 3504(a)(1), which requires the Government when challenged to “affirm or deny the occurrence of the alleged unlawful act.” In this case the Government filed a number of denials of any wiretapping of defendants, the last and most comprehensive of which was filed shortly after defendants were found guilty. This last affidavit stated that the Justice Department had canvassed all law enforcement agencies of the federal government having any likelihood of having overheard defendants and that no wiretapping had occurred. There was thus “an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed.” In re Quinn, 525 F.2d 222, 226 (1st Cir. 1975). Nor do we see how the lateness of the filing of the last affidavit prejudiced appellants. They do not suggest that they have any information to undermine the affiant’s assertions" }, { "docid": "23077498", "title": "", "text": "electronic surveillance motions. There was no question that a state wiretap was involved, and in these circumstances a check of only federal agencies was not an adequate response to Sherrie’s claim. See In re Millow, 529 F.2d at 774; United States v. Alter, 482 F.2d at 1027. At the motions hearing, the government presented no evidence of any official inquiry of Virginia state authorities. Rather, the government presented the testimony of Agent Patterson and Officer Hammond. Though each testified that he was personally unaware of any intercepted conversations involving the Apples, their testimony showed that neither was involved in the investigation of the Apples until some time after the wiretap was removed. And, critically, no evidence was presented that either had reviewed the logs of the surveillance or listened to any of the tapes, the kind of first-hand inspection required in response to Sherrie’s particularized claim. See United States v. Gardner, 611 F.2d 770, 774 (9th Cir.1980). Agent Patterson’s hearsay testimony, deemed significant by the district court, is similarly deficient — his testimony provides no assurance that any of his sources were in a position reasonably to ascertain, by having checked the tapes or the logs, whether or not Sherrie’s conversations had been intercepted. See In re Grand Jury 11-84, 799 F.2d at 1325; In re Quinn, 525 F.2d at 225. In order to affirm the district court’s ruling that the government’s response was adequate we would be required to hold that a federal prosecutor is never required to check with state agencies when a claimant makes a prima facie showing under § 3504(a)(1) that she was subjected to illegal surveillance by state authorities, even where it is undisputed that the federal investigation was aided by the state authorities. No court, as far as we have been able to determine, has squarely faced this question. In some cases, where the government has admitted that the claimant’s communications had been intercepted by state or local authorities, the surveillance records have been disclosed. See, e.g., United States v. Villano, 529 F.2d at 1056-58. In cases where courts have found the government’s denial" }, { "docid": "3068911", "title": "", "text": "denial, the procedure afforded to the witness in this matter was procedurally deficient under section 3504. The case will be remanded to the district court so that the Government may, if it chooses, file an affidavit, sufficient under In re Horn and D’Andrea, affirming or denying the existence of illegal electronic surveillance. The witness then will have fifteen days to respond to the Government’s statement. If the Government’s affidavit is sufficient on its face, and if the witness produces no evidence that the representations made by the Government in the affidavit are false, the district court may then enter a new order denying the witness’s petition for disclosure under section 3504, and once again hold the witness in contempt. . Because of the ongoing nature of the grand jury investigation, we will refer to the appellant in this case not by name but by the terms “witness” or “appellant.” . As the Court stressed in In re Horn, 458 F.2d 468, 471 (3d Cir. 1972), “it would be desirable for the Government’s affidavit to contain a more complete statement setting forth whether there had been any wiretapping or electronic surveillance including that which the Government considers to be legal” and further indicating “with some specificity which ‘appropriate agencies’ were in fact contacted.” . In D'Andrea, the Acting Assistant Attorney General indicated in a letter “that a check had been made of the appropriate agencies and that appellant had not been subjected to electronic surveillance by the government,” 495 F.2d at 1173 (footnotes omitted). The Court concluded that, though an affidavit would have been “preferable,\" a letter was acceptable in a case such as D’Andrea, where the appellant had “come forward with no more than a bald accusation of illegality.” Id. at 1174 n.12. . After this appeal had been filed, the Assistant United States Attorney did disclose to the witness that there was “one consensual recording of a face-to-face conversation between [the witness] and another individual, made without [the witness’s] knowledge, in the possession of the Government.” Appendix at 80A. . After this case had been argued, the Assistant United" }, { "docid": "11651003", "title": "", "text": "illegal electronic surveillance was conducted which would form the basis for any questions posed to this witness before the Grand Jury.” Stevens advances three reasons for reversal of the contempt order: (1) the government’s unsworn denials that it had not used illicit electronic surveillance to gather information concerning Stevens did not satisfy the requirements of 18 U.S.C. § 3504; (2) the initial grand jury lacked authority to issue a subpoena compelling his appearance before a grand jury not yet empanelled; and (3) the government was obliged to permit him to inspect the authorization and supporting affidavits for the wiretaps used to gather evidence against him. The most perplexing issue before us concerns the adequacy of the government’s denial of the use of unlawful electronic surveillance. § 3504, stating merely that the party opposing the claim of illegal surveillance must “affirm or deny” the commission of any unlawful act, does not specify the proper mode of such affirmance or denial. Stevens suggests that a denial must be made by sworn affidavit with the affiant specifying in detail that he personally determined from inquiries with all relevant governmental agencies that no agency involved with the investigation conducted any unlawful surveillance. The government counters in essence that when the witness’s claim of illegal surveillance is general and unsubstantiated, § 3504(a)(1) is satisfied by a general denial made in good faith. Stevens purports to find support for his position in two decisions of this court considering the adequacy of the government’s § 3504 denial. See In re Tierney, 465 F.2d 806 (5th Cir. 1971); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). Both cases uphold the sufficiency of the government’s denial, but Stevens argues that in so doing, they establish rather strict standards for reviewing a § 3504 response. In Tierney, we approved a denial given under oath with the government counsel making the denial subject to cross examination. The affidavit stated that the Department of Justice had checked with all government agencies which could have been connected with the investigation, including the Department of the Treasury and its subsidiaries, the Bureau" }, { "docid": "14003409", "title": "", "text": "summarily dismissed witness es’ claim that the questions were the fruit of an unlawful wiretap without requiring government affirmance or denial of such activity. Evans is factually distinguishable from the present case. Here, the district court did not summarily dismiss the appellants’ claim of illegal wiretapping but held an evidentiary hearing into the allegations and required affidavits from government officials involved in the investigation. In short, the district court provided appellants with procedural protections envisioned by 18 U.S.C. § 3504(a)(1). In addition, the “mere assertion” of illegal wiretap statement by the Evans court has been recently rejected by the same circuit in which it originated. In re Millow, 529 F.2d 770 (2d Cir. 1976). The court in Millow stated “The majority opinion in In re Evans insofar as it allows a witness to rely on ‘mere assertion’ seems to us unsound.” Millow, 529 F.2d at 775. Appellants rely on U. S. v. Alter, 482 F.2d 1016 (9th Cir. 1973), for the proposition that “an affidavit by a witness claiming illegal wiretapping was a sufficient prima facie showing and functioned to shift the burden to the government to ‘squarely affirm or deny these charges’.” (Appellants’ Brief 15.) Appellants are mistaken in their interpretation of Alter. Alter does not stand for the proposition that any affidavit by a witness claiming electronic surveillance of counsel will operate to shift the burden to the government. The court in Alter identified five specific categories of information the affidavit must reveal in order to raise a prima facie issue of electronic surveillance. The witnesses’ affidavit must include (1) specific facts that reasonably lead the affiant to believe that named counsel for the named witness was wiretapped; (2) date of such suspected surveillance; (3) outside dates of representation of the witness by the lawyer during the period of surveillance; (4) identity of persons, by name or description, with phone numbers, with whom the attorney was communicating at the time of the suspected surveillance; and, (5) facts showing some connection between possible electronic surveillance and the grand jury witness who asserts the claim or the grand jury proceeding" }, { "docid": "23077488", "title": "", "text": "§ 3504(a)(1). Litigation has focused on the adequacy of the government’s denial. In construing the plain language of the statute that the government must “deny” the claimant’s allegations, courts have focused on three factors: the specificity and amount of information that forms the basis of the government’s denial, the source or sources for that information, and the manner in which the information is presented to the court. See In Grand Jury 11-84, 799 F.2d 1321, 1324 (9th Cir.1986). First, the required specificity of the prosecution’s denial is a function of the specificity of the claimant’s allegations. See United States v. Wylie, 625 F.2d 1371, 1376 (9th Cir.1980). The government’s general denial of a claimant’s general allegations of illegal electronic surveillance is sufficient, see, e.g., In re Grand Jury 11-84, 799 F.2d at 1324; where the claimant makes a stronger showing, the government’s denial must be factual, unambiguous, and unequivocal. See Cruz v. Alexander, 669 F.2d 872, 876 (2d Cir.1982), clarified, 708 F.2d 31 (2d Cir.1983); United States v. See, 505 F.2d 845, 856 (9th Cir.1974). The government’s denial of illegal electronic surveillance is usually based on inquiries to the relevant government agencies and requests for searches of agency files. The predicate for acceptance of the government’s denial is that the government official making the denial have sufficient information upon which a reasonable response can be based. In general, we shall expect the Government’s denial to be amplified to the point of showing that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place.... In re Quinn, 525 F.2d 222, 225 (1st Cir.1975). Again, courts measure the adequacy of the source or sources of information against the specificity of the claimant’s allegations on a case-by-case basis. The government agencies closest to the investigation must be checked, see In re Millow, 529 F.2d 770, 774 (2d Cir.1976), and the government’s denial should provide some basis for concluding that the agencies checked are those that reasonably might have been involved. See United States v. Alter, 482 F.2d 1016, 1027 (9th" } ]

[ { "docid": "18924314", "title": "", "text": "Court heard oral argument on this case on April 5, 1994, just over two weeks before Charland was issued. Although Woods was released on July 29, 1994, it does not cite to Charland, or to Dalis, which had just been decided on July 11, 1994. Thus, Woods apparently did not consider the SJC's post-argument pronouncements on this issue. .It should be noted that after rehearing, the Supreme Court, in Patterson v. McLean Credit Union, held that, unlike Title VII, racially discriminatory conditions of employment are \"not actionable under § 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.\" 491 U.S. 164, 179, 109 S.Ct. 2363, 2374, 105 L.Ed.2d 132 (1989). The Court noted, however, that \"there is some necessary overlap between Title VII and § 1981, and ... where the statutes do in fact overlap we are not at -liberty ‘to infer any positive preference for one over the other.' \" Id. at 181, 109 S.Ct. at 2375 (citing Johnson v. Railway Express, 421 U.S. at 461, 95 S.Ct. at 1720). . Section 102 was enacted in 1989 and Section 103 was enacted one year later, in 1990. . Given the evolution and highly specialized analyses in the voting context, the Voting Rights Act’s “totality of the circumstances test” is of only marginal use in the case at bar. See, e.g., Miller v. Johnson, — U.S.-, - , 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995) (\"The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.”)" } ]

[ { "docid": "7322517", "title": "", "text": "facts incorrectly. Furthermore, the record must be viewed in a light most favorable to the party opposing the motion. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988). As the district court pointed out, the Supreme Court sharply limited the application of § 1981 to employment discrimination claims in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Interpreting the scope of § 1981 in the employment context, the Court found that: [T]he relevant provision in § 1981 protects two rights: ‘the same right ... to make ... contracts’ and ‘the same right ... to ... enforce contracts.’ ... But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Id. at 176-77, 109 S.Ct. at 2372-73. The right to enforce contracts was limited to prohibiting an employer from impairing an employee’s access to legal process to enforce an established contract right. Id. at 177-78, 109 S.Ct. at 2373. The present case implicates only the right to make, not the right to enforce contracts. Section 1981 is clearly inapplicable to White’s claim of discriminatory discharge. We recently joined a majority of the courts of appeals in holding that, based on Patterson, discriminatory discharge claims are not actionable under § 1981. Williams v. First Union Nat’l Bank of N.C., 920 F.2d 232 (4th Cir.1990). Therefore, the only other claim which could possibly involve the right to make a contract concerns White’s alleged denial of transfer from courier to dispatcher. In Patterson, the Court determined that a § 1981 action for discriminatory denial of a promotion exists only where “the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.” 491 U.S. at 185, 109 S.Ct. at 2373. The district court thoroughly and, we find, correctly analyzed this issue. 729 F.Supp. at 1545-46. Therefore, we hold that the position" }, { "docid": "11034330", "title": "", "text": "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, ... In Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (1989), the Supreme Court held that because “[s]ection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations[,]” it only applies to the initial formation of a contract. Therefore, “the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id. at 177, 109 S.Ct. at 2373. The Court of Appeals for the Third Circuit has held that the reasoning of Patterson precludes a section 1981 claim for racially motivated discharge because job termination is conduct occurring after formation of the employment contract. Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 940, 117 L.Ed.2d 110 (1992). The Court stated that such conduct is more naturally governed by state contract law and Title VII. Patterson, 491 U.S. at 177, 109 S.Ct. at 2372. Partly in response to the Supreme Court’s holding in Patterson, Congress passed and President Bush signed the Civil Rights Act of 1991 (the “1991 Act”). Pub.L. No. 102-166, 105 Stat. 1071 (1991). The 1991 Act overrules Patterson by amending section 1981 to state as follows: For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C.A. § 1981(b) (West Supp.1992). A stated purpose of the 1991 Act is “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes.” Pub.L. No, 102-166, § 3(4), 105 Stat. 1071 (1991). Although Blanding’s claim arose prior to the effective date of the 1991 Act, he argues that the" }, { "docid": "11034329", "title": "", "text": "106 S.Ct. at 2513. If the evidence of the nonmoving party is “merely colorable,” or is “not significantly probative,” summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2510-11. For example, a nonmoving party may not successfully oppose a summary judgment motion by simply replacing “conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990). Rather, the nonmoving party must offer specific facts contradicting the facts averred by the movant which indicate that there is a genuine issue for trial. Id. 497 U.S. at 886-88, 110 S.Ct. at 3188. B. Blanding’s § 1981 Claim In Count II of his complaint, Blanding alleges that Marakovits discriminated against him in violation of 42 U.S.C. § 1981 (“section 1981”). Section 1981 provides in relevant part: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, ... In Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (1989), the Supreme Court held that because “[s]ection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations[,]” it only applies to the initial formation of a contract. Therefore, “the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id. at 177, 109 S.Ct. at 2373. The Court of Appeals for the Third Circuit has held that the reasoning of Patterson precludes a section 1981 claim for racially motivated discharge because job termination is conduct occurring after formation of the employment contract. Hayes v. Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir.1991)," }, { "docid": "11393869", "title": "", "text": "under section 1981 following the Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Section 1981 protects, inter alia, the right of “all persons within the jurisdiction of the United States” to “make and enforce contracts.” 42 U.S.C. § 1981. In Patterson, the Supreme Court explained the meaning of the phrase “to make ... contracts.” The Court stated: The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract conditions and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII. Id. at 176-177, 109 S.Ct. at 2372-73. The Supreme Court’s discussion of section 1981 in Patterson, while extensive, did not directly address the issue of employment discharge because Patterson concerned asserted racial harassment, and a failure to promote the plaintiff which was allegedly racially motivated. Supreme Court decisions after Patterson do not clarify whether section 1981 applies to actions for racially motivated terminations of employment. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 110 S.Ct. 1331, 1336 n. 6, 108 L.Ed.2d 504 (1990) (remanding case to Fourth Circuit to consider impact of Patterson on Lytle’s section 1981 claims with benefit of full record because certiorari was not granted on that question); id., 110 S.Ct. at 1338-9 (O’Connor, J., concurring) (acknowledging that “the question whether petitioner has stated a valid claim under section 1981 remains open.”); Jett v. Dallas Independent School District, 491 U.S. 701, 710-711, 109" }, { "docid": "12284760", "title": "", "text": "harassment, and (x) not following the company’s grievance procedures for black employees. Analysis A. The Section 1981 Claims All four plaintiffs assert racial harassment and disparate treatment claims under § 1981. These claims fail given the Supreme Court’s recent ruling in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), sharply limiting the scope of § 1981. By its terms, that section applies to the “right ... to make and enforce contracts.... ” Patterson, in the context of an employment discrimination suit, reaffirmed § 1981’s applicability to private contracts. 109 S.Ct. at 2372. But Justice Kennedy, speaking for the majority, significantly restricted the scope of this statute to its plain language. He wrote: The most obvious feature of [§ 1981] is the restriction of its scope to forbidding discrimination in the “mak[ing] and enforce[ment]” of contract’s alone. Where an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts. Id. Justice Kennedy went on to define narrowly the rights to “make” or to “enforce” a private employment contract. In this regard, the right to “make” a contract was held to extend[ ] only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established; including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contractual obligations and the conditions of continuing employment, matters" }, { "docid": "14365298", "title": "", "text": "promoted Chris Kulaga, a white male, to the position of supervisor in the Styrofoam Department; and in 1988, in the course of a multiple personnel shift, Dow promoted Mike Bonanno, a white male, to a supervisory position in the Latex Department. Oberlatz had final appointment authority over both promotions. II. VIABILITY OF COLEMAN’S § 1981 CLAIMS In part, Dow and Raymond claim entitlement to summary judgment because of the interpretation of 42 U.S.C. § 1981 by the Supreme Court in Patterson v. McLean, — U.S.-, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), as it applies to Coleman’s claims under that statute. A. The Scope of 42 U.S.C. § 1981: Patterson v. McLean Title 42 U.S.C. § 1981 “prohibits racial discrimination in the making and enforcement of private contracts.” Patterson, 109 S.Ct. at 2370. However, “[sjection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.” Patterson, 109 S.Ct. at 2372. [T]he right to make contracts does not extend ... to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or the imposition of discriminatory working conditions. Patterson, 109 S.Ct. at 2373. The Supreme Court specifically held that racial harassment by an employer is not in and of itself prohibited by § 1981, since it relates to discrimination in the “work environment,” and the terms and conditions of continuing employment, not to discrimination in the making or enforcement of the employment contract itself. Patterson, 109 S.Ct. at 2374. However, § 1981 does prohibit racial discrimination in certain types of promotions: [T]he question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer’s refusal to enter the new contract [violates] § 1981.... Only where a promotion rises to the level of an opportunity for a new and distinct relation between the employee" }, { "docid": "11727803", "title": "", "text": "Blanding to be claiming that Ros-talski harbored racial bias against him, we would fail to perceive the relevance of these case histories even if we thought a finder of fact could conclude that these troopers were similarly situated with Blanding. As the district court stressed, however, they were not similarly situated. Both were tenured troopers, one having served fifteen years and the other four years. Probationary troopers have traditionally been terminated more readily by the PSP than non-probationary troopers. IV. Finally, Blanding asserts that Marakovits violated § 1981 of the Civil Rights Act, 42 U.S.C. § 1981, by engaging in racially motivated conduct that caused his discharge. Section 1981 provides in relevant part: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ... The district court granted summary judgment on the claim to Marakovits, relying on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). That case held that because “[sjection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations,” it only applies to the initial formation of a contract. Therefore, “the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id. at 177, 109 S.Ct. at 2373. As we held in Hayes v. Community Gen. Osteopathic Hosp., 940 F.2d 54 (3d Cir.1991), this means that, prior to the Civil Rights Act Amendments of 1991, § 1981 did not create a cause of action for discriminatory discharge. While the Civil Rights Act Amendments of 1991 overruled Patterson, the district court rejected Bland-ing’s argument that those amendments should be applied retroactively to his case. We need not reach the" }, { "docid": "4993022", "title": "", "text": "every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full extent and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court held that the right to make contracts under section 1981: extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic of semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or the imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicated the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII. Id. at 176-77, 109 S.Ct. at 2372-73. In Williams v. First Union National Bank, 920 F.2d 232 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2259, 114 L.Ed.2d 712 (1991), a black employee alleged retaliation resulting from his filing an EEOC claim. The Court, citing Patterson, expressed its reluctance to stretch section 1981 to protect conduct already covered by Title VII and held that plaintiffs claim was not actionable under section 1981. The Civil Eights Act of 1991, effective November 21, 1991, overturns Patterson and provides that section 1981 will apply to post-formation conduct. Section 101 of the Act amends 42 U.S.C. section 1981 by adding subsections (b) and (c). Subsection (b) provides: For purposes of this section, the term “make and enforce contracts” includes the" }, { "docid": "11062952", "title": "", "text": "Court imposed limitations on Section 1981 actions in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson, the Supreme Court noted the narrow wording of Section 1981 and held that: Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.... [T]he right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract has been established.... Id. 491 U.S. at 176-77, 109 S.Ct. at 2372-73. Accordingly, the Supreme Court denied plaintiff’s racial harassment claim as outside the scope of Section 1981. In Patterson v. McLean Credit Union the Supreme Court ruled that post-contract formation allegations of racially discriminatory conduct are not actionable under 42 U.S.C. § 1981, since § 1981 only guards against racial discrimination in the “making” of contracts and the right to “enforce” the contract through legal processes. Patterson, 491 U.S. at 176-79, 109 S.Ct. at 2372-2374. In order to state a claim cognizable under § 1981, “the plaintiff’s claim must involve improper ‘conduct at the initial formation of the contract’ or ‘conduct which impairs that right to enforce contract obligations through legal process.’” Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807 (5th Cir.1990) (quoting Patterson, 491 U.S. at 179, 109 S.Ct. at 2874). According to the Patterson Court, in the employment context, post-formation conduct which by its nature involved “in effect the opportunity to enter into a new contract with the employer” was actionable under 42 U.S.C. § 1981. Patterson, 491 U.S. at 185, 109 S.Ct. at 2377. A claim that an employer failed to promote an employee because of the employee’s race is within the reach of § 1981 when the promotion “rises to the level of an opportunity for a new and distinct relation between employee and employer.” Id. As the Eleventh Circuit stated in Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1520 (11th Cir.1991): Patterson’s discussion of §" }, { "docid": "5358001", "title": "", "text": "it properly found that the putative class failed to meet the Rule 23 numerosity requirement. See Cox, 784 F.2d at 1553 (noting that less than twenty-one is generally inadequate to meet the numerosity requirement). The district court did not abuse its discretion in refusing to certify a Title VII class. B. Jones also asserted his promotion claims under section 1981. While this case was pending in the district court, the Supreme Court suggested that typical promotion claims would not be cognizable under section 1981: “[Section 1981] covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.” Patterson v. McLean Credit Union, 491 U.S. 164, 179, 109 S.Ct. 2363, 2374, 105 L.Ed.2d 132 (1989). Although this holding has been overruled by the Civil Rights Act of 1991, appellants do not argue that this case should be decided under a retroactive application of that statute. They instead claim that Patterson, properly interpreted, does not exclude promotion claims of the sort Jones makes. The Patterson Court considered the racial harassment, promotion, and discharge claims of a black teller and file coordinator in a North Carolina credit union. The plaintiff asserted her claim under section 1981. The Court found that the plaintiff’s harassment claims were not cognizable under section 1981: By its plain terms, the relevant provision in ,§ 1981 protects two rights: “the same right ... to make ... contracts” and “the same right ... to — enforce contracts.” The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation" }, { "docid": "5291090", "title": "", "text": "the court must, of course, accept the allegations of the complaint as true (see Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., supra, 879 F.2d at p. 14), and draw all reasonable inferences favorably to the plaintiff (see Scheuer v. Rhodes, supra, 416 U.S. at p. 236, 94 S.Ct. at p. 1686; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 [2d Cir.1988], cert. denied sub nom. Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 [1989]). The Court is also mindful that under the modern rules of pleading, the plaintiff need only aver “a short and plain statement showing that the pleader is entitled to relief” (Fed.R.Civ.P. 8[a][2]), and that “[a]ll pleadings shall be so construed as to do substantial justice” (Fed.R.Civ.P. 8[f]). With these principles in mind, the Court turns to the merits of the defendants’ motion to dismiss. 2. Equal Rights Under the Law. The plaintiffs allege violation of 42 U.S.C. § 1981, which provides, in relevant part, that “[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens”. Section 1981, however, is not “a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts ” (Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 [1989] [emphasis supplied]). As the Patterson Court held, “the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions” (id. at p. 177, 109 S.Ct. at p. 2373). Furthermore, as the Second Circuit recently reiterated, a discriminatory termination of an employment contract is not within the coverage of section 1981: “Discharge from employment involves neither the making nor the enforcement of a contract, but rather conduct subse quent to the formation of the contract. Accordingly, as" }, { "docid": "11393868", "title": "", "text": "employment opportunities of blacks. This is sufficient to state a disparate impact claim under Title VII. Although Butler has stated a claim, she has not established a prima facie case by a preponderance of the evidence for purposes of Elwyn’s motion for summary judgment. However, as noted above, an entry of summary judgment would not be appropriate at this time, as Butler has not yet had the opportunity to establish evidentiary support for her claim through discovery. See Wards Cove Packing Co., Inc., 490 U.S. at 657, 109 S.Ct. at 2125. (“liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims”). Elwyn may renew its motion following discovery. C. Section 1981 Claims Butler alleges that her discharge by Elwyn was racially motivated and therefore violates 42 U.S.C. § 1981, which prohibits discrimination in the making or en forcing of contracts. Elwyn responds that its act of discharging plaintiff did not affect the making or enforcing of contracts, but rather is a post-formation action which is not actionable under section 1981 following the Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Section 1981 protects, inter alia, the right of “all persons within the jurisdiction of the United States” to “make and enforce contracts.” 42 U.S.C. § 1981. In Patterson, the Supreme Court explained the meaning of the phrase “to make ... contracts.” The Court stated: The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make" }, { "docid": "23572772", "title": "", "text": "42 U.S.C. § 1981 Sims contends that the City violated 42 U.S.C. § 1981 because of its application to her of a racially discriminatory tardiness policy and because Mulcahy’s entry into her apartment was based upon racially discriminatory grounds. In Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court determined that 42 U.S.C. § 1981 generally does not provide an employee with a remedy for an employer’s actions that take place after an employment contract has been formed. The Court explained that the “right to make contracts” protected under 42 U.S.C. § 1981 “extends only to the formation of a contract, ... not to problems that may arise later from the conditions of continuing employment.” 109 S.Ct. at 2372. The Court also explained that: “The right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.” Patterson, 109 S.Ct. at 2373. The Court also explained that section 1981’s additional protection of the “rights to enforce contracts” “does not ... extend beyond conduct by an employer which impairs an employee’s ability to enforce through legal process his or her established contract rights.” Id. Both the City’s alleged discriminatory tardiness policy and Muleahy’s entry into Sims’ residence were employer actions that occurred significantly after the contractual relationship between Sims and the City of Madison had been formed and pertain to “the conditions of continuing employment matters more naturally governed by state contract law and Title VII” and, thus, are not actionable under 42 U.S.C. § 1981 as construed in Patterson. See also Lynch v. Belden & Co., Inc., 882 F.2d 262 (7th Cir.1989) (holding that racial harassment claim “based on allegations that [the plaintiff] received" }, { "docid": "15510850", "title": "", "text": "L.Ed.2d 569 (1968)). In the instant case, defendant has moved for summary judgment. There being no genuine issues of material fact, the Court will grant defendant’s motion. B. Patterson v. McLean Credit Union In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court first reaffirmed its holding in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), thereby making § 1981 applicable to the making and enforcement of private contracts in the context of an employment discrimination suit. However, Justice Kennedy, writing for the majority, sharply narrowed the scope of § 1981 in such cases, stating that by its plain terms § 1981 only involved the protection of two rights, “the same right ... to make ... contracts” and “the same right ... to enforce contracts.” 491 U.S. at 176, 109 S.Ct. at 2372. Justice Kennedy wrote: [wjhere an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed as a general proscription of racial dis crimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts. Id. (citations omitted). Justice Kennedy stated that the right to “make” a contract is narrow and: extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and" }, { "docid": "15100624", "title": "", "text": "Imposed by Patterson v. McLean Defendant asserts that the Supreme Court’s recent decision in Patterson v. MacLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which significantly limited the scope of § 1981, now forecloses all of plaintiffs’ claims. In Patterson, a black plaintiff had challenged her employer for racial harassment, failure to promote, and discharge from employment. The Court ruled that, in contrast to discrimination involving the initial formation of the contract or certain types of promotion, “incidents relating to conditions of employment” are not covered by § 1981. Plaintiff’s claims of racial harassment were therefore not actionable. As the Court explained: “[T]he right to make contracts does not extend ... to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.” 109 S.Ct. at 2373. Plaintiffs acknowledge that under Patterson, their previously asserted claims alleging a deprecatory work atmosphere are no longer cognizable and have accordingly served and filed, with the Bank’s consent, their first amended complaint which omits this claim as a separate cause of action. Plaintiffs’ claims regarding discriminatory pay levels and benefits must also be dismissed under Patterson. These clearly entail post-contract incidents relating to the conditions of employment and have little relationship to the claims concerning promotion, discussed infra. Cf. Copperidge v. Terminal Freight Handling Co., 50 Fair Empl.Prac.Cas. (BNA) 812, 1989 WL 112829 (W.D.Tenn.1989) (challenge of more rigid disciplinary standard dismissed pursuant to Patterson). Finally, plaintiffs’ allegations of discrimination relating to denial of training were explicitly dismissed by Patterson, 109 S.Ct. at 2373-74. In contrast, Patterson ruled that a § 1981 discrimination claim for failure to promote was still potentially actionable. As posed by the Court: “[T]he question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in" }, { "docid": "15100623", "title": "", "text": "712 F.2d at 9. If the evidence is merely colorable or is not significantly probative, summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Resolution of defendant’s summary judgment motion largely depends on defining the scope of remedies provided by 42 U.S.C. § 1981. Section 1981 provides, in pertinent part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” Plaintiffs’ § 1981 complaint alleges that the defendant has engaged in discrimination based on race, ancestry, and ethnic background in its (a) promotion and transfer policies, (b) administration of employee benefits and perquisites, (c) application of performance standards, and (d) use of deprecatory remarks and ethnic slurs. The suit does not directly challenge defendant’s hiring practices. Limits Imposed by Patterson v. McLean Defendant asserts that the Supreme Court’s recent decision in Patterson v. MacLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which significantly limited the scope of § 1981, now forecloses all of plaintiffs’ claims. In Patterson, a black plaintiff had challenged her employer for racial harassment, failure to promote, and discharge from employment. The Court ruled that, in contrast to discrimination involving the initial formation of the contract or certain types of promotion, “incidents relating to conditions of employment” are not covered by § 1981. Plaintiff’s claims of racial harassment were therefore not actionable. As the Court explained: “[T]he right to make contracts does not extend ... to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such post-formation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state" }, { "docid": "8152713", "title": "", "text": "case. After considering the record in this case and the applicable law, we find that the district court properly granted First Union’s motion to dismiss for failure to state a claim upon which relief can be granted. I. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court considered the application of section 1981 to claims of discrimination in the employment context. The Court observed that The most obvious feature of [section 1981] is the restriction of its scope to forbidding discrimination in the “mak[ing] and enforcement]” of contracts alone. Where an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts. Id. 109 S.Ct. at 2372. The Court made it clear that the crucial determination under section 1981 is “whether the employer, at the time of the formation of the contract, in fact intentionally refused to enter into a contract with the employee on racially neutral terms.” Id. at 2376-77 (emphasis added). Williams maintains that the district court erred in finding that his claim of discriminatory discharge was not actionable under the “right to make contracts” provision of 42 U.S.C. § 1981. However, the plain language of the Supreme Court in Patterson rejects any claim based on actions which occur after the contract has been formed. Patterson clearly held that section 1981’s right to make contracts provision governs only conduct prior to the formation of the contract; it “does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract. ...” Id. at 2373. Since Patterson, a number of courts of appeals have considered whether a claim of discriminatory discharge is actionable under section 1981. A majority of these courts have held that discriminatory discharge claims are not actionable under section 1981 based on the plain language" }, { "docid": "7015718", "title": "", "text": "... or is not significantly probative ... summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2510-11. Allensworth complains of race discrimination in violation of 42 U.S.C. § 1981, which guarantees to all persons “the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” In Patterson, 491 U.S. 164, 109 S.Ct. 2363, the Supreme Court narrowly defined the scope of section 1981, confining its protection to “conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through the legal process.” Id. at 179-80, 109 S.Ct. at 2374-75. Because the statute literally embraces only the right to make and to enforce contracts, the Court held that it “cannot be construed as a general proscription of racial discrimination in all aspects of contract relations.” Id. at 176, 109 S.Ct. at 2372. The first of the rights secured by section 1981, the right to make contracts, prohibits only a racially-based refusal to enter into a contract or an offer to make a contract on discriminatory terms. As the Supreme Court has emphasized, it does not, however, “extend as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established.” Id. at 177, 109 S.Ct. at 2373. “Such postformation conduct,” the Court wrote, “does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.” Id. The second of the statutory guarantees, the right to enforce contracts, proscribes racial discrimination that infects the legal process or impedes nonjudicial modes of adjudication regarding the enforcement of contract rights. See id. It also extends to discrimination by certain private entities, such as labor unions, in enforcing the terms of a contract because such entities bear explicit responsibility for processing grievances, pressing claims and representing members in disputes over the terms of the labor contract. See id. A. Claims Against GM In order to state a section 1981 claim post-Patterson," }, { "docid": "11062951", "title": "", "text": "Magistrate Judge hereby RECOMMENDS that defendant’s motion for summary judgment be GRANTED as it relates to this claim. In summary, the undersigned finds that plaintiff has failed to establish evidence supporting a prima facie ease with regard to any of his Title VII claims. Accordingly, the undersigned RECOMMENDS that defendant’s motion for summary judgment be GRANTED as it relates to each of these claims. m U.S.C. § 1981 AND THE CIVIL RIGHTS ACT OF 1991 A Section 1981 claim concerns discrimination in the making and enforcement of contracts. The code at 42 U.S.C. § 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benéfit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. The United States Supreme Court imposed limitations on Section 1981 actions in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson, the Supreme Court noted the narrow wording of Section 1981 and held that: Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.... [T]he right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract has been established.... Id. 491 U.S. at 176-77, 109 S.Ct. at 2372-73. Accordingly, the Supreme Court denied plaintiff’s racial harassment claim as outside the scope of Section 1981. In Patterson v. McLean Credit Union the Supreme Court ruled that post-contract formation allegations of racially discriminatory conduct are not actionable under 42 U.S.C. § 1981, since § 1981 only guards against racial discrimination in the “making” of contracts and the right to “enforce” the contract through legal processes. Patterson, 491 U.S. at 176-79," }, { "docid": "5291091", "title": "", "text": "the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens”. Section 1981, however, is not “a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts ” (Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 [1989] [emphasis supplied]). As the Patterson Court held, “the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions” (id. at p. 177, 109 S.Ct. at p. 2373). Furthermore, as the Second Circuit recently reiterated, a discriminatory termination of an employment contract is not within the coverage of section 1981: “Discharge from employment involves neither the making nor the enforcement of a contract, but rather conduct subse quent to the formation of the contract. Accordingly, as this Court has previously concluded, an allegedly discriminatory termination of a contract is not actionable under section 1981” (Patterson v. Intercoast Management of Hartford, Inc., 918 F.2d 12, 14 [2d Cir.1990] [Altimari, J.] [citations omitted]). Based upon the foregoing, since no named plaintiff has alleged racial discrimination in either the formation or enforcement of a contract, the claims under section 1981 are dismissed. In this regard, the Court notes that the plaintiffs generally allege that minority applicants for employment with the defendants have been discriminated against on the basis of race. Although this might arguably come within the coverage of section 1981 as to the “formation” of an employment contract, none of the named plaintiffs in this action are within that class of persons. Accordingly, the motion of the defendants to dismiss the claims based on 42 U.S.C. § 1981, is granted, and those claims, namely, the first, third and fourth causes of action, are dismissed as a matter of law. 3. Conspiracy to Violate Constitutional Rights (§ 1985). The plaintiffs allege violation of 42" } ]

[ { "docid": "10272795", "title": "", "text": "and severally. As the bankruptcy court noted, the auditor’s report suggests that Gibson and Sipple shared one claim in the Superior Court, and Gibson had another, separate claim. Nevertheless, the Superior Court judgment reduced these claims into one judgment, with the full amount in favor of both Gibson and Sipple. Sipple, Gibson, and Gannam commenced this involuntary bankruptcy proceeding pursuant to 11 U.S.C. § 303(b) in October 1988. On May 8, 1989, Atwood filed a motion for summary judgment. The bankruptcy court granted the summary judgment motion and dismissed the case on January 29, 1990. Sipple and Gibson have appealed that order. Although the Court originally rejected their contentions and affirmed the bankruptcy court’s decision, the Court will now reconsider that decision. The appellants contend that the bankruptcy court erred in concluding that fewer than three claim holders brought the involuntary petition against Atwood. The Court disagrees with the appellants. In addition, they contend that the bankruptcy court erred in concluding that Atwood had twelve or more creditors with claims against him that were not contingent, not subject to bona fide disputes, nor paid postpetition in a voidable transfer. Because the record is not clear on this issue, the Court cannot determine whether the bankruptcy court erred in its determination of this issue. Accordingly, the Court remands this case with instructions. ANALYSIS I. Standard of Review and Summary Judgment When a district court reviews a final order of the bankruptcy court, it sits as an appellate tribunal. In re Cornelison, 901 F.2d 1073, 1075 (11th Cir.1990) (per curiam). In this role, the district court is constrained by traditional standards of appellate review. In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988); In re Brown, 851 F.2d 81, 84 (3d Cir.1988). This means that the bankruptcy court’s findings of fact are to be accepted as long as they are not clearly erroneous, but its conclusions of law are subject to plenary, or de novo, review. In re Thomas, 883 F.2d 991, 994 (11th Cir.1989); In re Fielder, 799 F.2d 656, 657 (11th Cir.1986); see Bankruptcy Rule 8013; see also, In re" } ]

[ { "docid": "1096899", "title": "", "text": "to de novo review. In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, Thomas v. Southtrust Bank, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). B. Sovereign Immunity Although Appellant dedicated a large portion of its initial brief to arguing the bankruptcy court erred in holding the government had waived sovereign immunity in this case, this issue was settled in the Appel-lee’s favor by the Bankruptcy Reform Act of 1994. As the Appellant concedes in its supplemental brief, the amended Act provides, generally, sovereign immunity does not bar an award of attorney’s fees and damages under 11 U.S.C. § 362(h) for a willful violation of an automatic stay, except to the extent that an attorneys’ fee award is based on a rate in excess of the $75 fee cap of 28 U.S.C. § 2412(d)(2)(A) and except to the extent that a damage award involves punitive damages. These two exceptions are discussed further below. C. Willful Violation of an Automatic Stay For a violation of an automatic stay to be “willful,” all that is required is that an entity engage in a deliberate act to violate a stay with the knowledge that the debtor has filed for bankruptcy. See In re Atlantic Business and Community Corp., 901 F.2d 325, 329 (3rd Cir.1990); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989); In re Solis, 137 B.R. 121, 132 (Bankr.S.D.N.Y.1992). Where there is actual notice of the bankruptcy, it is presumed that the violation was deliberate or intentional. Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). Here, the IRS admits that it was subject to the automatic stay, that it received notice of Appellee’s bankruptcy, and that it violated the automatic stay by effecting a post-petition wage levy. In light of these facts, the Court finds that the bankruptcy court correctly held that the IRS had engaged in a willful violation of the automatic stay. D. Punitive Damages In its supplemental brief Appellant argues that the Bankruptcy Reform Act of 1994 bars recovery of punitive damages against the United States for the willful violation of an" }, { "docid": "1191915", "title": "", "text": "of the Agreement. The district court affirmed the bankruptcy court’s decision by memorandum opinion dated 15 September 1989. As the prevailing party, Bradford filed a motion to tax appellate attorney fees and costs against Sure-Snap. The district court denied Bradford’s motion on the ground that confirmation of Sure-Snap’s Chapter 11 reorganization plan had terminated the Agreement and consequently had extinguished Bradford’s contractual basis for an award of attorney fees. Standard of Review The district court held, as a matter of law, that there was no contractual or statutory basis for an award of attorney fees to Bradford. The district court’s conclusion of law is subject to complete and independent review by this court. In re Thomas, 888 F.2d 991, 994 (11th Cir.1989), cert. denied, Thomas v. Southtrust Bank, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). Sure-Snap’s Liability for Attorney Fees Federal courts apply state law when ruling on the interpretation of contractual attorney fee provisions. See American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826, reh’g denied en banc, 892 F.2d 89 (11th Cir. 1989); In re East Side Investors, 694 F.2d 242 (11th Cir.1982), reh’g denied, 702 F.2d 214 (11th Cir.1983). The law is well settled in Florida, the forum state, that matters bearing on the validity and interpretation of a contract are governed by the law of the state where the contract was made. In re Interstate Markings, Inc., 73 B.R. 1 (Bankr.M.D.Fla.1987); Goodman v. Olsen, 305 So.2d 753 (Fla.1974). The dispute in this case involves the interpretation of an attorney fee provision in the Agreement. Since Bradford and Sure-Snap executed the mortgage and security agreement in Vermont, its law of contract interpretation controls. Under Vermont law, attorney fees are not awarded unless authorized by legal authority or as a matter of contract. In re Appeal of Gadhue, 149 Vt. 322, 544 A.2d 1151 (1987); Myers v. Ambassador Ins. Co., 146 Vt. 552, 508 A.2d 689 (1986). Bradford relies on a specific contractual provision found in the Agreement for its claim for attorney fees. The Agreement provides: (7) Court Proceedings.... [I]f" }, { "docid": "12285236", "title": "", "text": "delinquency and to order reinstatement of the Padgetts’ home mortgage upon cure of any deficiency in the Chapter 13 plan payments. The Bankruptcy Court held a hearing on these matters on August 16, 2000. On September 22, 2000, the Bankruptcy Court entered an Order, extending the deadline for curing the deficiency in the Chapter 13 payments through September 2000, and reinstating the mortgage through August 2000 upon the Chapter 13 trustee’s disbursement of funds owed to Chase. The Order further granted relief from the stay to Chase, but only for any nonpayment occurring after September 1, 2000. The Bankruptcy Court’s Order specifically provided that: [U]pon the Chapter 13 trustee’s disbursement to CHASE MANHATTAN MORTGAGE CORPORATION of $774.77, the [Padgetts’] mortgage loan with CHASE MANHATTAN MORTGAGE shall be deemed current and reinstated through the month of August, 2000... On January 29, 2001, Chase filed this appeal, contending that the Bankruptcy Court erred, as a matter of law, in holding that Chase waived its right to recover the advances pursuant to the mortgage and note by failing to notify the Padgetts of the tax and insurance increases and the need to increase their payments to cover the escrow deficiencies. II Discussion A. Standard of Review In bankruptcy eases, the district court serves as an appellate court of review. See In re Calvert, 907 F.2d 1069, 1071 (11th Cir.1990). The district court may set aside the bankruptcy court’s factual findings only if such findings are clearly erroneous. See id. However, the bankruptcy court’s conclusions of law are subject to de novo review by the district court. See id. (citing In re Sublett, 895 F.2d 1381 (11th Cir.1990); In re Thomas, 883 F.2d 991, 994 (11th Cir.1989)). Because Chase concedes in its Reply Brief that there are no significant factual disputes relevant to this appeal, the Court here applies the de novo standard of review in considering whether the Bankruptcy Court’s Order violated section 1322(b)(2) as a matter of law. B. Chase’s Rights as Mortgagee Under Section 1322(b)(2) The general rule under section 1322(b)(2) is that a bankruptcy court is prohibited from confirming a" }, { "docid": "6837071", "title": "", "text": "MEMORANDUM OPINION AND ORDER ALBRITTON, District Judge. This cause is before the court on appeal from the final judgment entered by the United States Bankruptcy Court for the Middle District of Alabama on December 14,1994, in favor of Joe M. Harper. The court has jurisdiction pursuant to 28 U.S.C. § 158. After independently reviewing the record, the briefs, and the documents submitted by the parties, this court finds that the decision of the bankruptcy court is due to be affirmed in part and remanded for further factual findings. STANDARD OF REVIEW A district court reviews the bankruptcy court’s factual findings under the limited and deferential clearly erroneous standard. In re Club Associates, 951 F.2d 1223, 1228 (11th Cir.1992); see also Fed.R.Bankr.P. 8013 ; In re Fielder, 799 F.2d 656, 657 (11th Cir.1986); In re Sublett, 895 F.2d 1381, 1383 (11th Cir.1990); In re Goerg, 930 F.2d 1563, 1566 (11th Cir.1991); In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990) (the standard of review utilized by the court of appeals is the same as that utilized by the district court — factual findings of the bankruptcy court cannot be set aside unless they are clearly erroneous). “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.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citation and internal quotation marks omitted). In contrast, a reviewing district court is not bound by the bankruptcy court’s conclusions of law. In re Fielder, 799 F.2d at 657. A district court may examine the applicable principles of law to determine whether they were properly applied and whether they support the findings of the bankruptcy court. Id.; see also In re Empire for Him, Inc., 1 F.3d 1156, 1159 (11th Cir.1993). STATEMENT OF FACTS On April 26, 1991, Harper and Wiggins were involved in an automobile accident on a highway" }, { "docid": "9859949", "title": "", "text": "bankruptcy court dismissed Hardy’s claim for lack of subject matter jurisdiction, relying on former bankruptcy code section 11 U.S.C. § 106 which delineates the waiver of sovereign immunity in bankruptcy cases and finding that the doctrine of sovereign immunity barred the imposition of monetary damages in this ease where sovereign immunity was not unequivocally waived. Hardy v. United States (In re Hardy), 161 B.R. 320, 325 (Bankr.S.D.Ga.1993). Hardy appealed the dismissal of his case by the bankruptcy court to the United States District Court for the Southern District of Georgia. Hardy v. United States (In re Hardy), 171 B.R. 912 (S.D.Ga.1994). After reviewing the appropriate bankruptcy provisions and case law, the district court reluctantly affirmed the bankruptcy’s court’s dismissal of the case for lack of subject matter jurisdiction. Id. at 916. On October 22, 1994, President Clinton signed the Bankruptcy Reform Act of 1994 (“Act”), which contained amendments to § 106 that specifically and unequivocally waive sovereign immunity for governmental units for numerous sections of the bankrupt cy code, including §§ 105, 106, and 524. Bankruptcy Reform Act of 1994, Pub.L. 108-394, § 113, 108 Stat. 4106, 4117 (1994). The waiver of sovereign immunity applies to cases before, on, or after the date of enactment of the Act. Bankruptcy Reform Act of 1994, Pub.L. 103-394, § 702(b)(2)(B), 108 Stat. 4150 (1994). Jurisdiction and Standard of Review Under 28 U.S.C. § 158(d), this court has jurisdiction to hear all final orders from a district court that exercised appellate jurisdiction over bankruptcy court orders. 28 U.S.C. § 158(d) (1993). This court exercises complete and independent review over conclusions of law made by both the bankruptcy court and district court. Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1570 (11th Cir.1995); B.F. Goodrich Employees Federal Credit Union v. Patterson (In re Patterson), 967 F.2d 505, 508 (11th Cir.1992); Equitable Life Assurance Society v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). Sovereign Immunity The doctrine of sovereign immunity prohibits suits against the United States unless the United States specifically consents to be sued. In order to be effective, “[w]aivers of" }, { "docid": "13698161", "title": "", "text": "judgment lien. We review the district court’s determination of law de novo. Equitable Life Assurance Soc’y v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). III. Discussion Wrenn and the district court offer three reasons why ACIPCO’s lien is void or avoidable. We consider each of these possibilities in turn. We conclude that none of them justify avoiding the lien in full, and we therefore reverse the district court and reinstate the order of the bankruptcy court. First, Wrenn argues that the lien is unenforceable because the discharge of the judgment against him avoids the judicial lien based upon it. We disagree. A discharge in bankruptcy “voids any judgment ..., to the extent that such judgment is a determination of the personal liability of the debtor.” 11 U.S.C. § 524(a)(1) (1988) (emphasis added). Thus, discharge does not affect liability in rem, and prepetition liens remain enforceable after discharge. 3 Collier on Bankruptcy ¶ 524.02[1] (Lawrence P. King ed., 15th ed. 1994); see Dewsnup v. Timm, 502 U.S. 410, -, 112 S.Ct. 773, 778, 116 L.Ed.2d 903 (1992); Johnson v. Home State Bank, 501 U.S. 78, 81-83, 111 S.Ct. 2150, 2153, 115 L.Ed.2d 66 (1991); In re Isom, 901 F.2d 744, 745 (9th Cir.1990); Southtrust Bank v. Thomas (In re Thomas), 883 F.2d 991, 997 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990); Estate of Lellock v. Prudential Ins. Co., 811 F.2d 186, 189 (3d Cir.1987). We therefore conclude that ACIPCO’s lien remains enforceable, unless some provision of the Bank- ruptey Code aside from the discharge provision makes the lien avoidable. Wrenn points to two such provisions that he argues allow him to avoid ACIPCO’s otherwise valid hen: §§ 506(d) and 522(f). Section 506(d) provides: “To the extent that a hen secures a claim against the debtor that is not an ahowed secured claim, such hen is void_■” 11 U.S.C. § 506(d) (1988). Wrenn’s § 506(d)-based statutory argument is unclear to us. We read the brief, however, to argue that the discharge of ACIPCO’s judgment effectively disallowed ACIPCO’s claim. Section 506(d) avoids hens" }, { "docid": "4578581", "title": "", "text": "Gonzalez & Portuondo, P.A. (See [D.E. 1, 5]). The bankruptcy court denied all of Mohorne’s motions. Mohorne now appeals the bankruptcy court’s orders. II. STANDARD OF REVIEW District courts sit as appellate courts over bankruptcy decisions. Miner v. Bay Bank & Trust Co. (In re Miner), 185 B.R. 362, 365 (N.D.Fla.1995), aff'd, 83 F.3d 436 (11th Cir.1996). The bankruptcy court’s findings of facts should not be set aside unless they are clearly erroneous. Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir.1990). The burden to show that such factual findings are clearly erroneous lies with the appellant. Acquisition Corp. of Am. v. Fed. Sav. & Loan Ins. Corp., 96 B.R. 380, 382 (S.D.Fla.1988). A finding of fact is not clearly erroneous unless “ ‘this court, after reviewing all the evidence, [is] left with the definite and firm conviction that a mistake has been committed.’ ” IBT Int’l, Inc. v. Northern (In re Int’l Admin. Servs.), 408 F.3d 689, 698 (11th Cir.2005) (quoting Lykes Bros., Inc. v. United States Army Corps of Engr’s, 64 F.3d 630, 634 (11th Cir.1995)). In contrast, conclusions of law are reviewed on a de novo basis. In re Englander, 95 F.3d 1028, 1030 (11th Cir. 1996); Olympia & York Fla. Equity Corp. v. Bank of New York (In re Holywell Corp.), 913 F.2d 873, 879 (11th Cir.1990). Further, mixed issues of law and fact and “ultimate facts” are all subject to de novo review. In re Chase & Sanborn Corp., 904 F.2d at 593; In re Sublett, 895 F.2d 1381, 1383 (11th Cir.1990). III. ANALYSIS In his nearly incomprehensible brief, Mohorne essentially attempts to relitigate the state court’s decision concerning what property was subject to the mortgage held by Beal Bank. Nonetheless, he does mention in passing that the bankruptcy court erred in its latest round of denials of his most recent motions. The Court addresses each order appealed in turn. A. Order Denying Debtor’s Emergency Motion to Reopen Case On this issue, the entirety of Mohorne’s argument is that: 3. Although reopening a case is done on" }, { "docid": "7825073", "title": "", "text": "September 30, 1993. Coggin timely filed this appeal. He challenges the rejection of his argument that the trustee and Mrs. Coggin’s motions for extension of the bar date were untimely. He also appeals the judgments made against him as to dischargeability under section 727. Additionally, the trustee brought suit against Coggin and his son, Tommy, for recovery of the $13,000 payment Coggin made to Tommy. The trustee settled his case with Tommy prior to the trial in the bankruptcy court. The bankruptcy court found that the transfer of $13,000, in addition to being grounds for denying Coggin’s discharge, was also an avoidable conveyance under section 548. The court held, however, that the trustee could not recover that transfer from Cog-gin under section 550(a)(1). This ruling was affirmed by the district court. The trustee cross appeals this denial of recovery from Coggin. II. DISCUSSION In reviewing the judgment of the bankruptcy court in this case, we are presented with three specific holdings. First, we examine the determination of the bankruptcy court that the appellees’ motions for extending the bar date were timely made. Second, we evaluate the bankruptcy court’s denial of Coggin’s discharge under section 727. Finally, we review the determination that a trustee cannot, under section 550(a)(1), recover the value of a fraudulent transfer from the transferring debtor. A Timeliness Of Motion To Extend Time The bankruptcy court’s determination that the appellees’ motions to extend the bar date were timely made is a question of law reviewable de novo. Southtrust Bank v. Thomas (In re Thomas), 883 F.2d 991, 994 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). The facts underlying this determination are not in dispute. The trustee filed a motion to extend the bar date on July 28,1989, seven days prior to the bar date. Mrs. Coggin filed a similar motion to extend time on August 3, 1989, the day before the bar date. The bankruptcy court granted both motions ex parte, without a hearing of any kind, on the day each motion was filed. In the case of the trustee’s motion," }, { "docid": "14678205", "title": "", "text": "States Bankruptcy Court. In re Colortex Indus., Inc., 19 F.3d 1371, 1374 (11th Cir.1994). The legal conclusions of the Bankruptcy Court are reviewed de novo, In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir.1993), while findings of fact are reviewed for clear error. Fed. R. Bankr.P. 8013; In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). A finding of fact is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Crawford v. Western Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir.1984) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Whether a reorganization plan violates the absolute priority rule is a question of law. In re Armstrong World Indus., 432 F.3d 507, 511 (3d Cir.2005). II. On August 29, 2002, James Bronce Henderson (Henderson, appellee or Debt- or) filed a voluntary petition for Chapter 11 relief. Van Buren Industrial Investors, LLC (Van Buren) and 6700 Development Associates, LLC (6700 Development)(collectively appellants or creditors) filed timely Proofs of Claim. Bankruptcy proceedings established that Van Buren’s capped claim was in excess of $2.69 million and that 6700 Development’s claim was at least over $300,000. The Bankruptcy Court has accurately summarized the lengthy relevant history, In re Henderson, 321 B.R. at 551-54, which the Court adopts. At the conclusion of the September 8, 2004, confirmation hearing, the Bankruptcy Court found that the Third Amended Plan, as modified, met the requirements of 11 U.S.C. § 1129(a)(1), (2), (3) and (11). The Bankruptcy Court could not determine, however, whether the Plan met the requirement of § 1129(a)(7) as it related to Henderson’s interest in the Fort Wayne Wizards, a minor league baseball team. After an additional deposition was filed, the Bankruptcy Court addressed the remaining issue in its January 26, 2005 Amended Order, In re Henderson, 321 B.R. at 554-57. Henderson’s Third Amended Plan, as modified, proposed that he" }, { "docid": "18501980", "title": "", "text": "the entries in the fee application were extremely brief and did not contain the detail generally seen in fee applications. Rather than deny all compensation for the time not properly documented, the Court chose to reduce the allowed time. (Bankr.Dk. 1809 at p. 6). SL & W and HPJ & R appeal the order denying their motions to reconsider. The district court sits as an appellate court on matters appealed from the bankruptcy court. Bankr.R. 8013. The parties argue the court should employ a de novo standard of review as the issues on appeal concern the application of legal standards. An attorney’s fees award will be reversed on appeal only if there was an abuse of discretion. Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.1990); Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 980 (10th Cir.), cert. denied, — U.S.-, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990). Discretion is abused when the judge does not apply the proper legal standards, does not follow the proper procedures, or bases an award on findings of fact that are clearly erroneous. In re Red Carpet Corp. of Panama City Beach, 902 F.2d 883, 890 (11th Cir.1990); Matter of Evangeline Refining Co., 890 F.2d 1312, 1325 (5th Cir.1989); Matter of Pontiac Hotel Associates, 92 B.R. 715, 716 (E.D.Mich.1988). The reasonableness of attorney’s fees is generally a question of fact. Matter of Lee, 884 F.2d 897, 899 (5th Cir.1989). Even though some evidence may support it, a finding of fact may still be clearly erroneous if the appellate court after reviewing the entire evidence has the definite and firm conviction that a mistake has been committed. In re Hart, 923 F.2d 1410, 1411 (10th Cir.1991). The abuse of discretion standard as so defined provides an adequate framework for this appeal. The parties first argue the bankruptcy court imposed a requirement for detailed fee applications that was inappropriate, inapplicable, excessive or erroneous. Applications for attorney’s fees are governed by 11 U.S.C. § 330 (1986), which provides in pertinent part: After notice to any parties in interest and to the United States" }, { "docid": "9859950", "title": "", "text": "Bankruptcy Reform Act of 1994, Pub.L. 108-394, § 113, 108 Stat. 4106, 4117 (1994). The waiver of sovereign immunity applies to cases before, on, or after the date of enactment of the Act. Bankruptcy Reform Act of 1994, Pub.L. 103-394, § 702(b)(2)(B), 108 Stat. 4150 (1994). Jurisdiction and Standard of Review Under 28 U.S.C. § 158(d), this court has jurisdiction to hear all final orders from a district court that exercised appellate jurisdiction over bankruptcy court orders. 28 U.S.C. § 158(d) (1993). This court exercises complete and independent review over conclusions of law made by both the bankruptcy court and district court. Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1570 (11th Cir.1995); B.F. Goodrich Employees Federal Credit Union v. Patterson (In re Patterson), 967 F.2d 505, 508 (11th Cir.1992); Equitable Life Assurance Society v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). Sovereign Immunity The doctrine of sovereign immunity prohibits suits against the United States unless the United States specifically consents to be sued. In order to be effective, “[w]aivers of the Governments’ sovereign immunity ... must be unequivocally expressed ... [and] are not generally to be liberally construed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992). Such an unequivocal waiver is now contained in revised section 106 of the bankruptcy code for specifically enumerated bankruptcy provisions. Section 106 provides, in pertinent part: (a) Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: (1) Sections 105, 106, ... 524 ... of this title. (2) The court may hear an determine any issue arising with respect to the application of such sections to governmental units. (3)The court may issue against a governmental unit an order, process, or judgment under such sections or the Federal Rules of Bankruptcy Procedure, including an order or judgment awarding a money recovery, but not including an award of punitive damages. 11 U.S.C. § 106. Section 106 further provides that it is not a" }, { "docid": "18553214", "title": "", "text": "a Notice of Appeal challenging the Bankruptcy Court’s order. After briefing was completed, the Bankruptcy Reform Act of 1994 (“Act”) was passed on October 22, 1994. Appellant submitted a supplemental brief on December 1, 1994, addressing the effect of the Act on the present case. The matter is now before the Court. DISCUSSION After passage of the Act, the issues raised in appellant’s opening brief have been amended. Accordingly, the Court will address the amended issues. 1. Whether the IRS willfully violated the automatic stay thereby entitling appellee to compensatory damages, costs and attorney’s fees under 11 U.S.C. § 362(h). In its supplemental brief, appellant argues that the debtor was not entitled to compensatory damages, costs and attorney’s fees under 11 U.S.C. § 362(h) because the IRS did not willfully violate the automatic stay. Appellant asserts that this argument was raised in its opening brief as Argument III-A. Argument III in the appellant’s opening brief concerned whether punitive damages were justified given that the IRS had inadvertently violated the automatic stay. It did not concern whether the violation was willful for purposes of compensatory damages, costs and attorney’s fees. In fact, appellant does not address the willfulness of the violation in relation to these damages anywhere in the opening brief. “Arguments raised for the first time in a reply brief are not properly before a reviewing court”. United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.1984). The Court notes that this is a supplemental brief, rather than a reply brief, filed due to the passage of the Act after the parties had submitted their briefs. There is no reason, however, that appellant could not have raised the issue of a willful violation in its opening brief since the Bankruptcy Court addressed the issue in its order. Flynn, 169 B.R. at 1013-1014. Accordingly, that issue is not properly before this Court. Even if the issue of whether a willful violation occurred under § 362(h) were properly before this Court, the Court would find that such a willful violation occurred in this case. A violation of an automatic stay under §" }, { "docid": "1096897", "title": "", "text": "from the bankruptcy court, and timely filed a proof of claim for an unsecured debt in the amount of $6,419.11. Appellee’s Chapter 13 plan was confirmed on July 29, 1992. The Appellee’s tax debt stems from an 1987 tax obligation on which she was jointly liable with her husband and an individual tax obligation from 1991. On January 9, 1993, the IRS issued a notice of levy upon Appel-lee’s employer, Southern Intermodal Logistics, a trucking firm where Appellee worked as a driver. Upon learning of the levy, Ap-pellee petitioned the bankruptcy court for a stop levy order, which the bankruptcy court issued on January 14, 1993. Pursuant to that order the IRS released Appellee’s wages on February 9, 1993. After trying the ease on February 2, 1994, the bankruptcy court issued a decision on May 13, 1994, in which it concluded that the IRS had waived sovereign immunity under 11 U.S.C. § 106(a) and willfully violated the automatic stay provision of 11 U.S.C. § 362(h). The bankruptcy court awarded Appellee $350 in lost wages, $2,852 in attorney’s fees, and $10,000 in punitive damages. A portion of this award was used to offset Appellee’s debt to the IRS; the remainder was paid to the Chapter 13 Trustee. On May 20, 1994, the United States filed a Notice of Appeal challenging the bankruptcy court’s order. After briefing was completed, the Bankruptcy Reform Act of 1994 was passed on October 22, 1994. Appellant submitted a supplemental brief on December 1, 1994, addressing the effect of the Act on the present case. II. DISCUSSION A. Standard of Review The Court reviews this final order as an appellate tribunal, In re Cornelison, 901 F.2d 1073, 1075 (11th Cir.1990) (per curiam), and is constrained by the traditional standards of appellate review. In re Calvert, 907 F.2d 1069, 1071 (11th Cir.1990), reh’g denied, 917 F.2d 570 (1990); In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988); In re Atwood, 124 B.R. 402, 404 (S.D.Ga.1991). The bankruptcy court’s findings of fact are accepted as long as they are not clearly erroneous, but its conclusions of law are subject" }, { "docid": "14678204", "title": "", "text": "OPINION AND ORDER STEELE, District Judge. This matter comes before the Court on the timely appeal of the Bankruptcy Court’s Order Confirming Chapter 11 Plan (Alternative (B)) of Third Amended Plan (Doc. # 528), the Order denying Motion for Reconsideration and Clarification of Order on Confirmation of Third Amended Plan, as modified (Doc. # 540), and the Amended Order on Confirmation of Third Amended Plan, as Modified (Doc. # 544) entered by the Honorable Alexander L. Paskay. See In re Henderson, 321 B.R. 550 (Bankr.M.D.Fla.2005). The following briefs have been filed in this matter: (1) appellants’ Initial Brief (Dist.Doc. # 11); (2) appellee’s Brief of Appellee (Dist.Doc. # 13); (3) appellants’ Reply Brief (Dist. Doc. # 26); (4) Joann Henderson’s Answer Brief (Dist.Doc. # 30); and (5) appellants’ Reply to Mrs. Hendeson’s Answer Brief (Dist.Doc. #33). Appellants also filed a Notice of Reliance Upon Additional Authority (Dist.Doc. # 34). The Court heard oral arguments on March 20, 2006. I. The United States District Court functions as an appellate court in reviewing decisions of the United States Bankruptcy Court. In re Colortex Indus., Inc., 19 F.3d 1371, 1374 (11th Cir.1994). The legal conclusions of the Bankruptcy Court are reviewed de novo, In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir.1993), while findings of fact are reviewed for clear error. Fed. R. Bankr.P. 8013; In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). A finding of fact is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Crawford v. Western Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir.1984) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Whether a reorganization plan violates the absolute priority rule is a question of law. In re Armstrong World Indus., 432 F.3d 507, 511 (3d Cir.2005). II. On August 29, 2002, James Bronce Henderson (Henderson, appellee or Debt- or) filed" }, { "docid": "12285237", "title": "", "text": "to notify the Padgetts of the tax and insurance increases and the need to increase their payments to cover the escrow deficiencies. II Discussion A. Standard of Review In bankruptcy eases, the district court serves as an appellate court of review. See In re Calvert, 907 F.2d 1069, 1071 (11th Cir.1990). The district court may set aside the bankruptcy court’s factual findings only if such findings are clearly erroneous. See id. However, the bankruptcy court’s conclusions of law are subject to de novo review by the district court. See id. (citing In re Sublett, 895 F.2d 1381 (11th Cir.1990); In re Thomas, 883 F.2d 991, 994 (11th Cir.1989)). Because Chase concedes in its Reply Brief that there are no significant factual disputes relevant to this appeal, the Court here applies the de novo standard of review in considering whether the Bankruptcy Court’s Order violated section 1322(b)(2) as a matter of law. B. Chase’s Rights as Mortgagee Under Section 1322(b)(2) The general rule under section 1322(b)(2) is that a bankruptcy court is prohibited from confirming a Chapter 13 plan that modifies a mortgagee’s property rights in the mortgagor’s homestead. See Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Chase contends that the Bankruptcy Court’s September 22, 2000 Order violated section 1322(b)(2) by waiving its right to repayment of the advances Chase made prior to notifying the Padgetts of the escrow deficiencies. Chase further contends that no provisions in the confirmed Plan, subsequent modifications, or the original mortgage and note require notice of advances and escrow deficiencies. Therefore, Chase concludes that it is entitled to repayment of the advances, notwithstanding the fact that it admits to not notifying the Padgetts of the escrow deficiencies until October of 1998. In order to determine Chase’s “rights” under the mortgage and note for the purposes of determining whether the Bankruptcy Court impermissibly modified its rights in violation of section 1322(b)(2), it is necessary to determine Chase’s duties under the mortgage and note. As a “federally related mortgage loan,” the Padgett’s mortgage is subject to the notice requirements of" }, { "docid": "18553213", "title": "", "text": "1994. Flynn v. Internal Revenue Service and United States, 169 B.R. 1007 (Bankr.S.D.Ga.1994). In its order, the Bankruptcy Court held that the IRS willfully violated the automatic stay provision of 11 U.S.C. § 362(h) and waived sovereign immunity under 11 U.S.C. § 106(a). The Court awarded appellee $588.55 in out-of-pocket expenses, consisting of $120.00 in returned check charges, $360.00 in lost wage charges and $108.55 in travel expenses. The Court awarded appellee $5,000.00 in damages for emotional distress, due to the embarrassment, humiliation and shame she suffered as a result of the levy. Attorney’s fees of $2,709.00 were awarded based on appellee’s counsel’s expenditure of 27.09 hours at the rate of $100.00 per hour. Punitive damages of $10,000.00 were awarded based on “[t]he IRS’s recalcitrance and indifference to the fact that its current system guarantees that it will repeatedly violate the automatic stay”. Id. at 1024. The damages were to be offset against any remaining claims that the IRS had against appellee in the Chapter 13 proceeding. On May 20, 1994, the United States filed a Notice of Appeal challenging the Bankruptcy Court’s order. After briefing was completed, the Bankruptcy Reform Act of 1994 (“Act”) was passed on October 22, 1994. Appellant submitted a supplemental brief on December 1, 1994, addressing the effect of the Act on the present case. The matter is now before the Court. DISCUSSION After passage of the Act, the issues raised in appellant’s opening brief have been amended. Accordingly, the Court will address the amended issues. 1. Whether the IRS willfully violated the automatic stay thereby entitling appellee to compensatory damages, costs and attorney’s fees under 11 U.S.C. § 362(h). In its supplemental brief, appellant argues that the debtor was not entitled to compensatory damages, costs and attorney’s fees under 11 U.S.C. § 362(h) because the IRS did not willfully violate the automatic stay. Appellant asserts that this argument was raised in its opening brief as Argument III-A. Argument III in the appellant’s opening brief concerned whether punitive damages were justified given that the IRS had inadvertently violated the automatic stay. It did not concern" }, { "docid": "17928794", "title": "", "text": "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.’ ” In re Sublett, 895 F.2d at 1384 (quoting Wegner, 821 F.2d at 1320); In re Chase & Sanborn Corp., 904 F.2d 588, 593 (Bankr. 11th Cir.1990). In contrast, legal conclusions by the bankruptcy court and the district court are reviewed by this court de novo. In re Sublett, 895 F.2d at 1383; see In re Goerg, 930 F.2d at 1566; In re Chase & Sanborn Corp., 904 F.2d at 593. “While ‘this court as an appellate court gives deference to all findings of fact by the fact finder if based upon substantial evidence, [this court] free ly examines the applicable principles of law to see if they were properly applied and freely examines the evidence in support of any particular finding to see if it meets the test of substantiality.’ ” In re Thomas, 883 F.2d at 994 (quoting In re Fielder, 799 F.2d 656, 657 (Bankr. 11th Cir.1986) (per curiam)). Specifically, this court has held that a bankruptcy court’s interpretation of unambiguous contractual language is a legal determination subject to de novo review." }, { "docid": "1096898", "title": "", "text": "in attorney’s fees, and $10,000 in punitive damages. A portion of this award was used to offset Appellee’s debt to the IRS; the remainder was paid to the Chapter 13 Trustee. On May 20, 1994, the United States filed a Notice of Appeal challenging the bankruptcy court’s order. After briefing was completed, the Bankruptcy Reform Act of 1994 was passed on October 22, 1994. Appellant submitted a supplemental brief on December 1, 1994, addressing the effect of the Act on the present case. II. DISCUSSION A. Standard of Review The Court reviews this final order as an appellate tribunal, In re Cornelison, 901 F.2d 1073, 1075 (11th Cir.1990) (per curiam), and is constrained by the traditional standards of appellate review. In re Calvert, 907 F.2d 1069, 1071 (11th Cir.1990), reh’g denied, 917 F.2d 570 (1990); In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988); In re Atwood, 124 B.R. 402, 404 (S.D.Ga.1991). The bankruptcy court’s findings of fact are accepted as long as they are not clearly erroneous, but its conclusions of law are subject to de novo review. In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, Thomas v. Southtrust Bank, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). B. Sovereign Immunity Although Appellant dedicated a large portion of its initial brief to arguing the bankruptcy court erred in holding the government had waived sovereign immunity in this case, this issue was settled in the Appel-lee’s favor by the Bankruptcy Reform Act of 1994. As the Appellant concedes in its supplemental brief, the amended Act provides, generally, sovereign immunity does not bar an award of attorney’s fees and damages under 11 U.S.C. § 362(h) for a willful violation of an automatic stay, except to the extent that an attorneys’ fee award is based on a rate in excess of the $75 fee cap of 28 U.S.C. § 2412(d)(2)(A) and except to the extent that a damage award involves punitive damages. These two exceptions are discussed further below. C. Willful Violation of an Automatic Stay For a violation of an automatic stay to be “willful,” all" }, { "docid": "1191914", "title": "", "text": "by Sure-Snap from a pre-confirmation adversary proceeding upholding the validity of the Agreement? Second, did the confirmation of Sure-Snap’s Chapter 11 plan discharge Elaine Shure’s liability, as Sure-Snap’s guarantor, for Bradford’s appellate attorney fees? Background Sure-Snap, a Chapter 11 debtor, filed an action in the Bankruptcy Court for the Southern District of Florida on 21 April 1988 seeking a declaration that its indebtedness under a mortgage and security agreement held by Bradford was void under Vermont law. The bankruptcy court upheld the enforceability of the Agreement by its order of 20 June 1988. While the declaratory judgment action was pending, Sure-Snap filed its Chapter 11 plan of reorganization. The bankruptcy court confirmed Sure-Snap’s plan on 28 June 1988. Pursuant to the plan, Sure-Snap’s obligations under the Agreement were discharged in consideration of Sure-Snap’s conveyance of certain mortgaged real property to Bradford. The Post-Confirmation Appeal On 12 August 1988, Sure-Snap and Elaine Shure appealed to the United States District Court for the Southern District of Florida the final judgment of the bankruptcy court upholding the validity of the Agreement. The district court affirmed the bankruptcy court’s decision by memorandum opinion dated 15 September 1989. As the prevailing party, Bradford filed a motion to tax appellate attorney fees and costs against Sure-Snap. The district court denied Bradford’s motion on the ground that confirmation of Sure-Snap’s Chapter 11 reorganization plan had terminated the Agreement and consequently had extinguished Bradford’s contractual basis for an award of attorney fees. Standard of Review The district court held, as a matter of law, that there was no contractual or statutory basis for an award of attorney fees to Bradford. The district court’s conclusion of law is subject to complete and independent review by this court. In re Thomas, 888 F.2d 991, 994 (11th Cir.1989), cert. denied, Thomas v. Southtrust Bank, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). Sure-Snap’s Liability for Attorney Fees Federal courts apply state law when ruling on the interpretation of contractual attorney fee provisions. See American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826, reh’g denied en" }, { "docid": "14319544", "title": "", "text": "determine that HPA was not liable for taxes to EDD and to order the return of the payment. In addition, the court held that the payment was void, having been made in response to a demand without relief from the automatic stay, § 362. EDD timely appealed. ISSUES 1. In light of amended § 106, whether Congress had the Constitutional authority to abrogate EDD’s Eleventh Amendment right to sovereign immunity pursuant to the Bankruptcy Clause — Article I, Section 8, Clause 4 of the United States Constitution. 2. In the alternative, whether EDD waived its sovereign immunity by making a demand upon HPA’s escrow account. 3. Whether EDD is otherwise entitled to keep the payment by virtue of its perfected liens against SMC. STANDARD OF REVIEW The granting or denial of a sovereign immunity defense is an issue of law subject to de novo review. Seminole Tribe of Florida v. State of Florida, 11 F.3d 1016, 1021 (11th Cir.1994), cert. granted, — U.S. -, 116 S.Ct. 932, 130 L.Ed.2d 878 (1995); In re Vanguard Mfg. Co., 145 B.R. 644, 646 (9th Cir. BAP 1992). We review factual findings on jurisdictional issues for clear error. Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). Mixed questions of law and fact are reviewed de novo. In re Wade, 115 B.R. 222, 225 (9th Cir. BAP 1990), aff'd, 948 F.2d 1122 (9th Cir.1991). DISCUSSION Events Subsequent to Appeal On October 22, 1994, President Clinton signed the Bankruptcy Reform Act of 1994 that became effective immediately, and retroactively changed the prior law regarding the waiver of sovereign immunity. See 11 U.S.C. § 106; Pub.L. No. 103-394, §§ 113, 702(b)(2)(B), 108 Stat. 4117-18, 4150 (Oct. 22,1994). Section 702(b)(2)(B) provides that the amendments “shall apply with respect to cases commenced under title 11 of the United States Code before, on, and after the date of the enactment of this Act.” Thus, the provisions of new § 106 are applicable to this adversary proceeding. The effect of the amended § 106(a) was to abrogate a state’s sovereign immunity as to both" } ]

[ { "docid": "23593248", "title": "", "text": "the § 3553(a) factors leaves ample room for the court’s discretion. See United States v. Wachowiak, 496 F.3d 744, 748 (7th Cir.2007). Once the court chooses a sentence, § 3553(c) requires the district judge to “state in open court the reasons” for imposing it. The explanation need not be exhaustive as long as it “allow[s] for meaningful appellate review and :.. promote[s] the perception of fair sentencing.” United States v. Omole, 523 F.3d 691, 697 (7th Cir.2008) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). The court is free to select a sentence outside the guidelines range, see Kimbrough v. United States, 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), but it must explain and support the magnitude of the variance, United States v. Molton, 743 F.3d 479, 484 (7th Cir.2014). We review a district court’s choice of sentence in two steps. Gall, 552 U.S. at 51, 128 S.Ct. 586. First, we assess de novo whether the court followed proper procedures. United States v. Nania, 724 F.3d 824, 830 (7th Cir.2013). If the decision below is procedurally sound, then we ask whether the resulting sentence is “substantively reasonable.” Id. Unlike the sentencing judge, we may presume on appeal that a within-guidelines sentence is reasonable. Rita, 551 U.S. at 341, 127 S.Ct. 2456. But we may not presume that a sentence outside the guidelines range is unreasonable. Gall, 552 U.S. at 51, 128 S.Ct. 586. Instead, we must decide whether the district court’s justification is sufficient, applying a deferential abuse of discretion standard. Id. at 40, 128 S.Ct. 586; Molton, 743 F.3d at 484. We will not substitute our judgment for that of the district court. Wachowiak, 496 F.3d at 751. For we are mindful that substantive reasonableness occupies “a range, not a point,” id., and that “the sentencing judge is in the best position to apply the § 3553(a) factors to the individual defendant,” Omole, 523 F.3d at 698. Thus, we will uphold a variant (i.e., outside-the-guidelines) sentence so long as the district court’s reasoning (1) rests on reliable evidence, United States v. England, 555 F.3d" } ]

[ { "docid": "22744413", "title": "", "text": "to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. The first step— aimed at addressing “procedural” errors— highlights the continued importance of the Guidelines, and the Booker Court’s intention that the “continued use of the Guidelines in an advisory fashion would further the purposes of Congress in creating the sentencing system to be honest, fair, and rational.” Talley, 431 F.3d at 787. So although the Court “rejected] ... an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range ... [or] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence,” it nonetheless repeatedly emphasized that “appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Gall, 128 S.Ct. at 595. Indeed, Gall explained that a district judge must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. Id. at 597 (emphases added). Thus, not only must the district courts “consult th[e] Guidelines and take them into account when sentencing,” Booker, 543 U.S. at 264, 125 S.Ct. 738, they must properly calculate the Guidelines range and “includ[e] an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. After an appellate court has determined that “the district court’s sentencing decision is procedurally sound,” Gall directs that “the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. at 597. The Court explained: When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the" }, { "docid": "19406049", "title": "", "text": "court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission's views\"). It is true that a district judge who \"decides that an outside-Guidelines sentence is warranted\" must \"ensure that the justification is sufficiently compelling to support the degree of the variance\" and that \"a major departure should be supported by a more significant justification than a minor one.\" Gall, 552 U.S., at 50, 128 S.Ct. 586. This does not demonstrate that the Guidelines constrain the judge's discretion, but rather comports with the notion that an explanation is essential for \"meaningful appellate review.\" Ibid. And, when a district court departs from the recommended range, the court of appeals may not presume that such a sentence is unreasonable. Id., at 47, 128 S.Ct. 586; id. , at 41, 128 S.Ct. 586 (\"[C]ourts of appeals must review all sentences-whether inside, just outside, or significantly outside the Guidelines range-under a deferential abuse-of-discretion standard\"). While \"[t]he applicable guideline [may] nudg[e] [the sentencing judge] toward the sentencing range,\" \"his freedom to impose a reasonable sentence outside the range is unfettered.\" United States v. Demaree, 459 F.3d 791, 795 (C.A.7 2006). None of petitioner's arguments to the contrary is persuasive. Petitioner first contends that the Guidelines constrain district courts' discretion because improperly calculating the applicable guidelines is reversible error. Brief for Petitioner 20-21, and n. 7; 18 U.S.C. § 3742(f) ; Cf. Gall, 552 U.S., at 51, 128 S.Ct. 586. This argument is a non sequitur. The Guidelines can only serve their advisory purpose if district courts consider the \"range established\" by the Guidelines, § 3553(a)(4). For this reason, district courts must \"begin all sentencing proceedings by correctly calculating the applicable Guidelines range.\" Id., at 49, 128 S.Ct. 586. But the fact that courts must give due consideration to the recommendation expressed in the correct Guidelines does not mean that the Guidelines constrain the district court's discretion to impose an appropriate sentence; it simply means that district courts must consider the correct variables before exercising their discretion. Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside" }, { "docid": "22719240", "title": "", "text": "support the sentence requested by a party.” Id. In making this determination, the district court is prohibited from presuming that the Guidelines range is reasonable. Id. Instead, it must “make an individualized assessment based on the facts presented.” Id. If the court concludes that a sentence outside of the Guidelines range is warranted, then it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. “[A] major departure should be supported by a more significant justification than a minor one.” Id. After the district court determines the “appropriate sentence,” it must then “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id.; see also id. at 594 (stating that, in fashioning a defendant’s sentence, the district court “must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications”). “When we review the imposition of sentences, whether inside or outside the Guidelines range, we apply ‘a deferential abuse-of-discretion standard.’ ” United States v. Hayes, 518 F.3d 989, 995 (8th Cir.2008) (quoting Gall, 128 S.Ct. at 591). We “must first ensure that the district court committed no significant procedural error.” Gall, 128 S.Ct. at 597. “Procedural error” includes “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. A district court abuses its discretion when it (1) “fails to consider a relevant factor that should have received significant weight”; (2) “gives significant weight to an improper or irrelevant factor”; or (3) “considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Kane, 552 F.3d 748, 752 (8th Cir.2009) (internal quotations and citation omitted). In determining whether" }, { "docid": "23431567", "title": "", "text": "may only be reviewed for plain error.” Id. (internal quotations and citations omitted). Therefore, Townsend “must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Id. (internal quotations and citations omitted). “Even if the defendant shows these three conditions are met, we may exercise our discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations, alteration, and citations omitted). According to Townsend, the district court procedurally erred “by failing adequately to explain the chosen sentence.” See id. at 691. Gall [v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007),] sets forth the procedure to be followed in sentencing a criminal defendant. The district court should begin by correctly calculating the applicable Guidelines range. The Guidelines should be the starting point and the initial benchmark, but the Guidelines are not the only consideration. The district judge should allow both parties an opportunity to argue for whatever sentence they deem appropriate, and then should consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. Id. (internal quotations, alterations, and citations omitted). Ultimately, the district court must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. It is uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. (internal quotations, alteration, and citation omitted). In explaining its rationale for the chosen sentence and discussing the § 3553(a) factors, a district court is not required to provide a full opinion in every case, but must set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising" }, { "docid": "22757369", "title": "", "text": "that an outside-Guidelines sentence is warranted, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id. at 50, 128 S.Ct. 586 (emphasis added). Furthermore, both Gall and Rita make clear that the practical effects of applying either a departure or a variance are the same. Together, the decisions direct that any sentence, within or outside of the Guidelines range, as a result of a departure or of a variance, must be reviewed by appellate courts for reasonableness pursuant to an abuse of discretion standard. See Rita, 551 U.S. at 350, 354-55,127 S.Ct. 2456; Gall, 552 U.S. at 46, 49, 51,128 S.Ct. 586. Furthermore, either when applying a departure provision or varying from the Guidelines range, the district court must give “serious consideration to the extent” of the departure or variance, and “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 46, 50, 128 S.Ct. 586 (citation omitted). Therefore, the method by which the district court deviates from the Guidelines range does not alter (1) the review in which the courts of appeals must engage, or (2) the justification the district court must provide. We effectively acknowledged that Gall and Rita overruled any effect of the recited language from Moreland in United States v. Evans, 526 F.3d 155 (4th Cir. 2008). In Evans, the district court relied both on a variance and two departure provisions to “justif[y] its substantial upward deviation from the advisory Guidelines range.” 526 F.3d at 164. On appeal, Evans argued that “neither of these Guidelines [departure] provisions permits an upward deviation here, and therefore [this Court] must find the sentence unreasonable.” Id. However, we held that, “even if Evans is correct and the Guidelines themselves do not sanction the deviation ..., the sentence remains reasonable because it properly reflects the § 3553(a) considerations.” Id. Citing both Gall" }, { "docid": "5195878", "title": "", "text": "sentence was procedurally unreasonable because the sentencing judge failed to calculate the guideline range. Baker, 559 F.3d at 448. Specifically, he argues that the judge did not re-calculate the range after Aleo raised his objection to the sentencing enhancement regarding sexual contact. Because the district court resolved the dispute regarding sexual contact, and because the enhancement for sexual contact was properly proved by a preponderance of the evidence, the district court did properly calculate the guidelines range as 38, with criminal history category I. Aleo’s argument that the court failed to calculate the guidelines range is meritless. Therefore, Aleo’s sentence was procedurally reasonable. Substantive Reasonableness Aleo next argues that his 720-month sentence was substantively unreasonable. In deciding on a sentence, the sentencing judge must impose “a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set forth in 18 U.S.C. § 3553(a). In deciding on a defendant’s sentence, the judge should begin by considering the Sentencing Guidelines range prescribed for the defendant’s offense. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The judge should then allow the state and the defendant argue for the sentence they believe should be imposed. The judge should then consider all of the § 3553(a) factors. If the judge “decides that an outside-Guidelines sentence is warranted, [the judge] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. 586; see also United States v. Davis, 537 F.3d 611, 614 (6th Cir.), cert. denied, 555 U.S. 1080, 129 S.Ct. 752, 172 L.Ed.2d 746 (2008). The “farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) must be.” United States v. Poynter, 495 F.3d 349, 352 (6th Cir.2007) (internal quotation marks omitted). After choosing a sentence, the judge must adequately explain it to allow “meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586." }, { "docid": "10026618", "title": "", "text": "sentencing Guidelines calculation, and by considering sentencing disparity among Pepper’s co-defendants without adequate foundation and explanation.” Id. at 413. II. DISCUSSION We review all sentences, whether inside or outside the Guidelines range, under a deferential abuse of discretion standard. Gall, 128 S.Ct. at 597. Before reaching the substantive reasonableness of the sentence, we “must first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range.” Id. Although extraordinary circumstances are not required to justify a sentence outside the Guidelines range, “a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. at 594, 128 S.Ct. 586. If [the district court] decides that an outside-Guidelines sentence is warranted, [the district court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance .... [A] major departure should be supported by a more significant justification than a minor one. [T]he [appellate] court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Id. at 597, 128 S.Ct. 586. An abuse of discretion may occur when a court “gives significant weight to an improper or irrelevant factor.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005). See Gall, 128 S.Ct. at 597. These rules guide our analysis. The district court erred because, to the extent the district court explained Pepper’s sentence at all, the district court predominantly considered improper factors. Put another way, the district court committed procedural error in failing adequately to explain with sufficient justifications the court’s conclusion that a 59% variance after the § 5K1.1 downward departure was warranted in this case. First, the district court considered Pepper had “no history of violence.” Although the district court attempted to distinguish Pepper’s lack of a violent history from Pepper’s" }, { "docid": "20457896", "title": "", "text": "Gall, and Carty, we conclude that such a sentence would be procedurally flawed. We will now probe the parameters of what constitutes a procedurally “sufficient” or “adequate” explanation by a district court in imposing a sentence in a complex or complicated case where the sentence deviates significantly below the advisory Sentencing Guidelines range. a It is now well established that the district court must begin a sentencing hearing “by determining the applicable Guidelines range.” Carty, 520 F.3d at 991. The Guidelines “range must be calculated correctly,” as the Sentencing Guidelines are “the starting point and the initial benchmark.” Id. (quotations and citations omitted). “[F]ailing to calculate (or improperly calculating) the Guidelines range” constitutes “significant procedural error.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Recognizing that “a Guidelines sentence ‘will usually be reasonable,’ ” we declined in Carty “to embrace a presumption.” 520 F.3d at 994 (quoting Rita, 127 S.Ct. at 2465). However, we held that when a sentencing “judge’ decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’ ” Carty, 520 F.3d at 991 (quoting Gall, 128 S.Ct. at 597). As the Court explained in Gall, it is “uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50, 128 S.Ct. 586. This is because “[w]hen a sentence is within the Guidelines range, we know that ‘both the sentencing judge and the Sentencing Commission ... have reached the same conclusion’ that the sentence is ‘proper.’” Carty 520 F.3d at 996 (Kozinski, C.J., concurring) (emphasis in original) (quoting Rita, 127 S.Ct. at 2463). Thus, once the correct Guidelines range has been established, “[t]he district court may not presume that the Guidelines range is reasonable.” Carty, 520 F.3d at 991. Rather, “[t]he district court must make an individualized determination based on the facts.” Id. at 991. In reaching its sentence decision, the “district courts must ... remain cognizant of [the Guidelines] throughout the sentencing process.” Gall, 552 U.S. at" }, { "docid": "22241807", "title": "", "text": "downward variance to reach Zone B and a seven-level downward variance to reach Zone A. Morace’s probation sentence for possessing 159 images (involving prepubescent minors who appear to be under age 12) by means of a computer is thus significantly below the advisory range for a less severe offense. II Since the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing guidelines have been advisory, and our review of criminal sentences “is limited to determining whether they are ‘reasonable.’ ” Gall, 552 U.S. at 46, 128 S.Ct. 586. We must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. at 51, 128 S.Ct. 586. If we find no significant procedural error, we must “then con sider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In doing so, we must “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Where, as here, the district court decides that a sentence outside the advisory range is appropriate, it “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 50. A major departure from the advisory range “should be supported by a more significant justification than a minor one.” Id. After choosing a sentence it deems appropriate, the court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. In our review of a sentence that is outside the advisory range, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent" }, { "docid": "22147501", "title": "", "text": "U.S.C.A. § 3553(a) (West 2000 & Supp.2009). See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008). Sentencing courts are statutorily required to state their reasons for imposing sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009). Although a comprehensive, detailed opinion is not necessarily required, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts have “sizeable discretion” when sentencing, Abu Ali 528 F.3d at 266, and appellate review is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 40-41, 128 S.Ct. 586. An appellate court’s reasonableness review has procedural and substantive components. The procedural component requires us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. The substantive component of reasonableness review requires us to “take into account the totality of the circumstances.” Id. While we may consider the extent of any variance from the advisory Guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. Given the institutional advantages of district courts with regard to sentencing matters, see United States v. Evans, 526 F.3d 155, 166 (4th Cir.), cert. denied, — U.S.-, 129 S.Ct." }, { "docid": "1333474", "title": "", "text": "outside the Guidelines range was reasonable. After considering the § 3553(a) factors and her rehabilitation, the district court sentenced Burton to three years of probation. II. Discussion “[A]ppellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall v. United States, — U.S.-, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007) (quoting United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). The reasonableness of the sentence is reviewed under a deferential abuse-of-discretion standard. Id. at 591. “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Id. at 594-95. The district court must “ensure that the justification is sufficiently compelling to support the degree of the variance” and “adequately explain the chosen sentence to allow for meaningful appellate review.” Id. at 597. We “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. “[T]he Guidelines ... serve as one factor among several courts must consider in determining an appropriate sentence.” Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007). If the decision was “procedurally sound,” we then review the “substantive reasonableness of the sentence” under the abuse-of-discretion standard considering the totality of the circumstances. Gall, 128 S.Ct. at 597. The district court “may determine ... that, in the particular case, a within — Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.” Kimbrough, 128 S.Ct. at 564 (quoting 18 U.S.C. § 3553(a)). We “give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S.Ct. at 597. A. 'Shy’s Sentence The district court properly" }, { "docid": "14117504", "title": "", "text": "continue “to consider every convicted person as an individual,” Gall, 128 S.Ct. at 598. Both the Sentencing Act and the relevant precedent spell out what a district judge must do. The judge “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Id. at 596. Next, after hearing argument from the parties, the judge should consider “all of the § 3553(a) factors to determine whether they support the sentence requested by a party,” and “make an individualized assessment based on the facts presented.” Gall, 128 S.Ct. at 596-97; see also 18 U.S.C. § 3553(a); § 3583(e)(3) (citing particular § 3553(a) factors as relevant for a decision to revoke supervised release). If the court decides to impose a sentence outside the Guidelines, it “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 128 S.Ct. at 597. In particular, “a major departure should be supported by a more significant justification than a minor one.” Id. Finally, the judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. The degree of explanation required depends on the circumstances. At a minimum, a sentencing judge must “state in open court the reasons for [his] imposition of the particular sentence.” 18 U.S.C. § 3553(c). If the sentence departs from the relevant guideline or policy statement, the reasons “must also be stated with specificity in the written order of judgment and commitment.” § 3553(c)(2). Enforcing these procedural requirements is a major component of abuse of discretion review. See Gall, 128 S.Ct. at 597. Before even considering the substantive aspects of a sentence, we “must first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence.” Id. Although a district judge need not consider every § 3553(a) factor in every case, and we generally presume the judge “knew and applied the law correctly,” United States v. Godines, 433 F.3d 68, 70 (D.C.Cir.2006) (per curiam), certain minimal requirements are indispensable. When" }, { "docid": "22746883", "title": "", "text": "furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant “an opportunity to argue for whatever sentence they deem appropriate.” Gall, 128 S.Ct. at 596-97. The sentencing court should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 128 S.Ct. at 569 (noting that, while § 3553(a) requires the sentencing court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 128 S.Ct. at 596. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. As noted by the Gall Court, it is an “uncontroversial” proposition that a “major departure should be supported by a more significant justification than a minor one.” Id. Our appellate review of the reasonableness of a sentence focuses on whether the sentencing court abused its discretion in imposing the chosen sentence. Id. This abuse of discretion standard of review involves two steps, the first examines the sentence for significant procedural errors, the second looks at the substance of the sentence. The Court in Gall explained that “significant” procedural errors include errors such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. Substantive reasonableness review entails taking into account the “totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. If the sentence is within the Guidelines range, we, as an appellate" }, { "docid": "19611528", "title": "", "text": "relevant Supreme Court pronouncements during this era. Since Booker , the Supreme Court has clarified the role that the advisory Guidelines play in sentencing procedures. \"First, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark. The district court must then consider the arguments of the parties and the factors set forth in § 3553(a).\" Peugh v.United States , 569 U.S. 530, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013) (citation omitted) (internal quotation marks omitted). When determining a sentence, the court \"must make an individualized assessment based on the facts presented. If [it] decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.\" Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Finally, \"[a]fter settling on the appropriate sentence, [the court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.\" Id. Some examples of significant procedural error are failure to calculate correctly the guidelines range, to consider the § 3553(a) factors, or to explain adequately the chosen sentence. Id. at 51, 128 S.Ct. 586. Although courts must correctly calculate the applicable guidelines range before considering the pertinent § 3553(a) factors, the Guidelines are otherwise advisory and cannot mandate a strict decision-making sequence. As we said in United States v. Brown , \"the district court's obligation is simply to calculate the guidelines range correctly and arrive at a reasonable sentence after weighing the sentencing factors in § 3553(a), varying upward or downward from the guidelines range in its discretion.\" 732 F.3d 781, 786 (7th Cir. 2013). Accordingly, we have held that the calculation of traditional \"departures\" is no longer required. See United States v. Maxfield , 812 F.3d 1127, 1129-30 (7th Cir. 2016) ; Brown , 732 F.3d at 786. Nevertheless, we have emphasized that \"district courts can still take guidance from the departure provisions ..." }, { "docid": "22757368", "title": "", "text": "range, and ultimately requires only that a district court “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision-making authority.” Id. at 356, 127 S.Ct. 2456. In Gall, the Supreme Court delineated in more detail the proper procedure for a district court to follow in sentencing, again stressing the deference owed to district courts’ sentencing decisions. See, e.g., 552 U.S. at 51-52, 56, 128 S.Ct. 586. Of course, “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Id. at 49, 128 S.Ct. 586. However, “[t]he Guidelines are not the only consideration .... Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Id. at 49-50, 128 S.Ct. 586. The Gall Court used the terms “variance” and “departure” interchangeably, directing that, if the district court “decides that an outside-Guidelines sentence is warranted, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id. at 50, 128 S.Ct. 586 (emphasis added). Furthermore, both Gall and Rita make clear that the practical effects of applying either a departure or a variance are the same. Together, the decisions direct that any sentence, within or outside of the Guidelines range, as a result of a departure or of a variance, must be reviewed by appellate courts for reasonableness pursuant to an abuse of discretion standard. See Rita, 551 U.S. at 350, 354-55,127 S.Ct. 2456; Gall, 552 U.S. at 46, 49, 51,128 S.Ct. 586. Furthermore, either when applying a departure provision or varying from the Guidelines range, the district court must give “serious consideration to the extent” of the departure or variance, and “must adequately explain the chosen sentence to allow for" }, { "docid": "22695216", "title": "", "text": "the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. at 596-97 (internal citations omitted). The Supreme Court’s opinion in Gall reemphasizes the post-Booker sentencing structure set forth in this Court’s precedent. See, e.g., United States v. Ali, 508 F.3d 136, 142, 153-54 (3d Cir.2007) (district court must first calculate the applicable Guidelines range “precisely as [it] would have before Booker,’’ then “give meaningful consideration to the relevant § 3553(a) factors and state adequate reasons for a sentence on the record so that this court can engage in meaningful appellate review” (internal quotation marks and citations omitted)); United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (same); United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.2006) (same). In essence, the district court must perform three steps in determining the appropriate sentence to impose on a defendant. As Gall makes clear, a district court must begin the process by correctly calculating the applicable Guidelines range. 128 S.Ct. at 596; see also Gunter, 462 F.3d at 247. As part of calculating the applicable range, this Court’s precedent instructs district courts to conduct a second step, which is to “formally rule on the motions of both parties and state on the record whether [it is] granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.” Gunter, 462 F.3d at 247 (internal quotation marks and citation omitted)." }, { "docid": "22695215", "title": "", "text": "268, 271 (3d Cir.2003), and we will continue that practice here. B. Challenges to the Sentences Brown and Wise next challenge, on a number of grounds, the sentences imposed upon them. We reject their arguments and affirm the District Court’s judgments of sentence. 1. Post-Booker Sentencing In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the Sentencing Guidelines are advisory only. Recently, in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court reiterated the process a district court must undertake after Booker to determine the appropriate sentence for a defendant: [A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. at 596-97 (internal citations omitted). The Supreme Court’s opinion in Gall reemphasizes the post-Booker sentencing structure set forth in this Court’s precedent. See, e.g., United States v. Ali, 508 F.3d 136, 142, 153-54 (3d Cir.2007) (district court must first calculate the applicable Guidelines range “precisely as [it] would have before Booker,’’ then “give meaningful consideration to" }, { "docid": "22755134", "title": "", "text": "the applicable Guidelines range” or “explaining [the] decision to [stay within or] deviate from that range” is insufficient. United States v. Cousins, 469 F.3d 572, 577 (6th Cir.2006). The district court must provide a clear explanation of why it has either accepted or rejected the parties’ arguments and thereby chosen the particular sentence imposed, regardless of whether it is within or outside of the Guidelines. See Gall, 128 S.Ct. 586, 2007 WL 4292116, at *7. If the district judge decides to depart from the advisory Guidelines range, “he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 2007 WL 4292116, at *7. In general, “a major departure should be supported by a more significant justification than a minor one.” Id. However, we do not, and indeed after Gall cannot, “require ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Id. at *6. Likewise, we no longer apply a form of proportionality review to outside-Guidelines sentences, which would require the strength of the justification for a departure to vary in proportion to the amount of deviation from the Guidelines, and find our prior cases applying this rule, see, e.g., United States v. Davis, 458 F.3d 491, 496 (6th Cir.2006), to have been effectively overturned by Gall. See Gall, 128 S.Ct. 586, 2007 WL 4292116, at *6. To summarize, in reviewing sentences for procedural reasonableness we must ensure that the district court: (1) properly calculated the applicable advisory Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range. 2. Substantive Reasonableness Review After we have found the district court’s sentencing decision to be procedurally sound, we must “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 128 S.Ct. 586, 2007 WL 4292116, at *7. In reviewing for" }, { "docid": "5195879", "title": "", "text": "U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The judge should then allow the state and the defendant argue for the sentence they believe should be imposed. The judge should then consider all of the § 3553(a) factors. If the judge “decides that an outside-Guidelines sentence is warranted, [the judge] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. 586; see also United States v. Davis, 537 F.3d 611, 614 (6th Cir.), cert. denied, 555 U.S. 1080, 129 S.Ct. 752, 172 L.Ed.2d 746 (2008). The “farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) must be.” United States v. Poynter, 495 F.3d 349, 352 (6th Cir.2007) (internal quotation marks omitted). After choosing a sentence, the judge must adequately explain it to allow “meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586. We review the sentence imposed for an abuse of discretion. Id. at 51, 128 S.Ct. 586. When a sentence is outside the guidelines range, the appellate court “may not apply a presumption of unreasonableness.” Ibid. Instead, the reviewing court must give “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Ibid. We must respect the fact that the sentencing court observed the defendant and the witnesses firsthand, and that the sentencing court has a wide variety of sentencing cases to compare each case to, unlike an appellate court. Our role is not to usurp the sentencing judge’s position as the best interpreter of the facts. However, we must ensure that when there is a variance, the greater the variance from the range set by the Sentencing Guidelines, the “more compelling the justification based on the factors in § 3553(a)” was. See Poynter, 495 F.3d at 352; 18 U.S.C. § 3553(a)(6). The district judge sentenced Aleo to 720 months of imprisonment, which is almost" }, { "docid": "22655554", "title": "", "text": "the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. See id., at 351. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id., at 356-358. Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. Id., at 347. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider" } ]

[ { "docid": "5642088", "title": "", "text": "for disposal of low-level radioactive waste generated in Michigan prior to January 1, 1993. A court has personal jurisdiction over a defendant if the defendant is amenable to service of process under the state's long-arm statute, Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104-05, 108 S.Ct. 404, 409-10, 98 L.Ed.2d 415 (1987), and if the exercise of personal jurisdiction would not deny the defendants due process, Southern Machine, 401 F.2d at 376. Under Michigan’s long-arm statute, the state’s jurisdiction extends to the limits imposed by federal constitutional due process requirements and thus, the two questions become one. Chandler v. Barclays Bank PLC, 898 F.2d 1148, 1150-51 (6th Cir.1990). The Supreme Court stated that a fundamental test in personal jurisdiction is whether “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court [in the forum state].” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). In Southern Machine, we announced the three-part test to determine whether the exercise of personal jurisdiction is consistent with the requirements of due process: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Machine, 401 F.2d at 381. In applying the three-part test to the defendants, the district court relied heavily upon the consequential nature of the defendant’s activities as they affected the state of Michigan: It is hard to conceive of any action more purposefully directed toward the forum state than that allegedly taken by the defendants. Plaintiff’s cause of action arises from defendants’ refusal to allow Michigan waste generators to use the disposal facilities in their states. Plaintiff has presented evidence that defendants, acting in concert, sent letters to Michigan’s" } ]

[ { "docid": "16416119", "title": "", "text": "offer of rescission and fraudulently prepared financial papers are also subject to the long-arm jurisdiction of a federal court in Michigan. A more detailed explanation follows in Part IY. II. A. The question of jurisdiction is to be decided by Michigan law under Fed.R.Civ.P. 4(e). Any decision on whether to exercise personal jurisdiction over a particular defendant depends on the facts of the situation. Woods v. Edgewater Amusement Park, 381 Mich. 559, 569, 165 N.W.2d 12 (1969). The burden of establishing jurisdiction is on plaintiffs. When the issue is determined solely on the basis of written materials, they need only demonstrate a prima facie case, and the pleadings and affidavits must be considered in the light most favorable to the party asserting the existence of jurisdiction. Welsh v. Gibbs, 631 F.2d 436 (6th Cir.1980); K-Mart Corp. v. Knitjoy Mfg., Inc., 542 F.Supp. 1189, 1191 (E.D.Mich.1982). B. The Court must resolve two issues: first, whether a defendant’s acts created a relationship in Michigan within the meaning of its long-arm statute, and second, whether the exercise of limited personal jurisdiction over the defendant is compatible with due process. Khalaf v. Bankers & Shippers Ins. Co., 404 Mich. 134, 142, 273 N.W.2d 811 (1978). Michigan has interpreted its long-arm statute as being the broadest grant of jurisdiction consistent with the constitutional requirements of due process. Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971); Microelectronic Systems Corp. of America v. Bamberger’s, 434 F.Supp. 168, 170 (E.D.Mich.1977). Determining the outer limits of personal jurisdiction permitted by the due process clause is a federal question. Bamberger’s, 434 F.Supp. at 171. C. As to due process, the Court must consider whether a defendant purposefully established such “minimum contacts” with Michigan that maintenance of the action “does not offend traditional notions of fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The substantial connection necessary for a finding of minimum contacts must come about by the" }, { "docid": "22817056", "title": "", "text": "(footnote omitted, emphasis in original). However, three considerations weigh against applying this view of co-extensiveness in all instances. First, close examination of Sifers reveals that this statement attached only to limited personal jurisdiction premised upon the non-resident defendant’s transaction of business within the state. Id. 188 N.W.2d at 624-25. As will be discussed, the conduct of business in the state is only one of several “relationships” identified in Michigan law that can give rise to limited personal jurisdiction. Sifers did not address the other bases for jurisdiction. Second, Appellee Matthews has directed our attention to a recent decision by the Michigan Supreme Court that appears to qualify the widely held view that the long arm is co-extensive with due process, emphasizing that the decision in Sifers “rested upon the ‘exercise [of] jurisdiction to the extent indicated in the statute....’ [Sifers v. Horen, 385 Mich. 195, 198, 188 N.W.2d 623 (1971)] (Emphasis supplied.)” Witbeck v. Bill Cody’s Ranch Inn, 428 Mich. 659, 666 n. 3, 411 N.W.2d 439, 443 n. 3 (1987) (emphasis in original). In Witbeck, the Michigan court decided the jurisdictional issue on due process grounds making a discussion of the long arm unnecessary; nevertheless, this statement suggests that an independent consideration of the long arm would be necessary where due process had been satisfied. Finally, other Michigan cases suggest that the scope of long arm limited personal jurisdiction is somewhat more restricted when the action is premised on grounds other than the transaction of business, particularly in tort claims for personal injury. See LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298 n. 4 (6th Cir.1989); Rann v. McInnis, 789 F.2d 374, 377 (6th Cir.1986) (citing Woodward v. Keenan, 88 Mich.App. 791, 279 N.W.2d 317 (1979)); see also Clavenna v. Holsey, 81 Mich.App. 472, 265 N.W.2d 378, 380 (1978). The case before us presents a personal injury action rooted in alleged business transactions between the non-resident defendant and firms in Michigan. The facts thus present a potential conflict between the competing policies governing the exercise of limited personal jurisdiction in cases based on tort theories and those" }, { "docid": "3477604", "title": "", "text": "623 (Mich.1971). The determination of whether jurisdiction attaches under the Michigan long-arm statute thus requires a two-step analysis: First, whether the exercise of limited personal jurisdiction violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. If not, then whether the rules of statutory construction support such an exercise of jurisdiction over defendants. Walter v. M. Walter & Co., Inc., 179 Mich. App. 409, 412, 446 N.W.2d 507 (Mich.Ct. App.1989) (citations omitted) (per curiam). Under Michigan’s long-arm statute, the state’s jurisdiction extends to the limits imposed by federal constitutional Due Process requirements, and thus, the two questions become one. See Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992) (citation omitted); Green v. Wilson, 455 Mich. 342, 349-50, 565 N.W.2d 813 (Mich.1997). In order to comply with the Due Process Clause, the plaintiff must establish that significant minimum contacts exist sufficient to satisfy “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citation omitted). Drawing on the teachings of International Shoe, the Sixth Circuit has set forth three criteria that must be met before a court will exercise personal jurisdiction: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 150 (6th Cir.1997) (quoting Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968)). Accord, Rainsberger, 174 Mich.App. at 663, 436 N.W.2d 412 (citations omitted). A showing of the first criterion — that the defendant purposefully availed itself of the privilege of transacting business in the forum state or causing a consequence in the forum state—is essential. See LAK, Inc. v. Deer Creek Enter., 885" }, { "docid": "16831135", "title": "", "text": "to [Rule 12(b)(2) ] without conducting an evidentiary hearing, the court must consider the pleadings and affidavits in a light most favorable to the [nonmoving party — here, plaintiffs].” CompuServe, 89 F.3d at 1262. “To defeat such a motion, [plaintiffs] need only make a prima facie showing of jurisdiction.” Id. In deciding a motion under Rule 12(b)(2), this court “will construe the facts in the light most favorable to the nonmoving party.” Neogen Corp., 282 F.3d at 887. III. “A federal court’s exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the Fourteenth Amendment.” Id. at 888 (citing Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994)). We address each part of this test in turn. IV. Michigan’s long-arm statute, Mich. Comp. Laws § 600.715, provides limited personal jurisdiction over a nonresident corporation for claims “arising out of the act or acts which create any of the following relationships,” including “[t]he transaction of any business within the state.” The Michigan Legislature’s “use of the word ‘any’ to define the amount of business that must be transacted establishes that even the slightest transaction is sufficient to bring a corporation within Michigan’s long-arm jurisdiction.” Oberlies v. Searchmont Resort, Inc., 246 Mich.App. 424, 633 N.W.2d 408, 413 (2001); see also Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679 (6th Cir.2012). Wataniya’s contacts with Michigan satisfy Michigan’s long-arm statute. Defendants do not dispute that Wataniya, acting through its agent, Jordan, travelled to Michigan for the purpose of recruiting Beydoun to be its CEO. This single act is sufficient to satisfy Michigan’s long-arm statute under the broad “slightest transaction” test described above. However, even assuming, arguendo, that Wataniya’s recruitment of Beydoun in Michigan was not enough on its own, Wataniya subsequently made over ten business trips to Michigan and made numerous purchases of equipment from Michigan companies. These contacts certainly satisfy the “slightest transaction” test above. Accordingly, Michigan’s long-arm statute is satisfied as to" }, { "docid": "23192965", "title": "", "text": "the district court did not conduct an evidentiary hearing on the issue of personal jurisdiction in considering NGS’s motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, Neogen “need only make a prima facie showing of jurisdiction.” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). Neogen can meet this burden by “establishing with reasonable particularity sufficient contacts between [NGS] and the forum state to support jurisdiction.” Provident Nat’l Bank v. California Fed. Savings Loan Ass’n, 819 F.2d 434, 437 (3d Cir.1987). Under these circumstances, this court will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir.1989), and will construe the facts in the light most favorable to the nonmoving party in reviewing a dismissal pursuant to Rule 12(b)(2). Id. C. The district court erred in concluding that Neogen failed to present a prima facie case of personal jurisdiction over NGS 1 .Standard of review We review de novo a dismissal for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Nationwide Mut’l Ins. Co., 91 F.3d at 793. A federal court’s exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the Fourteenth Amendment. Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994). 2. Neogen has presented a prima facie case that Michigan’s “long-arm” statute authorizes limited personal jurisdiction over NGS Michigan’s “long-arm” statute extends “limited” jurisdiction over nonresident corporations pursuant to Mich. Comp. Laws § 600.715, and “general” jurisdiction pursuant to Mich. Comp. Laws § 600.711. Limited jurisdiction extends only to claims arising from the defendant’s activities that were either within Michigan or had an instate effect. Third Nat’l Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989). General jurisdiction, on the other hand, enables a court in Michigan to exercise jurisdiction over a corporation" }, { "docid": "22817059", "title": "", "text": "for services to be rendered or for materials to be furnished in the state by the defendant. ... Mich.Comp.Laws Ann. § 600.705(1), (5) (West 1981). The facts Theunissen alleged in his affidavits clearly satisfy each of these provisions. Our conclusion that due process has been satisfied leads us to conclude that Theunissen has also met his burden under section 600.705(1). See Sifers v. Horen, 385 Mich. 195, 195, 188 N.W.2d 623, 623 (1971). Furthermore, we believe cases construing this statute provide an independent basis for this holding. In construing identical language in a companion long arm statute applicable to non-resident corporations, the Michigan Supreme Court stated that “[t]he word ‘any’ means just what it says. It includes ‘each’ and ‘every’.... It comprehends the ‘slightest’.” Lanier v. Am. Board of Endodontics, 843 F.2d 901, 905-06 (6th Cir.) (quoting Sifers, 385 Mich. at 199 n. 2, 188 N.W.2d 623 (1971)), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). This construction applies with equal force to section 705. Hertzberg & Noveck v. Spoon, 681 F.2d 474, 478 (6th Cir.1982). We believe this broad construction would extend the long arm to base jurisdiction on Matthews’ shipment contract with Direct Transit alleged in Appellant’s own affidavit. Cf. Lanier, 843 F.2d at 905-06. In Lanier, we held that the non-resident defendant, an Illinois-based dental specialty organization, was subject to limited personal jurisdiction under the Michigan long arm although its only contacts with the state were its act of sending the plaintiff (at plaintiff’s request) an application for certification by the Board and occasional correspondence and telephone calls concerning the status of the plaintiff’s application. Id. at 905. Stating that the statute was satisfied “if defendant conducted even the slightest act of business in Michigan,” id., we emphasized that “the Board’s contacts with Dr. Lanier in Michigan were for purposes of establishing a business relationship[.]” Id. Thus, we concluded the contacts constituted the transaction of some business which provided the necessary predicate for limited jurisdiction where the cause of action, a sex discrimination claim, arose out of the business transacted. Id. at 908." }, { "docid": "16831134", "title": "", "text": "personal jurisdiction over all defendants because they “[had] transacted business within the State of Michigan, and [their] agents ... caused consequences to occur in the state of Michigan, which actions and consequences have resulted in this action for tort.” Defendants moved to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure on the basis that the court lacked personal jurisdiction over them. The district court agreed and dismissed plaintiffs’ claims. Plaintiffs timely appealed. II. We review de novo a motion to dismiss under Rule 12(b)(2). Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002). The party seeking to establish the existence of personal jurisdiction bears the burden to establish such jurisdiction, CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir.1996), “over each defendant independently.” Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 904 (6th Cir.2006) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). When, as here, “a district court rules on a jurisdictional motion to dismiss made pursuant to [Rule 12(b)(2) ] without conducting an evidentiary hearing, the court must consider the pleadings and affidavits in a light most favorable to the [nonmoving party — here, plaintiffs].” CompuServe, 89 F.3d at 1262. “To defeat such a motion, [plaintiffs] need only make a prima facie showing of jurisdiction.” Id. In deciding a motion under Rule 12(b)(2), this court “will construe the facts in the light most favorable to the nonmoving party.” Neogen Corp., 282 F.3d at 887. III. “A federal court’s exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the Fourteenth Amendment.” Id. at 888 (citing Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994)). We address each part of this test in turn. IV. Michigan’s long-arm statute, Mich. Comp. Laws § 600.715, provides limited personal jurisdiction over a nonresident corporation for claims “arising out of the act or acts which create any of" }, { "docid": "17000378", "title": "", "text": "with the forum. Lanier v. American Bd. of Endodontics, 843 F.2d 901, 909 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). Further, “the transaction of any business ... includes ‘each’ and ‘every’ ... [i]t comprehends the slightest.” Serras, 875 F.2d at 1217 (quoting Sifers v. Horen, 385 Mich. 195, 199 n. 2, 188 N.W.2d 623, 624 n. 2 (1971)). Even though the language of the long arm statute has been interpreted broadly, the application of statute is limited by constitutional concerns of due process under the Fourteenth Amendment. Onderik, 897 F.2d at 208; Theunissen, 935 F.2d at 1459. To exercise personal jurisdiction over a defendant, the defendant must have had minimum contacts with the forum state so that the exercise of jurisdiction would comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In determining whether a nonresident defendant has had sufficient contacts to support personal jurisdiction, three criteria apply: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968). 1. Minimum Contacts Under the majority view, for the purpose of determining limited personal jurisdiction, minimum contacts are measured at the time that the underlying acts took place. Nielsen v. Sioux Tools, Inc., 870 F.Supp. 435, 440 (D.Conn.1994). Thus, it follows that personal jurisdiction cannot be defeated by leaving the state where the underlying acts took place. Steel v. United States, 813 F.2d 1545, 1549 (9th Cir.1987). The first factor, purposeful availment of the privilege of acting in the forum or causing a consequence in the forum, often is contested when a defendant’s contacts with the" }, { "docid": "22108800", "title": "", "text": "must reconsider the scope of our jurisdictional reach. To determine whether personal jurisdiction exists over a defendant, federal c~urts apply the law of the forum state, subject to the limits of the Due Process Clause of the Fourteenth Amendment. Reynolds, 23 F.3d at 1115. \"[T]he defendant must be amenable to suit under the forum state's long-arm statute and the due process requirements of the Constitution must be met.\" Id. (citing In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir.1972)). The Ohio long-arm statute allows an Ohio court to exercise personal jurisdiction over noiiresidents of Ohio on claims arising from, inter alia, the nonresident's transacting any business in Ohio. Ohio Rev. Code Ann. § 2307.382(A) (Anderson 1995). It is settled Ohio law, moreover, that the \"transacting business\" clause of that statute was meant to extend to the federal constitutional limits of due process, and that as a result Ohio personal jurisdiction cases require an examination of those limits. Reynolds, 23 F.3d at 1116 (quoting Creech v. Roberts, 908 F.2d 75, 79 (6th Cir.1990), cert. denied, 499 U.S. 975, 111 S.Ct. 1619, 113 L.Ed.2d 717 (1991)); R.L. Lipton Distrib. Co. v. Dribeck Importers, Inc., 811 F.2d 967, 969 (6th Cir.1987). Further, personal jurisdiction may be either general or specific in nature, depending on the nature of the contacts in a given ease. E.g., Reynolds, 23 F.3d at 1116 (citing Third Nat’l Bank v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989), cert. denied, 493 U.S. 1058, 110 S.Ct. 870, 107 L.Ed.2d 953 (1990)). In the instant case, because CompuServe bases its action on Patterson’s act of sending his computer software to Ohio for sale on its service, CompuServe seeks to establish such specific personal jurisdiction over Patterson. Id. As always in this context, the crucial federal constitutional inquiry is whether, given the facts of the case, the nonresident defendant has sufficient contacts with the forum state that the district court’s exercise of jurisdiction would comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154," }, { "docid": "23192966", "title": "", "text": "dismissal for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Nationwide Mut’l Ins. Co., 91 F.3d at 793. A federal court’s exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the Fourteenth Amendment. Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994). 2. Neogen has presented a prima facie case that Michigan’s “long-arm” statute authorizes limited personal jurisdiction over NGS Michigan’s “long-arm” statute extends “limited” jurisdiction over nonresident corporations pursuant to Mich. Comp. Laws § 600.715, and “general” jurisdiction pursuant to Mich. Comp. Laws § 600.711. Limited jurisdiction extends only to claims arising from the defendant’s activities that were either within Michigan or had an instate effect. Third Nat’l Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989). General jurisdiction, on the other hand, enables a court in Michigan to exercise jurisdiction over a corporation regardless of whether the claim at issue is related to its activities in the state or has an in-state effect. Id. Mich. Comp. Laws § 600.715 extends limited personal jurisdiction over a nonresident corporation in claims “arising out of the act or acts which create any of the following relationships,” including: “[t]he transaction of any business within the state” under § 600.715(1), “[t]he doing or causing of any act to be done, or consequences to occur, in the state resulting in an action for tort” under § 600.715(2), and the “[ejntering into a contract for services to be performed or for materials to be furnished in the state by the defendant” under § 600.715(5). The “transaction of any business” necessary for limited personal jurisdiction under § 600.715(1) is established by “the slightest act of business in Michigan.” Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 906 (6th Cir.1988) (citing Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624 n. 2 (1971)). Neogen has presented a prima facie case that NGS transacted business in" }, { "docid": "3477602", "title": "", "text": "summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant (A) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located.... Fed.R.Civ.P. 4(k)(1)(A). Accord, Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201 (7th Cir.1997). Therefore, in the present action, the Court is limited in its exercise of personal jurisdiction by constitutional principles of Due Process and the specific requirements of-Michigan’s long-arm statute. Personal jurisdiction can be invoked either via general jurisdiction, where the defendant has “continuous and systematic” contact with the forum state, see Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-47, 72 S.Ct. 413, 96 L.Ed. 485 (1952), or via limited jurisdiction, where the subject matter of the lawsuit is related to the defendant’s contacts with the forum state. See Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). In Michigan, courts have general jurisdiction over a corporation when it incorporates under Michigan laws, consents to be sued in Michigan, or carries on a “continuous and systematic part of its general business within the state.” Mich. Comp.Laws § 600.711. Although Justballs maintains that it does not have the substantial contacts with Michigan required for general jurisdiction and Sports Authority would disagree with this point, both parties opt to focus solely on whether Sports Authority can establish grounds for asserting limited jurisdiction. As Michigan courts have repeatedly stressed, “[f]or limited personal jurisdiction to attach, the cause of action must arise from the circumstances creat> ing the jurisdictional relationship between the defendant and the foreign state.” Rainsberger v. McFadden, 174 Mich.App. 660, 662, 436 N.W.2d 412 (Mich.Ct.App. 1989) (citation omitted). A corporation is subject to the limited jurisdiction of the courts of Michigan if any of five designated relationships exist between the corporation and the state. See Mich.Comp.Laws § 600.715. The Michigan Supreme Court has construed Michigan’s long-arm statute to bestow the broadest possible grant of personal jurisdiction consistent with due process. See Sifers v. Horen, 385 Mich. 195, 198-99, 188 N.W.2d" }, { "docid": "17000377", "title": "", "text": "light most favorable to the plaintiff.” Theunissen, 935 F.2d at 1459. In a federal question case, when a plaintiff files suit under a federal law which does not provide for service of process, service on a nonresident defendant is governed by the long arm statute of the state in which the federal district court sits. Onderik v. Morgan, 897 F.2d 204, 208 (6th Cir.1989); L.H. Carbide Corp. v. The Piece Maker Co., 852 F.Supp. 1425, 1431 (N.D.Ind.1994). Thus, the Michigan long arm statute applies. The Michigan long arm statute provides for limited personal jurisdiction over individuals and corporations if the action arises out of the transaction of “any business” within the state or the “doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.” Mich.Comp.Laws Ann. § 600.705 (individuals) & 600.715 (corporations). The long arm statute is broadly construed. The “arising out of’ requirement is satisfied if the cause of action was “made possible by” or “lies in the wake of’ the defendant’s contact with the forum. Lanier v. American Bd. of Endodontics, 843 F.2d 901, 909 (6th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). Further, “the transaction of any business ... includes ‘each’ and ‘every’ ... [i]t comprehends the slightest.” Serras, 875 F.2d at 1217 (quoting Sifers v. Horen, 385 Mich. 195, 199 n. 2, 188 N.W.2d 623, 624 n. 2 (1971)). Even though the language of the long arm statute has been interpreted broadly, the application of statute is limited by constitutional concerns of due process under the Fourteenth Amendment. Onderik, 897 F.2d at 208; Theunissen, 935 F.2d at 1459. To exercise personal jurisdiction over a defendant, the defendant must have had minimum contacts with the forum state so that the exercise of jurisdiction would comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In determining whether a nonresident defendant has had sufficient contacts to support personal jurisdiction, three criteria apply: First, the" }, { "docid": "23192967", "title": "", "text": "regardless of whether the claim at issue is related to its activities in the state or has an in-state effect. Id. Mich. Comp. Laws § 600.715 extends limited personal jurisdiction over a nonresident corporation in claims “arising out of the act or acts which create any of the following relationships,” including: “[t]he transaction of any business within the state” under § 600.715(1), “[t]he doing or causing of any act to be done, or consequences to occur, in the state resulting in an action for tort” under § 600.715(2), and the “[ejntering into a contract for services to be performed or for materials to be furnished in the state by the defendant” under § 600.715(5). The “transaction of any business” necessary for limited personal jurisdiction under § 600.715(1) is established by “the slightest act of business in Michigan.” Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 906 (6th Cir.1988) (citing Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624 n. 2 (1971)). Neogen has presented a prima facie case that NGS transacted business in Michigan when it accepted blood for testing from Michigan, mailed the test results to Michigan, made the results accessible to its Michigan customers on its website, and accepted payment through the mail from Michigan. Lanier, 843 F.2d at 908. (holding that an Illinois professional corporation had “transacted business” in Michigan under § 600.715(1) through its mail and telephone contacts with Michigan residents). The “arising out of’ requirement of § 600.715 is satisfied because the alleged economic harm and trademark infringement that form the basis of Neogen’s suit were directly related to NGS’s transaction of business in Michigan. In Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 231 (6th Cir.1972) (finding limited personal jurisdiction under Ohio’s similar long-arm statute where the acts forming the basis for the defendant’s allegedly tortious conduct were “made possible” by the defendant’s transaction of business in Ohio). Viewing the allegations in the light most favorable to Neogen, the economic harm of which it complains can be construed as resulting from NGS’s conduct of business with Michigan residents over" }, { "docid": "3477603", "title": "", "text": "to be sued in Michigan, or carries on a “continuous and systematic part of its general business within the state.” Mich. Comp.Laws § 600.711. Although Justballs maintains that it does not have the substantial contacts with Michigan required for general jurisdiction and Sports Authority would disagree with this point, both parties opt to focus solely on whether Sports Authority can establish grounds for asserting limited jurisdiction. As Michigan courts have repeatedly stressed, “[f]or limited personal jurisdiction to attach, the cause of action must arise from the circumstances creat> ing the jurisdictional relationship between the defendant and the foreign state.” Rainsberger v. McFadden, 174 Mich.App. 660, 662, 436 N.W.2d 412 (Mich.Ct.App. 1989) (citation omitted). A corporation is subject to the limited jurisdiction of the courts of Michigan if any of five designated relationships exist between the corporation and the state. See Mich.Comp.Laws § 600.715. The Michigan Supreme Court has construed Michigan’s long-arm statute to bestow the broadest possible grant of personal jurisdiction consistent with due process. See Sifers v. Horen, 385 Mich. 195, 198-99, 188 N.W.2d 623 (Mich.1971). The determination of whether jurisdiction attaches under the Michigan long-arm statute thus requires a two-step analysis: First, whether the exercise of limited personal jurisdiction violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. If not, then whether the rules of statutory construction support such an exercise of jurisdiction over defendants. Walter v. M. Walter & Co., Inc., 179 Mich. App. 409, 412, 446 N.W.2d 507 (Mich.Ct. App.1989) (citations omitted) (per curiam). Under Michigan’s long-arm statute, the state’s jurisdiction extends to the limits imposed by federal constitutional Due Process requirements, and thus, the two questions become one. See Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992) (citation omitted); Green v. Wilson, 455 Mich. 342, 349-50, 565 N.W.2d 813 (Mich.1997). In order to comply with the Due Process Clause, the plaintiff must establish that significant minimum contacts exist sufficient to satisfy “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed." }, { "docid": "16831137", "title": "", "text": "Wataniya. Michigan’s long-arm statute is not satisfied, however, as to the remaining non-Wataniya defendants, none of whom had any contact with Michigan whatsoever. Again, it is plaintiffs’ burden to establish personal jurisdiction as to each defendant. CompuServe, Inc., 89 F.3d at 1261-62; Days Inns Worldwide, Inc., 445 F.3d at 904. Here, plaintiffs’ appellate brief focuses exclusively on Wataniya; plaintiffs do not address all defendants separately. Plaintiffs not only fail in their appellate brief to explain whether the non-Wataniya defendants had any contact with Michigan, they fail to mention the non-Wataniya defendants altogether. By failing to address any claims as to the non-Wataniya defendants, plaintiffs have failed to meet their burden to establish jurisdiction over each defendant individually. V. “Although Michigan’s long-arm statute authorizes personal jurisdiction over [Wataniya], a court in Michigan cannot exercise its personal jurisdiction in violation of [Wataniya’s] constitutional right to due process.” Neogen Corp., 282 F.3d at 889. Accordingly, “[i]n order to survive [Wataniya’s] motion to dismiss, [plaintiffs are] required to present a prima facie case that the district court’s exercise of personal jurisdiction would not offend due process.” Id. When determining whether a district court’s exercise of personal jurisdiction would offend due process, “[t]he relevant inquiry is whether the facts of the ease demonstrate that the nonresident defendant possesses such minimum contacts with the forum state that the exercise of jurisdiction would comport with ‘traditional notions of fair play and substantial justice.’ ” Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir.1991) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In Southern Machine Co. v. Mohasco Industries, Inc., this court articulated a three-pronged test to guide this determination: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. 401" }, { "docid": "22817058", "title": "", "text": "based on the transaction of business. In view of these competing policies, and our immediate objective — to determine whether Appellant has stated a prima facie case for personal jurisdiction — we believe a full discussion of the long arm analysis is in order. Michigan, the forum for the pending appeal, subjects non-resident real persons to the limited jurisdiction of its courts in seven enumerated circumstances. Mich.Comp. Laws Ann. § 600.705 (West 1981). Theun-issen relies on two of these grounds, provided for in section 600.705 as follows: The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships: (1) The transaction of any business within the state. * Sft sjc Jjt Sfc sjs (5) Entering into a contract for services to be rendered or for materials to be furnished in the state by the defendant. ... Mich.Comp.Laws Ann. § 600.705(1), (5) (West 1981). The facts Theunissen alleged in his affidavits clearly satisfy each of these provisions. Our conclusion that due process has been satisfied leads us to conclude that Theunissen has also met his burden under section 600.705(1). See Sifers v. Horen, 385 Mich. 195, 195, 188 N.W.2d 623, 623 (1971). Furthermore, we believe cases construing this statute provide an independent basis for this holding. In construing identical language in a companion long arm statute applicable to non-resident corporations, the Michigan Supreme Court stated that “[t]he word ‘any’ means just what it says. It includes ‘each’ and ‘every’.... It comprehends the ‘slightest’.” Lanier v. Am. Board of Endodontics, 843 F.2d 901, 905-06 (6th Cir.) (quoting Sifers, 385 Mich. at 199 n. 2, 188 N.W.2d 623 (1971)), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). This construction applies with equal force to section 705. Hertzberg & Noveck v. Spoon, 681" }, { "docid": "8697557", "title": "", "text": "the district court should not weigh “the controverting assertions of the party seeking dismissal.” Id. at 1459. Personal jurisdiction over an out-of-state defendant arises from “certain minimum contacts with [the forum] such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Depending on the type of minimum contacts in a case, personal jurisdiction can either be specific or general. Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1116 (6th Cir.1994). In this case, Air Products asserts that both specific jurisdiction and general jurisdiction are present. Because we ultimately conclude that the district court had specific jurisdiction over Defendants, we focus only on that question and do not reach the question of general jurisdiction. In analyzing personal jurisdiction in diversity actions such as this, federal courts must look to the law of the forum state to determine the reach of the district court’s personal jurisdiction over parties, subject to constitutional due process requirements. Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 909 (6th Cir.1988). This court, therefore, must engage in a two-step process: (1) first, the court must determine whether any of Michigan’s relevant long-arm statutes authorize the exercise of jurisdiction over Defendants; and, if so, (2) the court must determine whether exercise of that jurisdiction comports with constitutional due process. As to the due process inquiry for specific jurisdiction (the only type of personal jurisdiction we address here), our Court has established a three part test for determining whether such jurisdiction may be exercised: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over" }, { "docid": "15417605", "title": "", "text": "pleadings and affidavits in the light most favorable to the plaintiff, and the court may not consider conflicting facts offered by the defendant. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002). In addition, where there has been no evidentiary hearing, the plaintiff need only present a prima facie case for jurisdiction. Theunissen, 935 F.2d at 1458. This Court may exercise jurisdiction over Defendants only to the extent that a Michigan court could do so. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). Personal jurisdiction may be asserted only if it comports both with the state’s long-arm statute and constitutional due process. Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). A defendant may be subject to personal jurisdiction on the basis of either or both general jurisdiction or limited jurisdiction. Id. “Limited jurisdiction extends only to claims arising from the defendant’s activities that were either within Michigan or had an in-state effect,” whereas “[gjeneral jurisdiction ... enables a court in Michigan to exercise jurisdiction over a [defendant] regardless of whether the claim at issue is related to its activities in the state or has an in-state effect.” Neogen Corp., 282 F.3d at 888 (citing Third Nat’l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989)). Steelcase does not claim that Defendants are subject to general jurisdiction, but it does argue that Defendants’ contacts with Michigan subject them to limited jurisdiction. The reach of Michigan’s long-arm statute has been construed as co-extensive with the limits of constitutional due process. Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992); Green v. Wilson, 455 Mich. 342, 350-51, 565 N.W.2d 813, 816-17 (1997). The two inquiries thus merge into the single question of whether maintenance of the suit comports with due process. Mich. Coalition of Radioactive Material Users, Inc., 954 F.2d at 1176. The question becomes whether the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair" }, { "docid": "23192969", "title": "", "text": "the wires, through the mail, and by use of the Internet. Neogen has also presented a prima facie case that limited jurisdiction exists over NGS under § 600.715(2), based upon Neogen’s allegation that the use of NGS’s website and tradename in dealing with its Michigan customers has caused an adverse economic effect upon Neogen in Michigan. As the district court recognized, “[t]he language of the Michigan long-arm statute likely is broad enough to encompass the Defendant’s activity.” In addition, Neogen has presented a prima facie case that limited jurisdiction exists under § 600.715(5) because NGS’s blood-test transactions with Michigan residents constitute “entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.” Part of NGS’s service is the packaging of the information revealed by the tests. When NGS provided passwords to Michigan customers or mailed them the test results, this constituted the performance of services and the furnishing of materials in the state within the meaning of § 600.715(5). In order to be subject to general jurisdiction in Michigan, a nonconsenting, nonresident corporation such as NGS must have carried on “a continuous and systematic part of its general business” within Michigan. Mich. Comp. Laws § 600.Vll(3). We decline to decide the broader issue of whether general jurisdiction exists under the facts of this case, however, because Neogen has presented a prima facie case that limited jurisdiction is present. 3. The district court erred in concluding that due process would be violated by Michigan’s exercise of limited personal jurisdiction over NGS Although Michigan’s long-arm statute authorizes personal jurisdiction over NGS, a court in Michigan cannot exercise its personal jurisdiction in violation of NGS’s constitutional right to due process. In order to survive NGS’s motion to dismiss, Neogen was required to present a prima facie case that the district court’s exercise of personal jurisdiction would not offend due process. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). Neogen must therefore establish with reasonable particularity sufficient “minimum contacts” with Michigan so that the exercise of jurisdiction over NGS would not offend" }, { "docid": "22817055", "title": "", "text": "assess whether Appellant’s allegations brought Matthews’ within the scope of Michigan’s long-arm statute. As a preliminary matter, we note that this Circuit historically has understood Michigan to intend its long-arm statute to extend to the boundaries of the fourteenth amendment. See Chandler v. Barclays Bank PLC, 898 F.2d 1148, 1150-51 (6th Cir.1990); LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298 (6th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990); Michigan Nat. Bank v. Quality Dinette, Inc., 888 F.2d 462, 464 (6th Cir.1989); Hertzberg & Noveck v. Spoon, 681 F.2d 474, 478 (6th Cir.1982); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981). This understanding rests upon the decision of the Michigan Supreme Court in Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971), stating that the long arm “represents an attempt on the part of the Michigan Legislature to expand to its full potential limited personal jurisdiction of Michigan courts over non residents.” Id. (footnote omitted, emphasis in original). However, three considerations weigh against applying this view of co-extensiveness in all instances. First, close examination of Sifers reveals that this statement attached only to limited personal jurisdiction premised upon the non-resident defendant’s transaction of business within the state. Id. 188 N.W.2d at 624-25. As will be discussed, the conduct of business in the state is only one of several “relationships” identified in Michigan law that can give rise to limited personal jurisdiction. Sifers did not address the other bases for jurisdiction. Second, Appellee Matthews has directed our attention to a recent decision by the Michigan Supreme Court that appears to qualify the widely held view that the long arm is co-extensive with due process, emphasizing that the decision in Sifers “rested upon the ‘exercise [of] jurisdiction to the extent indicated in the statute....’ [Sifers v. Horen, 385 Mich. 195, 198, 188 N.W.2d 623 (1971)] (Emphasis supplied.)” Witbeck v. Bill Cody’s Ranch Inn, 428 Mich. 659, 666 n. 3, 411 N.W.2d 439, 443 n. 3 (1987) (emphasis in original). In" } ]

[ { "docid": "495525", "title": "", "text": "of on, in, or at the facility.” Because CERCLA conditions the innocent owner defense on the defendant’s having purchased the property “after the disposal” of hazardous waste at the property, “disposal” cannot constitute the allegedly constant spreading of contaminants. Otherwise, the defense would almost never apply, as there would generally be no point “after disposal.” See United States v. Petersen Sand and Gravel, Inc., 806 F.Supp. 1346, 1351-52 (N.D.Ill.1992); In re Diamond Reo Trucks, Inc. v. City of Lansing, 115 B.R. 559, 566 n. 3 (Bankr.W.D.Mich.1990); Bronston, supra at 627-28. We think it unlikely that Congress would create a basically useless defense. The innocent owner defense’s apparent limitation to current owners also supports the conclusion that “disposal” does not encompass the passive spreading alleged here. The provision establishing the innocent own er defense states: “Nothing in this paragraph or in section 9607(b)(3) of this title [, which provides the causation defenses including the third party defense,] shall diminish the liability of any previous owner or operator who would be otherwise liable under this chapter.” 42 U.S.C. § 9601(35)(C). This language certainly suggests that the innocent owner defense is unavailable to prior owners or operators. While the question whether the innocent owner defense is available only to present owners is not before us — and we do not decide the issue — we note that such a limitation makes sense only if passive spreading of waste in a landfill is not included in disposal. If passive migration is excluded from “disposal,” past owners will generally only be liable as owners “at the time of disposal” when they have committed or allowed affirmative acts of disposal on their property. They would thus have little need for the innocent owner defense, which requires, inter alia, that a defendant did not “cause[] or contribute[ ] to the release or threatened release,” 42 U.S.C. § 9601(35)(D); “exercised due care with respect to the hazardous substance concerned,” id. § 9607(b)(3)(a); and “took precautions against foreseeable acts or omissions of any such third party [causing the release] and the consequences that could foreseeably result from such acts" } ]

[ { "docid": "1005501", "title": "", "text": "proof of defendant’s ‘conscious knowing intent to defraud.’ ” (quoting United States v. Regan, 937 F.2d 823, 827 (2d Cir. 1991))), aff'd sub nom. Curtis v. Law Offices of David M. Bushman, Esq., 443 Fed.Appx. 582 (2d Cir. 2011). Accordingly, the Court grants defendants’ motions to dismiss with respect to the RICO claims. B. CERLCA Claims Congress enacted CERCLA in 1980 “in response to the serious environmental and health risks posed by industrial pollution,” designing it “to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). The statute imposes strict liability on four classes of “potentially responsible parties” (“PRPs”): (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, .and (4) any person who accepts or accepted any hazardous substances .for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release,, or a threatened release which causes the .incurrence of response costs,- of a hazardous substance .... Id. at 608-09 (quoting 42 U.S.C. § 9607(a)) (footnote omitted). If a person or entity “is identified as a PRP, it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs.” Id. at 609, 129 S.Ct. 1870; see also 42 U.S.C. § 9613(f)(1) (“Any person may seek contribution from any other person who is liable or potentially liable under" }, { "docid": "296381", "title": "", "text": "of events (spilling, leaking, etc.) followed simply by into the environment.” See 42 U.S.C. § 9601(22). In fact, it is the contextual relationship in the statute between “release” and “disposal” that convinces this court that “disposal” does not contemplate passive migration. A “release” or a threatened “release” is a precondition to the authority to act under CERCLA, and it is undisputed that a “release” includes the kind of passive migration at issue here. See United States v. Petersen Sand & Gravel, Inc., No. 91-C5835, at 5-6, 1992 WL 208982 (N.D.Ill. filed Aug. 20, 1992). CERCLA defines “release” as [A]ny spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).... 42 U.S.C.A. § 9601(22) (West Supp.1992) (emphasis added; exceptions omitted). A “release” includes a “disposal,” but a “disposal” does not include a “release.” In some way, therefore, “release” must be more inclusive than “disposal.” Congress could have made operator liability depend on a “release”; instead, Congress designed the entire CERCLA response scheme to activate whenever a “release” occurred, but limited the liability for operators to those who were operators during a “disposal.” Some distinction must have been intended, and the so-called innocent owner defense shows that the distinction must have been between active and passive events. In 1986, Congress amended CERCLA definitions that affect the so-called innocent owner defense under Section 9607(b)(3). Section 9607(b)(3) relieves the liability of a party otherwise responsible under Section 9607(a) in certain circumstances when the damages were caused by a third-party who is not an agent or employee of the otherwise responsible party and who is not in a contractual relationship with that party. 42 U.S.C. § 9607(b)(3). The 1986 amendment expanded the scope of this defense to innocent owners by excluding land sales from the definition of “contractual relationship” in certain circumstances. Among other circumstances, the amendment excludes a land sale when the real property on which the facility concerned is located was acquired by the defendant after the" }, { "docid": "495526", "title": "", "text": "U.S.C. § 9601(35)(C). This language certainly suggests that the innocent owner defense is unavailable to prior owners or operators. While the question whether the innocent owner defense is available only to present owners is not before us — and we do not decide the issue — we note that such a limitation makes sense only if passive spreading of waste in a landfill is not included in disposal. If passive migration is excluded from “disposal,” past owners will generally only be liable as owners “at the time of disposal” when they have committed or allowed affirmative acts of disposal on their property. They would thus have little need for the innocent owner defense, which requires, inter alia, that a defendant did not “cause[] or contribute[ ] to the release or threatened release,” 42 U.S.C. § 9601(35)(D); “exercised due care with respect to the hazardous substance concerned,” id. § 9607(b)(3)(a); and “took precautions against foreseeable acts or omissions of any such third party [causing the release] and the consequences that could foreseeably result from such acts or omissions,” id. § 9607(b)(3)(b). On the other hand, if prior owners were liable because waste spread during their tenure and the innocent owner defense is available only to current owners, prior owners would be in a significantly worse position than current owners: they would be hable for passive migration of waste even if they had no reason to know of the waste’s presence. We do not beheve that this was Congress’s intent. D. CERCLA’s Purposes We have explained our confidence that the meaning of the words defining “disposal” does not encompass the gradual spreading of waste in a landfill and that this conclusion is supported by the structure of the innocent owner defense. We also conclude that this reading of “disposal” is consistent with CERCLA’s purposes. Congress enacted CERCLA with two principal goals in mind — to facilitate the cleanup of potentially dangerous hazardous waste sites, Tippins Inc. v. USX Corp., 37 F.3d 87, 92 (3d Cir.1994), and to force polluters to pay the costs associated with their pollution, United States v. Alcan Aluminum," }, { "docid": "2223928", "title": "", "text": "CERCLA cases. While many CERCLA actions have been brought by government contractors against the U.S. government, only a few appear to have reached the allocation stage. And none of those address the key issue in this case: whether the fact that the government contractor has been indirectly recovering its response costs from the U.S. government-as-client through U.S.-government contracts should, as an equitable consideration, reduce its recovery from the U.S. government-as-PRP under CERCLA. LEGAL FRAMEWORK Congress enacted CERCLA “in response to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The statute “was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (internal quotation marks omitted). By requiring responsible parties to pay for cleanup efforts, CERCLA also ensures that “the taxpayers [are] not required to shoulder the financial burden of a nationwide cleanup.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). In furtherance of these goals, CERCLA allows private parties to recover the costs of cleaning up hazardous wastes from several broad categories of PRPs. 42 U.S.C. § 9607(a)(1)-(4). Liability under these provisions is strict and, by default, joint and several. PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 168 (4th Cir.2013). Relevant to this action, PRPs include any past “owner” or “operator” and any “arranger.” See 42 U.S.C. § 9607(a)(2)-(3). Under CERCLA, a person is liable as a past “owner” or “operator” if he “at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The phrase “owner or operator” is unhelpfully defined “only by tautology ... as ‘any person owning or operating’ a facility.” Bestfoods, 524 U.S. at 56, 118 S.Ct. 1876 (quoting 42 U.S.C. § 9601(20)(A)(ii)). Courts consider “owner” and" }, { "docid": "23015414", "title": "", "text": "statute’s remedial purposes. In holding that passive migration of hazardous waste through soil in this case cannot constitute “disposal” under the Act, the majority misses the mark. If there is a plain meaning in CERCLA’s definition of “disposal,” it encompasses the sort of passive migration at issue here. Finding such passive migration as a form of “disposal” is consistent with CERCLA’s strict liability scheme, that broadly defines “potentially responsible parties” as including those who may have done nothing affirmative to contribute to the contamination of a site and that requires such parties to disprove causation as an affirmative defense. By contrast, excluding this sort of passive migration from the definition of “disposal,” as the majority does, frustrates CERCLA’s two central purposes: to encourage prompt, voluntary private action to remedy environmental hazards and to ensure that those responsible for the hazards pay their fair share of cleanup costs. Accordingly, I respectfully dissent from Part III of the majority’s opinion. I. One of the ways in which CERCLA encourages current landowners to clean up environmental hazards on their properties is to allow them to clean up the hazard and then bring suit to recover clean up costs from those who have some responsibility for the existence of the hazard. In order to prevail, the current owner must establish that the defendant is a “potentially responsible party,” a party who falls within one of four classes of persons subject to CERCLA liability. See 42 U.S.C. § 9607(a). In this case, Carson Harbor argued that the Partnership Defendants are PRPs because they are persons “who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The district court granted the Partnership Defendants’ motion for summary judgment on Carson Harbor’s CERCLA claim because it concluded that the Partnership Defendants did not own the property “at the time of disposal of any hazardous substances.” Thus, the majority rightly focuses on the meaning of “disposal” in deciding whether the district court’s grant of summary judgment was proper. If there was a “disposal”" }, { "docid": "17202528", "title": "", "text": "the cleanup of hazardous waste sites, and to shift the costs of environmental re sponse from the taxpayers to the parties who benefitted from the use or disposal of the hazardous substances. See OHM Remediation Serv. v. Evans Cooperage Co., Inc., 116 F.3d. 1574, 1578 (5th Cir. 1997). The statute allows parties who incur environmental cleanup costs to recover from persons commonly referred to as “potentially responsible parties” (“PRPs”). See 42 U.S.C. § 9607(a). Subject to certain statutory exceptions, PRPs are broadly defined to include: (1) current owners and operators of vessels or facilities that accepted hazardous substances; (2) past owners or operators of facilities where haz-. ardous substances were disposed; (3) persons who by contract or agreement arranged for the disposal or transport of hazardous substances; and (4) persons who accept or accepted hazardous substances for transport to disposal or treatment facilities. See 42 U.S.C. § 9607(a). CERCLA provides two ways for parties to recover environmental response costs. The § 107(a) cost recovery provision permits the government or an “innocent” private party to recoup cleanup costs from PRPs. See 42 U.S.C. § 9607(a)(4) (stating that PRPs “shall be liable for — (A) all costs of removal or remedial action incurred by the United States Government or a State ... [and] (B) any other necessary costs of response incurred by any other person ...”). PRPs are held jointly and severally liable under this cost recovery provision. The other method of recovering environmental response costs involves § 113(f)(1), the contribution provision. See 42 U.S.C. § 9613(f)(1). It allows a PRP to seek contribution from other PRPs if it assumed a disproportionate share of the cleanup costs. Under § 113(f)(1), courts have the discretion to allocate the response costs equitably among the various PRPs. CERCLA additionally includes a provision (§ 106) for the federal government to seek an administrative abatement order (enforceable in court) against PRPs. See 42 U.S.C. § 9606. Courts have elaborated on the distinction between a contribution action under § 113(f)(1) and a cost recovery action under § 107(a). A contribution claim involves actions between PRPs, while a cost" }, { "docid": "495523", "title": "", "text": "who at the time of disposal ... owned or operated any facility,” 42 U.S.C. § 9607(a)(2), would be a rather complicated way of making liable all people who owned or operated a facility after the introduction of waste into the facility. See Snediker Developers Ltd. Partnership v. Evans, 773 F.Supp. 984, 989 (E.D.Mich.1991); Ecodyne Corp. v. Shah, 718 F.Supp. 1454, 1457 (N.D.Cal.1989); In re Diamond Reo Trucks, Inc., 115 B.R. 559, 565 (Bankr.W.D.Mich.1990). Furthermore, there would be no need for the separate responsible party category of current owner or operator, id. § 9607(a)(1). See Ecodyne Corp., 718 F.Supp. at 1457. Although CERCLA is not written with great clarity, we will not impute to Congress an intent to set up a simple liability scheme through a convoluted methodology. C. Structure: The Innocent Owner Defense Our conclusion that the language of CERCLA’s definition of “disposal” does not include the passive migration alleged here is also supported by a significant aspect of CERCLA’s liability scheme, the innocent owner defense. Since the 1986 Superfund Amendments and Reauthorization Act (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. §§ 9601-9675), CERCLA has exempted certain “innocent owners” from liability. CERCLA provides a defense to liability if the defendant can prove that the release or threatened release was caused solely by an act or omission of a third party. 42 U.S.C. § 9607(b)(3). The defense is generally not available if the third party causing the release is in the chain of title with the defendant. See id. § 9601(35)(A). However, the defense is available in such circumstances if the person claiming the defense is an “innocent owner.” To establish the innocent owner defense, the defendant must show that “the real property on which the facility is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility” and that “[a]t the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed" }, { "docid": "23015415", "title": "", "text": "their properties is to allow them to clean up the hazard and then bring suit to recover clean up costs from those who have some responsibility for the existence of the hazard. In order to prevail, the current owner must establish that the defendant is a “potentially responsible party,” a party who falls within one of four classes of persons subject to CERCLA liability. See 42 U.S.C. § 9607(a). In this case, Carson Harbor argued that the Partnership Defendants are PRPs because they are persons “who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The district court granted the Partnership Defendants’ motion for summary judgment on Carson Harbor’s CERCLA claim because it concluded that the Partnership Defendants did not own the property “at the time of disposal of any hazardous substances.” Thus, the majority rightly focuses on the meaning of “disposal” in deciding whether the district court’s grant of summary judgment was proper. If there was a “disposal” of hazardous waste during the period that the Partnership Defendants owned the property, then, as the majority notes, the Partnership Defendants are PRPs and the district court was wrong to grant them summary judgment. Majority Op. at 874. CERCLA defines “disposal” as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903(8) (emphasis added); see id. § 9601(29) (referring to § 6903(3) for the definition of “disposal”). Although the majority recognizes that almost all of the terms defining “disposal” have both active and passive meanings, it concludes that these terms “simply do not describe the passive migration that occurred here.” Majority Op. at 879. In reaching this conclusion, the majority purports to en gage in a plain meaning analysis. However, the majority’s analysis is nothing more than ipse" }, { "docid": "1922816", "title": "", "text": "of “disposal,” which is “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” 42 U.S.C. §§ 6903(3), 9601(29). It found that these seven words all implied active human participation. CDMG, 96 F.3d at 714. A district court in this circuit has also found that CERCLA was not so broad as to impose liability for passive migration. Ecodyne Corp. v. Shah, 718 F.Supp. 1454, 1457 (N.D.Cal.1989). That court noted, “[t]o define disposal as plaintiff wishes would effectively make all property owners from the time a site became polluted (up to and including the current owner) potentially liable under § 9607(a)(2) even if these owners did not introduce chemicals onto the site. Such a construction conflicts with the limited scope of § 9607(a)(2).” Id. This Court finds persuasive the reasoning of the courts that have rejected the passive migration theory. While CERCLA was intended to reach broadly, it also clearly expresses limits to the contemplated statutory liability. To find otherwise would subject previous owners who had no knowledge of or control over hazardous substances on their property to liability under .the statute. This result is in stark conflict with the intent of CERCLA, which is to affix the ultimate cost of cleaning up disposal sites on the parties responsible for the contamination. Kaiser Aluminum v. Catellus Development, 976 F.2d 1338, 1340 (9th Cir.1992). Therefore, this Court, adopting the view of the Third Circuit, holds that disposal warranting CERCLA liability requires a showing that hazardous substances were affirmatively introduced into the environment. Without the aid of the passive migration theory, plaintiff’s claim that the Partnership defendants were owners of the facility at the time of disposal fails as a matter of law. With respect to the storm water runoff, plaintiff has similarly failed to present evidence sufficient to defeat a motion for summary judgment by the Partnership defendants. Plaintiff’s argument for this proposition is based on two points: (1) a request that the Court take judicial notice of the fact that it rained sufficiently between 1977 and 1983 to" }, { "docid": "20717467", "title": "", "text": "bore the burden of proving that another party was a PRP under § 9607(a). See Minyard Enters., 184 F.3d at 385. We consider each defendant’s challenge to PRP status in turn, reviewing the district court’s ultimate determinations of PRP status de novo, and its factual findings underlying those determinations for clear error. 1. The district court held that Holcombe and Fair are PRPs as owners of the site at the time of disposal. See 42 U.S.C. § 9607(a)(2). The court based its holding on its factual finding that Holcombe and Fair’s earth-moving and construction activities redistributed already-contaminated soils, causing a disposal of hazardous substances on the site. Holcombe and Fair do not challenge the legal basis for the district court’s conclusion. Indeed, Holcombe and Fair accept that past owners or operators of a facility are liable for “secondary disposals”—that is, the movement or dispersal of already-once-disposed hazardous substances through earth-moving or construction activities—that occur during their ownership or operation of the facility. See Tanglewood, E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1573 (5th Cir.1988) (“[CERCLA’s] definition of disposal does not limit disposal to a one-time occurrence—there may be other disposals when hazardous materials are moved, dispersed, or released during landfill excavations and fillings.”); see also Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1510 (11th Cir.1996) (same); Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342-43 (9th Cir.1992) (same); cf. Westfarm Assocs. Ltd. P’ship v. Washington Suburban Sanitary Comm’n, 66 F.3d 669, 680-81 (4th Cir.1995) (refusing to limit “multiple release” disposals to non-migrating hazardous materials); Nurad, 966 F.2d at 844-46 (interpreting “disposal” broadly to include passive acts, such as, leaking or spilling). Instead, Holcombe and Fair challenge the district court’s finding that a secondary disposal actually occurred during their ownership of the site. Holcombe and Fair argue that the court clearly erred because PCS offered no “discrete proof’ that Hol-combe and Fair actually moved or dispersed contaminated soils during their earth-moving activities. At best, Holcom-be and Fair contend, the evidence demonstrates only that a disposal “probably” occurred during their ownership of the site. '" }, { "docid": "23015367", "title": "", "text": "in their favor on the CERCLA issue. A. PRPs, the Meaning of “Disposal,” and CiRCUiT Court Interpretations Section 9607(a), which sets out the four PRP categories, provides: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable.... 42 U.S.C. § 9607(a) (emphasis added). Carson Harbor argues that the Partnership Defendants fit within the second PRP category as owners of the property “at the time of disposal” under § 9607(a)(2). CERCLA defines “disposal” for purposes of § 9607(a) with reference to the definition of “disposal” in RCRA, see 42 U.S.C. § 9601(29), which in turn defines “disposal” as follows: The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3) (emphasis added). Under this definition, for the Partnership Defendants to be PRPs, there must have been a “discharge, deposit, injection, dumping, spilling, leaking, or placing” of contaminants on the property during their ownership. Id. Although we have previously concluded that RCRA’s definition of “disposal” is “clear,” 3550 Stevens Creek Assocs., 915 F.2d at 1362, whether" }, { "docid": "23015370", "title": "", "text": "liable for the “disposal” of hazardous wastes that leaked from an underground storage tank). The first circuit court to face the question was the Fourth Circuit in Nurad. There, the court addressed whether leaking from underground storage tanks is a “disposal.” 966 F.2d at 844-46. The current owner brought suit against two prior owners for reimbursement costs under CERCLA, claiming that the past owners were PRPs under § 9607(a)(2). Id. at 840. The court rejected the “active-only” approach, stating: [T]his circuit has already rejected the “strained reading” of disposal which would limit its meaning to “active human conduct.” United States v. Waste Ind., Inc., 734 F.2d 159, 164-65 (4th Cir.1984). In Waste Industries, the court held that Congress intended the 42 U.S.C. § 6903(3) definition of disposal “to have a range of meanings,” including not only active conduct, but also the reposing of hazardous waste and its subsequent movement through the environment. Id. at 164. Id. at 845. The Fourth Circuit concluded “that § 9607(a)(2) imposes liability not only for active involvement in the ‘dumping’ or ‘placing’ of hazardous waste at the facility, but for ownership of the facility at a time that hazardous waste was ‘spilling’ or ‘leaking.’ ” Id. at 846; accord Crofton Ventures Ltd. P’ship v. G & H P’ship, 258 F.3d 292, 300 (4th Cir.2001) (holding that, “[g]iven the breadth of the statutory definition of ‘disposal,’ the district court must be able to conclude that the buried drums did not leak” when the defendants owned or operated the facility “to make a finding that [they] were not liable under §. 9607(a)(2)”). Four years later, in CDMG Realty, the Third Circuit addressed whether the spread of contamination within a landfill is a “disposal.” 96 F.3d at 710. There, as in Nurad, the current owner of contaminated property sought contribution from the pri- or owner, asserting that the prior owner was a PRP under § 9607(a)(2). Id. The Third Circuit held, based on the plain meaning of the words used to define “disposal” and the structure and purposes of CERCLA, see id. at 714-18, that “the passive migration" }, { "docid": "495522", "title": "", "text": "Steven Ferrey, The Toxic Time Bomb: Municipal Liability for the Cleanup of Hazardous Waste, 57 Geo. Wash. L.Rev. 197, 207 n. 34 (1988) (“Leachate is liquid or water soluble contaminated substances that migrate away from the point source of contamination in groundwater or surface water, often influenced by rain and normal water table activities. Such a phenomenon is described as ‘leaching’ of contaminants.”). Congress’s use of the term “leaching” in the definition of “release” demonstrates that it was aware of the concept of passive migration in landfills and that it knew how to explicitly refer to that concept. Yet Congress made prior owners liable only if they owned land at the time of “disposal,” not at the time of “release.” 3. “At the Time of Disposal” Our conclusion that the meaning of the words in the “disposal” definition cannot cover the passive migration alleged in this case is buttressed by the language of CERCLA’s liability provision. If the spreading of contaminants is constant, as HMAT would have us assume, characterizing liable parties as “any person who at the time of disposal ... owned or operated any facility,” 42 U.S.C. § 9607(a)(2), would be a rather complicated way of making liable all people who owned or operated a facility after the introduction of waste into the facility. See Snediker Developers Ltd. Partnership v. Evans, 773 F.Supp. 984, 989 (E.D.Mich.1991); Ecodyne Corp. v. Shah, 718 F.Supp. 1454, 1457 (N.D.Cal.1989); In re Diamond Reo Trucks, Inc., 115 B.R. 559, 565 (Bankr.W.D.Mich.1990). Furthermore, there would be no need for the separate responsible party category of current owner or operator, id. § 9607(a)(1). See Ecodyne Corp., 718 F.Supp. at 1457. Although CERCLA is not written with great clarity, we will not impute to Congress an intent to set up a simple liability scheme through a convoluted methodology. C. Structure: The Innocent Owner Defense Our conclusion that the language of CERCLA’s definition of “disposal” does not include the passive migration alleged here is also supported by a significant aspect of CERCLA’s liability scheme, the innocent owner defense. Since the 1986 Superfund Amendments and Reauthorization Act (SARA)," }, { "docid": "23015366", "title": "", "text": "consideration on remand. III. The CONTAMINANT MIGRATION AT ISSTJE Here Is Not a Disposal Under CERCLA The fourth element of Carson Harbor’s cost recovery action requires a showing “that the defendant falls within one of four classes of persons subject to liability under 42 U.S.C. § 9607(a).” Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1340 (9th Cir.1992); accord 42 U.S.C. § 9613(f)(1) (“Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a).... ” ). Those four categories of persons are “potentially responsible parties” or “PRPs.” To determine whether the Partnership Defendants are PRPs, we must decide whether there was a “disposal” during their ownership of the property. This inquiry rests on our interpretation of the statutory definition of “disposal.” Based upon the plain meaning of the statute, we conclude that there was no disposal during the Partnership Defendants’ ownership. Therefore, they are not PRPs, and they are not subject to liability. Accordingly, the district court did not err in granting summary judgment in their favor on the CERCLA issue. A. PRPs, the Meaning of “Disposal,” and CiRCUiT Court Interpretations Section 9607(a), which sets out the four PRP categories, provides: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable.... 42 U.S.C." }, { "docid": "11212297", "title": "", "text": "discovery. Defendant has not done so, nor has he filed a Rule 56(f) affidavit explaining what additional information he requires. The court stands by its decision to allow the amendment. Defendant also contends that the theory of liability is untimely under CERCLA’s three-year statute of limitations, 42 U.S.C. § 9613(g)(2), but this argument fails even if the theory is treated as a new claim. The theory of current-owner liability “arose out of the conduct, transaction or occurrence set out — or attempted to be set out — in the original pleading,” so it relates back to the date of the original complaint. Fed. R. Civ. P. 15(c)(1)(B). Thus, the court will consider the government’s argument that the undisputed evidence shows that Defendant is a current owner as well as Defendant’s argument that undisputed evidence shows that he is not a past operator. The court begins with Defendant’s argument that the government’s evidence does not establish that he is a past operator, which CERCLA defines as “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2). CERCLA defines “owner or operator” as “any person owning or operating” a facility. 42 U.S.C. § 9601(20)(A). The circularity of this definition suggests applying ordinary meaning and its generality suggests relying on the common law. United States v. Capital Tax Corp., 545 F.3d 525, 530 (7th Cir.2008). That is what the Supreme Court did when it explained that “an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The type of liability at issue in Defendant’s motion, past operator liability, also requires that Defendant have been an operator at the time of disposal of hazardous substances. CERCLA § 101(29), 42 U.S.C. § 9601(29), adopts the Solid Waste Disposal Act’s definition of disposal: the discharge, deposit, injection, dumping, spilling," }, { "docid": "495514", "title": "", "text": "makes four classes of people liable for response costs or contribution: the current owner or operator of a facility, 42 U.S.C. § 9607(a)(1); any person who owned or operated the facility “at the time of disposal” of a hazardous substance, id. § 9607(a)(2); any person who arranged for disposal or treatment, or arranged for transport for disposal or treatment of hazardous substances at the facility, id. § 9607(a)(3); and any person who accepts or accepted hazardous substances for transport to sites selected by such person, id. § 9607(a)(4). HMAT contends that Dowel is liable as a person who owned or operated the facility “at the time of disposal” of a hazardous substance. CERCLA defines “disposal” by incorporating the definition used by the Resource Conservation and Recovery Act (RCRA). See id. § 9601(29) (“The terms ‘disposal’, ‘hazardous waste’, and ‘treatment’ shall have the meaning provided in section 1004 of the Solid Waste Disposal Act.”). Under RCRA, The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. Id. § 6903(3). Focusing on the breadth of this definition, HMAT reads “disposal” to encompass the passive migration of contaminants. HMAT offers no evidence that any passive migration has occurred here but asks us to take judicial notice that waste tends to spread once it is put in the ground, See Office of Remedial Response, United States Environmental Protection Agency, Supetfund Exposure Assessment Manual 8 (1988) [hereinafter Supetfund Manual ] (waste in landfills tends to migrate due to, inter aha, rain, groundwater movement, and wind) and waste therefore must have spread during the six years Dowel owned the property. Several courts have been sympathetic to this argument. See United States v. Waste Indus., Inc., 734 F.2d 159, 164-65 (4th Cir.1984) (migration of hazardous substances can constitute disposal under RCRA); CPC International, Inc. v. Aerojet-General Corp., 759 F.Supp. 1269," }, { "docid": "22238154", "title": "", "text": "CERCLA imposes strict liability for environmental contamination upon four broad classes of PRPs: “(1) the owner and operator of a vessel or a facility, “(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, “(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treat ment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and “(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance ...42 U. S. C. § 9607(a). Once an entity is identified as a PEP, it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004). In these cases, it is undisputed that the Railroads qualify as PRPs under both §§ 9607(a)(1) and 9607(a)(2) because they owned the land leased by B&B at the time of the contamination and continue to own it now. The more difficult question is whether Shell also qualifies as a PRP under § 9607(a)(3) by virtue of the circumstances surrounding its sales to B&B. To determine whether Shell may be held liable as an arranger, we begin with the language of the statute. As relevant here, § 9607(a)(3) applies to an entity that “arrange[sj for disposal... of hazardous substances.” It is plain from the language of the statute that CERCLA liability would attach under § 9607(a)(3) if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance. It is similarly clear that an" }, { "docid": "2223929", "title": "", "text": "taxpayers [are] not required to shoulder the financial burden of a nationwide cleanup.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). In furtherance of these goals, CERCLA allows private parties to recover the costs of cleaning up hazardous wastes from several broad categories of PRPs. 42 U.S.C. § 9607(a)(1)-(4). Liability under these provisions is strict and, by default, joint and several. PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 168 (4th Cir.2013). Relevant to this action, PRPs include any past “owner” or “operator” and any “arranger.” See 42 U.S.C. § 9607(a)(2)-(3). Under CERCLA, a person is liable as a past “owner” or “operator” if he “at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The phrase “owner or operator” is unhelpfully defined “only by tautology ... as ‘any person owning or operating’ a facility.” Bestfoods, 524 U.S. at 56, 118 S.Ct. 1876 (quoting 42 U.S.C. § 9601(20)(A)(ii)). Courts consider “owner” and “operator” liabilities in the disjunctive. Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 328 (2d Cir.2000); cf. Bestfoods, 524 U.S. at 64, 118 S.Ct. 1876. In this regard, past owner liability is fairly simple, and premised on the ownership, whether de facto or de jure, of a “ ‘facility’ at the time of the disposal of a hazardous substance.” PCS Nitrogen, 714 F.3d at 172 (citing 42 U.S.C. § 9607(a)(2)); see Commander Oil, 215 F.3d at 331-32. Notably, the ownership of the hazardous substances disposed of at a given facility is irrelevant to ownership liability. See 42 U.S.C. § 9607(a)(2). Operator liability is more nuanced, but Bestfoods provides some helpful guidance. There, the Supreme Court clarified that when defining “operator” liability under CERCLA, Congress “obviously meant something more than mere mechanical activation of pumps and valves” and intended liability to extend to those who “exercise ... direction over the facility’s activities.” 524 U.S. at 71, 118 S.Ct. 1876. On this basis, the Court concluded that an operator under CERCLA must “manage, direct, or" }, { "docid": "1411366", "title": "", "text": "section to be construed.”). . The dissent modifies the panel majority’s interpretation somewhat. This opinion responds only to the dissent. . The four classes of \"covered persons” include (1) current owners and operators of vessels or facilities where hazardous substances were disposed of; (2) past owners or operators of any such facilities; (3) persons who arranged for transport for disposal or treatment of hazardous substances; and (4) persons who accepted any such substances for transport to disposal or treatment facilities. 42 U.S.C. § 9607(a) (2000), 42 U.S.C. § 9607(a) (2000). While three defenses are enumerated in the statute, they are not routinely available to PRPs. See Susan M. Cooke and Christopher P. Davis, The Law of Hazardous Waste: Management, Cleanup, Liability, and Litigation § 13.01 [5][c], at 13-70.17. . See Sand Springs Home v. Interplastic Corp., 670 F.Supp. 913, 916 (N.D.Okla.1987) (relying on Stepan Chem. Co. in concluding \"that under 42 U.S.C. § 9607(a)(4)(B), a private party, even though a responsible party under CERCLA, who voluntarily pays CERCLA response costs may bring an action in its own behalf to collect cleanup costs against the parties allegedly responsible for the production and dumping of hazardous wastes”). . See, e.g., Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 889 (9th Cir.1986) (state agencies required site owner to test waste substances; owner sued prior owner for costs incurred; action allowed to proceed; appeal decided on same day as NL Indus., Inc.); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir.1986); City of New York v. Exxon Corp., 633 F.Supp. 609, 612-13, 615-18 (S.D.N.Y.1986) (city, which owned and operated landfills, sued corporations that generated and transported wastes dumped at landfills; court denied motions to dismiss city’s § 107 claims). Cf. Cadillac Fairview/California, Inc. v. Dow Chem. Co., 299 F.3d 1019, 1024 (9th Cir.2002) (owner sued other PRPs in 1983 for damages to cover expenses of investigating soil pollution; no indication in opinion that owner was sued beforehand; prior opinion in case, rejecting argument that prior governmental action was required for owner’s suit to proceed, states that testing activities were" }, { "docid": "23015386", "title": "", "text": "of contaminants that results from their conduct and for passive migration ensures the prompt and effective cleanup of abandoned storage tanks, which, as discussed infra, is one of the problems Congress sought to address when enacting CERCLA. Indeed, if “disposal” is interpreted to exclude all passive migration, there would be little incentive for a landowner to examine his property for decaying disposal tanks, prevent them from spilling or leaking, or to clean up contamination once it was found. B. Internal Consistency and Avoiding Illogical Results Our plain-language interpretation of “disposal” also makes sense within the liability provisions of CERCLA — the sections identifying the parties that are “potentially responsible.” As explained in section III.A, CERCLA creates four categories of PRPs: current owners or operators, owners or operators at the time of a disposal, arrangers, and transporters. See 42 U.S.C. § 9607(a). This categorization makes the best sense only under a plain-meaning interpretation of “disposal;” the extreme positions on either side render the structure awkward. For example, had Congress intended all passive migration to constitute a “disposal,” then disposal is nearly always a perpetual process. See, e.g., CDMG Realty, 96 F.3d at 716. Hence, every landowner after the first disposal would be liable, and there would be no reason to divide owners and operators into categories of former and current. See, e.g., id. at 715; Ecodyne Corp. v. Shah, 718 F.Supp. 1454, 1457 (N.D.Cal. 1989). On the other extreme, had Congress intended “disposal” to include only releases directly caused by affirmative human conduct, then it would make no sense to establish a strict liability scheme assigning responsibility to “any person who at the time of disposal ... owned or operated any facility.” 42 U.S.C. § 9607(a)(2). Rather, the statute would have a straightforward causation requirement. Similarly, our interpretation of “disposal” is sensible in light of CERCLA’s twin concepts of “disposal,” on one hand, and “release,” on the other. As explained in section I, CERCLA holds a PRP liable for a disposal that “releases or threatens to release” hazardous substances into the environment. Some courts, examining this structure, note that it would" } ]

[ { "docid": "18555491", "title": "", "text": "appears from the record that the school board and the superintendent of schools had consistently applied a policy prohibiting use of school facilities for religious activity. At all times pertinent to this complaint, no religious meetings occurred on school property, at least to the knowledge of school administrators, and no meetings of teachers occurred at Harper School except for those necessary to the operation and management of the school____ If other teacher groups were permitted to meet on a variety of religious and non-religious subjects in the kind of formalized way Mrs. May’s group met, there might be an argument that a public forum, or at least a limited public forum, existed in this case and that the exclusion of Mrs. May’s group was some denial of constitutional rights. The record reveals no such scenario.” 615 F.Supp. 761, 763-64 (S.D.Ind.1985). Mrs. May makes two arguments on appeal. The first is that as an employee of the school she has a right to exercise free speech on school premises provided she does not disrupt the school’s activities; since the religious meetings took place before school began and the students neither participated in the meetings nor (so far as anyone knows) were even aware of them, there was no disruption. Her second argument is that even if the school authorities could have forbidden meetings not directly related to school business, they didn’t do so. By allowing meetings on any subject except religion, they made the school a “public forum” between the time when it opened for teachers and the time the teachers had to report to their duty stations; and they could not arbitrarily exclude one subject of speech — religion—from the forum. To this the defendants reply that even if they created a public forum (which they deny), they were justified in excluding religious discussion from it, because to allow it would have violated the establishment clause of the First Amendment. Mrs. May’s first argument asks us to recognize a public employee’s right to use his (or her) employer’s premises for meetings on topics of public importance such as religion or" } ]

[ { "docid": "2395803", "title": "", "text": "to that now challenged.... presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.” Marsh, 463 U.S. at 791, 103 S.Ct. at 3335-3336 (citations omitted). The ceremonial invocations that open public high school games in Douglas County are facially constitutional under Marsh. These invocations add solemnity and dignity to a public event, preserve a long-standing and widespread tradition and remind participants and spectators of the importance of high ideals and values, such as sportsmanship and fair play at an athletic event. While the invocations at the football games may take the form of prayer, both the short duration of the invocations and the context in which they are delivered seem to alleviate any risk that the invocations will be used to proselytize or convert. Under the school’s revised plan, where volunteer speakers are chosen at random from students, faculty and parents without regard to their religious or lack of religious beliefs and where there is no participation of or identification with ministers or their churches, the neutrality of the invocations can be presumed. The invocations here appear to be no more an endorsement of Protestant Christianity or of religion than the legislative prayer upheld in Marsh. The indoctrination concerns raised in classroom prayer cases such as School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), are not implicated here. Football games in Douglas County are community events, and according to the district court’s findings, the audience at the games consists of a large proportion of adults. Most students who attend the games are sixteen to eighteen years old and younger students are often accompanied by their parents. The invocations do not occur in a classroom or instructional setting, involving the student-teacher relationship, but instead take place after school hours. Football, band and related activities are extracurricular, and attendance at the football games is entirely voluntary. The invocations are given only five times a year, so there is no danger of daily indoctrination as there is when structured prayer is" }, { "docid": "18639416", "title": "", "text": "an equal basis with other “noncurriculum related student groups” (e.g., Peer Advocates, Subsurfers, and the Chess Club). 496 U.S. at 247-53, 110 S.Ct. at 2370-73. The access accompanying official recognition included use of the school newspaper, bulletin boards, and the public address system to announce meeting times and promote turnout to the school’s annual Club Fair. Mergens, id. at 246-47, 110 S.Ct. at 2369-70. Although teachers or other school personnel can be present at religious meetings, the Equal Access Act permits meetings to be held only during “non-instructional” time and school personnel to be present solely in a “custodial” capacity — “merely to ensure order and good behavior.” Id. at 252-53, 110 S.Ct. at 2373-74. While the Act does not apply to the instant case, Mergens nonetheless informs as to the parameters of the Establishment Clause. The DISD understandably points to Mer-gens to support its contention that by allowing students and teachers to engage in spontaneous prayer, it merely is accommodating religion in a constitutionally permissible manner. For a number of reasons, however, Mergens is not implicated by the facts before us. First, Mergens involved ■raoraeurriculum-related activities; the crucial activity here, playing on a school-sponsored basketball team, is eatfracurricular. Second, even if participation on the school basketball team were non-currieular, the prayer here hardly could be considered student-initiated. Coach Smith chose the prayer and where and when it was to be said and led the team in reciting it. This is not the minimal, “custodial” oversight allowed by Mergens. Lastly, DISD has not established a “limited open forum.” Mergens does not reveal whether this constitutes merely a jurisdictional requirement for the application of the Act or instead, whether it partakes of a constitutional character. But the Act, according to the Court, “extended the reasoning of Widmar to public secondary schools,” Mergens, id. at 235, 110 S.Ct. at 2364, and Widmar undeniably premised its constitutional conclusions on the existence of a limited public forum. See Widmar, 454 U.S. at 267, 102 S.Ct. at 2380 (“Through its policy of accommodating their meetings, the University has created a forum generally open for use" }, { "docid": "19416245", "title": "", "text": "has its own chapel and Torah scrolls. But the school does not require its teachers to be Jewish and has an antidiscrimination policy expressly barring discrimination on the basis of religion, as well as race, gender, and sexual orientation. The school hired Grussgott in 2013 to teach both Hebrew and Jewish studies to first- and second-graders. Grussgott had an extensive background teaching both of these subjects, which was relevant to the school's decision to hire her. She was then rehired for the 2014-15 school year as a second- and third-grade teacher, but the parties' opinions regarding her duties at this time differ. Grussgott states that she was rehired solely as a Hebrew teacher and that she had no job responsibilities that were religious in nature. She says that during the 2014-15 school year, she was no longer invited to attend the Jewish Studies meetings that she had been required to attend the previous year. She does acknowledge, however, that she taught Hebrew from an integrated Hebrew and Jewish Studies curriculum, known as Tal Am, and that she attended community prayer sessions. She also concedes that she discussed Jewish values with her students, taught about prayers and Torah portions, and discussed Jewish holidays and symbolism. But, she asserts, this teaching was done from a cultural and historical, rather than a religious, perspective. She also attests that these portions of her lessons were taught voluntarily, not as part of her formal job requirements. The school maintains that Grussgott continued to be employed as a Hebrew and Jewish Studies teacher during the 2014-15 school year and that she should have continued to attend the Jewish Studies meetings at this time. The school also disputes that Grussgott's teaching of prayer and the Torah was voluntary, maintaining that this was in fact part of the school's curriculum and mission generally. Grussgott underwent medical treatment for a brain tumor in 2013 and ceased working during her recovery. She has since suffered memory and other cognitive issues. She returned to work in June 2014. During a March 2015 telephone call from a parent, Grussgott was unable to" }, { "docid": "18555511", "title": "", "text": "to endorse, but even there the “speech” held to be protected (the circulation of union literature) was more closely related to teaching than anything here. Mrs. May’s second argument for reversing the district judge is that even if the school had no duty to allow teachers to hold meetings on school premises, it could not once it decided to allow meetings to be held on subjects unrelated to school business forbid only religious meetings. This might seem to be an argument about religious freedom but, surprisingly, it is not. Mrs. May does not argue that the prohibition of religious meetings in the school violated her right to exercise her religion freely. She does not argue that her religious beliefs require that she hold these prayer sessions on school premises or that the defendants are trying to discourage evangelical Christianity in particular or religious observance in general. She pitches her claim entirely on the free speech clause of the First Amendment. She argues that having permitted other groups to use the school for the expression of ideas the defendants cannot single out one type of expression — religious expression — and ban it. She cites Widmar v. Vincent, supra, where a university allowed more than 100 student groups to use campus facilities to propagate their ideas, but forbade student religious groups to do so, and the Supreme Court held that having made the campus a public forum the university could not exclude religious speech from it. To the argument that the exclusion was not arbitrary because allowing student religious groups to use campus facilities would violate the establishment clause, the Court answered that it would not violate it, and the defense therefore failed. We may assume without having to decide that it would fail here too; that a prayer meeting held before school opens and unknown to the students is not an establishment of religion. The reference in the Widmar opinion to public forum may suggest that it is important whether the Harper School is a public forum, but we are not at all sure of this. Not only is there" }, { "docid": "22396404", "title": "", "text": "leads the recitation or selects a student to do so. No student, however, is compelled to take part. The respondents have adopted a regulation which provides that “Neither teachers nor any school authority shall comment on participation or non-participation . . . nor suggest or request that any posture or language be used or dress be worn or be not used or not worn.” Provision is also made for excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said. A letter implementing and explaining this regulation has been sent to each taxpayer and parent in the school district. As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official. In short, the only one who need utter the prayer is the teacher; and no teacher is complaining of it. Students can stand mute or even leave the classroom, if they desire. McCollum v. Board of Education, 333 U. S. 203, does not decide this case. It involved the use of public school facilities for religious education of students. Students either had to attend religious instruction or “go to some other place in the school building for pursuit of their secular studies. . . . Reports of their presence or absence were to be made to their secular teachers.” Id., at 209. The influence of the teaching staff was therefore brought to bear on the student body, to support the instilling of religious principles. In the present case, school facilities are used to say the prayer and the teaching staff is employed to lead the pupils in it. There is, however, no effort at indoctrination and no attempt at exposition. Prayers of course may be so long and of such a character as to amount to an attempt at the religious instruction that was denied the public schools by the McCollum case. But New York’s prayer is of a character that does" }, { "docid": "6012316", "title": "", "text": "meetings, they had previously done so, and several continued to attend each meeting. Since the policy requires only one teacher to monitor student meetings, the attendance by several teachers unmistakably expressed their personal endorsement of religion and, by implication, that of. the school. We believe that the presence of even one teacher would produce the same aura of school authorization and approval. Moreover, in contrast to the fluid environment of a university campus, the highly structured environment of the Little Axe School furthered the appearance of school endorsement of the Son Shine Club. Few other student organizations ever met at the school, and none met during the morning between the arrival of the buses and the first class. Although virtually all students arrived between 8:00 and 8:10 a.m., they were not permitted inside the building except to attend meetings of the Son Shine Club. In addition, posters prominently displayed in the halls advertised the religious nature of the meetings and invited students to participate. Students not only were aware of the meetings, they could not avoid contact with participants. These considerations reveal that meetings of the Son Shine Club conferred an imprimatur of state approval on religion in the Little Axe School District. “To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit.” Lubbock, 669 F.2d at 1045 (quoting Brandon, 635 F.2d at 978). The District argues that since these meetings were voluntary, any false impression of school endorsement was removed. We disagree. This fact is not relevant to Establishment Clause analysis. “Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause---- When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel v. Vitale," }, { "docid": "6012315", "title": "", "text": "under state law. Id. Moreover, since the high school environment is far more structured and controlled than that of a college campus, involuntary contact between non-participating students and religious groups is inevitable. Students are less able to overlook the activities of such groups and thus would be more likely to perceive a message of endorsement by school authorities. Id. Finally, the requirement of teacher monitoring, regardless of the degree of actual participation, “necessarily must impart the impression to students that the school’s authority and ... endorsement [are] implicated in the relevant activity____” Id. We believe that an elementary school cannot be compared to either a university campus or a high school. Elementary schoolchildren are vastly more impressionable than high school or university students and cannot be expected to discern nuances which indicate whether there is true neutrality toward religion on the part of a school administration. A child, for example, is unlikely to distinguish any difference between school sponsorship and mere fac ulty supervision. Although under the policy teachers no longer actively participate in the meetings, they had previously done so, and several continued to attend each meeting. Since the policy requires only one teacher to monitor student meetings, the attendance by several teachers unmistakably expressed their personal endorsement of religion and, by implication, that of. the school. We believe that the presence of even one teacher would produce the same aura of school authorization and approval. Moreover, in contrast to the fluid environment of a university campus, the highly structured environment of the Little Axe School furthered the appearance of school endorsement of the Son Shine Club. Few other student organizations ever met at the school, and none met during the morning between the arrival of the buses and the first class. Although virtually all students arrived between 8:00 and 8:10 a.m., they were not permitted inside the building except to attend meetings of the Son Shine Club. In addition, posters prominently displayed in the halls advertised the religious nature of the meetings and invited students to participate. Students not only were aware of the meetings, they could not" }, { "docid": "18555495", "title": "", "text": "v. Walters, 782 F.2d 701, 708 (7th Cir.1986), is similar. Mrs. May certainly could not command the school board to keep the Harper School open at night free of charge so that she could hold prayer meetings or any other sort of meeting there without having to pay rent. If she had such a right it would mean that public employees had much greater rights of free speech than the rest of the community. They would have the guaranteed free use of their employers’ premises for their speeches and meetings while private employees would have access for such purposes neither to those premises nor to their own employers’ premises, except in the unlikely event that a private employer voluntarily permitted employees tq use his premises for meetings unrelated to their work for him. This case is less extreme than our hypothetical case, however, because Mrs. May is not asking that the school be opened earlier or closed later. The school has to be open to teachers before the students are allowed into the building, to make sure that all the teachers are at their duty stations when the students arrive. The premises are not fully utilized during this interval and all Mrs. May wants to do is to take up some of the slack, as it were, by using for prayer, hymns, and religious discussion a classroom or other room (most of the meetings occurred in the guidance counselor’s office) not otherwise used during this time for anything at all. ' The marginal cost of her use is (she might argue) zero. But the objection to forcing an employer to allow his premises to be used for meetings by employees has deeper roots than the marginal costs in electricity or maintenance that such use might impose. There is a potential distortion of the market in ideas if public employees are given greater rights of free expression than private employees by having a right of free access to their employers’ premises for meeting purposes; and although the practical significance of such access may be small in this case as we shall" }, { "docid": "18639415", "title": "", "text": "that the Does demonstrated a substantial likelihood of success on the constitutional merits of their claim. The parties point us to two different lines of precedent: a restrictive one of considerable parentage that prohibits prayer in the school classroom or environs, the most recent statement of which is the Court’s opinion in Lee v. Weisman, — U.S. -, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); and a recently-carved-out exception, permitting equal access to school facilities to student-run religious groups and student-initiated prayer, see Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 243-53, 110 S.Ct. 2356, 2368-73, 110 L.Ed.2d 191 (1990); Widmar v. Vincent, 454 U.S. 263, 271-75, 102 S.Ct. 269, 275-77, 70 L.Ed.2d 440 (1981). In Mergens, the Court interpreted the Equal Access Act (the “Act”), 20 U.S.C. §§ 4071-4074, and held that under its nondiscrimination provisions, Congress constitutionally could require a school receiving federal funds, which had established a “limited open forum,” to permit a student-initiated prayer group to be formed and accorded official recognition and access to facilities on an equal basis with other “noncurriculum related student groups” (e.g., Peer Advocates, Subsurfers, and the Chess Club). 496 U.S. at 247-53, 110 S.Ct. at 2370-73. The access accompanying official recognition included use of the school newspaper, bulletin boards, and the public address system to announce meeting times and promote turnout to the school’s annual Club Fair. Mergens, id. at 246-47, 110 S.Ct. at 2369-70. Although teachers or other school personnel can be present at religious meetings, the Equal Access Act permits meetings to be held only during “non-instructional” time and school personnel to be present solely in a “custodial” capacity — “merely to ensure order and good behavior.” Id. at 252-53, 110 S.Ct. at 2373-74. While the Act does not apply to the instant case, Mergens nonetheless informs as to the parameters of the Establishment Clause. The DISD understandably points to Mer-gens to support its contention that by allowing students and teachers to engage in spontaneous prayer, it merely is accommodating religion in a constitutionally permissible manner. For a number of reasons, however, Mergens is" }, { "docid": "8833845", "title": "", "text": "on equal footing with secondary school students, who the Supreme Court has held are mature enough to differentiate between sponsorship and mere custodial oversight. Mergens, 496 U.S. at 250, 110 S.Ct. at 2371-72. Furthermore, the court finds that no imprimatur of state involvement is exhibited in this practice as it relates to the non-participating students. The risk of the appearance of improper state involvement is significantly diminished in an opfc-in type of situation as exists here, as opposed to an opt-out situation in the classroom prayer practices. Students who wish to participate in the preschool devotionals actively seek out involvement in the religious activity without burdening those who do not. Moreover, the compulsory attendance laws, that have driven many courts to find subtle coercive pressures, do not operate prior to the commencement of the school day. Therefore, students who are present before the school day begins are not compelled to be there and do so of their own free will. Without such a determination, there would be a per se rule against the participation of elementary students in any organized religious activities based solely on the required custodial oversight of the children. Accordingly, the court finds that the current practices of the Aletheia Club for all grades prior to school should be permitted to continue. The court therefore modifies the preliminary injunction opinion, Herdahl, 887 F.Supp. at 909, to reflect the current changes. Additionally, the court notes that in this present practice teachers are not per mitted to participate in the religious meetings. III. CLASSROOM PRAYER The issue of organized classroom prayer in elementary classrooms at the Center prior to lunch was also dealt with in the preliminary injunction. See Herdahl, 887 F.Supp. at 911 n. 9. As Superintendent Horton testified, subject to the discretion of individual teachers and classes, such prayer was authorized to be led by students prior to the preliminary injunction. Until this court’s order, such prayer was facilitated directly by elementary teachers. For example, kindergarten teacher Suzanne Montgomery testified that she designated one child each day as a “blessing sayer-helper” to lead the prelunch prayer. In" }, { "docid": "19888641", "title": "", "text": "cases involving state participation in a religious activity.” See Santa Fe, 530 U.S. at 308, 120 S.Ct. 2266. For example, in Santa Fe, the leading case on prayers before high school football games, the Supreme Court used the endorsement test in considering whether a school district violated the Establishment Clause where its policy allowed a student to deliver a pre-game prayer based on a voting system. Id. Here, Borden, an employee of the School District as both the head football coach and a tenured teacher, would like to bow his head and take a knee while students pray. Thus, the endorsement test is applicable here because these facts involve a state employee engaging in the religious activity of students in some fashion. The relevant question under the endorsement test is “whether a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion.” Modrovich, 385 F.3d at 401; see also Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. at 596, 109 S.Ct. 3086 (adopting the endorsement test). The test does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer. Modrovich, 385 F.3d at 401. The history and context of Borden’s prayer activities with the team, if chal lenged, could have been Establishment Clause violations. In a case that is similar to the facts of the present case prior to the School District’s enactment of the policy, the Court of Appeals for the Fifth Circuit found that a basketball coach’s involvement in prayer “signalled] an unconstitutional endorsement of religion.” Duncanville, 70 F.3d at 406. In Duncanville, a basketball coach recited the Lord’s Prayer with his players during practices and after games. Id. at 404. Parents of the students challenged this practice, and the district court granted an injunction which prohibited “[the school district], its employees and its agents from: leading, encouraging, promoting, or participating in prayers with or among students during curricular or extracurricular activities, including before, during, or after school-related sporting events.... Students may voluntarily" }, { "docid": "2395776", "title": "", "text": "the invocations take place at a school-owned stadium during a school-sponsored event. In Doe v. Aldine Ind. School Dist., 563 F.Supp. 883 (S.D.Tex.1982), the United States District Court for the Southern District of Texas rejected the argument that the School District asserts here. In Doe, a public high school sponsored extracurricular activities at which a prayer was sung. The defendants argued that the prayer did not violate the Establishment Clause because it occurred outside the classroom. The Doe court rejected this argument: Pep rallies, football games, and graduation ceremonies are considered to be an integral part of the school’s extracurricular program and as such provide a powerful incentive for students to attend.... “[I]t is the Texas compulsory education machinery that draws the students to the school event and provides any audience at all for the religious activities.... ” Since these extracurricular activities were school sponsored and so closely identified with the school program, the fact that the religious activity took place in a nonreligious setting might create in a student’s mind the impression that the state’s attitude toward religion lacks neutrality. Id. at 887 (citation omitted). The Doe court’s reasoning applies equally well in the present case. The School District next contends that football invocations do not invoke the teacher-student relationship, and are directed to a far less impressionable audience of adults and sixteen-to-eighteen year olds. However, the equal access plan does permit teachers to deliver religious invocations, thereby impacting on the teacher-student relationship. Furthermore, to persons of any age who do not believe in prayer, religious invocations permitted by the equal access plan convey the message that the state endorses religions believing in prayer and denigrates those religions that do not. If these prayers are delivered by authority figures, such as teachers, as is possible under the equal access plan, the message endorsing prayer becomes even stronger. The School District argues further that the invocations are constitutional because they are given at public events at which attendance is entirely voluntary. Courts upholding invocations at graduation ceremonies have stressed that attendance is voluntary. See, e.g., Wood v. Mt. Lebanon Township" }, { "docid": "474277", "title": "", "text": "CHARLES CLARK, Circuit Judge: Parents of students were denied declaratory and injunctive relief from the Louisiana statute and derivative Jefferson Parish School Board regulations which establish guidelines for student participation in prayer at school. They contend that the statute and regulations offend the First Amendment proscription against enactment of laws respecting the establishment of religion. We agree and reverse the district court. I. Louisiana Revised Statutes § 17:2115 (1981) has two components. Subsection A provides that each parish and city school board shall permit the appropriate local school authorities to allow those students and teachers who so desire to observe a brief period of silent meditation at the beginning of each school day. The statute expressly declares that this observance can neither be intended nor identified as a religious exercise. The plaintiffs have no quarrel with the silent meditation provision of the statute, and it is not involved in this litigation. The challenged provision, subsection B, is essentially enabling legislation. It provides that a school board may authorize the appropriate school officials to allow each classroom teacher to ask whether any student wishes to offer a prayer and, if no student volunteers, to permit the teacher to pray. The statute limits any prayer offered to no longer than five minutes and provides that no student or teacher may be compelled to pray. In the event a student in the classroom objects or the student’s parent or legal guardian objects in writing to the proper school authority, subsection B provides that the student may not be required to participate or to be present during the time prayer is being offered. See La. Rev.Stat. § 17:2115(B) (1981). The Jefferson Parish School Board has adopted a resolution establishing guidelines to implement section 17:2115(B) in parish schools. These guidelines provide that each school day will begin at the regular time with a minute of prayer followed by a minute of silent meditation. Under the school board guidelines, each teacher must ask if any student wishes to volunteer a prayer, and, if no student wishes to do so, the teacher may offer a prayer of" }, { "docid": "2395777", "title": "", "text": "state’s attitude toward religion lacks neutrality. Id. at 887 (citation omitted). The Doe court’s reasoning applies equally well in the present case. The School District next contends that football invocations do not invoke the teacher-student relationship, and are directed to a far less impressionable audience of adults and sixteen-to-eighteen year olds. However, the equal access plan does permit teachers to deliver religious invocations, thereby impacting on the teacher-student relationship. Furthermore, to persons of any age who do not believe in prayer, religious invocations permitted by the equal access plan convey the message that the state endorses religions believing in prayer and denigrates those religions that do not. If these prayers are delivered by authority figures, such as teachers, as is possible under the equal access plan, the message endorsing prayer becomes even stronger. The School District argues further that the invocations are constitutional because they are given at public events at which attendance is entirely voluntary. Courts upholding invocations at graduation ceremonies have stressed that attendance is voluntary. See, e.g., Wood v. Mt. Lebanon Township School Dist., 342 F.Supp. 1293, 1294 (W.D.Pa.1972). However, the Supreme Court and this Court have not held that public prayer becomes constitutional when student participation is purely voluntary. See Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266-67, 8 L.Ed.2d 601 (1962) (“Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause”); see also Karen B. v. Treen, 653 F.2d at 902. The School District attempts to distinguish these cases on the ground that they involved students who were compelled by law to be in attendance in the classrooms where prayer took place. The School District suggests that, because attendance at football games is voluntary, a constitutional violation is avoided. This argument lacks merit because whether the complaining individual’s presence was voluntary is not relevant to the Establishment Clause analysis. Bell v. Little Axe Ind. School Dist. No. 70, 766 F.2d 1391, 1405 (10th Cir.1985). The Establishment" }, { "docid": "7303896", "title": "", "text": "flag. Ala. Code § 16-43-5 provides, “The State Board of Education shall afford all students attending public kindergarten, primary and secondary schools the opportunity each school day to voluntarily recite the pledge of allegiance to the United States flag.” (emphasis added). State law clearly does not allow students to be forced to salute the flag. The Superintendent of the Walker County Public School System issued a memorandum on the Board of Education’s letterhead, stating, “[E]ach. school system must incorporate a Character Education Plan which will consist of ten minutes of instruction per day in various areas, such as, the Pledge of Allegiance .... Each day must include the Pledge of Allegiance, and then other areas mentioned as you determine at your school.” This official policy directive lacks the language of voluntariness found in the statute. It also mandates that each day include the pledge, rather than include the opportunity to recite the pledge. A reasonable jury could conclude that this memorandum required teachers to ensure that their students actually recited the pledge. Consequently, the Board may be held liable for Holloman’s compelled-speech First Amendment claim. To hold the Board liable under the Establishment Clause claim for Allred’s daily moment of silent prayer under an “official policy” theory, we must find a policy mandating, authorizing, or permitting teachers to take prayer requests or hold moments of silence for prayer. The only testimony in the record concerning whether or not these prayers were conducted pursuant to School Board policy came from Allred. She testified during her deposition that her practice of asking for prayer requests was “actually included in compassion in the character education plan. For me to refuse students to express compassion for someone else would be contrary to our character education plan that we implement through our curriculum.” Based on the uncontroverted testimony from the teacher charged with implementing School Board policies (including the character education plan the Board required schools in the district to implement) that her unconstitutional acts were required by a Board policy, we cannot help but conclude that Holloman has introduced sufficient evidence to show that" }, { "docid": "23442928", "title": "", "text": "Regents. Although students were permitted to be excused from the classroom during the prayer, the Supreme Court found that a particular form of Western theistic religion was improperly advanced by it. Similarly, when teachers from religious organizations are permitted to enter a public school for the purpose of religious instruction, the symbolism is apparent. McCollum, supra. Religious interests are permissibly accommodated, and not advanced, however, where a public school allows its students to leave the premises for religious instruction under a “released time” program. Zorach, supra. Further, the semblance of official support is less evident where a school building is used at night as a temporary facility by religious organizations, under a program that grants access to all charitable groups. Resnick v. East Brunswick Township Board of Education, 77 N.J. 88, 389 A.2d 944 (1978). Also, where a clergyman briefly appears at a yearly high school graduation ceremony, no image of official state approval is created. Wood v. Mt. Lebanon Township School District, 342 F.Supp. 1293 (W.D.Pa.1972). . The degree of official support of religious activities is greater, of course, in the school prayer or religious instruction cases than in the instant case. The record indicates that school buses discharge students at the Guilderland High School between 7:20 a. m. and 7:40 a. m., and that the official school day “begins” at this point. Any voluntary student prayer meetings conducted after the arrival of the school buses and before the formal “homeroom” period at 7:50 a.m., therefore, would occur during school hours. The prayer meetings would create an improper appearance of official support, and the prohibition against impermissibly advancing religion would be violated. The final element of the test is the prohibition of “entanglement,” and the School Board has demonstrated that an excessive involvement of the state in religious matters would have resulted if the students’ requests were granted. Entanglement analysis focuses on procedural questions. Roemer v. Board of Public Works, supra, 426 U.S. at 755, 96 S.Ct. at 2349, and, if the state must engage in continuing administrative supervision of nonsecular activity, church and state are excessively intertwined. This" }, { "docid": "7932968", "title": "", "text": "We do not agree. As we noted in Doe I, “ ‘the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.’ ” 994 F.2d at 165 (quoting Lee, 505 U.S. at 586-87, 112 S.Ct. at 2655). See also Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir.1993) (free expression rights must bow to the Establishment Clause prohibition on school-endorsed religious activities). This is particularly true in the instant context of basketball practices and games. The challenged prayers take place during school-controlled, curriculum-related activities that members of the basketball team are required to attend. During these activities DISD coaches and other school employees are present as representatives of the school and their actions are representative of DISD policies. See Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir.1991) (“a teacher’s [religious] speech can be taken as directly and deliberately representative of the school”). DISD representatives’ participation in these prayers improperly entangles it in religion and signals an unconstitutional endorsement of religion. See also Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 2372-73, 110 L.Ed.2d 191 (1990) (quoting Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987)) (EAA valid because it expressly forbids teacher participation and “avoids the problems of ‘the students’ emulation of teachers as role models’ ”). For these reasons, we find that the district court did not err in enjoining DISD employees and agents from participating in student-initiated prayers. 2. Supervision DISD contends that the district court’s statement that “[s]tudents may voluntarily pray together, provided such prayer is not done with school participation or supervision” contradicts the Supreme Court’s holding in Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). In Mergens, the Supreme Court upheld the Equal Access Act (EAA) requirement that a non-curricular student prayer group be given the same access to school facilities as other student groups. Under the EAA, school employees can be present at these religious meetings for custodial purposes. Id. at 253," }, { "docid": "18555510", "title": "", "text": "are not. Academic freedom, we may assume, is not exclusively a prerogative of the academic institution, though obviously a school has considerable authority over what teachers teach, a point well illustrated by Solmitz v. Maine School Administrative Dist. No. 59, 495 A.2d 812 (Me. 1985). But the only issue of academic freedom in this case is the right of a public school to operate without interference from the federal courts. See Piarowski v. Illinois Community College Dist. 515, supra, 759 F.2d at 629, and cases cited there. Teachers do not exercise academic freedom when they meet before school opens for a prayer meeting from which students are carefully excluded. They pursue in this setting personal ends unrelated to their role as teachers. They may have limited First Amendment rights but not by virtue of being teachers, and those rights do not include the use of school premises for unauthorized meetings unrelated to teaching. Friedman v. Union Free School Dist. No. 1, 314 F.Supp. 223 (E.D.N.Y.1970), suggests a broader right for teachers than we are prepared to endorse, but even there the “speech” held to be protected (the circulation of union literature) was more closely related to teaching than anything here. Mrs. May’s second argument for reversing the district judge is that even if the school had no duty to allow teachers to hold meetings on school premises, it could not once it decided to allow meetings to be held on subjects unrelated to school business forbid only religious meetings. This might seem to be an argument about religious freedom but, surprisingly, it is not. Mrs. May does not argue that the prohibition of religious meetings in the school violated her right to exercise her religion freely. She does not argue that her religious beliefs require that she hold these prayer sessions on school premises or that the defendants are trying to discourage evangelical Christianity in particular or religious observance in general. She pitches her claim entirely on the free speech clause of the First Amendment. She argues that having permitted other groups to use the school for the expression of" }, { "docid": "22882318", "title": "", "text": "prayer program officially establishes the religious beliefs embodied in the ... prayer.”). The supper prayer is “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property.” Santa Fe, 530 U.S. at 307, 120 S.Ct. 2266. In this context, “an objective observer, acquainted with the [supper prayer] would perceive it as a state endorsement of prayer in public schools.” Id. at 308, 120 S.Ct. 2266 (internal quotation marks omitted). As the Court has observed, “[s]uch an endorsement is not consistent with the established principle that the gov ernment must pursue a course of complete neutrality toward religion.” Wallace, 472 U.S. at 60, 106 S.Ct. 2479. Even though VMI intended the supper prayer to be both inclusive and nondenominational, the Establishment Clause prohibits a state from promoting religion by authoring and promoting prayer for its citizens. In the words of the Court, “[t]he First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say.” Engel, 370 U.S. at 429, 82 S.Ct. 1261. In establishing its supper prayer, VMI has done precisely what the First Amendment forbids. In numerous other cases, courts have struck down similar practices under Lemon’ s “primary effect” prong. See, e.g., Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 346-47 (5th Cir.1999) (striking down policy requiring teachers to read disclaimer before teaching theory of evolution); Coles, 171 F.3d at 384-85 (same for practice of school board to open meetings with prayer); Ingebretsen, 88 F.3d at 279 (same for statute authorizing students to initiate prayer at school functions); Black Horse Pike Reg’l Bd. of Educ., 84 F.3d at 1487 (same for policy authorizing student vote on whether to incorporate prayer in graduation ceremony); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir.1995) (same for participation of basketball coach in prayer after games). With these decisions as a jurisprudential background, we are constrained to conclude that the supper prayer" }, { "docid": "23442927", "title": "", "text": "on a particular religious creed. This symbolic inference is too dangerous to permit. See Roemer v. Board of Public Works, supra, 426 U.S. at 750, 764, 96 S.Ct. at 2346, 2353 (1976); Abington, supra; Engel, supra; Chess v. Widmar, supra, 635 F.2d 1310; Tribe, supra § 14-5 at 825. An adolescent may perceive “voluntary” school prayer in a different light if he were to see the captain of the school’s football team, the student body president, or the leading actress in a dramatic production participating in communal prayer meetings in the “captive audience” setting of a school. O’Hair v. An-drus, 613 F.2d 931, 936 (D.C.Cir.1979) (Lev-enthal, J.). Misconceptions over the appropriate roles of church and state learned during one’s school years may never be corrected. As Alexander Pope noted, “Tis Education forms the common mind,/Just as the twig is bent, the tree’s inclin’d.” (Epistle to Lord Cobham). Abington and Engel, for example, involved teacher supervision of the reading of verses from the Bible land the recital of a prayer composed by the State Board of Regents. Although students were permitted to be excused from the classroom during the prayer, the Supreme Court found that a particular form of Western theistic religion was improperly advanced by it. Similarly, when teachers from religious organizations are permitted to enter a public school for the purpose of religious instruction, the symbolism is apparent. McCollum, supra. Religious interests are permissibly accommodated, and not advanced, however, where a public school allows its students to leave the premises for religious instruction under a “released time” program. Zorach, supra. Further, the semblance of official support is less evident where a school building is used at night as a temporary facility by religious organizations, under a program that grants access to all charitable groups. Resnick v. East Brunswick Township Board of Education, 77 N.J. 88, 389 A.2d 944 (1978). Also, where a clergyman briefly appears at a yearly high school graduation ceremony, no image of official state approval is created. Wood v. Mt. Lebanon Township School District, 342 F.Supp. 1293 (W.D.Pa.1972). . The degree of official support of religious" } ]

[ { "docid": "22652366", "title": "", "text": "governing successive applications for federal habeas corpus and motions under § 2255 has reached the point at which the formulation of basic rules to guide the. lower federal courts is both feasible and desirable. Compare Townsend v. Sain, 372 U. S. 293, 310. Since the motion procedure is the substantial .equivalent of federal habeas corpus, we see no need to differentiate the two for present- purposes. It should be noted that these rules are not operative in cases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. 28 U. S. C. §§ 2243, 2255. In such a case the application should be denied without a hearing. A.'Successive Motions on Grounds Previously Heard and Determined. Controlling weight may be given to denial'of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant' on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. (1) By “ground,” we mean simply a sufficient: legal-basis for granting the relief sought by the applicant. For' example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, cf. Wilson v. Cook, 327 U. S. 474, 481; Dewey v. Des Moines, 173 U. S. 193, 198, or be couched in different language, United States v. Jones, 194 F. Supp. 421 (D. C. D. Kan. 1961) (dictum), aff'd mem., 297 F. 2d 835 (C. A. 10th Cir.1962), or vary in immaterial respects, Stilwell v. United States Marshals, 192 F. 2d 853 (C. A. 4th" } ]

[ { "docid": "20964772", "title": "", "text": "same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Id. at 15, 83 S.Ct. at 1077. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts codifies this test. It provides: (b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. foll. § 2254, Rule 9(b) (emphasis added). This Court has held that dismissal of a habeas petition pursuant to Rule 9 lies within the discretion of the trial judge. Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 99, 88 L.Ed.2d 80 (1986). See also Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. Thus, we must determine whether the trial judge abused his discretion in concluding that petitioner’s contention that his plea was not voluntarily and intelligently made because his Illinois counsel failed to apprise him of the double jeopardy violation and the contention in the first petition that his plea was not voluntarily and intelligently entered because he was not aware of the charges against him are sufficiently similar to be regarded as the same “grounds” for Rule 9(b) purposes. The Sanders Court defined “ground” as “a sufficient legal basis for granting the relief sought by the applicant,” and provided the following illustration: “a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ‘ground’ than does one predicated on alleged physical coercion.” Sanders, 373 U.S. at 16, 83 S.Ct. at 1077. The Court also stated that identical grounds may often be proved by different factual allegations and legal arguments." }, { "docid": "1640680", "title": "", "text": "F.Supp. at 896-97. We affirmed that decision. 731 F.2d 550. Section 2255 provides in relevant part: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” 28 U.S.C. § 2255 (1988). Rule 9(b) under section 2255, states: A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.... In Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), the Supreme Court held that [c]ontrolling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Id. (footnote omitted). As the district court noted in denying the present motion, “courts are not bound to entertain successive motions or petitions for relief which allege grounds already fully considered. See Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir.1972).” The decision in Peltier’s prior section 2255 proceeding “determined adversely” to Peltier these two arguments presented in the present application, and those determinations were on the merits. As explained in Part III.B, below, Peltier’s present claims also do not meet the “miscarriage of justice” standard, which is the Supreme Court’s reformulation in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), of the Sanders “ends of justice” test. The district court was fully justified in declining to consider the merits of these two claims a second time, despite their repackaging under the heading of government misconduct. B. Peltier’s three other contentions of government misconduct were not made in the prior section 2255 proceeding. Those contentions are: (1) the government induced a mentally ill woman, Myrtle Poor Bear, to falsify affidavits claiming that she witnessed Peltier kill" }, { "docid": "1640679", "title": "", "text": "at 894. As noted in Part I.B above, after a hearing, the district court in a lengthy opinion, concluded that, “evaluated in the context of the entire record, [the ballistics memorandum] would not have affected the outcome of the trial, and does not create a reasonable doubt that did not otherwise exist.” 609 F.Supp. at 1154. We affirmed. 800 F.2d 772. With respect to the evidence of different colored vehicles, the district court concluded: At the time of trial, conflicting evidence was presented to the jury as to what Anderson said he saw and whether he was in a position to see the vehicle being followed by Special Agents Coler and Williams.... Petitioner has alleged the legal conclusion, unsupported by facts, that Anderson perjured himself. The arguments relating to other vehicles is [sic] but a repeat of issues presented to the jury, which issues were thoroughly argued. If there is any evidence available from which one might conclude perjury was involved, that evidence was presented to the jury or available to defendant at trial. 553 F.Supp. at 896-97. We affirmed that decision. 731 F.2d 550. Section 2255 provides in relevant part: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” 28 U.S.C. § 2255 (1988). Rule 9(b) under section 2255, states: A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.... In Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), the Supreme Court held that [c]ontrolling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Id. (footnote omitted). As the district" }, { "docid": "23608343", "title": "", "text": "Rule 9(b) makes clear that it incorporates and preserves existing case law with respect to abuse of the writ. More specifically, as enacted by Congress, Rule 9(b) codifies the seminal case of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) with its guidelines concerning abuse of the writ. Advisory Committee Note, Rule 9, Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C.A. foil. § 2254); H.R.Rep.No.1471, 94th Cong., 2d Sess., 5-6, reprinted in [1976] U.S.Code Cong. & Adm. News, pp. 2478, 2482; Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.), cert. denied-U.S.-, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980); Galtieri v. Wainwright, 582 F.2d 348, 356 n.18 (5th Cir. 1978) (en banc). In Sanders v. United States, the Supreme Court addressed the question: in light of the inapplicability of res judicata to habeas corpus, what significance, in determining whether to entertain a subsequent petition, should a district court give to the denial of prior applications for habeas relief. Although Sanders was concerned with a § 2255 motion, the Court made clear that the principles it was there announcing concerning successive petitions applied generally to applications for federal habeas. 373 U.S. at 15, 83 S.Ct. at 1077. See also Advisory Committee Notes, Rule 9(b) of the Rules Governing Section 2254 Cases in United States District Courts (28 U.S.C.A. foll. § 2254); Paprskar v. Estelle, supra. Sanders divided successive applications for habeas into two situations. The first classification specified the principles governing successive motions on grounds previously heard and determined: Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant to the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. at 15, 83 S.Ct. at 1077. Here, the notion of abuse of the writ does not arise. Instead, the court," }, { "docid": "18845598", "title": "", "text": "second clause, concerning failure to raise new grounds in an earlier petition, involves the problem of “abusive” motions. See Neuschafer v. Whitley, 860 F.2d 1470, 1474 n. 3 (9th Cir.1988). The issue of whether Molina’s third motion is “abusive” is not properly before this court inasmuch as the government did not, as required, specifically raise this issue in response to Molina’s motion, either in the district court or on appeal. Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); United States v. Donn, 661 F.2d 820, 823 (9th Cir.1981). Therefore, the only issue in this regard is whether Molina’s motion is “successive.” In addition to the Rule 9(b) language concerning successive motions, § 2255 provides that the court “shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Rule 9(b), which became effective in 1977, was drafted so as to be “consistent with the language of § 2255 and relevant case law.” Rule 9, Rules Governing § 2255 Proceedings, advisory committee’s note. Accordingly, pre-1977 case law interpreting this provision of § 2255 is relevant in interpreting the meaning of Rule 9(b). The leading Supreme Court case concerning the import of successive motions under § 2255 is Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068,10 L.Ed.2d 148 (1963). In language comparable to Rule 9(b), Sanders held that a prior adverse determination, on the merits, of a ground presented in an earlier motion could be held controlling, at least where the ends of justice would not be served by reaching the merits of the subsequent motion. Id. at 15, 83 S.Ct. at 1077. There is no dispute in the present case that Molina’s earlier motions were rejected on the merits. Accordingly, the key issue is whether each “ground” asserted in the current § 2255 motion is sufficiently different from those alleged in the prior motions. Sanders provides some important guidance, on the difficult issue of what constitutes a different “ground” of relief. The Court’s comments make it very clear that a prisoner does" }, { "docid": "14239021", "title": "", "text": "advisory committee's note, Rules Governing § 2255 Proceedings; D.Me. L.R. 13. . Moreover, a Rule 59(e) motion must be served within ten days. See Fed.R.Civ.P. 59(e). The first signed certificate of service reflects that service was not made until June 28. See Rivera, 840 F.2d at 155 (movant bears burden of establishing service of Rule 59(e) motion). . As petitioner withdrew the third and final motion for reconsideration, notwithstanding our August 28, 1991 order directing the parties' attention to Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st Cir.1979) (defining procedure for filing and disposing of a Rule 60(b) motion while an appeal from the underlying judgment is pending in the court of appeals), petitioner plainly waived any claim of error relating to the denial of the motions for reconsideration. . Since we are unable to conduct effective appellate review without the benefit of the district court’s consideration of the Jencks Act claim, if called upon to do so in the future the district court would be required to rule whether petitioner may raise the Jencks Act claim in a successive § 2255 petition. See Rule 9(b), Rules Governing Section 2255 Proceedings. The Supreme Court has held that a successive § 2254 petition presenting a ground for relief, not previously raised, is to be given \"full consideration [on] the merits ... [unless] there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading.” Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (§ 2254); see Saville v. United States, 451 F.2d 649 (1st Cir.1971) (reversing district court denial of third habeas petition, without evidentiary hearing, where court relied on denials of prior motions, but third petition raised two new constitutional claims); 28 U.S.C. § 2244(b) (successive applications for § 2255 relief “need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application ..., and unless the court ... is satisfied that the applicant has not on the" }, { "docid": "23475200", "title": "", "text": "untimely filed. On August 30, 1982, Chua filed a petition for writ of habeas corpus in the District Court for the District of Kansas. He raised the same issues which are raised in the current motion. That court dismissed the habeas corpus action without prejudice on the grounds that the pro se motion pursuant to section 2255 filed with the sentencing court had not exhausted the section 2255 remedy. On November 22, 1982, Chua filed a second section 2255 motion in the sentencing court. The court denied the motion and this appeal followed. II SUCCESSIVE SECTION 2255 MOTIONS Two of Chua’s contentions, that his guilty plea was not voluntary and that the United States lacked jurisdiction over the crimes, were raised by Chua in a previous section 2255 motion. When Chua raised these claims in his second section 2255 motion, the sentencing court held that the claims were barred by the court’s previous determination on the merits of the claims. The Supreme Court has held that a second hearing on a section 2255 motion may be denied on the basis of a previous section 2255 motion only if: (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). This court requires that “[i]f the district court dismisses a petition on the basis of a prior adjudication, it must make a specific finding that the ends of justice would not be served by reaching the merits.” Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9th Cir.1971) (emphasis added). There is no indication that the district court in this case made this specific finding. Although the district court erred in denying two of Chua’s claims on the basis of the previous section 2255 motion without making the specific finding that the ends of justice would not be served by reaching the merits," }, { "docid": "6857740", "title": "", "text": "days of the district court’s August 2, 1989 denial of his original motion to vacate. Rather than doing so, however, Reyes followed with not one, but two more motions alleging not just “substantially similar,” but identical grounds for relief. However, because Reyes' motions pray for the vacation of a criminal conviction rather than a civil judgment and are not ordinary Rule 60(b) motions, we hesitate to apply Burnside. A motion for a writ of audita querela seeking vacation of a then otherwise final criminal conviction might perhaps more properly be considered, for presently relevant procedural purposes, as analogous to other postconviction remedies, such as the writs of habeas corpus and coram nobis. Rather than dismiss Reyes’ appeal under a Burnside-Rule 60(b) analysis, then, we will consider a motion for a writ of audita querela as subject for these purposes to the procedural rules applicable to habeas corpus relief. Proceedings in which a defendant seeks habeas corpus relief from federal custody under 28 U.S.C. § 2255 are not subject to the principles of res judicata. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1072-74, 10 L.Ed.2d 148 (1963); Daniels v. Blackburn, 763 F.2d 705, 706 (5th Cir.1985). However, Rule 9(b) of the Rules Governing 28 U.S.C. § 2255 Proceedings states, in relevant part: “Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.... ” Rule 9(b), 28 U.S.C. foil. § 2255. A request for relief under § 2255 may be dismissed under this part of the rule if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the court reached the merits of the previous petition, and (3) the ends of justice are served by refusing to reach the merits of the current petition. Moore v. Blackburn, 806 F.2d 560, 564 (5th Cir.1986) (citing Sanders, supra, 83 S.Ct. at 1077-79), cert. denied, 481 U.S. 1042, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987). See also Kuhlmann" }, { "docid": "6296543", "title": "", "text": "9(b) of the Rules Governing § 2254 Cases, as amended by Pub.L. 94-426, §§ 2(7), (8), 90 Stat. 1335 (Sept. 28, 1978). Sanders informed district courts that [controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. 373 U.S. at 15, 83 S.Ct. 1068. Echoing Sanders, in 1976, Congress amended Rule 9(b) of the Rules Governing § 2254 Cases to provide that [a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. Rule 9(b) of the Rules Governing § 2255 Proceedings was similarly amended. The AEDPA did not change either Rule 9(b), although it did eliminate, for § 2254 petitions, Sanders's \"ends of justice” provision permitting review of previously considered claims, see 28 U.S.C. § 2244(b)(1) (\"A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.\"). More generally, the Supreme Court has observed that \"[t]he added restrictions which [the AEDPA] places on second habeas petitions are well within the compass of [the pre-existing] evolutionary process” of habeas corpus jurisprudence. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); cf. Esposito v. United States, 135 F.3d 111, 113 (2d Cir.1997) (\"Generally, we look to 'abuse of the writ' jurisprudence to inform [the] wording” \"second or successive”)." }, { "docid": "5032154", "title": "", "text": "We agree. “It is well established that a § 2255 petition cannot be used to ‘relitigate questions which were raised and considered on direct appeal.’” United States v. Sanin, 252 F.3d 79, 83 (2d Cir.2001) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.1992)); see also Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993) (“[A]ny claim raised by [petitioner] ... that was also raised ... on direct appeal of his conviction is precluded from consideration by this Court.”). A claim is not barred from being brought in a § 2255 motion where it rests upon a different legal “ground” for relief than the one previously raised. See Williams v. United States, 731 F.2d 138, 141-42 (2d Cir.1984). The Supreme Court has explained the meaning of “ground”: [W]e mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, or be couched in different language, or vary in immaterial respects. Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (internal citations omitted). The district court concluded that Pitcher’s habeas claim rested on a separate legal ground, one that is “analytically distinct,” from his ineffective assistance claim brought on direct appeal. Pitcher, 371 F.Supp.2d at 264. This determination was in error. In his § 2255 petition, Pitcher “may not now contend that counsel was deficient ... because that ground was substantially argued to, and rejected by, this court on [Petitioner’s] direct appeal.” Riascos-Prado v. United States, 66 F.3d 30, 34 (2d Cir.1995)." }, { "docid": "22056944", "title": "", "text": "forged loan documents, he would not have plead [sic] guilty.” Although this argument contains new factual allegations, it is still successive within the meaning of § 2255 Rule 9(b). In United States v. Gutierrez, 116 F.3d 412 (9th Cir.1997), we explained that a “ ‘ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.’ ” Id. at 416 (quoting Molina v. Rison, 886 F.2d 1124 (9th Cir.1989)). “ ‘[IJdentical grounds may often be proved by different factual allegations. ...’” Id. See also Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996)(rejecting an ineffective assistance of counsel claim as successive); Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir.1976)(holding that a habeas petitioner cannot raise an incompetency of counsel claim in a successive petition “by simply varying the factors that he claims demonstrate incompeteney”). Allen’s contention is that he was denied the effective assistance of counsel at the 1987 change of plea hearing at which he pleaded guilty to count three of the District of Oregon indictment and to count one of the District of Arizona indictment. This same ground was raised in his first § 2255 motion. Hence, it is a successive claim. Because Allen previously filed a § 2255 motion attacking the 1987 judgments of conviction, any subsequent claims collaterally attacking those convictions are subject to the provisions of § 2255 regarding second or successive motions. Section 2255 states in pertinent part: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme" }, { "docid": "18845599", "title": "", "text": "Proceedings, advisory committee’s note. Accordingly, pre-1977 case law interpreting this provision of § 2255 is relevant in interpreting the meaning of Rule 9(b). The leading Supreme Court case concerning the import of successive motions under § 2255 is Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068,10 L.Ed.2d 148 (1963). In language comparable to Rule 9(b), Sanders held that a prior adverse determination, on the merits, of a ground presented in an earlier motion could be held controlling, at least where the ends of justice would not be served by reaching the merits of the subsequent motion. Id. at 15, 83 S.Ct. at 1077. There is no dispute in the present case that Molina’s earlier motions were rejected on the merits. Accordingly, the key issue is whether each “ground” asserted in the current § 2255 motion is sufficiently different from those alleged in the prior motions. Sanders provides some important guidance, on the difficult issue of what constitutes a different “ground” of relief. The Court’s comments make it very clear that a prisoner does not allege a new “ground” simply by presenting a legal issue that is distinguishable from the precise issues decided in earlier § 2255 proceedings: By “ground,” we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against [a prisoner] is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, or be couched in different language, or vary in immaterial respects. Id. at 16, 83 S.Ct. at 1077 (citations omitted). The Court also cautioned, however, that any doubts as to whether two grounds are different or the same “should be resolved in favor of the applicant.” Id. As this court has noted, this definition of “ground” is “more easily stated than" }, { "docid": "22308141", "title": "", "text": "court lacked jurisdiction to impose the sentence, because “a Rule 35 proceeding contemplates the correction of a sentence of a court having jurisdiction,” whereas “jurisdictional defects .... must ordinarily be presented under 28 U.S.C. § 2255.” Gilinsky v. United States, 335 F.2d 914, 917 (9th Cir.1964). Thus, the district court properly treated Mathews’ motion as a motion under section 2255. We also find that the district court properly dismissed the motion. A motion under section 2255 is subject to dismissal on either of two grounds. First, a district court may, in its discretion, dismiss a motion if it is successive, and seeks “similar relief on behalf of the same prisoner.” 28 U.S.C. § 2255 (1982). Second, a district court must dismiss a section 2255 motion — even if it is the first such motion in the case— “[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to relief in the district court.” Rule 4(b), Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code. The district court based its dismissal on the former ground. Mathews correctly points out that this was not a proper ground for dismissal. A district court may dismiss a section 2255 motion as successive only if “(1) the second motion presents the same ground determined adversely to the petitioner in the first; (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the second motion.” United States v. Donn, 661 F.2d 820, 823 (9th Cir.1981) (per curiam) (citing Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068 (1963)). Here, neither of the previous motions under section 2255 had been decided on the merits. The first was dismissed for lack of prosecution; the second was improperly dismissed as successive. Thus, the district court did not have discretion to dismiss this third motion as successive. This court, however, may affirm the district court’s decision if the decision" }, { "docid": "18386510", "title": "", "text": "the criteria outlined in the Supreme Court decision of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In Sanders, the Court set forth several guidelines for determining the propriety of addressing a successive application for habeas relief. These guidelines were summarized as follows: Controlling weight may be given to denial of a prior application for federal habeas corpus or 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Id. at 15, 83 S.Ct. at 1077. What we must determine, then, is whether the petitioner’s application for habeas relief should be dismissed as an improper successive petition. First, have the same grounds presented in the present petition been adversely determined to the applicant in his prior petition? By “ground,” the Sanders decision simply meant a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, ... or be couched in different language, ... or vary in immaterial respects ____ Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. Id. at 16, 83 S.Ct. at 1077. The first ground asserted by Mr. Reynolds in his petition now before the Court goes to whether the trial court prevented him from receiving a fair and impartial trial. This claim is predicated on his allegation that the trial court failed to conduct an adequate competency hearing. However, we note that" }, { "docid": "6857741", "title": "", "text": "v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1072-74, 10 L.Ed.2d 148 (1963); Daniels v. Blackburn, 763 F.2d 705, 706 (5th Cir.1985). However, Rule 9(b) of the Rules Governing 28 U.S.C. § 2255 Proceedings states, in relevant part: “Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.... ” Rule 9(b), 28 U.S.C. foil. § 2255. A request for relief under § 2255 may be dismissed under this part of the rule if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the court reached the merits of the previous petition, and (3) the ends of justice are served by refusing to reach the merits of the current petition. Moore v. Blackburn, 806 F.2d 560, 564 (5th Cir.1986) (citing Sanders, supra, 83 S.Ct. at 1077-79), cert. denied, 481 U.S. 1042, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987). See also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2627-28, 91 L.Ed.2d 364 (1986) (indicating that ends of justice exception requires colorable showing of factual innocence); McDonald v. Blackburn, 806 F.2d 613, 621-22 (5th Cir.1986) (same). Cf. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1471, 1474-75, 113 L.Ed.2d 517 (1991) (citing Kuhlmann and applying actual innocence test). Reyes’ three petitions for writ of audita querela are practically identical in terms of authorities, arguments, and issues. Had these motions been petitions for habeas relief, the September 1990 and November 1990 motions would clearly be successive and the district court need not have addressed them on their merits. Assuming, arguendo, that relief for Reyes is not barred as discussed above, we conclude that in any event the district court was correct in its denial of relief on the merits. In its order denying Reyes’ motion to reconsider, the district court held that: “the writ [of audita querela ] was meant only to allow a defendant to present a defense not discovered until after judgment was rendered." }, { "docid": "18386509", "title": "", "text": "did the Eighth Circuit when so requested. Thereafter, on November 8, 1985, Mr. Reynolds filed the pending petition, his fifth, alleging a multitude of trial errors. The respondent replied by filing a Motion to Dismiss on the ground that the applicant had abused the writ, citing Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. It is this motion which we now address. f Rule 9(b) provides: Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. Similar provisions are contained in section 2244(b) of Title 28. The general effect of both Rule 9(b) and section 2244(b) is to codify the criteria outlined in the Supreme Court decision of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In Sanders, the Court set forth several guidelines for determining the propriety of addressing a successive application for habeas relief. These guidelines were summarized as follows: Controlling weight may be given to denial of a prior application for federal habeas corpus or 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Id. at 15, 83 S.Ct. at 1077. What we must determine, then, is whether the petitioner’s application for habeas relief should be dismissed as an improper successive petition. First, have the same grounds presented in the present petition been adversely determined to the applicant in his prior petition? By “ground,” the Sanders decision simply meant a sufficient legal basis for granting" }, { "docid": "3204127", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER GENE CARTER, District Judge. Petitioner was convicted of armed bank robbery and conspiracy in June 1986; he was sentenced in July 1986. In July 1987, having pursued and been denied relief on appeal and under Rule 35, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. That motion was denied by order of this Court dated September 15, 1987, Baranow v. United States, 670 F.Supp. 1052, and the denial was affirmed on appeal on November 29, 1988. Baranow v. United States, No. 87-2119, (1st Cir.). Now before the Court is Petitioner’s new motion under section 2255 for relief from the same conviction and sentence. In Ground Two, Petitioner argues that he was denied a fair trial by “the concealment and exclusion of material evidence.” Specifically, he asserts that he was prejudiced because the testimony of John Frank, an eyewitness to the events in question, was not presented at trial. Petitioner raised this same ground in his first section 2255 motion and the Court determined that the existence of Mr. Frank was not concealed and that “the record shows that the expected testimony of Mr. Frank was not ‘exculpatory’ as Petitioner alleges.” Baranow v. United States, 670 F.Supp. 1052, 1055 (D.Me.1987). In United States v. Sanders, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1962), the Supreme Court held that a successive motion for relief under section 2255 need not be heard if (1) the same ground was determined adversely to the petitioner in the prior motion; (2) the earlier determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the current application. In this case, it is clear that the same ground was determined adversely to Petitioner on the merits — that is, the allegation was directly refuted by the expanded record. Id. There has been no showing that the ends of justice require more on this issue. Ground Three of the new petition asserts that Defendant was denied due process by the prosecutor’s concealment of" }, { "docid": "6296542", "title": "", "text": "writ of coram nobis to this Court pursuant to Liriano v. United States, 95 F.3d 119, 123 (2d Cir.1996) (per curiam), resulting in the filing of the present motion. . Accord Stewart v. Martinez-Villareal, - U.S. --,-, 118 S.Ct. 1618, 1621-22, 140 L.Ed.2d 849 (1998) (analogizing dismissal of a competency claim as premature to dismissal for failure to exhaust state remedies and holding that the renewed competency claim was not “second or successive\"); McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir.1997) (agreeing with \"every circuit that has considered this issue since enactment of the [AEDPA that] a habeas petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies does not qualify as a ‘second or successive application’ ”); Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997) (same); In re Turner, 101 F.3d 1323, 1323 (9th Cir.1997) (same). . Bates, Hawkins, Howard and Shaw relied on the successive petition rule enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct., 1068, 10 L.Ed.2d 148 (1963), and Rule 9(b) of the Rules Governing § 2254 Cases, as amended by Pub.L. 94-426, §§ 2(7), (8), 90 Stat. 1335 (Sept. 28, 1978). Sanders informed district courts that [controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. 373 U.S. at 15, 83 S.Ct. 1068. Echoing Sanders, in 1976, Congress amended Rule 9(b) of the Rules Governing § 2254 Cases to provide that [a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted" }, { "docid": "14239022", "title": "", "text": "the Jencks Act claim in a successive § 2255 petition. See Rule 9(b), Rules Governing Section 2255 Proceedings. The Supreme Court has held that a successive § 2254 petition presenting a ground for relief, not previously raised, is to be given \"full consideration [on] the merits ... [unless] there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading.” Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (§ 2254); see Saville v. United States, 451 F.2d 649 (1st Cir.1971) (reversing district court denial of third habeas petition, without evidentiary hearing, where court relied on denials of prior motions, but third petition raised two new constitutional claims); 28 U.S.C. § 2244(b) (successive applications for § 2255 relief “need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application ..., and unless the court ... is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ”); 8C J. Moore, Moore’s Federal Practice ¶ 15.07[2] (2d ed. 1992) (\"If the section 2255 movant asserts a claim in a successive petition which he failed to assert in a prior section 2255 motion due to his deliberate bypass or inexcusable neglect, he is deemed to have abused the section 2255 remedy under Rule 9(b).”). But cf. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (\"If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.”) (§ 2254); Sanders, 373 U.S. at 15, 83 S.Ct. at 1077 (\"successive petition” standard same under § 2254 and § 2255). . At trial, petitioner's counsel established the existence of a 1976 plea agreement in which Aceto agreed to testify on behalf of the government in future criminal trials (including petitioner’s" }, { "docid": "22056943", "title": "", "text": "that motion. Allen, 1992 WL 344931 (holding that “Allen’s counsel’s performance was not shown to be deficient in a way which prejudiced Allen’s defense”). Rule 9(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (“ § 2255 Rule 9(b)”) states: “A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds and the prior determination was on the merits....” § 2255 Rule 9(b). In his brief, Allen correctly concedes that he is precluded from raising this claim for a second time. Allen also argues that “he was induced to plead guilty because his trial attorney gave him inaccurate advice as to certain evidence. ...” Specifically, Allen contends that “he believed he was guilty only because his trial attorney told him the evidence showed that he was guilty.” The evidence included certain loan documents which Allen only became aware of in 1994, and which he now alleges were forgeries. Allen asserts that if he “had known that the evidence consisted of forged loan documents, he would not have plead [sic] guilty.” Although this argument contains new factual allegations, it is still successive within the meaning of § 2255 Rule 9(b). In United States v. Gutierrez, 116 F.3d 412 (9th Cir.1997), we explained that a “ ‘ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.’ ” Id. at 416 (quoting Molina v. Rison, 886 F.2d 1124 (9th Cir.1989)). “ ‘[IJdentical grounds may often be proved by different factual allegations. ...’” Id. See also Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996)(rejecting an ineffective assistance of counsel claim as successive); Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir.1976)(holding that a habeas petitioner cannot raise an incompetency of counsel claim in a successive petition “by simply varying the factors that he claims demonstrate incompeteney”). Allen’s contention is that he was denied" } ]

[ { "docid": "14562235", "title": "", "text": "The application of federal law is appropriate where “a uniform national rule” is necessary to further federal interests. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943), or where “there is significant conflict between some federal policy or interest and the use of state law.” Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2495, 53 L.Ed.2d 557 (1977) (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966)); cf. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1956) (“It is not uncommon for federal courts to fashion federal law where federal rights are concerned.”). In diversity cases involving contract disputes, the federal courts ordinarily apply state law. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Eugene F. Scoles and Peter Hay, Conflict of Laws § 3.52 (1984). And while federal law governs the rights and obligations of the United States under government contracts, United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970), state law often governs the construction of contracts between government contractors and their subcontractors. See, e.g., American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir.1961); Peter Kiewit Sons’ Co. v. Summit Construction Co., 422 F.2d 242 (8th Cir.1969); 1A Moore’s Federal Practice § 0.321 (1980). However, where the dispute implicates significant federal interests, resolution will be accomplished by resort to federal law. American Pipe & Steel Corp., 292 F.2d at 644; United States v. Taylor, 333 F.2d 633 (5th Cir.1964), adhered to on reh’g., 336 F.2d 149 (5th Cir.1964). See generally Whittaker Corp. v. Calspan Corp., 810 F.Supp. 457, 462 (W.D.N.Y.1992); Grinnell Fire Protection Systems Company, Inc. v. Regents of the University of California, 554 F.Supp. 495, 497-98 (N.D.Cal.1982). We find that the extensive statutory and regulatory framework governing the administration of CIAP projects nationwide, together with the reality that these projects are funded almost entirely by the federal" } ]

[ { "docid": "14562237", "title": "", "text": "government, lead to the conclusion that the interpretation of provisions required to be included in CIAP contracts is a uniquely federal concern. The CIAP regulations extend into all areas of project management, from financial administration and record-keeping to contract requirements. See generally 24 C.F.R. Part 85 (containing uniform administrative rules for grants and cooperative agreements); Part 968 (setting forth regulations addressing public housing modernization). In fact, contracts entered into pursuant to the CIAP are almost, if not entirely, prescribed by the federal government. The contract documents in the instant case, for example, comprise two HUD forms — the General Conditions of the Contract and the Supplement thereto. In light of the pervasive regulatory and financial influence of the federal government, and the nationwide scope of the CIAP program, we conclude that there is a uniquely federal interest in a uniform interpretation of provisions, like the termination for convenience clause, that are required to be included in contracts entered into pursuant to the program. That a lawsuit involves a uniquely federal interest, however, does not by itself authorize the federal courts to employ federal common law in its resolution. “That merely establishes a necessary, not a sufficient, condition for the displacement of state law.” Boyle v. United Technologies Corp., 487 U.S. 500, 507, 108 S.Ct. 2510, 2516, 101 L.Ed.2d 442 (1988). . “Displacement will only occur where ... a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law ... or the application of state law would ‘frustrate specific objectives’ of federal legislation____” Id.) (citations omitted); see also Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966) (noting that, in deciding whether to fashion rules of federal common law, “normally the guiding principle is [the existence of] a significant conflict between some federal policy or interest and the use of state law”); but cf. Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2495, 53 L.Ed.2d 557 (1977) (noting that uniform national law should not be employed in disputes in which no federal interest" }, { "docid": "14562234", "title": "", "text": "the procurements conform to applicable Federal law and the standards identified in this section.” 24 C.F.R. § 85.36(b). Plaintiff reasons from this provision that New Jersey law should govern interpretation of the termination for convenience clause. However, to paraphrase the plaintiff, this is a considerable and unnecessary leap in logic with which this Court cannot agree. The text of § 85.36(b) expressly limits its applicability to state and local procurement laws and regulations. Nothing suggests it is a general choice-of-law provision, or that the federal government has any interest in mandating that the vagaries of fifty distinct state laws, rather than the federal common law, be applied to interpret a clause required by federal regulation to be included in contracts for construction projects around the country. Whether state or federal law applies to disputes brought under the court’s diversity jurisdiction depends upon the degree to which the outcome will affect the interests' of the federal government. Bank of America National Trust & Savings v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956). The application of federal law is appropriate where “a uniform national rule” is necessary to further federal interests. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943), or where “there is significant conflict between some federal policy or interest and the use of state law.” Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2495, 53 L.Ed.2d 557 (1977) (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966)); cf. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1956) (“It is not uncommon for federal courts to fashion federal law where federal rights are concerned.”). In diversity cases involving contract disputes, the federal courts ordinarily apply state law. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Eugene F. Scoles and Peter Hay, Conflict of Laws § 3.52 (1984). And while federal law governs the rights and obligations of the" }, { "docid": "21485174", "title": "", "text": "thus mitigating or avoiding large claims which might otherwise arise. The Atomic Energy Commission has made its disputes settlement procedure available to parties to subcontracts under contracts let by them. And the Commission regulations are written in terms of appeals by contractors of subcontractors. In this case the parties to the subcontract have adopted this method of disputes determination between themselves. The subcontract is one in which many aspects of the relations between the contractor and the subcontractor were directly supervised by the government. The contract under which this subcontract was let was a cost type contract, and in fact the cost of the alleged contractual overpayment was assumed by the government as discussed above. The expeditious administrative determination of disputes arising under this contract is a matter of such importance to the federal government that the law controlling such determinations between government and prime contractors so far as applicable should apply to the construction of the disputes clause. We are aware, as was the court in American Pipe and Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961), that there is generally considered to be no privity between a subcontractor and the government when the issue is whether the subcontractor may sue the government. We also recognize the validity of opinions applying state law to the construction of contracts between government contractors and their subcontractors. However, it is clear that federal law will control contracts between private parties if there is sufficient federal interest. It is just such an interest that we have outlined above. Though the question of what law applies to interpret a disputes clause in a subcontract has apparently never arisen before, federal courts have applied the body of law surrounding the interpretation of disputes clauses in government contracts to a similar clause in private subcontracts under government contracts. In United States v. United Enterprises, 226 F.2d 359 (5th Cir. 1955), a Miller Act dispute between a contractor and a subcontractor, the private subcontract contained a clause providing that the United States Engineer would determine construction and meaning of drawings and" }, { "docid": "13518767", "title": "", "text": "the extent to which the performance of the work under the contract is terminated, and the date upon which such termination becomes effective. b. If the performance of the work is terminated, either in whole or in part, the PHA shall be liable to the Contractor for reasonable and proper costs resulting from such termination, which costs shall be paid to the Contractor within 90 days of receipt by the PHA of a properly presented claim setting out in detail: (1) the total cost of the work performed to date of termination less the total amount of contract payments made to the contractor ...; and (5) an amount constituting a reasonable profit on the value of work performed by the Contractor. App.Vol. II at 45. . Linan-Faye styles its appeal as containing seven issues. Brief of Appellant at ix-x. The first of these issues, according to Linan-Faye, is that the district court engaged in impermissible fact finding on contested matters. Given our conclusion concerning the application of the termination for convenience clause, however, this issue is best resolved in conjunction with a discussion of the proper application of that clause. See discussion infra part VI. .. Still another distinction exists between the instant case and the cases the district court relied upon in applying federal common law to interpret this contract. American Pipe & Steel and Taylor involved direct United States government procurement contracts, or a subcontract with a United States government prime contractor. American Pipe & Steel, 292 F.2d at 641; Taylor, 333 F.2d at 635. Neither of these situations involved, as is the case here, the outright grant of funds to a public agency. The closer nexus to the United States government in American Pipe & Steel and Taylor heightens the federal government’s interest. The weaker link in this case diminishes the significance of the government interest. Thus, the district court was incorrect in finding a government interest significant enough to warrant deviating from Erie and applying federal common law. . Linan-Faye also cites Donovan v. Bachstadt, 91 N.J. 434, 453 A.2d 160 (1982), for the proposition stated" }, { "docid": "2681378", "title": "", "text": "Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959); United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); United States v. County of Allegheny, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). . American Houses, Inc. v. Schneider, 211 F.2d 881, 44 A.L.R.2d 1352 (3 Cir. 1954) ; Girard Trust Co. v. United States, 149 F.2d 872 (3 Cir. 1945). . United States v. Union Livestock Sales Co., 298 F.2d 755 (4 Cir. 1962); American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9 Cir. 1961); United States v. Matthews, 244 F.2d 626 (9 Cir. 1957); O’Brien v. Western Union Tel. Co., 113 F.2d 539 (1 Cir. 1940); Byron Jackson Co. v. United States, 35 F.Supp. 665 (S.D.Cal.1940). . Two separate inquiries must be made. The first is to ascertain if the requisite federal interest is present. If there is, a federal rule may be formulated. The necessity of uniformity must decide whether state law should be rejected as the source for the applicable federal rule. . For example, in Clearfield Trust Co. v. United States, supra, note 5, the Federal Emergency Relief Act, various treasury regulations controlling the payment of government checks, a criminal statutory provision making forgery a crime, and the constitutional power to require the payment of debts due the United States were present to show a federal interest. See generally, Note, “Clearfield: Clouded Field of Federal Common. Law”, 53 Colum.L.Rev. 991 (1953); Note, “Exceptions to Erie v. Tompkins: The Survival of Federal Common Law”, 59 Harv. L.Rev. 966 (1946). . See American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., supra, note 7, which held that federal common law governed a diversity action by a subcontractor against a government prime contractor. O’Brien v. Western Union Tel. Co., supra, note 7, applied federal law to a libel action. . See the decisions cited in note 6, supra. . Operating loans' to" }, { "docid": "22098904", "title": "", "text": "secure collection of taxes); American Pipe & Steel Corp. v. Firestone Co., 292 F. 2d 640, 643-644 (C. A. 9th Cir.) (construction of subcontract governed by federal law in suit between prime and sub on government contract); Girard Trust Co. v. United States, 149 F. 2d 872 (C. A. 3d Cir.) (federal law governs rights of parties in lease where Government is lessee, Tucker Act suit); Woodward v. United States, 167 F. 2d 774 (C. A. 8th Cir.) (federal law governs interpretation of National Service Life Insurance policy, suit against Government on policy). Although these decisions did not involve federal jurisdiction as such, since jurisdiction was conferred by specific statutes and recourse to the “arising under” statute was unnecessary, they are suggestive since they hold federal law determinative of the merits of the claim. Also highly suggestive, for the same reason, is this Court’s language in Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173, 176, a case involving both federal patent-antitrust policies and. conflicting state contract law policies of estoppel: “[T]he doctrine of that case [Erie] is inapplicable to those areas of judicial decision within which the policy of the law is so domi nated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.” Thus in cases involving adjustment board procedures or awards, the federal courts have applied federal substantive law to the determination of the validity of the award and the procedures for securing it, irrespective of whether the case was brought into the federal court system on the basis of diversity. See International Assn. of Machinists v. Northwest Airlines, 304 F. 2d 206 (C. A. 8th Cir.) ; Flight Engineers v. American Airlines, 303 F. 2d 5 (C. A. 5th Cir.) ; Woolley v. Eastern Air Lines, 250 F. 2d 86, 90-91 (C. A. 5th Cir.); Sigfred v. Pan American World Airways, 230 F. 2d 13 (C. A. 5th Cir.); Bower v. Eastern Airlines, 214 F. 2d 623, 625-627 (C. A. 3d Cir.); Pan" }, { "docid": "3139737", "title": "", "text": "most states ... rather than the excessively narrow statutes which might apply in only a few states.” Smith Land & Improvement Corp., 851 F.2d at 92. We reasoned if we refused to apply uniform federal standards to regulate CERCLA liability, “CERCLA aims may be evaded easily by a responsible party’s choice to arrange a merger or consolidation under the laws of particular states which unduly restrict successor liability.” Id. In Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209 (3d Cir.1993), we also expressed a preference for uniform federal standards to govern CERCLA liability. We held that “given the federal interest in uniformity in the application of CERCLA, it is federal common law, and not state law, which governs when corporate veil-piercing is justified under CERC-LA.” Id. at 1225 (citations omitted). None of our cases, however, deal with the need for a federal standard in interpreting or construing contracts to indemnify and our sister courts of appeals have uniformly selected state law. See supra note 2. Fortunately we see no need to create a circuit conflict and will join the other courts of appeals that look to the law of a particular state concerning the construction or interpretation of contracts of indemnity to determine whether a particular indemnification provision covers CERCLA liability. We thus endorse the majority’s reasoning and application of the Kimbell Foods test in Mardan Corp. Moreover, we see support for this principle in the Supreme Court’s recent decision in O’Melveny & Myers. It teaches us that special federal rules are justified only in “situations where there is a ‘significant conflict between some federal policy or interest and the use of state law.’ ” O’Melveny & Myers, — U.S. at-, 114 S.Ct. at 2055 (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). In O’Melveny & Myers, the Supreme Court considered whether federal or state decisional law should govern the question of imputation of knowledge in a suit where the FDIC sued in its capacity as receiver for a federally insured bank that had failed. The FDIC" }, { "docid": "23630097", "title": "", "text": "Goepels’ motion to remand. See Caudill, 999 F.2d at 77; Goepel v. Mail Handlers Benefit Plan, No. 93-3711, at 10 (D.N.J. Sept. 10, 1993). Boyle was a tort action brought by the father of a United States marine killed in a helicopter crash during a training exercise. Boyle, 487 U.S. at 502-03, 108 S.Ct. at 2513. The plaintiff alleged that the helicopter manufacturer was liable under Virginia tort law because the defective repair and design of the craft had caused the accident. Id. at 503, 108 S.Ct. at 2513. The jury returned a general .verdict in the plaintiffs favor, however, the court of appeals reversed, partially because it concluded that federal law immunized the helicopter manufacturer from state tort liability based on the allegedly defective design of the helicopter. Id. at 503, 108 S.Ct. at 2513-14. The Supreme Court affirmed the court of appeals’ determination that in the circumstances in Boyle, federal law displaced the “state law which holds Government contractors liable for design defects in military equipment.” Id. at 512, 108 S.Ct. at 2518. The Court based this holding on two grounds: (1) that “the procurement of equipment by the United States is an area of uniquely federal interest,” id. at 507, 108 S.Ct. at 2516, and (2) that in the circumstances in Boyle, there was a “‘significant conflict’ ... between an identifiable ‘federal policy or interest and the [operation] of state law,’ ” id. (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). The Court concluded that “the civil liabilities arising out of the performance of federal procurement contracts” involve a “uniquely federal interest,” id. at 505-06, 108 S.Ct. at 2515, because “[t]he imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price,” id. at 507, 108 S.Ct. at 2515-16. Moreover, the Court concluded that in some circumstances, state laws holding government contractors liable for design defects “present[ed] a ‘significant conflict’ with [the] federal policy,”" }, { "docid": "6425606", "title": "", "text": "351 (7th Cir.1995). . See United States v. Taylor, 333 F.2d 633, 638 (5th Cir.1964) (holding federal interest sufficient in dispute between subcontractor and contractor to a federal contract to warrant application of federal law); American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640, 643 (9th Cir.1961) (noting that contractor/subcontractor disputes in military contracts should generally be governed by federal law). . Since the time that Turner instituted this suit, Congress has raised the requisite jurisdictional amount for the invocation of diversity jurisdiction. See Federal Courts Improvement Act of 1996, Pub.L. No. 104-317, § 205, 110 Stat. 3847, 3850 (raising the jurisdictional amount-in-controversy requirement to $75,000, effective January 17, 1997). This change does not affect Turner’s petition. See In re Florida Wire & Cable Co., 102 F.3d 866, 867 (7th Cir.1996); Gilman v. BHC Secs., Inc., 104 F.3d 1418 (2d Cir.1997). .The ICCINA provides: § l.With respect to contracts or agreements, either public or private, for the construction ... of a building, structure ... or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable. 740 ILCS 35/1. Section 3 creates an exception to the ICCINA for construction bonds and insurance agreements. 740 ILCS 35/3. . See United States v. Crown Equip. Corp., 86 F.3d 700, 706 (7th Cir.1996) (citing Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87 L.Ed. 838 (1943)); City of Huntsville v. City of Madison, 24 F.3d 169, 172 n. 3 (11th Cir.1994) (citing Miree v. DeKalb County, 433 U.S. 25, 27, 97 S.Ct. 2490, 2492, 53 L.Ed.2d 557 (1977)). . See Boyle, 487 U.S. at 507, 108 S.Ct. at 2515 (stating that finding area is one of uniquely federal interest is a necessary, but not sufficient, condition for the displacement of state law). . Cf. Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996) (noting the \" 'uniquely federal interest’ in immunizing" }, { "docid": "5460217", "title": "", "text": "deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown.” Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). Here, it is vigorously argued that application of state law would create a significant conflict because federal policy requires uniform nationwide standards for the handling of escrow accounts by federal savings and loan associations. This argument founders on the very language of the regulation cited to support it. Section 545.-6~ll(c) provides that a federal savings and loan association shall pay interest on escrow accounts if a state statute requires such payments to be made by state-chartered institutions, or if payments are required by contract. The regulation expressly anticipates that the obligation of a federal institution to pay interest on escrow accounts not only will vary from state to state, but from contract to contract. See Johnson v. First Federal Savings & Loan Association, 418 F.Supp. 1106, 1109 (E.D.Mich.1976). Any argument that federal policy requires nationwide uniformity with regard to this issue is untenable. See United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). Contractual obligations are created by state law. See Gully, 299 U.S. at 114-15, 57 S.Ct. at 98-99. See also Pan American Petroleum v. Superior Court, 366 U.S. at 662-663, 81 S.Ct. at 1307-1308. “The interpretation and enforcement of contracts is [s/e] traditionally within the province of state courts,” Mariniello v. Shell Oil Co., 511 F.2d 853, 858 (3d Cir. 1975), and the general presumption is in favor of applying state law. Note: Federal Common Law, 82 Harv.L.Rev. 1512 (1969). Given the absence of a significant conflict between the federal policy expressed in section 545.6-ll(c) and the use of state law, we hold that state law is applicable in determining whether Prudential contracted to pay interest on the Madsens’ escrow account. Since no federal controversy was disclosed on the face of the Madsens’ state court complaint," }, { "docid": "13518768", "title": "", "text": "is best resolved in conjunction with a discussion of the proper application of that clause. See discussion infra part VI. .. Still another distinction exists between the instant case and the cases the district court relied upon in applying federal common law to interpret this contract. American Pipe & Steel and Taylor involved direct United States government procurement contracts, or a subcontract with a United States government prime contractor. American Pipe & Steel, 292 F.2d at 641; Taylor, 333 F.2d at 635. Neither of these situations involved, as is the case here, the outright grant of funds to a public agency. The closer nexus to the United States government in American Pipe & Steel and Taylor heightens the federal government’s interest. The weaker link in this case diminishes the significance of the government interest. Thus, the district court was incorrect in finding a government interest significant enough to warrant deviating from Erie and applying federal common law. . Linan-Faye also cites Donovan v. Bachstadt, 91 N.J. 434, 453 A.2d 160 (1982), for the proposition stated above. Further, Linan-Faye cites In Re Merritt Logan, Inc., 901 F.2d 349, 357-58 (3d Cir.1990) and Sandier v. Lawn-A-Mat Chemical & Equipment Corp., 141 N.J.Super. 437, 454, 358 A.2d 805 (A.D.), certification denied, 71 N.J. 503, 366 A.2d 658 (1976), for the proposition that the courts of New Jersey have long maintained a liberal rule of damages to a non-breaching party. . Additionally, the quoted language in Dobson represents only the opinion of a single judge on this matter. The relevant issue was not addressed in the New Jersey Supreme Court opinion affirming this case. . Linan-Faye argues that decisions of the New Jersey Supreme Court such as W.V. Pangborne & Co. v. New Jersey Dept. of Transportation, 116 N.J. 543, 562 A.2d 222 (1989), where the court has found against governmental entities, are inconsistent with the broad discretion federal courts have conferred on the government in cases concerning termination for convenience clauses. Pangborne, however, involved a failure of a governmental entity to deal in good faith. Id. at 562, 562 A.2d at 231 (\"DOT's" }, { "docid": "22193046", "title": "", "text": "same body of law — either state or federal — would apply. Neither the NGPA nor the NGA expressly preempt the application of state contract law to the interpretation of gas purchase contracts. The NGA was carefully fashioned to exert federal control only in a limited and well-defined area. It is well-established that contractual claims between parties to a natural gas contract do not arise under the NGA for purposes of federal question jurisdiction of federal courts. The Mobile-Sierra doctrine holds that the NGA did not abrogate the ability of the parties to privately contract within the regulatory confines of that Act. NGPA § 101(b)(9) provides the same with respect to the NGPA. Therefore, the federal legislation and regulation of this area does not directly address the interpretation of gas purchase escalation provisions. That, of course, does not exhaust the analysis since state law can be preempted by “federal common law” even if there can be no “federal general common law.” Federal common law arises when the issues involve so strong a federal interest that it is appropriate to resolve them on the basis of uniform decisional federal law rather than varying state laws. One such area concerns federal legislation that fails to directly address the precise and narrow issue but nevertheless a valid and substantial federal interest or policy requires the application of federal law as an exercise of interstitial lawmaking to protect or to effectuate the federal scheme. First Southern Federal Savings & Loan Ass’n v. First Southern Savings & Loan Ass’n, 614 F.2d 71, 73-74 (5th Cir. 1980). If there is a significant conflict between the identifiable federal policy or interest and the use of state law, the state law is preempted. Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2494-2495, 53 L.Ed.2d 557 (1977); Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). The determination of whether federal common law applies looks to the need for uniformity of result, the federal interest in the regulated subject matter, and the comprehensiveness of that regulation. That" }, { "docid": "14562238", "title": "", "text": "itself authorize the federal courts to employ federal common law in its resolution. “That merely establishes a necessary, not a sufficient, condition for the displacement of state law.” Boyle v. United Technologies Corp., 487 U.S. 500, 507, 108 S.Ct. 2510, 2516, 101 L.Ed.2d 442 (1988). . “Displacement will only occur where ... a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law ... or the application of state law would ‘frustrate specific objectives’ of federal legislation____” Id.) (citations omitted); see also Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966) (noting that, in deciding whether to fashion rules of federal common law, “normally the guiding principle is [the existence of] a significant conflict between some federal policy or interest and the use of state law”); but cf. Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2495, 53 L.Ed.2d 557 (1977) (noting that uniform national law should not be employed in disputes in which no federal interest is promoted). We find it implausible that the federal government would require all CIAP contracts in excess of $10,000.00 to contain a termination for convenience clause, and then leave interpretation of that clause to the vagaries of state law, particularly where, like New Jersey, there are few or no state law cases interpreting this type of provision. Rather, we believe that the decision to include a termination for convenience clause in the “Uniform Requirements” section of the C.F.R. reflects a federal interest in a consistent interpretation of that clause. We therefore find it appropriate to use federal common law to discern the scope and effect of the termination for convenience clause. Even assuming that New Jersey law were to apply, we have no basis for believing that New Jersey courts would look elsewhere than to the federal common law for guidance. As a preliminary matter, we note the sheer absence of New Jersey case law on point. Moreover, we think that courts in New Jersey would recognize that where the parties have incorporated a particular" }, { "docid": "21485171", "title": "", "text": "underlying claim were valid, viable, and enforceable. The court granted the motion of Taylor-Wheless and denied that of the United States. The court held that: the parties had entered into an arbitration agreement; this was a remedial rather than a substantive matter; and the law of Mississippi would apply to the enforcement of the agreement in a suit such as this in which the government claimed as as-signee. Under Mississippi law the court held that “a party has a complete right, to withdraw from arbitration proceedings any time prior to the making of an award”. Therefore, the court reasoned, the award was invalid. Both parties admit that this is an accurate statement, of the law of Mississippi. They both rely on McClendon v. Shutt, 237 Miss. 703, 115 So.2d 740 (1959) and Machine Prod. Co. v. Prairie Local No. 1538, 230 Miss. 809, 94 So.2d 344, 95 So.2d 763 (1957). The government insists, however, that federal law applied to the interpretation of subcontracts executed under government contracts and that, under such law, administrative remedies must be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush. The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause" }, { "docid": "23630098", "title": "", "text": "The Court based this holding on two grounds: (1) that “the procurement of equipment by the United States is an area of uniquely federal interest,” id. at 507, 108 S.Ct. at 2516, and (2) that in the circumstances in Boyle, there was a “‘significant conflict’ ... between an identifiable ‘federal policy or interest and the [operation] of state law,’ ” id. (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). The Court concluded that “the civil liabilities arising out of the performance of federal procurement contracts” involve a “uniquely federal interest,” id. at 505-06, 108 S.Ct. at 2515, because “[t]he imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price,” id. at 507, 108 S.Ct. at 2515-16. Moreover, the Court concluded that in some circumstances, state laws holding government contractors liable for design defects “present[ed] a ‘significant conflict’ with [the] federal policy,” designed to insulate the government against financial liability for the performance of discretionary functions such as “the selection of the appropriate design for military equipment to be used by our Armed Forces.” Id. at 511-12, 108 S.Ct. at 2518 (citing 28 U.S.C. § 2680(a)). The Boyle Court limited the scope of the displacement of state laws holding government contractors liable for design defects to the following circumstances: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Id. at 512, 108 S.Ct. at 2518. However, the Court indicated that “[i]n some cases, ... where the federal interest requires a uniform rule, the entire body of state law applicable to the area conflicts and is replaced by federal rules.” Id. at 508, 108 S.Ct. at 2516 (citations omitted). Based on the two-part test applied in Boyle, the court in Caudill held that" }, { "docid": "13518723", "title": "", "text": "Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). Relying on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir.1961), and United States v. Taylor, 333 F.2d 633 (5th Cir.1964), the district court concluded that the government’s interest in ensuring a uniform interpretation of the termination for convenience provisions in this contract provided the “significant federal interest” necessary to pre-empt state law. Linan-Faye Construction Co. v. Housing Authority of Camden, 847 F.Supp. 1191, 1197 (D.N.J.1994). These cases, however, do not dictate this result. While both of these cases applied federal law in interpreting a contract, the government interest was far more significant in those cases than in the case at hand. In American Pipe & Steel, the Court. of Appeals for the Ninth Circuit stated, “we agree generally with appellee that the construction of subcontracts, let under prime contracts connected with the national security, should be regulated by a uniform federal law.” American Pipe & Steel, 292 F.2d at 644. The instant case involves no matter of national security. Further, the court in American Pipe & Steel expressly acknowledged that the development of the law in this area was “still uncertain and unclear.” Id. Similarly, in Taylor, the contract at issue involved the construction of an atomic energy plant, a matter intricately involved with national security during the 1950’s and 1960’s. Taylor, 333 F.2d at 635. The Taylor court also explicitly referred to the fact that American Pipe & Steel dictated application of federal common law in such a case. Id. at 637. Thus, both of these decisions concerned matters of national security that are simply not present in this case. Moreover, the district court erred in finding a conflict between federal and state law that would endanger any federal interest involved. The district court correctly recognized the proposition that a lawsuit which involves a federal interest is a “necessary, not a sufficient, condition for the displacement of state law.” Linan-Faye Construction Co., 847 F.Supp. at 1198 (quoting Boyle 487 U.S. at 507, 108" }, { "docid": "13518724", "title": "", "text": "644. The instant case involves no matter of national security. Further, the court in American Pipe & Steel expressly acknowledged that the development of the law in this area was “still uncertain and unclear.” Id. Similarly, in Taylor, the contract at issue involved the construction of an atomic energy plant, a matter intricately involved with national security during the 1950’s and 1960’s. Taylor, 333 F.2d at 635. The Taylor court also explicitly referred to the fact that American Pipe & Steel dictated application of federal common law in such a case. Id. at 637. Thus, both of these decisions concerned matters of national security that are simply not present in this case. Moreover, the district court erred in finding a conflict between federal and state law that would endanger any federal interest involved. The district court correctly recognized the proposition that a lawsuit which involves a federal interest is a “necessary, not a sufficient, condition for the displacement of state law.” Linan-Faye Construction Co., 847 F.Supp. at 1198 (quoting Boyle 487 U.S. at 507, 108 S.Ct. at 2516). The court, however, failed to identify a significant conflict. In the only paragraph that attempts to identify a conflict, the court stated: We find it implausible that the federal government would require all CIAP contracts in excess of $10,000.00 to contain a termination for convenience clause, and then leave interpretation of that clause to the vagaries of state law, particularly where, like New Jersey, there are few or no state law cases interpreting this type of provision. Rather, we believe that the decision to include a termination for convenience clause in the “Uniform Requirements” section of the C.F.R. reflects a federal interest in a consistent interpretation of that clause. Id. The first sentence of this paragraph merely assumes the answer to the question the court is wrestling with: whether Congress left interpretation of clauses in these types of contracts to state law. The second sentence of the above quoted paragraph simply reid-entifies the interest involved, it does not point out a conflict with state law. The problem with the district court’s reasoning" }, { "docid": "21485172", "title": "", "text": "be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush. The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause reads as follows: “ARTICLE VIII — DISPUTES “Except as otherwise specifically provided in this subcontract any and all questions, issues, and disputes arising under this subcontract shall be settled if possible by negotiations and mutual agreement of the parties hereto, but in the event of their inability to agree, shall be decided by the Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board, whose decision shall be final and conclusive on the parties. In the meantime, the Subcontractor shall diligently proceed with the contract as directed.” This clause was modified by mutual agreement on February 28, 1956 substituting the word “Commissioner” for the words “Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board”. The disputes clause in a contract between the government and a contractor has long been recognized and approved as a valid provision for the determination of fact issues arising out of the contract. The purpose of the clause is to provide for a quick efficient determination of disputes on an administrative level," }, { "docid": "22193047", "title": "", "text": "it is appropriate to resolve them on the basis of uniform decisional federal law rather than varying state laws. One such area concerns federal legislation that fails to directly address the precise and narrow issue but nevertheless a valid and substantial federal interest or policy requires the application of federal law as an exercise of interstitial lawmaking to protect or to effectuate the federal scheme. First Southern Federal Savings & Loan Ass’n v. First Southern Savings & Loan Ass’n, 614 F.2d 71, 73-74 (5th Cir. 1980). If there is a significant conflict between the identifiable federal policy or interest and the use of state law, the state law is preempted. Miree v. DeKalb County, 433 U.S. 25, 31, 97 S.Ct. 2490, 2494-2495, 53 L.Ed.2d 557 (1977); Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). The determination of whether federal common law applies looks to the need for uniformity of result, the federal interest in the regulated subject matter, and the comprehensiveness of that regulation. That a contract is subject to federal regulation does not by itself demonstrate that Congress intended federal rather than state law govern all aspects of its performance; if the federal interest is sufficiently served by the agency’s express regulatory power, it requires some other indication of congressional policy that the contracts should be ruled by uniform federal principles. Ivy Broadcasting Co. v. AT&T, 391 F.2d 486, 490 (2d Cir. 1968). The federal scheme of regulation under the NGA and NGPA is limited in its displacement of state regulatory authority. Unlike the Federal Communications Act, in which Ivy found federal common law governed contractual disputes involving interstate telephone service, the NGA and NGPA are not so pervasive a scheme of federal regulation as to indicate a congressional objective that cannot be attained without the application of federal common law. City of New Orleans v. United Gas Pipe Line, 390 F.Supp. 861, 865-66 (E.D.La.1974). Uniformity of result is not assured by the creation of federal common law here. When interpreting escalation clauses, FERC possesses expertise with respect only" }, { "docid": "13518722", "title": "", "text": "at issue in this case, courts must look to local law. Thus, the district court was incorrect in applying federal common law and not the law of New Jersey to resolve this dispute. The district court erred in deviating from the generally applicable Erie doctrine. The Supreme Court, in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), set forth a two-pronged inquiry for determining whether to apply federal common law in the absence of an express Congressional grant of such authority. According to the Supreme Court, a court must first determine whether the action involves “ ‘uniquely federal interests.’ ” Id. at 504, 108 S.Ct. at 2514 (citing Texas Industries Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981)). Once a court identifies a uniquely federal interest, the court must then determine whether a “significant conflict” exists between an identifiable “federal policy or interest and the [operation] of state law.” Id. 487 U.S. at 507, 108 S.Ct. at 2516 (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). Relying on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir.1961), and United States v. Taylor, 333 F.2d 633 (5th Cir.1964), the district court concluded that the government’s interest in ensuring a uniform interpretation of the termination for convenience provisions in this contract provided the “significant federal interest” necessary to pre-empt state law. Linan-Faye Construction Co. v. Housing Authority of Camden, 847 F.Supp. 1191, 1197 (D.N.J.1994). These cases, however, do not dictate this result. While both of these cases applied federal law in interpreting a contract, the government interest was far more significant in those cases than in the case at hand. In American Pipe & Steel, the Court. of Appeals for the Ninth Circuit stated, “we agree generally with appellee that the construction of subcontracts, let under prime contracts connected with the national security, should be regulated by a uniform federal law.” American Pipe & Steel, 292 F.2d at" } ]

[ { "docid": "761933", "title": "", "text": "evidence; and providing a medical examination or medical opinion when necessary to resolve the claim. Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1338-39 (Fed.Cir.2003). The critical change in VA’s duty to assist wrought by the VCAA regards when the duty is triggered. The duty to assist is now triggered by VA’s receipt of a “substantially complete application for benefits,” 38 C.F.R. § 3.159(c) (2007), which means, for a case such as Mr. Robinson’s, an application “containing the claimant’s name ... sufficient service information for VA to verify the claimed service, if applicable; [and] the benefit claimed and any medical condition(s) on which it is based.” 38 C.F.R. § 3.159(a)(3) (2007). In October 2001, the Board remanded Mr. Robinson’s claim “for compliance with the notice and duty to assist provisions contained in the [VCAA].” R. at 187. I cannot say why VA never considered the possibility of direct service connection in this case because it cannot be ascertained from the record why VA elected only to consider the claim on a secondary basis. The Board decision here on appeal provides very little guidance. After listing the various statutory and regulatory provisions governing the direct theory of service connection (R. at 8), the Board went on only to evaluate the case as a claim for benefits on a secondary basis, having concluded that “the veteran contends that [his current conditions] were caused or aggravated by service-connected peptic ulcer disease, rather than due directly to any incident of active service.” R. at 8. The Board did not provide a sufficient explanation of the reasons or bases for concluding that the appellant’s arguments were competent to limit VA’s development and adjudication of the case. See 38 U.S.C. § 7104(d)(1) (requiring the Board, in rendering its decision, to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the record”); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (indicating that evidence regarding medical diagnoses provided by a person without “medical knowledge” is not" } ]

[ { "docid": "8433633", "title": "", "text": "States, 50 F.3d 1025, 1028 (Fed.Cir.1995) (“[The] complaint included counts alleging violation of ... [the] Due Process Clauses of the Fifth and Fourteenth Amendments, the Equal Protection Clause of the Fourteenth Amendment, and the doctrine of separation of powers. None of these [were] a sufficient basis for jurisdiction [at the Court of Federal Claims] because they [did] not mandate payment of money by the government.”). Accordingly, this Court lacks jurisdiction over Plaintiffs due process claim. Fifth Amendment Taking Claim Plaintiff alleges that the government has effected an uncompensated taking of his retirement and disability benefits in violation of the Fifth Amendment. Compl. U 42. The Fifth Amendment to the United States Constitution states: No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. Plaintiff contends that the initial decision to deny Plaintiffs benefits by the VA regional office—now being appealed to the Board of Veterans Affairs—constitutes a taking. Compl. 1142. Plaintiff further claims he was improperly discharged from the Air Force prior to 20 years of service and that this caused a reduction in his retirement benefits which itself constitutes a taking. Compl. 1131. However, Plaintiffs retirement benefits are not property interests for purposes of the Takings Clause. Schism v. United States, 316 F.3d 1259, 1268 (Fed.Cir.2002); Adams v. United States, 391 F.3d 1212, 1225 (Fed.Cir.2004). As the Federal Circuit explained: “a statutory right to be paid money, at least in the context of federal employee compensation and benefit entitlement statutes, is not a property interest for purposes of the Takings Clause.” Adams, 391 F.3d at 1225. Because Plaintiff has failed to allege a cognizable property interest, he has failed to state a claim for taking. Beres v. United States, 64 Fed.Cl. 403, 408 (2005). Federal Tort Claims Act Plaintiff alleges a tort claim against the United States for Agent Orange exposure under 28 U.S.C. § 2671 (2000), the Federal Tort Claims Act. Compl. 1143. However, this Court does not have jurisdiction to hear claims sounding in tort." }, { "docid": "14701168", "title": "", "text": "or omissions violated the due process clause of the U.S. Constitution. As this Court has previously noted, creating a procedural right in the name of fair process principles is primarily based on the underlying concepts of the VA adjudicatory scheme, not the U.S. Constitution. See Anderson, 12 Vet.App. at 497 (noting that the holding in Thurber “was based on principles of fair process and basic fair play that the Court extracted from a variety of sources, including the U.S. Constitution, but Thurber did not rely upon a constitutional basis for its holding as to the procedural protections owed to VA claimants”); see also Austin, 6 Vet.App. at 551-52 (discussing principles of “fair process” not grounded in the U.S. Constitution). With regard to the requirements of the due process clause of the Constitution, the pertinent inquiry is whether the totality of the situation provides claimants with “adequate notice of judicial disposition of their claim and an adequate opportunity to challenge an adverse ruling.” E. Paralyzed Veterans Assoc., Inc. v. Secretary of Veterans Affairs, 257 F.3d 1352, 1358-59 (Fed.Cir.2001); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1984) (“The essential requirements of due process ... are notice and an opportunity to respond.”). Here, at every stage of the development and processing of her claim (e.g., VCAA notification, rating decisions, SOCs, SSOCs, personal testimony before Board, and Board decision), Mrs. Prickett was provided notice and a meaningful opportunity to develop her claim and challenge VA’s determination. Therefore, we reject Mrs. Prickett’s arguments as to her due process assertion. C. Appellant’s Other Contentions (i) VA’s 38 C.F.R. § 3.103(c)(2) (2005) Obligations Mrs. Prickett contends that the Board hearing officer failed to fulfill his obligations pursuant to 38 C.F.R. § 3.103(c)(2). This Court has held that a VA hearing officer has a regulatory obligation under § 3.103(c)(2) to explain fully the issues and inform a claimant of evidence he or she “may have overlooked and which would be of advantage to the claimant’s position.” Douglas v. Derwinski, 2 Vet.App. 435, 441-42 (1992) (en banc). Here," }, { "docid": "12276516", "title": "", "text": "1978. In August, the VA extended the termination date indefinitely to permit the VA General Counsel’s Office to review the proposed termination. On November 1, 1978, Cleland approved Orloff’s termination and Orloff’s appointment terminated on November 3, 1978. The VA withheld $3,258.98 from his final paycheck, which is the amount of money the agency calculated that Orloff received for services he did not render. Following Orloff’s termination, various newspapers reported the circumstances surrounding his discharge. STANDARD OF REVIEW Summary judgment is proper only when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Hutchinson v. United States, 677 F.2d 1322, 1325 (9th Cir. 1982). DISCUSSION I The district court concluded that although the procedural requirements of the Veterans’ Preference Act did not apply to Orloff, he had been afforded due process under both the Veterans Preference Act and the Due Process Clause of the United States Constitution. As discussed below, we do not agree with the district court that, even if we assume a property or liberty interest, there is sufficient evidence in the record to determine conclusively that the VA afforded Orloff procedural due process. Because of the conclusion we reach on this issue, we must reach the additional questions as to whether: (1) the procedural protections of the Veterans’ Preference Act apply to Orloff; or (2) a liberty or property interest was implicated by the termination in the circumstances of this case. II A. The Veterans’ Preference Act Orloff argues that the manner of his termination violated the procedural protec tions of the Veterans’ Preference Act. See 5 U.S.C. § 7513. Orloff is a veteran and would ordinarily be entitled to the protections of the Act. 5 U.S.C. §§ 2108(1)(A) and 2108(3)(A). The VA argues that these procedural requirements do not apply because the Administrator appointed Orloff pursuant to a statute authorizing the employment of part-time physicians “without regard to civil service or classification laws.” 38 U.S.C. § 4114(a)(1). We agree with" }, { "docid": "13921771", "title": "", "text": "rights were assigned away when he sold the property. The veteran does have an interest, however, in assuring that the lender gets a fair price for the property at the foreclosure sale. The amount of proceeds collected at the sale directly affects the amount of his debt for any deficiency. In order to properly protect this interest, the veteran must be given prior notice of the sale so that he can challenge either the VA’s net value determination or the actual price accepted by the mortgagee or trustee when the property is sold. The court therefore holds that the VA must give a potential indemnitor pre-sale notice by mail where the VA knows or can obtain knowledge of the address of that veteran. See Murdock, 627 F.Supp. at 276. Applying this standard to the case at bar, the court finds that Mr. Boley was afforded notice sufficient to comport with due process. It is undisputed that the VA sent to him, and that he actually received, a mailed notice prior to the sale. The contents of that notice may not have been sufficient to inform Mr. Boley that the foreclosure sale was imminent, but he admits that he learned of the sale date the next day during a telephone conversation prompted by the letter. This notice was sufficient to permit Mr. Boley to monitor the actions of the VA and the lender at the foreclosure sale, and therefore to adequately protect his. interests. Based upon the court’s holdings that the notice given to Mr. Boley was sufficient under the due process clause of the fifth amendment and that North Carolina antideficiency statutes should not be applied, the defendants are entitled to judgment as a matter of law. Accordingly, defendants’ motion for summary judgment is hereby GRANTED, and plaintiff’s cross motion for summary judgment in his favor is hereby DENIED. SO ORDERED. . In the Veteran's Benefits Amendments Act of 1989, Congress changed the VA loan program. In exchange for an increase in the loan fee paid by the veteran at closing, the veteran is released from any liability for deficiencies" }, { "docid": "20413213", "title": "", "text": "citations omitted). Because the Veterans Court addressed this point in reaching its decision, Mr. Edwards may “obtain a review” of that decision. See, e.g., Nolen v. Gober, 222 F.3d 1356, 1359 (Fed.Cir.2000) (“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 ... bringing it within our jurisdiction.”). III. The Fifth Amendment guarantees that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. V. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property interests_[The Supreme Court] consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.... The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)) (internal citations omitted). Procedural due process thus determines both whether the litigant has a protected property interest and, if so, what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). “Although the Supreme Court has declined to address whether due process applies to VA determinations of an applicant’s eligibility for disability benefits, see Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 312, 320 n. 8, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), we have recently held that the Due Process Clause applies to such proceedings. See Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009).” Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed.Cir.2009). As such, this court next decides what process, if any, Mr. Edwards was due. IV. The requirements of procedural due process vary “depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.” Walters, 473 U.S. at 320, 105 S.Ct. 3180. Mr. Edwards contends that due process requires the Secretary" }, { "docid": "13921768", "title": "", "text": "of foreclosure procedure raises serious due process questions. Vail v. Derwinski, 946 F.2d 589 (8th Cir.1991). See also United States v. Whitney, 602 F.Supp. 722, 735 (W.D.N.Y.1985); United States v. Murdock, 627 F.Supp. 272 (N.D.Ind.1985). The due process clause of the fourteenth amendment requires states, prior to taking action which will affect a constitutionally protected interest in life, liberty or property, to provide “notice reasonably calculat ed, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983). The same standard applies equally to the actions of federal agencies under the fifth amendment. See, e.g., Adams v. Harris, 643 F.2d 995, 998 (4th Cir.1981). Therefore if the court finds that VA actions affect a veteran’s property interests, the notice requirements of Mullane and Mennonite will apply. In the indemnity agreement between a veteran and the VA, the veteran promises to reimburse the VA if it pays off under its guaranty agreement with a lender. Under this contractual relationship, an action by the VA — payment to the lender— results in a debt owed by the veteran to the United States. The veteran’s interest in being free from this debt is a property interest, which he must be given an opportunity to protect at a time when meaningful protection is possible. It is therefore necessary to examine the procedure for foreclosure on a VA loan to determine at what stage notice is necessary to comport with due process. If the assumer of a VA loan defaults on loan payments, the holder of the note is required to notify the VA. 38 C.F.R. § 36.4315. The holder then has the option to submit a claim to the VA under the guaranty agreement (in which case the VA becomes subrogated to the holder’s rights to the extent of the guaranty), 38 C.F.R. §" }, { "docid": "22462136", "title": "", "text": "provision to the appellant’s claims. Sixth, both the Federal Circuit’s and this Court’s caselaw require us to ensure compliance with fair process. See Austin v. Brown, 6 Vet.App. 547, 551 (1994); Thurber v. Brown, 5 Vet.App. 119 (1993) (“entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process”); see also Hayre v. West, 188 F.3d 1327, 1333 (Fed.Cir.1999) (grave procedural error vitiates finality of RO decision); Sutton v. Brown, 9 Vet.App. 553, 566 (1996) (discussing and applying VA procedural protections and remanding for “Board to consider and discuss ... whether the veteran had been given adequate notice of the need to present argument and further evidence on the merits of his claim and an adequate opportunity to appear at a hearing”); Archbold v. Brown, 9 Vet.App. 124, 129 (1996) (fundamental right to receive appellate rights and Statement of the Case); Curry v. Brown, 7 Vet.App. 59, 66-67 (1994) (discussing and applying VA fair' process principles and announcing fair process rules); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993) (holding that VA claimants must be afforded “full benefits of ... procedural safeguards” afforded by statutory and regulatory provisions establishing “extensive procedural requirements to ensure a claimant’s rights to full and fair assistance and adjudication in the VA claims adjudication process”). In this regard, the Federal Circuit stated as an additional rationale for its decision in Winters: This result is also supported by fundamental principles of fairness.... Rather than remand Mr. Winters’s case to the DVA, the Court of Appeals for Veterans Claims ... deprived Mr. Winters of his right, under [pre-VCAA] 38 U.S.C. § 5103(a), to an explanation of what evidence was missing from his claim and an opportunity to supply such evidence. Such action by the court is inconsistent with general principles of fairness, and it is particularly unwarranted in view of the fact that “the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant.” Winters, 219 F.3d at 1379-80; see Nolen v. Gober, 222 F.3d 1356, 1361" }, { "docid": "14914590", "title": "", "text": "(relying on federal due process law articulated in Logan, 455 U.S. at 428, 102 S.Ct. 1148). A recipient of Michigan worker’s compensation benefits undoubtedly has a property interest under state law in the continued receipt of those benefits. Jackson has therefore alleged a property interest in the continued receipt of his worker’s compensation benefits under Michigan law. Because Scharnitzke’s allegations center on the fraudulent denial of benefits as opposed to the fraudulent termination of benefits, the next issue is whether an injured employee obtains a property interest in his expectancy of worker’s compensation benefits. For the reasons explained below, I would hold that an employee obtains a property interest at the time the employer becomes aware of the injury. Michigan has not directly addressed at what point an injured employee has a property interest in the benefits provided by the WDCA. In construing other statutes, Michigan courts have held that “a unilateral expectation of [a statutory] benefit” before the benefit is awarded is not property because the claimant must “have a legitimate claim of entitlement to the funds.” City of St. Louis v. Mich. Underground Storage Tank Fin. Assurance Policy Bd., 215 Mich.App. 69, 544 N.W.2d 705, 708-09 (1996) (citing Williams, 424 N.W.2d 278). However, that principle originates in federal due process law. Castle Rock, 545 U.S. at 756, 125 S.Ct. 2796 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). And when interpreting federal due process law, “[ejvery regional circuit to address the question,” including the Sixth Circuit, “has concluded that applicants for benefits, no less than benefits recipients, may possess a property interest in the receipt of public welfare entitlements,” Cushman v. Shinseki, 576 F.3d 1290, 1297 (Fed.Cir.2009) (internal quotation marks and alteration omitted), so long as “a statute mandates the payment of benefits to eligible applicants based on objective, particularized criteria,” Mallette v. Arlington Cnty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir.1996); see also Hamby v. Neel, 368 F.3d 549, 559 (6th Cir.2004); Flatford v. Chater, 93 F.3d 1296, 1305 (6th Cir.1996)." }, { "docid": "20413217", "title": "", "text": "his competency might be required. Mental illness and incompetency are not the same thing. See Barrett v. Principi, 363 F.3d 1316, 1321 (2004) (“We believe these generalized standards should govern claims of mental incompetence.... A medical diagnosis alone or vague assertions of mental problems will not suffice.”). While Mr. Edwards’s medical records established the existence of mental illness, at most they also established that Mr. Edwards was incompetent during a period in 1978, but noted that his situation had “dramatically improved” with medication. Mr. Edwards proffered no other evidence to the Veterans Court to establish his incompetency during any part of the ensuing thirty-year period. Under those circumstances, this court finds no reversible error in the Veterans Court’s finding that he received proper notice and adequate procedural protection. Thus, the record does not contain evidence showing that Mr. Edwards’s condition rendered him unable to comprehend the notice letters or that the VA was aware of his inability to comprehend. Without notice of Mr. Edwards’s inability to understand, the VA would have had no reason to take the extraordinary course of undertaking proceedings to appoint a guardian or to schedule additional hearings. Without evidence of Mr. Edwards’s alleged inability to understand a notice letter and without Mr. Edwards raising this question himself at all over a protracted time, this court perceives no reversible error in the Veterans Court’s finding that he received adequate process. Therefore, this court affirms. AFFIRMED COSTS Each party shall bear its own costs. RADER, Circuit Judge, additional views. While I agree with the result reached in this case, I write separately to invite further inquiry about this court’s recent decision in Cushman v. Shinseki, 576 F.3d 1290 (2009). In Cushman, this court determined that applicants for veteran’s disability benefits have “property interest[s] protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.” Id. at 1298. Significantly, the Supreme Court has specifically de- dined to grant property right protections to mere applicants for government benefits. See Lyng v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) (“We have never" }, { "docid": "20414028", "title": "", "text": "through knee and buttocks, thus entitling him to a higher rating retroactive to 1966. Thus, this is not a case where the veteran raised for the first time on appeal a new claim of CUE, separate and distinct from the claims that the Board addressed below. Moreover, contrary to the Veterans Court decision, the 2003 Board decision did address this issue. Although the 2005 Veterans Court decision did not specifically address the argument, it remanded the question for further consideration by the Board and granted Guillory an opportunity “to argue those claimed errors before the Board at the readjudication” and “submit additional evidence and argument, including those arguments raised in his brief.” Guillory, 2005 WL 103060, at *5. Accordingly, a remand is necessary for the court to address this claim on the merits. We express no opinion whether this CUE claim has merit or, if it does, what consequences the error may have had, if any, given the then-existing requirements for establishing a right to aid and attendance SMC. Finally, Guillory further asserts that he has been deprived of his constitutional right to procedural due process, because his claims have not been properly addressed. We have held that veterans’ benefits are a protected property interest under the Fifth Amendment, because they are statutorily mandated and nondiscre-tionary in nature. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed.Cir.2009). In Cushman, we held that there was a violation of due process where there was no adequate remedy under existing statutes and regulations to address the VA’s reliance on an improperly altered medical record. Id. at 1298-99. However, here there is no due process issue since, unlike the situation in Cushman, the statutes and regulations provide an adequate remedy for any error that occurred in prior proceedings. Thus, we dismiss-in-part, reverse-in-part, and remand for further consideration. DISMISSED-IN-PART, REVERSED-IN-PART, and REMANDED COSTS No costs. . There was a delay in response to Guillory’s request for a file review because his claims file had been lost. The VA reconstructed his claims file from agency documents as well as documents provided by Guillory. When a veteran’s claims" }, { "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": "20413214", "title": "", "text": "14 L.Ed.2d 62 (1965)) (internal citations omitted). Procedural due process thus determines both whether the litigant has a protected property interest and, if so, what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). “Although the Supreme Court has declined to address whether due process applies to VA determinations of an applicant’s eligibility for disability benefits, see Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 312, 320 n. 8, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), we have recently held that the Due Process Clause applies to such proceedings. See Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009).” Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed.Cir.2009). As such, this court next decides what process, if any, Mr. Edwards was due. IV. The requirements of procedural due process vary “depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.” Walters, 473 U.S. at 320, 105 S.Ct. 3180. Mr. Edwards contends that due process requires the Secretary to “conduct a hearing to determine whether, and to what extent, a claimant is mentally disabled, to obtain an independent medical examination, or to appoint a guardian ad litem.” In some circumstances, a mentally disabled applicant, known to be so disabled by VA, may receive additional protections while pursuing an application for benefits. This case does not, however, justify those extraordinary additional protections. Cf. Cafeteria Restaurant Workers Union v. McElroy, 367 U.S. 886, 894-95, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (concluding that due process does not require a trial-type hearing in every case). As noted earlier, Mr. Edwards first filed a claim for benefits in 1978. He declined to appeal the denial in 1981. A decade later, Mr. Edwards sought to reopen his claim. The RO reopened his claim and in 1988 scheduled a physical examination. The RO sent Mr. Edwards two notice letters, the second setting the actual date for a physical examination. Mr. Edwards did not report for the examination. When the RO denied his claim, Mr. Edwards again did not appeal." }, { "docid": "18546819", "title": "", "text": "benefits. Board of Regents, 408 U.S. at 577, 92 S.Ct. at 2709. This Court has recognized a property right in veterans’ benefits in Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992), and in Thurber v. Brown, 5 Vet.App. 119, 122 (1993). In Fugere, the appellant’s benefits had been reduced when VA, without prior notice, decreased his disability rating for a service-connected hearing disorder. In Thurber, the appellant was an individual claiming entitlement to service connection for a spinal condition. This Comet, noting that the Supreme Court has not yet ruled on the extent to which applicants for, rather than recipients of, government benefits have property rights in their expectations, cited several lower court cases which had accorded due process right to applicants. See Id. at 123 and citations therein. In contrast, this Court found that an applicant who had filed a claim for the reinstatement of benefits after an act of Congress modified eligibility requirements did not have a property right which was entitled to due process protection. Owings v. Brown, 8 Vet.App. 17, 23 (1995), aff'd, 86 F.3d 1178 (Fed. Cir.1996) (table). In Owings, the appellant, recently divorced from her second husband, sought reinstatement of the dependency and indemnity compensation (DIC) benefits which she had received after the death of her veteran husband until her marriage to her second husband. Prior to filing her claim for reinstatement, the relevant law was amended to make remarriage a permanent bar against receiving DIC benefits. She argued that she had a property interest in the DIC benefits, and that the failure to provide notice or an opportunity for a hearing before the change in law was passed, violated due process. While not deciding the issue of whether the appellant’s due process rights were violated, the Court, inter alia, rejected the argument that the appellant could possess a property right in DIC benefits where she had not “previously established an entitlement” to them. In the instant ease, it is clear that the appellant initially had a property interest in his original VA loan guaranty entitlement. Like the claimant" }, { "docid": "20412702", "title": "", "text": "disability rating matter as if it were part of his timely filed Substantive Appeal for more than five years, VA waived any objections it might have had to the timeliness of filing. See Gomez, Gonzalez-Morales, Beyrle, and Rowell, all supra. “The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a decent claim.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed.Cir.2009). It is clear to the Court that Congress intended section 7105(d)(3) as an aid to orderly process and the achievement of finality while retaining the veteran-friendly aspects of the VA claims processing system. Cf. Robinson v. Shinseki, 557 F.3d 1355, - (Fed.Cir.2009) (explaining that VA’s regulations oblige VA to read a veteran’s filings liberally). It is inconsistent with that congressional intent for VA to treat its procedures as a minefield that the veteran must successfully negotiate in order to obtain the benefits that Congress intended to bestow on behalf of a grateful nation. If VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says. Furthermore, while we recognize VA’s legitimate interests in promoting efficiency in the adjudication process, conserving scarce resources, and obtaining repose by disallowing stale claims, we cannot see any prejudice VA might suffer in those regards here. This is not a case where VA acted promptly to close out an appeal due to an untimely Substantive Appeal. Instead, VA engaged in substantive and procedural development, scheduled hearings on the matter, and took testimony on the matter, all before it decided to dismiss the matter, or even determined that an issue of the Board’s jurisdiction existed. The Secretary has not demonstrated any systemic benefit that would accrue to the VA claims adjudication system by treating the appellant’s claim in the way it did. We must also note a final issue, although it was not briefed by the parties. In addition to determining that the appellant failed to file a timely Substantive Appeal as to the disability rating matter, the" }, { "docid": "12276529", "title": "", "text": "should be sacrificed. The central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner. Vanelli, 667 F.2d at 779-80; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). On the record before this court, it is impossible to determine whether the VA afforded Orloff a meaningful opportunity to be heard in response to the charges made against him. With regard to the deductions from Orloff’s salary made by the VA, the district court must also balance the relevant interests to determine the appropriate procedural protections that Orloff should be afforded. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18; Elliott v. Weinberger, 564 F.2d 1219, 1230 (9th Cir.1977), aff’d in part and rev’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). The VA has unilaterally determined that Orloff breached his employment agreement and awarded itself judgment. From the record, it does not appear that the VA provided Orloff with either a prior or a post-termination hearing on this issue. We hold that if Orloff did have a liberty or property interest in his continued appointment, material issues of fact remain concerning whether the procedures employed in this case to terminate him comported with due process. On remand, the district court must (a) determine what procedures the VA used to review the termination decision; and (b) apply the three-part balancing test of Mathews to determine whether the procedures were sufficient in this context. Because Orloff did have a property interest in his wages, the district court must determine the procedural protections that the VA is required to afford, in order that Orloff have an opportunity to protect that interest. CONCLUSION Material issues of fact exist as to whether: (1) Orloff had a property interest in his appointment; (2) the manner of Orloff’s termination implicated a liberty interest; and" }, { "docid": "20413218", "title": "", "text": "take the extraordinary course of undertaking proceedings to appoint a guardian or to schedule additional hearings. Without evidence of Mr. Edwards’s alleged inability to understand a notice letter and without Mr. Edwards raising this question himself at all over a protracted time, this court perceives no reversible error in the Veterans Court’s finding that he received adequate process. Therefore, this court affirms. AFFIRMED COSTS Each party shall bear its own costs. RADER, Circuit Judge, additional views. While I agree with the result reached in this case, I write separately to invite further inquiry about this court’s recent decision in Cushman v. Shinseki, 576 F.3d 1290 (2009). In Cushman, this court determined that applicants for veteran’s disability benefits have “property interest[s] protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.” Id. at 1298. Significantly, the Supreme Court has specifically de- dined to grant property right protections to mere applicants for government benefits. See Lyng v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) (“We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment.”). Instead the Court advises: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined .... Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Applicants for government benefits may have a “need” or a “desire” to receive benefits, but before a showing of eligibility, they have no “legitimate claim of entitlement.” Indeed, the application and eligibility proceedings have the very purpose of determining which applicants have this “legitimate claim.” To grant property right" }, { "docid": "20414029", "title": "", "text": "has been deprived of his constitutional right to procedural due process, because his claims have not been properly addressed. We have held that veterans’ benefits are a protected property interest under the Fifth Amendment, because they are statutorily mandated and nondiscre-tionary in nature. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed.Cir.2009). In Cushman, we held that there was a violation of due process where there was no adequate remedy under existing statutes and regulations to address the VA’s reliance on an improperly altered medical record. Id. at 1298-99. However, here there is no due process issue since, unlike the situation in Cushman, the statutes and regulations provide an adequate remedy for any error that occurred in prior proceedings. Thus, we dismiss-in-part, reverse-in-part, and remand for further consideration. DISMISSED-IN-PART, REVERSED-IN-PART, and REMANDED COSTS No costs. . There was a delay in response to Guillory’s request for a file review because his claims file had been lost. The VA reconstructed his claims file from agency documents as well as documents provided by Guillory. When a veteran’s claims file has been lost, the VA has a heightened duty to explain its findings and conclusions. See Marciniak v. Brown, 10 Vet.App. 198, 200 (1997). . The 2003 decision discussed Guillory’s contentions that \"he was not rated and not compensated for the loss of use of both hips, thighs, and buttocks,” J.A. 101, which was also part of the Statement of the Case. The Board then concluded that at the various points throughout Guillory’s rating history, he had been properly rated, as he failed to provide any evidence showing that his service-connected disabilities exceeded the requirements of the subsection he was assigned. Thus, it appears that the Board in 2003 dismissed this argument because there was insufficient evidence as to these alleged disabilities. . Guillory also argues that the VA committed CUE in failing to award the \"triplegia rate retroactive to 1966.” Appellant’s Br. 6. It is unclear if this claim is distinct from his assertions regarding the loss of use of his trunk and buttocks. However, as this argument also goes to the contention" }, { "docid": "8433632", "title": "", "text": "a contractual relationship does not exist between a service-member and the government with respect to retirement benefits, Plaintiffs complaint fails to state a claim for breach of contract. Due Process Plaintiff contends that the denial of benefits by the Los Angeles Regional Office of the VA is a violation of his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Compl. H 42. The Tucker Act, 28 U.S.C. § 1491, confers jurisdiction upon the United States Court of Federal Claims over cases in which a plaintiff has a claim against the United States for money damages. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc) (“[A] plaintiff must identify a separate source of substantive law that creates the right to money damages,” i.e., a source which is “money-mandating.”). It is well established that a violation of the due process clause of the Constitution does not obligate the United States to pay money damages. Mullenberg v. United States, 857 F.2d 770, 773 (Fed.Cir.1988). See also Le-Blanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995) (“[The] complaint included counts alleging violation of ... [the] Due Process Clauses of the Fifth and Fourteenth Amendments, the Equal Protection Clause of the Fourteenth Amendment, and the doctrine of separation of powers. None of these [were] a sufficient basis for jurisdiction [at the Court of Federal Claims] because they [did] not mandate payment of money by the government.”). Accordingly, this Court lacks jurisdiction over Plaintiffs due process claim. Fifth Amendment Taking Claim Plaintiff alleges that the government has effected an uncompensated taking of his retirement and disability benefits in violation of the Fifth Amendment. Compl. U 42. The Fifth Amendment to the United States Constitution states: No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. Plaintiff contends that the initial decision to deny Plaintiffs benefits by the VA regional office—now being appealed to the Board of Veterans Affairs—constitutes a taking. Compl. 1142. Plaintiff further claims" }, { "docid": "20412829", "title": "", "text": "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 S.Ct. 652, 94 L.Ed. 865 (1950). To raise a due process question, the claimant must demonstrate a property interest entitled to such protections. Richard v. West, 161 F.3d 719, 723 (Fed.Cir.1998). It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Supreme Court has not, however, resolved the specific question of whether applicants for benefits, who have not yet been adjudicated as entitled to them, possess a property interest in those benefits. See Lyng v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986); Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 312, 320 n. 8, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985); Peer v. Griffeth, 445 U.S. 970, 100 S.Ct. 1348, 64 L.Ed.2d 247 (1980) (Rehnquist, J., dissenting). The Supreme Court has, however, offered guidance relevant to" }, { "docid": "13921767", "title": "", "text": "situation at bar. See Vail, 946 F.2d at 592 (holding Michigan’s antidefieiency statute inapplicable to VA indemnity agreement.) 2. Due Process of Law. The determination that the North Carolina statute is inapplicable does not, however, dispose of plaintiff’s argument that due process requires the VA to give some notice of pending foreclosure proceedings before exercising its indemnity rights. As one court confronting a similar claim noted, the indemnity agreement imposes a heavy obligation on the veteran, one that weighs even heavier when the veteran allows a purchaser to assume the VA loan and does not obtain a release from the VA. The veteran then cannot ensure that the new owner will comply with the mortgage covenants, yet the veteran is still liable for the new owner’s default. This unenviable situation is exacerbated when the veteran receives no notice of foreclosure and cannot ensure that fair value is received, nor can the veteran redeem if he is unaware of the sale. Although perhaps this scheme is enforceable as between private parties, government participation in this type of foreclosure procedure raises serious due process questions. Vail v. Derwinski, 946 F.2d 589 (8th Cir.1991). See also United States v. Whitney, 602 F.Supp. 722, 735 (W.D.N.Y.1985); United States v. Murdock, 627 F.Supp. 272 (N.D.Ind.1985). The due process clause of the fourteenth amendment requires states, prior to taking action which will affect a constitutionally protected interest in life, liberty or property, to provide “notice reasonably calculat ed, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983). The same standard applies equally to the actions of federal agencies under the fifth amendment. See, e.g., Adams v. Harris, 643 F.2d 995, 998 (4th Cir.1981). Therefore if the court finds that VA actions affect a veteran’s property interests, the notice requirements of Mullane and Mennonite will" } ]

[ { "docid": "23581794", "title": "", "text": "L.Ed.2d 286 (1976) (footnote omitted). We agree with the Fifth Circuit’s analysis of this issue. The record shows that the government’s witnesses were thoroughly cross-examined. Their credibility was vigorously attacked. The jury was instructed on the presumption of innocence, burden of proof and reasonable doubt. The government’s evidence established that the events occurred on a day reasonably near the date alleged. Appellants failed to request an instruction on alibi. Under these circumstances, the challenged instruction did not affect the fundamental fairness of the trial. See United States v. Goodrich, 493 F.2d 390, 394 (9th Cir.1974) (the giving of an “on or about” instruction is harmless error where it is obvious the jury rejected the defendant’s alibi for the specific date on which the prosecution witnesses testified that the crime occurred). F. Reviewability Of The Denial Of The Motion For Severance Appellants claim that the district court abused its discretion in denying their motion for a severance. Appellants made a pretrial motion for a separate trial under Rule 8 and Rule 14 of the Federal Rules .of Criminal Procedure. “In this circuit, to preserve the issue on appeal, a motion to sever must be renewed at the close of the evidence or it is waived.” United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986). The motion was not renewed at the close of evidence. We decline to review this issue because it was not preserved on appeal. The judgments are AFFIRMED. . 18 U.S.C. § 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. . 8 U.S.C. § 1325 (1982) provides in pertinent part: Any alien who (1) enters the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) obtains entry to the United States by a" } ]

[ { "docid": "22976408", "title": "", "text": "the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991), cert. denied, -U.S. -, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993) (internal quotations omitted). \"The guiding principle is whether the defendant diligently pursued the motion.\" Vasquez-Velasco, 15 F.3d at 845 & n. 9 (internal quotations omitted). In this case, Powell diligently pursued the motion; he moved to sever the trial prior to trial and renewed his motion immediately prior to the admission of the evidence deemed prejudicial — the recorded trial testimony of Briseno. Id. at 845. Moreover, the district court had previously denied the defendants’ motions for severance on two occasions, indicating that a renewal of the motion after the government's rebuttal would have been an unnecessary formality. See Cuozzo, 962 F.2d at 949 n. 5; United States v. Kaplan, 554 F.2d 958, 966 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). . Even in cases in which defendants do raise mutually antagonistic defenses, there is no per se rule requiring severance. See Zafiro,-U.S. at -, 113 S.Ct. at 938 (stating that \"Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion”). . We recognize that the district court also had an obligation to ensure that the proceedings appeared to be fair. See Wheat, 486 U.S. at 160, 108 S.Ct. at 1698. For this reason, it might be argued that rules relating to conflict must be applied prophylactically, and that we must review this case without benefit of hindsight. If we were to constrain ourselves to such an application, the result would be no different. Even at the time the district court ruled on the matter, Koon had shown little more than the appearance of a conflict. We have expressed \"grave doubts” as to whether mere appearances would ever be enough to deprive a criminal defendant of the right to" }, { "docid": "23083481", "title": "", "text": "trial from that of Sonnie Davis. “In order to preserve a [severance] motion on appeal, the motion must be renewed at the close of evidence.” United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). “Failure to do so generally waives appellate review.” United States v. Plache, 913 F.2d 1375, 1378 (9th Cir.1990); see also United States v. Urrutia, 897 F.2d 430, 433 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 2190, 109 L.Ed.2d 517 (1990) (“When a defendant fails to renew a motion for severance at the close of the evidence the issue is waived.”); United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990) (appellant “waived his severance motion by not renewing it at the close of the evidence.”). A severance issue will be preserved for appeal, however, absent a post-evidence renewal, where a new “motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988) (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)). Kevin Davis acknowledges he failed to renew the severance issue at the close of evidence. Moreover, appellant failed to renew the motion at any time during trial. Renewal of the motion to sever was necessary in this instance because the district court did not indicate that a renewal would be fruitless. See United States v. Kaplan, 554 F.2d at 966 (the district court, before the close of evidence, indicated that a renewal would be useless). For these reasons, we hold that Kevin Davis’ failure to renew the denial of his severance motion resulted in the waiver of his right to appeal. VII. IMPROPER DELEGATION/APPOINTMENT OF SPECIAL PROSECUTOR A. Standard of Review We review de novo the district court’s refusal to dismiss the indictment for prose-cutorial misconduct. United States v. Plesinski, 912 F.2d 1033, 1035 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1306, 113" }, { "docid": "2838265", "title": "", "text": "(1977), we identified two exceptions to the requirement of renewal to preserve appellate review: “[1] the motion accompanies the introduction of evidence deemed prejudicial and [2] a renewal at the close of all evidence would constitute an unnecessary formality.” Neither of these two exceptions has been shown to apply here. Without any supporting authority, Piache contends this issue was not waived because he renewed a motion to sever at the close of the Government’s case in chief. This is not the law of our circuit. See, e.g., United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir.1972) (where motion to sever was brought pretrial and at the conclusion of the Government’s case, waiver results where motion was not renewed “based on prejudice, at the close of all the evidence”). The renewal requirement serves at least two functions. First, it enables the trial court to assess more accurately whether a joinder is prejudicial at a time when the evidence is fully developed. Free, 841 F.2d at 324. Second, it prevents any effort to sandbag the trial court by allowing the case to go to the jury, while preserving an issue on appeal based on evidence that was not before the court at the time of its ruling. Id.; see also Kaplan, 554 F.2d at 966 (“Premature motions to sever not diligently pursued as the prejudicial evidence unfolds cannot serve as insurance against an adverse verdict.”). Plache’s failure to renew his motion deprived the court of an opportunity to rule based on all the evidence. Therefore, Piache has waived this issue for appeal. IV. Attorney-Client Privilege Piache and Attarian present separate challenges under the attorney-client privilege. The party asserting the privilege has the burden to prove the privilege applies. United States v. Layton, 855 F.2d 1388, 1406 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989); United States v. Landof, 591 F.2d 36, 38 (9th Cir.1978). The attorney-client privilege is strictly construed. Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir.1981). The privilege may be waived by voluntary disclosure. Clady v. County of" }, { "docid": "23045841", "title": "", "text": "furtherance of the scheme to defraud. Use of the mails that is not a step toward receipt of the fruits of the scheme is not a violation of § 1341. United States v. Maze, supra; Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944); United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974), modified en banc on other grounds, 517 F.2d 53, cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970). Although the oral representations made by Cassidy were in furtherance of the Euro-vest scheme, the letter from Lachman in response to those representations was not. Therefore, the convictions of those appellants who were convicted on Count 22 of the indictment are reversed. III. SEVERANCE FROM TRIAL OF CASSIDY Appellants Kaplan, Gorwitz, Vogt, Stradley, and Dolwig insist that each should have had his trial severed from that of Cassidy. Each insists that his joinder with Cassidy prejudiced him sufficiently to require severance pursuant to Fed.R.Crim.P. 14. To evaluate these contentions it is helpful to set forth certain principles. Motions to sever must be timely made and properly maintained, or the right to severance will be deemed waived. United States v. Figueroa-Paz, 468 F.2d 1055 (9th Cir. 1972). To preserve the point, the motion to sever must be renewed at the close of all evidence. 468 F.2d at 1057. This requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality. Diligent pursuit of a severance motion is the guiding principle. United States v. Burnley, 452 F.2d 1133 (9th Cir. 1971); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962). Premature motions to sever not diligently pursued as the prejudicial evidence unfolds cannot serve as insurance against an adverse verdict. On another occasion we have observed: “The power vested in the district court pursuant to Rule 14 is discretionary, and the only question on appeal is whether such" }, { "docid": "22976407", "title": "", "text": "Briseno received appellants' compelled statements. Pursuant to Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (1975), LAPD officers who face disciplinary proceedings are provided with a \"Skelly package” containing all of the evidence from internal investigations of the matter, including the compelled statements of other LAPD officers. . Rule 14 provides in relevant part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. . We reject the government’s contention that Powell waived his right to appeal this issue because he failed to renew his motion to sever at the close of the government’s case. Although a defendant generally waives a severance motion by failing to renew it at the close of evidence, \"[t]his requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991), cert. denied, -U.S. -, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993) (internal quotations omitted). \"The guiding principle is whether the defendant diligently pursued the motion.\" Vasquez-Velasco, 15 F.3d at 845 & n. 9 (internal quotations omitted). In this case, Powell diligently pursued the motion; he moved to sever the trial prior to trial and renewed his motion immediately prior to the admission of the evidence deemed prejudicial — the recorded trial testimony of Briseno. Id. at 845. Moreover, the district court had previously denied the defendants’ motions for severance on two occasions, indicating that a renewal of the motion after the government's rebuttal would have been an unnecessary formality. See Cuozzo, 962 F.2d at 949 n. 5; United States v. Kaplan, 554 F.2d 958, 966 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). . Even in" }, { "docid": "1478031", "title": "", "text": "failure to timely comply with Fed.R. Crim.P. 16(a). We affirm. I SEVERANCE OF THE FIREARMS COUNT Pursuant to Rule 12(b)(5), Fed.R.Crim.P., Burgess made a pretrial motion to sever Count IV, felon in possession of a firearm, because of prejudice on the grounds that the evidence necessary to prove that count would be inadmissible in a trial of the other charges. Burgess does not dispute the propriety of the joinder of the charges, but contends that the denial of his motion for severance to avoid prejudice was error. In this circuit, to preserve the issue on appeal, a motion to sever must be renewed at the close of the evidence or it is waived. See, e.g., United States v. Monks, 774 F.2d 945, 949 (9th Cir.1985); United States v. Guess, 745 F.2d 1286, 1289 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1219, 84 L.Ed.2d 360 (1985); United States v. Barker, 675 F.2d 1055, 1058-59 (9th Cir.1982) [an unrelated holding in Barker was overruled in United States v. DeBright, 730 F.2d 1255 (9th Cir.1984)]. See also United States v. Kaplan, 554 F.2d 958, 966 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977) [diligent pursuit of a severance motion is the guiding principle]; and Williamson v. United States, 310 F.2d 192, 197 (9th Cir.1962) [failure to renew request for severance at close of evidence suggests that prejudice now asserted to have resulted from the joinder may not have seemed so substantial to appellant in the context of trial]. Burgess did not renew his motion to sever either during trial or at the close of evidence. Accordingly, the issue was not preserved on appeal. Burgess argues that the recent decision in United States v. Lewis, 787 F.2d 1318 (9th Cir.1986), and the decision in United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev’d on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), require reversal. It is appropriate to note here that United States v. Lewis, id., does not indicate whether the motion to sever was renewed and thus preserved on appeal." }, { "docid": "16660593", "title": "", "text": "Felix-Gutierrez, 940 F.2d at 1208; United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990). However, “ ‘[t]his requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.’ ” Felix-Gutierrez, 940 F.2d at 1208 (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)). “The guiding principle is whether the defendant diligently pursued the motion.” Id.; see also U.S. v. Davis, 932 F.2d at 762 (defendant waives right to appeal denial of severance motion where he fails to renew motion at any time during trial). Even though Vasquez-Velasco did not renew his motion to sever at the close of all evidence, he did “diligently pursue” his motion. Vasquez-Velasco made and renewed his motion for severance prior to trial, during trial, and at the conclusion of the government’s ease. Each request was denied. See United States v. Plache, 913 F.2d 1375, 1379 (9th Cir.1990) (stating that one important function of the renewal requirement is that “it enables the trial court to assess more accurately whether joinder is prejudicial at a time when the evidence is fully developed”); United States v. Free, 841 F.2d 321, 324 (9th Cir.1988) (same). Although he did not move for severance at the end of trial, to require Vasquez-Velasco to move for severance on the same grounds for which several of his motions had already been denied would be an “unnecessary formality.” See United States v. Davis, 932 F.2d at 762 (suggesting that if district court indicates that renewal is fruitless, party does not waive right to appeal by failing to renew motion); Cuozzo, 962 F.2d at 949 n. 5 (when codefendant moves for severance and is denied, it may be an “ ‘unnecessary formality' ” for appellant to renew his motion); Kaplan, 554 F.2d at 966 (two defendants who do not renew motion to sever at all waive right to appeal, but three defendants who renew motions" }, { "docid": "2838264", "title": "", "text": "of his three motions to sever, pursuant to Fed.R.Crim.P. 14, constituted an abuse of discretion. See, e.g., United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987). The first motion was brought before trial, the second early in the trial, and the third at the close of the Government’s case in chief. Generally, to prevail, a defendant has the burden to show he was denied a fair trial in that his joinder was “so manifestly prejudicial that it outweighed the dominant concern with judicial economy.” Id. at 1502 (citations omitted). However, it is unnecessary to address the merits because Piache did not renew his motion to sever at the close of all trial evidence. Failure to do so generally waives appellate review. See, e.g., United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (cited in Free, 841 F.2d at 324), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977), we identified two exceptions to the requirement of renewal to preserve appellate review: “[1] the motion accompanies the introduction of evidence deemed prejudicial and [2] a renewal at the close of all evidence would constitute an unnecessary formality.” Neither of these two exceptions has been shown to apply here. Without any supporting authority, Piache contends this issue was not waived because he renewed a motion to sever at the close of the Government’s case in chief. This is not the law of our circuit. See, e.g., United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir.1972) (where motion to sever was brought pretrial and at the conclusion of the Government’s case, waiver results where motion was not renewed “based on prejudice, at the close of all the evidence”). The renewal requirement serves at least two functions. First, it enables the trial court to assess more accurately whether a joinder is prejudicial at a time when the evidence is fully developed. Free, 841 F.2d at 324. Second, it prevents any effort to sandbag the trial" }, { "docid": "16804620", "title": "", "text": "to Costa Rica was prejudicial error. As such evidence tends to prove Felix’s ability to establish a safe haven for Caro-Quintero in Costa Rica, and the probative value of such evidence is not outweighed by its prejudicial effect, the district court did not err in allowing the introduction of the evidence of Felix’s connections to Costa Rica. V. Severance Motion Felix contends that the trial court abused its discretion in denying his motions for severance. The government contends that Felix has waived his right to assert that the district court erred in denying his motion, because he failed to renew it at the close of all evidence. As a general rule, a defendant waives his severance motion by not renewing it at the close of evidence. United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990). However, we have noted that “[tjhis requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). The guiding principle is whether the defendant diligently pursued the motion. Id. at 966. Felix asserts that he made several requests for severance based on Rules 8(b) and 14. Felix filed a motion for severance from his co-defendants on April 15, 1988. He later filed an opposition, reply, and supplemental opposition. After the district court denied the motion, Felix filed a motion for reconsideration. Moreover, his severance motion was orally renewed, and denied, several times during trial. Appellant’s conduct was sufficient to establish that he “diligently pursued” the motion. Accordingly, we conclude that Felix did not waive his right to challenge the district court’s denial of his severance motion. A. Rule 8(b): Misjoinder Felix first argues that he was improperly joined with co-defendant Rene Martin Verdugo-Urquidez and with another co-defendant Raul Lopez-Alvarez, who has filed a separate appeal, because the three of them did not participate in the same series" }, { "docid": "10887621", "title": "", "text": "the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We have not taken those materials into account in evaluating the government's conduct. . The defendants based much of their possession argument on language from the concurring opinion in United States v. Batimana, 623 F.2d 1366, 1371 (9th Cir.1980) (Fletcher, J., concurring), which indicated that possession cannot be found in a “transaction ... tightly controlled by the police.” Id. The position of the concurrence in Batimana was not adopted by the majority in that case. We decline to apply it to the facts of this case. . DEA agents had taped and transcribed the conversations. . The statements could properly have been admitted if the trial court had limited their use to showing that negotiations occurred. Because no. limiting instruction was given, however, the jury was free to use the statements to prove the matters asserted. . We test this and subsequent violations of 801(d)(2)(E) under the harmless error standard applicable to constitutional errors, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1969), thus obviating the need to apply a confrontation clause analysis. . Although the declaration was evidence of pri- or bad acts, Fed.R.Evid. 404(b) would not have barred its use against Castaneda because in a narcotics trial evidence of prior narcotics transactions is admissible to show \"intent, knowledge, and scheme or plan.” United States v. Valencia, 492 F.2d 1071, 1074 (9th Cir.1974); accord United States v. Harrison, 679 F.2d 942, 948 (D.C.Cir.1982). . United States v. Kaplan, 554 F.2d 958 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977), held that \"when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality,” then a failure to request severance at the end of the trial may be excused. Id. at 965. The defendants, however, do not fall within the Kaplan exception. They requested severance only once during the proceedings below. That request was" }, { "docid": "23045842", "title": "", "text": "To evaluate these contentions it is helpful to set forth certain principles. Motions to sever must be timely made and properly maintained, or the right to severance will be deemed waived. United States v. Figueroa-Paz, 468 F.2d 1055 (9th Cir. 1972). To preserve the point, the motion to sever must be renewed at the close of all evidence. 468 F.2d at 1057. This requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality. Diligent pursuit of a severance motion is the guiding principle. United States v. Burnley, 452 F.2d 1133 (9th Cir. 1971); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962). Premature motions to sever not diligently pursued as the prejudicial evidence unfolds cannot serve as insurance against an adverse verdict. On another occasion we have observed: “The power vested in the district court pursuant to Rule 14 is discretionary, and the only question on appeal is whether such discretion has been abused. Parker v. United States, 404 F.2d 1193 (9th Cir. 1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969). The test is whether a joint trial is so prejudicial to one defendant as to require the exercise of that discretion in only one way, that is, by ordering a separate trial.” United States v. Thomas, 453 F.2d 141, 144 (9th Cir.), cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1971). See United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). In determining whether the trial court abused its discretion, ordinarily we must view its denial of a motion to sever as of the time of denial. Only in rare cases will a trial court’s failure to reopen, sua sponte, the question of severance constitute an abuse of discretion. Byrd v. Wainwright, 428 F.2d 1017, 1019 n.1 (5th Cir. 1970). The trial court, in considering a motion to sever based upon a defendant’s insistence that a codefendant will provide exculpatory testimony after severance, must" }, { "docid": "23190935", "title": "", "text": "Las Vegas at the time of the kidnapping and that he returned from Las Vegas with Watkins. After he returned from Las Vegas, Sherwood gave one individual $20,000 for herself and $10,000 for her daughter. He also gave $10,000 to an individual named Victor and $10,000 to an individual named Charles. The money was given out in $100 denominations. Another witness testified that Sherwood told her that he and Watkins had kidnapped a woman for ransom. Consequently, there was evidence from which a rational jury could have found beyond a reasonable doubt that Sherwood was one of the kidnappers. DEFENDANT CUDDY Severance Cuddy has waived his right to appeal the district court’s denial of his severance motion by failing to renew the motion at the close of evidence because Cuddy has failed to demonstrate that to renew the motion would have been an unnecessary formality, and he has otherwise failed to establish that he diligently pursued his motion. See United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (waiver may be absent when a renewal at the close of evidence would constitute an unnecessary formality; the “[d]iligent pursuant of a severance motion is the guiding principle”), cert. denied, 434 U.S. 956, 98 S.Ct. 488, 54 L.Ed.2d 315 (1977). Suppression We review de novo the district court’s denial of a suppression motion. United States v. Moreno-Flores, 33 F.3d 1164, 1168 (9th Cir.1994). Whether a person is in custody and whether he was subjected to police interrogation are questions of fact reviewable under the clearly erroneous standard. United States v. Brady, 819 F.2d 884, 886 (9th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988). We also review the district court’s voluntariness determination under the clearly erroneous standard. United States v. Allen, 699 F.2d 453 (9th Cir.1982). A district court’s decision to admit evidence for impeachment purposes on cross-examination is reviewed for abuse of discretion. United States v. Perkins, 937 F.2d 1397, 1406 (9th Cir.1991). The district court did not err in denying Cuddy’s motion to suppress his statement “How did you find me so quickly?” The" }, { "docid": "1478032", "title": "", "text": "also United States v. Kaplan, 554 F.2d 958, 966 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977) [diligent pursuit of a severance motion is the guiding principle]; and Williamson v. United States, 310 F.2d 192, 197 (9th Cir.1962) [failure to renew request for severance at close of evidence suggests that prejudice now asserted to have resulted from the joinder may not have seemed so substantial to appellant in the context of trial]. Burgess did not renew his motion to sever either during trial or at the close of evidence. Accordingly, the issue was not preserved on appeal. Burgess argues that the recent decision in United States v. Lewis, 787 F.2d 1318 (9th Cir.1986), and the decision in United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev’d on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), require reversal. It is appropriate to note here that United States v. Lewis, id., does not indicate whether the motion to sever was renewed and thus preserved on appeal. However, even if Burgess had preserved the issue on appeal, there was no error. Denial of a properly preserved motion for severance is reviewed for abuse of discretion. United States v. DiCesare, 765 F.2d 890, 898 (9th Cir.), modified on other grounds, 777 F.2d 543 (9th Cir.1985); United States v. Irvine, 756 F.2d 708, 712 (9th Cir.1985). The test is whether joinder was so prejudicial to a defendant that it outweighs the dominant concern with judicial economy and requires the exercise of the trial judge’s discretion in only one way. United States v. Nolan, 700 F.2d 479, 482 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983); United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). In Lewis, 787 F.2d at 1323, this court undermined the effectiveness of cautionary instructions when it stated: “We share the D.C. Circuit’s skepticism of the efficacy of such instructions no matter when they are given.” In dictum, United States v. Busic," }, { "docid": "12205231", "title": "", "text": "impeachment evidence, (1), (2) and (5) favored it, and thus ruled that the evidence would be admissible. We find no abuse of discretion in this evaluation. United States v. Perkins, 937 F.2d 1397, 1406 (9th Cir.1991). . It appears that the government was unable to prove the prior affair through extrinsic evidence. The \"victims” had apparently become hostile to the government, prompting the government to abandon its plans to call them as witnesses. . Monari also argues that even if the evidence was admissible under Rule 404(b), it still should have been excluded as being more prejudicial than probative. The trial court did (contrary to Monari’s claim) state on the record that it had weighed these considerations, and found the probative value to outweigh the prejudicial effect. While the court perhaps should have been more sceptical of the government's ability to prove Monari’s prior wrongdoing, we do not believe that, in light of the government's offer of proof, the court abused its discretion in concluding that the evidence was admissible. See Huddleston, 485 U.S. at 690, 108 S.Ct. at 1501. . The government argues that Cuozzo and Mon-ari have waived their severance motions by failing to renew them. As a general rule, we have held a severance motion waived if not renewed at the close of evidence. United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991). This rule is not, however, “an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” Id. (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)). In Felix-Gutierrez we explained that \"[t]he guiding principle is whether the defendant diligently pursued the motion.” 940 F.2d at 1208. Here, the government concedes that Stella renewed his motion at the close of evidence. A reasonable reading of the record is, however, that the trial court understood Stella to be making the motion on behalf of all the defendants. Moreover, in" }, { "docid": "12205232", "title": "", "text": "690, 108 S.Ct. at 1501. . The government argues that Cuozzo and Mon-ari have waived their severance motions by failing to renew them. As a general rule, we have held a severance motion waived if not renewed at the close of evidence. United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.1991). This rule is not, however, “an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” Id. (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)). In Felix-Gutierrez we explained that \"[t]he guiding principle is whether the defendant diligently pursued the motion.” 940 F.2d at 1208. Here, the government concedes that Stella renewed his motion at the close of evidence. A reasonable reading of the record is, however, that the trial court understood Stella to be making the motion on behalf of all the defendants. Moreover, in light of the denial of Stella’s motion, it may have been an \"unnecessary formality” for Cuozzo and Monari to renew their motions. We therefore hold that under the circumstances of this case there was no waiver. . After eleven days of trial, and the examination of more than two dozen witnesses, the jury began deliberating in the afternoon of October 29, 1990, and deliberated for close to two days before the giving of the charge at 2:52 p.m. on October 31, 1991. The jury returned to deliberation at 2:56 p.m., and continued until 5:00 p.m. that evening, at which time they notified the court that progress was being made. Deliberation recommenced the next morning, and continued until 12:47 p.m. Thus, following the Allen charge, the jury deliberated for approximately six hours. We believe this was a sufficient period of time to allow the jury to reach a reasoned decision in this case. . Appellants argue that in light of the second “deadlock\" note's statement that “the majority of the jurors were standing firm,” the charge" }, { "docid": "2838263", "title": "", "text": "“probably] support, beyond that of a regular citizen, ... the goals of the mail fraud statute, and [she had an alleged] natural abhorrence against possibly being made an unwilling instrument of mail fraud.” The district court did not abuse its discretion in denying the motions to excuse for cause or for a new trial. The potential for substantial emotional involvement, identified in other cases finding an implied bias, has not been shown here. In the absence of any persuasive additional factors, Coleman’s employment status alone does not warrant a finding of implied bias. Here, the credibility of any postal official was never in issue. No Postal Service inspector or employee testified, although a Postal Service inspector sat at the Government’s table throughout the trial. The mere use of the mails as an instrumentality did not convert the Postal Service into a victim, as the defendants contend. No direct relation has been established between Coleman’s letter-carrying duties and the investigative function of the Postal Inspection Service. III. Motion to Sever Piache contends the district court’s denial of his three motions to sever, pursuant to Fed.R.Crim.P. 14, constituted an abuse of discretion. See, e.g., United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987). The first motion was brought before trial, the second early in the trial, and the third at the close of the Government’s case in chief. Generally, to prevail, a defendant has the burden to show he was denied a fair trial in that his joinder was “so manifestly prejudicial that it outweighed the dominant concern with judicial economy.” Id. at 1502 (citations omitted). However, it is unnecessary to address the merits because Piache did not renew his motion to sever at the close of all trial evidence. Failure to do so generally waives appellate review. See, e.g., United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (cited in Free, 841 F.2d at 324), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315" }, { "docid": "10887622", "title": "", "text": "see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1969), thus obviating the need to apply a confrontation clause analysis. . Although the declaration was evidence of pri- or bad acts, Fed.R.Evid. 404(b) would not have barred its use against Castaneda because in a narcotics trial evidence of prior narcotics transactions is admissible to show \"intent, knowledge, and scheme or plan.” United States v. Valencia, 492 F.2d 1071, 1074 (9th Cir.1974); accord United States v. Harrison, 679 F.2d 942, 948 (D.C.Cir.1982). . United States v. Kaplan, 554 F.2d 958 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977), held that \"when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality,” then a failure to request severance at the end of the trial may be excused. Id. at 965. The defendants, however, do not fall within the Kaplan exception. They requested severance only once during the proceedings below. That request was a pre-trial motion based on their fear that the government would introduce evidence that defendant Castaño had been convicted of an earlier narcotics offense. As it turned out at trial, the government never introduced Castano's conviction. At no point did the defendants even ask for severance because of the evidence which was actually introduced at trial. Such a motion at the close of evidence would therefore clearly not have been an unnecessary formality." }, { "docid": "16660592", "title": "", "text": "existence of the cartel and its racketeering activities, the district court did not err in denying Vasquez-Velas-co’s motion to sever for misjoinder under Rule 8(b). III. Severance Vasquez-Velasco contends that the district court abused its discretion in denying his motions for severance. A district court’s decision regarding whether to sever pursuant to Federal Rule of Criminal Procedure 14 is reviewed for an abuse of discretion. United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir.), cert. denied, — U.S.-, 113 S.Ct. 475, 121 L.Ed.2d 381 (1992); United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.1987), cert. denied, 488 U.S. 974, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988). The government first contends that Vasquez-Velasco waived his right to assert this claim on appeal because he failed to renew it at the close of evidence. Alternatively, the government contends that the district court did not abuse its discretion in denying Vasquez-Velasco’s motions to sever. A. Waiver of severance motion A defendant generally waives a severance motion by failing to renew it at the close of evidence. Felix-Gutierrez, 940 F.2d at 1208; United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990). However, “ ‘[t]his requirement is not an inflexible one; waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.’ ” Felix-Gutierrez, 940 F.2d at 1208 (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977)). “The guiding principle is whether the defendant diligently pursued the motion.” Id.; see also U.S. v. Davis, 932 F.2d at 762 (defendant waives right to appeal denial of severance motion where he fails to renew motion at any time during trial). Even though Vasquez-Velasco did not renew his motion to sever at the close of all evidence, he did “diligently pursue” his motion. Vasquez-Velasco made and renewed his motion for severance prior to trial, during trial, and at the conclusion of the government’s ease. Each request was denied. See United States v." }, { "docid": "23083480", "title": "", "text": "participant in the attack, testified that he saw Kevin Davis go to Morrison’s house with a gun and that he heard four shots. Kevin Davis came back to the car and according to Walker said “come on let’s go” and the two then proceeded to dispose of the gun. Marilyn Morrison, the victim, testified that Kevin Davis came to her door said, “This is from Sonnie,” and shot her four times at point blank range. Given the strength of the evidence against Kevin Davis and the measures taken by the district court to cure any prejudice caused by improper questions and testimony, we do not believe the district court abused its discretion in denying appellant’s motions for mistrial. VI. SEVERANCE A. Standard of Review We review the district court’s decision to deny a motion to sever for abuse of discretion. Marsh, 894 F.2d at 1040; United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989). B. Discussion Kevin Davis contends the district court abused its discretion when it denied his pre-trial motion to sever his trial from that of Sonnie Davis. “In order to preserve a [severance] motion on appeal, the motion must be renewed at the close of evidence.” United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). “Failure to do so generally waives appellate review.” United States v. Plache, 913 F.2d 1375, 1378 (9th Cir.1990); see also United States v. Urrutia, 897 F.2d 430, 433 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 2190, 109 L.Ed.2d 517 (1990) (“When a defendant fails to renew a motion for severance at the close of the evidence the issue is waived.”); United States v. Smith, 893 F.2d 1573, 1581 (9th Cir.1990) (appellant “waived his severance motion by not renewing it at the close of the evidence.”). A severance issue will be preserved for appeal, however, absent a post-evidence renewal, where a new “motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality.” United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046," }, { "docid": "14812150", "title": "", "text": "S.Ct. 190, 93 L.Ed.2d 123 (1986). III. Motion to Sever Conspiracy Count Lujan argues the district court abused its discretion in denying his motion to sever count II for conspiracy from the substantive counts IX and X for distribution of heroin. United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987). Lujan’s motion was renewed at the close of the Government’s case in chief but was not made at the close of all trial evidence. Because Lujan failed to renew his motion at the close of all trial evidence, he waived appellate review of this issue. See, e.g., United States v. Piache, 913 F.2d 1375, 1379 (9th Cir.1990) (noting waiver generally results where motion to sever is brought at close of Government’s case in chief but is not renewed at close of all trial evidence); United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir.1972) (same). Further, Lujan has not shown that two noted exceptions to the requirement of renewal may apply. See United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). IV. Hearsay: December 30, 1987 Telephone Conversation Lujan argues the trial court abused its discretion in admitting the testimony of DEA Special Agent O’Connor and evidence concerning a December 30, 1987 telephone call from Ida Romero to Rose Arehart. A. Arehart We conclude Arehart’s statements were admissible as nonhearsay pursuant to Fed.R.Evid. 801(d)(2)(E), as “statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy.” The district court’s finding that Arehart was a member of the conspiracy was not clearly erroneous. See United States v. Zavala-Serra, 853 F.2d 1512, 1515 (9th Cir.1988). Evidence established Arehart’s role in the conspiracy as maintaining a message center at her residence for the narcotics conspiracy. The statement directing Romero to Lujan’s house was admissible as Arehart sought to induce Romero “to deal with the conspirators or in any other way to cooperate or assist in achieving the conspirators’ common objective” of narcotics transactions. Id. at 1516 (quoting United States v. Foster, 711" } ]

[ { "docid": "22664764", "title": "", "text": "nor a violation of due process for the BIA to decide that a particular case clearly falls within, or outside, those boundaries. Accordingly, we conclude that the BIA did not violate the Carriches’ due process rights by streamlining their appeal. III. Regulatory Challenge We now turn to the Carriches’ regulatory challenge. They maintain that, under the third prong of the regulation, every appeal involves a “novel fact situation,” which is a non-discretionary factor that is reviewable. Before we address the Car-riches ’ argument that the regulations do not permit streamlining for cancellation of removal cases because of their novel factual nature, we must determine whether we have jurisdiction to consider the decision to streamline the Carriches’ case. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064 (9th Cir.2003). Relying on Heckler v. Chaney and its progeny, the government argues that we lack jurisdiction because the decision to streamline is “committed to agency discretion by law” and therefore unreviewable under the Administrative Procedures Act (“APA”). See Heckler v. Chaney, 470 U.S. 821, 823, 832-33, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); 5 U.S.C. § 701(a)(2) (the “APA”). Although we agree \"with the government’s ultimate conclusion, we do not embrace the government’s argument that the streamlining decision is inherently discretionary. Indeed, portions of the stream lining decision are non-discretionary determinations that we would ordinarily have jurisdiction to review. Our analysis stems not from the APA but instead from the statute that specifically addresses our jurisdiction to review removal proceedings, namely the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See 8 U.S.C. §§ 1252(a)(1); 1252(b). IIRIRA “dramatically altered this court’s jurisdiction” to review the merits of final decisions by the IJ or BIA. Romero-Torres, 327 F.3d at 889-90 (quoting Kalmv v. INS, 133 F.3d 1147, 1149 (9th Cir.1997)). Specifically, IIRIRA eliminated our jurisdiction to review “discretionary decisions involved in the cancellation of removal context, including the ultimate discretionary decision to deny relief.” Romero-Torres, 327 F.3d at 890. We may, for example, review whether an alien has met the “ten years of continuous physical presence” requirement because this is an objective, factual" } ]

[ { "docid": "16422141", "title": "", "text": "ten-year requirement where there were no intermittent absences did not violate Petitioners’ equal protection rights. (See id. 6-7). Petitioners timely appealed. We have jurisdiction pursuant to 8 U.S.C. § 1252(b), and we affirm. I. Standard of Review When “the BIA conducts an independent review of the IJ’s findings, we review the BIA’s decision and not that of the IJ.” Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1061 (9th Cir.2008). We review the BIA’s factual findings under the deferential substantial-evidence standard and uphold them unless the evidence compels a contrary result, see Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.2004), but we review purely legal questions de novo, see De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). Accordingly, we review equal protection challenges de novo. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008). The BIA’s interpretation and application of the immigration laws are generally entitled to deference, unless the interpretation “is contrary to the plain and sensible meaning of the statute.” Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006). II. Equitable Tolling of the Ten-Year Continuous-Presence Requirement An alien who, inter alia, “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of ... application” is eligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(A). Even if an alien meets this threshold requirement, however, “[he] shall be considered to have failed to maintain continuous physical presence ... if[he] has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” Id. § 1229b(d)(2). The accrual of continuous presence ends upon the earlier of service with a notice to appear or the commission of certain offenses. Id. § 1229b(d)(1). Petitioners entered the United States on June 15, 1991 and received the notice to appear on or about May 4, 2001. They therefore do not satisfy the ten-year continuous-presence requirement. They argue the end date should be equitably tolled because the agency they hired to assist them wrongly informed them that they would be" }, { "docid": "22387098", "title": "", "text": "establish adequate continuous physical presence. The IJ applied In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2002) (en banc), to determine that Serrano’s continuous physical presence was interrupted when Serrano was compelled — as the IJ concluded was the case, based on Serrano’s testimony — to depart in 1990 under the threat of removal proceedings. The IJ noted that Serrano had been given the opportunity to go before an IJ at that time but had chosen to leave voluntarily instead. Because of this alleged administrative voluntary departure, Serrano fell three years short of the required ten years’ continuous physical presence. Though denying Serrano’s application for cancellation of removal, the IJ granted Serrano voluntary departure. Serrano appealed to the BIA, which affirmed the IJ without opinion. Serrano in his petition for review asks us to review the denial of his application. II Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we lack jurisdiction to review any discretionary judgment regarding certain components of the granting of relief for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction to review whether an alien has met the “ten years of continuous physical presence requirement because this is an objective, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) (internal quotation marks omitted). We must accord Chevron deference to the BIA’s statutory interpretations of the Immigration and Naturalization Act (“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review for substantial evidence the agency’s decision concerning an applicant’s establishment of ten years of continuous physical presence in the United States. See Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir.2004), amended by 381 F.3d 847 (9th Cir.2004). Here, because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision constitutes the final agency action for purposes of our review. See 8 C.F.R. § 1003.1(e)(4) (ii); see also Tapia v. Gonzales, 430 F.3d 997, 999" }, { "docid": "22589462", "title": "", "text": "applied to his petition because the INS had initiated proceedings against him before IIRIRA took effect and application of the rule to him would have an impermissible retroactive effect. We disagreed. We found unambiguous the statute’s instruction that the stop-time rule be applied to petitioners who fall under the transitional rules whose orders to show cause were “issued before, on, or after the date of enactment [of IIRIRA],” and also relied on IIRIRA’s legislative history, which suggested that Congress intended the transitional rules to apply the stop-time rule retroactively. See Ram, 243 F.3d at 515-18 (quoting IIRIRA § 309(c)(5)(A)). We later followed Ram in Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), to hold that § 309(c)(5)(A) requires retroactive application of the 90/180-day rule as well. The Mendiolas, whose case was governed by the transitional rules, argued that a five-month trip they took in 1993 should not bar their eligibility for suspension of deportation because the pre-IIRIRA “brief, casual, and innocent” standard rather than IIRIRA’s 90/180-day rule should apply to their petition. We rejected their claim, reasoning that “it is very unlikely that Congress intended to apply only the stop-time rule retroactively, and not the 90/180-day rule. IIRIRA § 309(c)(5)(A) states that both provisions apply to aliens whose deportation proceedings were pending on the date of IIRIRA’s enactment and there is no indication that the two provisions should be applied differently.” Id. at 941. These cases compel us to reach the same conclusion here. Garcia-Ramirez correctly argues that § 1229b(d)(2) does not reflect an express congressional intent that it should be applied retroactively, and we agree with her that use of the past present tense — “an alien shall be considered to have failed to maintain continuous presence” if the alien “has departed” from the United States for more than 90 days — is an insufficient ground from which to infer such intent under the Landgraf standard. Mendiola-Sanchez, however, holds that the broader IIRIRA statute, specifically § 309(c)(5)(A) of the transitional rules, does contain unambiguous congressional intent that the 90/180-day rule be applied retroactively. Although the INS did not initiate" }, { "docid": "22611201", "title": "", "text": "issues its own decision, rather than adopting the IJ’s decision as its own, we review the BIA’s decision. See Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). We review de novo the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act, giving deference to the BIA’s interpretation unless that interpretation is contrary to the plain and sensible meaning of the statute. See id. at 861-62 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review de novo claims of due process violations in immigration proceedings. See Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). Ill A Among other things, IIRIRA eliminated the distinction between “exclusion” and “deportation” proceedings, repealed INA § 244 and the discretionary relief of suspension of deportation, and established a new form of discretionary relief called “cancellation of removal.” INA § 240A, 8 U.S.C. § 1229b. Compared to the more lenient requirements for suspension of deportation under INA § 244, IIRIRA’s cancellation of removal provision raised the bar to relief. Section 240A increased the number of years required to establish “continuous presence” in the United States from seven to ten- years, heightened the standard for demonstrating hardship, and created a new “stop-time” rule. 8 U.S.C. § 1229b(b), (d). The new stop-time rule (1) deems the alien’s period of continuous \"presence to end when he is served with a ■notice to appear or commits certain offenses, id. § 1229b(d)(l), and (2) treats a departure from the United States for a period in excess of 90 days (or periods in the aggregate exceeding 180 days) as a failure to maintain continuous presence, id. § 1229b(d)(2). Application of IIRIRA’s new rules to aliens already in exclusion or deportation proceedings as of April 1, 1997 is governed by the transitional rules of IIRIRA § 309(c). See Marquez v. INS, 346 F.3d 892, 900 (9th Cir.2003) (citing INS v. St. Cyr, 533 U.S. 289, 318, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). NACARA § 203 amended these transitional rules to permit qualified" }, { "docid": "22600759", "title": "", "text": "petitioner was served with a Notice to Appear alleging that petitioner is an alien who is present in the United States without being admitted or paroled or who arrived at a time and place other than as designated by the Attorney General. At the hearing before the immigration judge (“U”), petitioner conceded that he is removable as charged and applied for cancellation of removal pursuant to INA § 240A(b)(1), codified at 8 U.S.C. § 1229b(b)(1). To be entitled to cancellation of removal, an alien must have ten years continuous physical presence in the United States. In response to questions by the IJ, petitioner made statements from which the IJ concluded that petitioner had received administrative voluntary departure in 1996. Accordingly, the IJ denied the application for cancellation of removal on the ground that petitioner had failed to amass the requisite ten years continuous physical presence in the United States. Petitioner appealed to the BIA, which affirmed the IJ’s decision without opinion on March 16, 2004. Petitioner filed a timely petition for review with this court. III. Analysis Because the BIA affirmed the IJ’s decision without opinion, “we review the IJ’s decision, which constitutes the final agency determination.” Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005). We “review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence.” Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). On this record, the IJ’s conclusion that petitioner is ineligible for cancellation of removal because he received administrative voluntary departure is not supported by substantial evidence. We have held that an alien who departs the United States pursuant to the formal process known as" }, { "docid": "22202319", "title": "", "text": "aliens lucky enough to have a border official turn them around without placing them in the expedited removal process. We can respond to such anticipated criticism only by noting that a line must be drawn somewhere. It is within Congress’s discretion to draw the line between denials of reentry that are memorialized and executed pursuant to an expedited removal order and those that are not. And that is what we conclude Congress has done. Accordingly, we hold that an expedited removal order interrupts an alien’s continuous physical presence in this country for purposes of cancellation of removal relief. PETITION DENIED. . We \"may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for [cancellation of removal] relief.” Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). . The term \"cancellation of removal” has replaced the term \"suspension of deportation.” See Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir.2004). . See Tapia, 430 F.3d at 1000-01 (reviewing history of continuous physical presence requirement). Other requirements also apply. See 8 U.S.C. § 1229b(b)(l). However, they are not relevant in this case. . 8 U.S.C. § 1229b(d)(1); Ibarra-Flores v. Gonzales, 439 F.3d 614, 617 & n. 1 (9th Cir.2006) (describing history of provision). . See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.2003) (per curiam). . Tapia, 430 F.3d at 1000-01; 8 U.S.C. § 1229b(d)(2) . Tapia, 430 F.3d at 998, 1003. . Id. . Id. at 1003-04 (holding that the existence of computer records listing \"information about the rejections” at the border and containing the alien’s fingerprints and photograph did not suffice to interrupt an alien’s continuous physical presence). . 8 U.S.C. § 1182(a)(9)(A) (providing a five-year bar to readmission for aliens removed after both expedited and formal proceedings). . See Vasquez-Lopez, 343 F.3d at 972; Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(B). . See Tapia, 430 F.3d at 1002; see also Vasquez-Lopez, 343 F.3d at 972 (noting that the BIA properly held that, much like formal removals, voluntary departures ‘'sever[] the alien's" }, { "docid": "20471036", "title": "", "text": "1252(a)(2)(D); see also Cabrerch-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005). Zetino’s due process challenge is, of course, governed by a meaningful standard. See infra at Section III(A)(ii). Furthermore, several published and unpublished opinions have found jurisdiction over the BIA’s rejection of an untimely brief on due process grounds. See, e.g., Singh v. Ashcroft, 362 F.3d 1164, 1167 (9th Cir.2004) (finding jurisdiction and holding that the BIA’s rejection of a late brief violated petitioner’s due process rights); Garcia Cantor v. Gonzales, 131 FedAppx. 601, 602 (9th Cir.2005) (“We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s denial of the Petitioners’ motion to file a late brief.”); Reyes Lopez v. Gonzales, 143 Fed.Appx. 831, 831-32 (9th Cir. 2005) (“Reyes Lopez’s contention that the BIA violated his due process rights by denying his motion to accept a late brief fails because the BIA has discretion whether to grant motions for extensions of time or to accept late filings.”). Accordingly, we have jurisdiction to review the BIA’s denial of a motion to accept an untimely brief for a violation of due process. ii Turning to the merits of Zetino’s challenge to the BIA’s rejection of his untimely brief, we find that his due process rights were not violated. “The Fifth Amendment guarantees due process in deportation proceedings.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). An alien “must receive a ‘full and fair hearing,’ in order to meet the requirements of due process.” Id. A petition for review will only be granted on due process grounds if “(1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his ease, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir.2006). First, Zetino’s proceedings were not so fundamentally unfair that he was prevented from reasonably presenting his case. An alien has been provided with due process when he or she is given an opportunity “to be represented by counsel, prepare an application for" }, { "docid": "22589466", "title": "", "text": "country for more than 90 days before IIRIRA’s passage, we conclude that we are required to apply the rule to all such petitioners, whether their cases are governed by the transitional rules or IIRIRA’s permanent provisions. Petition DENIED. . The 90/180-day rule provides that ''[a]n alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). All statutory citations herein after are to 8 U.S.C. unless otherwise indicated. . On March 1, 2003, the INS was abolished as an agency within the Department of Justice and its functions were transferred to the newly created Department of Homeland Security. . Under IIRIRA, an alien’s accrual of physical presence time ends when removal proceedings are commenced against the alien through service of a notice to appear before an IJ. § 1229b(d)(l). The INS initially served Garcia-Ramirez with a notice to appear on April 10, 1997. However, this notice failed to specify the date or location of Garcia-Ramirez’s immigration hearing. Garcia-Ramirez was not served with a proper hearing notice until October 7, 1998. Under § 1229(a), service of this second notice to appear ended Garcia-Ramirez's accrual of physical presence. . The ''stop-time” rule provides that “any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who-applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under § 1229(a) of this title, or (B) when the alien has committed [certain criminal offenses], whichever is earliest.” § 1229b(d)(l). FISHER, Circuit Judge, with whom D.W. NELSON, Senior Circuit Judge, joins, concurring: Although we hold that Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), compels us to affirm application of the 90/180-day rule to Garcia-Ramirez, we do so reluctantly because we remain unconvinced that Ram v. INS," }, { "docid": "22589461", "title": "", "text": "and 90/180-day rules apply retroactively. Although the transitional rules do not directly govern Garcia-Ramirez’s case, it would be incongruous to hold that Congress intended to apply the 90/180-day rule to petitioners governed by those rules, but not to Garcia-Ramirez. When Congress enacted IIRIRA, it included in the statute a set of “transitional rules” specifying that particular provisions of the permanent statute should apply to petitioners against whom the INS had already initiated proceedings before the statute’s effective date. See IIRIRA § 309(c). These transitional rules expressly provide that two of IIRIRA’s provisions relating to continuous presence — the stop-time rule and the 90/180-day rule — “shall apply to orders to show cause ... issued before, on, or after the date of the enactment of this Act.” IIRIRA § 309(c)(5)(A) (emphasis added). We first addressed this “before, on, or after” language in Ram v. INS, 243 F.3d 510 (9th Cir.2001). Ram argued that the stop-time rule — which specifies that an alien’s period of continuous physical presence ends when deportation proceedings begin — could not be applied to his petition because the INS had initiated proceedings against him before IIRIRA took effect and application of the rule to him would have an impermissible retroactive effect. We disagreed. We found unambiguous the statute’s instruction that the stop-time rule be applied to petitioners who fall under the transitional rules whose orders to show cause were “issued before, on, or after the date of enactment [of IIRIRA],” and also relied on IIRIRA’s legislative history, which suggested that Congress intended the transitional rules to apply the stop-time rule retroactively. See Ram, 243 F.3d at 515-18 (quoting IIRIRA § 309(c)(5)(A)). We later followed Ram in Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), to hold that § 309(c)(5)(A) requires retroactive application of the 90/180-day rule as well. The Mendiolas, whose case was governed by the transitional rules, argued that a five-month trip they took in 1993 should not bar their eligibility for suspension of deportation because the pre-IIRIRA “brief, casual, and innocent” standard rather than IIRIRA’s 90/180-day rule should apply to their petition. We rejected their" }, { "docid": "22698200", "title": "", "text": "in both situations the alien made a choice to depart the country in lieu of removal proceedings. As a result, the IJ held that Tapia did not satisfy the ten-year requirement and was not eligible for cancellation of removal. The IJ denied Tapia’s petition and granted him voluntary departure in lieu of removal. The BIA affirmed the IJ’s decision without opinion. II. JURISDICTION While 8 U.S.C. § 1252(a)(2)(B) precludes a court’s direct review of the Attorney General’s discretionary decisions, the court may consider the predicate legal question of whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for relief. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). The determination of whether an alien has satisfied the continuous physical presence requirement is a factual inquiry guided by legal standards. The decision is non-discretionary, so we retain appellate jurisdiction over the issue. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). III. DISCUSSION Where the BIA affirms an IJ’s order without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). We review the IJ’s determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). The only two circuits that have compared the effects of an administrative voluntary departure and a turnaround at the border on the continuity of an alien’s physical presence have concluded that the two means of departure are substantively and procedurally distinguishable and that only the former interrupts the continuity of an alien’s physical presence. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir.2005) (holding that an alien who had been present in the United States since 1984 and returned to Mexico for two weeks in 1990 to attend to his ailing grandfather did not break the continuity of his presence by simply being turned around at the border upon his attempted reentry); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir.2004) (holding that an alien who had been present in the United States since 1986 and went to" }, { "docid": "22387099", "title": "", "text": "See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction to review whether an alien has met the “ten years of continuous physical presence requirement because this is an objective, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) (internal quotation marks omitted). We must accord Chevron deference to the BIA’s statutory interpretations of the Immigration and Naturalization Act (“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review for substantial evidence the agency’s decision concerning an applicant’s establishment of ten years of continuous physical presence in the United States. See Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir.2004), amended by 381 F.3d 847 (9th Cir.2004). Here, because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision constitutes the final agency action for purposes of our review. See 8 C.F.R. § 1003.1(e)(4) (ii); see also Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). In reviewing for substantial evidence, we follow this rule: “To obtain reversal under this standard, the petitioner must demonstrate that the evidence not only supports that conclusion, but compels it.” Lopez-Alvarado, 371 F.3d at 1115 (internal quotation and citation omitted). III In order to be eligible for cancellation of removal, an applicant must first have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.... ” 8 U.S.C. § 1229b(b)(l)(A). Service with an NTA halts an alien’s accrual of continuous physical presence. 8 U.S.C. §§ 1229b(d)(l). Because Serrano was served with the present NTA in August of 1997, he would need to establish continuous physical presence in the United States since August of 1987 to meet the requirements of section 1229b(b)(l)(A). If Serrano’s brief trip to Mexico in the intervening period interrupted his accrual of presence, then Serrano is statutorily ineligible for cancellation of removal. A regulatory section governing the interruption of continuous physical presence provides that “a period" }, { "docid": "22698195", "title": "", "text": "CLIFTON, Circuit Judge: Jose de Jesus Tapia petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming without opinion the decision by an immigration judge (“IJ”) denying his petition for cancellation of removal. To be eligible for cancellation of removal, a form of relief which permits an alien otherwise subject to being expelled from the United States to remain in this country, the alien must prove, among other things, that he or she has been physically present in the United States for a continuous period of at least ten years. A short departure from the United States, such as a brief return to the alien’s native country for family reasons, does not necessarily interrupt the accrual of an alien’s period of physical presence in the United States, pursuant to an exception for brief absences provided in 8 U.S.C. § 1229b(d)(2). An alien who has briefly departed the United States for such a reason can still satisfy the ten-year presence prerequisite to qualify for cancellation of removal by including the time spent here before the brief absence. Some absences do interrupt an alien’s continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien’s continuous physical presence. But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for" }, { "docid": "22589467", "title": "", "text": "initially served Garcia-Ramirez with a notice to appear on April 10, 1997. However, this notice failed to specify the date or location of Garcia-Ramirez’s immigration hearing. Garcia-Ramirez was not served with a proper hearing notice until October 7, 1998. Under § 1229(a), service of this second notice to appear ended Garcia-Ramirez's accrual of physical presence. . The ''stop-time” rule provides that “any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who-applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under § 1229(a) of this title, or (B) when the alien has committed [certain criminal offenses], whichever is earliest.” § 1229b(d)(l). FISHER, Circuit Judge, with whom D.W. NELSON, Senior Circuit Judge, joins, concurring: Although we hold that Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), compels us to affirm application of the 90/180-day rule to Garcia-Ramirez, we do so reluctantly because we remain unconvinced that Ram v. INS, 243 F.3d 510 (9th Cir.2001), required the result reached in Mendiola-Sanchez, and because we believe that Gareia-Ramirez would have prevailed under the second step of the retro-activity test articulated in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Mendiolctr-Sanchez panel articulated its own regret in holding that the 90/180-day rule must apply retroactively to the Mendiolas: Although we deny the petition for review because that is the proper conclu sion under the relevant statutes, we pause in recognition of the injustice of this result.... The only reason the Mendiolas are ineligible for suspension of deportation is that they stayed too long in Mexico to help Mr. Mendiola-Sanchez’s elderly parents recover from unexpected injuries. Mendiola-Sanchez, 381 F.3d at 941. Nonetheless, the panel concluded that the “core of the reasoning in Ram applie[d] to the 90/180 day rule” and that it was “very unlikely that Congress intended to apply only the stop-time rule retroactively, and not the 90/180 day rule.” Id. at 940^41. Accordingly, the panel held that Ram" }, { "docid": "22880656", "title": "", "text": "to show cause” (“OSCs”). See IIRIRA § 309(c)(5), Pub.L. No. 104-208, 110 Stat. 3009 (1996). But this reference made no sense because NTAs were used to initiate proceedings under the newly enacted IIRIRA, whereas the transitional rule was designed to deal with proceedings initiated under the prior statute. Ram v. INS, 243 F.3d 510, 515 (9th Cir.2001). Proceedings under the pri- or statute were initiated by OSCs. The original text of § 309(c)(5) was amended soon thereafter by Section 203(f) of the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”), which replaced “notices to appear” with “orders to show cause.” NACARA § 203(f), Pub.L. No. 105-100, 111 Stat. 2160 (1997). We have interpreted the transitional stop-time rule in two cases. First, in Ram, we held that, in proceedings covered by the transitional rule, part A of § 1229b(d)(l) applies retroactively. 243 F.3d at 518. Second, in Mendiola-San-chez v. Ashcroft, 381 F.3d 937, 941 (9th Cir.2004), we held that, in proceedings covered by the transitional rule, the 90/180— day rule of § 1229b(d)(2) applies retroactively. See § 1229b(d)(2) (“An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.”). We have never decided whether, in proceedings covered by the transitional rule, part B of the § 1229b(d)(l) applies retroactively. That question is not directly presented by this case, for Sinotes-Cruz is covered by the permanent stop-time rule of § 1229b(d)(l) rather than by the transitional rule. But the question is indirectly relevant to our decision here because in Garcia-Ramirez v. Gonzales, 423 F.3d 935, 939-41 (9th Cir.2005) (per curiam), we applied our interpretation of the transitional rule in Mendiola-Sanchez to the permanent rule under § 1229b(d)(2). We wrote that “[although the transitional rules do not directly govern Garcia-Ramirez’s case, it would be incongruous to hold that Congress intended to apply the 90/180-day rule to petitioners governed by those rules, but not" }, { "docid": "22880655", "title": "", "text": "121 S.Ct. 2271. For example, IIRIRA § 321(b), 8 U.S.C. § 1101(a)(43), states that IIRIRA’s new definition of “aggravated felony” applies to “conviction[s] ... entered before, on, or after” the enactment of IIRIRA. Id. at 319-20, 121 S.Ct. 2271. By contrast, the text of § 1229b(d)(l) (including part B) says nothing whatsoever about retroactive application. Basing our analysis solely on the text of § 1229b(d)(l), we would have no trouble concluding that it is ambiguous with respect to its retroactive application. We note, however, that IIRIRA § 309(c)(5), the transitional stop-time rule analogous to the permanent stop-time rule of § 1229b(d)(l), is explicit with respect to retroactivity. In relevant part, it provides: [Paragraphs (1) and (2) of 240A(d) of the Immigration and Nationality Act [18 U.S.C. § 1229b(d)(l) and (2) ] (relating to continuous residence or physical presence) shall apply to orders to show cause ... issued before, on, or after the date of the enactment of this Act. As originally adopted, this transitional rule referred to “notices to appear” (“NTAs”) rather than to “orders to show cause” (“OSCs”). See IIRIRA § 309(c)(5), Pub.L. No. 104-208, 110 Stat. 3009 (1996). But this reference made no sense because NTAs were used to initiate proceedings under the newly enacted IIRIRA, whereas the transitional rule was designed to deal with proceedings initiated under the prior statute. Ram v. INS, 243 F.3d 510, 515 (9th Cir.2001). Proceedings under the pri- or statute were initiated by OSCs. The original text of § 309(c)(5) was amended soon thereafter by Section 203(f) of the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”), which replaced “notices to appear” with “orders to show cause.” NACARA § 203(f), Pub.L. No. 105-100, 111 Stat. 2160 (1997). We have interpreted the transitional stop-time rule in two cases. First, in Ram, we held that, in proceedings covered by the transitional rule, part A of § 1229b(d)(l) applies retroactively. 243 F.3d at 518. Second, in Mendiola-San-chez v. Ashcroft, 381 F.3d 937, 941 (9th Cir.2004), we held that, in proceedings covered by the transitional rule, the 90/180— day rule of § 1229b(d)(2) applies" }, { "docid": "22743202", "title": "", "text": "PER CURIAM: Daniel Sandoval-Luna petitions for review of his removal proceedings. He contends that the Immigration Judge’s denial of a continuance constitutes an abuse of discretion and violation of due process, and that the qualifying relative requirement for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(D), violates his equal protection rights. The government asserts we have no jurisdiction over Sandoval-Luna’s petition. We hold that we have jurisdiction, and we deny the petition for review. BACKGROUND The former Immigration and Naturalization Service charged Daniel Sandoval-Luna with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). On December 18, 2002, Sandoval-Luna appeared with counsel before an Immigration Judge (“IJ”) and conceded his removability. The IJ granted a six-month continuance so counsel could attempt to establish that Sandoval-Luna was eligible for cancellation of removal. On June 18, 2003, Sandoval-Luna appeared for the second time before the IJ. He admitted that he was not eligible for cancellation of removal because he lacked a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). Sandoval-Luna’s counsel asked for another continuance to allow time for the release of new regulations under the Child Status Protection Act (“CSPA”), hoping to assert that Sandoval-Luna was eligible for adjustment of status as a derivative beneficiary of his father’s labor certification application. The CSPA regulations had not been released at the time of the hearing, and the labor certification application had not been processed. The IJ denied the request for a further continuance. After the denial, the IJ entered an oral decision in which he pretermitted Sandoval-Luna’s application for cancellation of removal and granted sixty days for voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion. This petition for review followed. STANDARD OF REVIEW When the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review questions concerning our jurisdiction de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir.2007) (citing An dersen v. United" }, { "docid": "22589456", "title": "", "text": "Naturalization, 831 F.2d 906, 908 (9th Cir.1987). Garcia-Ramirez’s claim is properly viewed as an assertion that application of the 90/180-day rule of § 1229b(d)(2) to her violates due process because of impermissible retroactivity. See INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing that Congress has the power to enact retroactive legislation, but confirming that there are constitutional limits on retroactivity). Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims. See Bagues-Valles, 779 F.2d at 484. Accordingly, we have jurisdiction to review Garcia-Ramirez’s retroactivity claim even though it was not raised before the BIA. B. Retroactivity We turn to the merits of Garcia-Ramirez’s claim that the IJ should not have applied the 90/180-day rule of § 1229b(d)(2) to find that her five-month absence in 1989 terminated continuous physical presence. Section 1229b(d)(2) provides a bright-line rule that an alien “shall be considered to have failed to maintain continuous physical presence in the United States” if the alien “has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” Garcia-Ramirez does not contest that if § 1229b(d)(2) applies retroactively, her five-month absence in 1989 would violate the 90/180-day rule. From 1986 until IIRIRA’s effective date in April 1997, however, the relevant statute provided that a departure from the United States did not break continuous presence if it was “brief, casual, and innocent and did not meaningfully interrupt the [alien’s] continuous physical presence” in the United States. § 1254(b)(2) (1995). “The evident statutory purpose [of this standard was] to recognize that a person who lives for [the requisite number of years] in the United States does not destroy [her] eligibility by actions that do not affect [her] commitment to living in this country.” Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir.1995). Under this pre-IIRIRA rule, “[f]or purposes of evaluating whether an absence is brief, single absences in excess of 90 days ... will be" }, { "docid": "22872416", "title": "", "text": "on September 6,1996, the respondent had no reasonable expectation that he would be granted suspension of deportation if his application for asylum was denied.” After the BIA issued its decision, Lopez-Urenda filed this timely petition for review. New attorneys represent him on appeal. STANDARD OF REVIEW We review de novo the legal determinations of the BIA. See Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.2001) (en banc). Similarly, we review claims of due process violations in immigration proceedings de novo. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). Our review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). DISCUSSION ' “Prior to IIRIRA, immigration law provided for two types of removal proceedings: deportation (for aliens within the United States) and exclusion (for aliens outside the United States).” Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). Before IIRIRA’s effective date — April 1, 1997 — an alien placed in deportation proceedings could apply for suspension of deportation, which “allowed an immigration judge to grant discretionary relief from deportation to any alien in deportation proceedings who could show seven years continuous presence, good moral character, and hardship to herself or a citizen family member.” Ramirez-Zavala v. Ashcroft, 336 F.3d 872, 874 (9th Cir.2003); 8 U.S.C. § 1254 (repealed 1997). IIRIRA replaced “deportation” with “re- movaP’and “suspension of deportation” with “cancellation of removal.” See 8 U.S.C. § 1229b(b). “[A]ny alien placed in removal proceedings faces generally higher standards to qualify for cancellation of removal that include a longer physical presence requirement, a more stringent standard of hardship, and omission of consideration of hardship to the aliens themselves.” Ramirez-Zavala, 336 F.3d 872, 2003 WL 21544177, at *1. IIRIRA contains transitional rules for cases begun by the INS before April 1, 1997 but not completed by that date; these rules generally provide that IIRIRA’s changes do not apply. Cases begun by the INS after April 1, 1997, however, are governed by IIRI-RA’s permanent rules. See Vasquez-Zavala, 324 F.3d at 1107. In INS v. St." }, { "docid": "8545370", "title": "", "text": "1252(a)(2), as amended by the REAL ID Act in May 2005. Subsection (B) of section 1252(a)(2) provides that “notwithstanding any other provision of law ... no court shall have jurisdiction to review (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title” (emphasis added). Both the Board’s initial order, and its order declining to reopen the case, are “judgment[s] regarding the granting of relief under section ... 1229b.” However, subsection (D) of section 1252(a)(2), also added by the REAL ID Act and thus postdating the cases on which the government relies, provides that “nothing in subparagraph (B) ..., or 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” (emphasis added). Even before the enactment of subsection (D), we had held in Morales-Morales v. Ashcroft, 384 F.3d 418, 421-23 (7th Cir.2004), that the interpretation by an immigration judge of the statutory phrase “continuous physical presence” was judicially reviewable, and Cuellar Lopez v. Gonzales, 427 F.3d 492, 493-94 (7th Cir.2005), reaffirmed this holding after the enactment of subsection (D). Neither case, however, involved review of the application of the “continuous physical presence” standard to the facts of the case. Noting that subsection (B) of 8 U.S.C. § 1252(a)(2) is captioned “discretionary denials of relief,” several courts have held that despite its uncompromising language it does not bar judicial review of rulings that are not discretionary in character. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006); Santana-Albarran v. Ashcroft, 393 F.3d 699, 705 (6th Cir.2005); cf. Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir.2003); Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004). The Second Circuit disagrees, noting that subsection (D) explicitly confines judicial review to constitutional questions and “questions of law.” Bugayong v. INS, 442 F.3d 67, 73 (2d Cir.2006) (per curiam); Chen v. U.S. Dep’t. of Justice, 434 F.3d 144, 151-55" }, { "docid": "22652015", "title": "", "text": "Nationality Act (“INA”), 8 U.S.C. § 1251(a)(1)(B) (1994). At Petitioners’ deportation hearing, the Immigration Judge (“IJ”) found them de-portable, denied their petitions for asylum and withholding of deportation, and granted voluntary departure. Petitioners appealed first to the BIA, which affirmed the IJ, and then to this court. We denied their petition on January 12, 1995. Ram v. INS, 46 F.3d 1144 (9th Cir.1995) (unpublished disposition). On November 16, 1994, while their petition to this court was pending, Petitioners moved to reopen their deportation proceedings to apply for suspension of deportation. Petitioners argued that suspension was appropriate because, while they were in deportation proceedings, they attained the seven years of continuous physical presence necessary to qualify for such relief. The BIA denied Petitioners’ motion. On appeal, we reversed and remanded to the BIA for further review of hardship. Ram v. INS, 107 F.3d 17 (9th Cir.1997) (unpublished disposition). On remand, the BIA summarily denied Petitioners’ motion on the sole ground that they had not satisfied IIRIRA’s new stop-time rule. That rule requires aliens to meet the continuous physical presence requirement before their deportation proceedings commence. INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [hereinafter “INA section 240A(d)(1)” or “the stop-time rule”]. Petitioners now petition for review of the BIA final order, contending that: (1) the stop-time rule does not apply to OSCs where an alien seeks suspension of deportation; (2) the application of the stop-time rule to Petitioners violates due process because it is impermissibly retroactive; (3) IIRIRA section 309(c)(5) violates equal protection because it exempts some aliens from the stop-time rule on the basis of their national origin; and (4) in calculating Petitioners’ period of continuous physical presence, the BIA should have considered time accumulated after service of the OSCs. Because this petition falls under IIRI-RA’s transitional rules, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA section 309(c). Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). STATUTORY BACKGROUND Three sets of rules concern us here: (1) the old INA rules, which governed before IIRIRA’s" } ]

[ { "docid": "19773247", "title": "", "text": "alleged falsity of the ticket, however, addresses causation, and accordingly is discussed below. Second, MDOC argues that Thomas’s subsequent conduct—filing a grievance against Eby and then filing this lawsuit—demonstrates that issuing a major-misconduct, ticket did not deter him from exercising his constitutional rights. This argument is flawed in at least two ways. First, the issue is whether a person of ordinary firmness would be deterred, not whether Thomas himself actually was deterred. Second, if subsequently challenging prison officials ipso facto demonstrated that the challenged action was not sufficiently adverse to undermine constitutional rights, no case alleging retaliation for exercising First Amendment rights could ever be brought. Thus, we totally reject the argument that the later filing of complaints or grievances against challenged action demonstrates that the challenged action was not sufficiently adverse to constitute adverse action. 3. Causation The parties’ primary dispute centers on causation. Because the question is whether the adverse action was taken (at least in part) because of the protected conduct, the causation inquiry centers on the defendant’s motive. See Thaddeus-X, 175 F.3d at 399; Leonard v. Robinson, 477 F.3d 347, 361-62 (6th Cir.2007). According to MDOC, Thomas cannot show causation without first demonstrating that the misconduct charge was ultimately resolved in his favor, which he cannot do because he was convicted and the conviction was affirmed in the prison’s review process. In other words, MDOC argues that because the administrative process concluded that Eby’s allegations were not false, Thomas cannot show a retaliatory motive. In essence, MDOC’s argument imports the favorable-termination requirement of Heck into cases where the habeas exception to § 1983 does not apply. On summary judgment, we analyze the causation element of a retaliation claim under the burden-shifting framework announced in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Thaddeus-X, 175 F.3d at 399. After a plaintiff shows that his protected conduct was a motivating factor in the defendant’s action, the defendant may thwart the retaliation claim by showing that it would have taken the same action even without the protected" } ]

[ { "docid": "4090682", "title": "", "text": "he experienced the sort of temporary \"reassignment that involves only minor changes in working conditions [which] normally does not constitute an adverse employment action.” Marrero, 304 F.3d at 23. . Other courts confronting roughly similar circumstances have come to the same conclusion. Thomas v. Potter, 202 Fed.Appx. 118, 119 (7th Cir.2006) (unpublished decisionXplaintiff's assertion that shift change was undesirable or inconvenient did not rise to the level of a materially adverse employment action under Burlington where the plaintiff did not assert and record did not contain evidence that the plaintiff had \"a unique vulnerability that the Postal Service knew about and sought to exploit by changing his shift schedule”); Smith v. Potter, 629 F.Supp.2d 644, 652 (S.D.Miss.2009)(retaliation claim alleging that USPS “attempted to force [plaintiff] to return to working a schedule with off days of Friday and Saturday,” which plaintiff had worked for preceding six years, did not constitute an adverse employment action under Burlington Northern even though plaintiff may have preferred Saturdays and Sundays off); Arredondo v. Flores, Civil Action No. L-05-191, 2008 U.S. Dist. LEXIS 77675, 2008 WL 4450311, *6 (S.D.Tex. Sept.30, 2008) (\"Even if the Burlington standard applies, a change in schedule, shift, and days off, in this setting, is insufficient to establish an adverse employment action\"). . Even considering these incidents cumulatively, we still conclude that Morales has failed to establish that he suffered any adverse employment action within the meaning of Title VII’s antiretaliation provision. See Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 485 (5th Cir.2008) (negative treatment, undesired transfer to another department, undesirable break schedule, and assignment of more arduous and dirty jobs are not adverse employment actions in the retaliation context)." }, { "docid": "2379847", "title": "", "text": "no rational jury could have found for the plaintiff. Tate, 546 F.3d at 532. At trial, Chapin presented two alternatives to the jury as to how Fort-Rohr retaliated against him for filing his EEOC complaint — that Fort-Rohr either actually or constructively terminated his employment. The jury was instructed that Chapin could succeed on his claim only if he proved by a preponderance of the evidence that FortARohr “either directly or constructively discharged him for filing a charge of discrimination.” Fort-Rohr argues that it was entitled to judgment as a matter of law because Chapin did not establish that ForARohr actually or constructively discharged Chapin in retaliation for making his EEOC complaint of discrimination. Title VII prohibits an employer from taking an adverse employment action against an employee simply because he has filed an unfair employment charge. 42 U.S.C. § 2000e-3(a); Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The antiretaliation provision prohibits employers from taking actions that would be likely to deter victims of discrimination from complaining to the EEOC. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009). Under the direct method of proof, to establish a prima facie case of retaliation, the plaintiff was must show that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal link between the two. Id. While Chapin proceeds under the direct method of proof, a materially adverse action is required in the indirect method of proof as well. Id. A. Chapin Was Not Actually Terminated The parties agree that Chapin engaged in a protected activity because he filed a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-3(a). The primary issue in this appeal is whether any adverse employment action was taken against Chapin because of his complaint. “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington Northern, 548 U.S. at 67, 126 S.Ct. 2405. To determine if an action is “materially adverse,”" }, { "docid": "5202129", "title": "", "text": "and Aylward. 2. Whether Plaintiff Kelly Seale Has Plausibly Alleged a Claim for Discrimination or Disparate Treatment Under Title VII, NYSHRL and the Equal Protection Clause After carefully considering the matter, the Court answers this question in the negative generally for the reasons stated by Defendants in their memorandum of law. (Dkt. No. 11-1, at 10-11.) The Court would only add the following brief analysis. Defendants argue that Ms. Seale has failed to allege facts plausibly suggesting that she suffered an adverse employment action for purposes of her discrimination and disparate treatment causes of action. Defendants are correct. Ms. Seale alleges that her vehicle change and her change in office location, which necessarily limited her previously flexible schedule, were materially adverse. In support, Ms. Seale cites case law that is either legally or factually inapposite, referencing the “adverse action” standard for a retaliation claim, or dealing with a plaintiff whose employment was terminated. See White, 548 U.S. at 69, 126 S.Ct. 2405 (noting that a change in work schedule may be immaterial to many workers but matter enormously to a young mother with school-age children, in the context of a retaliation claim where the standard for adverse action is an action that would deter victims of discrimination from complaining to the EEOC, the courts, and their employers); Hicks, 593 F.3d at 169 (listing punitive scheduling as one of a laundry list of adverse actions on a retaliation claim); Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir.2000) (ADEA discrimination claim where plaintiff was discharged). The scope of what constitutes an adverse employment action is more limited on a discrimination claim than it is on a claim for retaliation. A change in an employee’s schedule, without more, is not an adverse employment action in the context of a discrimination claim. See Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 619 (S.D.N.Y.2009) (citing Ludwig v. Rochester Psychiatric Ctr., 550 F.Supp.2d 394, 399 (W.D.N.Y.2008) (finding no adverse employment action where there were minor changes to plaintiffs work schedule and weekends off); Antonmarchi v. Consol. Edison Co., No. 03-CV-7735, 2008 WL 4444609," }, { "docid": "4839897", "title": "", "text": "adamant: \"We refer to reactions of a reasonable employee because we believe that the provisions’s standard for judgment harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id. at 68-69, 126 S.Ct. 2405 (emphasis in original). Other courts have accepted this \"subjective response” argument. See Sykes v. Pennsylvania State Police, No. 05-1349, 2007 WL 141064 at *6 (W.D.Pa. Jan. 17, 2007) (\"The court does not detail the specific instances of retaliation described by Sykes since it is clear that they are not actionable under the standard set out in Burlington. These actions, whether characterized as major or minor, did not deter Sykes’s pursuit of new and expanded allegations of discrimination, either internally or administratively.”), aff'd 311 Fed.Appx. 526 (3rd Cir. Apr. 04, 2008). While Mr. Boandl’s continued and persistent pursuit of his EEO claims following the referral makes the \"subjective response” argument an attractive one, I will not rely on it here because it appears to conflict with the Supreme Court’s ruling in Burlington Northern and because other evidence makes clear that the TIGTA referral was not an adverse employment action. . Although Mr. Boandl applied for these positions separately, the application process for each position was the same and the standards and procedures used by the defendant to determine which applicants for the positions were “best qualified” were also the same. Therefore, I will consider the claims coextensively where possible. . In Simpson, the court concluded that the plaintiff's reliance on Bray, supra, was misplaced because \"in Bray, we found that vari ous discrepancies in how the employer evaluated the criteria purportedly relied on to promote a white person over the black plaintiff, was sufficient to raise questions of fact as to the employer's motives. Bray, however, is clearly distinguishable. In Bray the discrepancies were in the use of criteria identified as determinative by the employer, see id., whereas in this case [the plaintiff] is pointing to discrepancies between a criterion identified by [the defendant] (sales quotas) and" }, { "docid": "18130454", "title": "", "text": "224, 230 (S.D.N.Y.2007) (“Plaintiff cites no case law, and this Court is aware of none, which supports the proposition that we are to consider the cumulative effect of individually alleged adverse employment actions when evaluating an intentional discrimination claim, as plaintiff alleges here.”); Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 356 (S.D.N.Y.2006) (“Although ... Title VII hostile work environment claims and retaliation claims involve different findings regarding adverse employment actions, the Plaintiff cites no law, and the Court is aware of none, that supports the proposition that the Court can consider the cumulative effect of non-adverse employment actions when evaluating an intentional discrimination claim.”); see Setelius v. Nat’l Grid Elec. Servs. LLC, No. 11-CV-5528 (MKB), 2014 WL 4773975, at *7 (E.D.N.Y. Sept. 24, 2014) (collecting cases). Others have adopted this approach, allowing plaintiffs to show that they suffered from an “atmosphere” of adverse employment actions, by which “a combination of seemingly minor incidents” constitute an adverse employment action “once they reach a critical mass.” Rooney v. Brown Group Retail, Inc., No. 08 CV 484(DRH)(AKT), 2011 WL 1303361, at *16 (E.D.N.Y.2011) (quoting Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002) (applying an “atmosphere” of adverse acts analysis in the Title VII context)). This requires showing that “(1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.” Phillips, 278 F.3d at 109. In an unpublished summary order, the Second Circuit has suggested that such an argument is cognizable under Title VII. See Cunningham v. N.Y.S. Dep’t of Labor, 326 Fed.Appx. 617, 619 (2d Cir.2009) (addressing a “litany of actions” including “unfounded charges of time abuse,” reassignment of offices, discontinuing a training conference organized by plaintiff, and excluding plaintiff from a conference and a hiring decision that, “according to plaintiff, constitute adverse employment action when ‘considered in their totality,’ ” and finding that “plaintiffs allegations are — ■ each and together — nothing more than everyday workplace grievances” and not an adverse employment action for purposes of employment discrimination claim) (citing" }, { "docid": "985324", "title": "", "text": "not litigated before the EEOC, defendant agency was indisputably put on notice of plaintiffs allegations.”); Laughlin v. Holder, 923 F.Supp.2d 204, 213 (D.D.C. 2013) (“Laughlin raised the issue of her 2008 bonus denial early in the administrative process, and just one week after she found out about it, thus giving the agency ample notice and a fair opportunity to resolve her claim.”). B. Plaintiff Has Plausibly Alleged a Materially Adverse Action and a Retaliatory Hostile Work Environment Defendant contends that Plaintiff has failed to state a Title VII retaliation claim because she has not plausibly alleged that she sustained a materially adverse action at the hands of her employer. “[T]o sustain a retaliation claim, the employee need only demonstrate that the employer’s challenged action would have been material to a reasonable employee, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ....” Coleman, 867 F.3d at 215, 2017 WL 3480705 at *10 (internal quotation marks and alterations omitted). However, to “be materially adverse, the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). “Typically, a materially adverse action in the workplace involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Id. (internal quotation marks omitted). A reduction in responsibilities can constitute a materially adverse action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (finding adverse employment action where' plaintiffs “duties dramatically declined in both quantity, and quality”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007) (reassignment “with significantly diminished responsibilities\" constituted an adverse action); Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[Withdrawing an employee’s supervisory duties constitutes an adverse employment action!.]”); Saunders v. Mills, 842 F.Supp.2d" }, { "docid": "4839896", "title": "", "text": "as an adverse employment action was due to the fact that \"[t]he Fifth Circuit has construed the 'adverse employment action’ element of a retaliation claim in a 'stricter sense' than other circuits, holding that only an employer’s ‘ultimate employment decision’ can provide the basis for a Title VII retaliation claim.” No. H-04-0244, 2006 WL 696652 at *6 (S.D.Tx. Mar. 20, 2006). . The defendant further argues that the TIG-TA referral cannot constitute an adverse employment action because \"the record shows that the referral and resulting investigation and report did not deter [Mr. Boandl’s] EEO activity.” Mem. In Support, 45. The defendant cites Mr. Boandl’s filing of his second EEO complaint days after the TIGTA referral, and filing of a third EEO complaint based on the TIGTA referral. Id. The standard articulated by the Supreme Court in Burlington Northern is whether \"a reasonable employee would have found the challenged action materially adverse,” not whether the plaintiff found the challenged action materially adverse. Burlington Northern, 548 U.S. at 67-68, 126 S.Ct. 2405 (emphasis added). The Court was adamant: \"We refer to reactions of a reasonable employee because we believe that the provisions’s standard for judgment harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id. at 68-69, 126 S.Ct. 2405 (emphasis in original). Other courts have accepted this \"subjective response” argument. See Sykes v. Pennsylvania State Police, No. 05-1349, 2007 WL 141064 at *6 (W.D.Pa. Jan. 17, 2007) (\"The court does not detail the specific instances of retaliation described by Sykes since it is clear that they are not actionable under the standard set out in Burlington. These actions, whether characterized as major or minor, did not deter Sykes’s pursuit of new and expanded allegations of discrimination, either internally or administratively.”), aff'd 311 Fed.Appx. 526 (3rd Cir. Apr. 04, 2008). While Mr. Boandl’s continued and persistent pursuit of his EEO claims following the referral makes the \"subjective response” argument an attractive one, I will not rely on it here because it" }, { "docid": "5188476", "title": "", "text": "Booth suffered an adverse employment action. 1. Adverse Employment Action Legal Standard In order to make a prima facie case of retaliation under Title VII, a plaintiff must show that she has “suffered an adverse employment action such that a reasonable employee would have found the challenged action materially adverse” which “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington Northern & Santa Fe Railway Co., 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In Crawford, the 11th Circuit explicitly noted that this new Burlington “adverse employment action” standard for retaliation cases was significantly more liberal than the standard previously applied in this Circuit. Indeed, it stated that Burlington “strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered ‘materially adverse’ to him and thus constitute adverse employment actions.” Crawford v. Carroll, 529 F.3d 961, 974, n. 13 (11th Cir.2008). Moreover, “while some adverse actions may not individually rise to the level of an adverse employment action under Title VII, the Court may consider adverse actions collectively to determine whether the totality of the alleged actions rise to a level of substantiality to constitute unlawful retaliation.” Cote v. Shinseki, 2009 WL 1537901, *5 (M.D.Fla.2009); Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002). 2. Did Booth Suffer an Adverse Employment Action? Here, the Court concludes that there is sufficient evidence to create a question of material fact as to whether Pasco County’s alleged actions taken against Booth amount, collectively, to an adverse employment action such that a reasonable person would be dissuaded from filing a charge of discrimination. As discussed above, Booth contends that after he filed grievances and EEOC complaints, Pasco County took several retaliatory actions against him. Perhaps Booth’s most serious accusation is his alleged involuntary transfer. Specifically, Booth asserts that after he complained to his superiors about Bodden’s distasteful conduct he was involuntarily transferred to a less desirable station in which he was required to take on a" }, { "docid": "12535679", "title": "", "text": "to which employment actions meet the threshold for “adverse,” courts must make this determination on a case-by-case basis. Richardson, 180 F.8d at 446. Courts have held that where an employer deliberately fails to remedy alleged harassment out of retaliation for engaging in protected activity, such failure may be actionable under Title VII when it leads to an adverse employment action, such as a constructive discharge. See, e.g., Cooper v. Wyeth Ayerst Lederle, 106 F.Supp.2d 479, 497 (S.D.N.Y.2000); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir.1997) (holding that an employee could have suffered a retaliatory constructive discharge had her employer not investigated and corrected the pervasive harassment). But see O’Dell v. Trans World Entertainment Corp., No. 00 Civ. 5156(SAS), 2001 WL 726946 (S.D.N.Y. June 28, 2001) (“[Flailing to take a sexual harassment complaint seriously does not constitute a constructive discharge.”). An employee cannot simply assume that her complaint of harassment will not be adequately addressed, however. Cf. Cooper, 106 F.Supp.2d at 495 (“An employee who fails to explore alternative avenues offered by her employer before concluding that resignation is the only option cannot make out a claim of constructive discharge.”). Plaintiff identifies the following as the adverse actions she allegedly suffered as a result of Fleet’s retaliation: Fleet failed to conduct an impartial investigation of her complaint, knowingly placed her in close physical proximity to the manager who had harassed her which led to her constructive discharge, and represented Co-ville at the CHRO hearing. For the reasons discussed below, the Court concludes that only plaintiffs allegations of constructive discharge qualify as an adverse employment action within the contemplation of Title VII. First, plaintiff claims that Fleet failed to conduct an impartial investigation of her complaint in December 1996. Even if this is true, however, she has identified no way in which the investigation impacted her working conditions, apart from the attenuated effect that Coville was not disciplined or removed. However, “there is no requirement that the remedy [taken in response to a Title VII complaint] include punishing the co-worker responsible for the sexual harassment.... Title" }, { "docid": "19271712", "title": "", "text": "L.Ed.2d 662 (1998)); see also De La Vega v. San Juan Star, Inc., 377 F.3d 111, 118 (1st Cir.2004) (holding that general claims of “humiliating and discriminatory treatment” did not provide evidence of harassment because they did not provide specific evidence related to the kind of harassment or frequency or the reasoning behind the alleged discriminatory treatment). Likewise, her assertion that the bathroom facilities available to her prior to August 2004 were unsanitary is not so severe as to alter the terms of her employment and create a hostile environment. Based on the record before us, the district court did not err in its judgment concerning Carmona’s hostile work environment claim. D. Retaliation Carmona’s final claim on appeal is that the district court erred in granting summary judgment to the defendants on her retaliation claim. See Pomales, 447 F.3d at 83 (standard of review). We have held that to establish a claim of retaliation, a plaintiff “must show that (i) she undertook protected conduct, (ii) she suffered an adverse employment action, and (iii) the two were causally linked.” Noviello, 398 F.3d at 88 (stating the requirements for retaliation actions under Title VII); see also Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir.2003) (stating the same requirements under ADA); Weber v. Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir.2000) (noting that the Rehabilitation Act prohibits retaliation). The district court held that there was no evidence that the failure to provide Carmona the requested private bathroom facilities constituted an adverse employment action or was part of an effort to interfere with her ADA-related protected activity. After the oral argument in this case, the Supreme Court decided Burlington Northern and Santa Fe Railway Company v. White, No. 05-259, 2006 WL 1698953 (U.S. June 22, 2006), holding that the anti-retaliation provision of Title VII “is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at *7. Rather, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker" }, { "docid": "20535817", "title": "", "text": "April of 2010, and while this may not have been a popular or sound business decision, a reasonable employee would not find this decision to be materially adverse. Moreover, when Rubano found out in April 2011 that Harkless had been withholding his mail, that did not deter him from filing a subsequent EEOC charge on September 19, 2011. See Sykes v. Pa. State Police, Civ. A. No. 05-1359, 2007 WL 141064, *6-*7 (W.D.Pa. Jan. 17, 2007) (the alleged adverse employment actions, whether characterized as major or minor, did not deter plaintiffs pursue of new and expanded allegations of discrimination, either internally or administratively, and thus, belied her argument that a reasonable person confronted with the adverse employment actions would have been dissuaded from voicing additional allegations of discrimination.) With regard to the September 15, 2012 incident, a reasonable employee may find a wrongfully issued written reprimand to be materially adverse. Some courts have found that a written reprimand may constitute a materially adverse action. See, e.g., Prise v. Alderwooods Group, Inc., 657 F.Supp.2d 564, 621 (W.D.Pa.2009) (citing Genevie v. Jackson, Civ. A. No. 05-1733, 2008 WL 793885, *14 (W.D.Pa. Mar. 24, 2008)); Hempfling v. United Refining Co. of Pa., Civ. A. No. 06-334, 2008 WL 201900, *9 (W.D.Pa. Jan. 23, 2008) (holding that the “write-ups” received by plaintiff but not by a co-worker for the same conduct may “dissuade a reasonable worker from making or supporting a charge of discrimination.”) Whether the written reprimand issued to Rubano was so “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination,” Burlington, 548 U.S. at 57, 126 S.Ct. 2405, presents a close question. Thus, giving Rubano the benefit of all favorable inferences, the Court will assume, arguendo, without deciding, that the written reprimand was materially adverse. Nonetheless, the Court finds that Rubano has failed to establish a causal link between his protected activity and the written reprimand. As noted above, Rubano can establish causation either by producing evidence of an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory" }, { "docid": "20535816", "title": "", "text": "element of a retaliation claim, the “plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68, 126 S.Ct. 2405 (citations and internal quotation marks omitted). This is an objective standard which is judicially administrable. Id. In articulating this standard, the Supreme Court wanted to separate significant from trivial harms, finding only the former actionable. The Court further opined that “normally, petty slights, minor annoyances, and simple lack of good manners will not ... deter[ ] victims of dis crimination from complaining to the EEOC].” Id. (citing 2 EEOC 1998 Manual § 8, p. 8-13). As to the withholding of mail, the Court finds a reasonable employee would not have found this action to be materially adverse. The certifications were no longer necessary because as part of the reorganization of the maintenance department, the District removed the inspection and testing duties from Rubano, beginning in April of 2010, and while this may not have been a popular or sound business decision, a reasonable employee would not find this decision to be materially adverse. Moreover, when Rubano found out in April 2011 that Harkless had been withholding his mail, that did not deter him from filing a subsequent EEOC charge on September 19, 2011. See Sykes v. Pa. State Police, Civ. A. No. 05-1359, 2007 WL 141064, *6-*7 (W.D.Pa. Jan. 17, 2007) (the alleged adverse employment actions, whether characterized as major or minor, did not deter plaintiffs pursue of new and expanded allegations of discrimination, either internally or administratively, and thus, belied her argument that a reasonable person confronted with the adverse employment actions would have been dissuaded from voicing additional allegations of discrimination.) With regard to the September 15, 2012 incident, a reasonable employee may find a wrongfully issued written reprimand to be materially adverse. Some courts have found that a written reprimand may constitute a materially adverse action. See, e.g., Prise v. Alderwooods Group, Inc., 657 F.Supp.2d 564, 621" }, { "docid": "5202130", "title": "", "text": "but matter enormously to a young mother with school-age children, in the context of a retaliation claim where the standard for adverse action is an action that would deter victims of discrimination from complaining to the EEOC, the courts, and their employers); Hicks, 593 F.3d at 169 (listing punitive scheduling as one of a laundry list of adverse actions on a retaliation claim); Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir.2000) (ADEA discrimination claim where plaintiff was discharged). The scope of what constitutes an adverse employment action is more limited on a discrimination claim than it is on a claim for retaliation. A change in an employee’s schedule, without more, is not an adverse employment action in the context of a discrimination claim. See Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 619 (S.D.N.Y.2009) (citing Ludwig v. Rochester Psychiatric Ctr., 550 F.Supp.2d 394, 399 (W.D.N.Y.2008) (finding no adverse employment action where there were minor changes to plaintiffs work schedule and weekends off); Antonmarchi v. Consol. Edison Co., No. 03-CV-7735, 2008 WL 4444609, at *14 (S.D.N.Y. Sept. 29, 2008) (“Unfavorable hours do not constitute an adverse employment action for the purposes of Title VII.”); Constance v. Pepsi Bottling Co., No. 03-CV5009, 2007 WL 2460688, at *18 (E.D.N.Y. Aug. 24, 2007) (“[P]laintiffs complaints that he was required to travel and had irregular shifts requiring him to work at night and on occasional weekends amounts to ‘mere inconveniences’ rather than adverse actions.” (quoting Galabya, 202 F.3d at 640)); Ruhling v. Tribune Co., No. 04-CV-2430, 2007 WL 28283, at *10 (E.D.N.Y. Jan. 3, 2007) (“[I]t should be noted that a schedule change standing alone does not constitute an adverse employment action.”); Rivera v. Potter, No. 03-CV-1991, 2005 WL 236490, at *6 (S.D.N.Y. Jan. 31, 2005) (noting that an unwanted schedule change is not an adverse employment action); accord Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir.2001) (finding that a reassignment from a day shift to a night shift is not a change in duties, compensation or benefits constituting an adverse employment action); Grube v. Lau Indus., Inc.," }, { "docid": "22419056", "title": "", "text": "VII); Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir.2001) (chapter 151B). Here, there is no dispute that the plaintiff engaged in protected activity by filing a complaint. The parties instead spar over the second and third elements, which in this instance collapse into a single question: did the plaintiff sustain an adverse employment action in the form of a hostile work environment based on retaliation for filing a sexual harassment complaint against Ortiz? Typically, an adverse employment action involves a discrete change in the terms and conditions of employment (say, a discharge, demotion, or reduction in pay). This case is more nuanced. In order for the plaintiff to survive summary judgment on this record, she must show that, as a legal matter, the creation and perpetuation of a hostile work environment itself can constitute a retaliatory adverse employment action. She also must show that, as a factual matter, her coworkers’ actions furnished a sufficient basis to ground a finding that a hostile work environment actually existed. As to the legal point, the plaintiff maintains that a hostile work environment may constitute an adverse employment action for purposes of both Title VII and chapter 151B. The city demurs. It notes that the plaintiff has not been cashiered, demoted, denied promotion, stripped of meaningful duties, or otherwise materially disadvantaged in the terms and conditions of her employment. Thus, the city argues, she cannot be said to have suffered an adverse employment action. This precise question — whether a hostile work environment can constitute a retaliatory adverse employment action — has never been fully addressed either by this court (with regard to Title VII) or by the Massachusetts Supreme Judicial Court (with regard to chapter 151B). We look at the federal and state claims separately. 1. Tille VIL The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a). See, e.g., Von Gunten v. Maryland, 243 F.3d 858, 864-65 (4th Cir.2001); Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir.2000);" }, { "docid": "12535678", "title": "", "text": "Quinn, 159 F.3d at 759 (filing state agency complaint is protected activity). Plaintiff filed her CHRO complaint on December 26, 2000, and Fleet was served with a copy of that complaint on January 6, 2001. The filing of a CHRO complaint is clearly a protected activity under Title VII. See Raniola, 243 F.3d at 626; Quinn, 159 F.3d at 769. Therefore, Fleet’s argument that plaintiffs retaliation claim must fail because she never engaged in protected activity is unavailing. Fleet also contends that plaintiff cannot establish that she suffered an adverse employment action in retaliation for her complaint. For purposes of a Title VII retaliation claim, an “adverse employment action” constitutes a “materially adverse change” in the employee’s working conditions, id., such as termination, demotion, or a reduction in wages or benefits. Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). “[L]ess flagrant reprisals by employers may [also] be adverse.” Id. (quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997)). Because there are no bright-line rules as to which employment actions meet the threshold for “adverse,” courts must make this determination on a case-by-case basis. Richardson, 180 F.8d at 446. Courts have held that where an employer deliberately fails to remedy alleged harassment out of retaliation for engaging in protected activity, such failure may be actionable under Title VII when it leads to an adverse employment action, such as a constructive discharge. See, e.g., Cooper v. Wyeth Ayerst Lederle, 106 F.Supp.2d 479, 497 (S.D.N.Y.2000); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir.1997) (holding that an employee could have suffered a retaliatory constructive discharge had her employer not investigated and corrected the pervasive harassment). But see O’Dell v. Trans World Entertainment Corp., No. 00 Civ. 5156(SAS), 2001 WL 726946 (S.D.N.Y. June 28, 2001) (“[Flailing to take a sexual harassment complaint seriously does not constitute a constructive discharge.”). An employee cannot simply assume that her complaint of harassment will not be adequately addressed, however. Cf. Cooper, 106 F.Supp.2d at 495 (“An employee who fails to explore alternative avenues" }, { "docid": "5591728", "title": "", "text": "that Plaintiffs leadership in the union is sufficient for the union’s First Amendment activity to be attributed to Plaintiff, Plaintiff cannot establish that Defendants took an adverse employment action against her as a result of said activity. In the context of a First Amendment retaliation claim, “a public employee plaintiff alleging retaliation in violation of the First Amendment [need not] demonstrate a material change in employment terms or conditions.” Zelnik, 464 F.3d at 227. Rather, the “standard for First Amendment retaliation claims has always been the equivalent to the standard set forth in Burlington Northern ” — that the action would dissuade a reasonable employee from speaking out. Id. Put another way, an adverse action is one that “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Nixon v. Blumenthal, 409 Fed.Appx. 391, 392 (2d Cir.2010). Examples of such actions include “discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand,” Frisenda, 775 F.Supp.2d at 510 (quoting Morris v. Lindan, 196 F.3d 102, 110 (2d Cir.1999)). However, “lesser actions may also be considered adverse employment actions,” since “a combination of seemingly minor incidents [can] form the basis of a constitutional retaliation claim once they reach a critical mass.” Id. (citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002)). Plaintiffs claim is that, as a result of her protected First Amendment activity, she suffered a series of memoranda from La-Rose to her supervisor, Doyle, inquiring about what Plaintiff was doing, how long it took for her to do it, and asking “why wasn’t she a part of’ other activities. (PI. Dep. 214:7-20.) There is no evidence that any of these requests were directed to Plaintiff, or that she was reprimanded or otherwise affected by these memoranda. The memoranda to Plaintiffs supervisor are not sufficient to meet the standard for “adverse employment action” for purposes of a First Amendment claim. Plaintiffs First Amendment retaliation claim is dismissed. I. NYCHRL claims Plaintiff brings claims of discrimination, retaliation and hostile work environment pursuant to the NYCHRL. “District courts may decline to exercise supplemental" }, { "docid": "11780843", "title": "", "text": "by Alvey. We will now examine each of these contentions in turn. 1. Akers’s transfer to the Hardin County office Even assuming that Akers was involuntarily transferred to the Hardin County office, as she alleges, she failed to demonstrate how this transfer was materially adverse to her. She did not suffer a decrease in pay, her job duties were not significantly changed, and the transfer actually reduced Akers’s roundtrip commute from her home by 60 miles per day. We thus agree with the district court that Akers’s transfer was not a materially adverse employment action. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996) (holding that a plaintiff failed to establish that her transfer and change in job title was a materially adverse employment action, reiterating “that reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims”). 2. Retaliatory harassment by Alvey Although the district court failed to consider whether Alvey’s post-complaint harassment was retaliatory, this court has previously held that “severe or pervasive supervisor harassment” following a sexual-harassment complaint can constitute retaliation for the purposes of a Title VII action. Morris, 201 F.3d at 792. Because the court’s decision in Morris was an extrapolation of Supreme Court precedent allowing a Title VII action to be based upon severe or pervasive supervisory harassment in the sexual-harassment context, the standard for “severe or pervasive” harassment is “the same in the retaliation context as in the sexual and racial discrimination contexts.” Broska v. Henderson, 2003 WL 21518733, at *4 (June 30, 2003). Under this standard, the harassment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citation omitted). As this court noted in Broska, “this test has both an objective and a subjective component: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as" }, { "docid": "1682472", "title": "", "text": "the second denial for change in territory that took place on December of 2003. . See also Plautz v. Potter, 156 Fed.Appx. 812 (6th Cir.2005) (criticisms of plaintiff's performance or attendance did not constitute ''harassment'' sufficient to create hostile work: environment, under the Rehabilitation Act, absent evidence that employee was ridi culed or insulted because of his medical condition to the point that it permeated the workplace environment); Angelone v. Seyfarth Shaw, LLP, No. CIV. S-05-21G6 FCD JFM, 2007 WL 1033458 (E.D.Cal. April 3, 2007) (holding that no reasonable person would find plaintiff’s complaints of defendant's criticism of her job performance to be objectively abusive); Lucenti v. Potter, 432 F.Supp.2d 347 (S.D.N.Y.2006)(allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim, absent a showing of discriminatory animus). . Specifically, the FMLA states that \"[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter,” 29 U.S.C. § 2615(a)(1), and that \"[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter,” 29 U.S.C. § 2615(a)(2). . Even if we considered Plaintiff complaints that the Defendant considered her absences in her performance evaluations, her claim fails inasmuch as we have already held that Plaintiff’s negative performance evaluations and warnings do not constitute adverse employment actions. Castro was allowed to take several medical leaves, some lasting as long as six months, and upon return, was assigned to the same position, with the same responsibilities, salary and benefits. See also Abrahamson v. Sandoz, Inc., Civil Action No. 06-cv-0063 6-WYD-M JW, 2008 WL 906124 (D.Colo. March 31, 2008) (holding that a written warning may be an adverse employment action for purposes of a FMLA claim only if it effects a significant change in the plaintiff’s employment status); Robinson v. Fulton County, Ga., Civil Action No. L05-CV-2250-RWS, 2008 WL 78711 (N.D.Ga. January 4, 2008) (employer’s issuance of multiple memo-randa and written warnings about plaintiff’s" }, { "docid": "329543", "title": "", "text": "training, and therefore any such denial does not rise to the level of an adverse employment action. See Sekyere v. City of N.Y., No. 05 Civ. 7192(BSJ)(DCF), 2009 WL 773311, at *4 (S.D.N.Y. Mar. 18, 2009) (“Plaintiff does not contend that her position was altered in any way by not receiving some specific training, nor does she contend that she was disciplined, demoted, transferred, or terminated for lack of some fundamental knowledge that should have been provided for her through training. Accordingly, any failure by Defendants to provide Plaintiff with training does not rise to the level of an adverse employment action.”); Watson v. Paulson, 578 F.Supp.2d 554, 564 (S.D.N.Y.2008). Fourth, although a “constructive discharge” from employment does constitute an adverse employment action, see Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir.2001), Trachtenberg has not alleged facts sufficient to state a plausible claim of constructive discharge. A constructive discharge occurs “when the employer ... deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Morris v. Schroder Capital Mgmt. Int’l, 481 F.3d 86, 88 (2d Cir.2007) (citation omitted); see Pa. State Police v. Suders, 542 U.S. 129, 139, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). The Supreme Court has described a hostile-environment constructive discharge claim as “graver ... than its lesser included component, hostile work environment.” Suders, 542 U.S. at 149, 124 S.Ct. 2342 (emphasis omitted). For the reasons discussed in Part III(B), infra, Trachtenberg has failed to allege facts sufficient to state a plausible claim of a hostile work environment. Accordingly, it follows that she has not stated a claim of constructive discharge, either. See Chenette v. Kenneth Cole Prods., Inc., 345 Fed.Appx. 615, 620 (2d Cir.2009) (summary order) (having failed on hostile work environment claim, plaintiff cannot succeed on constructive discharge claim, “which requires evidence of even more severe conditions”). Trachtenberg’s final set of allegations — consisting of the two negative performance reviews, the avalanche of biased letters containing scurrilous charges, and, significantly, the adverse consequences flowing therefrom, see Am. Compl. ¶¶ 14-17, 20, 28 — together do rise" }, { "docid": "5948663", "title": "", "text": "a “similarly situated” comparator might be — for the racial discrimination claim, the comparators are non-African Americans, and for the retaliation claim, the comparators are those who did not file an EEOC complaint. When determining whether an employee is meeting an employer’s legitimate expectations, courts look to the em ployee’s performance “at the time of the adverse employment action.” Dear v. Shinseki 578 F.3d 605, 610 (7th Cir.2009). Also, the test for “similarly situated” comparators requires analysis of the plaintiffs conduct at the time of the adverse action. See Antonetti v. Abbott Labs., 563 F.3d 587, 592 (7th Cir.2009). Accordingly, the Court first determines whether the Board took any action with respect to Hopkins that can be construed as an adverse employment action. A. Adverse Employment Actions Hopkins alleges that her suspension in 2011 and the hostile work environment she endured constituted adverse employment actions. Plainly, the suspension qualifies, but Hopkins’ latter claim fails because (as discussed above) her hostile work environment claim fails. Moreover, even if Hopkins had established a hostile work environment claim, she could not bootstrap that claim into a separate discrimination or retaliation claim because a hostile work environment claim does not require a showing that the employer took an adverse employment action. In asserting that the alleged hostile work environment she endured constituted an adverse employment action, Hopkins appears to be attempting to circumvent the need to identify an adverse action altogether. That effort must be rejected. To support her discrimination claims, Hopkins’ claims of harassment must be analyzed under the standards of an “adverse employment action” for each respective statute. 1. Title YII Retaliation The test for what constitutes an “adverse employment action” differs slightly for retaliation claims under Title VII, so Hopkins’ Title VII retaliation claim is analyzed separately from the Title VII discrimination claim and both § 1981 claims. The Supreme Court has analyzed the textual differences between Title VII’s anti-discrimination provisions and its anti-retaliation provisions, and has concluded that the anti-retaliation provisions cover a broader range of employer conduct. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53," } ]

[ { "docid": "14750026", "title": "", "text": "its interest in them on its right, as a charging party, to participate in the Board's proceeding. See 29 C.F.R. § 101.10 (1972). Following refusals by the Board and General Counsel to release the memoranda, Sears filed an action in the District Court under the Freedom of Information Act, 5 U.S.C. § 552 (1970), alleging that it could not meaningfully participate in the unfair labor practice charge without the requested information. On February 3, 1972, the General Counsel announced that he would make available all Advice and Appeals memo-randa in completed cases. He continued to refuse to release the memoranda prepared for Sears’ case against the Union (Board Case No. 19-CB-1673). In March 1972, after an oral hearing, the District Court found that Sears would be irreparably injured by participating in the NLRB hearing without the Advice and Appeals memoranda. The Court also found that Sears had a probable right to the requested documents and that the District Court had jurisdiction to enjoin the Board’s proceedings. The court therefore enjoined the defendants from going forward with the unfair labor practice proceedings “until plaintiff has had a reasonable time to inspect and analyze that information which the Board has made available; to resolve any disputes with respect to the remainder of the information requested by the plaintiff, and should such, information then also be made available, to inspect and analyze such additional information.” On March 29, 1972, the Board filed a notice of appeal from the injunction. It subsequently filed a motion in this court for summary reversal of the injunction. Since the filing of that motion the District Court has refused to stay its order. The District Court was correct in its premise that there is jurisdiction to enjoin agency proceedings pending resolution of a Freedom of Information Act claim. Bannercraft Clothing Co., Inc. v. The Renegotiation Board, 151 U. S.App.D.C. 174, 466 F.2d 345 (decided July 6, 1972). However, as Bannercraft itself noted, “the bare existence of jurisdiction does not mean that appellees were entitled to the relief they were granted by the District Court.” 151 U.S. App.D.C. at" } ]

[ { "docid": "4311830", "title": "", "text": "district court would have had jurisdiction under FOIA to consider the motion had it been unrelated to discovery in civil litigation. The power of a district court in resolving claims brought under FOIA is defined generally in 5 U.S.C. § 552(a)(4)(B): \"On complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” The extent to which a district court has authority to exercise other injunctive power pursuant to FOIA is unclear. Compare Giza v. Secretary of Health, Education & Welfare, 628 F.2d 748, 751 (1st Cir.1980) (discussing the express grant of injunctive power in § 552(a)(4)(B) and concluding that \"a district court simply has no authority ... to compel an agency to generate explanatory material”) with Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 20, 95 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974) (\"With the express vesting of equitable jurisdiction in the court by § 552(a), there is little to suggest, despite the Act’s primary purpose, that Congress sought to limit the inherent powers of an equity court.”). Even granting, as we must, that § 552(a) does not \"prescribe] ] [a] special and exclusive remedy,\" Bannercraft Clothing, 415 U.S. at 20, 94 S.Ct. at 1038, we have serious concerns about whether FOIA grants a court authority to order an individual to agree to government disclosure of otherwise exempt information. The need for such relief would only arise after the district court has determined that the requested information was properly exempt from disclosure under the terms of FOIA. Thus, consideration of this type of relief would appear to require the district court to decide whether it is appropriate to modify the scope of the statutory exemptions from disclosure, based on a weighing of equities that may be entirely irrelevant to the decision on exemption under FOIA. Cf. supra note 10. Such an exercise of authority by the judiciary in the face of very specific statutory exemptions from disclosure would be, in our view, extremely problematic. Notwithstanding our analysis in text," }, { "docid": "9407842", "title": "", "text": "GODBOLD, Circuit Judge: This is a Freedom of Information Act (FOIA) case, although it takes on the troubling coloration of a dispute about the discovery rights of respondents in National Labor Relations Board proceedings. The district court ordered the NLRB to turn over to Robbins Tire copies of all written statements of those who will be called to testify in a consolidated representation and unfair labor practice proceeding involving that company. The order required that these documents be transmitted “on or before April 22,1976, or, at the election of the Board, on or before a date which is at least five days prior to any hearing where the person making the statement or affidavit will be called as a witness.” A panel of this court has denied the Board’s motion for a stay pending appeal, and the NLRB hearing has been held in abeyance for over a year pending the outcome of this appeal. We affirm. First, there is a jurisdictional problem. The Board argues that the effect of the order to disclose statements of witnesses was to enjoin its proceeding against the company. It casts its argument as an exhaustion requirement, citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), and asserting that Robbins Tire would suffer no irreparable injury if forced to challenge the Board’s action afterwards on appeal, 29 U.S.C. §§ 160(e)-(f). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); 51 St. John’s L.Rev. 251, 254 n. 17 (1977). We need not decide whether or when a district court adjudicating a FOIA claim may enjoin ongoing or prospective NLRB proceedings in an effort to compel the disclosure required by the Act. In this case, the district court did not enjoin the hearing. The Board argues that this was the effect of its order. But whether or not an order constitutes an injunction is a question that does not turn on the subjective importance attached to it by the defendant and his resulting action in the circumstances. Like similar orders in" }, { "docid": "23557475", "title": "", "text": "of the FOIA amendments and almost persuaded by its argumentation and that of the district court, we are forced to conclude that statements of employees, and their representatives, obtained in connection with unfair labor practice enforcement proceedings are not subject to disclosure as a result of Exemption 7(A). So saying, we do not intend our comments to apply broadly to administrative contexts other than unfair labor practice enforcement proceedings before the NLRB. We need add in conclusion only that in view of our disposition of appellant’s claim under Exemption 7(A) we find it unnecessary to determine the applicability of Exemption 5 (intra-agency memoranda) to these materials. Judgment reversed. The cause is remanded to the district court with instructions to vacate its order staying the appellant’s proceedings. . 5 U.S.C. § 552. . The charge was made under Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). . 5 U.S.C. § 552(b) provides in part: This section does not apply to matters that are— (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source . Jurisdiction in the district court is provided in 5 U.S.C. § 552(a)(4)(B). . The district court noted the express vesting of equitable jurisdiction under the Act, 5 U.S.C. § 552(a)(4)(B). The Supreme Court’s opinion in Renegotiation Bd v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), was expressly limited to renegotiation cases where the nature of the process insured no irreparable harm, and by its own terms that opinion did not purport to decide “whether, or under what circumstances, it would be proper for the District Court to exercise jurisdiction to enjoin agency action pending the resolution of an asserted FOIA claim.” Id. at 20, 94 S.Ct. at 1038, 39 L.Ed.2d" }, { "docid": "1244049", "title": "", "text": "§ 552(a), the statutory remedy for noncompliance is “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” § 552(a)(4)(B). Although the Supreme Court in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), held that the statutory remedy was not exclusive, it is not appropriate to enjoin agency action pending § 552 publication in cases where the complaining party has available to him the usual rights of discovery. Id. at 20-24, 94 S.Ct. at 1038-40, 39 L.Ed.2d at 137-40. That principle should apply here. As plaintiffs concede, they have through discovery obtained the regulations and materials which they claim have been improperly withheld from publication. In addition, they rely upon the unpublished documents to support their claims and do not show that the unpublished materials adversely affect their rights. Plaintiffs urge only that the failure of defendants to timely publish the regulations has significantly delayed their gaining knowledge of the materials and has interfered with their ability to promptly prosecute their claims. Having had full access through the discovery processes of this court to all unpublished material in the hands of the Corps of Engineers, plaintiffs show no irreparable injury arising from the nonpublication of any of the regulations in issue. Given these circumstances, we believe it would be an abuse of discretion to enjoin the construction of TTW, as an agency project, until defendants publish all materials required by § .552 to be so published. We therefore grant summary judgment to defendants on Count XIV insofar as it denies injunctive relief to halt the construction of TTW, but without prejudice to plaintiffs’ right to seek an order requiring the defendants to publish all heretofore unpublished regulations and other documents required by § 552(a)(1). We find it unnecessary to discuss Count XV which sets forth no facts or claims of violations of law not contained in other counts. Let an order issue accordingly. . H.R.Doc.No. 269, í¡ 20 at 16. . H.R.Doc.No. 486, 1i 136 at 51. . Id., •:" }, { "docid": "13091628", "title": "", "text": "in pending enforcement proceedings by virtue of a back-door amendment to the FOIA when it could very easily have done so by direct amendment to Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), or by a blanket enactment pertaining to discovery in pending administrative enforcement proceedings.” [Footnote omitted.] Title Guarantee Co. v. NLRB, supra, 534 F.2d at 491-92. Accord, Goodfriend Western Corp. v. Fuchs, supra, 535 F.2d at 147. The thrust of FOIA is to provide public information, not benefit to private litigants. See NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 143 n.10, 95 S.Ct. 1504; Renegotiation Board v. Bannercraft Clothing Corp., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1973); Capital Cities Communications, Inc. v. NLRB, supra, 409 F.Supp. at 977. Reading Exemption 7(A) as permitting the nondisclosure of all or most open file documents in a pending unfair labor practices case does not signal a return to the discredited permanent exemptions which led Congress in 1974 to tighten 7(A). See 120 Cong.Rec. 17034-35 (1974). Such cases provided exemption from disclosure “forever”, e. g., Weisberg v. Department of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195, 1202-03 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). See Title Guarantee, supra, 534 F.2d at 488-89. It was the automatic continuing exemption of records even after a file had become totally inactive that led Congress to amend Exemption 7-. See 120 Cong.Rec. 17034-35 (1974). An agency policy of denying to a suspected violator access to its case pending completion of administrative and judicial proceedings is quite different from denying documents to the public indefinitely or “forever”. The Hospital argues that while records which clearly tip the Board’s hand in a pending proceeding might be exempt, the burden is upon the agency to prove, record by record and, indeed, sentence by sentence, that disclosure would have that effect. And it may be that the worst harm to the Board’s case through premature revelations could, in theory, be avoided by in camera judicial inspection and other document by document screening procedures," }, { "docid": "9513821", "title": "", "text": "Civilian and Military Service and Determination of Competitive Status” “Veteran Preference Claim” “Supervisor’s Appraisal Report[s]” ally so inform the public at large, Columbia’s rights are not lessened, any more than they are enhanced, by the private purposes for which the documents are sought. We conclude that there is a relevant public interest, which Columbia is entitled to enforce, in production of at least some of the documents. We are also satisfied that the court did not abuse its discretion in selecting as it did among the particular records. We see no evidence that its mistaken reference to a broader discovery rationale than is warranted affected its balancing of the personal privacy interests of the two men against the very substantial public interest in full disclosure of evidence that might bear on the integrity and competence of the agency for which they worked. We therefore affirm the court’s order that the designated documents be disclosed to Columbia. The USDA also appeals from the district court’s order enjoining, until disclosure is made, the administrative proceedings which threaten to authorize termination of Columbia’s inspection services. In Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974), the Court held that courts should not enjoin renegotiation proceedings pending the resolution of an asserted FOIA claim as the “effect would be that renegotiation, and its aims, would be supplanted and defeated by an FOIA suit”. However, the Court declined to go so far as to rule that Congress in enacting the FOIA and providing certain remedies therein, meant to divest courts of their inherent equitable powers. Thus the court below was not without power to issue collateral injunctive relief if circumstances warranted. The question is whether it abused its discretion in entering such an injunction in these circumstances. As noted, FOIA was not enacted to provide litigants with an additional discovery tool. Sears, Roebuck & Co., supra; Bannercraft Clothing, supra at 24, 94 S.Ct. 1028; New England Medical Center Hospital, supra. It follows that the very serious step of enjoining an agency proceeding should not be taken" }, { "docid": "13099922", "title": "", "text": "pending ease and that any errors committed therein would be subject to appellate review. Citing the Supreme Court’s decision in Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), the court stated that “the Freedom of Information Act was not intended to serve as a substitute for criminal discovery.” 507 F.2d at 1254. In Renegotiation Board, the Supreme Court had considered the issue of the effect of the FOIA on proceedings pending under the Renegotiation Act of 1951. Respondents, whose profits on defense contracts were undergoing renegotiation pursuant to the Act, brought suit under the FOIA to enjoin the Board from withholding requested documents and to stay negotiation proceedings until these documents were produced. The Supreme Court held that no injunctive relief should be granted. Emphasizing that the Renegotiation Act contemplated negotiation without interruption for judicial review, the Court ruled that in a renegotiation case the contractor must pursue its administrative remedies under the Renegotiation Act and could not obtain judicial interference with this procedure through preliminary litigation of a FOIA claim. The Court recognized that even though the FOIA’s stress was on disclosure, it was on disclosure for the public, and not for the negotiating self-interested contractor. 415 U.S. at 22, 94 S.Ct. 1028. But see Davis, Administrative Law of the Seventies § 3A.6-1 (1976). The Court then stated that “[ijnterference with the agency proceeding opens the way to the use of the FOIA as a tool of discovery over and beyond that provided by the regulations issued by the Renegotiation Board for its proceedings. Discovery for litigation purposes is not an expressly indicated purpose of the Act.” 415 U.S. at 24, 94 S.Ct. at 1040 [citations omitted]. Following a similar approach, the United States Customs Court in a case involving the Customs Court rules, vis-a-vis the Government’s refusal to produce certain documents claimed under the FOIA, stated that the FOIA was not enacted to provide discovery procedures for obtaining information during litigation, and therefore, the Act did not create a judicial discovery privilege. Verrazzano Trading Corp. v. United States, 349" }, { "docid": "15740762", "title": "", "text": "camera review of representative documents before entering final judgment on the merits. FOIA was enacted against the backdrop of the Federal Rules of Civil Procedure, and although some express alterations were made, systematic and fair proceedings were not abrogated. Therefore, even if the court had authority to impose the sanction it did, we hold it was necessary to do so in a procedurally orderly fashion. E. We now address Coastal’s fourth claim, namely that special circumstances justified the “partial judgment.” Coastal argues that expedition is essential not only on account of FOIA’s mandate but because without access to the documents, Coastal will be prejudiced in the DOE enforcement proceedings. The district judge appears to have been troubled by the potential inequities of the situation: preliminary discovery was progressing quickly before the agency hearing board, yet the same agency’s dilato-riness in the FOIA action threatened to hamper Coastal’s ability to argue its position most effectively. Case law, however, protects Coastal’s right to obtain non-exempt documents before agency proceedings are closed and irreparable harm occurs. In Renegotiation Board v. Bannercroft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), the Supreme Court accepted the proposition that a district court could exercise jurisdiction to enjoin agency action pending the resolution of a FOIA claim. Although the Court declined to decide under what circumstances such an exercise of jurisdiction would be proper, it asserted that Congress’ express vesting of equitable jurisdiction in the district courts by § 552(a)(4) in no way limited the inherent powers of an equity court. Significant for present purposes is that FOIA’s central aim is to ensure an informed citizenry and to hold the governors accountable to the governed. Congress did not intend FOIA to function as a private discovery tool. See N. L. R. B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2326, 57 L.Ed.2d 159 (1978); Renegotiation Board, supra, 415 U.S. at 22, 94 S.Ct. at 1039. Quite appropriately, then, the district court’s denial of DOE’s motion to stay the disclosure order was premised on harm to the public" }, { "docid": "23557476", "title": "", "text": "not be available by law to a party other than an agency in litigation with the agency. (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source . Jurisdiction in the district court is provided in 5 U.S.C. § 552(a)(4)(B). . The district court noted the express vesting of equitable jurisdiction under the Act, 5 U.S.C. § 552(a)(4)(B). The Supreme Court’s opinion in Renegotiation Bd v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), was expressly limited to renegotiation cases where the nature of the process insured no irreparable harm, and by its own terms that opinion did not purport to decide “whether, or under what circumstances, it would be proper for the District Court to exercise jurisdiction to enjoin agency action pending the resolution of an asserted FOIA claim.” Id. at 20, 94 S.Ct. at 1038, 39 L.Ed.2d at 137. . Accord, NLRB v. Lizdale Knitting Mills, Inc., 523 F.2d 978 (2d Cir. 1975). But see NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (5th Cir. 1968); NLRB v. Safway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968). . NLRB v. Martin A. Gleason, Inc., Nos. 75 — 4018, -4045, -4047, 534 F.2d 466, 481 (2d Cir. Mar. 3, 1976), points out that NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 857 (2d Cir. 1970), and NLRB v. Lizdale Knitting Mills, Inc., 523 F.2d 978 (2d Cir. 1975), held that parties in a proceeding before the Board are not entitled to the full panoply of discovery procedures as a matter of statutory or constitutional right. Only discovery for the limited purpose of obtaining and preserving evidence for trial, as opposed to the purpose of discovery and disclosure, Gleason, supra, says, was left to the discretion of the administrative law judge “in order to provide safeguards designed to" }, { "docid": "11356788", "title": "", "text": "Public Citizen thinks, then we need not explore what “adequate” means under the APA. But if, as CREW believes, FOIA does not provide the relief it seeks, then we must consider whether, as the Government insists, FOIA nonetheless offers an adequate remedy. III. CREW seeks an injunction with four features it believes are necessary to guarantee OLC meets its reading-room obligations. First, the injunction would have prospective effect—ie., it would apply to opinions not yet written. Second, it would impose an affirmative obligation to disclose on OLC—ie., without need for a specific prior request. Third, it would mandate disclosure to the public, as opposed to just CREW. Fourth, it would require OLC to make available to the public an index detailing all documents subject to the reading-room provision. We start with the proposition that FOIA section 552(a)(4)(B) vests courts with broad equitable authority. True, as the Supreme Court explained in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), that provision “explicitly confers jurisdiction to grant injunctive relief of a described type, namely, ‘to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.’ ” Id. at 18, 94 S.Ct. 1028 (citing 5 U.S.C. § 552(a)(4)(B)). But as the Court made clear in the same decision, Congress did not intend that language “to limit the inherent powers of an equity court” in FOIA cases. Id. at 20, 94 S.Ct. 1028; see Payne Enterprises v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” (citing Renego-tiaton Board, 415 U.S. at 19-20, 94 S.Ct. 1028)). “Once invoked, the scope of a district court’s equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (citations and internal quotation marks omitted). This is especially so where, as here, “federal law is at issue and ‘the public interest is involved,’ [as] a federal court’s ‘equitable powers assume" }, { "docid": "23233669", "title": "", "text": "this court’s jurisdiction of this appeal, claiming that the district court’s order requiring the FBI to turn over the excised information is not a final order, and thus is not appealable. A disclosure order in a FOIA suit is injunctive in nature. It is granted pursuant to 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction upon the district court, “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18, 20, 94 S.Ct. 1028, 1037, 1038, 39 L.Ed.2d 123 (1974). The courts of appeals have jurisdiction of appeals from interlocutory orders of the district court granting injunctions, pursuant to 28 U.S.C. § 1292(a). Thus we have jurisdiction of the present appeal regardless of whether other issues remain pending in the district court. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 979 & n.15 (3d Cir. 1981); cf. Theriault v. United States, 503 F.2d 390, 391 (9th Cir. 1974) (when release of documents under FOIA is the ultimate relief sought by party, an order compelling their release is final under doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). On September 8, 1973, David Miller, . . . made a complaint concerning a possible intrusion on his telephone. Investigation was conducted and it was determined that an Illinois Bell Telephone (IBT) repairman was at the site on August 24, 1973. This individual advised that while working on the line he hooked into the line to report a problem he was having with his vehicle. After making his call he returned the transmitting wires under the protective coverings. The wire was forwarded to the Federal Bureau of Investigation Laboratory which could not determine whether or not any additional marks were in the wire to those described as having been made by the repairman. In view of this no" }, { "docid": "14673919", "title": "", "text": "not choose between reliance on this speculation, with its po tential effect of relieving the agency of its statutory burden of proof, and in camera inspection of all the site visit reports in suit. Finding no matter of the type sought in the controlling document, there is no relief respecting item (12) to which appellee can lay claim. Ill Appellant challenges the District Court’s jurisdiction to order the agency to amend its regulations to conform with the court’s opinion. The FOIA, it is contended, “grants jurisdiction to the district courts only to review agency denials of requests for specific documents and to enjoin withholding of those documents” from the person who made the request. That is of course true insofar as it goes, but is not responsive to whether the court may not draw on powers apart from, and unabridged by, the FOIA in order to give complete relief where it is due. “With the express vesting of equitable jurisdiction in the District Court by § 552(a), there is little to suggest, despite the Act’s primary purpose, that Congress sought to limit the inherent powers of an equity court.” Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (dictum). One can imagine circumstances, such as where an agency simply refuses to conform its actions to the known requirements of the Act in order to deter requests for information by repetitive litigation, that would tempt a court to use any or all of “the usual weapons in the arsenal of equity,” Bannercraft Clothing Co. v. Renegotiation Board, 466 F.2d 345, 354 (1972), rev’d on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). In the case at bar, however, it is unnecessary to decide whether the District Court would be so empowered. Appellee initiated the process culminating in this action by a letter requesting access to documents relating to eleven specifically identified research grants. When the request had been denied in part and administrative appeal exhausted, appellee filed a complaint the prayer of which requested that the court declare the plaintiff’s" }, { "docid": "9513822", "title": "", "text": "to authorize termination of Columbia’s inspection services. In Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974), the Court held that courts should not enjoin renegotiation proceedings pending the resolution of an asserted FOIA claim as the “effect would be that renegotiation, and its aims, would be supplanted and defeated by an FOIA suit”. However, the Court declined to go so far as to rule that Congress in enacting the FOIA and providing certain remedies therein, meant to divest courts of their inherent equitable powers. Thus the court below was not without power to issue collateral injunctive relief if circumstances warranted. The question is whether it abused its discretion in entering such an injunction in these circumstances. As noted, FOIA was not enacted to provide litigants with an additional discovery tool. Sears, Roebuck & Co., supra; Bannercraft Clothing, supra at 24, 94 S.Ct. 1028; New England Medical Center Hospital, supra. It follows that the very serious step of enjoining an agency proceeding should not be taken merely because the maximum degree of disclosure permitted by the FOIA has not been ordered in time for possible use in that ongoing agency proceeding. We think it must ordinarily be demonstrated, at least, that without access during the proceeding to the information sought, the litigant faces a probability of, very serious, specific injury which cannot be averted by any of the administrative remedies available in the course of the proceeding. See Bannercraft Clothing, supra at 24, 94 S.Ct. 1028. In the present case Columbia claims that it will be unable to assert the Administrative Law Judge’s refusal to order disclosure of the documents as a defense to judicial enforcement of a USDA order depriving it of inspection services. Even accepting this as true, Columbia has still not shown a particularized need for the documents, the frustration of which will result in irreparable harm. The irreparable injury which Columbia sees at the end of the road is forced bankruptcy when its inspection services are withdrawn. But its inability to use the material sought in this" }, { "docid": "15740763", "title": "", "text": "Board v. Bannercroft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), the Supreme Court accepted the proposition that a district court could exercise jurisdiction to enjoin agency action pending the resolution of a FOIA claim. Although the Court declined to decide under what circumstances such an exercise of jurisdiction would be proper, it asserted that Congress’ express vesting of equitable jurisdiction in the district courts by § 552(a)(4) in no way limited the inherent powers of an equity court. Significant for present purposes is that FOIA’s central aim is to ensure an informed citizenry and to hold the governors accountable to the governed. Congress did not intend FOIA to function as a private discovery tool. See N. L. R. B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2326, 57 L.Ed.2d 159 (1978); Renegotiation Board, supra, 415 U.S. at 22, 94 S.Ct. at 1039. Quite appropriately, then, the district court’s denial of DOE’s motion to stay the disclosure order was premised on harm to the public and harm to the “letter and spirit of the FOIA” ■ — the Court specifically could “not find that Coastal would suffer substantial harm as a result of the granting of a stay.” Therefore, precisely because Coastal would not be penalized by failure to obtain immediate access to the documents, the “special circumstances” here are an insufficient justification for granting the procedurally-truncated “partial judgment” motion. Coastal’s special circumstances argument apparently encompasses its claim that the district judge’s order should be affirmed as an exercise of the court’s inherent power to control its docket. It contends that the power to move litigation expeditiously is simply the converse of the inherent power to stay; therefore, enjoining disclosure and striking the revised Vaughn index amounted to no more than a refusal to grant a stay. DOE, for its part, acknowledges the district court’s right to control its docket, but maintains that the agency has not violated any court order so as to merit such abrupt and final treatment. From a technical perspective, DOE may not have violated any" }, { "docid": "23233668", "title": "", "text": "PER CURIAM. This appeal arises under the Freedom of Information Act, 5 U.S.C. § 552. The plaintiff David Miller (Miller) requested the Federal Bureau of Investigation (the FBI or the Bureau) and the Justice Department to provide him with all documents relating to his complaint to the FBI that someone had wiretapped his telephone. The FBI released some 54 pages of material to the plaintiff, but, pursuant to exemptions 7(C) and (D) of the Act, §§ 552(b)(7)(C) & (D), the Bureau excised the names of persons interviewed in connection with the investigation, third parties named in those interviews, and FBI agents who took part in the investigation. The plaintiff brought suit to compel disclosure of the excised information. The district court granted the plaintiff’s motion for summary judgment, and ordered the FBI to disclose all excised material. 483 F.Supp. 883. The issue presented by this appeal is whether the trial court erred when it found that exemptions 7(C) and (D) were not applicable to the excised names. I. As a threshold matter, the plaintiff challenges this court’s jurisdiction of this appeal, claiming that the district court’s order requiring the FBI to turn over the excised information is not a final order, and thus is not appealable. A disclosure order in a FOIA suit is injunctive in nature. It is granted pursuant to 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction upon the district court, “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18, 20, 94 S.Ct. 1028, 1037, 1038, 39 L.Ed.2d 123 (1974). The courts of appeals have jurisdiction of appeals from interlocutory orders of the district court granting injunctions, pursuant to 28 U.S.C. § 1292(a). Thus we have jurisdiction of the present appeal regardless of whether other issues remain pending in the district court. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969," }, { "docid": "9407843", "title": "", "text": "witnesses was to enjoin its proceeding against the company. It casts its argument as an exhaustion requirement, citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), and asserting that Robbins Tire would suffer no irreparable injury if forced to challenge the Board’s action afterwards on appeal, 29 U.S.C. §§ 160(e)-(f). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); 51 St. John’s L.Rev. 251, 254 n. 17 (1977). We need not decide whether or when a district court adjudicating a FOIA claim may enjoin ongoing or prospective NLRB proceedings in an effort to compel the disclosure required by the Act. In this case, the district court did not enjoin the hearing. The Board argues that this was the effect of its order. But whether or not an order constitutes an injunction is a question that does not turn on the subjective importance attached to it by the defendant and his resulting action in the circumstances. Like similar orders in the more conventional discovery context, this one gave the NLRB a choice. It could produce the statements, it could proceed without resort to the testimony of these particular affiants or it could forego the hearing. While the unpalatability of this choice might well form part of the rationale for finding a substantive exemption under FOIA, it cannot be transformed into a jurisdictional question by the Board’s decision to hold its hearing in abeyance. Exemption 7(A) The Board asserts that the statements of prospective witnesses fall within exemption 7(A), which protects against disclosure of “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, . . . .” 5 U.S.C. § 552(b)(7)(A). The issue here is whether pre-hearing disclosure of the contents of statements made by those prepared to testify in support of the Board’s case would actually “interfere” with the Board’s case. In Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (CA1) (per curiam), cert. denied, 429 U.S. 895, 97 S.Ct." }, { "docid": "13099923", "title": "", "text": "litigation of a FOIA claim. The Court recognized that even though the FOIA’s stress was on disclosure, it was on disclosure for the public, and not for the negotiating self-interested contractor. 415 U.S. at 22, 94 S.Ct. 1028. But see Davis, Administrative Law of the Seventies § 3A.6-1 (1976). The Court then stated that “[ijnterference with the agency proceeding opens the way to the use of the FOIA as a tool of discovery over and beyond that provided by the regulations issued by the Renegotiation Board for its proceedings. Discovery for litigation purposes is not an expressly indicated purpose of the Act.” 415 U.S. at 24, 94 S.Ct. at 1040 [citations omitted]. Following a similar approach, the United States Customs Court in a case involving the Customs Court rules, vis-a-vis the Government’s refusal to produce certain documents claimed under the FOIA, stated that the FOIA was not enacted to provide discovery procedures for obtaining information during litigation, and therefore, the Act did not create a judicial discovery privilege. Verrazzano Trading Corp. v. United States, 349 F.Supp. 1401 (Cust.Ct.1972). The court reasoned that had Congress intended the Act to apply to judicial discovery proceedings, there would be no need for the provisions giving aggrieved parties a right to redress through the federal district courts. 349 F.Supp. at 1403. The FOIA provides a comprehensive scheme for private parties to obtain agency records. The Act contemplates that a party seeking disclosure of agency records available under 5 U.S.C.A. § 552(a)(1), (2) shall request such records from the agency. If the agency then refuses this request, § 552(a)(4)(B) confers jurisdiction on the district court “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” See Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.1975). The burden is then on the agency to establish entitlement to one of the exemptions found in § 552(b). 5 U.S.C.A. § 552(a)(4)(B). See, e. g, B & C Tire Co., Inc. v. Internal Revenue Service, 376 F.Supp. 708 (N.D.Ala.1974). In a criminal case the discovery proceedings are" }, { "docid": "13099924", "title": "", "text": "F.Supp. 1401 (Cust.Ct.1972). The court reasoned that had Congress intended the Act to apply to judicial discovery proceedings, there would be no need for the provisions giving aggrieved parties a right to redress through the federal district courts. 349 F.Supp. at 1403. The FOIA provides a comprehensive scheme for private parties to obtain agency records. The Act contemplates that a party seeking disclosure of agency records available under 5 U.S.C.A. § 552(a)(1), (2) shall request such records from the agency. If the agency then refuses this request, § 552(a)(4)(B) confers jurisdiction on the district court “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” See Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.1975). The burden is then on the agency to establish entitlement to one of the exemptions found in § 552(b). 5 U.S.C.A. § 552(a)(4)(B). See, e. g, B & C Tire Co., Inc. v. Internal Revenue Service, 376 F.Supp. 708 (N.D.Ala.1974). In a criminal case the discovery proceedings are governed by the Federal Rules of Criminal Procedure, promulgated pursuant to 18 U.S.C.A. §§ 3771, 3772. Since Congress has the power to regulate the practice and procedures in the federal courts, Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 9, 61 S.Ct. 422, 85 L.Ed. 479 (1941), had Congress intended to amend the explicit discovery procedures set forth in Rule 16, Fed.R.Crim.P., by enactment of the FOIA, it undoubtedly could have done so. No such intention appears in either the Act or its legislative history. Cf. Title Guarantee Co. v. NLRB, 534 F.2d 484, 491 (2d Cir. 1976) (U.S. appeal pending) (dealing with the effect of the FOIA on discovery under the National Labor Relations Act). We hold that the discovery provisions of the Federal Rules of Criminal Procedure and the FOIA provide two independent schemes for obtaining information through the judicial process. Although information obtained through the FOIA may be useful in a criminal trial, we find that the FOIA was not intended as a device to delay ongoing litigation or to enlarge" }, { "docid": "13091627", "title": "", "text": "Board’s policy rejecting pre-trial discovery, see 29 C.F.R. § 102.118 (1976). Judge Orrick in Capital Cities Communications, Inc. v. NLRB, supra, 409 F.Supp. at 977, aptly called the policy “trial by ambush”. But like Judge Orrick, we find no evidence that Congress, in enacting or amending FOIA, meant to force a different policy upon this agency. To the contrary, the history shows recognition that law enforcement agencies will, in varying degrees, deem it advisable to close their files to suspected violators prior to trial, and that the FOIA is not intended to prevent such policies while enforcement proceedings are pending or in prospect. Exemption 7(A) applies whenever disclosure would “interfere” with an enforcement proceeding, and it is difficult to conceive of a greater interference than one which would involve the courts in arbitrating the Board’s control of what documents to retain and what to surrender immediately prior to an enforcement proceeding. As Judge Oakes wrote in Title Guarantee: “We cannot envisage that Congress intended to overrule the line of cases dealing with labor board discovery in pending enforcement proceedings by virtue of a back-door amendment to the FOIA when it could very easily have done so by direct amendment to Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), or by a blanket enactment pertaining to discovery in pending administrative enforcement proceedings.” [Footnote omitted.] Title Guarantee Co. v. NLRB, supra, 534 F.2d at 491-92. Accord, Goodfriend Western Corp. v. Fuchs, supra, 535 F.2d at 147. The thrust of FOIA is to provide public information, not benefit to private litigants. See NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 143 n.10, 95 S.Ct. 1504; Renegotiation Board v. Bannercraft Clothing Corp., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1973); Capital Cities Communications, Inc. v. NLRB, supra, 409 F.Supp. at 977. Reading Exemption 7(A) as permitting the nondisclosure of all or most open file documents in a pending unfair labor practices case does not signal a return to the discredited permanent exemptions which led Congress in 1974 to tighten 7(A). See 120 Cong.Rec. 17034-35 (1974)." }, { "docid": "4311829", "title": "", "text": "litigation ... should not enlarge his access to agency records.”). . The proper way for Metex to resolve the issue that underlies the \"injunction” would appear to be a motion for an order compelling discovery from Botvin and ACS pursuant to Rule 37. Me-tex could, of course, also seek discovery of the materials at issue in this case directly from the government. Depending on how the district court disposed of these requests, certification under § 1292(b) would then be available if prompt appellate resolution of the issue were considered necessary. Apparently, Metex’s attorney entertained some doubt about whether the denial of the injunction against Botvin was immediately appealable because at the hearing in district court he requested § 1292(b) certification from the judge. See Appendix at 167a. This request was never pursued. . Because we conclude that Metex’s motion to compel Botvin to consent to the release of the FBI materials was, in the context of this case, a motion to compel discovery, we note but need not resolve our serious concerns about whether the district court would have had jurisdiction under FOIA to consider the motion had it been unrelated to discovery in civil litigation. The power of a district court in resolving claims brought under FOIA is defined generally in 5 U.S.C. § 552(a)(4)(B): \"On complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” The extent to which a district court has authority to exercise other injunctive power pursuant to FOIA is unclear. Compare Giza v. Secretary of Health, Education & Welfare, 628 F.2d 748, 751 (1st Cir.1980) (discussing the express grant of injunctive power in § 552(a)(4)(B) and concluding that \"a district court simply has no authority ... to compel an agency to generate explanatory material”) with Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 20, 95 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974) (\"With the express vesting of equitable jurisdiction in the court by § 552(a), there is little to suggest, despite the Act’s" } ]

[ { "docid": "2897037", "title": "", "text": "anyone connected with Arrow Barge or Nacirema with respect to the unsafe condition of the hold and no evidence of any request that something be done by the ship to correct it. Accepting and applying the decision in Mitchell v. Trawler Racer, Inc., supra, as in Puerto Seguro Cia. Naviera, S. A., v. Pitsillos, decided by this court June 20, 1960, 279 F.2d 599, we conclude the lower court erred in charging the jury that, in order to maintain a seaworthy ship, the owner is not required to keep the appliances or work spaces which are inherently sound and seaworthy absolutely free at all times from transitory, occasional or immediate unsafe conditions resulting from their use; also, that the jury could consider the absence of evidence of complaints as to the condition of the hold in determining whether the ship was or was not “reasonably safe” and seaworthy. In the Mitchell case, the court held that if the accumulation of slime and fish gurry created an unsafe condition, the shipowner would be responsible even though he had no notice, either actual or constructive, of the condition and a new trial was awarded on the issue of unseaworthiness. Similarly, in the case at bar, if the jury should find that there existed a slippery condition, even though transitory and immediate, resulting from the use of soap in the loading operation, the jury should determine further whether such conditions rendered the ship unsea-worthy and, if so, whether the plaintiff’s injury was attributable to the unsea-worthy condition. But, in determining seaworthiness, no significance attaches to the fact that no one complained of the alleged unsafe condition. Neither notice of the condition nor lack thereof was material. The instruction as shown above in italics was in conflict with the Supreme Court’s pronouncement that “what is evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.” Plaintiff contends that since he was injured as a direct result of the unsafe, slippery and unseaworthy condition, the trial court should have directed a verdict in his favor. The evidence as to the cause of injury" } ]

[ { "docid": "5826025", "title": "", "text": "(S.D.N.Y. 1960). The court—not persuaded by the plaintiffs “confused and conjectural” account — concluded that reasonable fitness means that “a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled to a deck that is not unreasonably slippery.” Id. at 100. The court went on that “[i]t seems only fair that men who make their livelihood on the water can be expected to cope with some of the hazardous conditions that must prevail even on a seaworthy vessel. Any stricter rule would require the intervention of traveling companions to guide and protect sailors in going about the vessel to perform their duties.” Id. In Rice v. Atlantic Gulf & Pac. Co., 484 F.2d 1318 (2d Cir.1973), the plaintiff slipped on an oily metal stairway leading to the main deck. The trial judge found no proof of unseaworthiness. The Second Circuit reversed, but cautioned that it was not holding that “every case where a seaman claims injuries as the result of slipping on oil or grease must as a matter of law be submitted to the jury,” as there are circumstances where oil accumulation is normal, and a “seaman is not entitled to a deck or ladder that is free of all oil or grease.” Id. at 1321. In other words, only “unreasonable oil” or “unreasonable slipperiness” will render a deck defective. Presumably, in some circumstances, some amount of oil—or water or other like substances—is an ordinary “peril of the sea” that seamen must cope with, unless reasonable safety is disturbed. See Rodriguez v. Coastal Ship Corp., 210 F.Supp. 38, 44 (S.D.N.Y.1962) (finding oil that had accumulated from morning until afternoon rendered vessel unseaworthy, as it was the “duty of officers to cause its removal either by placing sawdust or a chemical absorbent material thereon” and “the vessel was also unsea-worthy because it lacked adequate devices or appurtenances to minimize or arrest the drippings”); Calo, 57 F.3d at 161; Gilmore & Black, supra, at 400 (discussing when “[c]ases of ‘transitory unseaworthiness’— soap, oil, grease, jello or what not on floor, deck, or steps—might be regarded" }, { "docid": "15042189", "title": "", "text": "so constructed as to keep the hazard of oil accumulation to a minimum, most jurors would see a difference in seaworthiness as be tween a vessel whose well-constructed steps bore the oil accumulation of days and another whose similar steps had only a film of oil unavoidably accumulated since a cleaning a few hours before. We read Mitchell as saying they may nevertheless hold the owner liable in the latter case, not that they must. What Mitchell did forbid was the Court’s instructing them to make any distinction based on whether the condition had or had not arisen until the voyage commenced, or on whether it had or had not been brought home to the owner.” From the foregoing authorities it seems clear that the presence of grain on the deck of a vessel is not, of itself, unseaworthiness in the eyes of the law. Its transitory presence alone is irrelevant. There are, as may be expected in a confused field, authorities suggesting to the contrary. In Orlando v. Prudential Steamship Corp., S.D.N.Y., 214 F.Supp. 116, where a marine carpenter slipped on grain on the deck of a vessel, the district judge found as a fact (214 F.Supp. 119): “11. The presence of grain on the deck on the SS San Angelo Victory at the time of the libelant’s fall constituted an unseaworthy condition.” There was, in Orlando, no indication as to how the grain arrived on deck. We can only say that, in line with Pinto, the trier of fact had the prerogative to make such a finding, not that he was required to do so. Libelant relies upon the celebrated case of Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. The principal distinction is the absence of the hatch covers in Pope & Talbot. True, the injured party slipped on grain but it was the combination of circumstances whieh supported a finding of both unseaworthiness and negligence. We do not believe that the present controversy is analagous to Pope & Talbot. Nor is there merit to libelant’s claim in consideration of" }, { "docid": "22228317", "title": "", "text": "of Sieracki and therefore one to whom the benefits of the warranty of seaworthiness applies. Williams however challenges the court’s finding of liability under that doctrine. The Supreme Court has made clear that the owner’s duty to furnish a seaworthy ship is absolute. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. Whether the owner had notice of an unseaworthy condition, is not an issue in such a claim. Rice v. Atlantic Gulf & Pacific Co., 2 Cir.1973, 484 F.2d 1318; Webb v. Dresser Industries, 5 Cir. 1976, 536 F.2d 603. Williams’ contention, therefore, that there is no evidence the vessel’s superintendent or other personnel knew of the existence of the substance on the deck is irrelevant to unseaworthiness liability. As discussed above in Section VI, the record contains ample evidence of the accumulation of oil, grease, and water on the “wavy” metal deck of the barge from which the district court could conclude that a slippery condition rendered the deck unreasonably safe for its intended use. Rice v. Atlantic Gulf & Pacific Co., 484 F.2d at 1321. Nevertheless, both Hill and Williams argue that there was insufficient credible evidence of the unsafe condition. They contend that Holt’s testimony was suspect because of his relationship to Davis in that his uncle was married to the plaintiff’s mother. They also challenge the court’s conclusions on liability because of evidence that the deck of the barge was cleaned the day before the accident and that a pump tank was attached to the base of the derrick to catch the exhaust materials of oil and water. From our review of the record however we cannot find fault with the district court’s decision to give greater weight to the testimony of Holt and Davis than to the circumstantial evidence adduced by the defendants. The court’s findings of fact as to liability are not clearly erroneous. VIII. PROXIMATE CAUSE The defendants contest the court’s finding that a fall by the plaintiff on the deck of the barge was the cause of his back condition. The plaintiff’s treating physician, Dr." }, { "docid": "2897033", "title": "", "text": "conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian policy.” At page 549, 80 S.Ct. at page 932: “There is no suggestion in any of the decisions * * * that the duty is any less with respect to an un-seaworthy condition which may be only temporary.” (Emphasis supplied.) At pages 549, 550, 80 S.Ct. at page 933, (referring to Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601): “That decision is thus specific authority for the proposition that the shipowner’s actual or constructive knowledge of the unseaworthy condition is not essential to his liability. That decision also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent.” (Emphasis supplied.) In summary, as we interpret the Mitchell decision, the Supreme Court held that the character of the duty to provide a seaworthy vessel is absolute; that what is evolved is a complete divorcement of unseaworthiness liability from concepts of negligence; that, in determining whether the ship there involved was unseaworthy by reason of the slippery condition of the rail, it was immaterial how the slime got there, who put it there, how long it had been there or whether the shipowner knew it was there; that if the ship was thus rendered unseaworthy and the plaintiff suffered injury because of the condition, the shipowner was liable. In the instant case the trial judge, in instructing the jury as to the issue presented by question No. 1 (the unseaworthiness of the No. 4 hold), told- the jury that since ancient times a vessel and her owner are liable to indemnify a seaman for an injury caused by the unseaworthiness of a vessel or failure to supply and keep in order the proper appliances appurtenant to the ship; that this obligation has been extended to benefit the longshoremen who are injured in the course of their employment while aboard the ship, even though they are employed by independent contractors;" }, { "docid": "2897030", "title": "", "text": "the evidence as to how the accident occurred presented a question of fact which, by agreement, was submitted for jury determination. If the jury concluded from the evidence that a slippery, dangerous and hazardous condition was created by the use of soap which was supplied by the stevedoring company and that the plaintiff was injured because he slipped on the soap, a question would be presented as to whether such use of this soap created an unseaworthy condition. Thus the court’s instruction to the jury as to the character of the warranty of seaworthiness is vitally important. It is now well settled that a shipowner’s obligation to maintain a seaworthy vessel, traditionally owed by shipowners to seamen, extends to a stevedore who is injured while aboard and loading the ship, although employed by an independent stevedoring contractor engaged by the owner to load the ship. For purposes of the liability for injury, a stevedore is a seaman because he is doing a seaman’s work, incurring seamen’s hazards, and is entitled to a seaman’s traditional protection. Thus the shipowner’s warranty of seaworthiness extended to the benefit and protection of Grzybowski as fully and completely as though he had been a member of the ship’s crew. Furthermore, a shipowner is not relieved of his responsibility and obligation even though the appliances, appurtenances and equipment used in the work are furnished by the stevedores themselves. Here the pine jelly soap, the use of which is asserted by the plaintiff to have created an unseaworthy condition which caused his injury, was furnished by Nacirema from its gear shop. Arrow Barge contended that, if any such unsea-worthy condition existed, it was purely immediate and transitory, created by the stevedores themselves, including the plaintiff, for which it was not responsible. But this same contention was flatly rejected and repudiated in Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. In that case, plaintiff, a member of the ship’s crew, was injured as he prepared to leave the ship then in port, when he stepped upon the ship’s rail which was" }, { "docid": "14031896", "title": "", "text": "there was this causal connection between the unseaworthiness or negligence and injury to the plaintiff.” Nor do we find any inconsistency between the instructions thus given by Judge Dimock and the dictum in Pierce, supra. In that case the court was dealing with a third party claim that had been reserved for decision after the conclusion of the trial of the issue of unseaworthiness between a longshoreman, who was injured when he slipped on an oil or grease spot, and the owner of the lighter on which the longshoreman slipped. In the posture of the ease in this Court there was no occasion to review the finding of unseaworthiness for reasons stated in the opinion. The dictum relied upon by appellant is as follows (264 F.2d at page 139): “The decision here to be made is so straitly confined that it must be apparent that there is no present holding that the presence of an oil spot on the deck of a vessel renders the latter unseaworthy, ipso facto. If the issue were here open to review, all attendant circumstances would require careful analysis and consideration. Cf. Poignant v. U. S., 2 Cir., 225 F.2d 595 and Ross v. The Zeeland, 4 Cir., 240 F.2d 820.” This appears to us to do no more than state what is implicit in the holding of the Supreme Court in Mitchell. True it is that the Supreme Court in Mitchell held the duty with respect to seaworthy conditions is no “less with respect to an unseaworthy condition which may be only temporary.” 362 U.S. at page 549, 80 S.Ct. at page 932. But the mere use of the word “temporary” in Judge Dimock’s instructions cannot fairly be construed to mean that the rule applicable to a permanent condition is a different one. The plain fact is that the case did involve a temporary condition and not a permanent one, and it was natural and proper to instruct the jury on the subject of the shipowner’s duty as applicable to the case in hand. The reason for the reversal in Grzybowski v. Arrow Barge" }, { "docid": "22770880", "title": "", "text": "is that unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant, to the owner’s liability for personal injuries resulting from it. We had occasion to emphasize this basic distinction again in Mitchell v. Trawler Racer, 362. U. S. 539. There the unseaworthy condition causing the plaintiff’s injury was a ship’s rail made slippery by the presence of fish gurry and slime. The trial judge had instructed the jury that the shipowner could be held liable for this un-seaworthy condition only upon a finding that the slime and gurry had been' on the ship’s rail for a time long enough for the respondent to have learned • about it and to have removed it. The Court of Appeals affirmed the judgment for the defendant shipowner, holding that at least with respect to “an unseaworthy condition which arises only during the progress of the voyage,” the shipowner’s obligation “is merely to see that reasonable care is used under the circumstances . . . incident to the correction of the newly arisen defect.” 265 F. 2d 426, 432. We reversed the judgment, holding that the trial and appellate courts had been wrong in confusing liability for negligence with liability for unseaworthiness. What has evolved in our case law, we said, is the “complete divorcement of unseaworthiness liability from concepts of negligence.” 362 U. S., at 550. Trawler Racer involved the defective condition of a physical part of the ship itself. But our cases have held that the scope of unseaworthiness is by no means so limited. A vessel’s condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo, or the manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not be reasonably fit for her intended service. What caused the petitioner’s injuries in the present case, however, was not the condition of" }, { "docid": "12463903", "title": "", "text": "types of food during night hours, with no crew member being assigned the duty of cleaning the galley following its use, if a slippery substance falls upon the floor and an accident occurs several hours thereafter as a result thereof, this can hardly be considered a transitory condition of unseaworthiness as expressed in Ross v. Zeeland, 4 Cir., 240 F.2d 820. As is suggested by Gilmore and Black, The Law of Admiralty, p. 332: “Cases of ‘transitory unseaworthiness’- — soap, oil, grease, jello or what not on floor, deck or steps — might be regarded as ‘normal perils of the sea’, against which the owner does not insure, at least until someone has had time to clean up the mess. But the gradual disappearance from the unseaworthy cases' of any requirement of notice, which the Boudoin opinion [Boudoin v. Lykes Bros. S.S. Co., Inc., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354] highlights by not even discussing the point, suggests strongly that the owner’s absolute liability for anything that can be called, unseaworthiness, as distinguished- f i;om a peril of the sea, will not be affected by the fact that the condition arose during a voyage, whether at á port of call or on the high seas, and whether or not the 'condition came, or ought to have come, to the attention of the master or an officer before the accident.” Applying this logic to the present facts, it cannot be said that a galley, left in an untidy condition with no one charged with the responsibility of cleaning up, constitutes a condition which is a “normal peril of the sea”. The failure to provide a safe place to work is, in this case, a breach of the warranty of seaworthiness. In so holding, the Court does not agree with libellant’s proctor who argues that a mere transitory condition of unseaworthiness gives an absolute right of recovery. Poignant v. United States, 2 Cir., 225 F.2d 595. Respondent argues the lack of proof in establishing that any can of cooking oil was found on the galley stove, or any oil" }, { "docid": "15002222", "title": "", "text": "to the extreme of requiring any such absolute freedom of all parts of a vessel from all foreign substances at all times, as, for example, Interstate Commerce Commission Rule 153 under the Boiler Inspection Act, 45 U.S.C.A. § 23, has been held to demand with respect to locomotives and tenders, Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411; Calabritto v. New York, N. H. & H. R. Co., 2 Cir., 287 F.2d 394, certiorari denied 1961, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387. The Court said, “ * * * the owner is [not] obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use,” 362 U.S. at page 550, 80 S.Ct. at page 933, and remanded the case “for a new trial on the issue of unseaworthiness.” What was the question the jury was to try on the remand? Clearly it was not the mere presence or absence of slime and gurry on the rail — if the Supreme Court had meant that, it would have said so. Appellant urges it was whether slime and gurry were present and their presence rendered the ship unseaworthy. In one sense that is so; but what was the jury to consider in answering the latter half of the question ? Most jurors would see a difference in the seaworthy condition of a vessel whose rails had been left coated with slime and gurry for hours, and of another, generally spick-and-span, on which a mishap had suddenly created a slippery condition, Must they be told that this distinction, relevant in common sense, is irrelevant in law? So here, assuming the engine room steps were so constructed as to keep the hazard of oil accumulation to a minimum, most jurors would see a difference in seaworthiness as between a vessel whose well-constructed steps bore the oil accumulation of days and another whose similar steps had only a film of oil unavoidably accumulated since a cleaning" }, { "docid": "22990028", "title": "", "text": "for damages. 87 F.Supp. 203. We think that the district court was right in holding that in the absence of evidence of negligence or unseaworthiness the respondent was not liable for failing to provide a safe place to work. “If,” as Chief Judge Kirkpatrick said in his opinion, 87 F.Supp. 203, 205, “the place where a seaman works is. unsafe that is a fact which may establish that the ship was unseaworthy or that t'he employees were negligent, but” there is “no basis for holding that there is a third and separate ground of liability in this regard.” In the .present case the district court concluded that the evidence failed to establish negligence. There being no evidence as to how long a time the Jello had been on the step prior to the accident, a finding that the ship’s officers were negligent in failing to remove it after they knew or should have known of its existence would, we think, not hav-e been warranted. Nor can we say that the district court erred in concluding that unseaworthiness had not been proved. Undoubtedly the owner has a duty at the commencement of the voyage to furnish a vessel and appliances which are seaworthy in all respects. It is equally settled that he has a continuing duty to keep the vessel’s appliances in order and to maintain the vessel itself in a seaworthy condition during the voyage. His liability for failure to per form these duties is a species of'liability without fault not limited by conceptions of negligence. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. We agree with the district court, however, that the doctrine of unseaworthiness does not extend so far as to require the owner to keep appliances which are inherently sound and seaworthy absolutely free at all times from transitory unsafe conditions resulting from their use, as happened in the case before us. Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 66 S.Ct. 455, 88 L.Ed. 561, is urged to the contrary. But that case is clearly distinguishable. There the" }, { "docid": "2897031", "title": "", "text": "Thus the shipowner’s warranty of seaworthiness extended to the benefit and protection of Grzybowski as fully and completely as though he had been a member of the ship’s crew. Furthermore, a shipowner is not relieved of his responsibility and obligation even though the appliances, appurtenances and equipment used in the work are furnished by the stevedores themselves. Here the pine jelly soap, the use of which is asserted by the plaintiff to have created an unseaworthy condition which caused his injury, was furnished by Nacirema from its gear shop. Arrow Barge contended that, if any such unsea-worthy condition existed, it was purely immediate and transitory, created by the stevedores themselves, including the plaintiff, for which it was not responsible. But this same contention was flatly rejected and repudiated in Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. In that case, plaintiff, a member of the ship’s crew, was injured as he prepared to leave the ship then in port, when he stepped upon the ship’s rail which was slippery and covered at that point with slime and fish gurry which remained there from earlier unloading operations. The trial court instructed the jury that, in order to allow recovery upon either the negligence or unseaworthy count in the complaint, the jury must find that the slime and gurry had been on the ship’s rail long enough for the shipowner to have learned of it and to have removed it. We quote from the Mitchell decision, 362 U.S., as follows: At page 542, 80 S.Ct. at page 928: “In its present posture this case thus presents the single issue whether with respect to so-called ‘transitory’ unseaworthiness the shipowner’s liability is limited by concepts of common-law negligence.” At pages 548, 549, 80 S.Ct. at page 932 (quoting from Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 862): “It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by" }, { "docid": "2897036", "title": "", "text": "owner’s duty to maintain a seaworthy ship. But in a further explication of the unseaworthiness doctrine the lower court, not then having the benefit of the decision in Mitchell v. Trawler Racer, Inc., supra, and the principles so pointedly established thereby, told the jury: “The doctrine of unseaworthiness does not extend so far as to require the owner to keep the appliances or work spaces which are inherently sound and seaworthy absolutely free ■at all times from transitory, occasional, immediate unsafe conditions resulting from their use.” (Emphasis supplied.) The trial court further charged that, in determining whether the ship was un-seaworthy and whether it was or was not reasonably safe, the jury could consider the following facts: There were several gangs of stevedores working; there was a gang “carrier” over each gang, a foreman on the ship and a superintendent on the dock supervising the loading; there was no evidence in the case of any complaint made by the plaintiff or any of the other workmen to the gang carrier, by the gang carrier to anyone connected with Arrow Barge or Nacirema with respect to the unsafe condition of the hold and no evidence of any request that something be done by the ship to correct it. Accepting and applying the decision in Mitchell v. Trawler Racer, Inc., supra, as in Puerto Seguro Cia. Naviera, S. A., v. Pitsillos, decided by this court June 20, 1960, 279 F.2d 599, we conclude the lower court erred in charging the jury that, in order to maintain a seaworthy ship, the owner is not required to keep the appliances or work spaces which are inherently sound and seaworthy absolutely free at all times from transitory, occasional or immediate unsafe conditions resulting from their use; also, that the jury could consider the absence of evidence of complaints as to the condition of the hold in determining whether the ship was or was not “reasonably safe” and seaworthy. In the Mitchell case, the court held that if the accumulation of slime and fish gurry created an unsafe condition, the shipowner would be responsible even though" }, { "docid": "15002227", "title": "", "text": "slippery or other hazardous condition does or does not leave a vessel “reasonably suitable for her intended service,” 362 U.S. at page 550, 80 S.Ct. at page 933, on the evidence in the case and under the standards of the trade; if that question is answered in the negative, it is then no defense either that the condition had come into existence only during the voyage or, if it had, that it had not existed “for á sufficient length of time, from which the inference might be drawn that defendant, or his servants, in the exercise of due care, ought to have discovered” its presence, 265 F.2d at page 427. If our understanding of Mitchell is correct, Judge Weinfeld’s charge con formed to it. The charge cannot fairly be read as importing notions of common-law negligence into the jury’s determination of unseaworthiness. Earlier the judge had instructed that “even the exercise of diligence or reasonable care does not relieve the shipowner of the duty to supply a seaworthy vessel,” although “the standard to be applied is not absolute perfection, but only reasonable fitness for intended use.” His remarks about the special nature of an engine room and the lack of any requirement that the vessel have a crew member in constant readiness to wipe off the most minute accumulation of oil were designed to clarify the meaning of this standard as applied to the case in hand. Nowhere did he suggest that plaintiff must prove that defendant’s supervisory personnel knew or ought to have known that oil or grease had accumulated. He left it to the jury to determine “whether, considering place,” to wit an engine room, “and circumstance,” that is, the evidence as to the special design of the steps “to prevent the accumulation of foreign substances,” the practice of cleaning the steps, and the absence of oil or grease shortly before the accident, “the area was reasonably fit to permit Pinto to perform his tasks with reasonable safety.” If it be said that a jury inexpert in the ways of engine rooms cannot be expected to determine how" }, { "docid": "15042187", "title": "", "text": "is absolute, seaworthiness still involves a determination of whether the particular alleged condition or operation rendered the vessel “reasonably fit for [her] intended use.” The teachings of Mitchell do not point to any theory of absolute liability for shipboard accidents. In Blier v. United States Lines Co., 2 Cir., 286 F.2d 920, cert. den. 368 U.S. 836, 82 S.Ct. 32, 7 L.Ed.2d 37, a seaman was boarding a vessel when he slipped on a grease smear on one of the steps leading from the top of the bulwarks of the vessel to the main deck. Urging the authority of Mitchell, plaintiff complained of an erroneous instruction to the jury reading, in part, as follows: (286 F.2d 924): “The owner of a vessel has an absolute duty to provide a seaworthy vessel. This means that the defendant was obligated to furnish and maintain safe working conditions. Seaworthiness is reasonable fitness for the particular voyage, or [as] directed to the present case, reasonable fitness for the particular uses which the plaintiff was making of the ship at the time of his alleged injury. “In considering whether the vessel was unseaworthy due to the presence of grease on the steps of the gangway, the following rules should be followed: “A vessel is not unseaworthy by reason of a temporary condition, if even so the vessel was reasonably safe and suitable. In order to be seaworthy, a vessel need not meet a standard of perfection. It need only be reasonably safe for the purpose to which it is to be put.” Subsequent to Blier the Second Circuit again had occasion to point out that “a vessel does not become unseaworthy by reason of a temporary condition caused by a transient substance if even so the vessel was as fit for service as similar vessels in similar service.” Pinto v. States Marine Corp., 2 Cir., 296 F.2d 1, cert. den. 369 U.S. 843, 82 S.Ct. 874, 7 L.Ed.2d 847. In construing the opinion in Mitchell, the Second Circuit in Pinto had this to say (296 F.2d 6): “So here, assuming the engine room steps were" }, { "docid": "14710112", "title": "", "text": "appliances.” Grillea was distinguished on the ground that there the negligent act had terminated and had created a condition. It would seem, thus, that in order to recover a longshoreman must show that an “unseaworthy condition” was in existence at the time the injury was sustained. The fact that the unseaworthy condition was created by the negligence of a fellow longshoreman does not absolve the shipowner from liability if it is shown that the “active negligence” had come to rest and the resulting “condition” was in existence. The jury should have been informed that even if an unseaworthy condition had been created by a negligent act of a fellow longshoreman, the ship owner may still be liable. Grillea v. United States, 232 F.2d 919 (2 Cir. 1956); Rich v. Ellerman & Bucknall S.S. Co., 278 F.2d 704 (2 Cir. 1956). At the same time the judge might properly have instructed the jury further that if the injury resulted from negligent mishandling of a seaworthy appurtenance and if the injury occurred before any unseaworthy condition resulted, then the shipowner would not be liable in an action based on breach of the warranty of seaworthiness. Spinelli v. Isthmian S.S. Co., 326 F.2d 870 (2 Cir. 1964); Puddu v. Royal Netherlands Steamship Company, 303 F.2d 752 (2 Cir. 1962); Rawson v. Calmar S.S. Corp., 304 F.2d 202 (9 Cir. 1962). Refusal to specifically answer the jury’s eminently understandable question compounded the error already created by the erroneous supplemental charge, and a new trial therefore is necessary. In view of this conclusion, it is unnecessary for us to consider and pass upon appellants’ other assignments of error. Reversed and remanded. . See, e. g., Seas Shipping Co. v. Sieracki, supra; Mahnich v. Southern S.S. Co., supra; Green v. Orion Shipping and Trading Co., 139 F.Supp. 431 (D.Md. 1956). . Indeed, it can be argued that this was the only instruction going to this critical point upon the facts of the case. Nowhere in his principal remarks, except for general remarks that a shipowner owes a non-delegable duty to maintain a seaworthy ship, did the" }, { "docid": "15002224", "title": "", "text": "a few hours before. We read Mitchell as saying they may nevertheless hold the owner liable in the latter case, not that they must. What Mitchell did forbid was the Court’s instructing them to make any distinction based on whether the condition had or had not arisen until the voyage commenced, or on whether it had or had not been brought home to the owner. The duty may be no “less with respect to an unseaworthy condition which may be only temporary”, 362 U.S. at 549, 80 S.Ct. at 932, but the question remains whether such a temporary condition in fact fenders the vessel not “reasonably suitable for her intended service”, 362 U.S. at 550, 80 S.Ct. at 933. The Court’s decision that it was inconsequential, as a matter of law, that the dangerous condition did not arise until a moment after the sailing did not logically carry with it a conclusion that it was similarly inconsequential, as a matter of fact, that the condition arose only a moment before the accident; whether such a momentary condition would or would not render the vessel unseaworthy would be for the trier of the facts to say. The statement, at page 550 of 362 U.S., at page 933 of 80 S.Ct. that Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, “also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent” must be read along with the immediately preceding one that the Alaska Steamship “decision is thus specific authority for the proposition that the shipowner’s actual or - constructive knowledge of the unseaworthy.condition is not essential to his liability.” A conclusion that liability for a temporary condition is not different in legal nature from liability for a permanent one does not mean that the duration of the condition, the measures prescribed for dealing with it, and the feasibility of achieving perfect safety at all times, are irrelevant to deciding whether the owner had met his obligation to furnish “a vessel reasonably" }, { "docid": "15002223", "title": "", "text": "presence or absence of slime and gurry on the rail — if the Supreme Court had meant that, it would have said so. Appellant urges it was whether slime and gurry were present and their presence rendered the ship unseaworthy. In one sense that is so; but what was the jury to consider in answering the latter half of the question ? Most jurors would see a difference in the seaworthy condition of a vessel whose rails had been left coated with slime and gurry for hours, and of another, generally spick-and-span, on which a mishap had suddenly created a slippery condition, Must they be told that this distinction, relevant in common sense, is irrelevant in law? So here, assuming the engine room steps were so constructed as to keep the hazard of oil accumulation to a minimum, most jurors would see a difference in seaworthiness as between a vessel whose well-constructed steps bore the oil accumulation of days and another whose similar steps had only a film of oil unavoidably accumulated since a cleaning a few hours before. We read Mitchell as saying they may nevertheless hold the owner liable in the latter case, not that they must. What Mitchell did forbid was the Court’s instructing them to make any distinction based on whether the condition had or had not arisen until the voyage commenced, or on whether it had or had not been brought home to the owner. The duty may be no “less with respect to an unseaworthy condition which may be only temporary”, 362 U.S. at 549, 80 S.Ct. at 932, but the question remains whether such a temporary condition in fact fenders the vessel not “reasonably suitable for her intended service”, 362 U.S. at 550, 80 S.Ct. at 933. The Court’s decision that it was inconsequential, as a matter of law, that the dangerous condition did not arise until a moment after the sailing did not logically carry with it a conclusion that it was similarly inconsequential, as a matter of fact, that the condition arose only a moment before the accident; whether such a" }, { "docid": "14710105", "title": "", "text": "injuries resulting from unseaworthiness does not depend on negligence. It is absolute and non-delegable. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872 (1946); Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601 (1954). Consequently, the same standard — an absolute duty without regard to negligence — is owed to a longshoreman by the steamship company in an action for breach of the warranty of seaworthiness. This court held in Grillea v. United States, 232 F.2d 919 (2 Cir. 1956), that long shoremen themselves could render a ship pro tanto unseaworthy and make the vessel owner liable for injuries to one of them. See also, Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120 (1954); Alaska S.S. Co. v. Petterson, supra; Crumady v. The Joa-chim Hendrik Fisser, supra. In Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601 (1954), the Supreme Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independ-' ent contractor over which the owner had no control. That decision, thus, is specific authority for the proposition that the shipowner’s actual or constructive knowledge of the unseaworthy condition is not essential to his liability. The trend in maritime law, which is to increase the rights of maritime workers and not to limit them, was recently illustrated in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926 (1960). In Mitchell, the Court held that a “transitory” unseaworthy condition, one which is temporary rather than permanent in nature, comes within the scope of the unseaworthiness doctrine, even though the owner had no notice of its existence. Under prior law, notice was necessary for liability under the circumstances present in Mitchell. See, e. g., Cookingham v. United States, 184 F.2d 213 (3 Cir. 1950). Whether a defect which results in an unseaworthy condition is patent or latent does not alter the liability of a shipowner to provide a seaworthy vessel. Boudoin" }, { "docid": "5826020", "title": "", "text": "decision that it was inconsequential, as a matter of law, that the dangerous condition did not arise until a moment after the sailing did not logically carry with it a conclusion that it was similarly inconsequential, as a matter of fact, that the condition arose only a moment before the accident; whether such a momentary condition would or would not render the vessel unseawor-thy would be for the trier of the facts to say.... A conclusion that liability for a temporary condition is not different in legal nature from liability for a permanent one does not mean that the duration of the condition, the measures prescribed for dealing with it, and the feasibility of achieving perfect safety at all times, are irrelevant to deciding whether the owner had met his obligation to furnish “a vessel reasonably suitable for her intended service.” Id. Judge Friendly concluded that “[m]ost jurors would see a difference in the seaworthy condition of a vessel whose rails had been left coated with slime and gurry for hours, and of another, generally spick- and-span, on which a mishap had suddenly created a slippery condition. Must they be told that this distinction, relevant in common sense, is irrelevant in law?” Pinto, 296 F.2d at 5-6. The court read Trawler Racer to hold that a jury “may nevertheless hold the owner liable in the latter case, not that they must.” Id. at 6. Thus, duration is a factor that may be considered. Under Pinto, if a condition arises immediately before an accident, a finding of unseaworthiness is not required, but it is certainly permitted if the condition nonetheless amounts to unfitness. Indeed, that some element of time is incorporated into unseaworthiness can be seen in the contrast between transitory and so-called instant unseaworthiness due to “operational negligence,” which the Second Circuit has described “as a ‘single act of negligence which [does] not of itself create a condition longlasting enough to constitute unseaworthiness.’ ” Calo, 57 F.3d at 161; see Puddu, 303 F.2d at 757 (Hays, J., concurring) (“A ship is not unseaworthy because it has glass in a window" }, { "docid": "15042188", "title": "", "text": "the time of his alleged injury. “In considering whether the vessel was unseaworthy due to the presence of grease on the steps of the gangway, the following rules should be followed: “A vessel is not unseaworthy by reason of a temporary condition, if even so the vessel was reasonably safe and suitable. In order to be seaworthy, a vessel need not meet a standard of perfection. It need only be reasonably safe for the purpose to which it is to be put.” Subsequent to Blier the Second Circuit again had occasion to point out that “a vessel does not become unseaworthy by reason of a temporary condition caused by a transient substance if even so the vessel was as fit for service as similar vessels in similar service.” Pinto v. States Marine Corp., 2 Cir., 296 F.2d 1, cert. den. 369 U.S. 843, 82 S.Ct. 874, 7 L.Ed.2d 847. In construing the opinion in Mitchell, the Second Circuit in Pinto had this to say (296 F.2d 6): “So here, assuming the engine room steps were so constructed as to keep the hazard of oil accumulation to a minimum, most jurors would see a difference in seaworthiness as be tween a vessel whose well-constructed steps bore the oil accumulation of days and another whose similar steps had only a film of oil unavoidably accumulated since a cleaning a few hours before. We read Mitchell as saying they may nevertheless hold the owner liable in the latter case, not that they must. What Mitchell did forbid was the Court’s instructing them to make any distinction based on whether the condition had or had not arisen until the voyage commenced, or on whether it had or had not been brought home to the owner.” From the foregoing authorities it seems clear that the presence of grain on the deck of a vessel is not, of itself, unseaworthiness in the eyes of the law. Its transitory presence alone is irrelevant. There are, as may be expected in a confused field, authorities suggesting to the contrary. In Orlando v. Prudential Steamship Corp., S.D.N.Y., 214 F.Supp." } ]

[ { "docid": "17902414", "title": "", "text": "Cir., 227 F.2d 332, 335; Woo Wai v. U. S., 9 Cir., 223 F. 412, 415. For instance, an attack on a wooden Indian cannot be an assault and battery (though it might constitute malicious destruction of property), and hence a combination and agreement to do so cannot be a conspiracy to commit assault and battery, although the defendants, before acting, thought the “victim” a living person. Nor is it punishable as attempted rape if the defendant is legally incapable of committing the substantive crime because he is less than fourteen years of age. See Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503, 42 L.R.A. 589, while on the other hand, if impoteney prevents consummation, the attempt is criminal. See Hunt v. State, 114 Ark. 239, 169 S.W. 773, L.R.A.,1915B, 897. Such distinctions underlie the decision in the celebrated case of People v. Jaffe, 185 N.Y. 497, 78 N.E. 169, 9 L.R.A., N.S., 263, where the defendant was acquitted of attempting to receive stolen goods, because, though unknown to him, the goods were not stolen, and he could not be guilty of the substantive offense. Cf. the earlier case of People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699. See also O’Kelley v. U. S., 8 Cir., 116 F.2d 966, where it was held that there could be no conspiracy to commit larceny of an interstate shipment, because there could be no substantive violation inasmuch as the goods had lost their interstate character. Similarly, if one thinks that a uniformed doorman is a police officer and bribes him not to tag his car, it is no crime, and neither the attempt nor the conspiracy can be, for there is an inherent or legal impossibility of consummating the offense, although the act itself was completed. Likewise, where one mistakenly believes a certain individual is the union representative of his employees, the misconception cannot sufficiently negative the impossibility of committing the substantive offense so as to provide the basis for a conspiracy conviction. But where the object of a bribe is a draft board official of the United" } ]

[ { "docid": "22350826", "title": "", "text": "as well as others, to commit offenses against the United States; that is: Paragraph one, “To unlawfully take by force, violence and intimidation, from the person and presence of another, money belonging to and in the care, custody, control, management and possession of a bank insured by the Federal Deposit Insurance Corporation, in violation of Title 18, U.S.Code Section 2113(a). “Two, to embezzle, steal, unlawfully take and unlawfully carry away goods, that is money, moving as and which were part of and which constituted an interstate shipment of freight and property in violation of Title 18 U.S.Code, Section 659.” And three, “To transport in interstate and foreign commerce money of the value of $5,000 or more, knowing that the money had been stolen in violation of Title 18, U.S.Code, Section 2314.” It was part of the conspiracy that the Defendants would and did devise and approve a plan whereby Victor Gerena also known as “Aguila,” an employee guard for the Wells Fargo Armored Service Corporation, would rob Wells Fargo in West Hartford to obtain money for the Macheteros and its members to be used to fund its operations. (March 28, 1989 Tr. at 147-48.) Thereafter, the court repeatedly instructed the jury to focus on the conspiracy thus alleged in the indictment: [i]n the present case the Defendants are charged with conspiracy to violate Sections] 659, 2113 and 2314 of Title 18, U.S.Code. In short, the object of the alleged conspiracy was to rob the Wells Fargo and then transport the stolen money safely out of the United States in an effort to fund Macheteros operations. The essential elements of the offense of conspiracy, each of which the Government must prove beyond a reasonable doubt are, one, that two or more persons conspired to commit an offense against the United States; namely, violations of Sections 659, 2113, 2114 [sic] of Title 18. Paragraph two, that the Defendant knowingly participated in this conspiracy with the intent to commit the offenses that were the object of the conspiracy. And three, that during the existence of the conspiracy, at least one of the overt" }, { "docid": "2723554", "title": "", "text": "that Shively in lending the bank’s money to Pardee did intend to defraud the bank, by getting money from it for his personal use, which the bank would not have permitted had it known the circumstances. Although there thus was enough evidence to convict Shively of violating section 656, we must consider whether either he or Pardee could be convicted of conspiring to violate sections 656 and 1014, as charged in the indictment, when neither could be convicted of a completed offense under section 1014 because of the government’s failure to prove insured status. Since no instruction was asked or given requiring that the jury, to convict of conspiracy, find that the objective of the conspiracy was to violate both statutes rather than either, maybe there was just a harmless variance between pleading and proof. Cf. United States v. Brown, 521 F.Supp. 511, 520 and n. 6 (W.D.Wis.1981). But assuming the government had to prove a conspiracy to violate section 1014 as well as section 656, we think it succeeded. “[I]t does not matter that the ends of the conspiracy were from the beginning unattainable.” United States v. Giordano, 693 F.2d 245, 249 (2d Cir.1982). See United States v. Waldron, 590 F.2d 33, 34 (1st Cir.1979); United States v. Rose, 590 F.2d 232, 235-36 (7th Cir.1978); United States v. Senatore, 509 F.Supp. 1108, 1110-11 (E.D.Pa.1981); LaFave & Scott, Handbook on Criminal Law 475 (1972) (“the conspiracy cases have usually gone the simple route of holding that impossibility of any kind is not a defense”). Although Platenburg dismissed the conspiracy charge along with the substantive charge, it did so without any separate discussion of the former; and the impossibility of committing the substantive offense is no more a defense to conspiracy in the Fifth Circuit than anywhere else. See United States v. Albert, 675 F.2d 712, 715 (5th Cir.1982). This is not to say that the government can use the general federal conspiracy statute (18 U.S.C. § 371) to punish all conspiracies to defraud banks, just because most banks are federally insured. But it is enough if the bank is insured" }, { "docid": "13183958", "title": "", "text": "a charge of conspiracy in this circuit. A conspiracy to defraud the United States under 18 U.S.C. § 371 need not involve an agreement to defraud the government out of money or property, but only requires an agreement to impede the government’s lawful functions. Section 371 does not require that the government actually be harmed; it reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.” Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966) quoting Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253, 54 L.Ed. 569 (1910). In the instant case, the purpose of the conspiracy was to impede the lawful function of the IRS, that is, the collection of taxes, and the existence of a real taxpayer is therefore immaterial. Furthermore, this court has rejected the doctrine of legal impossibility as a defense to a charge of conspiracy. Appellants compare their case to Ventimiglia v. United States, 242 F.2d 620 (4th Cir.1957), in which the Fourth Circuit held that there can be no conspiracy to commit a crime when it is legally impossible to commit the underlying substantive offense. Appellants argue that there is Ninth Circuit support for the legal impossibility doctrine of Ventimiglia in Lubin v. United States, 313 F.2d 419 (9th Cir.1963). Appellants’ reliance on Lubin is misplaced. Lubin did not in fact involve a defense of legal impossibility. In that case, the crucial issue was whether the alleged action constituted a federal offense. The defendants had been convicted of a conspiracy to steal property belonging to banks. That conviction was reversed because the money in the armored truck that the defendants conspired to rob did not in fact belong to a bank. The court found that, although the robbery scheme was a taking punishable by state law, the crime was not within the federal statute: This would be an offense under the laws of California .... It would be a federal offense only if the objective was to take “property or money * * * belonging" }, { "docid": "8644178", "title": "", "text": "agreement to commit an offense against the United States. Ingram v. United States, 360 U.S. 672, 677-678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); Pereira v. United States, supra. 18 U.S.C. § 2113(c) reads “Whosoever receives, possesses, conceals, stores, barters, sells, or disposes of any property or money * * * knowing the same to have been taken from a bank * * 18 U.S.C. § 2113(f) then states “As used in this section the term ‘Bank’ means any member of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation”. There is ample evidence that the appellant knew that the money was stolen from a banking institution. The question is whether it must be shown that the appellant knew the additional facts of the exact bank robbed or that the bank was FDIC insured in order for him to have knowledge of the substantive offense. That question must be answered in the negative. Knowledge of receiving money stolen from a banking institution is sufficient to meet the substantive requirements of § 2113(c). Proving that the bank was insured by the FDIC is simply an additional element of jurisdictional proof which must be shown by the Government at the trial. United States v. Allegretti, 340 F.2d 243 (7th Cir. 1964); Ahlstedt v. United States, 325 F.2d 257 (5th Cir. 1963); Cook v. United States, 320 F.2d 258 (5th Cir. 1963). Cf. Clark v. United States, 213 F.2d 63, 65 (5th Cir. 1954). In the instant case the parties stipulated that the bank was insured by the FDIC. Likewise, we find that a sufficient showing of appellant’s cooperation with the other defendants with the knowledge that the money was stolen from a banking institution is enough to show knowing agreement to commit the substantive offense. In light of this discussion, we find that there was sufficient evidence to establish a single conspiracy and that the evidence was also sufficient to show" }, { "docid": "10262785", "title": "", "text": "of completing the substantive offense: The district judge thought that it would be impossible to establish the necessary link to interstate commerce for a business property that exists only in the “minds of government agents.” But a “misapprehension” by the conspirators as to facts that make it impossible for them to commit the crime that is the object of the conspiracy does not make the conspiracy less culpable. Id. at 250; see also id. at 249 (“[F]ederal jurisdiction does not depend on proof that the objective of the conspiracy has been, or could have been, achieved.”); United States v. Shively, 715 F.2d 260, 267 (7th Cir.1983) (bank fraud conspiracy conviction upheld even though bank was not federally insured, because defendants thought it was federally insured), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984). Since a sham business may be the victim of a conspiracy, a fortiori an existing business that was never in harm can be the victim of a conspiracy as well. Wallace’s attempt to rely on United States v. Blackmon, 839 F.2d 900 (2d Cir.1988), and United States v. Morgenstern, 933 F.2d 1108 (2d Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1188, 117 L.Ed.2d 430 (1992), is unavailing. In Blackmon, this Court reversed the defendants’ bank fraud convictions because the victim of the defendants’ fraud was not the bank, but a woman whom the defendants had duped into withdrawing her money from the bank. The bank withdrawals in Blackmon were completely legal, 839 F.2d at 906-07, which is no small ground for distinguishing that case. Here, had the facts been as Wallace believed, the withdrawal of money from Citibank would have been illegal, since stolen checks were the source of the funds. And unlike Blackmon, there can be no question here that one of the intended victims of the conspiracy was Citibank, and that Citibank would have suffered actual harm had the facts been as Wallace believed. Morgenstern can give Wallace no comfort, because the defendant’s bank fraud conviction was upheld there on the ground that he had intentionally defrauded the bank and" }, { "docid": "22805367", "title": "", "text": "the defendant took money belonging to a bank, credit union, or savings and loan, (2) by using force and violence or intimidation, (3) the deposits of the institution were insured by the Federal Deposit Insurance Corporation (“FDIC”), and (4) in committing the offense, the defendant assaulted any person, or put in danger the life of any person by the use of a dangerous weapon. See 18 U.S.C. § 2113(a) & (d). Viewing the evidence in the light most favorable to sustaining the jury’s guilty verdict, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we conclude there was indeed sufficient evidence from which a reasonable jury could find Wright guilty beyond a reasonable doubt of conspiracy to commit armed bank robbery and armed bank robbery. The DNA evidence alone overwhelmingly establishes that Wright was one of the individuals who robbed the Wells Fargo Bank. 2. Using or Carrying a Firearm During a Crime of Violence The crime of using or carrying a firearm during a crime of violence requires proof of an underlying predicate offense — that is, a crime of violence — during which a firearm was used or carried. See United States v. Castaneda, 9 F.3d 761, 765 (9th Cir.1993). 18 U.S.C. § 924(c)(3) defines a crime of violence for purposes of § 924(c) as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Armed bank robbery qualifies as a crime of violence because one of the elements of the offense is a taking “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). The only remaining issue is whether the evidence at trial established that Wright used or carried a firearm during the robbery. A bystander outside the bank testified that he saw a robber exit the bank, limping and carrying an Uzi or Mac-10 type machine gun. The L.A. County Sheriffs Department criminalist testified that the pattern of bloodstains left on the bank floor indicated that one of the robbers was wounded, and DNA" }, { "docid": "8041886", "title": "", "text": "even impossible, for a conspiracy to achieve its ends once the police have detected or infiltrated it. But that circumstance is not dispositive in determining whether a three-level reduction is warranted under section 2X1.1(b)(2), because that section determines punishment based on the conduct of the defendant, not on the probability that a conspiracy would have achieved success. As the First Circuit has stated, “near accomplishment of the criminal object normally poses enough risk of actual harm, and reveals enough culpability” to defeat “the reduction available for conspiracies and attempts that have not progressed very far.” United States v. Chapdelaine, 989 F.2d 28, 36 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 696, 126 L.Ed.2d 663 (1994). Many pre-existing circumstances may doom a conspiracy, without rendering the conspirators any less culpable for their acts. In Chapdelaine, a scheduling miscalculation rendered it impossible for the conspirators to accomplish their heist because the armored truck had long departed; yet the conspirators, having arrived at the scene bearing guns, disguises and other instruments of crime, were not entitled to a reduction. Id. at 35-36. In United States v. Toles, 867 F.2d 222, 223 (5th Cir.1989), a would-be bank robber, having demanded money from a teller under threat of physical violence, was not entitled to a reduction simply because the teller never had the keys to the bank vault. In Halmos v. United States, 872 F.Supp. 762, 766 (D.Hawaii 1995), an armed robber fled after realizing that the bank teller from whom he had just demanded money (“or you will die”) happened to be his sister-in-law; that the perpetrator was bound to be identified by a relative in the bank did not entitle him to a reduction. In arguing that he is entitled to a three-level reduction because the conspiracy was doomed from an early date, Medina is seeking the benefit of the constable’s diligence. Yet as the cases we have cited illustrate, what matters under the Guidelines is that Medina and his co-conspirators were “about to complete” the crime, not that they were “about to succeed.” The fact that Medina’s scheme was monitored" }, { "docid": "8854124", "title": "", "text": "the bank of funds. Id. at 625. We are called upon in the case before us to answer the question addressed so many times before: When does the withdrawal or “taking” of funds from a federal bank constitute federal bank larceny? Or, more specifically, does the defendant’s conduct under the facts of this case fit wdthin the activity proscribed by the federal bank larceny statute? As we have noted, when faced with this question in Simmons and Goldblatt, we answered in the affirmative. Here, we must draw the line once again, this time examining Howerter’s conduct in light of the facts of the case. Was what Howerter did “taking and carrying away with intent to steal or purloin?” We conclude that it was not. We find two basic distinguishing facts present here: first, the unchallenged fact of Ho-werter’s authority to do precisely what he did vis-a-vis the bank-namely, withdraw PTSA’s funds; and second, the absence of any fraudulent conduct directed at the bank, by way of a scheme to deprive it of funds or otherwise. In the cases we discuss above, we found the statute to apply because the defendant had obtained money by false pretenses through a fraudulent scheme directed at the bank. In each case, we found that the defendant’s conduct constituted “taking and carrying away with intent to steal or purloin,” even though the traditional attribute of bank larceny, namely a “trespassory taking,” was not present. See e.g., United States v. Martin, 215 F.3d 470 (4th Cir.2000) (affirming bank larceny conviction based on robbery of an armored truck); United States v. Sacasas, 381 F.2d 451 (2d Cir.1967) (upholding multiple count conviction including bank larceny where defendants participated in a bank holdup). Here, there is no evidence of either tres-passory conduct constituting common law larceny, which is clearly covered by the statute, or of a fraudulent scheme that would make Howerter guilty of obtaining money by false pretenses, as in Bell, Simmons, and Goldblatt. To the contrary, there is no allegation of a lack of consent by the bank, and therefore, there was no trespassory conduct. And because" }, { "docid": "22805366", "title": "", "text": "armed bank robbery, and using or carrying a firearm during a crime of violence. 1. Conspiracy and Armed Bank Robbery To establish conspiracy, the government must show: (1) an agreement (2) to engage in criminal activity and (3) one or more overt acts in furtherance of the conspiracy. See 18 U.S.C. § 371. Knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction. See United States v. Ladum, 141 F.3d 1328, 1341 (9th Cir.), cert. denied, 525 U.S. 898, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998) and 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998). However, the government need not prove knowledge with direct evidence; circumstantial evidence and the inferences drawn from that evidence can sustain a conspiracy conviction. See id. Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt even a slight connection of a defendant with the conspiracy is sufficient to convict the defendant of knowing participation. See id. at 1381. To prove armed bank robbery, the government must show: (1) the defendant took money belonging to a bank, credit union, or savings and loan, (2) by using force and violence or intimidation, (3) the deposits of the institution were insured by the Federal Deposit Insurance Corporation (“FDIC”), and (4) in committing the offense, the defendant assaulted any person, or put in danger the life of any person by the use of a dangerous weapon. See 18 U.S.C. § 2113(a) & (d). Viewing the evidence in the light most favorable to sustaining the jury’s guilty verdict, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we conclude there was indeed sufficient evidence from which a reasonable jury could find Wright guilty beyond a reasonable doubt of conspiracy to commit armed bank robbery and armed bank robbery. The DNA evidence alone overwhelmingly establishes that Wright was one of the individuals who robbed the Wells Fargo Bank. 2. Using or Carrying a Firearm During a Crime of Violence The crime of using or carrying a firearm during a crime of violence requires" }, { "docid": "23553661", "title": "", "text": "Cir.1976); United States v. Kelly, 507 F.Supp. 495, 501 (E.D.Pa.1981), even though it did demonstrate such a loss. Likewise, it was not necessary for the Government to prove that the intended victim of the fraud was actually defrauded. United States v. Hopkins, 716 F.2d 739, 746 n. 10 (10th Cir.1982). Further, it was not necessary for the Government to demonstrate that appellant personally benefited from his scheme. United States v. Williams, 728 F.2d 1402, 1405 (11th Cir.1984); United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973); Freeman v. United States, 20 F.2d 748, 749 (3d Cir. 1927). A jury could have found from the Government’s evidence that: (1) PSFS is a federally insured institution; (2) appellant’s misrepresentations to PSFS amounted to a scheme perpetrated by means of false pretenses which resulted in a loss to the bank; and (3) appellant acted knowingly. Inasmuch as the Government sustained the burden of proof and, most importantly, that the jury was properly instructed, we find no reason to disturb appellant’s bank fraud conviction. With regard to the charge of bank larceny, 18 U.S.C. § 2113(b) states: Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank ... or any savings and loan association, shall be [guilty of an offense against the United States]. The essential elements of the bank larceny statute are that: (1) appellant took and carried away from the bank money, property or any other thing of value, (2) the money, property, or thing of value was of a value exceeding $100 and such was in the care, custody and control of the bank, and (3) the defendant intended to steal or purloin the money, property or thing of value. We find that the trial judge properly instructed the jury on this count. Appendix at 280a-282a. Once again appellant urges that we focus our attention on the question of authorization, and again" }, { "docid": "13183959", "title": "", "text": "the Fourth Circuit held that there can be no conspiracy to commit a crime when it is legally impossible to commit the underlying substantive offense. Appellants argue that there is Ninth Circuit support for the legal impossibility doctrine of Ventimiglia in Lubin v. United States, 313 F.2d 419 (9th Cir.1963). Appellants’ reliance on Lubin is misplaced. Lubin did not in fact involve a defense of legal impossibility. In that case, the crucial issue was whether the alleged action constituted a federal offense. The defendants had been convicted of a conspiracy to steal property belonging to banks. That conviction was reversed because the money in the armored truck that the defendants conspired to rob did not in fact belong to a bank. The court found that, although the robbery scheme was a taking punishable by state law, the crime was not within the federal statute: This would be an offense under the laws of California .... It would be a federal offense only if the objective was to take “property or money * * * belonging to” a federally protected bank ..., and the crucial question is whether the evidence shows such a conspiracy. Lubin, 313 F.2d at 420. In fact, this court does not follow the Fourth Circuit’s decision in Ventimiglia. In United States v. Sanford, 547 F.2d 1085 (9th Cir.1976), we rejected legal impossibility as a defense to a charge of conspiracy to transport in interstate commerce animals killed in violation of federal law. The appellees were charged with substantive violations of federal hunting laws and with conspiracy. They had acted as guides for a hunting expedition during which game was killed by undercover federal agents. The district court dismissed the substantive and conspiracy counts because the killing of the animals had been “authorized” by the federal government and was not therefore in violation of the law. On appeal, we rejected the legal impossibility defense: The district court dismissed this [conspiracy] count on the ground that appellees cannot be charged with conspiracy to commit a substantive crime when the scheme, if completed, does not constitute an offense against the" }, { "docid": "927681", "title": "", "text": "to rob a bank and the offense of robbing that same bank are not merged into a single substantive crime. Where both offenses are charged, we have held that separate consecutive sentences may be imposed in each without double jeopardy. Johnstone v. United States, 5 Cir. 1969, 418 F.2d 1094. This is true even where the “overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. * * * The agreement to do an unlawful act is even then distinct from the doing of the act.” Pinkerton v. United States, supra, 328 U.S. at 644, 66 S.Ct. at 1182. Compare Glass v. United States, 10 Cir. 1965, 351 F.2d 678 (rule may be different under offense of “aiding and abetting” bank robber, for 18 U.S.C.A. § 2 provides that “aider and abetter” be treated as principal). Appellant’s argument that in effect he was convicted of robbing and receiving is therefore without merit. Since conspiracy to rob is not merged with the offense of robbery, we see no reason to hold that the conspiracy count is merged with the substantive crime of receiving the proceeds of a robbery. Absent such a merger, the Milanovich doctrine is inapplicable. Cheers’ separate convictions for conspiracy to rob a bank and receiving stolen money from that bank are consequently valid. Appellant also argues that the evidence on conspiracy was insufficient to exclude any hypothesis other than guilt. We have carefully reviewed the record and find that contrary to appellant’s contentions there was sufficient evidence upon which the jury could have based its determination that appellant participated in a conspiracy to rob the Grenada Bank. See United States v. Duke, 5 Cir. 1970, 423 F.2d 387, 389; Roberts v. United States, 5 Cir. 1969, 416 F.2d 1216; Nelson v. United States, 5 Cir. 1969, 415 F.2d 483, cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754. The judgment is affirmed. . Several co-defendants were also charged in the indictment. Thus, Count 1 additionally charged Josie Mae Austin, Shirley Mister, and Charles Taylor (a/k/a Charles Flowers). Count 2, robbing the" }, { "docid": "22350825", "title": "", "text": "we note that the charge proposed by defendants themselves referred on occasion to “a” conspiracy or “an” existing conspiracy. The quoted excerpts of the charge actually given by the court cannot properly be assessed in isolation; they must be considered in the context of the charge as a whole, and when so considered, the charge was appropriate. Prior to the statements emphasized by appellants, the court’s charge had in fact focused the jury’s attention precisely on the conspiracy charged in the indictment. The court had begun by stating that in count 16, “[a]ll five Defendants are charged with conspiracy to violate federal law,” and by tracking the language of that count: Paragraph 3 states that between on or about March 19, 1983 and August 30, 1985, the Defendants, except Paul Weinberg, were members of a group that called itself the Macheteros and funded its operations and activities, in part,, through economic expropriations, including robbery. Paragraph 4 alleges that said Defendants did willfully, unlawfully and intentionally combine, conspire, confederate and agree together and with each other, as well as others, to commit offenses against the United States; that is: Paragraph one, “To unlawfully take by force, violence and intimidation, from the person and presence of another, money belonging to and in the care, custody, control, management and possession of a bank insured by the Federal Deposit Insurance Corporation, in violation of Title 18, U.S.Code Section 2113(a). “Two, to embezzle, steal, unlawfully take and unlawfully carry away goods, that is money, moving as and which were part of and which constituted an interstate shipment of freight and property in violation of Title 18 U.S.Code, Section 659.” And three, “To transport in interstate and foreign commerce money of the value of $5,000 or more, knowing that the money had been stolen in violation of Title 18, U.S.Code, Section 2314.” It was part of the conspiracy that the Defendants would and did devise and approve a plan whereby Victor Gerena also known as “Aguila,” an employee guard for the Wells Fargo Armored Service Corporation, would rob Wells Fargo in West Hartford to obtain money" }, { "docid": "1931260", "title": "", "text": "out the conspiracy. That is matter of proof.” 86 F.2d at page 46. To the same effect see Marron v. U. S., 9 Cir., 8 F.2d 251, and Luxenberg v. U. S., 4 Cir., 45 F.2d 497. In discussing the allegations of overt acts contained in the conspiracy count of this indictment we disregard for present purposes the allegations relative to the making of false entries in the books of the bank, and confine ourselves to the allegations relative to the alleged conversations with Canaday and Waters, the alleged refusal of the defendant Westbrook, to send out bank statements regularly, and the alleged giving by Mrs. Simmington of her personal check to W. L. Peek. If any one of these allegations is sufficient, the conspiracy count may stand as far as an allegation of an overt act is concerned. We think that all of these allegations are sufficient as allegations of overt acts. Whether the Government can prove them or not, and whether or not it can show that they were in fact undertaken to carry the alleged conspiracy into effect are, of course, entirely different questions. Admittedly, it is somewhat difficult to see how conversations relative to reimbursing the bank for existing money shortages would have been in furtherance of a scheme to steal money from the bank, but we do not feel that we can say as a matter of law that they could not, in some way or another, have furthered said alleged scheme. The same comment can be made with respect to the allegation that Mrs. Simmington gave one W. L. Peek (not identified other than by name) her personal check for $1,400. On the other 'hand, it is clear, to us at least, how a refusal on the part of Mr. Westbrook to send out bank statements could and would have furthered the defendants’ alleged conspiracy. It is a well known fact that many, if not most, bank frauds and embezzlements involve falsification of the individual accounts of depositors, usually savings accounts, and that it is necessary for the concealment of the scheme that the" }, { "docid": "2232374", "title": "", "text": "(3d Cir.1992), and we have employed its principles on several occasions. See, e.g., id.; Cicco, 10 F.3d at 984-85; Everett, 700 F.2d at 908. Moreover, the majority of federal courts have now embraced the MPC test for attempts as well. See Cruz-Jiminez, 977 F.2d at 102 n. 8 (citing cases); Dressier, supra, at § 27.09[A], .We are aware of only three federal appellate decisions even implying that legal impossibility is a defense to conspiracy, but none of these cases is probative of the issue before us. First, in Ventimiglia v. United States, the Fourth Circuit reversed the convictions of three defendants accused of conspiring to violate a Taft-Hartley Act provision forbidding the payment of money by an employer to \"any representative of any of his employees.” 242 F.2d 620 (4th Cir.1957). Because the defendants had paid a person who was not, in fact, a \"representative of\" their employees, the court held that the conviction for conspiracy was legally impossible. However, the defendants in that case knew that the individual in question was not a \"representative\" within the meaning of the statute. Id. at 266. Therefore, the court’s comments regarding legal impossibility were entirely in dicta; the convictions were reversed because the defendants did not even have the specific intent needed to sustain a charge of conspiracy. Second, in O’Kelley v. United States, the Eighth Circuit held that several defendants could not be convicted of a conspiracy to steal goods in interstate commerce where the goods were not in interstate commerce. 116 F.2d 966, 968 (8th Cir.1941). However, this statement was also dicta, because there was no jurisdiction to prosecute the defendants absent proof of an effect on interstate commerce, and, as in Ventimiglia, there was no showing that the defendants possessed the requisite criminal intent. Finally, in Woo Wai v. United States, the Ninth Circuit reversed a conviction for a conspiracy to smuggle aliens into the U.S., because, inter alia, the act would not have been a crime even if completed. 223 F. 412, 414-15 (9th Cir.1915). Yet Woo Wai was an entrapment case, and any references to the impossibility" }, { "docid": "8041887", "title": "", "text": "to a reduction. Id. at 35-36. In United States v. Toles, 867 F.2d 222, 223 (5th Cir.1989), a would-be bank robber, having demanded money from a teller under threat of physical violence, was not entitled to a reduction simply because the teller never had the keys to the bank vault. In Halmos v. United States, 872 F.Supp. 762, 766 (D.Hawaii 1995), an armed robber fled after realizing that the bank teller from whom he had just demanded money (“or you will die”) happened to be his sister-in-law; that the perpetrator was bound to be identified by a relative in the bank did not entitle him to a reduction. In arguing that he is entitled to a three-level reduction because the conspiracy was doomed from an early date, Medina is seeking the benefit of the constable’s diligence. Yet as the cases we have cited illustrate, what matters under the Guidelines is that Medina and his co-conspirators were “about to complete” the crime, not that they were “about to succeed.” The fact that Medina’s scheme was monitored by the police from an early stage does not render him and his co-conspirators any less accountable for arriving at the construction company’s doorstep armed and ready to execute their plan. See United States v. Yellowe, 24 F.3d 1110, 1112 (9th Cir.1994) (affirming denial of reduction where defendant attempted to defraud credit card holders using computers that were supplied surreptitiously by Secret Service and that were never connected to bank’s computer system); United States v. Johnson, 962 F.2d 1308, 1313-14 (8th Cir.1992) (affirming denial of reduction where federal agents were waiting in bank’s parking lot for conspirators), cert. denied, 507 U.S. 974, 113 S.Ct. 1418, 122 L.Ed.2d 788 (1993); Chapde- laine, 989 F.2d at 35 (affirming denial of reduction where conspirators were monitored by police from inception of scheme to rob armored truck); see also U.S.S.G. § 2X1.1, Background (Where the substantive offense is “prevented on the verge of completion by the intercession of law enforcement authorities .... no reduction of the offense level is warranted.”). In this case, there is an abundance of evidence" }, { "docid": "8854125", "title": "", "text": "In the cases we discuss above, we found the statute to apply because the defendant had obtained money by false pretenses through a fraudulent scheme directed at the bank. In each case, we found that the defendant’s conduct constituted “taking and carrying away with intent to steal or purloin,” even though the traditional attribute of bank larceny, namely a “trespassory taking,” was not present. See e.g., United States v. Martin, 215 F.3d 470 (4th Cir.2000) (affirming bank larceny conviction based on robbery of an armored truck); United States v. Sacasas, 381 F.2d 451 (2d Cir.1967) (upholding multiple count conviction including bank larceny where defendants participated in a bank holdup). Here, there is no evidence of either tres-passory conduct constituting common law larceny, which is clearly covered by the statute, or of a fraudulent scheme that would make Howerter guilty of obtaining money by false pretenses, as in Bell, Simmons, and Goldblatt. To the contrary, there is no allegation of a lack of consent by the bank, and therefore, there was no trespassory conduct. And because there was no falsity or false pretenses directed at the bank in obtaining this consent, Howerter’s conduct was not fraudulent vis-a-vis the bank. Hence, Howerter’s conduct neither falls within the traditional purview of this statute, that is, common law larceny by way of a trespassory taking, nor within the expanded concept of bank larceny after Bell and Simmons, which includes a non-trespassory taking accomplished by way of a fraudulent scheme directed at the bank. We, therefore, conclude that Howerter’s conduct does not fit within the parameters of the statute. We note, also, that we need not decide the precise contours of the statutory provision regarding “taking,” but only hold that lacking any evidence of tres-passory or fraudulent conduct directed at the bank, there was no taking from the bank’s custody as contemplated by the statute. The District Court may have been misguided by its own recitation of the “elements” of the crime of bank larceny. It never really focused on the phrase that has been interpreted repeatedly, as we have noted, “takes and carries away," }, { "docid": "2723556", "title": "", "text": "although the defendants do not know it, see United States v. Feola, 420 U.S. 671, 676 n. 9, 95 S.Ct. 1255, 1260 n. 9, 43 L.Ed.2d 541 (1975); the federal concern with punishing the conspiracy in such circumstances is clear. And it is also enough if the defendants intend to defraud a federally insured bank, even though, unbeknownst to them, the bank has lost its insurance. That would be like a conspiracy to transport stolen property worth more than $5,000, which Carlson v. United States, 187 F.2d 366, 369-70 (10th Cir.1951) (discussed approvingly in our circuit’s decision in Rose, supra, 590 F.2d at 236), held was proved by showing that the defendants intended to steal property of that value although the actual value turned out to be less. The evidence that the defendants in this case intended to defraud a federally insured bank was strong. The bank, as they well knew, was a national bank, required by law to be federally insured; it had once been insured; it continued to represent to the public that it was insured; and for all anyone knew at the time of the offense it still was insured (in fact it still was, though the stipulation to that effect was not placed in evidence). Proof that it was insured during the period of the conspiracy was therefore not required to sustain the conspiracy convictions. Assuming, still, that the conjunctive wording of the conspiracy charge matters, there was enough evidence to convict Pardee of having conspired with Shively to violate section 656 as well as section 1014 — conspired, that is, to misapply bank funds. Pardee had substantial experience in the banking business, having been a director, an executive vice-president, and, briefly, the president of a bank. Unlike the borrower in Docherty, supra, 468 F.2d at 995, he knew — or so the jury could have found — that the promissory note falsely stated the purpose of the loan. And with all his banking experience he must have known that the bank would not knowingly have loaned him money for the use of a bank officer," }, { "docid": "8644177", "title": "", "text": "conspirators, he may be held responsible, not only for everything which may have been done thereafter, but also for everything done prior to his adherence to the criminal design. One need not participate in the formation of the conspiracy or even in the overt act which makes the crime complete. After a conspiracy has been formed, the adherence to the criminal design by a new confederate does not constitute a different conspiracy”. 264 F.2d at 281. Appellant further claims that he had no knowledge of the particular bank from which the money was stolen and, also, that he had no knowledge that the burglarized bank was insured by the Federal Deposit Insurance Corporation (FDIC). The logical assertion is that, not knowing these particulars, appellant could not know of the substantive offense. Thus, by not knowing of the substantive offense, appellant claims that he can’t be convicted of conspiracy to commit that offense. It is well settled that a conviction for conspiracy under 18 U.S.C. § 371 cannot be sustained unless there is proof of an agreement to commit an offense against the United States. Ingram v. United States, 360 U.S. 672, 677-678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); Pereira v. United States, supra. 18 U.S.C. § 2113(c) reads “Whosoever receives, possesses, conceals, stores, barters, sells, or disposes of any property or money * * * knowing the same to have been taken from a bank * * 18 U.S.C. § 2113(f) then states “As used in this section the term ‘Bank’ means any member of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation”. There is ample evidence that the appellant knew that the money was stolen from a banking institution. The question is whether it must be shown that the appellant knew the additional facts of the exact bank robbed or that the bank was FDIC insured in order for him to have knowledge of the substantive" }, { "docid": "927679", "title": "", "text": "PER CURIAM: Appellant, Mark Cheers Jr., was indicted in 1969 on two counts: Count 1, conspiracy to rob a bank insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C.A. § 371; and Count 3, receiving stolen money from the bank in violation of 18 U.S.C.A. §§ 2, 2113(c). The jury was instructed that it could find appellant guilty on both the conspiracy and the substantive counts, and the jury did so. Appellant was subsequently sentenced to three years on Count 1 and five years on Count 3, the sentences to run consecutively. Appellant first contends that under the principles of Milanovich v. United States, 1960, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, and Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, he cannot be convicted both of conspiracy to commit bank robbery and receiving stolen money from the bank. In those two cases the Supreme Court held that the separate sentence for receiving stolen money provided under the federal bank robbery statute was not designed to increase punishment for one who robs a bank; rather, it was simply designed to provide punishment for those who receive the loot from the robber. See also United States v. Suel, 5 Cir. 1970, 435 F.2d 1272; Thomas v. United States, 5 Cir. 1969, 418 F.2d 567. Under the federal statute, therefore, the acts of robbing and receiving when performed by the same individual become merged into a single substantive offense. Seizing upon the logic of these cases, appellant contends that “If Mark Cheers, Jr. was guilty of a conspiracy it was to rob the Grenada Bank. The robbery was consummated as an overt act by one of the conspirators and therefore became the act of Cheers. Cheers cannot be convicted of robbery and receiving * * Appellant’s syllogistic reasoning, however, ignores the well-established principle that “the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.” Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489. The offense of conspiracy" } ]

[ { "docid": "6687584", "title": "", "text": "police officer utilized excessive force depends on the totality of the circumstances surrounding the encounter. Frazell, 102 F.3d at 882. We must pay “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1871 (citing Garner, 471 U.S. at 8-9, 105 S.Ct. at 1699-700). In addition, the reasonableness inquiry is an objective one: The “particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. at 1872. Notwithstanding that the plaintiffs concede that the force used was reasonable up until the point that Mr. Phillips was placed in a prone position on the floor, we begin our analysis with the moment the officers arrived on the scene in order to place the officers’ conduct in context. When Officers Hintz and Riley initially arrived at the hotel, they were informed that a man was exhibiting erratic and disorderly behavior, damaging property and throwing items out of a window to the ground three floors below. Their own initial observation of Mr. Phillips confirmed what they had been told. Mr. Phillips was shaking like a leaf and sweating profusely. The officers noticed that the room was in disarray and that the fans had indeed been jettisoned from the window. Mr. Phillips was unresponsive and appeared agitated. Faced with this situation, the officers were entirely reasonable in grabbing Mr. Phillips’ wrists when informed that he had two ballpoint pens in his fists. Kassin testified that, due to Mr. Phillips’ size and the manner in which he held the pens, Mr. Phillips could have caused severe injury with the pens. The officers" } ]

[ { "docid": "23315178", "title": "", "text": "the district court, Morris was calm, remained out of reach of Bell, and backed up at the first sign Bell wanted to escalate the encounter. Such nonviolent conduct is not enough for any reasonable officer to believe Morris was committing an assault. Thus, Defendant is not entitled to qualified immunity on the unlawful arrest claim. B. Having resolved the issue of qualified immunity on Plaintiffs unlawful arrest claim, we now turn to her claim for excessive force. “Excessive force claims are governed by the Fourth Amendment’s ‘objective reasonableness’ standard.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th Cir.2010). Under this standard, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether the use of force is reasonable in a particular situation, we consider (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to flee. Id. at 396, 109 S.Ct. 1865. Although Plaintiff has introduced evidence the officers “fell into [Morris’s] midsection and back” and “picked [him] up three times by the handcuffs,” Plaintiff has focused her excessive force claim entirely on the initial tackle or “throw down.” Accordingly, we too focus there. 1. At least two of the Graham factors weigh strongly in Plaintiffs favor, while one weighs slightly in Defendant’s' favor. Under the first factor, we consider the severity of the crime at issue. Although we have concluded Defendant had no probable cause to arrest Morris for any crime, we do not merely assume no crime was at issue. Cortez, 478 F.3d at 1126. We judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Thus, in an excessive force inquiry, we ask" }, { "docid": "10713503", "title": "", "text": "shoulder when he ordered him to drop the gun. However, Mr. and Mrs. LaGrange both testified that he held the gun at his hip, pointing down, and never attempted to raise it. Viewing the disputed facts in a light most favorable to the nonmoving plaintiff, the defendants’ motion for summary judgment with respect to the plaintiffs false arrest/unlawful imprisonment claim must be denied. C. Excessive Force Officer Ryan next contends summary judgment should be awarded in his favor with respect to plaintiffs excessive force claim. Claims that law enforcement officers used excessive force in the course of an arrest “must be analyzed under the Fourth Amendment and its standard of objective reasonableness.” Anderson v. Branen, 17 F.3d 552, 558 (2d Cir.1994)(citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This standard requires evaluating whether the officers acted reasonably in light of the totality of facts and circumstances present at the scene. Anderson, 17 F.3d at 559; Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.1995). Factors to consider are the “severity of the crime at issue, whether the suspect possesses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The key inquiry then, in proving a claim for excessive force, is whether the defendant’s use of force was objectively reasonable. Questions of fact preclude summary judgment with respect to plaintiffs excessive force claim. It is understandable that plaintiff posed an initial threat by possessing a loaded pistol. However, he put the gun down immediately upon request. Thus, it is questionable whether he continued to present a threat to Officer Ryan. After he put the gun down, Officer Ryan was merely faced with a thin, frail, 83 year old man in his pajamas. There is no evidence that LaGrange attempted to flee or resist Officer Ryan. In addition, the parties dispute whether or not Officer Ryan ordered" }, { "docid": "531513", "title": "", "text": "grounded in the Fourth Amendment’s guarantee against unreasonable seizures.” Id. at 683. Here, as established above, Officers Boyd and Caban had probable cause to arrest Plaintiff. Accordingly, Plaintiff has not established, that his\" detention was unlawful, and the Court will grant the motion for summary judgnient as to Plaintiffs claim of false imprisonment. 3. Excessive Force When an “excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Such a claim is analyzed under an “objective reasonableness” standard. Id. at 388, 109 S.Ct. 1865. This standard “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. Excessive force, like probable cause, is usually a question of fact, but can be decided before trial if an officer’s use of force was objectively reasonable, even viewing the facts in favor of the plaintiff. See Abraham v. Raso, 183 F.3d 279, 289-90 (3d Cir. 1999). Here, there are two categories of facts: the facts involving allegations actually raised in the Second Amended Complaint, and the facts involving allegations raised for the first time in Plaintiffs response to the motion for summary judgment. In the Second Amended Complaint, the only factual allegation in support of Plaintiffs claim of excessive force is that Caban and Boyd “forcefully arrested plaintiff by intentionally placing the handcuffs on him very tightly,” ¶ 18, and that his handcuffing caused him “extreme pain in his wrists and shoulders,” ¶ 22. Without more, Plaintiff has not offered any reason to believe that his handcuffing was unreasonable, considering that Caban and Boyd had" }, { "docid": "3455018", "title": "", "text": "all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks.”) (quotations and citations omitted). Smith’s main contention is that such a search was unlawful because he committed a minor traffic violation. This contention is wholly wrong because it ignores many facts, namely Smith’s refusal to pull over, his invalid proof of insurance, and the thirteen abases he was said to have. All of these facts combined gave the officers probable cause to arrest him and conduct a search incident to that arrest. Therefore, the officers did not violate Smith’s clearly established rights. Smith also contends that a search was unnecessary because “a reasonable officer would have immediately known that he had pulled a physician and minister from his vehicle, and that Dr. Smith was not a threat and posed no danger.” We disagree. Despite the fact that Smith is a minister and physician, the officers had probable cause to arrest and search him. Even though Smith was driving a church— owned car and had hospital records in the backseat, the officers were reasonable in disregarding these clues as to Smith’s identity since they were informed, albeit incorrectly, by the dispatcher that he had thirteen abases. Besides, to hold that the officers should have stopped searching Smith because he is a minister or physician would be sanctioning stereotyping of the most pernicious sort. We agree with, and affirm, the district court’s decision that the defendants are entitled to qualified immunity and summary judgment on this claim. B. Excessive Force Claim Whether an officer used excessive force during an arrest is determined under the “objective reasonableness” standard. We assess whether an officer’s actions were objectively reasonable “ ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’ ” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We consider “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade" }, { "docid": "19882614", "title": "", "text": "Cir.1995). In this case, the parties have stipulated that the defendants had probable cause to arrest the plaintiff. In addition, Mr. Beaver does not question the propriety of the first tasing that took place or the subsequent decision to place him in handcuffs. Finally, the parties have stipulated that Officers Laird and Castro were acting under color of state law. Dkt. No. 101, ¶¶ III. The issue tried was whether Officer Laird used excessive force when he fired his Taser after the first tasing and, if so, whether Officer Castro failed to protect Mr. Beaver from this force. The Court addresses each claim in turn. 1. Excessive Force. The standard for analyzing claims of excessive force was established by the Supreme Court in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Graham instructs that such claims are to be evaluated under the Fourth Amendment’s reasonableness standard: “The question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865 (citation omitted). The Court cautioned that reasonableness must be assessed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and most allow for the fact that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. The Court further held that relevant factors in the reasonableness inquiry include “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. The Ninth Circuit has refined this standard by adding additional considerations. First, the inquiry should begin with an assessment of “the quantum of force used.” Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.2007). This is so “because" }, { "docid": "14382054", "title": "", "text": "is therefore more akin to a suspect than a convicted prisoner. Accordingly, plaintiffs’ claims will be analyzed under the Fourth Amendment’s objective reasonableness standard. “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). Rather, “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at -, 109 S.Ct. at 1871-72. “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. On the other hand the court must consider and make “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at -, 109 S.Ct. at 1872. In the final analysis, the Fourth Amendment reasonableness inquiry in an excessive force case comes down to the objective question of “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. Defendant Ireland contents that his use of deadly force to prevent Wright’s escape, under the facts of this case, was objectively reasonable as a matter of law because the undisputed facts demonstrate that he had probable cause to believe that Wright posed a threat of serious physical harm to others. According to Ireland, probable cause existed because of Wright’s past criminal record that evidenced a dangerous individual likely to inflict serious physical harm on others. Ireland knew that Wright had previously been convicted of illegally discharging a weapon and burglary. Affidavit" }, { "docid": "7599852", "title": "", "text": "in the light most favorable to the nonmoving parties and drawing all reasonable inferences in their favor. Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019 (8th Cir.2009). Denial of qualified immunity will be affirmed if “a genuine issue of material fact exists as to whether a reasonable officer could have believed his actions to be lawful.” Craighead, 399 F.3d at 960. We are prohibited from weighing evidence or making credibility determinations at this stage. Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir.2001). We first address officer Sammis’ claim for qualified immunity with respect to appellees’ excessive force and unreasonable seizure claims. All claims that law enforcement officers have used excessive force, whether deadly or not, in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The key question is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Craighead, 399 F.3d at 961. The reasonableness of an officer’s use of force is evaluated by looking at the totality of the circumstances, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade by flight.” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.2009). “Apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Hassan v. City of Minneapolis, 489 F.3d 914, 919 (8th Cir.2007). The use of deadly force is not constitutionally unreasonable if an officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.” Moore, 514 F.3d at 762. But where the suspect “poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly" }, { "docid": "23024493", "title": "", "text": "of conspiracy to provide false testimony was conclusory and failed to state conspiracy claim, which requires allegations of specific facts showing meeting of minds among alleged conspirators). In contrast, we find genuine issues of material fact concerning whether defendant Dillon’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. See Nance v. Sammis, 586 F.3d 604, 609-10 (8th Cir.2009) (reasonableness of officer’s use of force is evaluated by looking at totality of circumstances, including severity of crime, whether suspect poses immediate threat to safety of officers or others, and whether suspect is actively resisting arrest or attempting to evade by flight; where suspect poses no immediate threat to officer and no threat to others, harm resulting from not apprehending him does not justify use of deadly force). Mack declared that Dillon began shooting immediately after directing him to freeze, although Mack was not holding his gun in his hand; and that when he fled due to the shooting, Dillon’s shots struck him. Dillon’s version of the incident differed from Mack’s. Dillon did not attest as to whether he saw Mack holding a gun inside the store, but he attested that Mack was holding a gun when he exited the store, that Mack ignored directions to stop and turned toward Dillon, making Dillon believe Mack was going to shoot, and that Dillon did not believe he actually hit Mack until they were both behind the store and Rayburn was involved. See Wilson v. City of Des Moines, Iowa, 293 F.3d 447, 451 (8th Cir.2002) (when suspect threatens officer with weapon and there is probable cause to believe he has committed crime involving inflicting or threatened infliction of serious physical harm, use of deadly force is warranted if necessary to prevent escape and if, where feasible, some warning is given). The videotape from Rayburn’s patrol car appears to support Mack’s version that Dillon kept shooting as Mack fled down the side of the store, and that (at least when he was in the back of the store) he was not" }, { "docid": "23131801", "title": "", "text": "the district court’s opinion dismissing Davis’ false arrest claim under Florida state law because the standard for probable cause is “the same under federal and Florida state law.” Rankin v. Evans, 133 F.3d 1425, 1433 (11th Cir.1998). B. Davis also alleges that Becht used excessive force against him, resulting, inter alia, in a torn rotator cuff, numbness to his thumb, and a sore neck. It is clearly established that the use of excessive force in carrying out an arrest constitutes a violation of the Fourth Amendment. Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir.1998) (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Cottrell v. Caldwell, 85 F.3d 1480, 1492 (11th Cir.1996)). Whether the force used is reasonable turns on “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Thornton, 132 F.3d at 1400 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “An officer will be entitled to qualified immunity if his actions were objectively reasonable — -that is, if a reasonable officer in the same situation would have believed that the force used was not- excessive.” Id. at 1400 (internal quotation marks omitted). Even if the arrest had been effectuated based on probable cause, the district court improperly granted the Defendants’ motions for summary judgment on Davis’ excessive force claim. Accepting Davis’ version of the facts, a reasonable jury could find that Becht’s actions in effectuating the arrest constituted excessive force. Davis was not suspected of having committed a serious .crime, he did not pose an immediate threat to anyone, and he did not actively resist arrest. Yet Becht grabbed Davis from behind while Davis was following Becht’s order to return to the house, pushed him to the ground, dragged him, intentionally, inflicted more pain when told that Davis had an injured shoulder and threw him forcibly into the dog cage in a" }, { "docid": "4448167", "title": "", "text": "least an evidentiary issue in practically all cases.’ ” Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013) (quoting Hartman v. Moore, 547 U.S. 250, 265, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). But in distinction from the appeal in Tobey from the denial of a motion to dismiss, the instant case is a decision on summary judgment. This case is not one where probable cause remains an evidentiary issue; it is undisputed that Pegg violated § 17C-16-9 in the arresting officer’s presence, thereby establishing the probable cause for his arrest. Herrnberger is thus entitled to qualified immunity on this claim as well and the district court erred in not granting his motion for summary judgment. C. Qualified Immunity for Excessive Force The district court concluded that Herrnberger was not entitled to qualified immunity for Fogg’s claim of excessive force on the basis of its finding that Herrnberger was “potentially ... pre-dis-posed to using force to arrest [Pegg].” Herrnberger denies any such subjective predisposition, but argues again that any subjective motivations in the mind of the police officer do not factor into the qualified immunity analysis. We again agree with Herrnberger. An inquiry into any predisposition for force on the part of Herrnberger is an improper mode of analysis for a Fourth Amendment excessive force claim. “Subjective factors involving the officer’s motives, intent, or propensities are not relevant.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). To determine whether a police officer applied excessive force in violation of the Fourth Amendment, we instead examine officers’ actions “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, we examine “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. As when examining the lawfulness of an arrest, “[w]hether an officer has used excessive force" }, { "docid": "23197342", "title": "", "text": "help. Under the circumstances, we find no evidence that the defendants acted with deliberate indifference in failing to provide additional medical treatment to Brownell. Accordingly, we affirm the district court’s grant of summary judgment on the medical care claim. IV. Brownell also alleges that, in the course of his arrest, Roth, Bickel, and Bird employed excessive force in violation of the fourth amendment prohibition against unreasonable searches and seizures. All claims that law enforcement officers have used excessive force in the course of an arrest are analyzed under the fourth amendment and its reasonableness standard (rather than under a substantive due process approach). Graham, 490 U.S. at 395, 109 S.Ct. at 1871. Under the fourth amendment, the question is whether the officers’ actions were “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 397, 109 S.Ct. at 1872. Reasonableness in this context is judged from the perspective of a reasonable officer on the scene, rather than with the “20/20 vision of hindsight.” Id. at 396, 109 S.Ct. at 1872. How much force may reasonably be exerted depends on three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. Applying these principles to this case, Brownell maintains that the force employed by Roth, Bickel, and Bird was objectively unreasonable: he posed no safety threat, did not resist arrest, and did not attempt to flee, yet the officers used excessive force anyway. Examining the record, the district judge found “no evidence whatsoever” to suggest that the defendants’ very limited use of force during Brownell’s arrest was objectively unreasonable. We agree. Relying on logic akin to the doctrine of res ipsa loquitur, Brownell maintains that the fact he left the hospital able to move and returned a quadriplegic, all the while in the exclusive control of Roth, Bickel, and Bird, raises an inference that they caused his extraordinary" }, { "docid": "17203597", "title": "", "text": "immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id. at 396, 109 S.Ct. 1865. It is black-letter law that, in making an arrest or an investigatory stop, police officers have the right to employ “some degree of physical coercion or threat thereof to effect it.” Id. Officers must “make split-second decisions about the amount of force needed to effect an arrest while operating under tense, dangerous and rapidly-changing circumstances,” and, for that reason, “not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers” will give rise to a constitutional violation. Id. The amount of force used, however, must be reasonable. While both parties have moved for summary judgment on this Count, a genuine issue of material fact remains. The parties do not dispute that, immediately prior to the incident, Eason was walking quickly and unaware that Officers Alexis and Sullivan were pursuing him. Nor do they dispute that, as a result of the collision between Eason and at least one of the officers, Eason went over the railing and suffered a fractured ankle. What is in dispute is the cause and nature of the collision. Eason claims that Officer Conley grabbed him in the front and either Officer Alexis or Officer Sullivan grabbed him from behind and, together, the officers threw Eason over the railing. The officers contend that Eason initiated the contact with Officer Conley and hurt his ankle attempting to jump over the railing. The parties are the only witnesses to the collision and no additional evidence tends to discredit either side’s account. A reasonable finder of fact could return a verdict for either side on the excessive force claim, depending on whose version of the story it believes. Compare Argo v. Woods, 399 Fed.Appx. 1 (5th Cir.2010) (affirming jury finding that officers used excessive force because they threw a suspect off his porch without probable cause to arrest him), with Dennis v. Upshaw, 9 F.3d 1547 (5th Cir.1993) (affirming bench trial finding" }, { "docid": "1924588", "title": "", "text": "of the building as a painter, and thus had a legitimate reason to be there. Both parties agree that this investigative process was completed after fifteen minutes. Nevertheless, Nelson maintains that defendants detained him for fifteen to thirty minutes more while .they sought more corroboration. They looked for the building superintendent and phoned the courthouse to verify his whereabouts that morning. Furthermore, Nelson describes his detention as having several arrest-like qualities. He claims that he was detained through the use of coercive measures: brandishing a weapon, frisking him, and keeping him in frisk position for an extended period. Therefore, I conclude that if Nelson’s account of the stop were credited a jury could find that this investigative detention exceeded the scope of the initial justification for the stop and amounted to a de facto arrest without probable cause. Accordingly, defendants’ motion for summary judgment on Nelson’s § 1983 claim of arrest without probable cause is DENIED. C. Excessive Force Nelson claims that certain actions taken in the course of the stop, specifically brandishing a weapon, frisking him, and keeping him in the frisk position for an extended period, not only contributed to the arrest-like nature of the stop, but also amounted to excessive force in violation of his Fourth Amendment right to be free from unreasonable seizure. The inquiry as to whether a particular seizure was reasonable or involved excessive force is an objective one. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The court must consider whether an objectively reasonable police officer under the circumstances at issue would have thought that the force used was necessary. Id. This assessment must make allowance for the fact that police officers are often required to make split second judgments regarding safety. Id. In evaluating the objective reasonableness of the force used, the court should consider: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. Id." }, { "docid": "3567934", "title": "", "text": "behind, place him in a headlock, spin him around and throw him head-first to the ground. Once Young and Pringle were both handcuffed, Officer Hines could have easily disarmed Young, who at no point resisted, without the use of such force. Even more questionable is Officer Hines’s use of force once Young was lying face-down on the ground, handcuffed behind his back and disarmed. At, this point, Young presumably posed little, if no, threat to Officer Hines. Nonetheless, Officer Hines proceeded to strike Young in the back of the head with.his forearm and pound his knee into the center of Young’s back. When Young complained about the use of such force, Officer Hines responded by telling Young to “shut up” and further pounding his knee into Young’s back. Defendants argue that the use of such force was reasonable because Young was armed. The fact that a suspect is armed, however, does not render all force used by an officer reasonable. The measures taken by an officer to disarm a suspect must be reasonable under the totality of the circumstances. Here, Young was stopped for a minor traffic violation, was completely cooperative and posed little, if no, threat once he was handcuffed behind his back. Graham, 490 U.S. at 396, 109 S.Ct. 1865 (noting that among the factors to be considered under the Fourth Amendment’s “objective reasonableness” standard are “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight”). When viewed in this light, we believe that a reasonable jury could find excessive the force used by Officer Hines once Young was handcuffed. Based on the foregoing, the district court’s grant of summary judgment on Young’s excessive force claim was erroneous. C. On remand, Young’s excessive force claim should be reviewed under the Fourth Amendment’s “objective reasonableness” standard rather than the subjective standard used to adjudicate excessive force claims brought under the Due Process Clause of the Fourteenth Amendment. As we have expressly held: “The" }, { "docid": "15657087", "title": "", "text": "whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. In Graham, the Supreme Court instructed reviewing courts to consider various factors in evaluating excessive force and unreasonable arrest claims. Accordingly, the “proper application” of the reasonableness inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865 (citing Garner, 471 U.S. at 8-9, 105 S.Ct. 1694). These factors do not constitute an exhaustive list; the ultimate question is “whether the totality of the circumstances justifies a particular sort of seizure.” Id. Resolving this question in a particular case inherently requires the court to carefully balance the nature of the intrusion on the arrestee’s Fourth Amendment rights against “the countervailing governmental interests at stake.” Garner, 471 U.S. at 8, 105 S.Ct. 1694. Finally, as this Court has observed, “[t]his standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Burchett, 310 F.3d at 944. Applying these principles to the circumstances of this case, we conclude there are genuine issues of material fact regarding whether Sheriff Hickey and his colleagues, Corporal Boyer and Officer Wolfe, acted reasonably when they attempted to place St. John in the cruiser even though he complained that his legs would not bend. Even assuming Defendants had probable cause to arrest St. John for disorderly conduct, St. John was not engaging in violent behavior; nor does it appear from the record that he was physically resisting the officers’ attempts to remove him from the house. (Hickey testified that, at most, St. John was passively resisting arrest by sitting prone.) Even if there was evidence of resistance, it would be improper to determine whether" }, { "docid": "22942777", "title": "", "text": "underscore that these conclusions regarding probable cause are compelled by our constrained jurisdiction and our view of the facts in the light most favorable to Fogarty. Most of the deposed officers denied even witnessing Fogarty’s arrest, and none admitted to physically arresting him. Their depositions therefore contain little that might contradict Fogarty’s account of his own behavior. If defendants demonstrate at trial that the arresting officers had objective reason, even if mistaken, for believing that Fogarty’s drumming tended to disturb the peace by increasing the potential for violence or public alarm as defined by the New Mexico courts, they may well be entitled to qualified immunity. But on the record before us, we cannot at this juncture reach such a conclusion as a matter of law. B Next, defendants challenge the district court’s denial of qualified immunity on Fo-garty’s excessive use of force claim. In the court below, Fogarty claimed that APD officers used excessive force in three ways: by forcibly dragging him across Central Avenue during his arrest while hyperflexing his wrist, by exposing him to tear gas, and by shooting him with a pepper ball or some other type of projectile. As with Fogarty’s unlawful arrest claim, we review only whether the facts viewed in the light most favorable to Fogarty entitle the defendants to qualified immunity as a matter of law. 1 Like Fogarty’s unlawful arrest claim, his excessive force claim is grounded in the Fourth Amendment. Our inquiry on this claim focuses on whether the force used by the APD was reasonable under the facts and circumstances presented. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In particular, we must pay “careful attention” to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers and others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. We also consider whether an officer’s own “reckless or deliberate conduct” in connection with the arrest contributed to the need to use the force employed." }, { "docid": "6764552", "title": "", "text": "Town of Marblehead, 989 F.Supp. at 349, 351 (determining victim’s statements alone established probable cause for officers to seek criminal complaint).- In the instant case, the uncontroverted evidence establishes that the Police Defendants had probable cause to seek Mr. Sietins’ arrest for larceny. Officer Carpenter reasonably relied on Mr. Wallace’s verbal and written reports that Mr. Sietins had wrongfully taken the compressor from the job site. Further, Mr. Wallace informed Officer Carpenter that he had confirmed Maine Post’s ownership of the compressor with both Mr. Ward and Builders’ Supply, and Officer Dunne confirmed this with Mr. Ward himself. Mr. Wallace also provided Officer Carpenter with invoices which appeared to establish that Maine Post owned the compressor. Officer Carpenter attempted to contact Mr. Sietins several times to obtain his side of the story, and when he could not do so he reasonably relied on the alleged victim’s statement. See White v. Marblehead, 989 F.Supp. at 351. In short, the information available to the Police Defendants was sufficient to warrant a prudent person to believe that Mr. Sietens had committed the offense of larceny. Thus, Mr. Sietins was not deprived of his constitutional rights based on an unlawful arrest. b. Excessive Force Next, Mr. Sietins alleges that the excessive force used during his arrest violated his constitutional rights. However, the record does not support this contention. Excessive force claims arising out of arrests are analyzed under the Fourth Amendment’s proscription of “unreasonable searches and seizures.” Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir.2002). To prevail on such a claim, a plaintiff must establish “that the police defendant’s actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation.” Id. (internal citation omitted). The relevant circumstances include “(1) ‘the severity of the crime at issue;’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others;’ and (3) ‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.’ ” Alexis v. McDonald’s, 67 F.3d at 352-353 (quoting Graham v. Connor," }, { "docid": "23603513", "title": "", "text": "292 F.3d 1177 (9th Cir.2002): In Saucier v. Katz, [533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001),] the Supreme Court instructed lower courts deciding summary judgment motions based on qualified immunity to consider “this threshold question: Taken in light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” [Id. at 201, 121 S.Ct. 2151.] If not, then “there is no necessity for further inquiries concerning qualified immunity.” [M] If so, then “the next, sequential step is to ask whether the right was clearly established.” [Id.] A constitutional right is clearly established when, “on a favorable view of the other parties’ submissions” “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” [Id.] In Saucier, the Supreme Court overruled Ninth Circuit precedent holding that “the inquiry as to whether officers are entitled to qualified immunity for the use of excessive force is the same as the inquiry on the merits of the excessive force claim.” The Court rejected our view because an officer might be reasonably mistaken as to the facts justifying his actions, or as to the law governing his actions, so that an officer could use objectively excessive force without clearly violating the constitution. A police officer may reasonably use deadly force where he “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. We analyze excessive force claims in the arrest context under the Fourth Amendment’s reasonableness standard. We balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” and ask whether, under the circumstances, “including the severity of the crime at issue, the suspect poses an immediate threat to the safety of the officers or others, or whether he is actively resisting arrest or attempting to evade arrest by flight.” The reasonableness inquiry is objective, without regard to the officer’s good or bad motivations or intentions. Id. at 1183-84 (footnote and citations omitted)." }, { "docid": "22079658", "title": "", "text": "it was objectively reasonable for Kopp to believe Peterson was refusing to leave the bus stop, even before he asked for Kopp’s badge number. Consequently, we find Kopp had arguable probable cause to arrest Peterson and is entitled to qualified immunity from Peterson’s unlawful arrest claim. B. Fourth Amendment Excessive Force Peterson next argues that Kopp violated his Fourth Amendment right to be free from unreasonable seizures by using excessive force when arresting him. Chambers, 641 F.3d at 905 (noting the Fourth Amendment framework is appropriately applied to excessive force claims arising out of incidents occurring both before and shortly after arrest). The Supreme Court has explained that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). An officer’s use of force will violate the Fourth Amendment if it is not “objectively reasonable.” Id. at 397, 109 S.Ct. 1865. Because “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving”— the reasonableness of a particular use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396-97, 109 S.Ct. 1865. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. at 396, 109 S.Ct. 1865 (quotation omitted). We look to the specific circumstances, such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. All three of these factors identified in Graham weigh against Kopp and in favor of finding excessive use of force: Peterson was a non-fleeing, non-resisting, non-violent misdemeanant. See Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir.2013). Nevertheless, finding Kopp’s use of force unreasonable under the circumstances does not" }, { "docid": "23024492", "title": "", "text": "were no trialworthy issues concerning whether City’s police department had an official policy, custom, or practice of using excessive force during arrests, and neither his objections below nor his brief on appeal identify any evidence of such. See Moyle v. Anderson, 571 F.3d 814, 817-18 (8th Cir.2009) (municipal liability under § 1983); cf. Allen v. Entergy Corp., 181 F.3d 902, 905-06 (8th Cir.1999) (conclusory affidavits devoid of specific factual allegations rebutting moving party’s evidence cannot defeat summary judgment motion). Further, there was no basis for section 1983 claims against defendants Timmons and White, who were solely involved in various aspects of the investigation of the shooting, cf. Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir.1999) (even if it was assumed as true that there were shortcomings in investigation into shooting, shortcomings would not prove flawed investigation was moving force behind deputies’ alleged misconduct or caused them to use excessive force); and Mack’s complaint allegations were insufficient to state a section 1983 conspiracy claim, see Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.2000) (allegation of conspiracy to provide false testimony was conclusory and failed to state conspiracy claim, which requires allegations of specific facts showing meeting of minds among alleged conspirators). In contrast, we find genuine issues of material fact concerning whether defendant Dillon’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. See Nance v. Sammis, 586 F.3d 604, 609-10 (8th Cir.2009) (reasonableness of officer’s use of force is evaluated by looking at totality of circumstances, including severity of crime, whether suspect poses immediate threat to safety of officers or others, and whether suspect is actively resisting arrest or attempting to evade by flight; where suspect poses no immediate threat to officer and no threat to others, harm resulting from not apprehending him does not justify use of deadly force). Mack declared that Dillon began shooting immediately after directing him to freeze, although Mack was not holding his gun in his hand; and that when he fled due to the shooting, Dillon’s shots struck him. Dillon’s" } ]

[ { "docid": "22152265", "title": "", "text": "The method offered in § 361(1) (periodic payments) and in § 361(2) (additional or replacement lien) have not been proposed by the Debtors. The third method, which is contained in § 361(3), is a “catch all”, permitting such other means of providing adequate protection “as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property.” Although the Debtors contend that they are providing adequate protection pursuant to § 361(3), the Court does not believe that maintenance of the status quo is “granting such other relief” nor is it the “indubitable equivalent” (emphasis added) required under that subsection. However, it is the opinion of the Court that a debtor may provide adequate protection by an equity cushion since § 361 does not preclude other forms of adequate protection. The District Court in In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861, 865 (N.D.Ohio 1976) found that a bank was “adequately protected” despite the bankruptcy judge’s order allowing the debtor in possession to use and consume accounts receivable, because of the surplus of security over debt. Further an “adequate cushion” can itself constitute adequate protection with nothing more. Collier on Bankruptcy, 15th ed. § 361.02[3] at p. 361-9. Therefore, since an equity cushion can be adequate protection, the amount of the debt and the value of the property must be determined to establish whether an equity cushion in fact exists. The amount of the debt owing to Heritage from the Debtors has been stipulated for purposes of this proceeding by the parties as $548,188.41. However, the fair market value of the Property is in doubt because of the conflicting evidence of the parties as presented by their respective appraisers. Furthermore, conflict exists on which standard of value, i. e. the liquidation value, the full going concern value, or some value in between, is the proper valuation standard for purposes of this proceeding. Turning first to the standard of valuation to be used, the Court notes that there is no clear direction to the Court by statute. Therefore, at this juncture, the legislative history" } ]

[ { "docid": "10178998", "title": "", "text": "protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value" }, { "docid": "17223129", "title": "", "text": "such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. The bankruptcy court annulled the automatic stay solely on the basis that the sellers’ “interest in and to the subject real estate lacks adequate protection.” The bankruptcy court failed to explain the legal or factual basis for this conclusion. It is true that the bankruptcy court found that the debtors and the estate did not have any “realizable equity” in the Upland residence. The fact that the debtor has no equity in the estate is not sufficient, standing alone, to grant relief from the automatic stay under section 362(d)(1). In re Suter, 10 B.R. 471, 472 (B.Ct.E.D.Penn.1981). The sellers argue that since the first trust deed to Weyerhauser ($66,700) and the second trust deed to AKOP ($123,278) total more than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980);" }, { "docid": "22430321", "title": "", "text": "in the value of such entity’s interest in such property; (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity’s interest in such property; or (3) granting such other relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. 11 U.S.C. § 361. See Matter of Stanley Hotel, Inc., 15 B.R. 660, 663, 8 B.C.D. 559, 561 (Dist.Ct.Colo.1981). Here, the debtor has simply proposed that the collateral itself has sufficient value to constitute adequate protection of the Fund’s interest. Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.Cal.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the “equity-cushion” approach. See, i.e., In re Shockley Forest Industries, Inc., 5 B.R. 160, 163, 6 B.C.D. 642, 644 (Bkrtcy.N.Ga.1980); In re 5 Leaf Clover Corp., 6 B.R. 463, 466 (S.W.Va.1980); In re Lee, 11 B.R. 84, 85 (Bkrtcy.E.Pa.1981); In re Penn York, Mfg., Inc., 14 B.R. 51, 53 (Bkrtcy.M.Pa.1981); Matter of Stanley Hotel, Inc., supra, 15 B.R. at 664, 8 B.C.D. at 562. It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.Pa.1981), aff’d, 14 B.R. 542 (Dist.Ct.E.Pa.1981). While this approach is valid, the instant case demonstrates that the phrase “equity cushion” is a misnomer. By including the word “equity,” we have created some confusion. “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the" }, { "docid": "10178999", "title": "", "text": "re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value figure, is only the court’s best estimate and, as an estimate, requires a margin for error. In re Lemay, 18 B.R. 659, 661 (Bankr.D.Mass.1982). To the extent there is a slim equity cushion which is eroding rapidly, the interests of the secured creditor may not be adequately protected. See Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Jug End in the Berkshires, Inc. In the instant case, the equity cushion is a slim 8.9%. The cushion will diminsh rapidly, at a rate of approximately $120,000 per month plus the imposition of a tax lien for for the 1987 real estate taxes of $447,762.50, which will become due not later than March 31, 1987. Thus, in three months, which is the time period which will elapse before the hotel can be rescheduled for foreclosure sale, the $1,800,000 cushion will be eroded by more than $800,000. With proper deference for a margin of error in valuation, this cushion does not provide adequate protection. In addition, when the claims of secured creditors are" }, { "docid": "22125211", "title": "", "text": "required under the plan and to furnish operating capital and to permit the performance of repairs and rehabilitation of the premises in question. DISCUSSION Adequate Protection In those cases where there existed a so-called equity cushion, in that the value of the collateral exceeded the amount of the secured claim, it has been held that such equity cushion alone may suffice for the purpose of adequately protecting a secured claim holder during the period in which the automatic stay under 11 U.S.C. § 362 continued in effect. In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979); In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980); In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980); In re Shockley Forest Industries, Inc., 5 B.R. 160, 6 B.C.D. 642, 2 C.B.C.2d 756 (Bkrtcy.M.D.Ga.1980). However, the absence of an equity cushion need not be fatal. Obviously if a debtor were able to obtain a surety bond for the protection of a secured claim and in an amount substantially in excess of the claim, the secured claimant would be hard pressed to assert that it was not adequately protected, notwithstanding the absence of an equity cushion. In such circumstances, even though the debtor could not then establish that an effective reorganization was likely, the debtor would be permitted a limited time in which to attempt to effect rehabilitation since the secured claimant would be adequately protected during that period and would not stand to lose any portion of its secured interest; the surety bond would compensate the creditor for any loss. The debtor’s concept of adequate protection is not as expansive or as extreme as the above illustration. The debtor confines its offer of adequate protection to the extent that this term is described in 11 U.S.C. § 361, namely protection against “a decrease in the value” of the creditor’s interest in the secured property. The debtor reasons that as long as it comes up with sufficient funds to repair and maintain the apartment house complex and sustains or enhances the physical status quo it should be allowed" }, { "docid": "9340756", "title": "", "text": "his economic house in order. In re Coors of the Cumberland, Inc., 19 B.R. 313 (Bahkr.M.D.Tenn.1982); LaJolla Mortgage Fund v. Rancho El Cajon Assoc., 18 B.R. 283 (Bankr.S.D.Ca.1982). As a countervailing policy, Section 361 of the Code was included to protect the interests of secured creditors during the pendency of bankruptcy. In re Timbers of Inwood Forest Assoc., Ltd., 793 F.2d 1380 (5th Cir.1986), on rehearing, 808 F.2d 363 (1987), cert. gr., — U.S. —, 107 S.Ct. 2459, 95 L.Ed.2d 868 (1987); In re Briggs Transportation Co., 780 F.2d 1339 (8th Cir.1985); In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984). Case law has established that the existence of an equity cushion may, in and of itself, constitute adequate protection for an over-secured creditor. In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Ritz Theatres, Inc., 68 B.R. 256 (Bankr.M.D.Fla.1987). Whether an equity cushion does constitute adequate protection is determined on a case-by-case basis. In re Tucker, 5 B.R. 180 (Bankr.S.D.N.Y.1980). Case law has almost uniformly held that an equity cushion of 20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982)" }, { "docid": "18563958", "title": "", "text": "protects creditor adequately); cf. In Re Pitts, 2 B.R. 476, 478-79 (Bankr.C.D.Cal.1979) (15.4 percent debtor equity in residence adequately protects creditor). Indeed, the notion that an equity cushion should be considered in a vacuum is fundamentally misguided. The proposition that a uniform equity percentage or dollar amount would inevitably supply adequate protection conflicts with the principle of considering the adequacy of protection in light of all the facts surrounding the case and the equitable considerations to which those factors give rise. See In Re Pannell, 12 B.R. 51, 54 (Bankr.E.D.Pa.1981); In Re 5-Leaf Clover Corp., 6 B.R. 463, 466 (Bankr.S.D.W.Va.1980); In Re San Clemente Estates, 5 B.R. 605, 609 (Bankr.S.D.Cal.1980). If properly applied, the concept of an “equity cushion” supplies only one factor in determining whether the creditor’s interest is adequately protected. In Re Pannell, 12 B.R. at 54. In the proceedings below, the Bankruptcy Judge found that the debtor had failed to prove adequate protection. In the September 14th Memorandum, the Bankruptcy Court critically examined Southerton’s contention that its purported equity in the property provided an adequate cushion in excess of the total debt to insure that the Bank’s interest in the property would not be jeopardized during the pendency of the reorganization proceedings. The court, assuming the debtor’s valuation of The Escape for the purposes of argument, observed that other factors militated against finding adequate protection on the basis of the equity cushion alone. Weighing the “balance of hurts,” the court concluded that the likelihood of harm engendered by continuation of the stay preponderated over the potential harm caused to Souther-ton by termination of the stay. Far from reaching its conclusion on the basis of some fixed percentage requirement for the equity cushion, the Bankruptcy Court weighed a variety of factors. First, the court noted that the accumulation of interest on the Bank’s judgment was rapidly eroding Southerton’s equity cushion. Southerton neither questions the appropriateness of considering this factor nor disputes the accuracy of the court’s observation. Where, as here, the debtor’s margin of equity is slim, the court is clearly entitled to consider the rate at which" }, { "docid": "1134829", "title": "", "text": "flexibility to fashion the relief in light of the facts of each case and general equitable principles. H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection under section 361 can be provided by an equity cushion. See In re Rogers Development Corp., 5 B.C.D. 1392, 2 B.R. 679 (Bkrtcy.E.D.Va.1980); In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). See also In re Blazon Flexible Flyer, Inc., 407 F.Supp. 861 (N.D.Ohio 1976). However, at least one court has recognized that the equity cushion can be dissipated: Adequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords. [In re Pitts, supra, at 478-79]. Thus, at some point, the diminishing cushion will no longer provide adequate protection for the secured creditor. The Court is in agreement that the equity cushion adequately protects creditors’ interests — up to a point. Equity provides adequate protection so long as the creditor may foreclose upon the collateral and realize an amount sufficient to fully cover the balance due on the debt. This does not mean, however, that the creditor must wait until there is no equity before it is entitled to a lifting of the stay to foreclose on the property. Although a debtor may have equity in the collateral, where regular payments are not being made that equity decreases over a period of time as the accrued interest increases the balance due on the debt and accumulating depreciation decreases the value of the property. In this circumstance, the equity decreases at a rate determined by combining the interest and depreciation rates. Thus, the equity reaches zero at the point in time at which the debt balance and the market value converge, or are equal. Conversely, the equity ratio can be kept constant by payment of both the interest and depreciation to the creditor. The U.C.C. dictates a rule of commercial reasonableness in disposition of collateral to satisfy a debt. W.Va.Code § 46-9-504(3) (Cum.Supp.1980). The" }, { "docid": "17223130", "title": "", "text": "than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980); 2 Collier on Bankruptcy, § 361.-02[3] at 361-9; (15th ed. 1979). A sufficient equity cushion has been found to exist although not a single mortgage payment had been made. In re Curtis, 9 B.R. at 111. The bankruptcy court’s conclusion that the sellers’ interest lacked adequate protection was apparently based on its finding that “neither the Debtors nor the Estate have any realizable equity” in the residence. Findings of Fact # 14. However, in equating debtors’ “equity” with “adequate protection” for the sellers, the bankruptcy court erroneously included the junior lien of AKOP, Inc. Although the existence of a junior lien may be relevant in determining “equity” under § 362(d)(2), it cannot be considered in determining whether the interest of a senior lienholder is adequately protected. La Jolla Mortgage Fund, 18 B.R. at 289. The claim of a junior lienholder cannot affect the claim of the holder of a perfected senior interest. See In re Wolford Enterprises, Inc., 11 B.R. 571, 574 (B.Ct.S.D.W.Virg.1981) [rejecting contention that defendant lacked equity due to second deed of trust;" }, { "docid": "19249720", "title": "", "text": "the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Moor, 51 B.R. 640 (Bankr.N.D.Miss.1985). The ratio of the debt owed to the value assigned to the collateral must be reviewed to determine whether adequate protection exists. “Equity cushion\" has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (E.D.Pa.1981). “Equity,” as opposed to “equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund [v. Rancho El Cajon Assoc.], 18 B.R. [283] at 287 [S.D.Cal.1982]. In re Mellor, at 1400 n. 2. This issue is the primary focus of this lawsuit, in order to reach the above conclusions. An analysis of the testimony presented at the valuation stage of the hearing is therefore necessary to" }, { "docid": "9340758", "title": "", "text": "(7% is inadequate); But see, In re Carson, 34 B.R. 502 (D.Ka.1983) (11% is adequate). Case law is divided on whether a cushion of 12% to 20% constitutes adequate protection. In re Shaller, 27 B.R. 959 (W.D.Wisc.1983) (17% to 18% is insufficient); In re Hawaiian Pacific Industries, 17 B.R. 670 (Bankr.D.Ha.1982) (15% is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr.E.D.Va.1980) (17% is adequate); In re Pitts, 2 B.R. 476 (Bankr.C.D.Ca.1979) (15% is adequate). In Rodgers Development the court determined the property securing the creditor’s debt to be worth $750,000 and an equity cushion of $130,000. The court also noted that both expert witnesses who testified were of the opinion that the property would increase in value over time. In Pitts, the second mortgage holder’s cushion was $19,-125 on a $125,000 parcel of property. Although interest was accruing at $1,000 per month, the debtor was making the current payments on the first mortgage, thus creating more equity for the second mortgage holder. The court noted that the cushion was minimal, fragile and precarious. See In re Helionetics, supra., in which the court noted that the debtor’s performance was exceeding all projections, indicating that creditors would eventually receive full payment. See also, In re Carson, in which the court noted that, although the cushion was eroding, the debtors were soon going to turn over $60,000, which represented proceeds from the sale of some of the collateral, to the secured creditor. When a creditor is sufficiently over-secured, it is easy to minimize the effects that time and the unforeseen may have on the collateral. However, when the creditor’s cushion is slim the court must be more concerned about what the future may hold. In this case, Home Federal’s cushion is approximately 14.5% to 16.5%. Interest is accruing at $1,360 per month and real estate taxes are not being paid. The Debtors have been in bankruptcy, of one form or another, for over a year. Yet, they have been operating hand to mouth for the entire time, without making payments to secured creditors. While all parties agree that the property is" }, { "docid": "2470350", "title": "", "text": "Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) See H.R. Rep.No.95-595, 95th Cong., 1st Sess. 339 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Case law under the Bankruptcy Code has held that adequate protection can be provided by an equity cushion. See In re 5-Leaf Clover Corp., supra; In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980). However, at least one (1) court has recognized that an existing equity cushion can be dissipated and that “[ajdequate protection ... requires, at a minimum, a periodic and careful surveillance of the facts and circumstances calculated to avoid dissipation of whatever protection the cushion affords.” In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979). Thus, at some future point, the diminishing equity cushion will no longer provide adequate protection for the secured creditor. No evidence has been presented as to whether the equity cushion is, in fact, diminishing or increasing in this time of spiraling inflation. Based on the present record, it appears that the present equity cushion is sufficient to adequately protect the interest of Trevose. Debtor will, however, be directed to begin making payments to the mortgagee and trustee. Although a debtor may have equity in the collateral, where regular payments are not being made, that equity decreases over a period of time as the accrued interest increases the balance due on the debt and accumulating depreciation, where present, decreases the value of the property. See In re 5-Leaf Clover Corp., 6 B.R. at 467. Accordingly, we conclude that insufficient “cause” has been shown to justify the lifting of the stay and that debtor has an equity in the property. Debtor will be ordered to immediately begin making payments to Trevose so that the equity ratio will be maintained at the appropriate level. Debtor will no longer be permitted to live in the subject premises mortgage free as he has for approximately one and one-half (1 years. If the debtor is unable to make the ordered payments within fifteen (15) days, the automatic stay will, upon certification of counsel for the mortgagee, be lifted to permit mortgage foreclosure. . This Opinion constitutes" }, { "docid": "22430322", "title": "", "text": "“equity-cushion” approach. See, i.e., In re Shockley Forest Industries, Inc., 5 B.R. 160, 163, 6 B.C.D. 642, 644 (Bkrtcy.N.Ga.1980); In re 5 Leaf Clover Corp., 6 B.R. 463, 466 (S.W.Va.1980); In re Lee, 11 B.R. 84, 85 (Bkrtcy.E.Pa.1981); In re Penn York, Mfg., Inc., 14 B.R. 51, 53 (Bkrtcy.M.Pa.1981); Matter of Stanley Hotel, Inc., supra, 15 B.R. at 664, 8 B.C.D. at 562. It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.Pa.1981), aff’d, 14 B.R. 542 (Dist.Ct.E.Pa.1981). While this approach is valid, the instant case demonstrates that the phrase “equity cushion” is a misnomer. By including the word “equity,” we have created some confusion. “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim from diminution. A more apt and descriptive phrase would be “value cushion.” Of course, since this is a question of providing adequate protection, the debtor has the burden of proof. See In re Presock, 9 B.R. 676, 678 (Bkrtcy.E.Pa.1981). See also In re Roane, supra, 8 B.R. at 1000 (by implication); In re Daws, 13 B.R. 101, 104 (Bkrtcy.Haw.1981); In re High Sky, Inc., supra, 15 B.R. at 336 (by implication). Here, the party seeking relief from the" }, { "docid": "2178968", "title": "", "text": "repaired. See, e.g., In re Tucker, 5 B.R. 180, 6 B.C.D. 699, 2 C.B.C.2d 535, CCH ¶ 67955 (Bkrtcy.S.D.N.Y.1980); In re Monroe Park, 17 B.R. 934, 6 C.B.C.2d 139 (U.S.D.C.Del.1982); In re Alyucan Interstate Corp., supra. The primary, and often determinative factor, is the existence of an adequate equity cushion. Most courts find that a creditor’s interest is adequately protected if the value of its security exceeds the amount of its claim by a “sufficient” amount. What is a “sufficient” cushion has been the subject of much litigation and evades a definitive formula as much as “adequate protection” does. See, e.g., In re Hawaiian Pac. Industries, 17 B.R. 670 (Bkrtcy.D.Hawaii 1982) where the court found without explication that a 15% equity cushion in real estate was sufficient; In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980) where the court found a 65% cushion sufficient; In re Schlichter, 22 B.R. 666 (Bkrtcy.E.D.Pa.1982) where $150,000.00 equity in $1,250,000.00 of real estate was found sufficient; Ukranian Sav. and Loan Ass’n v. Trident Corp., 22 B.R. 491 (U.S.D.C.E.D.Pa.1982) where $30,-000.00 equity in $280,000.00 of real estate was found insufficient; In re LeMay, 18 B.R. 659 (Bkrtcy.D.Mass.1982) where a 7% cushion was found inadequate. The emerging view, however, is that an otherwise sufficient cushion may not adequately protect the creditor if the cushion is being eroded by accruing interest and/or depreciation. In In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) the court required the debtor to maintain the equity cushion and forestall the erosion with a $35,000.00 interest payment. See also In re Rogers Dev. Corp., 2 B.R. 679, 5 B.C.D. 1392, 1 C.B.C.2d 499, CCH ¶ 67627 (Bkrtcy.E.D.Va.1980). In In re Monroe Park, supra, the court granted relief from stay based on an eroding equity cushion. In In re Pitts, 2 B.R. 476, 5 B.C.D. 1129, 1 C.B.C.2d 241 (Bkrtcy.C.D.Cal.1979), the court found an eroding $19,000.00 cushion on security worth $125,000.00 inadequate, but it continued the hearing to determine if the debtor could maintain and avoid further dissipation of the cushion. The Court finds in the case" }, { "docid": "9340757", "title": "", "text": "20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (7% is inadequate); But see, In re Carson, 34 B.R. 502 (D.Ka.1983) (11% is adequate). Case law is divided on whether a cushion of 12% to 20% constitutes adequate protection. In re Shaller, 27 B.R. 959 (W.D.Wisc.1983) (17% to 18% is insufficient); In re Hawaiian Pacific Industries, 17 B.R. 670 (Bankr.D.Ha.1982) (15% is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr.E.D.Va.1980) (17% is adequate); In re Pitts, 2 B.R. 476 (Bankr.C.D.Ca.1979) (15% is adequate). In Rodgers Development the court determined the property securing the creditor’s debt to be worth $750,000 and an equity cushion of $130,000. The court also noted that both expert witnesses who testified were of the opinion that the property would increase in value over time. In Pitts, the second mortgage holder’s cushion was $19,-125 on a $125,000 parcel of property. Although interest was accruing at $1,000 per month, the debtor was making the current payments on the first mortgage, thus creating more equity for the second mortgage holder. The court noted that the cushion was minimal, fragile and precarious." }, { "docid": "18801106", "title": "", "text": "the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.EDPA.1981), aff’d, 14 B.R. 542 (D.Ct.E.D.PA.1981). While this approach is valid, the instant case demonstrates that the phrase ‘equity cushion’ is a misnomer. By including the word ‘equity,’ we have created some confusion. ‘Equity’ is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim" }, { "docid": "18727636", "title": "", "text": "to accrue on that claim where the creditor was given an interest in collateral to secure its claim and that collateral is of a greater value than the creditor’s claim fixed at the commencement of the bankruptcy proceedings. The parties in this matter have agreed that the value of the Federal Land Bank’s collateral amounts to $40,000.00. Accordingly, the Federal Land Bank is entitled under section 506(b) to claim accruing interest. The equity cushion that existed at the time of the hearing was approximately $2,600.00. The Debtors rely upon that cushion as adequate protection for the creditor’s interest in the property. Interest continues to erode the equity at a rate of $330.00 per month so that as of August 1, 1984, the equity was $2,270.00. The Courts have proposed a variety of percentages for determining the adequacy of an equity cushion. See In re Lake Tahoe Land Co., Inc., 5 B.R. 34 (Bankr.D.Nev.1980) (in cases involving real estate a cushion of 40 to 50 percent is required to provide adequate protection to a lender); In re Schaller, 27 B.R. 959 (D.W.D.Wis.1983) (the court held that a cushion of 17 to 18 percent did not offer adequate protection in and of itself where the cushion was being rapidly eroded by the daily accrual of interest on the debt); In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (a 7 percent equity cushion will rarely provide sufficient protection). While the Court which adheres to a fixed percentage figure as establishing the bound of adequate equity cushions offers consistency and reliability in its decisions, most courts realize that equity cushion is only one factor in determining the adequacy of a creditor’s protection. See Huntington National Bank v. A.K. Fiberglastics, Inc., 26 B.R. 549 (Bankr.S.D. Ohio 1983). A creditor’s interest in real property is not being adequately protected where real estate taxes remain unpaid and the property is uninsured. See In re Pittman, 7 B.R. 760 (Bankr.S.D.N.Y.1980). In the present instance, the equity cushion protecting the interest of the Federal Land Bank is a mere 5.7 percent. Property taxes remain unpaid, and land values in the" }, { "docid": "18727637", "title": "", "text": "re Schaller, 27 B.R. 959 (D.W.D.Wis.1983) (the court held that a cushion of 17 to 18 percent did not offer adequate protection in and of itself where the cushion was being rapidly eroded by the daily accrual of interest on the debt); In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (a 7 percent equity cushion will rarely provide sufficient protection). While the Court which adheres to a fixed percentage figure as establishing the bound of adequate equity cushions offers consistency and reliability in its decisions, most courts realize that equity cushion is only one factor in determining the adequacy of a creditor’s protection. See Huntington National Bank v. A.K. Fiberglastics, Inc., 26 B.R. 549 (Bankr.S.D. Ohio 1983). A creditor’s interest in real property is not being adequately protected where real estate taxes remain unpaid and the property is uninsured. See In re Pittman, 7 B.R. 760 (Bankr.S.D.N.Y.1980). In the present instance, the equity cushion protecting the interest of the Federal Land Bank is a mere 5.7 percent. Property taxes remain unpaid, and land values in the area continue to decrease. The Court cannot find under these circumstances that the creditor’s interest remains protected. Accordingly, and for the reasons stated, IT IS ORDERED: That the Motion filed by the Federal Land Bank of St. Paul requesting relief from the automatic stay imposed under 11 U.S.C. § 362 is granted." }, { "docid": "2178969", "title": "", "text": "Corp., 22 B.R. 491 (U.S.D.C.E.D.Pa.1982) where $30,-000.00 equity in $280,000.00 of real estate was found insufficient; In re LeMay, 18 B.R. 659 (Bkrtcy.D.Mass.1982) where a 7% cushion was found inadequate. The emerging view, however, is that an otherwise sufficient cushion may not adequately protect the creditor if the cushion is being eroded by accruing interest and/or depreciation. In In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) the court required the debtor to maintain the equity cushion and forestall the erosion with a $35,000.00 interest payment. See also In re Rogers Dev. Corp., 2 B.R. 679, 5 B.C.D. 1392, 1 C.B.C.2d 499, CCH ¶ 67627 (Bkrtcy.E.D.Va.1980). In In re Monroe Park, supra, the court granted relief from stay based on an eroding equity cushion. In In re Pitts, 2 B.R. 476, 5 B.C.D. 1129, 1 C.B.C.2d 241 (Bkrtcy.C.D.Cal.1979), the court found an eroding $19,000.00 cushion on security worth $125,000.00 inadequate, but it continued the hearing to determine if the debtor could maintain and avoid further dissipation of the cushion. The Court finds in the case at bar that FLB’s security, worth $1,328,600.00, is protected by an equity cushion of $138,-600.00 or 11%. If the worse should happen, and FLB foreclosed on the property in the coming months, FLB would be completely protected. It could recover its secured claim, including postpetition interest, allowable attorney fees and reasonable costs. Although the cushion is eroding by almost $11,000.00 per month in accuring interest, it would be a year before the cushion would expire and before FLB would be in danger of becoming undersecured. Furthermore, it could be longer than a year. The debtors will soon tender to FLB the net proceeds of a $60,000.00 sale of a 30-acre tract; and they are diligently trying to sell other tracts unnecessary to their plan of reorganization, in further reduction of their debt to FLB. The Court hesitates to pull the rug from under the debtors at this stage of the proceeding, particularly since FLB will be oversecured for at least another year. These Chapter 11 debtors ought to have the opportunity to reorganize so that" }, { "docid": "1947357", "title": "", "text": "is not cause per se for relief from the automatic stay. Where, as in this case, the contractual default resulted from a record-keeping glitch or miscommunieation rooted in the past and does not reflect a current or ongoing failure or inability to make payments, cause does not exist for granting relief from stay. Furthermore, “where the value of the collateral substantially exceeds the secured creditor’s claim, a debtor’s breach of his financial obligation alone may not constitute ‘cause’ because the equity cushion in the collateral may provide the secured creditor with adequate protection.” In re Zeoli, 249 B.R. 61 (Bankr.S.D.N.Y.2000); see also In re El-mira Litho, Inc., 174 B.R. 892, 904 (Bankr.S.D.N.Y.1994) (“It is beyond cavil that an equity cushion can, under certain circumstances, serve as a form of adequate protection.”). In re Taylor, 151 B.R. 646 (E.D.N.Y.1993), a case cited by Chase Home Finance in support of the Lift-Stay Motion, cites In re Heath, 79 B.R. 616 (Bankr. E.D.Pa.1987) as authority. The court in In re Heath denied a motion for relief from stay in spite of that debtor’s failure to make any post-petition mortgage payments, because the current equity cushion adequately protected the creditor’s interest. Heath defined “equity cushion” as “the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect.” 79 B.R. at 618 (quoting In re Roane, 8 B.R. 997, 1000 (Bankr.E.D.Pa.1981)); see also In re Zinke, 1989 WL 113154, *3 (E.D.N.Y. June 9, 1989). Heath applied the following formula to express the equity cushion as a percentage: (1) appraised fair market value, (2) minus the secured creditor’s lien, (3) divided by total encumbrances. Id. n. 3. In Heath, the equity cushion was 39%; in this case, the Court calculates the equity cushion at 75%. Taylor and Heath do not support Chase Home Finance’s position on the Lift-Stay Motion. The only factor that Chase Home Finance appears to have considered before filing the Lift-Stay motion" } ]

[ { "docid": "11152990", "title": "", "text": "on the transferor’s taxable estate, rather than by the comparatively irrelevant rules of property law.” BREITENSTEIN, Circuit Judge (concurring in result). Section 811 of the 1939 Internal Revenue Code provides for the determination of the value of the gross estate of a decedent for federal estate tax purposes. Among other things, it requires the inclusion of property “(1) to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust * * * (B) under which he has retained for his life or for any period not ascertainable! without reference to his death (i) * * the right to income from, the property * # -»» Trustor-decedent in 1932 created an irrevocable trust and received no consideration therefor. She retained for life the right to income from ^ths of the property which she placed in the trust. By the plain language of the statute that portion of the property held in the trust and devoted to the payment to her of income for life is includible within her gross estate. Such property is an “interest” of which she made a transfer with the retention of income for life. The fact that the transfer of the life estate left her without any retained right to income from the trust property does not alter the result. As I read the statute the tax liability arises at the time of the inter vivos transfer under which there was a retention of the right to income for life. The disposition thereafter of that retained right does not eliminate the tax liability. The fact that full and adequate consideration was paid for the transfer of the retained life estate is immaterial. To remove the trust property from inclusion in decedent’s estate there must be full and adequate consideration paid for the interest which would be taxed. That interest is not the right to income for life but the right to the property which was placed in the trust" } ]

[ { "docid": "15449097", "title": "", "text": "at the wisdom of accepting actuarial factors than at the result just described-should be addressed. The first, to paraphrase the Claims Court in Gra-dow, is that the fee interest holder, in such a situation, might squander the proceeds from the sale of the remainder interest and, therefore, deplete the estate. See Gradow, 11 Cl.Ct. at 816 (noting that “[t]he fond hope that a surviving spouse would take pains to invest, compound, and preserve inviolate all [proceeds from a sale of the remainder interest], knowing that it would thereupon be taxed without his or her having received any lifetime benefit, is a slim basis” for holding the actuarial value of a remainder interest is adequate and full consideration under section 2036(a)). This objection amounts to a misapprehension of the estate tax. Whether an estate holder takes the “talents” received from the sale of the remainder interest and purchases blue chip securities, invests in highly volatile commodities futures, funds a gambling spree, or chooses instead to bury them in the ground, may speak to the wisdom of the estate holder, see Matthew 25:14-30, but it is of absolutely no significance to the proper determination of whether, at the time of the transfer, the estate holder received full and adequate consideration under section 2036(a). If further explanation is required, we point out that Gradow itself seems to have reached the same conclusion in an earlier portion of the opinion. See Gradow, 11 Cl.Ct. at 813 (“Even if the consideration is fungible and easily consumed, at least theoretically the rest of the estate is protected from encroachment for lifetime expenditures.”). See also Jordan, Sales of Remainder Interests, at 695-96 & n.105; Morrison, The Issue of Consideration, at 236-44. The second objection is no more availing. If a sale of a remainder interest for its actuarial value-an amount, it is worth noting, that is nothing more than the product of the undisputed “fair market value” of the underlying estate multiplied by an actuarial factor designed to adjust for the investment return over the actuarial period-constitutes adequate and full consideration under section 2036(a), then the estate" }, { "docid": "15449096", "title": "", "text": "interest and the underlying property are invested at the table rate of interest, compounded annually.” Jordan, Sales of Remainder Interests, at 692-93 (citing Keith E. Morrison, The Widow’s Election: The Issue of Consideration, 44 Tex. L.Rev. 223, 237-38 (1965)). In other words, the actuarial tables are premised on the recognition that, at the end of the actuarial period, there is no discernible difference between (1) an estate holder retaining the full fee interest in the estate and (2) an estate holder retaining income from the life estate and selling the remainder interest for its actuarial value-in either case, the estate is not depleted. This is so because both interests, the life estate and the remainder interest, are capable of valuation. Recognizing this truism, the accumulated value of a decedent’s estate is precisely the same whether she retains the fee interest or receives the actuarial value of the remainder interest outright by a sale prior to her actual. death. Id. at 691-92; Morrison, The Issue of Consideration, at 237-38. Two possible objections-which are more properly directed at the wisdom of accepting actuarial factors than at the result just described-should be addressed. The first, to paraphrase the Claims Court in Gra-dow, is that the fee interest holder, in such a situation, might squander the proceeds from the sale of the remainder interest and, therefore, deplete the estate. See Gradow, 11 Cl.Ct. at 816 (noting that “[t]he fond hope that a surviving spouse would take pains to invest, compound, and preserve inviolate all [proceeds from a sale of the remainder interest], knowing that it would thereupon be taxed without his or her having received any lifetime benefit, is a slim basis” for holding the actuarial value of a remainder interest is adequate and full consideration under section 2036(a)). This objection amounts to a misapprehension of the estate tax. Whether an estate holder takes the “talents” received from the sale of the remainder interest and purchases blue chip securities, invests in highly volatile commodities futures, funds a gambling spree, or chooses instead to bury them in the ground, may speak to the wisdom of" }, { "docid": "15449077", "title": "", "text": "a remainder interest must be sold for an amount equal to the value of the full fee simple interest in the underlying property in order to come within the parenthetical exception clause of section 2036(a). This Court has yet to address the precise issue. II. A. Gradow v. United States and the Widow’s Election Cases As the government’s position rests principally on an analogy offered by the Claims Court in Gradow, a preliminary summary of the widow’s election mechanism in the community property context is appropriate. In a community property state, a husband and wife generally each have an undivided, one-half interest in the property owned in common by virtue of their marital status, with each spouse having the power to dispose, by testamentary instrument, of his or her share of the community property. Under a widow’s election will, the decedent spouse purports to dispose of the entire community property, the surviving spouse being left with the choice of either taking under the scheme of the will or waiving any right under the will and taking his or her community share outright. One common widow’s election plan provides for the surviving spouse to in effect exchange a remainder interest in his or her community property share for an eq uitable life estate in the decedent spouse’s community property share. In Gradow, Mrs. Gradow, the surviving spouse, was put to a similar election. If she rejected the will, she was to receive only her share of the community property. Id. 11 Cl.Ct. at 809. If she chose instead to take ■under her husband’s will, she was required to transfer her share of the community property to a trust whose assets would consist of the community property of both spouses, with Mrs. Gradow receiving all the trust income for life and, upon her death, the trust corpus being distributed to the Gradows’ son. Id. Mrs. Gradow chose to take under her husband’s will and, upon her death, the executor of her estate did not include any of the trust assets within her gross estate. Id. The executor asserted that the life estate" }, { "docid": "15449076", "title": "", "text": "Reg. § 25.2512-5(A). For estate tax purposes, however, authorities are split. Commentators have generally urged the same construction should apply, see, e.g., Jordan, supra; Steven A. Horowitz, Economic Reality In Estate Planning: The Case for Remainder Interest Sales, 73 Taxes 386 (1995); Jeffrey N. Pennell, Cases Addressing Sale of Remainder Wrongly Decided, 22 Est. Plan. 305 (1995), and the Third Circuit has held that “adequate and full consideration” under section 2036(a) is determined in reference to the value of the remainder interest transferred, not the value of the full fee simple interest in the underlying property. D'Ambrosio v. Commissioner, 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997). On the other hand, Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed.Cir.1990), and its faithful progeny Pittman v. United States, 878 F.Supp. 833 (E.D.N.C.1994), and D’Ambrosio v. Commissioner, 105 T.C. 252, 1995 WL 564078 (1995), rev’d 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997), have stated that a remainder interest must be sold for an amount equal to the value of the full fee simple interest in the underlying property in order to come within the parenthetical exception clause of section 2036(a). This Court has yet to address the precise issue. II. A. Gradow v. United States and the Widow’s Election Cases As the government’s position rests principally on an analogy offered by the Claims Court in Gradow, a preliminary summary of the widow’s election mechanism in the community property context is appropriate. In a community property state, a husband and wife generally each have an undivided, one-half interest in the property owned in common by virtue of their marital status, with each spouse having the power to dispose, by testamentary instrument, of his or her share of the community property. Under a widow’s election will, the decedent spouse purports to dispose of the entire community property, the surviving spouse being left with the choice of either taking under the scheme of the will or waiving any right under the will and" }, { "docid": "13617883", "title": "", "text": "the community property to the trust, retaining a life interest in what she transferred. Accordingly, under the general operation of section 2036(a), the value of the community property Betty transferred to the trust would be brought into her estate as she made a transfer with a retained life interest. If, however, the transfer of the property with a retained life interest is a “bona fide sale for an adequate and full consideration in money or money’s worth,” it is entirely excluded from the operation of section 2036(a). Thus, if that exception applies to Betty, the value of the property she transferred would not be included in her gross estate for federal estate tax purposes. At issue here is whether there was such a “bona fide sale for an adequate and full consideration.” In determining whether “adequate and full consideration” existed, the Claims Court sought to identify and value the halves of the “sale.” With respect to the consideration flowing to Betty, it was determined that Betty received, at a minimum, a life income in her husband’s share of the community property. The dispute below, and again on appeal, focused on whether the consideration flowing from Betty was simply the value of her remainder interest in half of the community property (the executor’s position), or the value of half of the community property, i.e., one half of the fee (the government’s position). The Claims Court held for the government, ruling that “[fjor the purposes of evaluating whether [Betty’s] election constituted full and adequate consideration within the meaning of § 2036(a), the consideration flowing from Betty Gradow consists of the property which would otherwise have been included in her gross estate by virtue of her retention of a life estate— i.e., her half of the community property.” 11 Cl.Ct. at 816. The Claims Court found support for its interpretation of the exception in section 2036(a) in decisions of the Ninth and Tenth Circuits, the Tax Court, and, from a policy standpoint, the Supreme Court. Although not bound by the decisions of the Tax Court and other Circuits, we, like the Claims Court," }, { "docid": "15449082", "title": "", "text": "the transfer of her remainder interest. It is precisely this imbalance that the commentators cited in Gradow- and the “equilibrium rule” gleaned from United States v. Allen-recognized as the determinative factor in the widow’s election context. Because a surviving spouse’s transfer of a remainder interest depletes the gross estate, there can be no “bona fide sale for an adequate and full consideration” unless the gross estate is augmented commensurately. See Charles L.B. Lowndes, Consideration and the Federal Estate and Gift taxes: Transfers for Partial Consideration, Relinquishment of Marital Rights, Family Annuities, the Widow’s Election, and Reciprocal Trusts, 35 Geo. Wash. L.Rev. 50, 66 (1966); Stanley M. Johanson, Revocable Trusts, Widow’s Election Wills, and Community Property: The Tax Problems, 47 Tex. L.Rev. 1247, 1283-84 (1969) (“But in the widow’s election situation, the interest the wife receives as a result of her election-transfer is a life estate in her husband’s community share-an interest which, by its nature, will not be taxed in the wife’s estate at her death. It appears that the wife’s estate is given a consideration offset for the receipt of an interest that did not augment her estate.”). Accordingly, we need not address the issue whether the value or income derived from a life estate in the decedent-spouse’s community property share can ever constitute adequate and full consideration. For our purposes it is enough to observe that, in most cases, the equitable life estate received by the surviving spouse will not sufficiently augment her gross estate to offset the depletion caused by the transfer of her remainder interest. This depletion of the gross estate prevents the operation of the adequate and full consideration exception to section 2036(a). Had the court in Gradow limited its discussion of section 2036(a)’s adequate and full consideration exception to the widow’s election context, the nettlesome task of distinguishing its blanket rule of including the value of the full fee interest on the underlying property when a remainder interest is transferred might be somewhat easier. In dicta, however, and apparently in response to a hypothetical posed by the taxpayer, the Gradow court let loose a" }, { "docid": "15449125", "title": "", "text": "(date-of-election) value of the life estate in the decedent spouse’s community property share. Estate of Christ v. Commissioner, 480 F.2d 171, 172 (9th Cir.1973). If, at the date of election, the life estate in the decedent spouse's community property share received by the surviving spouse is worth less than the then actuarial value of her remainder interest, then the amount of her subsequent gross estate enhancement under section 2036(a) caused by her retained life estate is “offset” pursuant to section 2043(a). Id. If this point is reached, then the analysis necessarily follows Vardell: under section 2043(a) the date-of-death value of the (now-dead) surviving spouse’s remainder interest which is included in the estate is offset by the actuarial (date-of-election) value of her life estate in the decedent spouse's community property share. Id. But see United States v. Past, 347 F.2d 7, 13-14 (9th Cir.1965) (stating that the date-of-election value of the amount the surviving spouse receives under a trust must be measured against the'entire underlying fee amount she transferred to the trust and not the remainder interest therein); Estate of Gregory v. Commissioner, 39 T.C. 1012, 1022, 1963 WL 1488 (1963) (same). The Third Circuit in D’Ambrosio found no reason why a court’s analysis of a widow’s election transaction should not compare the actuarial (date-of-election) value of the remainder interest transferred to the actuarial (date-of-election) value of the life estate received. 101 F.3d at 313-14. ■ Accordingly, the Third Circuit found both Gregory and Past wrongly decided. Although we find the Third Circuit’s analysis persuasive, we see little utility in revisiting the federal estate tax ramifications of the widow’s election device in light of the post-1981 unlimited marital deduction (for which the typical election, devise would not qualify). See IRC § 2056. . In the widow's election context, the remainder-men are, essentially, third-party beneficiaries of the widow’s election transaction. We also need not, and do not, address the significance of this configuration on the operation of the \"adequate and full consideration” exception to section 2036(a). . Actually, one need leave little to the imagination. Within a year of the Federal Circuit's" }, { "docid": "15449103", "title": "", "text": "transfer-like any other-must be a “bona fide sale” for the purposes of section 2036(a). But assuming, as we must here, that a family member purports to pay the appropriate value of the remainder interest, the only possible grounds for challenging the legitimacy of the transaction are whether the transferor actually parted with the remainder interest and the transferee actually parted with the requisite adequate and full consideration. Accordingly, we do not find convincing the government’s position that the term “bona fide” as used in section 2036(a) presents an adequate basis for imposing a dual system of valuation under the statute. E. IntraFamily Transactions At oral argument the government pursued a line of reasoning not fully anticipated by their briefs Gradow /no-bona-fide-transaction theory. Stated concisely, the government asserted that, because the purpose of section 2036(a) is to reach those split-interest transfers that amount to testamentary substitutes and include the underlying asset’s value in the gross estate, the adequate and full consideration for intrafamily transfers-which are generally testamentary in nature because the interest passes “to the natural objects of one’s bounty in the next generation”-must be measured against the entire value of the underlying asset in order to accomplish section 2036(a)’s purpose. This argument is necessarily at odds with Gradow’s “fundamental principles of grammar” approach that rested on a construction of the bona fide sale exception that did not purport to distinguish between either the identity or the subjective intent of the parties. We reject the government’s prof fered construction as not supported by the statutory language. Moreover, a policy-based argument to preclude intrafamily transfers of split-interests for full actuarial value if the transaction appears to have been undertaken in contemplation of death embraces a concept that the Congress chose to abandon twenty years ago-the notion that the subjective intent of an asset holder should determine the tax consequences of his transfer. Given the similarity between the government’s argument and the old gift-in-contemplation-of-death scheme, a brief review is appropriate. Recognizing that the most obvious way to defeat the estate tax would be through inter vivos gifts, the estate tax, from its inception," }, { "docid": "15449083", "title": "", "text": "consideration offset for the receipt of an interest that did not augment her estate.”). Accordingly, we need not address the issue whether the value or income derived from a life estate in the decedent-spouse’s community property share can ever constitute adequate and full consideration. For our purposes it is enough to observe that, in most cases, the equitable life estate received by the surviving spouse will not sufficiently augment her gross estate to offset the depletion caused by the transfer of her remainder interest. This depletion of the gross estate prevents the operation of the adequate and full consideration exception to section 2036(a). Had the court in Gradow limited its discussion of section 2036(a)’s adequate and full consideration exception to the widow’s election context, the nettlesome task of distinguishing its blanket rule of including the value of the full fee interest on the underlying property when a remainder interest is transferred might be somewhat easier. In dicta, however, and apparently in response to a hypothetical posed by the taxpayer, the Gradow court let loose a response that, to say the least, has since acquired a life of its own. The entire passage-and the source of much consternation-is as follows: “Plaintiff argues that the defendant’s construction would gut the utility of the ‘bona fide sales’ exception and uses a hypothetical to illustrate his point. In the example a 40-year-old man contracts to put $100,000.00 into a trust, reserving the income for life but selling the remainder. Plaintiff points out that based on the seller’s life' expectancy, he might receive up to $30,000.00 for the remainder, but certainly no more. He argues that this demonstrates the unfairness of defendant insisting on consideration equal to the $100,000.00 put into trust before it would exempt the sale from § 2036(a). There are a number of defects in plaintiffs hypothetical. First, the transaction is obviously not testamentary, unlike the actual circumstances here. In addition, plaintiff assumes his conclusion by focusing on the sale of the remainder interest as the only relevant transaction. Assuming it was not treated as a sham, the practical effect is a" }, { "docid": "15449124", "title": "", "text": "§ 2036 and the related sections is to include all of such property in her gross estate subject to such credits, if any, as may be due.”). The Vardell court, therefore, does not appear to have been confronted with a situation where the life estate received by the surviving spouse was equal or greater in value than the remainder interest transferred. Id.; see also United States v. Gordon, 406 F.2d 332 (5th Cir.1969) (involving the transfer of a wife's remainder interest for a life estate in a trust worth less than the transferred remainder). Gradow, however, apparently did present such a situation, but the Claims Court chose not to address valuation of the transferred interest at the date of election. Other courts, however, have followed approaches that call fop just such a valuation. The Ninth Circuit, for example, embraced a construct in the widow’s election context that calculates adequate consideration under section 2036(a) by comparing the actuarial (date-of-election) value of the remainder interest in the surviving spouse’s share of her community properly with the actuarial (date-of-election) value of the life estate in the decedent spouse’s community property share. Estate of Christ v. Commissioner, 480 F.2d 171, 172 (9th Cir.1973). If, at the date of election, the life estate in the decedent spouse's community property share received by the surviving spouse is worth less than the then actuarial value of her remainder interest, then the amount of her subsequent gross estate enhancement under section 2036(a) caused by her retained life estate is “offset” pursuant to section 2043(a). Id. If this point is reached, then the analysis necessarily follows Vardell: under section 2043(a) the date-of-death value of the (now-dead) surviving spouse’s remainder interest which is included in the estate is offset by the actuarial (date-of-election) value of her life estate in the decedent spouse's community property share. Id. But see United States v. Past, 347 F.2d 7, 13-14 (9th Cir.1965) (stating that the date-of-election value of the amount the surviving spouse receives under a trust must be measured against the'entire underlying fee amount she transferred to the trust and not the remainder" }, { "docid": "15449080", "title": "", "text": "at 813. Therefore, according to the court, if the general rule of section 2036(a) were to apply, the date-of-death value of the property transferred to the trust corpus by Mrs. Gra-dow-rather than the zero date-of-death value of her life interest in that property-would be included in her gross estate. Id. Citing “[fundamental principles of grammar,” the court concluded that the bona fide sale exception must refer to adequate and full consideration for the property placed into the trust and not the remainder interest in that property. Id. Fundamental principles of grammar aside, the Gradow court rested its conclusion equally on the underlying purpose of section 2036(a), observing that: “The only way to preserve the integrity of the section, then, is to view the consideration moving from the surviving spouse as that property which is taken out of the gross estate. In the context of intra-family transactions which are plainly testamentary, it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Id. at 813-14. In support of its equilibrium rule, the Gra-dow court cited precedent in the adequate and full consideration area, most notably United States v. Allen, 293 F.2d 916 (10th Cir.), cert. denied, 368 U.S. 944, 82 S.Ct. 378, 7 L.Ed.2d 340 (1961). It is not our task to address the merits of Gradow’s analysis of how section 2036(a) operates in the widow’s election context but rather to determine whether the Gradow decision supports the construction urged by the government in the sale of a remainder context. We conclude that the widow election cases present factually distinct circumstances that preclude the wholesale importation of Gradow’s rationale into the present case. As noted, a widow’s election mechanism generally involves an arrangement whereby the surviving spouse exchanges a remainder interest in her community property share for a life estate in that of her deceased spouse. Usually, as in Gradow, the interests are in trust. Necessarily, the receipt of an equitable life estate in the decedent-spouse’s community property share does little to offset the reduction in the surviving spouse’s gross estate caused by" }, { "docid": "15449126", "title": "", "text": "interest therein); Estate of Gregory v. Commissioner, 39 T.C. 1012, 1022, 1963 WL 1488 (1963) (same). The Third Circuit in D’Ambrosio found no reason why a court’s analysis of a widow’s election transaction should not compare the actuarial (date-of-election) value of the remainder interest transferred to the actuarial (date-of-election) value of the life estate received. 101 F.3d at 313-14. ■ Accordingly, the Third Circuit found both Gregory and Past wrongly decided. Although we find the Third Circuit’s analysis persuasive, we see little utility in revisiting the federal estate tax ramifications of the widow’s election device in light of the post-1981 unlimited marital deduction (for which the typical election, devise would not qualify). See IRC § 2056. . In the widow's election context, the remainder-men are, essentially, third-party beneficiaries of the widow’s election transaction. We also need not, and do not, address the significance of this configuration on the operation of the \"adequate and full consideration” exception to section 2036(a). . Actually, one need leave little to the imagination. Within a year of the Federal Circuit's affir-mance of Gradow, 897 F.2d 516 (Fed.Cir.1990), the IRS reversed its consistent practice of calculating adequate and full consideration for the sale of remainder interests under section 2036(a) by using the actuarial factors set forth in the Treasury Regulations-see, e.g., Rev. Rul. 80-80, 1980-12 I.R.C. 10 (“fTlhe current actuarial tables in the regulations shall be applied if valuation of an individual’s life interest is required for purposes of the federal estate or gift taxes unless the individual is known to have been afflicted, at the time of transfer, with an incurable physical condition that is in such an advanced stage that death is clearly imminent.”); Priv. Ltr. Rul. 78-06-001 (Oct. 31, 1977); Priv. Ltr. Rul. 80-41-098 (Jul. 21, 1980); Tech. Adv. Mem. 81-45-012 (Jul. 20, 1981)-and began to cite the Gradow dicta as controlling, see, e.g., Priv. Ltr. Rul. 91-33-001 (Jan. 31, 1991) (\"For purposes of section 2036(a), in determining whether an adequate and full consideration was received by a decedent upon transferring an interest in property, the consideration received by the decedent is compared" }, { "docid": "15449088", "title": "", "text": "requires only that the sale not deplete the gross estate. Gradow was correct in observing that “it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Gradow, 11 Cl.Ct. at 813-14. Indeed, United States v. Allen, 293 F.2d 916, when properly construed, stands simply for that proposition. In Allen, the decedent had created, and made a donative transfer of assets to, an irrevocable inter vivos trust, reserving a three-fifth interest in the income for life, her two children to receive the remainder in the entire corpus and the other two-fifths of the income. Id. at 916. Thereafter, being advised that her retention of the three-fifths of the life estate would result in the inclusion of three-fifths of the trust corpus in her gross estate at her death, the decedent sold her life estate to one of her children for a little over its actuarial value. She died shortly thereafter. Id. at 916-17. The trial court, although finding that the transfer of the life estate was made in contemplation of death, found that the consideration paid for it was “adequate and full,” thereby removing the property from the taxpayer’s estate. The Tenth Circuit reversed. Using the language that Gra-dow later quoted, the Tenth Circuit determined that the adequacy of the consideration paid for the life estate should be measured not against the interest received by the purchaser, but . rather by the amount that would prevent depletion of the transferor’s gross estate. Id. at 918 & n. 2. “It does not seem plausible, however, that Congress intended to allow such an easy avoidance of the taxable incidence befalling reserved life estates. This result would allow a taxpayer to reap the benefits of property for his lifetime and, in contemplation of death, sell only the interest entitling him to the income, thereby removing all of the property which he has enjoyed from his gross estate. Giving the statute a reasonable interpretation, we cannot be lieve this to be its intendment. It seems certain that in a situation like this, Congress meant the estate" }, { "docid": "15449087", "title": "", "text": "2036(a). If the taxpayer chooses instead to follow Gra-dow, and is somehow able to find a willing purchaser of his remainder interest for the full fee-simple value of the underlying property, he will in fact avoid estate tax liability; section 2036(a) would not be triggered. The purchaser, however, having paid the fee-simple value for the remainder interest in the estate, will have paid more for the interest than it was worth. As the “adequate and full consideration” for a remainder interest under section 2512(b) is its actuarial value, the purchaser will have made a gift of the amount paid in excess of its actuarial value, thereby incurring gift tax liability. Surely, in the words of Professor Gilmore, this “carr[ies] a good joke too far.” B. United States v. Allen The problem with the Gradow dicta is that, in its effort to escape the hypothetical posed by the taxpayer, it lost sight of the very principle the court was trying to apply; namely, the notion that adequate and full consideration under the exception to section 2036(a) requires only that the sale not deplete the gross estate. Gradow was correct in observing that “it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Gradow, 11 Cl.Ct. at 813-14. Indeed, United States v. Allen, 293 F.2d 916, when properly construed, stands simply for that proposition. In Allen, the decedent had created, and made a donative transfer of assets to, an irrevocable inter vivos trust, reserving a three-fifth interest in the income for life, her two children to receive the remainder in the entire corpus and the other two-fifths of the income. Id. at 916. Thereafter, being advised that her retention of the three-fifths of the life estate would result in the inclusion of three-fifths of the trust corpus in her gross estate at her death, the decedent sold her life estate to one of her children for a little over its actuarial value. She died shortly thereafter. Id. at 916-17. The trial court, although finding that the transfer of the life estate was made" }, { "docid": "15449085", "title": "", "text": "transfer of the entire $100,-000.00, not just a remainder. More importantly, however, if plaintiff is correct that one should be able, under the ‘bona fide sale’ exception to remove property from the gross estate by a sale of the remainder interest, the exception would swallow the rule. A young person could sell a remainder interest for a fraction of the property’s worth, enjoy the property for life, and then pass it along without estate or gift tax consequences.” Gradow, 11 Cl.Ct. at 815. The Claims Court went on to conclude that “[t]he fond hope that a surviving spouse would take pains to invest, compound, and preserve inviolate all the life income from half of a trust, knowing that it would thereupon be taxed without his or her having received any lifetime benefit, is a slim basis for putting a different construction on § 2036(a) than the one heretofore consistently adopted.” Id. at 816. One can only imagine the enthusiasm with which the IRS received the news that, at least in the view of ope court, it would not have to consider the time value of money when determining adequate and full consideration for a remainder interest. Subsequent to the Gradow decision, the government has successfully used the above quoted language to justify inclusion in the gross estate of the value of the full fee interest in the underlying property even where the transferor sold the remainder interest for its undisputed actuarial value. See Pittman v. United States, 878 F.Supp. 833 (E.D.N.C. 1994). See also D’Ambrosio v. Commissioner, 105 T.C. 252, 1995 WL 564078 (1995), rev’d, 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997). Pittman (and the Tax Court’s decision' in D’Ambrosio) presents a conscientious estate planner with quite a conundrum. If the taxpayer sells a remainder interest for its actuarial value as calculated under the Treasury Regulations, but retains a life estate, the value of the full fee interest in the underlying property will be included in his gross estate and the transferor will incur substantial estate tax liability under section" }, { "docid": "15449081", "title": "", "text": "its equilibrium rule, the Gra-dow court cited precedent in the adequate and full consideration area, most notably United States v. Allen, 293 F.2d 916 (10th Cir.), cert. denied, 368 U.S. 944, 82 S.Ct. 378, 7 L.Ed.2d 340 (1961). It is not our task to address the merits of Gradow’s analysis of how section 2036(a) operates in the widow’s election context but rather to determine whether the Gradow decision supports the construction urged by the government in the sale of a remainder context. We conclude that the widow election cases present factually distinct circumstances that preclude the wholesale importation of Gradow’s rationale into the present case. As noted, a widow’s election mechanism generally involves an arrangement whereby the surviving spouse exchanges a remainder interest in her community property share for a life estate in that of her deceased spouse. Usually, as in Gradow, the interests are in trust. Necessarily, the receipt of an equitable life estate in the decedent-spouse’s community property share does little to offset the reduction in the surviving spouse’s gross estate caused by the transfer of her remainder interest. It is precisely this imbalance that the commentators cited in Gradow- and the “equilibrium rule” gleaned from United States v. Allen-recognized as the determinative factor in the widow’s election context. Because a surviving spouse’s transfer of a remainder interest depletes the gross estate, there can be no “bona fide sale for an adequate and full consideration” unless the gross estate is augmented commensurately. See Charles L.B. Lowndes, Consideration and the Federal Estate and Gift taxes: Transfers for Partial Consideration, Relinquishment of Marital Rights, Family Annuities, the Widow’s Election, and Reciprocal Trusts, 35 Geo. Wash. L.Rev. 50, 66 (1966); Stanley M. Johanson, Revocable Trusts, Widow’s Election Wills, and Community Property: The Tax Problems, 47 Tex. L.Rev. 1247, 1283-84 (1969) (“But in the widow’s election situation, the interest the wife receives as a result of her election-transfer is a life estate in her husband’s community share-an interest which, by its nature, will not be taxed in the wife’s estate at her death. It appears that the wife’s estate is given a" }, { "docid": "15449079", "title": "", "text": "received by Mrs. Gradow was full and adequate consideration under section 2036(a) for the transfer of her community property share to the trust, but the IRS disagreed. Id. Before the Claims Court, the parties stipulated that the value of Mrs. Gradow’s share of the community property exceeded the actuarial value of an estate for her life in her husband’s share. Id. However, the estate contended that the value of the life estate in the husband’s share equaled or exceeded the value of the remainder interest in Mrs. Gra-dow’s share. The Claims Court did not clearly resolve that contention because it determined that the consideration flowing from Mrs. Gradow was “the entire value of the property she placed in the trust, i.6., her half of the community property,” and that thus the life estate was inadequate consideration, so the exception to section 2036(a) was unavailable. Id. at 810. The court in Gradow concluded that the term “property” in section 2036(a) referred to the entirety of that part of the trust corpus attributable to Mrs. Gradow. Id. at 813. Therefore, according to the court, if the general rule of section 2036(a) were to apply, the date-of-death value of the property transferred to the trust corpus by Mrs. Gra-dow-rather than the zero date-of-death value of her life interest in that property-would be included in her gross estate. Id. Citing “[fundamental principles of grammar,” the court concluded that the bona fide sale exception must refer to adequate and full consideration for the property placed into the trust and not the remainder interest in that property. Id. Fundamental principles of grammar aside, the Gradow court rested its conclusion equally on the underlying purpose of section 2036(a), observing that: “The only way to preserve the integrity of the section, then, is to view the consideration moving from the surviving spouse as that property which is taken out of the gross estate. In the context of intra-family transactions which are plainly testamentary, it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Id. at 813-14. In support of" }, { "docid": "15449078", "title": "", "text": "taking his or her community share outright. One common widow’s election plan provides for the surviving spouse to in effect exchange a remainder interest in his or her community property share for an eq uitable life estate in the decedent spouse’s community property share. In Gradow, Mrs. Gradow, the surviving spouse, was put to a similar election. If she rejected the will, she was to receive only her share of the community property. Id. 11 Cl.Ct. at 809. If she chose instead to take ■under her husband’s will, she was required to transfer her share of the community property to a trust whose assets would consist of the community property of both spouses, with Mrs. Gradow receiving all the trust income for life and, upon her death, the trust corpus being distributed to the Gradows’ son. Id. Mrs. Gradow chose to take under her husband’s will and, upon her death, the executor of her estate did not include any of the trust assets within her gross estate. Id. The executor asserted that the life estate received by Mrs. Gradow was full and adequate consideration under section 2036(a) for the transfer of her community property share to the trust, but the IRS disagreed. Id. Before the Claims Court, the parties stipulated that the value of Mrs. Gradow’s share of the community property exceeded the actuarial value of an estate for her life in her husband’s share. Id. However, the estate contended that the value of the life estate in the husband’s share equaled or exceeded the value of the remainder interest in Mrs. Gra-dow’s share. The Claims Court did not clearly resolve that contention because it determined that the consideration flowing from Mrs. Gradow was “the entire value of the property she placed in the trust, i.6., her half of the community property,” and that thus the life estate was inadequate consideration, so the exception to section 2036(a) was unavailable. Id. at 810. The court in Gradow concluded that the term “property” in section 2036(a) referred to the entirety of that part of the trust corpus attributable to Mrs. Gradow. Id." }, { "docid": "15449123", "title": "", "text": "her gross estate, subject only to such credits, if any, as may be due under section 2043(a) (quoted in note 6, supra). See Lowndes, Consideration and the Federal Estate and Gift Taxes, at 67-68 (discussing Estate of Vardell v. Commissioner, 307 F.2d 688, 692-94 (5th Cir.1962)). Accordingly, the amount of the surviving spouse’s subsequent gross estate enhancement under section 2036(a) caused by her retained life estate would be “offset” pursuant to section 2043(a). Vardell, 307 F.2d at 693. However, it is the date-of-death value of the (now-dead) surviving spouse’s remainder interest that is offset by the actuarial (date-of-election) value of her life estate in the decedent spouse's community property share under section 2043(a). Id. at 693-94. Vardell did not address the date-of-election value of the surviving spouse’s remainder interest, although there are indications that the life estate in the husband’s community property share was worth less than the transferred remainder. Vardell, 307 F.2d at 692 (\"Nor are we concerned with a valuation of the property interest transferred by Mrs. Vardell since the very purpose of § 2036 and the related sections is to include all of such property in her gross estate subject to such credits, if any, as may be due.”). The Vardell court, therefore, does not appear to have been confronted with a situation where the life estate received by the surviving spouse was equal or greater in value than the remainder interest transferred. Id.; see also United States v. Gordon, 406 F.2d 332 (5th Cir.1969) (involving the transfer of a wife's remainder interest for a life estate in a trust worth less than the transferred remainder). Gradow, however, apparently did present such a situation, but the Claims Court chose not to address valuation of the transferred interest at the date of election. Other courts, however, have followed approaches that call fop just such a valuation. The Ninth Circuit, for example, embraced a construct in the widow’s election context that calculates adequate consideration under section 2036(a) by comparing the actuarial (date-of-election) value of the remainder interest in the surviving spouse’s share of her community properly with the actuarial" }, { "docid": "15449127", "title": "", "text": "affir-mance of Gradow, 897 F.2d 516 (Fed.Cir.1990), the IRS reversed its consistent practice of calculating adequate and full consideration for the sale of remainder interests under section 2036(a) by using the actuarial factors set forth in the Treasury Regulations-see, e.g., Rev. Rul. 80-80, 1980-12 I.R.C. 10 (“fTlhe current actuarial tables in the regulations shall be applied if valuation of an individual’s life interest is required for purposes of the federal estate or gift taxes unless the individual is known to have been afflicted, at the time of transfer, with an incurable physical condition that is in such an advanced stage that death is clearly imminent.”); Priv. Ltr. Rul. 78-06-001 (Oct. 31, 1977); Priv. Ltr. Rul. 80-41-098 (Jul. 21, 1980); Tech. Adv. Mem. 81-45-012 (Jul. 20, 1981)-and began to cite the Gradow dicta as controlling, see, e.g., Priv. Ltr. Rul. 91-33-001 (Jan. 31, 1991) (\"For purposes of section 2036(a), in determining whether an adequate and full consideration was received by a decedent upon transferring an interest in property, the consideration received by the decedent is compared to the value of the underlying property rather than the value of the transferred interest; the consideration thus being a replacement of the property otherwise includible in the decedent’s gross estate.”) (citing Gradow, 11 Cl.Ct. 808). . See Jordan, Sales of Remainder Interests, at 682. The special valuation rules of the subsequently-enacted section 2702(a) do not operate to frustrate this unfortunate result. Section 2702(a)’s special valuation rules address whether a gift has been made by the transferor, not the purchaser. Jordan, supra. . Grant Gilmore, The Uniform Commercial Code: A Reply to Professor Beutel, 61 Yale L.J. 364, 375-76 (1952) (characterizing, in an entirely different context, the same type of heads-I-win-tails-you-lose scheme). . Allen can only properly be understood as a \"contemplation of death” case. As noted, the trial court found the life estate was transferred in contemplation of death, and this finding was not disturbed on appeal. See D’Ambrosio, 101 F.3d at 312 (transfer of life estate in Allen \"a testamentary transaction with palpable tax evasion motive”); 5 Bittker & Lokken, Federal Taxation of" } ]

[ { "docid": "15501001", "title": "", "text": "entrapment. Appellant argues that his admission of the government’s proof of his conversations with and receipt of money from Webster allows him to rely on entrapment even though he refused to admit his guilt of obstructing justice. This argument is based on his contention that whether such conversations and receipt establish obstruction of justice is a question for the jury. Defense counsel agreed with the district judge’s observa tions that the jury could find “several possibilities” from appellant’s admission, including “that [appellant] was there, but that [Webster] talked him into taking the money, but [appellant] never took it with the idea of killing anybody; that he might have been using it to investigate the case, or ... to take the money and run off with it.” Trial Transcript 384. Under these circumstances the district judge properly precluded appellant from relying on the defense of entrapment. Such a defense “admits all elements of the offense,” United States v. Lamonge, 458 F.2d 197, 201 (6th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972), and appellant’s reliance on it would be “unusual ... .in that he [would claim] he was entrapped into violating a law, that he also [would claim] he did not violate in the first place.” United States v. Posey, 501 F.2d 998, 1002 (6th Cir. 1974). Of the numerous cases posing the permissibility of relying on entrapment in similar circumstances (see generally Annot., Availability of defense of entrapment where accused denied participating at all in offense, 61 A.L.R.2d 677 (1958)), United States v. Barrios, 457 F.2d 680 (9th Cir. 1972), is the closest to being in point. “[T]he admission of defendant that he possessed the [opium], coupled with his vehement denial of any knowledge regarding its nature or illegal origin, [does not] amount to such an admission as to entitle him to raise the entrapment defense.” 457 F.2d at 682. Second, appellant claims that the district court improperly permitted the prosecutor, in cross-examining appellant, to ask him whether he had made certain statements based upon the prosecutor’s interpretation of the often inaudible tape recordings. Appellant" } ]

[ { "docid": "17246655", "title": "", "text": "by the defendant seller. See United States v. Barnett, 418 F.2d 309 (6th Cir.1969); United States v. Lloyd, 400 F.2d 414 (6th Cir.1968). However, this Court has found non-disclosure proper when the informer, like “Bob”, was not a participant in the drug transactions. United States v. McManus, 560 F.2d 747, 751 (6th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 798 (1978). In United States v. Lloyd, 400 F.2d 414 (6th Cir.1968) this Court made the following applicable finding: The privilege of the Government to withhold the identity of informers is especially important in the enforcement of narcotic laws. In the illegal sale of narcotics there is usually no complaining witness. The transaction is always consensual; only the pusher and the buyer are involved. The Government must of necessity rely on informers, and an informer is effective only so long as his identity is not known. A court is reluctant, therefore, to require that an informer’s identity be revealed. 400 F.2d at 415. Based on the facts of the instant case, we find that the privilege of non-disclosure is balanced in favor of the government. The identity of the informant was not “relevant and helpful to the defense” or “essential to a fair determination of the cause.” Therefore, we find that the district court properly denied the motion for disclosure. Whitley contends that although “Bob” did not participate in the drug transaction, he allegedly played a role in the conspiracy. This contention cannot stand after close scrutiny of the facts in this case. After the first meeting with Agent Best, Whitley planned the transaction which eventually led to his conviction. This plan was made without the participation of the informant. Whitley and Best had numerous telephone conversations about the drug deal, beginning the day after their first meeting. Whitley gave Best two pay telephone numbers that were used to set up the transaction. Moreover, Whitley initiated the meeting between Best and defendants Wagers and Foley at Whitley’s apartment. Thus, Whitley’s conspiracy with the other defendants did not begin until after “Bob” was totally uninvolved. Similarly, in United" }, { "docid": "16691783", "title": "", "text": "Cir. 1977), we see no need to expand this circuit’s position. The court did not abuse its discretion in refusing to allow evidence of the previous payments. See United States v. Bower, 575 F.2d 499, 503 (5th Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 572, 58 L.Ed.2d 654 (1978). See generally United States v. Webster, 606 F.2d 581, 585 (5th Cir., 1979). IV. Entrapment Following the close of the case, but before the jury had been instructed on matters of law by the court, the appellant submitted a list of requested jury charges. Among these was a request that the defense of entrapment be included in the list of essential elements. Appellant contends that (1) entrapment should be found as a •matter of law and (2) in the alternative, the trial judge should instruct the jury on entrapment as if it were an essential element of the offense. Except in limited circumstances, see Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), the entrapment question, if adequately raised, should be submitted to the jury. United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977). In United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411 (1973), this court found that a defendant was entrapped as a matter of law when a government informer supplied narcotics to defendant for sale to a government agent. The Supreme Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), however, established that a defendant was not protected by an entrapment defense unless the government’s activities actually implanted in an innocent person’s mind the disposition to commit the charged offense and induced its commission. Id. at 490, 96 S.Ct. at 1650 (quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 213, 77 L.Ed. 413 (1932)). See United States v. Garrett, 583 F.2d 1381, 1390-91 (5th Cir. 1978); United States v. Benavidez, 558 F.2d at 309. See generally United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36" }, { "docid": "17246657", "title": "", "text": "States v. Jackson, 422 F.2d 975 (6th Cir.1970), the informant had led the government agent to a meeting with a defendant who was later charged with conspiracy and possessing stolen property. This Court upheld the informer’s privilege, finding that disclosure was not essential to a fair determination of the charges. 422 F.2d at 977. Whitley also argues that disclosure was necessary for him to establish an entrapment defense. Regardless of whether the informant’s identity was disclosed, however, Whitley did not demonstrate any of the other requirements for the entrap ment defense. Whitley did not testify, admit the acts or present any evidence whatsoever. To rely on the defense of entrapment, the defendant must admit all elements of the offense. United States v. Bryant, 716 F.2d 1091 at 1094 (6th Cir.,1983); United States v. Mitchell, 514 F.2d 758, 761 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975); United States v. Lamonge, 458 F.2d 197, 201 (6th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972). Furthermore, this Court has noted that the “[m]ere fact that the Government informant ... on various occasions attempted to arrange the purchase of narcotics from [defendant] does not establish the defense of entrapment as a matter of law.” United States v. Henciar, 568 F.2d 489, 491 (6th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978). C. Severance Motion Appellant Harrison asserts that he was denied a fair trial because the trial court denied his motion for severance from the other appellants. He alleges he was denied the use of co-defendant Wagers as a witness. This assertion is without merit. Fed.R.Crim.P. 8(b) provides that joinder of defendants is permissible if they are alleged to have participated “in the same series of acts or transactions constituting an offense or offenses.” It is well settled that joinder is proper under Rule 8(b) where an indictment, as in this case, charges multiple defendants with participation in a single conspiracy. United States v. Warner, 690 F.2d 545, 551 (6th Cir.1982); United States v. Goble, 512 F.2d" }, { "docid": "13169387", "title": "", "text": "to the entrapment defense). The appellants have, in this case, failed to introduce any evidence tending to show that Agent Saylor preyed upon them or shook them down. See Schaefer v. Commonwealth, 622 S.W.2d 218, 220 (Ky.1981). Thus, we decline to hold as a matter of law that the appellants were entitled to the defense of extortion. . We note that only the criminal enterprise must affect interstate commerce — not the conduct of each individual defendant. E.g., United States v. Groff, 643 F.2d 396, 400 (6th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 121, 70 L.Ed.2d 103 (1981). . The district court judge held a full day hearing to determine whether the tape recordings met the standard set forth in our prior opinion in this case, United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983). . The record before this Court is unclear as to whether appellant Coldiron invoked properly the entrapment defense by admitting all the elements of the offenses with which he was charged. See, e.g., United States v. Whitley, 734 F.2d 1129, 1138-39 (6th Cir.1984); United States v. Bryant, 716 F.2d 1091, 1094 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). Due to our disposition of this issue, however, we will assume that Coldiron raised properly the defense. . Coldiron also maintains that Congressman Hubbard’s testimony was admissible to impeach Agent Saylor's assertion at trial that Coldiron initiated the discussions which led to his joining the conspiracy; according to Coldiron, Hubbard’s testimony establishes a possible motive for Saylor to have first contacted Coldiron. For the above-stated reasons, we similarly reject this argument. . Appellant Cornett initially argues that Ms. Wells' testimony was irrelevant, and, even if relevant, its probative value was substantially outweighed by its prejudice. Ms. Wells’ testimony was relevant if it had a tendency to make an issue of consequence to the action more likely than not. Fed.R.Evid. 401. Clearly, evidence tending to establish that Judge Cornett had an ownership interest in Ann’s Liquors would be relevant as tending to show that he had a motive" }, { "docid": "632365", "title": "", "text": "of the evidence. Id. at 3392. Here, the district court has made no findings on causation. Under this Circuit’s case law, this circumstance might call for a remand. See United States v. Cherry, 759 F.2d 1196, 1212 (5th Cir.1985). Nevertheless, the plausible theories of causation in the present case are no different from those in Segura. In light of Segura ’s conclusion on attenuation, suppression of the evidence would be unwarranted even if the district court were to find causation. We, therefore, decline to order a remand on the issue of causation. III. CONCLUSION Both the conviction of defendant Carrion and the conviction of defendant Solmor are AFFIRMED. . Both counts cite 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. . The seized items are likewise independent evidence of Solmor’s possession of five kilograms simultaneous with and following Carrion’s delivery. . For cases touching upon the issue, see generally United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980) (\"Clearly, a co-defendant's reliance on a theory of entrapment cannot of itself justify reversing a trial court decision not to sever”); United States v. Vadino, 680 F.2d 1329, 1335-36 (11th Cir.1982) (same), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v. Eastwood, 489 F.2d 818, 822 (5th Cir.1973) (\"The failure to grant a severance merely because one co-defendant is relying on a defense of entrapment while another is not does not of itself constitute an abuse of discretion”); United States v. Russo, 455 F.2d 1225, 1227 (5th Cir.) (\"The fact that a codefendant, charged as a coconspirator, pleads entrapment does not alone require the trial judge to serve [sic ] all others charged with the conspiracy”), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); cf. United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (one defendant’s defense of insufficiency of the Government’s evidence not irreconcilable with defense of second defendant \"who admitted the acts charged but claimed that he was working as a government informant”). . See Ramirez, 710 F.2d at 546 (considering defendant’s contention that co-defendant’s \"use of" }, { "docid": "17246656", "title": "", "text": "find that the privilege of non-disclosure is balanced in favor of the government. The identity of the informant was not “relevant and helpful to the defense” or “essential to a fair determination of the cause.” Therefore, we find that the district court properly denied the motion for disclosure. Whitley contends that although “Bob” did not participate in the drug transaction, he allegedly played a role in the conspiracy. This contention cannot stand after close scrutiny of the facts in this case. After the first meeting with Agent Best, Whitley planned the transaction which eventually led to his conviction. This plan was made without the participation of the informant. Whitley and Best had numerous telephone conversations about the drug deal, beginning the day after their first meeting. Whitley gave Best two pay telephone numbers that were used to set up the transaction. Moreover, Whitley initiated the meeting between Best and defendants Wagers and Foley at Whitley’s apartment. Thus, Whitley’s conspiracy with the other defendants did not begin until after “Bob” was totally uninvolved. Similarly, in United States v. Jackson, 422 F.2d 975 (6th Cir.1970), the informant had led the government agent to a meeting with a defendant who was later charged with conspiracy and possessing stolen property. This Court upheld the informer’s privilege, finding that disclosure was not essential to a fair determination of the charges. 422 F.2d at 977. Whitley also argues that disclosure was necessary for him to establish an entrapment defense. Regardless of whether the informant’s identity was disclosed, however, Whitley did not demonstrate any of the other requirements for the entrap ment defense. Whitley did not testify, admit the acts or present any evidence whatsoever. To rely on the defense of entrapment, the defendant must admit all elements of the offense. United States v. Bryant, 716 F.2d 1091 at 1094 (6th Cir.,1983); United States v. Mitchell, 514 F.2d 758, 761 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975); United States v. Lamonge, 458 F.2d 197, 201 (6th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972). Furthermore," }, { "docid": "10814728", "title": "", "text": "entrapment defense even though he testified that he did not know that the box of pills he sold to a government agent contained morphine. In United States v. Shameia, 464 F.2d 629, 631 (6th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972), however, the Sixth Circuit held “that the defendant may not absolutely deny every act necessary to constitute the offense and then claim entrapment on the part of the Government agents.” Shameia did not mention Scriber and sought to limit Baker to the situation in which the defendant at least admitted the acts bringing him into contact with the agent. Id. at 630-31. Even this last vestige of the Scriber and Baker rules vanished, however, in United States v. Mitchell, 514 F.2d 758 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975). In Mitchell, the defendant admitted receiving money from a government agent, but denied guilty intent in a fashion similar to the defendants in Scriber and Baker. The Sixth Circuit, citing neither of those cases, held that “the district judge properly precluded appellant from relying on the defense of entrapment.” Id. at 761. Indeed, Mitchell cited with approval United States v. Barrios, 457 F.2d 680 (9th Cir. 1972), which is squarely contrary to Baker on this issue. Id. . In Henderson v. United States, 237 F.2d 169, 173 (5th Cir. 1956), that court established a test that some inconsistency in defenses was permissible as long as “[t]he two defenses do not seem to us so repugnant that proof of one necessarily disproves the other.” Thus, the court held that the defendant was entitled to an entrapment instruction where he admitted committing overt acts in furtherance of a conspiracy, but denied knowledge of the conspiracy. This reasoning was elaborated in Sears v. United States, 343 F.2d 139 (5th Cir. 1965), where the defendant denied not only knowledge of the conspiracy, but also the very acts which allegedly made him a part of the conspiracy; it was held that he was entitled to an entrapment charge since he did not" }, { "docid": "6383560", "title": "", "text": "defendant’s motion for judgment of acquittal at the close of the government’s case in chief for failure of possession and interstate transportation proof. No extended review of facts or law is essential to lead into a discussion and resolution of these questions. The development and present status of the defense of entrapment have been adequately reviewed for present purposes in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), with which the numerous decisions of this court on the subject are essentially consistent. Those in which appellant finds some comfort will be noted later with reference to particular points. Factually we may start out with recognition that the record tends to show that the appellant caused to be delivered the sawed-off shotgun described in the indictment under circumstances establishing a colorable case of entrapment by an informer acting in consort with state and federal agents, but falling far short of entrapment as a matter of law. Appellant argues here that the giving of an entrapment instruction, although no exception was taken to submission of the issue to the jury, was improper or confusing and constituted plain error. Relying upon language in Martinez v. United States, 373 F.2d 810 (10th Cir. 1967), and Ortiz v. United States, 358 F.2d 107 (9th Cir.), cert. denied, 385 U.S. 861, 87 S.Ct. 114, 17 L.Ed.2d 88 (1966), that to utilize that defense the commission of the crime must be “admitted”, appellant says that he made no such admission and on the contrary, although he did not take the stand, contested all elements of the claimed offenses. It is true that the trial court did place upon the government the burden of proving beyond a reasonable doubt all of the elements of the offenses charged, together with the absence of entrapment. Martinez and Ortiz supply no definitive answers as to the form the “admission” must take and whether a court may commit prejudicial error against an accused who declines to testify in support of the defense of entrapment by failure to submit, or by submitting without specific or implied request," }, { "docid": "2753418", "title": "", "text": "Cir.1975) (en banc); Hansford v. United States, 303 F.2d 219, 221 (D.C.Cir.1962) (en banc); Crisp v. United States, 262 F.2d 68, 70 (4th Cir.1958) (per curiam). Other circuits, including the Tenth Circuit, have required that a defendant admit all the elements of the crime charged before asserting entrapment. See United States v. Whitley, 734 F.2d 1129, 1139 (6th Cir.1984); United States v. Hill, 655 F.2d 512, 514 (3d Cir.1981), cert. denied, — U.S. -, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984); Munroe v. United States, 424 F.2d 243, 244 (10th Cir.1970) (en banc); but see United States v. Badger, Nos. 78-1935 & 78-1936, slip op. at 9-11 (10th Cir. Mar. 4, 1980) (McKay, J., dissenting) (advocating reexamination of rule in Munroe), cert. denied, 449 U.S. 889, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980). One circuit has adopted, abandoned and then recently readopted a compromise position, permitting a defendant to assert entrapment when he admits the alleged physical acts but denies criminal intent. See United States v. Greenfield, 554 F.2d 179, 182-83 (5th Cir.1977), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. Garrett, 716 F.2d 257, 270-71 (5th Cir.1983) (retreating slightly from Greenfield position: better approach is to determine whether asserted defense is inconsistent with an allegation of entrapment); United States v. Henry, 727 F.2d 1373, 1374-77 (5th Cir.1984) (abandoning Greenfield rule altogether and returning to old requirement that defendant admit all the elements of the crime), reversed following rehearing en banc, 749 F.2d 203, 211-14 (5th Cir.1984) (readopting Greenfield rule allowing testifying defendant to receive entrapment instruction if he denies criminal intent but does not deny committing the acts charged). Decisions in other circuits are less than perfectly clear in how they would handle the situation before us. See United States v. Caron, 588 F.2d 851, 852-53 (1st Cir.1978) (entrapment instruction was warranted even though defendant tried to make his acts appear innocent to the jury); United States v. Johnston, 426 F.2d 112, 114 (7th Cir.1970) (court would require defendant to admit criminal \"acts” but does not mention whether this includes the mental" }, { "docid": "632366", "title": "", "text": "trial court decision not to sever”); United States v. Vadino, 680 F.2d 1329, 1335-36 (11th Cir.1982) (same), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v. Eastwood, 489 F.2d 818, 822 (5th Cir.1973) (\"The failure to grant a severance merely because one co-defendant is relying on a defense of entrapment while another is not does not of itself constitute an abuse of discretion”); United States v. Russo, 455 F.2d 1225, 1227 (5th Cir.) (\"The fact that a codefendant, charged as a coconspirator, pleads entrapment does not alone require the trial judge to serve [sic ] all others charged with the conspiracy”), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); cf. United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (one defendant’s defense of insufficiency of the Government’s evidence not irreconcilable with defense of second defendant \"who admitted the acts charged but claimed that he was working as a government informant”). . See Ramirez, 710 F.2d at 546 (considering defendant’s contention that co-defendant’s \"use of the ‘informer’ defense severely prejudiced [defendant] even if the defenses were not mutually exclusive’’). . Solmor also tends to complain that there was \"heavy evidence” against co-defendant Carrion. \"Although in some circumstances great disparities in the weight of the evidence against different defendants may, in the presence of other indicia of jury confusion, reveal sufficient prejudice to require severance ..., merely ‘[d]emonstrating that the evidence is stronger against a co-defendant than oneself does not satisfy the burden of showing compelling prejudice.' ” Berkowitz, 662 F.2d at 1135 n. 8 (quoting United States v. Marable, 574 F.2d 224, 231 (5th Cir.1978) (emphasis in Marable original)). Here, there was no indication of jury confusion, and though the evidence against Carrion was strong, the evidence against Solmor was overwhelming as well. . We also reject Solmor’s argument that § 1952 requires continuous interstate travel and that travel from California to Texas is insufficient. \"The statute requires only that the business enterprise be continuous, not that the interstate travel be continuous.” United States v. Kaiser, 660 F.2d 724, 731" }, { "docid": "22146161", "title": "", "text": "of unimpaired impartiality worthy of belief, we conclude that the district court did not abuse its discretion in holding that Pennell had not demonstrated actual prejudice. V. A fourth assignment of error is that the government entrapped the defendant. Pennell contends that he also was a confidential informant for Agent Catalonga. After obtaining the information about the Florida cocaine source in March 1981, Pen-nell telephoned Catalonga on April 17 to inform him that he was in a position to infiltrate a narcotics distribution ring. Thus, Pennell asserts that he acted thereafter in the belief that he was working for Catalonga. Catalonga and the other informant purportedly entrapped him by giving him the telephone number of Florida DEA Agent Velazco. The central inquiry in entrapment cases is whether law enforcement officials implanted a criminal design in the mind of an otherwise law-abiding citizen or whether the government merely provided an opportunity to commit a crime to one who was already predisposed to do so. See, e.g., United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.), cert. denied, — U.S.-, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983). If a defendant raises the entrapment defense, the government bears the burden of proving predisposition beyond a reasonable doubt. United States v. Jones, 575 F.2d 81, 83 (6th Cir. 1978). Second, in order for a claim of entrapment as a matter of law to succeed, the testimony and facts must be undisputed; a court may not choose between conflicting testimony or make credibility determinations. Sherman, 356 U.S. at 373, 78 S.Ct. at 821; United States v. Henciar, 568 F.2d 489, 491 (6th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978). Furthermore, the undisputed evidence must demonstrate a “patently clear” absence of predisposition. Henciar, 568 F.2d at 491. If either of these elements is missing, then the predisposition question is for the jury to decide. Having thoroughly reviewed the record, we conclude" }, { "docid": "2298510", "title": "", "text": "in Jacobson of predisposition offered by the government was a single purchase of two magazines at the time the purchase was legal. There is simply no parallel here, and Jacobson provides defendant with no support for his theory that he was entrapped as a matter of law. Severance Defendants Martinez and Carranza argue the district court erred by denying defendants’ motions for separate trials. We review the district court’s decision to deny such motions under an abuse of discretion standard. United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). Severance may be necessary when code-fendants produce mutually exclusive defenses. “[T]he conflict between co-defendants ‘must be so intense that there is a danger the jury will unjustifiably infer from the conflict alone that both defendants are guilty.’ ” Id. at 857 (quoting United States v. Esch, 832 F.2d 531, 538 (10th Cir.1987), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 L.Ed.2d 242 (1988)). “A mere conflict of theories or one defendant’s attempt to cast blame on another does not require severance.” 881 F.2d at 857 (citing United States v. McClure, 734 F.2d 484, 488 (10th Cir.1984)). When one defendant admits some or all of the elements of the charge, the danger a defendant will be denied a fair trial is exacerbated. Peveto, 881 F.2d at 858. In this case, three defendants admitted most, if not all, the elements of the charges against them, relying upon their entrapment defenses. Only Mr. Carranza, who claims to have been merely present at the scene of the transaction, has denied any role in the conspiracy. Now, defendants Martinez and Carranza argue that their defenses placed them in conflict with each other and the other defendants. Although defendants asserted different defenses, those defenses were not antagonistic. We therefore conclude they have not met the test prescribed in Esch. Mr. Martinez’ defense of entrapment certainly does not exclude Mr. Carranza’s defense of innocence; therefore, their defenses are not antagonistic by definition. In no way does the assertion of one defense dictate the guilt" }, { "docid": "22146162", "title": "", "text": "36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.), cert. denied, — U.S.-, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983). If a defendant raises the entrapment defense, the government bears the burden of proving predisposition beyond a reasonable doubt. United States v. Jones, 575 F.2d 81, 83 (6th Cir. 1978). Second, in order for a claim of entrapment as a matter of law to succeed, the testimony and facts must be undisputed; a court may not choose between conflicting testimony or make credibility determinations. Sherman, 356 U.S. at 373, 78 S.Ct. at 821; United States v. Henciar, 568 F.2d 489, 491 (6th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978). Furthermore, the undisputed evidence must demonstrate a “patently clear” absence of predisposition. Henciar, 568 F.2d at 491. If either of these elements is missing, then the predisposition question is for the jury to decide. Having thoroughly reviewed the record, we conclude that Pen-nell’s and the government’s versions of the events in question were conflicting and that the government introduced a substantial quantity of evidence on the predisposition question. Since neither element necessary for a finding of entrapment as a matter of law is present, the district court properly submitted the entrapment claim to the jury. As has been indicated, the government’s version of what transpired differs markedly from Pennell’s. The defendant approached Livonia police officer Morris and Agent Catalonga on July 30 and 31, 1980 with information about narcotics trafficking that was occurring in his store. After listening to Pennell on July 81, Catalonga became convinced that Pennell himself was selling narcotics. Catalonga specifically warned the defendant that he would be prosecuted if he were involved in any illegal activity. Both the official report of the meeting (App. at 97-98) and Catalonga’s testimony (Tr. Vol. X at 114) support the conclusion that this warning was given. According to the government, Pennell could not have left the July 31 meeting thinking that he was a DEA informant." }, { "docid": "17246658", "title": "", "text": "this Court has noted that the “[m]ere fact that the Government informant ... on various occasions attempted to arrange the purchase of narcotics from [defendant] does not establish the defense of entrapment as a matter of law.” United States v. Henciar, 568 F.2d 489, 491 (6th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978). C. Severance Motion Appellant Harrison asserts that he was denied a fair trial because the trial court denied his motion for severance from the other appellants. He alleges he was denied the use of co-defendant Wagers as a witness. This assertion is without merit. Fed.R.Crim.P. 8(b) provides that joinder of defendants is permissible if they are alleged to have participated “in the same series of acts or transactions constituting an offense or offenses.” It is well settled that joinder is proper under Rule 8(b) where an indictment, as in this case, charges multiple defendants with participation in a single conspiracy. United States v. Warner, 690 F.2d 545, 551 (6th Cir.1982); United States v. Goble, 512 F.2d 458, 465-66 (6th Cir.), cert. denied, 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975). Rule 8(b) is designed to promote judicial economy and efficiency by avoiding multiple trials. Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 1625 n. 6, 20 L.Ed.2d 476 (1968). During trial appellant Harrison made a motion for severance pursuant to Fed.R. Crim.P. 14. The district court denied this motion because it was too “speculative” as to the content of Wager’s testimony. The Supreme Court has fully recognized that the decision of whether to order separate trials is a matter within the sound discretion of the trial court judge. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); United States v. Jackson, 409 F.2d 8, 9 (6th Cir.1969). Furthermore, this Court has held that a district court’s denial of a motion for severance should not be reversed unless there is a clear showing of abuse of discretion. See United States v. Goldfarb, 643 F.2d 422, 434 (6th Cir.)," }, { "docid": "10814727", "title": "", "text": "sale) and entrapment. . The Ninth Circuit in United States v. Dem-ma, 523 F.2d 981, 985 (9th Cir. 1975) (en banc), overruling a line of cases beginning with Eastman v. United States, 212 F.2d 320 (9th Cir. 1954), per Judge Hufstedler, held “that a defendant may both deny the acts and other elements necessary to constitute the crime charged and at the same time claim entrapment.” The court noted that , the former rule against inconsistent defenses in the context of entrapment was “without any justification.” Id. . In Scriber v. United States, 4 F.2d 97, 98 (6th Cir. 1925), the Sixth Circuit explained: “A jury might conclude that defendant’s claim of good intent was untrue . . ., but might also conclude that he had been by the government officers unduly persuaded and influenced into the crime and thus ought not to be held guilty.” Citing Scriber with approval, the same court held in United States v. Baker, 373 F.2d 28, 30 (6th Cir. 1967), that a defendant was not precluded from raising an entrapment defense even though he testified that he did not know that the box of pills he sold to a government agent contained morphine. In United States v. Shameia, 464 F.2d 629, 631 (6th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972), however, the Sixth Circuit held “that the defendant may not absolutely deny every act necessary to constitute the offense and then claim entrapment on the part of the Government agents.” Shameia did not mention Scriber and sought to limit Baker to the situation in which the defendant at least admitted the acts bringing him into contact with the agent. Id. at 630-31. Even this last vestige of the Scriber and Baker rules vanished, however, in United States v. Mitchell, 514 F.2d 758 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975). In Mitchell, the defendant admitted receiving money from a government agent, but denied guilty intent in a fashion similar to the defendants in Scriber and Baker. The Sixth Circuit, citing neither of" }, { "docid": "1022051", "title": "", "text": "he is guilty but may avoid the consequences of his criminal conduct because of the government’s undue inducement.” 749 F.2d at 210. Because entrapment involves the basic determination of guilt or innocence, it is a jury issue, and the defendant’s predisposition to commit an unlawful act seldom will be “ ‘capable of determination without the trial of the general issue.’ ” United States v. Graves, 556 F.2d 1319, 1321 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978) (quoting Fed.R. Crim.P. 12(b)); United States v. Garrett, 716 F.2d 257, 274 (5th Cir.1983), cert. de nied, — U.S. -, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984); United States v. Lentz, 624 F.2d 1280, 1286 (5th Cir.1980), cert. denied, 450 U.S. 995, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981); United States v. Punch, 722 F.2d 146, 153 (5th Cir.1983); see also W. LaFave & A. Scott, Handbook on Criminal Law § 48, 373 (1972) (“By the implied-exception theory, under which an entrapped person is innocent, the defense of entrapment is raised at arraignment by a not-guilty plea; and the factual issue of whether the defendant was entrapped is a jury question, to be determined by the jury____”). A guilty plea consequently waives the right to assert the defense. Eaton v. United States, 458 F.2d 704, 707 (7th Cir), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972) (“[I]t is well settled that a defendant’s plea of guilty admits, in legal effect, the facts as charged and waives all non-jurisdictional defenses. Entrapment is a non-jurisdictional defense on the merits and petitioners have waived their right to assert it.” (citing Fifth Circuit precedents)). Appellant entered a guilty plea, which effectively waived his right to the defense of entrapment. Appellant seeks to avoid this result, however, by pointing out that Fed.R.Crim.P. 11(a)(2) authorizes him to plead guilty without losing his right to appeal the question whether he was entrapped. We reject this argument. Rule 11(a)(2) provides: “Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional" }, { "docid": "1060071", "title": "", "text": "in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells v. United States, 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 4248-49, 93 S.Ct. at 1641; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). United States v. Webster, 649 F.2d 346, 348-49 (5th Cir.1981) (en banc). Consistent with this summary of Supreme Court directives, our inquiry always has been on the defendant’s predisposition, his intent or willingness — before contact with government agents and inducement— to commit the crimes charged. E.g., United States v. Hill, 626 F.2d 1301, 1303-04 (5th Cir.1980). The concern is thus that the accused is not guilty, since he had no criminal intent not implanted by the government, rather than that he is guilty but may avoid the consequences of his criminal conduct because of the government’s undue inducement. III. From these principles we have concluded, as have other circuits, that a non-testifying defendant may — by examination of witnesses and argument — contest every element of the charged offense and still request and obtain an entrapment instruction. The defendant is not required to testify or to concede guilt in order to pursue the entrapment theory. United States v. Groessel, 440 F.2d 602 (5th Cir.1971), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 712 (1971). See United States v. Valencia, 645 F.2d 1158, 1172 (2d Cir.1980); United States v. Annese, 631 F.2d 1041, 1045-47 (1st Cir.1980). See generally United States v. Dean, 666 F.2d 174 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). But cf. United States v. Whitley, 734 F.2d 1129, 1139 (6th Cir.1984) (non-testifying defendant must admit guilt to urge entrapment). In Groessel, the defendant was convicted of conspiracy to transport stolen automobiles. On appeal he urged entrapment as a matter of law. The government urged that the question need not be considered because the defendant did not admit his crime at trial. We firmly" }, { "docid": "23519749", "title": "", "text": "orders under Fla.Stat.Ann. § 934.02(8). For the foregoing reasons, the order of the district court denying the motion to suppress is AFFIRMED. II. TRIAL ISSUES A. Severance The appellants who went to trial all claim that they were entitled to a severance from the trial of Gainer Jernigan. Unlike the other defendants, Jernigan was charged with a continuing criminal enterprise violation under 21 U.S.C. § 848. The appellants point out that in order to avoid conviction under 21 U.S.C. § 848, counsel for Jernigan adopted a strategy of admitting involvement in a conspiracy, but denying that Jer-nigan played a key role. According to appellants this strategy prejudiced their defense. Claims of severance are governed by familiar principles. Persons indicted together ordinarily should be tried together. A motion for severance is a matter within the sound discretion of the district court. “To establish an abuse of discretion the defendant must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offer no protection.” United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984). Antagonistic defenses may satisfy the compelling prejudice standard, but only if the defenses are “irreconcilable and mutually exclusive.” Id. In United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978), a prosecution for possession of an unregistered weapon, the two defendants took the stand and each testified that the other had possessed the weapon. The court stated that “[e]ach was the government’s best witness against the other,” and found compelling prejudice. 581 F.2d at 492. Mere hostility between defendants, however, does not meet the compelling prejudice standard. In United States v. Vadino, 680 F.2d 1329, 1334-35 (11th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983), one defendant argued entrapment, and admitted most of the matters asserted by the prosecution; the court ruled that such a defense did not result in compelling prejudice to the other defendants. See also United States v. Mota, 598 F.2d 995, 1000-01 (5th Cir.1979) (defense of insanity not irreconcilable with codefendant’s defense of noninvolvement), cert." }, { "docid": "526615", "title": "", "text": "an informant’s communication must therefore be disclosed if such information is “relevant or helpful” to an accused’s defense at trial, particularly in relation to a potential entrapment defense or a defendant’s knowledge of the character of the contraband. Roviaro, supra, at 60-61, 64, 77 S.Ct. 623; DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir.1991); see also United States v. Jackson, supra, at 69-70 (approving informant identity disclosure to facilitate entrapment defense to drug sale charge). Defendants bear the burden of establishing the need for such disclosure and such need will be found only upon a demonstration that the absence of such disclosure will deprive the defendant of a fair trial. Fields, supra, at 324; United States v. Lilla, 699 F.2d 99, 105 (2d Cir.1983). Nevertheless, the prosecution is not required to disclose the identity of a confidential informant to assist a defendant in attacking, at pretrial suppression hearings, probable cause for a warrantless arrest and search. McCray v. Illinois, 386 U.S. 300, 305, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (no disclosure required, based on evidence, where presiding judge satisfied that the informant relied upon by arresting officer existed and was reliable); Roviaro, supra, at 61, 77 S.Ct. 623 (noting cases requiring disclosure where warrant-less searches based on anonymous informants’ information were at issue); Fields, supra, at 324 (in camera appraisal by trial court of informant’s accuracy to establish probable cause for warrantless search ob viates any need for disclosure of informant’s identity). Disclosure is also warranted where the informant’s testimony is “material to the defense”. United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1989). “Unless the informer’s testimony would be relevant and helpful to the defense, or essential for a fair trial, the defense motion for the identification of the whereabouts or production of the informer can be summarily denied.” United States v. Turbide, 558 F.2d 1053, 1060 (2d Cir.), cert. denied sub nom., Perez v. United States, 434 U.S. 934, 98 S.Ct. 421, 54 L.Ed.2d 293 (1977); see also, Roviaro, supra, at 60-61, 77" }, { "docid": "1060072", "title": "", "text": "that a non-testifying defendant may — by examination of witnesses and argument — contest every element of the charged offense and still request and obtain an entrapment instruction. The defendant is not required to testify or to concede guilt in order to pursue the entrapment theory. United States v. Groessel, 440 F.2d 602 (5th Cir.1971), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 712 (1971). See United States v. Valencia, 645 F.2d 1158, 1172 (2d Cir.1980); United States v. Annese, 631 F.2d 1041, 1045-47 (1st Cir.1980). See generally United States v. Dean, 666 F.2d 174 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). But cf. United States v. Whitley, 734 F.2d 1129, 1139 (6th Cir.1984) (non-testifying defendant must admit guilt to urge entrapment). In Groessel, the defendant was convicted of conspiracy to transport stolen automobiles. On appeal he urged entrapment as a matter of law. The government urged that the question need not be considered because the defendant did not admit his crime at trial. We firmly rejected the government’s contention. This position is clearly without merit. Ordinarily the defense is not available where the defendant denied the very acts upon which the prosecution is predicated.... Groessel, however, chose not to testify; therefore, no evidence inconsistent was introduced. Of course a plea of not guilty is not repugnant to the defense of entrapment. United States v. Groessel, 440 F.2d at 605. Any other holding would “raise a serious fifth amendment question.” United States v. Annese, supra, 631 F.2d at 1047. In no other area of law does the defendant lose the right to put the government to its proof solely because he wishes the jury to determine whether he should be acquitted based on relevant evidence in the record. If the defendant does not testify, it is not his admission of criminality that triggers the jury’s obligation to consider the entrapment defense. It is triggered by the presence of sufficient evidence of inducement and predisposition in the record to raise an entrapment issue. If this were not so, the defendant’s right to" } ]

[ { "docid": "5163007", "title": "", "text": "Cir.1988). Judge McDonald properly found that appellant was paid by the debtors from funds which should have been property of the estate and used for distribution to creditors, rather than for unnecessary and improper personal expenses by way of unapproved legal fees. The representation of debtors by appellant to set aside a foreclosure was in connection with the pending bankruptcy. In this regard, appellant’s efforts to recover his legal fees run afoul of the basic tenet that employment of counsel requires the Court’s approval. Title 11, § 327(a); In re STN Enterprises, Inc., 73 B.R. 470, 482 (Bankr.D.Vt.1987); aff'd on other grounds, 779 F.2d 901 (2d Cir.1985); Matter of Richland Building Systems, Inc., 40 B.R. 156, 159 (Bankr.W.D.Wis.1984). Bankruptcy Rule 2017(b) also contemplates that the Bankruptcy Court retains substantial control over the payment of attorneys and whether such fees bear any relation to the case. The Bankruptcy Court here properly found debtors’ payment of fees to appellant was related to the case, were not approved by the Court and amounted to a dilution of the estate’s assets which should have been applied to creditors’ interests. In short, the Bankruptcy Court properly found that fees paid by debtors to appellant were part of the estate—certainly related to the administration of the estate. There is no question, then, that the Bankruptcy Court had jurisdiction over the estate money that was ultimately paid by the debtors to the appellant. State of Missouri v. U.S. Bankruptcy Court, 647 F.2d 768, 774 (8th Cir.1981); cert. denied, 454 U.S. 1162, 102 S.Ct. 1035, 71 L.Ed.2d 318 (1982). Next, appellant notes that the object of the Bankruptcy Court’s jurisdiction pertains to attorney’s fees. In such case, appellant argues that that Court’s inquiry under 11 U.S.C. § 329(b) is limited to a determination only as to the reasonableness of those fees. But such argument overlooks the fact that an attorney performing services for a debtor during the pendency of a Chapter 11 proceeding is not entitled to any compensation if the employment has not been approved by the Court. In re Peoples Savings Corp., 114 B.R. 151,155 (Bankr.E.D.Ill.1990);" } ]

[ { "docid": "11092560", "title": "", "text": "that decision to the district court, but subsequently dismissed the appeal. Appellants then filed, on March 30, 1989, an application for nunc pro tune approval, under section 327, of debtors' employment of their attorney. The bankruptcy court denied this application. In determining that there was no justification for this untimely application, the bankruptcy court noted the \"tortured history\" of the case, the attorney's obstinance in cooperating with the bankruptcy court, and the fact that the attorney had failed, for over four years, to comply with the applicable Bankruptcy Code provisions, as ordered by the bankruptcy court. Appellants appealed to the district court, which affirmed. In re Land, 116 B.R. 798 (D.Colo.1990). Now on appeal to this court, appellants' sole argument is that the bankruptcy court erred in ordering debtors' attorney to return the fees he received from third parties on debtors' behalf because the bankruptcy court did not conduct an evidentiary hearing and did not determine that the fees were excessive, as required under section 329. Section 329 does authorize a bankruptcy court to require a professional to return part of the compensation received from a debtor's bankruptcy estate, where the bankruptcy court determines those fees are excessive. 11 U.S.C. § 329(b). In this case, however, the bankruptcy court ordered the attorney to return the fees to the third parties, not because those fees were excessive, but because the attorney had never obtained the bankruptcy court's approval of his employment by the debtors. See Willis v. Cruse (In re Samford), 125 B.R. 230, 233 (E.D.Mo.1991). Return of compensation received is an appropriate remedy where the debtor or the attorney fails to obtain the bankruptcy court's approval of the attorney's employment. See, e.g., id. at 232-34; In re Prime Foods of St. Croix, Inc., 80 B.R. 758, 761 (D.V.I.1987). Even if the bankruptcy court, in its discretion, had authority to grant appellants' application for nunc pro tunc approval of the attorney's employment, nunc pro tunc approval is only appropriate in the most extraordinary circumstances. See In re Ewing, 54 B.R. at 955. Simple neglect will not justify nunc pro tunc approval" }, { "docid": "18624740", "title": "", "text": "employment under section 327 were entered. See e.g., In re Kendavis Industries International, Inc., 91 B.R. at 762. The only truly safe harbor for those professionals subject to the stringent fiduciary standards of sections 327 and 1103, is to represent only a single client when that client is in, or likely headed for, bankruptcy court. Such fiduciary standards impact on fee applications because compensation is usually payable from the estate which is administered as a trust fund under the Bankruptcy Code. Hence, professionals who usually seek compensation from the estate must be held to fiduciary standards, in contrast to those who usually do not seek compensation from the estate, such as representatives of individual creditors or equity security holders. C. DENIAL OF FEES RESULTS FROM DISQUALIFICATION UNDER THE STATUTE As a general rule, an attorney for a debtor-in-possession must have an order of employment before he will be awarded compensation. In re McKinney Ranch Associates, 62 B.R. 249, 251 (Bankr.C.D.Cal.1986); In re Willamette Timber Systems, Inc., 54 B.R. 485, 489 (Bankr.D.Or.1985); In re Mahoney, Trocki & Associates, Inc., 54 B.R. 823, 825 (Bankr.S.D.Cal.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162 (Bankr.D.Ariz.1984). A debtor-in-possession’s choice of counsel is subject to court approval. In re Prime Foods of St. Croix, Inc., 80 B.R. 758, 760 (D.V.I.1987). Some courts have taken the position that work is virtually done on a pro bono basis until an order is obtained employing counsel. In re Mahoney, Trocki & Associates, Inc., 54 B.R. 823 (Bankr.S.D.Cal.1985). Collier, in summarizing the law in this area states: When there is no compliance with the Code or rules, a professional may forfeit his right to compensation. The services ... must have been performed pursuant to appropriate authority under the Code and in accordance with an order of the court. Otherwise, the person rendering services may be an officious intermed-dler or a gratuitous volunteer ... even though valuable services were rendered in good faith. 2 Collier on Bankruptcy, It 327.02 at 327-7 (15th ed. 1989). Without court approval of employment, an application for compensation for professional services may" }, { "docid": "11092555", "title": "", "text": "BRORBY, Circuit Judge. Appellants, debtors Mr. and Mrs. Land and their attorney, appeal from a district court order affirming a bankruptcy court decision denying appellants’ motion for nunc pro tunc approval of debtors’ ap plication to employ their attorney, made pursuant to 11 U.S.C. § 327, and the bankruptcy court’s order requiring debtors’ attorney to return the fees paid to him on debtors’ behalf by third parties. This court will review the district court’s legal determinations de novo, but will accept the bankruptcy court’s factual findings unless clearly erroneous. Heape v. Citadel Bank (In re Heape), 886 F.2d 280, 282 (10th Cir.1989). The bankruptcy court’s denial of a motion for nunc pro tunc approval of an application for the employment of a professional will not be disturbed absent an abuse of the bankruptcy court’s discretion. See Carlson v. Burns Nat’l Bank (In re Ewing), 54 B.R. 952, 954-55 (D.Colo.1985). We affirm. Debtors, acting pro se, commenced bankruptcy proceedings October 22, 1985, by filing a voluntary Chapter 11 petition. During these bankruptcy proceedings, debtors’ attorney advised debtors and appeared before the bankruptcy court on their behalf. In April 1986, while the bankruptcy proceedings were still pending, the attorney, again on debtors’ behalf, commenced state court litigation against one of debtors’ primary creditors, First National Bank of Ala-mosa (Bank). The attorney received compensation for pursuing the state court litigation from several of debtors’ family members. This state court litigation was the sole asset of the bankruptcy estate. See Land v. First Nat’l Bank (In re Land), 116 B.R. 798, 804 (D.Colo.1990). The bankruptcy court found, and appellants have not disputed, that the primary contributor of attorney’s fees, Mr. Land’s brother, expected to be repaid from any judgment in debtors’ favor entered in the state court litigation. See id. at 805-06. The bankruptcy court, with the state action still pending, dismissed debtors’ bankruptcy action March 21, 1988. Prior to dismissing the bankruptcy proceedings, however, the bankruptcy court ordered debtors’ attorney to “comply, forthwith, with all applicable requirements imposed upon counsel and debtors in the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules" }, { "docid": "4646364", "title": "", "text": "return any fees to the estate or to the entity that paid the fees if the court determines that they were excessive. 11 U.S.C. § 329(b). Section 329 was enacted in response to the concern that “[payments to a debtor’s attorney provide serious potential for evasion of creditor protection provisions of the bankruptcy laws, and serious potential for overreaching by the debtor’s attorney, and should be subject to careful scrutiny.” H.R.Rep. 595, 95th Cong., 1st Sess. 329 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 39, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5825, 6285. B. Applicability of Code and Rule Provisions. The threshold issue in this appeal is which of the above provisions, if any, apply to Kerwin’s representation of the Lands in this bankruptcy case. The appellants first argue that there was no requirement that Kerwin obtain § 327 approval of his employment because he provided legal services to the Lands as debtors only, and not as “debtors-in-possession.” While it is true that court approval of the employment of an attorney is not required when a debtor is out-of-possession, see Nucor, Inc. v. Deutsche Credit Corp. (In re Nucor, Inc.), 113 B.R. 22, 25 n. 3 (D.Colo.1990); 2 Collier on Bankruptcy ¶ 327.07 (L. King 15th ed. 1990), Kerwin’s contention that the Lands were out-of-possession is, as a matter of law, incorrect. The term “debtor-in-possession” is defined in § 1101 of the Code. Under this section, “ ‘debtor-in-possession’ means debt- or except when a person that has qualified under section 322 of this title is serving as trustee in the case.” 11 U.S.C. § 1101(1). It is undisputed that a trustee has never been appointed in this case, nor was the case converted to a Chapter 7. Therefore, as of the commencement of the case, the Lands were debtors-in-possession, and Ker-win’s employment as their counsel should have been court-approved. See In re Prime Foods of St. Croix, Inc., 80 B.R. 758, 760-61 .(D.V.I.1987) (distinguishing between time periods when the debtor was in- and out-of-possession). Moreover, Kerwin advised and represented the Lands with respect to matters relevant to" }, { "docid": "7224329", "title": "", "text": "fees and costs submitted by WHM & H, Hill stated that the fees were $793.00 instead of $919.00 (Doc. No. 59) at ¶ 4(B). .Also, in the first application for fees and costs submitted by WHM & H, Hill stated that the retainer is $19,207.00 instead of $19,-221.00 (Doc. No. 59) at ¶ 4(A). . In this case, Hill waived any claim that the retainer was paid by a third party — H & R Construction, Inc. If the source of the prepetition retainer came from a third party then the prepetition retainer may not become part of the bankruptcy estate. See Cristopher v. Mir (In re BOH! Ristorante, Inc.), 99 B.R. 971, 973 (9th Cir. BAP 1989); Land v. First National Bank in Alamosa (In re Land), 116 B.R. 798, 805 (D.Colo.1990), affirmed and remanded, 943 F.2d 1265 (10th Cir.1991); In re Key Largo Land, Inc., 158 B.R. 883, 884 (Bankr. S.D.Fla.1993); In re Stoecker, 114 B.R. 965, 977-78 (Bankr.N.D.Ill.1990); In re Crimson Investments, N.V., 109 B.R. 397, 400-01 (Bankr.D.Ariz.1989). Since the prepetition retainer is not property of the estate, the retainer is only subject to court review under Section 329. See, e.g., In re BOH! Ristorante, 99 B.R. at 972-73. As a result, attorneys can apply the prepetition retainer to services rendered in a Chapter 7 case whether or not the services benefit the bankruptcy estate. Cf. Stewart v. Law Offices of Dennis Olson, 93 B.R. 91, 95 (N.D.Tx.1988) (finding clear weight of authority supports proposition that compensation from the estate, for services rendered, must benefit the debtor's estate, not the debtor); see also In re Leff, 88 B.R. 105, 109 (Bankr.N.D.Tx.1988) (holding counsel cannot be compensated from the bankruptcy estate for services rendered to the debtor in defending a dischargeability complaint)." }, { "docid": "11092556", "title": "", "text": "debtors and appeared before the bankruptcy court on their behalf. In April 1986, while the bankruptcy proceedings were still pending, the attorney, again on debtors’ behalf, commenced state court litigation against one of debtors’ primary creditors, First National Bank of Ala-mosa (Bank). The attorney received compensation for pursuing the state court litigation from several of debtors’ family members. This state court litigation was the sole asset of the bankruptcy estate. See Land v. First Nat’l Bank (In re Land), 116 B.R. 798, 804 (D.Colo.1990). The bankruptcy court found, and appellants have not disputed, that the primary contributor of attorney’s fees, Mr. Land’s brother, expected to be repaid from any judgment in debtors’ favor entered in the state court litigation. See id. at 805-06. The bankruptcy court, with the state action still pending, dismissed debtors’ bankruptcy action March 21, 1988. Prior to dismissing the bankruptcy proceedings, however, the bankruptcy court ordered debtors’ attorney to “comply, forthwith, with all applicable requirements imposed upon counsel and debtors in the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules and the Local Rules of Bankruptcy Practice” concerning debtors’ employment and compensation of their attorney, “which shall include, but is [sic] not limited to, 11 U.S.C. §§ 327, 329, 330 and Bankruptcy Rules 2014 and 2016.” Rec. vol. I, doc. 85. Section 327(a) provides that the bankruptcy “trustee, with the court’s approval, may employ one or more attorneys ... that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.” Section 327(a) is made applicable to debtors, as debtors-in-possession, 11 U.S.C. § 1101(1), under 11 U.S.C. § 1107(a). See Fanelli v. Hensley (In re Triangle Chems., Inc.), 697 F.2d 1280, 1283-84 (5th Cir.1983). In order to comply with section 327(a) and obtain approval of the employment of an attorney, Bankr.R. 2014(a) requires that a debtor-in-possession apply to the bankruptcy court, stating the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the" }, { "docid": "19279423", "title": "", "text": "long recognized that the debtor is in a vulnerable position and is highly dependent on its attorney and therefore will be reluctant to object to the fees of the attorney. The purpose of this process is to prevent overreaching by an attorney and provide protection for creditors. 3 Collier on Bankruptcy ¶ 329.01 (Lawrence P. King ed., 15th ed. rev.1997); see also In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 844 (3rd Cir.1994) (“Disagreeable as the chore may be, the bankruptcy court must protect the estate, lest overreaching attorneys or other professionals drain it of wealth which by right should inure to the benefit of unsecured creditors.”); Burd v. Walters (In re Walters), 868 F.2d 665, 668 (4th Cir.1989) (noting that legislative history states that the purpose of § 329 is to protect creditors and debtor from overreaching by attorneys); Land v. First Nat’l Bank (In re Land), 116 B.R. 798, 804 (D.Colo.1990) (citing legislative history and noting that serious potential for overreaching by debtor’s attorney should be subject to careful scrutiny), aff'd & remanded, 943 F.2d 1265 (10th Cir.1991). The disclosure requirements of § 329 are “ ‘mandatory[,] not permissive.’ ” Turner v. Davis, Gillenwater & Lynch (In re Investment Bankers, Inc.), 4 F.3d 1556, 1565 (10th Cir.1993) (citing In re Bennett, 133 B.R. 374, 378 (Bankr.N.D.Tex.1991)). “ ‘[Djebtor’s counsel [must] lay bare all its dealings ... regarding compensation.... Counsel’s fee revelations must be direct and comprehensive. Coy, or incomplete disclosures ... are not sufficient.’ ” Neben & Starrett, Inc. v. Chartwell Fin. Corp. (In re Park-Helena Corp.), 63 F.3d 877, 881 (9th Cir.1995) (alterations in original) (quoting In re Saturley, 131 B.R. 509, 516-17 (Bankr.D.Me.1991)); see also In re Plaza Hotel Corp., 111 B.R. 882, 883 (Bankr.E.D.Cal. 1990) (attorney’s duty is to completely disclose all facts regarding his employment), aff'd without op., 123 B.R. 466 (9th Cir. BAP 1990). “Negligent or inadvertent omissions ‘do not vitiate the failure to disclose.’ ” Park-Helena, 63 F.3d at 881 (quoting, In re Maui 14K, Ltd., 133 B.R. 657, 660 (Bankr.D.Haw.1991)). Accordingly, an attorney who fails to comply with the" }, { "docid": "19279422", "title": "", "text": "by such attorney, and the source of such compensation. Rule 2016(b) provides: DISCLOSURE OF COMPENSATION PAID OR PROMISED TO ATTORNEY FOR DEBTOR. Every attorney for a debtor, whether or not the attorney applies for compensation, shall file and transmit to the United States trustee within 15 days after the order for relief, or at another time as the court may direct, the statement required by § 329 of the Code including whether the attorney has shared or agreed to share the compensation with any other entity.... A supplemental statement shall be filed and transmitted to the United States trustee within 15 days after any payment or agreement not previously disclosed. These provisions require an attorney to disclose all fee payments and agreements made after one year before the bankruptcy filing, for services in contemplation of, or in connection with, the bankruptcy filing. In re Florence Tanners, Inc., 209 B.R. 439, 442 (Bankr.E.D.Mich.1997). They enable the Bankruptcy Court to carry out its traditional role of scrutinizing carefully the compensation paid to the debtor’s attorney. Courts have long recognized that the debtor is in a vulnerable position and is highly dependent on its attorney and therefore will be reluctant to object to the fees of the attorney. The purpose of this process is to prevent overreaching by an attorney and provide protection for creditors. 3 Collier on Bankruptcy ¶ 329.01 (Lawrence P. King ed., 15th ed. rev.1997); see also In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 844 (3rd Cir.1994) (“Disagreeable as the chore may be, the bankruptcy court must protect the estate, lest overreaching attorneys or other professionals drain it of wealth which by right should inure to the benefit of unsecured creditors.”); Burd v. Walters (In re Walters), 868 F.2d 665, 668 (4th Cir.1989) (noting that legislative history states that the purpose of § 329 is to protect creditors and debtor from overreaching by attorneys); Land v. First Nat’l Bank (In re Land), 116 B.R. 798, 804 (D.Colo.1990) (citing legislative history and noting that serious potential for overreaching by debtor’s attorney should be subject to careful scrutiny), aff'd" }, { "docid": "3020488", "title": "", "text": "attorney for bankruptcy advice or representation. Section 329(a) requires all attorneys who represent a debtor in or in connection with a bankruptcy case to file a written disclosure of the compensation paid or agreed to be paid for such services. Section 329(b) authorizes the bankruptcy court to determine whether the fee is reasonable and recover any excessive fees. It provides that: (b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to— (1) the estate, if the property transferred— (A) would have been property of the estate; or (B) was to be paid by or on behalf of the debtor under a plan under Chapter 11, 12, or 13 of this title; or (2) the entity that made such payment. The purpose of § 329 is to protect debtors and the estate. Section 329(b) was enacted in response to the concern that “[playments to a debtor’s attorney provide serious potential for evasion of creditor protection provisions of the bankruptcy laws, and serious potential for overreaching by the debtor’s attorney, and [therefore] should be subject to careful scrutiny.” In re Land, 116 B.R. 798, 804 (D.Colo.1990), aff'd 943 F.2d 1265 (10th Cir.1991), quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 329 (1977), U.S.Code Cong. & Admin.News pp. 5963, 6285 and S.Rep. No. 989, 95th Cong., 2d Sess. 39-40 (1978), U.S.Code Cong. & Admin.News pp. 5787, 5825-5826. To fulfill this purpose, a court’s determination of the reasonableness of compensation under § 329 requires a holistic review of the attorney/debtor relationship. In re Martin, 197 B.R. 120, 125 (Bankr.D.Colo.1996). The agreed upon compensation of a debtor’s attorney may be excessive for a variety of reasons including, but not limited to, the size of the fee, counsel’s failure to file the attorney fee disclosure required by § 329(a) or conduct by the attorney which diminishes the value of the legal services. However, courts are generally reluctant to reduce or recoup attorney fees unless the attorney has breached a duty owed to or benefitting" }, { "docid": "2350493", "title": "", "text": "to seek approval of his employment under § 327(a) and Rule 2014(a). That subsection is designed “to prevent conflicts of interest.... which ‘erode the confidence of other parties in the administration of ... [the] estate to say nothing of public confidence in the administration of justice in bankruptcy courts.’” In re Fretheim, 102 B.R. 298, 299 (Bankr.D.Conn.1989) (quoting In re Intech Capital Corp., 87 B.R. 232, 236 (Bankr.D.Conn.1988)). See In re Black Hills Greyhound Racing Ass’n, 154 B.R. 285, 292 (Bankr.D.S.D.1993) (“The purpose of this [Rule 2014(a) ] disclosure is to give the court the necessary information to determine whether the attorney is qualified to represent the debtor.... Compliance with Rule 2014 protects the integrity of the bankruptcy process.”) (citation omitted); In re Tinley Plaza Assocs., L.P., 142 B.R. 272, 277 (Bankr.N.D.Ill.1992) (“Section 327(a) is strictly enforced because it impacts the integrity of the bankruptcy system as a whole.”). While employment under § 327(a) is a condition precedent to compensation from the estate under § 330(a), the requirements of § 327(a) are not conditioned on the attorney’s seeking compensation from the estate under § 330(a). In re Hargis, 148 B.R. 19, 22 (Bankr.N.D.Tex.1991); In re Rheuban, 121 B.R. 368, 385 (Bankr.C.D.Cal.1990); Land v. First Nat’l Bank in Alamosa (In re Land), 116 B.R. 798, 805 (D.Colo.1990) (approval must be obtained under § 327(a) even where fees are paid by a third party and not by the estate), aff'd, 943 F.2d 1265 (10th Cir.1991); In re Martin, 102 B.R. 653, 658 (Bankr.W.D.Tenn.1989) (“[T]he mere fact that a professional receives a retainer cannot be utilized by the professional as a circumvention of the Bankruptcy Code’s requirement of an approval of employment_”); In re Boh! Ristorante, Inc., 99 B.R. 971, 973 (9th Cir. BAP 1989). A contrary rule would permit attorneys for the trustee or debtor in possession to avoid the strictures of § 327(a) and Rule 2014(a) by demanding a large pre-petition retainer and never applying to the court for compensation post-petition. Betsos’s reliance on Matter of Fulton, 80 B.R. 1009 (Bankr.D.Neb.1988) and In re McDonald Bros. Constr., supra, 114 B.R. 989," }, { "docid": "2710563", "title": "", "text": "govern appellate review. Cf. Ya quinto, 81 B.R. at 880 (holding bankruptcy court’s sanction orders should be treated as criminal contempt orders). The present record makes pellucid, however, that the bankruptcy court acted on the basis of the authorities it cited. Where the bankruptcy court has jurisdiction over a proceeding, court approval is necessary before an attorney may be employed. See 11 U.S.C. § 327(a) (“the trustee, with the court’s approval, may employ one or more attorneys ... that do not hold or represent an interest adverse to the estate”). Section 327(a) is made applicable to debtors and debtors-in-possession. In re Land, 943 F.2d 1265, 1266 (10th Cir.1991) (citing Fanelli v. Hensley, 697 F.2d 1280, 1283-84 (5th Cir.1983)). In order to comply with § 327(a), the debtor-in-possession must satisfy the requirements of Fed. R.Bankr.P. 2014(a), which provides for the filing of an application with the court for approval of the employment of an attorney. Id. Absent compliance with the Bankruptcy Code and Rules, an attorney has no absolute right to an award of compensation. In re Anderson, 936 F.2d 199, 204 (5th Cir.1991) (per curiam). This is particularly true when the attorney fails to seek prior approval of employment. Id. Section 329 applies to services rendered in connection with a bankruptcy proceeding. In re Hargis, 895 F.2d 1025, 1026 (5th Cir.1990) (on rehearing). It permits the bankruptcy court to regulate the extent of attorney compensation. Where the fees have been paid to an unapproved attorney, the return of the compensation is an appropriate remedy. Land, 943 F.2d at 1267; see In re Chapel Gate Apartments, Ltd., 64 B.R. 569, 575 (Bankr.N.D.Tex.1986) (failure of counsel to obey mandate of Bankruptcy Code and Rules is basis for requiring the return of sums paid). The bankruptcy court acted pursuant to its authority to approve employment of attorneys and regulate their fees when it ordered disgorgement. Nor did the bankruptcy court effectively hold Wright in contempt when it disbarred him. Although there are cases that analyze the bankruptcy court’s authority to discipline lawyers in the context of that court’s contempt power, see, e.g., In" }, { "docid": "226258", "title": "", "text": "fact. Grant v. George Schuman Tire & Batt. Co., 908 F.2d 874, 878 (11th Cir.1990). 1. Compensation for Work Done Before Approval as Debtor’s Lawyer Franks asserts that it should be compensated for work performed before February 7, 1991. The debtor claims Franks should be denied compensation for all pre-petition work because the bankruptcy court’s order of appointment and approval dated only from the petition filing date. I agree that Franks is due some of, but not all, the compensation he seeks. The law is very clear that the bankruptcy court must appoint and approve a lawyer before the lawyer can be compensated from the estate. 11 U.S.C. § 327; Bankr.R. 2014; In re Land, 116 B.R. 798, 806-07 (D.Colo.1990), aff’d and remanded, 943 F.2d 1265 (10th Cir.1991). In Land the lawyer persistently ignored for nearly four years the bankruptcy court’s orders that he seek approval and appointment pursuant to 11 U.S.C. § 327. 116 B.R. at 804. When the lawyer finally sought approval nunc pro tunc, the bankruptcy court denied the request, finding no “extraordinary circumstances” justifying such relief. See 943 F.2d at 1267-68 (nunc pro tunc “approval is only appropriate in the most extraordinary circumstances.”). The cases teach, however, that the rule should not be curmudgeonly and dogmatically applied when an appointment order is in place and the lawyer narrowly seeks pre-petition fees. Rather, when an appropriate § 327 appointment order is in place, a lawyer may rightfully seek compensation for all work directly related to the filing of the petition. That is, a lawyer may seek compensation for determining the debtor’s financial condition, for giving advice to the debtor about the need for bankruptcy protection and the proper petition to file, and for the actual preparation and filing of the petition and various forms. See, generally, In re Tabala, 48 B.R. 871, 873 (S.D.N.Y.1985), citing In re Olen, 15 B.R. 750, 752 (Bankr.E.D.Mich.1981). Here, the bankruptcy court approved Franks’ appointment pursuant to § 327, making it proper for Franks to seek compensation for the ten days before it filed the petition. I thus reverse the bankruptcy court’s" }, { "docid": "11092561", "title": "", "text": "a professional to return part of the compensation received from a debtor's bankruptcy estate, where the bankruptcy court determines those fees are excessive. 11 U.S.C. § 329(b). In this case, however, the bankruptcy court ordered the attorney to return the fees to the third parties, not because those fees were excessive, but because the attorney had never obtained the bankruptcy court's approval of his employment by the debtors. See Willis v. Cruse (In re Samford), 125 B.R. 230, 233 (E.D.Mo.1991). Return of compensation received is an appropriate remedy where the debtor or the attorney fails to obtain the bankruptcy court's approval of the attorney's employment. See, e.g., id. at 232-34; In re Prime Foods of St. Croix, Inc., 80 B.R. 758, 761 (D.V.I.1987). Even if the bankruptcy court, in its discretion, had authority to grant appellants' application for nunc pro tunc approval of the attorney's employment, nunc pro tunc approval is only appropriate in the most extraordinary circumstances. See In re Ewing, 54 B.R. at 955. Simple neglect will not justify nunc pro tunc approval of a debtor’s application for the employment of a professional. In re Arkansas Co., 798 F.2d 645, 649-50 (3d Cir.1986). This appeal does not present any extraordinary circumstances. The bankruptcy court, therefore, did- not abuse its discretion in denying appellants’ application for nunc pro tunc approval of debtors’ employment of their attorney. On appeal, the Bank requests this court impose an award of costs and attorney's fees against appellants pursuant to 10th Cir.R. 39 and 46.5. As the prevailing party, the Bank is entitled to an award of costs. Fed.R.App.P. 39(a). Tenth Circuit Rule 46.5 provides for an award of expenses incurred, including reasonable attorney’s fees, against an attorney who signs a brief which is not “well grounded in fact” or which is not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Debtors’ attorney received notice of the Bank’s request for an award of fees, as it was included in the Bank’s appellate brief, and the attorney had an opportunity to respond. See Braley v." }, { "docid": "18891565", "title": "", "text": "with the debt- or shortly before filing. An applicant under § 327(a) has the burden of establishing by application and accompanying affidavit that its chosen professional is qualified. In re Harold & Williams, 977 F.2d at 910. In this case, the applications and affidavits did not address any of the conflicts involved in representation of the three separate estates, especially in light of the management contract, and the business relationship between Retail and Green Street immediately before filing. The bankruptcy court and district court determined joint representation of these entities would not yield sufficient scrutiny to satisfy the fiduciary duty of the trustee for both estates. It was within the discretion of the bankruptcy court to deny approval of a professional’s employment and we find fully supported the bankruptcy judge’s conclusion “[i]t would be an impossible task for applicants to undertake this multiple representation and make decisions for one of these debtors which would not be at the expense of another.” In re Green Street, 132 B.R. at 462. Appellants also assert the bankruptcy court “permitted” the firm to continue representing the debtors in possession and, as the Appellants benefited from the time and efforts of the law firm, we should reverse the denial of the applications. We are not persuaded by this argument. The Bankruptcy Code and Rules do not provide authority for the court to prohibit a professional from working for any client it chooses. Thus, there can be no question of the court either permitting or prohibiting unapproved representation. Instead, any professional not obtaining approval is simply considered a volunteer if it seeks payment from the estate. 11 U.S.C.A. § 330 (court may allow fees to a professional “employed under section 327”); 2 Collier on Bankruptcy ¶ 327.02 at 327-10 (15th ed. 1993). Cf. In re Land, 943 F.2d 1265, 1267-68 (10th Cir.1991) (return of compensation appropriate if attorney fails to obtain court approval of employment). If we were to reverse the denial of the applications in these cases simply because counsel chose to take a calculated risk and continue employment absent necessary authorization, it would effectively" }, { "docid": "4646365", "title": "", "text": "not required when a debtor is out-of-possession, see Nucor, Inc. v. Deutsche Credit Corp. (In re Nucor, Inc.), 113 B.R. 22, 25 n. 3 (D.Colo.1990); 2 Collier on Bankruptcy ¶ 327.07 (L. King 15th ed. 1990), Kerwin’s contention that the Lands were out-of-possession is, as a matter of law, incorrect. The term “debtor-in-possession” is defined in § 1101 of the Code. Under this section, “ ‘debtor-in-possession’ means debt- or except when a person that has qualified under section 322 of this title is serving as trustee in the case.” 11 U.S.C. § 1101(1). It is undisputed that a trustee has never been appointed in this case, nor was the case converted to a Chapter 7. Therefore, as of the commencement of the case, the Lands were debtors-in-possession, and Ker-win’s employment as their counsel should have been court-approved. See In re Prime Foods of St. Croix, Inc., 80 B.R. 758, 760-61 .(D.V.I.1987) (distinguishing between time periods when the debtor was in- and out-of-possession). Moreover, Kerwin advised and represented the Lands with respect to matters relevant to the maintenance of the bankruptcy case itself and with respect to state court litigation which was the sole asset of the bankruptcy estate. His participation in this matter was as the attorney for the debtors-in-possession, and not for the debtors in their non-bankruptcy capacity. Compare In re Steeves, 3 B.R. 334, 335 (Bankr.D.R.1.1980) (court approval of attorney fees not necessary where legal services related to the recovery of exempt property of no interest to the bankruptcy estate). Even accepting the appellants’ erroneous argument that Kerwin represented the Lands as debtors only, Kerwin did not comply with other Code and Rule provisions dealing with attorneys representing debtors-out-of-possession. The record indicates that Kerwin received a $1,000 retainer from the Lands on September 30, 1985, less than one month before their petition was filed. See R.Vol. I, Doc. 100. Thus, Kerwin was representing the debtors before the initiation of their bankruptcy case. Under § 329(a) and Bankr.R. 2016, Kerwin should have filed a statement within 15 days after the Lands filed their petition detailing his fee arrangement with" }, { "docid": "12391633", "title": "", "text": "for overreaching by the debtor’s attorney, and [therefore] should be subject to careful scrutiny”. Land v. First National Bank of Alamosa (In re Land), 116 B.R. 798, 804 (D.Colo.1990), aff'd 943 F.2d 1265 (10th Cir.1991) (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 329 (1977), S.Rep. No. 989, 95th Cong., 2nd Sess. 39-40 (1978)). Section 329 empowers the bankruptcy courts to protect debtors from overreaching by their counsel under circumstances where debtors are vulnerable and in need of prompt legal services. As a consequence, a court’s review of the reasonableness of compensation under § 329 is a holistic review of the entire attorney/debtor relationship. Compensation to a debtor’s counsel may be considered excessive for a number of reasons including the size of the fee, the nature of the services provided, failure to disclose the information required by Rule 2016(b), unethical conduct or other causes. See e.g., Quiat v. Berger (In re Vann), 136 B.R. 863 (D.Colo.1992); In re Land, 943 F.2d 1265 (10th Cir.1991). A. Adequacy of Disclosure The United States Trustee argues that Grossenbach’s disclosure with regard to the Fee Agreement was inadequate because it did not disclose all of the terms of the Fee Agreement, particularly Grossenbach’s remedies should the Debtor default in making the post-petition installment payments. Gros-senbach argues that the disclosure satisfies the requirements of § 329(a) and Rule 2016(b). I agree with Grossenbach. The disclosure requirements of § 329 and Rule 2016 do not expressly require that the entirety of a fee agreement be disclosed. Instead, these provisions require disclosure only as to the compensation paid or agreed to be paid and whether such compensation is to be shared. Section 329(a) requires only disclosure of the compensation paid or agreed to be paid for services rendered or to be rendered in contemplation of or connection with the bankruptcy case and the source of the compensation. Rule 2016(b) requires disclosure of the particulars of any sharing of fees other than with a member or associate of the attorney’s law firm. The purpose of the disclosure requirement is to alert the United States Trustee, the court and" }, { "docid": "20957406", "title": "", "text": "Barron & Newburger, P.C. v. Texas Skyline, Ltd. (In re Woemer), 783 F.3d 266, 270 (5th Cir.2015). II. Post Facto Approval of Employment With court approval, a bankruptcy trustee or debtor-in-possession may employ professional persons, including attorneys, to assist them in their duties. 11 U.S.C. § 327(a). Where an attorney has been “employed under section 327,” a bankruptcy court is empowered to award him compensation from the estate. Id. § 330(a)(1). But “any professional not obtaining approval is simply considered a volunteer if [he] seeks payment from the estate.” Interwest Bus. Equip., Inc. v. U.S. Tr. (In re Interwest Bus. Equip., Inc.), 23 F.3d 311, 318 (10th Cir.1994). Although neither § 327(a) nor Fed. R. Bank. P.2014 — which implements that statute — expressly requires that the approval must precede the attorney’s engagement, courts have generally read such a requirement into the statute as a matter of judicial administration. See, e.g., Matter of Singson, 41 F.3d 316, 319 (7th Cir.1994) (“Prior approval is strongly preferred because it permits close supervision of the administration of an estate, wards off ‘volunteers’ attracted to the kitty, and avoids duplication of effort.”). Moreover, D. Kan. Local Bankruptcy Rule 2014.1(a) expressly requires that in order to employ an attorney under § 327 to conduct a Chapter 11 case, the debtor-in-possession “must file with the petition an application to employ [the] attorney[ ].” We have assumed that a bankruptcy court may approve an attorney’s employment post facto, thereby entitling him to seek fees for work performed prior to approval See In re Albrecht, 233 F.3d 1258, 1260 (10th Cir.2000) (collecting cases); Land v. First Natl Bank of Alamosa (In re Land), 943 F.2d 1265, 1267 (10th Cir.1991). But Mr. Lazzo argues that we have not yet adopted a standard for evaluating whether such a post facto application should be approved. He contends that the appropriate standard for such an application is “excusable neglect.” In Land, we stated that retroactive approval of an attorney’s employment “is only appropriate in the most extraordinary circumstances” and that “[s]imple neglect will not justify nunc pro tunc approval.” Land, 943 F.2d" }, { "docid": "12391632", "title": "", "text": "329. Rule 2016 governs applications by professionals, including a debtor’s attorney, for interim and final compensation from the estate and details the information required on the application. Fed.R.Bankr.P. 2016(a). In addition, it requires the attorney for every debtor to file a disclosure statement identifying any fee arrangements and compensations paid or promised to the attorney. Fed.R.Bankr.P. 2016(b). It also contains a requirement that the disclosure be supplemented should any additional fee arrangements or payments be made. Id. Rule 2017 specifies the procedure by which payments to a debtor’s attorney, both before and after commencement of the case, are reviewed under § 329. In both situations, a court is required to determine whether the fees charged or to be charged are excessive. The purpose of § 329 is to regulate an attorney’s transactions with a debtor, regardless of the chapter under which the bankruptcy is filed. It was enacted in response to the concern that “[p]ayments to a debtor’s attorney provide serious potential for evasion of creditor protection provisions of the bankruptcy laws, and serious potential for overreaching by the debtor’s attorney, and [therefore] should be subject to careful scrutiny”. Land v. First National Bank of Alamosa (In re Land), 116 B.R. 798, 804 (D.Colo.1990), aff'd 943 F.2d 1265 (10th Cir.1991) (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 329 (1977), S.Rep. No. 989, 95th Cong., 2nd Sess. 39-40 (1978)). Section 329 empowers the bankruptcy courts to protect debtors from overreaching by their counsel under circumstances where debtors are vulnerable and in need of prompt legal services. As a consequence, a court’s review of the reasonableness of compensation under § 329 is a holistic review of the entire attorney/debtor relationship. Compensation to a debtor’s counsel may be considered excessive for a number of reasons including the size of the fee, the nature of the services provided, failure to disclose the information required by Rule 2016(b), unethical conduct or other causes. See e.g., Quiat v. Berger (In re Vann), 136 B.R. 863 (D.Colo.1992); In re Land, 943 F.2d 1265 (10th Cir.1991). A. Adequacy of Disclosure The United States Trustee argues that Grossenbach’s" }, { "docid": "2350494", "title": "", "text": "the attorney’s seeking compensation from the estate under § 330(a). In re Hargis, 148 B.R. 19, 22 (Bankr.N.D.Tex.1991); In re Rheuban, 121 B.R. 368, 385 (Bankr.C.D.Cal.1990); Land v. First Nat’l Bank in Alamosa (In re Land), 116 B.R. 798, 805 (D.Colo.1990) (approval must be obtained under § 327(a) even where fees are paid by a third party and not by the estate), aff'd, 943 F.2d 1265 (10th Cir.1991); In re Martin, 102 B.R. 653, 658 (Bankr.W.D.Tenn.1989) (“[T]he mere fact that a professional receives a retainer cannot be utilized by the professional as a circumvention of the Bankruptcy Code’s requirement of an approval of employment_”); In re Boh! Ristorante, Inc., 99 B.R. 971, 973 (9th Cir. BAP 1989). A contrary rule would permit attorneys for the trustee or debtor in possession to avoid the strictures of § 327(a) and Rule 2014(a) by demanding a large pre-petition retainer and never applying to the court for compensation post-petition. Betsos’s reliance on Matter of Fulton, 80 B.R. 1009 (Bankr.D.Neb.1988) and In re McDonald Bros. Constr., supra, 114 B.R. 989, is misplaced. Those cases held that no fee application need be filed where an attorney seeks no compensation beyond a flat fee paid prior to the petition filing. Neither held that no employment application is required in that situation. As a general rule, the consequence of failure to make full disclosure under § 327(a) and Rule 2014(a) is the denial of all compensation for post-petition services. Futuronics Corp. v. Arutt, Nachamie & Benjamin (Matter of Futuronics Corp.), 655 F.2d 463, 469 (2d Cir.1981) (“[I]t has long been the practice in this Circuit to deny compensation to counsel who fail to comply with the disclosure provisions contained in [the predecessor to § 327(a) and Rule 2014(a)].”), cert. denied, 455 U.S. 941, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); In re Envirodyne Indus., Inc., 150 B.R. 1008, 1015 n. 8 (Bankr.N.D.Ill.1993); In re Rundlett, 137 B.R. 144, 146 (Bankr.S.D.N.Y.1992). Obviously, where no disclosure is made because no § 327(a) application was filed, denial of all compensation for post-petition services rendered is also appropriate. DeRonde v. Shirley (In" }, { "docid": "226257", "title": "", "text": "fees and costs of $5,835 and $757.90, for a total of $6,592.90. Since Franks had already received a retainer of $8,000, the court ordered Franks to disgorge $1,407.10 or to file an appropriate supplemental fee application. The bankruptcy court reviewed the supplemental application and found “it inadequate for the purposes for which it was submitted.” Order of February 6, 1992, R. Yol. I, Tab 123. This appeal followed. In it, Franks only contests the bankruptcy court’s refusal to compensate him for pre-petition work, for the state court work on behalf of the principals, and the fifteen percent sanction imposed for the lack of benefit to the estate. II. Discussion A. Standard of Review I review an award of fees and an order of disgorgement on an abuse of discretion standard. Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.1990). I may not reverse the bankruptcy court’s decision unless I am convinced that the bankruptcy court failed to apply proper legal standards, failed to follow proper procedures, or based its award of clearly erroneous findings of fact. Grant v. George Schuman Tire & Batt. Co., 908 F.2d 874, 878 (11th Cir.1990). 1. Compensation for Work Done Before Approval as Debtor’s Lawyer Franks asserts that it should be compensated for work performed before February 7, 1991. The debtor claims Franks should be denied compensation for all pre-petition work because the bankruptcy court’s order of appointment and approval dated only from the petition filing date. I agree that Franks is due some of, but not all, the compensation he seeks. The law is very clear that the bankruptcy court must appoint and approve a lawyer before the lawyer can be compensated from the estate. 11 U.S.C. § 327; Bankr.R. 2014; In re Land, 116 B.R. 798, 806-07 (D.Colo.1990), aff’d and remanded, 943 F.2d 1265 (10th Cir.1991). In Land the lawyer persistently ignored for nearly four years the bankruptcy court’s orders that he seek approval and appointment pursuant to 11 U.S.C. § 327. 116 B.R. at 804. When the lawyer finally sought approval nunc pro tunc, the bankruptcy court denied the request, finding no" } ]

[ { "docid": "15483661", "title": "", "text": "e., the possible benefits of allowing another full service LTL carrier to conduct operations in Lake and Porter Counties. This was especially important in view of the ALJ’s undisturbed finding that “the few carriers which are willing to perform a similar service to applicant’s and which have such Indiana authority do not really have the capacity or facilities for the large volume involved.” The failure to consider the desirability of competition is itself enough to require reversal of the Commission’s decision and remand for further consideration. P. C. White Truck Line, Inc. v. ICC, 179 U.S.App.D.C. 367, 551 F.2d 1326 (1977); see also Chickasaw Motor Line, Inc., supra, 121 M.C.C. at 479 — 480; and see note 1, supra. D. On remand, the Commission should also consider and explain its evaluation of several other factors. These include whether single-line services would reduce transit times, Milne Truck Line, Inc., 121 M.C.C. 149, 163 (1975), or provide greater fuel efficiency, Chickasaw Motor Line, Inc., supra, 121 M.C.C. at 480; Ace Freight Lines, Inc., 124 M.C.C. 799, 802 (1976). Also Niedert’s operations into Indiana under the temporary operating authority it had obtained in 1973, although not alone a sufficient basis for the issuance of a permanent authority, should be considered as a relevant factor, Brown Transport Corp., 121 M.C.C. 521, 535 (1975); Burger Transfer & Storage, Inc., 121 M.C.C. 1, 7 (1975), especially in view of the ALJ’s finding that Niedert’s service into Indiana under the temporary authority “has been quite a help to shippers.” The proceeding must be remanded to the Commission with directions to give reconsideration to the portion of the application relating to services into Indiana in conformity with the principles stated in this opinion. II. In support of its application for conversion of its certificate of registration into a certificate of public convenience and necessity, Niedert sought to show past lawful operations under the certificate of registration, which in turn was based upon the Illinois authority. A reason for allowing an applicant to introduce evidence of past lawful operations lies in the fact that the State agency, having issued" } ]

[ { "docid": "5815012", "title": "", "text": "state south of Idaho County. . These are the areas in which the certificates conferred by the Commission upon May and Ayala overlap. . See note 2 supra. . Bowman Transp. Co. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447, 454-455 (1974); Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2)(E) (1976). . Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 141 (1966). . Id, 383 U.S. at 620, 86 S.Ct. at 1026, 16 L.Ed.2d at 140, quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938). . Administrative Procedure Act § 10(e)(2)(A), 5 U.S.C. § 706(2)(A) (1976). . The burden is on the applicant to show that the prospective service “is or will be required by the present or future public convenience and necessity . . . .” Interstate Commerce Act, § 207(a), 49 U.S.C. § 307(a) (1970); Quickie Transp. v. United States, 169 F.Supp. 826, 828 (D.Minn.), aff'd, 361 U.S. 36, 80 S.Ct. 140, 4 L. Ed.2d 111 (1959). . Pan American Bus Lines Operations, 1 M. C.C. 190, 203 (1936). . Youngstown Cartage Co. v. ICC, 187 U.S. App.D.C. 294, 295, 571 F.2d 1243, 1244, cert. denied, -U.S. --, 99 S.Ct. 97, 58 L.Ed.2d 119 (1978). . Warren Transp., Inc., 69 M.C.C. 241, 246 (1956). . John Novak Contract Carrier Application, 103 M.C.C. 555, 556-557 (1967). See also C & H Transp. Co. v. ICC, 191 U.S.App.D.C. 42, 589 F.2d 565 (1978). . John Novak Contract Carrier Application, supra note 18, 103 M.C.C. at 557. We recently reversed the Commission’s grant of an application for temporary authority to and from entire states that was unsupported by data “relating to ‘a representative number of points in each such State . . . Barrett Mobile Home Transp., Inc. v. ICC, 185 U.S.App.D.C. 283, 284 & n.7, 567 F.2d 150, 151 & n.7 (1977), quoting 49 C.F.R. § 1131.4(b)(1)(i) (1976). The Commission has no comparable regulation calling upon applicants to support their pleas for permanent certificates in" }, { "docid": "14857884", "title": "", "text": "motor carrier entry policy. A case-by-case development will be helpful. Pre-Fab Transit Co., 132 M.C.C. at 413-14 (emphasis added) (footnotes omitted). In accordance with the liberalized entry policy mandated by Congress in the Motor Carrier Act, the burden of proof on appellants has been lessened. H.R.Rep. No. 96-1069, 96th Cong., 2d Sess. 14-15, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2296-97. See also, Port Norris Express Co., Inc. v. ICC, 687 F.2d 803, 806 (3d Cir.1982) (Port Norris v. ICC (I)). Although the ICC may not grant applications for operating authority automatically, congressional emphasis on the importance of competition in the national trucking industry indicates that it will be substantially easier for appli cants to obtain new authority. Port Norris v. ICC (I) at 806-807; Gamble v. ICC, 636 F.2d 1101, 1103 (5th Cir.1981); Tri-State Motor Transit Co., Ext.—General Commodities, 132 M.C.C. at 513. B. The Standard of Review As a court reviewing an agency decision, we must determine whether the agency’s findings and conclusions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A) and (E). Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, ... 401 U.S. [402,] 416, 91 S.Ct. [814,] 824 [28 L.Ed.2d 136], The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). While we may not supply a reasoned basis for the agency’s action that" }, { "docid": "3606801", "title": "", "text": "to the 1935 Act: the Committee clearly rejects the historic approach of the Commission toward applications for authority to operate as motor common carriers of property. [The amendment] reflects the Committee’s strong belief that increased competition and potential competition will bring about the most efficient and economical delivery of transportation service to the public. Id. at 14, reprinted in 1980 U.S.Code Cong. & Ad.News 2296. Prior to the 1980 Act, granting interstate authority to a new carrier solely for purposes of competition was disallowed because competition was viewed as harmful to the public as well as to other motor carriers. See Argo-Collier Truck Lines, Inc. v. United States, 611 F.2d 149, 155 (6th Cir.1979). Under the 1980 Act it appears that competition is, per se, in the public interest. See House Report, 3, 12, 14, reprinted in 1980 U.S.Code Cong. & Ad. News 2285, 2294, 2295. III. Our review of an ICC order is governed by the Administrative Procedure Act. 5 U.S.C. § 706(2)(A)-(E). Under the APA this court is to hold unlawful and set aside agency actions, findings or conclusions which are: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; or (2) not supported by substantial evidence. Id. Under the arbitrary and capricious standard: [a] reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment .... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency”.... The agency must articulate a “rational connection between the facts found and the choice made”. . .. While we may not supply a reasoned basis for the agency’s action that the agency itself has not given ... we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974)" }, { "docid": "21055050", "title": "", "text": "be of real benefit to the shipper, id. at 717. Finally, the ICC held that the ability of protestants to provide additional service to meet the increased volume was unclear and that Argo and protestants would suffer no material adverse effects from the granting of the application. Id. at 718. Petitioners challenge the ICC’s decision on the grounds that it was arbitrary and capricious and an abuse of discretion in that it is unsupported by substantial evidence. Administrative Procedure Act, 5 U.S.C. § 706(3)(A) and (E). As stated in Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 95 S.Ct. 438, 42 L. Ed.2d 447 (1975): Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment . . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814, 28 L.Ed.2d 136. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). 419 U.S. at 285, 95 S.Ct. at 442. In passing on a petition for additional authority, the ICC is required to determine whether the new service will serve a useful purpose and be responsive to a public need; whether existing carriers do or can provide the service; and whether the additional authority would endanger, or impair the ability of existing carriers to serve the public need. West Nebraska Express, Inc., Extension, 118 M.C.C. 423, 427 (1973); Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). It is the ICC’s duty to identify the competing interests and then to strike a reasonable balance. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra. In most cases, the" }, { "docid": "10898138", "title": "", "text": "to consider the impact of the N & W-Southern merger on N & W’s revenues from the line; (4) the use of normalized maintenance figures in place of actual maintenance costs; (5) the failure to consider N & W’s alleged refusal to handle traffic for the purpose of downgrading and diminishing the revenue attributable to the line proposed for abandonment; and (6) the failure to consider the effect of an economic recession on non-coal traffic. II. Scope of Review A railroad is permitted to abandon part of a rail line only if the ICC “finds that the present or future public convenience and necessity require or permit the abandonment or discontinuance.” 49 U.S.C. § 10903(a). The burden is on the railroad applying for the certificate of abandonment to show that the present or future public convenience and necessity require or permit the abandonment. 49 U.S.C. § 10904(d)(1). In making its determination of public convenience and necessity, the ICC is to exercise its discretion in balancing the burden to the railroad of providing the service against the benefits accruing to the public from the service. Chicago & Northwestern Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 811, 320, 101 S.Ct. 1124, 1131, 67 L.Ed.2d 258 (1981); Bloomer Shippers Association v. Interstate Commerce Commission, 679 F.2d 668, 672 (7th Cir.1982). The Commission’s authority in making its determination is broad, so the scope of judicial review of the ICC’s decision is correspondingly narrow. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Simmons v. United States, 698 F.2d 888, 894 (7th Cir.1983). The standard of review to be applied to an ICC abandonment determination has been the subject of some debate in this circuit, but, because the statute allows the ICC to make an abandonment determination without a public hearing, the arbitrary, capricious or abuse of discretion standard has generally been adopted as the more appropriate. 49 U.S.C. § 10904(c)(1); 5 U.S.C. § 706(2)(A). The substantial evidence standard, on the other hand, applies when public hearings are required by statute." }, { "docid": "5396235", "title": "", "text": "to partially dismiss was denied because the administrative law judge concluded that the unique characteristics of nuclear and radioactive commodities brought them outside the scope of a general size and weight authority- In April, 1977, Division One of the Interstate Commerce Commission adopted the essential findings and conclusions set forth in the initial decision of the administrative law judge. Id. at 702. The Commission disagreed with the administrative law judge, however, as to whether nuclear and radioactive materials could be shipped under size and weight authority alone. In the Commission’s view: [t]he size and weight protestants hold authority which permits them to transport certain of the involved commodities, [but] they are not authorized to provide a complete service . Id. at 700. Consequently, the Commission granted the authority originally sought by the five applicants on the condition that no duplicative authority be construed from the Commission’s action. Id. at 720. Petitions for reconsideration were denied. I We note at the outset that under the Administrative Procedure Act: The reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] ..... (E) unsupported by substantial evidence . . 5 U.S.C. § 706. That statutory directive applies to the present case. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Warren Transport, Inc. v. United States, 525 F.2d 148, 150 (8th Cir. 1975); see generally K. Davis, Administrative Law of the Seventies §§ 29.00-01 (1976 & Supp.1977). Several recent decisions in this circuit have discussed our limited role in considering petitions for review of Interstate Commerce Commission orders. E.g., B. J. McA-dams, Inc. v. ICC, 551 F.2d 1112, 1116 (8th Cir. 1977); Midwest Coast Transport, Inc. v. ICC, 536 F.2d 256, 259-60 (8th Cir. 1976); Hilt Truck Line, Inc. v. United States, 532 F.2d 1199, 1201-02 (8th Cir. 1976); Warren Transport, Inc. v. United States, supra at 149-51. Each of these cases emphasized the narrow scope of our review:" }, { "docid": "17152537", "title": "", "text": "attempted to articulate certain criteria to be considered in licensing cases: [1] Whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; [2] whether this purpose can and will be served as well by existing lines or carriers; and [3] whether the new operation or Service proposed can be served by applicant without endangering or impairing the operations of existing carriers contrary to the public interest. Pan American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). These Pan American criteria have been applied and emphasized to varying degrees, with no one factor controlling. The courts, however, do require the Commission to balance carefully the various competing interests in determining “whether the ‘public convenience and necessity’ would be' served by the entry of new carriers into markets served by [existing carriers],” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, 293, 95 S.Ct. 438, 443, 42 L.Ed.2d 447, rehearing denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1974); and, in light of the national transportation policy, to consider the inherent advantages of the proposed service in terms of the public benefits it might produce. See, e. g., Schaffer Transportation Co. v. United States, supra, 355 U.S. at 89-90, 78 S.Ct. 173; Dixie Carriers, Inc. v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934 (1956). In particular, the Commission must consider the benefits from additional competition as well as the harm to existing carriers. See e. g., Niedert Motor Service, Inc. v. United States, 583 F.2d 954 (7th Cir. 1978); Sawyer Transport, Inc. v. United States, 565 F.2d 474 (7th Cir. 1977); P. C. White Truck Line, Inc. v. ICC, 179 U.S.App.D.C. 367, 551 F.2d 1326 (D.C.Cir.1977). The difficulty in the present case is that the Commission has failed to make specific findings or to state its reasons for or the evidence relied upon in reaching its decision. Although it is a well-established tenet of administrative law that an agency is “presumed” to have properly performed all of its duties, see, e. g., ICC v." }, { "docid": "6743898", "title": "", "text": "the public interest favored denial of the application. The petitioner correctly points out that if this is so, the case law requires that the application be denied. See Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Sharron Motor Lines, Inc. v. United States, 633 F.2d 1115 (5th Cir. 1981). IY. Standard of Review Under 5 U.S.C. § 706, an agency decision such as the one before us should be set aside if it is “arbitrary, capricious, ... [or] unsupported by substantial evidence.” If the agency considers the relevant factors and articulates a rational connection between the facts found and the choice made, the decision is not arbitrary or capricious. Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Under the substantial evidence test, the decision need not be supported by the weight of the evidence; the “possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). “[Substantial evidence is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Refrigerated Transport Co., Inc. v. ICC, 616 F.2d 748, 751 (5th Cir.1980). V. Discussion A. Public Necessity — A Prima Facie Case The ICC’s test under the § 10922(a) standard for public necessity was established in Pan Am Buslines Operation, 1 M.C.C. 190 (1936) and has been approved by this court. The factors to be considered are: 1) Whether the new operation or service will serve a useful public purpose, [responsive] to a public demand or need; 2) whether this purpose can and will be served by existing lines or carriers; and 3) whether [this purpose can and will be served by applicant with the new operation or service proposed] without endangering or impairing the operations of existing carriers contrary to the public interest. Sharron Motor Lines, Inc. v. United States, 633" }, { "docid": "12107074", "title": "", "text": "Commission, this Court has stated: A decision of the Commission should not be set aside on judicial review unless it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence. 5 U.S.C. § 706(2)(A) & (E); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975) ; Coastal Tank Lines, Inc. v. Interstate Commerce Commission, 690 F.2d 537, 542-43 (6th Cir.1982). If the agency considers the relevant factors and articulates a rational connection between the facts found and the choice made, the decision is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and will be upheld if supported by substantial evidence. Bowman Transportation, Inc., supra, 419 U.S. at 285, 95 S.Ct. at 441; O-J Transport Co. v. United States, 536 F.2d 126, 129-30 (6th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976) . Film Transit, Inc. v. I.C.C., 699 F.2d 298, 300 (6th Cir.1983). This Court has noted that the Administrative Procedure Act does not require an agency to furnish detailed reasons for its decisions so long as its conclusions and underlying reasons may be discerned with confidence. Lemmon Transport Co., Inc. v. United States, 393 F.Supp. 838, 841 (W.D.Va. 1975). Stated another way, the Commission’s decision must be sufficiently clear so that a court is not required to speculate as to its basis. Ross Express, Inc. v. United States, 529 F.2d 679, 682 (1st Cir.1976). O-J Transport Co. v. United States, 536 F.2d 126, 130 (6th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976). In this case, the Authority denied the Union’s backpay request with the terse explanation that it had not been demonstrated that “but for the Respondent’s improper refusal to bargain over the starting and quitting times, employees would have received overtime pay.” On appeal, the Union and the Authority have disagreed concerning the reasoning of the Authority’s decision and" }, { "docid": "17634198", "title": "", "text": "Competition as a Factor in Motor Common Carrier Licensing, 46 ICC Practitioners’ J. 56 (1978). In the Wells Fargo application, the first of the three decisions, the full Commission reversed the Administrative Law Judge and the Review Board, and there were dissents by two of the commissioners. . The Court, in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), indicated that the “arbitrary, capricious” and “substantial evidence” standards were independent tests and both should be used in reviewing carrier applications. Id. at 283-84, 95 S.Ct. 438; see Trans-American Van Service, Inc. v. United States, 421 F.Supp. 308, 316-17 (N.D. Texas 1976) (3-judge court). But cf. Illinois Central R. Co. v. Norfolk & Western R. Co., 385 U.S. 57, 65-66, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966) (reviewing railroad common carrier application only under substantial evidence standard); C & H Transp. Co. v. I. C. C., 191 U.S.App.D.C. 42, 47, 48, 589 F.2d 565, 570-71 (1978) (“substantial evidence” standard is appropriate for reviewing adjudicatory-type Commission proceedings). We need not explore the possible subtle differences between the two standards, because the Commission decisions here withstand scrutiny under both. Cf. Packer Transp. Co. v. United States, 596 F.2d 891, 894 & n. 4 (9th Cir. 1979) (discussing for standards, but applying only “substantial evidence” review). See generally K. Davis, Administrative Law of the Seventies § 29.00 (1976). . Section 203(a)(15), now recodified (without substantive change) as section 10102(12), reads as follows: (12)- “motor contract carrier” means a person, other than a motor common carrier, providing motor vehicle transportation for compensation under continuing agreements with a person or a limited number of persons— (A) by assigning motor vehicles for a continuing period of time for the exclusive use of each such person; or (B) designed to meet the distinct needs of each such person. [49 U.S.C.A. § 10102(12) (1979).] . Substantially similar or identical language was used in both the Purolator extension (No. 79-1045) and the Armored extension (No. 78-2154). . Federal Reserve Bank routes were not specifically involved in that earlier case. ." }, { "docid": "7613442", "title": "", "text": "has cautioned: In this circuit a petition for review of a Commission’s order will be denied on a summary basis when the order is based on the evidence and supported by a rational judgment of the Commission. Midwest Coast Transport, Inc. v. ICC, supra, 536 F.2d at 259, quoting from Warren Transport, Inc. v. United States, supra, 525 F.2d at 151. The guidelines governing an application for a certificate of public convenience and necessity are identified in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936): The question, in substance, is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest. An applicant for a common carrier certificate bears the burden of proving that its proposed service is or will be required by the public convenience or necessity. See, e. g., Tri-State Motor Transit Co. v. United States, 369 F.Supp. 1242, 1244 (W.D.Mo. 1973). The Commission’s orders in all three of the eases before us appropriately are founded upon the rationale that a grant of authority would be a wasteful duplication of service when existing authorized carriers appear capable of providing the proposed service. See Wingate Trucking Co. v. ICC, 535 F.2d 909, 910 (5th Cir. 1976); Warren Transport, Inc. v. United States, supra, 525 F.2d at 149-51; Eastern Oil Transport, Inc. v. United States, 413 F.Supp. 121, 126 (E.D.N.C.1976). We have thoroughly reviewed the record in light of the established guidelines and have concluded that the Commission’s findings are supported by substantial evidence and that the Commission’s rulings were not arbitrary, capricious, an abuse of discretion or otherwise unlawful. Accordingly, the Commission’s orders are affirmed. The petitions for review are denied. . In each case the ICC directed that the applications should be reviewed under its modified procedure, 49 C.F.R. § 1100.45 et seq., which requires" }, { "docid": "11820333", "title": "", "text": "appellants’ arguments concerning the hearing procedure, the applicability of various legal criteria, and the competitive effects of the applicants’ proposed services. In short, “we can discern in the Commission’s opinion a rational basis for its treatment of the evidence, and the ‘arbitrary and capricious’ test does not require more.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974). VII. Substantial Evidence Finally, after an extensive review of the record, we find that the Commission decision to grant the instant applications is supported by substantial evidence on the record as a whole. “Under the substantial evidence test, the decision need not be supported by the weight of the evidence; the ‘possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.’ ” Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1189 (5th Cir. 1981), quoting from Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). Here, the evidence' — ■ even limited to the cross-examined oral testimony — clearly established that the applicants’ proposals would serve a useful public purpose, responsive to a public demand or need. In fact, the public witness support for the proposals was little short of overwhelming. Appellants’ rebuttal evidence did not demonstrate that the proposals were inconsistent with the public interest, at least not so clearly as to render the Commission’s decision unreasonable. Thus, on this record, we find that the Commission has successfully passed the substantial evidence test. For all of the reasons discussed above, we therefore AFFIRM. . Consolidated with Nos. MC-42487 (Sub-No. 882), Consolidated Freightways Corp. of Delaware; MC-29910 (Sub-No. 200), Arkansas-Best Freight System, Inc.; MC-35320 (Sub-No. 157), T.I.M.E.-D.C., Inc.; MC-41432 (Sub-No. 155), East Texas Motor Freight Lines, Inc.; MC-59680 (Sub-No. 220), Strickland Transportation Co., Inc., succeeded by Wilson Freight System, Inc.; MC-107727 (Sub-No. 29), Alamo Express, Inc.; MC-110325 (Sub-No. 88), Transcon Lines; MC-112713 (Sub-No. 227), Yellow Freight System, Inc. . Under modified procedure, the parties file evidence in written verified statement" }, { "docid": "6743897", "title": "", "text": "to the beginning of the application process. By reviewing the grant of authority under the old law, we are reducing this disruption without violating the intent of the new law. Affirming the grant of authority under the old law avoids the disruption of remand and is not inconsistent with the spirit of the new law which generally aims to establish more liberal standards governing the granting of authority. See 45 Fed.Reg. 45537-38 (the ICC used this same reasoning in adopting its interim rules). When we reverse, the ICC will on remand apply the new law, a result which clearly is not manifestly unjust. We thus review the order before us under the old law. III. Substantive Issues Petitioner maintains that Osborn failed to present a prima facie showing of “public necessity” for Osborn’s services under 49 U.S.C. § 10922(a) (prior law). Petitioner further claims that even if Osborn did make out such a case, petitioner clearly demonstrated that the harm to the other carriers from a granting of the application would outweigh the benefits; thus, the public interest favored denial of the application. The petitioner correctly points out that if this is so, the case law requires that the application be denied. See Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Sharron Motor Lines, Inc. v. United States, 633 F.2d 1115 (5th Cir. 1981). IY. Standard of Review Under 5 U.S.C. § 706, an agency decision such as the one before us should be set aside if it is “arbitrary, capricious, ... [or] unsupported by substantial evidence.” If the agency considers the relevant factors and articulates a rational connection between the facts found and the choice made, the decision is not arbitrary or capricious. Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Under the substantial evidence test, the decision need not be supported by the weight of the evidence; the “possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative" }, { "docid": "5396236", "title": "", "text": "and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] ..... (E) unsupported by substantial evidence . . 5 U.S.C. § 706. That statutory directive applies to the present case. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Warren Transport, Inc. v. United States, 525 F.2d 148, 150 (8th Cir. 1975); see generally K. Davis, Administrative Law of the Seventies §§ 29.00-01 (1976 & Supp.1977). Several recent decisions in this circuit have discussed our limited role in considering petitions for review of Interstate Commerce Commission orders. E.g., B. J. McA-dams, Inc. v. ICC, 551 F.2d 1112, 1116 (8th Cir. 1977); Midwest Coast Transport, Inc. v. ICC, 536 F.2d 256, 259-60 (8th Cir. 1976); Hilt Truck Line, Inc. v. United States, 532 F.2d 1199, 1201-02 (8th Cir. 1976); Warren Transport, Inc. v. United States, supra at 149-51. Each of these cases emphasized the narrow scope of our review: In this circuit a petition for review of a Commission’s order will be denied on a summary basis when the order is based on the evidence and supported by a rational judgment of the Commission, (emphasis supplied). Warren Transport, Inc. v. United States, supra at 151, quoted in B. J. McAdams, Inc. v. ICC, supra at 1116, Midwest Coast Transport, Inc. v. ICC, supra at 259, and Hilt Truck Line, Inc. v. United States, supra at 1201. Under § 207(a) of the Interstate Commerce Act, the Commission cannot grant operating authority unless it has determined that a proposed service “is or will be a required by the present or future public convenience and necessity.” 49 U.S.C. § 307(a). In making that determination, the Commission must decide: (1) whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; (2) whether this purpose can and would be served as well by existing lines or carriers; (3) whether this purpose can be served by the applicant with the new" }, { "docid": "7503708", "title": "", "text": "the broad grant of authority to motor contract carriers of property. For reasons more particularly set forth below, we find that under the 1980 Act the Commission properiy applied the statutory criteria in its grant of the motor contract carrier authority to Yellow and that its findings are supported by substantial evidence. Standard of Review Preliminarily, we observe: with regard to ICC orders granting authority or permits, judicial review is limited in scope.' The court may not disturb the order unless it finds that the Commission’s substantive findings and conclusions were arbitrary and capricious, an abuse of discretion, not in accordance with law, or not supported by substantial evidence: 5 U.S.C. § 706(2); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Refrigerated Transport Co., Inc. v. I. C. C., 616 F.2d 748, 751 (5th Cir. 1980). “Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one. A reviewing court must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. ... The court is not empowered to substitute its judgment for that of the agency’.... The agency must articulate a ‘rational connection between the facts found and the choice made’ . . . [but] we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, supra, 419 U.S. at 285, 95 S.Ct. at 442. In the context of judicial review of an administrative agency decision, substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966); quoted and applied by Refrigerated Transport, supra, 616 F.2d at 751, in the review of an ICC grant of a carrier certificate. I. The Factual Background Yellow, the applicant, is presently operating as a motor common carrier of property over regular and irregular routes. The 1980 application was Yellow’s first request for authority" }, { "docid": "6743911", "title": "", "text": "made such findings, we could not affirm a denial or reverse a granting without remand, since the applicant would not have had a chance to present evidence meeting the new, more relaxed test. . Although the total disruption to the industry would be less than if the new law were applied to matters pending before the ICC because of the larger number pending before the ICC than pending on appeal, the disruption to each of the numerous members who has an appeal pending would be greater. As an aside, it would be somewhat anomalous to apply the new law to the matters pending on appeal, while the ICC continues to process more recent applications under the old law. . Although our research does not reveal any case precisely on the retroactivity of the Motor Carrier Act of 1980, we do note that the cases which have reviewed orders after July 1, 1980 have applied the old law. See, e. g., Sharron Motor Lines, Inc. v. United States, 633 F.2d 1115 (5th Cir. 1981); Hunt Transportation, Inc. v. ICC, 636 F.2d 190 (8th Cir. 1980); Midwestern Transportation, Inc. v. ICC, 635 F.2d 771 (10th Cir. 1980). See also Central Freight Lines, Inc. v. ICC, 625 F.2d 1012 (5th Cir. 1980) (unpublished opinion intimating, but not deciding, that our resolution is correct). . Section 706 provides in relevant part: § 706 Scope of review . .. The reviewing court shall— (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute .... . In a policy statement published October 19, 1979, the ICC changed the Pan Am standard. Ex Parte No. MC-121, Policy Statement on Motor Carrier Regulation. The statement provides: (1) An applicant must demonstrate that the service proposed will serve a useful public purpose, responsive to a public demand or need; and (2)" }, { "docid": "11820332", "title": "", "text": "they take.” Pitre Bros. Transfer, Inc. v. United States, 580 F.2d 140, 144 (5th Cir. 1978), quoting from Humboldt Express, Inc. v. ICC, 567 F.2d 1134, 1137 (D.C.Cir. 1977). See 5 U.S.C. § 557(c) (1977). “The Commission ... is required to give reasons for its actions if the protestants raise a material disputed issue or if the existence of a material issue is apparent from the proceedings.” Humboldt Express, Inc. v. ICC, supra, 567 F.2d at 1139. Of course, numerous material issues are disputed by appellants here. But we find that although the Commission’s explication of this case is far from crystalline, it is sufficient to enable the parties and this Court to understand the decision granting the applications. The ALJ thoroughly abstracted and discussed the evidence, explained the applicable legal standards under the new law, and analyzed the evidence in light of those standards. The Commission corrected several errors in the ALJ’s opinion and then adopted its conclusions. This reasoning process was not so clouded as to prevent meaningful judicial review. It also answered appellants’ arguments concerning the hearing procedure, the applicability of various legal criteria, and the competitive effects of the applicants’ proposed services. In short, “we can discern in the Commission’s opinion a rational basis for its treatment of the evidence, and the ‘arbitrary and capricious’ test does not require more.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974). VII. Substantial Evidence Finally, after an extensive review of the record, we find that the Commission decision to grant the instant applications is supported by substantial evidence on the record as a whole. “Under the substantial evidence test, the decision need not be supported by the weight of the evidence; the ‘possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.’ ” Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1189 (5th Cir. 1981), quoting from Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966)." }, { "docid": "10883069", "title": "", "text": "in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action.” Id. at 177, 79 5.Ct. at 718. The Court reasoned that by leaving the interpretation of ICC certificates to the ICC, conflicts between state and federal authorities can best be avoided. Id. at 178, 79 S.Ct. at 718. Petitioners claim the ICC certificate does not cover Matlack's deliveries from Chemtech in St. Louis because the operation takes place wholly within Missouri and is thus intrastate. The question is whether the transportation from the distribution point in Missouri to customers in Missouri is part of a continuous interstate operation originating outside of Missouri and is thus covered by the ICC certificate, or whether the second leg of transportation is separate and wholly intrastate. We hold the issue is clearly within the ICC’s jurisdiction in interpreting whether its certificate covers the transportation. See Jones Motor Co. v. Pennsylvania Pub. Util. Comm’n, 361 U.S. 11, 80 S.Ct. 60, 4 L.Ed.2d 50 (1959). Merchants Fast Motor Lines, Inc. v. ICC, 528 F.2d 1042, 1044-45 (5th Cir.1976) (a party claiming that a carrier is in violation of its ICC certificate has recourse to the ICC initially). Judicial Review This court will set aside agency action only if it is arbitrary, capricious, an abuse of discretion or unsupported by substantial evidence on the record as a whole. 5 U.S.C. § 706(2)(A), (E). This is a narrow standard. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-42, 42 L.Ed. 2d 447 (1974). It is axiomatic that this court is not to substitute its judgment for the agency’s. Humphrey v. United States, 745 F.2d 1166, 1170 (8th Cir.1984). In Texas & N.O.R.R. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442 (1913), the Supreme Court held that the determination of whether transportation between two points within a state is part of a larger interstate transportation service depends on the essential character of the shipment. Sabine, 227 U.S. at 122, 33 S.Ct. at 233. A crucial factor" }, { "docid": "17152536", "title": "", "text": "properly balanced the various competing interests. I. We recognize that the Commission has broad discretion in making its motor carrier licensing decisions. See Appleyard’s. Motor Transportation Co. v. ICC, 592 F.2d 8, 9-10 (1st Cir. 1979). That discretion is bounded, however, by the requirements that the Commission properly follow statutory standards and consider all relevant factors. See, e. g., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Schaffer Transportation Co. v. United States, 355 U.S. 83, 87-92, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957). One of the Commission’s statutory duties in regard to granting a certificate for motor carrier service is to determine whether “the transportation to be provided under the certificate is or will be required by the present or future public convenience and necessity.” 49 U.S.C. § 10922(a)(2). The Commission also is guided by the national transportation policy, which seeks to develop and preserve adequate and efficient service. See 49 U.S.C. § 10101. Although these statutory standards are general, the Commission very early attempted to articulate certain criteria to be considered in licensing cases: [1] Whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; [2] whether this purpose can and will be served as well by existing lines or carriers; and [3] whether the new operation or Service proposed can be served by applicant without endangering or impairing the operations of existing carriers contrary to the public interest. Pan American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). These Pan American criteria have been applied and emphasized to varying degrees, with no one factor controlling. The courts, however, do require the Commission to balance carefully the various competing interests in determining “whether the ‘public convenience and necessity’ would be' served by the entry of new carriers into markets served by [existing carriers],” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, 293, 95 S.Ct. 438, 443, 42 L.Ed.2d 447, rehearing denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1974); and, in light of" }, { "docid": "7144112", "title": "", "text": "granted here outweigh any detriment, real or potential, to protestants. Judicial review of such determinations by the Commission is narrow. “. .. The court is not empowered to substitute its judgment for that of the agency.” ... The agency must articulate a “rational connection between the facts found and the choice made.” While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 441-442, 42 L.Ed.2d 447 (1974) (citations omitted); Refrigerated Transport Co., Inc. v. ICC, 663 F.2d 528, 531 (5th Cir. Unit B 1981). Diversion of traffic from existing carriers is given less weight under the Motor Carrier Act of 1980 than previously. The burden of proof changed from applicant to protestant. Before the 1980 Act, the applicant had to show “public convenience and necessity,” including whether its purpose “can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.” H.R.Rep. No. 1069, 96th Cong., 2d Sess. 13, reprinted in 1980 U.S. Code Cong. & Ad.News 2283, 2295 (quoting Pan-American Bus Lines Operations, 1 M.C.C. 190, 203 (1936)). After the Motor Carrier Act, however, protestants have the burden of showing that the proposed grant is inconsistent with public convenience and necessity. Although diversion of traffic may be part of this showing, the Act specifically provides that in considering the effect of issuance on existing carriers, “the Commission shall not find diversion of revenue or traffic from an existing carrier to be in and of itself inconsistent with the public convenience and necessity.” 49 U.S.C.A. § 10922(b)(2)(B). In light of the narrow standard of review and the diminished importance of traffic diversion from existing carriers under the new Act, we cannot find that the Commission erred. There is no" } ]

[ { "docid": "6873970", "title": "", "text": "actions taken by her. Since there was no claim of religion included in her charge, plaintiff may not assert that claim here. See Evans v. Technologies Applications & Service Co., 80 F.3d 954, 963 (4th Cir. 1996). A plaintiff in a Title VII suit may assert only those discrimination claims stated in her initial charge or reasonably related to the claims in her complaint. Id. Plaintiff may, however, assert in this Title VII action claims that she was subjected to discrimination because of her race or color, her age and her national origin. This Court has jurisdiction to consider those claims asserted under Title VII and the ADEA since they were previously presented to the EEOC. Plaintiff may not, however, proceed in this case with a claim of retaliation. Title VII makes it unlawful for an employer to discriminate against an employee because the employee has protested discrimination or filed charges of discrimination against the employer. See 42 U.S.C. § 2000e-3. In her Charge of Discrimination filed with the EEOC, plaintiff merely complained of the unfair manner in which her superiors had treated her. She alleged in her Charge that she was subjected to discriminatory treatment, inter alia, in retaliation “for previously challenging my assignment out of the dormitory.” An allegation of this sort is not sufficient to permit a plaintiff to seek relief under 42 U.S.C. § 2000e-3. There is no allegation by plaintiff in this case that she was subjected-to retaliation because she protested discrimination or otherwise engaged in activity protected by Title VII. Although this Court has jurisdiction over plaintiffs other Title VII claims for race or color, or national origin discrimination and over plaintiffs ADEA claim for age discrimination, the record here establishes as a matter of law that plaintiff cannot prevail on any of these claims. On the record in this case, this Court finds and concludés that plaintiff has failed to establish a prima facie case of race or color discrimination, of national origin discrimination, or of age discrimination. Plaintiff has met the first two requirements of a prima facie case by producing evidence" } ]

[ { "docid": "6936059", "title": "", "text": "but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and other evidence of retaliation. Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009) (citations and quotations omitted). In his briefing on the instant motion, Defendant has neither denied nor offered a legitimate, non-retaliatory reason for the alleged conduct. See generally Def.’s Mem.; Def.’s Reply. Accordingly, the focus of the Court’s consideration shall be whether, viewing the facts in a light most favorable to Plaintiff, a reasonable jury could find that Plaintiff has satisfied each element of her prima facie case. Defendant argues that Plaintiff cannot for this single reason: Each of the allegedly retaliatory actions of which Plaintiff complains began before Plaintiff engaged in protected activity. Def.’s Mem. at 12-13. For the reasons set forth below, the Court finds that Defendant has failed to demonstrate the absence of a genuine dispute of material fact on this issue, and summary judgment is accordingly denied. A. A Reasonable Jury Could Find that Several of the Alleged Retaliatory Acts Occurred After Plaintiff Engaged in Activity Protected by Title VII. Regarding the first element of Plaintiffs prima facie case — that Plaintiff engaged in statutorily protected activity— the parties do not dispute that Plaintiff complained about Defendant’s alleged religious discrimination to an EEO Counselor in May 2004 and that she filed her formal EEO complaint concerning the same on September 3, 2004. Def.’s Stmt. ¶¶2-3. While the Defendant half-heartedly argues that the Court should consider the September 2004 date as the date on which Plaintiff commenced her protected activity, see Def.’s Mem. at 12, such argument holds no water, as “[i]t is well settled that Title VII protects informal, as well as formal, complaints of discrimination.” Richardson v. Gutierrez, 477 F.Supp.2d 22, 27 (D.D.C. 2007) (finding that employee engaged in “protected activity” as required to establish prima facie case of retaliation under Title VII when she first contacted EEO Counselor to complain of workplace discrimination, and again when she declined the agency’s offer of resolution and expressed her intention to proceed with a formal complaint). Plaintiff, to the" }, { "docid": "79885", "title": "", "text": "56.1 Stmt. ¶ 40.) Kelly told Plaintiff she would investigate Plaintiffs complaints, and subsequently wrote Plaintiff a letter on December 28, 1994, describing the incidents. (PL’s 56.1 Stmt. ¶ 41; Defs.’ 56.1 Stmt. ¶ 41; Rasin Aff., Ex. K.) Plaintiff received a “Notice of Right to Sue” from the EEOC on or about April 7, 1995. (PL’s 56.1 Stmt. ¶ 43; Defs.’ 56.1 Stmt. ¶ 43.) Plaintiff filed this lawsuit on May 26,1995. I. Acts of Retaliation Plaintiff claims that Defendants retaliated against her for exercising her federally protected right to file an EEOC complaint alleging unlawful discrimination in violation of Title VII and § 1981. (Compl. 49-50; PL’s 56.1 Stmt. ¶ 44; Defs.’ 56.1 Stmt. ¶44.) Plaintiff asserts that the “Medication Error Incidents” and “The Patient Teaching Incidents,” support both Plaintiffs discrimination and retaliation claims. (PL’s 56.1 Stmt. ¶ 46; Defs.’ 56.1 Stmt. ¶46.) Additionally, Plaintiff claims that Dunleavy retaliated against Plaintiff by telling her to take the nursing protocol information out of the computer and insert it in patient charts. (Pl.’s 56.1 Stmt. ¶ 46(c); Defs.’56.1 Stmt. ¶ 46(c).) Plaintiff claims that she asked two other staff members if she should do this and they indicated that doing so was unnecessary. (Pl.’s Dep. at 325-27.) In further support of her retaliation claim Plaintiff also argues that after filing the EEOC complaint she received a lower performance rating on her post EEOC complaint evaluation, (PL’s Mem. Law at 9-10.), and was subjected to “hyperintensified observation.” (Id. at 19.) J. Dunleavy’s Transfer On August 24, 1995, Laura Smith (“Smith”) and three other African-American nursing attendants filed a grievance with their Union against Dunleavy for discrimination against African-Americans. (PL’s Dep. at 266-68; Smith Aff., Ex. A.) Dunleavy was allegedly transferred from Neurology in August 1995. (Smith Aff., ¶¶ 5-6.) Their grievance was withdrawn. (Letter of 10/18/95, Smith Aff., Ex. A.) II. DISCUSSION Defendants move pursuant to Rule 56 of the Fed.R.Civ.P. for summary judgment, asserting that: (1) claims against Dunleavy should be dismissed as there is no individual liability under Tomka; (2) Plaintiff has failed to establish a prima facie case" }, { "docid": "19135062", "title": "", "text": "145 F.3d at 120. The record in this case is devoid of evidence, direct or circumstantial, sufficient to support a finding that Ticali was assigned to teach a different class because of her religion, race or national origin. And absent a triable issue of fact on this point, summary judgment for the defendants is warranted. IV. Retaliation Title VII forbids an employer to retaliate against an employee for engaging in protected activity. See 42 U.S.C. § 2000e-3(a). Retaliation claims under Title VII are tested under a three-step burden shifting analysis. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998). First, the plaintiff must make out a prima facie case of retaliation. Id. Second, the defendant then has the burden of articulating a legitimate non-retaliatory reason for the complained of action. Id. Third, if the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue at to whether the employer’s reason was merely a pretext for retaliation. Id. To establish a prima facie claim for retaliation, Ticali needs to show that she (i) participated in a protected activity known to the defendants; (ii) suffered an adverse employment action; and (iii) that there is a causal connection between the protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995). Here, Ticali is unable to make out a prima, facie claim for retaliation because she cannot show that she suffered an adverse employment action or that she was retaliated against. Ticali avers that she suffered an adverse employment action when she was terminated on April 19th, 1996, see PL’s Mem. Opp’n at 13, however, as discussed in Section II, B, supra, the termination was retracted. Therefore, Ticali cannot rely on her termination to satisfy an essential element of her prima facie case. In response to Ticali’s argument that the notice of termination was given within days after the EEOC Complaint was filed, the undisputed facts demonstrate that on June 23rd, 1995, Ticali was requested to resign — a request that she considered. This was long before she filed" }, { "docid": "17362106", "title": "", "text": "that I was abrasive, uncooperative, arrogant, condescending or unyielding, I can state that I do not feel I was any of these things_” Plaintiffs Affidavit, ¶ 15; see Plaintiffs Brief in Opposition [# 16], p. 8. Plaintiff has introduced no evidence tending to show that she was fired for any reasons other than those stated by Skinner, Fritzmeier, and Grant, or that their articulated concerns were less than genuine. “[Plaintiffs] conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [the employer] has offered such extensive evidence of legitimate, nondiscriminatory reasons for its actions.” Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir.1987). “Where the defendant’s justification evidence completely overcomes any inference to be drawn from the evidence submitted by the plaintiff, the district court may properly acknowledge that fact and award summary judgment to the employer.” Id. In this case, the Court concludes that Plaintiffs unsupported affidavit is not sufficiently probative of pretext to avoid summary judgment. Plaintiff also alleges that her termination was in retaliation for her letter stating that she believed she was being discriminated against because of her age. The parties in this case do not dispute the first two elements of the prima facie case for retaliation — that Plaintiffs allegation of age discrimination contained in her letter of June 9 constituted a protected expression, and that an adverse employment action followed. Defendant, however, contends that Plaintiffs discharge was not causally connected to her discrimination complaint. The evidence shows that Defendant learned of the discrimination charge on June 9 and fired Ms. Robinson on June 10. In many cases, this coincidence alone would sufficiently forge the causal link for summary judgment purposes. See, e.g., Goldsmith, 996 F.2d at 1163-64 (citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (evidence that employer knew of protected activity, combined with proximity in time of protected activity and retaliatory action, is sufficient to establish prima facie case of retaliation)). In this case, however, the Court finds the record insufficient to establish that Ms. Robinson’s termination was in" }, { "docid": "14285090", "title": "", "text": "She was terminated on August 10, 1976 when she failed to appear for work as ordered. On the basis of these facts, the court finds that it need not address the issue of whether plaintiff had been the subject of discrimination prior to leaving for vacation in July, 1976. Plaintiff had already received training in cultures throughout the month of June so that she was prepared to work as a regular cultures technologist when she returned from vacation. Plaintiff’s Deposition at 250, lines 19-21. Had she been present at work on August 2, 1976, all of her previous complaints regarding the job rotation would have become moot because on that date she would have begun working as one of the regular technologists in the requested rotation. She cannot be heard to complain now about discrimination and lack of training after she has been a precipitating factor in her failure to receive the job training that she desired. Moreover, for that same reason, she cannot recover any damages allegedly suffered because of defendant’s failure to permit her to rotate through the various job assignments and her corresponding lack of training. B. EDUCATIONAL LEAVE Plaintiff also maintains that in retaliation for her complaints, defendant discriminatorily refused to permit her to take the educational leave to which she was entitled, and that as a further act of retaliation, she was terminated when she exercised her legal right. The court does not agree. In order to make out a prima facie retaliatory discharge case under Title VII, plaintiff must show: (1) that she engaged in protected activity, i.e., that she opposed unlawful employment practices or participated in Title VII proceedings, (2) that her employer was aware of the protected activities, (3) that she was subsequently discharged, and (absent other evidence tending to establish a retaliatory motivation) (4) that her discharge followed her protected activities within such a period of time that the court can infer retaliatory moti vation. Once the prima facie case has been demonstrated, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. If a reasonable" }, { "docid": "14226990", "title": "", "text": "relationship between the protected activity and Risco’s termination is sufficiently proximate to support an inference of causation. Gorman-Bakos, 252 F.3d at 554. Cf. Ponticelli v. Zurich Am. Ins. Grp., 16 F.Supp.2d 414, 436 (S.D.N.Y.1998) (finding two-and-a-half month lapse between complaint and adverse action insufficiently proximate to establish a retaliatory nexus). Plaintiffs reliance on temporal proximity is unavailing, however, because Risco has alleged, and it is not disputed, that Byrd and Bilello gained the approval for her termination, in late April or early May 2009. (Pl.’s Aff. ¶29; FFC Tr. 860:6-8, 964:20-965:3.) The evidence submitted by Risco demonstrates that, at the very latest, Byrd had taken steps to discharge Risco as a probationary employee by May 1, 2009. (PL’s Aff. ¶ 25; Sussman Aff. Ex. 3.) Since Risco has established that her supervisors began the process of terminating her employment before she engaged in protected activity, she cannot rely on temporal proximity to satisfy the causal connection element of a prima facie case of Title VII retaliation. Breeden, 532 U.S. at 272, 121 S.Ct. 1508 (holding transfer one month after employer learned of protected activity “immaterial in light of the fact that [the employer] concededly was contemplating the transfer before it learned of the [protected activity].”) In Breeden, the Supreme Court explained that employers do not need to suspend previously planned employment actions upon learning that an employee has engaged in protected activity, “and them proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id. Risco has offered no other evidence of a retaliatory motive to satisfy the casual connection requirement; therefore, she has not made a prima facie case of Title VII retaliation. “[A] plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link. Instead, [s]he must produce ‘some tangible proof to demonstrate that [her] version of what occurred was not imaginary.’ ” Cobb, 363 F.3d at 108 (quoting Morris v. Lindau, 196 F.3d 102, 111 (2d Cir.1999)) (alterations added). VII. Hostile Work Environment The Supreme Court has “repeatedly made clear that although [Title VII] mentions specific employment" }, { "docid": "8662784", "title": "", "text": "of employment, a demotion evidenced by a decrease in wage or salary, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Williams v. R.H. Donnelley, Inc., 199 F.Supp.2d 172, 178 (S.D.N.Y.2002). Plaintiff has been a Nurse’ Aide since the commencement of her employment at the Health Center. {Id. at 17-18). The positions to which she applied are lateral transfers to other departments. Therefore, this court concludes that plaintiffs claims fails as a matter of law. Accordingly, the court grants defendants’ motion for summary judgment as to plaintiffs failure to promote claim in Count One. 2. Retaliation Claim Next, defendants contend that plaintiffs claim of retaliation fails as a matter of law because plaintiff failed to allege “retaliation” in any of the seven counts in her first amended complaint. (Defs.’ Mem. at 11). Title VII provides in part that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [such employee] has opposed any practice made an unlawful practice by this subchapter.” 42 U.S.C. § 2000e-3(a). “Retaliation claims under Title VII are tested under a three-step burden shifting analysis. First, the plaintiff must make out a prima facie case of retaliation. Second, the defendant then has the burden of articulating a legitimate, non-retaliatory reason for the complained of action. Third, if the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether [the employerj’s reason was merely a pretext for retaliation.” Quinn, 159 F.3d at 768-769 (numerous citations and internal quotation marks omitted). In order for plaintiff to make out a prima facie case of retaliation, she must demonstrate: that she participated in a protected activity; that the adverse employment action disadvantaged her; and that there is a causal connection between the protected activity and the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff alleges that she was retaliated against after she complained to management about the treatment of two minority patients. (Pl.’s Tr." }, { "docid": "22901153", "title": "", "text": "not have taken the adverse action ‘but for’ the protected expression.” McKenzie, 92 F.3d at 483. Gleason fails to establish the first element of a prima facie case of retaliation (engaging in “protected expression”) because she never reported her allegations of sexual harassment during her term of employment with the defendant-appellee. In order to demonstrate a ease of retaliatory discharge, a plaintiff must show that she opposed conduct prohibited by Title VII, or at a minimum that she had a “reasonable belief’ she was challenging such conduct. Dey, 28 F.3d at 1458. Gleason and others did complain about Novak’s management style, in general terms. However, Gleason concedes that she did not raise the subject of sexual harassment to anyone in authority (including Novak and McGowan), and she admits that she neglected to follow the company’s procedures for reporting sexual harassment. Gleason claims in her deposition testimony that she “feels” that Novak’s objectionable behavior “encompassed ... sexual discrimination,” but unless she made these “feelings” known to her employer, they are irrelevant. Based on this record, we hold that Gleason did not engage in statutorily-protected expression or activity prior to her termination and has thus failed to establish the “protected expression” element of retaliatory discharge. Even if we were to assume that Gleason’s generalized complaints about Novak could be construed as “protected expression,” Gleason has failed to introduce evidence establishing the third required element of a prima facie case of retaliation: a “causal link” between her alleged “protected expression” and Mesirow’s decision to terminate her employment. Nor is there any basis in the record for inferring that Gleason’s termination was in any way linked to her previous complaints about Novak. In fact, there is evidence supporting a contrary inference, for Mesirow did not discharge any of the other employees who complained about Novak, not even Cassandra Armstrong, who acted as spokesperson for the complaining employees at one of their meetings. Gleason alone was terminated from her employment, not because she complained about Novak but because her failure to follow procedure and her repeated mistakes were costing the company so much money. We" }, { "docid": "20482462", "title": "", "text": "carry her burden of persuasion even under the more lenient mixed-motive analysis, and thus would certainly not satisfy the more demanding \"but-for” standard. Id. . The plaintiff contends that Dr. Reinhard was also part of the decisionmaking process with respect to the 2008 decision (Pl.’s Letter to the Court dated July 26, 2013, at 3), but there is no evidence in the record to support this contention. . The plaintiff does not explicitly allege that she was subjected to a hostile work environment on the basis of disability in violation of the ADA. However, for reasons explained below, the Court will assume that the plaintiff's claims include a claim of hostile work environment on the basis of disability. . The plaintiff does not explicitly allege that she was retaliated against in violation of the ADA. However, because the plaintiff’s protected activity involved filing a complaint that alleged both racial discrimination and disability discrimination, (Quesnel Aff. Ex. B), the Court will assume that the plaintiff's claims include a claim of retaliation in violation of the ADA. . The anti-retaliation provision of Title VII, the ADA, and state law are broader than workplace-related or employment-related retaliatory acts and harm, and extend to a challenged action that is “materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal citation and quotation marks omitted) (Title VII); Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (Title VII, § 1981, § 1983, and NYSHRL); Ragusa v. Malverne Union Free Sch. Dist., 381 Fed.Appx. 85, 90 (2d Cir.2010) (summary order). While the plaintiff alleges additional actions against her, such as the imposition of certain additional responsibilities requiring her to coordinate certain examinations, and the failure by her co-worker to visit her while she was on a leave of absence, (Pl.’s Mem. in Opp. to Defs.’ Mot. Summ. J. at 21-23), no reasonable juror could find that these actions were materially adverse to" }, { "docid": "21957886", "title": "", "text": "are not part of [her] protected class,” nor has she shown that the adverse employment actions enumerated in her complaint could not have been “attributable to [a] common, legitimate reason[ ] ... such as performance below the employer’s expectations.” George 407 F.3d at 415 (citations omitted). To the contrary, the plaintiff admits that she did not believe the harassing behavior complained of in her May 22, 2002 memorandum — from which her further claims of discrimination and retaliation all ultimately flow — was motivated by racial animus. Pl.’s Dep. at 57; Defs.’ Mot. ¶ 19; Pl.’s Opp. at 8 ¶ 19. Thus, upon considering all of the exhibits, depositions, affidavits, and pleadings in this case, the Court cannot conclude that the plaintiff has established a prima facie case of intentional discrimination based on race, nor has the plaintiff shown “that a reasonable jury could conclude from all the evidence that the adverse employment decision[s were] made for a discriminatory reason.” Lathram, 336 F.3d at 1088. In short, the plaintiff has “failed to make a sufficient showing on an essential element” of her racial discrimination claims under the DCHRA and Section 1981, and the defendants are entitled to summary judgment on those claims. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. B. The plaintiffs claims of retaliation The plaintiff has also failed to demonstrate that she “has been subjected to a pattern of retaliatory acts” because of activity protected under the DCHRA or Section 1981. Pl.’s Opp. at 2. To make out a prima facie claim of retaliation under either statute, the plaintiff “must establish (1) that she engaged in statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two.” Fox, 424 F.Supp.2d at 9-10 (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985)) (internal quotation marks omitted) (DCHRA); see also Carter, 387 F.3d at 878 (Section 1981). Even assuming arguendo that the plaintiff has satisfied the second and third prongs of this test, the Court agrees with the defendants that the plaintiffs allegations of retaliation are not based" }, { "docid": "23103106", "title": "", "text": "raised in [his] deposition.” Id. at 550 (quotation omitted). The employer fired him, in part, because of his continuous “dissatisfaction with [his] compensation.” Id. (quotation omitted). The plaintiff then amended his complaint to allege retaliatory discharge. We held that there was sufficient evidence that directly reflected the retaliatory motive. Specifically, we noted that the suspension letter admitted on its face that the employer considered the subject matter of the plaintiffs deposition, which included testimony about his race discrimination claim. Id. We also noted that the termination letter explicitly referred to the plaintiffs dissatisfaction with his compensation, which formed the primary basis for the discrimination claim. Id. This evidence “may be viewed as directly reflecting the alleged [retaliatory] attitude.” Thomas, 111 F.3d at 1512 (quotation omitted) (alteration in original) (emphasis added). By contrast, the March 6 termination letter does not suggest that the OCC considered anything other than the demands made by Ms. Fye when it terminated her. Rather than “directly reflecting” a retaliatory motive, it reflects the OCC’s concern for an expeditious and cooperative restructuring of the agency. We agree with the District Court that the letter “does not contain verbiage from which a reasonable inference of ... retaliatory animus[ ] may be drawn.” 2. Pretext Theory of Retaliation Ms. Fye can also prove her retaliation claim indirectly, invoking the McDonnell Douglas framework. Under this familiar framework, Ms. Fye must first establish a prima facie case of retaliation by showing “(1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir.2004). If Ms. Fye makes the prima facie showing, the OCC must proffer a legitimate, nondiscriminatory reason for her termination. Id. Ms. Fye then has the burden of demonstrating that the OCC’s asserted reasons for her termination are pretextual. Id. Ms. Fye has presented evidence sufficient to create a prima facie case of retaliation. First, Ms. Fye contends that she complained of Mr. Daxon’s alleged sexual harassment" }, { "docid": "21449197", "title": "", "text": "(D.Mass.1995). If the claim is brought pursuant to Title VII, as opposed to M.G.L. ch. 151B, the plaintiff must also demonstrate evidence that discriminatory animus motivated the decision to retaliate. Miner, 989 F.Supp. at 52. Such retaliation may be shown by sufficient evidence that the adverse employment action occurred shortly after the protected activity. Costello, 982 F.Supp. at 66. In the alternative, a plaintiff may show retaliation through evidence that otherwise similarly situated individuals did not suffer the same adverse employment consequences. Id. The court questions whether Plaintiff can even make a prima facie showing of retaliation, it being somewhat unclear in what protected activity she claims to have been engaged! At best, Plaintiff contends that Genesis terminated her in retaliation for her “self-report[ing]” sexual harassment by the Patient: looking up her blouse. This particular “complaint,” which Plaintiff claims is distinguishable from her prior notations of the Patient’s inappropriate behavior, occurred simultaneously with her reporting that she slapped him.. Even were the court to presume that Plaintiff makes a prima facie showing, she has not demonstrated the existence of specific facts that Genesis’ nondiscriminatory justification for her termination—slapping a patient—was a mere pretext for retaliation. Plaintiff does not dispute the fact that she struck the Patient. In fact, Plaintiff stated at the time of the incident and again at deposition that she “hit [Patient]”. Plaintiff also stated to a co-worker, just after she hit the Patient, that “I think I am going to be fired.” Finally, when Plaintiff met with her supervisor, that same day, she said, “I will probably be terminated.” Plaintiff points to no evidence that Genesis’ decision to terminate her for the very reason she predicted was not well within anticipated norms or a pretext for retaliation. It strains credulity to believe, that, since July of 1994, Genesis would have requested that staff members record the Patient’s inappropriate behavior only to terminate Plaintiff fifteen months later for following those directions. Genesis’ employee handbook states that, “negligence and inconsiderate treatment in the case of patients” “may result in ... termination” and “rude, discourteous or uncivil behavior; fighting with" }, { "docid": "6477983", "title": "", "text": "she was removed. Because there is a genuine dispute of material fact as to Banks’s performance in the SES position, summary judgment will be denied for both the USDA and Banks regarding Banks’s claim that she was demoted from the SES because of discrimination. II. RETALIATION Courts analyze retaliation claims under the McDonnell Douglas framework. See Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). To establish a prima face case of retaliation, a plaintiff must show “(1) that [she] engaged in statutorily protected activity; (2) that [she] suffered a materially adverse action by [her] employer;' and (3) that a causal link connects the two.” Id. at 677. The USDA argues that Banks cannot establish a prima facie case of retaliation because she “cannot establish a causal connection between her prior protected activity and the actions taken against her.” Def.’s Mem. at 21. Specifically, the USDA contends that Banks cannot make out a prima facie case that she was removed from the SES, she received the letter of direction and had to work additional hours as a result, and her performance rating in 2005 was lowered in retaliation for her protected EEO conduct. Id. at 21-24. In response, Banks repeats some of her allegations that the USDA retaliated against her, see Pl.’s Mot., PL’s Mem. in Supp. of Her Mot. for Partial Summ. J. & in Opp’n to Def.’s Mot. for Summ. J. (“PL’s Mem.”) at 19-22, and asserts that she did not waive her retaliation claims because she “filed an EEO complaint after her termination was proposed,” PL’s Reply to Def.’s Opp’n to PL’s Mot. for Partial Summ. J. at 5, but she does not address any of the USDA’s arguments challenging her retaliation claims. “A party opposing a summary judgment motion who does not address an argument advanced in the motion is deemed to have conceded the argument.” Hairston v. Boardman, 915 F.Supp.2d 155, 160, Civil Action No. 08-1531(RWR), 2013 WL 165017, at *3 (D.D.C. Jan. 16, 2013). Thus, the USDA’s arguments regarding Banks’s retaliation claims will be treated as conceded, and the USDA’s motion for summary judgment will" }, { "docid": "21449194", "title": "", "text": "to Bergland the inappropriateness of the Patient being allowed to lie naked in his bed. As a matter of law, however, that single incident does not rise to the level of sexual harassment, let alone a complaint about sexual harassment. So, while an employer, including a nursing home, may be liable for the actions of non-employees, including patients, this is not a situation which necessitates such a finding. ■ Everybody who came in contact with the Patient from the day he arrived was aware of his problems. His inappropriate behavior was consistently noted and addressed by Genesis in a professional fashion. There is simply no evidence that Genesis had any knowledge of the alleged effect of the Patient’s behavior on Plaintiff, beyond what would reasonably be expected in a nursing home. Indeed, the first time Plaintiff reported that she believed the Patient’s behavior amounted to sexual harassment was when she filed her complaint with the MCAD, three months after her termination. Without any prior awareness that the misconduct created a hostile work environment for Plaintiff in particular, Genesis had no duty to take any further remedial action. Plaintiff proffers no evidence to the contrary. Accordingly, summary judgment will be allowed on the sexual harassment counts, Counts I and II, against Genesis. 2. With respect to Counts III and IV, Plaintiff’s claims against Genesis for retaliation, the elements of such claims are essentially the same under both Title VII and M.G.L. ch. 151B. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996); Lewis, v. Gillette Co., 22 F.3d 22, 24-25 (1st Cir.1994); MacConnack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1, 7 (1996). To establish aprima facie case of retaliation, a plaintiff must' demonstrate first that she engaged in an activity protected by Title VII or M.G.L. ch. 151B or that she complained of a violation of those statutes. Lewis, 22 F.3d at 24-25. The success of her claim requires only that she reasonably believed the conduct she protested violated those statutes. Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir.1998). Next, a plaintiff must" }, { "docid": "5709103", "title": "", "text": "company. See supra Parts II.D & V.C.l.a.ii. Third, the docking of plaintiffs pay without clear explanation and her termination without warning can each be considered adverse employment actions. See supra Parts II.F-G & V.C.l.aiii. Fourth, a causal temporal connection exists between these adverse actions and Dillon’s complaint. See supra Parts II.F-G & Y.C.l.aiv. Plaintiffs pay was docked on the same day she told Vainer about the sexual harassment; and, on October 10, 2012, nine days after making her complaint, she was terminated. Id. These actions were taken within sufficient proximity of Dillon’s complaint of sexual harassment to be considered causative. Id. Ned Management does not argue that plaintiff fails to satisfy a prima facie showing of retaliation. Instead, it contends that Dillon’s retaliation claim should be dismissed because defendants had a legitimate non-retaliatory reason for terminating her employment: “excessive lateness.” (Defs.’ Mem. of Law in Supp. of Mot. Summ. J. 10, ECF No. 53; Defs.’ Reply Mem. of Law in Supp. of Mot. Summ. J 5-6, ECF No. 60.) They do not, however, address pretext. Dillon satisfies her burden with respect to pretext. See supra Part IV. C.l.b. She demonstrated that there are questions of material fact regarding whether the reasons proffered for the docking of her pay and her ultimate termination were pretextual. See supra Part II.F-G. Putting aside the issue of whether plaintiff should have been paid for Columbus Day, defendants fail to offer any explanation as to why she was not paid for working the day Fridman grabbed her. See supra Part II.F. They fail to present credible evidence that Dillon had been informed before her date of termination that lateness was a problem. See supra Part II.G. Contradicting his boss, Milligan affirmed that Ned Management wrote-up employees for lateness but never did so with respect to Dillon. Id. Viewing the evidence, which primarily consists of contradictory deposition testimony, in the light most favorable to plaintiff, a jury could find in her favor. See supra Part III. To be heeded is the warning of the Court of Appeals for the Second Circuit: There is a need for" }, { "docid": "21957890", "title": "", "text": "resources department”); Pl.’s Opp., Ex. F (May 22, 2002 memorandum in which the plaintiff states that she has “been the target of some very deliberate and cruel harassment devices employed by senior Team Leader, Marcia Betaharon”). This complaint alleges harassment “generally and generically ... [and does] not refer to harassment [or discrimination] based on race or any other protected category recognized by either [the DCHRA] or Section 1981,” Defs.’ Reply at 10; see generally PL’s Opp., Ex. F. Indeed, as already noted, the plaintiff herself admits that, at the time she filed the May 2002 complaint, she did not believe that Betaharon was harassing her because of her race. PL’s Dep. at 57; Defs.’ Mot. ¶ 19; PL’s Opp. at 8 ¶ 19. Furthermore, the plaintiff has not proffered any other evidence which would suggest that she had complained of discrimination based on race, or otherwise engaged in activity protected by the DCHRA or Section 1981 before the allegedly retaliatory actions occurred. Accordingly, because the plain tiff “has not sufficiently demonstrated that she engaged in a protected activity,” the Court concludes that she has failed to establish a prima facie case of retaliation. Logan, 404 F.Supp.2d at 76. It therefore must grant the defendants’ motion for summary judgment on the plaintiffs retaliation claims. C. The plaintiffs religious discrimination claim As well as her racial discrimination and retaliation claims, the plaintiff appears to set forth in her complaint a claim for religious discrimination under the DCHRA, based on her suspension for refusing to take the PPD skin test despite her stated religious objections. Am. Compl. ¶¶ 1-2, 21. Neither party devotes any attention to the plaintiffs religious discrimination allegation in their summary judgment pleadings, and the defendants discuss the plaintiffs refusal to take the PPD test solely in the context of her claim of retaliation. See Defs.’ Mot. at 41^44; Defs.’ Reply at 21-22. Nevertheless, it is undisputed that the plaintiff, before her November 2003 suspension, provided the defendants with letters from the pastor of her church supporting her religious objection to the tuberculin tests. Defs.’ Mot. ¶ 56; see also" }, { "docid": "3478907", "title": "", "text": "recognition software occurred in late 2008, well before Martin filed her discrimination claim in February 2010. See Jackson memo, Pl.’s Ex. 60; Jackson memo, Pl.’s Ex. 59 (discussing request for software); see also Defs.’ Statement of Facts ¶41. Martin does not allege a factual basis for concluding that, after the filing of her discrimination claim, ABRA’s ongoing failure to provide the requested software became retaliatory. Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (\"[Proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”). Both parties read the amended complaint’s Title VII and DCHRA retaliation claims as alleging retaliation not only for Martin’s discrimination complaints, but also for her participation in the DCOIG special evaluation. See Defs.’ Statement of Facts ¶¶ 7-9 (setting forth facts of DCOIG investigation as \"related to” Martin’s retaliation claims); Am. Pl.’s Mem. Supp. Pl.’s Resp. Opp’n 16 (claiming that DCOIG investigation participation was among Martin's \"protected activities”); Reply Supp. Defs.' Mot. Dismiss & Summ. J. 6 (discussing DCOIG investigation as \"protected activity”). But the amended complaint nowhere mentions the DCOIG investigation in ■connection with either the Title VII or DCHRA retaliation claims, see Am. Compl. ¶¶ 127-38, and “a party may not amend its complaint or broaden its claims through summary judgment briefing,” Barrie„ 741 F.Supp.2d at 263. Even if Martin could amend Counts Three and Four, her claims would still fail because the DCOIG investigation concerned alleged official corruption, and there is no evidence that Martin opposed practices prohibited by Title VII or the DCHRA during that investigation. See 42 U.S.C. § 2000e-3(a); Baloch, 550 F.3d at 1198 (\"To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.\" (emphasis added)). .Defendants further submit that Martin cannot assert her DCHRA retaliation claim in this Court, on the grounds that she elected to proceed before the DCOHR. Mem. Supp. Mot. Dismiss & Summ. J. 12-13. The DCHRA differs procedurally" }, { "docid": "5709102", "title": "", "text": "II.D et seq. Mrs. Vainer docked Dillon’s pay and, within days of Dillon’s verbal complaint about her treatment at the hands of Fridman, she was fired. Id. Failing to conduct an adequate investigation of Dillon’s sexual harassment complaint, effectively ignoring her and suspiciously docking her pay for the day she was grabbed by Fridman, if proved at trial, would support Dillon’s sex discrimination claim against the Vainers and Milli-gan. Id. Individual defendants’ motion for summary judgment regarding the aiding and abetting hostile work environment claims under NYCHRL is denied. B. Retaliation 1. Title VII Claim against Defendant Ned Management Plaintiff has established a prima facie showing of retaliation and sufficiently alleged pretext against Ned Management. See supra Part IV.C.l. First, plaintiff engaged in protected activity when she complained to defendants Milli-gan and Mr. Vainer about Fridman’s behavior. See supra Parts II.D & V.C.l.a.i. Second, her employer, Ned Management, was aware of Dillon’s engagement in protected activity because she manifested her opposition to Fridman’s sexual harassment by verbal complaint to Mr. Vainer, the owner of the company. See supra Parts II.D & V.C.l.a.ii. Third, the docking of plaintiffs pay without clear explanation and her termination without warning can each be considered adverse employment actions. See supra Parts II.F-G & V.C.l.aiii. Fourth, a causal temporal connection exists between these adverse actions and Dillon’s complaint. See supra Parts II.F-G & Y.C.l.aiv. Plaintiffs pay was docked on the same day she told Vainer about the sexual harassment; and, on October 10, 2012, nine days after making her complaint, she was terminated. Id. These actions were taken within sufficient proximity of Dillon’s complaint of sexual harassment to be considered causative. Id. Ned Management does not argue that plaintiff fails to satisfy a prima facie showing of retaliation. Instead, it contends that Dillon’s retaliation claim should be dismissed because defendants had a legitimate non-retaliatory reason for terminating her employment: “excessive lateness.” (Defs.’ Mem. of Law in Supp. of Mot. Summ. J. 10, ECF No. 53; Defs.’ Reply Mem. of Law in Supp. of Mot. Summ. J 5-6, ECF No. 60.) They do not, however, address pretext." }, { "docid": "21032489", "title": "", "text": "led a reasonable person to believe that she would be discharged, especially in light of the suggestion contained in the suspension notice that French use the six-day period to review medication administration in preparation for her return. Cf. id. (finding that three-day suspension did not imply employer’s desire to discharge employee). Even more damaging to French’s constructive discharge claim is her request to return to work at Eagle on a part-time or on-call basis after her suspension and subsequent termination. (See French Dep. Ex. 4, at 19; Pl.’s Mem. Opp’n Defs.’ Mots. Summ. J. at 11.) It strains credulity that French would wish to return voluntarily to a work environment that was so intolerable that she was compelled to resign. The only logical conclusion that the Court can draw from French’s wish to return to Eagle is that the working conditions there were in fact not intolerable. Because French has failed to set forth facts sufficient to support her allegation of constructive discharge, she has failed to establish a prima facie case of gender discrimination under Title VII and the MHRA. Therefore, all Defendants are entitled to summary judgment with respect to all claims contained in Count II of the Complaint. III. Aiding and Abetting and Retaliation (Count III) A. Retaliation In Count III of her Complaint, French alleges that all Defendants retaliated against her for reporting or bringing claims of unequal pay, sex discrimination, harassment, disparate treatment, and retaliation, in violation of Title VII and the MHRA. {See Compl. ¶¶ 62-64.) Both Title VII and the MHRA prohibit discrimination against an employee for opposing any practice made unlawful under each statute. See 42 U.S.C. § 2000e-3(a); Minn.Stat. § 363.03, subd. 7(1). In other words, an employer may not retaliate against an employee for complaining about or bringing charges of sex discrimination. To establish a prima facie ease of unlawful retaliation under Title VII, a plaintiff must show that (1) she participated in a statutorily protected activity; (2) an adverse employment action was taken against her; and (3) a causal connection existed between the protected activity and the adverse employment" }, { "docid": "3478908", "title": "", "text": "6 (discussing DCOIG investigation as \"protected activity”). But the amended complaint nowhere mentions the DCOIG investigation in ■connection with either the Title VII or DCHRA retaliation claims, see Am. Compl. ¶¶ 127-38, and “a party may not amend its complaint or broaden its claims through summary judgment briefing,” Barrie„ 741 F.Supp.2d at 263. Even if Martin could amend Counts Three and Four, her claims would still fail because the DCOIG investigation concerned alleged official corruption, and there is no evidence that Martin opposed practices prohibited by Title VII or the DCHRA during that investigation. See 42 U.S.C. § 2000e-3(a); Baloch, 550 F.3d at 1198 (\"To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.\" (emphasis added)). .Defendants further submit that Martin cannot assert her DCHRA retaliation claim in this Court, on the grounds that she elected to proceed before the DCOHR. Mem. Supp. Mot. Dismiss & Summ. J. 12-13. The DCHRA differs procedurally from Title VII in that the Act presents the complainant with a \"mutually exclusive” choice between judicial and administrative forums. See Anderson v. U.S. Safe Deposit Co., 552 A.2d 859, 860 (D.C.1989). If a complainant has filed a complaint with the DCOHR, she cannot then sue in court, unless she first withdraws the complaint or unless the Office dismisses it \"on the grounds of administrative convenience.” D.C.Code § 2-1403.16(a). To be timely, a withdrawal must occur before the DCOHR completes its investigation and issues a decision on whether there is probable cause to believe that the employer behaved unlawfully. See id. § 2-1403.04(b); see also Anderson, 552 A.2d at 860-62; accord Adams v. District of Columbia, 793 F.Supp.2d 392, 397 (D.D.C.2011). Here, in March 2012, Martin filed a second retaliation complaint with the DCOHR alleging that she suffered isolation and demotion to an NTE (\"not to exceed”) employee. See Charge, Defs.’ Ex. G. The DCOHR ultimately rendered a no-cause finding in May 2014. See DCOHR letter, Defs.’ Ex. H. It thus appears that Martin’s 2012" } ]

[ { "docid": "22612752", "title": "", "text": "suppress. III. The issues raised in King’s appeal do not merit extended discussion. King first argues that the district court improperly questioned witnesses, thereby denying him a fair trial. We disagree. While the district court must maintain “ ‘a general atmosphere of impartiality’ ” during the course of a trial, it nevertheless may interrogate witnesses as necessary to ensure the proper development of the facts. United States v. Castner, 50 F.3d 1267, 1272 (4th Cir.1995) (quoting United States v. Cassiagnol, 420 F.2d 868, 878 (4th Cir.1970)). Here, King challenges attempts by the district court to clarify the testimony of two witnesses, asserting that these “clarifications” actually aided the Gov ernment’s case. Having reviewed the two colloquies in question, we conclude that the district court did not abuse its discretion. See id. Next, King maintains that his trial counsel was constitutionally ineffective for failing to move to dismiss the indictment based upon a violation of his right to a speedy trial and for failing to file timely objections to the presentence report. However, it is well settled that “a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.” United States v. Williams, 977 F.2d 866, 871 (4th Cir.1992). Because the record does not conclusively show that King’s trial counsel was ineffective, we reject this claim. IV. We hold that North Carolina law permitting, under certain circumstances, the possession of a firearm by a convicted felon whose civil rights have not been restored does not preclude federal prosecution for the same conduct. Additionally, we determine that law enforcement personnel possessed a reasonable and articulable suspicion that Hendricks’ vehicle contained contraband and that the district court did not err in denying his motion to suppress. And, with the exception of one § 924(c)(1) conviction as to which the Government properly has confessed error, we conclude that the evidence is sufficient to support Hendricks’ convictions. Because we conclude that King’s challenge to the questioning of witnesses by the trial judge is without merit" } ]

[ { "docid": "22675889", "title": "", "text": "the relevant factors, we find that the remarks did not affect Baptiste’s substantial rights. Accordingly, because we find that the remarks were not plainly inappropriate and did not, in any event, affect Baptiste’s substantial rights, we hold that the district court did not plainly err in allowing the prosecutor’s closing argument. III. For the reasons stated above, we reject Baptiste’s allegations of trial mismanagement on the part of the district court, and his conviction is therefore AFFIRMED. . Although represented by counsel on appeal, Baptiste filed a pro se supplemental brief al- leging ineffective assistance of counsel at trial. Claims of ineffective assistance of counsel may be raised on direct appeal only where the record conclusively establishes ineffective assistance. See United States v. King, 119 F.3d 290, 295 (4th Cir.1997). Otherwise, the proper avenue for such claims is a 28 U.S.C. § 2255 motion filed with the district court. See Massaro v. United States, 538 U.S. 500, 504-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (recognizing that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance” because the trial record is “often incomplete or inadequate for [addressing such claims on direct review,]” thereby risking the failure of \"[e]ven meritorious claims”); see also United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Baptiste alleges, among other things, that trial counsel failed to effectively represent him due to a conflict of interest resulting from counsel's prior representation in an unrelated matter of one of Baptiste’s co-defendants, who pleaded guilty before trial. Our review of the record shows that it does not conclusively establish any of the alleged grounds for Baptiste's ineffective assistance claim. Therefore, because the claim is not properly before us, we do not address it as part of this appeal. . We find unavailing Baptiste's position that, although he failed to meet his burden of establishing the Remmer presumption, the court should nonetheless have sua sponte held voir dire. Baptiste cites no case law suggesting that the district court has such a duty. As we have made" }, { "docid": "13788164", "title": "", "text": "briefed; she asked the court to accept his brief. Eagle thereafter filed a pro se brief; it contained the ineffective assistance issues he had discussed with counsel. His brief also contained the Bat-son issue his trial attorney had raised before the jury was empaneled. The supreme court refused to entertain the supplemental brief, concluding that Eagle had no right to simultaneous self-representation and representation by counsel. Eagle v. State, 264 Ga. 1, 440 S.E.2d 2 (1994). The court then rejected the arguments the public defender had presented and affirmed Eagle’s conviction. Id. Given the supreme court’s adverse decision, Eagle turned to the Superior Court of Lowndes County, Georgia for relief from his conviction, filing a pro se petition for a writ of habeas corpus. C. 1. Eagle’s petition alleged that he had been denied the effective assistance of counsel by both his trial and appellate attorneys. His trial attorney was ineffective for the reasons stated in his pro se brief to the supreme court, and his appellate attorney was ineffective in failing to include his Batson and ineffective assistance of trial counsel claims in her brief to the supreme court. The superior court held an evidentiary hearing on Eagle’s petition. Eagle’s trial and appellate attorneys were the only witnesses; both were called by the State and cross-examined by Eagle, who was representing himself. After receiving this testimony and argument from the parties, the court entered an order denying relief. Addressing Eagle’s ineffective assistance of trial counsel claim, the court then concluded that all ten bases of the claim were procedurally defaulted since, in his direct appeal to the Georgia Supreme Court, Eagle failed to present them in his brief (filed by the public defender) as required by Georgia law. The court considered whether Eagle had cause for the procedural default (and resulting prejudice), and found none. The court based its finding on the testimony appellate counsel had given at the evidentiary hearing. She testified that she raised the claims on direct appeal that she deemed most meritorious. This testimony, in the court’s view, showed that she had made an informed" }, { "docid": "22655603", "title": "", "text": "that there was no merit to the appeal. The court denied the indigent’s request for appointment of another attorney, after which the indigent filed his own brief pro se. The state responded and the indigent filed a reply brief. The conviction was affirmed. About 6 years later, the court denied the indigent’s application for writ of habeas corpus, stating that the earlier appeal had been without merit. The Su preme Court of California later denied without opinion the indigent’s petition for habeas corpus. On certiorari, the Supreme Court of the United States reversed and held that the constitutional right to counsel requires that on an indigent’s first appeal from his conviction, court-appointed counsel support the appeal to the best of his ability, requesting permission to withdraw only if he finds the case to be wholly frivolous, in which event he must file a brief referring to anything in the record that might arguably support the appeal. A “no merit” letter does not satisfy this requirement. Rather the court stated that Counsel['s] ... role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. Anders’s focus therefore is on defense counsel’s duty when he finds no arguable issue to present on appeal. More than thirty years ago, we directed counsel filing Anders briefs that “Anders requires counsel to isolate possibly important issues and to furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976). As we recognized in another Anders case issued this same day, United States v. Garland, No. 09-50317, 632 F.3d 877, 2011 WL 311024 (5th Cir.2011), The Fifth Circuit’s website provides a detailed checklist and outline for" }, { "docid": "22768935", "title": "", "text": "of his right to appeal; and (6) that the trial court exceeded its jurisdiction. The district court did not conduct an evidentiary hearing and, basing its findings on the state court record, denied the petition. On appeal from the denial of his habeas petition, Lof-ton argues only that the , evidence of the photo array should have been excluded as the fruit of an illegal seizure, and also that he was denied effective assistance of counsel on appeal. II An accused is constitutionally entitled to effective assistance of counsel on direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Lofton contends that he was constructively denied assistance of counsel on appeal because his attorney filed a brief which did not assert any arguable error, and therefore prejudice should be presumed. The Supreme Court clarified the two types of claims involving the denial of effective assistance of appellate counsel in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 352-54, 102 L.Ed.2d 300 (1988). First, if there was an actual or constructive denial of counsel on appeal, then prejudice is presumed. Second, if the claim is that counsel’s performance was merely ineffective, then the petitioner must show prejudice. The district court considered this to be a case of the second type, to be assessed under Strickland’s prejudice standard. This was error. Penson reaffirmed Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein the court ree-ognized that in some circumstances counsel could withdraw without denying fair representation, provided some safeguards were observed. While counsel here technically did not withdraw, he may as well have, for he presented no claims of error to the appellate court. Anders requires counsel who believes appeal would be frivolous [first] to conduct “a conscientious examination of the case.” [Anders ], at 744 [87 S.Ct. at 1400] ... If he or she is then of the opinion that the case is wholly frivolous, counsel may request leave to withdraw. The request “must, however, be accompanied by a brief referring to anything in the record" }, { "docid": "22611248", "title": "", "text": "appeal would be frivolous, filed with the California Court of Appeal a brief that complied with the Wende procedure. Robbins also availed himself of his right under Wende to file a pro se supplemental brief, filing a brief in which he contended that there was insufficient evidence to support his conviction and that the prosecutor violated Brady v. Maryland, 373 U. S. 83 (1963), by failing to disclose exculpatory evidence. The California Court of Appeal, agreeing with counsel's assessment of the case, affirmed. The court explained that it had “examined the entire record” and had, as a result, concluded both that counsel had fully complied with his responsibilities under Wende and that “no arguable issues exist.” App. 39. The court added that the two issues that Robbins raised in his supplemental brief had no support in the record. Ibid. The California Supreme Court denied Robbins’ petition for review. After exhausting state postconviction remedies, Robbins filed in the United States District Court for the Central District of California the instant petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254. Robbins renewed his Brady claim, argued that the state trial court had erred by not allowing him to withdraw his waiver of his right to trial counsel, and added nine other claims of trial error. In addition, and most importantly for present purposes, he claimed that he had been denied effective assistance of appellate counsel because his appellate counsel’s Wende brief failed to comply with Anders v. California, 386 U. S., at 744. Anders set forth a procedure for an appellate counsel to follow in seeking permission to withdraw from the representation when he concludes that an appeal would be frivolous; that procedure includes the requirement that counsel file a brief “referring to anything in the record that might arguably support the appeal,” ibid. The District Court agreed with Robbins’ last claim, concluding that there were at least two issues that, pursuant to Anders, counsel should have raised in his brief (in a Wende brief, as noted above, counsel is not required to raise issues): first, whether" }, { "docid": "1434454", "title": "", "text": "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. When such briefs are filed nonetheless, the Clerk will refer them to the putative pro se litigant’s counsel. At that point, counsel may (1) include the client’s pro se arguments in their own briefs or (2) in the appropriate and unusual case, seek leave to file a separate, supplemental brief drafted by counsel that advances arguments raised by the client. Of course, such briefs should make only those arguments counsel believe, consistent with their ethical duty, to be meritorious. V For the reasons stated, we will affirm Turner’s conviction. . The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. Our jurisdiction lies under 28 U.S.C. § 1291. . Because we agree with counsel that these issues are frivolous, we do not address them here. . We caution that a motion to discharge appellate counsel after counsel has filed a brief is likely to be denied. See Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (no right to self-representation on appeal). ." }, { "docid": "10071659", "title": "", "text": "the Illinois Appellate Court affirmed the conviction and sentence. Tate did not timely seek leave to appeal to the Illinois Supreme Court. Instead, more than three years later, on November 29, 1999, he moved to file a late petition for leave to appeal. On February 1, 2000, that motion was denied. During the meantime, Tate was pursuing other avenues of relief. On May 4, 1995, while his direct appeal was still pending before the Illinois Appellate Court, Tate filed a pro se petition for post-conviction relief in the Circuit Court. In that petition, Tate raised issues concerning (a) trial counsel’s alleged inefféctive assistance in failing to present three witnesses who would have testified that Sellers admitted he was the one who actually shot the victim; (b) prosecutorial misconduct related to Sellers’ testimony; and (c) failure of the court to disqualify a juror who lived near the shooting and did not want to participate in the case and related ineffective assistance of appellate counsel. An affidavit from Sellers was attached to the petition. On July 12, 1995, the trial court summarily dismissed the post-conviction petition on the grounds that it was without merit and frivolous. Tate was represented by the Public Defender on appeal, but the Public Defender moved to withdraw on the ground that there were no appealable issues. See generally Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Wilkinson v. Cowan, 231 F.3d 347 (7th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 2549, 150 L.Ed.2d 716 (2001). In a two-page brief containing no elaboration, cf. Wilkinson, 231 F.3d at 349, the Public Defender moved to withdraw on the ground that “[t]he petition fails to allege any facts that give rise to a claim of constitutional deprivation. Mere conclusory allegations, unsupported by affidavits, are insufficient to warrant further proceedings.” On May 7, 1996, stating that it had carefully reviewed the record and briefs, the Illinois Appellate Court granted the motion to withdraw and affirmed the dismissal of the petition. The Appellate" }, { "docid": "13266108", "title": "", "text": "PER CURIAM. Petitioner Shabazz, with two other individuals, was charged and convicted of transporting in interstate commerce a false and forged security and a counterfeiting device in violation of 18 U.S.C. §§ 2 and 2314. The conviction was affirmed on direct appeal. United States v. Brown, 605 F.2d 389 (8th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979). Petitioner then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied the motion. We affirm. ISSUES The issues before us on appeal are numerous: 1) Shabazz was deprived of effective assistance of counsel (this issue contained five specific allegations); 2) the district court erred in refusing to examine the minutes and transcripts of testimony before the grand jury; 3) count IV of the indictment omitted an essential element of the offense charged; 4) insufficient evidence to support a conviction on count III; 5) the trial court should have disqualified itself from consideration of the section 2255 petition; 6) pro se issues. Analysis I. Effective Assistance of Counsel Petitioner first contends generally that he was denied effective assistance of counsel and then specifically argues five separate claims. The general issue and each specific claim were previously raised and decided on direct appeal. See United States v. Brown, supra, 605 F.2d at 397. It is well settled that claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255. Anderson v. United States, 619 F.2d 772, 773 (8th Cir. 1980). We hold that review is precluded even though the issues were raised on direct appeal in a pro se brief. II. Examination of Grand Jury Minutes and Testimony Petitioner’s second contention is that the district court erred in its refusal to examine the minutes and the transcripts of testimony before the grand jury. We disagree. The release and use of grand jury material is a matter which is left to the sound discretion of the trial court and may be overturned only upon a finding of abuse of discretion." }, { "docid": "14596463", "title": "", "text": "matter of law that the Petitioner is not entitled to relief under the Free Speech Coalition decision, the argument that his appellate counsel was ineffective for not raising the issue must be denied. See Quesinberry v. Taylor, 162 F.3d 273, 278-79 (4th Cir.1998) (“To establish prejudice a petitioner must show ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ If there is no prejudice, a court need not review the reasonableness of counsel’s performance.”) (quoting Strickland v. Washington, 466 U.S. 668, 694, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that there can be no ineffective assistance of counsel in failing to raise an issue which is not legally viable); United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir.1999) (same). Moreover, it appears that the Free Speech Coalition matter was presented to and rejected by the Fourth Circuit during the pendency of the direct appeal. The Petitioner’s father testified that he sent the Fourth Circuit a legal memorandum prepared by his son regarding the Free Speech Coalition decision. The Fourth Circuit acknowledged the memorandum in its order affirming the conviction: “We note that Padgett has filed a motion for leave to file a pro se supplemental brief. Although we grant this motion, we find no merit to the claims raised therein.” United States v. Padgett, 50 Fed.Appx. 125, 126 (4th Cir. Nov.8, 2002). Though the Court prefers to address the merits of the issue in deciding a petition for habeas corpus (and has done so), the issue was raised before Fourth Circuit, which at least gave cursory review to this very issue but was unpersuaded. Thus, even though the matter was not presented by counsel, the fact that the argument was considered further indicates that there was no prejudice as a result of this failure. Ineffective Assistance ofTñal Cownsel Finally, the Petitioner alleges a number of ineffective assistance claims against his trial counsel, Michael Wyman. Wyman had represented the Petitioner in a prior state court" }, { "docid": "15480842", "title": "", "text": "on Count I, the drug conspiracy count. We find no plain error in the admission of Hollenback’s drug use during the conspiracy. V. Sufficiency of the Evidence Supporting Hollenback’s Conviction for Impeding the IRS Finally, Hollenback asserts that his counsel on direct appeal did not give effective assistance in challenging his conviction for impeding the IRS in computing or collecting taxes under 18 U.S.C. § 371. In alleging that there was no evidence that he knew that the transactions had unlawful tax objectives, Hollenback merely reiterates the argument that was made on direct appeal and rejected by this court. Brown, 944 F.2d at 1387-88. This court noted in Brown that Hollenback lied to an IRS agent about his involvement in or knowledge of any investments involving Brown or any financial transactions concerning Cutkomp. Furthermore, Hollenback persisted in his denials even after the agent confronted him with documents clearly indicating his involvement. The petitioner now presents a lengthier discussion where his counsel on direct appeal simply incorporated earlier arguments in his brief in his final section discussing the sufficiency of the evidence supporting the Klein conspiracy conviction. CONCLUSION The district court’s judgment is Affirmed. . Defense counsel also alleges that the government \"capitalized\" on defense counsel’s erroneous reference to subsection (A)(i) when it responded to the appellant’s references to (A)(i) without bringing the error to this court’s attention. The government attributes its mistake to oversight by the Assistant United States Attorney who prepared the appellee’s brief and argued the appeal. Hollenback claims that he was bereft of counsel in the same manner and degree as the petitioner in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). On direct appeal of his conviction, Penson’s attorney filed an Anders brief and was allowed to withdraw prior to the appellate court’s examination of the record. The appellate court examined the record, and reviewed the merits of Penson’s conviction without appointing new counsel. Because Pen-son was denied counsel on appeal, the Supreme Court held that prejudice should be presumed and that it was inappropriate to apply either the Strickland prejudice" }, { "docid": "22070872", "title": "", "text": "that arguT ments not raised in the appellant’s opening brief are typically deemed abandoned on appeal. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir.1999). . We have examined the entire record in this case in accordance with the requirements of Anders and find no meritorious issues for appeal. This court requires that counsel inform the client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy théreof was served on the client. . When the elements of an offense indicate that it can be committed in two alternative ways, one that requires a finding that physical force was used, attempted, or threatened and the other that does not, the court may look beyond the fact of conviction and the elements of the offense to the charging papers (e.g., the indictment) and jury instructions to decide whether the crime the defendant was convicted of fits within the definition of \"violent felony.” See United States v. Coleman, 158 F.3d 199 (4th Cir.1998) (determining that the defendant’s prior conviction was a \"violent felony” because he pled guilty to the type of assault that necessarily involved the use, attempted use, or threatened use of physical force as an element). . We find the potential for injury in this crime analogous to the potential for injury presented in the crimes of escape, see United States v. Hairston, 71 F.3d 115 (4th Cir.1995), and pickpocketing, see United States v. Mobley, 40 F.3d 688 (4th Cir.1994)." }, { "docid": "3668037", "title": "", "text": "The court ruled, contrary to the argument of the United States, that the crimes were specific-intent crimes and Stoufflet’s advice-of-counsel defense was relevant. Stoufflet then attempted to withdraw his guilty plea. Stoufflet’s newly appointed counsel contended in the motion to withdraw that Stoufflet pleaded guilty “under extreme pressure” because his former counsel advised that it was “highly probable” that the district court would grant the motion in limine filed by the United States for the trial of the 2006 charges. He stated that he was “numb” at the plea hearing and that his attorneys forced him into the plea agreement. The district court conducted a hearing on Stoufflet’s motion to withdraw his guilty plea, and Stoufflet and his former counsel testified. The district court denied the motion to withdraw and later sentenced Stoufflet to 70 months of imprisonment and 3 years of supervised release. Stoufflet filed a direct appeal, and the district court appointed appellate counsel. The appointed appellate counsel moved to withdraw her representation. See Anders, 386 U.S. 738, 87 S.Ct. 1396. In her Anders brief, counsel concluded that Stoufflet’s potential arguments on appeal were frivolous. Stoufflet filed a response to the Anders brief, in which he argued that his plea was invalid because he was unaware of all the elements of the crimes for which he was charged. He explained that he did not understand that conspiracy was a specific-intent crime until the district court denied the motion in limine in the other criminal proceeding. We granted the appointed counsel’s motion to withdraw, and we affirmed Stoufflet’s judgment of conviction and sentence. United States v. Stoufflet, 424 Fed.Appx. 881 (11th Cir.2011). We stated, in part, “Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, Stoufflet’s motion for the appointment of new counsel is DENIED, and Stoufflet’s conviction and sentence are AFFIRMED.” Id. at 881. Stoufflet next filed a pro se motion to vacate his sentence. 28 U.S.C. § 2255. He stated that he was “obliged to plead guilty” and that the “Court accepted [his] plea without informing him" }, { "docid": "11011262", "title": "", "text": "failed to present the statutory directive that Steward be given an opportunity to withdraw the plea. On appeal of the trial court’s denial of Steward’s motion, his attorney filed an Anders brief suggesting the absence of meritorious issues for appeal. Pursuant to Anders, of course, counsel is required to brief “anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The briefing must presumably be done from an advocacy perspective “where counsel acts in the role of an active advocate in behalf of [her] client, as opposed to that of amicus curiae.” Id. The filing of an Anders brief that fails to point out meritorious issues can, in principle, constitute ineffective assistance. See, e.g., Robinson v. Black, 812 F.2d 1084 (8th Cir.1987), cert. denied 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). The neglected claim need not be one of federal law. In fact, failure to raise a state law issue can, if such a failure falls outside the range of competent assistance, form a basis for an ineffective assistance claim under the federal constitution. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Under the circumstances presented here, it certainly can be argued that Jackson’s failure either to seriously argue this issue in the initial hearing on the motion to vacate the guilty plea or to raise this issue on appeal constituted ineffective assistance of counsel. The Illinois courts have strictly enforced the notice requirement of the extended term statute. Steward, therefore, has a credible argument that he was prejudiced by his counsel’s failure to press this issue. However, the state courts have never had the opportunity to consider the ineffectiveness claim in this form. Steward did not raise it in his pro se post-conviction petition, his appointed post-conviction counsel did little to supplement his pro se petition and his appointed appellate counsel for the post-conviction proceeding withdrew from the case, apparently without consulting Steward. Thus, while this claim may have arguable merit, it was not properly before the district court and" }, { "docid": "6072410", "title": "", "text": "The state trial judge summarily dismissed the petition as frivolous and legally insufficient. Brown appealed the dismissal of the petition, and the Illinois Court of Appeals appointed the Cook County public defender to represent Brown. Shortly after the appointment, Brown’s public defender filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), on the ground that Brown’s pro se petition failed to allege facts sufficient to give rise “to a deprivation of constitutional rights.” The motion to withdraw was granted, and his representation was transferred to and assumed by attorneys from the Northwestern University Legal Clinic. At this point, Brown’s fortunes began to improve. New counsel immediately moved the appellate court for leave to amend the pro se petition and to supplement the trial record with Brown’s Menard mental health records (mental history referred to above) as well as the records from the Social Security Administration. The Illinois Court of Appeals denied the motion to supplement the record and amend the petition, affirming the dismissal of Brown’s pro se petition for post-conviction relief. At the same time, however, the state appellate court noted, in light of the medical evidence submitted on Brown’s behalf in counsel’s motion to amend the petition for post-conviction relief, that fundamental fairness would require that Brown be given the opportunity to file a second post-conviction petition at the trial court level. Brown followed the direction of the Illinois Appellate Court and returned to the trial court, filing a second post-conviction petition seeking relief on the grounds that his trial counsel was ineffective for failing to make a professional, lawyer-like effort to ascertain whether the defendant had a history of mental illness after counsel had been so advised. Furthermore, Brown argued that his trial counsel (Palmer) had been ineffective in failing to challenge the doctor’s conclusion that Brown was fit to stand trial and that he was sane at the time of the offense. In addition, Brown argued that his due process rights were violated when he was forced to go to trial while mentally incompetent. In" }, { "docid": "3668038", "title": "", "text": "Anders brief, counsel concluded that Stoufflet’s potential arguments on appeal were frivolous. Stoufflet filed a response to the Anders brief, in which he argued that his plea was invalid because he was unaware of all the elements of the crimes for which he was charged. He explained that he did not understand that conspiracy was a specific-intent crime until the district court denied the motion in limine in the other criminal proceeding. We granted the appointed counsel’s motion to withdraw, and we affirmed Stoufflet’s judgment of conviction and sentence. United States v. Stoufflet, 424 Fed.Appx. 881 (11th Cir.2011). We stated, in part, “Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, Stoufflet’s motion for the appointment of new counsel is DENIED, and Stoufflet’s conviction and sentence are AFFIRMED.” Id. at 881. Stoufflet next filed a pro se motion to vacate his sentence. 28 U.S.C. § 2255. He stated that he was “obliged to plead guilty” and that the “Court accepted [his] plea without informing him that criminal intent was essential.” The district court denied the motion. Because our Court had rejected Stoufflet’s claim that his plea was involuntary when we affirmed his conviction and sentence in his direct appeal, the district court ruled that Stoufflet could not relitigate that issue in a motion to vacate his sentence. But the district court granted a certificate of appealability, which asks whether Stoufflet may again litigate whether his guilty plea was voluntary even though the appointed appellate counsel and Stoufflet presented that claim in the Anders briefing and our Court rejected it on direct appeal. II. STANDARD OF REVIEW When we review the denial of a motion to vacate, 28 U.S.C. § 2255, we review legal conclusions de novo and findings of fact for clear error. Thomas v. United States, 572 F.Bd 1300, 1303 (11th Cir.2009). III. DISCUSSION It is long settled that a prisoner is procedurally barred from raising arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already raised and that we rejected in his direct" }, { "docid": "6072409", "title": "", "text": "sentencing him, and we would ask for leniency in the sentence. The trial court responded that “certainly some psychological observation of [Brown] is in order,” but in spite of this comment reflecting his awareness of the problem and in spite of the request for a psychiatric exam (on which the court failed to act), the judge went on to conclude that Brown was fully responsible for his own actions at the time of the offense and went on to describe him as a “pathetic individual ” who “could have overcome” his “pathos” “a long time ago” if he had “made some effort” to do so. The judge found him guilty, and in sentencing him to the maximum term for armed robbery, 30 years, stated that Brown had “virtually no hope for rehabilitation.” H. Post-Conviction Proceedings The Illinois Appellate Court affirmed Brown’s conviction and sentence on direct appeal. Thereafter Brown filed a pro se petition for post-conviction relief in the state court, alleging without any evidentia-ry support that his prison sentence violated several unidentified constitutional rights. The state trial judge summarily dismissed the petition as frivolous and legally insufficient. Brown appealed the dismissal of the petition, and the Illinois Court of Appeals appointed the Cook County public defender to represent Brown. Shortly after the appointment, Brown’s public defender filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), on the ground that Brown’s pro se petition failed to allege facts sufficient to give rise “to a deprivation of constitutional rights.” The motion to withdraw was granted, and his representation was transferred to and assumed by attorneys from the Northwestern University Legal Clinic. At this point, Brown’s fortunes began to improve. New counsel immediately moved the appellate court for leave to amend the pro se petition and to supplement the trial record with Brown’s Menard mental health records (mental history referred to above) as well as the records from the Social Security Administration. The Illinois Court of Appeals denied the motion to supplement the record and amend the petition, affirming the dismissal" }, { "docid": "22070871", "title": "", "text": "arose out of separate and distinct criminal episodes. The first burglary was completed before the second started, each burglary occurred at a different location, and each involved a different victim. See Letterlough, 63 F.3d at 336-37. Thus, the district court properly applied the armed career criminal enhancement to James’s sentence. IY. In his supplemental pro se brief, James argues that his trial counsel was ineffective for failing to raise several constitutional attacks against the armed career criminal statute., Ineffective assistance claims are not cognizable on direct appeal unless counsel’s ineffectiveness conclusively appears on the record. United States v. King, 119 F.3d 290 (4th Cir.1997). We reject this claim. V. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED . James’s appellate counsel initially filed án‘ Anders brief. After the court ordered additional briefing, James's counsel filed a reply brief making a substantive argument regarding whether failure to stop for a blue light constitutes a violent felony. Because the court requested the additional briefing, this case is not governed by our rule that arguT ments not raised in the appellant’s opening brief are typically deemed abandoned on appeal. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir.1999). . We have examined the entire record in this case in accordance with the requirements of Anders and find no meritorious issues for appeal. This court requires that counsel inform the client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy théreof was served on the client. . When the elements of an offense indicate that it can be committed in two alternative ways, one that requires a finding that physical force was used, attempted, or threatened and the other that does not, the court may look beyond the fact of conviction and the elements of the offense to the" }, { "docid": "22954806", "title": "", "text": "U.S.C. §§ 3161-3174. Immediately prior to oral argument on the first speedy trial motion on September 16,1994, the district court granted defense counsel’s motion to withdraw from the case and ordered appointment of new counsel. The district judge, however, acquiesced in Coffin’s desire to proceed pro se with his speedy trial motion. After hearing argument the court denied the motion. On November 7, 1994, with the court-appointed successor counsel present, the trial began. A jury was selected and sworn. On November 8, 1994, Coffin informed the court that he wished to change his plea. Thereafter, without executing a written plea agreement with the government, Coffin pleaded guilty to all three counts of the indictment. Nothing in the record indicates that Coffin expressed an intention to condition his plea on the right to appeal the denial of his speedy trial claim. Furthermore, the government did not indicate consent to an appeal of the conviction. Nevertheless, at the sentencing on January 30, 1995, the district judge acknowledged Coffin’s earlier speedy trial claim and informed him that he could raise that claim on appeal. At the conclusion of the sentencing, the district judge appointed appellate counsel for Coffin. On appeal, Coffin argues that this Court should reverse his conviction because the government violated his right to a speedy trial and because his initial counsel rendered ineffective assistance. With respect to the speedy trial claim, Coffin contends that more than seventy non-excludable days elapsed between the date of his arraignment and the date of his guilty plea and that the court reserved this issue for appeal at the sentencing. With respect to the ineffective assistance of counsel claim, Coffin contends that it constituted ineffective assistance for his initial defense counsel to (1) stipulate to the exclusion of time from the speedy trial clock without his consent, (2) withdraw without requesting an adjournment of the pending speedy trial motion, and (3) withdraw without preserving appellant’s right to assert his speedy trial claim. The government argues that Coffin may not appeal his conviction because he waived that right when he pleaded guilty without obtaining a court-approved" }, { "docid": "22417325", "title": "", "text": "leave to proceed in forma pauperis and for free transcripts in the district court, but these requests were denied. This court later dismissed his appeal for want of prosecution. United States v. Peak, No. 90-5525 (4th Cir. Nov. 15, 1990). Peak’s trial counsel, Melvyn Brown, has vanished. Neither Peak nor the government has been able to locate him since Peak’s sentencing. II. On January 8, 1991, still acting pro se, Peak filed this 28 U.S.C. § 2255 action in district court. He asserted claims for ineffective assistance of counsel, improper resolution of his objections to the presentence report, breach of the plea agreement, and improper application of the career offender guidelines. In its answer, the government conceded that “failure to file a notice of appeal when so instructed by the client constitutes ineffective assistance of counsel for purposes of § 2255.” (emphasis added). In a supplemental memorandum, the government reported that it had been unable to locate attorney Brown to see whether he could contradict Peak’s representation that he had requested the filing of a notice of appeal. Accordingly, said the government, “the court should grant whatever relief it deems necessary in this case under the circumstances.” Notwithstanding the government’s concession, the magistrate recommended that the action be dismissed. The magistrate found that the breach of plea agreement and sentencing issues were meritless on the face of the record. On the ineffective assistance claim, the magistrate stated that Peak had not shown that any meritorious issue would have been raised on appeal; therefore, he had failed to establish “prejudice” within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Over Peak’s objection, the district court adopted the magistrate’s recommendation without discussion. Peak appeals. III. In its brief, the government contended that it “improvidently” conceded that failure to file a requested notice of appeal is constitutionally ineffective assistance of counsel. However, at argument, the government reversed course and renewed its concession. We will briefly outline why this concession was wise. Persons convicted in federal district courts have a right to a direct appeal. Coppedge" }, { "docid": "22703696", "title": "", "text": "brief filed by counsel in this case. By so doing, we do not express any opinion as to the merits of any issues in Marvin’s underlying appeal. We merely note that we are not yet ready to decide this case rudderless, without the guidance of counsel. The motion of counsel for leave to withdraw will be denied. Counsel for appellant shall submit further briefing consistent with this opinion. . The duties find their roots in the Due Process and Equal Protection Clauses, which ensure that an indigent criminal defendant has the right to \"adequate and effective appellate review.” Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956). This includes the right to effective assistance of counsel. See Douglas v. California, 372 U.S. 353, 355-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This right is presumptive, and not confined to those cases in which an independent review of the record convinces an appellate court that counsel \"would be helpful to the defendant or to the court.” Id. at 355, 83 S.Ct. 814. Anders explained that, while there is some limit to this right, in that counsel may be permitted to withdraw from entirely frivolous appeals, the court must use procedures to protect against counsel withdrawing when the issues are not frivolous. See 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. . In Smith, the Court approved California’s current approach, by which counsel files a brief which summarizes the relevant procedure and facts and attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file a pro se supplemental brief. He further requests that the court independently examine the record for arguable issues.... [H]e is silent on the merits of the case and expresses his availability to brief any issues on which the court might desire briefing. 120 S.Ct. at 753. . In 'Wagner, Judge Posner concluded that where an Anders brief appeared adequate, it would be inappropriate for a panel \"to" } ]

[ { "docid": "15983156", "title": "", "text": "to such third party in providing advice to the client because the third party’s anticipated reliance was the end and aim of the transaction); J'Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (1979) (contractor liable to lessee of premises for negligent delay in construction because injury from delay was foreseeable and circumstances established a special relationship between contractor and lessee even though they were not in privity of contract). As a group, these cases establish the principle that “where the ‘end and aim’ of the contractual transaction between a defendant and the contracting party is the achievement or delivery of a benefit to a known third party or the protection of that party’s interests, then liability will be imposed on the defendant for his or her negligent failure to carry out the obligations undertaken in the contract even though the third party is not a party thereto.” Adelman, 90 Cal.App.4th at 363, 108 Cal.Rptr.2d 788. Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992), the case relied upon by the district court, has arguably limited the application of the Biakanja principles. In Bily, the California Supreme Court emphasized that there were three policy concerns that had to be considered before a duty could be found under the Biakanja factors: (1) liability may in particular cases be out of proportion to fault; (2) parties should be encouraged to rely on their own ability to protect themselves through their own prudence, diligence and contracting power; and (3) the potential adverse impact on the class of defendants upon whom the duty is imposed. 3 Cal.4th at. 399-405, 11 Cal.Rptr.2d 51. Bily involved plaintiffs who invested in a computer company that went bankrupt. The plaintiffs alleged they made their investment in reliance on the positive audit opinion of the defendant, an accounting firm. The case was before the California Supreme Court on appeal from a decision of the Court of Appeals that affirmed the trial court’s judgment of professional negligence against the defendants. In Bily, the court opined “[t]he threshold element of" } ]

[ { "docid": "17402189", "title": "", "text": "and even those allegations do not plead facts showing why the statements were false at the time they were made. Moreover, the SAC does not allege facts showing knowledge (by the speaker) of the falsity. Accordingly, plaintiff fails to state a claim for fraud. h. Claim of negligent misrepresentation The D & O defendants argue that the eighth cause of action for negligent misrepresentation fails because the SAC fails to allege a misrepresentation or reliance with the specificity required by Rule 9(b). In opposition, plaintiff contends that she has pled a valid misrepresentation claim. In addition, she asserts that she has adequately alleged that defendants made false statements (citing SAC ¶¶ 84, 85), and argues that because defendants have not disputed that the statements were false, “the factual premise of the misrepresentation claim is conceded.” She also asserts that the other elements are met by the allegations in the SAC. The motion is GRANTED, with leave to amend. To state a claim for negligent misrepresentation, a plaintiff must allege (1) a misrepresentation as to a material fact; (2) without reasonable grounds for believing it to be true; (3) an intent to induce reliance; (4) justifiable reliance by the plaintiff who does not know that the representation is false; and (5) damage. In re Daisy Sys. Corp., 97 F.3d 1171, 1180 (9th Cir.1996). The existence of a duty of care is necessary to support a negligent misrepresentation claim. Alfus v. Pyramid Tech. Corp., 745 F.Supp. 1511, 1523 (N.D.Cal.1990) (liability for negligent misrepresentation may attach “only where plaintiff establishes that defendants breached a duty owed to him”); see also Garcia v. Superior Court, 50 Cal.3d 728, 735, 268 Cal.Rptr. 779, 789 P.2d 960 (1990). Under California law, the tort of negligent misrepresentation is a “species of deceit.” See Bily v. Arthur Young & Co., 3 Cal.4th 370, 407, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992). The Ninth Circuit has not yet determined whether Rule 9(b)’s heightened pleading standard applies to a claim for negligent misrepresentation, but the majority view among district courts in California appears to be that it does. See, e.g.," }, { "docid": "20899497", "title": "", "text": "to whom the supplier itself has directed its activity”). Finally, SHN supplied information for the “sort of use” — the preparation of a bid relying on the conditions described in the GBR and other documents — from which Apex’s alleged loss arose. Id. A closely analogous case confirms the foregoing analysis. M. Miller Co. v. Dames & Moore, 198 Cal.App.2d 305, 18 Cal.Rptr. 13 (1961). The plaintiff in M. Miller was a contractor which based its bid for a municipal sewage construction project on a soil report prepared by a defendant engineering firm. Id. at 307,18 Cal.Rptr. 13. The soil report was intended “to provide information for prospective bidders]” Id. The contractor alleged that the report “failed to disclose certain unstable material underlying the construction site,” causing it to submit an unfeasibly low bid. Id. The court of appeal reversed the trial court’s grant of summary judgment, finding a triable issue of fact as to whether the engineer owed the contractor a duty of care. Id. at 308-309, 18 Cal. Rptr. 13. In Bily, the California Supreme Court observed that M. Miller is “generally consistent” with the Restatement approach to negligent inisrepresentation liability. 3 Cal.4th at 412, n. 20, 11 Cal. Rptr.2d 51, 834 P.2d 745. Although timeworn, M. Miller remains good law. It provides further confirmation that SHN may be subject, to liability for negligent misrepresentations made to Apex under the circumstances present here, “provided all other elements are met.” Bily, 3 Cal.4th at 414, 11 Cal. Rptr.2d 51, 834 P.2d 745. The prong of SHN’s motion seeking to dismiss Apex’s negligent misrepresentation claim for lack of a legally cognizable duty of care is therefore denied. 3. Tort of Another SHN contends that Apex’s third claim, for “tort of another,” must fail because an essential element of that claim is a “clear violation of a traditional tort duty.” Mega RV Corp. v. HWH Corp., 225 Cal.App.4th 1318, 1339, 170 Cal.Rptr.3d 861 (2014). This argument, also known as the “where’s the tort?” defense, Behniwal v. Mix, 133 Cal.App.4th 1027, 1043, 35 Cal.Rptr.3d 320 (2005), is premised upon the notion that" }, { "docid": "13754519", "title": "", "text": "of recovery does not assert that anyone relied on the report's alleged misrepresentations but that Cabanas feared that someone might. In this respect the theory of recovery differs from the situation presented in Bily v. Arthur Young and Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992) and similar cases in which a third party relies on an auditor’s report. Under Bily defendants would not be liable to a third party such as Cabanas for negligent misrepresentation because Cabanas was not of a class of persons intended to be benefitted by the appraisal engagement. . Alternatively, this claim would be barred by Civil Code § 47(c). Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 218-25, 721 P.2d 97, 99-107 (1986) (discussing reasons why restrictions on defamation actions should be applied to actions for false light); Warfield, 262 Cal.Rptr. at 898 (noting that false light claim would appear barred by Civil Code § 47(c)); cf. Couch v. San Juan Unified School Dist., 33 Cal.App.4th 1491, 39 Cal.Rptr.2d 848 (1995) (claim for false light should be dismissed as superfluous where it incorporates all the factual allegations of libel claim and adds no further allegations). . Comment (c) Balancing of interests Tort law involves a balancing of the litigants in the light of the social and economic interests of society in general_ For the established intentional torts, this balancing process has already been worked out and developed in the form of a set of rules ... There is thus no need of using the balancing process afresh for each case in which an established tort exists; and the task is merely to apply the legal rules to the facts. Comment (d) Relationship to established torts Thus the established intentional torts and their established legal privileges amount to crystaliza-tions of the general principle stated in this Section. In determining whether liability should be imposed in a particular case for an established intentional tort, neither court nor jury engages afresh in balancing the conflicting interests of the parties ... . Plaintiffs also contend that the method by which defendants estimated" }, { "docid": "20899494", "title": "", "text": "of care — under a negligent misrepresentation theory, “provided all other elements are met.” 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745. Pursuant to the Restatement approach, to state a claim for negligent misrepresentation, a plaintiff must be a. member of “a specific class of persons” involved in a transaction that the defendant “supplier pf information intends the information to influence.” Id. at 409, 11 Cal.Rptr.2d 51, 834 P-2d 745. This is “an objective standard that looks to the specific circumstances (e.g., supplier-client engagement and the supplier’s communications with the third party) to ascertain whether a supplier has undertaken to inform and guide a third party with.respect to an identified transaction or type of transaction.” Id. at 410, 11 Cal.Rptr.2d 51, 834 P.2d 745 (emphasis in original). Liability is “confined to eases in which the supplier manifests an intent to supply the information for the sort of use in which the plaintiffs loss occurs.” Id. at 409, 11 Cal. Rptr.2d 51, 834 P.2d 745 (emphasis in original). While the Restatement approach slightly resembles the Biakanja framework, it is a distinct, analysis. The Biakanja test contemplates that a duty may be triggered by any species of negligent conduct. Section 552, in contrast, only permits liability to be imposed upon a defendant who supplies information with the intent to influence a defined and limited group, of prospective plaintiffs. The difference between the two duties was recognized in Weseloh, the 2004 opinion holding that an engineer had no duty of care to a contractor in the context of a simple negligence claim. 125 Cal. App.4th at 172-73, 22 Cal.Rptr:3d 660. Overlooked by the parties is the Weseloh court’s observation that while the contractor’s.negligence claim was unsustainable, it “might have had” a negligent misrepresen tation claim under Bily. Id. at 173, 22 Cal.Rptr.3d 660. As the court further recognized, in Bily “the California Supreme Court specifically contemplated the availability of negligent misrepresentation claims to cases involving information provided by engineers.” Id. at 174, 22 Cal. Rptr.3d 660. It. bears repeating: section 552, not Biakanja, governs the viability of Apex’s negligent misrepresentation claim." }, { "docid": "6995210", "title": "", "text": "of renewal once the motion had been taken under advisement, would be 'to succumb to a nominal-ism and a rigid trial scenario as equally at variance as ambush with the spirit of the rules.’ ”). . E.g., Ward v. Ernst & Young, 246 Va. 317, 435 S.E.2d 628, 631 (1993) (requiring privity); Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 443-44, 483 N.E.2d 110, 118 (1985) (requiring \"near privity”). . Credit Alliance Corp., 493 N.Y.S.2d at 443-44, 483 N.E.2d at 118. . E.g., Touche Ross & Co. v. Commercial Union Ins. Co., 514 So.2d 315 (Miss.1987). . See First Nat’l Bank v. Moneo Agency, Inc., 911 F.2d 1053, 1058-59 (5th Cir.1990). . See Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 63, 74-75, 834 P.2d 745, 757, 769 (1992) (rejecting the foreseeability approach which had been adopted by lower courts and noting that the foreseeability approach has not attracted a substantial following and has encountered substantial criticism from commentators); Petrillo v. Bachenberg, 139 NJ. 472, 655 A.2d 1354, 1360 (1995) (noting that New Jersey has statutorily changed its foreseeability rule for accountants to a more restrictive test). . Restatement (Second) of Torts § 552(1977). . First Nat’l Bank v. Moneo Agency, Inc., 911 F.2d 1053, 1060 (5th Cir.1990) (discussing application of the Restatement under Louisiana law). . E.g., Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 74-75, 834 P.2d 745, 769 (1992) (“The rule expressed [in the Restatement] attempts to define a narrow class and circumscribed class of persons to whom or for whom representations are made. In this way, it recognizes commercial realities by avoiding both unlimited and uncertain liability for economic losses in cases of professional mistake and exoneration of the auditor in situations where it clearly intended to undertake the responsibility of influencing particular business transactions involving third persons.”). . Federal Land Bank Ass’n. v. Sloane, 825 S.W.2d 439, 442 (Tex.1991); Blue Bell, Inc. v. Peat, Marwick, Mitchell & Co., 715 S.W.2d 408, 411 (Tex.App. — -Dallas 1986, writ ref'd n.r.e.). . See" }, { "docid": "20899495", "title": "", "text": "the Biakanja framework, it is a distinct, analysis. The Biakanja test contemplates that a duty may be triggered by any species of negligent conduct. Section 552, in contrast, only permits liability to be imposed upon a defendant who supplies information with the intent to influence a defined and limited group, of prospective plaintiffs. The difference between the two duties was recognized in Weseloh, the 2004 opinion holding that an engineer had no duty of care to a contractor in the context of a simple negligence claim. 125 Cal. App.4th at 172-73, 22 Cal.Rptr:3d 660. Overlooked by the parties is the Weseloh court’s observation that while the contractor’s.negligence claim was unsustainable, it “might have had” a negligent misrepresen tation claim under Bily. Id. at 173, 22 Cal.Rptr.3d 660. As the court further recognized, in Bily “the California Supreme Court specifically contemplated the availability of negligent misrepresentation claims to cases involving information provided by engineers.” Id. at 174, 22 Cal. Rptr.3d 660. It. bears repeating: section 552, not Biakanja, governs the viability of Apex’s negligent misrepresentation claim. Bily, 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745; accord Soderberg v. McKinney, 44 Cal.App.4th 1760, 1766-1769, 52 Cal.Rptr.2d 635 (1996) (applying section 552 approach, not Biakanja factors, to analyze whether property appraiser might owe duty of care to investors under negligent misrepresentation theory). Turning to the Restatement test, the allegations in the complaint place Apex firmly within “the category of plaintiffs who may recover” from SHN for negligent misrepresentation. Bily, 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745. The touchstones of the section 552 analysis are all present here. According to the GBR, SHN undertook to furnish contractors with “a clear explanation” of relevant project site conditions “so that key geotechnical constraints and requirements” impacting “bid preparation and construction” would be “well-defined.” Evidently, SHN intended to influence the substance of bids. Id. at 409,11 Cal.Rptr.2d 51, 834 P.2d 745. Further, SHN supplied its information to a closed universe of third parties: those contractors interested in bidding on the project. Id. (duty of care owed only to “limited class of plaintiffs" }, { "docid": "12510850", "title": "", "text": "P.2d 1253, 1261 (Ct.App.1992) (citing Restatement (Second) of Torts § 552 (1977)). Restatement (Second) of Torts § 552, as adopted by the Arizona Supreme Court, defines negligent misrepresentation as follows: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information (2) ... the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.” St. Joseph’s Hosp., and Med. Ctr. v. Reserve Life Ins. Co., 154 Ariz. 307, 742 P.2d 808, 814 (1987) (quoting Restatement (Second) of Torts § 552). One must be a foreseeable user of the information in connection with a commercial transaction before liability can be found. Id. Plaintiffs’ complaint sufficiently pleads a claim Tor negligent misrepresentation. Plaintiffs allege that defendant made statements to them in connection with their sales relationship. The complaint states that defendant should have known that it had no intention of maintaining a long term relationship. Plaintiffs contend that defendant should have known that plaintiffs were relying on these misrepresentations because they were investing so much money in developing defendant’s market share. Plaintiffs assert that they relied on this information when deciding to invest more than they expected to make in the first year. Defendant argues that plaintiffs cannot bring a tort claim for economic loss. Arizona recognizes the “economic loss” doctrine with respect to contracts for the sale of goods. See e.g., Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477, 480 (9th Cir.1995)" }, { "docid": "20899493", "title": "", "text": "will be undermined. That potential critique, however, is purely hypothetical; it does not emerge from the relevant authorities. Whatever tension results from the recognition of a duty of care in this case, it is a tension inherent at the intersection of complex business relationships and California law permitting recovery in tort for purely economic harms. On balance, the aggregate weight of the relevant factors and authorities dictatés that SHN Owed Apex a duty of care. Accordingly, SHN’s motion - to dismiss the breach of professional duty claim is denied. ■ 2. Negligent Misrepresentation The next question is whether SHN owed Apex a duty of care under a negligent misrepresentation theory. As discussed, under California law, a defendant’s general duty to refrain from negligent conduct is not coterminous with the more specific duty to avoid making, negligent misrepresentations. In Bily, the California Supreme Court expressly adopted section 552(2) of the Restatement (Second) of Torts as the test for identifying “the category of plaintiffs who may recover”— i.e., those plaintiffs to whom a defendant owes a duty of care — under a negligent misrepresentation theory, “provided all other elements are met.” 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745. Pursuant to the Restatement approach, to state a claim for negligent misrepresentation, a plaintiff must be a. member of “a specific class of persons” involved in a transaction that the defendant “supplier pf information intends the information to influence.” Id. at 409, 11 Cal.Rptr.2d 51, 834 P-2d 745. This is “an objective standard that looks to the specific circumstances (e.g., supplier-client engagement and the supplier’s communications with the third party) to ascertain whether a supplier has undertaken to inform and guide a third party with.respect to an identified transaction or type of transaction.” Id. at 410, 11 Cal.Rptr.2d 51, 834 P.2d 745 (emphasis in original). Liability is “confined to eases in which the supplier manifests an intent to supply the information for the sort of use in which the plaintiffs loss occurs.” Id. at 409, 11 Cal. Rptr.2d 51, 834 P.2d 745 (emphasis in original). While the Restatement approach slightly resembles" }, { "docid": "22502280", "title": "", "text": "v. Arthur Young & Co. , 3 Cal. 4th 370, 415, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992), as modified (Nov. 12, 1992) (en banc). \"[R]eason to expect\" is distinct from \"the concept of foreseeability\" and \"bears more similarity to actual intent to cause third party reliance than it does to 'foreseeability.' \" Geernaert v. Mitchell , 31 Cal. App. 4th 601, 607, 37 Cal.Rptr.2d 483 (Cal. Ct. App. 1st Dist. 1995) (emphasis in original); see also Gawara v. U.S. Brass Corp. , 63 Cal. App. 4th 1341, 1351 n.10, 74 Cal.Rptr.2d 663 (Cal. Ct. App. 4th Dist. 1998). As a result, a plaintiff seeking to rely on a representation that the defendant made to a third party must show that the defendant \" 'ha[d] information that would lead a reasonable man to conclude that there is an especial likelihood that it [would] reach those persons [similarly situated to the plaintiff] and [would] influence their conduct.' \" Geernaert , 31 Ca. App. 4th at 607, 37 Cal.Rptr.2d 483, quoting Rest. 2d Torts § 531, cmt. d (italics omitted). The Restatement also limits a defendant's liability \"to pecuniary losses suffered in the type of transaction in which he intends or has reason to expect the conduct of others to be influenced.\" Rest. 2d Torts § 531, cmt. g. As an illustration, the Restatement explains that: A, seeking to sell a lot owned by him, publishes in newspapers fraudulent statements concerning the character of all lots in the real estate development in which it is located. B reads these statements, and in reliance upon them purchases another lot in the same development from C. A is not liable to B under the rule stated in this Section. Id. Defendants contend that Schwab's claims are beyond the scope of common law fraud because they would make Defendants liable for misrepresentations about LIBOR to parties that bought financial instruments that do not reference LIBOR at all. Schwab responds that its claim is within the scope of common law fraud because the complaint alleges that assessing the spread between LIBOR and the offered rate for" }, { "docid": "20899479", "title": "", "text": "this federal diversity action. Accordingly, SHN’s motion must be denied. II. LEGAL STANDARD A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). Dismissal may be based on either the “lack of a cognizable légal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir.2013). When evaluating a motion to dismiss the court must accept all material allegation's in the complaint as true, even if doubtful, and construe them in the light most favorable to the non-moving party. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n allegations of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” To satisfy the rule, a plaintiff must allege the “who, what, where, when, and how” of the charged misconduct. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997). In other words, “the circumstances constituting the alleged fraud must be specific enough to give defendants notice of the particular misconduct so thát they can defend against the charge and not just deny that they have done anything wrong.” Vess v. CibaGeigy Corp. U.S.A., 317 F.3d 1097, 1106 (9th Cir.2003). III. DISCUSSION: A. Duty of Care-, , SHN claims that it cannot be held liable for the torts alleged in this action because it owed Apex no duty of care.. Both parties assume that one test— specifically, the six-factor framework first articulated in Biakanja v. Irving, 49 Cal.2d 647, 650, 320 P.2d 16 (1958) — governs whether each of Apex’s claims may proceed. Under California law, however, negligent misrepresentation “is a separate and distinct tort” from simple negligence and requires a unique duty of care analysis. Bily v. Arthur Young &. Co., 3 Cal.4th 370, 407-413, 11 Cal.Rptr.2d 51, 834 P.2d 745" }, { "docid": "20899498", "title": "", "text": "California Supreme Court observed that M. Miller is “generally consistent” with the Restatement approach to negligent inisrepresentation liability. 3 Cal.4th at 412, n. 20, 11 Cal. Rptr.2d 51, 834 P.2d 745. Although timeworn, M. Miller remains good law. It provides further confirmation that SHN may be subject, to liability for negligent misrepresentations made to Apex under the circumstances present here, “provided all other elements are met.” Bily, 3 Cal.4th at 414, 11 Cal. Rptr.2d 51, 834 P.2d 745. The prong of SHN’s motion seeking to dismiss Apex’s negligent misrepresentation claim for lack of a legally cognizable duty of care is therefore denied. 3. Tort of Another SHN contends that Apex’s third claim, for “tort of another,” must fail because an essential element of that claim is a “clear violation of a traditional tort duty.” Mega RV Corp. v. HWH Corp., 225 Cal.App.4th 1318, 1339, 170 Cal.Rptr.3d 861 (2014). This argument, also known as the “where’s the tort?” defense, Behniwal v. Mix, 133 Cal.App.4th 1027, 1043, 35 Cal.Rptr.3d 320 (2005), is premised upon the notion that Apex cannot state a claim against SHN for either breach of professional duty or negligent misrepresentation. For the reasons discussed throughout this order, those claims are sufficient to withstand SHN’s motion to dismiss. Because viable torts remain, the “tort of another” claim also endures. B. Rule 9(b) Separately, SHN argues that Apex’s negligent misrepresentation claim fails to comply with the heightened pleading standards set forth in Federal Rule of Civil Procedure 9(b). As the parties point out, Ninth Circuit law is unsettled regarding whether California negligent misrepresentation claims must satisfy Rule 9(b)’s requirements. Compare Quatela v. Stryker Corp., 820 F.Supp.2d 1045, 1049 (N.D.Cal. 2010) (negligent misrepresentation claim subject to Rule 9(b) requirements) with Howard v. First Horizon Home Loan Corp., 12-cv-05735-JST, 2013 WL 6174920, at *5 (N.D.Cal. Nov. 25, 2013) (noting that the Ninth Circuit “has not yet decided” whether Rule 9(b) applies to negligent misrepresentation claims and holding it does not). In this case, the discussion is purely academic. Regardless of whether Apex’s averments are evaluated under Rule 9(b) or the more lenient requirements" }, { "docid": "11747299", "title": "", "text": "v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745, 762 (1992) (“An auditor is a watchdog, not a bloodhound. As a matter of commercial reality, audits are performed in a client-controlled environment.”); Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir.2000) (“[T]he failure of a non-fiduciary accounting firm to identify problems with the defendant-company’s internal controls and accounting practices does not constitute reckless conduct sufficient for § 10(b) liability.”); Rothman v. Gregor, 220 F.3d 81, 98 (2d Cir.2000) (reversing dismissal of securities complaint in favor of corporation and its officers, but affirming dismissal as to independent accountant). Finally, the report generated by an independent accountant often represents a “professional opinion based on numerous and complex factors.” Bily, 11 Cal.Rptr.2d 51, 834 P.2d at 763. “Although ultimately expressed in shorthand form, the report is the final product of a complex process involving discretion and judgment on the part of the auditor at every stage. Using different initial assumptions and approaches, different sampling techniques, and the wisdom of 20-20 hindsight, few CPA audits [are] immune from criticism.” Id.; see also In re GlenFed, Inc. Securities Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (recognizing that “flexible accounting concepts do not always (or perhaps ever) yield a single correct figure.”); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1020-21 (5th Cir.1996) (same). In sum, the lack of a rational economic incentive for an independent accountant to participate in fraud, the client’s central role in providing information to the accountant, and the complex professional judgment required to perform an audit, make it exceedingly difficult for a securities plaintiff to plead facts suggesting that an independent accountant acted with the deliberate state of mind now required to withstand a motion to dismiss. Here, Plaintiffs contend the Second Amended Complaint meets and exceeds these requirements because it (1) identifies specific “red flags” that alerted Price Waterhouse to Altris’ revenue recognition improprieties, (2) provides painstaking detail regarding Altris’ violations of GAAP, including specific description of contract documents in Price Waterhouse’s possession at the time of the audit, and (3) relies on" }, { "docid": "15025807", "title": "", "text": "approach does not relieve him of demonstrating loss causation. See 15 U.S.C. § 78bb (limiting recovery to damages “on account of the act complained of’). The misrepresentation here is that Horton claimed that a decision to invest $36 million had been made. To establish causation, Weiss must demonstrate that had he known of the truth, Weiss would not have taken the action he did ie., relinquishing the Note to purchase Alchemix stock. This is a question of fact. The finder of fact will determine whether Weiss would have acted or not. Weiss faces challenges in light of the evidence that he stood ready to make the same concessions and purchase the same if not more Alchemix stock on the basis of an AFG investment of only $3 million. On the other hand, Horton testified that the loss of the substantial investment from Western was a “game changer,” suggesting that a reasonable person might have behaved differently had he known that only a $3 million investment was being made. In any event, Weiss must carry his burden on causation. Thus, we remand for consideration of the claim under a rescissionary measure of damages and loss causation. C. State Securities Fraud As in his federal securities claim, Weiss argues that the district court erred in dismissing his securities fraud claim under Ariz.Rev.Stat. § 44-1991 because Arizona securities law does not require a showing of damages in a rescission suit. Unlike federal law, rescission under Arizona securities law does not require the existence of damages. Under section 44-1991(A)(2) of the Arizona Revised Statutes, a plaintiff need not demonstrate the existence of damages. See Aaron v. Fromkin, 196 Ariz. 224, 228, 994 P.2d 1039 (Ct.App.2000). “[Establishing statutory securities fraud requires only that a misrepresentation of material fact was made in the sale of securities.” Id. (citing State v. Superior Court of Maricopa Cnty. 123 Ariz. 324, 331, 599 P.2d 777 (1979)). Thus, because the district court erroneously dismissed Weiss’s securities fraud claim for lack of damages, we remand this claim to the district court. D. Common Law Fraud & Negligent Misrepresentation Weiss claims that" }, { "docid": "22502279", "title": "", "text": "on the fraud on the market doctrine in this case. Schwab alleges that, in connection with each transaction, it \"evaluated the difference (or 'spread') between the offered rate and LIBOR,\" that a larger spread caused it to purchase fixed-rate instruments, and that it \"relied on the accuracy of LIBOR in undertaking these transactions.\" J.A. 867. Those allegations set forth Schwab's theory of reliance, and they go beyond the bare assertion that Defendants' fraudulent LIBOR submissions were embedded in the price of fixed-rate instruments. The district court thus erred in dismissing Schwab's claims as precluded by California's rejection of the fraud on the market doctrine. Defendants, however, identify an alternative basis on which to affirm the dismissal of the fraud claims involving fixed-rate instruments: the claims are beyond the scope of common law fraud. California follows the Restatements of Torts, under which a defendant is liable to those \"whom he intends or has reason to expect to\" rely on a misrepresentation. Restatement (Second) of Torts (\" Rest. 2d Torts\"), § 531(1977) ; id. § 533; Bily v. Arthur Young & Co. , 3 Cal. 4th 370, 415, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992), as modified (Nov. 12, 1992) (en banc). \"[R]eason to expect\" is distinct from \"the concept of foreseeability\" and \"bears more similarity to actual intent to cause third party reliance than it does to 'foreseeability.' \" Geernaert v. Mitchell , 31 Cal. App. 4th 601, 607, 37 Cal.Rptr.2d 483 (Cal. Ct. App. 1st Dist. 1995) (emphasis in original); see also Gawara v. U.S. Brass Corp. , 63 Cal. App. 4th 1341, 1351 n.10, 74 Cal.Rptr.2d 663 (Cal. Ct. App. 4th Dist. 1998). As a result, a plaintiff seeking to rely on a representation that the defendant made to a third party must show that the defendant \" 'ha[d] information that would lead a reasonable man to conclude that there is an especial likelihood that it [would] reach those persons [similarly situated to the plaintiff] and [would] influence their conduct.' \" Geernaert , 31 Ca. App. 4th at 607, 37 Cal.Rptr.2d 483, quoting Rest. 2d Torts § 531, cmt." }, { "docid": "4402518", "title": "", "text": "on the 1985 audit. The court discerns no allegation in the pretrial order or in plaintiffs’ present arguments that the violations alleged by the Comeaus under § 10(b) and Rule 10b-5 relate to any conduct other than the purchase of the Rupps’ stock. Accordingly, summary judgment will be granted in favor of the Accountants on the federal securities claims. 2. Breach of Fiduciary Duty and Reckless Conduct The Comeaus allege two state common law claims against the Accountants: breach of fiduciary duty and reckless conduct. For purposes of this motion, the court assumes as true that Grant owed some fiduciary duties to the Comeaus, which were breached, and that Grant acted recklessly in performing the 1985 audit. See Gillespie v. Seymour, 14 Kan.App.2d 563, 568, 796 P.2d 1060 (1990) (whether accountants owe fiduciary duty depends on facts of each case); cf. Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992) (auditors liable to third parties for negligent misrepresentation only if plaintiff justifiably relies on audit). The court has also found, however, that the Comeaus themselves had a nondelegable fiduciary duty to keep abreast of the RCSA’s general financial condition, which duty was recklessly breached by their failure to inform themselves personally of the amount of delinquent loans as of February 10, 1986 and before. The court finds that this conduct on the part of the Comeaus precludes relief under either state common law theory. Although the contributory negligence of a plaintiff is not a defense to a defendant’s reckless conduct, reckless conduct on the part of the plaintiff is a defense to similar conduct of the defendant. Bogle v. Conway, 198 Kan. 166, 169, 422 P.2d 971 (1967); Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980, syl. ¶ 4 (1948); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 462 (5th ed. 1984) (citing Restatement (Second) of Torts §§ 482(2) & 503(3)); cf. Goben v. Barry, 234 Kan. 721, 727, 676 P.2d 90 (1984) (where the conduct of both plaintiff and defendant is" }, { "docid": "12510849", "title": "", "text": "show a defendant made a promise, which the defendant should reasonably foresee would cause the plaintiff to rely, upon which the plaintiff actually relied to its detriment. See Contempo Constr. Co. v. Mountain States Tel. and Tel. Co., 153 Ariz. 279, 736 P.2d 13, 16 (Ct.App.1987). Plaintiffs’ complaint alleges each element of this claim: (1) they assert defendant promised them a long term sales relationship; (2) defendant should have known that they would invest more money into the relationship based on their understanding of future profit; (3) plaintiffs lost money because they overinvested in the relationship based on defendant’s promises. The court does not agree with defendant that, under Arizona law, a written contract can preclude any and all claims of promissory estoppel. Therefore, defendant’s motion to dismiss plaintiffs’ promissory estoppel claims is denied. D. Negligent Misrepresentation Plaintiffs claim that defendant misrepresented its intent and, as such, defendant is liable for negligent misrepresentation. Arizona recognizes a cause of action, arising under tort law, for negligent misrepresentation. See, e.g., McAlister v. Citibank, 171 Ariz. 207, 829 P.2d 1253, 1261 (Ct.App.1992) (citing Restatement (Second) of Torts § 552 (1977)). Restatement (Second) of Torts § 552, as adopted by the Arizona Supreme Court, defines negligent misrepresentation as follows: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information (2) ... the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.” St. Joseph’s Hosp.," }, { "docid": "17402190", "title": "", "text": "material fact; (2) without reasonable grounds for believing it to be true; (3) an intent to induce reliance; (4) justifiable reliance by the plaintiff who does not know that the representation is false; and (5) damage. In re Daisy Sys. Corp., 97 F.3d 1171, 1180 (9th Cir.1996). The existence of a duty of care is necessary to support a negligent misrepresentation claim. Alfus v. Pyramid Tech. Corp., 745 F.Supp. 1511, 1523 (N.D.Cal.1990) (liability for negligent misrepresentation may attach “only where plaintiff establishes that defendants breached a duty owed to him”); see also Garcia v. Superior Court, 50 Cal.3d 728, 735, 268 Cal.Rptr. 779, 789 P.2d 960 (1990). Under California law, the tort of negligent misrepresentation is a “species of deceit.” See Bily v. Arthur Young & Co., 3 Cal.4th 370, 407, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992). The Ninth Circuit has not yet determined whether Rule 9(b)’s heightened pleading standard applies to a claim for negligent misrepresentation, but the majority view among district courts in California appears to be that it does. See, e.g., Errico v. Pac. Capital Bank, N.A, 753 F.Supp.2d 1034, 1049 (N.D.Cal.2010) (negligent misrepresentation sounds in fraud and is subject to Rule 9(b) pleading requirements); see also In re Easysaver Rewards Litig., 737 F.Supp.2d 1159, 1176-77 (S.D.Cal.2010); Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1141 (C.D.Cal.2003). Here, as with the other fraud claims, plaintiff has not alleged that any specific D & O defendant made a false statement, or that in making such a statement, any specific defendant lacked reasonable belief that it was true. Indeed, the majority of the false statements are attributed to Fischer — not to the D & O defendants — or are unattributed. Leave to amend is granted, but only to the extent that plaintiff can correct this deficiency. As for plaintiff’s suggestion that the alleged omissions (or failure to disclose by the defendants) should also be counted as false representations for purpose of the negligent misrepresentation claim, the court finds that any such claim must be dismissed with prejudice. While the courts in some states have held" }, { "docid": "20899480", "title": "", "text": "plaintiff must allege the “who, what, where, when, and how” of the charged misconduct. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997). In other words, “the circumstances constituting the alleged fraud must be specific enough to give defendants notice of the particular misconduct so thát they can defend against the charge and not just deny that they have done anything wrong.” Vess v. CibaGeigy Corp. U.S.A., 317 F.3d 1097, 1106 (9th Cir.2003). III. DISCUSSION: A. Duty of Care-, , SHN claims that it cannot be held liable for the torts alleged in this action because it owed Apex no duty of care.. Both parties assume that one test— specifically, the six-factor framework first articulated in Biakanja v. Irving, 49 Cal.2d 647, 650, 320 P.2d 16 (1958) — governs whether each of Apex’s claims may proceed. Under California law, however, negligent misrepresentation “is a separate and distinct tort” from simple negligence and requires a unique duty of care analysis. Bily v. Arthur Young &. Co., 3 Cal.4th 370, 407-413, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992). Even if a defendant does not, as a matter of law, owe a duty of care sufficient to support a professional negligence claim, that defendant may nevertheless be liable to the same, plaintiff for negligent misrepresentation. Id. at 413, 11 Cal.Rptr.2d 51, 834 P.2d 745 (holding that auditors may be liable for negligent misrepresentations made to investors but owe no duty of care to same individuals for “mere negligence”). The viability of each of Apex’s claims is considered in light of this distinction. 1. Breach of Professional Duty The first question is whether SHN. owed Apex a duty of care such that it may be-held liable for professional negligence. “The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.”. Bily, 3 Cal.4th at 397, 11 Cal.Rptr.2d 51, 834 P.2d 745. “Recognition of a duty to manage business .affairs so as to prevent purely economic loss to third parties in their financial transactions" }, { "docid": "13754518", "title": "", "text": "communications to those who advise interested parties by protecting the advisor from liability from defamation and related claims through the qualified privilege. Cal.Civ.Code § 47(c). . Specific contractual provisions in the loan agreement were also addressed to this issue. The agreement provided that the owners could not “enter into any agreement providing for the management, leasing or operation of the Property, other than the Management Agreement ... without the Bank's prior written consent, which may be withheld in Bank’s sole and absolute discretion.” Verme Depo., Exh. 3 (Construction Loan Agreement dated July 14, 1988), 38, ¶ 10.7. On June 24, 1992, the Bank and the owners agreed to extend the loan, and modified the language in paragraph 10.7 to add \"or enter into any amendment to the Management Agreement ...” Verrue Depo., Exh. 4 (Extension and Sixth Modification Agreement, dated June 24, 1992), 9, ¶ 3.13. . Plaintiffs’ theory rests on Cabanas' alleged reliance on the report in the negotiations by way of his assumption that Verme may have seen the report. Thus, the theory of recovery does not assert that anyone relied on the report's alleged misrepresentations but that Cabanas feared that someone might. In this respect the theory of recovery differs from the situation presented in Bily v. Arthur Young and Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992) and similar cases in which a third party relies on an auditor’s report. Under Bily defendants would not be liable to a third party such as Cabanas for negligent misrepresentation because Cabanas was not of a class of persons intended to be benefitted by the appraisal engagement. . Alternatively, this claim would be barred by Civil Code § 47(c). Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 228 Cal.Rptr. 215, 218-25, 721 P.2d 97, 99-107 (1986) (discussing reasons why restrictions on defamation actions should be applied to actions for false light); Warfield, 262 Cal.Rptr. at 898 (noting that false light claim would appear barred by Civil Code § 47(c)); cf. Couch v. San Juan Unified School Dist., 33 Cal.App.4th 1491, 39 Cal.Rptr.2d 848 (1995) (claim for" }, { "docid": "20899496", "title": "", "text": "Bily, 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745; accord Soderberg v. McKinney, 44 Cal.App.4th 1760, 1766-1769, 52 Cal.Rptr.2d 635 (1996) (applying section 552 approach, not Biakanja factors, to analyze whether property appraiser might owe duty of care to investors under negligent misrepresentation theory). Turning to the Restatement test, the allegations in the complaint place Apex firmly within “the category of plaintiffs who may recover” from SHN for negligent misrepresentation. Bily, 3 Cal.4th at 414, 11 Cal.Rptr.2d 51, 834 P.2d 745. The touchstones of the section 552 analysis are all present here. According to the GBR, SHN undertook to furnish contractors with “a clear explanation” of relevant project site conditions “so that key geotechnical constraints and requirements” impacting “bid preparation and construction” would be “well-defined.” Evidently, SHN intended to influence the substance of bids. Id. at 409,11 Cal.Rptr.2d 51, 834 P.2d 745. Further, SHN supplied its information to a closed universe of third parties: those contractors interested in bidding on the project. Id. (duty of care owed only to “limited class of plaintiffs to whom the supplier itself has directed its activity”). Finally, SHN supplied information for the “sort of use” — the preparation of a bid relying on the conditions described in the GBR and other documents — from which Apex’s alleged loss arose. Id. A closely analogous case confirms the foregoing analysis. M. Miller Co. v. Dames & Moore, 198 Cal.App.2d 305, 18 Cal.Rptr. 13 (1961). The plaintiff in M. Miller was a contractor which based its bid for a municipal sewage construction project on a soil report prepared by a defendant engineering firm. Id. at 307,18 Cal.Rptr. 13. The soil report was intended “to provide information for prospective bidders]” Id. The contractor alleged that the report “failed to disclose certain unstable material underlying the construction site,” causing it to submit an unfeasibly low bid. Id. The court of appeal reversed the trial court’s grant of summary judgment, finding a triable issue of fact as to whether the engineer owed the contractor a duty of care. Id. at 308-309, 18 Cal. Rptr. 13. In Bily, the" } ]

[ { "docid": "22085799", "title": "", "text": "295-297. Moreover, federal policy plainly calls for an award of interest. The purpose of the DRA was not to relieve States of the entire burden of disaster relief, but to apportion that responsibility between the State and Federal Governments. See, e. g., §§ 101(a)(2) and (b) (Act was intended “to assist the efforts of the affected States,” and to provide “an orderly and continuing means of assistance by the Federal Government to State and local governments”); § 102(1) (Governor of any State in which a disaster occurs must certify the need for federal disaster assistance and “giv[e] assurance of the expenditure of a reasonable amount of the funds of such State, its local governments, or other agencies for alleviating the damage . . . resulting from such catastrophe”). Section 226(a) of the DRA reflects the statute’s allocative intent; it explicitly states that the Federal Government is not to bear the costs of site preparation for temporary housing for disaster victims. Prejudgment interest is an element of complete compensation, see, e. g., General Motors Corp. v. Devex Corp., 461 U. S. 648, 655-656, and n. 10 (1983); fully repaying the Federal Government for any costs of site preparation will further the distribution of the burdens of disaster relief that Congress intended. This federal interest in complete compensation is likely to be present in any ordinary commercial contractual arrangement between a State and the Federal Government. In such a situation, it is also difficult to imagine a state interest that would justify relieving the State of its obligation to compensate the Federal Government fully for its efforts. Here, the State asserts none, except its understandable interest in not paying any more than it has to. The State argues that it should be exempt from paying prejudgment interest to the United States because, under its own law, it may not be held liable for interest unless it has consented to be. See Guaranty Trust Co. of New York v. West Virginia Turnpike Comm’n, 144 W. Va. 266, 271, 107 S. E. 2d 792, 796 (1959). But the source of this exemption is the" } ]

[ { "docid": "7929426", "title": "", "text": "rate to be used in calculating prejudgment interest. Several. courts have taken that approach under ERISA and other federal laws. See Biava v. Insurers Administrative Corp., 48 F.3d 1231 (Table), 1995 WL 94461, *5 (10th Cir.1995) (ERISA); Colon Velez v. Puerto Rico Marine Management, Inc., 957 F.2d 933, 941 (1st Cir.1992) (Labor Management Relations Act); Hansen v. Continental Ins. Co., 940 F.2d 971, 983-84 (5th Cir.1991) (ERISA); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1219 (8th Cir.1981) (ERISA). The Seventh Circuit has followed a different course. While it has stated that district courts should have some discretion in determining the rate of prejudgment interest, Gorenstein, 874 F.2d at 437, the Seventh Circuit has also held that the appropriate rate is the market rate. In the Matter of Oil Spill by the Amoco Cadiz Off the Coast of France on March 16, 1978, 954 F.2d 1279, 1332 (7th Cir.1992). A simple (and acceptable) approximation of the market rate is the prime rate at various relevant periods during the litigation. Id. Other, more complex (and more precise) ways of calculating the market rate are appropriate as well. Gorenstein, 874 F.2d at 436-37; Amoco Cadiz, 954 F.2d at 1332-33. Use of the prime rate fits the rationale for awarding prejudgment interest in the first place. Prejudgment interest is “an element of complete compensation.” Amoco Cadiz, 954 F.2d at 1331 (quoting West Virginia v. United States, 479 U.S. 305, 310, 107 S.Ct. 702, 706, 93 L.Ed.2d 639 (1987).). The presumption that prejudgment interest should be available for violations of federal law is based in part on the “growing recognition of the time value of money____” Rivera, 921 F.2d at 696. Therefore, a static method, like a fixed nominal interest rate in a statute, does not well serve the federal policy of compensating a prevailing party accurately. Amoco Cadiz points out that ' flexibility is important because even reliance on market rates will produce inaccurate results if not adjusted over time to reflect market changes. 954 F.2d at 1332. The substantial fluctuations in market interest rates since Mr. Hizer died emphasize the point. The" }, { "docid": "21094794", "title": "", "text": "discretion to exercise when deciding whether to award prejudgment interest — more discretion than they possess when deciding whether to avoid a preferential transfer. Discretion is not, however, authorization to decide who deserves the money more. Discretion must be exercised according to law, which means that prejudgment interest should be awarded unless there is a sound reason not to do so. The only reason appellants give why discretion should have been exercised in their favor is that the case has lasted a long time, so interest has mounted; an award now, they say, would be “punitive.” This misunderstands why courts award prejudgment interest. Compensation deferred is compensation reduced by the time value of money; if the proceeds had been returned to Milwaukee Cheese’s estate and distributed to the creditors, they would have been able to earn interest on it during the last decade. That is why prejudgment interest is an ingredient of full compensation. It is also why an award, no matter how large, cannot be called “punitive”: defendants can invest the funds while the litigation proceeds, then use the interest they receive to satisfy the obligation. Delay is a reason to award interest, not to avoid interest; the longer the case lasts, the more of the stakes the defendant keeps even if it loses (and the less the victorious plaintiff receives), unless interest is added. Milwaukee v. Cement Division of National Gypsum Co., 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995); In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1331-35 (7th Cir.1992). Gratuitous delay by the party seeking the award — delay that injures the other side by forcing it to act as an uncompensated trustee or investment manager— might be a reason to limit an award of interest. See Cement Division, 515 U.S. at-, 115 S.Ct. at 2096. But the delay here is attributable to the judicial branch, and its effect is neutral between the parties. Unfortunate though it is that this ease has lasted as long as the Amoco Cadiz litigation (which involved litigants from four continents and hundreds of millions of" }, { "docid": "18369623", "title": "", "text": "West Virginia v. United States, 479 U.S. 305, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987); General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983); Rodgers v. United States, 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3 (1947); Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1297-99 (7th Cir.1987); Central Rivers Towing, Inc. v. City of Beardstown, 750 F.2d 565, 574 (7th Cir.1984); Hillier v. Southern Towing Co., 740 F.2d 583 (7th Cir.1984); Myron v. Chicoine, 678 F.2d 727, 733-34 (7th Cir.1982); Bricklayers’ Pension Trust Fund v. Taiariol, 671 F.2d 988 (6th Cir.1982); L.P. Larson, Jr., Co. v. William Wrigley, Jr., Co., 20 F.2d 830, 836 (7th Cir.1927) — the last a trademark case. The areas in which such interest is allowed, illustrated by the cases just cited, are diverse. The time has come, we think, to generalize, and to announce a rule that prejudgment interest should be presumptively available to victims of federal law violations. Without it, compensation of the plaintiff is incomplete and the defendant has an incentive to delay. The date from which prejudgment interest accrues is the date of demand for return of transferred property, or the date of the filing of the adversary proceeding seeking recovery of property, whichever is earlier. In this case, the record establishes the date of the filing of the adversary complaint as the appropriate date, and thus prejudgment interest is awarded from June 27, 2001 to the date of entry of judgment with respect to the recoveries adjudged for the Trustee. See, In re Industrial and Mun. Engineering, Inc., 127 B.R. 848 (Bankr.C.D.Ill.1990). The next question which arises is the rate at which interest is to be imposed. As stated in Cement Division, National Gypsum Co. v. City of Milwaukee, 144 F.3d 1111, 1114 (7th Cir.1998): Unlike postjudgment interest, there is no statutory rate of prejudgment interest, see Gorenstein Enters. v. Quality Care-U.S.A., Inc., 874 F.2d 431, 436 (7th Cir.1989), and the amount of prejudgment interest required to properly compensate the victim can vary depending on the particular circumstances of the case." }, { "docid": "22213647", "title": "", "text": "common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such ... cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause____” Some federal cases hold that prejudgment interest is presumptively due, see, e.g., EEOC v. County of Erie, 751 F.2d 79, 81 (2d Cir.1984), and a recent decision by our court under the Comprehensive Employment and Training Act, 29 U.S.C. §§ 801 et seq., states forthrightly that prejudgment interest “is a necessary part” of an award of backpay under the statute, “as it ensures that the timing of the award does not alter its adequacy and that aggrieved parties will not be forced to bear the cost of delay in the dispute-resolution process.” City of Chicago v. United States Dept. of Labor, 753 F.2d 606, 608 (7th Cir.1985); cf. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655 n. 10, 103 S.Ct. 2058, 2062 n. 10, 76 L.Ed.2d 211 (1983). There is merit in this position, since full compensation requires recognition of the time value of money. But we need not decide today how much if any discretion a district judge retains to deny an award of prejudgment interest in a case governed by substantive federal law, since the judge in this case awarded prejudgment interest and in so doing did not abuse her discretion even if she had discretion in the matter, rather than (as implied by City of Chicago) an absolute duty. The award of prejudgment interest is necessary to put Hunter in the monetary position he would have occupied if Allis-Chalmers had not violated his rights. Since Allis-Chalmers’ misconduct in firing Hunter was deliberate, eq uitable considerations even if admissible to contest prejudgment interest do not weigh heavily in its favor. 9. The next issue is the period for which Hunter was entitled to backpay. The judge awarded him backpay for the five years between the time he" }, { "docid": "22848962", "title": "", "text": "U.S. 305, 310, 107 S.Ct. 702, 706, 93 L.Ed.2d 639 (1987). See also, e.g., General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983); Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 436-37 (7th Cir.1989); Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1297-98 (7th Cir.1987). Money today is not a full substitute for the same sum that should have been paid years ago. Prejudgment interest therefore is an ordinary part of any award under federal law. By committing a tort, the wrongdoer creates an involuntary creditor. It may take time for the victim to obtain an enforceable judgment, but once there is a judgment the obligation is dated as of the time of the injury. In voluntary credit transactions, the borrower must pay the market rate for money. (The market rate is the minimum appropriate rate for prejudgment interest, because the involuntary creditor might have charged more to make a loan.) Prejudgment interest at the market rate puts both parties in the position they would have occupied had compensation been paid promptly. To see this, consider what would have happened if the French parties had borrowed $60 million to finance the cleanup in April 1978, and Amoco had put that sum in trust to fund an award of damages (just as Amoco actually put 77 million francs in trust in France). The victims would have had to pay the market rate of interest, which at times during this case has exceeded 20% per annum. If they arranged to repay the debt in a single balloon payment at the end (when they recouped from Amoco), and if the rate of interest averaged 12%, then by April 1991 the victims would owe their creditors $262 million. Meanwhile the trust fund, lending out its assets at the market rate of 12%, would have grown to $262 million. Scores would be fully settled if Amoco tendered its interest in the fund: it would thus “pay” $60 million as of 1978, and the victims would receive $60 million as of 1978; the lenders" }, { "docid": "5802362", "title": "", "text": "a risk-free loan. KAL concedes that the decision on how to compute prejudgment interest is discretionary with the district court. We quite agree with many of our sister circuits that the use of the prime rate for determining prejudgment interest is well within the district court’s discretion. See, e.g., Cement Division, Nat’l Gypsum Co. v. City of Milwaukee, 31 F.3d 581, 587 (7th Cir.1994), aff'd, — U.S. — , 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995); Mentor Ins. Co. v. Brannkasse, 996 F.2d 506, 520 (2d Cir.1993); Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed.Cir.1991); Alberti v. Klevenhagen, 896 F.2d 927, 938, vacated in part, 903 F.2d 352 (5th Cir.1990) (holding a district court’s failure to use the prime rate to be in error). Indeed, we think the Seventh Circuit is correct—that the prime rate is not merely as appropriate as the Treasury Bill rate, but more appropriate: Interest at what rate? Surely the market rate. That is what the victim must pay— either explicitly if it borrows money or implicitly if it finances things out of cash on hand — and the rate the wrongdoer has available to it.... [A] court should use the ‘prime rate’ — that is, the rate banks charge for short-term unsecured loans to creditworthy customers. This rate may miss the mark for any particular party, but it is a market-based estimate. In the Matter of Oil Spill by the Amoco Cadiz Off the Coast of France, 954 F.2d 1279, 1382 (7th Cir.1992). Accordingly, we affirm the entry of judgment for decedent’s pre-death pain and suffering, and we affirm the district court’s calculation of prejudgment interest at the prime rate. We reverse the judgment of the district court awarding damages for loss of society, and striking the award for loss of financial contributions as too speculative and remand for entry of the appropriate orders. . Forman’s airplane expert testified that the holes in the fuselage would have caused the cabin's atmosphere, which was initially equivalent to an altitude of 4,800 feet, rapidly to approach the ambient altitude of between 35,000 and 38,000 feet." }, { "docid": "2224567", "title": "", "text": "at proceedings related to the offense. Eileen and Everett took Neely’s money, and return of the same number of dollars would be “inadequate” for purposes of § 3663A(b)(l)(A) because the money came from an interest-bearing account. Restitution should include interest to make up for the loss of the funds’ capacity to grow. See, e.g., Milwaukee v. Cement Division of National Gypsum Co., 515 U.S. 189, 195, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995) (“The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss”); In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1311-35 (7th Cir.1992) (interest should be computed at the rate the defendant would have had to pay for unsecured credit). This sends us to § 3663A(b)(1)(B)(i)(II) which calls for restitution of value on the date of sentencing, a value that includes prejudgment interest. Neely’s estate did not incur any child care, transportation, or other expenses while assisting prosecution, so the presumptive restitution award remains $92,000 (plus interest, a detail that to simplify exposition we disregard from now on). We’ll take up later the possibility that this amount should be reduced under § 3663A(b)(1)(B)(ii). Our calculation assumes that Neely (and thus her estate) is the victim of the offense. The prosecutor argues, and the district court apparently concluded, that the Hospital rather than Neely is the victim of this crime. Neely’s estate sued the Hospital, contending that it was both directly and vicariously liable for the loss— vicariously because it was Eileen’s employer, and directly because it failed to screen its employees properly. The Hospital took Eileen’s credentials at face value, failing to learn that she was not qualified to be a social worker, was using a false Social Security number and other bogus details, and had a recent felony conviction; she was on probation when the Hospital hired her. Neely’s estate sought both compensatory and punitive damages. The $165,000 represents the amount that the Hospital paid in settlement. The district judge did not explain why he viewed the Hospital as the victim of Everett’s crimes. Section" }, { "docid": "7883463", "title": "", "text": "F.Supp. at 824. However, the Court explicitly stated that § 284, with its language regarding interest as “fixed by the court,” leaves the court some discretion in awarding prejudgment interest. Devex, 461 U.S. at 656-57, 103 S.Ct. at 2062-63; see also Lmnmus Indus., 862 F.2d at 274; Bio-Rad, 807 F.2d at 967. As an example, the Court indicated that “it may be appropriate to limit prejudgment interest, or perhaps even deny it altogether, where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” Devex, 461 U.S. at 657, 103 S.Ct. at 2063; see also City of Milwaukee v. Cement Div. of Nat’l Gypsum Co., — U.S.-, 115 S.Ct. 2091, 2096, 132 L.Ed.2d 148 (1995) (citing Devex, 461 U.S. at 657, 103 S.Ct. at 2063) (“although we have never attempted to exhaustively catalogue the circumstances that will justify the denial interest, ... the most obvious example is the plaintiffs responsibility for ‘undue delay in prosecuting the lawsuit’”); Kalman v. Berlyn Corp., 914 F.2d 1473, 1486 (Fed.Cir.1990) (award of prejudgment interest is not an abuse of discretion where undue delay in prosecution was due to plaintiffs involvement in another patent infringement suit and defendant knew about this litigation and controlled and financed the third-party’s defense); Lummus Indus., 862 F.2d at 275 (limitation or denial of prejudgment interest because of plaintiffs undue delay in prosecuting his claim is the exception, not the rule; there must be prejudice to the defendant and no reasonable excuse for the unreasonable delay in order to limit or deny interest on this basis); Nickson Indus., 847 F.2d at 800; Bio-Rad, 807 F.2d at 967-68 (no undue delay present where plaintiff filed its complaint almost one year after defendant delivered its first infringing device, and less than eight months after termination of settlement negotiations); Radio Steel, 788 F.2d at 1558; Laitram Corp. v. Cambridge Wire, 785 F.2d 292, 295 (Fed.Cir.1986); Grain Processing Corp. v. American Maize Prods. Co., 893 F.Supp. 1386, 1396 (N.D.Ind.1995) (citing Milwaukee, 115 S.Ct. at 2096) (although a lengthy delay in resolving a case is not a reason to deny prejudgment interest," }, { "docid": "22844322", "title": "", "text": "the County’s lawyers failed to steer a straight course through rapidly changing legal currents. A related issue is whether the plaintiffs were entitled to prejudgment interest on the amounts awarded as back pay. Although the Age Discrimination in Employment Act is silent on the matter, we have held that the district judge has the discretion to award prejudgment interest or deny it. See Syvock v. Milwaukee Boiler Mfg. Co., supra, 665 F.2d at 162; see also Kelly v. American Standard, Inc., 640 F.2d 974, 982-83 (9th Cir.1981). The power to make such an award is derived by combining the statutory language empowering the court “to grant such legal or equitable relief as may be appropriate to effectuate the purposes of the” Act, 29 U.S.C. § 626(b), with the common law principle (on which see, e.g., General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 2060, 76 L.Ed.2d 211 (1983); Union Bank of Benton v. First National Bank, 677 F.2d 1074, 1077, 1079 (5th Cir.1982); Dobbs, Handbook on the Law of Remedies 165-66 (1973)) allowing prejudgment interest to be awarded where the obligation on which the defendant defaulted was a fixed sum. The obligation here was to pay the plaintiffs the wages to which they would have been contractually entitled if not forced to retire at 55. If liquidated damages had been awarded, it could be argued that an award of prejudgment interest would be duplicative. The Supreme Court held long ago that the liquidated-damages provision of section 216(b) is “compensation, not a penalty or punishment by the Government,” Overnight Motor Transport Co. v. Missel, 316 U.S. 572, 583, 62 S.Ct. 1216, 1223, 86 L.Ed. 1682 (1942), and this holding is still the law despite the subsequent enactment of section 260, Thompson v. Sawyer, 678 F.2d 257, 281 (D.C.Cir.1982). Among the items being compensated for is delay. Marshall v. Brunner, 668 F.2d 748, 753 (3d Cir.1982). Although these are cases under the Fair Labor Standards Act, their analysis seems applicable to the Age Employment in Discrimination Act. The only form of compensatory damages that the Act explicitly allows" }, { "docid": "23096603", "title": "", "text": "U.S. _, 107 S.Ct. 702, 706, 93 L.Ed.2d 639 (1987) (contractual debt); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983) (damages for infringement of patent). Money today is simply not a full substitute for the same sum that should have been paid some time ago. Prejudgment interest therefore must be an ordinary part of any award of back pay (or other incurred expense) under § 1981. “Ordinary” does not imply inevitable. Devex allowed that an award might be inappropriate at some times. See also Heritage Homes v. Seekonk Water District, 648 F.2d 761, 764 (1st Cir.1981) (the only other appellate case dealing with prejudgment interest under § 1981), vacated on other grounds, 454 U.S. 807, 102 S.Ct. 81, 70 L.Ed.2d 76, reaffirmed, 670 F.2d 1 (1982). Substantial, unexplained delay in filing suit might be such a reason, because delay shifts the investment risk to the defendant, allowing the plaintiff to recover interest without bearing the corresponding risk. Williamson, though, filed this suit in 1978. The size of the jury’s verdict may be another, if only the supposition that the jury has compensated plaintiff for the time value of money can explain the result. This verdict is not so large; it does not seem to cover even actual loss. There is one other reason why prejudgment interest may be denied — because “the amount of backpay is not readily determinable.” Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir.1984). Interest is not available on lost future wages and pensions; the time value of money is taken into account when these are discounted to present value. Only back pay and expenses incurred in the past may be augmented by prejudgment interest. Yet Williamson proposed a verdict form that lumped past and future wages together. The judge used the form Williamson proposed, and the jury returned a verdict that does not distinguish past and future sources of loss. The district judge did not rely on this when denying Williamson’s motion, but we must consider the implications of the general award" }, { "docid": "3924", "title": "", "text": "expressly sanctioned either by statute or under the common law. The City correctly notes that no statute resolves this issue. We turn, therefore, to the City’s spin on the common law. First, the City points out that in Devex Corp. v. General Motors Corp., 749 F.2d 1020, 1026 (3d Cir.1984), the Third Circuit concluded that “awarding interest on postjudgment interest would amount to the compounding of interest,” and was consequently unacceptable. Postjudgment interest, however, is governed by a federal statute, 28 U.S.C. § 1961; “prejudgment interest is governed by federal common law, and the courts are free to adopt a more discriminating approach.” Gorenstein, 874 F.2d at 437; see also 515 U.S. at 194, 115 S.Ct. 2091. It is, of course, settled in the case law that compounding of prejudgment interest is acceptable. See Amoco Cadiz, 954 F.2d at 1337; see also Knoll, supra, at 307-08. When prejudgment interest is compounded annually, after the first year annual interest is determined by multiplying the sum of the original damages and the interest accrued in previous years by the prevailing interest rate. Thus even the total award of interest through the settlement date must include “interest on interest” as well as interest on the settlement amount. In the case of prejudgment interest, if the compounding of prejudgment interest is acceptable, it follows by definition that “interest on interest” must be permissible. Next, the City claims that Cherokee Nation v. United States, 270 U.S. 476, 490, 46 S.Ct. 428, 70 L.Ed. 694 (1926), established that unpaid interest is not damages. That conclusion, however, was confined “to interest against the United States” in a contract dispute. Id. And the holding of Royal In demnity Co. v. United States, 313 U.S. 289, 295, 61 S.Ct. 995, 85 L.Ed. 1361 (1941), is not that “interest on interest is not an appropriate measure of damages for the delayed payment of interest alone,” Br. of Def.-Appellant 48; actually, the Supreme Court rejected a lower court decision that had denied the recovery of interest “as damages for delayed payment of a contractual obligation to the United States.” 313 U.S." }, { "docid": "2224566", "title": "", "text": "18 U.S.C. § 3663A, follows the common law in this respect. Section 3663A(b), which specifies the amount of restitution, provides in part: The order of restitution shall require that such defendant— (1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense— (A) return the property to the owner of the property or someone designated by the owner; or (B) if return of the property under subparagraph (A) is impossible, impracticable, or inadequate, pay an amount equal to'— (i) the greater of— (I) the value of the property on the date of the damage, loss, or destruction; or (II) the value of the property on the date of sentencing, less (ii) the value (as of the date the property is returned) of any part of the property that is returned; ... and (4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. Eileen and Everett took Neely’s money, and return of the same number of dollars would be “inadequate” for purposes of § 3663A(b)(l)(A) because the money came from an interest-bearing account. Restitution should include interest to make up for the loss of the funds’ capacity to grow. See, e.g., Milwaukee v. Cement Division of National Gypsum Co., 515 U.S. 189, 195, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995) (“The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss”); In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1311-35 (7th Cir.1992) (interest should be computed at the rate the defendant would have had to pay for unsecured credit). This sends us to § 3663A(b)(1)(B)(i)(II) which calls for restitution of value on the date of sentencing, a value that includes prejudgment interest. Neely’s estate did not incur any child care, transportation, or other expenses while assisting prosecution, so the presumptive restitution award remains $92,000 (plus interest, a detail that to" }, { "docid": "23096602", "title": "", "text": "taxes.) A return of 15%, which was available on many investments, would have produced $38,286.87 in the same period. The increase substantially exceeds the 1.67 multiplier produced by the punitive damages. Handy Button had Williamson's money during these ten years and has been able to earn the market return. If Handy Button can turn over only $9,436.93, it has made a tidy profit on the arrangement. The effect of prejudgment interest on the wages for later years is less, but still significant. We have held that prejudgment interest is part of full compensation under other statutes, necessary to carry out the federal policies of compensation and deterrence. E.g., City of Chicago v. Department of Labor, 753 F.2d 606, 608 (7th Cir.1985) (Comprehensive Employment and Training Act); Heiar v. Crawford County, 746 F.2d 1190, 1200 (7th Cir.1984) (ADEA); Myron v. Chicoine, 678 F.2d 727, 733-34 (7th Cir.1982) (Commodities Exchange Act). Twice in the last four years, the Supreme Court has held that “[pjrejudgment interest is an element of complete compensation”. West Virginia v. United States, _ U.S. _, 107 S.Ct. 702, 706, 93 L.Ed.2d 639 (1987) (contractual debt); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983) (damages for infringement of patent). Money today is simply not a full substitute for the same sum that should have been paid some time ago. Prejudgment interest therefore must be an ordinary part of any award of back pay (or other incurred expense) under § 1981. “Ordinary” does not imply inevitable. Devex allowed that an award might be inappropriate at some times. See also Heritage Homes v. Seekonk Water District, 648 F.2d 761, 764 (1st Cir.1981) (the only other appellate case dealing with prejudgment interest under § 1981), vacated on other grounds, 454 U.S. 807, 102 S.Ct. 81, 70 L.Ed.2d 76, reaffirmed, 670 F.2d 1 (1982). Substantial, unexplained delay in filing suit might be such a reason, because delay shifts the investment risk to the defendant, allowing the plaintiff to recover interest without bearing the corresponding risk. Williamson, though, filed this suit in 1978. The" }, { "docid": "3913", "title": "", "text": "CUDAHY, Circuit Judge. On December 4, 1992 (the settlement date), the defendant paid the plaintiffs $1,677,541.86 (the settlement amount) to settle, in part, a lawsuit. The suit involved the defendant’s liability for the sinking of a ship owned by one of the plaintiffs and insured by the others. The settlement left open only the extent of the defendant’s liability for prejudgment interest on the judgment. There was a difference of opinion whether prejudgment interest should be awarded at all, but that has been straightened out. See City of Milwaukee v. Cement Div., National Gypsum Co., 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995), aff'g 31 F.3d 581 (7th Cir.1994). Now the question is simply how much prejudgment interest the defendant must pay. I. The district court for the Eastern District of Wisconsin awarded the plaintiffs prejudgment interest on the settlement amount at “the prime rate for the period from the date of the injury (December 24, 1979) through the date of the entry of judgment, which will occur on January 31, 1997, compounded annually.” 950 F.Supp. 904, 912 (E.D.Wis.1996). The bottom line: $6,497,641 in prejudgment interest. The City had advocated the use of its own borrowing rate (a municipal rate) rather than the prime rate. This approach would have reduced the award significantly. In selecting the prime rate over a lower municipal rate, the district court was guided by the Supreme Court’s reasoning in affirming this court’s earlier decision that these plaintiffs were entitled to prejudgment interest. According to the Supreme Court, the purpose of awarding prejudgment interest is to make the plaintiff whole: “The essential rationale for awarding prejudgment interest is to ensure that the injured party is fully compensated for its loss.” 515 U.S. at 195, 115 S.Ct. 2091 (footnote omitted). The district court concluded that an award based on a rate applicable to municipal debt would not fully compensate the plaintiffs, because their cost of funds was higher. In fact National Gypsum’s cost of funds exceeded the prime rate, but the district court considered the prime rate appropriate because of the City’s favorable credit rating—which" }, { "docid": "21094795", "title": "", "text": "litigation proceeds, then use the interest they receive to satisfy the obligation. Delay is a reason to award interest, not to avoid interest; the longer the case lasts, the more of the stakes the defendant keeps even if it loses (and the less the victorious plaintiff receives), unless interest is added. Milwaukee v. Cement Division of National Gypsum Co., 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995); In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1331-35 (7th Cir.1992). Gratuitous delay by the party seeking the award — delay that injures the other side by forcing it to act as an uncompensated trustee or investment manager— might be a reason to limit an award of interest. See Cement Division, 515 U.S. at-, 115 S.Ct. at 2096. But the delay here is attributable to the judicial branch, and its effect is neutral between the parties. Unfortunate though it is that this ease has lasted as long as the Amoco Cadiz litigation (which involved litigants from four continents and hundreds of millions of dollars in claims), an award of prejudgment interest still restores the parties to the positions they would have occupied had this case concluded in the 1980s rather than the 1990s. Affirmed." }, { "docid": "7399498", "title": "", "text": "Milwaukee v. Cement Div. Nat’l Gypsum Co., 515 U.S. 189, 195, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995) (“The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss.”). The Board argues that prejudgment interest is not appropriate in this case because it made a reasonable effort to settle plaintiffs’ attorneys’ fees request and because there is no evidence of bad faith on the part of the Board. “Good faith” does not, however, “mitigate[ ] a losing party’s obligation to pay the appropriate measure of prejudgment interest.” See First Nat’l Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir.1999). Because the purpose of prejudgment interest is to compensate for the time value of money, not to punish a particular party, the Board’s good conduct cannot excuse its obligation to pay prejudgment interest. See M., 2010 WL 2698285 at *8 (citing First Nat’l Bank of Chicago, 172 F.3d at 480-81). In its discretion, the Court finds that prejudgment interest is appropriate here in order to fully compensate Plaintiffs’ counsel for the delay in payment of their fees. See id. (awarding prejudgment interest in an IDEA attorneys’ fees case under an identical rationale); see also Stephanie J. v. Board, No. 10-1359, slip op. at 9-10 (N.D.Ill. July 30, 2010) (Conlon, J.) (finding prejudgment interest appropriate under the IDEA “to correct attorney’s fee awards for the time value of money”). Because the IDEA provides no statutory interest rate, the Court uses the average prime rate for the time period to award prejudgment interest. See First Nat’l Bank of Chicago, 172 F.3d at 480 (“Our practice has been to use the prime rate as the benchmark for prejudgment interest unless either there is a statutorily defined rate or the district court engages in ‘refined rate-setting’ directed at determining a more accurate market rate for interest.”). The Board also contends that if prejudgment interest is awarded, it should only accrue from October 26, 2009, the date that Plaintiffs filed their federal Complaint in this case. Because the Board provides no legal" }, { "docid": "12663223", "title": "", "text": "granted in infringers’-profits cases; and that in any event it should not have begun to accumulate in this case until Graham had actually discovered the infringement. A Although Congress has not enacted express statutory authorization for prejudgment interest, see S. Rep. 97-275, at 1112,1982 U.S.C.C.A.N. 11 (1981); Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 339 n. 8, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988), its silence is of no moment. “Far from indicating a legislative determination that prejudgment interest should not be awarded, ... the absence of a statute merely indicates that the question is governed by traditional judge-made principles.” City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 194, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995). Similarly, the fact that Congress amended the Patent Act in 1946 to provide for prejudgment interest, see 35 U.S.C. § 284, says nothing about how we should interpret the Copyright Act. Although patents are analogous to copyrights, the fact is that the Patent Act amendment was a direct reaction to a series of cases requiring exceptional circumstances for an award of prejudgment interest covering the period of time preceding liquidation of damages. See GM Corp. v. Devex Corp., 461 U.S. 648, 651-53,103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). There is no analogous line of decisions in the copyright context, and therefore no reason for Congress to have amended the Copyright Act in response to a perceived problem in its judicial interpretation. In point of fact, this court’s precedents indicate that congressional silence favors permitting prejudgment interest awards. It is a “long-standing” rule of our federal common law that, “in the absence of an explicit statutory command otherwise, district courts have broad discretion to award prejudgment interest on a judgment obtained pursuant to a federal statute.” Skretvedt v. E.I. DuPont de Nemours, 372 F.3d 193, 205-06 (3d Cir.2004); see also Pignataro v. Port Auth., 593 F.3d 265, 273-74 (3d Cir.2010) (affirming this rule and indicating that interest “should be awarded based on considerations of fairness”). Of course, when the federal courts engage in the development of gap-filling common law," }, { "docid": "22860904", "title": "", "text": "I do not understand the majority’s rather expansive treatment of the prejudgment interest issue as constitut ing a departure from the settled law of the circuit that “the decision to award prejudgment interest rests in the sound discretion of the adjudicatory tribunal and involves a balancing of the equities between the parties under the circumstances of the particular case.” Myron v. Chicoine, 678 F.2d 727, 734 (7th Cir.1982). In exercising that discretion, the district court must give its prime attention to the intent of Congress in enacting the substantive statutory provision at issue. Therefore, prejudgment interest usually will be “necessary to carry out the federal policies of compensation and deterrence.” Williamson v. Handy Button Mach. Co., 817 F.2d 1290, 1297 (7th Cir.1987). On the other hand, “ ‘[ordinary’ does not imply inevitable,” id., and, as the Supreme Court pointed out in General Motors Corp. v. Devex Corp., 461 U.S. 648, 656-57, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983), prejudgment interest might be inappropriate at some times. See also Osterneck v. Ernst & Whinney, — U.S. -, 109 S.Ct. 987, 991 & n. 2, 103 L.Ed.2d 146 (1989) (noting that, in a federal securities action, a district court will consider a number of factors in determining the appropriateness of prejudgment interest). As our court pointed out in Williamson, “[substantial, unexplained delay in filing suit might be ... a reason [making prejudgment interest inappropriate], because delay shifts the investment risk to the defendant, allowing the plaintiff to recover interest without bearing the corresponding risk.” Williamson, 817 F.2d at 1298. A jury verdict that already compensates the plaintiff for the lost time value of money would also be an appropriate exception. Id. The majority “suggests],” ante at 436-437, that district courts use the prime rate for fixing prejudgment interest where there is no statutory interest rate. Use of the prime interest rate, at least as a starting point, is a sensible approach. “Courts have increasingly looked to the prevailing interest rate ... as [an] indicator of just compensation.” Central Rivers Towing, Inc. v. City of Beardstown, 750 F.2d 565, 574 (7th Cir.1985)." }, { "docid": "16812198", "title": "", "text": "not have been awarded as he was more than $80,000, a figure equal to 40 percent of Part-ington’s total recovery, including back pay, front pay, prejudgment interest, and the attorney’s fees. The issue, however, is not whether Partington could have done even better, but whether his expenditure on attorney’s fees was reasonable in relation to the difficulty, stakes, and outcome of the case. Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir.1988); Lenard v. Argento, supra, 808 F.2d at 1247. A lawyer who figures out the likeliest outcome in his favor, and aims only for that, is likely to fall short. The good lawyer aims higher, and is not improvident to do so. Broyhill does not so much as argue that Partington could have spent less without jeopardizing his prospects for winning what he did win, or that some of the attorney’s fees that he incurred were incurred in a quixotic effort to establish willfulness. Broyhill argues that the judge should not have awarded prejudgment interest, because it was a close case. We disagree. Money has a time value, and prejudgment interest is therefore necessary in the ordinary case to compensate a plaintiff fully for a loss suffered at time t and not compensated until t + 1, 2, 3 ... n. It is presumptively available in suits under federal law, In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1331 (7th Cir.1992) (per curiam); Gorenstein Enterprises, Inc. v. Quality Care-USA Inc., 874 F.2d 431, 436 (7th Cir.1989), including suits under the age discrimination law unless liquidated or punitive damages are also awarded, Fortino v. Quasar Co., supra, 950 F.2d at 397-98, as they were not here, however. Broyhill argues that the plaintiff ought to be required to prove that he either had to borrow money during the prejudgment period, and therefore incurred an out of pocket interest cost, or would have invested the award of back and front pay, and therefore incurred an opportunity cost. Again we disagree. Because of litigation delay," }, { "docid": "14568663", "title": "", "text": "this Court will apply that rate. The parties disagree, however, as to the daté from which prejudgment interest should begin accruing and as to whether there, should be simple or compound interest. AT & T contends that the prejudgment interest should run from November 12, 1988, the date when payment for the charges became due. Jiffy Lube argues that the prejudgment interest should run from September 12, 1990, the date AT & T filed its complaint in this case. AT & T asserts that the prejudgment interest should be compounded annually; Jiffy Lube contends that the prejudgment interest should be simple interest. The prejudgment interest should begin running from November 12, 1988, the date payment for the charges became due, and should be calculated upon a compound interest basis for the same reasons that prejudgment interest should be awarded in the first instance. “Prejudgment interest is an element of complete compensation.” West Virginia v. United States, 479 U.S. 305, 310, 107 S.Ct. 702, 706, 93 L.Ed.2d 639, 646 (1987). “Money today is not a full substitute for the same sum that should have been paid years ago. Prejudgment interest therefore is an ordinary part of any award under federal law.” Matter of Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1331 (7th Cir.1992). The award of prejudgment interest is necessary in this case for two reasons: 1) to put the parties in a position as near as possible to that which they would have occupied had Jiffy Lube paid the subject bill on time, and 2) to treat all customers under the Tariff impartially. The Communication Act expresses the policy that customers should be treated without preference. See 47 U.S.C. § 202(a). Moreover, “ ‘[wjaiver of prejudgment interest would confer on those who delay payment of the balance due an advantage over [those] who meet their obligations promptly.’ ” Coliseum Cartage Co. v. Rubbermaid Statesville, 975 F.2d 1022, 1026 (4th Cir.1992), quoting Consolidated Rail Corp. v. Certainteed Corp., 835 F.2d 474, 478 (3d Cir.1987). In this instance, waiver of prejudgment interest would give Jiffy Lube the benefit of the" } ]

[ { "docid": "16213830", "title": "", "text": "dismiss, courts now look to the sequence of filing to determine whether any other eouit action was pending at the time the plaintiff filed suit in the Court of Federal Claims. Cases such as Keene, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118, and United States v. County of Cook, Illinois, 170 F.3d 1084 (Fed.Cir.1999), hold that the Court of Federal Claims lacks subject matter jurisdiction if the same suit was pending in another court or filed simultaneously with a suit filed in the Court of Federal Claims. This interpretation can result in a plaintiff forfeiting its claim and having no place for the merits to be heard, as it did for Lan-Dale. Thus, a plaintiff may lose its right to be heard on the merits in the Court of Federal Claims, even if the Court of Federal Claims is the only court in which the suit could have been brought. This was not the intention of Congress when it enacted 28 U.S.C. § 1500 in 1868. In the aftermath of Keene and County of Cook, our Court has analyzed 28 U.S.C. § 1500 in abundant detail, searching for ways to apply an awkward statute in a reasonable fashion. See Griffin, 85 Fed.Cl. 179 (Allegra, J.); Nez Perce Tribe, 83 Fed.Cl. 186 (Lettow, J.); Passamaquoddy Tribe, 82 Fed.Cl. 256 (Bush, J.) (on appeal); Ak-Chin Indian Community v. United States, 80 Fed.Cl. 305 (2008) (Hewitt, J.). As Judge Allegra noted in Griffin, a plaintiff who files on Monday in a district court and on Tuesday in the Court of Federal Claims will have its suit dismissed, whereas if the order of filing is reversed, “all is jurisdictionally well.” Griffin, 85 Fed.Cl. at 181-82. In the latter example, the separate eases may go forward even though the plaintiff most assuredly is running contrary to the intent of 28 U.S.C. § 1500 by pursuing two similar actions against the United States in two different courts. To be sure, Lan-Dale’s former counsel made “a disastrous procedural error” in filing the two lawsuits simultaneously in different courts, in apparent ignorance of 28 U.S.C. §" } ]

[ { "docid": "3341026", "title": "", "text": "such discriminatory taxation.”). After the Seventh Circuit’s decision in Hynes, and after continued non-payment of the taxes, Cook County amended its pleadings in a related state court action to seek the issuance of tax deeds on- the buildings in order to facilitate their sale. This prompted the United States to file the instant action in the Northern District of Illinois. This action sought declaratory and injunctive relief to prohibit the foreclosure sales of the buildings, and also sought a declaration that the United States is not liable for interest and penalties incurred with respect to the unpaid taxes. Cook County filed a counterclaim constituting five separate counts, four of which are relevant here. Count II sought taxes for tax years 1985-93, with interest. Count III sought “just compensation” and alleged that the United States’ “repudiation” of its obligation to pay its taxes in 1985-93 constituted a taking actionable under the Fifth Amendment; this count also sought interest. Counts IV and V were largely duplicative of counts II and III, respectively, except that they applied to tax years 1977-84. Both parties moved for summary judgment. See United States v. County of Cook, Illinois, No. 94-C-7068 (N.D.Ill. Sept. 30, 1997). The district court, inter alia, granted the United States’ motion for summary judgment and in the process dismissed all of Cook County’s counterclaims, reasoning that Cook County could not assert counterclaims against the United States in district court without violating principles of sovereign immunity. See id. at 28-29 (citing United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940) and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940)); United States Fidelity & Guaranty, 309 U.S. at 512, 60 S.Ct. 653 (“In [Shaw ] we hold that cross-claims against the United States are justiciable only in those courts where Congress has consented to their consideration.”). The court also granted the United States the declaratory and injunctive relief it sought, holding that § 602a did not waive the United States’ sovereign immunity against state foreclosure sales or penalties and" }, { "docid": "2316491", "title": "", "text": "responding to the decision of the court to deny panel rehearing and rehearing en banc. 1. Sometimes counsel for a litigant, unfamiliar with the intricacies and complexities of federal jurisdiction, will file a complaint in district court with multiple counts, one or more of which properly belong in a different trial court, such as the United States Court of Federal Claims. Congress has provided in 28 U.S.C. § 1631 for such situations by authorizing the district court simply to transfer the misfiled count to the appropriate court; the receiving court is to treat the count as if it had been filed there originally. That was the situation in this case. Unfortunately, in this case the receiving court, the Court of Federal Claims, confronted our jurisprudence on 28 U.S.C. § 1500. Section 1500 was enacted in 1868 to prevent litigants from suing the government in two different capacities in different courts for the same cause of action. In its current iteration, the statute bars the Court of Federal Claims from having jurisdiction over any claim “pending in any other court.” Due to the evolving law of pleading and jurisdiction, including doctrines such as res judicata and collateral estoppel, § 1500 has long outlived its purpose, and has been described many times as now being little more than a “trap for the unwary.” In United States v. County of Cook, this court interpreted § 1500 in a way that unnecessarily widened the trap. Ms. Griffin’s case illustrates the nature of the trap, and presented us with an opportunity to correct the unjust error in our precedent that we created in County of Cook. Ms. Griffin filed suit in federal district court against her employer, the U.S. Army Reserve Command, asserting separate claims under the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. The district court granted summary judgment for the Government on the Title VII claim. On the EPA claim the district court identified a material factual dispute warranting trial. Because the EPA claim sought more than $10,000 in damages, depriving the district court of Tucker" }, { "docid": "3341030", "title": "", "text": "of § 1500 at the time of the transfer. Cook County responds that the transfer order did not “bifurcate” the case because non-transferred Counts II and IV had been dismissed. Cook County therefore contends in effect that its “civil action” had been narrowed to include only those claims that were transferred, and that the transfer was in compliance with the statute. Cook County responds further that § 1500 is inapplicable in assessing the propriety of a transfer under § 1631, and, regardless, that § 1500 does not preclude jurisdiction because transferred Counts III and V seek a different remedy from non-transferred Counts II and IV. A. 28 U.S.C. § 1631 We address the United States’ § 1631 argument first. That section states in relevant part as follows: Transfer to cure want of jurisdiction: Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed ..., and the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred. 28 U.S.C. § 1631 (1994). Whether § 1631 permits a court to transfer some but not all claims in a “civil action” is an issue that has not been uniformly resolved by the circuit courts. The Court of Appeals for the District of Columbia has interpreted § 1631 according to its plain language to authorize only the transfer of an entire action, not individual claims within an action. See Hill v. United States Air Force, 795 F.2d 1067, 1070 (D.C.Cir.1986) (“Section 1631 directs a court to transfer an ‘action’ over which it lacks jurisdiction, rather than an individual claim.”). In contrast, the Court of Appeals for the Tenth Circuit has concluded that § 1631 allows for the transfer of some claims" }, { "docid": "15243383", "title": "", "text": "time they were filed in the transferor court.”) with Harbuck v. United States, 378 F.3d 1324, 1328 (Fed.Cir. 2004) (“Thus, under § 1631, [the plaintiffs transferred] claim was deemed filed in the Court of Federal Claims on the same day on which she originally filed that claim as one of the three counts of her district court complaint.”). As shown in Harbuck, issued after Breneman, the language concerning the time of filing in County of Cook, as it might relate to any simultaneous filing scenario, refers to the day of filing rather than any time of day. Cf. Wilson v. United States, 32 Fed.Cl. 794, 795-96 (1995) (noting that “[t]he date for determining jurisdiction is the date on which plaintiffs filed their complaint in the Court of Federal Claims” and dismissing a suit pursuant to § 1500 because a notice of appeal had been filed on the same day as the suit in this court). Third, even if the court were to accept the premise that County of Cook, because of its focus on § 1631, is somehow distinguishable from cases involving other types of same-day filings, the court is nonetheless bound by the statutory interpretation of § 1500 presented in County of Cook. See Crowley v. United States, 398 F.3d 1329, 1335 (Fed.Cir.2005) (instructing this court to follow “the prece-dential and authoritative [statutory] analysis of a reviewing appellate court”). The statutory interpretation in County of Cook embraces two concepts: forcing plaintiffs to choose a forum for a particular claim, and protecting the United States from duplica-tive, simultaneous litigation. 170 F.3d at 1090-91. At the same time, County of Cook clearly stated that the Tecon rule did not apply to simultaneous filing situations. Id. at 1090. Given the purpose of the statute, the inapplicability of the Tecon rule exempting later-filed eases from the jurisdictional bar, and a long history of dismissals of suits involving same-day filings, this court is constrained to interpret County of Cook as stating a rule of law which applies § 1500 to same-day filings of the same claim in two courts, regardless of the order of" }, { "docid": "15847426", "title": "", "text": "88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968)), and neither expanded nor contracted to reflect policy preferences that may or may not have led to their enactment. The interpretation accorded Section 1500 in County of Cook creates a significant trap for the unwary. In factual circumstances where jurisdiction might be split between a district court and this court, the operation of Section 1500 as interpreted in County of Cook could entirely bar a cause of action from being heard. First, when a complaint is filed in the district court and then suit is brought in this court on the same operative facts, this court is divested of subject matter jurisdiction and must dismiss the claim. That result is dictated by the express terms of Section 1500. Second, where only one complaint is filed in district court based upon a single set of operative facts but jurisdiction respecting one or more counts of that complaint rests with this court, the simultaneous filing rule of County of Cook also divests this court of subject matter jurisdiction when the district court transfers one or some of those counts to this court pursuant to Section 1631. County of Cook, 170 F.3d at 1091. This outcome is not derived from Section 1500 itself but rather is an artifact of the simultaneous-filing interpretation of County of Cook. Third, the only safe alternative for a plaintiff is to file first in this court, and thereafter to file in district court. See Tecon Eng'rs, Inc., 343 F.2d at 949. The transfer provisions of Section 1631 were enacted to cure jurisdictional defects, but County of Cook disables that cure by superimposing a policy-based interpretation of Section 1500. Nonetheless, this court is bound by the County of Cook precedent and will faithfully follow and apply it. . Among other things, County of Cook held that 28 U.S.C. § 1631 \"permit[s] the transfer of less than all of the claims in an action,\" 170 F.3d at 1089, while recognizing that courts of appeals had split on the issue. Id. at 1087-88. Compare Hill v. United States Air Force, 795 F.2d 1067, 1070" }, { "docid": "16266326", "title": "", "text": "provision require this court to treat the transferred claim “as if it had been filed ... on the date upon which it was actually filed in ... the court from which it is transferred.” 28 U.S.C. § 1631. By operation of this provision, the EPA claim transferred by the district court to this court and those claims decided by the district court are deemed to have been filed concurrently because they were part of the same complaint, originally filed in the district court. In similar circumstances, the Federal Circuit has held that transferred and non-transferred claims be treated, for purposes of section 1500, as being filed “simultaneously,” that is, at exactly the same time. See County of Cook, 170 F.3d at 1090; see also d’Abrera, 78 Fed.Cl. at 56. But, does that mean that the district court action here should be deemed “pending” at the time the transferred claim was filed, so as to trigger section 1500? Tecon Engineers v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), would suggest otherwise. The Court of Claims there concluded that “the only reasonable interpretation of [section 1500] is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending, in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court.” Id. at 949 (emphasis added). The Federal Circuit repudiated Tecon in its era banc decision in UNR Indus. Inc. v. United States, 962 F.2d 1013 (Fed.Cir.1992). But, when the latter decision was affirmed, sub nom., by the Supreme Court in Keene, the Supreme Court found it “unnecessary” to consider Tecon. Keene, 508 U.S. at 216, 113 S.Ct. 2035. Thereafter, in Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed.Cir.1995), the Federal Circuit declared unequivocally that “Tecon Engineers remains good law and binding on this court.” See also Nez Perce Tribe, 83 Fed.Cl. at 190. Under Tecon," }, { "docid": "3341045", "title": "", "text": "under a contractual theory. In both courts plaintiff sought a money judgment. The Court of Claims held that § 1500 barred the claim before it. It made no difference that the two suits were based on different theories; the plaintiff had only one claim for money based on the same set of facts. Loveladies, 27 F.3d at 1551; see also Keene, 508 U.S. at 213-14, 113 S.Ct. 2035 (rejecting the notion that only claims presenting the same legal theory were within the scope of § 1500’s jurisdictional bar: “[T]his reinterpretation ... would ... render[ ] the statute useless, in all or nearly all instances, to [a]ffect the very object it was originally enacted to accomplish.”). The facts of British American Tobacco are analogous to those before us and warrant the conclusion that Cook County’s Counts II and III (and Counts IV and V) are the same “claim” for purposes of § 1500. Both counts clearly arise out of the same operative facts, and both counts seek the same relief — money with interest, albeit under different theories (tax law versus á Fifth Amendment takings theory). Because the non-transferred district court claims were “pending” at the time that the action on the transferred claims was effectively filed in the Court of Federal Claims, and because those claims were the same for purposes of § 1500, that statute precluded jurisdiction over the transferred claims in the Court of Federal Claims. The district court therefore erred in ordering the transfer of Counts III and V to the Court of Federal Claims. CONCLUSION The district court erred in transferring Counts III and V to the Court of Federal Claims because 28 U.S.C. § 1500 precluded jurisdiction over those claims given the pen-dency of Counts II and IV before the district court. Accordingly, the decision of the district court is REVERSED. .Count I sought payment of the principal amount owing for tax years 1985-93. The United States paid this money into escrow in the district court. As stated by Cook County, this payment \"mooted\" Count 1. Cook County's Brief at 9. . The escrow payment" }, { "docid": "16301600", "title": "", "text": "2013, the parties shall file a joint status report indicating how this case should proceed, with a proposed schedule. The status report shall reference with specificity the issues that this court must address in response to the Federal Circuit’s remand decision, and jointly propose a proper procedural course for dealing with those issues. IT IS SO ORDERED. . See, e.g., Lower Brule Sioux Tribe v. United States, 102 Fed.Cl. 421, 424 n. 4 (2011); Griffin v. United States, 85 Fed.Cl. 179, 181 (2008), aff'd, 590 F.3d 1291 (Fed.Cir.2009); Nat'l Union Fire Ins. Co. v. United States, 19 Cl.Ct. 188, 190 (1989); Dwyer v. United States, 7 Cl.Ct. 565, 567 (1985); A.C. Seeman, Inc. v. United States, 5 Cl.Ct. 386, 389 (1984); see also Keene Corp. v. United States, 508 U.S. 200, 217, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (\"The trial judge in this case was not the first to call this statute anachronistic.”); Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256, 262 (2008), aff'd, 426 Fed.Appx. 916 (Fed.Cir.2011) (\"The jurisdictional bar in § 1500 has been much criticized for being an awkward tool that has outlived its original purpose.”); see generally Griffin v. United States, 621 F.3d 1363, 1366 (Fed.Cir.2010) (Plager, J., dissenting from denial of petition for rehearing); Eric C. Bruggink, \"A Modest Proposal,” 28 Pub. Cont. L.J. 529, 539 (1999) (“Section 1500 remains something of a judicial coelacanth, still swimming around despite its Civil War era rationale.”); David Schwartz, \"Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents,” 55 Geo. L.J. 573 (1967) (hereinafter “Schwartz”). . See, e.g., Low v. United States, 90 Fed.Cl. 447, 455 (2009); Berry v. United States, 86 Fed.Cl. 24, 29 (2009); Lan-Dale Co. v. United States, 85 Fed.Cl. 431, 433 (2009); Griffin, 85 Fed.Cl. at 181; d’Abrera v. United States, 78 Fed.Cl. 51, 56 n. 10 (2007); Vaizburd v. United States, 46 Fed.Cl. 309, 309-10 (2000); see also Emily S. Bremer & Jonathan R. Siegel, \"Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500,\" 65 Ala. L.Rev. 1, 37-38 (2013) (hereinafter “Bremer" }, { "docid": "3341028", "title": "", "text": "interest accruing on taxes payable thereunder. See United States v. County of Cook, Illinois, No. 94-C-7068, at 22-27 (N.D.Ill. Sept.30, 1997). Cook County thereafter moved the district court to amend its judgment and to transfer Counts III and V to the Court of Federal Claims pursuant to 28 U.S.C. § 1631 (1994). The district court granted Cook County’s request to transfer and otherwise reaffirmed the summary judgment for the United States on its claims and on the counterclaims that were not transferred. See United States v. County of Cook, Illinois, No. 94-C-7068, at 3 (N.D.Ill. Nov. 14, 1997). Cook County later appealed the entry of summary judgment against it to the Seventh Circuit, which reversed and reinstated Cook’s claims. See United States v. County of Cook, Illinois, 167 F.3d 381 (7th Cir.1999). The only issue before this court is the propriety of the district court’s transfer order. We have jurisdiction to review this order pursuant to 28 U.S.C. § 1292(d)(4)(A) (1994). DISCUSSION “We review a district court’s decision to transfer a case to the Court of Federal Claims de novo because it is jurisdictional.” James v. Caldera, 159 F.3d 573, 578 (Fed.Cir.1998) (citing Benderson Dev. Co. v. United States Postal Serv., 998 F.2d 959, 962 (Fed.Cir.1993)). The United States contends that the district court erred in transferring to the Court of Federal Claims Counts III and V of Cook County’s counterclaim, and it makes two arguments in support of this contention. The United States first argues that 28 U.S.C. § 1631 (1994) only authorizes the transfer of an entire “civil action,” not less than all of the claims of an action. In the alternative, the United States argues that, even if “bifurcation” of the claims in a civil action is permissible under 4F 1631, jurisdiction in the Court of Federal Claims over the transferred claims is still barred under 28 U.S.C. § 1500 (1994). This second argument relies on the fact that non-transferred Counts II and IV, which the United States asserts are no different in substance from transferred Counts III and V, were “pending” in another court for purposes" }, { "docid": "16266327", "title": "", "text": "86 S.Ct. 545, 15 L.Ed.2d 468 (1966), would suggest otherwise. The Court of Claims there concluded that “the only reasonable interpretation of [section 1500] is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending, in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court.” Id. at 949 (emphasis added). The Federal Circuit repudiated Tecon in its era banc decision in UNR Indus. Inc. v. United States, 962 F.2d 1013 (Fed.Cir.1992). But, when the latter decision was affirmed, sub nom., by the Supreme Court in Keene, the Supreme Court found it “unnecessary” to consider Tecon. Keene, 508 U.S. at 216, 113 S.Ct. 2035. Thereafter, in Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed.Cir.1995), the Federal Circuit declared unequivocally that “Tecon Engineers remains good law and binding on this court.” See also Nez Perce Tribe, 83 Fed.Cl. at 190. Under Tecon, the simultaneous filing of claims in the district court and this court seemingly would not trigger section 1500 as the former would not be “before” the latter. The Federal Circuit, however, has twice reached the opposite conclusion — in County of Cook and Harbuck v. United States, 378 F.3d 1324, 1328 (Fed.Cir.2004). In both cases, a plaintiff originally filed a complaint against the United States in district court. And, in each, the district court transferred some, but not all, of the claims from the original complaint to this court under section 1631. In County of Cook, the Federal Circuit quoted the above language from Tecon but held that the facts in that case, which did not involve simultaneously-filed claims, rendered the quotation “dictum with respect to the simultaneous filing issue.” 170 F.3d at 1090. “Finding neither the language of the statute nor the legislative history enlightening,” the Federal Circuit relied instead upon the “established policies of § 1500,” which it described as forcing plaintiffs to choose between pursuing their claims in this court or another" }, { "docid": "3341025", "title": "", "text": "(7th Cir.1994) (en banc). In response to the Seventh Circuit’s decision and in light of § 602a(d), the Illinois legislature in 1984 amended its statute to permit taxation when the “governmental body has permitted itself’ to be taxed. See Ill.Rev.Stat. ch. 120, ¶ 500.9a (West 1992) (now codified at 35 Ill. Comp. Stat. 205/19.9a). Cook County thereafter assessed taxes against the buildings for certain tax years subsequent to 1984. The United States again filed suit, seeking a declaration that the amended statute was unconstitutional under the Supremacy Clause. The Seventh Circuit, sitting en banc, disagreed with the United States and held that the taxes had been constitutionally levied under the amended statute, in the process overruling a portion of the earlier panel’s decision. See United States v. Hynes, 20 F.3d 1437, 1441 (7th Cir.1994) (en banc) (“We therefore overrule County of Cook to the extent that taxing federal § 602a property while exempting similar property of state and local governmental bodies would be unconstitutionally discriminatory and that § 602a(d) is not a sufficient consent to such discriminatory taxation.”). After the Seventh Circuit’s decision in Hynes, and after continued non-payment of the taxes, Cook County amended its pleadings in a related state court action to seek the issuance of tax deeds on- the buildings in order to facilitate their sale. This prompted the United States to file the instant action in the Northern District of Illinois. This action sought declaratory and injunctive relief to prohibit the foreclosure sales of the buildings, and also sought a declaration that the United States is not liable for interest and penalties incurred with respect to the unpaid taxes. Cook County filed a counterclaim constituting five separate counts, four of which are relevant here. Count II sought taxes for tax years 1985-93, with interest. Count III sought “just compensation” and alleged that the United States’ “repudiation” of its obligation to pay its taxes in 1985-93 constituted a taking actionable under the Fifth Amendment; this count also sought interest. Counts IV and V were largely duplicative of counts II and III, respectively, except that they applied to" }, { "docid": "16301601", "title": "", "text": "has been much criticized for being an awkward tool that has outlived its original purpose.”); see generally Griffin v. United States, 621 F.3d 1363, 1366 (Fed.Cir.2010) (Plager, J., dissenting from denial of petition for rehearing); Eric C. Bruggink, \"A Modest Proposal,” 28 Pub. Cont. L.J. 529, 539 (1999) (“Section 1500 remains something of a judicial coelacanth, still swimming around despite its Civil War era rationale.”); David Schwartz, \"Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents,” 55 Geo. L.J. 573 (1967) (hereinafter “Schwartz”). . See, e.g., Low v. United States, 90 Fed.Cl. 447, 455 (2009); Berry v. United States, 86 Fed.Cl. 24, 29 (2009); Lan-Dale Co. v. United States, 85 Fed.Cl. 431, 433 (2009); Griffin, 85 Fed.Cl. at 181; d’Abrera v. United States, 78 Fed.Cl. 51, 56 n. 10 (2007); Vaizburd v. United States, 46 Fed.Cl. 309, 309-10 (2000); see also Emily S. Bremer & Jonathan R. Siegel, \"Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500,\" 65 Ala. L.Rev. 1, 37-38 (2013) (hereinafter “Bremer & Siegel”); Payson R. Peabody, Thomas K. Gump, Michael S. Weinstein, “A Confederate Ghost that Haunts the Federal Courts; The Case for Repeal of 28 U.S.C. § 1500,\" 4 Fed. Cir. B.J. 95 (1994) (hereinafter \"Peabody, et. al, Confederate Ghost\"); George W. Miller and Jonathan L. Abram, \"A Survey of Recent Takings Cases in the Court of Federal Claims and the Court of Appeals for the Federal Circuit,” 42 Cath. U.L.Rev. 863, 892 (1993) (\"[t]hat rule is a trap for the unwary”). . See also Petro-Hunt v. LLC v. United States, 105 Fed.Cl. 37, 44 n. 7 (2012) (defendant moved to stay case in Court of Federal Claims while case was being litigated in district court and then, years later, when the filing of a new suit for the same years was barred by the statute of limitations, moved to dismiss the case in this court based upon the pendency of the district court action); Central Pines Land Co. v. United States, 99 Fed.Cl. 394, 407 (2011), aff'd, 697 F.3d 1360 (Fed.Cir.2012) (dismissing case at" }, { "docid": "3341046", "title": "", "text": "different theories (tax law versus á Fifth Amendment takings theory). Because the non-transferred district court claims were “pending” at the time that the action on the transferred claims was effectively filed in the Court of Federal Claims, and because those claims were the same for purposes of § 1500, that statute precluded jurisdiction over the transferred claims in the Court of Federal Claims. The district court therefore erred in ordering the transfer of Counts III and V to the Court of Federal Claims. CONCLUSION The district court erred in transferring Counts III and V to the Court of Federal Claims because 28 U.S.C. § 1500 precluded jurisdiction over those claims given the pen-dency of Counts II and IV before the district court. Accordingly, the decision of the district court is REVERSED. .Count I sought payment of the principal amount owing for tax years 1985-93. The United States paid this money into escrow in the district court. As stated by Cook County, this payment \"mooted\" Count 1. Cook County's Brief at 9. . The escrow payment also \"mooted\" Counts II and III to the extent that they sought payment of the taxes, leaving only the interest and penalties in dispute. Cook County’s Brief at 10. . Cook County alleged that Counts IV and V were not barred as res judicata by the Seventh Circuit's 1984 panel decision. . Rule 21 states in relevant part that ”[a]ny claim against a party may be severed and proceeded with separately.” . Congress also explained that prior to the enactment of § 1631, \"[a] litigant’s main protective device ... [was] the wasteful and costly one of filing in two or more courts at the same time. This put[ ] increased burdens on the courts as well as on the parties.” S.Rep. No. 97-275, at 11 (1981). . Because of our conclusion that § 1631 allows for the transfer of less than all of the claims in a given action, we need not address the parties’ arguments concerning the relevance of the fact that Counts II and IV were dismissed from the district court action and" }, { "docid": "15847407", "title": "", "text": "United States.” 28 U.S.C. § 1500. The purpose of Section 1500 is to “bar ... the claim of a plaintiff who, upon filing, has an action pending in any other court ‘for or in respect to’ the same claim.” Keene, 508 U.S. at 209, 113 S.Ct. 2035. “Thus, [Sjection 1500 divests this court of subject matter jurisdiction when a plaintiff has elected to file the same claim in another court prior to filing suit in this [ejourt.” Cooke v. United States, 77 Fed.Cl. 173, 176 (2007). Whether another claim is “pending” for purposes of Section 1500 is determined at the time at which the suit is filed in this court, not the time at which the government moves to dismiss the action. Loveladi.es Harbor, 27 F.3d at 1548. However, this court is not divested of jurisdiction when a claim that was first filed here is subsequently brought in another court. Hardwick Bros., 72 F.3d at 886; Tecon Eng’rs, 343 F.2d at 949. Because the Smithsonian suit was filed sixteen days prior to the time plaintiffs brought their initial case in this court, Section 1500 might potentially bar the action subsequently filed here. A further issue is engendered by the transfer of the Smithsonian action from the District Court for the Southern District of New York to this court. When an action is transferred under 28 U.S.C. § 1631, the statute provides that “the action or appeal shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.” A question under Section 1500 arises where more than one count is involved and all counts are not transferred. In this circumstance, the Federal Circuit has ruled that “the ‘filing’ of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500.” United States v. County of Cook, 170 F.3d 1084, 1091 (Fed.Cir.1999). Under County of Cook’s simultaneous-filing rule, plaintiffs’ Lanham" }, { "docid": "16266319", "title": "", "text": "relevant claims here were “simultaneously” filed in this court and the district court. Defendant has now moved to dismiss the complaint under RCFC 12(b)(1), invoking the aforementioned section 1500, as well as the Federal Circuit’s decision in United States v. County of Cook, Ill, 170 F.3d 1084 (Fed.Cir.1999). While, with all due respect, this court believes that County of Cook was wrongly decided, that case remains binding precedent and obliges this court to GRANT defendant’s motion. I. A brief recitation of the facts provides necessary context. On February 4, 2005, Hilda M. Griffin (plaintiff) filed a complaint in the United States District Court for the Northern District of Georgia. In that complaint, plaintiff asserted that she had suffered gender and age discrimination at the hands of her employer, the United States Army Reserve Command at Ft. McPherson, Georgia. That discrimination, she claimed, took various forms — failing to classify properly her current position; failing to select her for various positions when she was the better-qualified candidate; and retaliating against her after she pressed her claims of discrimination. There were four counts in this complaint: Count I asserted that plaintiff had suffered gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) when the Army failed to classify properly her position. This count sought: (i) equitable relief in the form of a retroactive promotion; (ii) back pay equal to the difference between her earnings at her current grade and what she would have earned if properly classified; (iii) interest on the back pay differential; (iv) compensatory damages under 42 U.S.C. § 1981a for her nonpecuniary losses; (v) reasonable attorneys’ fees, costs and disbursements; and (vi) if permitted by law, punitive damages. Count II asserted that plaintiff was entitled to relief under the Equal Pay Act of 1963(EPA) for not receiving equal compensation for performing substantially the same work as a male counterpart. This count sought: (i) equitable relief in the form of a retroactive promotion; (ii) back pay equal to the difference between her earnings at her current grade and what she would have earned" }, { "docid": "15847427", "title": "", "text": "district court transfers one or some of those counts to this court pursuant to Section 1631. County of Cook, 170 F.3d at 1091. This outcome is not derived from Section 1500 itself but rather is an artifact of the simultaneous-filing interpretation of County of Cook. Third, the only safe alternative for a plaintiff is to file first in this court, and thereafter to file in district court. See Tecon Eng'rs, Inc., 343 F.2d at 949. The transfer provisions of Section 1631 were enacted to cure jurisdictional defects, but County of Cook disables that cure by superimposing a policy-based interpretation of Section 1500. Nonetheless, this court is bound by the County of Cook precedent and will faithfully follow and apply it. . Among other things, County of Cook held that 28 U.S.C. § 1631 \"permit[s] the transfer of less than all of the claims in an action,\" 170 F.3d at 1089, while recognizing that courts of appeals had split on the issue. Id. at 1087-88. Compare Hill v. United States Air Force, 795 F.2d 1067, 1070 (D.C.Cir.1986) (the statute permits transfer of an entire action over which a court lacks jurisdiction, not an individual claim), with Federal Deposit Ins. Corp. v. McGlamery, 74 F.3d 218, 222 (10th Cir.1996) (one of several claims may be transferred); Miller v. United States, 753 F.2d 270, 275-76 (3d Cir.1985) (allowing transfer of part of an appeal). . Plaintiffs seek to avoid the need for an analysis of the operative facts in their Lanham Act and copyright-infringement claims brought before the district court by contending that \"all” of the pending claims in the Smithsonian action were transferred to this court, noting that the Lanham Act claim was dismissed as part of the Stipulation and Transfer. Plaintiffs’ Brief To (1) Consolidate ... and (2) Oppose Dismissal (\"Pis.’ Br.”) at 5-6. However, the critical time for assessing claims is when suit was brought, not when one of the claims was transferred. See Keene, 508 U.S. at 207-209, 113 S.Ct. 2035 (time-of-filing rule governs applicability of Section 1500). . The inclusion of other and different requested relief in claims" }, { "docid": "4086417", "title": "", "text": "Bros. Co. II v. United States, 72 F.3d 883 (Fed.Cir.1995), the Federal Circuit declared unequivocally that “Tecon Engineers remains good law and binding on this court.” 72 F.3d at 886. Furthermore, more recent decisions by the Federal Circuit such as Harbuck v. United States, 378 F.3d 1324 (Fed.Cir.2004), and United States v. County of Cook, 170 F.3d 1084 (Fed.Cir.1999), embrace Tecon’s recognition of the importance of chronology of filing for purposes of Section 1500. See Harbuck, 378 F.3d at 1328 (“‘The question of whether another claim is “pending” for purposes of § 1500 is determined at the time at which the suit in the Court of Federal Claims is filed.’ ” (emphasis added) (quoting Loveladies Harbor, 27 F.3d at 1548)); County of Cook, 170 F.3d at 1090 (“[jurisdiction in the Court of Federal Claims under [Section 1500] ‘depends upon the state of things at the time of the action brought.’” (emphasis added) (quoting Keene, 508 U.S. at 207, 113 S.Ct. 2035)). Notwithstanding this line of precedent, the government relies on Harbuck and County of Cook for the proposition that the precise time of filing is irrelevant and that same-day filing should suffice to trigger a same-claim analysis, and ultimately bar jurisdiction, over Nez Perce’s complaint in this case, under Section 1500. Def.’s Resp. at 5-6. This reliance is misplaced. In both Harbuck and County of Cook, a plaintiff originally filed a complaint against the United States in a district court. See Harbuck, 378 F.3d at 1327, 1328 (discussing transfer of a portion of plaintiffs claim to the Court of Federal Claims and the appropriate treatment of the transferred portion under 28 U.S.C. § 1631, the transfer statute); County of Cook, 170 F.3d at 1087, 1090 (same). In each case, the district court subsequently transferred some, but not all, of the claims from the original complaint to the Court of Federal Claims pursuant to 28 U.S.C. § 1631 because the original (district) court found that it lacked jurisdiction over some of the claims in the cases before it and those claims could have been brought originally in this court. Harbuck, 378" }, { "docid": "3341029", "title": "", "text": "of Federal Claims de novo because it is jurisdictional.” James v. Caldera, 159 F.3d 573, 578 (Fed.Cir.1998) (citing Benderson Dev. Co. v. United States Postal Serv., 998 F.2d 959, 962 (Fed.Cir.1993)). The United States contends that the district court erred in transferring to the Court of Federal Claims Counts III and V of Cook County’s counterclaim, and it makes two arguments in support of this contention. The United States first argues that 28 U.S.C. § 1631 (1994) only authorizes the transfer of an entire “civil action,” not less than all of the claims of an action. In the alternative, the United States argues that, even if “bifurcation” of the claims in a civil action is permissible under 4F 1631, jurisdiction in the Court of Federal Claims over the transferred claims is still barred under 28 U.S.C. § 1500 (1994). This second argument relies on the fact that non-transferred Counts II and IV, which the United States asserts are no different in substance from transferred Counts III and V, were “pending” in another court for purposes of § 1500 at the time of the transfer. Cook County responds that the transfer order did not “bifurcate” the case because non-transferred Counts II and IV had been dismissed. Cook County therefore contends in effect that its “civil action” had been narrowed to include only those claims that were transferred, and that the transfer was in compliance with the statute. Cook County responds further that § 1500 is inapplicable in assessing the propriety of a transfer under § 1631, and, regardless, that § 1500 does not preclude jurisdiction because transferred Counts III and V seek a different remedy from non-transferred Counts II and IV. A. 28 U.S.C. § 1631 We address the United States’ § 1631 argument first. That section states in relevant part as follows: Transfer to cure want of jurisdiction: Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in" }, { "docid": "8909019", "title": "", "text": "having to litigate and defend against the same claim in both courts. UNR Indus, v. United States, 962 F.2d 1013, 1018, 1021 (Fed.Cir.1992) (in banc). “The question of whether another claim is ‘pending’ for purposes of § 1500 is determined at the time at which the suit in the Court of Federal Claims is filed, not the time at which the Government moves to dismiss the action.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1548 (Fed.Cir.1994) (in banc). Thus, the district court’s dismissal of the remaining counts, after it had transferred Count II to the Court of Federal Claims, was irrelevant to the validity under § 1500 of the latter court’s subsequent dismissal of that count. The statute pursuant to which the district court transferred Count II of the complaint to the Court of Federal Claims was 28 U.S.C. § 1631, which provides that “[wjhenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed.” That provision further provides that following such transfer, “the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.” Id. This statute permits the transfer not only of the entire case but of separate claims in the action. United States v. County of Cook, Ill., 170 F.3d 1084,1087-89 (Fed.Cir.1999). Thus, under § 1631, Harbuck’s Equal Pay Act claim was deemed filed in the Court of Federal Claims on the same day on which she originally filed that claim as one of the three counts of her district court complaint. “[Tjhe ‘filing’ of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500.”" }, { "docid": "3341047", "title": "", "text": "also \"mooted\" Counts II and III to the extent that they sought payment of the taxes, leaving only the interest and penalties in dispute. Cook County’s Brief at 10. . Cook County alleged that Counts IV and V were not barred as res judicata by the Seventh Circuit's 1984 panel decision. . Rule 21 states in relevant part that ”[a]ny claim against a party may be severed and proceeded with separately.” . Congress also explained that prior to the enactment of § 1631, \"[a] litigant’s main protective device ... [was] the wasteful and costly one of filing in two or more courts at the same time. This put[ ] increased burdens on the courts as well as on the parties.” S.Rep. No. 97-275, at 11 (1981). . Because of our conclusion that § 1631 allows for the transfer of less than all of the claims in a given action, we need not address the parties’ arguments concerning the relevance of the fact that Counts II and IV were dismissed from the district court action and that the dismissal was appealed to (and has subsequently been reversed by] the Seventh Circuit. . Tecon, and several other cases, were expressly overruled by this court in UNR Industries, Inc. v. United States, 962 F.2d 1013, 1023 (Fed.Cir.1992) (en banc), aff'd sub. nom Keene v. United States, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). The Supreme Court affirmed UNR in Keene, but noted that we did not need to overrule precedent concerning fact situations which were not before us in UNR. See Keene, 508 U.S. at 215-16, 113 S.Ct. 2035. Accordingly, in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed.Cir.1994) (en banc), we stated that \"anything we said in UNR regarding the legal import of cases whose factual bases were not properly before us was mere dictum, and therefore we will not accord it stare decisis effect.\" Loveladies, 27 F.3d at 1549 (emphasis in original). . It is worth noting that § 1500 is not implicated when all of the claims in an action are transferred to the Court" } ]

[ { "docid": "22607187", "title": "", "text": "“reduce the quantity and improve the quality of prisoner suits”). To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. The exhaustion provision of the PLRA states: “No action shall be brought with respect to prison conditions under [42 U. S. C. § 1983], 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). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record. Woodford, supra, at 94-95. In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural rules that have become the subject of varying levels of disagreement among the federal courts of appeals. The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove. The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustion — typically copies of the grievances — to their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles El v. Toombs, 215 F. 3d 640, 642 (2000). The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remedies— specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust" } ]

[ { "docid": "5511761", "title": "", "text": "(3d Cir.1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). We must, of course, accord respect to determinations of the credibility of witnesses. United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997) (citing Anderson v. Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). III. Analysis In an effort to curb the number of prisoner filings in the federal courts, Congress enacted the PLRA which, as relevant here, mandates that prisoners exhaust internal prison grievance procedures before filing suit. 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Spruill, 372 F.3d at 222. The exhaustion provision of the PLRA reads: No action shall be brought with respect to prison conditions under [42 U.S.C. § ] 1983, 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). Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff. Jones v. Bock, 549 U.S. 199, 212, 216-17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (holding that failure to exhaust is an affirmative defense and finding that the district court erred in imposing an improperly heightened pleading standard that required the prisoner not only to plead, but also to prove, exhaustion in the complaint). Furthermore, the defendant must prove that the prisoner-plaintiff failed to exhaust each of his claims. There is no “total exhaustion” rule permitting dismissal of an entire action because of one unexhausted claim. Jones, 549 U.S. at 220-24, 127 S.Ct. 910. A. Exhaustion: For a Judge or a Jury? Small argues that, under the PLRA, a jury, not a judge, should determine factual disputes relating to the issue of exhaustion because Seventh Amendment rights are implicated. In Drippe, however, we stated, unconditionally and in agreement with the Seventh" }, { "docid": "22263524", "title": "", "text": "inmate was ever permitted to see those procedures, at least not until Goebert filed this lawsuit and her attorney ferreted out a copy of them through discovery. What the parties disagree about is how the PLRA’s availability requirement applies in this circumstance. The availability requirement of the PLRA stems from 42 U.S.C. § 1997e(a), which provides: “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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.” The Supreme Court has recently said that this “invigorated” exhaustion requirement is the “centerpiece” of the PLRA. Woodford v. Ngo, — U.S. -, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006). It helps to ensure that the “flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit.” Jones v. Bock, — U.S. -, 127 S.Ct. 910, 914, 166 L.Ed.2d 798 (2007). In addition to “reducing] the quantity and improv[ing] the quality of prisoner suits,” the exhaustion requirement also “attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to afforfd] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford, 126 S.Ct. at 2387 (third alteration in original) (internal quotation marks and footnote omitted). It is difficult to define “such remedies as are available” to an inmate in a way that includes remedies or requirements for remedies that an inmate does not know about, and cannot discover through reasonable effort by the time they are needed. Nevertheless, some of the defendants try. They argue that any remedy that is in place is “available” to the inmate even if the inmate does not know, and cannot find out, about it. That argument could have been inspired by the Queen of Hearts’ Croquet game, since there is nothing on this side of the rabbit hole to support it. Having kept Goebert in the dark about the path she was required to follow, the defendants should not benefit" }, { "docid": "6682303", "title": "", "text": "violating his rights under Kentucky law; 4) intentional infliction of emotional distress; and 5) negligence and gross negligence. In July 2009, the district court granted LCDC’s motion for summary judgment with respect to Napier’s federal claims, and dismissed his state law claims without prejudice. It concluded that by not filing a grievance under LCDC’s policy, Napier failed to exhaust all of his available administrative remedies as required under the PLRA. 42 U.S.C. § 1997e(a) (2006). The sole issue on appeal is whether Napier failed to exhaust all available administrative remedies under the PLRA. Since Napier does not contend that he exhausted his administrative remedies, the issue is moi'e specifically whether LCDC’s grievance policy was “available” to him such that he was required to exhaust it. Napier argues that LCDC’s administrative remedies were not available to him when he resided at the Marion facility, and that LCDC failed to explain its grievance policy or the PLRA to him. We conclude that the jail’s administrative remedies were available to Napier. Therefore, summary-judgment was appropriate and we AFFIRM. II. ANALYSIS The PLRA’s Exhaustion Requirement Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal citations omitted). The law seeks to alleviate the burden of this litigation by requiring prisoners to exhaust all administrative remedies before they can file suit in federal court. See 42 U.S.C. § 1997a. The “dominant concern” of the PLRA is “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court.” Porter v. Nussle, 534 U.S. 516, 528, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (making the exhaustion requirement mandatory). Specifically, the law 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). This requirement is a strong one. To further" }, { "docid": "6212315", "title": "", "text": "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). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Id. at 520, 122 S.Ct. 983; see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Exhaustion under the PLRA requires that a prisoner comply with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. See Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Chumer, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). A prisoner may thus file a § 1983 action concerning the conditions of his confinement only after he has exhausted the prison’s administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). As Plaintiff notes, however, see Opp. at 5, the PLRA requires that an inmate exhaust only those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). “We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies ‘effectively unavailable.’ ” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.2010) (internal citations omitted). In this case, Plaintiff argues that both his mental incompetence and his ignorance of the administrative processes render the remedies “unavailable.” The Court will address each contention in turn. 1. Mental Incompetence Plaintiff first maintains that his “mental incompetence and ongoing victimization and humiliation by Defendant demonstrate that the prison grievance process was absolutely unavailable to him.” Opp. at 6. In so arguing, however, Plaintiff relies on language from distinguishable, non-binding authorities. See id. at 4-7. The two cases that" }, { "docid": "15268999", "title": "", "text": "(2d Cir.2006) (per curiam)). The PLRA instructs that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] ... 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). Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir.2013). Accordingly, “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216, 127 S.Ct. 910. However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement. See id. at 215, 127 S.Ct. 910. In Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), we set forth a three-part inquiry to guide our analysis of whether a plaintiff has satisfied the PLRA. See id. at 686-91. The first part involves an assessment whether administrative remedies were in fact available to the plaintiff; the second part instructs courts to consider whether defendants forfeited the affirmative defense of exhaustion by failing to preserve it or should be estopped from raising it because their own actions inhibited the plaintiffs ability to-exhaust administrative remedies; and the third part directs courts to determine whether special circumstances existed that justified a plaintiffs failure to exhaust remedies that were available and not subject to estoppel. See Amador, 655 F.3d at 102 (summarizing Hemphill inquiry). Two years later, in Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court weighed in on the importance of the PLRA exhaustion requirement without directly opining on the validity of the exceptions we outlined in Hemphill. In Woodford, a prisoner’s grievance was denied because it was not timely filed. Id. at 86-87, 126 S.Ct. 2378. He then filed a lawsuit in federal court and argued" }, { "docid": "10782385", "title": "", "text": "The District Court sustained GototwesM’s defense of failure to exhaust and dismissed the case, holding that the grievance “cannot fairly be said to have given prison officials notice of the person claimed here to be guilty of wrongdoing, nor the conduct that constituted the alleged constitutional violation.” (App. II, at 28-31.) Although it acknowledged the motion was untimely, the Court reasoned that the affirmative defense of exhaustion raised a question of law that must be resolved by the Court prior to proceeding to trial on the merits. (App. II, at 28-31.) Notice of appeal was filed on November 21, 2008. (App. II, at 32.) II. We decline to read a strict timing requirement into the PLRA for prosecution of the affirmative defense of failure to exhaust. We exercise plenary review over questions of statutory construction. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.2004). The PLRA provides in relevant part: 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. § 1997e(a) (emphasis added). In Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court resolved a circuit split, holding that “the PLRA exhaustion requirement requires proper exhaustion.” This accords with our previous 2004 decision in Spruill, that the PLRA includes a procedural default component and the determination whether a prisoner properly exhausted a claim is made by evaluating compliance with the prison’s specific grievance procedures. Drippe urges us to adopt his construction of Pavey v. Conley, 544 F.3d 739, 740 (7th Cir.2008), a case from the Court of Appeals for the Seventh Circuit, resolving the question of “whether a prisoner plaintiff in a suit for damages governed by the [PLRA] is entitled by the Seventh Amendment to a jury trial on any debatable factual issues relating to the defense of failure to exhaust administrative remedies.” Under Pavey, a prisoner plaintiff is not entitled to a jury trial on" }, { "docid": "6448921", "title": "", "text": "the Flukers’ suit after it concluded that summary judgment in favor of the Defendants was appropriate due to the Flukers’ failure to satisfy § 1997e(a). We believe so. I. We begin our analysis by looking to the PLRA. Under the PLRA, “[n]o action shall be brought with respect to prison conditions ... 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). This means the prisoner must give the prison’s grievance system “a fair opportunity to consider the grievance,” which requires the complaining prisoner to “eompl[y] with the system’s critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Flukers have not challenged the district court’s conclusion that Roy did not exhaust his administrative remedies (or even attempt to) and conceded as such in their brief, stating that “[i]t was undisputed from the inception of this case that Roy Fluker had not exhausted his administrative remedies with the Defendants.” There is also no evidence that the Center misled Roy or caused his noncompliance with the administrative remedies. Cf. Curtis v. Timberlake, 436 F.3d 709, 711-12 (7th Cir.2006). Summary judgment on the PLRA ground alone was therefore warranted. II. We have held that dismissals under § 1997e(a) for failure to exhaust must be without prejudice. See Ford, 362 F.3d at 400-01. This is true even if exhausting administrative remedies will prove to be impossible, as the Defendants contend is true here. See id. (“The district court dismissed Ford’s § 1983 suit without prejudice ... so that he could exhaust whatever remedies remain under state practice and try again. (If it is too late to pursue administrative remedies, then exhaustion will prove impossible and § 1997e(a) will permanently block litigation.)” (citing Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002))). Thus, to the extent the Flukers, contend their case should have been dismissed without prejudice if - it was dismissed solely on the PLRA ground, they are correct. But that is inconsequential here, as is the parties’ dispute as to" }, { "docid": "22154230", "title": "", "text": "held that Nunez failed to exhaust his administrative remedies as required by the PLRA. In the alternative, it held that defendants were entitled to summary judgment on the merits. Nunez timely appealed. II. Standard of Review We review de novo the district court’s interpretation of the PLRA’s exhaustion requirement and the court’s determination that a prisoner failed to exhaust administrative remedies. See Vaden v. Summerhill, 449 F.3d 1047, 1049 (9th Cir.2006). We review de novo the district court’s grant of summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004); see also Moore v. Glickman, 113 F.3d 988, 989 (9th Cir.1997) (reviewing a district court’s grant of summary judgment in a Bivens civil rights action de novo). We “view the evidence ... in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party.” Bank of New York v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir.2008). We then determine “whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). III. Discussion A. Fourth Amendment Claim For the reasons that follow, we hold with respect to Nunez’s Fourth Amendment claim that his failure to exhaust his administrative remedies is excused. However, we hold that the district court correctly granted summary judgment against Nunez on the merits of the claim. 1. Exhaustion of Administrative Remedies a. Background The PLRA provides that no suit may be brought under federal law concerning prison conditions until available administrative remedies have been exhausted: 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 ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court held that the PLRA requires “proper” exhaustion of administrative remedies. It wrote, “Proper exhaustion demands compliance with an agency’s deadlines and" }, { "docid": "4802961", "title": "", "text": "occurred in March 2002. Since Scott’s claim against Dr. Ambani accrued in 2002, it should have been brought by 2005 in order to comply with the three-year statute of limitations. Scott filed the complaint in 2007. Therefore, the claim is untimely. B. Dr. Faghihnia The district court granted Dr. Faghihnia’s motion to dismiss on the basis that Scott failed to exhaust his administrative remedies. Scott filed a grievance against Dr. Faghihnia contending that Dr. Faghihnia violated the Eighth Amendment by failing to give Scott an annual health care screening from October 2002 to February 2004. He did not file his grievance until 2006. The grievance against Dr. Faghihnia was denied during the administrative process because it was untimely. Scott contends that the denial of his grievance was improper because it was filed soon after he received his medical records. Under the Prison Litigation Reform Act of 1995 (PLRA), prison litigation brought under 42 U.S.C. § 1983 may only be brought after a prisoner has exhausted the available administrative remedies. See 42 U.S.C. § 1997e(a) (“[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 ... until such administrative remedies as are available are exhausted”). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In Wood-ford, the Supreme Court held that a prisoner’s § 1983 action must be dismissed for failure to exhaust administrative remedies where the underlying grievance was denied as untimely even though the claim would not have been barred by the applicable statute of limitations. Woodford makes clear that a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance. Id. at 83, 126 S.Ct. 2378. Here, Scott’s grievance against Dr. Faghihnia was rejected as untimely during the administrative process. Therefore, under Woodford, he failed to exhaust his administrative remedies. C." }, { "docid": "22062053", "title": "", "text": "argue that we should construe the complaint as arising under § 1983 because O’Guinn can more readily obtain his desired remedies under § 1983 than under the ADA and Rehabilitation Act. But “courts should not undertake to infer in one cause of action when a complaint clearly states a claim under a different cause of action. ‘[T]he party who brings a suit is master to decide what law he will rely upon.’ ” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 n. 7, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). B Having determined that O’Guinn pleaded causes of action under the ADA and Rehabilitation Act rather than § 1983, we turn to the question whether the PLRA required O’Guinn to exhaust available administrative remedies before bringing these claims. The plain language of the PLRA, as well as Supreme Court and Ninth Circuit precedent, lead us to con- elude that exhaustion is required for ADA and Rehabilitation Act claims. The PLRA exhaustion provision, § 1997e(a), states: 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. § 1997e(a) (emphasis added). Because the ADA and Rehabilitation Act are federal laws, the plain language of the PLRA requires that prisoners bringing an action under these federal statutes challenging prison conditions must first exhaust available administrative remedies. The parties do not dispute that O’Guinn’s second amended complaint challenged prison conditions. The Supreme Court has emphasized that the exhaustion requirement in the PLRA means what it says. Specifically, “exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983.” Woodford v. Ngo, — U.S. -, 126 S.Ct. 2378, 2383, 165 L.Ed.2d 368 (2006). A prisoner must exhaust administrative remedies even when the prisoner’s suit seeks monetary damages that are unavailable through the prison’s grievance process, see Booth v. Churner, 532 U.S. 731, 734-35, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)," }, { "docid": "20265230", "title": "", "text": "176 L.Ed.2d 934 (2010); Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990) (concluding that the court had no basis for asserting personal jurisdiction over the warden of a BOP facility in Springfield, Missouri because he “surely does not transact any business in the District of Columbia”). Defendants neither reside in the District of Columbia, nor fall within the scope of the long-arm statute, nor maintain minimum contacts in this forum. For these reasons, the Court concludes that it lacks personal jurisdiction over the defendants in their individual capacities. C. Exhaustion of Administrative Remedies Under the PLRA In relevant part, the Prison Litigation Reform Act (“PLRA”) provides that: No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Defendants move to dismiss the complaint on the ground that plaintiff “has failed to exhaust his administrative remedies with regard to [the] claims raised in this lawsuit.” Defs.’ Mem. at 7. The PLRA exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008); see also Kim v. United States, 632 F.3d 713, 718 (D.C.Cir.2011) (discussing requirement that a prisoner exhaust prison grievance procedures under the PLRA before filing a lawsuit). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with all procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Typically, then, a prisoner may file a civil action concerning conditions of confinement under federal law" }, { "docid": "5750761", "title": "", "text": "The Magistrate Judge found that, to the extent this cause of action was one against the RCI officers under § 1983, it challenged the conditions of Wagner’s confinement. Under the PLRA a prisoner is required to exhaust his administrative remedies before filing a § 1983 action concerning his confinement. See 42 U.S.C. § 1997e(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.”). This provision is mandatory, and prisoners must exhaust all available remedies, even those where the relief requested — monetary damages-— cannot be granted administratively. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Nicholas v. White, 2006 WL 2583765, *2 (D.S.C. Sept. 7, 2006). Exhaustion is also now required in all suits challenging prison conditions, not just suits brought under § 1983. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As such, Wagner was required by the PLRA to exhaust all “available” administrative remedies prior to bringing this suit in federal court. Therefore, the Magistrate Judge correctly found that Wagner’s failure to exhaust the relevant prison grievance procedures barred this claim. Wagner does not object to the Magistrate Judge’s finding that he did not satisfied the PLRA’s exhaustion requirements; rather, Wagner objects that the exhaustion requirement obstructs his “freedom to petition my government for redress” and is therefore unconstitutional. The Supreme Court, however, has repeatedly enforced and upheld the PLRA’s exhaustion requirements. Woodford v. Ngo, — U.S. --, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12; Booth, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958. The court therefore finds that Wagner’s contention that the PLRA is unconstitutional is without merit. Having reviewed the entire record, including Plaintiffs objections, the court concludes that the R & R accurately summarizes the facts and law applicable to this matter, and correctly finds that Wagner’s Complaint fails to state" }, { "docid": "22154231", "title": "", "text": "the relevant substantive law.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). III. Discussion A. Fourth Amendment Claim For the reasons that follow, we hold with respect to Nunez’s Fourth Amendment claim that his failure to exhaust his administrative remedies is excused. However, we hold that the district court correctly granted summary judgment against Nunez on the merits of the claim. 1. Exhaustion of Administrative Remedies a. Background The PLRA provides that no suit may be brought under federal law concerning prison conditions until available administrative remedies have been exhausted: 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 ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court held that the PLRA requires “proper” exhaustion of administrative remedies. It wrote, “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules.” Id. at 90, 126 S.Ct. 2378. This is so “because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91, 126 S.Ct. 2378. The Court held that the exhaustion requirement of the PLRA is based on administrative law rather than federal habeas corpus. Id. at 93, 126 S.Ct. 2378. It wrote that exhaustion of administrative remedies serves two important purposes. First, exhaustion “gives an agency ‘an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court,’ and it discourages ‘disregard of [the agency’s] procedures.’” Id. at 89, 126 S.Ct. 2378 (citation omitted) (bracketed material in original). “Second, exhaustion promotes efficiency” because “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Justice Breyer concurred in the judgment. He wrote, “I agree with the Court that ... Congress intended the term ‘exhausted’ to ‘mean what the term means in administrative" }, { "docid": "20460707", "title": "", "text": "Cir.2010) (quotation omitted). In our analysis, we must view evidence in the light most favorable to the non-moving party. McCarty v. Gilchrist, 646 F.3d 1281, 1284 (10th Cir.2011). “Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Id. at 1285 (quotation omitted). The district court granted summary judgment against Tuekel based solely on its determination that the PLRA requires exhaustion regardless of a prisoner’s legiti mate fear of retaliation. There is no dispute as to whether Tuckel exhausted the remedies provided in the Colorado Department of Corrections (“CDOC”) regulations; he concedes that he did not. We are thus faced squarely with the task of interpreting the PLRA, and specifically, the scope of its exhaustion provision. A Any exercise in statutory interpretation must begin with an examination of the plain language at issue. United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir.2010). Congress enacted the PLRA to reduce the “disruptive tide of frivolous prisoner litigation.” Woodford v. Ngo, 548 U.S. 81, 97, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To achieve this end, the statute includes an “invigorated” exhaustion provision, which provides: 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. § 1997e(a). The Supreme Court recently reaffirmed that the PLRA’s exhaustion requirement is mandatory. Woodford, 548 U.S. at 84, 126 S.Ct. 2378. But we need not determine whether an exception to this requirement is appropriate here. Instead, we must decide if the exhaustion requirement, by its own terms, supports the district court’s grant of summary judgment. We hold that it does not, and join three of our sibling circuits in concluding that intimidation or threats by prison officials can render an administrative remedy unavailable under the PLRA’s exhaustion provision. B The plain language of the PLRA requires that prisoners exhaust only available remedies. 42 U.S.C. § 1997e(a) (“No" }, { "docid": "6682304", "title": "", "text": "II. ANALYSIS The PLRA’s Exhaustion Requirement Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal citations omitted). The law seeks to alleviate the burden of this litigation by requiring prisoners to exhaust all administrative remedies before they can file suit in federal court. See 42 U.S.C. § 1997a. The “dominant concern” of the PLRA is “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court.” Porter v. Nussle, 534 U.S. 516, 528, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (making the exhaustion requirement mandatory). Specifically, the law 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). This requirement is a strong one. To further the purposes behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not available, Brock v. Kenton County, 93 Fed.Appx. 793, 798 (6th Cir.2004); even when the state cannot grant the particular relief requested, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); and “even where [the prisoners] believe the procedure to be ineffectual or futile....” Pack v. Martin, 174 Fed.Appx. 256, 262 (6th Cir.2006). Because he was clearly a “prisoner” at the time he filed suit, Napier was subject to the PLRA’s requirements. And because it applies to a person “in any jail, prison, or other correctional facility,” this is true whether he was housed at the LCDC or the Marion facility. The only question is whether the LCDC’s grievance procedure was “available” to Napier. Availability of an Administrative Remedy The applicable portions of LCDC’s grievance procedure read: POLICY: An inmate shall be allowed to file a grievance at such time as the inmate believes he or she has been subject to abuse, harassment," }, { "docid": "23434422", "title": "", "text": "before a jury on October 30, 31, and November 1, 2006. Espinal was represented by counsel at trial. The jury returned a verdict in favor of the defendants. Espi-nal’s counsel moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a). The district court denied the motion for a new trial in an oral decision. Espinal filed a timely appeal of the September 1, 2005 order granting summary judgment in part and the January 11, 2007 order denying the motion for a new trial. DISCUSSION I. Exhaustion of Administrative Remedies A. The Scope of the PLRA Exhaustion Requirement The Prison Litigation Reform Act of 1995 (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). The PLRA exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Prisoners must utilize the state’s grievance procedures, regardless of whether the relief sought is offered through those procedures. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In Woodford v. Ngo, the Supreme Court held that “the PLRA exhaustion requirement requires proper exhaustion.” 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The prisoner in Woodford argued that administrative remedies were unavailable once the prison rejected his grievance as untimely. Id. at 87, 126 S.Ct. 2378. The Supreme Court rejected this argument. The Court held that “[pjroper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules” as a precondition to filing a federal lawsuit. Id. at 90, 126 S.Ct. 2378. Woodford explained that compliance with state procedural rules is necessary to achieve “[t]he benefits of exhaustion [that] can be realized only if the prison grievance system is given a fair opportunity" }, { "docid": "23700754", "title": "", "text": "its administrative review process and rejected the prisoner’s claims as meritless, and (2) the prisoner alleges continuous harm that the administrative review process has failed to address; without also determining under ... § 1997e(e)(2) whether the prisoner’s claim is frivolous, malicious, or otherwise legally meritless? II. We review the district court’s denial of summary judgment de novo. Fisher, 667 F.3d at 609. Because we find that the PLRA pre-filing exhaustion requirement is mandatory and non-discretionary, we do not reach the second question. 42 U.S.C. § 1997e(a) states that: 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. Id. There is no dispute that Gonzalez filed his section 1983 complaint before exhausting the prison grievance process available to him. The district court, however, declined to dismiss the complaint; instead exercising its discretion to excuse Gonzalez’s failure to exhaust based on our decision in Underwood v. Wilson, 151 F.3d 292 (5th Cir.1998). In Underwood, we stated that “a non-jurisdictional exhaustion requirement may, in certain rare instances, be excused.” Id. at 296. Like Gonzalez, Underwood did not exhaust the available administrative remedies until after he filed his section 1983 complaint. We rejected a “strict” reading of 42 U.S.C. § 1997e(a); instead adopting a discretionary test because “dismissing the suit and requiring [Underwood] to refile is inefficient,” and mandatory pre-filing exhaustion “would not further the interests of justice or the Congressional purposes behind the PLRA.” Underwood, 151 F.3d at 296. Although Underwood was decided based on the text of section 1997e(a), the decision predates the Supreme Court decisions in Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), and Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Because Woodford and Jones addressed the PLRA pre-filing exhaustion requirement, we must revisit our decision in Underwood in the light of those decisions. See, e.g., Trizec Properties, Inc. v. U.S. Mineral Prods. Co., 974 F.2d" }, { "docid": "23297252", "title": "", "text": "on Johnson’s remaining retaliation claim. By order dated August 23, 2010, Judge Buchwald granted that motion, dismissing the amended complaint in its entirety. See Johnson v. Killian, No. 07 Civ. 6641, 2010 WL 3468124 (S.D.N.Y. Aug. 23, 2010). On appeal, Johnson argues that the District Court erred in granting summary judgment in favor of defendants because he had indeed exhausted the administrative remedy process when he filed and fully appealed the administrative grievance in 2005 concerning FCI Otisville’s prayer policies under Menifee. DISCUSSION By order dated April 28, 2011, we dismissed those aspects of Johnson’s appeal not related to whether he had failed to exhaust his administrative remedies. Following our de novo review, we vacate the remaining portion of the judgment of the District Court, which held that Johnson failed to exhaust his administrative remedies concerning his congregational prayer policy claim. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ..., 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). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Supreme Court has held that “the PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). That is, “prisoners must complete the administrative review process in accordance with the applicable procedural rules — rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation and quotation marks omitted). We have described the grievance process available to federal prisoners as follows: BOP’s procedural rules ... ereate[ ] a four-step administrative grievance system for prisoner complaints. The first step require[s] inmates to “present an issue of concern informally”" }, { "docid": "22629137", "title": "", "text": "O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.2007). In deciding a motion to dismiss for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). We review the district court’s factual findings for clear error. O’Guinn, 502 F.3d at 1059. III. Discussion The PLRA requires a prisoner to exhaust his administrative remedies before filing a lawsuit concerning prison conditions: 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 ... correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To “property]” exhaust, a prisoner must comply “with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91, 126 S.Ct. 2378. Sapp acknowledges that he failed to properly exhaust his claims, but contends that we should nonetheless permit his suit to go forward for two reasons. First, Sapp contends that the PLRA requires exhaustion only of those administrative remedies that are “available,” and that the improper screening of his appeals rendered administrative remedies effectively unavailable to him. Second, Sapp urges us to recognize, and apply to him, an equitable exception to the PLRA’s exhaustion requirement where a prisoner’s special cir cumstances justify non-compliance with administrative regulations. We address each contention in turn. A. Effectively Unavailable Remedies 1 The PLRA requires that an inmate exhaust only those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). We have recognized that the PLRA therefore does not require exhaustion when circumstances render administrative remedies “effectively unavailable.” See Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir.2010). In Nunez v. Duncan, we held that a prisoner’s failure to exhaust was excused where he “took reasonable and appropriate steps to" }, { "docid": "22420441", "title": "", "text": "reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary judgment.” R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir.1997) (internal quotation marks omitted; alteration in original). The District Court properly granted summary judgment in favor of Williams for Hill’s failure to exhaust the requisite administrative review process as to Williams. The Prison Litigation Reform Act (“PLRA”) provides that “[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. § 1997e(a) (2006). The PLRA’s “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The grievance filed by Hill, the first step in the administrative process for a prisoner complaining of conditions at the Niagara County Jail, does not name Williams. There being no evidence that a grievance ever was filed against Williams by Hill, the exhaustion requirement of the PLRA has not been satisfied, and no genuine issue of material fact stands in the way of summary judgment in her favor. III. Of the Claims against Curcione and Chawer The Supreme Court has held that “the PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The “proper exhaustion” requirement specified by the Supreme Court imposes the obligation upon prisoners to comply with prison regulations requiring time limits. See id. at 95-96, 126 S.Ct. 2378. The District Court granted summary judgment in favor of Curcione and Chawer, citing Hill’s failure to file his grievance in a timely manner. We hold that such a determination was error in this case. The Jail has adopted a formal grievance program pursuant to New York regulations setting forth the minimum standards and regulations for the management of" } ]

[ { "docid": "21173979", "title": "", "text": "prong is not dependent on the payment amount, but rather a determination by the Court of whether the debtor can maintain a minimal standard of living if being required to service the student loan. B. Brunner Prong 2 — Additional Circumstances The second prong of the Brunner test asks whether there are additional circumstances that exist suggesting that the debtor’s state of affairs is likely to persist for a significant portion of the repayment period of the student loan. The state of affairs referred to in the second prong is the determination made in the first prong, ie., that the debtor cannot maintain, based upon current income and expenses, a minimal standard of living for herself and her dependents if required to repay her student loan. Applying prong 2 “does not necessarily require future income predic tions.” Instead, prong 2 focuses on “the present existence of circumstances — circumstances in addition to a present lack of ability to pay — that strongly suggest an inability to pay the loan over an extended period of time. Simply stated, under prong 2, the debtor must prove by a preponderance of the evidence that her financial situation is not likely to improve. The debtor is not required to prove that her financial situation will persist due only to a serious illness, psychological problem, disability, or other exceptional circumstance; other types of circumstances could apply as well. In making its determination, a court should consider factors such as the debtor’s age, age of the debtor’s dependents, debtor’s education, work and income history, physical and mental health, and other relevant circumstances. Satisfaction of prong 2 should be based upon a “certainty of hopelessness” into the future, “not simply a •present inability to fulfill [a] financial commitment.” A “ ‘bleak forecast of the near future ... [where] the debtor’s straits are only temporary’ is insufficient to demonstrate undue hardship under the second prong of Brunner,” Meeting the standard set forth under prong 2 is not an easy task for a debtor. ECMC and the DOE (“creditors”) argue that there is neither a “certainty of hopelessness” in" } ]

[ { "docid": "13175122", "title": "", "text": "foreseeable future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?”). Courts “should consider all relevant evidence — the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family circumstances, the amount of the monthly payment required, the impact of the general discharge under chapter 7 and the debtor’s ability to find a higher-paying job, move or cut living expenses.” Hicks, 331 B.R. at 31; see also Kelly, 312 B.R. at 206; Savage, 311 B.R. at 840; Bloch v. Windham Profls (In re Bloch), 257 B.R. 374, 378 (Bankr.D.Mass.2001); Kopf, 245 B.R. at 744. The Brunner test differs, albeit modestly. See Kopf, 245 B.R. at 731 (compar ing tests). Brunner requires a “three-part showing (1) that the debtor cannot, based on current income and expenses, maintain a ‘minimal’ standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans.” Brunner, 831 F.2d at 396.... One can see readily that insofar as income and expenses are concerned, the tests take converging tacks. The “totality test” looks to past, present, and future “financial resources” and “necessary living expenses” and whether, taken together with other factors, the debtor has the ability to repay while maintaining a minimal standard of living. Brunner asks the same question looking to “current” income and expenses, then considers whether circumstances inhibiting repayment will endure. In re Lorenz, 337 B.R. at 430-31. Although the two tests do not always diverge in function, they do in form. In re Hicks, 331 B.R. at 26. As the In re Hicks court noted: “While under the totality of the circumstances approach, the court may also consider ‘any additional facts and circumstances unique to the case’ that are relevant to the central inquiry (i.e., the debtor’s ability to maintain a" }, { "docid": "22384492", "title": "", "text": "(2d Cir.1987)). To determine if excepting student loans from discharge will create an undue hardship on a debtor, the Ninth Circuit has adopted the three-part test established by the Second Circuit in Brunner. See Pena, 155 F.3d at 1112. To obtain a discharge of a student loan obligation, the debtor must prove: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. Under this test, the burden of proving undue hardship is on the debtor, and the debtor must prove all three elements before discharge can be granted. In re Faish, 72 F.3d 298, 306 (3d Cir.1995). If the debtor fails to satisfy any one of these requirements, “the bankruptcy court’s inquiry must end there, with a finding of no dischargeability.” Id. A The first prong of the Brunner test requires the debtor to prove that she “cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the loans.” Brunner, 831 F.2d at 396. To meet this requirement, the debtor must demonstrate more than simply tight finances. In re Nascimento, 241 B.R. 440, 445 (9th Cir. BAP 1999) (citation omitted). “In defining undue hardship, courts require more than temporary financial adversity, but typically stop short of utter hopelessness.” Id. (citation omitted). In this case, the bankruptcy court found that Rifino was “barely living within a minima] standard” and that “there are no excess funds in her budget which could be used for repayment of the loans.” The bankruptcy court also noted that while “[i]t is conceivable that [Rifino] could reduce some of the items in her budget, ... such reductions would be minimal and inconsequential.” NELA, Sallie Mae, the United States, and the" }, { "docid": "22764679", "title": "", "text": "expenses would not disqualify her from an undue hardship discharge. B. Frushour has not, however, satisfied the second Brunner factor, “that additional circumstances exist indicating that [her] state of affairs is likely to persist for a significant portion of the repayment period of the student loans.” Brunner, 831 F.2d at 396. This factor is the heart of the Brunner test. It most clearly reflects the congressional imperative that the debtor’s hardship must be more than the normal hardship that accompanies any bankruptcy. See Rifino, 245 F.3d at 1087. The second factor is, therefore, “a demanding requirement,” Bnghtful, 267 F.3d at 328, and necessitates that a “certainty of hopelessness” exists that the debtor will not be able to repay the student loans, id. (internal quotation marks omitted); see also Tirch, 409 F.3d at 681 (same); O’Hearn, 339 F.3d at 564 (same). Only a debtor with rare circumstances will satisfy this factor. For example, although not exhaustive, a debtor might meet this test if she can show “illness, disability, a lack of useable job skills, or the existence of a large number of dependents.” Oyler v. Educ. Credit Mgmt. Corp. (In re Oyler), 397 F.3d 382, 386 (6th Cir.2005). Frushour fails to meet this test because she has provided no additional circumstances beyond the debt itself that show her hardship is undue. She was in her forties at the time of the adversary proceeding, and has one child. There is no indication she or her son has any physical or mental disabilities, and both appear to be healthy. She is college educated, has a Florida real estate license, and has worked in several different areas of employment. Every indication is that Frushour is an intelligent individual with a range of job skills. While Frushour’s present financial condition is certainly not desirable, the second Brunner factor is prospective in nature and looks for exceptional circumstances beyond the debtor’s current situation. See Gerhardt, 348 F.3d at 92 (“proving that the debtor is currently in financial straits is not enough.”) (internal quotation marks omitted). Frushour’s employment history illustrates that she has held good jobs in" }, { "docid": "13653205", "title": "", "text": "v. Johnson (In re Johnson), 5 B.C.D. 532 (Bankr.E.D.Pa.1979), the “court articulated a ‘mechanical test’ for ‘undue hardship,’ employing a ‘checklist of factors’ against which to compare the facts of each case.” Kopf, 245 B.R. at 737(citing Johnson, 5 B.C.D. at 536 and 539). In addition to factors such as wages, skills, education and ability to obtain or retain employment, as well as “what expenses would be necessary for a hypothetical debtor in a similar situation,” 245 B.R. at 737, the Johnson test requires a court to inquire about the debt- or’s “good faith” and the “policy” behind § 523(a)(8). To satisfy the “good faith test,” a debtor must demonstrate that she has made a “ ‘bona fide attempt to repay the loan.’ ” 245 B.R. at 738 (quoting Johnson, 5 B.C.D. at 540). “If the debtor is not ‘negligent or irresponsible in [her] efforts to minimize expenses, maximize resources, or secure employment,’ she passes the good faith test and discharge of the student loans is in order.” 245 B.R. at 738 (quoting Johnson, 5 B.C.D. at 544). Under the policy test, a court may consider whether “the dominant purpose of the bankruptcy petition was to discharge the student debt” or “the debtor has definitely benefit[t]ed financially from the education which the loan helped to finance.” 245 B.R. at 738 (quoting Johnson, 5 B.C.D. at 544). The often quoted Brunner test, articulated by the Second Circuit, provides that a student loan will be discharged for undue hardship if the debtor establishes the following: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. The Third, Seventh and Ninth Circuits, as well as the Bankruptcy Court for the District of New Hampshire, have all adopted the" }, { "docid": "11871136", "title": "", "text": "income and expenses; (2) that additional circumstances indicate that this situation is likely to persist throughout the student loan repayment period; and (3) that she has made good faith efforts to repay the loans. See id. at 400. That Ms. Spence satisfied the first Brunner factor is not questioned. ECMC challenges the bankruptcy court’s conclusion that she met the second and third factors. The second factor, whether “additional circumstances” exist to indicate that the debtor’s situation is likely to persist for a significant portion of the loan repayment period, “is the heart of the Brunner test.” Frushour, 433 F.3d at 401. This factor “most clearly reflects the congressional imperative that the debtor’s hardship must be more than the normal hardship that accompanies any bankruptcy.” Id. We have characterized this as “a demanding requirement” necessitating “a certainty of hopelessness” which confirms that the debtor will not be able to repay the loans. Id. (internal marks omitted). We conclude that Ms. Spence has not met this exacting standard. She is now in her late 60s and has a low-paying job, but she is by all accounts a reliable, diligent worker with a master’s degree along with completed Ph.D. course work. Her grades were excellent, and her education is not so outdated that higher-paying alternatives would be unreachable. Ms. Spence suffers from diabetes and high blood pressure, but neither these ailments nor any other age-related health problems affect her ability to work full-time. She has had difficulty obtaining a higher paying position, but she has not actively sought other employment or even updated her resume since obtaining the full-time job at E*trade. We have said that “[h]av-ing a low-paying job ... does not in itself provide undue hardship, especially where the debtor is satisfied with the job, has not actively sought higher-paying employment, and has earned a larger income in previous jobs.” Id. We are not unsympathetic to the disadvantages of her current circumstances, but the facts point to no “additional circumstances,” outside of the normal hardships faced by bankruptcy petitioners, that would render her situation hopeless. The third factor, which requires a" }, { "docid": "19571009", "title": "", "text": "and symptoms, she spends approximately $150 per month for vitamins and supplements, $90 a month for a gym membership, and purchases her groceries from Whole Foods Market. This, plaintiff asserts, is part of her holistic approach to coping with her illness. Access offers a different account of plaintiff's expenses. It argues that plaintiff has failed to show that she cannot maintain both a minimal standard of living and repay the Access Loans when her expenses include trips, concert tickets, dining out, and nail and hair treatments. Plaintiff counters that the trips were one-time events and her expenses are part of her efforts to manage her symptoms holistically with diet and lifestyle choices, which includes spending a significant portion of her disposable income on food, vitamins and herbal supplements, gym membership, spa treatments, and the like. Thus, the parties strongly disagree on whether plaintiff has met the first Brunner factor. In short, on the record placed before the Court, there are triable issues of fact concerning whether some of plaintiff's expenses are necessary to provide for her basic needs, whether expenditures on personal expenses are improvident, and whether plaintiff should be required to take steps to increase her income and, in particular, reduce her expenses. ii. Whether Additional Circumstances Exist In order to satisfy the second Brunner factor, a debtor must establish that her current inability to pay her student loan debt is likely to persist for a significant portion of the repayment period. Johnson , 550 B.R. at 880 ; Mosley , 330 B.R. at 842. In determining whether a debtor has met this second factor, courts consider the debtor's job skills, age, health, the number of working years remaining, and whether the debtor has maximized her income potential. Turturo , 522 B.R. at 427 ; Traversa v. Educ. Credit Mgmt. Corp. (Traversa) , 444 Fed. Appx. 472, 474-75 (2d Cir. 2011), cert. denied , 568 U.S. 817, 133 S.Ct. 135, 184 L.Ed.2d 29 (2012). In addressing this factor, a debtor must demonstrate that the additional circumstances point to a \"certainty of hopelessness\" and not merely a present inability to" }, { "docid": "12658243", "title": "", "text": "to determine whether an individual has established “undue hardship.” The elements that must be shown are: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. The first element requires a debtor to show that if the debtor, based on current finances, is required to make the monthly student loan payment, the debt- or’s standard of living will “fall below a ‘minimal’ level.” Brunner, 46 B.R. at 754. To evaluate this element, the court must review current income and expenses considering the particular circumstances of the case. Elmore, 230 B.R. at 26. The debtor must show more than that the repayment of the loan will require him or her to forbear significantly in personal and financial matters or that the debtor will endure a restricted budget. Elmore, 230 B.R. at 26. Moreover, even if the debtor shows a current inability to pay the student loan, that is not by itself sufficient to establish “undue hardship.” Rather, the second requirement of additional, exceptional circumstances suggests that the debtor must also evidence a “continuing inability to repay over an extended period of time.” Brunner, 831 F.2d at 396. This further requirement serves the purpose of making the discharge of student loans more difficult to obtain and insures that the hardship is “undue.” Id. The type of “additional circumstance” that would affect the debtor’s continuing ability to repay would be a circumstance that impacted on the debtor’s future earning potential but which was either not present when the debtor applied for the loans or has since been exacerbated. Otherwise, the debtor could have calculated that factor into its cost-benefit analysis at the time the debtor obtained the loan. An example of an additional circumstance impacting on the debtor’s future" }, { "docid": "15935478", "title": "", "text": "determine if excepting student loans from discharge will create an undue hardship on a debtor, the Ninth Circuit has adopted the three-part test established by the Second Circuit in Brunner. See Pena, 155 F.3d at 1112. To obtain a discharge of a student loan obligation, the debtor must prove: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. Under this test, the burden of proving undue hardship is on the debtor, and the debtor must prove all three elements before discharge can be granted. In re Faish, 72 F.3d 298, 306 (3d Cir.1995). If the debtor fails to satisfy any one of these requirements, “the bankruptcy court’s inquiry must end there, with a finding of no dischargeability.” Id. A The first prong of the Brunner test requires the debtor to prove that she “cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the loans.” Brunner, 831 F.2d at 396. To meet this requirement, the debtor must demonstrate more than simply tight finances. In re Nascimento, 241 B.R. 440, 445 (9th Cir. BAP 1999) (citation omitted). “In defining undue hardship, courts require more than temporary financial adversity, but typically stop short of utter hopelessness.” Id. (citation omitted). In this ease, the bankruptcy court found that Rifino was “barely living within a minimal standard” and that “there are no excess funds in her budget which could be used for repayment of the loans.” The bankruptcy court also noted that while “tilt is conceivable that [Rifino] could reduce some of the items in her budget, ... such reductions would be minimal and inconsequential.” NELA, Sallie Mae, the United States, and- the University of Washington" }, { "docid": "19571010", "title": "", "text": "her basic needs, whether expenditures on personal expenses are improvident, and whether plaintiff should be required to take steps to increase her income and, in particular, reduce her expenses. ii. Whether Additional Circumstances Exist In order to satisfy the second Brunner factor, a debtor must establish that her current inability to pay her student loan debt is likely to persist for a significant portion of the repayment period. Johnson , 550 B.R. at 880 ; Mosley , 330 B.R. at 842. In determining whether a debtor has met this second factor, courts consider the debtor's job skills, age, health, the number of working years remaining, and whether the debtor has maximized her income potential. Turturo , 522 B.R. at 427 ; Traversa v. Educ. Credit Mgmt. Corp. (Traversa) , 444 Fed. Appx. 472, 474-75 (2d Cir. 2011), cert. denied , 568 U.S. 817, 133 S.Ct. 135, 184 L.Ed.2d 29 (2012). In addressing this factor, a debtor must demonstrate that the additional circumstances point to a \"certainty of hopelessness\" and not merely a present inability to pay student loan debt. Mosley , 494 F.3d at 1326 ; Johnson , 550 B.R. at 880. Because the Court has determined that there are triable issues of fact concerning whether plaintiff has met the first Brunner factor, i.e., a current inability to make student loan payments, there is no basis for the Court to find that plaintiff's current state of affairs is likely to persist for a significant portion of the repayment period. The second factor focuses on a debtor's long-term ability to make student loan payments, and is premised upon there being a current inability to pay. \"The state of affairs referred to in the second prong is the determination made in the first prong, i.e. , that the debtor cannot maintain, based upon current income and expenses, a minimal standard of living for herself and her dependents if required to repay her student loan\". Douglas v. Educ. Credit Mgmt. Corp. (In re Douglas ) 366 B.R. 241, 255 (Bankr. M.D. Ga. 2007). Accordingly, because plaintiff has not made a sufficient showing at" }, { "docid": "19181418", "title": "", "text": "of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. The first prong of the Brunner test requires an examination of the debtor’s current expenses and income to determine if repayment of the loan would cause the debtor to fall below a minimal standard of living for the debtor and her dependents. This is a threshold matter which must be met before the Court examines the next two prongs. Because information involving the debtor’s current financial status is readily available, the debtor must, at the very least, “[demonstrate] that ... [s]he is unable to earn sufficient income to maintain [herjself and [her] dependents and to repay the educational debt.” Roberson, 999 F.2d at 1135 (quoting Commission on the Bankruptcy Laws of the United States, Report, H.R.Doc. No. 137, 93d Cong., 1st Sess., Pt. II, at 140 n. 15 (1973)). The second prong of this test requires that the debtor show that her strained financial condition, demonstrated by the application of the first prong of the test, will continue for a significant portion of the repayment period. This part of the test is consistent with Congress’s intention that there be “undue hardship” and not simply “ordinary hardship.” Mathews v. Higher Educ. Assistance Found. (In re Mathews), 166 B.R. 940, 943 (Bankr.D.Kan.1994). “[T]he dischargeability of student loans should be based upon the certainty of hopelessness, not simply a present inability to fulfill financial commitment.” Roberson, 999 F.2d at 1136 (quoting Briscoe v. Bank of New York (In re Briscoe), 16 B.R. 128, 131 (Bankr.S.D.N.Y.1981)). Therefore, the Court must determine whether there is a current inability to pay and, additionally, whether circumstances strongly suggest the debtor will be unable to repay over an extended period of time. Id. (citing Brunner, 831 F.2d at 396). After the debtor satisfies the first two prongs of the" }, { "docid": "17796783", "title": "", "text": "a “minimal” standard of living for himself or herself and his or her dependents if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loan; and (3) that the debtor has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. The first element of the Brunner test is satisfied. Currently, plan payments are $397 per month. This amount already exceeds Debtor’s disposable income which is listed as $351 in the schedules. If, in addition to plan payments, Debtor were forced to repay the student loans at a rate of $426.72 per month, she and her child could not “maintain a minimal standard of living.” The third element of the Brunner test is satisfied even though no payments were actually made towards the student loan debt. Debtor has not shown any bad faith as she has truly been financially unable to repay the loan. This inability to pay cannot be construed as bad faith. The second element is the problem. It requires that the court determine if the “less than minimal standard of living” is likely to continue for a significant portion of the repayment period of the loan. Projecting income over a period of years is a very difficult undertaking for a finder of fact. Such projections rest as much on evidence of future income prospects, which in this case is scant to nonexistent, as on common sense and experience, which are both highly subjective. But such a view into the future is virtually mandated by the statute and the Brunner test in its requirement that the court determine if “[the] state of affairs is likely to persist for a significant portion of the repayment period,” which is thirty years in this case. A complicating factor in predicting Debtor’s future disposable income is the fact that Debtor’s minor child will reach the age of majority and should no longer need Debt- or’s financial support. While that might be a significant financial event to Debtor, it is likely over this" }, { "docid": "21225900", "title": "", "text": "aff'd 831 F.2d 395 (2nd Cir.1987), choosing instead to leave the interpretation of the phrase to the courts. See Kapinos v. Graduate Loan Ctr., 243 B.R. 271, 274 (W.D.Va.2000). The Fourth Circuit has adopted the three part test set out by the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2nd Cir.1987), for determining whether an “undue burden” exists within the meaning of § 523. See Ekenasi v. Education Resources Institute, 325 F.3d 541, 546 (4th Cir.2003) (Chapter 13); Educational Credit Management Corporation v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir.2005) (Chapter 7). The Brunner test requires the debtor to prove: (1) that [she] cannot maintain a minimal standard of living for [her]self and [her] dependent[ ], based upon [her] current income and expenses, if [she] is required to repay the student loans; (2) that additional circumstances indicate that [her] inability to so do is likely to exist for a significant portion of the repayment period of the student loans; and (3) that [she] has made good faith efforts to repay the loans. Frushour, 433 F.3d at 400 (citing Brunner, 831 F.2d at 396). The evidence shows that the debtor maintains a minimal standard of living based solely on the monthly Social Security disability income she receives. She asserts that she would not be able to make payments on her educational loans if she obtained employment. Regardless of whether her assertion is correct, the debt- or has failed to show additional circumstances establishing that any current inability to pay will continue. The second prong of the Brunner test, that additional circumstances exist indicating that debt- or’s present inability to repay the student loans is likely to persist for significant portion of loan repayment period, requires a “certainty of hopelessness,” rather than simply a present inability to pay. In re O’Hearn, 339 F.3d 559, 564 (7th Cir.2003). See In re Weir, 296 B.R. 710, 716 (Bankr.E.D.Va.2002) (Undue hardship is not based on a present inability to pay but rather upon a “certainty of hopelessness that future payments cannot be made”)" }, { "docid": "2898794", "title": "", "text": "that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Id. (quoting Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987)). To satisfy the second prong, Barrett must show that circumstances indicate a “certainty of hopelessness, not merely a present inability to fulfill financial commitment.” Id. at 386 (quoting In re Roberson, 999 F.2d 1132, 1136 (7th Cir.1993)); see also In re Hornsby, 144 F.3d 433, 438 (6th Cir.1998) (observing that debtors “need not live in abject poverty before a discharge is forthcoming”). These circumstances may include, but are not limited to, “illness, disability, a lack of useable job skills, or the existence of a large number of dependents.” Id. Ultimately, the most important factor in satisfying the second prong is that the “additional circumstances” must be “beyond the debtor’s control, not borne of free choice.” Id. On appeal, ECMC does not challenge the bankruptcy court’s finding that Barrett satisfied the first prong of the Brunner test: that Barrett cannot maintain, based on current income and expenses, a “minimal” standard of living if forced to repay the loans. Rather, ECMC argues that Barrett was required, and failed, to provide expert corroborating evidence to carry his burden of proof in satisfying the second prong. In particular, ECMC contends that Barrett could not competently testify to his prognosis or future health, and that expert medical evidence was necessary to competently project Barrett’s future ability to repay his student loans. In our prior interpretations of “undue hardship” under 11 U.S.C. § 523(a)(8), we have not declared that expert medical evidence is necessary to corroborate a claim of “additional circumstances” premised on the debtor’s health. In Tirch, the most recent Sixth Circuit case to apply the Brunner test to § 523(a)(8), we held that a debtor’s student loans are nondischargeable where the debtor fails to demonstrate how her physical condition prevented her from working. Tirch, 409 F.3d at" }, { "docid": "21993539", "title": "", "text": "the debt would impose an “undue hardship” on the debtor. In the context of determining whether the failure to obtain a discharge of student loan debt would work an “undue hardship,” the Seventh Circuit has utilized a three-pronged ' test. First, the debtor must show “that he cannot maintain, based on current income and expenses, a minimal standard of living for himself and his dependents if forced to repay the loans.” Second, he must show “that additional circumstances exist indicating that the state of affairs is likely to persist for a significant portion of the repayment period of the student loans.” Third, the debtor must show “that [he] has made good faith efforts to repay the loans.” Goulet v. Educational Credit Management Corp., 284 F.3d 773, 776 (7th Cir.2002), citing In the Matter of Roberson, 999 F.2d 1132, 1135 (7th Cir.1993), Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987). Under the second prong of this undue hardship test, courts must consider whether there are any circumstances indicating that the debtor’s inability to both minimally support himself and his dependents and pay the student loan debts will persist for a significant portion of the loan repayment period. The second prong of this test, according to the Seventh Circuit, “imputes to the meaning of ‘undue hardship’ a requirement that the debtor show his dire financial condition is likely to exist for a significant portion of the repayment period.... Accordingly, the dischargeability of student loans should be based on the certainty of hopelessness, not simply a present inability to fulfill financial commitment.” Goulet, 284 F.3d at 778, quoting Roberson, 999 F.2d at 1135-36. When analyzing whether repayment of student loan debt would work an undue hardship on a debtor, then, the Seventh Circuit asked whether the debtor’s employment situation was hopeless, and whether the debtor had made any good-faith efforts to repay the loans. The trustee’s argument in this case — that the debt- or has the ability to work, and that she hasn’t really tried to exercise that ability— implies a similar analysis. In fact," }, { "docid": "16549271", "title": "", "text": "(analyzing the bankruptcy court’s grant of a partial discharge of student loans under Brunner). Very recently, however, we explicitly adopted the Brunner test. In re Oyler, 397 F.3d 382, 385 (6th Cir.2005). Accordingly, in this circuit, a debtor seeking a partial discharge of student loans due to “undue hardship” must make a three-part showing: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. Because PHEAA concedes that under her current circumstances, Tirch cannot maintain a minimal standard of living if forced to repay the loans, this case turns on the second and third prongs of the Brunner test. After examining the record of the proceedings in the bankruptcy court, we conclude that Tirch failed to carry her burden on either of these prongs. To demonstrate that the debtor’s current “state of affairs is likely to persist for a significant portion of the repayment period of the student loans,” as required by Brunner’s second prong, the debtor must precisely identify her problems and explain how her condition would impair her ability to work in the future. In re Brightful, 267 F.3d 324, 330 (3d Cir.2001); In re Paolini, No. 95-3516, 1997 WL 476515 at * 5 (6th Cir. Aug.19, 1997). The dischargeability of loans should be based upon “a certainty of hopelessness, not merely a present inability to fulfill financial commitment.” Oyler, 397 F.3d at 386 (quoting In re Roberson, 999 F.2d 1132, 1136 (7th Cir.1993)). Tirch has not made this showing. Tirch testified that she continues to experience problems arising from her rectal surgery, including irregularity and loss of taste, but she did not provide evidence that these physical problems would preclude her from working. Instead, she explained that “[a]t this point I can’t help" }, { "docid": "23193222", "title": "", "text": "per week on her loans, she would be unable to maintain a “minimal” standard of living for herself based on her current income. In addition, the Bankruptcy Court did not err in finding that Appellee was minimizing her expenses. The Bankruptcy Court erroneously concluded, however, that Appellee was maximizing her personal resources. The Court holds that Appellee, who made no attempt to supplement her income by taking on additional work and who, despite possessing other marketable skills, did not seek to obtain higher paying work outside of her desired field, did not establish, by a fair preponderance of the evidence, that she is making a strenuous effort to maximize her personal income within the practical limitations of her vocational profile. See North Dakota State Board of Higher Education v. Frech, 62 B.R. 235, 241 (Bankr.D.Minn.1986). Accordingly, Appel-lee did not satisfy the first prong of the Brunner test. Additional Circumstances Even if Appellee could somehow satisfy the first prong of the Brunner test her student loan debts would still - not be dis-chargeable under § 523(a)(8)(B), as the Court’s inquiry under that section is not limited to a snapshot assessment of a debtor’s present ability to pay off the loans. Under the second prong of the test, Appellee must show, by a fair preponderance of the evidence, that additional circumstances exist indicating that the described state of affairs is likely to persist for a significant portion of the repayment period of the student loans. See Brunner v. New York State Higher Education Services, 831 at 396. The repayment periods for the $35,000 and $8,000 student loans owed to Appellants MHEAC and TERI are, respectively, twenty years and ten years. The Bankruptcy Court found that, based upon Appellee’s testimony at trial, her income “... is not likely to increase substantially in the foreseeable future.” Opinion 9. Although predicting future income is difficult, Brunner, 831 F.2d at 396, and although her testimony was (as the Bankruptcy Judge noted) “unrebutted,” the record nevertheless demonstrates no “additional circumstances” which indicate a likelihood that Appellee’s current inability to simultaneously repay the loans and maintain a minimal" }, { "docid": "23193223", "title": "", "text": "as the Court’s inquiry under that section is not limited to a snapshot assessment of a debtor’s present ability to pay off the loans. Under the second prong of the test, Appellee must show, by a fair preponderance of the evidence, that additional circumstances exist indicating that the described state of affairs is likely to persist for a significant portion of the repayment period of the student loans. See Brunner v. New York State Higher Education Services, 831 at 396. The repayment periods for the $35,000 and $8,000 student loans owed to Appellants MHEAC and TERI are, respectively, twenty years and ten years. The Bankruptcy Court found that, based upon Appellee’s testimony at trial, her income “... is not likely to increase substantially in the foreseeable future.” Opinion 9. Although predicting future income is difficult, Brunner, 831 F.2d at 396, and although her testimony was (as the Bankruptcy Judge noted) “unrebutted,” the record nevertheless demonstrates no “additional circumstances” which indicate a likelihood that Appellee’s current inability to simultaneously repay the loans and maintain a minimal standard of living will extend for a significant portion of the loan repayment period. Appellee is not disabled. She has no dependents. She is not ill or elderly. She is mentally competent, and then some. Although presently short on practical teaching experience, she is making progress on that front. See Brunner, 831 F.2d at 396 (debtor with Bachelor of Arts degree and Masters degree who had no dependents and was healthy, intelligent, and well-educated failed to show additional circumstances to indicate that current state of affairs was likely to persist for a significant portion of the student loans); In re Webb, 132 B.R. at 201 (no additional circumstances existed to indicate a likelihood that current inability to find any work would extend for significant period of time when debtor was not disabled or elderly, and was “educated, experienced, and articulate.”); cf In the Matter of Diaz, 5 B.R. 253 (Bankr.W.D.N.Y.1980) (student loan was dischargeable when debtor could only work half a day because of physical problems, was impoverished, partially deaf, cardiac, divorced from her institutionalized" }, { "docid": "4273900", "title": "", "text": "v. U.S. Dept. of Educ. (In re Cota), 298 B.R. 408, 423 (Bankr.D.Ariz.2003). The Ninth Circuit has adopted a three-part test for “undue hardship”: First, the debtor must establish “that she cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the loans.”... Second, the debtor must show “that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans.” The third prong requires “that the debt- or has made good faith efforts to repay the loans.... ” Pena, 155 F.3d at 1111 (quoting Brunner, 831 F.2d at 396). Debtor must satisfy all three parts of the Brunner test before her student loans can be discharged. See Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1173 (9th Cir.2003); United Student Aid Funds, Inc. v. Nascimento (In re Nascimento), 241 B.R. 440, 444 (9th Cir. BAP 1999) (“The Bmnner Test has three parts which the court must consider before deciding whether to except a stu dent loan from discharge.”); see also Strauss v. Student Loan Office (In re Strauss), 216 B.R. 638, 641 (Bankr. N.D.Cal.1998) (each prong must be proven separately). Failure to prove any of the three prongs will defeat a debtor’s case. The bankruptcy court apparently determined that Debtor met the first Brunner prong, because it found that she “is clearly incapable of repaying more than a portion of her student loans.” Thus, it found that she was incapable of repaying the $85,000 and still maintaining a minimal standard of living. Neither party has challenged that finding in this appeal. A. “Additional Circumstances” Test The focus of this appeal is the court’s ruling on the second Brunner prong, which requires the debtor to show “that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans.” Brunner, 831 F.2d at 396. Stated in the affirmative, this part of the Brunner test considers whether there is" }, { "docid": "19571006", "title": "", "text": "obligation will impose an undue hardship on her. To prevail on this claim, plaintiff must show that (1) she cannot maintain, based on her current income and expenses, a \"minimal\" standard of living for herself and her dependents if forced to repay the loans, (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans, and (3) she has made good faith efforts to repay the loans. Brunner , 831 F.2d at 396. Plaintiff has the burden of proving by a preponderance of evidence that her student loan debt should be discharged, especially on the basis of \"undue hardship\". Turturo v. Access Group, Inc. (In re Turturo) , 522 B.R. 419, 426 (Bankr. N.D.N.Y. 2014) (citing Grogan v. Garner , 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ). \"If one of the requirements of the Brunner test is not met, the bankruptcy court's inquiry must end there, with a finding of no dischargeability.\" Williams v. N.Y. State Higher Educ. Serv. Corp. , 296 B.R. 298, 302 (S.D.N.Y. 2003), aff'd , 84 Fed. Appx. 158 (2d Cir. 2004) (quoting Pa. Higher Educ. Assistance Agency v. Faish (In re Faish) , 72 F.3d 298, 306 (3d Cir. 1995), cert. denied , 518 U.S. 1009, 116 S.Ct. 2532, 135 L.Ed.2d 1055 (1996) ; see also Bacote v. Educ. Credit Mgmt. Corp. , 2006 WL 3732993, at *8, 2006 Bankr. LEXIS 4645, at *23 (Bank. S.D.N.Y. 2006) (citing Williams ). i. Minimal Standard of Living In determining whether a debtor has satisfied the first Brunner factor, courts focus on household income and the expenses necessary to meet a debtor's basic needs, such as food, shelter, clothing, transportation and medical treatment, and assess whether a debtor has sought to maximize income while minimizing certain discretionary expenses. Pincus , 280 B.R. at 318. A debtor need not \"live a life of abject poverty, but it does require 'more than a showing of tight finances.' \" Johnson v. Sallie Mae Inc. (In re Johnson) , 550 B.R. 874," }, { "docid": "21225901", "title": "", "text": "has made good faith efforts to repay the loans. Frushour, 433 F.3d at 400 (citing Brunner, 831 F.2d at 396). The evidence shows that the debtor maintains a minimal standard of living based solely on the monthly Social Security disability income she receives. She asserts that she would not be able to make payments on her educational loans if she obtained employment. Regardless of whether her assertion is correct, the debt- or has failed to show additional circumstances establishing that any current inability to pay will continue. The second prong of the Brunner test, that additional circumstances exist indicating that debt- or’s present inability to repay the student loans is likely to persist for significant portion of loan repayment period, requires a “certainty of hopelessness,” rather than simply a present inability to pay. In re O’Hearn, 339 F.3d 559, 564 (7th Cir.2003). See In re Weir, 296 B.R. 710, 716 (Bankr.E.D.Va.2002) (Undue hardship is not based on a present inability to pay but rather upon a “certainty of hopelessness that future payments cannot be made”) (quoting In re Love, 33 B.R. 753, 755 (Bankr.E.D.Va.1983)). The “certainty of hopelessness” in making future payments is “based on the ‘presence of “unique” or “extraordinary” circumstances which would render it unlikely that the debtor ever would be able to honor his [or her] obligations.’ ” In re Malloy, 155 B.R. 940, 945 fn. 5 (E.D.Va.1993) (quoting In re Ballard, 60 B.R. 673, 674-75 (Bankr.W.D.Va.1986)). Serious illness is generally recognized “as one of the most frequent bases for demonstrating unique or exceptional circumstances justifying a determination of undue hardship.” In re Hoskins, 292 B.R. 883, 887 (Bankr.C.D.Ill.2003) (citing Brunner); see In re Pace, 288 B.R. 788, 792 (Bankr.S.D.Ohio 2003) (“A significant focus regarding the undue hardship inquiry centers around medical conditions that are so serious, that they impair a debtor’s earning capacity for the duration of the repayment period”). The debtor has alleged that she suffers from a mental condition that makes it impossible for her to work. Consequently, in order to find that the second prong of the Brunner standard is satisfied, the Court" } ]

[ { "docid": "22359099", "title": "", "text": "(FTCA). The District Court dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse-of-process claim against the inspectors. Moore v. Valder, Civil Action No. 3:91-CV-2491-G (ND Tex., Sept. 21, 1992). The claims remaining were transferred to the District Court for the District of Columbia, where Moore’s suit was dismissed in its entirety, Civ. Nos. 92-2288 (NHJ), 93-0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals for the District of Columbia Circuit reinstate the retaliatory-prosecution claim. Moore v. Valder, 65 F. 3d 189 (1995). The District Court then permitted limited discovery on that matter so far as the inspectors were involved, but again dismissed the remaining charges against the United States and the prosecutor. Moore v. Valder, Civil Action No. 92-2288 (NHJ) et al., Record, Tab No. 32 (Memorandum Opinion, Feb. 5,1998). Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed. Moore v. United States, 213 F. 3d 705 (2000). With the remainder of the case back in District Court, the inspectors moved for summary judgment, urging that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed. 388 F. 3d 871 (2004). The Courts of Appeals have divided on the issue of requiring evidence of a lack of probable cause in 42 U. S. C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burden plaintiffs with the obligation to show its absence. See, e. g., Wood v. Kesler, 323 F. 3d 872, 883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260 (CA5 2002); Mozzochi v. Borden, 959 F. 2d 1174, 1179-1180 (CA2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e. g., Poole v. County of Otero, 271 F. 3d 955, 961 (CA10 2001); Haynesworth v. Miller, 820 F. 2d 1245, 1256-1257 (CADC 1987)." } ]

[ { "docid": "22284944", "title": "", "text": "of a prior debt. In June 1981, the Hawaii Bank Examiner, through defendant Bitterman, directed Thrift Guaranty to take action regarding Pacific Loan’s precarious financial condition. Thrift Guaranty took over the assets and management of Pacific Loan. By paying off claims against Pacific Loan, Thrift Guaranty assumed Pacific Loan’s claims against its debtors. Because McCarthy and his associates had borrowed substantial sums from Pacific Loan, they were suspected of being responsible for Pacific Loan’s financial collapse. This suspicion led to civil and criminal suits. Civil litigation resulted in a district court judgment that the transfer of property from Velzeyland and American Resources, Ltd. to Pacific Loan was illegal and did not satisfy the prior debt, which therefore remained due and owing. Hawaii Special Deputy Attorneys General Mayo and Eggers brought the first criminal indictment against McCarthy. The indictment was dismissed because the statute of limitations had run. The Hawaii Supreme Court affirmed the dismissal. Defendant Mayo was then appointed Special Assistant United States Attorney and sought a federal grand jury indictment. Some of the counts were dismissed before trial, and McCarthy was acquitted of the others after the prosecution rested its case. See McCarthy v. Pacific Loan, Inc., 629 F.Supp. 1102, 1104 (D.Hawaii), appeal dismissed, 789 F.2d 921 (9th Cir.1986). On February 14, 1986, McCarthy filed suit in federal court alleging violation of his constitutional and civil rights by numerous defendants. He contended that the criminal prosecutions constituted malicious prosecution. Motions by the defendants for summary judgment and dismissal caused McCarthy to move to amend his complaint. Those motions were argued in the same proceeding. The district court granted McCarthy leave to amend, and then granted summary judgment in favor of the state defendants because; the prosecutors had absolute immunity; Plotnick and Creative Resources, Inc. (private investigators) enjoyed qualified immunity to the extent that they were agents of the state; and the regulatory defendants enjoyed qualified immunity since there was no allegation that they acted beyond the scope of their discretion. The district court dismissed the action against the non-governmental defendants because the amended complaint failed to state a claim" }, { "docid": "23076441", "title": "", "text": "also equated baselessness” with “lack of probable cause.” See Pacific Gas & Elec. Co. v. Bear Stearns, 50 Cal.3d 1118, 1131, 270 Cal.Rptr. 1, 791 P.2d 587 (1990); Ludwig v. Superior Court, 37 Cal.App.4th 8, 25, 43 Cal.Rptr.2d 350 (1995). Although the issues of objective base-lessness for the No'err-Pennington analysis and lack of probable cause for the malicious prosecution claim are essentially the same, it does not follow that Hydra-nautics is collaterally estopped from litigating the issues of fraud on the Patent Office and perjury in the infringement case. No court has yet decided whether the ’344 patent was procured through fraud or whether FilmTee knowingly offered false testimony at trial. The Federal Circuit appears to have predicated its finding that the infringement action was not objectively baseless on the facts as found by the district court. It expressly stated that it was not addressing the issue of whether the patent had been obtained by fraud. The issues of fraud and perjury which Hydranautics seeks to litigate in its malicious prosecution action are not clearly identical to the issues litigated in the infringement action. B. Res Judicata Although the district court did not reach the issue of res judicata, FilmTee nonetheless alternatively argues for affirmance on res judicata grounds. See Austin v. McNamara, 979 F.2d 728, 738 (9th Cir. 1992) (“We may affirm the district court on a ground not selected by the district judge so long as the record fairly supports such an alternative disposition of the issue.”) (quoting Fidelity Financial Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1437 (9th Cir.1986)). Res judicata, or claim preclusion, “treats a judgment, once rendered, as the full measure of relief to be accorded between the parties on the same ‘claim’ or ‘cause of action.’ ” Robi v. Five Platters Inc., 838 F.2d 318, 321 (9th Cir.1988) (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Mack, Inc., 575 F.2d 530, 535 (5th Cir.1978)). An action is barred under res judicata where (1) the prior litigation involved the same parties or their privies, (2) the prior litigation was terminated by a" }, { "docid": "12434554", "title": "", "text": "court. ‘ II. THE ATTACHMENT On appeal, Jenson argues that the FDIC’s attachment of his principal asset was a preferential transfer. He also contends that the district court erred in refusing to reconsider a 1987 district court order denying his pre-bankruptcy motion to discharge the writ of attachment. He challenges the district court’s issuance of the ex parte writ of attachment on the ground that it deprived him of due process and equal protection of the laws and constituted a taking without just compensation. Jenson further contends that the district court denied him due process when it misal-located the burden of proof and refused to consider his affirmative defenses during proceedings to dissolve the attachment. The FDIC maintains that Jenson’s constitutional claims are barred by res judicata. When there has been a final judgment on the merits by a court of competent jurisdiction, the doctrine of res judicata, or claim preclusion, bars the parties or their privies from relitigating issues that were or could have been raised in the prior proceeding. See, e.g., Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981); Robi v. The Five Platters, Inc., 838 F.2d 318, 321-22 (9th Cir.1988). The preclusive effect of a prior judgment is a question of law subject to de novo review. Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir.1988). Jenson’s constitutional challenge to the Nevada attachment statute is barred by res judicata if it was the subject of a prior final judgment. Here there are two candidates for a preclusive prior judgment: the dis trict court’s October 21, 1987 order denying Jenson’s motion to vacate the writ of attachment, and the bankruptcy court’s July 5, 1989 judgment in favor of the FDIC in the deficiency action. A. The October 1987 Order The district court treated the former adjudication as the preclusive event, holding that the October 21, 1987 order denying Jenson’s motion to discharge the writ of attachment was res judicata with respect to Jenson’s present constitutional challenge to NRS § 31.017(5). The October 1987 order," }, { "docid": "22365434", "title": "", "text": "receive authorization or notify the court and grand jury foreman cannot be attributed to mistake or some other reasonable error in judgment. Lacey and Larkin have thus alleged that Wilenchik violated their Fourth Amendment right to be free from false arrest by ordering their arrests without probable cause to do so. As alleged, the Fourth Amendment violation is obvious. Wilenchik is not entitled to qualified immunity with regard to Lacey’s and Larkin’s false arrest claims, and those claims may proceed. c. Malicious Prosecution Lacey also brings a § 1983 claim for malicious prosecution. The district court dismissed this claim because it found that Lacey failed to show that there was no probable cause for the arrests. To claim malicious prosecution, a petitioner must allege “that the defendants prosecuted her with malice and without probable cause, and that they did so for the purpose of denying her equal protection or another specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995); see also Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1204 (9th Cir.2003) (stating that malicious prosecution “concernís] the wrongful use of legal process”). It requires “the institution of criminal proceedings against another who is not guilty of the offense charged” and that “the proceedings have terminated in favor of the accused.” Restatement (Second) of Torts § 653 (1977). In general, a claim of malicious prosecution is not cognizable under § 1983 “if process is available within the state judicial systems” to provide a remedy, although “we have also held that an exception exists ... when a malicious prosecution is conducted with the intent to ... subject a person to a denial of constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc). Lacey has not alleged that there was any “prosecution,” nor has he alleged that any criminal proceeding was terminated in his favor. Although being “lawfully arrested on a criminal charge” may be considered the institution of a criminal proceeding, Restatement (Second) of Torts § 654(2)(c), where “the arrest is not a valid one, an action for malicious" }, { "docid": "13077304", "title": "", "text": "date that Davis’ indictment was dismissed (February 1991) because such claims could not have been brought until the criminal proceedings against Davis were terminated in his favor. . With respect to Yingling, the district court dismissed the malicious prosecution claims for insufficient pleading. See infra note 21. . Plaintiff does not challenge the district court's determination that the various section 1983 claims (save the malicious prosecution claims) were untimely. . We are mindful that the applicability of the statute of limitations usually implicates factual questions as to when plaintiff discovered or should have discovered the elements of the cause of action; accordingly, \"defendants bear a heavy burden in seeking to establish as a matter of law that the challenged claims are barred.” Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 498 (3d Cir.1985). . In urging the district court to dismiss the RICO claims, defendants argued not only that the claims were time-barred, but also that (1) trafficking in stolen goods did not constitute predicate criminal activity when done by law enforcement officials in good faith and as part of their employment, and (2) plaintiff had failed to describe either a \"pattern” of racketeering or a RICO injury. Finding the RICO claims to be untimely, the district court did not address these additional arguments. Because we conclude that the RICO claims were properly dismissed on statute of limitations grounds, we similarly need not consider these alternative grounds for dismissal. . Because the statute of limitations for civil RICO violations is derived from an analogous federal statute (rather than borrowed from state law), see Malley-Duff, supra, federal fraudulent concealment doctrine, rather than state fraudulent concealment doctrine, is adopted for civil RICO claims. See, e.g., McCool v. Strata Oil Co., 972 F.2d 1452, 1463 (7th Cir.1991); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir.1988); cf. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.1988) (applying federal fraudulent concealment doctrine to Clayton Act claims). . In addition to plaintiff ignorance of the cause of action persisting into the limitations period, the other elements of" }, { "docid": "22284957", "title": "", "text": "did allege race-based animus and a favorable termination of criminal prosecutions. He also claims that he alleged sufficient facts to prove control of the criminal prosecutions by the nongovernmental defendants and that a disputed question of material fact exists on the issue of control. We have carefully reviewed the record. Conclusory allegations with nothing more are insufficient to defeat the motion to dismiss. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 583 (9th Cir.1983). 4. State Law Claims A. Malicious Prosecution McCarthy contends that the district court erred in dismissing his state law claim for malicious prosecution. Hawaii law identifies three elements in a claim for malicious prosecution: termination of prior proceedings in plaintiff's favor; initiation of those proceedings without probable cause; and initiation of those proceedings with malice. Myers v. Cohen, 67 Haw. 389, 688 P.2d 1145 (1984). McCarthy’s complaint does allege that all prior proceedings terminated in his favor. But his claim lacks the requisite element of lack of probable cause. In a federal prosecution, a grand jury determines whether probable cause exists. See United States v. Sells Engineering, Inc., 463 U.S. 418, 423, 103 5. Ct. 3133, 3137, 77 L.Ed.2d 743 (1983). McCarthy was indicted by a grand jury, and his allegations of prosecutorial misconduct during the grand jury proceedings are insufficient to state a claim that the indictment was constitutionally infirm. The grand jury’s determination of probable cause is a barrier to McCarthy’s ability to state a claim of malicious prosecution based on the fact of his federal prosecution. Under Hawaii law, a grand jury also functions to determine whether probable cause exists. See State v. Jenkins, 1 Haw.App. 430, 620 P.2d 263, 267 (1980). There is also a presumption that the grand jury acted upon sufficient and legal evidence. Id.; see also State v. Apao, 59 Haw. 625, 637-38, 586 P.2d 250 (1978) (burden is on the defendant to present evidence that the grand jury deliberations were so infected as to invalidate the indictment). McCarthy’s allegations of prosecutorial misconduct during the state grand jury proceedings are wholly vague, conclusory, and insufficient to overcome" }, { "docid": "5410528", "title": "", "text": "P.2d 297, 305 (Colo.1981). Furthermore, the notice and hearing rights under a zoning ordinance are procedural only and do not give rise to an independent interest protected by the fourteenth amendment. Fusco v. Connecticut, 815 F.2d 201, 205-06 (2nd Cir.1987). Winslow further alleges that defendants acted improperly in encouraging the district attorney to file charges against him for influencing a public official. The complaint does not indicate the legal theory upon which these allegations are based. Construing the complaint broadly and assuming Winslow is relying on § 1983, the allegations fail to state a claim. First, as a general rule, § 1983 does not give rise to a claim for malicious prosecution. See, e.g., Tarkowski v. County of Lake, 775 F.2d 173, 175 (7th Cir.1985). Only when officials “conspire to procure groundless state indictments and charges based upon fabricated evidence or false, distorted, perjurious testimony presented to official bodies in order to maliciously bring about a citizen’s trial or conviction” will a cause of action arise under § 1983. Anthony v. Baker, 767 F.2d 657, 662 (10th Cir.1985). There are no such allegations here. Second, even assuming this requirement is met, an action under § 1983 will not lie where there has been a determination that the charges filed were based on probable cause. See McCarthy v. Mayo, 827 F.2d 1310, 1316-17 (9th Cir.1987). This court takes judicial notice of the decision in the criminal case filed in Morgan County district court against Winslow, wherein the court stated: “On September 14, 1989, a Preliminary Hearing was conducted which resulted in a finding that the prosecution had met its burden of proving probable cause to believe that Defendant [Winslow] committed a violation of C.R.S. 18-8-306.” The allegations simply do not state a claim under § 1983 for malicious prosecution. Finally, to the extent Winslow intended to state a claim under state law for malicious prosecution, the existence of probable cause is likewise preclusive. Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 272 P.2d 643, 645 (1954); see also Wolford v. Blinder, Robinson & Co., 793 P.2d 620, 623 (Colo.App.1990), cert." }, { "docid": "23076442", "title": "", "text": "identical to the issues litigated in the infringement action. B. Res Judicata Although the district court did not reach the issue of res judicata, FilmTee nonetheless alternatively argues for affirmance on res judicata grounds. See Austin v. McNamara, 979 F.2d 728, 738 (9th Cir. 1992) (“We may affirm the district court on a ground not selected by the district judge so long as the record fairly supports such an alternative disposition of the issue.”) (quoting Fidelity Financial Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1437 (9th Cir.1986)). Res judicata, or claim preclusion, “treats a judgment, once rendered, as the full measure of relief to be accorded between the parties on the same ‘claim’ or ‘cause of action.’ ” Robi v. Five Platters Inc., 838 F.2d 318, 321 (9th Cir.1988) (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Mack, Inc., 575 F.2d 530, 535 (5th Cir.1978)). An action is barred under res judicata where (1) the prior litigation involved the same parties or their privies, (2) the prior litigation was terminated by a final judgment on the merits, and (3) the prior litigation involved the same “claim” or “cause of action” as the later suit. See Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 323-324, 91 S.Ct. 1434, 1439-1440, 28 L.Ed.2d 788 (1971). The parties here dispute only whether the same “claim” or “cause of action” is involved in the two suits. The claim or cause of action that is now being asserted by Hydranautics in its malicious prosecution case was not determined in the patent infringement litigation. The Federal Circuit established that Hydranautics could not bring an antitrust counterclaim in the infringement action because the facts presented by FilmTee showed it had a legally tenable claim. The Federal Circuit did not determine whether FilmTee acted fraudulently in prosecuting its patent application or infringement claims. FilmTee does have an interest established by the Federal Circuit’s determination that, based on the facts FilmTee presented in the infringement case, it had a legally tenable claim. That interest is not impaired if Hydranautics is allowed to pursue an action" }, { "docid": "22284956", "title": "", "text": "only warranted in flagrant cases of prosecutorial misconduct). In addition, the person directly responsible for any fifth amendment violation, the prosecutor, is absolutely immune from suit. Finally, to state a claim against the other defendants, McCarthy would have to allege that those individuals controlled the decision-making process of the prosecutor. See Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir.1986). The complaint contains neither an allegation of control nor the facts to support such an allegation. McCarthy has therefore failed to state a claim under section 1983 against the bank examiner defendants for any prosecutorial misconduct during the grand jury proceedings. 3. Non-Governmental Defendants The district court dismissed McCarthy's amended complaint as to the non-governmental defendants because: the amended complaint failed to state a claim upon which relief could be granted under sections 1983 and 1985; it failed to state a claim for malicious prosecution since it failed to allege that the prosecution terminated in McCarthy’s favor; and it failed to allege satisfactorily that those defendants controlled the prosecution. McCarthy claims that he did allege race-based animus and a favorable termination of criminal prosecutions. He also claims that he alleged sufficient facts to prove control of the criminal prosecutions by the nongovernmental defendants and that a disputed question of material fact exists on the issue of control. We have carefully reviewed the record. Conclusory allegations with nothing more are insufficient to defeat the motion to dismiss. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 583 (9th Cir.1983). 4. State Law Claims A. Malicious Prosecution McCarthy contends that the district court erred in dismissing his state law claim for malicious prosecution. Hawaii law identifies three elements in a claim for malicious prosecution: termination of prior proceedings in plaintiff's favor; initiation of those proceedings without probable cause; and initiation of those proceedings with malice. Myers v. Cohen, 67 Haw. 389, 688 P.2d 1145 (1984). McCarthy’s complaint does allege that all prior proceedings terminated in his favor. But his claim lacks the requisite element of lack of probable cause. In a federal prosecution, a grand jury determines whether probable" }, { "docid": "23686794", "title": "", "text": "claims. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). . Although malice alone is not sufficient to deprive a judge of absolute immunity, we note that the record does not show malice, but only mistake. GOULD, Circuit Judge, concurring: At trial and on this appeal, Sadoski stated that her claims against defendants Bell, Roger, and Crawford would fail if we concluded that Judge Mosley was entitled to absolute immunity. The district court accepted Sadoski’s concession and did .not separately address the standards for immunity of the prosecutors and of the corrections official. The opinion of our court on this appeal also accepts the appellant’s concession and does not address the immunity .standards for the other defendants. To avoid the risk that a reader might think incorrectly that the immunity of the prosecutor and the corrections official turns on the resolution of the issue, of. judicial iim munity, I write separately to express the view that the prosecutor and the eorrec-tiong official would here have immunity even if Judge Mosley had acted in the clear absence of all jurisdiction. Generally, a prosecutor is immune from civil liability for actions taken during the course of the prosecutor’s duties. See Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.1986) (“Where a prosecutor acts as an advocate in initiating.a prosecution and in presenting the state’s case, absolute immunity applies.” (internal quotations omitted)). Defendants Bell and Roger were acting as advocates when they participated in Sadoski’s re-sentencing and subsequent parole revocation, and they are entitled to immunity for their actions in this case. See id. This would be true even if Judge Mosley had acted in the clear absence of all jurisdiction. We have not considered whether a type of absolute immunity applies to a corrections official who imprisons a defendant pursuant to a facially valid judicial order. We have said, however, that “[t]he fearless and unhesitating execution of court orders is essential if the court’s authority and ability to function are to remain uncompromised.” Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 765 (9th Cir.1987) (concluding that" }, { "docid": "23686795", "title": "", "text": "in the clear absence of all jurisdiction. Generally, a prosecutor is immune from civil liability for actions taken during the course of the prosecutor’s duties. See Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.1986) (“Where a prosecutor acts as an advocate in initiating.a prosecution and in presenting the state’s case, absolute immunity applies.” (internal quotations omitted)). Defendants Bell and Roger were acting as advocates when they participated in Sadoski’s re-sentencing and subsequent parole revocation, and they are entitled to immunity for their actions in this case. See id. This would be true even if Judge Mosley had acted in the clear absence of all jurisdiction. We have not considered whether a type of absolute immunity applies to a corrections official who imprisons a defendant pursuant to a facially valid judicial order. We have said, however, that “[t]he fearless and unhesitating execution of court orders is essential if the court’s authority and ability to function are to remain uncompromised.” Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 765 (9th Cir.1987) (concluding that a social worker who sought, obtained, and executed a court order to remove a child from her mother’s care was entitled to absolute quasi-judicial immunity). If this issue were reached, I would agree with the Eighth Circuit that a corrections official who executes a valid court order is entitled to absolute immunity from liability based on the fact of a prisoner’s incarceration. See Patterson v. Von Riesen, 999 F.2d 1235, 1241 (8th Cir.1993) (“We simply conclude that a warden is absolutely immune from damages flowing from the fact of a prisoner’s incarceration, when that incarceration occurs pursuant to a facially valid order of confinement.”). Permitting Sadoski’s suit to proceed against Crawford would create a risk of harassing litigation aimed at corrections officials who are entitled to absolute immunity when they follow a facially valid court order. This, again, would be true even if Judge Mosley had acted in a clear absence of all jurisdiction. It is a reasonable judicial procedure to accept the stipulation of Sadoski’s counsel that we should affirm the district court’s dismissal" }, { "docid": "22284958", "title": "", "text": "cause exists. See United States v. Sells Engineering, Inc., 463 U.S. 418, 423, 103 5. Ct. 3133, 3137, 77 L.Ed.2d 743 (1983). McCarthy was indicted by a grand jury, and his allegations of prosecutorial misconduct during the grand jury proceedings are insufficient to state a claim that the indictment was constitutionally infirm. The grand jury’s determination of probable cause is a barrier to McCarthy’s ability to state a claim of malicious prosecution based on the fact of his federal prosecution. Under Hawaii law, a grand jury also functions to determine whether probable cause exists. See State v. Jenkins, 1 Haw.App. 430, 620 P.2d 263, 267 (1980). There is also a presumption that the grand jury acted upon sufficient and legal evidence. Id.; see also State v. Apao, 59 Haw. 625, 637-38, 586 P.2d 250 (1978) (burden is on the defendant to present evidence that the grand jury deliberations were so infected as to invalidate the indictment). McCarthy’s allegations of prosecutorial misconduct during the state grand jury proceedings are wholly vague, conclusory, and insufficient to overcome the presumption that the state grand jury’s determination of probable cause was correct. B. Pendent Claims McCarthy set forth approximately fifteen other claims for relief in his amended complaint, many of which constitute state law claims. All of the claims for relief rely on the same facts as his federal claim, and are merely alternative theories of recovery. The pendent state claims were properly before the district court. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The issue then is whether the district court properly exercised its discretion in reaching the merits of the state law claims after dispensing with the federal claims on their merits. See Rosado v. Wyman, 397 U.S. 397, 404-05, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970) (distinguishing this situation from a dismissal for lack of subject matter jurisdiction); Bale v. General Telephone Co., 795 F.2d 775, 778 (9th Cir.1986). It is usually appropriate to dismiss pendent state claims when federal claims are dismissed before trial. See Schultz v. Sundberg," }, { "docid": "5410529", "title": "", "text": "662 (10th Cir.1985). There are no such allegations here. Second, even assuming this requirement is met, an action under § 1983 will not lie where there has been a determination that the charges filed were based on probable cause. See McCarthy v. Mayo, 827 F.2d 1310, 1316-17 (9th Cir.1987). This court takes judicial notice of the decision in the criminal case filed in Morgan County district court against Winslow, wherein the court stated: “On September 14, 1989, a Preliminary Hearing was conducted which resulted in a finding that the prosecution had met its burden of proving probable cause to believe that Defendant [Winslow] committed a violation of C.R.S. 18-8-306.” The allegations simply do not state a claim under § 1983 for malicious prosecution. Finally, to the extent Winslow intended to state a claim under state law for malicious prosecution, the existence of probable cause is likewise preclusive. Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 272 P.2d 643, 645 (1954); see also Wolford v. Blinder, Robinson & Co., 793 P.2d 620, 623 (Colo.App.1990), cert. dismissed, — U.S. —, 111 S.Ct. 452, 112 L.Ed.2d 433 (1990). In addition to the above claims, Winslow alleges that County Attorney Wells violated his civil rights by convincing the County to institute two civil proceedings limiting Winslow’s access to Morgan County Courts “when he knew, or should have known, that Morgan County had no standing to take such action.” Complaint, ¶ 22. In addition to the fact that this claim is likely barred by the statute of limitations, it fails to state a claim as a matter of law. In Board of County Commissioners v. Winslow, 706 P.2d 792 (Colo.1985), the Colorado Supreme Court upheld the district court’s decision granting the County’s petition to enjoin Winslow from further pro se appearances in that court. Obviously, the County had standing to institute such an action. Furthermore, the court held in that case that Winslow’s constitutional rights were not violated by the relief order. Id. at 794. Winslow is precluded from further contesting that ruling here. Winslow also alleges that Wells violated 18 U.S.C. § 308." }, { "docid": "11850665", "title": "", "text": "res judicata bars Ms. Conway the claim. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). The Claims Against Vincent Cerbone Dismissal of the claims against Vincent Cerbone on the ground that he was entitled to an absolute immunity by virtue of his status as a village justice was erroneous to the extent that they assert conduct in the dual capacity as a private lawyer. Despite his insistence to the contrary, the complaint alleged claims against him not only in his capacity as town justice but also in his capacity as private counsel for Bano Buick. In dismissing all of the claims against Cerbone, the district court either incorrectly applied the doctrine of judicial immunity to conduct attributable to him as an individual or simply overlooked the claims against him in his capacity as an individual. In either case, we must reverse, subject to the proviso set forth below. The Malicious Prosecution Claim It remains to determine the substantive vitality of the claim of malicious prosecution against the Martabanos, Bano Buick, Inc., and Vincent Cerbone as an individual. Because there are no federal rules of decision for adjudicating § 1983 actions that are based upon claims of malicious prosecution, we are required by 42 U.S.C. § 1988 to turn to state law — in this case, New York state law — for such rules. In doing so, we find that New York law permits recovery on a claim of malicious prosecution only where plaintiff has established four elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted in actual malice. Russo v. New York, 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977); Broughton v. State, 37 N.Y.2d 451, 457, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 94, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257" }, { "docid": "23299587", "title": "", "text": "search was res judicata because of the state trial court’s finding that the warrant was properly issued based on probable cause and that the officers did not exceed the scope of the warrant or fail to return seized items. However, after the district court issued its order in this case, the Idaho Court of Appeals, as noted earlier, overturned the state trial court findings. The appeals court determined that because McKenzie stipulated in the state case that the evidence obtained in the search would not be used in a criminal prosecution of Butler, the validity of the warrant and search was moot. Because the appeals court has determined that the question is moot, preclusive effect cannot be given to the trial court’s finding with respect to the warrant and the search. See Ornellas v. Oakley, 618 F.2d 1351, 1356 (9th Cir.1980) (“A reversed or dismissed judgment cannot serve as the basis for a disposition on the ground of res judicata or collateral estoppel.”). B. Standard of Review This court reviews a district court’s entry of summary judgment de novo. See Boston Mut. Ins. v. Murphree, 242 F.3d 899, 902 (9th Cir.2001). II. Federal and State Constitutional Claims A. Background A plaintiff may bring suit under § 1983 to redress violations of “rights, privileges, or immunities secured by the [United States] Constitution and [federal] laws” that occur under the color of state law. 42 U.S.C. § 1983. Butler’s claims under § 1983 are based on defendants’ alleged violation of his First, Fourth, and Fifth Amendment rights under the United States Constitution. Butler also makes his search and seizure and due process arguments under the Idaho Constitution. Government officials sued in their individual capacities under § 1983 may raise the affirmative defenses of qualified or absolute immunity. Qualified immunity generally protects government officials in the course of performing the discretionary duties of their offices. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Such immunity is an affirmative defense that bars civil liability damages insofar as the official’s conduct “does not violate clearly established statutory or" }, { "docid": "22284955", "title": "", "text": "attend. McCarthy’s claim that defense of a lawsuit or criminal proceeding implicates a privacy right is unfounded. McCarthy also contends that his right to due process was violated because the grand jury indictment was the result of conspiracy-induced prosecutorial mischief. Undoubtedly there is a constitutional right to be indicted by a fair grand jury. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984) (“Dismissal of an indictment is therefore warranted on constitutional grounds if prosecutorial misconduct has undermined the grand jury's ability to make an informed and objective evaluation of the evidence presented to it.”). The only cognizable interest a defendant has in a grand jury proceeding is to have a “legally constituted grand jury make an informed and independent evaluation of the evidence to determine if there is probable cause____” Id. at 1391 n. 7. McCarthy’s allegations of prosecutorial misconduct during the grand jury proceedings, however, are vague and conclusory. See id. at 1391 (dismissal of an indictment only warranted in flagrant cases of prosecutorial misconduct). In addition, the person directly responsible for any fifth amendment violation, the prosecutor, is absolutely immune from suit. Finally, to state a claim against the other defendants, McCarthy would have to allege that those individuals controlled the decision-making process of the prosecutor. See Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir.1986). The complaint contains neither an allegation of control nor the facts to support such an allegation. McCarthy has therefore failed to state a claim under section 1983 against the bank examiner defendants for any prosecutorial misconduct during the grand jury proceedings. 3. Non-Governmental Defendants The district court dismissed McCarthy's amended complaint as to the non-governmental defendants because: the amended complaint failed to state a claim upon which relief could be granted under sections 1983 and 1985; it failed to state a claim for malicious prosecution since it failed to allege that the prosecution terminated in McCarthy’s favor; and it failed to allege satisfactorily that those defendants controlled the prosecution. McCarthy claims that he" }, { "docid": "20197995", "title": "", "text": "his challenge to the constitutional validity of the roadblock. If the roadblock were to be determined unconstitutional on remand, the result might taint the subsequent arrest and citations. See Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (holding that passenger may challenge arrest as “seizure” following unlawful traffic stop); United States v. Millan, 36 F.3d 886 (9th Cir.1994) (holding that unlawful stop of vehicle tainted subsequent interrogation and search). The district court anticipated this possibility, however. It held that, even if the stop was determined to be unlawful and to taint the probable cause for the arrest, this principle was not clearly established law at the time of the arrest. Thus, the Officers were entitled to qualified immunity; reasonable officers would not have believed that the subsequent arrest violated Bressi’s constitutional rights. See Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (holding that immunity is to be judged from standpoint of reasonable officer). We agree with the district court’s analysis of qualified immunity with regard to the arrest and citations, and we accordingly affirm the district court’s dismissal of that claim with regard to all of the Officers. 2. Arizona Constitution The district court properly granted the Officers summary judgment on Bressi’s claim that they violated his privacy rights under art. 2, § 8 of the Arizona Constitution. Arizona applies an objectively reasonable test to determine whether one’s privacy rights have been violated. See State v. Jeney, 163 Ariz. 293, 787 P.2d 1089, 1092-93 (1989). For the same reasons that supported qualified immunity for the arrest, the district court properly determined that it was objectively reasonable to arrest Bressi for failing to show his drivers’ license or to obey the lawful order of an officer. There was accordingly no violation of the state constitutional right to privacy. C. Malicious Prosecution Claim The district court also properly dismissed Bressi’s malicious prosecution claim under the Federal Tort Claims Act against the United States. There is no evidence contradicting the United States’ assertion that the Pima County Attorney independently decided to re-file" }, { "docid": "23253230", "title": "", "text": "to even allege in the complaint that they did not have actual notice of their dismissal on June 18, 1987, there are simply no facts upon which to base the equitable tolling doctrine. III. MALICIOUS PROSECUTION UNDER SECTION 1983 Plaintiffs also challenge the district court’s dismissal for failure to state a claim for malicious prosecution which the court stated was not actionable in federal court in the absence of diversity jurisdiction. We affirm the district court’s dismissal on different grounds. Plaintiffs allege their claim for malicious prosecution arose on October 13, 1987 when they were acquitted of felony charges in a local court. From the rambling and inarticulate complaint, we have gleaned that plaintiffs contend the defendant-appellees brought baseless charges without probable cause against the plaintiff police officers for reasons of personal animosity. In particular, they allege that defendant Collazo, a police officer who was not a witness, talked in private to the Commonwealth District Court judge during the probable cause hearing for arrest. The complaint, however, is mute regarding the contents of the conversation. The complaint further alleges that, after finding probable cause, the judge stated that she believed the plaintiff police officers were entrapped, but she had no choice but to determine probable cause. The district court, in giving brevis disposition to this matter, assumed that malicious prosecution was not actionable under Section 1983 in the absence of diversity jurisdiction. But many courts, including this court, have recognized that a plaintiff may have a cause of action for malicious prosecution under Section 1983. See, e.g., White v. Frank, 855 F.2d 956, 961 (2nd Cir.1988); Strength v. Hubert, 854 F.2d 421, 426 (11th Cir.1988); Duncan v. Peck, 844 F.2d 1261 (6th Cir.1988); Usher v. City of Los Angeles, 828 F.2d 556, 561-562 (9th Cir., 1987); Bretz v. Kelman, 773 F.2d 1026 (9th Cir.1985); Losch v. Borough of Parkesburg, Pennsylvania, 736 F.2d 903 (3rd Cir.1984); Wheeler v. Cosden Oil and Chemical Company, 734 F.2d 254 (5th Cir. 1984); Singleton v. City of New York, 632 F.2d 185 (2nd Cir.1980); Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.1980); Inada" }, { "docid": "1999584", "title": "", "text": "if immunity is freely granted and the exceptions are few and narrowly drawn.” Ashelman, 793 F.2d at 1079. This case meets the criteria for the application of the doctrine of absolute immunity as articulated by us in Meyers v. Contra Costa County Dep’t of Social Servs., 812 F.2d 1154 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987), and Coverdell v. Dep’t of Social and Health Servs., 834 F.2d 758 (9th Cir.1987). REVERSED and REMANDED with instructions to dismiss the action. . After the departure of Lee Michael, the Long and Babcock girls asked to be allowed to continue living with Janet Michael. They were permitted to do so. In December 1983, following a successful home study, the two Babcock girls were returned to the custody of Rudolph, who had moved to Oklahoma. Aryn and Angela Long continued in the custody of Janet Michael ' until they reached the age of majority. Babcock v. State, 112 Wash.2d 83, 768 P.2d 481, 486 n. 1 (1989). . The elder Babcocks, Willis and Elizabeth, the grandparents of the Babcock girls, initially joined in the lawsuit. Their claims, however, were dismissed with prejudice and are not involved in this appeal. . The plaintiffs also included state claims in their complaint. These claims were dismissed by the district court and were pursued by the plaintiffs in Washington state court. In their state case, the plaintiffs alleged causes of action based on negligence, outrageous conduct, alienation of affection, and the violation of federal civil rights under color of state law, 42 U.S.C. § 1983. The Washington superior court granted summary judgment in favor of the defendants and dismissed all of the plaintiffs’ claims. Babcock v. State, 112 Wash.2d 83, 768 P.2d 481, 486 (1989). Because the section 1983 action was then pending in the federal district court, the plaintiffs did not appeal the state court’s dismissal of it. Id. They did appeal the dismissal of their other claims. Id. The Supreme Court of Washington affirmed dismissal of the claims on the ground that the caseworkers were entitled to absolute immunity." }, { "docid": "8590814", "title": "", "text": "the level of the irrational, fanciful, fantastic, delusional, or wholly incredible. To prove conspiracy under 1983, an agreement or a meeting of the minds to violate the plaintiffs’ constitutional rights must be alleged. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir.1989). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. To allege a conspiracy claim under 42 U.S.C. § 1985, they must establish: the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; an act in furtherance of the conspiracy; and a resulting injury. Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir.1998). In other words, to state a conspiracy claim against a Defendant, the Plaintiffs must allege facts that show that a specific Defendant did a specific act, based on an agreement with another Defendant to deprive them of the equal protection under the law. Lastly, Plaintiffs may not sue a lawyer in private practice for violations of their civil rights because private practice attorneys are not state actors. Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003) (holding that plaintiff cannot sue opposing counsel under section 1983 “because he is a lawyer in private practice who was not acting under color of state law” and “plaintiffs conclusory allegations that the lawyer was conspiring with state officers to deprive him of due process are insufficient.”) See also: Price v. Hawaii, 939 F.2d 702, 708 (9th Cir.1991); Kirtley v. Rainey, 326 F.3d 1088, 1093-95 (9th Cir.2003)). Dismissal of Plaintiffs’ Complaint for Abatement A case involving the same core facts as those alleged here is currently pending before the Defendant Judge Susan R. Bolton, CV 08-562 PHX SRB. On March 25, 2003, the Stones filed the complaint against Fanfare Media Works, Inc. (Fanfare) and Safeway, alleging that they entered into a contractual agreement with Fanfare to promote and sell Plaintiffs’ ‘V.J. Alert Bench Program for the Missing,” allegedly created by the Plaintiffs to find missing people, and alleging claims against Safeway for its involvement" } ]

[ { "docid": "12227227", "title": "", "text": "many suits arising from Towers’ Ponzi scheme. In a Report and Recommendation dated March 26, 1997, I recommended denial of defendant Squadron Ellenoff s motion to dismiss. By Opinion dated July 28,1997, Judge Knapp affirmed my Report and Recommendation, with an important modification: Accordingly, we agree with Judge Peck’s finding that the [ Shearson Lehman Hutton, Inc. v.] Wagoner[, 944 F.2d 114 (2d Cir.l991)] rule only applies where all relevant shareholders and/or decisionmakers are involved in the fraud, and therefore, adopt the Report with respect to this section. Absent such a finding, the fraud cannot be imputed to the corporation, thereby granting the trustee of that corporation standing to litigate a malpractice claim against third parties. However, we disagree with Judge Peek’s conclusion that the Complaint actually alleges the existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it. As discussed above, absent such an allegation in the Complaint the trustee would not have standing to assert the instant claims under the Wagoner rule. Accordingly, defendant’s motion to dismiss is granted. We refer the matter back to Judge Peek to oversee any discovery he deems necessary and appropriate to determine whether plaintiff could amend the Complaint to allege the existence of some person(s) involved in Towers’ management who was ignorant of the ongoing fraud and could and would if advised of facts known to defendant have taken steps to bring the fraudulent conduct to an end. To be valid a complaint would have to identify such person(s), and explain how he could and would have brought the fraud to an end. If Judge Peck concludes that' plaintiff could make such allegations in light of the pleading requirements of Rule 11, plaintiff may file an amended complaint. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 36 (S.D.N.Y. 1997) (Knapp, D.J. & Peck, M.J.) (emphasis added & fn. omitted). Familiarity with Judge Knapp’s and my prior Opinions and Reports and Recommendations are assumed. The Trustee has filed a motion for leave to amend, including a copy of" } ]

[ { "docid": "14515605", "title": "", "text": "sole shareholders, and were allegedly not acting as agents of the corporation.” In re Mediators, 190 B.R. at 528. The Second Circuit later affirmed, without disturbing this conclusion. (2d Cir.1997) 105 F.3d 822. Accordingly, we agree with Judge Peck’s finding that the Wagoner rule only applies where all relevant shareholders and/or decisionmakers are involved in the fraud, and therefore, adopt the Report with respect to this section. Absent such a finding, the fraud cannot by imputed to the corporation, thereby granting the trustee of that corporation standing to litigate a malpractice claim against third parties. However, we disagree with Judge Peck’s conclusion that the Complaint actually alleges the existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it. As discussed above, absent such an allegation in the Complaint the trustee would not have standing to assert the instant claims under the Wagoner rule. Accordingly, defendant’s motion to dismiss is granted. We refer the matter back to Judge Peck to oversee any discovery he deems necessary and appropriate to determine whether plaintiff could amend the Complaint to allege the existence of some person(s) involved in Towers’ management who was ignorant of the ongoing fraud and could and would if advised of facts known to defendant have taken steps to bring the fraudulent conduct to an end. To be valid a complaint would have to identify such person(s), and explain how he could and would have brought the fraud to an end. If Judge Peck concludes that plaintiff could make such allegations in light of the pleading requirements of Rule 11, plaintiff may file an amended complaint. We do not at this time consider whether or not the Complaint actually alleges a claim for legal malpractice. Resolution of such question will only be necessary if plaintiff can establish standing. CONCLUSION Defendant’s motion to dismiss is granted. The matter is referred back to Judge Peck to oversee any discovery necessary to determine whether plaintiff can file an amended complaint as described above. All questions of timing and procedure are left to" }, { "docid": "18138674", "title": "", "text": "the wrongdoing. CBI Holding, 311 B.R. at 373. Under this “sole actor” rule, “the agent’s knowledge [is imputed] to the principal notwithstanding the agent’s self-dealing because the party that should have been informed was the agent itself albeit in its capacity as principal.” Mediators, 105 F.3d at 827; accord In re Bennett Funding, 336 F.3d at 100. Second, even if the wrongdoer is not a “sole actor,” the adverse interest exception is still inapplicable unless there is at least one “innocent” decision maker among management or the shareholders who could have stopped the fraud. Bennett Funding, 336 F.3d at 101 (assuming the existence of the “innocent insider” exception without adopting it); CBI Holding, 311 B.R. at 372-73 (rejecting the “innocent insider” exception but discussing its relationship to the Wagoner rule and the “sole actor” exception); Wechsler, 212 B.R. at 36 (dismissing the trustee’s complaint for lack of standing based on the failure to allege the existence of an innocent member of debtor’s management who could have been able to prevent the fraud had he known about it). Here, the “adverse interest” exception does not apply for several reasons. To start, the Committee does not allege that McConnell totally abandoned Grumman’s interests. To the contrary, the Grumman board had decided to sell the business, and McConnell was fulfilling its prime directive. Moreover, if the allegations supported the “adverse interest” exception, its application would nevertheless be barred by the “sole actor” rule. The Committee alleges that all of the Grumman directors other than McConnell “abruptly” resigned “concurrently” with the execution of the Side Agreements. (Amended Complaint, ¶ 43.) This left McConnell in sole charge of Grumman. Furthermore, the Amended Complaint does not allege that there was an “innocent insider” that could have stopped McConnell’s misconduct. As noted, the remaining members of the board resigned “concurrently” with the execution of the Side Agreements. In addition, all but two of Holding’s members sold their votes to HIG/SVC. (Id., ¶ 42.) The Amended Complaint does not indicate that the two dissenters — Larry Martin and Al Freve — ■ had any position with Grumman, or" }, { "docid": "2203971", "title": "", "text": "of certain CBI officers and management level employees who were involved in the accounting fraud must as a matter of law be imputed to CBI itself and would therefore bar CBI from contending that it was deceived by the erroneous financial statements that E & Y certified in respect of CBI’s 1992 and 1993 fiscal years. 14. However, a corporation whose management was involved in an accounting fraud is not barred from asserting claims for professional malpractice in not detecting the fraud, provided the cor poration had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it. Securities Investor Protection Corp. v. BDO Seidman, 49 F.Supp.2d 644, 649-651 (S.D.N.Y.1999) (permitting malpractice complaint against auditor to stand provided trustee re-pleads to assert the existence of an innocent member of management who could have prevented the fraud); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 35-36 (S.D.N.Y.1997) (permitting malpractice complaint against law firm to stand despite fraud by company CEO, because imputation rule applies only “where all relevant shareholders and/or decision-makers are involved in the fraud”); In re Wedtech Securities Litigation, 138 B.R. 5, 7-9 (S.D.N.Y.1992) (refusing to dismiss malpractice complaint against accountant on imputation grounds where officers guilty of misconduct were not the company’s sole shareholders). Cf. In re Mediators, Inc., 105 F.3d 822, 826 (2d Cir.1997) (debtor had no standing to assert claims against third parties because actions of sole shareholder and decision-maker rendered debtor a participant in the fraud). 15. Here, as demonstrated in the Findings of Fact, CBI’s 48% shareholder, TCW was innocent of the fraud, and one of its representatives on CBI’s board of directors, Frank Pados, testified that had he known of the fraud, he would have taken steps to stop it. It therefore follows that the wrongdoing on the part of CBI’s management is not imputable to CBI itself. Cf. FDIC v. Ernst & Young, 967 F.2d 166, 171 (5th Cir.1992) (minority board members had no ability to dictate company’s activities even if they had been aware audit report was inaccurate)." }, { "docid": "1814641", "title": "", "text": "Wight, 219 F.3d at 86. In Wagoner, the individual who looted the corporation was the corporation’s sole stockholder, director, and president. Wagoner, 944 F.2d at 120. However, lower courts have found that the applicability of the Wagoner rule is not limited to situations where the fraud was committed by a corporation’s sole shareholder and director, but also extends to situations where there are multiple officers and directors. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997) (“the Wagoner rule only applies where all relevant shareholders and/or decision-makers are involved in the fraud”) (emphasis in original). Under Wechsler’s expanded interpretation of Wagoner, management’s fraudulent conduct and knowledge will not be imputed to the corporation if the complaint alleges that there was at least one innocent member of management who could or would have been able to prevent the fraud had he known about it. Wechsler, 212 B.R. at 36; see CBI Holding, 247 B.R. at 364-65 (finding, after trial on the merits, that a corporation, whose management was involved in an accounting fraud, was not barred from asserting claims for professional malpractice for failure to detect fraud, where the corporation had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it). Even if the Wagoner rule applies, a trustee may have standing to assert a claim against the corporation’s third party professionals under the adverse interest exception to that rule. The adverse interest exception applies where “the officer acted entirely in his own interests and adversely to the interests of the corporation.” Wight, 219 F.3d at 87; Mediators, Inc. v. Manney (In re Mediators, Inc.), 105 F.3d 822, 827 (2d Cir.1997); CBI Holding, 247 B.R. at 365. “The theory is that ‘where an agent, though ostensibly acting in the business of the principal, is really committing a fraud for his own benefit, he is acting outside of the scope of his agency, and it would be most unjust to charge the principal with knowledge of it.’ ” Wight, 219 F.3d at 87 (citing Munroe v. Harriman," }, { "docid": "12227239", "title": "", "text": "inform either of them of the Spicer & Oppenheim memorandum that “would have alerted [them] to deficiencies in Towers’ accounting” practices. (Evans Aff. ¶ 12; see also Evans Supp. Aff. ¶¶ 2-3; Barnes Aff. ¶ 9; Proposed 2d Cplt. ¶¶ 32-33.) In addition, according to Evans and Barnes, Sorkin assured them that: (a) the funds raised by Towers from the Note offerings were being used for their intended purposes, (b) the receivables purchased by Towers were being correctly accounted for, (c) Towers was not involved in a Ponzi scheme, and (d) the SEC investigation was due “to the SEC’s failure to understand Towers’ business.” (Evans Aff. ¶¶ 16-19; Barnes Aff. ¶ 9; see also Proposed 2d Cplt. ¶¶ 31-37.) Thus, the Trustee has identified two Towers Board members who (allegedly) were ignorant of the ongoing fraud at Towers. This satisfies the first part of what Judge Knapp has required. The second, and more difficult, part is whether Evans and/or Barnes “would have been able to prevent the fraud had he known about it.” Wecksler v. Squadron, Ellenoff, 212 B.R. 34, 36. Judge Knapp’s Second Prong: What Evans and Barnes Say They Would Have Done to Stop the Towers Fraud Mr. Evans’ original affidavit stated that had Squadron Ellenoff revealed the Spicer & Oppenheim memorandum to him, he would have taken the following corrective actions: 21. In retrospect, I can say that if Mr. Sorkin [of Squadron, Ellenoff] had answered my questions differently or disclosed to me the problems raised in the Spicer & Oppenheim memorandum, I could have taken corrective actions. I had told Mr. Hoffenberg on a number of occasions that he should retain a large, reputable accounting firm to audit Towers’ books and records, and if I had been aware that there were problems with Towers’ accounting procedures I would have been more insistent upon such action. Such a firm could have caused corrective disclosures to have been made to accurately reflect the true financial condition of the Company. 22. I would also have taken other actions. I would have sought my own counsel on these matters and" }, { "docid": "11835332", "title": "", "text": "the maximum possible bonus and remained in control.” Id. at 360. Second, the court endorsed another exception to the normal rule of imputation, the so-called “innocent insider” exception, see id. at 364-65, recognized by a number of courts in the Southern District of New York, see, e.g., Wechsler v. Squadron, Ellnoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 35-36 (S.D.N.Y.1997). The court explained that “a corporation whose management was involved in an accounting fraud is not barred from asserting claims for professional malpractice in not detecting the fraud, provided the corporation had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it.” CBI I, 247 B.R. at 364-65 (citing BDO Seidman, 49 F.Supp.2d at 649-51). Referring to its earlier findings of fact, the court reasoned that because “TCW was innocent of the fraud, and one of its representatives on CBI’s board of directors, Frank Pados, testified that had he known of the fraud, he would have taken steps to stop it[,] ... the wrongdoing on the part of CBI’s management is not imputable to CBI itself.” Id. at 365. The court also rejected E & Y’s claim that its relationship with TCW was not close enough to permit TCW to hold it responsible for any of its negligence or fraud with respect to CBI’s financial statements. Id. at 365-66. The court explained that, under New York law, three criteria “must be met in order to hold accountants liable in negligence to non-contractual parties who rely to their detriment on inaccurate financial reports:” “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance.” Id. at 366 (quoting Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 551, 493 N.Y.S.2d 435," }, { "docid": "12227228", "title": "", "text": "rule. Accordingly, defendant’s motion to dismiss is granted. We refer the matter back to Judge Peek to oversee any discovery he deems necessary and appropriate to determine whether plaintiff could amend the Complaint to allege the existence of some person(s) involved in Towers’ management who was ignorant of the ongoing fraud and could and would if advised of facts known to defendant have taken steps to bring the fraudulent conduct to an end. To be valid a complaint would have to identify such person(s), and explain how he could and would have brought the fraud to an end. If Judge Peck concludes that' plaintiff could make such allegations in light of the pleading requirements of Rule 11, plaintiff may file an amended complaint. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 36 (S.D.N.Y. 1997) (Knapp, D.J. & Peck, M.J.) (emphasis added & fn. omitted). Familiarity with Judge Knapp’s and my prior Opinions and Reports and Recommendations are assumed. The Trustee has filed a motion for leave to amend, including a copy of the proposed Second Amended Complaint, accompanied by the affidavit of the alleged “innocent director,” Thomas B. Evans, Jr. After the Court held oral argument on the motion on October 17, 1997, the Trustee filed a supplemental affidavit from Mr. Evans and an affidavit from a . second alleged “innocent director,” Ben F. Barnes. The Governing Legal Standard on This Motion The parties hotly dispute the appropriate legal standard to apply to this motion. Judge Knapp dismissed the Trustee’s complaint without prejudice to repleading if the Trustee was able. Wechsler v. Squadron, Ellenoff, 212 B.R. 34, 36. The Trustee has sought leave to amend, which Squadron Ellenoff opposes on the ground that amendment would be futile. (See generally Squadron Br.) The appropriate standard, therefore, is whether the proposed Second Amended Complaint fails to state a claim, the traditional Fed.R.Civ.P. 12(b) standard. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Bldg. 1 Housing Dev. Fund Co., 608 F.2d 28, 42 (2d Cir.1979) (“A trial court does not abuse its discretion in denying leave to amend a" }, { "docid": "12227238", "title": "", "text": "these allegations with affidavits from Evans and Barnes. That is more than sufficient at this stage. Judge Knapp’s First Prong: The Identification of An “Innocent Director” Mr. Evans, a lawyer and former Congressman, became a Towers director in 1990 and resigned from the Towers Board in 1992. (Evans Aff. ¶¶ 2, 3, 6, 8.) Evans was Chairperson of the Towers audit committee, which was formed as a result of his recommendation to Towers’ CEO Steven Hoffenberg. (Evans Aff. ¶¶ 7-8; see also Proposed 2d Cplt. ¶¶ 28-30.) Mr. Barnes, a former Texas Lieutenant Governor and Speaker of the Texas House of Representatives, also became a Towers outside director in 1990 and also served on the Towers audit committee. (Barnes Aff. ¶¶ 2, 5.) In their roles as outside Towers directors, Mr. Evans and Mr. Barnes had discussions with Squadron Ellenoff partner Ira Sorkin about Towers’ accounting practices and the SEC investigation of those practices. (Evans Aff. ¶¶ 9-12; Barnes Aff. ¶¶ 6-8; Proposed 2d Cplt. ¶¶ 31-38.) According to Evans and Barnes, Sorkin did not inform either of them of the Spicer & Oppenheim memorandum that “would have alerted [them] to deficiencies in Towers’ accounting” practices. (Evans Aff. ¶ 12; see also Evans Supp. Aff. ¶¶ 2-3; Barnes Aff. ¶ 9; Proposed 2d Cplt. ¶¶ 32-33.) In addition, according to Evans and Barnes, Sorkin assured them that: (a) the funds raised by Towers from the Note offerings were being used for their intended purposes, (b) the receivables purchased by Towers were being correctly accounted for, (c) Towers was not involved in a Ponzi scheme, and (d) the SEC investigation was due “to the SEC’s failure to understand Towers’ business.” (Evans Aff. ¶¶ 16-19; Barnes Aff. ¶ 9; see also Proposed 2d Cplt. ¶¶ 31-37.) Thus, the Trustee has identified two Towers Board members who (allegedly) were ignorant of the ongoing fraud at Towers. This satisfies the first part of what Judge Knapp has required. The second, and more difficult, part is whether Evans and/or Barnes “would have been able to prevent the fraud had he known about it.” Wecksler v." }, { "docid": "21511534", "title": "", "text": "not apply if the wrongdoing agent is the corporation’s sole shareholder, or where all of the corporation’s management participate in the wrongdoing.” In re Grumman Olson Indus., Inc., 329 B.R. at 425. That is, “imputation applies unless at least one de-cisionmaker in a management role or amongst the shareholders is innocent and could have stopped the fraud.” In re Bennett Funding Group, Inc., 336 F.3d at 101. See Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997). As a result, a trustee must allege that an inside decision-maker or shareholder was “innocent of the [agent’s] misconduct, unaware of it, and able to prevent it had the misconduct been known.” Ernst & Young v. Bankr. Servs., Inc. (In re CBI Holding Co.), 311 B.R. 350, 371 (S.D.N.Y.2004). See Wechsler, 212 B.R. at 36; In re Sharp Int’l Corp. v. KPMG LLP (In re Sharp Int’l Corp.), 319 B.R. 782, 788 (Bankr.E.D.N.Y.2005). Viewed another way, if a trustee alleges the existence of an innocent insider, the sole actor rule will not bar standing. In re Bennett Funding Group, Inc., 336 F.3d at 101; In re CBI Holding Co., 311 B.R. at 373; In re Sharp Int’l Corp., 319 B.R. at 788. Some courts also recognize an innocent insider exception to the Wagoner rule. The innocent insider exception provides that the acts and knowledge of man agement will not be imputed to the company if there are innocent members of management who “could and would have prevented the misconduct, had they known of it.” In re CBI Holding Co., 311 B.R. at 372. But see In re Bennett Funding Group, Inc., 336 F.3d at 101 (“we need not resolve the question of whether the presence of innocent directors would provide the trustee with standing where fewer than all shareholders are implicated in the fraud.”); In re CBI Holding Co., 311 B.R. at 372 (declining to adopt an innocent insider exception). The Estate of M. Greenfield argues, among other things, that the Trustee’s First, Second, and Third Claims for Relief should be dismissed because under the Wagoner rule, the Trustee" }, { "docid": "18138673", "title": "", "text": "exception merits more explanation. New York law will not impute the acts and knowledge of the agent where the agent engages in a scheme to defraud his principal on his own behalf or on behalf of another. Wight, 219 F.3d at 87; Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 497 N.Y.S.2d 898, 488 N.E.2d 828, 829 (1985). The exception is, however, a narrow one. To come within it, the agent must totally abandon his principal’s interest and act entirely for his own or another’s benefit. Mediators, 105 F.3d at 827. The exception does not apply simply because the agent has a conflict of interest or does not act primarily for his principal. Granite Partners, 194 B.R. at 331 n. 15; Hampton Affiliates, Inc., 497 N.Y.S.2d 898, 488 N.E.2d at 830. Even where the “adverse interest” exception would ordinarily apply, there are additional limitations on its use. First, it does not apply if the wrongdoing agent is the corporation’s sole shareholder, Mediators, 105 F.3d at 827, or where all of the corporation’s management participate in the wrongdoing. CBI Holding, 311 B.R. at 373. Under this “sole actor” rule, “the agent’s knowledge [is imputed] to the principal notwithstanding the agent’s self-dealing because the party that should have been informed was the agent itself albeit in its capacity as principal.” Mediators, 105 F.3d at 827; accord In re Bennett Funding, 336 F.3d at 100. Second, even if the wrongdoer is not a “sole actor,” the adverse interest exception is still inapplicable unless there is at least one “innocent” decision maker among management or the shareholders who could have stopped the fraud. Bennett Funding, 336 F.3d at 101 (assuming the existence of the “innocent insider” exception without adopting it); CBI Holding, 311 B.R. at 372-73 (rejecting the “innocent insider” exception but discussing its relationship to the Wagoner rule and the “sole actor” exception); Wechsler, 212 B.R. at 36 (dismissing the trustee’s complaint for lack of standing based on the failure to allege the existence of an innocent member of debtor’s management who could have been able to prevent the fraud had he known" }, { "docid": "11835331", "title": "", "text": "650-51 (S.D.N.Y.1999)). The court explained that “the knowledge of company management involved in a fraud will not be imputed to the company itself if such management was acting totally for its own interest and not that of the corporation.” Id. The court reasoned that because “as demonstrated in the Findings of Fact, the evidence showed that the fraud was perpetrated for the purpose of obtaining a bigger bonus for Castello, and to preserve Castello’s personal control over the company,” management’s knowledge should not be imputed to CBI “because the segment of management involved in the fraud was acting for its own interest and not that of CBI.” Id. Although the court did not identify on which factual findings it based this conclusion, earlier in its opinion, under the heading “Facts Bearing on Inapplicability of Doctrine of Imputation,” it found as a matter of fact that “[a] principle [sic] reason why ... members of CBI management caused liabilities to remain unrecorded at year-end was not for any corporate purpose but rather to ensure that Castello received the maximum possible bonus and remained in control.” Id. at 360. Second, the court endorsed another exception to the normal rule of imputation, the so-called “innocent insider” exception, see id. at 364-65, recognized by a number of courts in the Southern District of New York, see, e.g., Wechsler v. Squadron, Ellnoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 35-36 (S.D.N.Y.1997). The court explained that “a corporation whose management was involved in an accounting fraud is not barred from asserting claims for professional malpractice in not detecting the fraud, provided the corporation had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it.” CBI I, 247 B.R. at 364-65 (citing BDO Seidman, 49 F.Supp.2d at 649-51). Referring to its earlier findings of fact, the court reasoned that because “TCW was innocent of the fraud, and one of its representatives on CBI’s board of directors, Frank Pados, testified that had he known of the fraud, he would have taken steps to stop it[,] ... the wrongdoing" }, { "docid": "1814640", "title": "", "text": "professional malpractice claims against third parties because of the “debtor’s collaboration with the [defendants] in promulgating and promoting the [fraud]”). The Wagoner rule is based on principles of agency law: The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it.... Underlying the rule is the presumption that an agent has discharged his duty to disclose to his principal “all the material facts coming to his knowledge with reference to the subject of his agency.” Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 (1985). Thus, the Wagoner rule imputes the misconduct and knowledge of the corrupt management to the corporation, if the management was acting within the scope of employment. Since the trustee stands in the shoes of the corporation, it follows that the trustee is barred from suing to recover for a wrong that the corporation took part in. Wight, 219 F.3d at 86. In Wagoner, the individual who looted the corporation was the corporation’s sole stockholder, director, and president. Wagoner, 944 F.2d at 120. However, lower courts have found that the applicability of the Wagoner rule is not limited to situations where the fraud was committed by a corporation’s sole shareholder and director, but also extends to situations where there are multiple officers and directors. Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34, 36 (S.D.N.Y.1997) (“the Wagoner rule only applies where all relevant shareholders and/or decision-makers are involved in the fraud”) (emphasis in original). Under Wechsler’s expanded interpretation of Wagoner, management’s fraudulent conduct and knowledge will not be imputed to the corporation if the complaint alleges that there was at least one innocent member of management who could or would have been able to prevent the fraud had he known about it. Wechsler, 212 B.R. at 36; see CBI Holding, 247 B.R. at 364-65 (finding, after trial on the merits, that a corporation, whose management was involved in an accounting" }, { "docid": "2381065", "title": "", "text": "see Mediators, 105 F.3d at 827 (the sole actor exception can cels out the adverse interest exception where the principal and agent are one and the same). Under the sole actor rule, “the agent’s knowledge is imputed to the principal notwithstanding the agent’s self-dealing because the party that should have been informed was the agent itself albeit in its capacity as principal.” Grumman Olson, 329 B.R. at 425 (quoting Mediators, 105 F.3d at 827) (holding that the adverse interest exception did not apply because the wrongful actor was the corporation’s sole shareholder and sole decision maker, and therefore whatever decisions he made were authorized by and made on behalf of the corporation). Even if the wrongdoer is not a “sole actor,” the adverse interest exception remains inapplicable unless there is at least one “innocent” decision maker among management or the shareholders who could have stopped the fraud. Grumman Olson, 329 B.R. at 425 (holding that the committee lacked standing to sue prospective purchaser of debtor’s assets for aiding and abetting because the adverse interest exception was inapplicable, as it was the board’s goal to sell the company, the corrupt CEO was left in sole charge of the debtor, and there was no “innocent insider” who could have stopped the CEO’s misconduct) (citing In re Bennett Funding, 336 F.3d 94, 100 (2d Cir.2003) (assuming the existence of the “innocent insider” exception without adopting it); CBI Holding, 311 B.R. at 372-73 (rejecting the “innocent insider” exception but discussing its relationship to the Wagoner rule and the “sole actor” exception); Wechsler, 212 B.R. at 36 (dismissing the trustee’s complaint for lack of standing based on the failure to allege the existence of an innocent member of debtor’s management who could have been able to prevent the fraud had he known about it)). In the context of a Bankruptcy Code § 363(b)(1) sale, court approval of the sale is required. Therefore, the sole actor rule cannot apply. On the allegations in the complaint, the Court was an innocent decision maker that was deceived by the withholding of facts surrounding the allegedly collusive auction bid." }, { "docid": "2203970", "title": "", "text": "audit report on CBI’s financial statements in respect of fiscal 1993; that as a direct and reasonably foreseeable consequence thereof, CBI’s vendors would thereafter restrict the amount of credit available to CBI; that as a direct and reasonably foreseeable consequence thereof, CBI’s sales revenues would decline; that as a direct and reasonably foreseeable consequence thereof, there would be a diminution in the value of CBI as a going concern; and that as a direct and reasonably foreseeable consequence thereof, CBI would file for bankruptcy and be liquidated. Accordingly, for these reasons, E & Y’s departure from accepted standards of practice was a proximate cause of injury to CBI. 12. Moreover, there is ample evidence that BSI and TCW relied on E & Y’s financial certifications in determining compliance with the control provisions of the Shareholder Agreement. B. Application of the Imputation Defense 13. E & Y asserts by way of defense that BSI, as the successor in interest to CBI, lacks standing to assert claims of professional malpractice against E & Y because the knowledge of certain CBI officers and management level employees who were involved in the accounting fraud must as a matter of law be imputed to CBI itself and would therefore bar CBI from contending that it was deceived by the erroneous financial statements that E & Y certified in respect of CBI’s 1992 and 1993 fiscal years. 14. However, a corporation whose management was involved in an accounting fraud is not barred from asserting claims for professional malpractice in not detecting the fraud, provided the cor poration had at least one decision-maker in management or among its stockholders who was innocent of the fraud and could have stopped it. Securities Investor Protection Corp. v. BDO Seidman, 49 F.Supp.2d 644, 649-651 (S.D.N.Y.1999) (permitting malpractice complaint against auditor to stand provided trustee re-pleads to assert the existence of an innocent member of management who could have prevented the fraud); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34, 35-36 (S.D.N.Y.1997) (permitting malpractice complaint against law firm to stand despite fraud by company CEO, because imputation rule" }, { "docid": "19089020", "title": "", "text": "claim in this case. I agree. Mediators requires dismissal of plaintiffs’ aiding and abetting fiduciary duty claim against all four professional defendants. Where, as here, third party professional defendants are charged with aiding and abetting a corporation in a scheme to defraud the company’s creditors, the claim “belong[s] to the creditors qua creditors,” see id. at. 826 (emphasis in original), and cannot be asserted by the company, its trustee in bankruptcy, a committee of unsecured creditors, or anyone else standing in the shoes of the debtor corporation. Plaintiffs set forth two basic arguments in response to defendants’ standing argument: (1) Mediators and its predecessor cases are distinguishable (Pls. Opp. at 97-98); and (2) application of Mediators would work a “great injustice”, in this case because Keene’s credi tors are enjoined by the Bankruptcy Court from pursuing their own lawsuits in favor of this action. (Pis. Opp. at 107). Plaintiffs claim this case is distinguishable from Mediators because Keene is a wholly-owned subsidiary of Bairnco that was not dominated by an “individual sole shareholder/decision-maker, as was the debtor in Mediators, so that wrongful acts of Keene’s officers and directors should not be imputed to Keene as the corporation.” (Pls. Opp. at 97). Limited support for plaintiffs argument can be found in Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997). Judge Knapp held in that case that the Wagoner [or Mediators ] rule is not limited to a situation where the individual committing the wrongdoing is a sole shareholder, but “only applies where all relevant shareholders and/or decisionmakers are involved in the fraud.” Id. at 36. Hence, Judge Knapp held that unless the complaint “actually alleges the existence of an innocent member of ... management who would have been able to prevent the fraud had he known about it,” id., the fraud is imputed to the corporation and the trustee therefore would not have standing. Plaintiffs allege in their opposition papers for the first time that “at both the Keene level and the Bairnco level there are multiple decision makers involved, not all of whom were involved in" }, { "docid": "16838378", "title": "", "text": "784-85, 497 N.Y.S.2d 898, 488 N.E.2d 828. Thus, the exception does not apply when the agent acts both for himself and for the principal, though the primary motivation for the acts is inimical to the principal. See In re Crazy Eddie Securities Litig., 802 F.Supp. 804, 817 (E.D.N.Y.1992). Plaintiffs argue that because the members of the Bressman Team acted solely for their individual benefit, Baron should not be held responsible for those fraudulent activities. In Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997), Judge Knapp analyzed the interaction between the adverse interest exception and the Wagoner rule. That case involved litigation pertaining to the fallout from a Ponzi scheme involving the Towers Financial Corporation. There, the bankruptcy trustee brought claims against the defendant, attorney for Towers Financial Corporation, alleging that “it had breached its fiduciary duty to the company and committed legal malpractice in failing to stop the fraud ‘personally overseen and directed’ by Towers’ CEO Steven Hoffen-berg ‘and his cohorts.’ ” 212 B.R. at 35. There, the Court found that the complaint had not alleged the “existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it.” Id. at 36. The Court noted that absent such an allegation, the trustee did not have standing to assert the claims under Wagoner. See id. The Court then granted the motion to dismiss but allowed the plaintiffs to replead if there was any member of management who did not know of the ongoing fraud and who, if advised of those facts, would have taken steps to bring the fraudulent conduct to an end. See id. Here, I first note that the Complaint reveals that Baron has pleaded guilty to one count of enterprise corruption in New York State Supreme Court. (See Complaint ¶ 11). That pleaded fact strongly suggests the existence of “sufficient unity” between Baron and its management to deprive the Trustee of standing, as the Court found in Lippe. Recognizing that the Wagoner standard involves all management or shareholders, however, my decision rests on the" }, { "docid": "19089021", "title": "", "text": "the debtor in Mediators, so that wrongful acts of Keene’s officers and directors should not be imputed to Keene as the corporation.” (Pls. Opp. at 97). Limited support for plaintiffs argument can be found in Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, L.L.P., 212 B.R. 34 (S.D.N.Y.1997). Judge Knapp held in that case that the Wagoner [or Mediators ] rule is not limited to a situation where the individual committing the wrongdoing is a sole shareholder, but “only applies where all relevant shareholders and/or decisionmakers are involved in the fraud.” Id. at 36. Hence, Judge Knapp held that unless the complaint “actually alleges the existence of an innocent member of ... management who would have been able to prevent the fraud had he known about it,” id., the fraud is imputed to the corporation and the trustee therefore would not have standing. Plaintiffs allege in their opposition papers for the first time that “at both the Keene level and the Bairnco level there are multiple decision makers involved, not all of whom were involved in the wrongdoing.” (Pis. Opp. at 103-04). Thus, claim plaintiffs, “unity of person between corporation and defendants” does not exist here as it did in Mediators and Wagoner. (Pls. Opp. at 104). Plaintiffs’ amended complaint and opposition memorandum do not allege, however, that innocent members of management would have been able to prevent the fraud had they known about it. Rather, a number of key officers and directors of Keene have been named as defendants and the amended complaint alleges in great detail that Keene fully designed, consented to, and participated in the Transactions. The amended complaint contains a number of unequivocal references to Keene’s acquiescence in and encouragement of the underlying conduct at issue. {See Kidder Reply at 1-4) (outlining the numerous allegations in the amended complaint that can only be construed as alleging a unity of purpose among Keene, Bairnco, and the corporate insiders of both companies). Even accepting as true all the factual allegations against the professional defendants, plaintiffs’ amended complaint still alleges that it was Keene and its officers that masterminded, orchestrated," }, { "docid": "19927511", "title": "", "text": "have, and would have, acted to prevent such fraud,” no officer or director at MagCorp (or especially, Renco Metals, which is alleged to have engaged in most of the wrongful conduct, including, especially, the dividends and payments) was identified. In Squadron Ellenojf — an action charging a law firm with malpractice, breach of contract and , breach of fiduciary duty arising out of the law firm’s failure to stop fraud directed by the CEO of Towers Financial — Judge Knapp recognized that the presence of an innocent decision maker would vitiate the law firm’s ability to invoke the Wagoner Rule to escape liability for alleged wrongful conduct. But he found the complaint deficient in “actually alleging] the existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it.” He continued that “absent such an allegation in the Complaint[,] the trustee would not have standing to assert the instant claims under the Wagoner rule,” and thus granted the defendant’s motion to dismiss. The action brought by the Trustee here stands in contrast to Adelphia-Bank of America, where this Court ruled that allegations in the Adelphia-Bank of America complaint that independent directors took curative action, by supplemental disclosure and ousting the Rigases, once they discovered the Rigases’ fraud, could satisfy the requirements for the innocent decision maker exception. Here the Trustee’s allegations in the Complaint with a view to satisfying the innocent decision maker exception are conclusory and unsupported by any facts — and, significantly, are lacking in identification of the innocent decision maker who would have prevented the dividends and other payments. They are contradicted by the Trustee’s allegations that the directors who authorized the dividends and other payments were all wrongdoers. Where “[gjeneral conclusory allegations” are “belied by more specific allegations of the complaint,” they cannot be credited by the Court. In his briefs and oral argument (though not, so far as the Court can tell, in the Trustee’s 155 page complaint), the Trustee has contended that defendant Keith Sabel (who was President and CEO, and a director, of" }, { "docid": "19927510", "title": "", "text": "and/or in pan delicto. The first exception is the so-called “Sole Actor Exception,” where the agent allegedly acting wrongfully is the debtor’s sole shareholder, and is in substance the corporation itself. It may or may not be applicable here, depending on the extent to which Rennert, Renco Group’s beneficial owner, needed cooperation or assistance from other Renco Metals directors and/or managers to cause the dividends and other payments to be made. The second exception, upon which the parties place greater focus, is where a corporation has multiple managers or decision-makers, and all such relevant decision-makers participate in the alleged wrongdoing. The Outsider Defendants contend that the latter “exception to the exception” applies, and thus that the Wagoner Rule continues to apply. The Court agrees. Here every member of the Debtors’ boards of directors was named a defendant by the Trustee, and charged with wrongful conduct. And while the Trustee alleges, “upon information and belief,” that “at least one decision maker in a management role at MagCorp was innocent of the fraud described herein and could have, and would have, acted to prevent such fraud,” no officer or director at MagCorp (or especially, Renco Metals, which is alleged to have engaged in most of the wrongful conduct, including, especially, the dividends and payments) was identified. In Squadron Ellenojf — an action charging a law firm with malpractice, breach of contract and , breach of fiduciary duty arising out of the law firm’s failure to stop fraud directed by the CEO of Towers Financial — Judge Knapp recognized that the presence of an innocent decision maker would vitiate the law firm’s ability to invoke the Wagoner Rule to escape liability for alleged wrongful conduct. But he found the complaint deficient in “actually alleging] the existence of an innocent member of Towers’ management who would have been able to prevent the fraud had he known about it.” He continued that “absent such an allegation in the Complaint[,] the trustee would not have standing to assert the instant claims under the Wagoner rule,” and thus granted the defendant’s motion to dismiss. The action brought" }, { "docid": "1814644", "title": "", "text": "informed was the agent itself albeit in its capacity as principal.” Mediators, 105 F.3d at 827. A. Applicability of the Sole Actor Rule Sharp takes the position that even if the Spitzes’ fraudulent conduct were imputed to Sharp by operation of the Wagoner rule, Sharp would still have standing to maintain this action against KPMG because the facts of this case fit within the adverse interest exception to the Wagoner rule. KPMG takes the position that, even if the Spitzes’ fraud falls within the adverse interest exception, the Wagoner rule is invoked because of the sole actor exception to the adverse interest exception to that rule. Some courts considering the applicability of the sole actor rule on a motion to dismiss have looked to the complaint to see whether the plaintiff has alleged that there was an innocent member of management or shareholder who could or would have prevented the fraud had he known about it. E.g., SIPC v. BDO Seidman, LLP, 49 F.Supp.2d 644, 651 (S.D.N.Y.1999) (finding allegation that “no evidence exists that all employees of [the debtor] were party to the fraudulent or criminal activity” insufficient). Here, the complaint contains allegations sufficient to avoid the application of the sole actor rule on a motion to dismiss. Sharp alleges that at all times since 1995, Sharp had an innocent 13% shareholder, Bohorodzaner Inc., as well as an innocent director, Jaime Bohorodzaner. (Complaint ¶ 14.) Sharp further alleges that Bohorodzaner Inc. possessed a broad array of corporate governance rights, including the right to inspect Sharp’s books and records, to receive .audited and unaudited financial statements, and to veto various corporate transactions. (Complaint ¶ 14.) Moreover, according to Sharp, Jaime Bohorodzaner served at all pertinent times as a member of Sharp’s board of directors, served as a consultant to Sharp, regularly visited Sharp’s offices, and regularly received and reviewed Sharp financial statements. (Complaint ¶ 14.) The conclusion that the complaint contains allegations sufficient to withstand a motion to dismiss is supported by Wight v. BankAmerica Corp., 219 F.3d 79 (2d Cir.2000). Plaintiffs in Wight were the liquidators of Bank of Credit" } ]

[ { "docid": "23646587", "title": "", "text": "of the United States District Court for the Eastern District of Oklahoma affirming the Secretary’s denial of benefits. . Plaintiff also contends the ALJ erred by not considering the combined effect of his several alleged impairments, \"in that he failed to ask a hypothetical question to the vocational expert witness that involved all said impairments.” Aplt. Brief at 12. This contention is addressed later, in connection with plaintiff’s direct challenge to the expert’s testimony on this very same ground (among others). . We are not persuaded by plaintiff’s contention that counsel could not adequately cross-examine the vocational expert because her (published) data source was available only by subscription. Counsel could have probed the witness about the source’s reliability and acceptance in the profession, but he did not do so, and now our assessment of such matters is effectively foreclosed. See Trimiar v. Sullivan, 966 F.2d 1326, 1330-31 and n. 13 (10th Cir.1992). Furthermore, nothing prevented counsel from challenging the expert’s figures and conclusions with data available from other, administratively noticed publications, which is a recognized means of discrediting expert vocational testimony. See, e.g., Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir.1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). . We recognize that the ALJ did not specifically refer the expert to the work stress limitation he ultimately found on the basis of plaintiff’s depression. The ALJ did, however, inquire about the job consequences of a \"fairly significant depression\" that might affect the plaintiff \"personality wise.\" R.Vol. II at 61. The fact that the expert had just heard plaintiff specifically relate his depression to difficulty in completing (school) work under the pressure of multiple assignments, id. at 57-58, suggests that the matter of a depression-based limitation regarding work pressure was raised, albeit somewhat obliquely, with the expert, who indicated that a significantly large category of jobs would still be open to plaintiff, see id. at 61-62. Accordingly, the ALJ’s failure to refer expressly to this particular detail in his questioning of the expert, if error, was minor enough not to undermine confidence in the determination of this case." } ]

[ { "docid": "15593271", "title": "", "text": "since March 1993, and the fact that his physical therapy sessions were canceled because he failed to show up for them. This identification of specific evidence complies with the requirements of Kepler. IV Finally, claimant contends that the ALJ failed to ask the proper hypothetical of the vocational expert. The ALJ asked the vocational expert to consider a person “of the same age, education, sex, background, training and experience of this claimant, and I first want you to assume that the only limitation is no prolonged time on the feet or prolonged use of the feet or legs.” Appellant’s App. Vol. II at 61. Claimant argues that the ALJ should also have included his impairments with walking, sitting, stamina, severe pain, cognitive skills, concentration, memory, and the need to rest during the day. The record does contain evidence that claimant would have problems walking long distances. We conclude, however, that the hypothetical question described above included a walking dimension and that the ALJ adequately explained his refusal to credit claimant’s complaints of severe pain. The other alleged impairments find no evidence in the record other than claimant’s testimony which, by itself, is insufficient to establish the existence of an impairment. See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir.1992). The ALJ is only required to ask hypotheticals encompassing impairments that find support in the record. See Jordan v. Heckler, 835 F.2d 1314, 1317 (10th Cir.1987). V As noted above, the judgment is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings. . \"In a ‘closed period’ case, the decision maker determines that a new applicant for disability benefits was disabled for a finite period of time which started and stopped prior to the date of his decision.” Pickett v. Bowen, 833 F.2d 288, 289 n. 1 (11th Cir.1987). In claimant's case, the ALJ determined in a single document dated September 27, 1995, that claimant had been disabled from December 8, 1991 through December 31, 1992, but not thereafter. \"Typically, both the disability decision and the cessation decision [in a closed period case] are" }, { "docid": "23248641", "title": "", "text": "that because Buckner’s mental impairments were “not severe,” the ALJ was entitled to exclude “any limitation flowing from depression” in the hypothetical question to the VE. Likewise, the Commissioner asserts that the record did not support Buckner’s claims of drowsiness as a side effect of his medication and that the ALJ properly excluded it as a possible impairment in the hypothetical question. Because the ALJ’s hypothetical question to the VE properly incorporated all credible limitations, the Commissioner concludes that the VE’s testimony provided substantial evidence supporting the ALJ’s determination that Buckner was not disabled. “A vocational expert’s testimony constitutes substantial evidence when it is based on a hypothetical that accounts for all of the claimant’s proven impairments.” Hulsey, 622 F.3d at 922. But “[w]hen a hypothetical question does not encompass all relevant impairments, the vocational expert’s testimony does not constitute substantial evidence. Thus, the ALJ’s hypothetical question must include those impairments that the ALJ finds are substantially supported by the record as a whole.” Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.1996) (internal citation omitted). At the same time, we have recognized that “[t]he hypothetical need not frame the claimant’s impairments in the specific diagnostic terms used in medical reports, but instead should capture the concrete consequences of those impairments.” Hulsey, 622 F.3d at 922 (quotation and citation omitted). For example, we have held that “an ALJ may omit alleged impairments from a hypothetical question posed to a vocational expert when ‘[t]here is no medical evidence that these conditions impose any restrictions on [the claimant’s] functional capabilities’ ” or “when the record does not support the claimant’s contention that his impairments ‘significantly restricted his ability to perform gainful employment.’” Owen v. Astrue, 551 F.3d 792, 801-02 (8th Cir.2008) (quoting Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir.1994); Eurom v. Chater, 56 F.3d 68 (8th Cir.1995) (per curiam) (unpublished table opinion)). On at least one occasion, we have held that the ALJ did not err by excluding the claimant’s mental limitations from the hypothetical questions to the VE, when substantial evidence supported the ALJ’s determination that the claimant’s mental" }, { "docid": "22612446", "title": "", "text": "medical evidence, and concluded the claimant has the residual functional capacity to perform light work which does not require fine manual dexterity or handling. We find the ALJ’s decision with regard to Plummer’s physical limitations is supported by substantial evidence in the record. The ALJ then employed a vocational expert in considering whether jobs existed which the claimant could perform given her “severe” impairments. Plummer argues the ALJ’s reliance on the vocational expert was misplaced because the hypothetical asked did not include the medical evidence that the claimant cannot perform any jobs in which she must be able to use her hands on demand. Because the ALJ did not err in rejecting this argument as inconsistent with the objective medical evidence in the record as a whole, we conclude the hypothetical used was appropriate. The ALJ solicited testimony from the vocational expert as to whether a person of Plummer’s age, education, past work experience, who was capable of performing light work that did not require bilateral dexterity or extensive handling of objects, could perform work available in significant numbers in the national economy. In eliciting the testimony, the ALJ requested the vocational expert to assume a hypothetical individual who was capable of light work which involved standing, walking and/or the use of foot controls but could not perform work which required fine manual dexterity or extensive handling of objects with prolonged or repetitive use of the hands. This hypothetical encompasses all the limitations which the ALJ found were suffered by the claimant. The vocational expert’s testimony was in response to a hypothetical that fairly set forth every credible limitation established by the physical evidence. As such, it can be relied upon as substantial evidence supporting the ALJ’s conclusion that Plummer is not totally disabled. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987.) The vocational expert testified the claimant was capable of performing work activity as a restaurant hostess, a business escort, and a light security worker. He also testified these jobs exist in significant numbers in both the local and national economy. 20 C.F.R. § 404.1566(a). This satisfies" }, { "docid": "3173621", "title": "", "text": "lift 50 pounds occasionally and 25 pounds frequently, and the ability to stand and walk for four hours and sit for four hours in an eight hour day. Plaintiff argues that the hypothetical is flawed because it does not conform to the plaintiffs situation. “[TJestimony elicited by hypothetical questions that do not relate with precision all of a claimant’s impairments cannot constitute substantial evidence to support the Secretary’s decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.1991). The ALJ erred by failing to relate plaintiffs arm and elbow impairment to the vocational expert in the hypothetical question. Further, the factual support behind the medium residual functional capacity finding is not clear from the record and the ALJ failed to articulate it in his opinion. The ALJ did note the plaintiffs testimony that he could sit for three hours before changing position, lift 35 pounds occasionally and 10 pounds frequently, and stand for an hour. Tr. 11. At the first hearing, the plaintiff testified that he could stand for three to four hours and could sit for two to three hours. Tr. 85-86. Plaintiff also testified that no restrictions had been placed on his ability to lift. Tr. 80. At the second hearing, plaintiff testified that he walks a mile a day. Tr. 122. The plaintiff testified that he could sit for three hours and stand for one hour. Tr, 137-38. The ALJ’s hypothetical to the vocational expert assumed the ability to stand and walk for four hours and the ability to sit for four hours in an eight hour day. Those assumptions do not follow directly from the plaintiffs testimony. If the ALJ based his findings on a credibility determination, that should be so specified. On remand, the ALJ shall articulate the basis for the hypothetical involving the ability to. stand, walk, sit and lift. Plaintiff further argues that the ALJ failed to address the injury' to his right arm. A review of the record reveals that the ALJ did not once refer to plaintiffs elbow injury in his decision. The impairment to plaintiffs right elbow and arm is" }, { "docid": "22138938", "title": "", "text": "at 1147-48 (holding that an ALJ’s personal observations of the claimant during the hearing is a factor to be considered in assessing the credibility of her alleged limitations). Thus, we conclude the ALJ’s assessment of Goffs speech impediment in determining her RFC and future gainful employment possibilities is supported by substantial evidence. Similarly, the ALJ found Goffs depression was not as limiting as Goff alleged. According to the DSM-IV, a GAF between 51 and 60 is indicative of moderate symptoms or moderate difficulties in social, occupational or school functioning. American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994). Goffs treating and examining sources regularly ranked her GAF at 60. Thus, her GAF contradicts her assertion of severe mental impairments. Further, Goff testified her antidepressant medication helped her symptoms, and her medical records indicate she was stable on medication. As such, the ALJ’s assessment of Goffs depression in determining her RFC and future gainful em ployment possibilities is supported by substantial evidence. Goff also claims the hypothetical the ALJ posed to the VE was deficient because “[t]here was no mention of Goffs severe depression, her severe degenerative joint disease, her obesity, her prior history of seizures, or Goffs descriptions of severe pain in her activities of daily living.” “A hypothetical question posed to the vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the record and accepted as true.” Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.2001) (citing Prosch, 201 F.3d at 1015). Here, the ALJ properly included only those limitations supported by the record as a whole in the hypothetical. See Haggard v. Apfel, 175 F.3d 591, 595, (8th Cir.1999) (holding an ALJ need not include additional complaints in the hypothetical not supported by substantial evidence). Accordingly, the ALJ’s hypothetical was proper. “A vocational expert’s testimony ‘based on a properly phrased hypothetical question constitutes substantial evidence.’” Id. (quoting Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996)). Therefore, we will not disturb the ALJ’s findings. Ill The judgment is affirmed. . The Honorable Chief Judge Ronald Long-staff, United States District" }, { "docid": "23062747", "title": "", "text": "help but note that certain aspects of Allen’s mental disorder — including response to supervision, stress, and the like — would more likely be subjected to an individualized assessment. In reviewing proceedings before ALJs, we have been careful to ensure that a vocational expert’s hypothetical contain a complete and accurate factual basis in order for the conclusion' to constitute substantial evidence. See Ramirez v. Barnhart, 372 F.3d 546 (3d Cir.2004). Just as we required in Ramirez that a vocational expert’s testimony was only as valid as the limitations that the ALJ had included in the hypothetical, here we will require that the ALJ’s own-reference to the SSR ruling discuss specifically the limitations presented by the medical record. As we said in Ramirez, “If, however, an ALJ poses a hypothetical question to a vocational expert that fails to reflect ‘all of the claimant’s impairments that are supported by the record ... it cannot be considered substantial evidence.’ ” Id. at 550 (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987)). Recently, in Burns, v. Barnhart, 312 F.3d 113 (3d Cir.2002), where the vocational expert’s testimony did not touch on borderline intellectual functioning, and the ALJ used only the concept of “simple repetitive one-, two-step tasks” in the hypothetical, we could not conclude that its ruling was supported by substantial evidence because the reference to simple tasks did not “specifically convey” the claimant’s intellectual limitations and that “greater specificity” was required. Accordingly, we hold that if the Secretary wishes to rely on an SSR as a replacement for a vocational expert, it must be crystal-clear that the SSR is probative as to the way in which the nonexertional limitations impact the ability to work, and thus, the occupational base. Here, notwithstanding the fact that stress was alluded to by one of the doctors, and that stress is singled out as an individualized factor in the SSR relied upon, the ALJ fails to discuss this and, as a result, his determination that Allen has the ability to perform simple tasks prevalent -in the national economy is not supported by substantial evidence. Accordingly," }, { "docid": "17908769", "title": "", "text": "appears to be substantial evidence provided by medical experts that may support the ALJ’s conclusions. While the law requires an ALJ to weigh all the credible evidence and make unbiased factual findings, it does not compel an .ALJ to accept wholly the claimant’s perception of a disability. From our review of the record, such a credibility determination is exactly what happened in Plaintiffs case. Therefore, after examining the ALJ’s disability finding under the substantial evidence standard, we conclude that the ALJ had substantial evidence to support his finding, and properly considered the full effects of Plaintiffs SPD before determining her lack of disability.' B. Hypothetical Question Plaintiff next contends that the ALJ lacked substantial evidence to support his finding that Plaintiff can perform light work, arguing that the hypothetical question posed to the vocational expert failed to accurately summarize all of Plaintiffs SPD impairments. Specifically, Plaintiff asserts that the hypothetical question assumed Plaintiffs ability to perform both a full range of light and sedentary work, contrary to the medical expert’s testimony. We disagree.- This court has twice before stated that when considering the appropriateness of an hypothetical question posed to a vocational expert, “[a]ll that is required is that the hypothetical question be supported by the medical evidence in the record.” Ehrhart, 969 F.2d at 540, citing Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir.1987). For the following reasons we conclude that the hypothetical question posed by the ALJ reflected Plaintiffs impairments to the extent they were supported by medical evidence in the record. The ALJ’s hypothetical question appears to adequately reflect Plaintiffs work related limitations. In posing the hypothetical to the vocational expert the ALJ requested that Plaintiffs age, work experience, and the limitations noted by the medical expert be considered in determining the number of jobs available in the local economy. Magistrate’s Report at 12. Further, because the record lacks medical evidence that Plaintiff could not sit, stand or walk for extended periods, id. at 11, a proper hypothetical question need not include these alleged impairments. Moreover, Plaintiffs concern about the absence of such limitations in the" }, { "docid": "10331717", "title": "", "text": "Social Security Act. Id. at 26. 2. Discussion The record raises two concerns. The Court agrees with plaintiffs assertion that the ALJ erred in not including his subjective claims of pain in the hypothetical to the vocational expert and will therefore remand the case for further consideration. The Court raises sua sponte the issue of whether plaintiff knowingly waived his statutory right to counsel at the administrative proceedings and finds that he did not. This Court is not in the position of fact-finder and cannot reweigh the evidence before the ALJ. However, “[t]he ALJ must evaluate all the relevant evidence.” Taylor v. Heckler, 595 F.Supp. 489, 492 (D.D.C.1984) (citing Cotter v. Harris, 642 F.2d 700, 704 (3rd Cir.1981)). “The ALJ’s failure to evaluate probative evidence submitted by plaintiff or to explain why he deemed plaintiffs claim of pain not credible is ‘good cause’ to reverse the Secretary’s decision on grounds that it is unsupported by substantive evidence.” Id. (citation omitted). Defendant asserts that the ALJ “fully considered Plaintiffs allegations of pain and other subjective symptoms.” Defendant’s Motion at 20. While that may be true, the ALJ’s reliance on the vocational expert’s conclusion that plaintiff could perform certain types of available jobs was flawed where the hypothetical lacked any exploration of plaintiffs subjective claims of pain. “Should the ALJ look to the opinion of a vocational expert in determining the claimant’s ability to perform ‘other work’ than he has done before, the ALJ must accurately describe the claimant’s physical impairments in any question posed to the expert.” Simms v. Sullivan, 877 F.2d at 1050. Those impairments include subjective claims of pain. See Diabo v. Secretary of Health, Ed. and Welfare, 627 F.2d 278, 281-82 (D.C.Cir. 1980). Although the ALJ apparently disbelieved the severity of plaintiffs alleged pain, he did not find and, based on plaintiffs testimony and the medical records, could not find that plaintiff suffered no pain. Therefore, the ALJ’s failure to mention altogether plaintiffs subjective claims of pain in the hypothetical to the vocational expert, Record at 82-83, was fatal in light of the circumstances discussed below. See Diabo" }, { "docid": "9524578", "title": "", "text": "Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (subsequent history omitted), the ALJ found that Warburton’s subjective complaints of pain were not credible. Although the ALJ found that Warburton could not perform his past relevant work as a bricklayer, roughneck, or bartender, he found that Warburton could perform certain light and sedentary occupations based on a vocational expert’s (VE) response to a hypothetical question. The ALJ therefore found that Warburton was not disabled within the meaning of the Social Security Act. The Appeals Council denied Warbur-ton’s request for further review, and the ALJ’s decision thereby became the final decision of the Commissioner. Warburton appealed to the district court, which affirmed the Commissioner’s decision. War-burton appeals, contending that the hypothetical question posed to the VE did not accurately reflect all of his disabilities and that the ALJ failed to fully develop the record regarding his mental impairments. II. “Our role on review is to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole.” Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir.1998) (internal citations omitted). Substantial evidence is relevant evidence that a reasonable mind would accept to support the Commissioner’s conclusion. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). To determine whether existing evidence is substantial, “we must consider evidence that detracts from the [Commissioner’s] decision as well as evidence that supports it.” Id. (internal citations omitted). We may not reverse the Commissioner’s decision merely because substantial evidence supports a contrary outcome. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993). In order to constitute substantial evidence, testimony from a VE must be based on a properly phrased hypothetical question. See Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996). Such a hypothetical “should precisely set out the claimant’s particular physical and mental impairments.” House v. Shalala^ 34 F.3d 691, 694 (8th Cir.1994) (internal citations omit-ted). The hypothetical need not use specific diagnostic terms, however, where other descriptive terms adequately describe the claimant’s impairments. See Roe, 92 F.3d at 676. The ALJ formulated the following hypothetical question: It seems that" }, { "docid": "23538443", "title": "", "text": "conclusion that Decker attempted to conceal his post-December of 1992 employment. The plain language of the ALJ’s decision does not permit this interpretation. It clearly reflects that, in assessing Decker’s credibility, the ALJ appropriately considered medical evidence that was inconsistent with Decker’s claim of total disability up to and including the date of the hearing. See Appellant’s App. at 59. Decker also claims that the ALJ’s credibility determination was inappropriately influenced by the fact that Decker failed to abide by the physical restrictions imposed by his doctor when he returned to work. We disagree. The failure to follow prescribed treatment is a legitimate consideration in evaluating the validity of an alleged impairment. See Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir.1990)(Secretary properly discounted claimant’s alleged impairment due to poorly controlled seizures where claimant failed to follow prescribed treatment regime). The fact that Decker regularly exceeded the work restrictions recommended by his doctors was relevant to the credibility of his testimony concerning disabling pain. Finally, Decker challenges the ALJ’s reliance on the testimony of the vocational expert, citing the ALJ’s failure to include in his hypothetical questions Decker’s purported ability to sit or stand for only fifteen minutes at a time and his purported need to he down twice a day for thirty to forty-five minutes. Decker is correct that hypothetical questions in this context must reflect with precision all of his impairments, see Hargis, 945 F.2d at 1492, but they need only reflect impairments and limitations that are borne out by the evidentiary record, Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). Here, we have already affirmed the ALJ’s findings with respect to Decker’s condition and his partial credibility. Because these findings are accurately reflected in the ALJ’s hypothetical inquiries, the vocational expert’s testimony provided substantial evidence that, as of December of 1992, there were a significant number of unskilled sedentary jobs in the local and national economies which Decker could perform. The judgment of the United States District Court for the District of Kansas is AFFIRMED. . After examining the briefs" }, { "docid": "23248640", "title": "", "text": "ALJ’s finding that Buckner could find employment as a credit card clerk or a final assembler was not supported by substantial evidence because it was based on a VE’s response to an improperly phrased hypothetical question. Buckner contends that the ALJ’s hypothetical question to the VE must include all credible, relevant impairments in order for the VE’s response to qualify as “substantial evidence.” See Hunt v. Massanari, 250 F.3d 622, 626 (8th Cir.2001). In Buckner’s case, the ALJ “found that Buckner had mild deficiencies in maintaining activities of daily living social functioning, and concentration, persistence, or pace.” Despite this fact, the ALJ failed to include these deficiencies in the hypothetical question to the VE. Moreover, Buckner argues the ALJ failed to include “the impact of drowsiness as a side effect of Buckner’s medications.” Thus, he argues that the VE’s testimony cannot provide substantial evidence for the ALJ’s determination that Buckner was not disabled. The Commissioner responds that the ALJ’s hypothetical question to the VE properly included all of Buckner’s “credible limitations.” First, the Commissioner contends that because Buckner’s mental impairments were “not severe,” the ALJ was entitled to exclude “any limitation flowing from depression” in the hypothetical question to the VE. Likewise, the Commissioner asserts that the record did not support Buckner’s claims of drowsiness as a side effect of his medication and that the ALJ properly excluded it as a possible impairment in the hypothetical question. Because the ALJ’s hypothetical question to the VE properly incorporated all credible limitations, the Commissioner concludes that the VE’s testimony provided substantial evidence supporting the ALJ’s determination that Buckner was not disabled. “A vocational expert’s testimony constitutes substantial evidence when it is based on a hypothetical that accounts for all of the claimant’s proven impairments.” Hulsey, 622 F.3d at 922. But “[w]hen a hypothetical question does not encompass all relevant impairments, the vocational expert’s testimony does not constitute substantial evidence. Thus, the ALJ’s hypothetical question must include those impairments that the ALJ finds are substantially supported by the record as a whole.” Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.1996) (internal citation" }, { "docid": "23248642", "title": "", "text": "omitted). At the same time, we have recognized that “[t]he hypothetical need not frame the claimant’s impairments in the specific diagnostic terms used in medical reports, but instead should capture the concrete consequences of those impairments.” Hulsey, 622 F.3d at 922 (quotation and citation omitted). For example, we have held that “an ALJ may omit alleged impairments from a hypothetical question posed to a vocational expert when ‘[t]here is no medical evidence that these conditions impose any restrictions on [the claimant’s] functional capabilities’ ” or “when the record does not support the claimant’s contention that his impairments ‘significantly restricted his ability to perform gainful employment.’” Owen v. Astrue, 551 F.3d 792, 801-02 (8th Cir.2008) (quoting Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir.1994); Eurom v. Chater, 56 F.3d 68 (8th Cir.1995) (per curiam) (unpublished table opinion)). On at least one occasion, we have held that the ALJ did not err by excluding the claimant’s mental limitations from the hypothetical questions to the VE, when substantial evidence supported the ALJ’s determination that the claimant’s mental limitations were “nonsevere.” Jackson v. Apfel, 162 F.3d 533, 538 (8th Cir.1998). Here, the ALJ did not explicitly mention Buckner’s depression and anxiety in the hypothetical to the VE. On this record the ALJ did not err. The ALJ did not entirely discount the credibility of Buckner’s claims of depression and anxiety. However, the ALJ, as explained above, reasonably concluded with substantial evidence that these impairments were “not severe.” This is consistent with our precedent. See Jackson, 162 F.3d at 538. The ALJ’s hypothetical asked the VE to consider the restrictions noted in Dr. Hwang’s report, excluding only Dr. Hwang’s restrictions on reaching, handling, and being absent from work. Dr. Hwang’s report did note that Buckner had been diagnosed with depression. Because Dr. Hwang’s Medical Source Statement incorporated all of Buckner’s impairments — including Buckner’s depression and anxiety — into Dr. Hwang’s recommended limitations, we can safely conclude that the ALJ’s hypothetical “capture[d] all of the concrete consequences of those [credible] impairments.” Hulsey, 622 F.3d at 922 (emphasis added). As such, the VE’s answer to" }, { "docid": "22812793", "title": "", "text": "the national economy. See Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.2000). Once the burden shifts to the Commissioner at step five, the Commissioner can meet its burden through one of two means. “If an applicant’s impairments are exertional, (affecting the ability to perform physical labor), the Commissioner may carry this burden by referring to the medical-vocational guidelines or ‘Grids,’ which are fact-based generalizations about the availability of jobs for people of varying ages, educational backgrounds, and previous work experience, with differing degrees of exertional impairment.” Gray v. Apfel, 192 F.3d 799, 802 (8th Cir.1999). Vocational expert testimony is required at step five “only when the claimant has nonexertional impairments, which make use of the medical-vocational guidelines, or ‘grids,’ inappropriate.” Banks, 258 F.3d at 827. Pearsall argues that because he has non-exertional limitations, the grids cannot support the Commissioner’s burden at step five. Not only do we agree, but the ALJ evidently agreed as well. By relying on vocational expert testimony at step five, the ALJ found that Pearsall had nonexer-tional impairments which rendered reli-anee on the grids inappropriate. As the ALJ relied on the vocational expert testimony rather than on the grids at step five, we find no error here. D. The ALJ’s hypothetical question posed to the vocational expert Pearsall argues that the hypothetical question posed to the vocational expert failed to include all of Pearsall’s impairments because it did not incorporate all of the limitations set forth in Dr. Wilson’s medical source statement. We reject this argument. The ALJ asked the vocational expert whether jobs existed for a person who had a neurogenic bladder, would have a permanent catheter change once a month, would have to urinate every hour and a half and occasionally have an incident of incontinence, did not like to be around large numbers of people and had some problems with concentration and some anxiety and dependency characteristics. The ALJ’s hypothetical question properly included all impairments that were accepted by the ALJ as true and excluded other alleged impairments that the ALJ had reason to discredit. See Chamberlain v. Shalala, 47 F.3d 1489," }, { "docid": "22276071", "title": "", "text": "at step five is “whether the claimant is able to perform other work in the national economy in view of [his or] her age, education, and work experience.” Harris, 356 F.3d at 929. The ALJ relied on testimony from a vocational expert in answering this question in the affirmative. (R. at 44-48). The Commissioner may rely on a vocational expert’s response to a properly formulated hypothetical question to show that jobs that a person with the claimant’s RFC can perform exist in significant numbers. See 20 C.F.R. §§ 404.1566(e), 416.966(e); Long v. Chater, 108 F.3d 185, 188 (8th Cir.1997). Guilliams alleges that the vocational expert’s testimony does not constitute substantial evidence because it was elicited by an improper hypothetical question. A hypothetical question is properly formulated if it sets forth impairments “supported by substantial evidence in the record and accepted as true by the ALJ.” Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.2001). Guilliams argues that the hypothetical question was erroneous because it did not contain any reference to his allegations of pain. Discredited complaints of pain, however, are properly excluded from a hypothetical question so long as the ALJ had reason to discredit them. See Tucker v. Barnhart, 363 F.3d 781, 784 (8th Cir. 2004). Here, as discussed above, there was substantial evidence to support the ALJ’s determination that Guilliams’s complaints of pain were not credible. Therefore, they were properly excluded from the hypothetical question on which the ALJ relied. Guilliams also challenges the ALJ’s hypothetical question to the vocational expert on the ground that it improperly assumed the category of work that Guilliams could perform. An ALJ may not merely “pose[ ] a generalized hypothetical question to [a] vocational expert which assume[s]” a claimant has the physical capacity to perform a given category of work. McGhee v. Harris, 683 F.2d 256, 259 (8th Cir.1982). Guilliams complains that in this case, the ALJ began his question with an improper assumption, to wit: “If I were to find that Mr. Guilliams was restricted to light work .... ” (R. at 45). Hypothetical questions that assume a claimant is capable" }, { "docid": "22594629", "title": "", "text": "Perkins notes that the ALJ asked the vocational expert whether missing more than two days of work per month would preclude competitive employment. The vocational expert testified in the affirmative. The ALJ then asked the vocational expert whether it would preclude employment for a person to attend work every day, but arrive late or leave early at least once a week. Again, the vocational expert testified that it would. Perkins also notes that her counsel asked the vocational expert whether someone with all of the limitations Perkins described in her testimony could obtain employment. The vocational expert noted that breaks in attention would make it more difficult to be competitive in the job market, and that “no employer would tolerate the need for naps at that level, at the unskilled level.” Appendix at 71. “ ‘A hypothetical question posed to the vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the record and accepted as true.’ ” Goff, 421 F.3d at 794 (quoting Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.2001)). “The hypothetical question must capture the concrete consequences of the claimant’s deficiencies.” Hunt, 250 F.3d at 625. However, “the ALJ may exclude any alleged impairments that [he] has properly rejected as untrue or unsubstantiated.” Id. As discussed above, the ALJ was not required to adopt Perkins’s unsupported subjective complaints and self-imposed limitations. Aside from her own testimony, there is no support in the record upon which to base a finding that Perkins’s limitations include napping during the work day. Accordingly, the ALJ did not err in declining to include Perkins’s self-imposed restrictions in his hypothetical to the vocational expert. Likewise, the ALJ was not required to include other limitations in the hypothetical that he found to be unsupported in the record. Here, the ALJ properly included only those impairments and limitations he found to be supported by the evidence as a whole in his hypothetical to the vocational expert. See Goff, 421 F.3d at 794; see also Pearsall v. Massanari, 274 F.3d 1211, 1220 (8th Cir.2001) (“The ALJ’s hypothetical properly included all impairments" }, { "docid": "21592950", "title": "", "text": "pain but had a “draggy feeling” and lacked energy. Hinchey, however, never testified about any disabling fatigue in 1981. Instead, she discussed her normal daily routine as it presently existed at the time of the hearing in 1991. (Admin.Tr. at 43-47.) Likewise, she discussed only her current problems with shortness of breath and lack of energy. (Id.) The ALJ nonetheless considered her statements as if they pertained to 1981 and went on to reject her allegation of disabling fatigue as inconsistent with her daily activities, with her medical records from 1981, and thus with the record as a whole. The ALJ specifically concluded that her medical impairments that existed during 1981 were treated successfully in 1981 and that she was returned to normal and full activity without a prolonged period of inability to work. After reviewing the record, we conclude the ALJ committed no error in rejecting her subjective complaints of fatigue as being inconsistent with her medical records and the record as a whole. Hinchey next argues that the ALJ erred in relying on the vocational expert’s opinion that she could perform light work like her past relevant work because the opinion was given in response to an incomplete hypothetical question from the ALJ. Testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ’s decision. Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir.1991). Hinchey claims that the hypothetical failed to include her shortness of breath and tired feelings and that, as such, the vocational expert’s answer cannot be substantial evidence. We disagree. The ALJ’s hypothetical question to the vocational expert needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole. Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993). As noted above, the ALJ found that her subjective complaints of fatigue were not supported by the record as a whole. Hence, he did not need to include those factors in the hypothetical to the vocational expert. Hinchey’s final argument is that the case should be remanded to the Secretary" }, { "docid": "4295358", "title": "", "text": "ALJ and the hypothetical question which he posed to the vocational expert; and (2) his apparent failure to consider plaintiffs conditions as a whole. According to the ALJ, the hypothetical question to the vocational expert duplicated as exactly as possible plaintiffs condition. The Court disagrees. A hypothetical question to the vocational expert must relate all of a claimant’s impairments with precision. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.1991) (reversing ALJ’s decision because question to vocational expert did not include claimant’s mental impairments). The ALJ can limit his hypothetical, however, to those impairments which he finds to be credible. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir.1993). In this case, the ALJ held that claimant retained the residual functional capacity to lift up to 30 pounds, stand fifteen to twenty minutes, sit for one hour and walk one block. (Tr. at 16.) His hypothetical question assumed that plaintiff had unlimited capacity to walk, however, and it hypothesized a condition which the ALJ did not find plaintiff suffered — “some trouble bending.” Second, the ALJ did not express understanding of plaintiffs condition as a whole by looking at plaintiffs impairments in combination. The ALJ needs to show that he considered all the evidence. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.1996). The ALJ is not required to discuss every piece of evidence, id. at 1009-10, nor does the Court expect him to list every diagnosis, but the ALJ is required to show how plaintiffs overall condition may or may not constitute a disability. See Hargis, 945 F.2d at 1491. Congress has mandated the following: In determining whether an individual’s physical or mental impairment or impairments could be the basis of eligibility under this section, the Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(C) (emphasis added). Here, the" }, { "docid": "23220875", "title": "", "text": "include some medical evidence that supports the ALJ’s residual functional capacity finding.” Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir.2000). “It is the ALJ’s responsibility to determine claimant’s RFC based on all the relevant evidence, including medical records, observations of treating physicians and others, and claimant’s own description of her limitations.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotations, alterations, and citations omitted). “Generally, if the claimant suffers from nonexertional impairments that limit her ability to perform the full range of work described in one of the specific categories set forth in the guidelines, the ALJ is required to utilize testimony of a vocational expert.” Reed, 988 F.2d at 816. “Testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ’s decision. Hypothetical questions should set forth impairments supported by substantial evidence on the record and accepted as true and capture the concrete consequences of those impairments.” Hillier v. Soc. Sec. Admin., 486 F.3d 359, 365 (8th Cir.2007) (internal quotations, alterations, and citations omitted). 1. Mental Impairments Jones argues that the ALJ failed to include restrictions in the hypothetical that describe the effects of her mental impairments, as she has struggled with depression and anxiety, been treated on numerous occasions by both her primary care physicians and by mental health professionals, undergone extensive medical therapy, and attended several individual therapy sessions. Jones relies on the statement of her treating psychiatrist, Dr. David Erby, that she suffers from an anxiety disorder with panic and a depressive disorder. According to Jones, Dr. Erby certified that she meets the criteria for a serious mental illness. Also, she notes that throughout her treatment, both Dr. Erby and her therapist have assigned her Global Assessment Functioning (GAF) scores ranging from the mid-40s to the low-50s. As the district court found, the record reflects that the ALJ adequately reviewed all the relevant evidence concerning Jones’s alleged disability due to anxiety and depression, as he appropriately considered not only Dr. Erby’s diagnosis but also the records of [Jones’s] other treating physicians, her social" }, { "docid": "22281137", "title": "", "text": "Consideration of aggregate impairments in determining residual functionality. In determining Light’s residual functional capacity, the ALJ must consider whether the aggregate of Light’s mental and physical impairments may so incapacitate him that he is unable to perform available work. 20 C.F.R. § 404.1523; Macri v. Chater, 93 F.3d 540, 545 (9th Cir.1996). To make that determination the ALJ may elicit testimony from a vocational expert, but “the hypothetical [posed to the vocational expert] must consider all of the claimant’s limitations.” Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir.1995). The vocational expert’s testimony, upon which the ALJ relied in his opinion, responded to a hypothetical posed by the ALJ that did not include Light’s documented illiteracy and evidence of his severe concentration problems, low IQ, and chronic pain, nor did it include various impairments discussed in Light’s and his wife’s testimony (e.g., pain in right wrist, painful knees, inability to remember simple instructions and location of household items, poor sleep, inability to understand conversation, etc.). While the ALJ need not include all claimed impairments in his hypotheticals, he must make specific findings explaining his rationale for disbelieving any of the claimant’s subjective complaints not included in the hypothetical. Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir.1988). The hypothetical was inadequate because the ALJ failed to make “specific findings justifying” his decision to discredit Light’s subjective complaints. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). 2. Discrepancies between findings on residual functional capacity and Dictionary of Occupational Titles. In determining whether appropriate jobs exist for the claimant, the ALJ generally will refer to the Dictionary of Occupational Titles (“DOT”), see Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir.1990); the ALJ, however, “may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995). Evidence sufficient to permit such a deviation may be either specific findings of fact regarding the claimant’s residual functionality, id. at 1435 n. 7, 1435-36, or inferences drawn from the context of the expert’s testimony." }, { "docid": "4295357", "title": "", "text": "this case the ALJ ignored plaintiffs claims of nonexertional impairments due to pain and dizziness, because he found that they were not significant factors when plaintiff followed his medical regimen. (Tr. at 17.) The ALJ cited no record evidence in support of this finding, however, and the Court’s review of the record doesn’t disclose such evidence. In addition, although the ALJ alluded to certain nonexertional impairments, he made no specific findings concerning them. (Tr. at 13.) In short, the record does not contain substantial evidence to support a finding that plaintiff had no significant nonexertional impairment. As a result, the ALJ erred in his reliance on the grids to demonstrate that plaintiff is capable of performing work which is available in the national economy. b. Vocational Expert If the grids are not applicable, expert vocational testimony can be used to demonstrate that plaintiff can perform other jobs in the national economy. The ALJ’s reliance on the vocational expert in this case, however, poses two problems: (1) the imprecise relationship between the factual findings of the ALJ and the hypothetical question which he posed to the vocational expert; and (2) his apparent failure to consider plaintiffs conditions as a whole. According to the ALJ, the hypothetical question to the vocational expert duplicated as exactly as possible plaintiffs condition. The Court disagrees. A hypothetical question to the vocational expert must relate all of a claimant’s impairments with precision. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.1991) (reversing ALJ’s decision because question to vocational expert did not include claimant’s mental impairments). The ALJ can limit his hypothetical, however, to those impairments which he finds to be credible. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir.1993). In this case, the ALJ held that claimant retained the residual functional capacity to lift up to 30 pounds, stand fifteen to twenty minutes, sit for one hour and walk one block. (Tr. at 16.) His hypothetical question assumed that plaintiff had unlimited capacity to walk, however, and it hypothesized a condition which the ALJ did not find plaintiff suffered — “some trouble bending.”" } ]

[ { "docid": "22655499", "title": "", "text": "devoid of “further factual enhancement.” Id., at 557. To survive 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.” Id., at 570. 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., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyperteehnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F. 3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not “show[n]” — “that the" } ]

[ { "docid": "3018926", "title": "", "text": "RMBS Trustee breached the PSAs and Indenture Agreements; violated the Trust Indenture Act of 1939 (“TIA”), 15 U.S.C. § 77aaa, et seq., and New York’s Streit Act, N.Y. Reál Prop. Law § 124, et seq.; breached the fiduciary duty Deutsche Bank owed to the plaintiffs; arid was negligent or grossly negligent. Deutsche Bank now moves to dismiss portions of the SAC. For the reasons explained below, Deutsche Bank’s motion is granted in part and denied in part. I. Deutsche Bank moves to dismiss parts of the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The'Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the right most favorable to the plaintiff, “the tenet that á com-t must accept as true all of the allegations contained in the complaint is inapplicable to legal cónclusions.” - Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider ■ documents that are referenced in the com plaint, documents that the plaintiff relied on in bringing suit and that are" }, { "docid": "12177082", "title": "", "text": "posed by the Court at argument. Dkt. 53. On November 2, 2015, with leave of Court, defendants filed a letter in response. Dkt. 57. II. Applicable Legal Principles A. Standard for Resolving the Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its.face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim will only have “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is properly dismissed where, as a matter of law, “the allegations in a complaint, however true,' could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, 127 S.Ct. 1955. Although the court must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor, Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir.2014), that tenet “is inapplicable to legal conclusions,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Securities fraud claims are subject to heightened pleading requirements that the plaintiff must meet to survive a motion to dismiss.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 321-24, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). First, a complaint alleging securities fraud must meet the requirements of Federal Rule of Civil Procedure 9(b). See ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir.2009). Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Allegations that are conclusory or unsupported by factual assertions are insufficient.” ATSI, 493 F.3d at 99. Second, such a complaint must comply with the pleading" }, { "docid": "8412087", "title": "", "text": "LEGAL STANDARD “In deciding a motion to dismiss, a court ordinarily accepts as true all well pleaded factual allegations and draws all reasonable inferences in the plaintiffs favor.” In re Lehman Bros. Sec. & ERISA Litig., 683 F.Supp.2d 294, 298 (S.D.N.Y.2010) (citation omitted). To survive a Rule 12(b)(6) motion to dismiss, a complaint must articulate sufficient factual allegations “to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact.)” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). A plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). A court may “consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, legally required public disclosure documents filed with the SEC, and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit.” Sgalambo v. McKenzie, 739 F.Supp.2d 453, 470 (S.D.N.Y.2010) (quoting ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007)). Securities fraud claims are subject to the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) requires a party to “state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). Although intent may be alleged generally, a plaintiff must still “allege facts that give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir.1995) (citations omitted). A complaint alleging securities fraud will survive a motion to dismiss “only if a reasonable person would deem the inference of scienter cogent and" }, { "docid": "2761143", "title": "", "text": "et seq.; (3) violation of California’s Unfair Competition Law — California Business and Professions Code Sections 17200, et seq.; (4) fraud in the inducement; (5) conspiracy to commit fraud in the inducement; (6) breach of contract; and (7) restitution/unjust enrichment. Defendant BidRack moves to dismiss the seven claims for relief pursuant to Rule 12(b)(6), or in the alternative, to dismiss the class allegations in the complaint. John Doe has not been identified and is not a moving party. This order follows full briefing. ANALYSIS 1. Standard of Review. To survive 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. FRCP 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim is facially plausible when there are sufficient factual allegations to draw a reasonable inference that defendants are liable for the misconduct alleged. While a court “must take all of the factual allegations in the complaint as true,” it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1949-50. “[CJonclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996). Dismissal is only proper if there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). Federal Rule of Civil Procedure 9(b) requires that in all averments of fraud the circumstances constituting fraud must be stated with particularity. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. “Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003). Rule 9(b) serves to give defendants notice of the specific fraudulent conduct against which they must defend. See Bly-Magee v. California, 236 F.3d" }, { "docid": "8689435", "title": "", "text": "VI and VII); unfair competition (Count VIII); and violations of the Virginia Computer Crimes Act (Count IX). With the exception of Counts II and IX, the claims are asserted against both defendants. Counts II and IX are asserted only against Axceler. The defendants have moved to dismiss the amended complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the motions on July 25, 2013. III.Standard of Review When deciding a motion to dismiss for failure to state a claim, the court must accept as true all well-pleaded allegations and draw all reasonably factual inferences in the plaintiffs’ favor. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir.2013). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of [its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and quotation marks omitted). To survive dismissal for failure to state a claim, “a complaint must contain -sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “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. In considering a Rule 12(b)(6) motion, the court may properly consider exhibits attached to the complaint in addition to the complaint itself. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.1991). IV. Discussion The defendants have moved to dismiss all nine counts set forth in the amended complaint on the ground that, for various reasons, they fail to state a claim upon which relief can" }, { "docid": "15318325", "title": "", "text": "in violation of ERISA based on failure to pursue contributions owed to the H & W Fund as a result of unlawful double-breasting/CBA circumvention (equitable relief). (3) Improper Write-Offs: (a) Claim No. -8: Breach of fiduciary duty and/or engaging in prohibited transactions in violation of ERISA based on improper write-offs (all three Trusts) (equitable relief). (3) Miscellany: (a) Claim No. 9: Common law breach of fiduciary duty against certain Trustees (the three highest-ranking officers of Local 3) based on, e.'g., self-dealing and mismanagement of union assets. (b) Claim No. 10: Violation of the Labor Management Reporting and Disclosure Act (“LMRDA”) based on threats made to Plaintiffs as a result of their filing this lawsuit. In the pending motion to dismiss, the claims related to the Longview investment (■ie., the first and second claims) are not being challenged. All other claims, however, are contested (ie., the third through tenth claims). In their opposition, Plaintiffs state they are willing to dismiss the ninth claim for relief, although they note that, in the future, they will to seek leave to amend. See Opp’n at 25 (“ask[ing] the Court to dismiss the claim without prejudice”; “Plaintiffs intend, after a notice period, to bring an application to add a Title V LMRDA claim based on facts alleged in the common law breach of fiduciary duty claim”). Based on Plaintiffs’ statement, the Court dismisses the ninth claim for relief, without prejudice. Below the Court addresses the remaining contested claims. II. DISCUSSION A. Legal Standard '\"'Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss for failure to state a claim for relief. “To survive 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.’ ” A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully. “Where a complaint pleads facts that" }, { "docid": "10605223", "title": "", "text": "of express warranty; (2) breach of implied warranty of merchantability; (3) negligence; (4) unjust enrichment; (5) violation of New York’s Deceptive Trade Practices Law, General Business Law § 349(a); (6) punitive damages; and (7) declaratory and injunctive relief. (Compl. ¶¶ 84-140, Docket No. 1.) In lieu of answering, Defendant moved to dismiss the Complaint in April 2012. (Docket Nos. 12, 17 (motion and amended motion).) Plaintiff filed an Amended Complaint on May 24, 2012. (Docket No. 24.) The Amended Complaint eliminates ABT Building Products Corporation as a defendant, in recognition of the fact that this entity is a wholly owned subsidiary of and indistinct from Defendant Louisiana-Pacific Corporation. (See Pi’s Mem of Law in Opp’n at 2.) No separate cause of action for punitive damages appears in the Amended Complaint, although Plaintiff still seeks such relief as a part of its requested damages. Defendant thereafter moved to dismiss all causes of action in the Amended Complaint except for the breach of express warranty claim. (Docket No. 25.) III. DISCUSSION In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiffs’ favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). In order to survive such a motion, 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, 678, 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); ATSI Commc’ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Further, where" }, { "docid": "5622106", "title": "", "text": "for dismissal. See ECF Nos. 33 & 34. ANALYSIS The Graybills assert eight claims: (1) breach of contract; (2) promissory estoppel; (3) fraud; (4) violation of California’s unfair competition law, Cal. Bus. & Prof. Code § 17200; (5) negligence; (6) declaratory relief; (7) fraud and breach of fiduciary duty in the sale of the loan; and (8) fraud in the alteration of Plaintiffs’ loan application. Wells Fargo moves to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) and — for the fraud claims — failure to allege fraud with particularity. The court sets forth the legal standards and then addresses the claims. I. LEGAL STANDARDS A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). A complaint must therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation and citation omitted). A complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. See id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and parentheticals" }, { "docid": "20755290", "title": "", "text": "Listing Services Act, under California Civil Code § 1812.508; (4) Unfair Business Practices in violation of California Business and Professions Code §§ 17200 et seq. (“Section 17200”); (5) fraud; (6) declaratory relief concerning the validity of certain contracts due to undue influence; (7) declaratory relief concerning the validity of certain contracts due to illegality; (8) declaratory relief concerning the legality of fees collected; (9) breach of fiduciary duty; (10) legal malpractice; (11) violations of the TVPA as to a separate plaintiff subclass against separate defendants; and (12) negligent hiring. Defendants move to dismiss claims 1, 2, 3, and 5. Plaintiffs bring additional claims against Defendants that Defendants do not move to dismiss. LEGAL STANDARD A court should dismiss a complaint when its allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A complaint need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “ ‘[Detailed factual allegations’ are not required.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (stating that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations”)). The Court must accept as true all factual allegations in the complaint and must draw all reasonable inferences from those allegations, construing the complaint in the light most favorable to the plaintiff. Pollard v. Geo Group, Inc., 607 F.3d 583, 585 n. 3 (9th Cir.2010); Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993). But the complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 556, 127 S.Ct." }, { "docid": "21661940", "title": "", "text": "the Act. Id. ¶ 41. In addition, Newman sent Mueller’s art dealer an annotated photograph of “Log Cabin” with comments suggesting that the artist would not disavow the work. Id. ¶ 42. II. Procedural Background Plaintiff filed his initial complaint on June 22, 2015, and the Amended Complaint on January 8, 2016. The Amended Complaint asserts a breach of contract claim against Janssen Gallery and a conversion claim against the gallery’s owner, Michael Janssen. Plaintiff has not served either Michael Janssen or the Janssen Gallery. The Amended Complaint also asserts an unjust enrichment and breach of fiduciary duty claims against Newman and an unjust enrichment claim against Wilhelm Schur-mann, “Log Cabin’s” original owner. On March 15, 2016, defendant Newman moved to dismiss all claims brought against it for failure to state a claim. On May 6, 2016, plaintiff filed a notice of dismissal without prejudice against defendant Schurmann. DISCUSSION I. Motion to Dismiss Standard A court ruling on a Rule 12(b)(6) motion to dismiss must accept as true all factual allegations in the complaint and draw all reasonable inferences in plaintiffs favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 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. at 678, 129 S.Ct. 1937. A court, however, need not accept conclusory allegations as true. Harris, 572 F.3d at 72. II. Breach of Fiduciaiy Duty Claim To state a breach of fiduciary duty claim under New York law, plaintiff must allege (1) the existence of a fiduciary duty, (2) a knowing breach of that duty, and (3) damages resulting from the breach. Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 138 (2d Cir. 2011). Plaintiff has failed to sufficiently allege any element of a breach of fiduciary duty claim" }, { "docid": "20601318", "title": "", "text": "1955). A court considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir.2008) (citation omitted). To survive such 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.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). This “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). The Supreme Court in Iqbal summarized the “[t]wo working principles that underlie” Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. Applying this second principle “will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Thus, the Supreme Court set out a “two-pronged” approach for courts deciding a motion to dismiss: [A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.... When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. A court may also consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference ... and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit” on a motion to dismiss. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted) (“ATSI”). A. Securities Act Claims Each of the defendants" }, { "docid": "11972133", "title": "", "text": "purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of a plaintiffs claims for relief. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), In reviewing a complaint, the court must accept as true all allegations of fact, and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 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)). Plausibility “is not. akin to a ‘probability requirement,’ ” but requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “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. “[M]ere ‘labels and conclusions’ or ‘formulaic recitations] of the elements of a cause of action will not do’; rather, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (emphasis in original) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In contrast to the more generous standard applicable to most pleadings, complaints that include allegations of fraud must be “pled with particularity” under Rule 9(b) of the Federal Rules of Civil Procedure. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993). While the court must continue to accept as true all factual allegations in the complaint and draw inferences in favor of the pleader, the pleader must include more detailed information in order to give rise to an inference of fraudulent intent. Id." }, { "docid": "5080551", "title": "", "text": "action for breach of contract, breach of the implied duty of good faith and fair dealing, negligence, misrepresentation, breach of fiduciary duty, and “breach of the duty of privacy.” In his opposition papers, plaintiff abandoned his claims for misrepresentation and breach of privacy. (PL Mem. At 10-11.) II. Standards A. Motion for Judgment on the Pleadings The applicable legal standard for a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss for failure to state a claim. See King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir.2002). Rule 8(a)(2), Fed.R.Civ.P., requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (internal quotations omitted). When a defendant tests the sufficiency of a complaint by motion, “[t]o survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Twombly, 127 S.Ct. at 1965). The complaint is measured against a “flexible plausibility standard,” which obligates the “pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). This “does not require heightened fact pleading of specifics ....” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007); see Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). It does, however, “require enough facts to ‘nudge [plaintiffs’] claims across the line from conceivable to plausible.’ ” Elevator Antitrust Litig., 502 F.3d at 50 (quoting Twombly, 127 S.Ct. at 1974) (alteration in Elevator Antitrust Litig.). The Court must accept the complaint’s allegations as true and draw all reasonable inferences in favor of the nonmoving party. See United" }, { "docid": "15487041", "title": "", "text": "its loans. Between July and August, 2008, Windsor repaid $9 million of the money it owed the bank, leaving it with $9 million in debt. Id. ¶¶ 81, 84. This was insufficient, however, to prevent further loss. On September 18, 2008, in response to continued declines in the value of the trust’s investments, Citibank liquidated Windsor’s entire investment portfolio of notes (face value, $32,000,000) to satisfy its $9 million of debt. Id. ¶ 87. On February 28, 2011, Plaintiffs filed suit, accusing Defendants of violating § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), as implemented by SEC Rule 10b-5, and § 215 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-l et seq. They also accused Defendants of breach of fiduciary duty, negligence, negligent misrepresentation, negligent supervision, conversion, common law fraud, breach of contract, and unjust enrichment. In response Defendants filed the motion that is the subject of this order. II. The Standard of Review On a motion to dismiss, a court reviewing a complaint will consider all material factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir.1999). “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through ‘factual allegations sufficient to raise a right to relief above the speculative level.’ ” ATSI Commc’ns Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 93 (2d Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rather, the plaintiffs complaint must include “enough facts to state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Allegations of fraud must meet the heightened pleading standard of Rule 9(b), which requires that the plaintiff “state with particularity the circumstances constituting" }, { "docid": "19514312", "title": "", "text": "6, 2017, plaintiffs filed their memorandum of law in opposition to the motion to dismiss, Dkt. 31 (\"Opp.\"), as well as the Hopkins Declaration, Dkt. 32. On November 20, 2017, defendants filed a reply. Dkt. 33. II. Applicable Legal Standards A. Standards for Resolving a Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead \"enough facts to state a claim to relief that is plausible on its face.\" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim will only have \"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.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is properly dismissed where, as a matter of law, \"the allegations in a complaint, however true, could not raise a claim of entitlement to relief.\" Twombly , 550 U.S. at 558, 127 S.Ct. 1955. Although the court must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor, Steginsky v. Xcelera Inc. , 741 F.3d 365, 368 (2d Cir. 2014), that tenet \"is inapplicable to legal conclusions,\" Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. \"Securities fraud claims are subject to heightened pleading requirements that the plaintiff must meet to survive a motion to dismiss.\" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 99 (2d Cir. 2007) ; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 321-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). First, a complaint alleging securities fraud must meet the requirements of Federal Rule of Civil Procedure 9(b). See ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co. , 553 F.3d 187, 196 (2d Cir. 2009). Rule 9(b) states that \"[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.\" Fed. R. Civ. P. 9(b)." }, { "docid": "20395543", "title": "", "text": "Liquisolid Patents and its share of the royalties derived from licensing them. (Id. ¶¶ 157-62, 314-316.) II. DISCUSSION A. Legal Standard Applicable to the Motions to Dismiss 1. General Standard under Rule 12(b)(6) The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency of a plaintiffs claims for relief. Patane v. Clark, 508 F.3d 106, 112 (2d Cir.2007). In reviewing the complaint, the court accepts as true all allegations of fact, and draws all reasonable inferences from these allegations in favor of the plaintiff. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). A complaint is legally sufficient to survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic 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.” Iqbal, 129 S.Ct. at 1949. “[M]ere ‘labels and conclusions’ or ‘formulaic recitation[s] of the elements of a cause of action will not do’; rather, the complaint’s ‘[fjactual allegations must be enough to raise a right to relief above the speculative level.’ ” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In deciding a motion to dismiss under Rule 12(b)(6), the court may, at its discretion, consider matters of which judicial notice may be taken, as well as documents extrinsic to the complaint where a plaintiff “relies heavily upon [the documents] terms and effect, [thus] rendering] the document integral to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002) (internal quotations omitted); see also Republic of Colombia v. Diageo N. Am. Inc., 531 F.Supp.2d 365, 450-51 (E.D.N.Y.2007). 2. Standard for Assessing Statute of" }, { "docid": "20986892", "title": "", "text": "(ii) trade sécret misappropriation under the California Uniform Trade Secrets Act against Chiang, Stanislaus, and Parker; (iii) taking private property without compensation under the California Constitution against Chiang, Stanislaus, and Parker; (iv) conversion against Chiang, Stanislaus, and Parker; (v) breach of contract against all defendants; (vi) breach of fiduciary duty against all defendants; (vii) constructive fraud against Chiang, Stanislaus, and Parker; (viii) misappropriation of idea-implied in fact contract against Chiang, Stanislaus, and Parker; (ix) breach of covenant of good faith and fair dealing against Chiang, Stanislaus, and Parker; (x) fraudulent concealment against all defendants; and (xi) intentional/negligent infliction of emotional distress against all defendants. - She seeks damages, costs, and. an injunction barring the FTB and its employees from infringing her patent. Id. ¶ 132. Defendants move to dismiss. I heard oral argument on the motion on August 12, 2015. LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). There must be “more .than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955. . In deciding whether, the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiffs allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561" }, { "docid": "7173147", "title": "", "text": "Section 315 of the TIA by failing to exercise its rights as Indenture Trustee to enforce sellers’ obligations to remediate defective loans and to require servicers cure all breaches and reimburse the Trusts for losses caused by servicing violations. (Id. ¶ 176.) The Third Cause of Action allege a breach of fiduciary duty. In addition to referring to the allegations supporting its breach of contract claim, plaintiffs also assert that defendant was operating under a conflict of interest which prevented it from acting in the best interests of the Note-holders. (Am. Compl. ¶¶ 181-83.) The Fourth Cause of Action alleges breach of extra-contractual duties to avoid the same conflicts of interest. Plaintiffs allege that U.S. Bank, in acting as servicer for other mortgage loans and RMBS trusts, “was involved in the same wrongful conduct and servicing violations” as “many of the same sellers, servicers, or their affiliates,” and as a result, was loathe to take action against these sellers and servicers in this action. (Am. Compl. ¶¶ 191-92.) II. LEGAL STANDARDS A. Standard of Review Under Rule 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must provide grounds upon which his claim rests through “factual allegations sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In" }, { "docid": "4330848", "title": "", "text": "the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). By contrast, a pleading that only “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). If Plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. III. Discussion A. Choice of Law Federal courts sitting in diversity apply state substantive law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). In this case, each PSA contained a choice of law provision selecting New York law. (PSA § 11.11.) The choice of law provision is only designated, however, for construing the PSA and each certificate, and is silent regarding the common law tort and fiduciary duty claims at issue here. (Id.) Regardless, the parties have relied on New York law in their briefs and at oral argument, which is sufficient to establish the governing law in this action. See Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir.2000) (“The parties’ briefs assume that New York law controls, and such implied consent ... is sufficient to establish choice of law.” (internal quotation marks and citations omitted)). Accordingly, the Court will apply New York law in resolving Defendants’ motions to dismiss. B. Standing 1. M &" }, { "docid": "4330847", "title": "", "text": "to 28 U.S.C. § 1404(a). On February 21, 2008, after reviewing objections from the parties to the Report, Judge Yeakel transferred the matter to this District, where it was assigned to the undersigned. In the closing lines of his Order, Judge Yeakel stated that all motions not addressed therein, including the substantive motions to dismiss the FAC, remained pending. Subsequently, upon Defendants’ motions, the Court stayed discovery pending resolution of Defendants’ motions to dismiss. The Court heard oral argument on October 23, 2009. On March 31, 2010, Plaintiffs and MBIA entered into a stipulation dismissing MBIA with prejudice. The Court permitted the parties to submit letter briefs supplementing arguments made in the omnibus motions to dismiss and transfer this action, the most recent of which was submitted in March 2011. II. Legal Standard Defendants move to dismiss the Complaint for lack of standing and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). By contrast, a pleading that only “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). If Plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”" } ]

[ { "docid": "15233822", "title": "", "text": "with almost 15 years of satisfactory government service. The Agency is responsible for discipline, according to the Federal Personnel Manual chapter 751-3 subch. 1.1-1.a: Section 01.3(d) of Executive Order 9830 places a positive responsibility on the head of each agency “to remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service.” Thus, the agency is both empowered and obligated to act when it determines that action is in order. This accords with this court’s decision dealing with the subject of penalties. “This court has many times held that the matter of penalty is within the discretion of the agency.” Liotta v. United States, 174 Ct.Cl. 91, 96 (1966). We said in De Nigris v. United States, 169 Ct.Cl. 619, 625 (1965): * * * Although to another it may seem harsh, an agency’s decision to dismiss for improper conduct of a substantial nature, rather than to impose some lesser form of disciplinary action, will not be disturbed. Harrington v. United States, 161 Ct.Cl. 432 (1963). It is only where the transgression is so minor, and a discharge based thereon so “unduly harsh and unwarranted”, that the dismissal could be considered as constituting “an abuse of discretion * * * that demands redress by this court.” Clark v. United States, 162 Ct.Cl. 477, 484 (1963). The offense for which plaintiff was here charged does not fall in such category. We have, however, held a discharge illegal when it was harsh out of all proportion to the offense, Clark, supra, and likewise when it was not authorized in an applicable schedule of penalties. Daub v. United States, 292 F.2d 895, 154 Ct.Cl. 434 (1961); cf. Cuiffo v. United States, 137 F.Supp. 944, 950, 131 Ct.Cl. 60, 68 (1955). In Monahan v. United States, 354 F.2d 306, 173 Ct.Cl. 734 (1965), we held that a discharge for accepting gratuities was not excessively harsh. There they consisted of the payment of hotel bills on six occasions and loans of money on three." } ]

[ { "docid": "17029071", "title": "", "text": "was directed to answer them by an officer of the IRS. Charge 2 was based on “Rules of Conduct for Internal Revenue Service Employees,” § 194.35, failure to pay debts: Employees who, without just cause, refuse or neglect to pay, or to make and adhere to satisfactory arrangements to pay or otherwise settle, valid personal debts and obligations may be subject to disciplinary action. Employees are expected to manage their private financial affairs in a manner which will not cause embarrassment to the Service. Eighteen specifications of outstanding debts were set forth, of which eleven were sustained by the Regional Civil Service Commission. Prior to plaintiff’s reappointment with the IRS in October of 1962, he had agreed to liquidate all of these debts within a reasonable time. At the time of his 1964 discharge, he had failed to make a single payment on seven of the eleven debts, and had paid only a minuscule amount on some of the others. Charge ‘3 lodged against plaintiff was based on “Rules of Conduct for Internal Revenue 'Service Employees,” § 1942.55, involving false statements: Proper functioning of the Revenue Service requires that the Service, the courts, other Federal agencies and the public be able to rely implicitly on the truthfulness of Revenue Service employees in matters of official interest. An employee may be subjected to severe disciplinary action and prosecution for intentionally making false or misleading verbal or written statements in matters of official interest. Some of these matters of official interest are: * * * application forms SF-57, and other forms, which serve as a basis for appointment, * * *; and affidavits, transcripts of testimony, or statements to Inspection, whether or not under oath. Charge 3 contained three specifications as follows: * ‡ $ Specification 1 — In an affidavit executed by you on May 9, 1962, given to Assistant Regional Inspector Edward C. Pelletier, Internal Revenue Service, Boston, Mass., you stated that you had been residing since September 1961 at 25 Wyoming St., Boston, Mass., with Carlos Alvarado and his wife Laura, and their child; that there was nothing unusual" }, { "docid": "3778131", "title": "", "text": "Order 9830 places a positive responsibility on the head of each 'agency “to remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity, is such that his removal, demotion, or reassignment will promote the efficiency of the service.” Thus, the agency is both empowered and obligated to act when it determines that action is in order. This accords with this court’s decision dealing with the subject of penalties. “This court has many times held that the matter of penalty is within the discretion of the agency.” Liotta v. United States, 174 Ct. Cl. 91, 96 (1966). We said in DeNigris v. United States, 169 Ct. Cl. 619, 625 (1965) : * * * Although to another it may seem harsh, an agency’s decision to dismiss for improper conduct of a substantial nature, rather than to impose some lesser form of disciplinary action, will not be disturbed. Harrington v. United States, 161 Ct. Cl. 432 (1963). It is only where the transgression is so minor, and a discharge based thereon so “unduly harsh and unwarranted”, that the dismissal could be considered as constituting “an abuse of discretion * * * that demands redress by this court.” Clark v. United States, 162 Ct. Cl. 477, 484 (1963). The offense for which plaintiff was here charged does not fall in such category. We have, however, held a discharge illegal when it was harsh out of all proportion to the offense, Clark, supra, and likewise when it was not authorized in an applicable schedule of penalties. Daub v. United States, 154 Ct. Cl. 434, 292 F. 2d 895 (1961); cf. Cuiffo v. United States, 131 Ct. Cl. 60, 68, 137 F. Supp. 944, 950 (1955). In Monahan v. United States, 173 Ct. Cl. 734, 354 F. 2d 306 (1965), we held that a discharge for accepting gratuities was not excessively harsh. There they consisted of the payment of hotel bills on six occasions and loans of money on three. There was received at the hearing an exhibit consisting of a DORN Regulation No. 1406.1 entitled Disciplinary Actions," }, { "docid": "19734361", "title": "", "text": "Rules of Conduct makes this clear and provides a stem warning of “severe disciplinary action and prosecution” for failure to be truthful in all matters of official interest, including work reports of any nature, and vouchers. Plaintiff says that for a first offense, removal is inappropriate, but by Section 1982.8(1) of the Internal Revenue Manual, “Removal action will be taken” for an offense “when a previously administered oral admonishment has not served to prevent a repetition”. That is this case. Plaintiff seems to have supposed that as a professional man, literal adherence to time reporting requirements was not for him, and any fiction for the record would suffice. As a lawyer, he must have understood the risk of adhering to this view in face of express warnings and admonitions. The test, in weighing the penalty against the offense, was laid ont in Heffron v. United States, 186 Ct. Cl. 474, 485, 405 F. 2d 1307, 1312 (1969): * * * if we are to [find the penalty too harsh], it must be because we find * * * an inherent disproportion between offense and punishment so gross as to appear an abuse of discretion. Section 1942.55 makes it clear that the Service intended to take severe measures against employees making false or misleading statements in matters of official interest. Among these measures was criminal prosecution. Even a casual reading of this section would indicate that punishment would come to anyone violating the clear mandate for truthfulness set forth there. In Monahan v. United States, 173 Ct. Cl. 734, 354 F. 2d 306 (1965), where plaintiff had accepted gratuities, we held that the GSA and the Civil Service Commission could properly determine that the offense was serious enough to warrant dismissal. In Heffron, supra, we refused to overturn a dismissal involving acceptance of a “farewell gift” of liquor. We said, 186 Ct. Cl. at 485, 405 F. 2d at 1313: * * * If at times, as here, this results in tragically wrecking an honorable career for an infraction apparently not of the gravest, this is part of the price that" }, { "docid": "19734353", "title": "", "text": "Nichols, Judge, delivered the opinion of the court: Plaintiff sues here for back pay, as an Internal Bevenue agent, alleging wrongful removal. He is a lawyer and accountant, and had been a career employee for several years. He was stationed at Miami, Florida. On February 1, 1968, plaintiff was advised by letter of his proposed removal in order to promote the efficiency of the Service. Three charges were made and a brief summary follows: Charge I. Furnishing False Information on Official Documents. Seventeen separate specifications were included in the charge, sixteen of which alleged plaintiff’s having reported on oficial sign-out sheets and time reports his presence at a field work assignment auditing a taxpayer’s books at times he was not there. Specification 16 will suffice as an example: Specification 16: Sign-Out Sheet, RC-SE Form 23-A, shows that on July 7,1967, you were at Kovens Construction Company from 8:10 a.m. until 4:45 p.m. Also, you reported on Audit Technical Time Eeport, Form 2493, that on July 7,1967, you spent 8 hours direct examination time on Euedd, Inc., a closely held corporation of Mr. Kovens. You were not at Kovens Construction Company from 8:10 a.m. until 4:45 p.m., and you did not spend 8 hours examination time on Euedd, Inc. Investigation reveals that you left your residence at 8:48 a.m., arrived at Kovens Construction Company at 9:11 a.m., and left there at 4:05 p.m. The charge went on to recite that while the group secretary was authorized to sign agents in and out at their request, each agent was responsible for the accuracy of the entries on the sign-out sheets pertaining to his whereabouts. Specification 17 charged plaintiff with falsifying travel vouchers during the same time period by claiming compensable mileage in his personally owned automobile, and parking fees, not consonant with his actual mileage and the parking fees he had to pay, as investigation established. The charge then indicated the actions alleged in the 17 specifications were in violation of Section 1942.55 of the Eules of Conduct for Internal Eevenue Service Employees (Eev. 10-63) which provides: 1942.55 False Statements Proper functioning" }, { "docid": "4418657", "title": "", "text": "compliance and, if condoned, could impair the credibility of IRS with tax officers and the public generally. We conclude, therefore, that the action taken against plaintiff is sustainable as a matter within the discretion of IRS, that there was substantial evidence for the action it took, and that the action was taken in good faith and with careful adherence to applicable statutes and regulations. Wathen v. United States, 208 Ct. Cl. 342, 527 F.2d 1191 (1975), cert. denied, 429 U.S. 821 (1976); Schlegel v. United States, 189 Ct. Cl. 30, 40, 416 F.2d 1372, 1377-378 (1969), cert. denied, 397 U.S. 1039 (1970). The present case is very similar to Dargan v. United States, 208 Ct. Cl. 993 (1975), which also involved the failure of an IRS employee to file his returns timely, among other offenses, and where removal was upheld. Finally, plaintiff complains that the ARB ruling sanctioned a penalty too harsh in relation to the misconduct involved. The court will normally defer to the administrative judgment on appropriate corrective action unless its severity appears totally unwarranted in light of such factors as the range of permissible punishment specified by statute or regulation, the disciplined party’s job level and nature, his record of past performance, the connection between his job and the improper conduct charged, and the strength of the proof that the conduct occurred. Boyce v. United States, 211 Ct. Cl. 57, 543 F.2d 1290 (1976); Rifkin v. United States, 209 Ct. Cl. 566 (1976), cert. denied, 429 U.S. 1098 (1977); Power v. United States, 209 Ct. Cl. 126, 531 F.2d 505 (1976). It is true that plaintiff served IRS for over 20 years, that he did not owe a tax, and that he had serious personal problems and responsibilities. However, plaintiff did not bother to request an extension of time for filing his returns, even though such extensions may be readily obtained for good cause. Further, his job as a GS-11, step 6, revenue officer was fairly high placed, required him to deal directly with the taxpaying public as an IRS representative, and engaged him in the task" }, { "docid": "19734354", "title": "", "text": "Inc., a closely held corporation of Mr. Kovens. You were not at Kovens Construction Company from 8:10 a.m. until 4:45 p.m., and you did not spend 8 hours examination time on Euedd, Inc. Investigation reveals that you left your residence at 8:48 a.m., arrived at Kovens Construction Company at 9:11 a.m., and left there at 4:05 p.m. The charge went on to recite that while the group secretary was authorized to sign agents in and out at their request, each agent was responsible for the accuracy of the entries on the sign-out sheets pertaining to his whereabouts. Specification 17 charged plaintiff with falsifying travel vouchers during the same time period by claiming compensable mileage in his personally owned automobile, and parking fees, not consonant with his actual mileage and the parking fees he had to pay, as investigation established. The charge then indicated the actions alleged in the 17 specifications were in violation of Section 1942.55 of the Eules of Conduct for Internal Eevenue Service Employees (Eev. 10-63) which provides: 1942.55 False Statements Proper functioning of the Eevenue Service requires that the Service, the courts, other Federal agencies and the public be able to rely implicitly on the truthfulness of Eevenue Service employees in matters of official interest. An employee may be subjected to severe disciplinary action and prosecution for intentionally making false or misleading verbal or written statements in masters of official interest. Some of these matters * * * are: transactions with taxpayers, other Federal agencies or fellow employees; entries on tax returns, work reports of any nature or accounts of any kind; vouchers, leave requests, application forms SF-57, and other forms which serve as a basis for appointment, reassignment, promotion, or other personnel actions; * * * (Emphasis supplied). Charge II. Failure to Work the Required Tour of Duty. The specification supporting this charge noted that the official duty hours of the group were 8 a.m. to 4:45 p.m. daily and that specifications 1-16 of Charge I indicated that plaintiff had not observed these duty hours. Such failure was alleged to be in violation of Section 1942.54" }, { "docid": "21294300", "title": "", "text": "the validity of Eesolution 17. Plaintiff first complains that the Canal Zone did not comply with all procedural requirements in effecting plaintiff’s removal. His first specific ground is that the counseling session given him by Chief Wall on June 18, 1970, was “discipline.” Plaintiff then argues that his removal was for the same offense for which he received “discipline” and, therefore, his removal is invalid. Essentially, plaintiff is arguing that if an employee is disciplined for offense X, then the agency is barred from taking adverse action against the employee on the basis of offense X. The first problem with plaintiff’s argument is that Chief Wall’s counseling of plaintiff was not a disciplinary act. Furthermore, the case cited by plaintiff does not hold, as plaintiff argues. First, then, we must consider the problem of whether the counseling session with Chief Wall can be considered a disciplinary act. Plaintiff argues the counseling session was an admonishment or a reprimand. The record is clear that it was not a reprimand. No reprimand was given in writing to plaintiff and nothing was placed in his official personnel folder as is required by Panama Canal Personnel Manual (PCPM) § 751, Subchapter 2, 2-5 (2). It seems also clear that the counseling session was not an oral admonishment as defined by PCPM §751, Subchapter 2, 2-5(1). In the first place, Chief Wall was not plaintiff’s “immediate supervisor.” Captain Richards, as District Police Commander in Balboa District, would have been the supervisor ordinarily required to administer such an admonishment. In the second place, Chief Wall in his testimony continually referred to the session as “counseling” and not as either a reprimand or admonishment. Finally, Governor Parker in his decision of May 5, 1972, specifically held that the counseling session was not a displinary action as defined by PCPM § 751 or 752, but was merely a counseling session. This court may, therefore, not overturn such a factual determination unless it finds the decision arbitrary, capricious, or unsupported by substantial evidence. Grover v. United States, 200 Ct. Cl. 337, 343 (1973). Consequently, we find that the June" }, { "docid": "15233821", "title": "", "text": "do with drafting the decision, but this is a far cry from establishing that it necessarily reflects Mr. Dullea’s assessment of the credibility of any witnesses. For all we know, Mr. Baer may have read the transcript and then directed Mr. Dullea to write up a decision coming to the result it did come to. Moreover, the only person whose credibility might have been considered at issue was plaintiff. The Baer decision summarizes this testimony but it appears to rest, not on acceptance of it as true, but on omissions and gaps Mr. Baer deemed to exist in the prosecution case. The record affords no solid evidence that any CSC official differed from any other in appraisal of plaintiff’s credibility. The facts therefore do not require us to consider plaintiff’s argument on the law as to this point. Plaintiff’s final argument is that even if he did accept the case of liquor and even if it were a violation of the gratuity regulations, in any event, the penalty of dismissal was too severe for someone with almost 15 years of satisfactory government service. The Agency is responsible for discipline, according to the Federal Personnel Manual chapter 751-3 subch. 1.1-1.a: Section 01.3(d) of Executive Order 9830 places a positive responsibility on the head of each agency “to remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service.” Thus, the agency is both empowered and obligated to act when it determines that action is in order. This accords with this court’s decision dealing with the subject of penalties. “This court has many times held that the matter of penalty is within the discretion of the agency.” Liotta v. United States, 174 Ct.Cl. 91, 96 (1966). We said in De Nigris v. United States, 169 Ct.Cl. 619, 625 (1965): * * * Although to another it may seem harsh, an agency’s decision to dismiss for improper conduct of a substantial nature, rather than to impose some lesser form of disciplinary action," }, { "docid": "19935015", "title": "", "text": "the District Director advising him that the charges were sustained and that he would be discharged effective June 14, 1957. The plaintiff was removed from the Service on that date. He appealed to the Regional Director of the Civil Service Commission. That official held a hearing and sustained the action of the Internal Revenue Service. The plaintiff then appealed to the Board of Appeals and Review of the Civil Service Commission. That Board affirmed the decision of the Regional Director. The plaintiff thereupon brought this suit. The plaintiff asserts that the action of the District Director of Internal Revenue discharging the plaintiff was arbitrary and capricious, and was procedurally defective. The plaintiff’s discharge was based upon his failure to include interest income in his income tax returns, and upon his statements made to an Inspector, to two Special Agents, and to the Regional Director and his assistants. The statements indicated that the plaintiff was aware, when he omitted the interest income from his return, that he should have included it, but that he thought it was a rather usual practice of taxpayers not to include such income, and he therefore omitted it. As to the 1955 return, made after the omissions in the prior years had been called to his attention, his answer was, in effect, that one does not always give heed to warnings which one has received. The plaintiff asserts, as a procedural defect, the provisions of a detailed directive, issued by the Office of the Regional Commissioner of the Philadelphia Region as RC-PHI-Memorandum No. 19-3, Revised (July 14, 1955). The memorandum was entitled “ADVERSE ACTIONS” and covered in minute detail the steps to be taken to accomplish any degree of adverse action against an employee, from oral admonishment to discharge. It said, in its “Section 9. Procedures” that when a conduct investigation had been initiated, the Regional Inspector would submit reports of the investigation to the Regional Commissioner on all persons employed under the Regional Commissioner’s jurisdiction, and that from the Regional Commissioner’s Office reports disclosing derogatory information about employees whom the District Director had authority to" }, { "docid": "19734360", "title": "", "text": "there until 5:45 he would conform to the normal 8 hour work day. This latter situation is approved as it is done for the convenience of the Service. Also you are requested to sign out on the Form 23-A at the time of your aetual appointment. For example, if your appomtment does not begin until 8:30 do not sign out as being at the taxpayer's at 8:00 a.m. Sign out for the actual time of your appointment. (Emphasis supplied.) Other memoranda in the record indicate the supervisor’s continuing concern — obsession, if you like — with the accuracy of the sign-out sheets and that each field agent work his full hours of duty. These communications were not a general admonition to avoid sin, but comprised specific warnings regarding the exact case plaintiff claims is so trivial as to not require emphasis. The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. Section 1942.55 of the Rules of Conduct makes this clear and provides a stem warning of “severe disciplinary action and prosecution” for failure to be truthful in all matters of official interest, including work reports of any nature, and vouchers. Plaintiff says that for a first offense, removal is inappropriate, but by Section 1982.8(1) of the Internal Revenue Manual, “Removal action will be taken” for an offense “when a previously administered oral admonishment has not served to prevent a repetition”. That is this case. Plaintiff seems to have supposed that as a professional man, literal adherence to time reporting requirements was not for him, and any fiction for the record would suffice. As a lawyer, he must have understood the risk of adhering to this view in face of express warnings and admonitions. The test, in weighing the penalty against the offense, was laid ont in Heffron v. United States, 186 Ct. Cl. 474, 485, 405 F. 2d 1307, 1312 (1969): * * * if we are to [find the penalty too harsh], it must be because we find" }, { "docid": "17098418", "title": "", "text": "support of his application for reinstatement with IRS. The plaintiff refused to answer all of these questions, although he was directed to answer them by an officer of the IRS. Charge 2 was based on “Rules of Conduct for Internal Revenue Service Employees,” § 194.35, failure to pay debts: Employees who, without just cause, refuse or neglect to pay, or to make and adhere to satisfactory arrangements to pay or otherwise settle, valid personal debts and obligations may be subject to disciplinary action. Employees are expected to manage their private fi nancial affairs in a manner which will not cause embarrassment to the Service. Eighteen specifications of outstanding debts were set forth, of which eleven were sustained by the Regional Civil Service Commission. Prior to plaintiff’s reappointment with the IRS in October of 1962, he had agreed to liquidate all of these debts within a reasonable time. At the time of his 1964 discharge, he had failed to make a single payment on seven of the eleven debts, and had paid only a minuscule amount on some of the others. Charge 3 lodged against plaintiff was based on “Rules of Conduct for Internal Revenue Service Employees,” § 1942.55, involving false statements: Proper functioning of the Revenue Service requires that the Service, the courts, other Federal agencies and the public be able to rely implicitly on the truthfulness of Revenue Service employees in matters of official interest. An employee may be subjected to severe disciplinary action and prosecution for intentionally making false or misleading verbal or written statements in matters of official interest. Some of these matters of official interest are: * * * application forms SF-57, and other forms, which serve as a basis for appointment, * * *; and affidavits, transcripts of testimony, or statements to Inspection, whether or not under oath. Charge 3 contained three specifications as follows: Specification 1- — -In an affidavit executed by you on May 9, 1962, given to Assistant Regional Inspector Edward C. Pelletier, Internal Revenue Service, Boston, Mass., you stated that you had been residing since September 1961 at 25 Wyoming St.," }, { "docid": "3778130", "title": "", "text": "we know, Mr. Baer may have read the transcript and then directed Mr. Dullea to write up a decision coming to the result it did come to. Moreover, the only person whose credibility might have been considered at issue was plaintiff. The Baer decision summarizes this testimony but it appears to rest, not on acceptance of it as true, but on omissions and gaps Mr. Baer deemed to exist in the prosecution case. The record affords no solid evidence that any CSC official differed from any other in appraisal of plaintiff’s credibility. The facts therefore do not require us to consider plaintiff’s argument on the law as to this point. Plaintiff’s final argument is that even if he did accept the case of liquor and even if it were a violation of the gratuity regulations, in any event, the penalty of dismissal was too severe for someone with almost 15 years of satisfactory government service. The Agency is responsible for discipline. according to the Federal Personnel Manual, chapter 751-3 subch. 1.1-l.a: Section 01.3(d) of Executive Order 9830 places a positive responsibility on the head of each 'agency “to remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity, is such that his removal, demotion, or reassignment will promote the efficiency of the service.” Thus, the agency is both empowered and obligated to act when it determines that action is in order. This accords with this court’s decision dealing with the subject of penalties. “This court has many times held that the matter of penalty is within the discretion of the agency.” Liotta v. United States, 174 Ct. Cl. 91, 96 (1966). We said in DeNigris v. United States, 169 Ct. Cl. 619, 625 (1965) : * * * Although to another it may seem harsh, an agency’s decision to dismiss for improper conduct of a substantial nature, rather than to impose some lesser form of disciplinary action, will not be disturbed. Harrington v. United States, 161 Ct. Cl. 432 (1963). It is only where the transgression is so minor, and a discharge based" }, { "docid": "21141073", "title": "", "text": "him at the interview with the inspector (prior to the issuance of the letter of charges). If this was so, it was immaterial to the determination of the formal adverse action proceedings which did not rest in any significant sense on statements or admissions made by plaintiff to the inspector. Another claim is that claimant was entitled, in the proceedings following the letter of charges, to see all of the inspector’s report, even that portion which was unconnected with the charges actually made. The answer is that the regulations require the employee to be supplied only with “the material * * * relied on [by the agency] to support the reasons in that notice” (5 C.F.R. 752.202(a) (2) (1974)) — and that was done here. Bias is alleged on the part of the oral reply officer but there is no warrant in the record for this accusation, and plaintiff’s representative admitted at the close of that meeting that “We had our opportunity to say everything that we hoped to say.” A separate charge of bias against the IRS hearing examiner is likewise unsustained by the record, as the Civil Service Commission found. The further allegation that that examiner should have disqualified himself because he and the management representative had once attended a school together is obviously frivolous. We come finally to the point that the penalty of removal was too severe for the offense, especially in view of plaintiff’s twenty-six years of federal service and eleven years in the IRS. This is a furrow which has been well plowed in recent years. See Grover v. United States, 200 Ct. Cl. 337, 353-54 (1973), and cases cited. In this case we cannot say that there is an inherent or gross disproportion between the punishment of removal and the offense of an IRS tax technician’s knowingly or recklessly overstating his deductions in his personal return for his own tax benefit. In the words of the Board of Appeals and Review: “As a Tax Technician the appellant was responsible for auditing the income tax returns of other citizens and to see that these" }, { "docid": "19734355", "title": "", "text": "of the Eevenue Service requires that the Service, the courts, other Federal agencies and the public be able to rely implicitly on the truthfulness of Eevenue Service employees in matters of official interest. An employee may be subjected to severe disciplinary action and prosecution for intentionally making false or misleading verbal or written statements in masters of official interest. Some of these matters * * * are: transactions with taxpayers, other Federal agencies or fellow employees; entries on tax returns, work reports of any nature or accounts of any kind; vouchers, leave requests, application forms SF-57, and other forms which serve as a basis for appointment, reassignment, promotion, or other personnel actions; * * * (Emphasis supplied). Charge II. Failure to Work the Required Tour of Duty. The specification supporting this charge noted that the official duty hours of the group were 8 a.m. to 4:45 p.m. daily and that specifications 1-16 of Charge I indicated that plaintiff had not observed these duty hours. Such failure was alleged to be in violation of Section 1942.54 of the Rules of Conduct, which provided for “disciplinary action including separation” in cases of recurring or continued unauthorized absence. Charge III. Failure to Follow Supervisor’s Instructions. The three specifications of this charge rely on the specifications of Charge I in that plaintiff failed to work his full tour of duty as directed by his section chief by failing to return to the office when he had not worked his full shift at a taxpayer’s place of business. Plaintiff sought and delivered an oral reply, submitting a lengthy affidavit denying all charges and specifications, alleging mitigating circumstances, and setting forth bases of defense. In essence, he responded that (1) he had not intentionally falsified travel vouchers or sign-out sheets, (2) he acted within the discretion normally accorded a professional employee, (3) there were mitigating circumstances, and (4) management had interfered with his defense. A decision adverse to plaintiff was appealed to the Regional Commissioner of Internal Revenue, with emphasis that no deliberate falsification had occurred, but he affirmed. On December 2, 1968, plaintiff appealed to" }, { "docid": "22289157", "title": "", "text": "supervisors, and officials with intent to harm and destroy the reputation, authority, or official standing of those concerned. (Emphasis supplied) We agree; plaintiff displayed such reckless disregard of the truth in making his statements that they are outside any First Amendment protection. The pertinent regulation, CPE 2, par. (2-4) 1 includes the following: * * * Specifically, employees are not permitted to make irresponsible, false, or defamatory statements for the express purpose of injuring others. The table of penalties authorizes removal for: * * * Knowingly making false or malicious statements against other employees, supervisors or officials with the intent to destroy the reputation, authority or official standing of those concerned. The BAE’s language evidently tracks that of the Table of Penalties. The regulation expressly preserves to employees the right to “present information” of instances of “deficiencies, irregularities, waste, fraud,” etc. There is nothing either in the regulation or the proceedings of defendant’s officials to suggest that if plaintiff had reported supposed instances of, e.g., fraud, but had merely been unable to prove them, he would have been removed. The charges against Swaaley ultimately boiled down to but one when the CSC was through with his case. This was a statement in his letter to the Secretary of the Navy describing a conversation with a named official, and falsely attributing to him a corrupt proposal. The letter was in the most literal sense a petition for redress of grievances. Swaaley stated his grievance in the letter: he was not promoted when others less qualified were because they paid bribes. He ad dressed it to a person be must bave supposed bad power to redress the grievance, the head of bis Department. Thus it was a petition. Had it been addressed to anyone not apparently having such power, its First Amendment status would bave been more a matter for question. We took notice of the fact that few persons can remember and report correctly the oral statements of others. We thought that in the total circumstances, including the fact that admittedly not everything was sweetness and light at Swaaley’s place of" }, { "docid": "16115520", "title": "", "text": "in his petition for invalidating his removal, but the defendant moves for summary judgment on the ground that they are all without merit. We are given no adequate reason for remitting these questions for trial and therefore dispose of them now. Cf. Begendorf v. United States, 169 Ct. Cl. 293, 340 F. 2d 362 (1965). The first of these challenges is that the provision in the GSA manual forbidding the acceptance of gratuities and favors had lost its effectiveness through long non-enforce ment. Plaintiff proffers no proof of this contention nor anything calling for a trial; the Government, on the other hand, shows that in 1954 plaintiff signed a document certifying that he had read and understood the GSA Standards of Conduct which included this very prohibition. The second of plaintiff’s minor points is that the agency suspended him during his 30-day notice period without giving its reasons; this point is valueless both because he did not adequately raise it before the Civil Service Commission and because the agency did, in effect, state the reasons for the suspension. The answer to the third and fourth of the attacks — that the penalty of dismissal was overly harsh and discriminatory against plaintiff — is that GSA and the Commission could properly determine that it was a serious offense warranting dismissal to accept the payment of six hotel bills and to borrow three separate times from three different truckers — all in one year. Plaintiff correctly says that his superior was merely reprimanded, not separated, for violating the ban on gratuities, but the latter’s transgression was only the much lesser one of twice accepting the payment of hotel bills. Finally, we reject plaintiff’s contention that his removal was founded on reasons other than those set forth in the letter of charges; the Board of Appeals and Review properly ruled that the mere fact that other improprieties by plaintiff were mentioned at some point in the inquiry into his conduct does not mean that the removing officer considered those other instances. The letter of removal was confined to the charges. Cf. Krennrich v." }, { "docid": "19734362", "title": "", "text": "* * * an inherent disproportion between offense and punishment so gross as to appear an abuse of discretion. Section 1942.55 makes it clear that the Service intended to take severe measures against employees making false or misleading statements in matters of official interest. Among these measures was criminal prosecution. Even a casual reading of this section would indicate that punishment would come to anyone violating the clear mandate for truthfulness set forth there. In Monahan v. United States, 173 Ct. Cl. 734, 354 F. 2d 306 (1965), where plaintiff had accepted gratuities, we held that the GSA and the Civil Service Commission could properly determine that the offense was serious enough to warrant dismissal. In Heffron, supra, we refused to overturn a dismissal involving acceptance of a “farewell gift” of liquor. We said, 186 Ct. Cl. at 485, 405 F. 2d at 1313: * * * If at times, as here, this results in tragically wrecking an honorable career for an infraction apparently not of the gravest, this is part of the price that must be paid to maintain the respect and the self-respect of our Government. It is not the result of arbitrary whim or personal vindictiveness. If we judges think we know of some better way to handle this problem, we are not at liberty to impose it in the adjudication of cases. The point of that case is that within statutory and Presidential guide lines, and in view of agency missions, management has a right to lay down standards of conduct for employees and also to decide whether specific breaches of these standards are serious or petty. If we are able to see a reasonable nexus between a disciplinary action consequent on these determinations, and what the Service deems in good faith its interests to be, our function is at an end. Plaintiff reported, or caused to be reported, on official sign-out sheets that he was on duty at times and places where he was not. He was responsible for the accuracy of these reports; be bas not argued otherwise. The record shows that repeated demands" }, { "docid": "3778132", "title": "", "text": "thereon so “unduly harsh and unwarranted”, that the dismissal could be considered as constituting “an abuse of discretion * * * that demands redress by this court.” Clark v. United States, 162 Ct. Cl. 477, 484 (1963). The offense for which plaintiff was here charged does not fall in such category. We have, however, held a discharge illegal when it was harsh out of all proportion to the offense, Clark, supra, and likewise when it was not authorized in an applicable schedule of penalties. Daub v. United States, 154 Ct. Cl. 434, 292 F. 2d 895 (1961); cf. Cuiffo v. United States, 131 Ct. Cl. 60, 68, 137 F. Supp. 944, 950 (1955). In Monahan v. United States, 173 Ct. Cl. 734, 354 F. 2d 306 (1965), we held that a discharge for accepting gratuities was not excessively harsh. There they consisted of the payment of hotel bills on six occasions and loans of money on three. There was received at the hearing an exhibit consisting of a DORN Regulation No. 1406.1 entitled Disciplinary Actions, which includes a schedule of penalties. Plaintiff’s counsel used it in cross-examination, and it was not mentioned thereafter. It does not purport to be binding and does not recommend a penalty for any offense that clearly includes the one at bar. Apparently plaintiff does not rely on it. Consequently if we are to hold for plaintiff on this issue, it must be because we find, as in Olarle, an inherent disproportion between offense and punishment so gross as to appear an abuse of discretion. In the days of Rameses I, we suppose, the one-way flow of gifts to those deputized to administer government affairs, from those obliged to do business with them, already was an ancient institution. Of course, the impartiality of the donees was in theory not impaired. That would be bribery, of which perish the thought. In many cultures the esteem and love of the citizen for the official was expected to be so large and dependable, it was relied on for the latter’s subsistence, no salary or a nominal one only being" }, { "docid": "16331486", "title": "", "text": "Regulations CPR C2 Appendix B, Item 17, lists the following offense : ‘Knowingly making a false or malicious statement against other employees, supervisors or officials with the intent to harm or destroy the reputation, authority or official standing of those concerned.’ The penalty for the first offense can be a reprimand or removal.” Tie notice does say that “You knew what actually had happened when you reported this case as a security violation,” but It does not say that plaintiff realized that the circumstances failed to constitute such a violation, or that he acted in reckless disregard of whether or not Mr. Milne’s actions amounted to a violation. One part of the decision of the Board of Appeals and Review reads as if that tribunal may have thought that the charge involved careless or negligent discussion by plaintiff of “security violations” with a secretary. If this is a correct reading, it doubly illustrates the vice of an imprecise notice. First, there was no warning in the notice that discussion with a secretary was charged as an offense. Second, the Board failed to recognize that the only charge involved actual subjective malice and intent-to-harm, not mere negligence (no matter how gross) unless it amounted to reckless disregard of the truth. The Civil Service Commission’s regional office thought that this paragraph was not considered a charge at ail but “even if it were to be considered as a charge for the most part it lacks the required amount of detail and specificity”. The Commission refused to consider it in any, way. The agency decision explicitly stated, however, that “the facts set forth in paragraph three of the Letter of Proposed Removal [the paragraph in question] were considered in arriving at the decision to remove.” The plaintiff adequately raised the other aspects of defectiveness before the Commission, and we understand the Commission’s decisions as considering them. The defendant does not argue otherwise. The actual decision to remove was made by someone else. In this discussion we assume, without deciding, that (1) plaintiff made his accusations with knowledge that they were false or with" }, { "docid": "16115519", "title": "", "text": "been outstanding, and deemed by the Agency to be still operative, a central office document — Order No. 15— which referred to the personnel part of Order No. 181 and specifically contemplated that removals of persons in grades higher than plaintiff would be effected at the national level. Through Order No. 15, or by its own force, Order No. 181 also appears to have continued with at least a residual spark of life. We think that the most rational conclusion from all of this is that the power to dismiss employees of plaintiff’s rank must have been intended to remain with the Regional Commissioner, even after the issuance of Order No. 328. The delegation of removal power to the Regional Office — explicitly contained in Order No. 181 and implicitly assumed in Order No. 15 — has not been proved to have lapsed. The Regional Commisioner, in turn, duly delegated his power to the Personnel Officer who removed plaintiff. That officer therefore had valid authority. Plaintiff does not argue the five other reasons set forth in his petition for invalidating his removal, but the defendant moves for summary judgment on the ground that they are all without merit. We are given no adequate reason for remitting these questions for trial and therefore dispose of them now. Cf. Begendorf v. United States, 169 Ct. Cl. 293, 340 F. 2d 362 (1965). The first of these challenges is that the provision in the GSA manual forbidding the acceptance of gratuities and favors had lost its effectiveness through long non-enforce ment. Plaintiff proffers no proof of this contention nor anything calling for a trial; the Government, on the other hand, shows that in 1954 plaintiff signed a document certifying that he had read and understood the GSA Standards of Conduct which included this very prohibition. The second of plaintiff’s minor points is that the agency suspended him during his 30-day notice period without giving its reasons; this point is valueless both because he did not adequately raise it before the Civil Service Commission and because the agency did, in effect, state the reasons" } ]

[ { "docid": "12534450", "title": "", "text": "search since he failed to object to the admission in evidence of the fruits thereof. Regarding the status of Lieutenant Kielman as being in the execution of his office when he was assaulted, counsel contend: (1) The search was legal; (2) even if reading the letter was beyond the scope of the authorized search, such did not serve to remove the lieutenant from the execution of his office; and (3) the appellant’s remedies to manifest his right to personal privacy do not include an entitlement to assault a superior commissioned officer. Ordinarily, the failure to object to the admission of evidence obtained as a result of search and seizure precludes the appellant from asserting on appeal that the search and seizure were illegal. The reason for the rule is that if objection is made at the trial evidence might be presented by the prosecution to show that in fact the search and seizure were legal. United States v Dupree, 1 USCMA 665, 5 CMR 93 (1952); United States v Webb, 10 USCMA 422, 27 CMR 496 (1959). However, as this Court stated in Dupree, at page 670: “We recognize that there may conceivably be extreme circumstances under which it will be necessary for this Court to consider an issue of unlawful search, regardless of whether it was properly raised below.” In the case at bar, two items found in the search, a .38 caliber pistol and a quantity of marihuana, were admitted in evidence. Defense counsel did not object on the ground of illegal search; rather, the defense was based on appellant’s testimony that the items were not his and that he was unaware of their location in his living area. The court acquitted him in each instance. Were it not for the controversy over the letter, the question of the legality of the search would indeed be moot, as the Government contends. We have no way of knowing why defense counsel did not contest the issue. On the basis of the testimony of Captain Gray and Lieutenant Kiel-man, set forth in detail above, the existence of probable cause to" } ]

[ { "docid": "12116153", "title": "", "text": "1969 Manual, supra, which applied when this trial occurred, authorizes self-defense if “reasonable grounds existed to apprehend that death or grievous body harm was about to be inflicted on the accused or on a person he could lawfully defend and the accused must in fact have had such an apprehension.” (Emphasis added.) Para. 216c. Several opinions recognize the defense. See, e.g., United States v. Regalado, 13 U.S.C.M.A. 480, 33 C.M.R. 12 (1963); United States v. Styron, 21 C.M.R. 579 (C.G.B.R.), pet. denied, 7 U.S.C.M.A. 776, 21 C.M.R. 340 (1956); United States v. Hernandez, 19 C.M.R. 822 (A.F.B.R.1955); United States v. Person, 7 C.M.R. 298 (A.B.R.1953). Moreover, the Manual for Courts-Martial, United States, 1984, reaffirms that “[t]he principles of self-defense ... apply to defense of another,” see R.C.M. 916(e)(5). This defense was litigated at RaveneTs trial and was the specific subject of argument by both counsel prior to findings. Despite the concerted defense effort, the military judge, acting as factfinder, implicitly rejected defense of another as an excuse for the homicide. Apparently, appellate defense counsel did not raise this issue before the Court of Military Review; and it was not discussed by that court — either as a matter of law or in connection with the exercise of that court’s factfinding powers. Our specified issue indicates our concern whether the undisputed facts show that appellant was entitled to this defense as a matter of law and that, accordingly, the evidence was insufficient as a matter of law. Cf. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this connection, we note especially the violence Covin directed towards his wife, his refusal to terminate his attacks on her, and the nature of the restraint being employed by Ravenel. Moreover, we are especially concerned that the evidence of appellant’s adulterous relation with Covin’s wife might have given rise to unjustified speculation as to the cause of death. IV The decision of the United States Army Court of Military Review is set aside; and the record of trial is returned to the Judge Advocate General of the Army for" }, { "docid": "22771874", "title": "", "text": "the absence of defense objection. See United States v. Lumm, 1 M.J. 35 (C.M.A.1975); United States v. Conner, 19 U.S.C.M.A. 74, 41 C.M.R. 74 (1969); United States v. Dues, 19 U.S.C.M.A. 130, 41 C.M.R. 130 (1969); United States v. Newton, 18 U.S.C.M.A. 562, 40 C.M.R. 274 (1969). But see United States v. Roman, 22 U.S.C.M.A. 78, 46 C.M.R. 78 (1972); United States v. Pierce, 19 U.S.C.M.A. 225, 41 C.M.R. 225 (1970). It has become clear, however, that “[a] per se approach to plain error review is flawed.” United States v. Young, — U.S. ---, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985). In requiring automatic reversal when this instructional error occurred, Johnson and its progeny failed to take into account the facts and circumstances of the individual cases. This approach permits counsel for the accused to remain silent, make no objections, and then raise an instructional error for the first time on appeal. This undermines “our need to encourage all trial participants to seek a fair and accurate trial the first time around.” United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). Moreover, without viewing the error in the context of the facts of the particular case, “[i]t is simply not possible for an appellate court to assess the seriousness of the claimed error.” United States v. Young, supra 105 S.Ct. at 1047. In order to constitute plain error, the error must not only be both obvious and substantial, it must also have “had an unfair prejudicial impact on the jury’s deliberations.” Id., n. 14. The plain error doctrine is invoked to rectify those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). As a consequence, it “is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, supra, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14. To determine whether plain error has occurred in this" }, { "docid": "12139443", "title": "", "text": "even occurred as alleged, e. g., indecent assault by fondling the victim’s vagina. United States v. Jones, 10 U.S.C.M.A. 122, 27 C.M.R. 196 (1959); United States v. Burt, 45 C.M.R. 557 (A.F.C.M.R.1972), pet. denied, 45 C.M.R. 928. Here, as in the cited cases, the accused claimed no specific mistake as regards his own conduct. He, in essence, asserted that Pamela’s initial behavior and her subsequent acquiescence in the face of his sexual advances added up to acceptance of and cooperation with his aggressive behavior. As stated by the Court of Military Appeals in United States v. Jones, supra, 27 C.M.R. at page 202, and fully applicable here: In short, the accused’s testimony only raised a factual issue of consent which was presented to the court under full and proper instructions and was determined adversely to him. Having so found, the military judge’s instruction on the perceived defense of mistake of fact was a gratuity which, in these circumstances, could only have benefited the accused. See United States v. Amie, 7 U.S.C.M.A. 514, 22 C.M.R. 304 (1957); United States v. Tucker, 14 U.S.C.M.A. 376, 34 C.M.R. 156 (1964); United States v. Roeder, 17 U.S.C.M.A. 447, 38 C.M.R. 245 (1968). Even assuming for the purpose of this discussion that mistake of fact as to consent is a valid defense, and was raised by the instant circumstances, the accused would still be entitled to no relief. In our judgment, the trial judge’s instruction that such mistake must be both honest and reasonable to be exonerating (which, we note, was substantially as requested by trial defense counsel) stated the proper standard. Appellate defense counsel, in support of their position that a mistake of fact as to consent need only be honestly held by the accused, cite decisions of the Court of Military Appeals holding that indecent assault is a specific intent offense. United States v. Burden, 2 U.S.C.M.A. 547, 10 C.M.R. 45 (1953); United States v. Wycliff, 3 U.S.C.M.A. 38,11 C.M.R. 38 (1953). They correctly observe that where an offense involves a specific rather than a general criminal intent, the rule, almost without exception," }, { "docid": "12142842", "title": "", "text": "pistol in the accused’s automobile. It was further stated that the pistol was normally kept in the automobile but no information was provided as to when and how many times it had been previously seen. Upon these facts, authority to search for and seize the pistol from the accused’s automobile was orally granted by the commander. The search was subsequently conducted that day and the pistol was seized. At trial, the pistol was received in evidence over the accused’s objection. A commander-authorized search of a person or property under his control must be founded upon probable cause for the search to be valid. This validity would obtain where the authorizing commander has knowledge of facts and circumstances that would cause a prudent person to conclude that a crime has been committed or is being committed and that evidence of that crime is located at the place to be searched or on the person to be searched. United States v. Guerette, 23 U.S.C.M.A. 281, 49 C.M.R. 530 (1975); United States v. Hennig, 22 U.S.C.M.A. 377, 47 C.M.R. 229 (1973); United States v. Elwood, 19 U.S.C.M.A. 376, 41 C.M.R. 376 (1970); United States v. Martinez, 16 U.S.C.M.A, 40, 36 C.M.R. 196 (1966); United States v. McCain, 49 C.M.R. 514 (A.F.C.M.R. 1974); Manual for Courts-Martial, 1969 (Rev.), paragraph 152. Essential to a determination as to whether probable cause to search exists is the relationship between the time when the authority to search is given and the time when the facts and circumstances relied upon to justify the search occurred. Facts and circumstances which would suffice to constitute probable cause on the date of happening obviously would lessen with the passing of time. What is sufficient to establish probable cause on one day may not be sufficient to do so on a later date. Time, however, does not provide the sole basis to resolve the issue as to whether there is in existence the probable cause necessary to authorize a lawful search. Nonetheless, the occurrence of the facts and circumstances relied upon to support a search authorization must be closely related in time to" }, { "docid": "12123929", "title": "", "text": "appellant’s company commander and, eventually, his platoon sergeant, . . . [Sergeant First Class] Lilly, the agents went to Room 104 only to find that there was a Room 104A and a Room 104B. They entered one of them and were told that the man they were looking for was in the other. The door to that room was locked. When Lilly knocked on the door, he was told that the people inside could not unlock the door. Lilly obtained a key and he, Early and one of the other agents entered the room. There were several persons in the room— the record does not disclose how many. Early went directly to and apprehended and searched the appellant, the only person wearing a yellow jacket. Early testified he knew “which one [he] was.” A $20 bill was found in appellant’s jacket pocket. Its serial number was the same as on the bill Early had given to Gonzalez. At trial the $20 bill was offered as an exhibit and received in evidence without objection. One of the issues granted for review by this Court challenges the probable cause determination made by Agent Early prior to his apprehension of the appellant. See Article 7, UCMJ, 10 U.S.C. § 807; United States v. Paige, 7 M.J. 480, 484 (C.M.A.1979). Acknowledging the fact that no objection was raised at trial to this determination, the appellant now asserts that it was plain error for the trial judge to admit the $20 bill seized incident to such an invalid apprehension. See United States v. Hendrix, 21 U.S.C.M.A. 412, 416, 45 C.M.R. 186, 190 (1972); United States v. Dupree, 1 U.S.C.M.A. 665, 670, 5 C.M.R. 93, 98 (1952). In particular, he asserts that there is insufficient evidence in this record of trial to show that Agent Early had probable cause to apprehend him as the person who sold drugs earlier that day to Gonzalez. See generally United States v. Wilson, 6 M.J. 214, 215 (C.M.A.1979). We disagree. The record of trial provides sufficient evidence from which the trial judge could conclude that Agent Early had probable cause" }, { "docid": "12142844", "title": "", "text": "the granting of the search authorization in order to find probable cause. United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970); United States v. Clifford, 19 U.S.C.M.A. 391, 41 C.M.R. 391 (1970); United States v. Britt, 17 U.S.C.M.A. 617, 38 C.M.R. 415 (1968). In the case before us, it is the relationship between the time that the agents of the OSI became aware from the informant that the accused possessed a concealed pistol in his automobile and the time the authority to search the automobile was issued which causes us concern. Our concern is engendered by certain inferences we draw from the facts and circumstances which were before the commander who authorized the search. These are that the pistol was relatively light in weight, readily portable, concealable, and located in a highly mobile conveyance — an automobile. Additionally, and most importantly, there was nothing to indicate that the pistol would be located in the accused’s automobile on the 10th of September 1975, simply because it had been seen there some two or three weeks earlier. There was nothing to serve as a basis for a conclusion that the accused continued to possess the weapon in his automobile from the date it was last seen up to and including 10 September. The information received and acted upon was, at the time, stale. Under the circumstances of this case, we find the authority to search was not based upon probable cause; hence, the introduction of Prose eution Exhibit 1, the pistol, into evidence was error. The remaining evidence introduced at trial regarding Charge II and its specification independent of the evidence we hold erroneously admitted, we find insufficient to sustain the accused’s guilt of that offense. United States v. Ward, 23 U.S.C.M.A. 572, 50 C.M.R. 837, 1 M.J. 176 (1975); United States v. Walters, 22 U.S.C.M.A. 516, 48 C.M.R. 1 (1973); United States v. Bonavita, 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972); United States v. Simpson, 15 U.S.C.M.A. 18, 34 C.M.R. 464 (1964). Prejudice being apparent, we set aside the findings of guilty of Charge II and its specification and" }, { "docid": "14256714", "title": "", "text": "permit introduction of civilian convictions. United States v. Baughman, 8 M.J. 545 (C.G.C.M.R.1979); United States v. Rhodus, 46 C.M.R. 1221 (N.C.M.R.1973). Moreover, paragraph 755 (2) only permits the introduction of evidence of a previous military conviction if it was for an offense occurring before some offense of which the accused has been convicted at the present trial. United States v. Stanaway, 12 U.S.C.M.A. 552,31 C.M.R. 138 (1961); accord United States v. Arana, 3 M.J. 36 (C.M.A.1977) (mem.). Instead, the information was contained in a personnel record admitted to show the appellant’s past conduct and performance in accordance with the provisions of paragraph 75 d of the Manual for Courts-Martial, supra. See Army Regulation 27—10, Military Justice: Legal Services, par. 2-20 (1968). These records need not be confined solely to military events. United States v. Montgomery, 20 U.S.C.M.A. 35, 38, 42 C.M.R. 227, 230 (1970). Information pertaining to an accused’s conviction by civilian authorities, when properly included in the personnel records, is admissible. United States v. Rhodus, 46 C.M.R. 1221 (N.C.M.R.1973); see United States v. Baughman, 8 M.J. 545 (C.G.C.M.R.1979); cf. United States v. Woriey, 19 U.S.C.M.A. 444, 42 C.M.R. 46 (1970) (noting reversal of rule in United States v. Averette, 17 U.S.C.M.A. 319, 38 C.M.R. 117 (1967), and other cases, by amendment to Manual for Courts-Martial). But cf. United States v. Sisk, 45 C.M.R. 735, 737 n.2 (A.C.M.R.1972). Information pertaining to misconduct, when otherwise admissible pursuant to the provisions of paragraph 75 d of the Manual for Courts-Martial, supra, is not limited to misconduct occurring before an offense for which the accused is on trial. It may include evidence of misconduct committed subsequent to the offense or offenses involved in the trial. United States v. Washington, 46 C.M.R. 924 (N.C.M.R.1972); United States v. Mulheron, 46 C.M.R. 354 (N.C.M.R.1971); cf. United States v. Taylor, 20 U.S.C.M.A. 93, 94, 42 C.M.R. 285, 286 (1970) (issue not squarely decided because of waiver, but see dissenting opinion); United States v. Jeffries, 47 C.M.R. 699, 700 (A.F.C.M.R.1973) (by implication). Accordingly, the information concerning the appellant’s misconduct reflected in his personnel records was properly admitted into" }, { "docid": "1116243", "title": "", "text": "to appellant’s ability to form the specific intent required for the offense of robbery was reasonably raised by the evidence, but the military judge rejected the defense motion for a continuance to obtain further evidence in support of the issue. As previously noted, the appellant was examined on the day of trial. Because trial counsel had previously concurred with the defense request of December 23, 1974, for a psychiatric examination, defense counsel reasonably concluded that appellant would receive such an examination up through the day of trial. Therefore, the defense cannot be faulted for waiting until the trial began to raise the issue. The present case is clearly distinguishable from those cases where an issue of mental responsibility either was not raised, or other expert testimony was available to the accused. Compare United States v. Swift, supra; United States v. Borsella, 11 U.S.C.M.A. 80, 28 C.M.R. 304 (1959); United States v. Frye, 8 U.S.C.M.A. 137, 23 C.M.R. 361 (1957); United States v. Schick, 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956); United States v. Nichols, 2 U.S.C.M.A. 27, 6 C.M.R. 27 (1952). As in United States v. Barfield, supra, we hold that the military judge abused his discretion by denying the motion for a continuance. There has been no offer of proof as to whether a psychiatric examination would have produced favorable evidence for the appellant. I would return the record of trial to the Court of Military Review for the purpose of obtaining a psychiatric examination of the accused as a basis for further consideration of appellant’s entitlement to a rehearing. However, my Brothers are of the opinion that psychiatrists cannot reach their conclusion to answer the question of criminal responsibility at a time certain in a vacuum, but must rely upon the history supplied both by the person examined and others; if that history is faulty, then the credibility of the conclusion of the psychiatrists may be faulty and must be tested. They conclude that this can only be done through other witnesses, and, consequently, a rehearing is required. Accordingly, the decision of the Court of Military Review is" }, { "docid": "12139432", "title": "", "text": "be believed by a reasonable and prudent person, unless there be some independent basis for crediting it. See the dissenting opinion by the late Chief Judge Quinn in United States v. Davenport, 14 U.S.C.M.A. 152, 33 C.M.R. 364 (1963). Thus it was that in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1966), the United States Supreme Court enunciated the now well known two-prong test for the existence of probable cause to arrest where informers are involved. The first of the two is termed the basis of knowledge requirement, that is, the informer must supply sufficient underlying circumstances on which he predicated his conclusion the accused was involved as alleged. The other is the reliability of the informer requirement, that is, there must be sufficient underlying facts to support the arresting officer’s conclusion that the informer is credible or his information reliable. Put another way, the informer must be demonstrably truthful or his information verified. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Stackhouse and United States v. Llano, both supra; United States v. Scarborough, 23 U.S.C. M.A. 51, 48 C.M.R. 522 (1974); United States v. LidLe, 21 U.S.C.M.A. 455, 45 C.M.R. 229 (1972); United States v. Morales, 49 C.M.R. 458 (A.C.M.R.1974). In the case at hand, as contrasted with those cited, we need not subject Wright to the technical rigors of the Aguilar test. Wright, as opposed to a narcotics informer whose credibility may be suspect, is entitled to be treated much like an ordinary public- spirited citizen witness who, absent a contrary indication, is far less likely to provide false or untrustworthy information. See Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); United States v. Harris, 403 U.S. 573, 599, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), dissenting opinion by Justice Harlan; United States v. Davenport, supra. With that distinction in mind, we are satisfied that witness Wright’s identification of the accused as a participant in the offense was entitled to be fully credited and, together with the other" }, { "docid": "12123930", "title": "", "text": "the issues granted for review by this Court challenges the probable cause determination made by Agent Early prior to his apprehension of the appellant. See Article 7, UCMJ, 10 U.S.C. § 807; United States v. Paige, 7 M.J. 480, 484 (C.M.A.1979). Acknowledging the fact that no objection was raised at trial to this determination, the appellant now asserts that it was plain error for the trial judge to admit the $20 bill seized incident to such an invalid apprehension. See United States v. Hendrix, 21 U.S.C.M.A. 412, 416, 45 C.M.R. 186, 190 (1972); United States v. Dupree, 1 U.S.C.M.A. 665, 670, 5 C.M.R. 93, 98 (1952). In particular, he asserts that there is insufficient evidence in this record of trial to show that Agent Early had probable cause to apprehend him as the person who sold drugs earlier that day to Gonzalez. See generally United States v. Wilson, 6 M.J. 214, 215 (C.M.A.1979). We disagree. The record of trial provides sufficient evidence from which the trial judge could conclude that Agent Early had probable cause to apprehend the appellant for this offense. Cf. United States v. Hendrix, supra. The informant, Gonzalez, testified that he described the person of the appellant to Agent Early, the clothing he wore, including a yellow jacket, and the building and room number where the drug operator would be found. Agent Early confirmed that he had this information prior to his entry of the appellant’s room which had the same number and was in the same building as that reported by the informant. Moreover, after some initial confusion caused by the fact that there was both a room 104A and 104B, Sergeant Lilly stated to Agent Early that he knew a soldier with a yellow jacket lived in room 104B. The absence of a formal name and the fact that several persons in the barracks had yellow jackets does not undermine the reasonableness of the agent’s conclusion that the offender was in room 104B. Although more specific details might have been afforded the military judge concerning this probable cause determination, their absence in the present case" }, { "docid": "14256524", "title": "", "text": "the civilian community where the magistrate would more likely than not be totally uninformed until he is provided with the information requisite to the issuance of a warrant. Cf. Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979). Further, the absence of an oath or affirmation in the civilian community would leave the applicant who lies to the magistrate unamenable to a criminal sanction, but the knowing declaration by a military person of a falsehood, in an official matter, has always constituted a military offense. Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition), prescribes the military procedure for authorization of a search. No oath or affirmation is required. See United States v. Hood, 7 M.J. 128, 130 n. 2 (C.M.A.1979); United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970); United States v. Penman, 16 U.S.C.M.A. 67, 36 C.M.R. 223 (1966); United States v. Martinez, 16 U.S.C.M.A. 40, 36 C.M.R. 196 (1966); United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965). The omission of an oath or affirmation has been explicitly upheld as constitutional by federal civilian courts. Wallis v. O'Kier, 491 F.2d 1323, 1324r-25 (10th Cir. 1974), cert, denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974), is typical. There, the Court of Appeals said: In the exercise of the granted powers, the President promulgated the Manual for Courts-Martial. In this extensive Manual it is set forth that a search may be made pursuant to a warrant issued by the commanding officer of a military installation upon probable cause. Manual for Courts-Martial, It 152. The manual does not provide for the probable cause to be supported by oath or affirmation as does the Fourth Amendment to the Constitution. There seems to be no doubt but that an express provision of the military law that probable cause could be shown by oral statements would be valid. Any draftsman of a rule providing for probable cause as an incident to the issuance of a search warrant would be consciously aware of the Fourth Amendment provision. It is apparent that the omission of a reference" }, { "docid": "23043935", "title": "", "text": "the existence of probable cause. . See also United States v. Cady, 22 U.S.C.M.A. 408, 47 C.M.R. 345 (1973); United States v. Crow, 19 U.S.C.M.A. 384, 41 C.M.R. 384 (1970); United States v. Dollison, 15 U.S.C.M.A. 595, 36 C.M.R. 93 (1966); United States v. Weaver, 9 U.S.C.M.A. 13, 16-17, 25 C.M.R. 275, 278-79 (1958). . Assuming the doctrine of separation of powers applies to the military, I do not regard it as prohibiting independent action by a judge in the execution of a warrant issued by him as he is also obligated to determine the validity of the execution. . In addition to the search issue, we granted review to consider two other questions. The first concerns the legality of the use of a marijuana detection dog. In my opinion there is no merit in this assignment. United States v. Roberts, 2 M.J. 31, 36 (C.M.A.1976). The second question is whether the accused consented to the search; I consider it in my discussion of the search issue. . See United States v. Smallwood, 22 U.S.C.M.A. 40, 46 C.M.R. 40 (1972); United States v. Aloyian, 16 U.S.C.M.A. 333, 36 C.M.R. 489 (1966); United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965); United States v. Insani, 10 U.S.C.M.A. 519, 28 C.M.R. 85 (1959); United States v. Bennett, 7 U.S.C.M.A. 97, 100, 21 C.M.R. 223, 226 (1956). See also note 9 supra. . A third assignment of error, which relates only to the sentence, was decided against the accused in United States v. Jackson, supra. . I believe that, in determining the disqualification issue which was raised at trial, the judge could find the facts to be somewhat different from those enumerated in this subdivision. For example, both Sergeant Fox and Colonel Wehling testified they had a meeting on April 17th. The purpose of this meeting, as testified to by Sergeant Fox, was “[bjasically ... a debrief of . [his] knowledge pertaining to . activities within the last week of certain individuals [including the accused] that were involved with drugs.” According to the Colonel, the discussion was “an up dating” on" }, { "docid": "2522585", "title": "", "text": "plea was improvident as it was motivated by the prior admission in evidence of his pretrial statements subsequently determined by the reviewing staff judge advocate to have been erroneously considered by the court. The case of United States v. Dusenberry, 23 U.S.C.M.A. 287, 49 C.M.R. 536 (1975), is dispositive of this assignment, adversely to the accused. There, as here, the accused pleaded guilty after an Article 39(a) evidentiary session during which his objections to a pretrial statement, and other matters, had been resolved against him by the military judge. The Court of Military Appeals observed that the inquiry into the providence of the accused’s proposed plea of guilty more than complied with the requirements of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Moreover, the inquiry conclusively demonstrated the accused’s personal awareness that his pleas of guilty would waive any legal issues with respect to the evidentiary matters resolved against him prior to pleading. The Court accordingly found his guilty pleas fully voluntary and provident. In the case before us, the military judge’s inquiry into the providence of the accused’s proposed plea of guilty was, if anything, even more comprehensive than in Dusenberry. Here, as in Dusenberry, be fore accepting the plea, the judge secured the accused’s acknowledgment that a guilty plea constituted a judicial confession to the offense. Further, he personally and directly advised the accused that his plea would waive for appellate purposes any objection he might have to consideration of his pretrial statement. Under the circumstances, we hold the assignment without merit. The accused’s plea of guilty was voluntary and informed and not rendered improvident by the supervisory authority’s subsequent determination that the pretrial statement was erroneously received in evidence. United States v. Stewart, 20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971); United States v. Tharp, 11 U.S.C.M.A. 467, 29 C.M.R. 283 (1960); United States v. Trojanowski, 5 U.S.C.M.A. 305, 17 C.M.R. 305 (1954); see McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In their second assertion of error, counsel contend it was prejudicially improper for the trial counsel to" }, { "docid": "23043913", "title": "", "text": "to search, and he had not previously “been consulted on the Boyd buy.” He did, however, know, as Judge Perry describes it, of “minor transgressions” and “illegal activities” by the accused, and he had initiated proceedings for accused’s administrative discharge for unsuitability. Tested by the guidelines mentioned above, neither singly nor in combination do these circumstances impress me as having such significance and weight as to incline a commanding officer in general, or the commander in Ezell specifically, to abandon his position as a neutral and detached magistrate in acting on the application for the warrant. Turning to Boswell, No. 32,414, my initial disagreement with the majority rests on the absence of objection at trial to the disqualification of Major Moi to authorize the search. The objections interposed were only as to the reliability of the informant and the scope of the search. Our cases, which, I believe, are soundly based, establish that, unless a manifest miscarriage of justice would result, the failure to object at trial on a particular ground forecloses review of that ground as a basis for reversal by this Court. United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172 (1959); United States v. Dupree, 1 U.S.C.M.A. 665, 5 C.M.R. 93 (1952). On the merits, the principal opinion identifies the following circumstances to support the conclusion that Major Moi was disqualified to act as a neutral magistrate: 1. Some time previous to the search, Major Moi received information from “several sources” that the accused was “dealing in narcotics.” 2. About 3 months before the search, Major Moi imposed Article 15 punishment on the accused for wrongful possession of marijuana. 3. About 2 weeks before the search, Major Moi entered the accused’s room and found him “in the midst of a ‘pot party.’ ” [It should be noted that the accused shared the room with Private Volinte, who was the company armorer. Major Moi went there to obtain from Volinte the key to the arms room. He knocked on the door and it was opened. The lights were out, but the Major recognized the accused and noted" }, { "docid": "1138578", "title": "", "text": "not true, a failure on his part to utter a denial will support an inference that he thereby admitted the truth of the imputation . If appellant had been in confinement, arrest, or custody or if at the time, he was under official investigation, the inference would not have arisen. But here, Ruckman was not an investigator or other official seeking to question appellant about the offense; he was the victim. Under such circumstances it is reasonable to infer that were appellant innocent, he would have denied the accusation. United States v. Armstrong, 4 U.S.C.M.A. 248, 15 C.M.R. 248 (1954), citing United States v. Creamer, 1 U.S.C.M.A. 267, 3 C.M.R. 1 (1952). As the evidence was properly admitted, and not objected to, the reference made thereby by the trial counsel was a fair comment upon the evidence. ARGUMENT OF TRIAL COUNSEL ON SENTENCE Here, appellant alleges that the argument of trial counsel on sentence was improper and prejudicial. Specifically the prosecutor told the jury: While indeed he [the appellant] has an absolute right to make an unsworn statement, you must there again consider the fact that he was not under oath and he cannot be cross-examined upon it. Since the accused cannot be cross-examined upon his unsworn statement, the Government’s remedies are limited to (1) submission of evidence to rebut facts contained therein, and (2) fair and reasonable comment upon facts and opinions contained in or omitted from the statement. United States v. Dupree, 40 C.M.R. 444 (A.B.R. 1968). The questioned comment here consisted only of reflecting matters appropriate to the weight to be given appellant’s unsworn statement. Furthermore, trial defense counsel did not register an objection to trial counsel’s argument concerning the unsworn statement. Failure to object to improper argument constitutes a waiver in the absence of a flagrant abuse of discretion. United States v. Wood, 18 U.S.C.M.A. 291, 40 C.M.R. 3 (1969); United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956). We find no such flagrant abuse. Although appellant raises the issue of the military judge’s deficient pre-sentencing instruction as a tangential comment to this assignment" }, { "docid": "3624068", "title": "", "text": "59 (1955); United States v. Petrie, 40 C.M.R. 991 (A.F.C.M.R. 1969). The uncorroborated testimony of an accomplice given at the trial of an accused cannot be the basis of a conviction if that testimony is “self-contradictory, uncertain, or improbable.” Manual for Courts-Martial, 1969 (Rev), paragraph 153a. When an accomplice testifies adversely to the accused, his testimony is to be considered with great caution even if it is apparently credible and apparently corroborated. In an appropriate case, those rules should be included in the general instructions given by the military judge to the members of the court-martial. Manual for Courts-Martial, supra, paragraph 153a ; United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52 (1972). Failure of trial defense counsel to request the cautionary instruction concerning accomplice testimony ordinarily is regarded as a waiver of the issue if asserted at the appellate level. United States v. Gilliam, 23 U.S.C.M.A. 4, 48 C.M.R. 260 (1974); United States v. Diaz, supra; United States v. Schreiber, 5 U.S.C.M.A. 602, 18 C.M.R. 226 (1955). But, it is clear that in certain cases where the defense has failed to request an instruction concerning the effect of accomplice testimony, a duty is imposed upon the military judge to so instruct sua sponte. United States v. Gilliam, supra. This obligation exists in those cases where an accomplice’s testimony is of “pivotal importance” to the successful presentation of the Government’s case. United States v. Gilliam, supra; United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966); United States v. Stephen, 15 U.S.C.M.A. 314, 35 C.M.R. 286 (1965). In Gilliam, the Court of Military Appeals noted that . such situations are exceptional, that is to say, that the failure of counsel to request such an instruction is fatal to his argument on appeal unless the circumstances are such that this Court must act to prevent a manifest miscarriage of justice. Typically, the situation presented is one in which the accomplice is the crucial prosecution witness on whose credibility the outcome of the case hinges. Crucial to the appellant’s claim is our disposition of the question as to whether the" }, { "docid": "12142843", "title": "", "text": "C.M.R. 229 (1973); United States v. Elwood, 19 U.S.C.M.A. 376, 41 C.M.R. 376 (1970); United States v. Martinez, 16 U.S.C.M.A, 40, 36 C.M.R. 196 (1966); United States v. McCain, 49 C.M.R. 514 (A.F.C.M.R. 1974); Manual for Courts-Martial, 1969 (Rev.), paragraph 152. Essential to a determination as to whether probable cause to search exists is the relationship between the time when the authority to search is given and the time when the facts and circumstances relied upon to justify the search occurred. Facts and circumstances which would suffice to constitute probable cause on the date of happening obviously would lessen with the passing of time. What is sufficient to establish probable cause on one day may not be sufficient to do so on a later date. Time, however, does not provide the sole basis to resolve the issue as to whether there is in existence the probable cause necessary to authorize a lawful search. Nonetheless, the occurrence of the facts and circumstances relied upon to support a search authorization must be closely related in time to the granting of the search authorization in order to find probable cause. United States v. McFarland, 19 U.S.C.M.A. 356, 41 C.M.R. 356 (1970); United States v. Clifford, 19 U.S.C.M.A. 391, 41 C.M.R. 391 (1970); United States v. Britt, 17 U.S.C.M.A. 617, 38 C.M.R. 415 (1968). In the case before us, it is the relationship between the time that the agents of the OSI became aware from the informant that the accused possessed a concealed pistol in his automobile and the time the authority to search the automobile was issued which causes us concern. Our concern is engendered by certain inferences we draw from the facts and circumstances which were before the commander who authorized the search. These are that the pistol was relatively light in weight, readily portable, concealable, and located in a highly mobile conveyance — an automobile. Additionally, and most importantly, there was nothing to indicate that the pistol would be located in the accused’s automobile on the 10th of September 1975, simply because it had been seen there some two or three" }, { "docid": "1138579", "title": "", "text": "an unsworn statement, you must there again consider the fact that he was not under oath and he cannot be cross-examined upon it. Since the accused cannot be cross-examined upon his unsworn statement, the Government’s remedies are limited to (1) submission of evidence to rebut facts contained therein, and (2) fair and reasonable comment upon facts and opinions contained in or omitted from the statement. United States v. Dupree, 40 C.M.R. 444 (A.B.R. 1968). The questioned comment here consisted only of reflecting matters appropriate to the weight to be given appellant’s unsworn statement. Furthermore, trial defense counsel did not register an objection to trial counsel’s argument concerning the unsworn statement. Failure to object to improper argument constitutes a waiver in the absence of a flagrant abuse of discretion. United States v. Wood, 18 U.S.C.M.A. 291, 40 C.M.R. 3 (1969); United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956). We find no such flagrant abuse. Although appellant raises the issue of the military judge’s deficient pre-sentencing instruction as a tangential comment to this assignment of error, we believe it helpful to discuss it here. During that portion of the trial dealing with extenuation and mitigation of punishment no distinction is made between matters developed by evidence, such as testimony given under oath, and those developed through other means such as an unsworn statement of the accused. There exists no rule at present, requiring the military judge to instruct the court as to the nature and/or permissive use of this type of statement, as it is generally submitted by defense in an effort to ameliorate the punishment to be imposed. The weight to be afforded the statement should be a matter within the sound discretion of the court. United States v. Simon, 38 C.M.R. 664 (A.B.R.1968). See also United States v. Stivers, 12 U.S.C.M.A. 315, 30 C.M.R. 315 (1961). However, in United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72 (1967), the court found that a law officer had a duty to tailor the instructions to the evidence in the case both on findings and sentencing. While recognizing that" }, { "docid": "1116242", "title": "", "text": "v. Hernandez, 20 U.S. C.M.A. 219, 43 C.M.R. 59 (1970). This is subject to the proviso that the consistent use of an intoxicant can itself cause a mental disease. See United States v. Marriott, 4 U.S.C.M.A. 390, 15 C.M.R. 390 (1954). However, robbery is a specific-intent crime, and a mental impairment short of legal insanity is relevant in determining the appellant’^ ability to form the requisite intent. United States v. Burns, 5 U.S.C.M.A. 707, 19 C.M.R. 3 (1955); United States v. Carver, 6 U.S.C.M.A. 258,19 C.M.R. 384 (1955). See United States v. King, 10 U.S.C.M.A. 465, 28 C.M.R. 31 (1959). Furthermore, voluntary intoxication may negate a specific intent. United States v. Mayville, 15 U.S.C.M.A. 420, 35 C.M.R. 392 (1965); United States v. Oisten, 13 U.S.C.M.A. 656, 33 C.M.R. 188 (1963). In the present case, there was evidence presented that appellant was intoxicated at the time of the offense. The examining psychologist candidly admitted that he was incapable of evaluating the effect of the appellant’s use of drugs upon his mental processes. Accordingly, an issue as to appellant’s ability to form the specific intent required for the offense of robbery was reasonably raised by the evidence, but the military judge rejected the defense motion for a continuance to obtain further evidence in support of the issue. As previously noted, the appellant was examined on the day of trial. Because trial counsel had previously concurred with the defense request of December 23, 1974, for a psychiatric examination, defense counsel reasonably concluded that appellant would receive such an examination up through the day of trial. Therefore, the defense cannot be faulted for waiting until the trial began to raise the issue. The present case is clearly distinguishable from those cases where an issue of mental responsibility either was not raised, or other expert testimony was available to the accused. Compare United States v. Swift, supra; United States v. Borsella, 11 U.S.C.M.A. 80, 28 C.M.R. 304 (1959); United States v. Frye, 8 U.S.C.M.A. 137, 23 C.M.R. 361 (1957); United States v. Schick, 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956); United States v. Nichols, 2" }, { "docid": "21584300", "title": "", "text": "L.Ed.2d 723 (1971), where the appellant “had a general reputation known to the officer as a trafficker in” contraband. Id. at 577, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723. Second, we note that the CID agent stated in the affidavit that he smelled the odor of marihuana coming from the appellant’s apartment. There is nothing in the affidavit which states how either the agent or even the informant knew the odor of marihuana. Indications of the agent’s knowledge were elicited from him by the judge only in verbal examination. This does not conform to paragraph 14-4 of AR 27 — 10. It is the fact of the agent’s ability to detect the smell of marihuana that has not been established according to the terms of the regulation. A determination of probable cause in accordance with such procedures is legally deficient. Therefore, the search of the apartment in Goeppingen was illegal as lacking probable cause, inasmuch as the CID agent failed in the affidavit — as required by the regula tion — to state the basis for knowledge of marihuana’s odor. The subsequent search of the appellant’s room at the Sheridan Plaza Hotel was authorized by the commander as a result of the illegal first search. Thus there was insufficient probable cause for the second search, and evidence seized during that search was tainted fruit of the poisonous tree. Paragraph 152, Manual, supra. See United States v. Vasquez, 22 U.S.C.M.A. 492, 47 C.M.R. 793 (1973); United States v. Moore, 19 U.S.C.M.A. 586, 42 C.M.R. 188 (1970); United States v. Clifford, 19 U.S.C.M.A. 391, 41 C.M.R. 391 (1970); United States v. Elwood, 19 U.S.C.M.A. 376, 41 C.M.R. 376 (1970). Consequently, as the second search was invalid, it is unnecessary to answer the remaining three related granted issues. The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The Charge is dismissed. Judge PERRY concurs. Appendix A AFFIDAVIT SUPPORTING REQUEST FOR WARRANT FOR SEARCH AND SEIZURE 1. I, Billy M. Vaughn, Goeppingen Resident Agency, USACIDC, having been duly sworn, on oath depose and" } ]

[ { "docid": "3708300", "title": "", "text": "immunity conferred by Article 31 of the Convention, that contained in paragraph 1(e): “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” In support of this proposition, plaintiff cites Joseph v. Office of Consulate General, 830 F.2d 1018 (9th Cir.1987), contending that the court ... found that the rental of a private residence for a consular officer fell within the exception set forth in Article 31, at paragraph l.(c). That court found that the consular [sic] had entered the market place as a commercial actor, and that neither the rental agreement nor the alleged breach of that agreement constituted sovereign activities for which he would otherwise be immune from civil lawsuits. Pi’s Mot. to Reinstate, at 4. Plaintiff misreads Joseph, which makes no mention of Article 31(l)(c), but is based instead on the “commercial activity” exception to the Foreign Sovereign Immunities Act, which governs the jurisdictional immunity of foreign states, rather than individual foreign diplomats. See 28 U.S.C. § 1603 et seq. While the reasoning of the Joseph court could conceivably be applied to interpret Article 31(l)(e) by analogy, another circuit court has recently examined the parameters of Article 31(l)(c) directly. In Tabion v. Mufti, 73 F.3d 535 (4th Cir.1996), the Fourth Circuit addressed whether the employment of a domestic servant by a foreign diplomat constituted “commercial activity” for purposes of Article 31(l)(e), such that the employment relationship could be the subject of a civil suit in a U.S. court. After considering the term in the context of the Convention as a whole, with regard for the interpretation of “commercial activity” advanced by the State Department both prior to and after ratification of the Convention by the United States, the Tabion court held that contracts for goods and services “incidental to [a diplomat’s] daily life” do not fall within the scope of the “commercial activity” exception of Article 31(l)(e). 73 F.3d at 538-39. Moreover, the Tabion court explicitly declined to use the “commercial activity” exception of the Foreign Sovereign Immunities Act as an interpretative guide to Article" } ]

[ { "docid": "560934", "title": "", "text": "the court will grant the defendants’ motion for summary judgment. The issuance of United States passports is solely the responsibility of the Secretary of State. 22 U.S.C. § 211a. Under current State Department regulations, a passport may be issued “only to a U.S. national.” 22 C.F.R. § 51.2(a). As previously noted, the term “national” includes United States citizens, several categories of individuals born in outlying possessions of the United States, and other persons who “owe permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22). In this case, the plaintiff claims to be a United States national as a result of being a United States citizen by birth. Under the United States Constitution, however, citizenship is conferred only on persons “born or naturalized in the United States, and subject to the jurisdiction thereof.” U.S. Const. amend. XIV, § 1 (emphasis added); see also 8 U.S.C. § 1401(a). The United States Supreme Court has long held that the jurisdiction clause of the Fourteenth Amendment was intended to exclude from its operation children of foreign ministers or diplomatic officers born within the United States. SlaughterHouse Cases, 83 U.S. 36, 73, 16 Wall. 36, 21 L.Ed. 394 (1873); United States v. Wong Kim Ark, 169 U.S. 649, 693, 18 S.Ct. 456, 42 L.Ed. 890 (1898). Thus, if the plaintiffs father was entitled to diplomatic privileges and immunities in this country on the date the plaintiff was born, the plaintiff is not a United States citizen. See Nikoi v. Attorney Gen., 939 F.2d 1065, 1066 (D.C.Cir.1991) (“Because one parent was a foreign official with diplomatic immunity when each child was born, the birth did not confer United States citizenship.”). Pursuant to the Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a-254e, the governing law in the United States on the issue of diplomatic privileges and immunities is the Vienna Convention on Diplomatic Relations (Vienna Convention). Tabion v. Mufti, 73 F.3d 535, 538 (4th Cir.1996). The Vienna Convention provides diplomatic agents a broad array of privileges and immunities, most notably “absolute immunity from criminal prosecution and protection from most civil and administrative actions brought in" }, { "docid": "3959378", "title": "", "text": "of supplemental jurisdiction. See Wiggins v. Philip Morris, Inc., 853 F.Supp. 458 (D.D.C.1994) (jurisdiction over conspiracy and tortious interference with contract where claims arose from conduct alleged in Title VII claims); Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094 (S.D.N.Y.1982) (when FSIA permitted plaintiff to maintain action over foreign sovereign for alleged taking, Court exercised jurisdiction over claims for breach of contract, accounting, fraud, and tortious interference with contract). Thus, with respect to the remainder of the plaintiffs’ tort claims against these defendants, the Court shall exercise supplemental jurisdiction. C. THE HEAD OF STATE DOCTRINE DOES NOT CONFER IMMUNITY FROM PERSONAL JURISDICTION TO SHEIKH SULTAN. The defendants assert that Sheikh Sultan is immune from the Court’s jurisdiction under the common law Head of State Doctrine, which immunizes a head-of-state from personal jurisdiction in the United States courts. See, e.g., Lafontant v. Aristide, 844 F.Supp. 128, 131-34 (E.D.N.Y.1994). Head of State immunity, however, extends only to the person the United States government acknowledges as the official head-of-state. Id. Recognition of a government and its officers is the exclusive function of the Executive Branch, to which the courts must defer. Id. In the present case, the Executive has not made any determination as to Sheikh Sultan’s status as a head-of-state. There has been no suggestion of immunity filed by the Executive in this case. Therefore, the Court cannot grant Sheikh Sultan Head of State immunity. Id.; Saltany v. Reagan, 702 F.Supp. 319 (D.D.C.1988); see Jerrold L. Mallory, Note, Resolving the Confusion Over Head of State Immunity, 86 Colum.L.Rev. 169, 173 (1986). D. AL-MALKI AND ALBABA ARE NOT ENTITLED TO DIPLOMATIC IMMUNITY. The defendants assert that Al-Malki and Albaba are entitled to diplomatic immunity pursuant to the Vienna Convention Diplomatic Relations Act of 1978. Both Al-Malki and Albaba claim that, during the relative time period, they occupied positions given diplomatic and mission status and, thus, that they are entitled to dismissal pursuant to 22 U.S.C. § 254d. The manner by which an individual secures a dismissal on the basis of diplomatic immunity is set forth in Carrera v. Carrera, 174 F.2d 496 (D.C.Cir.1949)." }, { "docid": "560938", "title": "", "text": "the Department of State.” Restatement (Third) of Foreign Relations Law of the United States § 464 (1987). In the Fourth Circuit, as in other circuits, a certification by the Department of State that an individual was, or was not, a diplomatic agent is binding on the court when it is based on a reasonable interpretation of the Vienna Convention. United States v. Al-Hamdi, 356 F.3d 564, 573 (4th Cir. 2004). In such cases, the court may not review the State Department’s factual determination as to whether an individual was entitled to diplomatic privileges and immunities on a particular date. Id. (“[W]e hold that the State Department’s certification, which is based upon a reasonable interpretation of the Vienna Convention, is conclusive evidence as to the diplomatic status of an individual. Thus, we will not review the State Department’s factual determination that, at the time of his arrest, Al-Hamdi fell outside the immunities of the Vienna Convention.”); see also In re Baiz, 135 U.S. 403, 421, 10 S.Ct. 854, 34 L.Ed. 222 (1890) (noting that “the certificate of the secretary of state ... is the best evidence to prove the diplomatic character of a person”); Carrera v. Carrera, 174 F.2d 496, 497 (D.C.Cir.1949) (emphasizing that “[it] is enough that an ambassador has requested immunity, that the State Department has recognized that the person for whom it was requested is entitled to it, and that the Department’s recognition has been communicated to the court”); Abdulaziz v. Metro. Dade County, 741 F.2d 1328, 1331 (11th Cir.1984) (recognizing that “courts have generally accepted as conclusive the views of the State Department as to the fact of diplomatic status”). In the instant case, the defendants have submitted a certified determination by the State Department that the United States recognized the plaintiffs father as enjoying privileges and immunities as a diplomatic agent of the Arab Republic of Egypt from June 12, 1979 to December 13, 1981. Relying on the Fourth Circuit’s decision in Alr-Hamdy supra, the defendants argue that the certification is conclusive evidence on the issue of the plaintiffs father’s diplomatic status. In response to the" }, { "docid": "22075858", "title": "", "text": "not exist in the diplomatic immunity context. . Our conclusion is buttressed by the findings of a sister circuit. In United States v. Kostadinov, 734 F.2d 905 (2d Cir.1984), the Second Circuit held that \"a visa does not necessarily confer diplomatic immunity.” Id. at 912. The court instead relied upon the fact that \"Kostadinov never received a diplomatic identity card.” Id. . Al-Hamdi’s brief alleges that the State Department violated the Fourteenth Amendment, but actions of the federal government are reviewed under the Fifth Amendment. Regardless, the standards employed by the ■ Supreme Court in analyzing due process claims under the Fourteenth Amendment apply with equal force to claims raised under the Fifth Amendment. See generally Johnson v. Hugo’s Skateway, 949 F.2d 1338, 1349 n. 4 (4th Cir.1991). . Contrary to the Government's argument, Al-Hamdi did preserve this issue for appeal. During the oral hearing on the motion to dismiss the indictment, Al-Hamdi's counsel stated that the actions taken by the State Department were “a clear violation of the defendant's due-process rights, both substantively and procedurally.” (J.A. at 28.) . The Vienna Convention itself states that \"the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions.” Preamble to the Vienna Convention. \"[DJiplomatic immunity primarily serves the needs of the foreign sovereign.” United States v. County of Arlington, 669 F.2d 925, 930 (4th Cir.1982). \"The privilege extended to an individual diplomat is merely incidental to the benefit conferred on the government he represents.” Id.; see also The Exchange, 7 Cranch 116, 11 U.S. 116, 138, 3 L.Ed. 287 (1812) (recognizing diplomatic immunity serves the interests of the foreign sovereign because \"without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad”); Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1330 (11th Cir.1984). \"Even where a treaty provides certain benefits for nationals of a particular state ... it is traditionally held that any rights arising from such provisions are, under international law, those of the states and ... individual rights are only derivative" }, { "docid": "16240757", "title": "", "text": "Consulate was incidental to her employment as a personal servant.”). Moreover, the facts that Swarna was paid out of Al-Awadi’s private funds and that she received a G-5 visa further indicate that she was employed by Al-Awadi and not by the Kuwait Mission. In the application for Swarna’s visa, the individual defendants represented to the United States that they would pay Swarna’s salary. Only some of her expenses (such as dental care) were covered by the mission. Recipients of the G-5 visa are “aliens employed in a domestic or personal capacity by a principal alien, who are paid from the private funds of the principal alien and seek to enter the United States solely for the purpose of such employment.” 22 C.F.R. § 42.21(a)(4). Had Swarna been an employee of the Kuwait Mission, she would have been issued a G-2 visa. See 8 U.S.C. § 1101(a)(15)(G)(ii) (listing nonimmigrant visa for “other accredited representatives of such a foreign government”); 8 C.F.R. § 214.2(g) (“The determination by a consular officer prior to admission and the recognition by the Secretary of State subsequent to admission is evidence of the proper classification of a nonimmigrant. ...”). Swarna’s nonimmigrant status reflected precisely her occupation in the United States: a personal servant hired to meet the individual defendants’ private needs. Al-Awadi relies on Tabion v. Mufti, 73 F.3d 535, 538-39 (4th Cir.1996), a case in which the Fourth Circuit stated that “[d]ay-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions ... [b]ecause these services are incidental to daily life.” But that statement was made in the context of considering whether a sitting diplomat’s hiring of a domestic servant fell within the “commercial activity” exception to diplomatic immunity under Article 31(1)(c). Under Article 31(1), a diplomat enjoys absolute immunity save for three exceptions in civil cases, one of which is for an “action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Vienna Convention art. 31(1)(c). The Tabion court agreed with the U.S." }, { "docid": "287377", "title": "", "text": "indicates that § 254d intends “dismissal by a court ... of any action or proceeding where immunity is found to exist.” Pub.L. No. 95-393, 1978 U.S.Code Cong, and Ad.News (92 Stat.) 1935, 1939. In this action, Prince Turki was apparently eligible for, but had not been granted diplomatic status at the time he initiated his § 1983 suit. After the action was commenced and the counterclaims were filed, he sought and was granted diplomatic status by the State Department. Although defendants argue that the State Department certificate is reviewable in court, the courts have generally accepted as conclusive the views of the State Department as to the fact of diplomatic status. See Carrera v. Carrera, 174 F.2d 496, 497 (D.C.Cir.1949). In Carrera it was enough that an ambassador had requested immunity and the State Department had recognized that the person for whom it was requested was entitled to it. Defendants argue that plaintiffs classification as “special envoy” is not protected by the Diplomatic Relations Act. Under the Vienna Convention, the State Department has the broad discretion to classify diplomats. The broadness in the language of the Vienna Convention is necessary, since it is the foreign country that actually ranks its envoys, not the State Department. See A New Regime of Diplomatic Immunity: The Diplomatic Relations Act of 1978, 54 Tul.L.Rev. 661, 682 n. 112 (1980) (citations omitted). Article 14 of the Vienna Convention classifies “envoys” as Heads of Missions. Heads of Missions are defined in § 254a of the Diplomatic Relations Act, and are protected by the Act. The State Department was notified by the Embassy of Saudi Arabia on April 1, 1982 of Turki’s status as “special envoy” for matters concerning the Government of Saudi Arabia. The designation of “special envoy” reflects the designation provided by the sending state. As special envoy Turki was afforded full protection pursuant to the Diplomatic Relations Act. This protection extended to his family, members of his service staff, and servants. See 22 U.S. C.A. §§ 254a(l)(C) and 254a(2). Defendants challenge the manner in which Turki’s diplomatic immunity was communicated to the court, arguing" }, { "docid": "10037882", "title": "", "text": "Practice 107 (3d ed.1988) (hereinafter \"Diplomat’s Handbook \"). . 22 U.S.C. § 254a etseq. . Vienna Convention, Article 29. . See Restatement (Third) of Foreign Relations Law § 464, Reporters' Note 14 (“When a head of state or government comes on an official visit to another country, he is generally given the same personal inviolability and immunities as ... an accredited diplomat.”); Satow's Guide, at 9. . See Aidi v. Yaron, 672 F.Supp. 516, 517 (D.D.C.1987); see also Aristide, 844 F.Supp. at 130. . Gov’t Reply, at 34. . Vienna Convention, art. 29. . See Diplomat's Handbook, at 107. . Id.; see also Satow’s Guide, at 120-21. . See generally Ling, 33 Wash. & Lee L.Rev. at 104-31. . See supra Part I.B.4.C. . See In re Doe, 860 F.2d at 44-45; In re Grand Jury Proceedings, 817 F.2d at 1111 (\"The issue in this case, however, is not whether the Marcos’ may be civilly liable, but whether they are wholly immune from process.”); Estate of Domingo, 808 F.2d at 1350; see also Lasidi, Nat’l L.J., Aug. 29, 1983 at 1, col. 1 (conditioning assertion by a head-of-state of a counterclaim in a dispute involving the ruler’s private financial investments upon his agreement to submit to a deposition). . 28 U.S.C. § 1608(b)(2); see also Bowers ex rel. NYSA-ILA Pension Trust Fund v. Transportes Navieros Ecuadorianos (Transnave), 719 F.Supp. 166, 170 (S.D.N.Y.1989) (service properly effected on defendant’s agent in the United States pursuant to § 1608(b)). In addition, service of process pursuant to other statutory regimes clearly permit service in some circumstances upon foreign officials who may enjoy some form of immunity. Section 311(a) of the New York Civil Practice Law and Rules, paralleling FSIA § 1608(b)(2), contemplates personal service upon a foreign corporation by direct delivery to an officer, director or general agent. . See Klinghoffer, 937 F.2d at 54 (noting that service of process upon the Palestine Liberation Organization’s Permanent Observer to the United Nations may be appropriate, as that official, though otherwise entitled to limited immunity at the United Nations, also performed functions comparable to those of" }, { "docid": "10037881", "title": "", "text": "Relations Committee: I have long feared that a visiting dignitary to the United Nations might some day be involved in difficulties not of his own making and that the U.S. Government would be powerless to accord him the privileges which would be appropriate and which would be expected of us. Our ratification is long overdue. Id. at 11. .See 1976 U.N. Juridical Yearbook, at 228. . Id. . Id. at 227. . Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982); accord, Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) (\"[T]he meaning given [treaty provisions] by the departments of government particularly charged with their negotiation and enforcement is given great weight.”); 767 Third Avenue Assocs. v. Permanent Mission of Zaire, 988 F.2d 295, 301-02 (2d Cir.1993) (“federal courts must defer” to treaty interpretation advanced by United States and not contradicted by any signatory to the treaty). . Satow's Guide, at 120; see also Sen, A Diplomat's Handbook of International Law and Practice 107 (3d ed.1988) (hereinafter \"Diplomat’s Handbook \"). . 22 U.S.C. § 254a etseq. . Vienna Convention, Article 29. . See Restatement (Third) of Foreign Relations Law § 464, Reporters' Note 14 (“When a head of state or government comes on an official visit to another country, he is generally given the same personal inviolability and immunities as ... an accredited diplomat.”); Satow's Guide, at 9. . See Aidi v. Yaron, 672 F.Supp. 516, 517 (D.D.C.1987); see also Aristide, 844 F.Supp. at 130. . Gov’t Reply, at 34. . Vienna Convention, art. 29. . See Diplomat's Handbook, at 107. . Id.; see also Satow’s Guide, at 120-21. . See generally Ling, 33 Wash. & Lee L.Rev. at 104-31. . See supra Part I.B.4.C. . See In re Doe, 860 F.2d at 44-45; In re Grand Jury Proceedings, 817 F.2d at 1111 (\"The issue in this case, however, is not whether the Marcos’ may be civilly liable, but whether they are wholly immune from process.”); Estate of Domingo, 808 F.2d at 1350; see also Lasidi, Nat’l" }, { "docid": "20430570", "title": "", "text": "1776, 80 L.Ed.2d 273 (1984). Moreover, “[i]n the view of the United States, the TVPA does not override diplomatic immunity. First, the TVPA is silent as to whether it limits the immunity of diplomats, and courts should not read a statute to modify the United States’s treaty obligations in the absence of a clear statement from Congress.” Statement, at 23 (citation omitted). . C. Residual Immunity In light of defendants leaving their diplomatic post in 2007 and returning to Kuwait, plaintiffs ask the Court to find that defendants no longer have diplomatic immunity. Although Article 39 of the Vienna .Convention states that an official’s privileges and immunities end when his diplomatic functions cease, Article 39 provides that a residual immunity subsists with respect to “acts performed by such a person in the exercise of his functions as a member of the mission.” Therefore, defendant’s, immunity remains intact for acts performed in the exercise of his duties as a diplomatic officer of the State of Kuwait. See Knab v. Republic of Geor., 1998 WL 34067108, *4 (D.D.C. May 29, 1998). As the Court previously concluded, defendants’ conduct in employing plaintiffs was not performed outside the exercise of defendants’ diplomatic functions. See supra II.B.1. For this reason, defendants’ current status does not affect their immunity from civil jurisdiction. The Court recognizes that foreclosing plaintiffs’ access to the courts may have harsh implications, including even the denial of legal or monetary relief. The application of the doctrine of diplomatic immunity inevitably “deprives others of remedies for harm they have suffered.” Hellenic Lines, 345 F.2d at 980. Congress, however, is the appropriate body for plaintiffs to present their concerns that the effectiveness of enforcing fair labor practices in the United States is compromised by diplomatic immunity. See Tabion, 73 F.3d at 539. This court will not create new exceptions to the longstanding policy of diplomatic immunity. See Belhas v. Ya’alon, 515 F.3d 1279 (D.C.Cir.2008)(refusing to create a new exception under the FSIA when no such exception had been created by Congress). “And the law that binds this Court states that ‘[a]ny action or proceeding" }, { "docid": "3959379", "title": "", "text": "the exclusive function of the Executive Branch, to which the courts must defer. Id. In the present case, the Executive has not made any determination as to Sheikh Sultan’s status as a head-of-state. There has been no suggestion of immunity filed by the Executive in this case. Therefore, the Court cannot grant Sheikh Sultan Head of State immunity. Id.; Saltany v. Reagan, 702 F.Supp. 319 (D.D.C.1988); see Jerrold L. Mallory, Note, Resolving the Confusion Over Head of State Immunity, 86 Colum.L.Rev. 169, 173 (1986). D. AL-MALKI AND ALBABA ARE NOT ENTITLED TO DIPLOMATIC IMMUNITY. The defendants assert that Al-Malki and Albaba are entitled to diplomatic immunity pursuant to the Vienna Convention Diplomatic Relations Act of 1978. Both Al-Malki and Albaba claim that, during the relative time period, they occupied positions given diplomatic and mission status and, thus, that they are entitled to dismissal pursuant to 22 U.S.C. § 254d. The manner by which an individual secures a dismissal on the basis of diplomatic immunity is set forth in Carrera v. Carrera, 174 F.2d 496 (D.C.Cir.1949). “It is enough that an ambassador has requested immunity, that the State Department has recognized that the person for whom it was requested is entitled to it, and that the Department’s recognition has been communicated to the court.” Id. at 497; see also Shaffer v. Singh, 343 F.2d 324 (D.C.Cir.1965). In sum, the determination of a diplomat’s status as such is made by the State Department, not the Court. Accord Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328 (11th Cir.1984); United States v. Lumumba, 741 F.2d 12 (2d Cir.1984), cert. denied, 479 U.S. 855, 107 S.Ct. 192, 93 L.Ed.2d 125 (1986). In the present ease, the defendants AI-MalH and Albaba have asserted they are entitled to diplomatic immunity. However, the Court has no evidence before it that the State Department considers that to be the case. Accordingly, there is insufficient basis for the Court to dismiss Al-MaM and Albaba pursuant to 22 U.S.C. § 254d. III. VENUE IS PROPER IN THIS COURT; THE COURT SHALL NOT DISMISS THIS CASE ON THE BASIS OF FORUM NON" }, { "docid": "19979235", "title": "", "text": "How so? The FSIA effectively transfers “the responsibility for case-by-case application of [immunity] principles from the Executive Branch to the Judicial Branch” as it relates to the immunity of foreign states. United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir.1997). It is silent, however, regarding whether individual foreign officials are immune from suit. First Am. Corp. v. Al-Nahyan, 948 F.Supp. 1107, 1119 (D.D.C.1996) (finding that the “enactment of the FSIA was not intended to affect the power of the State Department, on behalf of the President as Chief Executive, to assert immunity for heads of state or for diplomatic and consular personnel”). Not surprisingly, perhaps, courts have found that immunity for individual foreign officials continues to be governed by the pre-FSIA framework. See, e.g., Ye, 383 F.3d at 625 (“Because the FSIA does not apply to heads of states, the decision concerning the immunity of foreign heads of states remains vested where it was prior to 1976 — with the Executive Branch.”); Noriega, 117 F.3d at 1212 (“Because the FSIA addresses neither head-of-state immunity, nor foreign sovereign immunity in the criminal context, head-of-state immunity could attach in cases, such as this one, only pursuant to the principles and procedures” that existed prior to the enactment of the FSIA.). And a numbers of courts have even concluded that a suggestion of immunity by the Executive Branch on behalf of a head of state or diplomatic agent is binding upon the federal courts and must be accepted as conclusive. See, e.g., Ye, 383 F.3d at 625-26; First Am. Corp., 948 F.Supp. at 1119 (citing Ex parte Republic of Peru, 318 U.S. at 589, 63 S.Ct. 793); Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir.1974); Lafontant v. Aristide, 844 F.Supp. 128, 137 (E.D.N.Y.1994); Abdulaziz v. Metro. Dade County, 741 F.2d 1328, 1331 (11th Cir.1984); Carrera, 174 F.2d at 497. I agree. The logic that underlies deference to the Executive’s assertion regarding a head of state or diplomatic agent is, in this Court’s view, equally applicable to a foreign minister who is part of a special diplomatic mission. Indeed, the Executive’s authori" }, { "docid": "287378", "title": "", "text": "discretion to classify diplomats. The broadness in the language of the Vienna Convention is necessary, since it is the foreign country that actually ranks its envoys, not the State Department. See A New Regime of Diplomatic Immunity: The Diplomatic Relations Act of 1978, 54 Tul.L.Rev. 661, 682 n. 112 (1980) (citations omitted). Article 14 of the Vienna Convention classifies “envoys” as Heads of Missions. Heads of Missions are defined in § 254a of the Diplomatic Relations Act, and are protected by the Act. The State Department was notified by the Embassy of Saudi Arabia on April 1, 1982 of Turki’s status as “special envoy” for matters concerning the Government of Saudi Arabia. The designation of “special envoy” reflects the designation provided by the sending state. As special envoy Turki was afforded full protection pursuant to the Diplomatic Relations Act. This protection extended to his family, members of his service staff, and servants. See 22 U.S. C.A. §§ 254a(l)(C) and 254a(2). Defendants challenge the manner in which Turki’s diplomatic immunity was communicated to the court, arguing that the photocopy of the official documents was insufficient and violated the Federal Rules of Evidence. The courts have the right to accept the certificate of the State Department as to diplomatic status. In re Baiz, 135 U.S. 403, 432, 10 S.Ct. 854, 862, 34 L.Ed. 222 (1890); Carrera v. Carrera, 174 F.2d 496, 497 (D.C.Cir.1949). In Carr-era the Ambassador’s note was transmitted to the district judge by the legal adviser to the Secretary of State with an enclosed letter from the Secretary. The Court held this communication sufficient. Fed.R.Evid. 1003 allows for the admission of a photocopy, as long as there is no genuine issue as to the authenticity of the original or it would be unfair to admit the duplicate. Neither situation is present here. Diplomatic immunity can be waived by continuing to assert a claim while at the same time seeking immunity from a counterclaim. Cf National City Banks v. Republic of China, 348 U.S. 356, 75 S.Ct. 423, 99 L.Ed. 389 (1955). Here, however, immediately after receiving the certificate from the" }, { "docid": "20430562", "title": "", "text": "the functions of diplomatic missions’ ”. Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 980 (D.C.Cir.1965) (citing the Vienna Convention preamble). Consistent with that purpose, the Vienna Convention provides that a diplomatic agent “shall not in the receiving State practice for personal profit any professional or commercial activity.” VCDR, Article 42. Because diplomats are not to engage in professional or commercial activity outside of their duties as diplomats, the Vienna Convention includes an exception to diplomatic immunity “in the case of ... an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Id.; see also VCDR, Article 32(3). Plaintiffs allege that defendants’ conduct in bringing plaintiffs from Kuwait to the United States to work as domestic servants constituted human trafficking, and was therefore a “commercial activity exercised by the diplomatic agent ... outside his official functions” within the meaning of the Vienna Convention. Plaintiffs, and amici, argue at length that human trafficking is a profitable commercial activity that results in severe human rights violations. “But such a literal manner of interpretation is superficial and incomplete, and, [this Court] believe[s], yields an incorrect rendering of the meaning of ‘commercial activity’ as used in the Vienna Convention.” Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996). Hiring household help is incidental to the daily life of a diplomat and therefore not commercial for purposes of the exception to the Vienna Convention. This Court agrees with the Fourth Circuit in Tabion: When examined in context, the term “commercial activity” does not have so broad a meaning as to include occasional service contracts as Tabion contends, but rather relates only to trade or business activity engaged in for personal profit. Accepting the broader meaning fails to take into account the treaty’s background and negotiating history, as well as its subsequent interpretation. It also ignores the relevance of the remainder of the phrase-“outside his official functions.” Id.; see also Gonzalez Paredes, 479 F.Supp.2d at 193. According to the Statement of Interest filed by the United States, “[t]he ‘commercial activity’ exception focuses on the" }, { "docid": "22075835", "title": "", "text": "diplomatic immunity, expired on December 12,1998. The Yemeni embassy applied for a new identification card for Al-Hamdi on December 1, 1999, but the State Department requested more information before it would grant the request. No further information was provided, and Al-Hamdi was never issued a new identification card. Al-Hamdi, however, continued to be issued A-l visas after 1999 and has entered the United States with an A-l visa on numerous occasions since 1999. On March 31, 2003, the State Department sent a letter to the Yemeni embassy stating that Al-Hamdi’s father lost his diplomatic immunity on that date because he no longer performed full-time services for Yemen at the embassy. On May 15, 2003, in response to Al-Hamdi’s motion to dismiss the indictment, the State Department certified that Al-Hamdi lost his diplomatic immunity on November 12, 1998, the date of his twenty-first birthday. Thus, according to the May 15 certification, Al-Hamdi did not possess diplomatic immunity at the time of his arrest. II. On appeal, Al-Hamdi’s principal argument is that he possessed diplomatic immunity at the time of his arrest on February 25, 2003, and was thus immune from prosecution. He also contends that the State Department’s May 15, 2003, certification retroactively revoked that immunity, in violation of his substantive and procedural due process rights as guaranteed by the Fifth Amendment of the Constitution. We address each of these arguments in turn. The determination of whether a person has diplomatic immunity is a mixed question of fact and law. We review such questions “under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts.” Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 905 (4th Cir.1996); see also United States v. Han, 74 F.3d 537, 540 n. 1 (4th Cir.1996) (explaining the application of the hybrid standard). Interpretation of an international treaty is an issue of law subject to de novo review. Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996). A. In pertinent part, the" }, { "docid": "560935", "title": "", "text": "diplomatic officers born within the United States. SlaughterHouse Cases, 83 U.S. 36, 73, 16 Wall. 36, 21 L.Ed. 394 (1873); United States v. Wong Kim Ark, 169 U.S. 649, 693, 18 S.Ct. 456, 42 L.Ed. 890 (1898). Thus, if the plaintiffs father was entitled to diplomatic privileges and immunities in this country on the date the plaintiff was born, the plaintiff is not a United States citizen. See Nikoi v. Attorney Gen., 939 F.2d 1065, 1066 (D.C.Cir.1991) (“Because one parent was a foreign official with diplomatic immunity when each child was born, the birth did not confer United States citizenship.”). Pursuant to the Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a-254e, the governing law in the United States on the issue of diplomatic privileges and immunities is the Vienna Convention on Diplomatic Relations (Vienna Convention). Tabion v. Mufti, 73 F.3d 535, 538 (4th Cir.1996). The Vienna Convention provides diplomatic agents a broad array of privileges and immunities, most notably “absolute immunity from criminal prosecution and protection from most civil and administrative actions brought in the ‘receiving State,’ i.e., the state where they are stationed.” Id. at 537. Under Article 37 of the Vienna Convention, “members of the family of a diplomatic agent forming part of his household” are also entitled to the privileges and immunities specified in Articles 29 to 36. Vienna Convention at art. 37. The Vienna Convention “premise[s] diplomatic immunity upon recognition by the receiving state.” United States v. Lumumba, 741 F.2d 12, 15 (2d Cir.1984). Pursuant to Article 10 of the Vienna Convention, a foreign state that sends individuals to serve in a diplomatic mission must notify the receiving state of “the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission.” Vienna Convention at art. 10. The Vienna Convention further provides that the receiving state may require that the size of a diplomatic mission be kept within particular limits, refuse to accept officials of a particular category, or determine, at any time and without having to explain its decision, “that the head of the" }, { "docid": "19979236", "title": "", "text": "nor foreign sovereign immunity in the criminal context, head-of-state immunity could attach in cases, such as this one, only pursuant to the principles and procedures” that existed prior to the enactment of the FSIA.). And a numbers of courts have even concluded that a suggestion of immunity by the Executive Branch on behalf of a head of state or diplomatic agent is binding upon the federal courts and must be accepted as conclusive. See, e.g., Ye, 383 F.3d at 625-26; First Am. Corp., 948 F.Supp. at 1119 (citing Ex parte Republic of Peru, 318 U.S. at 589, 63 S.Ct. 793); Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir.1974); Lafontant v. Aristide, 844 F.Supp. 128, 137 (E.D.N.Y.1994); Abdulaziz v. Metro. Dade County, 741 F.2d 1328, 1331 (11th Cir.1984); Carrera, 174 F.2d at 497. I agree. The logic that underlies deference to the Executive’s assertion regarding a head of state or diplomatic agent is, in this Court’s view, equally applicable to a foreign minister who is part of a special diplomatic mission. Indeed, the Executive’s authori ty to assert such immunity derives from customary international law and the President’s powers to conduct foreign affairs and receive foreign ministers. Restatement (Third) of Foreign Relations Law § 464, cmt. i. (“High officials of a foreign state and their staffs on an official visit or in transit ... enjoy immunities like those of diplomatic agents when the effect of exercising jurisdiction against the individual would be to violate the immunity of the foreign state.”); U.S. Const, art. II, § 3. Thus, it is not surprising that other courts who have considered the Executive’s assertion of immunity when the individual was neither a head of state nor a member of a diplomatic mission have deferred to the Executive. See Kilroy v. Windsor, Civ. No. C-78-291, slip op. at *2 (N.D.Ohio Dec. 7, 1978) (adopting the Department of State’s suggestion that Prince Charles was on a “special diplomatic mission” and dismissed the claims against him because of his immunity); see also Tachiona v. Mugabe, 169 F.Supp.2d 259, 296-97 (S.D.N.Y.2001) (dismissing case against a foreign minister under" }, { "docid": "6046580", "title": "", "text": "his deposition, Ambassador’s Mot. to Quash at 2; second, the plaintiffs’ motion to discharge the sanctions imposed upon them by the Magistrate Judge arising from the Ambassador’s failure to appear at a settlement conference, Pis.’ Mot. re Sanctions at 6; and third, the defendant’s motion to dismiss this case should the Ambassador refuse to submit to the deposition, Def.’s Mot. to Dismiss at 12. A brief review of the law of diplomatic immunity is necessary as a prelude to addressing these motions. Diplomatic immunity flows from foreign state sovereign immunity, and consequently the underlying principles supporting the doctrines mirror each other. Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328, 1330 (11th Cir.1984) (“The courts have recognized that diplomatic immunity serves the needs of the foreign sovereign and that the diplomat’s privilege is ‘merely incidental to the benefit conferred on the government he represents.’ ” (citation omitted)). With limited exceptions, diplomatic immunity shields foreign persons with diplomatic status from being sued in the courts of this country as prescribed by the Vienna Convention on Diplomatic Relations. 22 U.S.C. § 254d (2006) (“Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of [title 22 of the United States Code], or under any other laws extending diplomatic privileges and immunities, shall be dismissed.”). And diplomatic immunity, like sovereign immunity, can be waived. For example, courts are willing to find waiver where a diplomat makes an untimely assertion of immunity, Wacker v. Bisson, 348 F.2d 602, 609 (5th Cir.1965), “continu[es] to assert a claim while at the same time seeking immunity from a counterclaim,” Abdulaziz, 741 F.2d at 1331 (citing Nat’l City Bank, 348 U.S. 356, 75 S.Ct. 423 (1955)), or attempts to shield himself behind a corporate veil while commencing an action through the corporation although the corporation has no meaningful “independent existence” from the diplomat, Lasidi, S.A. v. Financiera Avenida, S.A., 73 N.Y.2d 947, 540 N.Y.S.2d 980, 538 N.E.2d 332, 334 (1989). Clearly, all of these waiver exceptions stem" }, { "docid": "10037877", "title": "", "text": "1097, 1099; First Am. Corp., 948 F.Supp. at 1121; see also Lasidi, supra note 72. . 860 F.2d at 45 (citing The Schooner Exchange, 11 U.S. (7 Cranch) at 135 and Republic of the Philippines v. Marcos, 806 F.2d 344, 360 (2d Cir.1986)) (emphasis added). . Suggestion, at 2. . See Satow's Guide, at 10; see also Kim, 58 Am. J. Int'l L. at 186. . See Aristide, 844 F.Supp. at 138 (citing Sen. Comm, on the Judiciary, The Torture Victim Protection Act of 1991, S.Rep. No. 249, 102d Cong. 1st Sess. 7-8 (1991)) (\"The TVPA is not intended to override traditional diplomatic immunities which prevent the exercise of jurisdiction by U.S. courts over foreign diplomats .... Nor should visiting heads-of-state be subject to suits under the TVPA.''). . Adopted Feb. 13, 1946, United States accession, April 29, 1970, 21 U.S.T. 1418, 1 U.N.T.S. 16 (hereinafter the \"U.N. Convention\"). . Done April 18, 1961, United States accession, December 13, 1972, 23 U.S.T. 3227, 500 U.N.T.S. 95 (hereinafter the \"Vienna Convention\"). . See Vienna Convention, Article 39(1) and (2). . 22 U.S.C. § 254a, et seq. . Id. at § 254d. The Court notes that under Article 10 of the Vienna Convention, the State Department may certify foreign diplomatic agents even after the official has entered the country and that under Article 39, the agents are entitled to immunity at the moment of notification to the appropriate authorities of the receiving state, even if they have already entered the territory. See Republic of Philippines, 665 F.Supp. at 799 (citing Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1331 (11th Cir.1984)). . U.N. Convention, § 11(a). . U.N. Convention, § 11. . Satow's Guide, at 9-10; see Restatement (Third) of Foreign Relations Law § 464, Reporter’s Note 14. . See 22 U.S.C.A. § 287 Note; Kadic, 70 F.3d at 247; Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 54 (2d Cir.1991). . See Yu-Long Ling, A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents, 33 Wash. &" }, { "docid": "16240758", "title": "", "text": "the Secretary of State subsequent to admission is evidence of the proper classification of a nonimmigrant. ...”). Swarna’s nonimmigrant status reflected precisely her occupation in the United States: a personal servant hired to meet the individual defendants’ private needs. Al-Awadi relies on Tabion v. Mufti, 73 F.3d 535, 538-39 (4th Cir.1996), a case in which the Fourth Circuit stated that “[d]ay-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions ... [b]ecause these services are incidental to daily life.” But that statement was made in the context of considering whether a sitting diplomat’s hiring of a domestic servant fell within the “commercial activity” exception to diplomatic immunity under Article 31(1)(c). Under Article 31(1), a diplomat enjoys absolute immunity save for three exceptions in civil cases, one of which is for an “action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Vienna Convention art. 31(1)(c). The Tabion court agreed with the U.S. Department of State that the term “commercial activity” in Article 31(1)(c), as modified by its latter phrase “outside his official functions,” “focuses on the pursuit of trade or business activity; it does not encompass contractual relationship for goods and services incidental to the daily life of the diplomat and family in the receiving State.” Tabion, 73 F.3d at 538 (internal quotation marks omitted). Thus, Tabion articulates the scope of acts as they relate to the term “commercial activity” under Article 31(1)(c) for sitting diplomats; Tabion does not define “official functions,” much less define the official acts that are accorded perpetual immunity under Article 39(2) to former diplomats. Al-Awadi also cites to three foreign cases, which he explains applied residual immunity to (1) an Austrian Ambassador who accidentally shot and killed the French Ambassador during a hunting expedition, which was arranged by the President of Yugoslavia to further good relations between the countries, Heirs of Pierre S v. Austria, Case No. 1 Ob 49/81, 86 ILR 546 (1982); (2) a Portuguese diplomat who ordered a translation" }, { "docid": "22075836", "title": "", "text": "the time of his arrest on February 25, 2003, and was thus immune from prosecution. He also contends that the State Department’s May 15, 2003, certification retroactively revoked that immunity, in violation of his substantive and procedural due process rights as guaranteed by the Fifth Amendment of the Constitution. We address each of these arguments in turn. The determination of whether a person has diplomatic immunity is a mixed question of fact and law. We review such questions “under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts.” Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 905 (4th Cir.1996); see also United States v. Han, 74 F.3d 537, 540 n. 1 (4th Cir.1996) (explaining the application of the hybrid standard). Interpretation of an international treaty is an issue of law subject to de novo review. Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996). A. In pertinent part, the Vienna Convention states that a “diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” Vienna Convention at art. 31.1. Article 37.1 reads “members of the family of a diplomatic agent forming part of his household shall ... enjoy the privileges and immunities specified in Articles 29 to 36.” Vienna Convention at art 37.1. The Diplomatic Relations Act, which made the Vienna Convention applicable to the United States, see Tabion, 73 F.3d at 536 n. 1, provides that the phrase “members of the family” means the “members of the family of a member of a mission ... who form part of his or her household.” 22 U.S.C.A. § 254a(2)(A) (West 1990). That Act also provides, quite clearly, that “[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding ... shall be dismissed.” 22 U.S.C.A. § 254d (West 1990). Thus, under the plain language of the statute, if, at the time he was arrested, Al-Hamdi was entitled to diplomatic immunity under Article 37.1" } ]

[ { "docid": "21736284", "title": "", "text": "the court, and the trial of it resulted in a decree dismissing it. The undisputed evidence as to the immediate cause of the bodily injury which was claimed to have resulted in the insured’s total disability was to the following effect: While the insured and another man were traveling in an automobile, one of the tires of the car was punctured. Thereupon, after the insured had jacked the car up, the car started to move from the jack, and the insured attempted to hold the car by bracing himself against it. Upon making that effort he said he had hurt himself, or had strained himself in some way, walked off, and sat down under a tree, and his companion repaired the puncture. No evidence indicated that anything unintended or unexpected occurred, except the injury which resulted from the attempt to stop the movement of the car. That a personal injury so brought about by voluntary physical exertion is not sustained through accidental means, within the meaning of such a policy as the one sued on, has been decided by this court in a case involving facts not materially different from those of the instant ease. Carswell v. Railway Mail Ass’n, 8 F.(2d) 612. We conclude that the evidence adduced did not authorize a recovery under the feature of the policy which insured against bodily injury sustained through accidental means. In the argument for the appellant attention was called to the fact that the policy is one insuring against illness, as well as against bodily injury through accidental means, and it was suggested that the evidence was sufficient to support a recovery under the provision of the policy insuring against illness. This suggestion is not consistent with the claim asserted in appellant’s petition. The only claim asserted in that pleading was based on the feature of the policy which insured against bodily injury sustained through accidental means. It did not attempt to allege that the insured had had any such illness as the policy insured against. Illness insured against not only was not alleged' but the record indicates that there was" } ]

[ { "docid": "9809269", "title": "", "text": "The court said: “It is also said in argument that the policy covers death from violent, external, and accidental means, and that the proximate canse of death in this case was not the fall, but some disorder with which the deceased was afflicted. It is quite clear, both on principle and authority, that, if the disorder which caused the fall was .temporary and unexpected, the injury was violent, external, and accidental, and the whole matter was properly left to the jury for them to determine whether the disorder was of a temporary character.” In the case of Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. 945, 7 C. C. A. 581, 22 L. R. A. 620, it appeared that the insured came to his death by drowning. The jury found that the insured was unconscious when he fell into the water, and that the unconsciousness was due to a temporary affliction which was entirely unusual with him. The court, by Mr. Justice Taft, said: “We are of the opinion that in the legal sense, and within the meaning of the last clause, if the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning, in such case would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result', even had there been no water at hand to fall into. The disease would be but the condition; the drowning would be the moving, sole, and proximate cause.” The present policy was executed and delivered within the state of Massachusetts consequently the law of that state upon this subject is especially important. In the case of Bohaker v. Travelers’ Insurance Co., 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543, the Supreme Judicial Court of Massachusetts dealt with an issue very similar to this. The policy there in question insured “against bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means.” It appeared that the insured," }, { "docid": "23039188", "title": "", "text": "or, cover accidental injuries or death resulting from or caused directly or indirectly, wholly or In part, by hernia, fits, vertigo, somnambulism or disease in any form, or while effected thereby; nor extend to cover injuries or death resulting from or caused by gas or poison,” etc. On January 1, 1895, the insured, a man weighing from 180 to 190 pounds, while on the sidewalk, waiting for a street car, suddenly fell. From the evidence the jury were entitled to infer that his fall was caused by an accidental slip upon snow or ice, and for the purposes of this appeal it must be assumed that the fall was the result of an accident. In falling be struck upon an iron water spout which projected a few inches above the sidewalk, and which left external, visible marks upon his head and face, in the form of abrasions or bruises not supposed at the time to be of a serious character.- He died from 15 to 20 minutes after the accident, and was buried without any careful examination into the cause of death. Three months after interment the body was exhumed and an autopsy made. It then appeared that at the time of the accident the deceased was affected with a diseased condition of the aortic valves and calcification of both coronary arteries. Calcification is a do posit of lime salts in the walls of the tube, making it rigid and fragile, instead of elastic, as .it is in health. There was dilation of the heart and hypertrophy. It is unnecessary to go into further details, since the plaintiffs’ own expert, who was present at the autopsy, testified that “the conditions which [he] found in the heart would indicate that the heart was diseased.” There was much dispute upon the testimony as to what the autopsy disclosed- as to the condition of the brain, hut on this appeal it must be assumed that there was evidence of injury to the brain, insulting from the blows which left the marks found after his fall.. Before proceeding to discuss the points which are" }, { "docid": "1597777", "title": "", "text": "prove that what accidentally happened was the sole cause of such condition and the death. Carswell v. Railway Mail Ass’n (C. C. A.) 8 F. (2d) 612, 614; Baldwin v. North American Accident Ins. Co. of Chicago (C. C. A.) 22 F.(2d) 111. To say the least, the conclusion that the insured’s state of shock, and that he was cold, clammy, pale, and in pain after taking part in the loading of ice, were due in whole or in part to the exertion which he voluntarily made, was as consistent with the evidence adduced as the conclusion that what accidentally happened was the sole cause of his change of condition. But, assuming that insured’s change of condition would not have been caused by his voluntary exertion if the accidental slipping had not occurred, and that the change of condition was not due wholly or partly to the voluntary exertion, we are of opinion that the evidence adduced did not warrant a finding that his death was so caused as to. give rise to a liability of the appellee under the policy sued on, because no phase of that evidence had any tendency to prove that what accidentally happened was capable of causing the death if the insured, prior to such accidental happening, was not affected with a disease or bodily infirmity which contributed to his change of condition and death. There was no evidence furnishing any support for a finding that the death of a' person in anything like normal health could have been caused solely by such a slipping and sitting or falling down as the evidence tended to prove. Though the insured sustained a personal injury by the happening of an external violent and purely accidental event, his death was not brought about solely and independently of all other causes by that accident, if, at the time the accident occurred, it would not have caused his death if he ¿ad not then been afflicted with a previously existing disease or infirmity, and if the accident had not aggravated the effeet of the disease or infirmity, or the disease" }, { "docid": "1597773", "title": "", "text": "WALKER, Circuit Judge. This was an action by the appellant on a policy issued by the appellee whereby the latter promised to pay to the former a stated sum for the loss of life of Charles J. Ryan, her husband, “resulting from a personal injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event.” The evidence showed as follows: At the time of his death the insured was forty-four years of age. Prior to his assisting in loading ice in a railroad ear on the morning of his death he appeared to be in good health. While an employee of the ice company of which insured was the manager was engaged in loading ice into the ear the insured took part in that task. While pulling ice from a truck into the ear he slid and sat down, and he fell a second time on his face. Then he got up, held one hand on his chest, and walked to a platform on which he laid down. After lying there for awhile he got up and went to his home in an automobile driven by his son. He died about thirty or forty minutes after reaching his home. A physician found him there in a state of shock, cold, clammy, and pale, and complaining of pain in his chest. The physician stated that he had his hand on deceased’s pulse when it stopped; that his pulse was good right up to the time it stopped, but it stopped very suddenly, and he went right into a convulsion and died. He also stated that he was at a loss as to the cause of the death until he heard that the undertaker had found that there was a leak, and he then guessed it was a ruptured aorta; that he did not see any external evidence of an injury; and that he did not know that it is possible, from a medical standpoint, for the aorta of the human body to be ruptured by any fall, no matter how" }, { "docid": "22052852", "title": "", "text": "moment overtaken with a trouble of which he was subject, — that is, from a recurrence of a trouble to which he was subject, — and he then fell in the brook a,nd was drowned, that that would not be a case whore a recovery could bo had upon the policy, because his physical condition was a part of the causes contributing to the death; but if the temporary trouble spoken of in this question was one of which he was not subject, hut was something entirely unusual and uncommon with him, and that he at that time fell into the brook and was drowned, that would be an accident, and the death would be accidental only.” The jury found that the insured was unconscious when he fell into the brook, and that the unconsciousness was due to a temporary affliction, in accordance with this charge. :The twenty-fifth assignment of error is based on the refusal of the court to vacate and set aside the verdict on the ground that the three special findings of the jury could not sustain their general verdict. Upon these two assignments of error arises the main, difficult, and doubtful question in the case. The policy provided, as we have already seen, that the benefits under it extended to the death of the insured through external, violent, and accidental means, and that it should not cover accidental injuries or death resulting from or caused, directly or indirectly, wholly of in part, by or in consequence of fits, vertigo, somnambulism, or any disease existing prior or subsequent to the date of the certificate, or to any cause excepting where the injury was the sole cause of the disability or death. In the application the deceased stated that he was aware that the Insurance would not extend to “any bodily injury happening, directly or indirectly, in consequence of disease, or to death or disability caused wholly .or in part by bodily infirmities or disease, or to any case where the accidental injury was not the proximate and sole cause of disability or death.”. It is well settled" }, { "docid": "11012348", "title": "", "text": "benefit will not apply if the insured’s death resulted directly or indirectly from physical or mental infirmity, illness, or disease of any kind. Under these provisions death must not only be caused from bodily injury effected through accidental cause, but it must not result directly or indirectly from physical or mental infirmity, illness, or disease. When the evidence is considered in the light of these provisions in the policy, it seems clear that if it be assumed that the insured took by mistake an overdose of medicine and that he had an accidental fall, and that either or both contributed to his death, appellant would not be entitled to recover in view of the positive and uncontroverted evidence that the insured’s heart condition likewise contributed to his death. A double indemnity provision in a policy on all fours with that now before us was under consideration by this court in Davis v. Jefferson Standard Life Insurance Company, 5 Cir., 73 F.2d 330, 331, 96 A.L.R. 599. In the Davis case the insured died under an anesthetic administered by his surgeon in the performance of an abdominal operation. The appeal in that case, as here, was from a directed verdict by the district court. This court said: “In this count the anesthetic is set up as the direct and efficient cause of death. Its use was intentional and no mistake or slip is alleged in its administration. In addition to its usual and expected sedative results, there occurred an unexpected result due to a heart weakness of short duration but antedating the operation. That there was an accidental death caused in part by an external means (the anesthetic), which by a strain is held to be violent, is apparent; that the means was an accidental one is not so plain, as no mistake or slip occurred in its use. By the weight of authority a means is not made accidental because some unexpected result followed in addition to that which was intended to be accomplished. Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934," }, { "docid": "17737751", "title": "", "text": "reinfection, which causing abscesses, had destroyed adjacent tissues and blood vessels and produced a hemorrhage, which 'was the immediate cause of his death. Plaintiff is precluded from recovery here upon the initial accident of November 19, 1919, because, by the terms of the policy, death did not occur till more than 90 days, subsequent to this initial accident, and because for more than 3 months thereafter, and after a seemingly complete recovery, assured was not totally disabled, but, on the contrary, was during such period engaged in his professional duties with more than his ordinary energy and activity. This initial injury was concededly the remote cause of his death. But, before it became the proximate or direct cause thereof, it had by the lapse of time fallen into the category of a pre-existing disease or bodily infirmity, so far as the contract of insurance at least is concerned. Before it could in a physical sense become the cause of his death, it was nqcessary that the quiescence of this infirmity be disturbed. The slipping of assured, even if it is conceded that there is any competent evidence that it happened, could not, and, as it is tacitly conceded, did not, cause his death, of itself alone. This slipping merely by the shock superinduced, disturbed the quiescence of the incapsulated metal, causing a recrudescence of infection, which brought about death. Assuming that the record conclusively shows that assured slipped ■and hurt himself, yet the question arises whether such slipping, independently of all other causes, brought about his death. Defendant by its policy of insurance agreed to become liable only in case “death was caused directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means.” In the case of National Masonic Acc. Ass’n v. Shryock, 73 Fed. loc. cit. 775, 20 C. C. A. 5, this court said: “The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident, and that that accident was the sole cause of his death, independently of all other causes." }, { "docid": "22311179", "title": "", "text": "of New Jersey law. In Gottfried, a 44 year old patently healthy man died of a heart attack after eating a light dinner and playing a vigorous game of basketball with two other men and three teenage boys. After his death it was determined that Gottfried had arteriosclerosis and that the vigorous exercise had reacted with that condition to cause the heart attack. He had had no symptoms or prior history of this disease. His wife sought to recover accidental death benefits on a double indemnity policy, like the one involved here, that provided coverage for death sustained as a result of “accidental bodily injury.” Judge Kole in Gottfried found no obstacle to recovery in the exclusionary clause of Gottfried’s policy, a provision that was nearly identical to the exclusionary clause in the Lang’s policy. Noting that Gott-fried’s arteriosclerosis was asymptomatic, Judge Kole stated that Gottfried’s exertion was the sole proximate cause of death and that the underlying arteriosclerosis became a “disease” only when it combined with the exertion to produce the heart attack. Gott-fried, 173 NJ.Super. at 393,414 A.2d at 557. In rejecting the argument that arteriosclerosis was a contributing or proximate cause of death, Judge Kole wrote: Where, as here, a latent, inactive condition or disease, not known to the insured, is not accompanied by any symptoms and is precipitated or activated by an accident or accidental bodily injury into a resulting disability or death, such condition or disease is neither an independent cause under the insuring clause, nor a disease such as to defeat coverage under the exclusion clause, involved in the instant case. Id. at 394, 414 A.2d at 557 (citing Kievit v. Loyal Protective Life Insurance Co., 34 N.J. 475, 483-89, 170 A.2d 22, 27-29 (1961)) (emphasis added). Whatever we may think of the wisdom of Judge Kole’s Gottfried opinion, it represents the best evidence of the current view of the New Jersey Supreme Court on this subject, and as such we are bound by it. In this case, as in Gottfried, plaintiffs allege that a latent, inactive asymptomatic condition (the second hernia), not previously" }, { "docid": "1597779", "title": "", "text": "or infirmity had not aggravated the effect of the accident. National Masonic Acc. Ass’n v. Shryock (C. C. A.) 73 F. 774; Kerns v. Aetna life Ins. Co. (C. C. A.) 291 F. 289; Aetna Life Ins. Co. v. Ryan (C. C. A.) 255 F. 483; Commercial Travelers’ Mut. Acc. Ass’n v. Fulton (C. C. A.) 79 F. 423. It cannot fairly be denied that the evidence as to the circumstances attending the physical eollapse of the insured and his death persuasively indicated that before and at the time of the accidental event, which evidence tended to prove, the insured was afflicted with some serious internal ailment or defect, and that such pre-existing ailment or defect caused or proximately contributed to his death. We think the evidence adduced was such that the court would have been warranted in setting aside a verdict which involved a finding that the death of the insured resulted from a personal injury which was effected solely and independently of all other causes by the happening of an external, violent, and purely accidental event. This being so, the above mentioned ruling was not erroneous. The judgment is affirmed." }, { "docid": "12845491", "title": "", "text": "hand was hanging down and just beneath it lay his revolver, loaded all around except for one chamber which had been discharged. There was nothing whatever to indicate accidental discharge of the revolver. On the contrary the nature of the wound, which entered a little above and to the rear of the right ear, effectually negatived any theory of accidental discharge. Although the theory is advanced by plaintiff that the wound may have been inflicted by some person other than insured, there is nothing in the record before us to substantiate such theory. There was no evidence of struggle, no robbery or attempt at robbery is shown, and no motive of any sort is even suggested why anyone would have desired to take the life of the kindly, quiet and inoffensive man that insured was shown to have been.. On the other hand, the evidence is that insured was much depressed as a result of financial conditions, that he was worried about his own finances and that he was laboring under the delusion, not justified by the facts, that he was faced with financial ruin. The conclusion that his death was the result of suicide was so clear at the time that it did not occur to any one to doubt it. Proofs of death were made to three life insurance companies; and in all of them plaintiff stated the cause of death to be suicide. While it is true that the plaintiff’s mental condition was such that she may not have appreciated the content of these proofs, they were unquestionably prepared by persons friendly to her and must have expressed the only view as to the cause of death thought to be tenable. Over a year after insured’s death, plaintiff had his body exhumed and examined in an effort to prove from the nature of the wound that it was not self inflicted. The evidence thus obtained, however, instead of disproving suicide, establishes it so conclusively as to leave no room for reasonable men to doubt the fact. The physician performing the autopsy was of opinion from the nature" }, { "docid": "1597778", "title": "", "text": "of the appellee under the policy sued on, because no phase of that evidence had any tendency to prove that what accidentally happened was capable of causing the death if the insured, prior to such accidental happening, was not affected with a disease or bodily infirmity which contributed to his change of condition and death. There was no evidence furnishing any support for a finding that the death of a' person in anything like normal health could have been caused solely by such a slipping and sitting or falling down as the evidence tended to prove. Though the insured sustained a personal injury by the happening of an external violent and purely accidental event, his death was not brought about solely and independently of all other causes by that accident, if, at the time the accident occurred, it would not have caused his death if he ¿ad not then been afflicted with a previously existing disease or infirmity, and if the accident had not aggravated the effeet of the disease or infirmity, or the disease or infirmity had not aggravated the effect of the accident. National Masonic Acc. Ass’n v. Shryock (C. C. A.) 73 F. 774; Kerns v. Aetna life Ins. Co. (C. C. A.) 291 F. 289; Aetna Life Ins. Co. v. Ryan (C. C. A.) 255 F. 483; Commercial Travelers’ Mut. Acc. Ass’n v. Fulton (C. C. A.) 79 F. 423. It cannot fairly be denied that the evidence as to the circumstances attending the physical eollapse of the insured and his death persuasively indicated that before and at the time of the accidental event, which evidence tended to prove, the insured was afflicted with some serious internal ailment or defect, and that such pre-existing ailment or defect caused or proximately contributed to his death. We think the evidence adduced was such that the court would have been warranted in setting aside a verdict which involved a finding that the death of the insured resulted from a personal injury which was effected solely and independently of all other causes by the happening of an external, violent, and" }, { "docid": "15501035", "title": "", "text": "his death was not accidental. The evidence showed that the decedent and his wife had had a long history of domestic quarrels, and had even divorced each other once but had remarried three months before the shooting. On several occasions, Mrs. Wade had been hospitalized after being beaten by her husband. Neither had ever previously threatened the other with death or brandished a gun. The district court relied on the testimony of one of the police officers who investigated the shooting. The officer testified that when he arrived at the Wade home soon after the shooting, Mrs. Wade told him that she and her husband had quarreled, that he had hit her, and that she had told Wade “If I had a gun I’d shoot you.” Wade, she said, then got a gun from another room, loaded it, handed it to her, and told her to go ahead and shoot. She did. We agree for the most part with the district court’s thorough analysis of the meaning of the term “accidental.” Nevertheless, we disagree with the factual conclusion that this death was not accidental. Iowa follows the general rule that the determination of whether an injury is accidental must be made from the point of view of the insured and what he intended or should reasonably have expected. Comfort v. Continental Cas. Co., 239 Iowa 1206, 34 N.W.2d 588 (1948); Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa 423, 166 N.W. 363, 168 N.W. 884 (1918). The word “accident” * * * means happening by chance, unexpectedly taking place, not according to the usual course of things. . [I]f the insured does a voluntary act, the natural and usual, and to be expected result of which is to bring injury upon himself, then a death so occurring is not an accident. But if the insured does a voluntary act, without knowledge or reasonable expectation that the result thereof will be to bring injury upon himself from which death may follow, then a bodily injury resulting in death is caused by an accident. Continental Cas. Co. v. Jackson, 400 F.2d" }, { "docid": "17737752", "title": "", "text": "assured, even if it is conceded that there is any competent evidence that it happened, could not, and, as it is tacitly conceded, did not, cause his death, of itself alone. This slipping merely by the shock superinduced, disturbed the quiescence of the incapsulated metal, causing a recrudescence of infection, which brought about death. Assuming that the record conclusively shows that assured slipped ■and hurt himself, yet the question arises whether such slipping, independently of all other causes, brought about his death. Defendant by its policy of insurance agreed to become liable only in case “death was caused directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means.” In the case of National Masonic Acc. Ass’n v. Shryock, 73 Fed. loc. cit. 775, 20 C. C. A. 5, this court said: “The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident, and that that accident was the sole cause of his death, independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor. These" }, { "docid": "22052853", "title": "", "text": "the jury could not sustain their general verdict. Upon these two assignments of error arises the main, difficult, and doubtful question in the case. The policy provided, as we have already seen, that the benefits under it extended to the death of the insured through external, violent, and accidental means, and that it should not cover accidental injuries or death resulting from or caused, directly or indirectly, wholly of in part, by or in consequence of fits, vertigo, somnambulism, or any disease existing prior or subsequent to the date of the certificate, or to any cause excepting where the injury was the sole cause of the disability or death. In the application the deceased stated that he was aware that the Insurance would not extend to “any bodily injury happening, directly or indirectly, in consequence of disease, or to death or disability caused wholly .or in part by bodily infirmities or disease, or to any case where the accidental injury was not the proximate and sole cause of disability or death.”. It is well settled that an involuntary death by drowning is a death by external, violent, and accidental means. Trew v. Assurance Co., 6 Hurl. & N. 838; Winspear v. Insurance Co., 6 Q. B. Div. 42; Reynolds v. Insurance Co., 22 Law T. (N. S.) 820. We are of the opinion that in the legal sense, and within the meaning of the last clause, if the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning, in such case, would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The dispase would be but the condition; the drowning would be the moving, sole, and proximate cause. In Winspear v. Insurance Co., 6 Q. B. Div. 42, the terms of the policy provided “that it should cover any personal injury caused by accidental; external, and visible means, if the direct effect of" }, { "docid": "22052854", "title": "", "text": "that an involuntary death by drowning is a death by external, violent, and accidental means. Trew v. Assurance Co., 6 Hurl. & N. 838; Winspear v. Insurance Co., 6 Q. B. Div. 42; Reynolds v. Insurance Co., 22 Law T. (N. S.) 820. We are of the opinion that in the legal sense, and within the meaning of the last clause, if the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning, in such case, would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The dispase would be but the condition; the drowning would be the moving, sole, and proximate cause. In Winspear v. Insurance Co., 6 Q. B. Div. 42, the terms of the policy provided “that it should cover any personal injury caused by accidental; external, and visible means, if the direct effect of such injury should occasion his death; and it provided, further, that it should not extend to any injury caused by or arising from natural disease or weakness, or exhaustion consequent upon disease.” .The insured was seized with an epileptic fit and fell into a stream, .and was there drowned while suffering from a fit. It was held that the death was within the risk covered by the policy, and that the proviso did not apply. In Lawrence v. Insurance Co., 7 Q. B. Div. 216, the policy provided: “This policy covers injuries accidentally occurring from material and external cause operating upon the person of the insured, where such accidental' injury is the direct and sole cause of the death to the insured, hut it does not insure in case of death arising from fits, * * * or any disease whatsoever, arisiiig before or at the time or following such accidental injury, whether consequent upon such accidental injury.or not, and whether causing such death directly, or jointly with such accidental injury.” The insured, while at" }, { "docid": "590324", "title": "", "text": "disease or infirmity contributes, either directly, or indirectly, to the causing of insured’s death, or if, as has been held, the disease or infirmity is the proximate cause of insured’s death. This rule applies where the preexisting disease so aggravates the effect of the accident, or the accident so aggravates the effect of the disease, that the accident would not have proved fatal except for the disease.” 45 C.J.S. Insurance § 938, p. 1088. The foregoing statement of the rule was quoted with approval in The Maccabees v. Terry, Fla., 67 So.2d 193. This Court, in a diversity case applying Florida law, made this succinct statement of the rule: “Though the insured sustained a personal injury by the happening of an external violent and purely accidental event, his death was not brought about solely and independently of all other causes by that accident, if, at'the time the accident occurred, it would not have caused his death if he had not then been afflicted with a previously existing disease or infirmity, and if the accident had not aggravated the effect of the disease or infirmity, or the disease or infirmity had not aggravated the effect of the accident.” Ryan v. Continental Casualty Co., 5th Cir. 1931, 47 F.2d 472, 473. There was no substantial conflict in the medical testimony. It appeared from such testimony that the injuries were not such as would, of themselves, have caused death. It appeared too that the insured’s heart condition was not then such as was likely to cause his death at that time. It could have been inferred that if it had not been for the stopping of the anticoagulant and the administering of the coagulant in treating the injuries sustained in the accident, the fatal heart attack would not have occurred at that time. But it does not follow that death resulted directly and independently of all other causes from the accidental injury merely because the treatment of the injury impaired the treatment of the heart condition with the result that the heart condition took a fatal turn. The decedent died of a preexisting" }, { "docid": "23039196", "title": "", "text": "evidence in this record is discussed, that such question plays no part here: In Insurance Co. v. Melick (also in the court of appeals for the Eighth circuit) 12 C. C. A. 544, 65 Fed. 178, the condition excluded “death * * * resulting wholly or partly * * * from.disease or bodily infirmity, * * * intentional injuries (inflicted by the insured or any other person).” The insured accidentally shot himself in the foot. The wound resulted in tetanus or lockjaw, and on the eighteenth day after the accident he was found dead, with his thoat cut and a scalpel in his hand; having also been in the em brace of tetanic spasm, causing intense agony, at the'time of his death; the evidence leaving it an open question whether the spasm or the cut was the immediate cause of death, ft was left to the jury to determine whether the accident was the approximate cause of the death. It will be noted that no independent disease had contributed in any way to the catastrophe. The spasm or the delirious impulse to end ids tortures were both themselves caused solely by the accident. In Freeman v. Association, 156 Mass. 351, 30 N. E. 1013, the policy covered where “accidental injuries alone * * shall have occasioned death,” and did “not extend to any case * * * in which death or disability occurs in consequence of disease, * * * nor to any case except where the injury is the proximate ..cause of the disability or death.” It was proved that the insured, Freeman, died of peritonitis localized in the region of the liver, and the evidence tended to show that it was induced by a fall. There was also evidence indicating that he had previously had peritonitis in the same part, and that the previous disease had produced effects which rendered him liable to a recurrence of it; but there was no evidence to show that he had peritonitis or any other disease at the time of the fall. The court gives a careful and elaborate definition and discussion" }, { "docid": "1597775", "title": "", "text": "violent, unless there was some external evidence of that fall. One would have no feeling after the rupture of the aorta, as death at once would follow such a rupture. The undertaker who embalmed the deceased’s body testified that in injecting the embalming fluid the face and upper part of the body responded, but that it appeared that there was no circulation in the lower part of the body, which led him to believe that there was an obstruction or rupture which interfered with the circulation. After the body had been embalmed there was an autopsy. The report of the physician who conducted the autopsy stated: , , “No external signs o£ violence on body. “Thoracic cavity; lungs looked apparently normal. “Heart; pheeardium had a number of small holes about the eighth of an inch in diameter, muscles of the heart proper had a like condition, that is a number of perforations throughout its substance,'-also the arch of the aorta had a hole in it. “The perforations of the heart were most likely made by use of trocar in the process of embalming, but I cannot positively state whether the perforation of the arch was a spontaneous condition or was caused by the use of trocar.” Upon the conclusion of the evidence the court directed a verdict in favor of the defendant. The appellant was not entitled to recover unless the death of the insured resulted from a personal bodily injury which was effected solely and independently of all other causes by the happening of an external, violent, and purely accidental event; and the burden was on her to prove that the death was so effected or caused. It seems that a conclusion that the physical condition of the insured following his taking part in the loading of ice in the ear, and his death, were due solely to his accidental slipping and falling or sitting down, and were not proximately contributed to by his voluntary exertion in handling ice, would have been a mere guess or surmise, and not a finding based on evidence having a substantial tendency to" }, { "docid": "4023331", "title": "", "text": "Insurance Company v. Myers et al., Miss. 192 So.2d 437 (1966), the policy provided for recovery for “loss resulting directly and independently of all other causes from accidental bodily injury.” More than a year before her death the insured had suffered a heart attack, but since that time her heart condition was found to have been latent and dormant, not active, or virulent, and her general health was satisfactory. The day of her death she and two travelling companions became ill from carbon monoxide gas emitted from the exhaust of a taxicab in which they were riding with all windows closed. The trial court found that the carbon monoxide poisoning activated the latent heart condition of the insured, resulting in her death. Judgment for plaintiff was affirmed, the Supreme Court declaring at p. 439: “[Rjecovery may be had where the accidental injury aggravates, renders active, or sets in motion a latent or dormant pre-existing physical condition or disease, which in turn contributes to the disability or death for which recovery is sought, and where the accidental injury is a proximate cause of the resulting loss.” Reliance was placed on a number of Mississippi eases construing similar policy provisions, including Hood, supra. It is our opinion that these cases state the Mississippi law and that the evidence supports the jury’s finding that the causal relationship between the accident and Mr. English’s death falls within the policy terms. There was adequate testimony that his heart condition was dormant and latent, and that death resulted directly and independently of all other causes from his accidentally opening the wrong circuit at the T.Y.A. substation in West Point, Mississippi. We come next to the question of whether the coverage provided by the policy against “loss resulting * * * from bodily injuries caused by accident” requires a showing of some physical trauma. It is INA’s contention that, death resulting from shock, freight, or other psychic trauma is not a loss resulting from bodily injuries. Its position is that the term “bodily injuries” necessarily requires that some physical force be exerted on the body. There is" }, { "docid": "1597776", "title": "", "text": "use of trocar in the process of embalming, but I cannot positively state whether the perforation of the arch was a spontaneous condition or was caused by the use of trocar.” Upon the conclusion of the evidence the court directed a verdict in favor of the defendant. The appellant was not entitled to recover unless the death of the insured resulted from a personal bodily injury which was effected solely and independently of all other causes by the happening of an external, violent, and purely accidental event; and the burden was on her to prove that the death was so effected or caused. It seems that a conclusion that the physical condition of the insured following his taking part in the loading of ice in the ear, and his death, were due solely to his accidental slipping and falling or sitting down, and were not proximately contributed to by his voluntary exertion in handling ice, would have been a mere guess or surmise, and not a finding based on evidence having a substantial tendency to prove that what accidentally happened was the sole cause of such condition and the death. Carswell v. Railway Mail Ass’n (C. C. A.) 8 F. (2d) 612, 614; Baldwin v. North American Accident Ins. Co. of Chicago (C. C. A.) 22 F.(2d) 111. To say the least, the conclusion that the insured’s state of shock, and that he was cold, clammy, pale, and in pain after taking part in the loading of ice, were due in whole or in part to the exertion which he voluntarily made, was as consistent with the evidence adduced as the conclusion that what accidentally happened was the sole cause of his change of condition. But, assuming that insured’s change of condition would not have been caused by his voluntary exertion if the accidental slipping had not occurred, and that the change of condition was not due wholly or partly to the voluntary exertion, we are of opinion that the evidence adduced did not warrant a finding that his death was so caused as to. give rise to a liability" } ]

[ { "docid": "305039", "title": "", "text": "the court found that it did not have general jurisdiction over the defendant because the defendant’s contacts with Pennsylvania were not “continuous and systematic.” Id. at 956. Among the contacts that the defendant had with Pennsylvania were the following: it entered into leases with Pennsylvania companies, it maintained offices in Pennsylvania from 1972 to 1976 (three years before the cause of action arose), it had the right to repossess trucks in Pennsylvania that it had sold, and it placed ads in a national trade journal that circulated in Pennsylvania. Id. In concluding that the defendant was not subject to the court’s general jui’isdiction, the court stated that general jurisdiction is usually found “where a nonresident defendant makes a substantial number of direct sales in the forum, solicits business regularly and advertises in a way specifically targeted at the forum market.” Id. . (citing Schwilm v. Holbrook, 661 F.2d 12, 14 (3d Cir.1981); Galaxy Int’l, Inc. v. White Stores, Inc., 88 F.R.D. 311, 324-25 (W.D.Pa.1980); Garfield v. Homowack Lodge, 249 Pa.Super. 392, 378 A.2d 351, 354-55 (1977)). Applying this general rule to the present case, yields the conclusion that Johnson & Quin’s Pennsylvania contacts were not continuous and systematic. The defendant’s $230,000 in direct sales to Pennsylvania (less than .5% of its total sales) cannot be described .as “substantial” in light of the amount of sales which other courts have found to be not substantial. See Allied Leather Corp. v. Altama Delta Coiy., 785 F.Supp. 494 (M.D.Pa.1992) (defendant’s sale of 1% of its products in Pennsylvania was not “substantial”); Derman v. Wilair Servs., Inc., 404 Pa.Super. 136, 590 A.2d 317, appeal denied, 529 Pa. 621, 600 A.2d 537 (1991) (finding no substantial and continuous business even though defendant did 1.5% of its business with Pennsylvania residents). Johnson & Quin did not regularly solicit business in Pennsylvania. Although some of its salespersons solicited business in Pennsylvania, they did not do so on a regular basis. In fact, there is evidence that many of the Pennsylvania sales were unsolicited telephone orders. Henkel Deposition at 48-50. There has been no evidence submitted that Johnson" } ]

[ { "docid": "13359214", "title": "", "text": "(4th Cir. 1972). A ratio test would also put a party at a disadvantage in attempting to establish jurisdiction over a tortfeasor that is a gigantic corporation, and might even raise equal protection difficulties. The substantiality of the revenues must be measured by objective factors, not the size of the defendant. The volume of sales here, although slight in terms of its percentage of total sales, were not isolated or exceptional occurrences, but were part of a regular course of dealing. Cf. Norman’s on the Waterfront v. West Indies Corp., 10 V.I. 495 (D.V.I.1974). The record not only establishes that the defendant maintained contact with users of its products in the Virgin Islands through direct sales, but also that it solicited business by sending catalogues, price lists, and bulletins, and supplied technical advice by telephone on servicing its equipment in use on the Islands. This is solicitation of a more personal and direct nature within the jurisdiction than advertising in nationally circulated publications printed outside the territory and circulated on the Islands. Vencedor Manufacturing Co. v. Gougler Industries, Inc., 557 F.2d 886, 891 (1st Cir. 1977). Cf. Scheidt v. Young, 389 F.2d 58 (3d Cir. 1968) (advertising in a New York newspaper distributed in forum state without more not sufficient conduct of defendant to establish jurisdiction). The defendant’s method of promoting its products evidences solicitation of business, and provides a reasonable connection between the defendant and the forum, even though the defendant does not personally appear in the jurisdiction. This business seeking activity, combined with the company’s continuing sales of its products to the Islands, also establishes a persistent course of conduct that was both voluntary and profitable. We are persuaded that the district court did not err in finding that there was adequate evidence of the defendant’s business efforts “in the territory” so as to comply with the statute. We turn then to whether the assertion of jurisdiction in these circumstances satisfies the requirements of due process. This inquiry is discrete from that of the statutorily imposed prerequisites, although often the same facts must be reviewed. It is obvious" }, { "docid": "10653192", "title": "", "text": "retailers to defendant’s main office for acceptance; (3) receives from defendant a commission on all sales of defendant’s marine products within the area whether or not such sales are made on orders obtained by or processed through the representative; (4) assists purchasers of defendant’s products by following up on delayed orders, calling defendant’s attention to needed adjustments to or replacements of defective products of defendant; (5) sends its own and related personnel to defendant’s main offices in Louisville to attend sales and other meetings; and, (6) continuously and systematically corresponds through the mails, by telephone and otherwise with personnel in defendant’s main offices in Louisville on business relating to the sale and promotion of defendant’s products; (7) exclusively represents defendant as its exclusive manufacturer’s representative for the states of Rhode Island, Connecticut, Massachusetts, Maine, New Hampshire, and Vermont for all defendant’s marine products; (8) employs others to, among other things, obtain orders for defendant’s products; (9) participates in trade shows within and without the New England area by working in display booths bearing defendant’s name; and (10) is otherwise responsible for soliciting, servicing, and conducting on behalf of defendant, sales, accounts and other business of substantial worth in excess of $50,000 annually. By letter dated March 6, 1969 defendant charged that plaintiff was infringing defendant’s allegedly registered trademark GOLD BRAID for certain braided marine rope and that the use, by plaintiff, of the term GOLD-N-BRAID for rope would inevitably cause confusion in competitive markets. One such market is Rhode Island in which both defendant’s and plaintiff’s products, including the allegedly similar ropes, are sold. Plain tiff subsequently commenced suit. The complaint and summons in this suit were served on Evans and on United States Corporation of Delaware, defendant’s designated agent in defendant’s state of incorporation. At the outset clarity will be served by indicating the specific questions before this court. There is, first, the question of whether this court has in personam jurisdiction because defendant, through its representative Evans, either “does business” for jurisdictional purposes in Rhode Island or has “minimum contacts” for jurisdictional purposes in Rhode Island. Both of" }, { "docid": "15979796", "title": "", "text": "addressed by this Court or the Eleventh Circuit; however the caselaw both federally and from the Florida courts does not evince any willingness or rationale to find solicitation activities alone sufficient grounds for the assertion of general jurisdiction. In Congoleum Corporation v. DLW Aktiengesellschaft, 729 F.2d 1240 (9th Cir.1984), plaintiff Congoleum conceded that its claims against DLW were unrelated to DLW’s activities in the forum. That complaint alleged, inter alia, breach of a licensing agreement. The activities of DLW’s hired consultant in the forum consisted of solicitation of orders, the recommendation of other sales agents, the ordering of samples, the promotion of DLW products to potential customers through the mail and through a showroom display in the forum, and attendance at trade shows and sales meetings. In refusing to find general personal jurisdiction, the Congoleum court noted that, “[N]o court has ever held that the maintenance of even a substantial sales force within the state is the sufficient contact to assert jurisdiction in an unrelated cause of action.” Id. at 1242. See also Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330-31 (9th Cir.1984) (no general jurisdiction over defendants despite several visits and purchases in forum, solicitation of contract in forum which included choice of law provision favoring forum, and extensive communication with forum) cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). In an unrelated cause of action, a defendant’s contacts must be significant rather than minimal. See Helicopteros, 466 U.S. at 413, 104 S.Ct. at 1871. Sporadic newsgathering by reporters on special assignment and solicitation of small amounts of advertising do not constitute continuous and systematic activities within the forum but at most a casual presence therein. Buckley v. The Florida Times-Union, 338 F.2d 470 (5th Cir.1964). The ‘continuous and systematic requirement’ was not met in the First Circuit notwithstanding that a defendant was licensed to do business in the forum, had an appointed agent for service of process, and had advertised in the forum for laborers. Sandstrom v. Chemlawn Corp., 904 F.2d 83 (1st Cir.1990). A defendant who employed several salesmen and thereby transacted" }, { "docid": "17443018", "title": "", "text": "See Helicopteros, 466 U.S. at 418, 104 S.Ct. 1868 (holding that “purchases, even if occurring at regular intervals” were insufficient to establish general personal jurisdiction over a nonresident corporation). Additionally, Oppenheimer has exhibited products unrelated to the accused device at a California trade show. While this may support the inference that Oppenheimer meets potential business partners at trade shows, this showing does not rise above a sporadic and insubstantial contact with California. See Campbell Pet Co. v. Miale, 542 F.3d 879, 881-884 (Fed.Cir.2008) (finding no general jurisdiction from twelve sales yielding about $14,000 in revenue, conference attendance in forum where products are demonstrated and orders taken, and a generally accessible website). Similarly, an isolated advertisement in a nationally distributed trade publication based in California and Mako’s website listing Oppenheimer as a contact do not amount to a continuous and systemic presence in California. See id.; see also Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242-43 (9th Cir.1984) (finding that sales and marketing efforts in California, including solicitation of orders, promotion of products through mail and showroom display, and attendance at trade shows were not sufficient to give rise to general jurisdiction). The district court also correctly found that Appellants did not make a prima facie showing of specific jurisdiction. “Specific jurisdiction ... must be based on activities that arise out of or relate to the cause of action, and can exist even if the defendant’s contacts are not continuous and systematic.” Autogenomics, 566 F.3d at 1017 (citing Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1200 (Fed.Cir. 2003)). When analyzing specific personal jurisdiction over a nonresident defendant, a court considers whether: “(1) the defendant purposefully directed its activities at residents of the forum state, (2) the claim arises out of or relates to the defendant’s activities with the forum state, and (3) assertion of personal jurisdiction is reasonable and fair.” Elecs. For Imaging, 340 F.3d at 1350. The plaintiff has the burden of proving parts one and two of the test, and then the burden shifts to the defendant to prove that personal jurisdiction is unreasonable. Id." }, { "docid": "5759991", "title": "", "text": "sales in the forum, solicits business regularly and advertises in a way specifically targeted at the forum market.’” Modem Mailers v. Johnson & Quin, Inc., 844 F.Supp. 1048, 1054 (E.D.Pa.1994) (quoting Strick Corp. v. A J.F. Warehouse Distribs., Inc., 532 F.Supp. 951, 956 (E.D.Pa.1982)). Applying this analysis, this Court found that the defendant corporation’s contacts with Pennsylvania were not “continuous and systematic” although the corporation had made $230,000 worth of direct sales to Pennsylvania (less than 0.5% of its total sales), and its salespersons had solicited orders in the state. Of greater significance was the fact that many of the orders were unsolicited, the corporation did not regularly solicit sales, and there was no evidence that the corporation “advertised in a way specifically targeted at Pennsylvania.” Id. Applying these principles to the case at hand, this court is not persuaded that GMC acted to establish sufficient “continuous and systematic” contacts with Pennsylvania to be subject to the general personal jurisdiction. of this Court. First, the record reflects that only two to four percent of GMC’s sales occurred in Pennsylvania. Such a figure is hardly reflective of the type of “extensive and pervasive” contact required by the in personam jurisdiction standard. Fields, 816 F.Supp. at 1036 (citation omitted). This conclusion is especially warranted under circumstances, such as these, where there has been no evidence to show that GMC advertises or otherwise promotes its products in a way specifically targeted at Pennsylvania. Modem Mailers, 844 F.Supp. at 1054. As noted above, GMC’s qualification to do business in the commonwealth, standing alone, does not amount to continuous and systematic business activity. Moreover, although Mr. Romann and GMC’s national sales manager reside in Pennsylvania, there is no evidence to suggest that GMC either required or encouraged Mr. Romann to reside in Pennsylvania as a condition of employment. The unilateral decisions of Mr. Romann and the national sales manager to reside in Pennsylvania and receive paychecks there do not constitute purposeful contacts by GMC, and cannot serve as the basis for the exercise of personal jurisdiction over Mr. Romann’s employer. See Rodale Press, Inc. v." }, { "docid": "20305037", "title": "", "text": "in local Rhode Island newspapers, received regular referrals from Rhode Island healthcare providers, and employed a staff-person to inform Rhode Island healthcare providers about its services. Id. Soares does not support a finding of general jurisdiction in this case. The Soares court exercised specific jurisdiction over the defendant, but made it clear that it was hesitant to assert general jurisdiction. Id. at 307-08 (noting that the facility’s advertising had “a direct connection with the case at bar” because the plaintiff was “within the class of persons” the advertising was designed to reach, and holding that personal jurisdiction extended “at least as to those individuals whose business the solicitation was designed to ob tain”). Furthermore, the advertising to forum state residents in Soares was more extensive and more purposeful than MMC’s occasional press releases and help-wanted advertisements that may have been viewed by New Hampshire residents. 2. MMC Website Cossaboon contends that MMC’s “user-friendly and interactive website,” www.mmc.org, supports the exercise of general jurisdiction. It is clear that “the mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum.” McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir.2005) (addressing analogous issue of extraterritorial jurisdiction under the Lanham Act). Given the “omnipresence” of internet websites, such a rule would “eviscerate” the limits on personal jurisdiction over out-of-state defendants. Id. Instead, for website activity to support the exercise of personal jurisdiction, “[something more is necessary, such as interactive features which allow the successful online ordering of the defendant’s products.” Id. In addressing what “more” is required to support the exercise of general jurisdiction based on website activity, courts have focused on the extent to which the defendant has actually and purposefully conducted commercial or other transactions with forum state residents through its website. See, e.g., Dagesse v. Plant Hotel N.V., 113 F.Supp.2d 211, 223 (D.N.H.2000) (“[A] proper analysis of the jurisdictional effects of an internet web site must focus on whether the defendant has actually and" }, { "docid": "16597715", "title": "", "text": "recently found that Rhode Island lacked in personam jurisdiction over several Massachusetts physicians who, like Dr. Roberts herein, treated the Rhode Island plaintiff in Massachusetts without taking any action to solicit her case. The fact that agents of Preterm other than Dr. Roberts solicited Rhode Island referrals does not distinguish Dr. Roberts’ position from that of defendant physicians in Kouffman. In reaching this conclusion, the Court must reject plaintiffs’ assertion that personal jurisdiction over Dr. Roberts may rest simply upon her status as a nonresident agent of a principal (Preterm) which itself has sufficient contacts with the forum state. This argument turns the principal-agent concept on its head. Although the activities of corporation agents in the forum state may establish minimum contacts of the nonresident corporation, see, e. g., Shoe, supra, these corporate activities cannot be used to establish minimum contacts of a nonresident corporate agent who did not participate in the forum activities in any respect. A contrary conclusion would clearly be illogical and unfair and, if applied in the extreme, would for example make a Detroit-based clerical or assembly-line employee of General Motors amenable to suit in other states to the same extent as his employer. Such a basis for jurisdiction would not comport with the Supreme Court’s observation in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958), that: “[I]t is essential, in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state thus invoking the benefits of its laws.” Cf. Riverhouse Publishing Co. v. Porter, 287 F.Supp. 1 (D.R.I.1968). Preterm In Kouffman, supra, the Court also found insufficient the Rhode Island contacts of Massachusetts-based New England Medical Center. In that case the medical facility had not solicited any patients; its only direct contact with the forum state consisted of the purchase of laboratory supplies from two Rhode Island suppliers to take out of the state. The Court characterized this relationship with the forum as one of “passive purchaser”, see Whittaker Corp. v. United Aircraft Corp., 482" }, { "docid": "17233709", "title": "", "text": "65 (D.R.I.1995). In Barry, the district court ruled that the plaintiffs mere allegation that the defendant held mortgage notes secured by property in Rhode Island was insufficient for the exercise of general personal jurisdiction, when the plaintiffs own mortgaged property was located in Massachusetts, rendering the Rhode Island mortgage notes unrelated to the plaintiffs cause of action. See id. at 74-75 (“Where the property is completely unrelated to the plaintiffs cause of action, the presence of the defendant’s property in the forum will not alone support the exercise of jurisdiction. Such is the case here where the 138 mortgages secured by Rhode Island property are unrelated to Barry’s claims which are the only ones properly considered by the Court for purposes of this jurisdictional analysis, as he is the named class representative.”). In Street, the plaintiff did not allege that her own note was held by any particular defendant, and therefore, the defendants’ mortgage notes secured by Tennessee real property were unrelated to the plaintiffs own cause of action. The Seacoast Plaintiffs allege that the Stallings loan was consolidated in a loan pool that was assigned to Empire 1997-3 specifically. (ComplJ 103.) The facts regarding Empire 1997-3 are therefore slightly different from those alleged in Street. By identifying Empire 1997-3 as the holder of the Stallings loan’s note, Empire 1997-3’s contacts with Tennessee are now related to the Seacoast Plaintiffs’ cause of action. Such a connection alone, however, does not show the systematic or continuous contacts needed for the exercise of general personal jurisdiction. Again, Plaintiffs have shown only that Empire 1997-3 is the assignee of a mortgage note secured by property in Tennessee, and that alone is insufficient to show the substantial contacts necessary for general personal jurisdiction. The Seacoast Plaintiffs argue that Ocwen, the servicer of the notes, is an agent of Empire 1997-3, and that Ocwen’s activities in the forum state on behalf of Empire 1997-3 are systematic and continuous enough for the Court to exercise general personal jurisdiction over the alleged principal, Empire 1997-3. Tennessee Code Annotated § 20-2-214 does allow personal jurisdiction over a nonresident" }, { "docid": "13937946", "title": "", "text": "Preliminary Injunction is set for Monday, December 6, 2010 at 10:00 a. to. in Courtroom 14A, United States Courthouse, 601 Market Street, Philadelphia, PA. It is so ORDERED. . Broker of Record letters are used in the insurance industry to recognize the authority of the insurance broker to act for and pursue insurance markets and products for the brokerage company’s customers, and are essential to identifying the brokerage company entitled to receive commissions from insurance carriers for any business underwritten by such carriers in favor of the brokerage company’s customers. (Id. ¶ 99.) . Plaintiffs cite to the case of TJS Brokerage & Co., Inc. v. Mahoney, 940 F.Supp. 784 (E.D.Pa.1996) for the proposition that general jurisdiction is proper where a company regularly solicits business in the forum state and advertises in a way that at least partially targets the forum market. Id. at 789. In that case, however, the defendant company had a sales force in Pennsylvania to solicit Pennsylvania business, and also used Pennsylvania-based trucking companies to transport goods through Pennsylvania. Id. at 790. On those grounds, the court found that the defendant \"maintained a 'continuous and systematic part of its general business in Pennsylvania’ since it solicits business regularly from Pennsylvania and advertises in a way that is at least partially targeted to the forum market.” Id. The present case is quite distinguishable in that Plaintiffs cannot establish that Tola — an individual, not a company — had such similarly extensive contacts with Pennsylvania, or that he himself derived even a portion of his income from Pennsylvania customers. See also Henning v. Suarez, No. CIV.A.09-4282, 713 F.Supp.2d 459, 465-67 (E.D.Pa.2010) (declining to find personal jurisdiction over a company where defendant's sales and associated advertising expenditures, contacts with distributors, advertising activities, and website were not \"sufficiently continuous and systematic to give rise to general jurisdiction over [defendant.”). . Plaintiffs also assert that Tola's business is currently promoted via a website operated by Doyle Alliance Group, \"which is accessible to and meant to be accessed by individuals within Pennsylvania.” (Pis.’ Resp. Tola Mot. Dismiss 14.) Notably, ”[c]ourts have recently" }, { "docid": "10653197", "title": "", "text": "147), and ‘something more’ is required, I find and rule that such existed, and that defendant at the time of service was doing business in Massachusetts and subject to process. International Harvester Co. v. Com. of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Nichols v. Cowles Magazines, Inc., D.C.D.Mass., 103 F.Supp. 864; Id., D.C., 108 F. Supp. 883; Formmaster Corp. v. G. H. Bishop Co., D.C.S.D.N.Y., 138 F.Supp. 115; Wyshak v. Anaconda Copper Mining Co., 328 Mass. 219, 103 N.E. 2d 230; Jet Manufacturing Co. v. Sanford Ink Co., 330 Mass. 173, 112 N.E.2d 252.” Accordingly, I find no less so, that defendant at the time of service was doing business in Rhode Island and subject to process. Minimum Contacts The Rhode Island Long Arm Statute, Section 9-5-33 of the General Laws of Rhode Island, provides, in relevant part: “Every foreign corporation * * * that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island, and the courts of this state shall hold such foreign corporations * * * amenable to suit in Rhode Island in every case not contrary to the provisions of the constitution or laws of the United States.” Here, it cannot be doubted that defendant, through its very large sales in Rhode Island and through its agent and its extensive dealings with its Rhode Island representative, has substantial contacts with the forum state. It has voluntarily availed itself of the privilege of conducting activities within Rhode Island and its actions have had effect here. Defendant’s assertion that the instant litigation “bears no relation whatsoever to Rhode Island property, interest or law” will not stand scrutiny. The genesis of this suit was defendant’s charge that for plaintiff to sell its gold-colored braid-on-braid rope in the same competitive market as defendant sells its product is tortious. It is admitted that plaintiff is actively promoting and offering for sale its accused Gold’n Braid product in Rhode Island. Insofar as defendant’s product is concerned, Rhode Island is one important market within the" }, { "docid": "16597723", "title": "", "text": "could go to encourage and solicit Rhode Islanders to use its facilities. Preterm’s focus on Rhode Island distinguishes the Gelineau-Wright line of cases cited with reference to Dr. Roberts above. Those cases turned upon the fact that the defendant doctor or hospital had made “no systematic or continuing effort to provide services which are to be felt in the forum state”, Wright, supra at 290, and a characterization of “the residence of [the] recipient of personal services rendered elsewhere [as] irrelevant and totally incidental to the benefits provided by the defendant at his own location,” Gelineau, supra at 667. In making this constitutional inquiry, a court should also assess the interest of the forum in maintenance of the action in its courts and convenience and fairness to the parties. Whittaker Corp. v. United Aircraft Corp., supra at 1083. As to the interest of the forum, the Court is persuaded by the plaintiffs’ argument, which has not been challenged by the defendant: “The regular solicitation of Rhode Island patients is the exercise of a privilege far more complex than that exercised by a corporation soliciting for business and profit. If Preterm .were a Rhode Island corporation practicing . . . medicine, the State would regulate and inspect its facilities and license its doctors. While Preterm, Inc. and Doctor Roberts are not licensed by Rhode Island, they make their services openly attractive to Rhode Islanders and solicit Rhode Island patients. Where health care is involved, the State has a special interest in regulating the care given its citizens. Rhode Island can exercise no direct control over the standards of the Preterm operation. % sk . [Preterm] seeks to provide an alternative to services licensed by the State of Rhode Island . . . [and] has solicited in Rhode Island to take patients out of Rhode Island’s jurisdiction.” Plaintiffs’ Memo, at 4-5. Lastly, the element of convenience and fairness to the parties appears to be evenly balanced in this case. Consequently, the Court concludes that the constitutional limitations of the Due Process Clause are not transgressed by a finding of in personam jurisdiction" }, { "docid": "22959151", "title": "", "text": "in some respects, it fails the legal test for “continuous and systematic” contacts. In determining what constitutes “continuous and systematic” contacts, our analysis is “a fact-specific evaluation” of the defendant’s contacts with the forum. Noonan, 135 F.3d at 93. For guidance in this factual inquiry, we look to “the types of contacts deemed sufficiently continuous and systematic in other cases.” Id. As the district court correctly pointed out, SAB’s contacts with the United States are less continuous and systematic than contacts found to be insufficient for general jurisdiction in previous cases. See Swiss III, 116 F.Supp.2d at 224-25. In Helicopteros, the Supreme Court found that a Texas district court could not exercise jurisdiction over a Colombian corporation that sent its chief executive officer to Houston for contract negotiations; accepted into its New York bank accounts checks drawn on a Houston bank; bought equipment and training services from a Texas corporation; and sent personnel to that corporation’s Texas facilities for training. 466 U.S. at 416, 104 S.Ct. 1868. Similarly, in Noonan, we found that the Massachusetts district court could not exercise jurisdiction over a British company that sent an employee to Massachusetts to photograph the plaintiff, directly solicited business from a Massachusetts company, and received $585,000 in orders from that same company. 135 F.3d at 93. In Dona-telli, we said that no jurisdiction attached in Rhode Island over the National Hockey League, which for ten years provided league officials at exhibition games, telecast games into Rhode Island, and sold products with the National Hockey League logo. 893 F.2d at 470-71. In Glater, the defendant Indiana corporation employed eight sales representatives in New Hampshire, conducted business in the state, and advertised in trade journals that circulated there. 744 F.2d at 215. We said that “these vestigial contacts” did not suffice for the exercise of jurisdiction. Id. at 217. In short, the government has not shown that SAB’s limited and intermittent contacts with the United States rise to the level of what we have previously understood as “continuous and systematic.” As a result, the government has not made the prima facie showing needed" }, { "docid": "12314085", "title": "", "text": "Although its contacts were min imal, this court believes that they do satisfy the constitutional requirements of International Shoe, supra, and the “long arm” statute of the State of Rhode Island, which was enacted for the purpose of permitting the State of Rhode Island to exercise jurisdiction over foreign corporations up to the constitutional limitation. The defendant’s contacts with the State of Rhode Island were such that the maintenance of a suit there by these plaintiffs against the defendant would not offend traditional notions of fair play and substantial justice. Nor can it be said that the limits of Hanson, supra, would be exceeded were a state court of the State of Rhode Island to exercise jurisdiction over this defendant under its long arm statute, for this defendant did “purposefully [avail] itself of the privilege of conducting activities within the forum State * * * ” by soliciting business there and shipping goods sold into that state. Independent research has failed to reveal any case in Rhode Island with facts similar to those of the instant case. We can only speculate as to what a Rhode Island state court would do in a case such as this. New York State, under its long arm statute, N.Y.C.P.L.R. § 302, has not chosen to extend its jurisdiction to the utmost constitutional limit, Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). Yet it has been held in Singer v. Walker, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965), cert. denied, Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158, that the solicitation of business in New York, by means of advertisements and other promotional material, when coupled with the shipment of goods into New York State, is sufficient to subject a nonresident, who has never been in New York State, to the jurisdiction of a New York state court, if the cause of action arises out of the goods so shipped. This court concludes that the courts of Rhode Island would hold that the defendant would have" }, { "docid": "17233708", "title": "", "text": "such that an exercise of general personal jurisdiction would be permissible.” Williams I, 209 F.R.D. at 411; see also Street, 2002 WL 1797773, at *10. The plaintiff in Street argued that the following contacts justified the exercise of general personal jurisdiction over Empire 1997-3 and the other defendant trusts: their purchase of at least seventy-four second mortgage loans secured by property held by Tennessee residents, their receipt of income from these mortgages, and their holding of notes secured by mortgages from Tennessee residents secured by real property located within Tennessee. Street, 2002 WL 1797773, at *10. Judge Gibbons found that these alleged contacts indicated only that the defendants held mortgages secured by property in Tennessee, which was insufficient contact for general personal jurisdiction. Id. The Court agrees with Judge Gibbons’s reasoning. Merely holding notes secured by real property in Tennessee, unrelated to a plaintiffs own cause of action,'does not show the systematic or continuous contacts necessary for the exercise of general personal jurisdiction. Judge Gibbons relied on Barry v. Mortgage Servicing Acquisition Corporation, 909 F.Supp. 65 (D.R.I.1995). In Barry, the district court ruled that the plaintiffs mere allegation that the defendant held mortgage notes secured by property in Rhode Island was insufficient for the exercise of general personal jurisdiction, when the plaintiffs own mortgaged property was located in Massachusetts, rendering the Rhode Island mortgage notes unrelated to the plaintiffs cause of action. See id. at 74-75 (“Where the property is completely unrelated to the plaintiffs cause of action, the presence of the defendant’s property in the forum will not alone support the exercise of jurisdiction. Such is the case here where the 138 mortgages secured by Rhode Island property are unrelated to Barry’s claims which are the only ones properly considered by the Court for purposes of this jurisdictional analysis, as he is the named class representative.”). In Street, the plaintiff did not allege that her own note was held by any particular defendant, and therefore, the defendants’ mortgage notes secured by Tennessee real property were unrelated to the plaintiffs own cause of action. The Seacoast Plaintiffs allege that the" }, { "docid": "5759990", "title": "", "text": "S.Ct. 1868, 80 L.Ed.2d 404 (1984), the Supreme Court held that a Texas court could not exercise general jurisdiction over a Colombian defendant because his activities did not constitute continuous and systematic business contacts with the state even though the defendant had purchased eighty percent of its helicopters and more than $4 million in parts and accessories in Texas and had sent personnel to train in Texas. In contrast, an out-of-state bank with less than 0.1% of its deposits, depositors, and outstanding loans in Pennsylvania was subject to general personal jurisdiction because the nature of its activity in Pennsylvania — daily wire transfers of funds from the state — was held to be “continuous and systematic.” Provident Nat’l Bank v. California Fed. Sav. & Loan Assoc., 819 F.2d 434 (3d Cir.1987). Thus, it is the overall nature of the activity, rather than its quantitative character, that determines whether a Court may have general personal jurisdiction. This Court has stated that “general jurisdiction is usually found “where a non-resident defendant makes a substantial number of direct sales in the forum, solicits business regularly and advertises in a way specifically targeted at the forum market.’” Modem Mailers v. Johnson & Quin, Inc., 844 F.Supp. 1048, 1054 (E.D.Pa.1994) (quoting Strick Corp. v. A J.F. Warehouse Distribs., Inc., 532 F.Supp. 951, 956 (E.D.Pa.1982)). Applying this analysis, this Court found that the defendant corporation’s contacts with Pennsylvania were not “continuous and systematic” although the corporation had made $230,000 worth of direct sales to Pennsylvania (less than 0.5% of its total sales), and its salespersons had solicited orders in the state. Of greater significance was the fact that many of the orders were unsolicited, the corporation did not regularly solicit sales, and there was no evidence that the corporation “advertised in a way specifically targeted at Pennsylvania.” Id. Applying these principles to the case at hand, this court is not persuaded that GMC acted to establish sufficient “continuous and systematic” contacts with Pennsylvania to be subject to the general personal jurisdiction. of this Court. First, the record reflects that only two to four percent of GMC’s" }, { "docid": "14104824", "title": "", "text": "of sales personnel in the forum state did not suffice to create general jurisdiction. 444 F.2d 745, 748 (4th Cir.1971). In Lee v. Walworth Valve Co., the court found that general jurisdiction existed over a defendant who conducted approximately $200,000 worth of sales in the forum state; this ruling, however, was based partially upon the fact that the cause of action arose upon the high seas. 482 F.2d 297, 298-300 (4th Cir.1973); see also ESAB Group, 126 F.3d at 624. In Nichols, the Fourth Circuit found that general jurisdiction was lacking over a defendant who had conducted between $9 and $13 million worth of sales in the forum state, and who had employed residents as sales representatives and as a district manager. 991 F.2d at 1198. In ESAB Group, the court found that general jurisdiction was lacking where defendant’s only contacts with the forum state were that it conducted business through a mail-order catalog with 26 instate customers that constituted less than 1% of its gross sales, that on one occasion it had purchased between $10,000 and $20,000 worth of supplies in the forum state, and that it had advertised in a trade journal with a nationwide circulation. 126 F.3d at 621. While Yutopian has admitted to conducting 46 transactions with Maryland residents during the 10/é-month period, and Robbins has proffered an affidavit from a Maryland resident who states that he has purchased up to $5,000 worth of products from defendant, these transactions do not constitute sufficiently continuous or systematic contacts upon which the court may found general jurisdiction. Neither does defendant’s advertising in the “American Go Journal” establish contacts sufficient to establish general jurisdiction. Overall, defendant’s contacts with this forum state pale in comparison even to those of defendants in other cases where the Fourth Circuit has found general jurisdiction lacking. See, e.g., Nichols, 991 F.2d at 1199-1200. Robbins argues, however, that by virtue of Yutopiaris presence on the Internet, it should be subject to jurisdiction in this forum. (Def.s’ Opp. at 7-11.) Robbins cites to Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), and" }, { "docid": "22939642", "title": "", "text": "operating budget (including salaries, rink rental, and other major expense items). To be sure, the NHL sets the regular-season schedule and the rules for player eligibility (including the framework of the draft); and by granting franchises for specific cities the league determines the “home territory” of each club. Yet, in the overall scheme of things, the NHL’s influence over individual members seems insubstantial. Perhaps more important, none of the control which the league exerts substantially influenced the Bruins, or any other team, to maintain contacts within Rhode Island. The Bruins play only a single exhibition game in Rhode Island each year. The decision to do so is the club’s; the league’s scheduling powers do not extend to preseason games. The Bruins’ decisions to advertise and seek ticket sales in Rhode Island are in no way mandated by the NHL. The existence of NatServ, and the fact that LCA — an independent entity — may distribute products in Rhode Island, add nothing consequential to the jurisdictional mix. Nor do we believe that the telecasting of play-by-play accounts into Rhode Island makes a dispositive difference. Admittedly, the league negotiates the master contract and the teams retain the proceeds. But, in circumstances where the league itself has no “continuous and systematic general business contacts” with the forum, Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1873, and the asserted cause of action is entirely unrelated to the telecasts, the telecasts form too slippery a foothold for personal jurisdiction over the NHL. Accord Zimmerman v. United States Football League, 637 F.Supp. 46, 47-48 (D.Minn. 1986); Manton v. California Sports, Inc., 493 F.Supp. 496, 498-99 (N.D.Ga.1980); Munchak Corp. v. Riko Enterprises, Inc., 368 F.Supp. 1366, 1374 (M.D.N.C.1973); cf., e.g., Helicopteros, 466 U.S. at 417-18, 104 S.Ct. at 1873-74 (regular purchases within state not sufficient to warrant assertion of general personal jurisdiction); Glater, 744 F.2d at 217 (regular course of advertising; dissemination of information, and solicitation of orders within state not sufficient to warrant assertion of general personal jurisdiction). On the same basis, we do not believe that the telecasts show any exertion of substantial influence" }, { "docid": "10040582", "title": "", "text": "personam jurisdiction.” Id. (citing McGee, 355 U.S. at 223, 78 S.Ct. 199). The First Circuit found this “path of inquiry [ ] neither long nor winding.” Id. This Court agrees. In essence, it is only necessary to conclude (1) that by acquiring an interest in real property located in the District of Columbia and taking assignment of Ms. Johnson’s mortgage, the Trust purposefully availed itself of the benefits and protections of D.C. law, and (2) that Ms. Johnson’s cause of action arises out of or relates to these contacts. Thus, at the threshold of this case, before examining the merits of Plaintiffs derivative claims against the assignee, the Court concludes that its exercise of jurisdiction over the Trust does not violate due process. (d) Discussion of Relevant Cases from Other Jurisdictions While, as noted, no cases from this jurisdiction directly address the issues presented here, several cases from other jurisdictions do so. These cases include recent decisions from the Ninth Circuit, the District of Kansas, the Western District of Tennessee, and the District of Rhode Island. See Easter v. Am. West Financial, 381 F.3d 948 (9th Cir.2004); Pilcher v. Direct Equity Lending, 189 F.Supp.2d 1198 (D.Kan.2002); Williams v. Firstplus Home Loan Owner Trust, 310 F.Supp.2d 981 (W.D.Tenn.2004); Mull v. Alliance Mortgage Banking Corp., 219 F.Supp.2d 895 (W.D.Tenn.2002); Barry v. Mortgage Servicing Acquisition Corp., 909 F.Supp. 65 (D.R.I.1995). In each of these cases, the court addressed whether it could exercise personal jurisdiction over a nonresident Trust who had purchased mortgage notes secured by real property in the forum. In brief, this Court (1) agrees with the reasoning in Easter, (2) declines to follow Pilcher, and (3) finds the remaining cases clearly distinguishable from the present case. Defendants cite Pilcher v. Direct Equity Lending, a 2002 case from the District of Kansas, to support their argument that “mere holding of mortgages secured by property in the forum state [is] not sufficient to confer jurisdiction over the defendant trusts.” LB Mem. to Dismiss at 12. The U.S. District Court for the District of Kansas held that it did not have personal jurisdiction over" }, { "docid": "20305035", "title": "", "text": "we have found even extensive advertising contacts with the forum state inadequate to permit an assertion of general jurisdiction. In Glater, the defendant, a pharmaceutical company, advertised in trade journals that circulated in the forum state, employed eight sales representatives to market products to potential customers in the state, and sold products to wholesale distributors located in the state. 744 F.2d at 215. We concluded that these advertising and solicitation activities did not meet the stringent standard for general jurisdiction. Id. at 217; see also Seymour v. Parke, Davis & Co., 423 F.2d 584, 585 (1st Cir.1970) (finding no general jurisdiction where defendant drug company advertised in the forum state by mail and employed six sales representatives in forum state to disseminate product information and take orders). MMC’s advertising to New Hampshire residents is less purposeful and less extensive than the advertising contacts found insufficient in prior cases. MMC does not purchase advertisements in any New Hampshire-based newspapers, telephone directories, or radio or television stations. Although it issues periodic press releases to forty-five media outlets, only two of those outlets are based in New Hampshire, and no press releases are sent to only New Hampshire-based media. Moreover, there is no evidence regarding the content or frequency of these press releases. MMC has placed advertisements in one regional trade publication produced in New Hampshire, but it appears that it merely advertised job openings at MMC. Finally, MMC advertises on Maine-based radio and television stations, some of which have signals that reach parts of New Hampshire. However, this advertising, although it may incidentally reach some New Hampshire viewers or listeners, is not targeted toward New Hampshire residents in particular. Cossaboon relies on Soares v. Roberts, 417 F.Supp. 304 (D.R.I.1976), to argue that advertising activities similar to those engaged in by MMC have been found to support an assertion of personal jurisdiction. In Soares, the court held that the defendant, a Boston, Massachusetts medical facility that performed abortions, was subject to personal jurisdiction in Rhode Island. Id. at 307. The court based its conclusion in part on evidence that the facility placed advertisements" }, { "docid": "22959152", "title": "", "text": "district court could not exercise jurisdiction over a British company that sent an employee to Massachusetts to photograph the plaintiff, directly solicited business from a Massachusetts company, and received $585,000 in orders from that same company. 135 F.3d at 93. In Dona-telli, we said that no jurisdiction attached in Rhode Island over the National Hockey League, which for ten years provided league officials at exhibition games, telecast games into Rhode Island, and sold products with the National Hockey League logo. 893 F.2d at 470-71. In Glater, the defendant Indiana corporation employed eight sales representatives in New Hampshire, conducted business in the state, and advertised in trade journals that circulated there. 744 F.2d at 215. We said that “these vestigial contacts” did not suffice for the exercise of jurisdiction. Id. at 217. In short, the government has not shown that SAB’s limited and intermittent contacts with the United States rise to the level of what we have previously understood as “continuous and systematic.” As a result, the government has not made the prima facie showing needed for the exercise of general personal jurisdiction. B. Specific Jurisdiction The government asserts that even if it has not shown contacts sufficient to satisfy the “continuous and systematic” threshold for general jurisdiction, it has nevertheless proved individual contacts with the forum sufficient for the exercise of specific jurisdiction. Determining whether the plaintiff has alleged sufficient facts for a finding of specific jurisdiction requires a three-part analysis. Phillips Exeter, 196 F.3d at 288. First, an inquiring court must ask whether the claim that undergirds the litigation directly relates to or arises out of the defendant’s contacts with the forum. Second, the court must ask whether those contacts constitute purposeful availment of the benefits and protections afforded by the forum’s laws. Third, if the proponent’s case clears the first two hurdles, the court then must analyze the overall reasonableness of an exercise of jurisdiction in light of a variety of pertinent factors that touch upon the fundamental fairness of an exercise of jurisdiction. We begin with the question of whether the government made a prima facie showing" } ]

[ { "docid": "22673707", "title": "", "text": "Code § 9-506, 3A U. L. A. 370 (1981). The most that can be said regarding § 722 is that petitioner’s construction of § 506(d) would permit a more concise formulation: Instead of describing the redemption price as “the amount of the allowed secured claim . . . that is secured by such lien” it would have been possible to say simply “the amount of the claim . . . that is secured by such lien” — since § 506(d) would automatically have cut back the lien to the amount of the allowed secured claim. I would hardly call the more expansive formulation a redundancy — not when it is so far removed from the section that did the “cutting back” that the reader has likely forgotten it. Respondents and their amicus also make much of the need to avoid giving Chapter 7 debtors a better deal than they can receive under the other chapters of the Bankruptcy Code. They assert that, by enabling a Chapter 7 debtor to strip down a secured creditor’s liens and pocket any postpetition appreciation in the property, petitioner’s construction of § 506(d) will discourage debtors from using the preferred mechanisms of reorganization under Chapters 11, 12, and 13. This evaluation of the “finely reticulated” incentives affecting a debtor’s behavior rests upon critical — and perhaps erroneous — assumptions about the meaning of provisions in the reorganization chapters. Respondents assume, for example, that a debtor in Chapter 13 cannot strip down a mortgage placed on the debtor’s home; but that assumption may beg the very question the Court answers today. True, § 1322(b)(2) provides that Chapter 13 filers may not “modify the rights of holders of secured claims” that are “secured only by a security interest in real property that is the debt- or’s principal residence.” (Emphasis added.) But this can be (and has been) read, in light of § 506(a), to prohibit modification of the mortgagee’s rights only with respect to the portion of his claim that is deemed secured under the Code, see, e. g., In re Hart, 923 F. 2d 1410, 1415" } ]

[ { "docid": "3694430", "title": "", "text": "519 (Bankr.S.D.Cal.2010) (same). For the reasons that follow, the Court agrees with the latter group of decisions which hold that a wholly unsecured junior lien on the principal residence of a debtor can be stripped-off in chapter 13 despite the operation of § 1328(f)(1). In October of 2004, the debtor-appellant purchased homestead real estate located at 3166 N. 50th Street, Milwaukee, Wisconsin. In February 2007, the debtor obtained a second mortgage on her home. Both mortgages are held by GMAC Mortgage. The fair market value of the property is $48,000.00. The balance on the first mortgage is $56,800.00; the balance on the second mortgage is $48,000.00. On March 29, 2010, the debtor received a chapter 7 discharge. The debtor filed for chapter 13 bankruptcy on April 29. In an adversary proceeding, the debtor asked the bankruptcy court to treat GMAC’s second mortgage as an unsecured claim and to “strip-off’ GMAC’s secondary lien rights on her property. GMAC filed a claim on the first mortgage, valuing its lien at $67,911.16. GMAC did not appear in the adversary proceeding, did not file a claim with respect to the second mortgage, and is not a party to this appeal. Section 506(a) of the bankruptcy code deals with the situation, described above, when the lien amount exceeds the current value of the property: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a). This section separates an undersecured creditor’s claim into two parts: a secured claim to the extent of the value of the collateral, and an unsecured claim for the balance of the claim. “The term ‘strip off is colloquially used when, there being no collateral for a mortgage, the entire lien is proposed to be avoided. The term ‘strip down’ is" }, { "docid": "8858310", "title": "", "text": "suggested that the only result of Harvey’s decision to file multiple documents was to confuse the court and potential creditors. Perhaps this is true. Or perhaps, as Harvey suggested at oral argument, some trustees prefer the short form in order to facilitate easy case management and recordkeeping. Maybe the simultaneous filing of a short and a long form is helpful in many cases but inappropriate in Harvey’s case. Or maybe this practice is always useless at best, confusing at worst. No matter — the point is that GMAC had to raise these arguments at the initial confirmation proceedings since it already had notice of the ambiguities on which it now hopes to rely. We do not mean to suggest that a party may never claim in a subsequent proceeding that a provision of a Chapter 13 plan is ambiguous and should be read one way or another. It may be the case that an approved plan contains a term that raises an unexpected problem at some point in the future. No party to a bankruptcy plan confirmation proceeding can be expected to envision every foreseeable circumstance that could require a court to construe a particular plan provision. Here, in contrast, the ambiguity about which GMAC was complaining was one that was readily identifiable during the original confirmation proceedings. After all, as GMAC points out, 11 U.S.C. § 1321 requires submission of “a [singular] plan.” A debtor is not allowed to have two plans confirmed; thus, the question whether Section 2(B) of the long form was part of the plan to be confirmed was a problem that should have been apparent to any reasonably diligent creditor. In sum, we hold that if GMAC had doubts as to what plan was being confirmed in the 1996 proceedings, it should have alerted the bankruptcy court to the ambiguity at that time, not 16 months later. We add that our resolution of this appeal on waiver grounds makes it unnecessary for us to express an opinion on whether GMAC could have been forced to accept lien stripping in a Chapter 13 proceeding over its" }, { "docid": "15918340", "title": "", "text": "OPINION AND ORDER RE CHAPTER 13 PLAN PROVISION FOR RELEASE OF LIEN RANDOLPH J. HAINES, Bankruptcy Judge. The Chapter 13 plan filed by Manuel and Maria Castro (“Debtors”) provides that upon completion of all payments to be applied to the “stripped down” lien held by General Motors Acceptance Corp. (“GMAC”) on the Debtors’ 1999 Chevrolet Lumina, the lien shall be released, even if this occurs prior to completion of all plan payments and the granting of the Debtors’ discharge. GMAC objects. Although the final car payment will be made as part of the last plan payment if all payments are made as scheduled by the plan, GMAC nonetheless maintains the lien release language of the plan is objectionable because it would permit the Debtors, for example, to trade in the car and pay off the reduced lien early. GMAC, and the cases it cites, make four arguments that release of a lien prior to completion of the Chapter 13 plan is inappropriate. First, some of GMAC’s authorities hold that early release of the hen would violate § 1325(a)(5). Second, GMAC argues release of its lien prior to all plan payments would effectively grant the Debtors a premature discharge in violation of §§ 1328(a) & (b). Third, GMAC argues that such a plan provision would permit the debtor to pay off the car lien and then convert to Chapter 7. But in Chapter 7, GMAC is protected against such hen stripping by the Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), and yet with its hen automatically released by the terms of the Chapter 13 plan, GMAC would not be able to restore itself to the position that Dewsnup guarantees it in a Chapter 7 case. GMAC argues this result would amount to a windfall for the Debtor and circumvent the holding of Dewsnup. Finally, it is argued that cancellation of the hen would violate § 349. These arguments will be addressed in turn. Release of Satisfied Liens Complies With § 1325(a)(5). GMAC references a string of cases to support its argument" }, { "docid": "19077086", "title": "", "text": "the sequence by which the equity accrued post-petition would “vest” in them, it is beside the point whether they will nominally hold this value while the case remains under Chapter 13, or the bankruptcy estate will. What is really at issue is whether GMAC’s security interest will continue to have some nexus to the vehicle, or whether the Debtors can get it severed after they pay off the secured component of GMAC’s claim but before they finish their plan in its entirety. Of all of the published Chapter 13 decisions dealing with lien-stripping as to loans secured by personal property collateral, only three — Lee, Jones, and In re Murry-Hudson, 147 B.R. 960 (Bankr.N.D.Cal.1992)—have arguably framed the issue in this way. As might have been expected, one party in this case loudly extolled the reasoning of Lee and the other roundly criticized it. In his decision, Judge O’Brien held that plan language identical to that in question here operated to the result that is urged by the Debtors. He rejected the argument of the secured creditor that the rationale of Dewsnup v. Timm extended to prohibit the use of 11 U.S.C. § 506(d) to strip down personal property liens in Chapter 13 cases. In doing so, he held: The disputed language in the [Lees’] Plan does not purport or operate to “void” or “avoid” a lien under 11 U.S.C. § 506(d). It simply provides that when the secured claim, determined through application of 11 U.S.C. §§ 506(a) and 1322(b), has been paid in full pursuant to 11 U.S.C. § 1325(a)(5)(B), the lien will have been satisfied as contemplated by the Code, and the property will vest in the [Lees] free and clear of [the secured party’s] lien as allowed and provided for by 11 U.S.C. § 1327(b) and (c). 156 B.R. at 630-631. On appeal, the District Court (MacLaugh-lin, J.) summarized the then-extant caselaw at length. Judge MacLaughlin noted that the secured creditor appeared] to concede that the plain language of section 1322(b) indicates that [the] debtors may strip down [the secured party’s] lien to the value of the collateral," }, { "docid": "15918350", "title": "", "text": "been fully satisfied in the Chapter 13 case, and therefore no lien remains to be “avoided” in the Chapter 7 case. Satisfaction of Stripped Lien Does Not Violate § 349, or Confer a Windfall Finally, although GMAC does not argue the point, some authorities conclude that the Debtor’s reading of §§ 1322 and 1325 would render § 349 ineffective. Section 349 states in pertinent part that, “unless the court, for cause, orders otherwise, a dismissal of a [bankruptcy] case ... (1) reinstates ... (C) any lien voided under 506(d)...” 11 U.S.C. § 349(b)(1)(c). “In the event of ... a dismissal [or conversion to Chapter 7] 11 U.S.C. § 349(b) restores the full pre-petition status quo as to the debtor’s property rights, and his creditor’s competing claims against them.” In re Scheierl, 176 B.R. at 504. But § 349 only restores liens avoided under § 506(d). It therefore has no bearing where § 506(a) was used to bifurcate the claim, § 1322 was used to modify the lien to secured only the allowed secured claim as so determined, and the plan payments and § 1325(a) were then used to satisfy the modified lien, not to avoid it. The Court also rejects the implication in some of GMAC’s authorities that a conversion or dismissal following satisfaction of the stripped lien will confer a windfall on the Debtors. If there is a dismissal or conversion to Chapter 7 prior to the completion of the plan by the Debtors, there is a loss of the in personam benefit of the discharge under § 1328. Consequently the Debtors will remain liable for the full balance of the debt to GMAC, and GMAC will have already received the present value of its collateral. That puts GMAC in the same economic position as if it repossessed and foreclosed on its collateral upon default. Indeed, GMAC would then be in a better position than if the Debtors had simply redeemed their car pursuant to § 722. Section 722 permits debtors to redeem their personal property collateral simply upon payment of “the amount of the allowed secured claim,” and" }, { "docid": "15918349", "title": "", "text": "Because lien stripping was permitted in Chapters IX, X, XI, XIII and XIII of the Act, the same conclusion should apply under the Code absent “some discussion in the legislative history” “to effect a major change in pre-Code practice.” Neither GMAC nor any of the case law it cites provides any such legislative history showing that the Code was intended to prohibit lien stripping in reorganization cases as it had been permitted under the Act. This analysis disposes of both aspects of the arguments based on Dewsnup. It demonstrates that §§ 506(a) and (d) should be read consistently in cases under Chapter 13, which means that § 1325(a)(5)’s requirement for retention of the hen until payment of the allowed secured claim requires only the payment of the amount determined pursuant to § 506(a). Nothing requires retention of the lien after the secured debt is satisfied. Even if there is a conversion to Chapter 7 after all required lien payments have been made, this result is not contrary to Dewsnup because the lien, as modified, has been fully satisfied in the Chapter 13 case, and therefore no lien remains to be “avoided” in the Chapter 7 case. Satisfaction of Stripped Lien Does Not Violate § 349, or Confer a Windfall Finally, although GMAC does not argue the point, some authorities conclude that the Debtor’s reading of §§ 1322 and 1325 would render § 349 ineffective. Section 349 states in pertinent part that, “unless the court, for cause, orders otherwise, a dismissal of a [bankruptcy] case ... (1) reinstates ... (C) any lien voided under 506(d)...” 11 U.S.C. § 349(b)(1)(c). “In the event of ... a dismissal [or conversion to Chapter 7] 11 U.S.C. § 349(b) restores the full pre-petition status quo as to the debtor’s property rights, and his creditor’s competing claims against them.” In re Scheierl, 176 B.R. at 504. But § 349 only restores liens avoided under § 506(d). It therefore has no bearing where § 506(a) was used to bifurcate the claim, § 1322 was used to modify the lien to secured only the allowed secured claim as" }, { "docid": "3742638", "title": "", "text": "to a Chapter 7 case that which they could not have achieved had they originally filed under Chapter 7. Such an end run around the Dewsnup decision is impermissible. Additionally, if this Court were to permit Debtors to free their property from the GMAC lien by converting, it would provide all Chapter 13 debtors with an incentive to convert the moment the secured portion of the bifurcated claim is paid in full. In many cases, this would be before any payments had been made to unsecured creditors. Such an action would deprive the unsecured creditors of their expected return from the Chapter 13 plan and would promote abuse of the bankruptcy process. CONCLUSION For the foregoing reasons it is accordingly, ORDERED that the Debtors’ Motion for Release of Lien is DENIED. It is further ORDERED that Debtors’ Objection to Claim No. 6 is SUSTAINED only to the extent of GMAC’s failure to file a proper proof of claim which lists the amount of its secured claim, for distribution purposes, as the amount of the fair market value of the automobile. . More specifically, the phrase \"secured portion of a bifurcated claim\" envisioned by § 506(a) of the Code is not the same as the term \"allowed secured claim” as it is used in § 506(d). . See In re Murry-Hudson, 147 B.R. 960, 962 (Bankr.N.D.Cal.1992) (Chapter 13 debtor is permitted not merely to alter the amount and terms of payment of her secured debts, but to hold the property free and clear of liens after paying the secured portion of the bifurcated claim; In re Lee, 156 B.R. 628 (Bankr.D.Minn.1993) aff'd, In re Lee, 162 B.R. 217 (D.Minn.1993); but see In re Hernandez, 162 B.R. 160 (Bankr.N.D.Ill.1993) (Chapter 13 debtor cannot strip down lien even though secured portion is paid in full). . Dewsnup applied to a lien on real property and in this case the lien encumbers an automobile. Although the Supreme Court intended their Dewsnup opinion to be read narrowly, see e.g. Dewsnup-U.S. at-, 112 S.Ct. at 778, this Court is persuaded that the difference in the type" }, { "docid": "15918355", "title": "", "text": "pending adoption in Congress, two Chapter XII cases approved lien stripping in a context where the debtor intended an early “cash out” of the reduced lien. This caused lenders to seek a remedy to prevent such a lien stripping, and Congress provided it in § 1111(b). That provision gives a secured lender the option of retaining its lien to the full amount of its debt, even though the collateral is worth less. The purpose is to protect the lender from an early default, or cash out, by the debtor prior to completion of the plan, exactly the remedy GMAC seeks here. But the quid pro quo that Congress required for that additional protection was that the lender waive its unsecured claim and not participate in the plan as an unsecured creditor, either for voting or distribution. Such a remedy has not been expressly made available in Chapter 13 cases, and yet the result GMAC argues for would be better than a § 1111(b) electing creditor can get in a Chapter 11 case, because GMAC retains its unsecured claim under the plan. The absence of a § 1111(b) provision in Chapter 13 indicates Congress did not intend secured creditors to retain their liens to the full amount of the debt, following a modification of the hen to equal the value of the collateral and payment of the present value of such amount through a plan. Conclusion Based on the foregoing analysis, GMAC’s objection to confirmation of the Debtor’s Chapter 13 plan is denied. . The debt exceeded $17,000 when this case was filed in January, 2002, and in July the parties agreed the value of the collateral for plan purposes was a mid-Blue Book value of $12,757.50. . The provision states in pertinent part: \"Creditors shall retain their interest in property securing their claims. They shall be paid the lesser of the debt balance or the value of the property securing their claim, together with the interest at the rate specified. Upon payment of this amount their security interest shall be released.” Chapter 13 Plan and Application for Payment of Administrative" }, { "docid": "15918353", "title": "", "text": "would give GMAC’s unsecured claim preferential treatment that is not enjoyed by other unsecured claims, because GMAC’s unsecured claim would remain secured by a contingent or springing hen, effective upon conversion. This is prohibited by § 1322(a)(3), which requires ah claims in the same class to have the same “treatment.” And it creates the anomaly that if the debtor paid the ML secured claim through the Chapter 13 plan, then converted to Chapter 7 and sought to redeem the vehicle pursuant to § 722, the debtor would have to pay the value of the collateral twice. This rather conclusively establishes whose argument creates a potential windfall. As one court noted, this overrides any “concern about the potential of abuse which could occur if the Debtors paid off the secured portion of the claim and then failed to complete the plan .... ” In re Nicewonger, 192 B.R. at 890. To graft into § 1325 the idea that § 349 might allow a holder of a secured claim to keep both a stream of payments received prior to dismissal of a case and the Ml economic value of the collateral that a chapter 13 debtor seeks to redeem through his or her plan would be an inappropriate statutory expansion. While no provision of the Code dealing with chapter 13 plan formulation can be ignored in this analysis, a Code provision dealing with potential dismissal cannot act to circumvent the rights specifically granted to chapter 13 debtors. Id. (citing In re Murry-Hudson, 147 B.R. 960, 962-964 (Bankr.N.D.Cal.1992) (stating that the creditor with a released lien is probably left in no worse condition than if the debtor had not filed bankruptcy, it having received the value of the collateral and creditor would retain its claim if such Chapter 13 were dismissed)). In fact, Congress has already heard and responded to the complaint of secured creditors whose liens might be stripped in a Chapter 11 reorganization case, and its response indicates what the Code would provide if Congress had similarly intended to protect Chapter 13 secured creditors. As noted above, while the Code was" }, { "docid": "15918344", "title": "", "text": "...” (emphasis added). The plan provision to which GMAC objects, however, does not purport to grant the Debtor a discharge, even upon full payment of GMAC’s allowed secured claim. Rather, it merely provides that GMAC’s lien shall then be released. The Debtors remain liable for the full remaining balance of GMAC’s allowed claim, as an unsecured claim determined pursuant to § 506(a), until completion of all plan payments. Consequently no premature discharge is sought or provided for by the plan provision in question. Because there is no early discharge provided by the Debtor’s plan, it does not violate § 1328. Dewsnup’s Anti-Lien-Stripping Holding Does Not Apply to Personal Property or to Chapter 13 Cases. GMAC and the conflicting case law on this point raise essentially two distinct arguments based on Dewsnup. One argument hypothesizes a conversion to Chapter 7 immediately following the Debtor’s last payment on the reduced car lien, and maintains that would constitute a Chapter 7 lien stripping that is prohibited by Dewsnup. The other argument does not hypothesize a conversion to Chapter 7, but instead maintains that § 1325(a)(5) requires retention of the lien securing the “allowed secured claim,” and that Dewsnup interprets that phrase to mean the full allowed claim, both secured and unsecured. Before addressing the details of these arguments, it is useful to recall exactly what Dewsnup held, and what it expressly declined to hold. Dewsnup was a Chapter 7 case in which a debt of $119,000 was secured by a deed of trust on two parcels of Utah farmland. The debtor filed an adversary proceeding, pursuant to § 506, seeking to “avoid” the portion of the lien exceeding the fair market value of the property, which after trial the court found to be $39,000. The Supreme Court held that “given the ambiguity in the text [of §§ 506(a) and (d) ], we are not convinced that Congress intended to depart from the pre-Code rule that hens pass through bankruptcy unaffected.” As is often noted, it limited its holding to the facts before it: “Accordingly, we express no opinion as to whether the words" }, { "docid": "8858296", "title": "", "text": "DIANE P. WOOD, Circuit Judge. At the time Diana Harvey filed for protection under Chapter 13 of the Bankruptcy Code in September 1996, she owed $16,165 to General Motors Acceptance Corporation for her 1993 Oldsmobile Cutlass Supreme. Unfortunately (at least for GMAC), the car was then worth only $9,500. GMAC had a perfected security interest in the car, but the disparity between the value of the asset and the total amount of the debt made it an unsecured creditor to the tune of $6,665. This case concerns the practice known in the typically colorful bankruptcy jargon as “lien stripping.” Harvey argues that under the terms of the Chapter 13 plan approved by the bankruptcy court, she was entitled to have the lien on the car removed as soon as she paid back the $9,500; GMAC offers a number of reasons why that should not be the case and its lien should continue until the termination of the bankruptcy proceeding or the satisfaction of the full debt, whichever comes first. The district court agreed with GMAC, but we find that GMAC’s failure to protect its rights in a timely fashion requires us to reverse. I Harvey filed for protection under Chapter 13 of the Bankruptcy Code on September 20, 1996. GMAC was an “un-dersecured” creditor, because its security interest in the vehicle covered only $9,500 of the $16,165 debt. Under § 506(a) of the Bankruptcy Code, 11 U.S.C. § 506(a), GMAC was entitled to an allowed secured claim of $9,500 and an unsecured residual claim of $6,665. Accompanying Harvey’s petition for bankruptcy relief were two documents that are the source of the controversy here. The first was a three page document to which the parties refer as the “long form plan.” It proposed a weekly payment of $128 for five years (or until the general unsecured claims were paid). It also set payment priorities for the plan. Section 2(B) of the plan, which appeared on the first page, provided that GMAC’s $9,500 secured claim was to be paid prior to its $6,665 unsecured claim. The same section that preserved GMAC’s priority" }, { "docid": "15918341", "title": "", "text": "violate § 1325(a)(5). Second, GMAC argues release of its lien prior to all plan payments would effectively grant the Debtors a premature discharge in violation of §§ 1328(a) & (b). Third, GMAC argues that such a plan provision would permit the debtor to pay off the car lien and then convert to Chapter 7. But in Chapter 7, GMAC is protected against such hen stripping by the Supreme Court’s decision in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), and yet with its hen automatically released by the terms of the Chapter 13 plan, GMAC would not be able to restore itself to the position that Dewsnup guarantees it in a Chapter 7 case. GMAC argues this result would amount to a windfall for the Debtor and circumvent the holding of Dewsnup. Finally, it is argued that cancellation of the hen would violate § 349. These arguments will be addressed in turn. Release of Satisfied Liens Complies With § 1325(a)(5). GMAC references a string of cases to support its argument that it is improper to release a creditor’s secured lien prior to discharge in Chapter 13. Specifically, GMAC relies on In re Hink, 81 B.R. 489, 490-91 (Bankr.W.D.Ark.1987), for the proposition that the requirements of section 1325(a)(5) are not met if a secured hen is released prior to discharge, and that § 1325 serves as a limitation on § 1322’s authority for plans to modify liens. Section 1322(b)(2) provides that a Chapter 13 plan may “modify the rights of holders of secured claims.” In this case, the modification consists of the reduction of the amount of the secured debt from the allowed amount of GMAC’s claim to the value of the collateral as determined according to § 506(a). This section “provides the authorization necessary for chapter 13 plans to release liens upon full payment of the secured portion of a debt.” In re Shorter, 237 B.R. 443, 445 (Bankr.N.D.Ill.1999). Nothing in § 1325 requires that the lienholder retain its lien after the secured debt has been fully satisfied. Indeed, to the contrary, § 1325 specifically" }, { "docid": "8858302", "title": "", "text": "permitted prior to the completion of a Chapter 13 plan remains an open question. See, e.g., In re Talbot, 124 F.3d 1201, 1209 n. 10 (10th Cir.1997). GMAC argues that it should not be permitted, relying principally on the Supreme Court’s analysis of Chapter 7 of the Bankruptcy Code in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), which held that a Chapter 7 debtor could not strip down its creditors’ liens on real property to the value of the collateral. In GMAC’s view, there is no reason to treat Chapter 13 and personal property differently. Were the opposite rule to prevail, GMAC foresees abusive debtor practices: a cagey debtor could begin under Chapter 13, strip a creditor’s lien, then convert to Chapter 7 as allowed by 11 U.S.C. § 1307 and thwart the Deivsnup rule. Lien stripping would also, in GMAC’s opinion, undermine its rights under § 349 of the Bankruptcy Code, under which its lien is reinstated in the event Harvey’s case is dismissed. Harvey counters by pointing to 11 U.S.C. § 1322(b)(2) (allowing a modification of the secured creditors’ rights) and § 1325(a)(5) (allowing confirmation of plans that protect allowed secured claims), which she thinks can be read together to allow lien stripping. She further notes that there is no policy problem here since, under her plan, GMAC gets everything that it has a right to expect. If, instead of restructuring under Chapter 13, Harvey simply defaulted, GMAC could seize the car and get $9,500. Harvey would then still owe $6,665 (assuming a deficiency judgment were allowed). GMAC would collect its $6,665 along with all of the other unsecured creditors. Harvey notes that her plan produces precisely the same result— GMAC retains the lien on the car until it receives $9,500, at which point it joins all of Harvey’s other unsecured creditors and hopes for the best. Ill It is a well-established principle of bankruptcy law that a party with adequate notice of a bankruptcy proceeding cannot ordinarily attack a confirmed plan. 11 U.S.C. § 1327(a). See also In re Greenig, 152" }, { "docid": "15918354", "title": "", "text": "prior to dismissal of a case and the Ml economic value of the collateral that a chapter 13 debtor seeks to redeem through his or her plan would be an inappropriate statutory expansion. While no provision of the Code dealing with chapter 13 plan formulation can be ignored in this analysis, a Code provision dealing with potential dismissal cannot act to circumvent the rights specifically granted to chapter 13 debtors. Id. (citing In re Murry-Hudson, 147 B.R. 960, 962-964 (Bankr.N.D.Cal.1992) (stating that the creditor with a released lien is probably left in no worse condition than if the debtor had not filed bankruptcy, it having received the value of the collateral and creditor would retain its claim if such Chapter 13 were dismissed)). In fact, Congress has already heard and responded to the complaint of secured creditors whose liens might be stripped in a Chapter 11 reorganization case, and its response indicates what the Code would provide if Congress had similarly intended to protect Chapter 13 secured creditors. As noted above, while the Code was pending adoption in Congress, two Chapter XII cases approved lien stripping in a context where the debtor intended an early “cash out” of the reduced lien. This caused lenders to seek a remedy to prevent such a lien stripping, and Congress provided it in § 1111(b). That provision gives a secured lender the option of retaining its lien to the full amount of its debt, even though the collateral is worth less. The purpose is to protect the lender from an early default, or cash out, by the debtor prior to completion of the plan, exactly the remedy GMAC seeks here. But the quid pro quo that Congress required for that additional protection was that the lender waive its unsecured claim and not participate in the plan as an unsecured creditor, either for voting or distribution. Such a remedy has not been expressly made available in Chapter 13 cases, and yet the result GMAC argues for would be better than a § 1111(b) electing creditor can get in a Chapter 11 case, because GMAC retains" }, { "docid": "8858300", "title": "", "text": "which was where section 2(B) was to be found. The bankruptcy court must have found this a strange assertion, since the numbers “2” and “3” that appear prominently on the bottom of the pages of that GMAC conceded it received should have put it on notice that something was probably missing. In any event, the court found that GMAC received both plans in their entirety. Since GMAC does not argue on appeal that this finding was clearly erroneous, we take as an established fact that it received all of Harvey’s original long form plan. Nevertheless, on consideration of Harvey’s motion to modify her plan, the bankruptcy court decided to construe the long form and short form as creating two distinct plans. Next, it decided not to apply the usual rule precluding a collateral attack on a confirmed plan, because it could not tell which plan was confirmed. This confusion, the court believed, was Harvey’s fault, because she did not make it clear on September 20,1996, whether the court was confirming the long or the short plan. Applying the principles that bankruptcy plans are to be treated as contracts and interpreted under state law, see Hillis Motors, Inc. v. Hawaii Auto. Dealers’ Ass’n, 997 F.2d 581, 588 (9th Cir. 1993), and that ambiguity in a contract should be construed strictly against the drafter, see Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind. 1995), the court decided that Harvey should bear the consequences of any uncertainty about which plan was confirmed. And those consequences were dire: if the confirmed plan had been the short form version, there was no hen-stripping provision and Harvey had no case. This rationale led the bankruptcy court to grant GMAC’s motion to dismiss the action. The district court affirmed, agreeing with the bankruptcy court’s ambiguity analysis and concluding that if Harvey could extinguish GMAC’s lien prior to completion of her payment schedule, it would undermine the purposes of Chapter 13. II The practice of lien stripping gives rise to a set of difficult questions under bankruptcy law. Whether lien stripping over a creditor’s objection is" }, { "docid": "15918351", "title": "", "text": "so determined, and the plan payments and § 1325(a) were then used to satisfy the modified lien, not to avoid it. The Court also rejects the implication in some of GMAC’s authorities that a conversion or dismissal following satisfaction of the stripped lien will confer a windfall on the Debtors. If there is a dismissal or conversion to Chapter 7 prior to the completion of the plan by the Debtors, there is a loss of the in personam benefit of the discharge under § 1328. Consequently the Debtors will remain liable for the full balance of the debt to GMAC, and GMAC will have already received the present value of its collateral. That puts GMAC in the same economic position as if it repossessed and foreclosed on its collateral upon default. Indeed, GMAC would then be in a better position than if the Debtors had simply redeemed their car pursuant to § 722. Section 722 permits debtors to redeem their personal property collateral simply upon payment of “the amount of the allowed secured claim,” and no one could logically argue the creditor would still be entitled to retain a lien on the collateral following such redemption. The Chapter 13 plan is essentially a deferred redemption, with a requirement that the creditor be paid the present value of the redemption amount by virtue of § 1325(a)(5)(B)(ii). There would be no windfall from a subsequent conversion, as the Debtor has already paid the value required by § 722, with interest. And, having paid that greater amount, debtors would have every reason to complete their plans and obtain a discharge, rather than again become liable for the full balance. “Debtors have a substantial economic in centive to keep the plan going to full consummation and obtain a discharge under § 1328(a) for all allowed unsecured claims.... ” In re Johnson, 213 B.R. at 557. To the contrary, for GMAC to receive the full value of its collateral and still retain a hen to secure the unsecured portion of its debt would be to give GMAC a windfall compared to other unsecured debts. It" }, { "docid": "8858301", "title": "", "text": "plan. Applying the principles that bankruptcy plans are to be treated as contracts and interpreted under state law, see Hillis Motors, Inc. v. Hawaii Auto. Dealers’ Ass’n, 997 F.2d 581, 588 (9th Cir. 1993), and that ambiguity in a contract should be construed strictly against the drafter, see Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind. 1995), the court decided that Harvey should bear the consequences of any uncertainty about which plan was confirmed. And those consequences were dire: if the confirmed plan had been the short form version, there was no hen-stripping provision and Harvey had no case. This rationale led the bankruptcy court to grant GMAC’s motion to dismiss the action. The district court affirmed, agreeing with the bankruptcy court’s ambiguity analysis and concluding that if Harvey could extinguish GMAC’s lien prior to completion of her payment schedule, it would undermine the purposes of Chapter 13. II The practice of lien stripping gives rise to a set of difficult questions under bankruptcy law. Whether lien stripping over a creditor’s objection is permitted prior to the completion of a Chapter 13 plan remains an open question. See, e.g., In re Talbot, 124 F.3d 1201, 1209 n. 10 (10th Cir.1997). GMAC argues that it should not be permitted, relying principally on the Supreme Court’s analysis of Chapter 7 of the Bankruptcy Code in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), which held that a Chapter 7 debtor could not strip down its creditors’ liens on real property to the value of the collateral. In GMAC’s view, there is no reason to treat Chapter 13 and personal property differently. Were the opposite rule to prevail, GMAC foresees abusive debtor practices: a cagey debtor could begin under Chapter 13, strip a creditor’s lien, then convert to Chapter 7 as allowed by 11 U.S.C. § 1307 and thwart the Deivsnup rule. Lien stripping would also, in GMAC’s opinion, undermine its rights under § 349 of the Bankruptcy Code, under which its lien is reinstated in the event Harvey’s case is dismissed. Harvey counters by pointing" }, { "docid": "3694429", "title": "", "text": "DECISION AND ORDER RUDOLPH T. RANDA, District Judge. The issue in this bankruptcy appeal arises from a familiar scenario after the recent collapse of the housing market: whether a chapter 13 debtor can “strip-off’ a wholly unsecured secondary or junior lien on the debtor’s principal residence when the debtor is ineligible for discharge because of a prior chapter 7 discharge pursuant to 11 U.S.C. § 1328(f)(1) (no chapter 13 discharge if the debtor obtained a chapter 7 discharge within the past 4 years). The bankruptcy court (Hon. Pamela Pepper) said no, dismissing the debtor’s adversary proceeding against GMAC Mortgage, LLC, the secondary mortgage holder. Judge Pepper’s decision is part of a mounting split of authority among bankruptcy courts across the country. In re Jarvis, 390 B.R. 600 (Bankr.C.D.Ill.2008) (no strip-off pursuant to § 1328(f)); In re Fenn, 428 B.R. 494 (Bankr.N.D.Ill.2010) (same); In re Gerardin, 447 B.R. 342 (Bankr.S.D.Fla.2011) (same); In re Tran, 431 B.R. 230 (Bankr.N.D.Cal.2010)(§ 1328(f) does not preclude strip-off); In re Hill, 440 B.R. 176 (Bankr.S.D.Cal.2010) (same); In re Casey, 428 B.R. 519 (Bankr.S.D.Cal.2010) (same). For the reasons that follow, the Court agrees with the latter group of decisions which hold that a wholly unsecured junior lien on the principal residence of a debtor can be stripped-off in chapter 13 despite the operation of § 1328(f)(1). In October of 2004, the debtor-appellant purchased homestead real estate located at 3166 N. 50th Street, Milwaukee, Wisconsin. In February 2007, the debtor obtained a second mortgage on her home. Both mortgages are held by GMAC Mortgage. The fair market value of the property is $48,000.00. The balance on the first mortgage is $56,800.00; the balance on the second mortgage is $48,000.00. On March 29, 2010, the debtor received a chapter 7 discharge. The debtor filed for chapter 13 bankruptcy on April 29. In an adversary proceeding, the debtor asked the bankruptcy court to treat GMAC’s second mortgage as an unsecured claim and to “strip-off’ GMAC’s secondary lien rights on her property. GMAC filed a claim on the first mortgage, valuing its lien at $67,911.16. GMAC did not appear in the" }, { "docid": "8858297", "title": "", "text": "but we find that GMAC’s failure to protect its rights in a timely fashion requires us to reverse. I Harvey filed for protection under Chapter 13 of the Bankruptcy Code on September 20, 1996. GMAC was an “un-dersecured” creditor, because its security interest in the vehicle covered only $9,500 of the $16,165 debt. Under § 506(a) of the Bankruptcy Code, 11 U.S.C. § 506(a), GMAC was entitled to an allowed secured claim of $9,500 and an unsecured residual claim of $6,665. Accompanying Harvey’s petition for bankruptcy relief were two documents that are the source of the controversy here. The first was a three page document to which the parties refer as the “long form plan.” It proposed a weekly payment of $128 for five years (or until the general unsecured claims were paid). It also set payment priorities for the plan. Section 2(B) of the plan, which appeared on the first page, provided that GMAC’s $9,500 secured claim was to be paid prior to its $6,665 unsecured claim. The same section that preserved GMAC’s priority specifically mentioned the lien that GMAC retained on Harvey’s Oldsmobile. Through the following language, this section provided for the stripping of the lien: “[ujpon payment of the allowed secured claim as indicated, any lien held by GMAC on said vehicle shall be void and title to said vehicle shall be released to Debtor.” Finally, the plan arranged for priority payment to another secured lender as well as to holders of claims entitled to priority under 11 U.S.C. § 507. Along with this detailed proposal, Harvey submitted a single page document (the “short form plan”) that, from all appearances, summarized the terms of the longer form. It, too, established a $128 weekly payment for a five year period. It then stipulated that the order of payments would be (1) secured claims, (2) § 507 priority claims, and (3) unsecured claims. Unlike the long form, it did not mention the cancellation of GMAC’s lien after Harvey had finished paying for the secured portion of GMAC’s claim. Instead, it said only that “[h]olders of allowed secured claims shall" }, { "docid": "8858303", "title": "", "text": "to 11 U.S.C. § 1322(b)(2) (allowing a modification of the secured creditors’ rights) and § 1325(a)(5) (allowing confirmation of plans that protect allowed secured claims), which she thinks can be read together to allow lien stripping. She further notes that there is no policy problem here since, under her plan, GMAC gets everything that it has a right to expect. If, instead of restructuring under Chapter 13, Harvey simply defaulted, GMAC could seize the car and get $9,500. Harvey would then still owe $6,665 (assuming a deficiency judgment were allowed). GMAC would collect its $6,665 along with all of the other unsecured creditors. Harvey notes that her plan produces precisely the same result— GMAC retains the lien on the car until it receives $9,500, at which point it joins all of Harvey’s other unsecured creditors and hopes for the best. Ill It is a well-established principle of bankruptcy law that a party with adequate notice of a bankruptcy proceeding cannot ordinarily attack a confirmed plan. 11 U.S.C. § 1327(a). See also In re Greenig, 152 F.3d 631, 635 (7th Cir.1998); Spartan Mills v. Bank of America Illinois, 112 F.3d 1251, 1255 (4th Cir.1997); Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir.1995). The reason for this is simple and mirrors the general justification for res judicata principles — after the affected parties have an opportunity to present their arguments and claims, it is cumbersome and inefficient to allow those same parties to revisit or recharacterize the identical problems in a subsequent proceeding. This is especially true in the bankruptcy context, where a confirmed plan acts more or less like a court-approved contract or consent decree that binds both the debtor and all the creditors. Bringing the various creditors’ interests to the table once is difficult enough; permitting one of the creditors to launch a later attack on a confirmed plan would destroy the balance pf interests created in the initial proceedings. To avoid this problem, GMAC asserts that the very filing of two plan documents (the long form and the short form) created an ambiguity with respect to lien" } ]

[ { "docid": "13425691", "title": "", "text": "gave his complete name, the date and amount of the sentence, a statement of the offense (“Harrison Nar. Act. —Charge”), the place of confinement (“200 19th St. S. E. Wash. D.C.”—which is the address of the District of Columbia Jail), and his signature. In addition, in the body of the letter, defendant wrote in part as follows: “Your Honor, I think everything depend on my makeing bond. I told you I thought I needed help. I also think I need to start helping my self. I must somehow get a job and start paying a good Attorney, this time. And if I can get a reversal.” (Emphasis added.) The above letter, in the circumstances of this case, must be deemed to satisfy the requirements of Rule 37(a) (1), Fed. R. Crim.P., which reads in pertinent part as follows: “Notice of Appeal. An appeal permitted by law from a district court to a court of appeals is taken by filing with the clerk of the district court a notice of appeal in duplicate. * * * The notice of appeal shall set forth the title of the case, the name and address of the appellant and of appellant’s attorney, a general statement of the offense, a concise statement of the judgment or order, giving its date and any sentence imposed, the place of confinement if the defendant is in custody and a statement that the appellant appeals from the judgment or order. The notice of appeal shall be signed by the appellant or appellant’s attorney •}p # # » The statement, “if I can get a reversal,” amounts to. a statement that he appeals from the judgment. The fact that defendant did not send two copies of his letter, that he did not file the letter with the clerk, that he omitted the exact title of the case, and that he failed to state the name and address of his attorney, are completely inconsequential omissions in the context of this case. Cf. O’Neal v. United States, 272 F.2d 412 (5th Cir. 1959). Therefore, it is by the Court this 22nd day" } ]

[ { "docid": "23181105", "title": "", "text": "filed October 20, 1967, found the basis asserted for relief was substantially the same as had been previously urged and rejected. The motion was denied without a hearing, the ruling being based largely upon this court’s previous determination that no jurisdiction existed to consider the appeal. As a basis for a reversal Williams, represented here by court-appointed counsel, urges: 1. Williams’ letter to the presiding judge purportedly written and mailed on May 7, 1964, is sufficient to constitute a notice of appeal from his conviction. 2. If no timely appeal was filed, Williams’ deprivation of effective assistance of counsel resulting in the failure to preserve his right to a direct appeal should be remedied under the provisions of § 2255. 3. Williams did not knowingly and willingly waive his right to appeal or to the effective assistance of counsel following his sentence. Williams at the plenary hearing held by the trial court at the direction of this court on April 19, 1968, for the first time presented what he asserted to be a copy of a letter written by him from the jail to the presiding judge, which he testified he had delivered to an attendant at the city jail for mailing on May 7, 1964, the date the copy of the letter bears. The Government concedes that a timely letter to the judge or clerk stating defendant’s desire to appeal may serve as a notice of appeal. See Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760; Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; Howard v. United States, 8 Cir., 396 F.2d 867; United States v. Duncan, 7 Cir., 310 F.2d 367. It is also conceded that the purported letter is sufficient in form to constitute a notice of appeal. The Government takes the position that the original of the letter, of which a copy was produced, was not in fact either written or mailed at any time prior to the expiration of the time for appeal from the conviction. In support thereof, it is urged that if such" }, { "docid": "22724290", "title": "", "text": "Circuit 33 (b) (application for copies of stenographic transcript of trial proceedings to be made within 3 days of filing of notice of appeal, or within 10 days if appellant is incarcerated), 33 (c) (appellant’s designation of record on appeal to be filed within 20 days of filing notice of appeal), 18 (a) (appellant’s briefs due within 20 days of filing record on appeal). Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U. S. 220, a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals. See, e. g., Lemke v. United States, 346 U. S. 325 (notice of appeal filed prior to judgment); O’Neal v. United States, 272 F. 2d 412 (C. A. 5th Cir.) (appeal bond filed in District Court); Tillman v. United States, 268 F. 2d 422 (C. A. 5th Cir.) (application for leave to appeal in forma pauperis filed in District Court); Belton v. United States, 104 U. S. App. D. C. 81, 259 F. 2d 811 (letter written to District Court); Williams v. United States, 88 U. S. App. D. C. 212, 188 F. 2d 41 (notice of appeal delivered to prison officials for forwarding to District Court). See also Jordan v. United States District Court, 98 U. S. App. D. C. 160, 233 F. 2d 362, vacated on other grounds sub nom. Jordan v. United States, 352 U. S. 904 (mandamus petition filed in Court of Appeals held equivalent of notice of appeal from judgment in proceeding pursuant to 28 U. S. C. § 2255); West v. United States, 94 U. S. App. D. C. 46, 222 F. 2d 774 (petition for leave to appeal in forma pauperis filed in Court of Appeals held equivalent in § 2255 ease). Further, Fed. Rules Crim. Proc. 37 (a)(2) expressly provides: “When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal" }, { "docid": "21222907", "title": "", "text": "substantial. The scope of review was not altered. There was no question of the good faith of petitioners, of dilatory tactics, or of frivolous appeals. * * * The failure to comply with statutory requirements * * * is not necessarily a jurisdictional defect.” 311 U.S. at 582-583, 61 S.Ct. at 333. Some time after the decision in the Prudence Securities Advisory Group case, this Court, while explaining the minimum requirements for the perfection of an appeal, had occasion to discuss that case, and other cases, involving the filing of a notice of appeal in the wrong court. Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163 (2 Cir. 1946). Writing for the majority, Judge Learned Hand, dismissing an appeal where a notice had merely been served on an adverse party and had been filed in no court whatsoever, stated that “some paper must be filed in at least one court or the other, to constitute a notice of appeal under Rule 73(a),” and averred that “[t]he least requirement, which will be tolerable, is that some paper shall be accessible in the records of a court upon which both judges and parties can rely.” 159 F.2d at 166. More recently, the Court of Appeals for the District of Columbia Circuit, in a case strikingly like the one at bar, relied heavily on both of the foregoing cases in holding that an indigent lay defendant’s filing of a petition for permission for leave to appeal in forma pauperis with the Court of Appeals, which, if filed with the district court where it should have been, would have constituted a valid notice of appeal, was, itself, enough to vest the appellate court with power to hear and determine the appeal. Gerringer v. United States, 213 F.2d 346 (D.C.Cir. 1954). See also Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962), and cases there cited, for an indication of the liberal view which federal courts have taken of papers indigent and incarcerated defendants have filed purporting to be notices of appeal. In" }, { "docid": "21222908", "title": "", "text": "is that some paper shall be accessible in the records of a court upon which both judges and parties can rely.” 159 F.2d at 166. More recently, the Court of Appeals for the District of Columbia Circuit, in a case strikingly like the one at bar, relied heavily on both of the foregoing cases in holding that an indigent lay defendant’s filing of a petition for permission for leave to appeal in forma pauperis with the Court of Appeals, which, if filed with the district court where it should have been, would have constituted a valid notice of appeal, was, itself, enough to vest the appellate court with power to hear and determine the appeal. Gerringer v. United States, 213 F.2d 346 (D.C.Cir. 1954). See also Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962), and cases there cited, for an indication of the liberal view which federal courts have taken of papers indigent and incarcerated defendants have filed purporting to be notices of appeal. In our view these cases provide us with more than ample authority to support our determination that we should hear and decide this appeal, despite a failure by appellant to comply with the letter of Rule 73(a). Appellant’s departure from the rule cannot be regarded as having been so great that appellees will be seriously deprived of a substantial right if the appeal is heard. No question exists as to appellant’s good faith in attempting to perfect his appeal in the manner he did. Indeed, it appears that appellant may well have been led into error by the lower court’s statement, made when it denied leave to appeal in forma pauperis, that “This denial does not prevent the plaintiff from applying to the Court of Appeals for the Second Circuit, United States Courthouse, Foley Square, New York City, for a certificate of probable cause and for permission to prosecute an appeal in forma pauperis.” While someone more versed in appellate procedure than appellant might have been expected to know that this statement did not apply to" }, { "docid": "1718202", "title": "", "text": "part: A notice of appeal must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal.... A notice of appeal also must designate the judgment, order, or part thereof appealed from, and must name the court to which the appeal is taken. An appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice. Fed.R.App.P. 3(c). As the last-quoted sentence of Rule 3 indicates, the requirement of timely notice of appeal will be satisfied “if the litigant’s action is the functional equivalent of what the rule requires,” Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 681-82, 116 L.Ed.2d 678 (1992), and we take “a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal.” Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 919 n. 5, 8 L.Ed.2d 21 (1962); see also Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir.1990). A pro se party’s filing will suffice as a notice of appeal so long as it “evinces an intent to appeal an order or judgment of the district court and appellee has not been prejudiced or misled by the notice.” Id. Under this liberal standard, Barrett’s Motion for Clarification qualifies as a notice of appeal. His supporting affidavit expressly states that “[t]his is a notice of appeal in the event the Honorable Court is of the opinion that appealing is the appropriate action,” and thus clearly evinces an intent to appeal, notwithstanding that the notice was combined with the motion in one document. See Hatfield v. Board of County Comm’rs, 52 F.3d 858, 861-62 (10th Cir.1995) (notice of appeal not invalidated “by its presentation in the same document as a separate motion”); see also Smith, 502 U.S. at 249, 112 S.Ct. at 682 (appellate brief may serve as notice of appeal). Petitioner’s motion also adequately “speeif[ies] the parties taking the appeal," }, { "docid": "15410486", "title": "", "text": "the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v. 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," }, { "docid": "7747327", "title": "", "text": "S.Ct. 151, 1 L.Ed.2d 114 (1956) (petition for mandamus in court of appeals) ; Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969) (application for extension of time to file notice of appeal) ; Richey v. Wilkens, 335 F.2d 1, 4-5 (2d Cir. 1964) (notice of appeal in court of appeals rather than district court) ; Frace v. Russell, 341 F.2d 901, 902 (3d Cir.), cert. denied, 382 U.S. 863, 86 S.Ct. 127, 15 L.Ed.2d 101 (1965) (“brief for appeal” in court of appeals) ; Holley v. Capps, 468 F.2d 1366, 1367-1368 (5th Cir. 1972) (motion for certificate of probable cause in habeas corpus proceeding) ; Riffle v. United States, 299 F.2d 802 (5th Cir. 1962) (letter to judge of court of appeals) ; Carter v. Campbell, 285 F.2d 68, 71-72 (5th Cir. 1960) (application to court of appeals for leave to proceed on original record, and grant of such leave) ; O’Neal v. United States, 272 F.2d 412, 413 (5th Cir. 1959) (appeal bond) ; Davis v. Department of Corrections, 446 F.2d 644, 645 (9th Cir. T971) (motion for certificate of probable cause). See also Reconstruction Finance Corp. v. Prudence Securities Advisory Group, 311 U.S. 579, 582-583, 61 S.Ct. 331, 85 L.Ed. 364 (1941), and note 17, infra. . The court’s reference here is to former Fed.R.Civ.P. 73(a), now incorporated without change of substance in Fed.R.App.P. 4(a). See Advisory Committee Note to Fed.R.App.P. 4(a). . Crump v. Hill, 104 F.2d 36, 38 (5th Cir. 1939). In this case, no notice of appeal was actually filed, but within the appeal period the appellant did procure and file with the clerk the appellee’s written acknowledgement of service of a notice of appeal and of a designation of record, and her entry of appearance to an appeal. It was held that this was a sufficient compliance with Fed. R.Civ.P. 73. . The 30th day fell on Saturday, January 19. However, under the time computation rule contained in Fed.R.App.P. 26(a), the “last day of the period shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event" }, { "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": "13310106", "title": "", "text": "itself filed within 10 days of the judgment of conviction. To the contrary, the Government argues that a new trial motion, not based on newly discovered evidence, filed more than five days after the verdict and so destined to be rejected as untimely under R.ule 33 should not serve to give defendant an extension of time to appeal since there is no possibility the appeal will be avoided by a grant of the motion. Further support is found by the Government in a number of courts of appeals’ decisions adopting this view, in the history of Rule 37 (a)(2), and in a very recent amendment to that Rule which plainly adopts the Government’s basic approach for the future. We believe competing interests outweigh the Government’s arguments. The literal language of Rule 37 (a) (2) sustains petitioner and even a perceptive reading of Rules 33 and 37 (a)(2) together would not dispel all doubt. A criminal appeal is at stake and under Fed. Rule Crim. Proc. 45 (b) the period for taking it may not be extended, while the rare and relatively brief delay in appeal allowed by petitioner’s construction causes very little injury to the Government. In these circumstances a reading that departs from the literal terms of Rule 37 (a)(2) by constricting the opportunity to appeal seems to us inappropriate. Because of our disposition we need not consider a suggestion by the Government, apparently not made to or passed on by the Court of Appeals in this case but first tentatively raised after the grant of certiorari and only later pressed upon us in oral argument, that on the present facts a motion for bail bond filed by petitioner nine days after his conviction may do unintended service as a notice of appeal. Reversed and remanded. Mr. Justice Black concurs in the Court’s judgment for the reasons stated in the opinion of the Court of Appeals for the Fifth Circuit in O’Neal v. United States, 272 F. 2d 412. The amendment, approved by the Court on February 28, 1966, and absent disapproval by Congress effective on July 1, 1966," }, { "docid": "6513969", "title": "", "text": "the same day. Having held that the petition would be treated as a notice of appeal the ten-day rule was out of the case. The Supreme Court recognized this principle in Coppedge v. United States, supra, where in a footnote it is said: “Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U.S. 220, [80 S.Ct. 282, 4 L.Ed.2d 259,] a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals.” Among other cases cited to the above case is Tillman v. United States, supra. The question related to the content of the paper to satisfy the requirement that it be a notice of appeal and was wholly unrelated to the time within which the notice must be filed. The affidavit of Fallen recites that he was unable to write to the court until January 23, 1962. He does not'say that he then attempted 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" }, { "docid": "21491696", "title": "", "text": "MURRAH, Chief Judge. Peoples was convicted and sentenced pursuant to jury trial on a one-count indictment charging him with unlawfully entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). On trial of the case he was represented by retained counsel. He was granted leave to appeal from that judgment in forma pauperis and competent counsel was appointed to represent him. After hearing oral argument on the merits and upon careful consideration of the briefs and record submitted, this Court in a per curiam opinion dismissed the appeal as untimely for failure to comply with the jurisdictional requirements of Rule 37(a) (2), F.R.Crim.P. See: Peoples v. United States (10 CA), 324 F.2d 689, citing United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. Having granted certiorari, the Supreme Court vacated our judgment of dismissal and remanded the case “for consideration in the light of Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed. 760, decided this date.” Peoples v. United States, 378 U.S. 586, 84 S.Ct. 1929, 12 L.Ed.2d 1040. We think this case clearly distinguishable-, from the facts in Fallen. In the Fallen case, letters written by the convicted defendant and addressed' to the Clerk of the Court “asking for a. new trial and for an appeal” were received by the Clerk four days after the-expiration of the time for filing notice-of appeal prescribed by Rule 37(a) (2).. The letters were dated within the ten-day pex-iod and if promptly mailed would have been, in the course of normal events,, received by the Clerk within the prescribed period. On the basis of the record, there was no reason to doubt that the date on the letters was accurate and that they were deposited with the prison authorities for mailing. In these circumstances, “petitioner had done all that: could reasonably be expected to get the letter to its destination within the required 10 days.” He was held, therefore, not to be chargeable with the-delay. In short, the timely deposit with, the prison authorities constituted a timely filing within" }, { "docid": "6513982", "title": "", "text": "of the Chief Justice, speaking for the Supreme Court, in Coppedge v. United States, 369 U.S. 441, 442, n. 5, as follows: “Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U.S. 220 [80 S.Ct. 282, 4 L.Ed.2d 259], a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals.” My brothers fail to note, however, that among a number of examples which the Chief Justice cites is “Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41 (notice of appeal delivered to prison officials for forwarding to District Court).” The present holding is directly in conflict with the Williams case thus recently and favorably cited by the Supreme Court. My brothers do cite the Williams case along with Wallace v. United States, 8 Cir., 1949, 174 F.2d 112, in their footnote 5 appended to the text in which they recognize that “ * * * a more liberal rule may elsewhere prevail.” They might well have noted other cases in support of that text; for example, West v. United States, 94 U.S.App.D.C. 46, 1954, 222 F.2d 774, 778, 779; Oddo v. United States, 2 Cir., 1949, 171 F.2d 854, 855; and Remine v. United States, 6 Cir., 1947, 161 F.2d 1020, 1021. In the case last cited it was said: “The motion of the United States to dismiss this convict’s appeal in forma pauperis is denied. In the circumstances, the timeliness prescribed by the Rules of Criminal Procedure, rule 37, 18 U.S.C.A. following section 687, could not reasonably be required of the appellant, confined in a penitentiary of the United States some 2600 miles away from the district court in which he was convicted and sentenced.” In the instant case, Judge Simpson found: “It is clear, nevertheless, that twelve days after trial and eight days after sentence, Mr. Fallen desired to enter (a) Motion for New Trial, (b) Notice of Appeal, and (c) to be permitted to appeal" }, { "docid": "21496052", "title": "", "text": "to initiate an appeal after representing to the petitioner that all the necessary appeal papers had been filed. It is clear that an appeal is a matter of right under the decisions of the Supreme Court in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21, and Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442. The Supreme Court has also stated that the defendant must comply with the time limitations provided for the various procedural steps, and specifically that a timely notice of appeal must be filed. The time for the filing of a notice of appeal under Rule 37 of the Federal Rules of Criminal Procedure is a jurisdictional matter. We have held that the taking of an appeal within the prescribed time is “mandatory” and “jurisdictional.” Yates v. United States, 308 F.2d 737 (10th Cir.) ; Peterkin v. United States, 311 F.2d 219 (10th Cir.); Wilkinson v. United States, 278 F.2d 604 (10th Cir.), cert. den. 363 U.S. 829, 80 S.Ct. 1600, 4 L.Ed.2d 1524. The Supreme Coui't has held that the time limitations for the filing of notice of appeal cannot be extended by the court even in instances of excusable neglect. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. The Supreme Court in Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, however, held that a written communication which could be considered as a notice of appeal was timely although it was delayed in the mail. The dissenting Justices in the cited case would have decided the issue on the basis that the appellant, by lodging his “notice” with the prison officials, had complied with the rule. We do not have before us an instance of such an attempted written notice of appeal made within the prescribed time period, nor do we have the issues surrounding a verbal request for appeal which were considered by this court in Peoples v. United States, 324 F.2d 689, and 337 F.2d 91 (10th Cir.). However in this last cited case, there" }, { "docid": "16921272", "title": "", "text": "of facts as of record” and denied the same as being without merit, whether considered as a motion to withdraw a guilty plea under Rule 32(d) or as a motion to vacate sentence under 28 U.S.C. § 2255. And see: Ching v. United States, 10 Cir., 292 F.2d 31. We must first consider the Government’s motion to dismiss the appeal as untimely, for failure to comply with the jurisdictional requirements of Rule 37(a) (2), F.R.Crim.P. See: Peoples v. United States (10 CA), 324 F.2d 689, remanded 378 U.S. 586, 84 S.Ct. 1929, 12 L.Ed.2d 1040 on remand 337 F.2d 91 (September, 1964). The Court’s order denying the instant motion was filed May 13, 1964, but the appellant apparently did not receive it until May 25th. The requisite notice of appeal was notarized on May 26th, and received by the clerk for filing on June 1, 1964. The ten-day limitation period provided by Rule 37(a) (2) commences on the date of “actual notice or receipt of the clerk’s notice rather than from the date of the entry of the order.” Lohman v. United States, 6 Cir., 237 F.2d 645. And see: West v. United States, 94 U.S.App.D.C. 46, 222 F.2d 774; and Carter v. United States, 10 Cir., 168 F. 2d 310. Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760; and Peoples v. United States (10 CA), 337 F.2d 91 (1964). The notice of appeal having been filed within ten days from receipt of the Court’s order, it was timely. The execution of the consent to transfer forms is conceded. The contention is, however, that actual receipt of the Informations is prerequisite to the jurisdiction of the sentencing court; and, that the record does not conclusively show this crucial fact. But, each consent form signed by appellant and witnessed by his attorney contained a clause expressly reciting that, “I, John Jake Ching, defendant in the above-entitled and numbered ease, do hereby acknowledge receipt of a copy of the Criminal Information pending against me in the above case.” In these circumstances, there are no grounds for" }, { "docid": "14056538", "title": "", "text": "PER CURIAM. The appeal from the judgment of conviction was dismissed upon the ground that no notice of appeal other than an oral notice was filed with the Clerk of the District Court within ten days after the entry of the judgment. Rule 37(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. O’Neal v. United States of America, 5 Cir., 1959, 264 F.2d 809. None of the counsel, either for the appellant or for the appellee, have ever called to this Court’s attention the “Appeal Bond” signed by the appellant and his surety, approved by the Judge, and filed with the Clerk on the 16th day of October 1958, after the judgment of conviction had been entered on the same day. That bond was discovered by the Court itself when reading the record in connection with a subsequent appeal from the judgment denying the defendant’s motion for new trial. The recitals of that bond are entirely adequate to be accepted as a notice of appeal under Rule 37(a), supra, and to vest this Court with jurisdiction. The judgment dismissing the appeal was rendered March 18, 1959, rehearing denied May 1, 1959. This Court still has the power to vacate that judgment. See Rules 1 and 45(c), Federal Rules of Criminal Procedure; Harrison v. United States, 5 Cir., 1951, 191 F.2d 874. As far back as 1827, it was declared by Mr. Justice Story, speaking for the Supreme Court: “Every court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice; and we do not doubt, that this court possesses the power to reinstate any cause, dismissed by mistake.” The Palmyra, 12 Wheat, 1, 10, 25 U.S. 1, 10, 6 L.Ed. 531. The judgment of this Court dismissing the appeal from the judgment of conviction is vacated and said appeal is reinstated. Further oral argument on the merits is not needed. The appellant may file at least four copies of an additional brief on the merits, typed if he so desires, within thirty days from this date, and the appellee may file an" }, { "docid": "6513968", "title": "", "text": "2nd Cir. 1958, 251 F.2d 223. The jurisdiction ¡of Courts of Appeal is statutory and if the requirements of the statute are not met the jurisdiction is not invoked. The rules are designed to fix a definite, ascertainable point in time when litigation shall be at an end unless an appeal has been taken within the prescribed time. Huff v. United States, 5th Cir. 1951, 192 F.2d 911, cert. den. 342 U.S. 946, 72 S.Ct. 560, 96 L.Ed. 703. See Brant v. United States, 5th Cir. 1954, 210 F.2d 470. Chief Judge Simpson felt that it was clear from an examination of Tillman v. United States, 5th Cir. 1959, 268 F.2d 422, that Fallen’s letters constituted timely notice of appeal. In the Tillman case it was held that the timely filing of .a petition for leave to appeal in forma pauperis will satisfy the requirement for the timely filing of a notice of appeal. The judgment of conviction in the Tillman case was entered on June 27, 1958, and the forma pauperis petition was filed the same day. Having held that the petition would be treated as a notice of appeal the ten-day rule was out of the case. The Supreme Court recognized this principle in Coppedge v. United States, supra, where in a footnote it is said: “Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U.S. 220, [80 S.Ct. 282, 4 L.Ed.2d 259,] a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals.” Among other cases cited to the above case is Tillman v. United States, supra. The question related to the content of the paper to satisfy the requirement that it be a notice of appeal and was wholly unrelated to the time within which the notice must be filed. The affidavit of Fallen recites that he was unable to write to the court until January 23, 1962. He does not'say that he then attempted" }, { "docid": "1718201", "title": "", "text": "motion were written, not on the face of the motion, but instead on the Government’s letter brief and later on Barrett’s reply papers. The placement of both endorsements understandably left Barrett uncertain as to whether his motion had been formally adjudicated and was ripe for appeal. The appearance of injustice was emphasized by the district court’s entry of its order before receiving the reply papers which the show cause order had expressly contemplated. Although the district court’s failure to set forth its order clearly might have significantly prejudiced Barrett by leading him to consume the remaining time in which to appeal with the instant petition, see Fed. R.App. P. 4(a)(1) (appeal in case to which United States is a party must be filed within 60 days after entry of order appealed from), Barrett has not lost the opportunity to appeal. The district court should have treated his Motion for Clarification as a notice of appeal, as expressly requested by Barrett in those papers. Rule 3 of the Federal Rules of Appellate Procedure provides in relevant part: A notice of appeal must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal.... A notice of appeal also must designate the judgment, order, or part thereof appealed from, and must name the court to which the appeal is taken. An appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice. Fed.R.App.P. 3(c). As the last-quoted sentence of Rule 3 indicates, the requirement of timely notice of appeal will be satisfied “if the litigant’s action is the functional equivalent of what the rule requires,” Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 681-82, 116 L.Ed.2d 678 (1992), and we take “a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal.” Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 919 n. 5, 8" }, { "docid": "6513965", "title": "", "text": "absence of jurisdiction to consider the motion, the filing of it did not toll nor did the purported ruling upon the merits of it extend the time for filing the notice of appeal. United States v. Bertone, 3rd Cir. 1957, 249 F.2d 156; Kirksey v. United States, D.C.Cir.1954, 94 App.D.C. 393, 219 F.2d 499, cert. den. 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82. The Bertone case was followed by this Court in Lott v. United States, 5th Cir. 1960, 280 F.2d 24, rev. other grounds, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940. If we have any jurisdiction to consider and decide the appeal it must be because of the notice of appeal dated January 23, 1962, and received by the Clerk on January 29, 1962, and not by reason of the notice of appeal filed February 21, 1962, after the order on the motion for new trial had been entered. Although one who has been convicted of a criminal offense has a right to have his conviction reviewed, he must, in order to exercise that right, meet the time requirements of the procedural steps for perfecting his appeal, the first of which is the giving of a timely notice of appeal and without which the Court of Appeals has no jurisdiction. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. It has been urged that the district court was required to advise Fallen of his right to appeal. There is merit in the suggestion if it can be said that the court-appointed counsel, who had stood by Fallen’s side and had spoken on his behalf while he was being sentenced, somehow disappeared eo instanti, during the time the sentence was being pronounced so that it could be said that Fallen was not represented by counsel when the court imposed sentence. The record of the judgments and commitments shows that “On this 15th day of January, 1962, came the attorney for the government and the defendant appeared in person and" }, { "docid": "23064557", "title": "", "text": "Supreme Court effective July 1, 1968; see Raughley v. Pennsylvania Railroad Company, 230 F.2d 387 (3 Cir. 1956). . Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), collecting illustrative cases; Frace v. Russell, 341 F.2d 901 (3 Cir. 1965), treating a “brief for appeal” filed in the Court of Appeals as a notice of appeal; Riffle v. United States, 299 F.2d 802 (5 Cir. 1962), treating a letter to a circuit judge as a notice of appeal. . Mihailoviki v. State of California, 364 F.2d 808 (9 Cir. 1966); Gerringer v. United States, 93 U.S.App.D.C. 403, 213 F.2d 346 (1954); Fishbaugh v. Armour & Co., 185 F.2d 541 (4 Cir. 1950); Tesciona v. United States, 141 F.2d 811 (9 Cir. 1944). . Mihailoviki v. State of California, supra. . The other circuits have adopted no uniform rule regarding the time within which the certificate must issue. First Circuit. — In Ex parte Farrell, 189 F.2d 540, cert. denied sub nom. Farrell v. O’Brien, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951), the rule was announced that although a certificate of probable cause may be granted after thirty days, the application must have been made within the thirty days. This holding was reaffirmed in Zimmer v. Langlois, 331 F.2d 424 (1964). See also Landry v. Commonwealth of Massachusetts, 336 F.2d 189 (1964). First Circuit Rule 35A, adopted October 16, 1966, provides that if a district judge fails to act on an application within ten days, petitioner may apply to the court of appeals, provided that such application is made within thirty days of the denial of habeas corpus. Second Circuit. — United States ex rel. Carrol v. LaVallee, 342 F.2d 641 (1965), upheld an application made several months after a timely notice of appeal had been filed. Fourth Circuit. — Burgess v. Warden, 284 F.2d 486 (1960), cert. denied, 365 U.S. 837, 81 S.Ct. 753, 5 L.Ed.2d 746 (1961), established a procedure for deciding whether to grant a eetificate after filing of an appeal, but made no reference to the" }, { "docid": "19652804", "title": "", "text": "with its statements and dictum pertaining to the legitimacy of appeals of right filed in this court by federal criminal defendants urging the reconsideration and overruling of Almendarez-Tor-res. . Even the Supreme Court, which might have that power, has not to my knowledge issued such a peremptory order. Certainly, it has not with respect to appeals challenging Al-mendarez-Torres. . Section 3742(a), Title 28, U.S.C., establishes a similar right with regard to appeals from the judgment of sentence. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2045-48, 135 L.Ed.2d 392 (1996); see also 15B Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice & Procedure § 3918.8, p. 573 & n. 1 (2007). In the Fifth Circuit, we have held that our jurisdiction to review sentencing issues derives from both statutes. United States v. Story, 439 F.3d 226, 230-31 (5th Cir.2006). .\"First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case.” Coppedge, 369 U.S. at 442 n. 3, 82 S.Ct. 917 (citing Fed.R.Crim.P. 37(a)); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). \"Subsequently, designations of the transcript, a record on appeal and briefs must be filed in the appropriate forum.” Coppedge, 369 U.S. at 442 n. 4, 82 S.Ct. 917 (citing Fed.R.Crim.P. 39(c)) (record on appeal to be docketed in Court of Appeals within 40 days of filing of notice of appeal). . It is also worth noting that § 1915(g), known as the three-strike rule, applies only to a prisoner bringing a civil action or appealing a judgment in a civil action or proceeding and therefore has no bearing on the dismissal of criminal appeals. . Contrary to the majority’s misreading, I do not merely disagree with the majority on whether James \"closed the book” on reconsideration of Almendarez-Torres. Rather, as the two preceding sections make clear, I disagree with the majority's unauthorized attempt to predict what the Supreme Court will do in respect to Almendarez-Torres and even more strongly with the majority’s ultra vires statements" } ]

[ { "docid": "22666691", "title": "", "text": "See United States v. Villegas, 404 F.3d 355, 356 (5th Cir.2005). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. Id; United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When these three conditions are all met, this court may exercise'its discretion to correct the error only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States, v. Mares, 402 F.3d 511, 520 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). In reviewing Garza-Lopez’s claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. Villegas, 404 F.3d 355, 357-362. In resolving Garza-Lopez’s claim that the district court erred by misapplying § 2L1.2(b)(1)(A), we review the district court’s interpretation and application of the Guidelines de novo. Id. Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a district court looks to the elements of a prior offense, rather than to the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes. See also United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.2002). In a “narrow range of cases,” however, a district court may look beyond the elements of the offense when making such a determination. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. In such cases, courts are not free to consider any facts, but may consider the statutory definition of the offense, the charging paper, and the jury instructions. See United States v. Allen, 282 F.3d 339, 343 (5th Cir.2002) (citing Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This court has held that the determination of whether a “drug trafficking offense” was committed falls into the narrow range of cases where the court may consider information other than the statutory definition of the offense. United States v. Rodriguez-Duberney, 326 F.3d 613," } ]

[ { "docid": "22766568", "title": "", "text": "error review applies. II. THE LEGAL STANDARD A district court may impose any sentence upon revocation of supervised release that falls within the statutory maximum term allowed for the revocation sentence, but must consider the factors enumerated in 18 U.S.C. § 3553(a) and the policy statements before doing so. 18 U.S.C. § 3583(e); United States v. McKinney, 520 F.3d 425, 427 (5th Cir.2008). Had Davis properly preserved his objection to the 15 to 21 month advisory range, we would review to determine whether the sentence imposed was unreasonable or “plainly unreasonable.” See United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007). Because Davis did not object to the 15 to 21 month advisory range in the district court, however, we review under a more deferential standard for plain error. United States v. Davis, 487 F.3d 282, 284 (5th Cir.2007). To establish plain error, an appellant must show a forfeited error that is clear or obvious and that affected his substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Ordinarily, an error affects substantial rights only if it “ ‘affected the outcome of the district court proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Davis, 487 F.3d at 284. If the appellant makes this showing, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). In the sentencing context, we have held that an appellant can show an impact on substantial rights — and therefore a basis for reversal on plain error review— where the appellant can show a reasonable probability that, but for the district court’s error, the appellant would have received a lower sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir.2009). We have specifically applied this rule where the district court considered an incorrect advisory range" }, { "docid": "22601925", "title": "", "text": "Under plain error review that applies to this issue, we easily find that the failure to state reasons for a sentence outside the guidelines range is error that is clear or obvious. We must next consider whether the error affected Whitelaw’s substantial rights and, if so, decide whether to exercise our discretion to correct the error if we also find that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. This court has not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence. In United States v. MondragonSantiago, 564 F.3d 357 (5th Cir.2009), this court affirmed the defendant’s within guideline sentence for unlawful reentry. The defendant argued that the district court committed procedural error by failing to adequately explain its reasons for the sentence as required by § 3553(c). In Mondragovr-Santiago, even though the district court imposed a sentence within the guideline range, more explanation was required under the first circumstance described in Rita because the defendant raised non-frivolous arguments for a downward departure on several bases. Because the defendant had not raised the objection to the sentencing court, plain error review was applied. This court easily found error that was plain, and examined whether the error affected the defendant’s substantial rights. To show that an error affects a defendant’s substantial rights, the defendant must show that it affected the outcome in the district court: “To meet this standard the proponent of the error must demonstrate a probability ‘sufficient to undermine confidence in the outcome.’ ” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)); see also United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Id. at 364. This court rejected the relaxed approach to plain error review taken by the Second Circuit in In re Sealed Case, 527 F.3d 188, 193 (D.C.Cir.2008) (“And the required showing of prejudice should be slightly less exacting for sentencing that it is in the context of trial errors.” (internal quotation marks and citation omitted));" }, { "docid": "23299576", "title": "", "text": "at 240 months, not 360 months, before departing downward under § 5K1.1. Because Shaw did not raise this objection below, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In order to establish plain error, Shaw must demonstrate “that an error occurred, that the error was plain, and that the error affected his substantial rights.” United States v. Hastings, 134 F.3d 235, 239 (4th Cir.1998). Even if Shaw establishes all three requirements, “correction of the error remains within our sound discretion, which we should not exercise unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and alterations omitted). We agree with Shaw that 240 months was the applicable guideline sentencing range by operation of § 5Gl.l(a), and that, as a result, 240 months should have served as the starting point for any downward departure the district court exercised its discretion to grant. See U.S.S.G. § 5G1.1 comment. (“This section describes how the statutorily authorized maximum sentence ... may affect the determination of a sentence under the guidelines. For example, if the applicable guideline range is 51-63 months and the maximum sentence authorized by statute for the offense of conviction is 48 months, the sentence required by the guidelines ... is 48 months; a sentence of less than Jp8 months would be a guideline departure.” (emphasis added)). For all practical purposes, the government concedes that the district court plainly erred in its determination that Shaw’s sentencing range was 360 months to life, and assumes for the sake of argument that the error affected Shaw’s substantial rights. Relying on United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the government nevertheless contends that even if Shaw were able to satisfy the first three plain error requirements, the error is not one that would affect “the fairness, integrity or public reputation of judicial proceedings.” Hastings, 134 F.3d at 239 (internal quotation marks omitted). In Cotton, the Supreme Court considered whether plain error could be" }, { "docid": "4997982", "title": "", "text": "a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense. This case would be indistinguishable from Bonilla but for an argument raised for the first time on appeal. Ruiz-Arriaga now asserts that the sentence range without the crime of violence enhancement, 10 to 16 months, suggested by his counsel during the sentencing hearing, was also incorrect. He claims that this range was based on a level that erroneously assigned him a criminal history point for an earlier Texas misdemeanor conviction for failing to identify himself as a fugitive to an officer. The elements of this conviction, he argues, were not similar to his current offense under U.S.S.G. § 4A1.2(c)(1). The correct range should have been 8 to 14 months, lowering the range by two months. Because this point of error was not argued before the district and given that this range was suggested by his counsel, we review this claim for plain error. To prove plain error, Ruiz-Arriaga must “show (1) there was error, (2) the error was plain, (3) the error affected his ‘substantial rights,’ and (4) the error seriously affected ‘the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To satisfy the “substantial rights” prong, “in most cases ... the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Further, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel" }, { "docid": "22379239", "title": "", "text": "Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The defendant bears the burden of demonstrating that the error prejudiced his rights. Id. at 734, 113 S.Ct. 1770. After he establishes such, the court should correct the error only if it “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted). Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the actual statute of prior conviction must be supplied to the district court by the government whether or not anyone objects to its absence: Under [the categorical approach in] Taylor, federal courts do not examine the facts underlying the prior offense, but look only to the fact of conviction and the statutory definition of the prior offense. If the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law, then the conviction may not be used for sentence enhancement unless the record includes documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes. Corona-Sanchez, 291 F.3d at 1203 (internal quotation marks and citations omitted). The Ninth Circuit has not yet applied the categorical approach to newly-amended Sentencing Guideline § 2L1.2 (2001), under which, as discussed above, certain prior felony convictions qualify for a 16-level enhancement regardless of their eligibility as statutory-aggravated felonies. Recently, however, we applied a Taylor analysis to the imposition of a sentencing enhancement pursuant to the sentencing guideline for career offenders, U.S.S.G. § 4B1.1. United States v. Shumate, 329 F.3d 1026, 1029 (9th Cir.2003) (examining whether the defendant’s prior offense was a felonious eontrolled-substance offense for guideline purposes). Additionally, the Fifth Circuit has applied the Taylor categorical approach to the application of the 16-level “crime of violence” enhancement under § 2L1.2(b)(l)(A)(ii). Vargas-Duran, 319 F.3d at 196-97 (holding that because the prior crime of “intoxication assault has as an element the use of force against the person of another,” any violation of it qualifies as a “crime of violence”). Accordingly, we hold that Taylor’s categorical approach" }, { "docid": "22822629", "title": "", "text": "sixteen levels because of a prior Texas felony conviction for injury to a child, and a decrease of three levels because of Gra-cia-Cantu’s acceptance of responsibility, for a total offense level of twenty-one. The district court adopted most of the findings of the PSR, including the characterization of Gracia-Cantu’s state felony conviction for injury to a child as an aggravated felony, resulting in an offense level of twenty-one. The district court sentenced Gracia-Cantu to seventy months of imprisonment, two years of supervised release, and a mandatory special assessment of $100. This term of imprisonment is within the range applicable to an offense level of twenty-one and a criminal history category of V. U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table) (2000). II. DISCUSSION Gracia-Cantu appeals his sentence on the ground that the district court improperly classified his felony conviction for injury to a child as an aggravated felony and thus improperly enhanced his sentence. Because Gracia-Cantu raises this argument for the first time on appeal, we review the district court’s sentence enhancement for plain error.* United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc). We find plain error only if: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When these elements are present, we may exercise our discretion to correct the error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal citations and quotations omitted) (alteration in original). Under the sentencing guidelines applicable to a conviction for illegal re-entry pursuant to § 1326, a sixteen-level increase in offense level applies if the defendant’s pri- or deportation followed a conviction for an “aggravated felony.” U.S. Sentenoing Guidelines Manual § 2L1.2(b)(l)(A). The commentary on § 2L1.2 of the sentencing guidelines adopts the definition of “aggra vated felony” in 8 U.S.C. § 1101(a)(43) (2000). Under that definition, “aggravated felony” includes “a crime of violence (as defined in section 16 of Title 18, but" }, { "docid": "8576560", "title": "", "text": "will only reverse Defendant’s sentence if Defendant can prove that the sentence imposed was (1) error, (2) which is plain, (3) which affects his substantial rights, (4) sufficient to warrant an exercise of our discretion to correct the error so long as it does not seriously affect the “fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation omitted). We have recognized two types of Booker errors — constitutional and non-constitutional. Id. at 731-32. In this appeal, Defendant claims that the district court committed non-constitutional error when it applied the Guidelines in a mandatory fashion at sentencing. We agree with the parties that the district court’s mandatory application of the Guidelines was plain error, thereby satisfying the first two prongs of plain-error review. See id. We must therefore consider whether Defendant has satisfied the third and/or fourth prongs of plain-error review. While it is debatable whether Defendant can satisfy the third prong of the plain error test because the only evidence presented to demonstrate prejudice was having been sentenced at the low end of the Guideline range, we need not decide the third prong because he fails to meet the fourth prong of the test. See United States v. Dowlin, 408 F.3d 647, 671 (10th Cir.2005) (explaining that a party’s failure to meet one prong of the test is a sufficient reason not to notice plain error). Under the fourth prong of the plain error test, Defendant must establish that, “the forfeited error ... affect[s][his] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). We will only correct a plain error affecting substantial rights if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (quotation omitted). This power to correct a forfeited error should be used sparingly and only “in those circumstances in which a miscarriage of justice would otherwise result.” Id. (quotation omitted). Defendant fails to point to adequate record evidence suggesting such a miscarriage of justice. See Gonzalez-Huerta, 403 F.3d at 737. The district court’s" }, { "docid": "4246251", "title": "", "text": "there are any objections to the sentence and the appellant raises none, we review the sentence only for plain error. United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). After pronouncing Bailey’s sentence, the district court asked Bailey whether he had any objections; he responded in the negative. The plain-error standard applies here, because Bailey failed to raise his objections to the district court below. For this court to find plain error, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Generally, an error does not affect substantial rights unless it is prejudicial — in other words, the error “must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. The defendant bears the burden of persuasion that the error was prejudicial. Id. If the first three conditions for plain error are met, “an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (alteration in original) (internal quotation marks omitted) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). In the case at bar, we assume without deciding that the district court made procedural errors at sentencing. Bailey has not provided us with any argument alleging that his substantial rights were affected by these errors. Because Bailey has failed to meet his burden to show that his substantial rights were affected, we conclude that the district court did not commit plain error with respect to the procedural reasonableness of Bailey’s sentence. C. Substantive Reasonableness Bailey argues that his sentence is substantively unreasonable. Sentences within the Guidelines range are afforded a rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), petition for cert. filed, (July 11, 2006) (No." }, { "docid": "23175553", "title": "", "text": "count of illegal reentry following removal in violation of 8 U.S.C. § 1326. Prior to his removal, Gonzalez was convicted of residential burglary in violation of California Penal Code § 459. Because of that conviction, Gonzalez’s pre-sentence report (PSR) recommended a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A). This enhancement resulted in a guideline range of 57 months to 71 months imprisonment. The district court adopted the recommendation and sentenced Gonzalez to 57 months imprisonment. Gonzalez appeals. Gonzalez argues that the district court plainly erred in applying the 16-level enhancement because, under this court’s decision in United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007), a conviction under California Penal Code § 459 for residential burglary does not constitute a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(l)(A). We review the district court’s application and interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). As Gonzalez concedes, because Gonzalez failed to object to the district court’s imposition of the 16-level crime-of-violence enhancement, we review this issue for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.2005). Plain error occurs when: “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Villegas, 404 F.3d at 358 (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If each of these conditions is satisfied, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d at 272 (internal quotation marks omitted). Applying the plain error analysis, we must first determine whether there was an error. Section 2L1.2(b)(l)(A)(ii) provides for a 16-level sentencing enhancement for a defendant deported after committing — among other things — a “crime of violence.” The Application Notes to § 2L1.2 define “crime of violence” to include “burglary of a dwelling” or any felony that" }, { "docid": "16406236", "title": "", "text": "now appeals his sentence. II. ANALYSIS A. The Sixteen-Level Enhancement Alfaro argues that the district court committed plain error by applying a sixteen-level enhancement for previously committing a “crime of violence” under U.S.S.G. § 2L1.2 on the basis of his 1994 Virginia conviction for shooting at an occupied dwelling. Specifically, Alfaro argues that shooting into an occupied dwelling is not a “crime of violence” under U.S.S.G. § 2L1.2 because: (1) it is not a conviction for one of the qualifying offenses enumerated in § 2L1.2; and (2) the statute of conviction, Va.Code Ann. § 18.2-279, does not have as an element the use, attempted use, or threatened use of physical force against the person of another. Alfaro additionally states that his substantial rights were violated because, at most, he should have been subject only to an eight-level enhancement under § 2L1.2(b)(1)(C) for being convicted of an “aggravated felony.” This would have produced a Guidelines sentencing range of at most fifteen to twenty-one months, far less than the fifty months h¿ received. Because Alfaro did not object below to the district court’s imposition of the sixteen-level increase, this court reviews the district court’s imposition of the enhancement for plain error. See United States v. Villegas, 404 F.3d 355, 358, 2005 WL 627963, at *2 (5th Cir.2005); United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious;. and (3) the error affected the defendant’s substantial rights. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770. When these three conditions are all met,, this court may exercise its discretion to correct the error only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). In reviewing Alfaro’s claim of plain error, we begin by determining whether the district court committed an" }, { "docid": "22191881", "title": "", "text": "was not presented to the district court, the issue is reviewed for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). B. To demonstrate plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If the appellant makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. In this case, the first two prongs of the plain error analysis are satisfied. First, there was error. The district court apparently adopted the probation officer’s mistaken conclusion that Jones had been sentenced as a career offender under § 4B1.1 and thus Amendment 706 was inapplicable. However, Jones was sentenced under § 2D1.1 based on his drug offense. Therefore, Amendment 706, which modified the guidelines range applicable to crack cocaine offenses, applies to Jones’s sentence. An amount of crack cocaine between 1.5 and 4.5 kilograms now places a defendant at a base offense level of 36, two levels lower than the level under which Jones was sentenced. See United States v. Bums, 526 F.3d 852, 861 (5th Cir.2008). Thus, adjusting the three points reduced for Jones’s acceptance of responsibility to his sentence after Amendment 706, his new § 2D1.1 level would be 33. Because his career offender offense level would result in a greater sentencing range than would the drug offense level, the career offender level of 34 under § 4B1.1 would control the applicable sentence Jones could receive. See 4Bl.l(b). Because Amendment 706 directly affected the offense level Jones received, the district court was in error. In addition, the error was plain. It was obvious that Jones had been sentenced under § 2D1.1 rather than under § 4B1.1. For the third prong of plain error review to be satisfied, the defendant must show that the error affected his substantial rights. Olano, 507 U.S. at 734, 113 S.Ct. 1770. In inquiring whether the defendant’s substantial" }, { "docid": "22209760", "title": "", "text": "for leniency. It first stated, “Mr. Dragon, you’re right you’re a young man, but you’re a young man that’s found a pretty nifty way to get extra cash with very little danger to yourself.” Id. at 29. The District Court later declared, “I also don’t believe that this is the first time you’ve stood before a court, said you’re a young man, said you’ve made a serious mistake, asked for leniency and asked for another chance.” Id. In reaching the sentence imposed, the District Court expressly stated that it had “considered the Sentencing Reform Act of 1984 ... the appropriate guidelines range ... and all the factors in Section 3553(a).” Id. at 30. II. A. Dragon claims his sentence is unreasonable under Booker because the District Court failed to adequately consider the parsimony provision of 3553(a), which directs the court to “impose a sentence sufficient, but not greater than necessary” to comply with the purposes specified in the statute. Because Dragon did not raise this objection at the sentencing hearing, we review his claim for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under this standard, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). An error is a “[d]eviation from a legal rule[,]” and an error is “plain” if it is “clear” or “obvious.” Id. at 732-33, 734, 113 S.Ct. 1770. Generally, an error affects substantial rights when it is prejudicial, i.e., it “affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770. Moreover, even if such an error is found, “the court of appeals has the authority to order correction, but is not required to do so.” Id. at 735, 113 S.Ct. 1770. We should exercise our discretion to correct the error only if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct." }, { "docid": "9948482", "title": "", "text": "support himself upon release.” Id. Mr. Day timely appealed his sentence and the restitution order. II DISCUSSION A. Application of Booker Mr. Day first argues that the district court’s imposition of a sentence that was based upon facts that neither were admitted nor found by a jury runs afoul of the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, Mr. Day did not argue to the district court that the imposition of the sentence would violate his Sixth Amendment rights. Consequently, our review is for plain error. See Booker, 125 S.Ct. at 769; Paladino, 401 F.3d at 481. We may review an error not raised below under the following circumstances: There must be (1) “error,” that is (2) “plain,” and that (3) “affect[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citations omitted). If these three conditions are met, the court may exercise its discretion to notice a forfeited error, but only if it (4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 732, 113 S.Ct. 1770 (internal quotation marks and citations omitted). Mr. Day admitted to rolling back the odometer on one Ford truck and to misrepresenting the actual mileage on the truck when it was resold. The district court concluded, however, based on facts which Mr. Day did not admit, that more than one vehicle was involved, that the loss was in the range of $20,000 to $40,000, and that more than one victim was harmed. These findings resulted in a six-level increase in offense level and a correspondingly higher guideline range for Mr. Day. The Government concedes that, “[i]n light of Booker, the imposition of a mandatory Guideline sentence in this case is error that was plain in the sense that it is now clear or obvious.” Appellee’s Supp. Br. at 4. However, the Government maintains that Mr. Day cannot establish the third prong of the plain error test because “he cannot establish that he would have received" }, { "docid": "22749654", "title": "", "text": "not compromised merely because further discussion ensued after the initial asking and the Judge’s issuance of Dabeit’s sentence. Therefore, Dabeit was given an opportunity for allocution and his sentence should not be remanded on this ground. AGGRAVATED FELONY The Presentence Investigation Report (PSR) recommended a 16 level enhancement to Dabeit’s sentence on the ground that he had previously been deported following a criminal conviction for an “aggravated felony.” As a result, the district court sentenced Dabeit from 37 to 46 months imprisonment for illegal entry after deportation, rather than the six to twelve months available without the enhancement. The district court based its decision on the PSR, as well as a stipulation by Dabeit that his previous conviction was an aggravated felony. Dabeit asserts that the district court’s application of the sentencing guidelines was in error. Since Dabeit did not raise this issue in the district court, this court will only review for plain error. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In order to satisfy this standard there must be (1) an error, (2) the error must be “plain,” “clear,” or “obvious,” and (3) the error must affect a substantial right. See Olano, 507 U.S. at 733, 113 S.Ct. 1770. If these factors are met, this court, in its discretion, should correct the error “if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotations and citations omitted). In 1981, Dabeit was convicted for conspiracy to perpetrate a checking and savings account kite scheme in violation of 18 U.S.C. §§ 1014 and 2113(b). Dabeit asserts that the government did not meet its burden of proof in demonstrating that his prior conviction constituted an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A). See U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(W00), 8 U.S.C. § 1101(a) (4.3) (2000) (defining aggravated felony for sentencing purposes). The party, in this case the government, who seeks adjustment of the base offense level under the sentencing guidelines, must prove by a preponderance of the evidence that the adjustment is warranted." }, { "docid": "22848233", "title": "", "text": "plain error to have occurred, the error must be one that is obvious and is clear under current law.”) (quoting United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.1999)). Although Perez establishes the first two prongs of the plain error rule, he “bears the burden of demonstrating that the plain error ‘affected [his] substantial rights.’ ” Prouty, 303 F.3d at 1252 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Denial of the right of allocution is “tantamount to denying [the defendant] his most persuasive and eloquent advocate.” Prouty, 303 F.3d at 1253 (quoting United States v. Adams, 252 F.3d 276, 288 (3d Cir.2001)). Consequently, we presume that the denial of a defendant’s right to allocute was prejudicial whenever the possibility of a lower sentence exists. Carruth, 528 F.3d at 847 n. 4 (citing Prouty, 303 F.3d at 1252-53). In the present case, the court’s error affected Perez’s substantial rights because his sentences of 80 months for Counts 1, 5, and 6 exceeded the lower end of the Guidelines sentence range, 57 months. Finally, Perez satisfied the fourth prong of the plain error rule because denial of the right to allocute affects the fairness, integrity, and public reputation of judicial proceedings. Prouty, 303 F.3d at 1253 (“Because allocution plays a central role in the sentencing process, the denial of this right is not the sort of isolated or abstract error that does not impact the fairness, integrity or public reputation of judicial proceedings” (quoting Adams, 252 F.3d at 288) (internal quotation marks omitted)). Where the appellant meets all four prongs of the plain error standard, “we have discretion to order correction of the error and will do so ‘in those circumstances in which a miscarriage of justice would otherwise result.’ ” Id. at 1252 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). “[F]ailing to give a defendant the opportunity to speak to the court directly when it might affect his sentence is manifestly unjust.” Id. at 1253. Accordingly, we conclude that the district court committed reversible error when it failed to" }, { "docid": "14971579", "title": "", "text": "Rodriguez-Ceballos failed to preserve the Blakely/Booker issue. Thus, we will conduct a plain-error analysis. Rodriguez-Ceballos bears the burden to prove plain error, which follows the four-part test enunciated in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error under the Olano test, RodriguezCeballos must establish “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (listing the conditions of the Olano plain-error test) (internal quotations omitted) (alteration in original). If Rodriguez-Ceballos establishes these three conditions, we may exercise our discretion to remand for resentencing “if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted) (alteration in original). The first two Olano conditions are easily met in this case, because “[t]he district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time.” Pirani, 406 F.3d at 549, 2005 WL 1039976, at *4. The critical third and fourth conditions ask “whether the Booker error affected [Rodriguez-Ceballos]’s ‘substantial rights’ in a manner that ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544). The crux of this appeal lies in the answer to that question. When considering the third condition, a remand is permitted only if Rodriguez-Ceballos establishes “a ‘reasonable probability’ that the district court would have imposed a more favorable sentence under the advisory sentencing guidelines regime mandated by Booker.\" Id. 406 F.3d at 543, 2005 WL 1039976, at *1. However, when reviewing this “fact-specific” question, we must guard against giving weight to a district court’s general discontent with the Guidelines: “It would be relevant to plain error prejudice if the district court had opined that the sentence produced by the mandatory Guidelines was unreasonable. A court’s dislike of the Guidelines in general is not relevant.” Id. 406 F.3d at 553 n. 6, 2005 WL 1039976, at *7 n. 6." }, { "docid": "22209761", "title": "", "text": "plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under this standard, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). An error is a “[d]eviation from a legal rule[,]” and an error is “plain” if it is “clear” or “obvious.” Id. at 732-33, 734, 113 S.Ct. 1770. Generally, an error affects substantial rights when it is prejudicial, i.e., it “affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770. Moreover, even if such an error is found, “the court of appeals has the authority to order correction, but is not required to do so.” Id. at 735, 113 S.Ct. 1770. We should exercise our discretion to correct the error only if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). The District Court did not commit error, let alone plain error, in reaching Dragon’s sentence. In Booker, the Supreme Court directed the Courts of Appeals to review a District Court’s imposition of a criminal sentence for reasonableness. 543 U.S. at 261, 125 S.Ct. 738. Subsequently, in United States v. Cooper, we established the framework for such a review stating, “we must first be satisfied the court exercised its discretion by considering the relevant factors.” 437 F.3d at 329 (citation omitted). We explained that the court is not required to discuss and make findings as to each of the § 3553(a) factors “if the record makes clear the court took the factors into account in sentencing.” Id. (citation omitted). The court need only discuss those grounds properly raised by the parties at the time of sentencing. Id. This means counsel for the parties should clearly place the sentencing grounds they are raising on the record at the time of" }, { "docid": "2107159", "title": "", "text": "Court did not meet this requirement. Under the Guidelines, as interpreted by Floyd, Vazquez was entitled to receive a preliminary sentence below the initial guideline range. He could have been sentenced to 48 months only if the District Court concluded, after careful consideration, that a higher sentence was warranted because the preliminary sentence failed to reflect the seriousness of the offense, § 3553(a)(2)(A), in order to avoid unwarranted sentencing disparities among similar offenders, § 3553(a)(6), or because of any other relevant factor under § 3553(a). Although Vazquez failed to object to the sentence or the sentencing procedure used in his case, we will nevertheless remand for resentencing because the District Court’s decision constituted plain error. Plain error requires the defendant to demonstrate that the district court committed “an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Fed.R.Crim.P. 52). An error affects substantial rights when it is “prejudicial: It must have affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770. If these requirements are met, we may, at our discretion, grant relief. Id. at 735-36, 113 S.Ct. 1770. In general, we will grant relief “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)) (alteration in original). The error in sentencing Vazquez was plain because the definition of “downward departure” in the Sentencing Guidelines unequivocally provides that a downward departure must result in a sentence below the otherwise applicable guideline range, and we so held in Floyd, 499 F.3d 308, 312-13. Further, the error was prejudicial because we cannot be sure that the district court would have imposed the same sentence if not for the error. See United States v. Langford, 516 F.3d 205, 215 (3d Cir.2008) (“For the error to be harmless, it must be clear that the error did not affect the district court’s selection of the sentence imposed.”)." }, { "docid": "18148200", "title": "", "text": "not assert a Sixth Amendment objection at his sentencing hearing. Thus, we review his sentence for plain error, United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc), a demanding standard not easily met, United States v. Rodriguez-Ceballos, 407 F.3d 937, 940 (8th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). Under Federal Rule of Criminal Procedure 52(b), “a court of appeals [has] a limited power to correct errors that were forfeited because not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To show plain error, Agboola must demonstrate “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted) (alteration in original). If the defendant meets these three conditions, our court has discretion to remand for resentencing “if(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted) (alteration in original). We must exercise plain-error review “sparingly.” Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We can assume the district court committed Booker error when it applied “the Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time.” Pirani, 406 F.3d at 550. Thus, we must determine whether the error affected Agboola’s substantial rights. To establish such an effect, Agboola must show a “reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. The record does not indicate the district court would have given Agboola a more lenient sentence absent a Booker error. While the district court “f[ound] no reason to sentence [Agboola] to anything more than the bottom of the applicable guideline range,” it stated “the sentence at the bottom of the applicable guideline range is sufficient to ... adequately cover any issues.” This bottom of the Guidelines range pronouncement “is" }, { "docid": "22427559", "title": "", "text": "for the first time on appeal. Under these circumstances, we conclude that it is appropriate to apply the general principle established in Federal Rule of Criminal Procedure 52(b), that in the absence of proper preservation, plain-error review applies. See Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the [district] court’s attention.”). Accordingly, we review Hargrove’s argument for plain error. To establish plain error, Hargrove must show (1) that the trial court erred, (2) that the error is clear and obvious, and (3) that the error affected his substantial rights. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even when this burden is met, we have discretion whether to recognize the error, and should not do so unless the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (quotation marks and alterations omitted). Assuming, without deciding, that the first two requirements are met, we nonetheless conclude that Hargrove has not satisfied the third requirement of showing that the district court’s reference to the victim testifying at trial affected Hargrove’s substantial rights. An error affects a defendant’s substantial rights if the error “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “To satisfy this requirement in the sentencing context, the defendant must show that he would have received a lower sentence had the error not occurred.” United States v. Knight, 606 F.3d 171, 178 (4th Cir.2010). Hargrove cannot clear this high hurdle. The district court’s sentence was within both the statutory maximum and the properly-calculated Sentencing Guidelines range. The district court considered and addressed the § 3553(a) factors in explaining why it was imposing the sentence. In particular, it reiterated that Hargrove’s criminal history and the seriousness of the offense justified the sentence it was imposing. And it emphasized that it would impose the identical sentence even if Hargrove had a lower Guidelines range for any reason because it would have varied upward to life imprisonment due" } ]

[ { "docid": "23264366", "title": "", "text": "minimu1n for diversity cases. This means that we have a responsibility to police the border of federal jurisdiction. Pratt Cent. Park Ltd. P'ship v. Dames & Moore, Inc., 60 F.3d 350, 352 (7th Cir.1995). On the other hand, determining whether a case belongs in federal court should be done quickly, without an extensive fact-finding inquiry. \"To make the ‘which court’ decision expeditiously and cheaply, a judge must simplify the inquiry....” Id, With these competing interests in mind, we apply the Supreme Court’s longstanding test for determining whether a party has met the amount-in-controversy minimum. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) states that: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. Id. at 288-89, 58 S.Ct. 586 (footnotes omitted). Under St. Paul, a plaintiffs general allegation of damages that meet the amount requirement suffices unless questioned by the opposing party or the court. See Dep’t of Recreation and Sports v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir.1991). Once the damages allegation is challenged, however, “the party seeking to invoke jurisdiction has the burden of alleging with sufficient particularity facts indicating that it is not a legal certainty that the claim involves less than the jurisdictional amount.” Id.; see also Barrett v. Lombardy 239 F.3d 23, 30-31 (1st Cir.2001). “A party may meet this burden by amending the pleadings or by submitting affidavits.” Dep’t of Recreation and Sports, 942 F.2d at 88. Courts determine whether a party has met the amount-in-controversy requirement by “looking to the circumstances at the time the complaint is filed.” Coventry Sewage, 71 F.3d at 4; Wright & Miller § 3702 at 28-29 n.31. Thus St. Paul’s legal certainty standard does not mean that jurisdiction is ousted because of the" } ]

[ { "docid": "4459648", "title": "", "text": "judgment, alleging that none of the plaintiffs could satisfy the $75,000 amount-in-controversy requirement. The district court agreed and on July 18, 2002, once again dismissed all of the plaintiffs’ claims without prejudice for want of jurisdiction. The four plaintiffs appeal that decision. II. A. Amount-in-Controversy Requirement In 1938, the Supreme Court established the basic standard by which to evaluate a challenge that a plaintiff has not met the jurisdictional amount-in-controversy requirement: The rule governing dismissal for want of jurisdiction in cases brought in federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (internal citations omitted). “Under St. Paul, a plaintiffs allegations of damages that meet the amount-in-controversy requirement suffices unless questioned by the opposing party or the court.” Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.2001). Once a defendant questions jurisdiction by challenging the amount of damages alleged in the complaint, the burden shifts to the plaintiff to show that it is not a legal certainty that the claims do not involve the requisite amount. Id. at 4; Barrett v. Lombardi, 239 F.3d 23, 30-31 (1st Cir.2001). “A party may meet this burden by amending the pleadings or by submitting affidavits.” Dep’t of Recreation & Sports v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir.1991). When there are several plaintiffs, each must present claims that meet the jurisdictional amount. Clark v. Paul Gray Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). Once a district court dismisses for failure to meet the jurisdictional amount, the court of appeals reviews that judgment de novo. Spielman, 251 F.3d at 4. The basic error committed by the district court was to evaluate the amount-in-controversy by reference to amounts that the Supreme Court of Puerto Rico has found reasonable" }, { "docid": "17836096", "title": "", "text": "claimed elements of damages. See, e.g., A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 89 (2d Cir.1991) (“request for punitive damages ... might provide a basis for satisfaction of the jurisdictional amount”); 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3702 at 44 (“punitive damages, if permitted under the governing law, can be included in determining whether the amount in controversy requirement has been met.”); 1 Michael C. Silberberg, Civil Practice in the Southern District of New York § 9.19 at 9^40 (“The court may consider bona fide claims for punitive damages in determining the requisite amount in controversy.”) (citing cases). The Supreme Court has established the “legal certainty” standard to govern motion to dismiss for failure to satisfy the amount in controversy requirement: “The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction---- But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed ... and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” St. Paul Mercury Indem. Co. v. Red Cab Co., 308 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (emphasis added & footnotes omitted); see also, e.g., Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982); Reddy v. Barclays Bank of New York, 773 F.Supp. 655, 657 (S.D.N.Y. 1991); Posner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 469 F.Supp. 972, 986 (S.D.N.Y.1979); 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3702. Under New" }, { "docid": "23165786", "title": "", "text": "state law.”). IY Naffe next argues the district court erred when it dismissed her six state law claims for lack of subject matter jurisdiction. Even absent a § 1983 claim, Naffe asserts federal courts have jurisdiction over her state law claims pursuant to 28 U.S.C. § 1332(a)(1) because the parties are from different states and the amount in controversy exceeds $75,000. After briefing and a hearing, the district court concluded that Naffe did not establish by a preponderance of the evidence that she satisfied § 1332’s amount in controversy requirement. Naffe v. Frey, Case 2:12-cv-08443-GW-MRW, slip op. at 2 (C.D.Cal. Apr. 19, 2013) (order confirming tentative ruling). As a result, the court dismissed her case for lack of subject matter jurisdiction. We conclude that the district court applied an incorrect legal standard to evaluate the amount in controversy, and so we reverse and remand. A To establish federal jurisdiction under § 1332(a)(1), the proponent must allege (1) the parties are completely diverse, and (2) the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Only the second requirement is at issue here. When a plaintiff files suit in federal court, we use the “legal certainty” test to determine whether the complaint meets § 1332(a)’s amount in controversy requirement. See Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363-64 (9th Cir.1986) (adopting the “legal certainty” test); 14AA The Late Charles Alan Wright, et al., Federal Practice & Procedure, Jurisdiction § 3702 (4th ed.2015) (noting that this test “has become the universal test in the context of actions that originate in the federal courts”). Under this test, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Geographic Expeditions, Inc. v." }, { "docid": "12746727", "title": "", "text": "the motion to transfer for forum non conveniens. V. CONCLUSION In summary, I will deny the Romanos’ motions to dismiss and their motion to transfer. ORDER AND NOW, this 21st day of August, 2014, it is ORDERED that the Romanos’ Motion to Dismiss for Improper Venue [ECF No. 7] and Motion to Dismiss [ECF No. 8] are DENIED. . The Romanos challenge my subject matter jurisdiction over the case, arguing that AAM-CO has failed to set forth facts that establish an amount in controversy in excess of $75,000 as required under 28 U.S.C. § 1332. \"The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that ... the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab. Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Where the plaintiff in a diversity action seeks injunctive or declaratory relief, the amount in controversy is determined by \"the value of the object of the litigation.” Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 181, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). AAMCO alleges in the Complaint that the amount in controversy exceeds $75,000 and that the Romano’s refusal to honor the non-compete interferes with AAMCO's ability to further develop the market. Compl. ¶¶ 4, 21. In its opposition to the motion to dismiss, AAMCO further argues that the Romanos’ conduct threatens the viability of every AAM-CO franchise and AAMCO’s millions of dollars of investment in the AAMCO brand. O’Donnell Decl. ¶¶ 25-26, 28. Given the extent of possible damages, there is no legal certainty that the claim is for less than $75,000. Therefore, I will deny the motion to dismiss on this ground. . As required in ruling on a motion to dismiss, all facts are taken from the" }, { "docid": "17131962", "title": "", "text": "Provident Nat’l Bank, 994 F.2d 1039, 1044 (3d Cir.), cert. denied sub nom. Upp v. Mellon Bank, N.A., 510 U.S. 964, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). III. The Amount in Controversy Requirement For a plaintiff to establish federal diversity jurisdiction, the amount in controversy must exceed $50,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The standard for determining whether a plaintiffs claims satisfy the amount in controversy requirement was set out by the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), as Mows: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. Id. at 288-89, 58 S.Ct. at 590 (emphasis added) (footnotes omitted); see also Nelson v. Keefer, 451 F.2d 289, 292-93 (3d Cir.1971). In applying the “legal certainty” test established by St. Paul Mercury, this Court has stated that “dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met.” Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir.1995); cf. Lunderstadt v. Colafella, 885 F.2d 66, 69-70 (3d Cir.1989) (holding in a federal question case that “a federal court may dismiss for lack of juriscliction only if the claims are ‘insubstantial on their face’ ”). Once a good faith pleading of the amount in controversy vests the district court with diversity jurisdiction, the court retains jurisdiction even if the plaintiff cannot ultimately prove all of the counts of the complaint or does not actually recover damages in excess of $50,000. St. Paul Mercury, 303 U.S. at 288, 58 S.Ct. at 590. Accordingly, the question whether a plaintiffs claims pass the “legal certainty” standard is a threshold matter that should involve the court in only minimal scrutiny of the plaintifPs claims." }, { "docid": "18304449", "title": "", "text": "Inc. as a party would relate back to the original filing of the Complaint. Furr’s, Inc. argues that it cannot now be joined as a party because it did not receive notice of this action until after the statutory time period had passed. However, under 42 U.S.C. § 2000e-5(f)(l) Plaintiff was required to bring suit, not provide notice to Defendants, within ninety days of the right-to-sue letter. Because Plaintiffs amendment relates back to the commencement of the action, Furr’s, Inc. can be made a party without violating the ninety-day requirement. C. Amount in Controversy. Plaintiff claims subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. Alternatively, she bases jurisdiction on a federal question, with pendent jurisdiction over her state claims. Defendants argue that Plaintiff failed to allege permissible damages in an amount which would satisfy the $10,000 amount in controversy requirement of 28 U.S.C. § 1332. The Court disagrees. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 854 (1938), set the standard for a jurisdictional inquiry into the amount in controversy. It must appear “to a legal certainty” that the claim is really for less than the requisite amount to justify dismissal. Id. at 288-89. See also Gibson v. Jeffers, 478 F.2d 216, 221 (10th Cir.1973). Generally, “the sum claimed by the plaintiff controls if this claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 288, 58 S.Ct. at 590. However, once the amount has been challenged, the party asserting jurisdiction has the burden of showing that it does not appear to a legal certainty that the claim is for less than $10,-000. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Gibson v. Jeffers, 478 F.2d at 221. Where allegations of jurisdictional facts are challenged, plaintiff must support them by competent proof, McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), including amendment or affidavits, if necessary. Diefenthal v. C.A.B., 681" }, { "docid": "16120302", "title": "", "text": "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). Although Ms. Kopp’s medical bills fall well below the requisite amount, she argues that in the circumstances of this case she could well recover punitive damages and damages for emotional distress that would exceed $75,000. We have held that “a complaint that alleges the jurisdictional amount in good faith will suffice to confer jurisdiction, but the complaint will be dismissed if it ‘appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.’ ” Larkin v. Brown, 41 F.3d 387, 388 (8th Cir.1994) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). If the defendant challenges the plaintiffs allegations of the amount in controversy, then the plaintiff must establish jurisdiction by a preponderance of the evidence. McNutt v. General Motors Ac ceptance Corp., 298 U.S. 178, 188-89, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Federated Mut. Implement and Hardware Ins. Co. v. Steinheider, 268 F.2d 734, 737-38 (8th Cir.1959). When the “legal certainty” standard announced in Larkin is combined with the burden of proof established in McNutt, it appears that the relevant legal rule is that the proponent of diversity jurisdiction must prove a negative by a preponderance of the evidence in order to avoid dismissal of his or her case. A leading, treatise, for example, suggests that the proponent of federal jurisdiction must show “that it does not appear to a legal certainty that the claim for relief is for less than the statutorily prescribed jurisdictional amount.” 14B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3702 (3d ed.1998). We have no quarrel with this formulation of the applicable law, but we think that the same principle can be stated just as readily in the affirmative: The district court has subject matter jurisdiction in a diversity case when a fact finder could legally conclude, from the pleadings and proof adduced to the" }, { "docid": "8392611", "title": "", "text": "jurisdictional requirements. A party who invokes the jurisdiction of the federal courts has the burden of demonstrating the court’s jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). In diversity cases, we generally accept a party’s good faith allegation of the amount in controversy, but where a defendant or the court challenges the plaintiffs allegations regarding the amount in question, the plaintiff who seeks the assistance of the federal courts must produce sufficient evidence to justify its claims. Burns v. Massachusetts Mutual Life Insurance Co., 820 F.2d 246, 248 (8th Cir.1987). The test for determining the amount in controversy in diversity cases was established by the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab. Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. Id. at 288-89, 58 S.Ct. at 590 (emphasis added and footnotes omitted). Red Cab gave rise to two jurisdictional principles. First, dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met; the reasonable probability that the amount exceeds $50,000" }, { "docid": "7833346", "title": "", "text": "their counsel that “you ought to do something to satisfy me of [the jurisdictional amount] from the very beginning, because its tough to conceive of the kind of damage you’re talking about... . ” The amended complaint alleged only that a flight attendant “maliciously and intentionally treated plaintiffs in a manner calculated to cause plaintiffs serious embarrassment and humiliation.” No physical contact was asserted. The complaint did not allege that any physical or emotional impairment or loss of reputation resulted from the stewardess’ actions, nor did it seek punitive damages. It simply alleged that the stewardess’ remarks were brusque and intentional and that they had resulted in $50,000 worth of humiliation. When Eastern moved to dismiss for lack of jurisdiction, the Diefenthals did not attempt to support their complaint with affidavits which might have revealed some factual basis of their claim for damages. They simply rested on the unsupported allegation that the stewardess’ actions humiliated them. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (footnotes omitted), the Court stated: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really far less than the jurisdictional amount to justify dismissal. The Court, however, also noted that the party invoking the court’s jurisdiction bears the burden of “alleging] with sufficient particularity the facts creating jurisdiction” and of “supporting] the allegation” if challenged. See id. at 287 n.10, 58 S.Ct. at 590 n.10 (citing McNutt v. General Motors Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); see generally Wright & Miller, Federal Practice and Procedure § 3702. In order to meet this burden, a party may amend the pleadings, as was done in this ease, or may submit affidavits. See Wright and Miller at § 3702. This procedure provides a court with a basis for" }, { "docid": "22903091", "title": "", "text": "a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir.1994). The Ninth Circuit has described the general “mechanical” rule courts apply when a plaintiffs complaint specifies an amount of damages: At common law, a statement of the amount claimed was required [to appear in every complaint], and was an upper limit on recovery. In a state following the common law rule, there is a mechanical test of whether the amount in controversy requirement is met when a case is removed. The district court simply reads the ad damnum clause of the complaint to determine whether the “matter in controversy exceeds the sum or value of [$75,000] exclusive of interest and costs.” 28 U.S.C. § 1332(a). If the claim was apparently made in good faith, then the sum claimed by the plaintiff controls for removal purposes unless it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 375 (9th Cir.1997) (quotations, citation, and footnote omitted). Thus, when the complaint seeks damages exceeding $75,000, a removing defendant may rely on the plaintiffs valuation of the case to establish the amount in controversy unless it appears to a legal certainty that the plaintiff cannot recover the amount claimed. Id. Mitchell’s complaint prays for damages in an amount exceeding $75,000. His complaint requests a total of $10" }, { "docid": "22791965", "title": "", "text": "brought in the federal court ... [i]t must appear to a legal certainty that the [plaintiffs] claim is really for less than the jurisdictional amount to justify dismissal.... A different situation is presented in the case of a suit instituted in a state court and thence removed. There is a strong presumption that the plaintiff has not claimed a large amount in order to confer jurisdiction on a federal court or that the parties have colluded to that end. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-290, 58 S.Ct. 586, 590-591, 82 L.Ed. 845 (1938). The “strong presumption” against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper. Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir.1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.1988). Normally, this burden is satisfied if the plaintiff claims a sum greater than the jurisdictional requirement. See St. Paul, 303 U.S. at 288-89, 58 S.Ct. at 590; Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir.1986). If it is unclear what amount of damages the plaintiff has sought, as is true here with regard to Gaus’s claim, which is governed by Nevada Rule of Civil Proce dure 8(a), then the defendant bears the burden of actually proving the facts to support jurisdiction, including the jurisdictional amount. Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990). This principle was announced in McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936): The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be" }, { "docid": "15132461", "title": "", "text": "plaintiffs, each must allege a claim that is in excess of $75,000. See Clark v. Paul Gray Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). In this case, there is no question that diversity of citizenship exists. Rather, the dispute turns on whether the damages exceed $75,000. Since plaintiffs seek to invoke federal diversity jurisdiction, they have the burden of showing that their claims meet the amount-in-controversy requirement. Spielman, 251 F.3d at 4. The longstanding test for determining whether a party has met the amount-in-controversy states that: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paid Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (footnotes omitted). When applying this test, a court must look at the circumstances at the time the complaint is filed. Spielman, 251 F.3d at 5. Plaintiffs’ “general allegation of damages that meet the amount requirement suffices unless questioned by the opposing party or the court.” Id. (citing Dep’t of Recreation & Sports v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir.1991)). If the opposing party questions the damages allegation, then “ ‘the party seeking to invoke jurisdiction has the burden of alleging with sufficient particularity facts indicating that it is not a legal certainty that the claim involves less than the jurisdictional amount.’ ” Id. (quoting Dep’t of Recreation and Sports, 942 F.2d at 88) (further citations omitted). Further, if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, ... the suit will be dismissed. St. Paul, 303 U.S. at 289, 58" }, { "docid": "15554614", "title": "", "text": "it was originally filed. I. STANDARD FOR REMAND Initially, the court must determine the proper standard for determining whether it has jurisdiction over this case, and upon which party lies the burden of proving jurisdiction. The relevant jurisdictional statute confers upon this court the power to adjudicate “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a)(1). Generally, the party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. Gen’l Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (declaring that “the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”). In this case, then, it is AOL that bears the burden of proving jurisdiction, because the Plaintiffs would prefer to have stayed in state court, where they first filed their case. When a plaintiff originally files her claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is" }, { "docid": "22191901", "title": "", "text": "Court cases: St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), and McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In Red Cab, the plaintiff filed suit in state court and, in response to defendant’s removal of the case, subsequently reduced its claim below the requisite amount. 303 U.S. at 285, 58 S.Ct. 586 (holding that “events occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiffs control or the result of his volition, do not oust the district court’s jurisdiction once it has attached”). The Supreme Court articulated what has become known as the “legal certainty test,” observing that when a case is brought in federal court, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Id. at 288, 58 S.Ct. 586. The case will be dismissed only if, “from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount.” Id. at 289, 58 S.Ct. 586. In McNutt, the plaintiff brought suit in federal court and defendant contested the assertion in the complaint that the requisite matter in controversy was involved. McNutt, 298 U.S. at 179-180, 56 S.Ct. 780. The Supreme Court held: “[T]he court may ... insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” Id. at 189, 56 S.Ct. 780. This Court, in Samuelr-Bassett, disentangled the “legal certainty” and “preponderance of the evidence” approaches of McNutt and Red Cab by distinguishing them on the grounds of whether the jurisdictional dispute surrounded factual matters: “In [McNutt], although a challenge to the amount in controversy had been raised in the pleadings, no evidence or findings in the trial court addressed the issue." }, { "docid": "22582077", "title": "", "text": "party invoking federal jurisdiction bears the burden of establishing the elements of jurisdiction. Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990). Generally the amount in controversy claimed by a plaintiff in good faith will be determinative on the issue of jurisdictional amount, unless it appears to a legal certainty that the claim is for less than that required by the rule. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (“[A] general allegation [that the jurisdictional amount exists] when not traversed is sufficient”). But if the court’s jurisdiction is challenged as a factual matter by either the court or the opposing party, the party invoking the jurisdiction bears the burden of supporting its jurisdictional allegations by “competent proof.” McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). This has been interpreted to mean a preponderance of the evidence or “proof to a reasonable probability that jurisdiction exists.” Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993) (in the context of federal removal jurisdiction); see also Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 n. 2 (7th Cir.1993). In this case NLFC’s complaint alleged that it “suffered damages in excess of the minimum jurisdictional limits of this court.” But Devcom challenged this allegation and NLFC was therefore required to make some effort to prove that the damages sustained from its state law claims met the $50,000 threshold. NLFC did not do so, choosing instead to defend its previous assertion as sufficient. NLFC failed to add any information on the amount of damages that may have been sustained in its state claims. The district court therefore did not err in dismissing NLFC’s state law claims on" }, { "docid": "8578074", "title": "", "text": "less than the jurisdictional amount to justify dismissal.” Id. at 338 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Good faith is measured objectively; “[t]he question ... is whether to anyone familiar with the applicable law this claim could objectively have been viewed as worth” more than the jurisdictional minimum. Coventry Sewage Assoc. v. Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir.1995) (quoting Jimenez Puig v. Avis Rent-A-Car Sys., 574 F.2d 37, 40 (1st Cir.1978)). A plaintiffs “ ‘general allegation of damages that meet the amount requirement suffices unless questioned by the opposing party or the court.’ ” Stewart, 356 F.3d at 338 (quoting Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.2001)). However, once the opposing party has questioned the amount, “ ‘the party seeking to invoke jurisdiction has the burden of alleging with sufficient particularity facts indicating that it is not a legal certainty that the claim involves less than the jurisdictional amount.’ ” Id. (quoting Spielman, 251 F.3d at 5). This burden may be met by amending pleadings or submitting affidavits. Dep’t of Recreation & Sports of P.R. v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir.1991). Here, OPK has challenged Abdel-Aleem’s assertion of the amount in controversy. Thus, the burden has shifted to him to allege with “sufficient particularity” facts that in some way support the contention that there is more than $75,000 at stake. See id. at 90 (holding that the proponent of diversity jurisdiction has the “burden of supplying specific factual allegations to support the amount in controversy requirement”). In his First Complaint, Abdel-Aleem stated no amount in controversy, alleging only that it was in excess of the minimum, and gave only the most general description of his damages. Even though Abdel-Aleem was warned of OPK’s opposition by its Rule 12(b)(1) motion to dismiss, he added only further generalizations to the description of his damages in the Amended Complaint, which did not provide any specifics or basis for the alleged amount in controversy. See Diefenthal v. Civil Aeronautics" }, { "docid": "18304450", "title": "", "text": "for a jurisdictional inquiry into the amount in controversy. It must appear “to a legal certainty” that the claim is really for less than the requisite amount to justify dismissal. Id. at 288-89. See also Gibson v. Jeffers, 478 F.2d 216, 221 (10th Cir.1973). Generally, “the sum claimed by the plaintiff controls if this claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 288, 58 S.Ct. at 590. However, once the amount has been challenged, the party asserting jurisdiction has the burden of showing that it does not appear to a legal certainty that the claim is for less than $10,-000. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Gibson v. Jeffers, 478 F.2d at 221. Where allegations of jurisdictional facts are challenged, plaintiff must support them by competent proof, McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), including amendment or affidavits, if necessary. Diefenthal v. C.A.B., 681 F.2d 1039, 1052 (5th Cir.1982). But Plaintiff is entitled to the benefit of facts she could conceivably prove in support of her jurisdictional allegations. Lichter v. Paine, Webber, Jackson & Curtis, Inc., 570 F.Supp. 533, 536 (N.D.Ill.1983). Even considering only Plaintiffs claims for back pay and lost medical, dental and pension benefits, as asserted under Count I, we cannot say to a legal certainty that Plaintiff has not met the amount in controversy requirement. Defendants argue that the uncertainty of Plaintiffs alleged damages renders them inadequate to meet the jurisdictional amount. However, some uncertainty is expected. The Court should not require that Plaintiff prove the merits of her case in response to a jurisdictional challenge and should be especially reluctant to dismiss where a ruling on the amount in controversy is also a determination of the merits. Gibson v. Jeffers, 478 F.2d at 220, 221; Jaconski v. Avisun Corp., 359 F.2d 931, 935 (3d Cir.1966); Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969). The Court finds that Plaintiff has diversity jurisdiction under 28 U.S.C." }, { "docid": "23121617", "title": "", "text": "controversy is challenged, the burden of proving the matter in controversy exceeds the jurisdictional minimum rests upon the party alleging the sufficiency of the amount in controversy. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). Moreover, in McNutt the Supreme Court stated that even if the jurisdictional amount is not challenged by an adversary “the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” See 298 U.S. at 189, 56 S.Ct. at 785. There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in “good faith”. Norwood Lumber Corporation v. McKean, 153 F.2d 753 (3 Cir. 1946). On its face, the phrase “good faith” would seem to imply that the relevant consideration is the plaintiff’s state of mind and that, therefore, it is a subjective test. In fact one of the expressions of the rule, whether the demand is colorable and laid for the purpose of giving jurisdiction to the federal court, would suggest this conclusion. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 29 L.Ed. 729 (1886). But it is obvious that the plaintiff’s actual mental state can never be satisfactorily measured without recourse to objective facts. Thus the basic criterion for determining “good faith” is that “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul" }, { "docid": "23165787", "title": "", "text": "McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Only the second requirement is at issue here. When a plaintiff files suit in federal court, we use the “legal certainty” test to determine whether the complaint meets § 1332(a)’s amount in controversy requirement. See Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363-64 (9th Cir.1986) (adopting the “legal certainty” test); 14AA The Late Charles Alan Wright, et al., Federal Practice & Procedure, Jurisdiction § 3702 (4th ed.2015) (noting that this test “has become the universal test in the context of actions that originate in the federal courts”). Under this test, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir.2010). As we have recognized: the legal certainty test makes it very difficult to secure a dismissal of a case on the ground that it does not appear to satisfy the jurisdictional amount requirement. Only three situations clearly meet the legal certainty standard: 1) when the terms of a contract limit the plaintiffs possible recovery; 2) when a specific rule of law or measure of damages limits the amount of damages recoverable; and 3) when independent facts show that the amount of damages was claimed merely to obtain federal court jurisdiction. Pachinger, 802 F.2d at 364 (quoting 14A Wright, Miller, & Cooper, Federal Practice & Procedure, Jurisdiction § 3702, at 48-50 (2d ed.1985)). Citing McNutt, 298 U.S. at 189, 56 S.Ct. 780, the district court required Naffe to establish the amount in controversy by a preponderance of the evidence, and it dismissed her case when she failed to meet this burden. Naffe v. Frey, Case 2:12-cv-08443-GW-MRW, slip op. at 6 & n.11 (C.D.Cal. Apr." }, { "docid": "22859251", "title": "", "text": "must be narrowly construed so as not to frustrate the congres sional purpose behind it: to keep the diversity caseload of the federal courts under some modicum of control. See Nelson v. Keefer, 451 F.2d 289, 293-94 (3d Cir.1971) (quoting Snyder v. Harris, 394 U.S. 332, 339-40, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969); Healy v. Ratta, 292 U.S. 263, 269-70, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)). The person asserting jurisdiction bears the burden of showing that the case is' properly before the coui't at all stages of the litigation. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). It is well-settled that in a diversity-based class action, members of the class may not aggregate their claims in order to reach the requisite amount in controversy. Snyder, 394 U.S. 332, 89 S.Ct. 1053 passim. The Supreme Court has also held that each member of the class must claim at least the jurisdictional amount. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), the Supreme Court laid down the standard for determining whether the requisite amount in controversy has been properly alleged: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that ... the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less that the jurisdictional amount to justify dismissal.... But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. When it appears to a legal certainty" } ]

[ { "docid": "2488171", "title": "", "text": "is necessary ... if they know they will subsequently be called into a civilian court to answer for their actions.” Id. at 1232. The rationale used by this court in Jaffee is equally applicable to Martinelli. Suits by reservists, albeit civilian, for injuries received while on reserve training in military exercises would have the same consequences. Accordingly, we hold that the Feres doctrine bars FTCA suits by or on behalf of persons serving in the United States Military Reserves because the same rationale that precludes suits by or on behalf of servicepersons is equally applicable to reservists. Our decision is in accord with that of several other courts of appeals that have addressed the issue. See Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969) (per curiam) (court stated, without further discussion, that, “[t]he rationale of Feres applies with equal force to reservists.”); United States v. Carroll, 369 F.2d 618, 620 (8th Cir.1966) (“[t]here is no doubt that the Feres decision applies also to reservists.”); accord O’Brien v. United States, 192 F.2d 948 (8th Cir.1951); Layne v. United States, 295 F.2d 433, 434-36 (7th Cir.1961), cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962) (widow of Indiana National Guardsman fatally injured while on duty as part of Reserve not permitted to sue United States under FTCA because of Feres doctrine). Martinelli argues that we should engage in a case-by-case review to ascertain if application of Feres is appropriate. However, in Jorden v. National Guard, 799 F.2d 99 (3d Cir.1986), we rejected the argument that Feres requires us to inquire in each case whether judicial review will unduly interfere with military operations. Instead, we reaffirmed our view, held as well by the majority of courts, that Feres is a per se bar of damage actions against the United States and military officers arising out of injuries to military personnel. Id. at 107-08. Contra United States v. Stanley, 786 F.2d 1490, 1499 (11th Cir.), cert. granted, — U.S. —, 107 S.Ct. 642, 93 L.Ed.2d 699 (1986). In rejecting plaintiff's appeal, we feel compelled to point out that attempts" } ]

[ { "docid": "1010069", "title": "", "text": "context would constitute an “unwarranted intrusion into the military personnel structure” about which the Court has previously warned. Id. The Morrises allege that their case is distinguishable because Thompson removed on the basis of diversity of citizenship. We see no distinction. These are still state-law claims arising in a situation that was incident to service. “[Civilian courts may not sit in plenary review over intra-service military disputes.” Crawford, 794 F.2d at 1035. Feres bars state-law claims because adjudication “would undermine military decision-making as surely as federal claims held to be nonjusticiable.” Texas Adjutant Gen.’s Dep’t v. Amos, 54 S.W.3d 74, 78 (Tex. App.—Austin 2001, pet. denied). The Morrises further argue that the Feres doctrine does not apply because Morris and Thompson held the same rank. It is true that the superior-subordinate relationship has at times been relevant in the articulation of the Feres doctrine. Chappell, 462 U.S. at 300, 103 S.Ct. 2362. Nonetheless, the Supreme Court does “not consider the officer-subordinate relationship crucial[.]” Stanley, 483 U.S. at 680, 107 S.Ct. 3054. In Stanley, the Army secretly administered LSD to the plaintiff in order to study its effect on human subjects. Id. at 671, 107 S.Ct. 3054. The Court “assume[d] that at least some of the defendants were not [his] superior officers.... ” Id. at 680, 107 S.Ct. 3054. Accordingly, the key consideration in applying Feres in Stanley was the incident-to-serviee test. Id. at 683-84, 107 S.Ct. 3054. Another circuit held that Feres applied even when the parties were of the same rank. Mattos v. United States, 412 F.2d 793, 794 (9th Cir. 1969) (per curiam). Feres requires that we avoid “judicial intrusion into the area of military performance[.]” Id. The relative rank of the plaintiff and defendant are of no moment. Though neither party disputes that these events occurred incident to mili tary service, we examine the test. We are to consider three factors: (1) the duty status of the service member; (2) the place where the injury occurred; and (3) the activity in which the service member was engaged at the time of the injury. Walch v. Adjutant Gen.'s" }, { "docid": "3679701", "title": "", "text": "he was being treated for an injury. Obtaining medical care is neither inherently military nor inherently civilian. However, we have held that Feres bars suits for medical malpractice even when the treatment was not for military-related injuries. See, e.g., Hata v. United States, 23 F.3d 230 (9th Cir.1994) (treatment of heart attack; noting that we have barred such claims “consistently”); Atkinson v. United States, 825 F.2d 202 (9th Cir.1987) (treatment of pregnancy). Here the treatment complained of was for an injury that was directly service-related. CONCLUSION Jackson’s initial injury and the subsequent treatment of it arose from his activities as a member of the Naval Reserve. His suit against the United States is barred by the Feres doctrine. This conclusion is buttressed by the four-factor test we have sometimes used in close cases: three factors strongly support barring the suit, and the fourth supports the bar, though not as clearly. The grant of summary judgment, construed as a dismissal for lack of jurisdiction, was proper. AFFIRMED. . Jackson's appeal to 32 C.F.R. § 728.21 is unavailing. Under 32 C.F.R. § 728.21, Jackson was entitled to appropriate medical care for treatment of his hand injury because the injury was sustained during Jackson’s period of inactive duty training. He was entitled to such care because of his military status, not, as Jackson contends, on a civilian humanitarian basis. . In Dreier, we also noted that \"Persons involved a medical malpractice claim against a naval hospital, a situation squarely covered by other Feres doctrine cases and Feres itself.” 106 F.3d at 853 n. 8. We discuss the significance of this statement in our analysis of the fourth factor below. . See also Quintana v. United States, 997 F.2d 711, 712 (10th Cir.1993) (addressing Quintana's \"sole argument” that Feres did not apply to her because \"she was on reserve status, rather than active duty status,\" the court held that \"active duty status is not necessary for the Feres ‘incident to service' test to apply.”)." }, { "docid": "17086375", "title": "", "text": "(quotation omitted). Ricks argues that be cause he was fully discharged at the' time of the alleged injuries, his claims are not incident to service. A complete discharge, however, does not automatically transform a servieemember into a civilian for purposes of Feres analysis. The paramount inquiry is whether the alleged constitutional violations are incident to the plaintiffs military service. See Wake v. United States, 89 F.3d 53, 60 (2d Cir.1996) (“The dispositive inquiry ... is not whether the plaintiff was lawfully on active duty at the time his claims arose, but whether he stood in the sort of relationship to the Air Force at the time of the incidents in question that those incidents arose out of activity incident to service.” (quotation and alterations omitted)). In Quintana, this court applied Feres to bar a reserve servicemember’s FTCA claims for injuries sustained as a result of a military surgeon’s medical negligence. See 997 F.2d at 712. As a member of the New Mexico National Guard and the United States Army National Guard, the plaintiff was participating in “inactive duty training” at the time of her injuries. See id. We rejected the plaintiffs argument that Feres was inapplicable to her claims because she was on reserve status. See id. “[W]e have previously held that active duty status is not necessary for the Feres ‘incident to service’ test to apply.” Id. The relevant fact was that her injuries arose from her military relationship, not her status as a reserve member of the national guard. In the habeas context, courts have held that a complete military discharge does not necessarily deprive the military of jurisdiction over the plaintiff. See Kahn v. Anderson, 255 U.S. 1, 8-9, 41 S.Ct. 224, 65 L.Ed. 469 (1920); Ragan v. Cox, 320 F.2d 815, 816-17 (10th Cir.1963). Kahn and Ragan involved military prisoners at the USDB who, upon court-martial for crimes or UCMJ violations committed during incarceration, challenged their imprisonment and argued that their prior discharges rendered them civilians and thus not subject to military law. See Kahn, 255 U.S. at 6-7, 41 S.Ct. 224; Ragan, 320 F.2d at" }, { "docid": "13396968", "title": "", "text": "limited to suits against the United States. We have extended Feres to “suits between individual members of the military, recognizing an ‘intramilitary immunity’ from suits based on injuries sustained incident to service.” Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1480-81 (9th Cir.1991). In sum, the Feres doctrine is applicable “whenever a legal action ‘would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States.’ ” Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir.1997) (quoting McGowan v. Scoggins, 890 F.2d 128, 132 (9th Cir.1989)). Bowen attempts to escape the reach of Feres by arguing that the doctrine applies only to the federal military structure. First, Bowen claims that his status as a state, rather than federal, military employee exempts his claim from the Feres bar. We previously have rejected this argument. “It is beyond question that the Feres doctrine generally applies to claims brought by National Guard members.” Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.1988); see also Jackson, 110 F.3d at 1487 (“Members of the National Guard and the Reserves are service members under Feres.”); cf. Wright v. Park, 5 F.3d 586, 588 (1st Cir.1993) (“It is axiomatic that the National Guard is military in character.”). The fact that Bowen was not on active duty with the United States Air Force Reserve does not alter this conclusion, see, e.g., Quintana v. United States, 997 F.2d 711, 712 (10th Cir.1993) (“active duty status is not necessary for the Feres ‘incident to service’ test to apply”); Velez v. United States ex rel. Dept. of Army, 891 F.Supp. 61, 63 (D.Puerto Rico 1995) (“The distinction between an ‘active’ and ‘inactive’ National Guard serviceman relative to the Feres doctrine is irrelevant.”), particularly where, as here, the service member is on full-time duty as a member of the federally authorized AGR. We follow Stauber and conclude that Bowen’s status as a member of the National Guard triggers application of Feres, despite the fact that he was serving as a member of the Alaska Air National Guard under" }, { "docid": "16624623", "title": "", "text": "on Tort Actions Against the United States by Family Members of Servicemen, 50 Fordham L.Rev. 1241, 1244 (1982). The fact that an officer might refrain from giving an order to the soldier because a civilian might ultimately sue the United States is so ephemeral and far-fetched that it is given no weight at all in determining the limits of Feres. To support mili tary discipline, it is enough to preclude suit against the government based upon injuries to members of the armed forces. At the other end of the spectrum, a few courts have gone so far as to hold that as long as the plaintiff was a serviceman subject to military discipline when the injury occurred, the claim is barred by Feres even if the serviceman was not performing military duties when injured. Miller v. United States, 643 F.2d 481 (8th Cir.1980) (wrongful death action on behalf of serviceman killed on base while moonlighting barred); Coffey v. United States, 324 F.Supp. 1087 (S.D.Cal.1971), aff'd per curiam, 455 F.2d 1380 (9th Cir.1972). But see Hale v. United States, 416 F.2d 355 (6th Cir.1969) (Feres only bars injuries that arise out of or in the course of military duty); Downes v. United States, 249 F.Supp. 626 (E.D.N. C.1965) (requiring a nexus between the injury and military discipline). The cases demonstrate that the mere possible effect of a suit on the maintenance of military discipline is not sufficient to bring the Feres bar into play; rather, it is the degree of that effect that is important. Disregarding for a moment those cases involving allegations of genetic damage, in measuring that degree, the two critical factors have been the status of the plaintiff and how the claim arose. If the plaintiff is a serviceman, he will have difficulty distinguishing “the weight of authority tendpng] towards [the] conclusion” that “every action for injuries sustained by an active duty serviceman while on base is barred by Feres.” Miller v. United States, 643 F.2d 481, 493 (8th Cir.1980). Cf. Veillette v. United States, 615 F.2d 505, 506 (9th Cir.1980) (noting the sharp distinction between military personnel" }, { "docid": "13396969", "title": "", "text": "Jackson, 110 F.3d at 1487 (“Members of the National Guard and the Reserves are service members under Feres.”); cf. Wright v. Park, 5 F.3d 586, 588 (1st Cir.1993) (“It is axiomatic that the National Guard is military in character.”). The fact that Bowen was not on active duty with the United States Air Force Reserve does not alter this conclusion, see, e.g., Quintana v. United States, 997 F.2d 711, 712 (10th Cir.1993) (“active duty status is not necessary for the Feres ‘incident to service’ test to apply”); Velez v. United States ex rel. Dept. of Army, 891 F.Supp. 61, 63 (D.Puerto Rico 1995) (“The distinction between an ‘active’ and ‘inactive’ National Guard serviceman relative to the Feres doctrine is irrelevant.”), particularly where, as here, the service member is on full-time duty as a member of the federally authorized AGR. We follow Stauber and conclude that Bowen’s status as a member of the National Guard triggers application of Feres, despite the fact that he was serving as a member of the Alaska Air National Guard under the direct authority of state officers. While Bowen’s first argument against the application of the Feres doctrine focuses upon his own status as a state employee, his second argument against Feres focuses upon the status of the defendants. Bowen urges us not to bar his claims against the state officers because, he argues, the Feres doctrine “cannot be applied to the states,” i.e., it is applicable only to those actions where federal military personnel are somehow implicated in the alleged unlawful conduct. Thus, Bowen distinguishes Stauber by noting that the parties in that case were “under the direct command of a uniformed, full-time U.S. Army lieutenant colonel.” See Stauber, 837 F.2d at 397. In United States v. Johnson, the Supreme Court noted that it had never suggested that the military status of the alleged tortfeasor is crucial to the application of the {Feres] doctrine. Nor have the lower courts understood this fact to be relevant under Feres. Instead, the Feres doctrine has been applied consistently to bar all suits on behalf of service members against" }, { "docid": "14847985", "title": "", "text": "2 (2d Cir.1976) (per curiam)). Under that test, Johnny Bozeman was on “active duty” at the time of his injury and was therefore subject to the Feres doctrine because he was not on furlough. See Feres, 340 U.S. at 146, 71 S.Ct. at 159. Plaintiff also claimed that the Feres doctrine does not apply because the injury occurred off the Depot despite the fact that the allegedly tortious conduct (serving alcohol to a drunken person who would foresee-ably drive a car and injure himself or another) occurred at the Depot. Citing Kohn and Camassar v. United States, 400 F.Supp. 894, 895 (D.Conn.1975), aff’d, 531 F.2d 1149 (2d Cir.1976), the district court expressed some concern that they seemed to make location of the accident site the dispositive factor in deciding whether to apply the Feres doctrine. In both of those cases, however, the challenged conduct of the government occurred on a military base. Camassar involved an automobile accident on a government owned pier; Kohn involved an alleged failure to supervise a soldier who later killed plaintiff’s decedent. The district court in this case, therefore, properly looked to the location of the alleged conduct that gave rise to tort liability in order to determine whether the Feres doctrine barred the suit. See United States v. Shearer, — U.S.-, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). This conclusion is reinforced by referring to other cases where the Feres doctrine has been applied to service members who were injured while taking part in government sponsored social or recreational activities and where the tort victims’ status as members of the armed forces determined their right to participate in those activities. See, e.g., Woodside v. United States, 606 F.2d 134, 142 (6th Cir.1979) (non-appropriated fund Air Force flying club; serviceman on leave at time of accident); Hass v. United States, 518 F.2d 1138, 1141-42 (4th Cir.1975) (horse rented from military riding stable; serviceman off duty); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (on-base swimming pool used for recreation; held, irrelevant whether serviceman was on leave). But cf. Johnson, 704 F.2d at 1438-41 (9th" }, { "docid": "5244805", "title": "", "text": "addition, she argues that Thomason incorrectly focused on the “status” of the service member, whereas subsequent Supreme Court decisions have instructed courts to examine whether the activity was “incident to military service.” We have not previously considered the application of the Feres doctrine to these specific facts. Moreover, the two United States Courts of Appeals that have considered similar facts differ on whether Feres bars suit. See Flowers v. United States, 764 F.2d 759 (11th Cir.1985); Troglia v. United States, 602 F.2d 1334 (9th Cir.1979). Still, an examination of these decisions is instructive. In Floivers, an active duty service member collided with a United States Air Force bus while “driving his civilian automobile home from a personal errand to the grocery store during his offiduty hours.” 764 F.2d at 760. The accident occurred on a public highway maintained and policed by the State of Florida, but running across an easement of land granted by the Air Force. The court rejected the argument that the public accessibility of the road somehow distinguished it from the other roads running across military reservation property. See id. at 761. Instead, the court held that Feres applied because “Flowers’ activity at the time of his accident, although personal, arose out of his life on the military reservation ...” Id. In Troglia, an active member of the Air Force brought suit under the FTCA for personal injuries suffered in an automobile accident with another motorist who had been served intoxicating beverages at the Air Force Base Noncommissioned Officers Club. See 602 F.2d at 1335. The accident took place about one-half mile outside the gate guarding access to the Air Force base, but on property owned by the United States and adjacent to the confines of the Air Force Base. The local government maintained and patrolled the road due to an easement granted by the United States. See id. In reversing the District Court’s grant of summary judgment based on Feres, the court stated that “the connection between mere Government ownership of land near a base and Troglia’s military service is so weak, that the accident’s location" }, { "docid": "129616", "title": "", "text": "States, 357 F.2d 224 (8th Cir. 1966), resulted from injuries sustained by a serviceman while swimming in an on-base pool; as previously noted, recreational activities are an integral part of life on a military post and are, therefore, “incident to service.” It is also appropriate that if a serviceperson is injured while taking advantage of a privilege permitted because of his or her military status, the activity is “incident to service.” Alexander v. United States, 500 F.2d 1 (8th Cir. 1974) (surgery in a military hospital), and United States v. Carroll, 369 F.2d 618 (8th Cir. 1966) (reservist traveling by military transport to a military drill), are consistent with this principle. Feres itself made it clear that injuries incurred by the destruction of on-base living quarters are incident to service;” it is only by virtue of their military service that personnel are quartered on the military reservation. The only case cited by the majority somewhat analogous to this one is Mariano v. United States, 444 P.Supp. 316 (E.D.Va. 1977), aff’d, 605 F.2d 721 (4th Cir. 1979). Mariano was employed in a civilian capacity during his off-duty hours as a night manager at the Tradewinds Club, a recreational facility owned and operated by the United States at the Naval Station in Norfolk. He was injured while attempting to stop a fight at the Club. His claim was held to be barred by Feres. Though factually similar, the Mariano case is distinguishable in an important respect. The Tradewinds Club, established for the purpose of the “well-being, morale and efficiency of enlisted personnel,” was the direct responsibility of military personnel. The Club’s operation and administration was pursuant to instructions and guidelines set forth in manuals prepared by the Chief of Naval Operations. Application of the Feres doctrine is much more appropriate in a factual setting such as Mariano, where the claimant was under the direct control of military personnel, rather than an independent employer. To the extent that Mariano, and other cases decided by foreign courts, cannot be distinguished, I respectfully disagree with their results. The Feres doctrine must not be extended beyond" }, { "docid": "21018669", "title": "", "text": "facility); Warner v. United States, 720 F.2d 837 (5th Cir.1983) (per curiam) (injury suffered on base after serviceman given permission to take the day off); Woodside v. United States, 606 F.2d 134 (6th Cir.1979) (Aero Club member receiving instruction toward commercial pilot’s license); Hass v. United States, 518 F.2d 1138 (4th Cir.1975) (horse obtained from stables owned and operated by government for benefit of service-members). By contrast, where suits have been allowed to proceed, the military personnel involved were not taking advantage of any military program or status, but simply engaging in activities on the same grounds as civilians. See Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (off-duty serviceman in auto accident on highway); Dreier v. United States, 106 F.3d 844 (9th Cir.1997) (returning on openly accessible path from publicly-used beach); Taber v. Maine, 67 F.3d 1029 (2d Cir.1995) (two off-duty personnel involved in off-base auto accident); Kelly v. Panama Canal Comm’n, 26 F.3d 597 (5th Cir.1994) (off-duty sailing in boat acquired from civilian club); Pierce v. United States, 813 F.2d 349 (11th Cir.1987) (auto-motorcycle accident on public road). Jones further argues that this ease involves only malpractice allegations and thus does not sufficiently invoke the concerns expressed by Johnson. This argument too must fail. Not only did two of the cases consolidated and decided with Feres itself bar medical malpractice allegations, 340 U.S. at 137, 146, 71 S.Ct. at 155, 159, but courts have routinely applied Feres to bar medical malpractice claims that arose from treatment by military doctors of active-duty personnel. See, e.g., Collins v. United States, 642 F.2d 217 (7th Cir.1981); Cutshall v. United States, 75 F.3d 426 (8th Cir.1996); Hayes v. United States, 44 F.3d 377 (5th Cir.), cert. denied, - U.S. -, 116 S.Ct. 66, 133 L.Ed.2d 28 (1995); Borden v. Veterans Administration, 41 F.3d 763 (1st Cir.1994); Appelhans v. United States, 877 F.2d 309 (4th Cir.1989); Madsen v. United States, 841 F.2d 1011 (10th Cir.1987); Atkinson v. United States, 825 F.2d 202 (9th Cir.1987); Rayner v. United States, 760 F.2d 1217 (11th Cir. 1985) (per curiam). This" }, { "docid": "1955841", "title": "", "text": "and National Guardsmen. Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.) cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); Estate of Martinelli v. United States Dep’t of the Army, 812 F.2d 872, 873 (3d Cir.), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 44 (1987); Anderson v. United States, 724 F.2d 608, 610 (8th Cir.1983); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969). Although Schoemer was no longer on active duty, he was still in the Army. Because Sehoemer’s duty status does not answer the Feres question dispositively, we consider the other Parker factors. In medical malpractice cases, however, the duty status inquiry subsumes the inquiry concerning the serviceman’s activity at the time of injury. Adams, 728 F.2d at 741. In place of Parker's third factor we inquire whether the serviceman’s treatment was intended to return him to military service. Id. Because the purpose of Schoemer’s medical examination was to allow him to enlist in the Louisiana National Guard, the examination was a prerequisite to his return to military service. One court has applied Feres to bar an FTCA claim arising from a National Guard preenlistment medical examination. Hall v. United States, 528 F.Supp. 963, 967-68 (D.N.J.1981), aff'd, 688 F.2d 821 (3d Cir.1982). Other courts have reached the same result for medical examinations that are a prerequisite to active duty. See Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990); West v. United States, 729 F.2d 1120, 1122-23 (7th Cir.), aff'd en banc, 744 F.2d 1317 (7th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2113, 85 L.Ed.2d 478 (1985); Yolken v. United States, 590 F.2d 1303, 1303 (4th Cir.1979) (per curiam); Calhoun v. United States, 475 F.Supp. 1, 3-4 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980). In Bowers, after a medical examination Bowers was to serve five months in the Air Force Reserve and then go on active duty. The Eighth Circuit considered the three rationales supporting Feres in the context of the pre-induction medical examination. Bowers" }, { "docid": "17086366", "title": "", "text": "107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (applying Feres to bar Bivens claims for damages against military and civilian officials for injuries resulting from the military’s intentional administration of LSD to unwitting volunteer); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (applying Feres to bar an FTCA claim against the United States alleging negligence by civilian employees of the Federal Aviation Administration); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to FTCA claim arising from the decedent servicemember’s murder committed by a fellow service-member which occurred off-duty and off-base); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (applying Feres to bar defendant corporation’s cross-claim against United States for indemnification of ser-vicemember’s injuries arising from military activities); Pringle v. United States, 208 F.3d 1220 (10th Cir.2000) (per curiam) (applying Feres to an FTCA claim for injuries sustained from a beating after plaintiff servicemember was ejected from a military club); Quintana, 997 F.2d 711 (applying Feres to reserve servicemem-ber’s medical malpractice FTCA claim for injuries sustained from military training). Courts have broadened the scope of the incident to service test to encompass injuries that are attenuated from the servicemember’s duty status. In Pringle, this court stated: In recent years, the Supreme Court has broadened Feres, to the point where it now encompasses, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military. Courts applying the Feres doctrine have given a broad reach to Feres ’ “incident to service” test and have barred recovery by members of the armed services for injuries that at first blush may not have appeared to be closely related to their military service or status. Practically any suit that implicates the military’s judgments and decisions runs the risk of colliding with Feres. 208 F.3d at 1223-24 (quotations, citations, and alterations omitted). As a result of the broad application of the incident to service test, “the Feres doctrine has been applied consistently" }, { "docid": "9752549", "title": "", "text": "PER CURIAM. This is an appeal from a district court order dismissing plaintiffs medical malpractice action brought under the Federal Tort Claims Act, 28 U.S.C. § 2674 [FTCA]. The alleged malpractice involved treatment of a knee injury which plaintiff sustained while he was on active duty in the United States Army. The district court dismissed the complaint as barred by the Supreme Court’s decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), as well as by Hamilton v. United States, 564 F.Supp. 1146, 1148 (D.Mass.), aff'd per curiam, 719 F.2d 1 (1st Cir.1983). In Feres the Court held that the FTCA’s limited waiver of sovereign immunity does not extend to “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. Plaintiff argues on appeal that the Feres doctrine does not apply because: (1) he was “off duty,” playing basketball, when he suffered his first knee injury, and (2) the medical care he received in military hospitals was rendered in part by civilian employees. A straightforward application of the “incident to service” test, however, depends on plaintiffs military status in relation to defendant’s allegedly negligent provision of medical treatment. Accord Hata v. United States, 23 F.3d 230, 235 (9th Cir.1994); Quintana v. United States, 997 F.2d 711 (10th Cir.1993); Kendrick v. United States, 877 F.2d 1201, 1203 (4th Cir.1989) (containing additional citations), cert. dismissed, 493 U.S. 1065, 110 S.Ct. 1104, 107 L.Ed.2d 1013 (1990). Plaintiff was .an active servicemember who was entitled to medical treatment at a military hospital precisely because of his military status. Accordingly, his claim is barred regardless of the medical condition treated or the civilian status of the government employees who allegedly participated in it. See Loughney v. United States, 839 F.2d 186, 188 (3d Cir.1988) (citing United States v. Johnson, 481 U.S. 681, 690-91, 107 S.Ct. 2063, 2069, 95 L.Ed.2d 648 (1987)). Plaintiff also argues that his tort claim should go forward because he believes that the compensation otherwise available to" }, { "docid": "14847984", "title": "", "text": "rationales,” that the military relationship has a distinctly federal character and that there is an alternative compensation system.). Courts have come to characterize the core of the Feres doctrine as the consideration that permitting suits under the FTCA by military personnel for service-related injuries would unduly interfere with military discipline. See, e.g., Johnson, 704 F.2d at 1436- (“the most persuasive justification for the Feres doctrine is the potential impact of civil suits on military discipline”). Mrs. Bozeman claims on this appeal that military discipline is not implicated by her suit because her husband was off duty at the time he was injured, and because the injury did not occur at the Depot. The district court properly interpreted the law of this Circuit when it concluded that neither of these facts is controlling. In Kohn v. United States, 680 F.2d 922 (2d Cir.1982), we noted that “military personnel ‘continued in active duty status even when they are on liberty or on leave.’ ” Id. at 925 (quoting Camassar v. United States, 531 F.2d 1149, 1151 n. 2 (2d Cir.1976) (per curiam)). Under that test, Johnny Bozeman was on “active duty” at the time of his injury and was therefore subject to the Feres doctrine because he was not on furlough. See Feres, 340 U.S. at 146, 71 S.Ct. at 159. Plaintiff also claimed that the Feres doctrine does not apply because the injury occurred off the Depot despite the fact that the allegedly tortious conduct (serving alcohol to a drunken person who would foresee-ably drive a car and injure himself or another) occurred at the Depot. Citing Kohn and Camassar v. United States, 400 F.Supp. 894, 895 (D.Conn.1975), aff’d, 531 F.2d 1149 (2d Cir.1976), the district court expressed some concern that they seemed to make location of the accident site the dispositive factor in deciding whether to apply the Feres doctrine. In both of those cases, however, the challenged conduct of the government occurred on a military base. Camassar involved an automobile accident on a government owned pier; Kohn involved an alleged failure to supervise a soldier who later killed plaintiff’s" }, { "docid": "3043162", "title": "", "text": "to service.” Parker at 1013. See also, Warner v. United States, 720 F.2d 837 (5th Cir.1983) {Feres bars claims of an enlisted man who was given day off and was on personal business on the base at time of injury). The Feres doctrine does not generally bar claims of a serviceperson who is on furlough. Harvey v. United States, 884 F.2d 857 (5th Cir.1989) (medical hold pending discharge). Captain Kelly worked Monday to Friday. The accident occurred when he was off-duty for the week-end. Therefore, his duty status falls along the middle of the spectrum and is not a strong indicator of whether he was acting incident to service. See Elliott By and Through Elliott v. United States, 13 F.3d 1555 (11th Cir.1994) (where serviceman on leave for two weeks and accident occurred two days before he was due back, duty status supports allowing liability). Next, we look at where the injury occurred to determine if the location indicates that the activity is service-oriented. Parker, 611 F.2d at 1014. While there is no bright-line rule, Feres is more likely to bar recovery when military personnel are injured on base. Here, Captain Kelly was injured off base, while sailing in the Canal. Third, we examine the activity being performed at the time of the injury to see if it served some military function. Parker, 611 F.2d at 1014. The Commission argues that we should follow the Ninth Circuit’s decision applying the Feres bar in a case in which a service member was injured when her canoe was struck by a motor boat near the Navy facility. Bon v. United States, 802 F.2d 1092 (9th Cir.1986). Bon had rented the canoe from the Navy’s Special Services Center and could only rent it by virtue of her status as a member of the military. Bon was subject to military discipline for violation of the Special Service rules governing the use of the facility and its equipment. In addition, the Special Services Center itself was directly under control of the commanding officer of the San Diego Naval Training Center. The Ninth Circuit found the" }, { "docid": "20052076", "title": "", "text": "on the way to Stills’s house had “nothing to do with” Taber’s military career and was “not caused by service except in the sense that all human events depend upon what has already transpired.” See Brooks, 337 U.S. at 52, 69 S.Ct. at 919-20. The only difference between Brooks and this case is that the Brooks brothers were on furlough, while Taber was on liberty, and that in Brooks the civilian riding in the car was the Brooks’s father, while here it was Taber’s girlfriend. There are no Supreme Court or Second Circuit decisions that require us to give significant weight to this difference, or to apply the Feres bar on any other grounds. In Kohn, 680 F.2d at 925 and in Camassar v. United States, 531 F.2d 1149, 1151 (2d Cir.1976) (per curiam), we held that Feres barred plaintiffs’ suits. In both of these cases the injuries occurred on military bases, and the injured servicemembers were engaged in activities that would ordinarily be covered by workers’ compensation statutes. See Kohn, 680 F.2d at 924 (plaintiffs decedent was shot to death by military colleague while both were assigned to a military police narcotics unit); Camassar, 531 F.2d at 1150 (decedent navy petty officer killed while he was leaving ship for authorized liberty). In Bozeman, the claimant asked us to rule that because the deceased servicemember was off duty, on liberty and off base when he was killed in an auto accident, Feres was inapplicable. See 780 F.2d at 200. In response, we noted that although these facts were considerations in our Feres analysis, none was determinative. In applying Feres, we made much of the fact that the service-member and the tortfeasor (his cohort) got drunk at the NCO club and that the service-member was “only entitled to be in the NCO club because he had an appropriate rank, was a member of the Army, and was on active duty status.” 780 F.2d at 201. Had Bozeman gotten behind the wheel and injured a third party, it would follow from holdings like Bushey, and our own today, that the government would" }, { "docid": "3941034", "title": "", "text": "while paddling a canoe rented from a naval facility, was struck and injured by a motor boat operated by another service member. The court found the motor boat operator’s status as a member of the military “subject to discipline” relevant to its decision. Id. at 1095. Given Millang and Bon, the difference between Persons and the present appeal cannot alter the outcome. B Even putting Shearer and Persons aside, virtually every other significant precedent suggests that the Feres doctrine bars appellants’ suit. For example, in Atkinson, this court held that a servicewoman could not pursue a claim for allegedly negligent prenatal care received at a military hospital while she was on active-duty status. The court explained that even though the lawsuit did not implicate concerns of military discipline or encroach upon “ ‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,’ ” the broad reach of the Feres doctrine nonetheless precluded the action. Atkinson, 825 F.2d at 205 (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973)). Similarly, in Veillette v. United States, 615 F.2d 505 (9th Cir.1980), this court held that the parents of an Air Force serviceman who had been treated at a naval hospital after an off-duty motorcycle accident could not sue the government for the alleged negligence of the hospital’s doctors and employees. In the court’s view, it was immaterial that Veillette had been off duty at the time of the accident; that he had been a member of the Air Force and not a member of the Navy; and that the treating naval hospital attended to both civilian and military personnel. As the court explained, “allegations of medical malpractice, the basis of two of the claims rejected in Feres, have consistently been held to fall within the bounds of the doctrine when the plaintiff was a serviceman on active duty at the time of the alleged malpractice.” 615 F.2d at 507 (citing numerous cases); see also Persons, 925 F.2d at 296 (“In this Circuit, Atkinson ... and Veillette ... are" }, { "docid": "1955840", "title": "", "text": "and the Government at the time of injury. Adams, 728 F.2d at 739. We view duty status as a continuum ranging from active duty to discharge. Cortez v. United States, 854 F.2d 723, 725 (5th Cir.1988). Duty status may be dispositive; Feres applies to a serviceman who is on active duty and has active status but not to one who has been discharged. Jones, 729 F.2d at 328; Adams, 728 F.2d at 739; see also United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954) (distinguishing servicemen who are on active duty and subject to military discipline from discharged servicemen who have civilian status). Nevertheless, if the serviceman’s duty status falls somewhere in the middle of the continuum, then duty status is less important and we look to the other factors. Kelly v. Panama Canal Comm’n, 26 F.3d 597, 600 (5th Cir.1994). At the time of Schoemer’s examination, he had inactive status in the Army and was preparing to enter the Louisiana National Guard. Feres applies both to reservists and National Guardsmen. Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.) cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); Estate of Martinelli v. United States Dep’t of the Army, 812 F.2d 872, 873 (3d Cir.), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 44 (1987); Anderson v. United States, 724 F.2d 608, 610 (8th Cir.1983); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969). Although Schoemer was no longer on active duty, he was still in the Army. Because Sehoemer’s duty status does not answer the Feres question dispositively, we consider the other Parker factors. In medical malpractice cases, however, the duty status inquiry subsumes the inquiry concerning the serviceman’s activity at the time of injury. Adams, 728 F.2d at 741. In place of Parker's third factor we inquire whether the serviceman’s treatment was intended to return him to military service. Id. Because the purpose of Schoemer’s medical examination was to allow him to enlist in the Louisiana National Guard, the examination was a prerequisite to his" }, { "docid": "23353864", "title": "", "text": "taken into account when deciding whether an activity is truly incident to service. See, e.g., Woodside v. United States, 606 F.2d at 142; Troglia v. United States, 602 F.2d at 1339; Monaco v. United States, 661 F.2d at 132. Once again, however, the duty status distinction cannot be mechanically applied to answer the “incident to service” question. On the contrary, Johnson’s duty status is relevant only insofar as it bears on the relationship between the activity leading to the injury and his military service. Johnson was undeniably an active member of the Air Force at the time of the accident and thus on active duty status. In and of itself, however, his active duty status is not relevant to our inquiry. Rather, the fact that he “was on active duty merely proves that he was not an inactive reservist or a discharged veteran.” Troglia v. United States, 602 F.2d at 1339. The important question is whether the service member on active duty status was engaging in an activity that is related in some relevant way to his military duties. In this case, Johnson’s off-duty work as a bartender bears no such relevant relationship to the military disciplinary structure that the Feres doctrine was meant to safeguard. See supra at 1436. On the contrary, Johnson’s work was similar to the sort of second job in the civilian sector that any off-duty service member might undertake. In short, he was in the same position that any civilian employee of the NCO Club might have been in at the time of the government’s negligence. The fact that Johnson was off-duty for the day is, under the circumstances presented here, sufficient to eliminate any relevant links between his activities and his military service. 3. Benefits Accruing to Plaintiff Because of His Status as a Service Member Several courts have held that the Feres doctrine bars suits by service members injured while engaging in on-base or government-sponsored recreational activities. See, e.g., Woodside v. United States, 606 F.2d at 142 (Air Force-sponsored flying club); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (on-base swimming" }, { "docid": "129575", "title": "", "text": "even though injury occurred on military base). . See generally, cases cited supra notes 6 and 7. . Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (claim barred under Feres because of claimant’s active duty status and presence on base, even though engaged in off-duty recreation); Knoch v. United States, 316 F.2d 532 (9th Cir. 1963) (malpractice claim barred under Feres even though claimant was on active duty status for purposes of physical examination only); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff'd, 605 F.2d 721 (4th Cir. 1979) (claim barred under Feres because of claimant’s active duty status and presence on base even though injury occurred during off-duty hours); Frazier v. United States, 372 F.Supp. 208 (M.D.Fla.1973) (during normal duty hours, claimant was injured while on personal business by a nonmilitary government employee; claim barred because it is the status of the claimant, not the status of the tortfeasor, which controls). . [E]ven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then . . he will be barred from suing the Government. Herreman v. United States, 332 F.Supp. 763 at 766 (E.D.Wis.1971). See also, Shults v. United States, 421 F.2d 170 (5th Cir. 1969) (serviceman was injured while on leave and he was brought to naval hospital where he died of alleged malpractice; held: administrator’s claim was barred because deceased would not have been in a military hospital but for his military status); Buer v. United States, 241 F.2d 3 (7th Cir. 1956), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954) (claimants had passes, were in civilian clothes and on personal business when injury occurred on base; held: claims were barred under Feres because claimants were under military jurisdiction); Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99" } ]

[ { "docid": "22758979", "title": "", "text": "26, 1910, amending § 3 of the act of February 20, 1907, and §§ 20 and 21 of the latter act. Section 3 provides: . . Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States, or who shall receive, share, in, or derive benefit from any part of the earnings of any prostitute; or who is employed by, in, or in connection with any house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes, or where prostitutes gather, or who in any way assists, protects, or promises to protect'from arrest any prostitute, shall be deemed to be unlawfully within the United States and shall be deported in the manner provided by sections twenty and’ twenty-one of this Act. . . • Section 20 provides that any alien who enters the United States in violation of law., etc., shall, upon the warrant, of the Secretary of Commerce and Labor, be deported to the country whence he came within three years after hi's entry into the United States. Section 21 provides that the Secretary of Commerce and Labor, upon being satisfied that an alien is found in the United States in violation of the act or is subject to deportation under the act or- any law of the United States, shall cause such alien to be taken into custody and returned to the country whence he came within three years after landing or entry in the United Stakes. The act also' provides for a hearing before an inspector or commissioner under rules prescribed by the Secretary of Commerce and Labor. The inspector or commissioner reports his' conclusions and the testimony.on which they are based to the Secretary, who, after examination, may order a release or deportation, as in his judgment the case may warrant. Under this statute the Secretary of Commerce and Labor has provided, certain instructions £ind rules, some of which will be hereinafter noticed. That Congress may pass laws" } ]

[ { "docid": "5588591", "title": "", "text": "under the warrant were convicted of crimes under such circumstances that the Secretary without more might have found them undesirable as residents, the warrant of deportation made no such express finding. In this connection, the Supreme Court said: * *, * There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10, 1920, and that they were finally convicted of the offenses named in the act. They could not have been found in the United States in violation of the Act of 1920 until after the Secretary had found that they were undesirable residents. * * * Does this omission invalidate the warrant? The finding is made a condition precedent to deportation by the statute. It is essential that, where an execu tive is exercising delegated, legislative power, lie should substantially comply with all the statutory requirements in its exercise and that, if Ms making a finding is a condition precedent to tMs act, the fulfillment of that condition should appear in the record of the act. [Pp. 43,44.] In Panama Refining Co. v. Ryan, 293 U.S. 388, the authority delegated to the President under section 9(c) of Title 1 of the National Industrial Recovery Act was challenged. Subsidiary to the main objection of unconstitutionality, the Supreme Court found the. executive order defective, because it contained no finding or statement of grounds for the order. Pertinent to our inquiry here, the United States Supreme Court, citing Wichita R.R. & Light Co., supra, and Mahler, supra, stated: * * * If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern, the exercise of the authority conferred, the President could not act" }, { "docid": "21285253", "title": "", "text": "of § 1253, if the country designated by the alien refused to accept him or fails to reply there may be as many as seven additional “false starts” before a country is found which will accept him. To impose on the issuing authorities the probable duty of múl-tiple amendment where not required by statute, would be unreasonable. The empowering authority for deportation is the statute. Section 1252 of Title 8, U.S.C.A. provides that after a Special Inquiry Officer has conducted designated proceedings, if he finds the-alien deportable, an order of deportation shall be issuable. The Warrant of Deportation is merely an administrative-matter which becomes available only after the order of deportation has become final. See, 8 C.F.R. §§ 242.17-.22, 243.1. Any contention that the alien has been denied his rights because the warrant did not give him notice of the country to which he was to be deported is without merit. He was immediately notified by receipt of the Immigration and Naturalization Form 1-294. There is no requirement that the Warrant of Deportation set forth the country to which an alien, properly deportable, is to be deported. There is no such requirement in the statute, in the regulations or in the cases interpreting that, statute and regulations. Nor do any general demands of justice and fair play necessitate the imposition of such a burden upon the Immigration Service. With the greater freedom granted the alien in regard to his country of destination under § 1253, it is no longer feasible that. the warrant bear the name of the country. Notice requirements are amply satisfied by Form 1-294. The plaintiff’s contention is wholly without merit; his motion for a stay ■of deportation is denied and the defendant’s motion for summary judgment is granted. So ordered. “It would seem, however, that the warrant of deportation is defective, in that it does not name the country from -whence petitioner came and to which he is to be deported. For this reason it is uncertain, and authorizes deportation nowhere. It must contain specific directions for the protection of the party to be deported, and" }, { "docid": "7827576", "title": "", "text": "country. Upon his arrival at New Orleans, the petitioner was taken into custody by the Immigration authorities and, after a hearing before a Board of Special Inquiry, U.S.C.A. Title 8, § 153, an order was made by the Commissioner of Immigration and Naturalization, excluding the petitioner from the United States on the ground that he was not in possession of a valid immigration visa or passport and was not exempted from the presentation thereof. Presumably, under ordinary circumstances, the petitioner would then have been returned to the place whence he came. Apparently this course was not practicable, as the Government of Guatemala had expelled him and evidently was not willing to permit his return. For some unexplained reason the petitioner was then incarcerated in jail in New Orleans instead of being detained at an immigration station. After several months’ confinement in that institution, he was transferred to the Immigration Detention Station at Ellis Island, New York. Deportation proceedings were instituted against him on December 6, 1946, by the issuance of a warrant based on the ground that the petitioner was brought to this country in violation of law, U.S.C.A. Title 8, § 154. After a hearing before an inspector, the Commissioner of Immigration and Naturalization ordered the petitioner’s deportation to Guatemala if that country would accept him, otherwise to Germany. The Board of Immigration Appeals after reviewing the order of the Commissioner, ordered the petitioner’s deportation to Germany and on April 9, 1947, a warrant to that effect was issued. On the petitioner’s application, a writ of habeas corpus was granted to review the decision of the Immigration authorities. At the hearing on the return to the writ, it was contended by the petitioner that he was not subject to the immigration laws, in view of the fact that he came to this country against his will and was brought here by compulsion. This contention was overruled. This court held that the decision of the Circuit Court of Appeals in United States ex rel. Bradley v. Watkins, 2 Cir., 163 F.2d 328, on which the petitioner relied, related solely to" }, { "docid": "21344273", "title": "", "text": "agents seized petitioner, threw him into jail after coercing him to make certain statements, and held him incommunicado 3 or 4 days, with no charge against him, and by threats and intimidation without advice of friends or counsel forced petitioner to make a statement, on which statement appellee’s agents without further evidence, on May 21 or May 22, 1931, issued said warrant of arrest and deportation against petitioner; that on such unlawfully obtained evidence the appellee is preparing and threatening to deport petitioner, which is beyond the jurisdiction and authority of the appellee to do.- The appellant Giovanni Spica alleges that' he is a subject of Italy; that he legally entered the United States at New York in August, 1919, and has not since left the United States; that he has a wife and three children in the United States, the children having been bom in the United States; that on or about July 3,1930, when he was incarcerated in the matter here complained of, the appellee, through his agents and inspectors, without any warrant of arrest and deportation, subjected petitioner to an examination when he was deprived and denied the aid, advice, and assistance of friends or counsel, which examinations and the statements obtained thereby, were and are illegal; that said statements and evidence should be returned to the petitioner and destroyed; that on August 21, 1930, appellee issued a warrant of arrest and deportation against petitioner, chm'ging “that petitioner had been convicted under subdivision (a), sec. 2 of the act of May 26, 1922,” which is not a cause for deportation; that-said warrant is void on its face and is beyond the jurisdiction of appellee and should be quashed; that said warrant and some proceedings that have been had thereunder have been based in material part on said illegal statements and evidence, thereby invalidating said warrant and proceedings; that after the issuing of said warrant, petitioner was unlawfully arrested thereunder and -admitted to bail under bond of $1,000; that now the ap-pellee is threatening to deport this petitioner under said warrant and to declare the said bond forfeited," }, { "docid": "22551921", "title": "", "text": "Mr. Justice Brandéis delivered the opinion of the Court. • Bilokumsky is said to have entered the United States in 1912. In May, 1921, he was arrested in deportation proceedings. upon a warrant of the Secretary of Labor as being an alien within the United States in violation of law. The specific ground was having in his possession for the purpose of distribution printed matter which advocated the overthrow of the Government of the United States by force or violence. Act of- October 16, 1918, c. 186, §§ 1 and 2, 40 Stat. 1012, as amended June 5, 1920, c. 251, 41 Stat. 1008. After a hearing, granted to enable him to show cause why he should not be deported, a warrant of deportation issued. While in the custody of the Commissioner of Immigration at the Port of New York, he filed in the federal court this .petition for a writ of habeas corpus. That court heard the case upon the return and a traverse thereto; dismissed the writ; remanded the relator to the custody of the Commissioner; allowed an appeal; and stayed deportation until further order. The case is here under § 238 of the Judicial Code, the claim being that the relator was denied rights guaranteed by' the Fourth and Fifth Amendments to the Federal Constitution. Prior to the application for the warrant of arrest in the deportation proceedings, Bilokumsky was confined to Moyamensing Prison, Philadelphia, on charges made by city-authorities that he had violated the state sedition law. While there he was sworn and interrogated by an immigration inspector who took a stenographic report of the examination. In answer to'questions so put he admitted. that he was an alien, but denied that he had done anything which rendered him liable to .deportation. There is nothing in the examination which suggests that Bilokumsky made his statement because of threats or promises of favor; and there was no evidence that the statement was an involuntary one, unless compulsion is to be inferred from the fact that he was at the time in custody; that city and federal authorities were" }, { "docid": "5588590", "title": "", "text": "finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We can not agree to this. [P. 59.] In Mahler v. Eby, 261 U.S. 32, the United States Supreme Court reviewed the validity of a warrant which had been issued by the Secretary of Labor for deportation of certain aliens. The warrant was issued under authority delegated to the Secretary of Labor by Congress, which provided that aliens of certain classes described in the act, in addition to those for whose expulsion authority already existed, should upon warrant be taken into custody and deported as provided by law, “if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States.” The Supreme Court held the warrant was invalid, on the ground that while the aliens under the warrant were convicted of crimes under such circumstances that the Secretary without more might have found them undesirable as residents, the warrant of deportation made no such express finding. In this connection, the Supreme Court said: * *, * There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10, 1920, and that they were finally convicted of the offenses named in the act. They could not have been found in the United States in violation of the Act of 1920 until after the Secretary had found that they were undesirable residents. * * * Does this omission invalidate the warrant? The finding is made a condition precedent to deportation by" }, { "docid": "7480690", "title": "", "text": "petitioners as to their rights to enter and be in the United States and to make a report of the examination to the Secretary of Labor; that the petitioners had a fair hearing and were granted their full legal rights in the premises. These returns were traversed, and hearings had on the issues raised thereon; no testimony being offered. Since the decision of the Supreme Court in United States v. Wong You, 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354, there is no1 longer any question but that Alien Immigration Act Feb. 20, 1907, c. 1134, § 36, 34 Stat. 898, 908 (Comp. St 1913, 4285), applies to Chinese laborers irregularly coming to this, country, notwithstanding the special acts relating to the exclusion of Chinese. This decision completely disposes of and sets at rest any possible contention that they can be dealt with only under the Chinese Exclusion Acts of earlier date. There is also1 no remaining doubt as to the right of the Department of Labor to order the deportation of an alien immigrant to the co'untry from which he originally came, notwithstanding his immediate entry into this country may have been from Canada. Lewis v. Frick, 233 U. S. 291, 302, 34 Sup. Ct. 488, 58 L. Ed. 967. In the case just cited the question was whether the alien should have been deported to Canada, whence he came upon the occasion of his unlawful entry into the country, rather than to Russia, the land of his birth, from which he came six years earlier. It was held that the act admitted of the return of the alien to Russia. The court in the course of its opinion said on page 303 of 233 U. S., on page 493 of 34 Sup. Ct. (58 L. Ed. 967): “Respecting this matter, the sections are somewhat lacking in clearness. But, at least, section 35 indicates a legislative intent that aliens subject to do.poi cation shall be taken to trans-Atlantic or trans-Pacific ports, if they came thence, rather than to foreign territory on this continent, although it" }, { "docid": "7480688", "title": "", "text": "1134, 34 Stat. 898, and the amendments thereto-, but that the warrant was in fact issued under Chinese Exclusion Act April 27, 1904, c. 1630, 33 Stat. 394, 428, and the rules thereunder, and that the immigration officers cannot invoke the provisions of both statutes against the' relators ; and (2) the relators are not aliens, but citizens of the United States, by reason of being born herein, and as such are entitled to a judicial determination by a competent court under the law of the land upon the question of citizenship, and that the immigration authorities have no jurisdiction over them. Upon the filing the petitions, writs of habeas corpus were issued, to which returns were made setting forth, in substance, that each of the petitioners is in custody and detained by, under, and pursuant to warrants of arrest and deportation granted and issued by the Acting Secretary of Babor of the United States, directed to the United States Commissioner of Immigration at Montreal, or to any immigrant inspector in the service of the United States, commanding the arrest of the petitioners on the charges as set forth in the several warrants of arrest; that the petitioners were duly granted a hearing on the charges set forth in said warrants of arrest by the immigration inspector in charge, a copy of the minutes and a report of the proceedings taken upon the hearings being attached tq- and made a part of the return; that these minutes and reports of the proceedings were duly forwarded by the immigration inspector to the Secretary of Babor of the United States for.his decision and action thereon; and that the Acting Secretary of Babor thereupon issued warrants of deportation under which warrants the petitioners are held by the respondent; that the warrants of arrest and the warrants’ of deportation were properly and lawfully granted and issued; that the petitioners are alien immigrants, subject to the immigration laws of the United States; that the Acting Secretary of Labor had lawful authority to issue said warrants, and that the respondent was duly authorized to examine the" }, { "docid": "22336312", "title": "", "text": "corpus showed either that facts existed at the time of the arrest or had occurred since, which made the detention legal, the court would not release the prisoner but would do what justice required and would dispose of the prisoner accordingly. Iasigi v. Van De Carr, 166 U. S. 391; Stallings v. Splain, 253 U. S. 339, 343; Bilokumsky v. Tod, 263 U. S. 149, 158; Mensevich v. Tod, decided this day, post, 134. In the case before us the defect in the warrants of deportation has not been supplied. The defect is jurisdictional. There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10,1920, and that they were finally convicted of the offenses named in the act. They could not have been found in the United States in violation of the Act of 1920 until after the Secretary had found that they were undesirable residents. Appellee’s argument is that, therefore, this must be taken to mean that he finds them undesirable citizens. But the words “ have been found ” naturally refer to a time when the warrant of arrest was served on them, and before he had them before him. They exclude a possible meaning that he was then making their stay in the country illegal by implication of a finding that they were undesirable. This conclusion is borne out by the language of the Secretary in the warrant of arrest which before the hearings he issued against the petitioners and in which he directed their arrest on the ground that they had been found in the United States in violation of the Act of May 10, 1920. It would clearly appear from these two documents, which are naturally to be construed in pari materia, that" }, { "docid": "13523071", "title": "", "text": "HALE, District Judge. Tbe petitions for. habeas corpus allege that, by a decree of the Department of Labor, the petitioners have been ordered to be deported from the United States to Canada. The Department of Labor claims that the evidence in the hearing held before Carr G. Horne, Immigrant Inspector, at Rumford, Me., discloses the petitioners to have entered the United States unlawfully and without inspection, and that each- is likely to become a public charge; that the petitioners are at Rumford, Me., under the restraint of Samuel H. Howes, district director of immigration at the port of Portland, by virtue of an order of the Department of Labor requiring the said Howes to deport the petitioners; that the petitioners gained a lawful entrance into the United States from Canada; that there is no evidence that they will ever become a public charge; and that the order of deportation is null and void, because it violates the provisions of treaties heretofore made between the United States of America and Canada. In- each of the above cases writ of habeas corpus issued, dated November 17,1925; the return upon said writ was made by District Director Howes on December 8, 1925. The return shows that the petitioners were arrested by Samuel H. Howes, district director of immigration, on a warrant of arrest, and that on September 29, 1925, warrant for the deportation of the petitioners was issued by the Second Assistant Secretary of Labor of the United States, for violation of the Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%a et seq.); that the said aliens entered without inspection, and that they were persons likely to become public charges at the time of their entry. The petitioners are duly held in custody and brought before the court. The hearing in each case is upon the writ and the return thereon. It appears by the testimony taken before Inspector Horne that both petitioners came to this country between 1905 and 1908; that they were married in 1911; that both petitioners made a trip to Canada" }, { "docid": "8393272", "title": "", "text": "must pursue the procedure and rules enjoined and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. “It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We can not agree to this.” [260 U.S.p. 59, 43 S.Ct. p. 55.] In Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549, the United States Supreme Court reviewed the validity of a warrant which had been issued by the Secretary of Labor for deportation of certain aliens. The warrant was issued under authority delegated to the Secretary of Labor by Congress, which provided that aliens of certain classes described in the act, in addition to those for whose expulsion authority already existed, should upon warrant be taken. into custody and deported as provided by law, “if the Secretary of Labor, after’ hearing, finds that such aliens are undesirable residents of the United States.” The Supreme Court held the warrant was invalid, on the ground that while the aliens under the warrant were convicted of crimes under such circumstances that the Secretary without more might have found them undesirable as residents, the warrant of deportation made no such •express finding. In this connection, the Supreme Court said: “ * * * There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10, 1920, and that they were finally convicted of the offenses named in" }, { "docid": "5722737", "title": "", "text": "POSNER, Circuit Judge. This appeal from the denial of a petition for a writ of habeas corpus requires us to consider a question of first impression in this circuit: whether someone who is in custody because the government is trying to deport him may test the legality of his detention in a habeas corpus proceeding after formal deportation proceedings have begun but before a final order of deportation has issued. At about 3:30 p. m. on May 20, 1981, criminal investigators of the Immigration and Naturalization Service entered an apartment in Chicago and arrested the two petitioners on suspicion that they were illegal aliens. The investigators did not have arrest warrants. Nevertheless, had the officers been in the apartment lawfully, the arrests might have been lawful under 8 U.S.C. § 1357(a)(2), which authorizes any INS officer “to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States [illegally] and is likely to escape before a warrant can be obtained for his arrest.” But it seems to be conceded that the officers were in the apartment lawfully only if they entered with the consent of at least one of the occupants; and the court below, which denied the petition for habeas corpus after the petitioners had completed the presentation of their evidence, held that they had made out a prima facie case that the entry was not consented to. For purposes of this appeal, therefore, we shall treat the arrests as unlawful. Once in the apartment the officers proceeded to search it and to question the petitioners, extracting certain admissions that the petitioners contend were fruits of the illegal arrests. After being questioned, the petitioners were taken to a local jail. There was no deportation proceeding pending against them at the time of the arrests. A half hour after the arrests, the petitioners’ lawyer tried to submit an oral petition for habeas corpus to a federal judge, complaining that the arrests and resulting detention were unlawful. The lawyer was told to come back the next morning (May 21)" }, { "docid": "22354495", "title": "", "text": "Mr. Justice Pitney delivered the opinion of the court. Petitioner is an alien and a native of Russia. He came thence to this country, entering at the port of New York, in the month of September, 1904, lived in or near New York; City until March, 1910, then removed to Detroit, Michigan, and has since made that city his home. On November 17, 1910, he crossed the river from Detroit to Windsor, Canada, and brought back with him into the United States a wopaan, avowed by him to be his wife, but whose actual status was questioned, as will appear. A few days later he was arrested upon a warrant from the Department of Commerce and Labor, issued under the Immigration Act of February 20, 1907, as amended March 26, 1910, and after a hearing conducted by an inspector, the Secretary, on February 14, 1911, found \"That said alien is a member of the excluded classes, in that he . . . procured, imported and brought into the United States a woman for an immoral purpose,” etc., and thereupon ordered that he be deported to the country whence he came, to wit, Russia. Meanwhile, he was indicted in the United States District Court for a violation of § 3 of the Act, the charge being that on the occasion above referred to he knowingly imported an alien woman from a foreign country for an immoral purpose, to wit, illicit concubinage and cohabitation. The trial of the indictment resulted, on March 23, 1911, in a verdict of not guilty. On April 13th petitioner, being in custody under the deportation warrant, sued out a writ of habeas corpus from the United States Circuit Court. Appended to his petition for the writ was a copy of the record of his examination by the inspector, including the testimony and a list of exhibits but not the exhibits themselves. In his answer the immigration inspector set up the warrant of deportation as his authority for detaining petitioner, and recited the arrest and examination, and the finding of the Secretary of Commerce and Labor. The Circuit" }, { "docid": "23450348", "title": "", "text": "does not show what act or acts bring Lee Sim within the excluded classes, and that it gave him no knowledge as to the reasons why he was taken into custody. There is nothing to the objection thus‘raised, for the warrant specifically states “that the said alien is unlawfully within the United States, in that he entered without inspection,” contrary to the provisions of the acts of Congress. As the warrant specifically charges him with the fact that he is unlawfully in this country because he entered it without inspection, it is sufficient, if upon a fair hearing the charge is sustained by the facts disclosed, to justify his deportation. It is contended that this man should not be deported to China, from which he originally came, but should be sent to Canada; that being “the country from whence he came” directly into the United States. It is provided in section 35 of the Immigration Act: “That the deportation of aliens arrested within the United States after •entry and found to be illegally therein, provided for in this act; shall, be to the trans-Atlantic or trans-Pacific ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory.” The question as to whether he is to be returned to China is answered for us by the Supreme Court in the recent cáse of Lewis v. Frick, 233 U. S. 291, 302, 34 Sup. Ct. 488, 58 L. Ed. 967 (1914). In that case the question was whether the alien should have been deported to Canada, whence he came upon the occasion of his unlawful entry into this country, rather than to Russia, the land of his birth from which he came six years earlier, and it was held that the act admitted o E the return of the alien to Russia. The court in the course of its opinion said : “Respecting this matter, the sections are somewhat lacking in clearness. But at least section 35 indicates a legislative intent that" }, { "docid": "22336311", "title": "", "text": "people, and their having been interned may have little bearing on their being good material for residents or citizens when peace returns; but the aliens in this, case were convicted of crimes under such circumstances that the Secretary without more might find them undesirable as residents. But the Secretary made no express finding, so far as the warrant for deportation discloses. It is contended that this renders the warrant invalid. It is answered on behalf of the appellee, that, in 'habeas corpus proceedings, the prisoner is not to be discharged for defects in the original arrest or commitment, because the object of the proceeding is not like an action to recover damages for an unlawful arrest or commitment, but is to ascertain whether the prisoner can lawfully be detained in custody, citing Nishimura Ekiu v. United States, 142 U. S. 651, 662. What that case really decided was that, even if the arrest was unjustified by the warrant or commitment on its face, yet if the evidence on the hearing of the petition for habeas corpus showed either that facts existed at the time of the arrest or had occurred since, which made the detention legal, the court would not release the prisoner but would do what justice required and would dispose of the prisoner accordingly. Iasigi v. Van De Carr, 166 U. S. 391; Stallings v. Splain, 253 U. S. 339, 343; Bilokumsky v. Tod, 263 U. S. 149, 158; Mensevich v. Tod, decided this day, post, 134. In the case before us the defect in the warrants of deportation has not been supplied. The defect is jurisdictional. There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10,1920, and that they were finally convicted of the" }, { "docid": "21285254", "title": "", "text": "the country to which an alien, properly deportable, is to be deported. There is no such requirement in the statute, in the regulations or in the cases interpreting that, statute and regulations. Nor do any general demands of justice and fair play necessitate the imposition of such a burden upon the Immigration Service. With the greater freedom granted the alien in regard to his country of destination under § 1253, it is no longer feasible that. the warrant bear the name of the country. Notice requirements are amply satisfied by Form 1-294. The plaintiff’s contention is wholly without merit; his motion for a stay ■of deportation is denied and the defendant’s motion for summary judgment is granted. So ordered. “It would seem, however, that the warrant of deportation is defective, in that it does not name the country from -whence petitioner came and to which he is to be deported. For this reason it is uncertain, and authorizes deportation nowhere. It must contain specific directions for the protection of the party to be deported, and for the information of the deporting authorities and agencies.” Ex parte Yabucanin, 199 F. 365, at page 366. “The warrant of deportation directs that the petitioner be returned ‘to the country whence he came.’ This is challenged for indefiniteness, and that for that reason the writ is void on its face. It does not designate the country to which the petitioner shall be taken on deportation. The officer executing the writ could not know from the writ what he was required to do in its execution. He could not execute it without looking outside of the authority under which he is authorized to act. * * * [The alien] cannot simply be sent away. He has a right under the Act to be returned to the country from which he came, and to be protected in that right, the warrant which authorizes the deportation should expressly name the country to which he-is to be taken * * Ex parte Callow, 240 F. 212, at page 216." }, { "docid": "22336310", "title": "", "text": "record herein that such certified copies were used in the hearing of each petitioner. It is clear that the hearing of Nigra was not properly reported and that his case is like the others. But it is said there was no evidence in the hearings of any of them as to their being undesirable residents of the United States. There were their convictions. Those were enough to justify the Secretary in finding that they were undesirable. The statute does not expressly require additional evidence. If it did, there was here the circumstance that, after the examination of the petitioners had proceeded to a, certain point of inquiry, the petitioners under the advice of counsel declined to answer further questions, an attitude from which the Secretary might well infer that what would be revealed by answers would not add to their desirability as residents. Of course the question how much additional evidence should be required must vary with the class which makes its members eligible for deportation. Alien enemies interned during war may be very good people, and their having been interned may have little bearing on their being good material for residents or citizens when peace returns; but the aliens in this, case were convicted of crimes under such circumstances that the Secretary without more might find them undesirable as residents. But the Secretary made no express finding, so far as the warrant for deportation discloses. It is contended that this renders the warrant invalid. It is answered on behalf of the appellee, that, in 'habeas corpus proceedings, the prisoner is not to be discharged for defects in the original arrest or commitment, because the object of the proceeding is not like an action to recover damages for an unlawful arrest or commitment, but is to ascertain whether the prisoner can lawfully be detained in custody, citing Nishimura Ekiu v. United States, 142 U. S. 651, 662. What that case really decided was that, even if the arrest was unjustified by the warrant or commitment on its face, yet if the evidence on the hearing of the petition for habeas" }, { "docid": "7480689", "title": "", "text": "United States, commanding the arrest of the petitioners on the charges as set forth in the several warrants of arrest; that the petitioners were duly granted a hearing on the charges set forth in said warrants of arrest by the immigration inspector in charge, a copy of the minutes and a report of the proceedings taken upon the hearings being attached tq- and made a part of the return; that these minutes and reports of the proceedings were duly forwarded by the immigration inspector to the Secretary of Babor of the United States for.his decision and action thereon; and that the Acting Secretary of Babor thereupon issued warrants of deportation under which warrants the petitioners are held by the respondent; that the warrants of arrest and the warrants’ of deportation were properly and lawfully granted and issued; that the petitioners are alien immigrants, subject to the immigration laws of the United States; that the Acting Secretary of Labor had lawful authority to issue said warrants, and that the respondent was duly authorized to examine the petitioners as to their rights to enter and be in the United States and to make a report of the examination to the Secretary of Labor; that the petitioners had a fair hearing and were granted their full legal rights in the premises. These returns were traversed, and hearings had on the issues raised thereon; no testimony being offered. Since the decision of the Supreme Court in United States v. Wong You, 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354, there is no1 longer any question but that Alien Immigration Act Feb. 20, 1907, c. 1134, § 36, 34 Stat. 898, 908 (Comp. St 1913, 4285), applies to Chinese laborers irregularly coming to this, country, notwithstanding the special acts relating to the exclusion of Chinese. This decision completely disposes of and sets at rest any possible contention that they can be dealt with only under the Chinese Exclusion Acts of earlier date. There is also1 no remaining doubt as to the right of the Department of Labor to order the deportation" }, { "docid": "23450347", "title": "", "text": "the witnesses under oath. The act does not require the inspectors to take sworn testimony. Although they are empowered to administer oaths, they are not required to do so, but may decide the question of the right of an alien to enter the country upon their own inspection and examination. See Nishimura Ekiu v. United States, 142 U. S. 651, 663, 12 Sup. Ct. 336, 35 L. Ed. 1146 (1892); In re Jem Yuen (D. C.) 188 Fed. 350, 353 (1910). _ But if at such hearings the testimony had to be given under oath it could hardly be regarded as necessary that an official interpreter under oath to discharge his duties faithfully should be required in each case to take a separate oath that he would do his duty, faithfully in that particular case. A judge might with as much propriety be required to take an oath at the beginning of each case he is called upon to try. It is said that the warrant of arrest is void on the ground that it does not show what act or acts bring Lee Sim within the excluded classes, and that it gave him no knowledge as to the reasons why he was taken into custody. There is nothing to the objection thus‘raised, for the warrant specifically states “that the said alien is unlawfully within the United States, in that he entered without inspection,” contrary to the provisions of the acts of Congress. As the warrant specifically charges him with the fact that he is unlawfully in this country because he entered it without inspection, it is sufficient, if upon a fair hearing the charge is sustained by the facts disclosed, to justify his deportation. It is contended that this man should not be deported to China, from which he originally came, but should be sent to Canada; that being “the country from whence he came” directly into the United States. It is provided in section 35 of the Immigration Act: “That the deportation of aliens arrested within the United States after •entry and found to be illegally therein, provided" }, { "docid": "8393273", "title": "", "text": "already existed, should upon warrant be taken. into custody and deported as provided by law, “if the Secretary of Labor, after’ hearing, finds that such aliens are undesirable residents of the United States.” The Supreme Court held the warrant was invalid, on the ground that while the aliens under the warrant were convicted of crimes under such circumstances that the Secretary without more might have found them undesirable as residents, the warrant of deportation made no such •express finding. In this connection, the Supreme Court said: “ * * * There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10, 1920, and that they were finally convicted of the offenses named in the act. They could not have been found in the United States in violation of the Act of 1920 until after the Secretary had found that they were undesirable residents. -*• * * “Does this omission invalidate the warrant ? The finding is made a condition precedent to deportation by the statute. It is essential that, where an executive is exercising delegated legislative power, he should substantially comply with all the statutory requirements in its exercise and that, if his making a finding is a condition precedent to this act, the fulfillment of that condition should appear in the record of the act. [264 U.S. pp. 43, 44, 44 S.Ct. pp. 287, 288.] In Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, the authority delegated to the President under section 9(c) of Title 1 of the National Industrial Recovery Act was challenged. Subsidiary to the main objection of unconstitutionality, the Supreme Court found the executive order defective, because it contained no finding or statement of grounds for the order." } ]

[ { "docid": "12534473", "title": "", "text": "LOKEN, Circuit Judge. A jury convicted Forestell Norman Sheppard of conspiring to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Finding that more than 500 grams of methamphetamine were involved in the offense, the district court sentenced Sheppard to 240 months in prison. Sheppard appeals, raising three issues. Most important, from the standpoint of its impact on other cases, is his contention the district court erred in failing to instruct the jury that drug quantity is an element of the crime. Based upon the Supreme Court’s recent decision in Apprendi v. New Jersey, — U.S. —, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we conclude that drug quantity must often be treated as an element of the offense under § 841 but that any error was harmless in this case because the indictment charged Sheppard with conspiring to distribute more than 500 grams, and the jury made a special finding of that quantity. We also reject Sheppard’s arguments that the evidence was insufficient to convict, and that the court’s jury instructions created a material variance between the indictment and the offense proved. Accordingly, we affirm. I. Is Drug Quantity an Element of the Crime? Sheppard was convicted of conspiring to violate 21 U.S.C. § 841(a)(1), which makes it unlawful to possess with intent to distribute any quantity of a controlled substance such as methamphetamine. Sheppard was sentenced in accordance with § 841(b), which is entitled “Penalties” and which provides for increased sentencing ranges based upon a variety of factors, including the type and quantity of illegal drugs involved in the offense. Because of this statutory structure, which separates the definition of “unlawful acts” in § 841(a) from the penalty factors in § 841(b), this court (and most circuits) have held that drug quantity, even if alleged in the indictment, is not an element of the offense and is therefore determined at sentencing by the district court applying the preponderance-of-the-evidence standard, not by the jury applying the beyond-a-reasonable-doubt standard. See, e.g., United States v. Mabry, 3 F.3d 244, 250 (8th Cir.1993), cert. denied, 511" } ]

[ { "docid": "13113", "title": "", "text": "PER CURIAM. A jury convicted Robert A. Pollard of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on the district court’s drug quantity finding, the district court was required to sentence Pollard to imprisonment for five to forty years, and to supervised release for at least four years. See id. § 841(b)(1)(B). Without the drug quantity finding, Pollard would have faced up to twenty years in prison and at least three years of supervised release. See id. § 841(b)(1)(C). The district court sentenced Pollard to eighty-seven months in prison and five years of supervised release. Because the indictment, jury instructions, and verdict form did not specify a drug quantity, Pollard contends his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (other than the fact of an earlier 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). We disagree. Pollard’s prison sentence is less than the twenty-year statutory maximum allowable for conspiracy to distribute methamphetamine regardless of drug quantity in 21 U.S.C. § 841(b)(1)(C). Thus, Pollard’s contention is foreclosed by our decision in United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000), where we held sentences “within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity are permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury ... beyond a reasonable doubt.” Id. at 934. Likewise, Pollard’s five-year term of supervised release does not exceed the life term authorized under § 841(b)(1)(C), and thus does not violate Apprendi. See Aguayo-Delgado, 220 F.3d at 933; United States v. Scott, 243 F.3d 1103, 1108 (8th Cir.2001). Pollard contends Aguayo-Del-gado was wrongly decided, but one panel of this court must follow the decision of an earlier panel until overturned by the court en banc. See United States v. Ortega, 150 F.3d 937, 947 (8th Cir.1998). Last, Pollard" }, { "docid": "20541785", "title": "", "text": "than 1999, and continuing until October 2005, a conspiracy, agreement or understanding to possess with intent to distribute a controlled substance, as described in the indictment, was formed, reached, or entered into by two or more persons; And second, that at some time during the existence or life of the conspiracy, agreement, or understanding, the defendant knew the purpose of the agreement, and with that knowledge then deliberately joined the conspiracy, agreement, or understanding. The evidence received in this case need not prove the actual amount of the controlled substance alleged in the indictment. The government must prove beyond a reasonable doubt, however, that a measurable amount of the controlled substance alleged in the relevant count of the indictment that you are considering was, in fact, involved. Transcript of Proceedings at 24, 34 United States v. Mark, No. 3:06-cr-00080-CVG-RM (D.V.I. Mar. 18, 2008), ECF No. 641. Freeman’s and Mark’s indictment did not just charge the base offense, however, it specified a particular drug type and amount, namely, “five (5) kilograms or more of cocaine,” in violation of 21 U.S.C. § 841(b)(l)(A)(ii)(II). The drug type and amount, for purposes of 21 U.S.C. § 841, serve to increase the statutory maximum penalty allowed once a conviction is obtained. See 21 U.S.C. § 841(b). Following the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), those types of facts must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348 (“[A]ny 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.”). This is so because such facts are treated as the “functional equivalent! ]” of an element of a greater offense. Lacy, 446 F.3d at 454 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348). The essential elements of Freeman’s and Mark’s charged offense are, therefore,: (1) knowing or intentional (2) possession (3) with intent to distribute (4) five kilograms or more (5) of cocaine. It is clear, here, that" }, { "docid": "15333535", "title": "", "text": "individuals who violate 21 U.S.C. § 841(a). 21 U.S.C. § 841(b)(1)(D) defines the sentence for cases dealing with “less than 50 kilograms of marihuana,” and includes the sentence applicable to an individual with a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(D). On the other hand, 21 U.S.C. § 841(b)(4) states that “[njotwith-standing paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.” 21 U.S.C. § 841(b)(4). Section 844 of Title 21 addresses offenses involving simple possession, and provides for a maximum sentence of imprisonment of one year. 21 U.S.C. § 844. Green was convicted under counts 1 and 2 of the indictment. Count 1 charged the defendants with conspiracy to “possess with intent to distribute and to distribute a Schedule I controlled substance, to wit; marijuana, in violation of the laws of the United States, 21 U.S.C. § 841(a)(1) and (b)(1)(B) ... [a]ll in violation of 21 U.S.C. § 846.” Count 2 charged that defendant Green “did knowingly and intentionally, unlawfully attempt to possess with intent to distribute a Schedule I Controlled Substance: to wit, marijuana. In violation of 21 U.S.C. § 846.” Campbell was convicted under counts 1 and 5 of the indictment. Count 1 is set forth above; Count 5 charged that defendant Campbell “did knowingly, intentionally, unlawfully possess with intent to distribute marijuana, a Schedule I Controlled Substance. In violation of 21 U.S.C. § 841(a)(1).” Appellants contend that 21 U.S.C. § 841(b)(4) is the least stringent statutory maximum, and cite to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the proposition that “other 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.” Apprendi 530 U.S. at 490, 120 S.Ct. 2348. Appellants also cite to United States v. Page, 232 F.3d 536, 543-44 (6th Cir.2000)," }, { "docid": "22783988", "title": "", "text": "Supreme Court has directed, we “should correct” the error. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). I regret, and dissent from, the court’s refusal to do so. I. Speaking for a majority of the court, Judge Wilkins clearly and persuasively explains why a specific threshold drug quantity constitutes an element of the aggravated drug trafficking offenses prohibited by 21 U.S.C.A. § 841 (West 1999), which must be charged in an indictment and proven to a jury beyond a reasonable doubt. In this case, the grand jury indicted and the petit jury convicted Promise of a single offense — conspiracy to possess with intent to distribute “a quantity of cocaine and cocaine base.” No specific drug quantity charge was submitted to, or returned by, the grand jury. Consequently, the petit jury that tried Promise never considered the question of drug quantity, let alone found beyond a reasonable doubt that Promise conspired to distribute more than 50 kilograms of cocaine or 50 grams of cocaine base. The statute at issue provides that the maximum sentence for conviction of conspiracy to possess with intent to distribute an unquantified amount of cocaine is no more than 20 years imprisonment. See 21 U.S.C.A. § 841(b)(1)(C). Therefore, under the new rule set forth by the Supreme Court in Apprendi, the maximum prison term that the district court could have legally imposed on Promise for this single count of conspiracy involving an unspecified “quantity of cocaine and cocaine base” is 20 years. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2359 n. 10, 147 L.Ed.2d 435 (2000) (“The judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury”)- Yet the district court, not having the benefit of the decision in Apprendi sentenced' Promise to 30 years imprisonment pursuant to 21 U.S.C.A. § 841(b)(1)(A)(i) for the more serious crime of conspiracy to possess with intent to distribute a specific threshold quantity of Schedule I or II controlled substance, e.g., at least 50 grams of" }, { "docid": "3667305", "title": "", "text": "did not err in sentencing Harris to 60 months’ imprisonment Harris finally argues that the district court violated his rights under the Fifth and Sixth Amendments by not requiring the indictment to allege, and the jury to find beyond a reasonable doubt, the precise quantity of marijuana that he possessed or conspired to distribute. Instead, the judge determined the amount at sentencing. Harris makes the same argument with respect to the enhancement of his base offense level for possessing a firearm, because the judge, not the jury, found the fact of Harris’s firearm possession. The Supreme Court has 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.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “But Apprendi is not triggered where the defendant receives a term of imprisonment within the statutory maximum that would have applied even without the enhancing factor (such as the drug amount).” Burns, 298 F.3d at 544 (internal quotation marks omitted). The first question, then, is whether a term of 60 months exceeds the statutory maximum for a marijuana-conspiracy conviction where the amount of the drug is undetermined. Harris argues that 21 U.S.C. § 841(b)(4) furnishes the applicable statutory maximum. That subsection provides that any person who violates the prohibition on possessing or distributing marijuana “by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.” 21 U.S.C. § 841(b)(4). The maximum term of imprisonment under § 844 is one year. In contrast, the government contends that 21 U.S.C. § 841(b)(1)(D), which provides for a maximum sentence of five years “[i]n the case of less than 50 kilograms of marihuana,” is the statutory maximum. We believe that the government is correct. Because Apprendi is concerned with the facts that a jury must decide, “the proper ‘baseline’ or ‘default’ provision is not the provision with the lowest" }, { "docid": "20955125", "title": "", "text": "not require proof of any additional element beyond those required by the greater offense.” Gov’t of the Virgin Islands v. Joseph, 765 F.2d 394, 396 (3d Cir.1985) (emphasis omitted). To resolve Lacy’s claim, then, we must compare the elements of the charged offense with those of the convicted offense. We have addressed this question once before. In 1992, we noted, without further explanation, that “[t]he crime of simple possession under 21 U.S.C. § 844 is a lesser offense included within the offense of possession with intent to distribute under 21 U.S.C. § 841(a).” United States v. Frorup, 963 F.2d 41, 42 (3d Cir.1992) (citing United States v. Garcia-Duarte, 718 F.2d 42, 47 (2d Cir.1982)). However, changes in the law regarding what constitutes an “element” of an offense, as a result of the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that we examine this issue anew. After Apprendi, “[ojther 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.” Id. at 490, 120 S.Ct. 2348. Such facts are the “functional equivalent[s]” of “elements” of an aggravated offense that carries a higher statutory maximum penalty. Id. at 494 n. 19, 120 S.Ct. 2348. See also United States v. Bar-bosa, 271 F.3d 438, 452-53 (3d Cir.2001) (explaining Apprendi). Thus, we held, in United States v. Barbosa, 271 F.3d at 457, and United States v. Vazquez, 271 F.3d 93, 98 (3d Cir.2001) (en banc), that drug identity and quantity must be treated as elements of a section 841 possession with intent to distribute offense when taking either factor into account increases the applicable statutory maximum. Although we have not previously discussed this issue in the context of a section 844 simple possession offense, we conclude that applying Apprendi to that statute yields the same result that we reached with respect to section 841: drug identity and quantity should be considered the functional equivalents of elements of a simple possession" }, { "docid": "6020883", "title": "", "text": "equal protection by punishing crack cocaine offenses more severely than offenses involving other forms of cocaine. He further contends that he was denied effective assistance of trial counsel and that his conviction was based on insufficient evidence. We find Woods’ arguments to be without merit and affirm. In Apprendi, the Supreme Court held that any fact other than a prior conviction that increases a penalty for a crime beyond the prescribed statutory maximum must be charged and proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. We have found that Apprendi is satisfied where the indictment alleged drug quantity, the jury made a finding of drug quantity, and the district court sentenced the defendant consistent with that finding. United States v. Sheppard, 219 F.3d 766, 769 (8th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Sentences not exceeding the statutorily authorized range do not violate Apprendi. United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). Here, Woods was indicted for and convicted of drug charges that specified drug quantities. Also, the provision under which he was sentenced provides a statutory maximum of life imprisonment, which his 210-month concurrent sentences are obviously well within. 21 U.S.C. § 841(b)(1)(A). Woods concedes as much, yet asserts that the statute under which he was convicted was facially unconstitutional because it requires no drug quantity to be proven. In Apprendi, the Court was not concerned with statutory structure but with sentencing. See 530 U.S. at 490, 120 S.Ct. 2348. Sentencing pursuant to section 841(b)(1)(A) does require proof of drug quantity. E.g., United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001); United States v. Nicholson, 231 F.3d 445, 453 (8th Cir.2000). Woods’ sentences do not transgress Apprendí, see Sheppard, 219 F.3d at 769, and we decline his invitation to revisit Aguayo-Delgado, see United States v. Maynie, 257 F.3d 908, 918 (8th Cir.2001) (“We are obligated to follow what the Supreme Court has said, not guess what it might say in the future.”); United States" }, { "docid": "23288121", "title": "", "text": "also concluded that Jones did not mandate that the drug quantity be included in the indictment and proved to a jury beyond a reasonable doubt. Jordan was sentenced to concurrent terms of life imprisonment on Counts One and Two and twenty years imprisonment on Count Three. II. A. Apprendi Claim Jordan claims the district court erred by sentencing him under 21 U.S.C. § 841(b)(l)(A)(viii), for a crime involving more than 50 grams of methamphetamine, because drug quantity was not charged in the indictment. Jordan claims he should be resentenced under 21 U.S.C. § 841(b)(1)(C), for a crime involving an indeterminate amount of drugs, with a maximum sentence of 20 years for each count, rather than the maximum sentence of life imprisonment under § 841(b)(1) (A)(viii). Because of the Supreme Court’s shift of direction in Apprendi, and our subsequent precedent, we agree that Jordan is entitled to relief. Under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court firmly established a striking rule: “Other 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.” Apprendi expressly left open whether such a fact must also be charged in the indictment, see 530 U.S. at 477 n. 3, 120 S.Ct. 2348, an issue that Jordan presents today. The Supreme Court’s rationale explained that the Apprendi rule was foreshadowed by its decision in Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which had held that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” See Ap- prendi, 530 U.S. at 476, 120 S.Ct. 2348. In United States v. Buckland, 289 F.3d 558, 2002 WL 857751, *6 (9th Cir.2002) (en banc), we expressly held that, in the light of Apprendi, drug quantity was a material fact of a drug offense, and that due" }, { "docid": "6020882", "title": "", "text": "BEAM, Circuit Judge. Defendant Bobby Dion Woods was convicted by a jury of conspiracy to distribute, and to possess with intent to distribute, over fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of possession with intent to distribute over fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The jury acquitted Woods of three other drug counts. In addition to the drug amounts for which Woods was convicted, the district court attributed to him, under a preponderance of the evidence standard, amounts associated with counts on which he was acquitted. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to 210 months’ imprisonment on each conviction, to be served concurrently. Woods appeals his conviction and sentence, challenging the constitutionality of the statute under which he was convicted because it does not require the government to prove drug amount as an element of the offense and thereby violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and because the statute denies equal protection by punishing crack cocaine offenses more severely than offenses involving other forms of cocaine. He further contends that he was denied effective assistance of trial counsel and that his conviction was based on insufficient evidence. We find Woods’ arguments to be without merit and affirm. In Apprendi, the Supreme Court held that any fact other than a prior conviction that increases a penalty for a crime beyond the prescribed statutory maximum must be charged and proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. We have found that Apprendi is satisfied where the indictment alleged drug quantity, the jury made a finding of drug quantity, and the district court sentenced the defendant consistent with that finding. United States v. Sheppard, 219 F.3d 766, 769 (8th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Sentences not exceeding the statutorily authorized range do not violate Apprendi. United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513" }, { "docid": "9699913", "title": "", "text": "overturned lightly,” United States v. Sykes, 977 F.2d 1242, 1247 (8th Cir.1992). The application of these principles to the instant case leads us to conclude that the jury was not unreasonable in finding Mr. Ortiz and Mr. Martinez guilty based on the evidence before it. II. Mr. Ortiz also argues that the trial court erred when it declined to submit the question of drug quantity to the jury. In making this argument, he relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Because the maximum penalty for an offense under 21 U.S.C. § 841(a)(1) increases according to drug quantity, Mr. Ortiz contends that the trial court was obligated under Apprendi to let the jury determine the amount of cocaine attributable to him. We disagree. We have explained previously that “[t]he rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury’s verdict,” United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). In this case, the trial court gave Mr. Ortiz a sentence of 63 months of imprisonment, which is less than the 20-year maximum that the statute authorizes. See 21 U.S.C. § 841(b)(1)(C). Apprendi therefore has no application here. III. Mr. Ortiz asserts that the trial court incorrectly refused to grant him either a two-or four-level reduction to his sentence pursuant to U.S.S.G. § 3B1.2. Under this provision, a sentencing court may decrease the offense level of a defendant if it finds that the defendant is only a minor or minimal participant in the criminal activity. Mr. Ortiz maintains that he deserves a lower sentence than the one that the trial court gave him because the evidence at trial demonstrated, at most, that he played only a small part in the sale of cocaine to the" }, { "docid": "15901747", "title": "", "text": "466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires that “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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Here, Defendant has failed to state an Apprendi claim because all of the conduct relating to the drugs that formed the basis for Defendant’s sentencing calculation was charged in the indictment and his sentence does not exceed the statutory maximum for conviction of those counts. Defendant’s second argument is that his sentence is improper because the Supreme Court made the Federal Sentencing Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a case that was decided approximately five years after Defendant received his sentence. The D.C. Circuit has held that Booker may not be applied retroactively. See In Re Fashina, 486 F.3d 1300, 1306 (D.C.Cir.2007) (“We ... conclude, as have all our sister circuits, Booker does not meet the criteria for retroactive application.”). Accordingly, this claim must also fail. CONCLUSION For the reasons set forth above, the Court shall DENY Defendant’s [228] Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. . Defendant was indicted on the following charges: Count (1) Conspiracy to Distribute 50 Grams or More of Cocaine Base, 21 U.S.C. § 846; Count (2) Unlawful Distribution of 50 Grams or More of Cocaine Base, 21 U.S.C. § 841(a)(1) and § 841 (b)( 1 )(A)(iii); Count (3) Unlawful Distribution of 5 Grams or More of Cocaine Base, 21 U.S.C. § 841(a)(1) and § 841(b)(l)(B)(iii); Count (4) Unlawful Use of a Communication Facility, 21 U.S.C. § 843(b); Count (5) Unlawful Distribution of 50 Grams or More of Cocaine Base, 21 U.S.C. § 841(a)(1) and § 841(b)(l)(A)(iii); Count (6) Unlawful Maintenance of Premises to.Manufacture, Distribute, Store and Use a Controlled Substance, 21 U.S.C. § 856(a)(2); Count (7) Unlawful Possession with Intent to Distribute Cocaine Base, 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii); and Count (8) Unlawful Possession with Intent to Distribute Cocaine, 21" }, { "docid": "9677333", "title": "", "text": "defendant is sentenced to a term of imprisonment within the statutory maximum for the crime of which he was convicted, “Ap-prendi is beside the point.” Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000). Here, Mr. Williams was convicted of possession with the intent to distribute a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a). Although the jury did not specifically find an amount of cocaine base (“crack”) attributable to him, the district court, in sentencing Mr. Williams to a term of 151 months in prison, relied on 21 U.S.C. § 841(b)(1)(A), which authorizes sentences of up to life imprisonment for offenses involving 50 grams or more of a substance containing cocaine base. Nevertheless, because the lowest statutory maximum sentence for any violation of § 841(a) is 20 years when a Schedule II controlled substance is involved, see 21 U.S.C. § 841(b)(1)(C), and Mr. Williams was sentenced to a term of 12 years and 7 months, his sentence was not improper in light of Apprendi. See id. at 869 (‘When a drug dealer is sentenced to less than 20 years’ imprisonment — the limit under 21 U.S.C. § 841(b)(1)(C) for even small-scale dealing in Schedule I and II controlled substances — again, Apprendi is irrelevant ....”); see also United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, — U.S. -, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). In sentencing Mr. Williams, the district court also appears to have relied on 21 U.S.C. § 841(b)(1)(A)(iii)’s requirement that any offense involving more than 50 grams of a substance containing cocaine base should receive a mandatory minimum sentence of 10 years. Mr. Williams claims that the court’s reliance on this mandatory minimum sentence is also violative of Ap-prendi. However, the majority opinion in Apprendi specifically stated that, in cases involving a mandatory minimum sentence, the rule of Apprendi is not implicated when the actual sentence imposed is less severe than the statutory maximum. See Apprendi, 120 S.Ct. at 2361 n. 13 (citing McMillan v. Pennsylvania, 477 U.S." }, { "docid": "9847810", "title": "", "text": "which an infex-ence of guilty knowledge could have been drawn, 922 F.2d at 453, in this case, there was evidence as to more than nervousness that might accompany a routine ti-affic stop. Worley testified that, unlike most people, Butler did not calm down after being told he would not get a ticket. Thus, given the totality of the circumstances, there was sufficient evidence supporting the conspiracy and possession convictions. Sentence Butler challenges his 70-month sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that, under the Fifth and Sixth Amendments, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the presciibed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Butler argues that this court must vacate his sentence because drug quantity was not alleged in the indictment and found by the jury, and that the district court’s quantity finding increased his sentence beyond the 60-month sentence set forth in 21 U.S.C. § 841(b)(1)(D) for possession of less than 50 kilograms of marijuana. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (applying Apprendi to 21 U.S.C. § 841 offenses), cert. denied, 121 S.Ct. 600 (2000). Butler concedes because he did not object below, our review is limited to plain error. See United States v. Poulack, 236 F.3d 932, 937 (8th Cir.2001). Under that standard, “[i]n order to show he is entitled to resentencing under Apprendi [Butler] must prove that the failure to allege quantity in the indictment and the failure of the jury to determine quantity were erroneous, plain, and that these errors affected his substantial rights.” Id. “A defendant’s rights are substantially affected when an error ‘prejudicially influenced the outcome of the district court proceedings.’ ” Id. at 938 (quoting United States v. Aikens, 132 F.3d 452, 455 (8th Cir.1998)). In addition, “this court may not reverse unless the error ‘seriously affected] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 937 (quoting" }, { "docid": "8049156", "title": "", "text": "has since left the program, and was unavailable to testify at Henry’s sentencing hearing. Henry was charged in a one-count indictment with possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). He subsequently pleaded guilty to possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Under the law at the time of his plea, the identity and quantity of the controlled substance was a sentencing factor to be judicially determined by a preponderance of the evidence at a sentencing hearing. See United States v. Watts, 519 U.S. 148, 156, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). Thus, Henry did not plead to any specific drug or quantity. Henry did offer to plead to one ounce of marijuana, but the government would not agree to this plea. Subsequent to acceptance of the plea, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[ojther 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.” As a result of this decision, and prior to the sentencing hearing, Henry requested the District Court to empanel a jury to determine the identity and weight of the controlled substance beyond a reasonable doubt. He did not move to withdraw his guilty plea (and counsel stated at oral argument that Henry does not desire to do so). The Court denied the request, holding that Apprendi did not apply because a conviction for either distribution of marijuana or cocaine base would result in a guidelines sentence less than the forty-year “statutory maximum penalty” that the court concluded would apply to a drug distribution crime. Thus, the court held a sentencing hearing on May 23, 2001, resolving the identity and quantity issues under a preponderance of the evidence standard. The District Court found that the substance distributed by Henry was 22 grams of cocaine base. Accordingly," }, { "docid": "9677332", "title": "", "text": "only Peeler’s testimony as it regarded motive, opportunity, preparation, plan, knowledge, identity and absence of mistake — a procedural safeguard that we often have found to minimize the prejudicial effect of such evidence. See Williams, 216 F.3d at 615; United States v. Griffin, 194 F.3d 808, 821 (7th Cir.1999), cert. denied, 529 U.S. 1044, 120 S.Ct. 1546, 146 L.Ed.2d 358 (2000); United States v. Allison, 120 F.3d 71, 75 (7th Cir.1997). Therefore, the admission of Peeler’s testimony under Rule 404(b) was not an abuse of discretion. B. Mr. Williams also argues that his sentence was determined erroneously. He relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that “[ojther 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.” We cannot accept Mr. Williams’ argument on the basis of existing circuit precedent. We have held that, when a defendant is sentenced to a term of imprisonment within the statutory maximum for the crime of which he was convicted, “Ap-prendi is beside the point.” Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000). Here, Mr. Williams was convicted of possession with the intent to distribute a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a). Although the jury did not specifically find an amount of cocaine base (“crack”) attributable to him, the district court, in sentencing Mr. Williams to a term of 151 months in prison, relied on 21 U.S.C. § 841(b)(1)(A), which authorizes sentences of up to life imprisonment for offenses involving 50 grams or more of a substance containing cocaine base. Nevertheless, because the lowest statutory maximum sentence for any violation of § 841(a) is 20 years when a Schedule II controlled substance is involved, see 21 U.S.C. § 841(b)(1)(C), and Mr. Williams was sentenced to a term of 12 years and 7 months, his sentence was not improper in light of Apprendi. See id. at 869 (‘When a drug" }, { "docid": "22872010", "title": "", "text": "batch of \"maybe a couple of hundred grams” of cocaine powder into crack. .The Guidelines Drug Quantity Table states that \" 'Cocaine base,' for purposes of this guideline, means 'crack.' ” U.S.S.G. § 2D 1.1 (c)(1), Note (D). . By focusing on the crack cocaine Farris saw Weston manufacture on one occasion, we assume that the government has conceded that the evidence concerning Weston’s manufacturing and/or distribution of any other crack cocaine is too imprecise to enable the sentencing court to properly calculate drug amounts, other than by sheer speculation. . We take no position on the government's claim that on remand the district court should resentence Weston using a Base Offense Level of 34. The district court can best make that determination in the first instance. . In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme 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.” Apprendi was not raised as an issue by Weston and was only briefly alluded to at oral argument. However, in an overabundance of caution, we do think that a short discussion of Apprendi is warranted. The superseding indictment charged Weston, Boone, Farris and Jones with conspiring to distribute and possess with intent to distribute more than 5 grams of cocaine base (crack) and more than 200 grams of cocaine contrary to 21 U.S.C. § 841(a)(1) in violation of 21 U.S.C. § 846. As noted above, the government filed an enhanced penalty information against Weston, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851(a)(1). That information referenced a 1992 state felony conviction for possession of crack cocaine with intent to distribute, and Weston does not now challenge that enhancement. As a consequence of his conviction, Weston faces a possible statutory maximum penalty of life imprisonment. See 21 U.S.C. § 841(b)(1)(B) (\"If any person commits such a violation [of § 841(a)] after a prior conviction for a felony drug offense" }, { "docid": "4078690", "title": "", "text": "drug conviction were ele- merits of the indicted crimes that must be proven beyond a reasonable doubt. 1. Failure to Instruct on the Amount of Drugs Possessed The Court rejects Appellant’s arguments. In Apprendi, 120 S.Ct. at 2362-63, the Supreme Court stated that the Constitution requires any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt, (emphasis added). This Circuit has had the opportunity to interpret the Supreme Court’s decision and has held that Apprendi does not apply when a specific factual finding “only narrows the sentencing judge’s discretion within the range already authorized by the offense of conviction.” United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000). See also, United States v. Robinson, 241 F.3d 115, 121 (1st Cir.2001) (“[S]entence-enhancing facts may may be found by the judge under a preponderance-of-the-evidence standard as long as those facts do not result in a sentence that exceeds the original statutory maximum.”). Franklin was charged with three violations of 21 U.S.C. § 841(a)(1) for possession with the intent to distribute cocaine base, powder cocaine, and heroin. Without considering his prior drug conviction, the maximum sentence that Franklin faced on each count was 20 years regardless of drug quantity. See 21 U.S.C. § 841(b)(1)(C). Since Franklin was sentenced to twenty years concurrent on each count, his sentence was within the statutory maximum and there was no Apprendi violation. See Aguayo-Delgado, 220 F.3d at 933-34. When Franklin’s prior drug conviction is considered, the statutory maximum sentence on each count would have been 30 years, see § 841(b)(1)(C), and a prior drug conviction need not be proven to the jury beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2362-63; United States v. Rush, 240 F.3d 729, 731 (8th Cir.2001). E. Alleged Error in Sentencing Appellant to 20 Years on Count II and Count III of the Indictment Appellant argues the district court erred in sentencing him to prison terms of 20 years under Count II and Count III of the indictment based on" }, { "docid": "1627136", "title": "", "text": "McMILLIAN, Circuit Judge. Cordell Ray Simms appeals from a judgment of the district court entered upon a jury verdict finding him guilty of conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a) and 846. On appeal, Simms challenges the imposition of a 262-month sentence. We affirm. We first address Simms’s argument that the sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Apprendi). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. As Simms concedes, 21 U.S.C. § 841(b) imposes a maximum sentence of life imprisonment for convictions involving a conspiracy to distribute 50 grams or more of crack cocaine. Because Simms’s sentence is less than the statutory maximum, there is no Apprendi violation. See United States v. Hollingsworth, 257 F.3d 871, 875 (8th Cir.2001), cert. denied, — U.S. —, 122 S.Ct. 856, 151 L.Ed.2d 732 (2002) (Hollingsworth). Moreover, we note that “[t]he jury need not make an exact drug quantity finding to satisfy Apprendi.” Id. at 878. As here, a jury “need only make findings regarding ranges of quantities relevant to the varying statutory máximums under 21 U.S.C. § 841.” Id. Simms also argues that the district court erred in imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. “We review a district court’s factual findings in support of an obstruction of justice enhancement for clear error and its application of the sentencing guidelines to the facts de novo.” United States v. O’Dell, 204 F.3d 829, 836 (8th Cir.2000). Although § 3C1.1 is not intended to punish a defendant for testifying, “[a] defendant who commits perjury is subject to this enhancement.” Id. “A defendant commits perjury, if under oath, ‘[he or] she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion," }, { "docid": "23433360", "title": "", "text": "proceedings pending against him in two separate district courts. A motions panel of this court denied the motion but directed the parties to submit supplemental briefs on the validity of Dinnall’s sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which the Supreme Court had decided after Dinnall filed his appeal. II. Dinnall contends that the sentence imposed by the district court is invalid under Apprendi. See Apprendi, 530 U.S. at 466, 120 S.Ct. 2348. In that case, Apprendi pleaded guilty to several firearms and weapons offenses. The indictment to which Apprendi pleaded guilty did not allege a violation of New Jersey’s hate crime statute. Nonetheless, at Apprendi’s sentencing, the judge concluded, based on a preponderance of the evidence, that one of the firearms offenses to which Apprendi pleaded guilty was carried out with a biased purpose in violation of the hate crime statute. Because of this finding, the judge imposed a sentence that exceeded the statutory maximum sentences for the crimes alleged in the indictment to which Appren-di pleaded guilty. Rejecting New Jersey’s argument that the hate crime statute was merely a sentencing factor and not a second crime with distinct elements, the Supreme 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Count 1 of the indictment against Din-nall alleges a violation of 21 U.S.C. § 846 which states that a person who conspires to commit a drug offense is subject to the same penalties imposed for the drug offense which the person conspired to commit. The indictment against Dinnall alleges that he conspired to violate 21 U.S.C. § 841(a)(1), which proscribes, among other conduct, the possession of a controlled substance, cocaine base in Dinnall’s case, with the intent to distribute. Subsection (b)(1) of the statute restricts the various penalties that may be imposed for a violation of 21 U.S.C. § 841(a)(1) based" }, { "docid": "23012838", "title": "", "text": "the quantity of drugs he possessed beyond a reasonable doubt. Under Apprendi, “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 Buckland, we held that “drug quantity and type, which fix the maximum sentence for a conviction ... must be charged in the indictment, submitted to the jury, ... and proved beyond a reasonable doubt.” 289 F.3d at 568. In determining whether an Apprendi violation has occurred, our cases have emphasized that “the proper inquiry is whether [the defendant] was exposed to a higher sentencing range by pleading guilty to a certain quantity of [a controlled substance] ... regardless of his actual sentence.” United States v. Villalobos, 333 F.3d 1070, 1076 n. 7 (9th Cir.2003) (emphasis in original); accord Minore, 292 F.3d at 1121 n. 10; see also Banuelos, 322 F.3d at 705 (noting that the inquiry as to whether an Apprendi violation occurred is separate from whether it is harmless error); United States v. Velasco-Heredia, 319 F.3d 1080, 1085 (9th Cir.2003) (finding an Apprendi violation even though the defendant’s sentence did not exceed the statutory maximum where no drug quantity is alleged, because he was exposed to a higher statutory maximum); United States v. Anto-nakeas, 255 F.3d 714, 728 (9th Cir.2001) (same); United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir.2000) (same), cert. denied, 532 U.S. 984, 121 S.Ct. 1629, 149 L.Ed.2d 490 (2001). Here, in the absence of any proof of quantity, Thomas’ statutory maximum sentence should have been 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C). Although his 120-month sentence was below the statutory maximum, the finding that he possessed more than 50 grams of cocaine base exposed him to a maximum sentence of life imprisonment. See id. § 841(b)(1)(A). Sentencing Thomas for possession of 50 grams or more was therefore error. In addition, by requiring a mandatory minimum imprisonment of ten years, id., and by increasing his base offense level under the Guidelines, see U.S.S.G. § 2D1.1(e) (2001), the error" } ]

[ { "docid": "18794041", "title": "", "text": "with intent to distribute cocaine, Poitier moved to suppress the cocaine seized from her at the airport, as well as statements she made when detained. The district court examined whether the detention was supported by a reasonable and articulable suspicion that she had committed or was currently committing a crime. The court stated that the initial contact by the officers with Poitier was intended to be a limited investigative stop, also known as a Terry-type stop, which requires reasonable suspicion by the officer. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To validate such a stop, the officer must be able to point to specific and articulable facts, which taken together with rational inferences from these facts, reasonably warrant the intrusion. United States v. Borys, 766 F.2d 304, 308 (7th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986). The district court concluded that there was not sufficient reasonable suspicion that Poitier had committed or was about to commit a crime to justify the intrusion and seizure in this case. The court further found that when the officers showed their identification and gestured to Poitier to move to the waiting area, a reasonable person in Poitier’s position would not have felt free to stop the questioning and leave. The court characterized the intended Terry-stop as a de facto arrest from its inception. The district court thus granted Poitier’s motion to suppress. III. DISCUSSION. Our starting point is to determine the nature of the encounter between the agents and Poitier. More specifically, we must determine whether Poitier was seized, and if so, at what point; and, if Poitier was seized, was there objective justification sufficient to create reasonable suspicion that she was engaging in criminal activity. As this court noted in United States v. Wallraff 705 F.2d 980, 988 (8th Cir. 1983), Supreme Court jurisprudence has placed police-citizen encounters into three tiers or categories: First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the Fourth Amendment." } ]

[ { "docid": "13493965", "title": "", "text": "[the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court established a two-pronged test to determine the reasonableness of investigatory detentions. For an investigatory detention to be reasonable it must be “justified at its inception” and the officer’s actions must be “reasonably related, in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868. The only issue in this appeal is whether the. seizure of Mr. Madrid was justified at its inception. Under Terry and its progeny, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct.. 1868). “An investigatory detention is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.” United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir.2011) cert. denied, — U.S. -, 132 S.Ct. 278, 181 L.Ed.2d 166 (2011) (internal quotation marks omitted). We evaluate the totality of the circumstances to determine whether “the detaining officer had a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Cortez v. McCauley, 478 F.3d 1108, 1123 (10th Cir.2007) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). “[T]he ultimate assessment of reasonable suspicion depends on the totality of the circumstances [and] [i]n making that determination, a court may not evaluate and reject each factor in isolation.” United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir.2003) (citing Arvizu, 534 U.S. at 274-75, 122 S.Ct. 744). ' [5-7] Police officers must have more than a “hunch” to justify stopping an individual, but “the likelihood of criminal activity need not" }, { "docid": "18290469", "title": "", "text": "to the question of whether Deputy Young had a reasonable suspicion to extend the stop. 2. Reasonable suspicion of criminal activity A law enforcement officer may permissibly conduct an investigatory stop when he or she has “a particularized and objective” suspicion that criminal activity is afoot. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). To meet this standard, the government must point to “specific and articula-ble facts, which taken together with rational inferences from those facts,” reasonably suggest than criminal activity has occurred or is imminent. Terry, 392 U.S. at 21, 88 S.Ct. 1868. An officer must not act on an “inchoate and unparticularized suspicion or ‘hunch,’ but [on] the specific reasonable inferences from which he is entitled to draw from the facts in light of his experience.” Id. at 27, 67 S.Ct. 13. Courts determine whether a reasonable suspicion exists by looking at the “totality of the circumstances” and considering “all of the information available to law enforcement officials at the time.” Feathers v. Aey, 319 F.3d 843, 848-49 (6th Cir.2003). The parties in the present case do not dispute that the initial traffic stop was valid. At issue is whether, at the conclu sion of the traffic stop at 2:07 p.m., Deputy-Young had a reasonable nonimmigration-related suspicion for the continued investigatory detention of Urrieta. To detain a motorist any longer than is reasonably necessary to issue a traffic citation, an officer must have a reasonable suspicion that the individual has engaged in more extensive criminal conduct. United States v. Townsend, 305 F.3d 537, 541 (6th Cir.2002) (finding that the police lacked a reasonable suspicion of criminal activity to continue an investigatory detention after the traffic stop was completed). This Court has determined that “[o]nce the purpose of the traffic stop is completed, a motorist cannot be further detained unless something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999) (finding that the officer had a reasonable suspicion of criminal activity," }, { "docid": "22924212", "title": "", "text": "qualified immunity as a matter of law. B. Reasonable Suspicion for Detention Pursuant to Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot. “Reasonable suspicion must be supported by particular and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant an intrusion.” United States v. Michelletti, 13 F.3d 838, 840 (5th Cir.1994) (en banc). “The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized ... “hunch” ’. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations omitted). Nevertheless, “[t]his reasonable suspicion standard is less demanding than the probable cause standard[.]” United States v. Sanders, 994 F.2d 200, 203 (5th Cir.1993). “The presence or absence of reasonable suspicion must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time of the decision to stop a person.” United States v. Silva, 957 F.2d 157, 160 (5th Cir.1992). “Factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experi enced officers[.]” United States v. Holloway, 962 F.2d 451, 459 (5th Cir.1992). Reasonable suspicion is a question of law, to which we apply de novo review. Silva, 957 F.2d at 159. Here, the precise issue is whether Goodson’s physical appearance fit the description of the BOLO sufficiently to give rise to reasonable suspicion that he was the suspected assailant. We hold that, because Goodson’s physical appearance is a disputed issue of fact, the district court could not make a determination of reasonable suspicion on summary judgment. The BOLO gave reasonable suspicion to stop and, because of the violent nature of the suspected crime, frisk a tall, heavy-set, white man dressed as a cowboy. To have reasonable suspicion to stop and frisk Goodson" }, { "docid": "4850035", "title": "", "text": "C. Reasonable Suspicion Because Williams was seized, the Fourth Amendment’s protections apply. At the initial point of seizure, the encounter was not a full-blown arrest, but an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We therefore analyze it under the line of cases from the Supreme Court and this circuit applying Terry. “An officer can stop and briefly detain a person when the officer has reasonable, articulable' suspicion that a person has been, is, or is about to be engaged in criminal activity.” United States v. Smith, 594 F.3d 530, 536 (6th Cir.2010) (internal quotation marks, alteration, and emphasis omitted). That suspicion “must be based on specific, objective facts,” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); an “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice, Terry, 392 U.S. at 27, 88 S.Ct. 1868. In evaluating whether an officer had reasonable suspicion, we must consider the totality of the circumstances rather than analyze each fact in isolation. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Martin, 289 F.3d at 398. In this case, the district court held that Vass lacked reasonable suspicion to detain Williams: Vass did not have reasonable suspicion to believe that Defendant was trespassing on CPO property. Defendant was standing on a public sidewalk when Vass approached and stated that- Defendant was trespassing, not on CPO propérty as the Government argues, and Ohio law clearly states that actual entry-onto the premises of another is required to commit trespass. Ohio Rev.Code Ann. § 2911.21.... The fact that Vass observed Defendant standing on a public sidewalk in front of CPO property would not support a reasonable belief on Vass’ part that Defendant was actually trespassing on CPO property.... Suspecting that others were violating loitering or open container laws says absolutely nothing about whether Vass had reasonable suspicion to seize and detain Defendant to investigate whether Defendant was trespassing. Williams, 2008 WL 4758683, at *5-6. On appeal, the government argues that the district court failed to" }, { "docid": "23519908", "title": "", "text": "Motion We review de novo the district court’s determination that reasonable suspicion and probable cause existed. United States v. Maltais, 403 F.3d 550, 554 (8th Cir.2005), cert. denied, —U.S. —, 126 S.Ct. 1345, 164 L.Ed.2d 59 (2006); United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998). We review the district court’s factual findings under a clearly erroneous standard. United States v. Lebrun, 261 F.3d 731, 733 (8th Cir.2001). We will affirm the denial of a suppression motion “unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir.1998) (citation and internal quotation marks omitted). i. Reasonable Suspicion for Contraband Questions and a Drug-Dog Sniff Donnelly contends that by questioning him about contraband and by requiring him to wait for a drug-sniffing dog, Fitzer unreasonably prolonged his detention. We disagree. To establish an unreasonably prolonged detention, the defendant must show that the officer detained him beyond the amount of time otherwise justified by the purpose of the stop and did so without reasonable suspicion. See United States v. Martin, 411 F.3d 998, 1002 (8th Cir.2005); see also United States v. Jones, 269 F.3d 919, 926 (8th Cir.2001) (“investigative detention must remain within the scope of the traffic stop to be reasonable”). We must consider, then, whether Fitzer had a reasonable suspicion of criminal activity sufficient to expand the scope of his accident investigation to include the potential presence of contraband. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For an investigative Terry-type seizure to be constitutional under the Fourth Amendment, an officer must be aware of “particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); see also Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. Although a reasonable suspicion requires more than an “inchoate hunch,” the officer need" }, { "docid": "22168616", "title": "", "text": "U.S. 690, 698, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996))), cert. denied, 543 U.S. 1012, 125 S.Ct. 635, 160 L.Ed.2d 478 (2004). 2. Merits We recently reviewed the relevant analytical framework for assessing an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “In evaluating the constitutionality of a Terry stop, we engage in a two-part analysis of the reasonableness of the stop.” United States v. Davis, 430 F.3d 345, 354 (6th Cir.2005). “We first ask ‘whether there was a proper basis for the stop, which is judged by examining whether the law enforcement officials were aware of specific and articulable facts which gave rise to reasonable suspicion.’” Id. (quoting United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993)). If the stop was proper, “then we must determine ‘whether the degree of intrusion ... was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials’ conduct given their suspicions and the surrounding circumstances.’ ” Id. (omission in original) (quoting Garza, 10 F.3d at 1245). Caruthers challenges the constitutionality of the instant Terry stop along both dimensions, contending that the initial stop was not supported by reasonable suspicion and that the degree of intrusion was unreasonable. a. Reasonable Suspicion The first part of the analysis is whether there was reasonable suspicion to justify the investigative detention. This determination, which is made in light of the totality of the circumstances, United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), requires “the detaining officers [to] have a particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An “inchoate and unparticularized suspicion or ‘hunch’ ” will not do. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At the time of the stop, Officer Stocks knew that Caruthers — an individual whose general appearance and location matched the description given in the anonymous shot-fired call— fled and" }, { "docid": "23519909", "title": "", "text": "officer detained him beyond the amount of time otherwise justified by the purpose of the stop and did so without reasonable suspicion. See United States v. Martin, 411 F.3d 998, 1002 (8th Cir.2005); see also United States v. Jones, 269 F.3d 919, 926 (8th Cir.2001) (“investigative detention must remain within the scope of the traffic stop to be reasonable”). We must consider, then, whether Fitzer had a reasonable suspicion of criminal activity sufficient to expand the scope of his accident investigation to include the potential presence of contraband. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For an investigative Terry-type seizure to be constitutional under the Fourth Amendment, an officer must be aware of “particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); see also Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. Although a reasonable suspicion requires more than an “inchoate hunch,” the officer need only “articulate some minimal, objective justification for an investigatory stop” in order to comply with the Fourth Amendment. United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). “Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.” United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). When considering the circumstances involved, due weight must be given “to the factual inferences drawn by the law enforcement officer.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); cf. United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983) (“conduct which would be wholly innocent to the untrained observer ... might acquire significance when viewed by an agent who is familiar with the practices of drug smugglers and the methods used to avoid detection” (internal quotations omitted)); Illinois v. Gates, 462 U.S." }, { "docid": "18133061", "title": "", "text": "S.Ct. 744, 151 L.Ed.2d 740 (2002). These “brief investigatory stops” are commonly referred to as Terry stops. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop is, in essence, “a brief detention of an individual for questioning based on a police officer’s reasonable suspicion that the person is or has been engaged in criminal activity.” United States v. Brake, 666 F.3d 800, 804 (1st Cir.2011). Because the temporary detention of an individual constitutes a seizure for Fourth Amendment purposes, a Terry stop is “subject to the constitutional imper ative that it must be reasonable under all the circumstances.” United States v. Coplin, 463 F.3d 96, 100 (1st Cir.2006) (quoting United States v. Romain, 393 F.3d 63, 70-71 (1st Cir.2004)) (internal quotation mark omitted). Our review of a Terry stop involves a two-step analysis. First, we ascertain whether the stop was justified at its inception. United States v. Gates, 709 F.3d 58, 62 (1st Cir.2013). Second, we determine whether the “actions undertaken during the stop [were] reasonably related in scope to the stop itself ‘unless the police [had] a basis for expanding their investigation.’ ” Id. (quoting United States v. Henderson, 463 F.3d 27, 45 (1st Cir.2006)). A. Initiation of the Stop Mouscardy maintains that he was illegally seized for Fourth Amendment purposes. In Mouscardy’s view, based on the officers’ observations at the scene and the statements by Mouscardy and Agnew that no assault had taken place, the police should have determined that there was no evidence of the alleged assault, and Mouscardy should have been allowed to leave. The facts support a reasonable suspicion for the investigatory stop. Officer Cunningham and Sergeant Zaino did not approach Mouscardy and Agnew on a mere “hunch.” See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The officer ... [making the Terry stop] must be able to articulate something more than an ‘inchoate and unparticularized suspicion or hunch.’ ” (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868)). The officers found Mouscardy and Agnew at the location that the" }, { "docid": "12123963", "title": "", "text": "L.Ed.2d 889 (1968). It is well established that under Terry “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. at 1880. Briefly detaining a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information is considered an essential ingredient of good police work. Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972). Investigative stops, however, are considered “seizures” sufficient to invoke fourth amendment safeguards and as such “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1879-80. To be reasonable, the suspicion must be more than an “inchoate and unparticularized suspicion or ‘hunch,’” Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883. The Court in Terry established a dual inquiry for evaluating the reasonableness of an investigative stop. The reviewing court must determine first “whether the officer’s action was justified at its inception,” and second, whether the officer’s action was “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. at 1879. On appeal, Abokhai first argues that the initial stop and detention were conducted without a reasonable and articulable suspicion that he was engaged in criminal activity. In our determination of whether the officers’ observations provided the requisite suspicion to justify an investigatory stop, we view the information available to the detaining officers as a whole, not as discrete and disconnected occurrences. United States v. Poitier, 818 F.2d 679, 683 (8th Cir.1987). Furthermore, the facts known to the officers must be assessed in light of the officers’ experience and expertise, for police officers are “trained and experienced in discerning in ostensibly innocuous behavior the indicia of [criminal activity].” United" }, { "docid": "21608192", "title": "", "text": "We review de novo the legal issue of whether Condelee’s detention violated the fourth amendment. See United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.1988). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Id. at 30, 88 S.Ct. at 1884. The police may detain luggage briefly where there is reasonable suspicion that the luggage contains narcotics. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). The Supreme Court has required that an officer “be able to articulate something more than an ‘inchoate and unpartic-ularized suspicion or hunch.’ ” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). The fourth amendment requires “some minimal level of objective justification” to support a Terry stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The existence of reasonable suspicion is determined by the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). The Supreme Court has recognized that there could be “circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot,” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam), and, therefore, facts consistent with innocent travel taken together may amount to reasonable suspicion if they have probative value (i.e., sufficient to warrant consideration). Sokolow, 109 S.Ct. at 1586. The relevant inquiry is the degree of suspicion that attaches to particular types of noncriminal acts. Id. at 1587. Whether certain facts viewed as a whole establish reasonable suspicion must be determined by viewing them in light of a law enforcement officer’s experience and familiarity with the practices of narcotics couriers. United States" }, { "docid": "22924211", "title": "", "text": "Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir.1998). Therefore, “[e]ven law enforcement officials who ‘reasonably but mistakenly [commit a constitutional violation]’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In terms of law being “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, 483 U.S. at 640, 107 S.Ct. 3034; see also Wilson, 526 U.S. at-, 119 S.Ct. at 1699. As we explain below, we find that Good-son alleged a violation of his clearly established rights to be free from seizure without reasonable suspicion, arrest without probable cause and excessive force, and that a genuine issue of material fact exists as to whether Gaines and Perez’s conduct was objectively reasonable under the circumstances. We therefore hold that, because of the disputed facts, Gaines and Perez are not entitled to qualified immunity as a matter of law. B. Reasonable Suspicion for Detention Pursuant to Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot. “Reasonable suspicion must be supported by particular and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant an intrusion.” United States v. Michelletti, 13 F.3d 838, 840 (5th Cir.1994) (en banc). “The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized ... “hunch” ’. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations omitted). Nevertheless, “[t]his reasonable suspicion standard is less demanding than the probable cause standard[.]” United States v. Sanders, 994 F.2d 200, 203 (5th Cir.1993). “The presence or absence of reasonable suspicion must be determined in light of the totality of the" }, { "docid": "14736146", "title": "", "text": "computer cheek for outstanding warrants. See, e.g., Ohio v. Robinette, 519 U.S. 33, 35-36, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (discussing an officer’s computer check of driver license and request for consent to search during a traffic stop); United States v. Hardy, 855 F.2d 753, 755, 757 (11th Cir.1988) (relating officers’ request for consent to search and check for warrants after traffic stop); see also United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997) (“An officer conducting a routine traffic stop may run computer checks on the driver’s license, the vehicle registration papers, and on whether the driver has any outstanding warrants or the vehicle has been reported stolen.”). The propriety of the continued detention of Simmons after the “normal time for a traffic stop ended” is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. The detention of Simmons was proper if the officers could point to ‘“specific and articulable facts which, taken together with rational inferences from those facts, justify a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ ” Hardy, 855 F.2d at 757 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). Although the “reasonable suspicion” standard is less demanding than probable cause, it must be more than an “inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citation and internal quotation marks omitted). Thus, in evaluating the validity of an investigative stop, we consider the “totality of the circumstances.” Id. at 8, 109 S.Ct. 1581. Translated into the inquiry here, the question boils down to this: whether, in light of all of the circumstances the officers faced, they had a reasonable and articula-ble suspicion that Simmons was the subject of the Brevard County arrest warrant. In echoing the district court’s conclusion, Simmons argues that it was not reasonable for the officers to think that the warrant was for him because it was from a county on the other side of the state, that the date of birth" }, { "docid": "12966737", "title": "", "text": "reasonably stop a vehicle for any traffic violation, no matter how slight and no matter whether the hope of finding contraband as the result of the stop was the officer’s subjective motivation for making the stop. However, the reasonableness of the stop “is ascertained by determining first ‘whether the officer’s action was justified at its inception,’ and second ‘whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Freeman, 209 F.3d 464, 466 (6th Cir.2000) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 904-05 (1968)). Moreover, the Fourth Amendment has been interpreted as permitting a law enforcement officer to “briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968)). When the detention is preceded by a traffic stop, after the original purpose for the stop is complete, the officer cannot “further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention.” United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995); United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999). Whether the officer has such a reasonable, articulable suspicion is determined based upon the “totality of the circumstances.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (citations omitted). That is, the Court “must determine whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior when examined separately.” United States v. Smith, 263 F.3d 571, 588 (6th Cir.2001). “ ‘Reasonable suspicion’ is more than an ill-defined hunch; it must be based upon a ‘particularized and objective basis for suspecting the particular person ... of criminal activity.’" }, { "docid": "1642796", "title": "", "text": "the Trooper’s reasonable suspicion that the occupants were involved in criminal activity. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Reasonable suspicion is one that would “ ‘warrant a man of reasonable caution in the belief that [a stop] was appropriate.” Terry, 392 U.S., at 22, 88 S.Ct., at 1880, quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). “The officer [making a Terry stop] ... must be able to articulate something more than an ‘inchoate and unparticular-ized suspicion or “hunch.” ’ [Terry, 392 U.S.,] at 27 [88 S.Ct., at 1883]. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U.S. 210, 217 [104 S.Ct. 1758, 1763, 80 L.Ed.2d 247] (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [Gates, 462 U.S., at 238, 103 S.Ct., at 2332], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). The court considers both the quantity and quality of the evidence when evaluating whether there is reasonable suspicion. The government bears the burden to show that an officer possessed articulate reasonable suspicion. United States v. Carhee, 27 F.3d 1493, 1496 and n. 2 (10th Cir.1994). Police officers cannot rely upon an “unparticularized suspicion or hunch.” Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994). Whether an officer possessed the requisite articulate suspicion depends on the totality of the circumstances. United States v. Salzano, 149 F.3d 1238, 1242 (10th Cir.1998), opinion amended and superseded at 158 F.3d 1107 (10th Cir.1998). Here, Trooper Lambert had no" }, { "docid": "23341146", "title": "", "text": "The Temporary Detention and Frisk. The appellant maintains that even if the officers’ entry into the apartment passed constitutional muster, they lacked lawful authority to detain him and perform a frisk for weapons. This line of argument redirects our analytic course to the law governing the search and seizure of persons. A temporary detention of an individual constitutes a seizure within the purview of the Fourth Amendment and, therefore, is subject to the constitutional imperative that it must be reasonable under all the circumstances. See Terry v. Ohio, 392 U.S. 1, 16, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Lee, 317 F.3d at 31. The Terry Court established the baseline rule, holding that an officer may conduct a brief investigatory stop if he has a reasonable, articulable suspicion that criminal activity is afoot. See Terry, 392 U.S. at 30, 88 S.Ct. 1868. Although the showing required to meet this standard is considerably less demanding than that required to make out probable cause, the officer nonetheless must possess (and be able to articulate) more than a hunch, an intuition, or a desultory inkling of possible criminal activity. See id. at 27, 88 S.Ct. 1868. A court inquiring into the validity of a Tert'y stop must use a wide lens and survey the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 8,109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). The inquiry must consider “whether the officer’s actions were justified at their inception, and if so, whether the officer’s subsequent actions were fairly responsive to the emerging tableau.” United States v. Chhien, 266 F.3d 1, 6 (1st Cir.2001). Generally speaking, a stop is justified at its inception if the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868; see United States v. Young, 105 F.3d 1, 7 (1st Cir.1997). Police officers are not limited to personal observations in conducting investigatory activities, and reasonable suspicion for a Terry stop may be based on information furnished by others. See Adams v." }, { "docid": "22432294", "title": "", "text": "States v. Peterson, 100 F.3d 7, 11 (2d Cir.1996). 2. The governing legal standard. — Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed,2d 889 (1968), first delineated the contours of a limited investigative stop, now frequently called a Terry stop. Terry held that a police officer can stop and briefly detain a person if the officer has a reasonable suspicion “that criminal activity may be afoot.” Id. at 30, 88 S.Ct. 1868. In deciding whether a Terry stop is reasonable under the Fourth Amendment, a reviewing court must determine, first, “whether the officer’s action was justified at its inception, and [second,] whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868. It is the first prong of the Terry test that is at issue here. This circuit has characterized the quantum of suspicion necessary under the first prong of Terry as “reasonable suspicion, based on specific and articulable facts, of unlawful conduct.” United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994) (quoting United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.1993)) (internal quotation marks omitted). Because a Terry stop impinges to a lesser extent on Fourth Amendment concerns than does an arrest or search, the stricter standard of probable cause does not apply. See, e.g., United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). As we have also said, “the concept of reasonable suspicion is not susceptible to precise definition.” United States v. Glover, 957 F.2d 1004, 1009 (2d Cir.1992). Nevertheless, it is clear that “some minimal level of objective justification” is required, id. at 1009-10 (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984))), and that “inchoate suspicion or mere hunch” will not suffice, id. at 1010. Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant. See id. When evaluating the reasonableness of a Terry stop, the" }, { "docid": "14756680", "title": "", "text": "(10th Cir.1996) (describing investigative detention as a seizure “of limited scope and duration”). To determine whether an investigative detention was constitutionally permitted, we must ask both “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). A law enforcement officer may stop and briefly detain a person for investigative purposes “if the officer has a reasonable suspicion ... that' criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). Once the concern that justified the initial stop is dispelled, further detention will violate the Fourth Amendment unless the additional detention is supported by a reasonable suspicion of criminal activity. See United States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir.1996). In other words, reasonable suspicion must exist at all stages of the detention, although it need not be based on the same facts throughout. An officer must be able to point to “specific and articulable facts” to support a finding of reasonable suspicion; an “inchoate and unparticularized suspicion or ‘hunch’ ” is insufficient. Terry, 392 U.S. at 21, 27, 88 S.Ct. at 1880, 1883. ‘Whether ... an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend on any one factor but on the totality of the circumstances.” United States v. Soto, 988 F.2d 1548, 1555 (10th Cir.1993). Like the district court, we address the defendant’s detention in three stages. 1. Initial Detention on Suspicion of Drug Activity (12:45 — 1:08) The defendant first argues that the officers lacked the requisite reasonable suspicion to justify his initial detention, which lasted approximately twenty minutes while the officers investigated possible drug activity. We concur with the district court’s conclusion that the officers had reasonable suspicion for this period of the detention. We disagree, however, with the district court’s reasoning on this point. The officers had received a tip that included several specific" }, { "docid": "1476798", "title": "", "text": "the 911 call and the fact that the call was traced to a public telephone provided the tip with sufficient reliability to allow the stop of Person under the Fourth Amendment. (Govt’s Mem. at 6, 9-10.) DISCUSSION A police officer’s investigatory stop must be founded upon “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also United States v. Tehrani, 49 F.3d 54, 58 (2d Cir.1995). Reasonable suspicion can be found when an officer or agent is in “possession of ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” United States v. Villegas, 928 F.2d 512, 516 (2d Cir.1991) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). “Although the level of suspicion for a Terry stop is considerably less than proof of wrongdoing by a preponderance of the evidence, the Fourth Amendment still requires some minimal level of objective justification for making the stop.” United States v. Floyd, No. 99-CR-234, 1999 WL 673050, at *6 (S.D.N.Y. Aug.30, 1999) (citing Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). The officer conducting the investigatory stop “must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” Sokolow, 490 U.S. at 77, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). “Reasonable suspicion is a less demanding standard than probable cause ... [and] can arise from information that is less reliable than that required to show probable cause.” White, 496 U.S. at 330, 110 S.Ct. 2412. However, like probable cause, reasonable suspicion “is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of circumstances — the whole picture.’ ” Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621" }, { "docid": "21608191", "title": "", "text": "again on July 11, Condelee moved to suppress the evidence seized and the statements made. On July 17, 1989, the magistrate recommended that the evidence be suppressed. On July 27, 1989, the district court issued an order adopting the magistrate’s findings, over the government’s objections, and granting Condelee’s motion to suppress. The district court subsequently denied the government’s motion for reconsideration. The government appealed. We reverse. II. The parties agree that the initial consensual encounter between Agent Hicks and Condelee was transformed into a Terry stop when Agent Hicks showed Condelee his badge for a second time, told her he was watching for drugs being smuggled into KCI, and asked if she had any drugs, because a reasonable person would believe she was not free to leave. See United States v. Drinkard, 900 F.2d 140, 142-43 (8th Cir.1990). The government argues on appeal that Agent Hicks possessed a reasonable, articulable suspicion of ongoing criminal activity based on objective facts at the time of the stop and, therefore, Conde-lee’s motion to suppress should have been denied. We review de novo the legal issue of whether Condelee’s detention violated the fourth amendment. See United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.1988). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Id. at 30, 88 S.Ct. at 1884. The police may detain luggage briefly where there is reasonable suspicion that the luggage contains narcotics. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). The Supreme Court has required that an officer “be able to articulate something more than an ‘inchoate and unpartic-ularized suspicion or hunch.’ ” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). The fourth amendment requires “some minimal level" }, { "docid": "19945904", "title": "", "text": "v. Adamson, 441 F.3d 513, 519-20 (7th Cir.2006). There is no bright-fine that separates a Terry investigatory stop from a formal arrest. United States v. Vega, 72 F.3d 507, 515 (7th Cir.1995). The distinction hinges on the intrusiveness of the detention, id., which is a “flexible and highly fact-intensive” inquiry. United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir.2004). In denying Officer Anders qualified immunity, the district court assumed that the detention was an arrest. We begin by examining whether Officer Anders’ actions, as alleged by Mr. Jewett, can be characterized as a constitutional investigatory stop authorized by Terry. Mr. Jewett had a right to be free from a Terry stop unless Officer Anders had reasonable suspicion. Terry, 392 U.S. at 30, 88 S.Ct. 1868. To conduct a Terry stop, an officer must be “aware of specific and articulable facts giving rise to reasonable suspicion.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994). Reasonable suspicion is more than a hunch but less than probable cause and “considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); United States v. Lenoir, 318 F.3d 725, 729 (7th Cir.2003). It requires “some minimal level of objective justification for making a stop,” given the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Moreover, “a court’s determination of reasonable suspicion ‘must be based on common-sensical judgments and inferences about human behavior.’ ” United States v. Baskin, 401 F.3d 788, 791 (7th Cir.2005) (quoting Wardlow, 528 U.S. at 125, 120 S.U. 673). Because reasonable suspicion is evaluated in light of the totality of the circumstances known to the officer, we have noted that certain “behavior may give rise to reasonable suspicion when viewed in the context of other factors at play.” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.2006). Finally, in evaluating the reasonableness of an investigatory stop, we. examine first whether the “officer’s action was justified at its inception” and, second, “whether it was reasonably related in scope" } ]

[ { "docid": "3330931", "title": "", "text": "blind eye to the defendants’ pressing need for additional time to conduct discovery and muster their opposition. We agree with the defendants that trial courts should refrain from entertaining summary judgment motions until after the parties have had a sufficient opportunity to conduct necessary discovery. See Carmona v. Toledo, 215 F.3d 124, 132-33, 135-36 (1st Cir.2000); Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29-30 (1st Cir.1996). It follows that when a party moves for summary judgment, the opposing party must be afforded a fair chance to obtain and synthesize available information before being required to file an opposition. Our cases make it pellucid, however, that this prophylactic rule is not self-executing. A party who legitimately requires more time to oppose a motion for summary judgment has a corollary responsibility to make the court aware of its plight. Typically, this is accomplished by way of either a Rule 56(f) motion or its functional equivalent. See Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 3-4 (1st Cir.2004); Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 44 (1st Cir.2001). The record on appeal contains nothing of the sort: the defendants neither invoked nor substantially complied with Rule 56(f). To benefit from the protections of Rule 56(f), a litigant ordinarily must furnish the nisi prius court with a timely statement — if not by affidavit, then in some other authoritative manner — that (i) explains his or her current inability to adduce the facts essential to filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicates how those facts would influence the outcome of the pending summary judgment motion. See Vargas-Ruiz, 368 F.3d at 4; Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.1988). Such a litigant also must have exercised “due diligence both in pursuing discovery before the summary judgment initiative surfaces and in pursuing an extension of time thereafter.” Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994). The defendants’ motions to extend time," } ]

[ { "docid": "4109126", "title": "", "text": "in Focus, While there is no Rhode Island ease law addressing the issue of expert testimony in a legal malpractice case, a review of other jurisdictions indicates that the most widely accepted rule is that a legal malpractice plaintiff must present expert testimony establishing the appropriate standard of care unless the attorney’s lack of care and skill is so obvious that the trier of fact can resolve the issue as a matter of common knowledge. 992 F.2d at 1239. Cases which can be resolved based on a layperson’s common knowledge are those where negligence is “clear and palpable” and where the fact finder need not analyze the attorney’s exercise of legal expertise. Focus, 992 F.2d at 1239. However, if the attorney’s legal expertise is at issue, “a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances____” Focus, 992 F.2d at 1239 (quoting Lenius v. King, 294 N.W.2d 912, 914 (S.D.1980)). In such eases, where expert evidence is required but not adduced, summary judgment for the defendant attorney is appropriate as a matter of law. See Focus, 992 F.2d at 1240. Examining the substance of Bogosian’s counterclaim, it is clear that jurors could not rely on their common sense to determine whether F + M committed malpractice. Bogosian does not allege, for example, that F + M failed to file an action on her behalf within a statute of limitations; a situation where negligence would be “clear and palpable.” See Focus, 992 F.2d at 1239. Rather, her allegations implicate F + M’s application of its legal expertise and discretion to complex issues spanning several litigations. Therefore, Bogosian’s counterclaim cannot survive F + M’s motion for summary judgment unless her opposition to the motion is supported by the affidavit of an expert who possesses “special knowledge, skill or information about the subject matter acquired by study, observation, practice or experience____” ’ See Morgan v. Washington Trust Co., 105 R.I. 13, 249 A.2d 48, 51 (1969). F + M filed its motion for summary judgment with the Court on October" }, { "docid": "4109128", "title": "", "text": "5, 1994. In her objection to F + M’s motion, filed on October 22,1993, Bogosian argued, incorrectly, that expert testimony was not required to prove her counterclaim because F + M’s negligence was clear and could be determined by the fact finder as a matter of common knowledge. No expert affidavits were offered by Bogosian in opposition to F + M’s • motion, and no expert witness had been identified at that time, even though discovery closed on September 24, 1993. In the memorandum which she filed with the Court on February 15, 1994, Bogosian attached supplemental responses to F + M’s interrogatories, also dated February 15, indicating that she expected to call J. Ronald Fishbein (“Fishbein”), a Providence attorney, to testify as an expert at trial. Bogosian did not identify the expected substance of Fishbein’s testimony, but stated generally that, “It is anticipated that the expert will testify in support of the defenses raised to your Complaint, and in support of all of the allegations raised against you in the ... Counterclaim.” As of February 22, 1994, when Magistrate Judge Boudewyns heard oral arguments on the parties’ cross-motions for summary judgment, no expert evidence had been presented by Bogosian. Following the February 22 hearing, F + M filed the deposition of Pliakas pursuant to Magistrate Judge Boudewyns’ order. Bogosian cited portions of Pliakas’ testimony in support of her counterclaim. The Court agrees with Magistrate Judge Boudewyns’ assessment, however, that Pliakas’ deposition testimony does not constitute competent expert evidence in support of Bogosian’s malpractice counterclaim. Therefore, no expert evidence was submitted by Bogosian in opposition to F + M’s motion for summary judgment on the counterclaim. As a result, Bogosian has failed to establish that a genuine issue of material fact exists as to either the scope of the duty owed by F + M to Bogosian or as to F + M’s alleged breach of that duty. Additionally, Bogosian has presented no competent evidence to support her claim for damages for injuries she allegedly suffered as a result of F + M’s supposed negligence. It is well established under" }, { "docid": "20398259", "title": "", "text": "the non-moving party has not diligently pursued discovery of the evidence.” Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C.Cir.1995); see also Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir.1994) (“Consistent with the salutary purposes underlying Rule 56(f), district courts should construe motions that invoke the rule generously, holding parties to the rule’s spirit rather than its letter.”). To obtain Rule 56(f) relief, the movant must submit an affidavit which “state[s] with sufficient particularity ... why [additional] discovery [is] necessary.” Ikossi v. Dep’t. of Navy, 516 F.3d 1037, 1045 (D.C.Cir.2008) (internal quotation marks, citation omitted). The affidavit must satisfy three criteria. First, it must outline the particular facts he intends to discover and describe why those facts are necessary to the litigation. Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 239, 248 (D.C.Cir.1999) (“Byrd [must] show what facts he intended to discover that would create a triable issue____”). Second, it must explain “why [he] could not produce [the facts] in opposition to the motion [for summary judgment].” Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C.Cir.1999); see also Berkeley, 68 F.3d at 1414 (“Notwithstanding the usual generous approach toward granting Rule 56(f) motions, the rule is not properly invoked to relieve counsel’s lack of diligence.”); Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.1992) (“[T]he trial court need not aid [a party] who ha[s] occasioned [its] own predicament through sloth.”). Third, it must show the information is in fact discoverable. Messina v. Krakower, 439 F.3d 755, 762 (D.C.Cir.2006) (“We will not find an abuse of discretion where the requesting party has offered only a conclusory assertion without any supporting facts to justify the proposition that the discovery sought will produce the evidence required.” (internal quotation marks omitted)). Convertino easily satisfied the first two Rule 56(f) criteria. In opposition to DOJ’s summary judgment motion, Convertino submitted the affidavit of his counsel, who outlined the particular facts Convertino hoped to discover and why those facts were necessary to his claim. See Kohn Aff. at 2, Convertino, No. 1:04-cv-00236 (D.D.C." }, { "docid": "12524762", "title": "", "text": "motion for summary judgment, the opposing party can avoid summary judgment only by presenting evidence sufficient to establish the existence of a genuine issue of material fact as to each element essential to its claim. Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.1991) (“nonmoving party cannot fend off summary judgment unless it makes a competent demonstration that every essential element of its claim or defense is at least trialworthy”) (emphasis in original). As plaintiffs-appellants produced no expert affidavits, testimony, documentation or other evidence that could lead a rational trier of fact to find an “ongoing” violation, a jurisdictional prerequisite to the maintenance of their SDWA claim, summary judgment was properly granted for all defendants. C. Restrictions on Discovery Appellants claim that the district court prematurely curtailed discovery as of January 1991, which prejudiced their ability to authenticate documents needed to oppose summary judgment. As a consequence, the magistrate judge struck the unauthenticated documents for failure to meet the requirements of Fed.R.Civ.P. 56(c). See Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial”) (emphasis added). Appellants likewise object to the district court’s refusal to permit expert discovery to begin until after the non-expert discovery had been concluded. The summary judgment motions were granted before expert discovery ever took place. Federal Rule 56(f) offers a “procedural ‘escape hatch’ for a party who genuinely requires additional time to marshal ‘facts essential to justify [its] opposition’ when confronted by a summary judgment motion.” Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 988 (1st Cir.1988) (quoting Hebert v. Wicklund, 744 F.2d 218, 221 (1st Cir.1984)). Under Rule 56(f), “[t]he movant must (1) articulate a plausible basis for the belief that discoverable materials exist which would raise a trialworthy issue, and (2) ‘demonstrate good cause for failure" }, { "docid": "5478574", "title": "", "text": "discrimination cases, summary judgment is appropriate where the nonmoving party rests entirely upon “conclusory allegations, improbable inferences, and unsupported speculation” on any essential element of the discrimination claim. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). If necessary, as a last resort, the nonmoving litigant may invoke Rule 56(f) and request an extension of time to gather evidence to oppose the summary judgment motion. Before the Court grants such an extension, the nonmoving party’s request must meet five requirements: (1) authoritativeness i.e. an attorney under pain of Rule 11 sanctions or a party must submit the request; (2) timeliness i.e. the request should be made within a reasonable time following the summary judgment motion; (3) good cause i.e. the party must demonstrate good cause for failing to conduct the discovery previously; (4) utility i.e. there must be a plausible basis to believe that discoverable materials exist that would likely raise a genuine issue of material fact; and (5) materiality i.e. the requested discovery materials must be material to the legal dispute at the heart of the summary judgment motion. Resolution Trust Corp. v. North Bridge Assoc., Inc., 22 F.3d 1198, 1203 (1st Cir.1994). Courts should generally grant Rule 56(f) requests unless the party has been dilatory in conducting discovery or the motion is really a wolf draped in sheep’s clothing to delay the litigation in the case. Id.; see also Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92-94 (1st Cir.1996) (affirming district court’s denial of a Rule 56(f) request because the party failed to exercise due diligence during discovery). A Rule 56(f) request, however, can not save a nonmovant from losing the motion if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. In such cases, the request only forestalls the inevitable dismissal of the complaint. FACTS Construing Plaintiffs allegations and all reasonable inferences drawn therefrom in her favor, the record shows that on April 25, 1990 Plaintiff, Lynette Vazquez Gonzalez (“Vazquez”), began working as a part-time employee for Defendant, K-Mart" }, { "docid": "20398258", "title": "", "text": "individual(s) who disclosed information regarding the OPR referral, he cannot show that the disclosure was “intentional or willful.” See Maydak v. United States, 630 F.3d 166, 169 (D.C.Cir.2010) (to recover on Privacy Act claim plaintiff must “show ‘that the agency acted in a manner which was intentional or willful’” (quoting 5 U.S.C. § 552a(g)(4))). Sifting through the multiple issues in Convertino’s pursuit of his claims, we decide today only whether the district court erred in denying Convertino’s Rule 56(f) motion to stay. “[W]e review the denial of a Rule 56(f) motion for abuse of discretion____” Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C.Cir.2006). While the district court enjoys “broad discretion in structuring discovery,” Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C.Cir.1991), summary judgment is premature unless all parties have “had a full opportunity to conduct discovery.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A Rule 56(f) motion requesting time for additional discovery should be granted “almost as a matter of course unless the non-moving party has not diligently pursued discovery of the evidence.” Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C.Cir.1995); see also Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir.1994) (“Consistent with the salutary purposes underlying Rule 56(f), district courts should construe motions that invoke the rule generously, holding parties to the rule’s spirit rather than its letter.”). To obtain Rule 56(f) relief, the movant must submit an affidavit which “state[s] with sufficient particularity ... why [additional] discovery [is] necessary.” Ikossi v. Dep’t. of Navy, 516 F.3d 1037, 1045 (D.C.Cir.2008) (internal quotation marks, citation omitted). The affidavit must satisfy three criteria. First, it must outline the particular facts he intends to discover and describe why those facts are necessary to the litigation. Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 239, 248 (D.C.Cir.1999) (“Byrd [must] show what facts he intended to discover that would create a triable issue____”). Second, it must explain “why [he] could not produce [the facts] in opposition to the motion [for summary judgment].” Carpenter v." }, { "docid": "1361814", "title": "", "text": "Pina’s remaining claim: she needed more time to depose Henry. Pina begins by correctly noting that district courts should liberally grant Rule 56 continuances where the Rule’s preconditions for relief have been satisfied. Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 46 (1st Cir.1999). Typically, a successful Rule 56(d) motion must: 1) be timely; 2) be authoritative; 3) show good cause for failure to discover the relevant facts earlier; 4) establish a plausible basis for believing that the specified facts probably exist, and 5) indicate how those facts will influence the outcome of summary judgment. See id. at 45 n. 4; Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994). Pina argues that she filed her Rule 56 motion well in advance of the filing deadline for her opposition to summary judgment, that she asked for a reasonable extension of three weeks based upon Appellees’ failure to supplement their initial disclosures, and that the extension was critical to the success of her ease, so the district court’s decision to deny her motion constituted an abuse of discretion. As we have often observed, however, Rule 56(d) “is designed to minister to the vigilant, not to those who slumber upon perceptible rights.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 45 (1st Cir.1998) (internal quotation marks and alteration omitted). Although she now asserts vigilance in acting promptly after Appellees filed a motion for summary judgment, Rule 56(d) “requires due diligence both in pursuing discovery before the summary judgment initiative surfaces and in pursuing an extension of time thereafter.” Ayala-Gere-na v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir.1996) (quoting Resolution Trust Corp., 22 F.3d at 1203). Pina does not dispute the fact that she failed to request a single deposition prior to the court’s initial deadline of December 16, 2011. Additionally, even ignoring the MCAD position statement and assuming Pina first learned of Henry during Raymond’s deposition, Pina has offered no explanation for her failure to seek permission to depose Henry for over two months after that date." }, { "docid": "8874638", "title": "", "text": "F.2d 985, 989 (1st Cir.1988). Instead, Rodriguez continually maintained that he had provided sufficient evidence to raise the specter of intentional racial and/or ethnic discrimination and withstand summary judgment on all grounds argued by Wal-Mart. Even Rodriguez’s Rule 56(f) motion requested, in the alternative, that judgment be vacated on the ground that he had adduced sufficient evidence to preclude summary disposition of his claim. In this respect, Rodriguez’s position is similar- to that of the Title VII plaintiffs in Ayala-Gerena, who did not claim that they were unable to oppose summary judgment because of incomplete discovery, but rather, maintained that “although incomplete ... [these records] clearly reveal discriminatory animus.” Ayala-Gerena, 95 F.3d at 92 n. 4. Ordinarily, a party “may not attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if its first effort is unsuccessful.” C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 44 (1st Cir.1998). In addition, Rodriguez never sufficiently identified the outstanding discovery that he believed would influence the outcome of the summary judgment motion. See Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994) (Rule 56(f) motion “should set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist; and it should indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.”). In his third supplemental motion in opposition to summary judgment, Rodriguez merely stated that he was “unable to provide in this Motion the additional evidence he anticipated,” (Pl.’s Supp. Mot. to His Opp. to Summ. Disposition at 2), without specifying what that additional evidence was or how it might affect the pending motion. Finally, we agree with the district court that Rodriguez had adequate time to conduct discovery, or at least to marshal enough evidence to properly support a Rule 56(f) request for a continuance. Even assuming that Rodriguez did not initiate the discovery process until the district court’s April 30 discovery order, almost nine months elapsed until judgment was granted on January 13,1998. During this" }, { "docid": "3856154", "title": "", "text": "possibility that the DeBarros deposition would bear the expected fruit. Defendants argue, without citation to authority, that Simas’ Rule 56(f) motion was defective because he relied on inadmissible hearsay (e.g., the unnamed “highly reliable source”) — rather than his personal knowledge — to conclude that DeBarros could provide the damaging evidence. Their argument fundamentally Con fuses Rule 56(f)’s requirements with those in Rule 56(e) (“Supporting affidavits ... shall set forth such facts as would be admissible in evidence_”). “[A] Rule 56(f) proffer need not be presented in a form suitable for admission as evidence at trial, so long as it rises sufficiently above mere speculation.” Resolution Trust Corp. v. North Bridge Assocs., 22 F.3d 1198, 1206 (1st Cir.1994) (citing Carney v. United States, 19 F.3d 807, 813 (2d Cir.1994)). “This is as it should be, for Rule 56(f) is best understood as a complement to other provisions contained in Rule 56, allowing the opposing party to explain why he is as of yet unable to file a full-fledged opposition, subject to the more harrowing evidentiary standard that governs under Rules 56(e) and 56(c).” Id. at 1206-07. Thus, reliance on hearsay is not, per se, a dispositive defect under Rule 56(f). Furthermore, the Rule 56(f) motion filed by Simas did not rely exclusively on the information provided by the unnamed source, but also on the personal knowledge counsel had gained in subsequent consultations with DeBarros’ counsel, who confirmed that De-Barros feared retaliation were he to testify against Silva. The latter evidence would provide rational support for Simas’ counsel’s suspicion that the DeBarros testimony would prove damaging to Silva. See id. at 1207 (finding Rule 56(f) motion valid where multiple sources supported recited facts). On the present record, therefore, Simas appears to have satisfied all five preconditions for obtaining a Rule 56(f) continuance. See supra note 4. “When all five requirements are satisfied ... a strong presumption arises in favor of relief ... [and the movant] should be treated liberally.” Id. at 1203. Thus, since the district court never resolved the Rule 56(f) motion on the merits, we cannot affirm its summary" }, { "docid": "17338612", "title": "", "text": "judgment of Beaudette’s and JBI’s estoppel claim in Count V. First, Sentry contends that Beaudette and JBI did not reasonably rely on any 1988 statement because Sentry informed Suburban and JBI of its denial of coverage in early 1989. Second, Sentry contends that Mas-' sachusetts courts have never extended the principles of estoppel to parties lacking a legal or transactional relationship with the insurer. Plaintiffs submit that discovery is ongoing and summary judgment on the estoppel claim should be stayed under Rule 56(f) (“Rule 56(f)”), Fed.R.Civ.P. Initially addressing plaintiffs’ argument, it is true that Rule 56(f) “provides a safety valve for claimants genuinely in need of further time to marshal facts, essential to justify their opposition to a summary judgment motion.” Reid v. State of New Hampshire, 56 F.3d 332, 341 (1st Cir.1995) (internal quotation marks and ellipses omitted). Although courts liberally construe the rule, it nevertheless requires due diligence from the party seeking additional discovery. Morrissey v. Boston Five Cents Savings Bank, 54 F.3d 27, 35 (1st Cir.1995). A strong presumption arises in favor of discovery where the party seeking discovery articulates a plausible need for the discovery, makes a timely proffer, shows good cause for not conducting the discovery earlier, and demonstrates that the facts are discoverable within a reasonable amount of time and, if adduced, will influence the outcome of the pending summary judgment motion. Morrissey v. Boston Five Cents Savings Bank, 54 F.3d at 35; Resolution Trust Corporation v. North Bridge Associates, Inc., 22 F.3d 1198, 1203 (1st Cir.1994). In its discretion, a court may excuse or relax one or more of these requirements in order “to address the exigencies of a given case.” Resolution Trust Corporation v. North Bridge Associates, Inc., 22 F.3d at 1203. Beyond their bald and now incorrect assertion that discovery is ongoing, plaintiffs fail to articulate any plausible need for additional discovery, demonstrate good cause or identify the relevant facts which, if adduced, will result in a successful estop-pel claim. Accordingly, their argument fails to provide any justification to stay summary judgment on the estoppel claim. “ ‘In order to work" }, { "docid": "4109125", "title": "", "text": "her. Under Rhode Island law, a party seeking to establish liability for attorney malpractice must prove that the attorney breached his or her duty to the client by failing to exercise “ordinary care and skill” in handling the client’s legal affairs. Focus Inv. Assoc., Inc. v. American Title Ins. Co., 992 F.2d 1231, 1239 (1st Cir.1993) (citing Holmes v. Peck, 1 R.I. 242, 245 (R.I.1849)). The claimant must also prove that the alleged breach was the proximate cause of her damages. Scuncio Motors, Inc. v. Teverow, 635 A.2d 268, 269 (R.I.1993). Therefore, to survive a motion for summary judgment, the claimant must produce competent evidence sufficient to raise a jury question as to the standard of care to which the attorney should be held, the scope of the attorney’s duty to the client, the existence of a breach of that duty, and the damages to the claimant proximately caused by that breach. No Rhode Island cases address the issue of what constitutes competent evidence in an attorney malpractice action. However, as the First Circuit found in Focus, While there is no Rhode Island ease law addressing the issue of expert testimony in a legal malpractice case, a review of other jurisdictions indicates that the most widely accepted rule is that a legal malpractice plaintiff must present expert testimony establishing the appropriate standard of care unless the attorney’s lack of care and skill is so obvious that the trier of fact can resolve the issue as a matter of common knowledge. 992 F.2d at 1239. Cases which can be resolved based on a layperson’s common knowledge are those where negligence is “clear and palpable” and where the fact finder need not analyze the attorney’s exercise of legal expertise. Focus, 992 F.2d at 1239. However, if the attorney’s legal expertise is at issue, “a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances____” Focus, 992 F.2d at 1239 (quoting Lenius v. King, 294 N.W.2d 912, 914 (S.D.1980)). In such eases, where expert evidence is required but not adduced, summary" }, { "docid": "1010395", "title": "", "text": "its discovery affidavit. Id. See also Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 627 (Fed.Cir. 1984) (“Summary judgment need not be denied merely to satisfy a litigant’s speculative hope of finding some evidence that might tend to support a complaint.”); Leonardo v. United States, 55 Fed.Cl. 344, 350 (2003) (denying motion under Rule 56(f) due to lack of “a sufficient basis to pursue additional discovery,” where plaintiffs alleged factual basis was merely “within the realm of possibility!’). These precedents support a five-part set of prerequisites for relief under RCFC 56(f), i.e. the non-movant must by affidavit and supporting papers: (1) specify the particular factual discovery being sought, (2) explain how the results of the discovery are reasonably expected to engender a genuine issue of material fact, (3) provide an adequate factual predicate for the belief that there are discoverable facts sufficient to raise a genuine and material issue, (4) recite the efforts previously made to obtain those facts, and (5) show good grounds for the failure to have discovered the essential facts sooner. These prerequisites should not impair the salutary, generous purposes of the Rule. See Resolution Trust Corp. v. N. Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir.1994) (When a party invoking Rule 56(f) satisfies the requirements of the Rule, “a strong presumption arises in favor of relief.”). Rather, they should merely “provide[ ] the court with a method of checking on the bona tides of the party opposing summary judgment.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2741 (3d ed.1998). Theisen’s submission identifies seven factual items it seeks by way of discovery: (1) to whom were the Kessler letters sent and to whom [sic-when(?)j ; (2) is there correspondence between the recipients of the letters and the FDA; (3) did the FDA instruct persons engaged in sting operations and inform them which establishments had vending machines; (4) were the establishments with vending machines fined and when; (5) what did the contracts between the FDA and the states or local governments provide regarding enforcement; (6) how much" }, { "docid": "23609284", "title": "", "text": "prepared on company letterhead and produced during discovery. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir.1991) (finding, in context of plain-error review, document to be authentic under similar circumstances). There is also no dispute that Bryant actually looked at the documents. As a result, the portions of her declaration which repeat the results of the audits are based on Bryant’s personal knowledge. 2. Opinion testimony As noted above, an affidavit may not contain expert testimony unless the affiant has first been designated as an expert under Fed.R.Civ.P. 26(a)(2). In this case, no such designation was made. Thus, we must determine whether the conclusions and opinions offered in Bryant’s declaration are properly characterized as expert opinions under Fed.R.Evid. 702 or lay opinions under Rule 701. Bryant maintains that the mere calculation of an average of 103 numbers is not the sort of statistical determination which requires the special “knowledge, skill, experience, training, or education” prescribed by Rule 702. We agree. The Federal Rules of Evidence clearly permit the contents of voluminous writings to be presented in the form of a “chart, summary, or calculation.” Fed.R.Evid. 1006 (emphasis added). Taking a simple average of 103 numbers, though technically a statistical determination, is not so complex a task that litigants need to hire experts in order to deem the evidence trustworthy. A mathematical calculation well within the ability of anyone with a grade-school education is, in our opinion, more aptly characterized as a lay opinion under Fed. R.Evid. 701. Accordingly, we conclude that Bryant’s declaration was improperly excluded from the summary judgment evidence before the court. II. Whether Bryant submitted sufficient evidence of pretext to create a genuine issue of material fact for trial. A. Standard of Review We review the district court’s grant of summary judgment de novo and must apply the same legal standard used by the district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). Under Fed.R.Civ.P. 56(c), summary judgment is only appropriate if the pleadings and admissible evidence produced during discovery, together with" }, { "docid": "3040455", "title": "", "text": "stated that Fed.R.Civ.P. 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” 477 U.S. at 322, 106 S.Ct. 2548 (emphasis added). The Court further noted that a party confronted with a “premature motion for summary judgment” can invoke Rule 56(f), which (at that time) “allowe[d] a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.” Id. at 326, 106 S.Ct. 2548. Sánchez contends that AT & T’s motion was premature because it contained factual assertions that were not supported by the record. For example, AT & T’s motion asserted that its staffing system was complex and that the system would be disrupted if Sánchez were given Saturdays off. Sánchez contends that the district court should have given him additional discovery time under Rule 56(f) in order to enable him to gather facts to respond to these assertions. We find that the district court was correct to deny Sanchez’s request under Rule 56(f). Under the then-existing Rule 56(f), a party confronted with a motion for summary judgment had to show due diligence in seeking discovery in order to be granted additional discovery time. See Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 5 (1st Cir.2004) (“[A] party seeking to postpone the adjudication of a summary judgment motion on the ground of incomplete discovery must explain why, in the exercise of due diligence, he has been unable to obtain the necessary information.”); Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994) (“Rule 56(f) is designed to minister to the vigilant, not to those who slumber upon perceptible rights.”). Here, Sánchez has failed to demonstrate why he could not have obtained the information he needed to contest AT & T’s motion prior to the close of discovery." }, { "docid": "7497041", "title": "", "text": "plaintiffs, as it deals with the “effects” of the closing and specifically acknowledges that most of the workforce was laid off on March 1, 1997. At bottom, the April 1, 1997 layoff date alleged in the complaint is a bare allegation with no evidentiary support. See Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995) (“[W]e need not credit purely conclusory allegations, indulge rank speculation, or draw improbable inferences.”). We turn now to the dismissed plaintiffs’ argument that the district court erred in denying their motion for additional discovery. The dismissed plaintiffs complain that they were misled by the court’s statement that it would take “under advisement” the question of whether defendants’ motions for summary judgment should be stayed until discovery was completed. The dismissed plaintiffs also assert that no formal affidavit was required because they substantially complied' with Fed.R.Civ.P. 56(f), and that Rule 56(f) only fully comes into play when an adequate time for discovery has passed. Central to the dismissed plaintiffs’ argument on this point is their fundamental assertion that deposing the defendants’ affiants was essential to determine the zealousness of the Union’s bargaining tactics. We review a district court’s denial of a Fed.R.Civ.P. 56(f) motion for abuse of discretion. See Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994). While we do not require slavish adherence to Rule 56(f)’s formal requirements, when additional discovery is sought, such a motion must (1) be presented in a timely manner; (2) show good cause for the failure to discover the necessary facts sooner; (3) set forth a plausible basis for believing that the necessary facts probably exist and can be learned in a reasonable time; and (4) establish that the sought facts, if found, will “influence the outcome of the pending motion for summary judgment.” Id.; see also Velez v. Awning Windows, Inc., 375 F.3d 35, 39-40 (1st Cir.2004) (functionally equivalent statement may substitute for the affidavit required by Rule 56(f)). There is a fatal disconnect between the dismissed plaintiffs’ arguments and the district court’s summary judgment decision. The district court" }, { "docid": "7473442", "title": "", "text": "defendant with interrogatories and a request for production of documents, which he never did. At the Initial Scheduling Conference held eleven (11) - months after the complaint was filed, further discovery was stayed pending defendant’s filing of its announced motion for summary judgment. See Minutes of Initial Scheduling Conference, docket No. 16. It was only when defendant’s summary judgment motion was notified pursuant to the undersigned’s Standing order that plaintiff belatedly pleaded that he was under a disadvantage because of his lack of access to company records. See Opposition at p.3. Rule 56(f) of the Federal Rules of Civil Procedure states the following: “(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” “Fed.R.Civ.P. 56(f) provides a method of tolling time for a party who, when confronted by a summary judgment motion, can demonstrate an authentic need for, and an entitlement to, an additional interval in which to marshal facts essential to mount an opposition.” Resolution Trust v. North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir.1994). This does not mean, however, that Rule 56(f) has no effect or that it is available to rescue a litigant who acts lackadaisically. Use of the rule requires meeting several benchmarks, as well as due diligence in pursuing discovery. Ordinarily, a party who wishes to conduct discovery before the court acts on a summary judgment motion should present timely affidavits under Rule 56(f); something plaintiff failed to do in this case. See Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir.1993) (plaintiff was not entitled to discovery before court ruled on motion for summary judgment where plaintiff failed to file any affidavit specifying what facts further discovery might unveil, its relevance to issues pleaded, or how discovery might" }, { "docid": "7473443", "title": "", "text": "“Fed.R.Civ.P. 56(f) provides a method of tolling time for a party who, when confronted by a summary judgment motion, can demonstrate an authentic need for, and an entitlement to, an additional interval in which to marshal facts essential to mount an opposition.” Resolution Trust v. North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir.1994). This does not mean, however, that Rule 56(f) has no effect or that it is available to rescue a litigant who acts lackadaisically. Use of the rule requires meeting several benchmarks, as well as due diligence in pursuing discovery. Ordinarily, a party who wishes to conduct discovery before the court acts on a summary judgment motion should present timely affidavits under Rule 56(f); something plaintiff failed to do in this case. See Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir.1993) (plaintiff was not entitled to discovery before court ruled on motion for summary judgment where plaintiff failed to file any affidavit specifying what facts further discovery might unveil, its relevance to issues pleaded, or how discovery might unveil its relevance to issues pleaded, or how it might overcome facially time barred complaint); Resolution Trust, 22 F.3d at 1204 (while an attorney may provide the affidavit, he must provide first hand knowledge of the facts asserted); Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992)(unverified assertion by counsel which simply constitutes advocacy, does not suffice for evidence or facts required to grant continuance). Furthermore, to satisfy Rule 56(f), a party must meet two additional requirements: (1) articulate a plausible basis for the belief that discoverable materials exist which would raise a trial-worthy issue and (2) demonstrate good cause for failure to have conducted discovery earlier. Mass. School of Law at Andover v. American Bar, 142 F.3d 26, 43-45 (1st Cir.1998); Fennell v. First Step Designs, Ltd., 83 F.3d 526, 531 (1st Cir.1996) (movant must articulate plausible basis for belief that discoverable materials exist which would raise a trial-worthy issue.); R.W. Intern. Corp. v. Welch Food, Inc., 13 F.3d 478 (1st Cir.1994), appeal after remand, 88 F.3d 49 (1st Cir.1996) (the" }, { "docid": "4109131", "title": "", "text": "tort and breach of contract. Id. However, both legal theories depend on the same factual allegations of malpractice. In this case, it is the contractual relationship between F + M and Bogosian which gave rise to F + M’s duty to exercise reasonable care in handling Bogosian’s legal affairs. Because Bogosian is unable to prove that F + M violated the duty of care, she is likewise unable to prove that F + M breached the underlying contract. Therefore, F + M is entitled to summary judgment on both. Count I and Count II of Bogosian’s counterclaim for attorney malpractice. E. Bogosian’s Rule 56(f) Request In her objection to Magistrate Judge Boudewyns’ Report and Recommendation, Bogosian invokes Fed.R.Civ.P. 56(f) and requests this Court to either dismiss the plaintiffs motion for summary judgment on her malpractice counterclaim, without prejudice, or grant a continuance to allow her additional time to obtain expert testimony to stave off summary judgment. The Court declines to pursue either tack. Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts ¿essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Rule 56(f) is a “procedural escape hatch” designed to aid parties who genuinely need additional time to gather facts in support of their opposition to summary judgment. Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.1988). Although courts generally apply the rule liberally, it need not be employed to spare litigants from their own lack of diligence. Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984). As the First Circuit noted in Resolution Trust Corp. v. North Bridge Associates, Inc., the rule is “designed to minister to the vigilant, not to those who slumber upon perceptible rights.” 22 F.3d 1198, 1203 (1st Cir.1994). Neither should it be permitted to function as" }, { "docid": "12828909", "title": "", "text": "deficiencies, it does not contain a list of Dr. Rodriguez’s publications; it does not spell out his compensation arrangement; and it does not enumerate the other cases in which he testified as an expert. These are significant omissions. See Pena-Crespo v. Puerto Rico, 408 F.3d 10, 13-14 (1st Cir.2005). To add insult to injury, it was not until March 2005, one year after the close of discovery and several months after the preclusion of her expert evidence, that plaintiff finally produced a more comprehensive expert statement, which she now seeks to use in support of her appellate argument. The question, then, reduces to the legitimacy of the sanction imposed. The baseline rule is that “the required sanction in the ordinary case is mandatory preclusion.” Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.2001) (citation and internal quotation marks omitted); see Fed.R.Civ.P. 37(c)(1) (providing that a party who “without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use” the non-disclosed witness or information in later proceedings). Still, preclusion is not a strictly mechanical exercise; district courts have some discretion in deciding whether or not to impose that onerous sanction. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464, 468-69 (1st Cir.1990). In passing upon a district court’s decision to order preclusion, an appellate court should consider an array of factors, including “the history of the litigation, the proponent’s need for the challenged evidence, the justification (if any) for the late disclosure, and the oppo nent’s ability to overcome its adverse effects.” Macaulay, 321 F.3d at 51. Here, the plaintiffs need for expert testimony cuts in her favor. The remaining factors, however, all cut in the opposite direction. First and foremost, the history of the litigation casts a pall over the plaintiffs position. Her dereliction was both obvious and repeated. We have warned that “a litigant who ignores a case-management deadline does so at his peril.” Rosario-Diaz, 140 F.3d at 315. We likewise have warned that a party’s “violation of a time-specific order [is] not cured by" }, { "docid": "7497042", "title": "", "text": "that deposing the defendants’ affiants was essential to determine the zealousness of the Union’s bargaining tactics. We review a district court’s denial of a Fed.R.Civ.P. 56(f) motion for abuse of discretion. See Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994). While we do not require slavish adherence to Rule 56(f)’s formal requirements, when additional discovery is sought, such a motion must (1) be presented in a timely manner; (2) show good cause for the failure to discover the necessary facts sooner; (3) set forth a plausible basis for believing that the necessary facts probably exist and can be learned in a reasonable time; and (4) establish that the sought facts, if found, will “influence the outcome of the pending motion for summary judgment.” Id.; see also Velez v. Awning Windows, Inc., 375 F.3d 35, 39-40 (1st Cir.2004) (functionally equivalent statement may substitute for the affidavit required by Rule 56(f)). There is a fatal disconnect between the dismissed plaintiffs’ arguments and the district court’s summary judgment decision. The district court granted summary judgment in favor of defendants on the ground that the dismissed plaintiffs’ seniority rights were not violated in the shutdown. The dismissed plaintiffs’ contentions thus fail to address, let alone cast doubt upon, the court’s rationale on the dispositive issue, see In re Miles, 436 F.3d 291, 294 (1st Cir.2006), and disregard Rule 56(f)’s requirement that the requested discovery be capable of influencing the outcome of the motion for summary judgment, see Velez, 375 F.3d at 40; Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 4 (1st Cir.2004) (the sought “facts, if obtained, would help defeat pending motion”). Moreover, the dismissed plaintiffs failed to file their motion for additional discovery until fifteen months after the motions for summary judgment were filed. This was far too long a delay. See Guzman-Ruiz v. Hernandez-Colon, 406 F.3d 31, 35 (1st Cir.2005) (three-month delay excessive); Vargas-Ruiz, 368 F.3d at 4 (Rule 56(f) motion should be filed “promptly upon service of defendant’s dispositive motion”). That the district court took “under advisement” the request to stay the summary" } ]

[ { "docid": "18850507", "title": "", "text": "overseeured earlier in the bankruptcy proceedings — the value of the Melrose Avenue property simply declined between the filing of the petition and the time the property was sold. FMCC contends that so long as a creditor is overseeured at some point postpetition, the creditor should be treated as an overseeured creditor for purposes of § 506(b), even if the creditor ultimately ends up undersecured when the collateral is sold. The district court agreed with FMCC and reversed the bankruptcy court. The concise issue before us is this: When determining if and to what extent the value of secured collateral exceeds the value of a secured creditor’s claim for purposes of § 506(b), if the collateral has been sold, should the value of the collateral be the sale price or, alternatively, some other valuation made earlier in the Chapter 11 proceedings? We hold that when secured collateral has been sold, so long as the sale price is fair and is the result of an arm’s-length transaction, courts should use the sale price, not some earlier hypothetical valuation, to determine whether a creditor is oversecured and thus entitled to postpetition interest under § 506(b). Cf. Textile Banking Co. v. Widener, 265 F.2d 446, 452 (4th Cir.1959) (“since the proceeds from [the sale of] the property covered by Textile’s lien were insufficient to pay the principal of the debt it was not entitled to collect interest from the bankrupt”); accord Takisaki v. Alpine Group, Inc. (In re Alpine Group, Inc.), 151 B.R. 931, 935 (9th Cir. BAP 1993) (“Here, there was an actual sale.... The value of [the creditor’s] secured claim [for purposes of § 506(b) ] should have been determined by reference to the actual sale proceeds.”); In re Dowco Petroleum, Inc., 137 B.R. 207, 209-11 (Bankr.E.D.Tex.1992) (using sale price); Noland v. Williamson (In re Williamson), 94 B.R. 958, 966 (Bankr.S.D.Ohio 1988) (same); In re Mitchell, 81 B.R. 171, 173 (Bankr.D.Colo.1988) (same); In re Laza, 69 B.R. 669, 670 (Bankr.E.D.N.Y.1987) (same); Leasing Service Corp. v. Eastern Equip. Co. (In re Eastern Equip. Co.), 11 B.R. 732, 740 (Bankr.S.D.W.Va.1981) (same), vacated on" } ]

[ { "docid": "12912932", "title": "", "text": "Orix Credit Alliance, Inc. v. Delta Resources, Inc. (In re Delta Resources, Inc.), 54 F.3d 722, 729 (11th Cir.) (“[A]n oversecured creditor ... is entitled to receive postpetition interest as part of its claim at the time of confirmation of a plan or reorganization .... ”), cert. denied, 516 U.S. 980, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995); In re DeMaggio, 175 B.R. at 150 (“[Section] 506(b) determines the exact amount of the claim....”); In re Foertsch, 167 B.R. 555, 560 (Bankr.D.N.D.1994) (“[Section] 506(b) allows an oversecured creditor to enhance its claim by adding to it postpetition interest....”). Section 506(b) thus defines the allowed claim of an oversecured creditor; treatment of that claim after confirmation is governed by Section 1325, which establishes the circumstances under which the court may confirm a Chapter 13 debtor’s reorganization plan: (a) ... the court shall confirm a plan if— (5) with respect to each allowed secured claim provided for bythe plan— (A) the holder of such claim has accepted the plan; (B) (i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, ¿s of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; 11 U.S.C. § 1325(a) (1993). Under this provision, the court can confirm a plan if one of three conditions is satisfied with respect to secured creditors (a category which, of course, includes oversecured creditors): the secured creditor accepts the plan; the debtor surrenders the property securing the claim to the creditor; or the debtor invokes the so-called “cram-down” power of section 1325(a)(5)(B). The present case concerns the cram-down option, pursuant to which the debtor can keep the property over the objection of the creditor. The creditor then retains a lien securing the claim and the debtor must pay the creditor over the life of the plan (which under Chapter 13 is not to exceed five years) amounts totalling" }, { "docid": "3108148", "title": "", "text": "to courts taking the multiple valuations approach, secured status varies depending on the purpose for which secured status is determined. “Establishing equity, allowing claims, adequate protection, Chapter 13 eligibility, and plan confirmation” are some contexts in which such variable determinations might need to be made pursuant to Section 506(a). In re Cason, 190 B.R. 917, 924 (Bankr.N.D.Ala.1995); see also In re Delta Resources, Inc., 54 F.3d 722, 729-30 (11th Cir.1995) (adequate protection determined early in case, secured claims determined later); but see In re Beard, 108 B.R. 322, 323-24 (Bankr.N.D.Ala.1989) (holding it illogical for secured status to vary as the purpose for determining secured status varies). The argument for multiple valuations is based on a construction of Section 506(a) that recognizes the conflict that would be created between Section 506(a) and the Code’s adequate protection provisions if a creditor’s secured status were fixed for confirmation purposes as of the petition date. Such a procedure would render superfluous the Code’s provisions for adequate protection of a creditor’s petition date interest in depreciable collateral. See In re Cason, 190 B.R. at 927-28; In re Kennedy, 177 B.R. at 972. The Code’s adequate protection provisions are available to protect a creditor from losses it might incur due to depreciation of the collateral’s value during the period preceding plan confirmation. See In re Delta Resources, 54 F.3d at 729; In re Cook, 205 B.R. 437, 441 (Bankr.N.D.Fla.1997); In re Cason, 190 B.R. at 928; In re Kennedy, 177 B.R. at 972; In re Dunes Casino Hotel, 69 B.R. 784, 793-94 (Bankr.D.N.J.1986); Matter of Melson, 44 B.R. 454, 456-57 (Bankr.D.Del.1984); In re Nixon Mach. Co., 9 B.R. 316, 317 (Bankr.E.D.Tenn.1981) (automatic stay protects status quo for debtor; adequate protection protects status quo for secured creditor). Thus, if the Creditor’s secured status were based on the pickup’s petition date replacement value, the Court would effectively negate an important function of the Code’s adequate protection provisions. See In re Cason, 190 B.R. at 927 (court refused to “read the statute in a way that deprives creditors of such a fundamental bankruptcy principle as adequate protection”). When Debtor" }, { "docid": "15442081", "title": "", "text": "payment of the remaining amount of the FSA claim through twenty-four monthly payments of principal and post-confirmation interest, based on a twenty-year principal amortization at 8% interest or such other cram-down rate approved by the bankruptcy court, with a balloon payment of all remaining principal and interest at the end of two years; and (c) payment of the remaining balance, after application of all prior payments, in one of three ways (1) refinancing with another lender; (2) sale of the Hotel; or (3) a dation en paiement transferring ownership of the Hotel. . The bankruptcy court denied plan confirmation based on language in Section X.2 of the plan which it considered overly broad and ambiguous. T-H NOLP agreed to delete this language. . We also note that In re Delta Resources, Inc., 54 F.3d 722 (11th Cir.), cert. denied., sub nom. Orix Credit Alliance, Inc. v. Delta Resources, Inc.,-U.S.-, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995), addressed the narrow issue of whether a purportedly oversecured creditor was entitled to receive periodic cash payments for accruing postpetition interest as part of adequate protection in order to preserve the value of its equity cushion. We are not confronted with this question. In comparing when adequate protection is measured versus interest under § 506(b), the Delta Resources court held that a creditor’s claim is measured as it existed at the time of the petition date because postpetition interest is limited to the amount by which the claim was ov-ersecured at that time. We agree with this general proposition in the ordinary \"underwater” asset case; however, in the context where the collateral is rising and the creditor's claim is decreasing (as in the present case), we find this ruling to be inappropriately narrow. . Although not controlling, we also recognize that there is ample discussion on the valuation issue in the context of adequate protection. See, e.g., In re Cason, 190 B.R. 917 (Bankr.N.D.Ala. 1995) (discussing three valuation approaches); In re Addison Properties Ltd. Partnership, 185 B.R. 766 (Bankr.N.D.Ill.1995) (same); see also Craig H. Averch et al., The Treatment of Net Rents in Bankruptcy" }, { "docid": "18550419", "title": "", "text": "that valuation of a secured claim for purposes of confirmation take place in conjunction with the confirmation hearing, there is no similar directive as to when claims should be valued for adequate protection purposes. However, a number of courts have concluded that adequate protection is designed to safeguard the value of a creditor’s collateral at the time of the filing of the bankruptcy. For example, the district court in In re Johnson, 165 B.R. 524, 528 (S.D.Ga.1994), a Chapter 13 case, commented as follows: The date the petition is filed and the bankruptcy case is commenced is the point where the secured creditor’s rights are first impacted by the bankruptcy and the tension between adequate protection of such rights and a meaningful chance at rehabilitation under Chapter 13 for the debtor begins. The logical point as of which to ascertain property interests that must be adequately protected throughout an ensuing Chapter 13 bankruptcy proceeding is the point where the bankruptcy begins — the date of filing. (Citation omitted.) One of the decisions often cited in support of continuous valuation, In re Landing Associates, Ltd., 122 B.R. 288, 292 (Bankr.W.D.Tex.1990), makes the same point: It might well be appropriate to value property as of the filing date in order to evaluate whether a creditor’s interest has been adequately protected. After all, the function of adequate protection is to maintain the value of the creditor’s interest in the property as of the filing date. Cf. In re Delta Resources, Inc., 54 F.3d 722, 729 (11th Cir.1995) (“Ordinarily, the matter of adequate protection is determined at or near the inception of a bankruptcy case.”) The continuous valuation approach departs from this traditional principle with no apparent justification. ii. Fluctuating asset value. In addition to conflicting with judicial authority on the timing of adequate protection valuation, the continuous valuation approach creates highly questionable results when applied in a case where the property securing a claim fluctuates in value. Examples of such assets would include inventories of jewelry, which would fluctuate with the market price of precious metals and gems, and portfolios of common stocks" }, { "docid": "15578466", "title": "", "text": "if the Court’s ruling at that time were some kind of musing or tentative decision. That decidedly was not the case. The Court’s decision on this issue came at that time and in that fashion only because it was so easy. . That subsection is inapplicable here. The Debtors waived their right to seek a surcharge under this section. . The language of section 506(b) that is quoted, like that of the language of section 506(a) that is quoted next, is the language that is applicable in these pre-BAPCPA cases. . 35 F.3d 860, 869-871 (4th Cir.1994) (\"We hold that when secured collateral has been sold, so long as the sale price is fair and is the result of an arm’s-length transaction, courts should use the sale price, not some earlier hypothetical valuation, to determine whether a creditor is oversecured and thus entitled to postpetition interest under § 506(b).”). . 151 B.R. 931, 935-936 (9th Cir. BAP 1993) (\"Here, there was an actual sale. The offered price of $1.9 million is conclusive evidence of the property's value.”). . The Court expresses no view as to whether this analysis would also apply if the sale of the Debtors' property had occurred in a foreclosure sale, where the collateral sale process may not always achieve the maximum value. Here the sales of the Debtors’ licenses were conducted in a marketing process engaged in by the Debtors, and supervised by this Court. . Ford Motor Credit, 35 F.3d at 870. . See Ford Motor Credit, 35 F.3d at 869. . See Alpine, 151 B.R. at 935. . See, e.g., In re Two “S” Corp., 875 F.2d 240, 243 (9th Cir.1989) (\"Evidence of other appraised values is also irrelevant, because the sale price is a better indicator of the asset’s value than any estimate of value given prior to the sale. The bankruptcy court properly found that, under the facts of this case, the value was conclusively determined by the sale price.”); In re Toy King Distributors, Inc., 256 B.R. 1, 191 (Bankr.M.D.Fla.2000) (\"In circumstances where the collateral has been sold, courts generally determine" }, { "docid": "1299684", "title": "", "text": "for under the agreement. Salazar, at 540. The attorney’s fee clause contained in the applicable promissory note is a standard contract enforcement clause . We must remand for a determination of whether these elements are satisfied, specifically; whether the contract clause covers the fees requested in this action; whether Takisaki is a \"prevailing party” under the clause; and whether the fees requested are reasonable. B. Takisaki’s status as over-secured/under-secured. Also at issue is whether Takisaki is over-secured. The bankruptcy court held that the relevant date for determination of secured status was at the time the petition was filed. At that time, the Olivia Court property did not have plat approval and Takisaki’s lien exceeded the value of the property. During the case, Alpine made the requisite improvements and plat approval was obtained. This resulted in an increased value in the property, evidenced by the ultimate sales price of $1.9 million. In determining the secured status of a creditor under § 506(a), value is determined in light of the valuation’s purpose, and the proposed disposition of the property: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property_ Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. § 506(a) (emphasis added). See In re Case, 115 B.R. 666, 670 (9th Cir. BAP 1990). Here, there was an actual sale. The offered price of $1.9 million is conclusive evidence of the property’s value. If an actual disposition is to occur, regardless of the purpose of the valuation, the value of the collateral should be based on the consideration to be received by the estate in connection with the disposition, provided that the court determines such consideration is fair and was arrived at on an arm’s-length basis. 3 Collier" }, { "docid": "18850506", "title": "", "text": "of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for.under the agreement under which such claim arose. 11 U.S.C. § 506(b). “Section 506(b)’s denial of postpetition interest to underseeured creditors merely codified pre-Code bankruptcy law, in which that denial was part of the conscious allocation of reorganization benefits and losses between underseeured and unsecured creditors.” United Savings Ass’n v. Timbers of Inwood Forest, 484 U.S. 365, 373, 108 S.Ct. 626, 631, 98 L.Ed.2d 740 (1988). The first and critical inquiry under § 506(b) is whether FMCC is overseeured. The Dobbinses argue, and the bankruptcy court found, that FMCC is underseeured for purposes of § 506(b) because the Melrose Avenue property ultimately sold for an amount less than FMCC’s secured cláim. FMCC concedes that, if we use the sale price to determine the valué of the collateral for purposes of § 506(b), then it is underseeured. But, FMCC urges, although it was underse-eured at the time of sale, it was overseeured earlier in the bankruptcy proceedings — the value of the Melrose Avenue property simply declined between the filing of the petition and the time the property was sold. FMCC contends that so long as a creditor is overseeured at some point postpetition, the creditor should be treated as an overseeured creditor for purposes of § 506(b), even if the creditor ultimately ends up undersecured when the collateral is sold. The district court agreed with FMCC and reversed the bankruptcy court. The concise issue before us is this: When determining if and to what extent the value of secured collateral exceeds the value of a secured creditor’s claim for purposes of § 506(b), if the collateral has been sold, should the value of the collateral be the sale price or, alternatively, some other valuation made earlier in the Chapter 11 proceedings? We hold that when secured collateral has been sold, so long as the sale price is fair and is the result of an arm’s-length transaction, courts should use the sale price, not some earlier" }, { "docid": "18850510", "title": "", "text": "of § 506(b) on the basis of sale price arguably is the methodology most true to the text of that section. Section 506(b) says that when determining the value of secured collateral, we should subtract any recovery under § 506(e). Section 506(c) in turn says that the trustee may recover from secured property “the reasonable, necessary costs and expenses of ... disposing of, such proper-ty_” 11 U.S.C. § 506(c) (emphasis added). “A valuation of collateral which is sold, therefore, must necessarily be made at the time of the sale, since the first deductions from the sale proceeds to determine value are the costs of sale.” In re Broomall Printing Corp., 131 B.R. 32, 34 (Bankr.D.Md.1991). In any event, even if the text of § 506(b) is equivocal on this point, the use of sale price to determine the collateral’s value best effectuates the policy behind § 506(b). Section 506(b) simply codified pre-Code bankruptcy law: “It was considered unfair to allow an undersecured creditor to recover interest from the estate’s unencumbered assets before unsecured creditors had recovered any principal.” Timbers, 484 U.S. at 373, 108 S.Ct. at 631-32; see N.S.C. Contractors, Inc. v. Twin Parks Ltd. Partnership (In re Twin Parks Ltd. Partnership), 720 F.2d 1374, 1377 (4th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984). But if, as FMCC urges, we value the collateral on the basis of a hypothetical valuation made earlier in the proceedings, and if that earlier valuation is higher than the sale price, then every dollar of postpetition interest awarded above the sale price is a dollar usurped from the estate’s unencumbered assets, a dollar that would otherwise be available for distribution to unsecured creditors. By using sale price, we avoid this inequitable result. Of course, secured creditors may benefit by a § 506(b) valuation based on sale price if the collateral appreciates postpetition and the property is sold for more than it was appraised earlier in the proceedings. See, e.g., Alpine Group, 151 B.R. at 935. In sum, when valuing secured collateral to determine whether a creditor is oversecured and" }, { "docid": "18850511", "title": "", "text": "recovered any principal.” Timbers, 484 U.S. at 373, 108 S.Ct. at 631-32; see N.S.C. Contractors, Inc. v. Twin Parks Ltd. Partnership (In re Twin Parks Ltd. Partnership), 720 F.2d 1374, 1377 (4th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984). But if, as FMCC urges, we value the collateral on the basis of a hypothetical valuation made earlier in the proceedings, and if that earlier valuation is higher than the sale price, then every dollar of postpetition interest awarded above the sale price is a dollar usurped from the estate’s unencumbered assets, a dollar that would otherwise be available for distribution to unsecured creditors. By using sale price, we avoid this inequitable result. Of course, secured creditors may benefit by a § 506(b) valuation based on sale price if the collateral appreciates postpetition and the property is sold for more than it was appraised earlier in the proceedings. See, e.g., Alpine Group, 151 B.R. at 935. In sum, when valuing secured collateral to determine whether a creditor is oversecured and thus entitled to postpetition interest pursuant to § 506(b), if the collateral has been sold, the value of the collateral should be based on the consideration received by the estate in connection with the sale, provided that the sale price is both fair and the result of an arm’s-length transaction. Here, because the net consideration received in connection with the sale of the Melrose Avenue property is less than the amount of FMCC’s claim, FMCC is an underseeured creditor for purposes of § 506(b) and thus is not entitled to any postpetition interest. V. Parts Return Agreement The franchise agreement between Ford and the Dealership provided that Ford would buy back parts from the Dealership upon the Dealership’s termination. After it filed for bankruptcy, the Dealership sought to take advantage of this provision and entered into a parts return agreement with Ford. On January 20, 1982, the bankruptcy court issued an order, agreed to by FMCC’s counsel, approving the parts return agreement. In May 1982, the Dealership shipped its parts to Ford. On June 16," }, { "docid": "3108147", "title": "", "text": "The bankruptcy and district courts have not reached a consensus as to the correct answer. In In re Kennedy, 177 B.R. 967 (Bankr. S.D.Ala.1995), the court reviewed the theories for timing determination of secured status for the purpose of Section 1325(a)(B), and decided that the determination should be based on collateral’s confirmation date value. Such timing, the court argued, best accounts for the interplay of the Code’s various sections. In re Kennedy, 177 B.R. at 971. In re Kennedy appears to reflect the majority view. However, the argument based on judicial efficiency for fixing secured status based on collateral’s petition date value has merit, at least within the context of Chapter 13 proceedings, and it will be considered when determining Creditor’s secured status. 1. Multiple Valuations Approach to Determination of Secured Status Based on Value as of Confirmation Date The argument for determining a creditor’s secured status as to collateral’s confirmation date value, also called the “multiple valuations” approach, appears to be the view of the majority of courts that have considered this question. According to courts taking the multiple valuations approach, secured status varies depending on the purpose for which secured status is determined. “Establishing equity, allowing claims, adequate protection, Chapter 13 eligibility, and plan confirmation” are some contexts in which such variable determinations might need to be made pursuant to Section 506(a). In re Cason, 190 B.R. 917, 924 (Bankr.N.D.Ala.1995); see also In re Delta Resources, Inc., 54 F.3d 722, 729-30 (11th Cir.1995) (adequate protection determined early in case, secured claims determined later); but see In re Beard, 108 B.R. 322, 323-24 (Bankr.N.D.Ala.1989) (holding it illogical for secured status to vary as the purpose for determining secured status varies). The argument for multiple valuations is based on a construction of Section 506(a) that recognizes the conflict that would be created between Section 506(a) and the Code’s adequate protection provisions if a creditor’s secured status were fixed for confirmation purposes as of the petition date. Such a procedure would render superfluous the Code’s provisions for adequate protection of a creditor’s petition date interest in depreciable collateral. See In re" }, { "docid": "15578465", "title": "", "text": "from $4.7 billion to approximately $1.0 billion. See In re Next-Wave Personal Commc’ns, Inc., 235 B.R. 305 (Bankr.S.D.N.Y.1999). But for the purposes of the analysis that follows, it is sufficient to assume that the value of the Debtors' licenses dipped markedly — to a level below that sufficient to pay Gabriel in full — before that value later climbed to the level at which the licenses ultimately were sold. . The other two Debtors filed their chapter 11 cases on November 5, 1998, about a week later. . See In re NextWave Personal Commc’ns, Inc., 200 F.3d 43 (2d Cir.1999); In re Federal Communications Com’n, 208 F.3d 137 (2d Cir.2000). . See NextWave Personal Commc'ns, Inc. v. FCC, 254 F.3d 130 (D.C.Cir.2001), aff'd 537 U.S. 293, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003). . See FCC v. NextWave Personal Commc'ns, Inc., 537 U.S. 293, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003). .In a recent submission to the Court, the Debtors suggested that the Court \"preliminarily ruled” on this issue, surrounding those words with quotes, as if the Court’s ruling at that time were some kind of musing or tentative decision. That decidedly was not the case. The Court’s decision on this issue came at that time and in that fashion only because it was so easy. . That subsection is inapplicable here. The Debtors waived their right to seek a surcharge under this section. . The language of section 506(b) that is quoted, like that of the language of section 506(a) that is quoted next, is the language that is applicable in these pre-BAPCPA cases. . 35 F.3d 860, 869-871 (4th Cir.1994) (\"We hold that when secured collateral has been sold, so long as the sale price is fair and is the result of an arm’s-length transaction, courts should use the sale price, not some earlier hypothetical valuation, to determine whether a creditor is oversecured and thus entitled to postpetition interest under § 506(b).”). . 151 B.R. 931, 935-936 (9th Cir. BAP 1993) (\"Here, there was an actual sale. The offered price of $1.9 million is conclusive evidence of the" }, { "docid": "1299685", "title": "", "text": "the property: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property_ Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. § 506(a) (emphasis added). See In re Case, 115 B.R. 666, 670 (9th Cir. BAP 1990). Here, there was an actual sale. The offered price of $1.9 million is conclusive evidence of the property’s value. If an actual disposition is to occur, regardless of the purpose of the valuation, the value of the collateral should be based on the consideration to be received by the estate in connection with the disposition, provided that the court determines such consideration is fair and was arrived at on an arm’s-length basis. 3 Collier on Bankruptcy, 11 506.04, at 506-27 (15th ed. 1993). The value of Takisaki’s secured claim should have been determined by reference to the actual sale proceeds. Since the proceeds greatly exceed the extent of his combined lien, Takisaki is over-secured. It would clearly be inequitable for the entire benefit of the increase in value to inure to the debtor where, as it appears in this case, the cost was far less than the post petition increase in value. We hold that, under the circumstances of this case, the value of the collateral at the time of sale, subject to credit for the costs of the improvements made by Alpine, is the appropriate benchmark for determining Takisaki’s secured status. V. CONCLUSION The bankruptcy court erred in disallowing the post-petition portion of Takisaki’s application for attorney’s fees incurred in litigating bankruptcy issues and in determining Takisaki's secured status at the time of petition. We REMAND for an appropriate determination pursuant to this decision. REVERSED and REMANDED. . Unless otherwise indicated, all chapter and section references are to" }, { "docid": "12820610", "title": "", "text": "(1949). Cases construing § 506(a) have focused on two different clauses whose relative emphases lead to differing results. See In re Green, 151 B.R. 501, 502 (Bankr.D.Minn.1993). One line of cases rests on the language of § 506(a)’s first sentence, which provides that the creditor’s claim is secured to the extent of the value of its interest in the estate’s interest in such property. Under this approach, the secured creditor is entitled to receive, in the chapter 13 plan, the amount it could have obtained if the collateral were foreclosed upon and sold by the creditor. This “foreclosure approach” was followed by the bankruptcy and district courts in the current ease and in In re Mitchell, 954 F.2d 557 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 303, 121 L.Ed.2d 226 (1992). But see Lomas Mortgage USA v. Wiese (In re Wiese), 980 F.2d 1279, 1286 (9th Cir.1992), vacated on other grounds, — U.S. -, 113 S.Ct. 2925, 124 L.Ed.2d 676 (1993) (suggesting that the decision in Mitchell contradicts the language of § 506(a) and illogically “allow[s] the debtor to keep the home but val-uéis] the secured portion based upon a hypothetical sale of the residence”). Because the foreclosing creditor is not a dealer in the property comprising the collateral, it could not resell the collateral at retail prices. Thus, its interest is the wholesale price it would receive by selling the property to a retailer. Green, 151 B.R. at 504. Under this approach, the court will also generally deduct, from the wholesale price, the costs that would be incurred in executing the resale. A second line of cases relies upon the second sentence of § 506(a), which provides that the creditor’s lien interest must be valued in light of the purpose of the valuation and the proposed disposition or use of the collateral. “Where the debtor proposes to retain and use the collateral, and the purpose of the valuation is to determine the amount that an underseeured creditor will be paid on its secured claim under the debtor’s plan, the value of the creditor’s lien is derived from" }, { "docid": "23408421", "title": "", "text": "debtor as guarantor had a contingent liability for this amount. There is no dispute, therefore, that Liberty has an allowed claim in the amount of $900,000 that is secured by property of the estate. The collateral, the debtor’s inventory, had a value of $1,111,610.03 on the Toy King II petition date. The evidence, therefore, demonstrates that Liberty’s claim was overse-cured when the Toy King II case was filed. Later, on May 17, 1990, the debtor sold substantially all of its assets for the total amount of $1,000,050. In Section IV.I.3. above, the court determined that $750,000 of this amount represented the debtor’s inventory in which Liberty had a security interest. By May 17, 1990, therefore, the debtor’s inventory had a value that was less than the amount of Liberty’s claim against the debtor’s estate. The court is satisfied that at some point in time between the filing of Toy King II and the debtor’s sale of its assets, Liberty’s claim became undersecured. In circumstances where the collateral has been sold, courts generally determine the secured status of the claim on the date of sale for the purpose of allowing the secured claim and determining the creditor’s entitlement to interest and attorney’s fees, provided that the sale price is fair and the result of arms-length negotiation. See, e.g., Ford Motor Credit Co. v. Dobbins, 35 F.3d 860, 870 (4th Cir.1994) [“[CJourts should use the sale price, not some earlier hypothetical valuation, to determine whether a creditor is oversecured and thus entitled to postpetition interest under § 506(b).”]; Takisaki v. Alpine Group, Inc. (In re Alpine Group, Inc.), 151 B.R. 931, 935-36 (9th Cir. BAP 1993) [“[T]he value of the collateral at the time of sale, subject to credit for the costs of improvements made by [the debtor], is the appropriate benchmark for determining [the creditor’s] secured status.”]; In re Mitchell, 81 B.R. 171, 173 (Bankr.D.C.1988) [“[T]he maximum amount allowable to [the secured creditor] under Sections 502(b)(2) and 506(b) is the net sales price ....”]; In re Kids Stop of America, Inc., 64 B.R. 397, 401 (Bankr.M.D.Fla.1986) [“If there is to be" }, { "docid": "18850509", "title": "", "text": "other grounds, 27 B.R. 980 (S.D.W.Va.1983). As one commentator has observed in the context of discussing the valuation of collateral for purposes of § 506: If an actual disposition is to occur, regardless of the purpose of the valuation, the value of the collateral should be based on the consideration to be received by the estate in connection with the disposition, provided that the court determines such consideration is fair and was arrived at on an arm’s-length basis. Inasmuch as the price and related terms of the disposition will indicate the value of the property to be disposed of, valuation should not be a substantial issue in the context of such an actual disposition.... 3 L. King, Collier on Bankruptcy ¶ 506.04[2] at 506-27 (15th ed. 1991). Using the sale price thus makes practical sense because it is “conclusive evidence of the property’s value,” Alpine Group, 151 B.R. at 935, and it is the amount of money the collateral actually was able to bring into the estate for distribution. Moreover, valuing the collateral for purposes of § 506(b) on the basis of sale price arguably is the methodology most true to the text of that section. Section 506(b) says that when determining the value of secured collateral, we should subtract any recovery under § 506(e). Section 506(c) in turn says that the trustee may recover from secured property “the reasonable, necessary costs and expenses of ... disposing of, such proper-ty_” 11 U.S.C. § 506(c) (emphasis added). “A valuation of collateral which is sold, therefore, must necessarily be made at the time of the sale, since the first deductions from the sale proceeds to determine value are the costs of sale.” In re Broomall Printing Corp., 131 B.R. 32, 34 (Bankr.D.Md.1991). In any event, even if the text of § 506(b) is equivocal on this point, the use of sale price to determine the collateral’s value best effectuates the policy behind § 506(b). Section 506(b) simply codified pre-Code bankruptcy law: “It was considered unfair to allow an undersecured creditor to recover interest from the estate’s unencumbered assets before unsecured creditors had" }, { "docid": "12912931", "title": "", "text": "quotation marks omitted). The appropriate rate of pendency interest is therefore within the limited discretion of the court. See In re DeMaggio, 175 B.R. 144, 148 (Bankr.D.N.H.1994). Most courts have awarded pendency interest at the contractual rate; but nevertheless, however widespread this practice may be, it does not reflect an entitlement to interest at the contractual rate. Even if Key Bank were entitled to pendency interest at 9.5%, that rate would apply only to the period bounded by the petition on one side and on the other by confirmation of the plan, because pendency interest does not continue to run post-confirmation. “It is generally recognized that the interest allowed by § 506(b) will accrue until payment of the secured claim or until the effective date of the plan.” Rake, 508 U.S. at 468, 113 S.Ct. at 2190 (citing 3 Collier on Bankruptcy ¶ 506.05, pp. 506-43 and n. 5c (15th ed.1993)). On the date of confirmation, the allowed claim of an oversecured creditor is augmented by the inclusion of section 506(b) pendency interest. See, e.g., Orix Credit Alliance, Inc. v. Delta Resources, Inc. (In re Delta Resources, Inc.), 54 F.3d 722, 729 (11th Cir.) (“[A]n oversecured creditor ... is entitled to receive postpetition interest as part of its claim at the time of confirmation of a plan or reorganization .... ”), cert. denied, 516 U.S. 980, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995); In re DeMaggio, 175 B.R. at 150 (“[Section] 506(b) determines the exact amount of the claim....”); In re Foertsch, 167 B.R. 555, 560 (Bankr.D.N.D.1994) (“[Section] 506(b) allows an oversecured creditor to enhance its claim by adding to it postpetition interest....”). Section 506(b) thus defines the allowed claim of an oversecured creditor; treatment of that claim after confirmation is governed by Section 1325, which establishes the circumstances under which the court may confirm a Chapter 13 debtor’s reorganization plan: (a) ... the court shall confirm a plan if— (5) with respect to each allowed secured claim provided for bythe plan— (A) the holder of such claim has accepted the plan; (B) (i) the plan provides that the holder" }, { "docid": "15578467", "title": "", "text": "property's value.”). . The Court expresses no view as to whether this analysis would also apply if the sale of the Debtors' property had occurred in a foreclosure sale, where the collateral sale process may not always achieve the maximum value. Here the sales of the Debtors’ licenses were conducted in a marketing process engaged in by the Debtors, and supervised by this Court. . Ford Motor Credit, 35 F.3d at 870. . See Ford Motor Credit, 35 F.3d at 869. . See Alpine, 151 B.R. at 935. . See, e.g., In re Two “S” Corp., 875 F.2d 240, 243 (9th Cir.1989) (\"Evidence of other appraised values is also irrelevant, because the sale price is a better indicator of the asset’s value than any estimate of value given prior to the sale. The bankruptcy court properly found that, under the facts of this case, the value was conclusively determined by the sale price.”); In re Toy King Distributors, Inc., 256 B.R. 1, 191 (Bankr.M.D.Fla.2000) (\"In circumstances where the collateral has been sold, courts generally determine the secured status of the claim on the date of sale for the purpose of allowing the secured claim and determining the creditor’s entitlement to interest and attorney’s fees, provided that the sale price is fair and the result of arms-length negotiation.”); In re Mitchell, 81 B.R. 171, 173 (Bankr.D.D.C.1988)[\"[T]he maximum amount allowable to [the secured creditor] under sections 502(b)(2) and 506(b) is the net sales price....”]; In re Kids Stop of America, Inc., 64 B.R. 397, 401 (Bankr.M.D.Fla.1986) (\"If there is to be a disposition of the property, then the valuation of the collateral should be based on the funds received from the disposition so long as the disposition is commercially reasonable.”). .One case rejecting the Alpine approach, Whalley v. American Insurance Co. (In re Whalley), 202 B.R. 58 (Bankr.W.D.Pa.1996), chose not to follow Alpine on the facts before it, reasoning that Alpine was driven in materi al part by a concern that it would be inequitable for a debtor to reap the benefit of an increase in the value of the subject property" }, { "docid": "15578429", "title": "", "text": "(ii) the proposed disposition or use of the collateral. Here the Court starts with consideration of the statutory criteria. The latter factor is perhaps best considered first. The “disposition or use” of such property was (and with hindsight still is) the eventual sale of that property for the benefit of the Debtors’ creditors and equity. Then, the “purpose of the valuation” was in 2005 and still is the allowance of a secured creditor’s claim. And in particular, the purpose is determining the extent to which the secured creditor should be able to collect its contractual entitlement from the proceeds of its collateral — for which the actual proceeds were the best measure of the collateral value — and where the secured creditor’s lien attached to the proceeds. This Court noted in its earlier oral ruling that it would follow decisions by the Fourth Circuit in Ford Motor Credit Co. v. Dobbins, and by the Ninth Circuit BAP in In re Alpine Group, each of which had squarely held that where collateral was actually sold during the pendency of the case (and where the terms of the sale were fair and arrived at on an arm’s-length basis), the actual sale price should be used to measure the property’s value, as contrasted to some “earlier hypothetical valuation.” Each of Ford Motor Credit and Alpine was directly on point, deciding the exact question presented here, and applying a consistent rule irrespective of whether the collateral value, based on an actual sale, would be lower than an earlier estimate, or higher. At least on the facts here, there is no reason to depart from the Court’s earlier reliance on those cases. The decisions in Ford Motor Credit and Alpine were two of the appellate courts so to rule, but they were just the most prominent examples of a larger body of caselaw so holding. Those cases, especially when viewed with the other cases holding similarly, strongly support — if they do not also compel — -the conclusion that, at least for the purposes we have here, the Court should consider the actual value received" }, { "docid": "15578468", "title": "", "text": "the secured status of the claim on the date of sale for the purpose of allowing the secured claim and determining the creditor’s entitlement to interest and attorney’s fees, provided that the sale price is fair and the result of arms-length negotiation.”); In re Mitchell, 81 B.R. 171, 173 (Bankr.D.D.C.1988)[\"[T]he maximum amount allowable to [the secured creditor] under sections 502(b)(2) and 506(b) is the net sales price....”]; In re Kids Stop of America, Inc., 64 B.R. 397, 401 (Bankr.M.D.Fla.1986) (\"If there is to be a disposition of the property, then the valuation of the collateral should be based on the funds received from the disposition so long as the disposition is commercially reasonable.”). .One case rejecting the Alpine approach, Whalley v. American Insurance Co. (In re Whalley), 202 B.R. 58 (Bankr.W.D.Pa.1996), chose not to follow Alpine on the facts before it, reasoning that Alpine was driven in materi al part by a concern that it would be inequitable for a debtor to reap the benefit of an increase in the value of the subject property subsequent to the filing of the bankruptcy petition. See id. at 62 n. 3. But the Whalley court distinguished the facts before it from such a situation, and significantly observed that \"[i]f this were the case — i.e., that debtor would reap the benefit of these factual occurrences rather than his creditors — we might join in this [the Alpine ] determination.” . See 4 Collier on Bankruptcy (\"Collier\") ¶ 506.03[6][b] at 506-43 (15th Ed. Rev.2007). . 116 F.3d 790 (5th Cir.1997). . Id. at 798-799. . Id. at 798. . See, e.g., Schonfeld v. Hilliard, 218 F.3d 164, 178 (2d Cir.2000) (\"Indeed, it is well-established that a recent sale price for the subject asset, negotiated by parties at arm's length, is the 'best evidence’ of its market value.”). . Thacker v. FCC (In re Magnacom Wireless, LLC), 503 F.3d 984 (9th Cir.2007). . Id. at 991. . Id. at 991-92. . Significantly also, an agreement between Magnacom and the FCC expressly provided that Magnacom would not be entitled to any proceeds from the sale" }, { "docid": "23408422", "title": "", "text": "status of the claim on the date of sale for the purpose of allowing the secured claim and determining the creditor’s entitlement to interest and attorney’s fees, provided that the sale price is fair and the result of arms-length negotiation. See, e.g., Ford Motor Credit Co. v. Dobbins, 35 F.3d 860, 870 (4th Cir.1994) [“[CJourts should use the sale price, not some earlier hypothetical valuation, to determine whether a creditor is oversecured and thus entitled to postpetition interest under § 506(b).”]; Takisaki v. Alpine Group, Inc. (In re Alpine Group, Inc.), 151 B.R. 931, 935-36 (9th Cir. BAP 1993) [“[T]he value of the collateral at the time of sale, subject to credit for the costs of improvements made by [the debtor], is the appropriate benchmark for determining [the creditor’s] secured status.”]; In re Mitchell, 81 B.R. 171, 173 (Bankr.D.C.1988) [“[T]he maximum amount allowable to [the secured creditor] under Sections 502(b)(2) and 506(b) is the net sales price ....”]; In re Kids Stop of America, Inc., 64 B.R. 397, 401 (Bankr.M.D.Fla.1986) [“If there is to be a disposition of the property, then the valuation of the collateral should be based on the funds received from the disposition so long as the disposition is commercially reasonable.”]. See also 5 Collier on Bankruptcy, ¶ 506.01 at 506.03[6][b] (15th ed. 1999) [“[R]egardless of the purpose of the valuation, if an actual sale (or equivalent disposition) is to occur, the value of the collateral should be based on the consideration to be received by the estate in connection with the sale, provided that the terms of the sale are fair and were arrived at on an arm’s-length basis.”]. The debtor completed the sale of its assets to VMI during the pendency of the bankruptcy case and under the supervision of the court. The sale was noticed to all creditors, and each was given an opportunity to object. The sale brought the highest and best price; there were no higher offers. The court conducted a hearing on the motion to sell and determined that the sale was in the best interest of the estate. The court" } ]

[ { "docid": "18173216", "title": "", "text": "unqualified direction to the trustees to pay the principal or income of the trusts on demand of the beneficiary. Kieckhefer v. Commissioner, 7 Cir., 189 F.2d 118, 121, is an authority in point on the issue here presented. There, the donor created a trust for the benefit of his grandson, at that time less than one month of age. The instrument provided for payment to, or application for, the benefit of the beneficiary of so much of the trust income or principal as might be necessary for the education, comfort, and support of the beneficiary, with instructions to accumulate the balance of income for future distribution. It was further provided that the beneficiary was to be entitled to all or any part of the trust estate, free of trust, whenever he, or his legally appointed guardian, made due demand therefor by an instrument in writing. The Tax Court had held that the gift of both income and principal was clearly one of a future interest, and that the right of the beneficiary to demand payment was nugatory since a minor was incapable of making an effective demand. The Court of Appeals reversed, and held the gift to be one of present interest because the beneficiary’s right to demand gave him an unconditional right to the present use, possession, or enjoyment of the property. In its decision, the court held that “It is not * * * the use, possession or enjoyment by the beneficiary which marks the dividing line between a present and future interest, but it is the right conferred upon the beneficiary to such use, possession or enjoyment.” It is the right given to the donee, in the trust instrument, to use, possess, or enjoy, and not the capacity of the donee, which determines whether the gift is one of present or future interest. Fondren v. Commissioner, 324 U.S. 18, 65 S.Ct. 499, 89 L.Ed. 668. United States v. Pelzer, 312 U.S. 399, 61 S.Ct. 659, 85 L.Ed. 913. The government, however, submits that even though the beneficiaries were adults, the gifts in this case would be contingent" } ]

[ { "docid": "10275320", "title": "", "text": "as of the date of the gift, did not receive the right to immediate beneficial enjoyment of any part of the income or principal of a trust. Welch v. Paine, supra at 992. It must be noted, further, that because of the contingency contained in paragraph (c) of each trust instrument, the interest of each beneficiary is inherently incapable of valuation. See Commissioner v. Brandegee, supra, and Commissioner v. Disston, supra. There is always the question how much, if any, of the income or principal of each trust can actually be applied in any year for the permitted purpose of the support or education of a beneficiary. The existence of a discretionary power, upon the occurrence of a specified contingency, to make payments from the trust estate to a beneficiary or his legal guardian gives no clue to the amounts that will be needed for the stated purpose, or to the requirements for support and education that were foreseeable at the time the gifts were made. The taxpayer claiming exclusions under section 1003(b) (3) has the burden of showing that the value of what he claims is other than a future interest. Commissioner v. Disston, supra; Willis D. Wood, 16 T.C. 962, 967; Jennie Brody, 19 T.C. 126, 132. That burden has not been satisfied in this case. Consideration has been given to Commissioner v. Sharp, supra; Gilmore v. Commissioner, 213 F. 2d 520, reversing 20 T.C. 579; Kieckhefer v. Commissioner, 189 F. 2d 118; and United States v. Baker, 236 F. 2d 317. In each of those cases, it was held that under the provisions of the respective trusts a gift was made of a present interest. In general, the conclusion was supported in each case by trust indenture provisions which clearly specified that a trustee was to pay the income or principal of the trust on demand of the beneficiary; the beneficiary’s right to demand gave him an unconditional right to the present use, possession, or enjoyment of the property. In the Thorrez trusts there is no provision giving a beneficiary, or anyone standing in his shoes, the" }, { "docid": "17778149", "title": "", "text": "became available to the beneficiary here for his maintenance immediately upon consummation of the gift. He had at once the right of enjoyment. * * * [Emphasis added.] As we have already pointed out, the above cannot be said of Denice’s right under the trust here involved. Her right to receive income from the trust was clearly 'limited by the following provision of the trust: * * * Payment of such income to said minor shall be made by the Trustees paying and applying, in their sole discretion, so much of the income as may by them be deemed necessary for the maintenance, education and support of the said Denice Rassas during her minority, * * * [Emphasis added.] This limitation upon Denice’s right to receive the income of the trust it seems to us makes the gift one of future interest under the Supreme Court’s decision in the Fondren case, supra, and makes the gift here distinguishable from the one which was made in Commissioner v. Sharp, supra, where the Fondren case was distinguished. We think the instant case is also distinguishable from the case of Kieckhefer v. Commissioner, 189 F. 2d 118, reversing 15 T. C. 111. Neither party cited the Kieckhefer case in their briefs but we have carefully read it and considered it and think it is distinguishable on its facts. The court in that case in deciding that the gift in trust by the donor to his infant grandson was one of present interest instead of future interest laid much emphasis on the following language in the trust indenture: “unless the trust be prior terminated as hereinafter provided.” In discussing the provision in the trust indenture to which we have just called attention, the court said: Suppose in the instant situation that the beneficiary had been an adult rather than a minor. Such adult, of course, could immediately have made a demand upon the trustee and have received the trust property. We suppose that such a gift unquestionably would be one of a present interest. But because the beneficiary is a minor, with the disabilities" }, { "docid": "10275316", "title": "", "text": "the trustees for education, support, and maintenance of the beneficiaries until the age of 25. Accumulated income was to be paid to the beneficiary at the age of 21, and then currently as earned until the age of 25, when each trust was to terminate. Each trust instrument also provided that the beneficiary, or his parent, or duly qualified guardian, could demand at any time all or any part of the principal and aecwrmlated income. In concluding that the gifts in the Perkins case were of present interests, we held that there was at all times someone who could, under each trust agreement, make an effective demand for principal and income. We stated that (p. 605) “[t]he parents of the beneficiaries were given the power by clear and unambiguous language to demand and receive on behalf of their respective children all or part of the principal and accumulated income.” We warned, however: Had the power to demand income or principal been limited to the beneficiaries or their duly appointed guardians, respondent’s position, at least as to all gifts other than the two aforementioned, might well be tenable; there would have been at the time such gifts were made no person who could make an effective demand for immediate use, possession, and enjoyment by the beneficiaries. Stifel v. Commissioner, 197 F. 2d 107 (C.A. 2), affirming 17 T.C. 647. * * * There is no provision in the Thorrez trusts which gives to a parent of each beneficiary, or a duly appointed guardian, the right at any time to demand and receive as property of the beneficiary all or fart of the income, principal, and accumulated income. Rather, payments from each trust estate are within the discretion of each trustee and are contingent upon the existence of need. We cannot conclude here, as was done in the Perkins case, that gifts to the trusts were not of future interests. Paragraph (c) of the fourth article of the Thorrez trusts clearly incorporates a condition precedent for the making of any distribution from the trust estate before a beneficiary attains the age of" }, { "docid": "20711222", "title": "", "text": "demand and receive on behalf of their respective children all or part of the principal and accumulated income.” In the Opinion we warned that the decision would probably be otherwise if the trust instrument had limited the power to demand income or principal to the beneficiaries, who were minors and unable effectively to exercise the right, or to their legally appointed guardians, when at the time of the gift no guardians were appointed. In such case, we said (p. 605) : “There would have been at the time such gifts were made no person who could make an effective demand for immediate use, possession, and enjoyment by the beneficiaries.” In Abraham M. Katz, supra, the donor’s trust for his five minor grandchildren provided the trustees pay the income for the minors’ benefit or otherwise pay it over to the parent or guardian and further provided the trustees were authorized to apply any part of the principal for the maintenance, education, and support of the minors. A further provision stated the trustees were to have the same authority with respect to the income and principal as if they were general guardians. We held the gifts created future interests and the donor was therefore not entitled to the exclusions under section 1003 (b) (3). Again we pointed out (p. T85) : “If the trust is to qualify as a present interest, the beneficiary ‘must have the right presently to use, possess or enjoy the property.’ Fondren v. Commissioner, 324 U. S. 18, 20; Commissioner v. Disston, 325 U. S. 442. Or, at the very least, the beneficiary or someone standing in his shoes (such as a guardian or a parent) must have the unqualified right to demand at anytime that the property be turned over to the beneficiary or applied for his benefit.” We held there the trust did not qualify as a present interest for “although he [donor] invested the trustees with broad authority, they were nevertheless trustees and not guardians.” We held that since the trustee was “not in fact a guardian he cannot be transformed into one merely by" }, { "docid": "6038195", "title": "", "text": "laws of the jurisdiction as to minors. It was primarily on this basis that the Tax Court decided the present case, although some examination of surrounding circumstances was apparently made. This theory appears to be the basis of the decision in George W. Perkins, 27 T.C. 601 (1956). There the Tax Court stated that where the parents were capable of making the demand and there was no showing that the demand could be resisted, the gift was of a present interest. This approach also seems to be the basis of the “right to enjoy” language in both Kieckhefer and Gilmore. Under the provisions of this trust the income is to be accumulated and added to the corpus until each minor reaches the age of 21, unless the trustee feels in his discretion that distributions should be made to a needy beneficiary. From 21 to 35 all income is distributed to the beneficiary. After 35 the trustee again has discretion as to both income and corpus, and may distribute whatever is necessary up to the whole thereof. Aside from the actions of the trustee, the only way any beneficiary may get at the property is through the “demand” provision, quoted above. One question raised in these proceedings is whether or not the trust prohibits a minor child from making a demand on the yearly additions to the trust. The key language from paragraph three is as follows: “If a child is a minor at the time of such gift of that donor for that year, or fails in legal capacity for any reason, the child’s guardian may make such demand on behalf of the child.” The Tax Court interpreted this provision in favor of the taxpayers by saying that “may” is permissive and thus that the minor child can make the demand if allowed by law, or, if not permitted by law, the guardian may do it. Although, as the Commissioner suggests, this strains the language somewhat, it does seem consistent with the obvious intent in drafting this provision. Surely, this provision was intended to give the minor beneficiary the broadest" }, { "docid": "6038202", "title": "", "text": "difficulties, probably never would be appointed. As a practical matter, it is likely that some, if not all, of the beneficiaries did not even know that they had any right to demand funds from the trust. They probably did not know when contributions were made to the trust or in what amounts. Even had they known, the substantial contributions were made toward the end of the year so that the time to make a demand was severely limited. Nobody had made a demand under the provision, and no distributions had been made. We think it unlikely that any demand ever would have been made. All exclusions should be allowed under the Perkins test or the “right to enjoy” test in Gilmore. Under Perkins, all that is necessary is to find that the demand could not be resisted. We interpret that to mean legally resisted and, going on that basis, we do not think the trustee would have any choice but to have a guardian appointed to take the property demanded. Under the general language of Kieckhefer which talked of the “right to enjoy”, all exclusions in our ease would seem to be allowable. The broader Kieckhefer rule which we have discussed is inapplicable on the facts of this case. That rule, as we interpret it, is that postponed enjoyment is not equivalent to a “future interest” if the postponement is solely caused by the minority of the beneficiary. In Kieckhefer, the income was accumulated and added to the corpus until the beneficiary reached the age of 21. At that time everything was to be turned over to him. This is all that happened unless a demand was made. In our case, on the contrary, if no demand is made in any particular year, the additions are forever removed from the uncontrolled reach of the beneficiary since, with the exception of the yearly demand provision, the only way the corpus can ever be tapped by a beneficiary, is through a distribution at the discretion of the trustee. We decline to follow a strict reading of the Stifel case in our situation" }, { "docid": "6038190", "title": "", "text": "were gifts of “future interests”. They relied upon Fondren for the proposition that they could look at circumstances as well as the trust agreement and under such circumstances it was clear that the minor could not make the demand and that no guardian had ever been appointed who could make such a demand. The leading case relied upon by the petitioners is Kieckhefer v. Commissioner of Internal Revenue, 189 F.2d 118 (7th Cir. 1951). In that case the donor set up a trust with his newly born grandson as the beneficiary. The trustee was to hold the funds unless the beneficiary or his legally appointed guardian demanded that the ■ trust be terminated. The Commissioner urged that the grandson could not effectively make such a demand and that no guardian had been appointed. The court disregarded these factors and held that where any restrictions on use were caused by disabilities of a minor rather than by the terms of the trust, the gift was a “present interest”. The court further stated that the important thing was the right to enjoy rather than the actual enjoyment of the property. The Kieckhefer case has been followed in several decisions. In Gilmore v. Commissioner of Internal Revenue, 213 F.2d 520 (6th Cir. 1954) there was an irrevocable trust for minors. It provided that all principal and accumulated income would be paid on demand of the beneficiary. The trust was to terminate on the beneficiary’s death. Anything remaining in the trust at the time of death would go to the beneficiary’s estate. The Tax Court stated that the demand provision would have made the advancements “present interests” but for spendthrift provisions and the authority of the Trustee to invest in non-income producing properties. The Circuit agreed that the demand provision made the advancements “present interests” and further held that the other provisions did not change that character. Reliance was placed on the “right to enjoy” language of Kieckhefer. In United States v. Baker, 236 F.2d 317 (4th Cir. 1956) the court followed the Kieckhefer ease in holding that advances were “present interests” where: “The" }, { "docid": "10378528", "title": "", "text": "be paid the beneficiary at age 21 and then currently as earned until age 25, when the trust was to terminate. Each trust instrument also provided that the beneficiary, or his parent, or duly qualified guardian, could demand at any time dll or any part of the principal and accumulated income. In concluding that the gifts in the Perkins case were of present interests, we held that there was at all times someone who could, under the trust agreement, make an effective demand for principal and income. We stated that the parents “by clear and unambiguous language,” were given the power to make such a demand on behalf of their children. We fail to see how the instant case comes within any “rule” set forth in the Perkins case. There, as we have stated, the beneficiary, or his parent, or a duly appointed guardian, was specifically empowered to make the all important demand for the gift property at any time. In the instant case, no one was empowered by the trust agreement to make such a demand. The lack of such authority is decisive. A tnist provision which empowers a trustee to terminate a trust at will cannot be termed clear and unambiguous language empowering the parents or natural guardian of a minor to demand principal and income of a trust for the minor, even though the trustee happens also to be a parent of the minor. A trustee, simply because he is a beneficiary’s parent, cannot be said to stand in the shoes of the beneficiary. See Frances McGuire Rassas, 17 T. C. 160, affd. 196 F. 2d 611, and Welch v. Paine, supra, for cases in which the court apparently ignored the fact that the parent or parents of the beneficiaries were named as trustees and held, under similar trust provisions, that neither the beneficiaries nor anyone standing in the shoes of the beneficiaries, could make an effective demand for the property. We so hold in the instant case. We, therefore, conclude that the gifts of corpus made in 1951 and 1952 were gifts of future interests for" }, { "docid": "6038192", "title": "", "text": "trust agreements with which we are concerned here created no barriers to the present enjoyment by the infants of the trust property beyond those which are established by the laws of North Carolina.” That case involved a trust for minors where income and principal were to be used for the support, education and benefit of the beneficiaries according to the discretion of the trustee who was to act as if he were a guardian. What was not expended went to the beneficiary on his 21st birthday. A final case of interest is Trust No. 3 v. Commissioner, 285 F.2d 102 (7th Cir. 1960). This involved the question of whether certain income was taxable to a trust or to the beneficiaries. The court held the income was taxable to the beneficiaries where they had the right to terminate the trust or take any part of it on demand. The beneficiaries were minors, and no guardian had been appointed. The Commissioner urged that no one was ever qualified to make the demand and thus that the beneficiaries could not have taken any property from the trust in the tax year. The court relying on Kieckehefer said: “This distinction is unconvincing in view of the fact that the appointment of a guardian for a minor under a state law is a matter of routine in which the federal government has no concern.” Although there are certainly factual distinctions between the Stifel and Kieckhefer cases, it seems clear that the two courts took opposing positions on the way the problem of defining “future interests” should be resolved. As we read the Stifel case, it says that the court should look at the trust instrument, the law as to minors, and the financial and other circumstances of the parties. From this examination it is up to the court to determine whether it is likely that the minor beneficiary is to receive any present enjoyment of the property. If it is not likely, then the gift is a “future interest”. At the other extreme is the holding in Kieckhefer which says that a gift to a" }, { "docid": "2909339", "title": "", "text": "by the donor after full con sideration and advice. Upon such consideration and advice the donor has determined that this said trust shall not contain any right in the donor to alter, amend, revoke or terminate it. The beneficiary shall be entitled to all or any part of the trust estate or to terminate the trust estate in whole or in part at any time whenever said John Irving Kieckhefer or the legally appointed guardian for his estate shall make due demand therefor by instrument in writing filed with the then trustee and upon such demand being received by the trustee the trustee shall pay said trust estate and its accumulations, or the part thereof for which demand is made, over to. said John Irving Kieckhefer or to the legally appointed guardian for his estate who made such demand on his behalf.” (Italics ours.) The italicized language of this paragraph forms the basis for the controversy as to whether the taxpayer’s gift to his grandson was of a present or future interest. Again the Commissioner, as well as the Tax Court, relies upon the Fondren and Disston cases in support of the conclusion that it falls within the latter category. Other cases cited and relied upon both by the Commissioner and the taxpayer are of little, if any, aid because they each deal with a different factual situation. In fact, there is no case, so far as we are aware, where a court has decided the issue before us upon the same or even a similar state of facts. The Commissioner’s argument rests upon two premises, (1) that the infant beneficiary, being of tender years, could not make an effective demand, and (2) that the minor beneficiary had no legally appointed guardian at the time of the execution of the trust or since its establishment. In connection with this latter premise, it is urged that under the law of Arizona (the residence and domicile of the beneficiary as well as his father), it is doubtful if the court would appoint a guardian for the purpose of making a demand and," }, { "docid": "2909338", "title": "", "text": "property, but the trustee is authorized and directed to hold said estate, unless the trust be prior terminated as hereinafter provided, until such beneficiary arrives at the age of twenty-one (21) years, at which time the trustee shall pay over to him the said trust estate including all accumulations. In the event that the said beneficiary shall die prior to his becoming twenty-one (21) years of age, the said trust estate and any accumulations ■shall belong to his estate and shall be paid over to his administrator.” (Italics ours.) In the absence of the italicized phrase, we agree with the Tax Court that the provisions of this paragraph would require a holding adverse to the taxpayer as they come squarely within both the reasoning and the decisions in Fondren v. Commissioner, 324 U.S. 18, 65 S.Ct. 499, 89 L.Ed. 668, and Commissioner v. Disston, 325 U.S. 442, 65 S.Ct. 1328, 89 L.Ed. 1720. In fact, that such is the case appears to be conceded on all sides. Paragraph 13 provides: “This trust has been created by the donor after full con sideration and advice. Upon such consideration and advice the donor has determined that this said trust shall not contain any right in the donor to alter, amend, revoke or terminate it. The beneficiary shall be entitled to all or any part of the trust estate or to terminate the trust estate in whole or in part at any time whenever said John Irving Kieckhefer or the legally appointed guardian for his estate shall make due demand therefor by instrument in writing filed with the then trustee and upon such demand being received by the trustee the trustee shall pay said trust estate and its accumulations, or the part thereof for which demand is made, over to. said John Irving Kieckhefer or to the legally appointed guardian for his estate who made such demand on his behalf.” (Italics ours.) The italicized language of this paragraph forms the basis for the controversy as to whether the taxpayer’s gift to his grandson was of a present or future interest. Again the Commissioner," }, { "docid": "3428381", "title": "", "text": "F.2d 440, 444; Sensenbrenner v. Commissioner, 7 Cir., 134 F.2d 883, 885; Fisher v. Commissioner, 9 Cir., 132 F.2d 383, 385. . Fondren v. Commissioner, supra, 324 U.S. at page 20, 65 S.Ct. at page 501. . United States v. Pelzer, 312 U.S. 399, 404, 61 S.Ct. 659, 85 L.Ed. 913. Cf. Commissioner of Internal Revenue v. Sharp, 9 Cir., 153 F.2d 163. . Commissioner of Internal Revenue v. Disston, supra, 325 U.S. at pages 448, 449, 65 S.Ct. at page 1331; Fondren v. Commissioner, supra, 324 U.S. at pages 28-29, 65 S.Ct. at pages 504-505. . Commissioner of Internal Revenue v. Brandegee, 1 Cir., 123 F.2d 58, 61. . Commissioner of Internal Revenue v. Kempner, 5 Cir., 126 F.2d 853, 854. . In Gilmore v. Commissioner, 6 Cir., 213 F.2d 520, it was held that a gift in trust for the benefit of a minor was a gift of a present interest because on demand of the beneficiary the trustee was required to pay to him principal and income. A similar result was reached in Kieckhefer v. Commissioner, 7 Cir., 189 F.2d 118, Strekalovsky v. Delaney, D.C., 78 F.Supp. 556, and Welles v. Sauber, D.C., 142 F.Supp. 449, where each trust gave the legally appointed guardian of the minor the power to make such a demand. The trust agreement considered in United States v. Baker, 4 Cir., 236 F.2d 317, 319, empowered the trustee to use income and principal for the benefit of the minor as if he “were holding the properties as Guardian of the beneficiary.” The Tax Court has held that the gift is of a future interest unless there is some one, such as a guardian or parent, who at the time the trust was created could make an effective demand on behalf of the minor for immediate possession and enjoyment of the property. In George W. Perkins, 27 T.C. 601, the trust provided that the beneficiary, his parent or his duly appointed guardian had the right to demand and receive as I>roperty of the beneficiary all or part of the principal and accumulated income, and" }, { "docid": "20711221", "title": "", "text": "Fondren v. Commissioner, 324 U. S. 18; Commissioner v. Disston, 325 U. S. 442; George W. Perkins, 27 T. C. 601; and Abraham M. Katz, 27 T. C. 783. The guiding principles were outlined and applied recently in our Opinions in George W. Perkins, supra, and Abraham M. Katz, supra. In the Perkins case, the trust instruments provided the beneficiaries (minor grandchildren of the settlor), their duly appointed guardians, or their parents, were given the right to demand and receive all or a part of the trust income or principal. We held the gift was of a present interest. In the course of the Opinion, we stated (p. 604) : “The issue as to whether a gift is of a present or future interest is not one of the time of vesting, but rather whether there is any substantial barrier to the present use, possession, or enjoyment by the donee.” The decision for the taxpayer was on the ground that the parents of the beneficiaries “were given the power by clear and unambiguous language to demand and receive on behalf of their respective children all or part of the principal and accumulated income.” In the Opinion we warned that the decision would probably be otherwise if the trust instrument had limited the power to demand income or principal to the beneficiaries, who were minors and unable effectively to exercise the right, or to their legally appointed guardians, when at the time of the gift no guardians were appointed. In such case, we said (p. 605) : “There would have been at the time such gifts were made no person who could make an effective demand for immediate use, possession, and enjoyment by the beneficiaries.” In Abraham M. Katz, supra, the donor’s trust for his five minor grandchildren provided the trustees pay the income for the minors’ benefit or otherwise pay it over to the parent or guardian and further provided the trustees were authorized to apply any part of the principal for the maintenance, education, and support of the minors. A further provision stated the trustees were to have the" }, { "docid": "17778379", "title": "", "text": "such part or all of the income so demanded, as the case may be, shall be paid over to the Settlor’s said daughter, or, if she be a minor, to her general guardian or to such special guardian, but in no event to the Settlor. It seems to me that by virtue of the language quoted above from the trust indenture the gifts of both income and corpus were of present interests and that the case is distinguishable from Fondren v. Commissioner, 324 U. S. 18, and Commissioner v. Disston, 325 U. S. 442. See Commissioner v. Sharp, 153 F. 2d 163, affirming 3 T. C. 1062, and Kieckhefer v. Commissioner, 189 F. 2d 118, reversing 15 T. C. 111. In the latter case the United States Court of Appeals for the Seventh Circuit in deciding that the gift in trust by the donor to his infant grandson was one of present interest instead of future interest laid much emphasis on the following language in the trust indenture: “unless the trust be prior terminated as hereinafter provided.” In discussing that particular provision in the trust indenture, the court said: Suppose in the instant situation that the beneficiary had been an adult rather than a minor. Such adult, of course, could immediately have made a demand upon the trustee and have received the trust property. We suppose that such a gift unquestionably would be one of a present interest. But because the beneficiary is a minor, with the disabilities incident thereto, it is reasoned that the gift is of a future interest because the disabled beneficiary is not capable of making demand. The court then went on and disagreed with such reasoning and held that the gift was one of present interest. It seems to me that the Seventh Circuit was right in its conclusion that the gift there involved was one of present interest. I think that a like reasoning applies here. The fact that in the instant case the rights granted to the minor children in Article Third and Article Eleventh of the trust indentures would have to be" }, { "docid": "17778150", "title": "", "text": "We think the instant case is also distinguishable from the case of Kieckhefer v. Commissioner, 189 F. 2d 118, reversing 15 T. C. 111. Neither party cited the Kieckhefer case in their briefs but we have carefully read it and considered it and think it is distinguishable on its facts. The court in that case in deciding that the gift in trust by the donor to his infant grandson was one of present interest instead of future interest laid much emphasis on the following language in the trust indenture: “unless the trust be prior terminated as hereinafter provided.” In discussing the provision in the trust indenture to which we have just called attention, the court said: Suppose in the instant situation that the beneficiary had been an adult rather than a minor. Such adult, of course, could immediately have made a demand upon the trustee and have received the trust property. We suppose that such a gift unquestionably would be one of a present interest. But because the beneficiary is a minor, with the disabilities incident thereto, it is reasoned that the gift is of a future interest because the disabled beneficiary is not capable of making demand. The court then went on and disagreed with such reasoning and held that the gift was one of present interest. The trust indenture in the instant case did not give to the beneficiary nor to any one acting for her the right to terminate the trust. Not only did the beneficiary have no' right to terminate the trust in the instant case but neither the beneficiary nor any one acting for her has the right to demand payment of the income. Only such income of the trust estate is payable to the beneficiary as the trustees in their sole discretion shall decide. These facts, in our opinion, make the instant case distinguishable from Kieckhefer v. Commissioner, supra, and we think, under the cases which we have cited and discussed, make the gift here one of future interest. Decision will he entered for the respondent. Internal Revenue Code. SEC. 1003. NET GIFTS. *••••••" }, { "docid": "10413346", "title": "", "text": "and each case must be decided in the light of its own trust instrument and surrounding circumstances. Commissioner v. Kempner, 126 F. 2d 853 (C. A. 5). The trust instruments by themselves appear to have given a present interest to the beneficiaries. Each provides that notwithstanding all other provisions the beneficiary, his duly appointed guardian, or his parent may at any time demand and receive all of the income and principal. To be sure, the beneficiaries were minors and unable effectively to exerecise that right, and only with respect to two gifts in 1953 to one of the seven beneficiaries was there a duly appointed guardian at the time of the making thereof. Had the power to demand income or principal been limited to the beneficiaries or their duly appointed guardians, respondent’s position, at least as to all gifts other than the two aforementioned, might well be tenable; there would have been at the time such gifts were made no person who could make an effective demand for immediate use, possession, and enjoyment by the beneficiaries. Stifel v. Commissioner, 197 F. 2d 107 (C. A. 2), affirming 17 T. C. 647. But cf. United States v. Baker, 236 F. 2d 317 (C. A. 4); Gilmore v. Commissioner, 213 F. 2d 520 (C. A. 6), reversing 20 T. C. 579; Kieckhefer v. Commissioner, 189 F. 2d 118 (C. A. 7), reversing 15 T. C. 111. In the instant proceeding, however, this right was also given to the adult parents of the beneficiaries, none of whom appears to have been incompetent to exercise the power thus bestowed. Therefore, with respect to each of the gifts in question there was at all times someone who could have made an effective, binding demand for principal and income. By the terms of the trusts alone, there was no substantial bar to present use, possession, and enjoyment by the donees. Petitioners expected the trusts to continue for a substantial period and did not anticipate actual exercise by any of the parents of that power. But we do not agree with respondent that such expectation is more" }, { "docid": "6038191", "title": "", "text": "was the right to enjoy rather than the actual enjoyment of the property. The Kieckhefer case has been followed in several decisions. In Gilmore v. Commissioner of Internal Revenue, 213 F.2d 520 (6th Cir. 1954) there was an irrevocable trust for minors. It provided that all principal and accumulated income would be paid on demand of the beneficiary. The trust was to terminate on the beneficiary’s death. Anything remaining in the trust at the time of death would go to the beneficiary’s estate. The Tax Court stated that the demand provision would have made the advancements “present interests” but for spendthrift provisions and the authority of the Trustee to invest in non-income producing properties. The Circuit agreed that the demand provision made the advancements “present interests” and further held that the other provisions did not change that character. Reliance was placed on the “right to enjoy” language of Kieckhefer. In United States v. Baker, 236 F.2d 317 (4th Cir. 1956) the court followed the Kieckhefer ease in holding that advances were “present interests” where: “The trust agreements with which we are concerned here created no barriers to the present enjoyment by the infants of the trust property beyond those which are established by the laws of North Carolina.” That case involved a trust for minors where income and principal were to be used for the support, education and benefit of the beneficiaries according to the discretion of the trustee who was to act as if he were a guardian. What was not expended went to the beneficiary on his 21st birthday. A final case of interest is Trust No. 3 v. Commissioner, 285 F.2d 102 (7th Cir. 1960). This involved the question of whether certain income was taxable to a trust or to the beneficiaries. The court held the income was taxable to the beneficiaries where they had the right to terminate the trust or take any part of it on demand. The beneficiaries were minors, and no guardian had been appointed. The Commissioner urged that no one was ever qualified to make the demand and thus that the beneficiaries" }, { "docid": "6038189", "title": "", "text": "designated times commencing with each grandchild’s 25 th birthday. The trustee was authorized to spend the income or invade the corpus during the minority of the beneficiaries only if need were shown. The facts demonstrated that need had not occurred and was not likely to occur. Neither of the parties nor the Tax Court has any disagreement with the above summarization of the basic tests. The dispute comes in attempting to narrow the definition of a future interest down to a more specific and useful form. The Commissioner and the Tax Court both placed primary reliance on the case of Stifel. v. Commissioner of Internal Revenue, 197 F.2d 107 (2nd Cir. 1952). In that case an irrevocable trust was involved which provided that the beneficiary, a minor, could demand any part of the funds not expended by the Trustee and, subject to such demand, the Trustee was to accumulate. The trust also provided that it could be terminated by the beneficiary or by her guardian during minority. The court held that gifts to this trust were gifts of “future interests”. They relied upon Fondren for the proposition that they could look at circumstances as well as the trust agreement and under such circumstances it was clear that the minor could not make the demand and that no guardian had ever been appointed who could make such a demand. The leading case relied upon by the petitioners is Kieckhefer v. Commissioner of Internal Revenue, 189 F.2d 118 (7th Cir. 1951). In that case the donor set up a trust with his newly born grandson as the beneficiary. The trustee was to hold the funds unless the beneficiary or his legally appointed guardian demanded that the ■ trust be terminated. The Commissioner urged that the grandson could not effectively make such a demand and that no guardian had been appointed. The court disregarded these factors and held that where any restrictions on use were caused by disabilities of a minor rather than by the terms of the trust, the gift was a “present interest”. The court further stated that the important thing" }, { "docid": "6038194", "title": "", "text": "minor is not a “future interest” if the only reason for a delay in enjoyment is the minority status of the donee and his consequent disabilities. The Kieckhefer court noted that under the terms there present, a gift to an adult would have qualified for the exclusion and they refused to discriminate against a minor. The court equated a present interest with a present right to possess, use or enjoy. The facts of the case and the court’s reasoning, however, indicate that it was really equating a present interest with a present right to possess, use or enjoy except for the fact that the beneficiary was a minor. In between these two positions there is a third possibility. That possibility is that the court should determine whether the donee is legally and technically capable of immediately enjoying the property. Basically this is the test relied on by the petitioners. Under this theory, the question would be whether the donee could possibly gain immediate enjoyment and the emphasis would be on the trust instrument and the laws of the jurisdiction as to minors. It was primarily on this basis that the Tax Court decided the present case, although some examination of surrounding circumstances was apparently made. This theory appears to be the basis of the decision in George W. Perkins, 27 T.C. 601 (1956). There the Tax Court stated that where the parents were capable of making the demand and there was no showing that the demand could be resisted, the gift was of a present interest. This approach also seems to be the basis of the “right to enjoy” language in both Kieckhefer and Gilmore. Under the provisions of this trust the income is to be accumulated and added to the corpus until each minor reaches the age of 21, unless the trustee feels in his discretion that distributions should be made to a needy beneficiary. From 21 to 35 all income is distributed to the beneficiary. After 35 the trustee again has discretion as to both income and corpus, and may distribute whatever is necessary up to the whole" }, { "docid": "3428382", "title": "", "text": "in Kieckhefer v. Commissioner, 7 Cir., 189 F.2d 118, Strekalovsky v. Delaney, D.C., 78 F.Supp. 556, and Welles v. Sauber, D.C., 142 F.Supp. 449, where each trust gave the legally appointed guardian of the minor the power to make such a demand. The trust agreement considered in United States v. Baker, 4 Cir., 236 F.2d 317, 319, empowered the trustee to use income and principal for the benefit of the minor as if he “were holding the properties as Guardian of the beneficiary.” The Tax Court has held that the gift is of a future interest unless there is some one, such as a guardian or parent, who at the time the trust was created could make an effective demand on behalf of the minor for immediate possession and enjoyment of the property. In George W. Perkins, 27 T.C. 601, the trust provided that the beneficiary, his parent or his duly appointed guardian had the right to demand and receive as I>roperty of the beneficiary all or part of the principal and accumulated income, and the gift was held to be of a present interest. A contrary result was reached in Abraham M. Katz, 27 T.C. 783, where there were two trustees, the donor’s accountant and the beneficiary’s mother, and no one was given the unqualified right to demand distribution. In William Goehner, 28 T.C. 542, the trustees, who were the parents of the beneficiaries, were empowered to use the income and so much of the principal as they deemed necessary “for the education, support, maintenance, health and welfare” of the beneficiaries. The Tax Court held that the gift was of a future interest and pointed out that there was no person with the unqualified right to demand the property and that, as the parents were financially able to maintain, educate and support the beneficiaries, there was no showing of the necessity required by the trust agreement for distribution. . Restatement of the Law, Trusts, Vol. 1, § 7, p. 27. . The donors were Oklahoma residents and each trust provided it ‘shall be governed and construed under the laws" } ]

[ { "docid": "8666464", "title": "", "text": "subjected to physical abuse in her home. Roe has been refused an abortion at the Akron Center because of the imminent operation of H.B. 319. Defendant Gary M. Rosen is the City Prosecutor for the City of Akron, Ohio. Defendant Lynn Slaby is the Prosecuting Attorney of Summit County, Ohio. Plain tiffs allege that Rosen is responsible for prosecuting misdemeanors and Slaby for prosecuting felonies arising under § 2919.-12. Defendant Anthony Celebrezze is the Attorney General of the state of Ohio, and defendant Richard F. Celeste is the Ohio governor. All defendants are sued in their official capacities. Plaintiffs also sue Rosen and Slaby as representatives of all Ohio prosecutors charged with prosecuting violations of § 2919.12, and plaintiffs Poe and Roe also seek to represent the entire class of unmarried, unemancipated minor women in Ohio who are or may become pregnant. However, plaintiffs have not filed a motion to certify either plaintiff or defendant classes. CONCLUSIONS OF LAW II. A. Standing of the Plaintiffs Present case law indisputably supports the standing of the Akron Center and Dr. Gaujean to assert the due process rights of their patients. Birth Control Centers, Inc. v. Reizen, 743 F.2d 352, 358 (6th Cir. 1984); American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 n. 6, (3d Cir.1984), prob. juris, noted, — U.S. —, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985) (“ACOG”), and cases cited therein. It is also indisputable that the Akron Center and Dr. Gaujean have standing to assert their own interests. E.g., Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). Rachel Roe’s standing is obvious and has not been challenged by the defendants. Defendants Celeste and Celebrezze, however, argue that Patty Poe is not a proper plaintiff in this case because she does not state a claim. Poe’s affidavit states that she is currently sexually active and that she is “uncertain as to whether or not I am pregnant as of this date," } ]

[ { "docid": "22979662", "title": "", "text": "this action include the Akron Center for Reproductive Health, a facility that provides abortions; Max Pierre Gaujean, M. D., a physician who performs abortions at the Akron Center; and Rachael Roe, an unmarried, un-emancipated, minor woman, who sought an abortion at the facility. In March 1986, days before the effective date of H. B. 319, appellees and others brought a facial challenge to the constitutionality of the statute in the United States District Court for the Northern District of Ohio. The District Court, after various proceedings, issued a preliminary injunction and later a permanent injunction preventing the State of Ohio from enforcing the statute. Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123 (1986). The Court of Appeals for the Sixth Circuit affirmed, concluding that H. B. 319 had six constitutional defects. These points, discussed below, related to the sufficiency of the expedited procedures, the guarantee of anonymity, the constructive authorization provisions, the clear and convincing evidence standard, the pleading requirements, and the physician’s personal obligation to give notice to one of the minor’s parents. Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852 (1988). The State of Ohio, on appeal under 28 U. S. C. § 1254(2) (1982 ed.), prob. juris, noted, 492 U. S. 916 (1989), challenges the Court of Appeals’ decision in its entirety. Appellees seek affirmance on the grounds adopted by the Court of Appeals and on other grounds. II We have decided five cases addressing the constitutionality of parental notice or parental consent statutes in the abortion context. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). We do not need to determine whether a statute that does not accord with these cases would violate the Constitution, for we conclude that H. B. 319 is consistent with them. A This dispute turns," }, { "docid": "21393410", "title": "", "text": "court concluded that such freedom is required in order to satisfy the undue burden standard, and based it conclusion in part on this court’s holding in Akron Ctr. for Reproductive Health v. Slaby, 854 F.2d 852, 866 (6th Cir.1988), rev’d on other grounds, Ohio v. Akron Ctr. for Reproductive Health (‘Akron II”), 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), where this court found an Ohio statute was constitutional because it allowed a minor to file her petition for a bypass in her home county, any county bordering her home county, or in the county where the abortion would be performed. Majority Opinion The majority found that the district court “incorrectly assumed that the Rule trumps the Act;” however, I believe that it is the majority who is making speculative assumptions here. The majority begins by noting that when a rule of court conflicts with a legislative act, the general rule is that the act controls. It then goes on to state that “Tennessee has a mechanism by which procedural rules promulgated by the Tennessee Supreme Court may be approved by resolution of both houses of the Tennessee General Assembly,” and that after such approval, the rules control despite conflicting provisions of the Tennessee Code. The majority concluded that because no evidence had been presented to indicate that Rule 24 had been approved by such joint resolution, it was “confident” that the venue provision found in the statute prevails over that found in Rule 24, and therefore “no greater choice of venue could be provided.” I believe that in accordance with its usual result-driven thinking, the majority’s conclusion misses the mark in that no matter how “confident” the majority may be that the venue provision found in Tenn. Code Ann. § 37-10-303(b) prevails over that found in Rule 24, the fact remains that the minor does not share in this confidence and, as such, will not avail herself of the broader venue provision as long as the law stays status quo. There is nothing in the record to suggest that the minor, or any counselor from whom she" }, { "docid": "3595262", "title": "", "text": "101 S.Ct. 1164, 1170-73, 67 L.Ed.2d 388 (1980). The Bellotti requirements for a valid judicial bypass were specifically adopted by a majority of the Supreme Court in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 511-13, 110 S.Ct. 2972, 2979-80, 111 L.Ed.2d 405 (1990) (“Akron II”). By now, then, it is clear that in order to survive constitutional scrutiny, the judicial bypass of a parental consent statute must comply with a four-part test based on the plurality’s holding in Bellotti. Such a statute must: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the con sent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Lambert v. Wicklund, — U.S. -, -, 117 S.Ct. 1169, 1171, 137 L.Ed.2d 464 (1997) (per curiam) (citing Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048-49 (plurality opinion); Akron II, 497 U.S. at 511-13, 110 S.Ct. at 2979-80). Because of the Supreme Court’s strong reliance on these requirements, a statute which is addressed by and complies with the Bellotti standards cannot be said to be an undue burden. Accordingly, when reviewing the merits of a parental consent statute, our focus is on the compliance of the statute with the four Bellotti standards stated above. If the Bellotti requirements do not address the state regulation, the court then turns to general abortion caselaw and determines if the regulation is an undue burden irrespective of Bellotti. III. This Circuit reviews the grant or denial of a preliminary injunction under the abuse of discretion standard. Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 814 (4th Cir.1991). “[A] preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought.” Hughes Network Systems, Inc. v. InterDigital Communications Corp., 17 F.3d 691, 693 (4th Cir.1994). It is now axiomatic which standards should be applied in this" }, { "docid": "7573993", "title": "", "text": "issued a permanent injunction against enforcement of the statute. Defendants (collectively the “State”) appeal. II. Standard for Reviewing Facial Challenges to Abortion Statutes We must first resolve the threshold issue of the proper standard for reviewing facial challenges to statutes regulating abortion. The State argues for application of the test set out in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), while Planned Parenthood advocates application of the analysis in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). This is an open question in our circuit. In Salerno, the Supreme Court explained that: A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the. Act would be valid. The fact that [an act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “over-breadth” doctrine outside the limited context of the First Amendment. Salerno, 481 U.S. at 745, 107 S.Ct. 2095. Thus, under Salerno, a facial challenge to a statute will fail if the statute has any constitutional application. The Supreme Court has previously applied Salerno’s “no set of circumstances” test in a few pre-Casey cases involving abortion statutes. See Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (plurality opinion) (“Akron II”). In Casey, however, the Court held that an abortion law is unconstitutional on its face if, “in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895, 112 S.Ct. 2791. Although Casey did not expressly overrule Salerno, it is inconsistent with Salerno. Under Salerno, no factual showing of unconstitutional applications can render a law unconstitutional if it has any constitutional application. Under Casey, a factual showing of unconstitutional" }, { "docid": "23345884", "title": "", "text": "cert. to 962 F.2d 1366 (9th Cir.1992). Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiffs particular situation. In comparison, the Court explained in Salerno that [a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [an Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. 481 U.S. at 745, 107 S.Ct. at 2100. In other words, a facial challenge to a statute should fail if the statute has a constitutional application. The Supreme Court applied the Salerno “no set of circumstances” test in a couple of pre-Casey cases involving state abortion regulations. See Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 2980-81, 111 L.Ed.2d 405 (1990); see also Webster v. Reproductive Health Servs., 492 U.S. 490, 524, 109 S.Ct. 3040, 3059-60, 106 L.Ed.2d 410 (1989) (O’Connor, J., concurring). In Casey, however, the Court stated that an abortion law is unconstitutional on its face if “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” 505 U.S. at 895, 112 S.Ct. at 2830. This analysis is inconsistent with the rule set forth in Salerno. Under Salerno, no factual showing of unconstitutional applications can render a law unconstitutional if it has any constitutional applications. Under Casey, a factual showing of unconstitutional applications, in a substantial percentage of the cases where a law applies, can render a law unconstitutional even if the law has constitutional applications. Moreover, the Casey Court’s evaluation of the Pennsylvania statute at issue demonstrates the change Casey wrought. For example, rather than rejecting plaintiffs’ facial challenge to Pennsylvania’s spousal notification provision on the" }, { "docid": "17430549", "title": "", "text": "S.Ct. 2791 (per Justices O’Connor, Kennedy, and Souter, joined by Justices Stevens and Blackmun). The Court has since confirmed that “ ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional.” Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (quoting Casey, 505 U.S. at 877, 112 S.Ct. 2791); see also id. at 945-46, 112 S.Ct. 2791 (declaring Nebraska ban on so-called “partial birth abortion” unconstitutional under undue burden standard). Despite the Supreme Court’s clear application of the undue burden standard in Casey and Stenberg, it has never explicitly addressed the standard’s tension with Salerno. In the instant case, while recognizing that this court has yet to address the issue, the district court followed the majority of circuits that apply the Casey and Stenberg standard to legislation regulating abortion. The Attorney General notes that the Supreme Court applied the Salerno standard in the abortion context prior to Casey, see, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), and urges us to follow the Fifth Circuit’s decision in Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992), that Casey does not displace Salerno’s “no set of circumstances” test for facial challenges to abortion regulation. See also Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1102-03 (5th Cir.1997) (declining to reverse Barnes). The overwhelming majority of circuits to address this issue, however, have disagreed with the Fifth Circuit. See, e.g., Planned Parenthood of Cent N.J. v. Farmer, 220 F.3d 127, 142-43 (3d Cir.2000) (holding undue burden standard, instead of Salerno standard, applies in abortion context after Casey); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025-26 (9th Cir.1999) (noting inconsistency between Casey and Salerno, and following “great weight of circuit authority holding that Casey has overruled Salerno in the context of facial challenges to abortion statutes”), amended on denial of reh’g, 193 F.3d 1042 (9th Cir.1999); Women’s Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th" }, { "docid": "1278953", "title": "", "text": "BRUNETTI, Circuit Judge: Plaintiffs-appellees Dr. Eugene Glick, a physician, and Planned Parenthood of Washoe County, a non-profit family planning clinic, challenged the constitutionality of Nevada Revised Statute (NRS) 442.-253(l)(c), which requires that an attending physician performing an abortion explain the physical and emotional implications of having an abortion to the woman; NRS 442.255, which requires parental notification or court authorization before a physician may perform an abortion upon an un-emancipated minor; NRS 442.2555, which provides an appeal procedure when such court authorization has been denied; and NRS 442.257, which provides for criminal penalties for the violation of NRS 442.-253(l)(c) and NRS 442.255. Appellees sought declaratory and injunctive relief pursuant to the Constitution and 42 U.S.C. § 1983. Defendants-appellants are the Attorney General of the State of Nevada and Nevada’s seventeen District Attorneys, the state and local officials charged with enforcing the challenged statute. On motion for preliminary injunction, the district court held that the explanation requirement was constitutional, but that the parental notification requirement (NRS 442.255), the appeal procedure (NRS 442.-2555), and the criminal penalty provision (NRS 442.257) would be preliminarily enjoined. Glick v. McKay, 616 F.Supp. 322 (D.Nev.1985). Defendants appeal the court’s preliminary injunction order. After briefing and argument, we withheld judgment pending the decision of the United States Supreme Court in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), Hartigan v. Zbaraz, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987), Hodgson v. Minnesota, — U.S. -, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), and Ohio v. Akron Center for Reproductive Health, — U.S.-, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II), which had been accepted for review. We now affirm. I. A district court’s order regarding preliminary injunctive relief is subject to limited review. The grant of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Center, Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir.1989). However, the" }, { "docid": "19906125", "title": "", "text": "See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (holding that a law regulating reproductive rights is unconstitutional on its face if, “in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion”); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (holding that Casey’s undue burden standard applies to facial challenges to laws regulating reproductive rights). Bellotti simply requires each step in a judicial bypass proceeding “be completed with ... sufficient expedition to provide an effective opportunity for an abortion to be obtained.” 443 U.S. at 644, 99 S.Ct. 3035. In drafting laws like that at issue here, states are entitled to presume their judges will comply with the mandated procedural requirements, i.e., giving bypass proceedings priority over other matters and resolving the proceedings with expedition. Cf. Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 515, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). There is nothing in Bellotti remotely suggesting a definitive, concrete time-frame must be written into state law in order to satisfy the requirement of expedition. The reason may very well be that the need for expedition is intensely case specific and will often depend on factors unique to the individual unemancipated minor. Such factors could include, among others, the mental, emotional, and physical health of the minor; the point of gestation ; and the availability of abortion providers at various points of gestation. Without such defining facts, a court lacks context by which to judge the expedition necessary to preserve the window of opportunity for the safe and effective termination of a pregnancy. Thus, when faced with a state statute mandating bypass proceedings be given priority and be decided with expedition, and in the complete absence of any record evidence state courts will fail to fulfill that mandate, federal courts should hesitate to impose upon the states a rigid time frame for acting on bypass petitions. Thus, consistent with the court’s opinion, I conclude Nova has" }, { "docid": "22053438", "title": "", "text": "these inquiries and to revise these standards every time the American College of Obstetricians and Gynecologists (ACOG) or similar group revises its views about what is and what is not appropriate medical procedure in this area.” Akron v. Akron Center for Reproductive Health, Inc., 462 U. S., at 456 (dissenting opinion). See id., at 456, n. 4 (“Irrespective of the difficulty of the task, legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts”); Webster v. Reproductive Health Services, 492 U. S., at 519 (plurality opinion) (Court should not sit as an “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States (internal quotations marks omitted)); Jones v. United States, 463 U. S. 354, 365, n. 13 (1983) (“The lesson we have drawn is not that government may not act in the face of this [medical] uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments”). The Court today disregards these principles and the clear import of Casey. 2 Even if I were willing to assume that the partial birth method of abortion is safer for some small set of women, such a conclusion would not require invalidating the Act, because this case comes to us on a facial challenge. The only question before us is whether respondent has shown that “'no set of circumstances exists under which the Act would be valid/ ” Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (quoting Webster v. Reproductive Health Services, supra, at 524 (O’Connor, J., concurring in part and concurring in judgment)). Courts may not invalidate on its face a state statute regulating abortion “based upon a worst-case analysis that may never occur.” 497 U. S., at 514. Invalidation of the statute would be improper even assuming that Casey rejected this standard sub silentio (at least so far as abortion cases are concerned) in favor of a so-called “ ‘large fraction’ ” test. See Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993)" }, { "docid": "19624746", "title": "", "text": "Fiber Sys. Int'l., Inc. v. Roehrs , 470 F.3d 1150, 1159 (5th Cir. 2006) ; see also Fed. R. Civ. P. 65(d). The Fifth Circuit has held that an injunction against the application of a law to parties not involved in the suit \"was an overly broad remedy in an as-applied challenge.\" Currier , 760 F.3d at 458. Sojourner T. , 974 F.2d at 30 (citations omitted). See Gonzales , 550 U.S. at 167-68, 127 S.Ct. 1610. Compare Ohio v. Akron Center for Reproductive Health , 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990)with Casey , 505 U.S. at 895, 112 S.Ct. 2791. See generally Sarah Fowler, I Had an Abortion , The Clarion Ledger, Aug. 19, 2018 (noting the drastic reduction in the number of abortion clinics within Mississippi). See MKB Mgmt. Corp. , 16 F.Supp.3d at 1061-62 (permanently enjoining state's ban on abortions after the detection of a fetal heartbeat, remedy was not limited by self-imposed limitations of clinic), aff'd sub nom. MKB Mgmt. Corp. v. Stenehjem , 795 F.3d 768 (8th Cir. 2015) ; Edwards v. Beck , 8 F.Supp.3d 1091, 1095 (E.D. Ark. 2014) (permanently enjoining ban on abortions after 12 weeks, without limiting remedy to time period between viability and when clinic stopped offering abortion services), aff'd , 786 F.3d 1113 (8th Cir. 2015) ; see also Jane L. , 102 F.3d at 1117-18 (clinic's referral of women out-of-state after gestational age when clinic elected to stop providing abortion services was evidence that state ban created an undue burden on women). Amici Curiae Brief in Support of Petitioners, at 3-4, Whole Woman's Health v. Hellerstedt , 136 S.Ct. 2292 (2016) (No. 15-274) (citing Casey ). See Docket No. 85 at 9 n.5 (The State suggests the Supreme Court is waiting for a circuit split as the opportunity to reevaluate the viability standard); see also Dreher, supra n.39. See Bryant , 791 F.3d at 627 n.1 (explaining that the Fifth Circuit may not be bound by dicta within its own decisions, but \"dicta of the Supreme Court are, of course, another matter.\"). See" }, { "docid": "21393409", "title": "", "text": "the hearing. Instead, the district court found that the venue restriction “affirmatively creates a substantial risk that a young woman’s confidentiality will be compromised, either by direct discovery in her home county or because of her prolonged absence traveling to the county where the abortion will be performed. Such potential is not hypothetical nor implausible, but ... proven and likely for the small group of minors that it affects. Furthermore, this Court is concerned first and foremost with the ability of the minor to access the bypass procedure, and feels certain that the burden of rearranging schedules and traveling inconvenient distances is more appropriately placed upon adult witnesses.” (J.A. at 418 (emphasis added).) The district court also found that, before the statute was amended by the venue restriction rule, the minor had the freedom to file her petition in the county she desired and, while this may not have eliminated her need to travel altogether, her ability to choose any county was more conducive when balancing her needs for anonymity and relative convenience. The district court concluded that such freedom is required in order to satisfy the undue burden standard, and based it conclusion in part on this court’s holding in Akron Ctr. for Reproductive Health v. Slaby, 854 F.2d 852, 866 (6th Cir.1988), rev’d on other grounds, Ohio v. Akron Ctr. for Reproductive Health (‘Akron II”), 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), where this court found an Ohio statute was constitutional because it allowed a minor to file her petition for a bypass in her home county, any county bordering her home county, or in the county where the abortion would be performed. Majority Opinion The majority found that the district court “incorrectly assumed that the Rule trumps the Act;” however, I believe that it is the majority who is making speculative assumptions here. The majority begins by noting that when a rule of court conflicts with a legislative act, the general rule is that the act controls. It then goes on to state that “Tennessee has a mechanism by which procedural rules promulgated by" }, { "docid": "8538727", "title": "", "text": "this case, the proper focus is on those immature minors seeking abortions who can show that an abortion is in their best interests but who cannot show that notification of their parents is not in their best interests. For the women in that group, the application of Rule 10.01 will mean that there is no set of circumstances where they will be able to obtain judicial authorization for an abortion. The majority suggests that this dissent misunderstands its argument on this point. Even if so, this writer doubts that he will be the only one to misunderstand. But in the interests of increased understanding all the way around, let me be perfectly clear on my point: In a case like this, the majority's application of the \"no-circumstances principle” is just plain wrong. Whatever the merits of such an approach in another context, virtually every abortion case to reach the Supreme Court since Roe v. Wade has involved just this type of facial attack on state regulation. See, e.g., Planned Parenthood v. Casey, - U.S. -, -, 112 S.Ct. 2791, 2816, 120 L.Ed.2d 674 (1992); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986)." }, { "docid": "23345944", "title": "", "text": "the statute unconstitutional and enjoin its enforcement. And, by having you as a party to the lawsuit and a party to the injunction, if I hold the statute unconstitutional, you cannot begin a prosecution. Joint Appendix at 883-86. The prosecutor relies on Children’s Healthcare is a Legal Duty, Inc. v. Deters, 894 F.Supp. 1129, 1131-32 (S.D.Ohio 1995), rev’d on other grounds, 92 F.3d 1412 (6th Cir.1996), in which the district court held that the city and county prosecutors were unnecessary defendants in a lawsuit challenging the constitutionality of provisions of the Ohio Revised Code. The District Court dismissed the prosecutors, holding that the Attorney General would represent the interests of the State. This case is distinguishable, however, because in Children’s Healthcare, the plaintiffs claimed that the prosecutors had failed to prosecute actions that the state had deemed legal; in other words, the prosecutors had no reason to prosecute under the law. “The law makers not the law enforcers are the proper defendants in this type of suit.” Id. at 1132. Thus, there was no danger of potential prosecution and no need to enjoin the prosecutor from charging the plaintiffs with a crime. Here, the prosecutors could charge plaintiff Haskell, who performs abortions in Montgomery County, with violating the Act. In the appeal of Children’s Healthcare, this Court held that the Eleventh Amendment barred the action against the Attorney General, because Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), did not apply, and because the action did not fall with the Young exception because the plaintiffs did not seek to enjoin the enforcement of an allegedly unconstitutional statute. See 92 F.3d at 1416. We did not address the propriety of the dismissal of the prosecutors. However, we did cite favorably the district court’s decision in Akron Cen. for Reprod. Health v. Rosen, 633 F.Supp. 1123, 1130 (N.D.Ohio 1986), aff'd on other grounds, 854 F.2d 852 (6th Cir.1988), rev’d on other grounds, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) which dismissed the Ohio Governor and Attorney General because they had no connection in the" }, { "docid": "17430550", "title": "", "text": "Reprod. Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), and urges us to follow the Fifth Circuit’s decision in Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992), that Casey does not displace Salerno’s “no set of circumstances” test for facial challenges to abortion regulation. See also Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1102-03 (5th Cir.1997) (declining to reverse Barnes). The overwhelming majority of circuits to address this issue, however, have disagreed with the Fifth Circuit. See, e.g., Planned Parenthood of Cent N.J. v. Farmer, 220 F.3d 127, 142-43 (3d Cir.2000) (holding undue burden standard, instead of Salerno standard, applies in abortion context after Casey); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025-26 (9th Cir.1999) (noting inconsistency between Casey and Salerno, and following “great weight of circuit authority holding that Casey has overruled Salerno in the context of facial challenges to abortion statutes”), amended on denial of reh’g, 193 F.3d 1042 (9th Cir.1999); Women’s Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th Cir.1997) (holding that Casey effectively overruled Salerno), cert. denied, 523 U.S. 1036, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (observing that Supreme Court applied undue burden test instead of Salerno test in Casey, rendering undue burden “the proper test after Casey”), cert. denied sub nom., Leavitt v. Jane L., 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir.1995) (opting to “follow what the Supreme Court actually did— rather than what it failed to say — and apply the undue-burden test.”), cert. denied sub nom., Janklow v. Planned Parenthood, 517 U.S. 1174, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996); cf. A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.2002) (ree-onciling conflict between Salerno, and Stenberg/Casey, by construing “no set of circumstances” language as a “suggestion” that gives way to Stenberg’s holding that undue burden test applies), cert. denied, 537 U.S. 1192, 123 S.Ct. 1273, 154 L.Ed.2d 1026" }, { "docid": "23345945", "title": "", "text": "of potential prosecution and no need to enjoin the prosecutor from charging the plaintiffs with a crime. Here, the prosecutors could charge plaintiff Haskell, who performs abortions in Montgomery County, with violating the Act. In the appeal of Children’s Healthcare, this Court held that the Eleventh Amendment barred the action against the Attorney General, because Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), did not apply, and because the action did not fall with the Young exception because the plaintiffs did not seek to enjoin the enforcement of an allegedly unconstitutional statute. See 92 F.3d at 1416. We did not address the propriety of the dismissal of the prosecutors. However, we did cite favorably the district court’s decision in Akron Cen. for Reprod. Health v. Rosen, 633 F.Supp. 1123, 1130 (N.D.Ohio 1986), aff'd on other grounds, 854 F.2d 852 (6th Cir.1988), rev’d on other grounds, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) which dismissed the Ohio Governor and Attorney General because they had no connection in the enforcement of a statute while noting that enforcement was clearly delegated to the state’s prosecuting attorneys. More relevant to this ease is the district court’s holding that the county and city prosecutors were proper defendants in a suit challenging the constitutionality of an abortion law. In that case, the two prosecutors named as defendants argued that the duty to defend the constitutionality of state statutes falls upon the state attorney general, and that therefore they should be dismissed. See 633 F.Supp. at 1128. The district court explained that the prosecutors still had a role in the action, because their statutorily defined duties demonstrated that they would be required to enforce the statute against the plaintiffs. Id. at 1128-29. “Accordingly, both [prosecutors] are proper parties to bear the injunctive relief requested by the plaintiffs. While they may understandably expect that the state will bear the costs of defending this litigation, they cannot be dismissed as defendants.” Id. at 1129. The prosecutor argues that he is unnecessary for the court to make a determination as to the" }, { "docid": "23345883", "title": "", "text": "We join the majority of courts that have considered this issue and conclude that Salerno is not applicable to facial challenges to abortion regulations. A court may hold a statute unconstitutional either because it is invalid “on its face” or because it is unconstitutional “as applied” to a particular set of circumstances. Each holding carries an important difference in terms of outcome: If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances. Traditionally, a plaintiff’s burden in an as-applied challenge is different from that in a facial challenge. In an as-applied challenge, “the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.” Ada v. Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Sealia, J., dissenting), denying cert. to 962 F.2d 1366 (9th Cir.1992). Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiffs particular situation. In comparison, the Court explained in Salerno that [a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [an Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. 481 U.S. at 745, 107 S.Ct. at 2100. In other words, a facial challenge to a statute should fail if the statute has a constitutional application. The Supreme Court applied the Salerno “no set of circumstances” test in a couple of pre-Casey cases involving state abortion regulations. See Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502," }, { "docid": "7573997", "title": "", "text": "J., dissenting from the denial of cert.). Additionally, Justice Scalia, joined by Chief Justice Rehnquist and Justice White, has also suggested that the only exception to the Salerno rule is for First Amendment cases, and “[t]he Court did not purport to change this well-established rule in [Casey.]” Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012-13, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from the denial of cert.). Since Casey, many lower courts have held that Casey displaces Salerno in the abortion context. See, e.g., Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir.1997) (concluding that Salerno is inapplicable to facial challenges to abortion regulations and applying Casey’s undue burden standard), cert. denied, — U.S. —, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (noting the difference between Casey and Salerno and applying Casey’s undue burden standard to facial abortion challenge); Planned Parenthood v. Miller, 63 F.3d 1452, 1458 (8th Cir.1995) (choosing to follow “what the Supreme Court actually did-rather than what it failed to say-and apply the undue-burden test” to facial abortion challenge); Casey v. Planned Parenthood, 14 F.3d 848, 863 n. 21 (3d Cir.1994) (noting that Supreme Court “set a new standard for facial challenges to pre-viability abortion laws” under Casey); Hope Clinic v. Ryan, 995 F.Supp. 847, 859-60 (N.D.Ill.1998) (rejecting Salerno rule in light of Casey’s subsequent analysis, and applying undue burden standard); A Woman’s Choice-E. Side Women’s Clinic v. Newman, 904 F.Supp. 1434, 1447-48 (S.D.Ind.1995) (“[T]his court believes that Casey effectively displaced Salerno’s application to abortion laws.”) Thus far, only the Fifth Circuit continues to apply the Salerno test to facial abortion challenges after Casey. See Barnes v. Moore, 970 F.2d 12, 14 (5th Cir.1992). We have previously suggested that we would apply the Casey rule to facial challenges of abortion regulations. In Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev’d on other grounds sub nom., Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), we indicated that Casey" }, { "docid": "19624745", "title": "", "text": "explaining that \"Obergefell , in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit\"); ACLU v. Fordice , 969 F.Supp. 403, 405 (S.D. Miss. 1994) (reciting how State legislature created and funded the Sovereignty Commission \"to maintain racial segregation in the South despite orders to the contrary by the United States Supreme Court. As the secret intelligence arm of the State, the Commission engaged in a wide variety of unlawful activity\"); Jackson Women's Health Organization v. Amy , 330 F.Supp.2d 820 (S.D. Miss. 2004) (enjoining state statute that eliminated organization's ability to perform abortions early in second trimester); Campaign for Southern Equality v. Miss. Dep't of Hum. Serv. , 175 F.Supp.3d 691, 697 (S. D. Miss. 2016) (striking down Mississippi statute prohibiting adoption by married gay couples); Stewart v. Waller , 404 F.Supp. 206 (N.D. Miss. 1975) (striking down at-large alderman election statute as purposeful device conceived to violate the Fourteenth and Fifteenth Amendments in furtherance of racial discrimination). Docket No. 23 at 57. Fiber Sys. Int'l., Inc. v. Roehrs , 470 F.3d 1150, 1159 (5th Cir. 2006) ; see also Fed. R. Civ. P. 65(d). The Fifth Circuit has held that an injunction against the application of a law to parties not involved in the suit \"was an overly broad remedy in an as-applied challenge.\" Currier , 760 F.3d at 458. Sojourner T. , 974 F.2d at 30 (citations omitted). See Gonzales , 550 U.S. at 167-68, 127 S.Ct. 1610. Compare Ohio v. Akron Center for Reproductive Health , 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990)with Casey , 505 U.S. at 895, 112 S.Ct. 2791. See generally Sarah Fowler, I Had an Abortion , The Clarion Ledger, Aug. 19, 2018 (noting the drastic reduction in the number of abortion clinics within Mississippi). See MKB Mgmt. Corp. , 16 F.Supp.3d at 1061-62 (permanently enjoining state's ban on abortions after the detection of a fetal heartbeat, remedy was not limited by self-imposed limitations of clinic), aff'd sub nom. MKB Mgmt. Corp. v. Stenehjem , 795 F.3d" }, { "docid": "19906124", "title": "", "text": "283, 296-97, 307 (3d Cir.1984). But see Manning v. Hunt, 119 F.3d 254, 270-72 (4th Cir.1997). Despite these authorities, the court rejects Nova’s contentions and affirms the district court’s denial of preliminary in-junctive relief on the ground Nova has not demonstrated a substantial likelihood of success on the merits. Majority Op. at 1299, 1301-02. According to the court’s opinion, two points are critical. First is the complete absence of evidence in the record “that there is, has been, or will be any impermissible delay as to bypass petitions.” Id. at 1301. Second, in view of the state of the record on appeal, is the presumption that the Oklahoma state courts will follow the law and protect the constitutional rights of the citizens of Oklahoma. Id. Although the weight of authority favoring Nova’s position gives me some pause, I must ultimately agree that Nova has not demonstrated a substantial likelihood of success on the merits. The outcome is compelled by the procedural posture of this case, i.e., a blunt facial attack on a state legislative enactment. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (holding that a law regulating reproductive rights is unconstitutional on its face if, “in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion”); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (holding that Casey’s undue burden standard applies to facial challenges to laws regulating reproductive rights). Bellotti simply requires each step in a judicial bypass proceeding “be completed with ... sufficient expedition to provide an effective opportunity for an abortion to be obtained.” 443 U.S. at 644, 99 S.Ct. 3035. In drafting laws like that at issue here, states are entitled to presume their judges will comply with the mandated procedural requirements, i.e., giving bypass proceedings priority over other matters and resolving the proceedings with expedition. Cf. Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 515, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). There" }, { "docid": "23345981", "title": "", "text": "is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion,” 505 U.S. at 895, 112 S.Ct. at 2866, three federal appellate courts have held that Salerno has been effectively overruled and that facial challenges to abortion statutes need only demonstrate that a “large fraction” of statutory applications would be unconstitutional. See Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996), cert. denied sub nom. Leavitt v. Jane L., — U.S. -, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir.1995), cert. denied sub nom. Janklow v. Planned Parenthood, Sioux Falls Clinic, — U.S. -, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996); Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 863 n. 21 (3d Cir.), stay denied, 510 U.S. 1309, 114 S.Ct. 909, 127 L.Ed.2d 352 (1994). On the other hand, one federal appellate court and four Justices of the Supreme Court have stated that Salerno remains the law in the abortion context as elsewhere. See Ada v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Sealia, J., joined by Rehnquist, C.J., and White, J., dissenting from denial of certiorari); Janklow v. Planned Parenthood, Sioux Falls Clinic, — U.S. -, -, 116 S.Ct. 1582, 1584, 134 L.Ed.2d 679 (1996) (Sealia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting from denial of certiorari); Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.), cert. denied, 506 U.S. 1021, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992). Because I believe that a proper construction of the Ohio statute at issue compels the conclusion that the statute is constitutional as a substantive matter, I see no reason for our circuit to wade into these cross-currents. Nonetheless, I note briefly a number of potential problems with my colleagues’ resolution of the Salerno issue. First, the Salerno Court rested its holding on the long-recognized proposition that, except in the First Amendment context, facial challenges to statutes are disfavored. See Salerno, 481 U.S. at 745, 107 S.Ct." } ]

[ { "docid": "22102035", "title": "", "text": "plaintiff. See Cito, 892 F.2d at 25; Bougher, 882 F.2d at 80. Because Dique was reasonably unaware of his injury based on the Officers’ alleged conspiracy, the discovery rule postponed accrual until July 2001. Due to the fact, however, that he filed his conspiracy claim more than two years later, it, like his selective-enforcement claim, is time barred. III. CONCLUSION For the reasons explained above, we conclude that the two-year statute of limitations bars Dique’s 42 U.S.C. §§ 1983 and 1985 claims. We will thus affirm the District Court’s order granting summary judgment for the Officers. . Because Dique appeals from an order granting summary judgment, we view the evidence in the light most favorable to Dique and accept his allegations as true. See, e.g., Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). . The third appellee, Pagano, was the superintendent of the New Jersey police department at the time of Dique’s arrest. . Officers contend that the nine-year gap was attributed to Dique becoming a fugitive. This contention cannot be confirmed by the Record. We are not, however, concerned with ascertaining the cause of the gap because it is inconsequential for purposes of this appeal. . The three Officers are the only remaining are the only remaining defendants-appellees. . To establish a selective-enforcement claim, a plaintiff must demonstrate (1) that he was treated differently from other similarly situated individuals, and (2) \"that this selective treatment was based on an 'unjustifiable standard, such as race, or religion, or some other arbitrary factor, ... or to prevent the exercise of a fundamental right.' ” Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.2005) (quoting Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir.1993)). . As we noted in Gibson, a successful claim of selective-enforcement \"would have necessarily invalidated Gibson’s conviction....” Gibson, 411 F.3d at 441. Thus, success in the selective-enforcement claim would implicate the conviction. . On appeal, Dique abandons his Fourth Amendment false-arrest claim. . Sister courts of appeal have also extended Heck to preconviction situations in which a § 1983 claim, if" } ]

[ { "docid": "21657568", "title": "", "text": "equal protection challenge on a “class of one” theory by proving that, (1) “she has been intentionally treated differently from others similarly situated,” and (2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citations omitted). Plaintiffs here proceed on the “class of one” theory. Entities are similarly situated for purposes of the Equal Protection Clause when they are alike “in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326) (internal quotation marks omitted). In our Circuit, a plaintiff need not show that comparators are identical in all relevant aspects but rather that they share pertinent similarities. See Borrell v. Bloomsburg Univ., 955 F.Supp.2d 390, 405 (M.D. Pa. 2013). “Determining whether an individual is ‘similarly situated’ to another individual is a case-by-case fact-intensive inquiry.” Id. (quoting Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D. Pa. Sept. 26, 2011)) (internal quotation marks omitted). Plaintiffs primarily focus on Helen Thackston Charter School (“Thackston”) as an appropriate comparator entity. Thackston is a charter school within the School District of the City of York that teaches grades 5-9. (Doc. 69, ¶ 166; doc. 131, p. 18). While Plaintiffs assert that Thackston’s students’ substantive academic scores are equivalent to those of New Hope students (Doc. 69, ¶227), Defendants rely on the PSSA scores of students from the respective schools to show that Thackston students scored higher than both District and New Hope students alike. (Doc. 130, ¶ 40). New Hope’s PSSA scores, by comparison, were the lowest of all three schools. (Id.); New Hope, 89 A.3d at 733 (“New Hope’s percentages of students scoring proficient on the PSSA have been lower than the percentages of students scoring proficient in the School District’s schools in all years that it has been in existence.”). Indeed, the percentages of New Hope’s students scoring proficient or better on the PSSA in the five years of its charter are reproduced as" }, { "docid": "17207757", "title": "", "text": "for space along the Dagsworthy side street, and displays erected on that side of Plaintiff s building count toward his 87.36 square foot allotment. (See D.I. 85 at 9) Because this Code clearly defines the limitations on displays and provides Plaintiff and others fair warning of the conduct prohibited, Plaintiffs motion for summary judgment on these grounds will be denied, and Defendants’ motion for summary judgment will be granted. C. Equal Protection Plaintiff claims that Defendants have violated his rights under the Equal Protection Clause of the U.S. Constitution beeauáe they have unfairly targeted him for violation of the Dewey Beach Code. (D.I. 79 at 17) In order to establish a claim of selective enforcement, Plaintiff must show: “(1) that he was treated differently from other similarly situated individuals, and (2) that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor, or to prevent the exercise of a fundamental right.” Adams v. Officer Eric Selhorst, 449 Fed.Appx. 198, 203-04 (3d Cir.2011). To satisfy the first prong, Plaintiff must show “an extremely high degree of similarity between its circumstances and those of others who were treated differently.” New Castle Cnty. v. Wilmington Hospitality, LLC, 963 A.2d 738, 743 (Del.2008) (internal citations omitted); see also Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (stating Equal Protection Clause “keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike”). In other words, Plaintiff must identify another party who was both (i) “prima facie identical in all relevant respects” but (ii) treated differently. New Castle Cnty., 963 A.2d at 743. Then, at the. second prong of the test, Plaintiff must also show that the Town “lacked any rational basis” for treating him differently from how it treated those who were similarly situated to him. Id. At this second prong, Plaintiff must also identify a fundamental right which has been violated. Considering the first prong, courts have explained that generally whether a plaintiff was treated differently from others similarly situated presents “a fact question for the" }, { "docid": "18069663", "title": "", "text": "recognize a claim for those “class of one” plaintiffs who “allege[ ] that [they have] been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564, 120 S.Ct. 1073 (internal citations omitted). These cases relied on the principle that the Fourteenth Amendment secures every person “against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Id. Although Febus has alleged that the defendants intentionally discriminated against him, he has failed to allege that other similarly situated people were treated differently. As such, he fails to allege a minimally sufficient claim in even eonclusory terms, let alone support the claim with facts raising a plausible claim to relief. He also fails to explain (perhaps because it is well-nigh impossible) why an equal protection doctrine applied to protect real property owners against actions by local authorities should be applied to a claim for employment discrimination. Febus’s “selective enforcement” claim suffers from the same deficiencies. To establish a claim for an equal protection violation by reason of “selective enforcement” of law or regulation against the plaintiff, the plaintiff must show that “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir.1995) (involving a challenge by landowners to local zoning-variance and code-enforcement actions by municipal officials); Yerardi’s Moody St. Rest. & Lounge, Inc. v. Bd. Of Selectmen, 878 F.2d 16, 21 (1st Cir.1989) (involving a challenge by a restaurant to the “closing time” requirement imposed by a local licensing authority as a condition to obtain a liquor license). As with the “class of one” claim, Febus fails to state a “selective enforcement” claim because he utterly fails to allege that he was “selectively treated” as compared to other similarly situated indi viduals. The" }, { "docid": "22211494", "title": "", "text": "Cnty. Bd. of Educ., 526 U.S. 629, 645-49, 119 S.Ct. 1661, 1672-74; S.H., 729 F.3d at 265. Constructive knowledge is not sufficient; “only actual knowledge is a predicate to liability.” Zeno, 702 F.3d at 666. D. 42 U.S.C. § 1983 42 U.S.C. § 1983 states, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... To establish a § 1983 claim, a plaintiff must prove that a defendant’s discriminatory action was purposeful: To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they ‘received] different treatment from that received by other individuals similarly situated.’ Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir.1990) (internal citations omitted). We further explained in Brown v. City of Pittsburgh, 586 F.3d 263, 293 (3d Cir.2009): Our analysis yields the following conclusion: in order to establish municipal liability for selective enforcement of a facially viewpoint- and content-neutral regulation, a plaintiff whose evidence consists solely of the incidents of enforcement themselves must establish a pattern of enforcement activity evincing a governmental policy or custom of intentional discrimination on the basis of viewpoint or content. We also have explained that “[a]n essential element of a claim of selective treatment under the Equal Protection Clause is that the comparable parties were ‘similarly situated.’ Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all relevant aspects.’ ” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008) (citing Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.2005)). E. Section 504 of the Rehabilitation Act and Relevant Regulations of the" }, { "docid": "14276873", "title": "", "text": "U.S. at 322, 106 S.Ct. 2548). In determining whether a genuine issue of material fact exists, a court must view the facts in the light most favorable to the non-moving party and make all reasonable inferences in that party’s favor. See Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010). II. Plaintiffs Equal Protection Claims The Equal Protection Clause requires that the government treat all simi larly situated people alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In his July 9, 2007 Order, Judge Robinson sustained plaintiffs equal protection claim against the Town on the grounds that “[p]laintiff adequately alleges that the Town has never stopped paying into the Retirement System for any other employee to whom they were paying a salary, and never previously terminated an employee pursuant to Civil Service Law § 71 where they were receiving benefits under General Municipal Law § 207-c.” Gentile, slip op. at 4. Judge Robinson further stated that “plaintiffs other allegations can be fairly read to say that he was treated differently in retaliation for his previous lawsuits against the town.” Id,. A. “Class of One” and Selective Enforcement Claims In sustaining plaintiffs equal protection claim, Judge Robinson relied on the “class of one” equal protection doctrine, which provides that a successful equal protection claim can be brought by a “class of one,” “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010) (internal quotation marks omitted). Under a similar theory of selective enforcement, a plaintiff may prevail on an equal protection claim by showing (1) that he was treated differently from others similarly situated, and (2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cine SK8, Inc. v. Town of Henrietta, 507" }, { "docid": "2845357", "title": "", "text": "intentionally, and (3) there was no rational basis for the difference in treatment.” Hill, 455 F.3d at 239. As to the first element, “[a]t the motion to dismiss stage, [the plaintiff] must allege facts sufficient to make plausible the existence of ... similarly situated parties.” Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238 (3d Cir.2011). While “ ‘[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects,’ ” Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 825 (3d Cir.2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)), “the law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike.” Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D.Pa.2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J.2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D.Pa. Aug. 21, 2012). “Determining whether an individual is ‘similarly situated’ to another individual is a case-by-case fact-intensive inquiry.” Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D.Pa. Sept. 26, 2011) (citing Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir.2004)). “For that reason, some courts in this Circuit have stated that ‘a final determination of this issue is inappropriate at the motion-to-dismiss stage.’” Thomas, 2012 WL 3599415,- at *5 (quoting Chan, 2011 WL 4478283, at *15). Richer and Geisinger seek dismissal of the equal protection claim on the basis that Borrell fails to adequately plead that she was treáted differently from others similarly situated. According to Richer and Geisinger, Borrell admits that she was wholly different from her comparator because he was a drug user with a drug addiction that stole narcotics, while she was not a drug user and did not steal narcotics. Additionally, Richer and Geisinger contend that the claim should be dismissed because Borrell “fails to allege the other student refused to be drug tested, which is the only relevant aspect" }, { "docid": "2353187", "title": "", "text": "do not demonstrate that Appellant was “intentionally treated differently” from other newspapers in Pennsylvania. In fact, the Complaint fails to present a single example where another newspaper sought and obtained access to a polling place in a location where Appellant could not. As the District Court recognized, “[t]he facts alleged by [Appellant] suggest only that employees of the Post-Gazette unsuccessfully sought to enter polling places located in counties where § 3060(d) is enforced, and that employees of other newspapers were allowed to enter polling places in counties where § 3060(d) is not enforced.” PG Publ’g Co., — F.Supp.2d at -, 2012 WL 4796017, at *29. Still, we must delve deeper, for Appellant urges us that it has alleged a scheme of selective enforcement sufficient to implicate the Equal Protection Clause. B. The “Selective Enforcement” Argument The Equal Protection Clause prohibits the “selective enforcement” of a law based on an unjustifiable standard. Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir.2006); see also United States v. Batchelder, 442 U.S. 114, 125 n. 9, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Thus, to establish a selective-enforcement claim, Appellant must demonstrate: “(1) that [it] was treated differently from other similarly situated [entities], and (2) ‘that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor, ... or to prevent the exercise of a fundamental right.’ ” Dique v. N.J. State Police, 603 F.3d 181, 184 n. 5 (3d Cir.2010) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.2005)). To maintain its equal protection claim, Appellant must show not only that the administration of § 3060(d) has resulted in “unequal application to those who are entitled to be treated alike,” but also that there is “an element of intentional or purposeful discrimination” present. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944); see also Jewish Home of E. Pa. v. Ctrs. for Medicare and Medicaid Servs., 693 F.3d 359, 363 (3d Cir.2012) (“[T]o maintain an equal protection claim of this sort, [plaintiff] must provide evidence of" }, { "docid": "7942405", "title": "", "text": "One” Claim Plaintiff alleges that “[wjhile defendants cited and prosecuted plaintiff for alleged violations of [§ 120-1], defendants did not cite or prosecute other similarly situated rental property owners in the City of Hornell that did not comply with the requirements” of § 120-1, Amended Complaint ¶ 25, and that by doing so, defendants deprived him of his constitutional right to equal protection, Amended Complaint ¶ 63. The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). If two individuals are treated differently, despite some facial similarly in their situations, the Constitution requires that there be some rational, legitimate basis for the difference in treatment. Equal protection challenges are “typically ... concerned with governmental classi fications that affect some groups of citizens differently from others.” Engquist v. Oregon Dep’t of Agric., — U.S. -, 128 S.Ct. 2146, 2152, 170 L.Ed.2d 975 (2008). “Therefore, individuals pursuing equal protection challenges ordinarily ‘allege that they have been arbitrarily classified as members of an identifiable group.’ ” United States v. Moore, 543 F.3d 891, 896 (7th Cir.2008) (quoting Engquist, 128 S.Ct. at 2152) (additional internal quotation marks omitted). A plaintiff can make out an equal-protection claim without showing that he belongs to a protected group, however, if he can show that he had been “irrationally singled out” for discriminatory treatment. Engquist, 128 S.Ct. at 2153. Such claims are generally referred to as “selective enforcement” or “class of one” claims. See, e.g., Kamholtz v. Yates County, No. 08-CV-6210, 2008 WL 5114964, at *4-*5 (W.D.N.Y. Dec.3, 2008). To state a selective-enforcement claim, the plaintiff must allege that, compared with others similarly situated, he was selectively treated, and that “such selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48 F.3d 674, 683" }, { "docid": "21657567", "title": "", "text": "analyzed under the same standards used to evaluate federal equal protection claims. See Small v. Horn, 722 A.2d 664, 672 n.13 (Pa. 1998). Mindful of this important observation, we proceed to analyze the parties’ arguments pursuant to the Equal Protection Clause. A. Equal Protection In outlining their equal protection claim, Plaintiffs contend that New Hope was— and Plaintiffs, by extension, were—treated differently from other similarly situated charter schools. Plaintiffs further contend that Defendants can articulate no rational basis for the difference in treatment. The Equal Protection Clause of the Fourteenth Amendment commands that “[n]o State shall ,.. deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The Clause does not prohibit differentiation among classes of persons, but rather restrains a state from “treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citation omitted). Where a plaintiff does not allege membership in a particular group, he or she may advance an equal protection challenge on a “class of one” theory by proving that, (1) “she has been intentionally treated differently from others similarly situated,” and (2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citations omitted). Plaintiffs here proceed on the “class of one” theory. Entities are similarly situated for purposes of the Equal Protection Clause when they are alike “in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326) (internal quotation marks omitted). In our Circuit, a plaintiff need not show that comparators are identical in all relevant aspects but rather that they share pertinent similarities. See Borrell v. Bloomsburg Univ., 955 F.Supp.2d 390, 405 (M.D. Pa. 2013). “Determining whether an individual is ‘similarly situated’ to another individual is a case-by-case fact-intensive inquiry.” Id. (quoting Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D. Pa. Sept." }, { "docid": "2593485", "title": "", "text": "the Planning Board’s discretion would have resulted in the approval of the site plan application. See Clubside, 468 F.3d at 154. The due process claims must therefore be dismissed. 2. Equal Protection Claims The Equal Protection Clause of the Fourteenth Amendment requires the government to treat similarly situated persons alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). A plaintiff who does not claim to be a member of a constitutionally protected class may bring an Equal Protection claim on one of two theories: selective enforcement or “class of one.” See Cobb v. Pozzi, 363 F.3d 89, 109-10 (2d Cir.2004) (distinguishing “selective prosecution” and “class of one” Equal Protection claims). Here, it is unclear which theory Plaintiff is adopting. (Pl.’s Mem. 22-25 (describing elements of both).) The two are treated (at least formally) as separate claims in the Second Circuit. See Casciani v. Nesbitt, 392 Fed.Appx. 887, 888 (2d Cir.2010) (summary order); Cobb, 363 F.3d at 109-10; Gentile v. Nutty, 769 F.Supp.2d 573, 579 (S.D.N.Y.2011) (noting that courts in the Second Circuit “have generally treated selective enforcement and class of one theories as distinct theories with distinct elements of proof.” (internal quotation marks omitted)). To state a claim for selective enforcement, a plaintiff must allege facts supporting a conclusion that 1) he was “treated differently from other similarly situated” comparators, and 2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.2007) (internal quotation marks omitted); see also Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (same). A class-of-one claim requires the plaintiff to allege facts showing that the plaintiff “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010) (quoting Vill. of Willowbrook v. Olech, 528" }, { "docid": "12684129", "title": "", "text": "a zoning law at all, in an equal protection challenge the question is whether “the Township has irrationally distinguished between similarly situated classes.” Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir.1980). Thus, the “first inquiry a court must make in an equal protection challenge to a zoning ordinance is to examine whether the complaining party is similarly situated to other uses that are either permitted as of right, or by special permit, in a certain zone.” Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 137 (3d Cir.2002). If “the entities are similarly situated, then the [Township] must justify its different treatment of the two,” id., by demonstrating that the ordinance is rationally related to a legitimate government purpose. Rogin, 616 F.2d at 688. The complaint charges appellees with taking “discriminatory” actions, and with seeking “to deprive the plaintiffs of the use of their property, whereas other proximate and/or similarly situated properties were not rezoned in the manner of the plaintiffs’ property; nor were they accorded the treatment suffered by the plaintiffs and complained of herein.” (App.73.) These conclusory allegations do not suggest what “similarly situated property” was not rezoned in the same manner, nor do they offer any facts demonstrating how those properties were similarly situated. See Ventura Mobilehome Cmtys. Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1054-55 (9th Cir.2004) (dismissing facial EPC claim against zoning ordinance, in part, because the plaintiffs “con-clusory allegations” of being “singled out, from all property owners in Defendant City” did “not identify] other similarly situated property owners or alleged[ ] how they are treated differently.”). To state a claim, the complaint must allege facts supporting a finding of irrational or arbitrary legislative action by the Township. See Pace, 808 F.2d at 1035. Without any facts, we have no way of determining whether the Ordinance discriminated against appellants’ properties, and if so, whether there was a possible rational basis for that discrimination. See, e.g., Congregation Kol Ami, 309 F.3d at 140-43 (analyzing whether country clubs, which were exempted from a zoning ordinance, are similarly situated to plaintiffs synagogue, which" }, { "docid": "2994623", "title": "", "text": "government to treat all similarly situated individuals alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To establish a denial of equal protection based on selective treatment, Plaintiffs must allege that: “(1) ... compared with others similarly situated, [they were] selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (internal quotation marks omitted); see also Abel v. Morabito, No. 04-CV-7284, 2009 WL 321007, at *4 (S.D.N.Y. Feb. 10, 2009) (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001)). “A showing that the plaintiff was treated differently compared to others similarly situated” is a “prerequisite” and a “threshold matter” to a selective treatment claim. Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir.2004). As previously explained, the Court granted Defendants’ motions to dismiss in Mosdos I without prejudice because, although “Plaintiffs ha[d] alleged that Defendants had improper motives in pursuing the Chestnut Ridge Action, Plaintiffs ha[d] not sufficiently alleged that they were treated differently than others similarly situated.” Mosdos I, 701 F.Supp.2d at 603. In the instant motions to dismiss the Amended Complaint, Defendants argue that Plaintiffs still have failed to sufficiently plead that any similarly situated comparators were treated differently. 1. Similarly Situated Standard There are two types of equal protection claims that require similarly situated comparators. The first, selective enforcement or selective treatment claims pursuant to LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir.1980), arise when plaintiffs claim that they were treated differently based on impermissible considerations, such as membership in a protected class or to punish plaintiffs for exercising a constitutional right. See Tasadfoy v. Ruggiero, 365 F.Supp.2d 542, 551 (S.D.N.Y.2005). The second, “class of one” claims, occur when plaintiffs claim that they were" }, { "docid": "9931314", "title": "", "text": "than others similarly situated. See Deegan v. City of Ithaca, 444 F.3d 135, 146 (2d Cir.2006) (explaining that to prove a selective enforcement claim, plaintiff must show that others similarly situated were treated differently); LaTrieste Rest., 188 F.3d at 70 (noting that a plaintiff “ordinarily cannot establish an equal protection violation unless it shows that the Village consciously applied a different standard of enforcement to similarly situated establishments”); Prasad v. City of New York, No. 08-CV-3818, 2009 WL 1119412, at *4 (S.D.N.Y. Apr. 24, 2009) (“Where ‘a plaintiff seeks to prove selective prosecution on the basis of race, he must show that similarly situated individuals of a different race were not prosecuted.’ ”) (quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000)). Here, Plaintiffs only allege that [Defendant Villages] ... approved the development of over one thousand multifamily, high-density units in their own respective villages without any alarm over infrastructure or sewer capacity. In addition, an additional 1,200 units north of [Ramapo] are being, or have been connected to [Ramapo’s] infrastructure. In addition, over eighty senior units were approved by the Villages throughout Ramapo without any opposition. These newly approved projects were not a concern to the Villages, as they are residential units not for Orthodox or Hasidic Jews. (Compl. ¶ 56.) Yet, more than a bare allegation that other developments were treated differently is required. See Prasad, 2009 WL 1119412, at *4 (dismissing selective treatment claim of a nightclub despite allegation that “other nightclubs with ‘far worse problems’ were not subjected to the same types of complaints and sanctions” and noting that nightclub failed to allege that “these other clubs were ‘similarly situated’ to [plaintiffs’ nightclub] in the sense of having received numerous sustained complaints”); Ruston v. Town Bd. for the Town of Skaneateles, No. 06-CV-927, 2008 WL 5423038, at *6 (N.D.N.Y. Dec. 24, 2008) (dismissing an action for failure to state a claim where plaintiff included only a bare allegation of selective enforcement, noting that “[t]his single allegation is insufficient to state a claim that defendant village treated others, with a high degree of similarity" }, { "docid": "4839646", "title": "", "text": "stage of the proceedings. iii. Class-of-One Equal Protection Claim Defendants next seek dismissal of Plaintiff Stoltzfus’ and Associational Plaintiffs’ Equal Protection claims. Specifically, Defendants move to dismiss Plaintiff Stoltzfus’ claim for her failure to allege that a similarly situated individual was treated differently. (Defs.’ Mot. to Dismiss 17.) Defendants move to dismiss Associational Plaintiffs’ Equal Protection claim on grounds that non-profit kennels are not similar to breeding kennels in Lancaster County. (Defs.’ Mot. to Dismiss 8-9.) When a plaintiff who alleges an Equal Protection claim does not aver membership in a class or group, that plaintiff is considered to be a “class-of-one.” See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In justifying the recognition of a class-of-one Equal Protection cause of action, the Supreme Court notes that “the purpose of the Equal Protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Id. at 564, 120 S.Ct. 1073 (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923)). The Complaint must identify similarly situated individuals and allege that the plaintiff was treated differently. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). See also Mann v. Brenner, 375 Fed.Appx. 232, 238-239 (3d Cir.2010). Moreover, courts within the Third Circuit have required that a plaintiff plead specific instances of differential treatment to overcome a motion to dismiss. See Conklin v. Warrington Twp., 304 Fed.Appx. 115 (3d Cir.Pa.2008) (litigant provided no specific instance(s) of defendant prothonotary handling any other litigant’s documents differently or treating them differently otherwise); Young v. New Sewickley Twp., 160 Fed.Appx. 263, 266 (3d Cir. 2005) (disgruntled police officer failed to provide any specific instance(s) of other police officer employees being treated in a dissimilar manner). See also Perano v. Tilden Twp., No. 09-00754, 2010 WL 1462367, at **9-10, 2010 U.S. Dist. LEXIS 36781, at **31-32 (E.D Pa. Apr. 12," }, { "docid": "2845356", "title": "", "text": "therefore be permitted to proceed on her liberty interest claim against Ficca, Richer, and Geisinger. 3. Equal Protection Count II of Borrell’s Amended Complaint asserts a claim for violation of the Equal Protection Clause. Borrell’s equal protection claim is based on a “class of one” theory. The Equal Protection Clause of the Fourteenth Amendment directs that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court outlined the “class of one” theory of equal protection. Under a “class of one” claim, a plaintiff asserts that “he has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.” Id. at 564, 120 S.Ct. 1073. According to the Third Circuit, to state a “class of one” claim, a plaintiff must allege that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill, 455 F.3d at 239. As to the first element, “[a]t the motion to dismiss stage, [the plaintiff] must allege facts sufficient to make plausible the existence of ... similarly situated parties.” Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238 (3d Cir.2011). While “ ‘[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects,’ ” Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 825 (3d Cir.2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)), “the law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike.” Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D.Pa.2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J.2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D.Pa. Aug. 21, 2012). “Determining whether an" }, { "docid": "9931313", "title": "", "text": "to demonstrate that the Village Defendants were improperly selective in litigating to protect their interests. To establish such a claim, Plaintiffs must allege that “(1) ... compared with others similarly situated, [they were] selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra, 48 F.3d at 683 (internal quotation marks omitted); see also Miner v. Clinton County, 541 F.3d 464, 474 (2d Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1625, 173 L.Ed.2d 996 (2009). “ ‘A plaintiff generally must satisfy both elements to establish a claim of selective enforcement.’ ” Washpon v. Parr, 561 F.Supp.2d 394, 409 (S.D.N.Y.2008) (quoting LaTrieste Rest. v. Vill. of Port Chester, 188 F.3d 65, 70 (2d Cir.1999)). While Plaintiffs have alleged that Defendants had improper motives in pursuing the Chestnut Ridge Action, Plaintiffs have not sufficiently alleged that they were treated differently than others similarly situated. See Deegan v. City of Ithaca, 444 F.3d 135, 146 (2d Cir.2006) (explaining that to prove a selective enforcement claim, plaintiff must show that others similarly situated were treated differently); LaTrieste Rest., 188 F.3d at 70 (noting that a plaintiff “ordinarily cannot establish an equal protection violation unless it shows that the Village consciously applied a different standard of enforcement to similarly situated establishments”); Prasad v. City of New York, No. 08-CV-3818, 2009 WL 1119412, at *4 (S.D.N.Y. Apr. 24, 2009) (“Where ‘a plaintiff seeks to prove selective prosecution on the basis of race, he must show that similarly situated individuals of a different race were not prosecuted.’ ”) (quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000)). Here, Plaintiffs only allege that [Defendant Villages] ... approved the development of over one thousand multifamily, high-density units in their own respective villages without any alarm over infrastructure or sewer capacity. In addition, an additional 1,200 units north of [Ramapo] are being, or have been connected to [Ramapo’s] infrastructure. In" }, { "docid": "4839647", "title": "", "text": "duly constituted agents.” Id. at 564, 120 S.Ct. 1073 (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 445, 43 S.Ct. 190, 67 L.Ed. 340 (1923)). The Complaint must identify similarly situated individuals and allege that the plaintiff was treated differently. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). See also Mann v. Brenner, 375 Fed.Appx. 232, 238-239 (3d Cir.2010). Moreover, courts within the Third Circuit have required that a plaintiff plead specific instances of differential treatment to overcome a motion to dismiss. See Conklin v. Warrington Twp., 304 Fed.Appx. 115 (3d Cir.Pa.2008) (litigant provided no specific instance(s) of defendant prothonotary handling any other litigant’s documents differently or treating them differently otherwise); Young v. New Sewickley Twp., 160 Fed.Appx. 263, 266 (3d Cir. 2005) (disgruntled police officer failed to provide any specific instance(s) of other police officer employees being treated in a dissimilar manner). See also Perano v. Tilden Twp., No. 09-00754, 2010 WL 1462367, at **9-10, 2010 U.S. Dist. LEXIS 36781, at **31-32 (E.D Pa. Apr. 12, 2010) (plaintiff failed to adequately demonstrate how mobile home developers were similarly situated to high end real estate developers or commercial businesses in the region, to ultimately establish differential treatment). Lastly, once a plaintiff has established specific instances of differential treatment towards similarly situated individuals or entities, said plaintiff must adequately allege that there was no rational basis for the treatment. See Cradle of Liberty Council, Inc. v. City of Phila., 2008 WL 4399025, 2008 U.S. Dist. LEXIS 74515 (E.D.Pa. Sept. 25, 2008). This Court finds that the class-of-one claims brought by Betty Stoltzfus and Associational Plaintiffs’ must be dismissed because neither has alleged a specific instance of differential treatment with a similarly situated individual/kennel or that there was no rational basis for same. (1) A Plaintiff Must Allege That They Were Intentionally Treated Differently From Others Similarly Situated This Circuit has determined that in order to sustain a valid class-of-one Equal Protection claim, a plaintiff must allege that s/he was “intentionally treated differently from others similarly situated by the defendant and that there was" }, { "docid": "116866", "title": "", "text": "a violation of the Equal Protection Clause based on a class-of-one theory, a plaintiff must demonstrate that: 1) it “has been intentionally treated differently from others similarly situated,” and 2) “there is no rational basis for the difference in treatment.” Id. These challenges fail when “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); see also Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008) (explaining class-of-one theory). i. Similarly Situated and Intentional Treatment The first step in an equal protection analysis is to ascertain whether the plaintiffs were treated differently than similarly situated entities. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 394 (3d Cir.2010). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008). MFS claims here that other facilities located near MFS were polluters and emit ters of malodors and that MFS was treated differently from these facilities by Defendants. The other facilities located near MFS are Bethlehem Wastewater, Bethlehem Landfill, Waylite, and Connectiv. Each is subject to Pennsylvania malodor regulations and enforcement by the Pa-DEP. The evidence presented at trial shows that these entities are distinct from MFS’s mineral wool facility in certain ways, but all discharge potentially odorous, or malodorous, emissions. Ronald Mordo-sky, District Supervisor of the Air Quality Program, testified that he received citizen odor complaints about Bethlehem Landfill and Bethlehem Wastewater. (Mordosky, 2/22/10, a.m., 59:13-23.) Evidence presented at trial shows that a landfill and sewage treatment plant can emit hydrogen sulfide. As one district court explained, “any two entities will look sufficiently dissimilar if examined at a microscopic level; the court will assume these entities are similar enough for purposes of equal protection.” Holt Cargo Sys., Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 826 (E.D.Pa.1998). Since Bethlehem Landfill" }, { "docid": "21657586", "title": "", "text": "to dismiss Plaintiffs’ equal protection claim, as well as Plaintiffs’ claim under the Pennsylvania Constitution, Article I § 26, because we find no actions by Defendants that run afoul of the relevant federal or state constitutions. B. Conspiracy in violation of 42 U.S.C. § 1983 To demonstrate a conspiracy under § 1983, plaintiffs must show that two or more conspirators reached an agreement to deprive them of a constitutional right under color of law. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated . on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003). As a threshold matter, a § 1983 conspiracy claim must involve an actual deprivation of a federally protected right. See Sweetman v. Borough of Norristown, PA, 554 Fed.Appx. 86, 90 (3d Cir. 2014) (“A § 1983 conspiracy claim is viable only if there has been an actual deprivation of a constitutional light.”); Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 239 (3d Cir. 2011) (same); see also Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 14 (1st Cir. 2003); Vaden v. Village of Maywood, Ill., 809 F.2d 361, 366 (7th Cir. 1987); Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000); Holt Cargo Sys., Inc. v. Del. River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998). Plaintiffs’ § 1983 conspiracy claim is founded on the allegation that Defendants conspired and entered into an agreement “among themselves to deprive Plaintiffs of their constitutional rights by ... treating New Hope differently than similarly situated charter schools and, consequently, treating the' within Plaintiffs differently than similarly situated persons.” (Doc. 69, ¶ 324). In the foregoing analysis, however, this Court concluded that Defendants had a rational basis for the treatment that New Hope received, resulting in the decision not to renew New Hope’s charter. Because of this determination, we hold that no equal protection violation has, in fact, occurred, Without such an actual deprivation of a constitutionally protected right, there can be no premise for Plaintiffs’ § 1983 claim. The claim shall therefore" }, { "docid": "116865", "title": "", "text": "No. 112.) The Fourteenth Amendment prohibits state action which “den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. For the following reasons, the Jury’s verdict cannot stand as a matter of law. The Equal Protection Clause of the Fourteenth Amendment protects a person or a corporation against intentional and arbitrary discrimination in the enforcement of a law, whether occasioned by express terms of a statute or by improper execution by government officials. Kaplan v. Chertoff, 481 F.Supp.2d 370, 392 (E.D.Pa.2007). The Equal Protection Clause “ ‘does not forbid all classifications’ but ‘simply keeps governmental decision-makers from treating differently persons who are in all relevant respects alike.’ ” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir.2011) (Fisher, J., concurring and dissenting). In this case, the type of equal protection claim asserted by MFS is known as a “class-of-one” equal protection claim. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). To establish a claim for a violation of the Equal Protection Clause based on a class-of-one theory, a plaintiff must demonstrate that: 1) it “has been intentionally treated differently from others similarly situated,” and 2) “there is no rational basis for the difference in treatment.” Id. These challenges fail when “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); see also Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008) (explaining class-of-one theory). i. Similarly Situated and Intentional Treatment The first step in an equal protection analysis is to ascertain whether the plaintiffs were treated differently than similarly situated entities. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 394 (3d Cir.2010). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183," } ]

[ { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" } ]

[ { "docid": "22667454", "title": "", "text": "reasonable doubt. Villarreal, 324 F.3d at 322 (5th Cir.2003). B. AIDING AND ABETTING POSSESSION WITH INTENT TO MANUFACTURE To prove possession with intent to manufacture, the Government was required to prove (1) that Cantwell knowingly possessed pseudoephedrine, (2) that she possessed it with the intent to manufacture a controlled substance, and (3) that the substance was pseudoephedrine. 21 U.S.C. § 841(c)(1). Cantwell contests only the second element. Even if Cantwell did not intend to manufacture drugs herself, evidence that she knew of and intended “to further the goals of a manufacturing operation” is sufficient for a conviction under 21 U.S.C. § 841(c)(1). United States v. Leed, 981 F.2d 202, 206 (5th Cir.1993). We find that the evidence set forth above was also sufficient to allow a reasonable juror to infer that Cantwell knew of the plan to manufacture drugs, and that she intended to further that operation by her actions on January 8. TV. INEFFECTIVE ASSISTANCE OF COUNSEL Cantwell also raises an ineffective assistance of counsel claim on this, her direct appeal. “[T]he general rule in this circuit is that a claim for ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992) (citations omitted). Since Cantwell’s ineffective assistance claim has not been presented to the district court, we decline to review it now. This in no way prejudices Cantwell’s claim should she choose to raise it in a later postconviction proceeding. V. CONCLUSION For the reasons set forth above, we AFFIRM Cantwell’s conviction on both counts, and decline to review her ineffective assistance claim at this time. . Cantwell points to other testimony that suggests that she was acting independently of Rice and Reagan. Specifically, she notes that Rice testified that Reagan offered to buy Cant-well's stolen pseudoephedrine from her and she refused. Cantwell argues that this is an indication that she" }, { "docid": "15116605", "title": "", "text": "bottom of his guidelines range is not an abuse of the district court’s substantial discretion. Cf. United States v. Lazarski, 560 F.3d 731, 733 (8th Cir.2009) (when a sentence is below the guidelines range, “it is nearly inconceivable that the court abused its discretion in not varying downward still further.”). III. After the briefs on appeal were submitted, Farmer moved pro se to supplement his reply brief, broadly alleging that the government withheld exculpatory evidence in violation of the Constitution. After submission of the case, Farmer moved pro se to discharge his appointed attorney, asserting that his counsel was ineffective in failing to present character evidence at trial, raise an issue of his mental competency, or move for a new trial based on newly-discovered evidence. This court granted Farmer’s motion to relieve his appointed counsel. To the extent Farmer has pending papers before this court that could be broadly construed as 1) a motion to expand the record on appeal; 2) a pro se brief arguing a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); or 3) a pro se brief arguing ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this court denies the motion and declines to address these arguments at this time. Because this court has only pro se motions and an undeveloped factual record on these claims, they are better left to a collateral proceeding under 28 U.S.C. § 2255. See United States v. McIntosh, 492 F.3d 956, 961 n. 2 (8th Cir.2007) (noting that this court generally does not consider pro se briefs when an appellant is represented by counsel); United States v. Cook, 356 F.3d 913, 919 (8th Cir.2004) (declining to consider ineffective-assistanee-of-counsel claim on direct appeal in absence of fully-developed record or obviously-deficient counsel); Mandacina v. United States, 328 F.3d 995, 999-1000 (8th Cir.2003) (a claimed Brady violation is cognizable in a motion under 28 U.S.C. § 2255). The judgment of the district court is affirmed. . The Honorable Stephen N. Limbaugh, Jr., United States" }, { "docid": "11011262", "title": "", "text": "failed to present the statutory directive that Steward be given an opportunity to withdraw the plea. On appeal of the trial court’s denial of Steward’s motion, his attorney filed an Anders brief suggesting the absence of meritorious issues for appeal. Pursuant to Anders, of course, counsel is required to brief “anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The briefing must presumably be done from an advocacy perspective “where counsel acts in the role of an active advocate in behalf of [her] client, as opposed to that of amicus curiae.” Id. The filing of an Anders brief that fails to point out meritorious issues can, in principle, constitute ineffective assistance. See, e.g., Robinson v. Black, 812 F.2d 1084 (8th Cir.1987), cert. denied 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). The neglected claim need not be one of federal law. In fact, failure to raise a state law issue can, if such a failure falls outside the range of competent assistance, form a basis for an ineffective assistance claim under the federal constitution. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Under the circumstances presented here, it certainly can be argued that Jackson’s failure either to seriously argue this issue in the initial hearing on the motion to vacate the guilty plea or to raise this issue on appeal constituted ineffective assistance of counsel. The Illinois courts have strictly enforced the notice requirement of the extended term statute. Steward, therefore, has a credible argument that he was prejudiced by his counsel’s failure to press this issue. However, the state courts have never had the opportunity to consider the ineffectiveness claim in this form. Steward did not raise it in his pro se post-conviction petition, his appointed post-conviction counsel did little to supplement his pro se petition and his appointed appellate counsel for the post-conviction proceeding withdrew from the case, apparently without consulting Steward. Thus, while this claim may have arguable merit, it was not properly before the district court and" }, { "docid": "22641255", "title": "", "text": "for the purpose of delay; and (4) unequivocal. United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir.2002). “A demand for self-representation is timely if made before meaningful trial proceedings have begun. In cases involving jury trials, we have held that a request is timely if made before the jury is selected or before the jury is empaneled .... ” Id. (internal citation omitted). McKenna conveyed interest in proceeding without counsel at only two points. First, she stated at arraignment that she “preferred” to represent herself rather than have counsel from the Federal Public Defender’s Office appointed, because such an attorney would be part of the same government system as the prosecutor. She did not persist in seeking to represent herself after the district court explained a federal public defender’s independence from the prosecutor’s office. This communication, though timely, was not a knowing and unequivocal request to proceed pro se. Indeed, McKenna argues in her opening brief only that her statement that she preferred to represent herself rather than be represented by a federal public defender was timely; she does not assert that this statement was an unequivocal request to proceed pro se. After the case went to the jury, McKenna did make an unequivocal request to proceed pro se in order to re-open the evidence and submit documents her attorneys felt should not be admitted. But, as this request was untimely, the district court did not err in denying it. See, e.g., Bishop, 291 F.3d at 1114 (no error in denying Faretta request on third day of trial). S. Ineffective Assistance of Counsel Claims of ineffective assistance of counsel are generally inappropriate on direct appeal. United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000). “Such claims normally should be raised in habeas corpus proceedings, which permit counsel to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted.” Id. (internal quotation marks omitted). There are two exceptions to this rule against direct review of ineffective assistance of counsel claims: “(1) when the record on appeal is sufficiently developed to permit" }, { "docid": "22276094", "title": "", "text": "v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to establish ineffective assistance claim defendant must show deficiency of counsel’s performance and a reasonable probability of prejudice. There is no dispute that Evering did not raise this claim before the district court. “[A]s a general rule claims of inadequate representation which have not been raised before the district court cannot be raised on direct appeal.” United States v. Phillips, 664 F.2d 971, 1040 (5th Cir. Unit B Dec. 1981) (citations omitted), abrogated on other grounds as recognized in United States v. Acevedo, 141 F.3d 1421, 1425 n. 7 (11th Cir.1998). However, “where the record is sufficiently developed with respect to such a claim, this Court may determine the merits of the claim.” Id. (citations omitted). In Phillips, for example, this court entertained an Strickland claim where the defendant’s complaints about his trial counsel were raised at the sentencing hearing, counsel responded to the allegations point by point, and the trial court clearly stated its findings of a conflict of interest and appointed substitute counsel. Id. In this case, the record contains some information as to the allegedly exculpatory letter and Evering’s prior counsel’s actions in regard to that letter. The district court held a conference on the motion to sever, at which the letter and Evering’s counsel’s failure to move for severance at an earlier time were discussed. The issue of the letter arose again after trial, when Ever-ing’s trial counsel moved for a new trial on the grounds that the letter constituted new evidence. The district court held a hearing on the motion and issued a written order denying the motion. This record, although partially developed on the issue of the letter, is insufficiently developed to consider the merits of the ineffective assistance claim. There is no record as to the critical issue of the scope of defense counsel’s investigation into the letter. Furthermore, as the district court found when analyzing whether the letter warranted a new trial under United States v. Hall, 854 F.2d 1269, 1271 (11th Cir.1988), 1) there was no evidence" }, { "docid": "23573560", "title": "", "text": "assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” Only in those rare occasions where the record is sufficiently developed will the court undertake to consider claims of inadequate representation on direct appeal. If we cannot fairly evaluate the claim from the record, we must decline to consider the issue without prejudice to a defendant’s right to raise it in a subsequent proceeding. United States v. Gulley, 526 F.3d 809, 821 (5th Cir.2008) (citations omitted) (quoting United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987)). This case falls within that general rule because the record reveals neither the reasons for Salvador Garcia’s attorney’s decisions nor the availability of alternative strategies. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.2007) (refusing to hear a Strickland claim because “the district court did not hold a hearing and the record does not provide sufficient detail about trial counsel’s conduct and motivations”); United States v. Garcia-Jasso, 472 F.3d 239, 245 (5th Cir.2006) (refusing to hear a Strickland claim because “the reasons for [the attorney’s] decisions and any plausible alternative strategies available to him are unclear”); United States v. Gordon, 346 F.3d 135, 137 (5th Cir.2003) (refusing to hear a Strickland claim because “[t]he record has not been developed with regard to counsel’s motivation for his trial tactics”). While Salvador Garcia may raise this argument in a later proceeding, see United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir.1999) (“Normally, the appropriate mechanism for raising, this claim would be a habeas corpus proceeding pur suant to 28 U.S.C. § 2255.”), it is not a ground for reversal in this appeal. B. Toribio Arriagar-Guerrero 1. Double Jeopardy In his first issue, Arriaga-Guerrero challenges his convictions on both counts by arguing that the district court erred when it denied his motion for a judgment of acquittal in the second trial. Specifically, Arriaga-Guerrero argues that the first trial’s evidence was insufficient to support a verdict on either charge, and" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "22641256", "title": "", "text": "defender was timely; she does not assert that this statement was an unequivocal request to proceed pro se. After the case went to the jury, McKenna did make an unequivocal request to proceed pro se in order to re-open the evidence and submit documents her attorneys felt should not be admitted. But, as this request was untimely, the district court did not err in denying it. See, e.g., Bishop, 291 F.3d at 1114 (no error in denying Faretta request on third day of trial). S. Ineffective Assistance of Counsel Claims of ineffective assistance of counsel are generally inappropriate on direct appeal. United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000). “Such claims normally should be raised in habeas corpus proceedings, which permit counsel to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted.” Id. (internal quotation marks omitted). There are two exceptions to this rule against direct review of ineffective assistance of counsel claims: “(1) when the record on appeal is sufficiently developed to permit review and determination of the issue, or (2) when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. (internal quotation marks omitted). McKenna urges us to review her claim of ineffective assistance of counsel on direct appeal because the record is sufficiently developed. But she argues numerous grounds for her ineffective assistance of counsel claim and the record is not developed sufficiently for us to review all of those grounds on direct appeal. For example, it cannot be determined from the record what discovery the government had provided to McKenna’s attorneys in order to evaluate her claim that they should have made pre-trial discovery requests. The record is also not developed with respect to why her attorneys felt that the motions McKenna wanted filed were not warranted by the evidence, nor does the record include the evidence McKenna asserts should have been admitted. Accordingly, we decline to review McKenna’s claim of ineffective assistance of counsel. AFFIRMED. . She filed a civil suit against the other" }, { "docid": "23196042", "title": "", "text": "to his involvement in the drug conspiracy. To resolve contradictory testimony is the very reason juries are empaneled. See our discussion as to appellants, Sanchez-Paz, supra, and Stitzer, infra. In short, we find the evidence sufficient to support appellant’s conviction. Appellant Stitzer Appellant Stitzer raises two issues worthy of discussion: ineffective assistance of counsel and insufficiency of the evidence. 1. Ineffective Assistance of Counsel Appellant’s trial lawyer was appointed by the Court after his first court appointed counsel withdrew. His second court appointed counsel filed a motion to withdraw. The court, however, denied counsel’s motion. Stitzer claims that counsel’s inexperience resulted in his making several errors which combined to render appellant’s assistance of counsel ineffective. In response, the government argues that Stitzer has waived this issue by failing to raise it below. Stitzer responds by arguing that because he had appointed counsel “... he had no say in what motions counsel prepared or filed, prior to, during or post trial.” According to appellant, this explains why he failed to file a post trial motion raising ineffective assistance of counsel as a grounds for new trial. This explanation, however, is too thin to support an exception to the now settled rule that claims of ineffective assistance of counsel may not be considered for the first time on direct appeal. United States v. Griffin, 699 F.2d 1102, 1107 (11th Cir.1983); United States v. Costa, 691 F.2d 1358, 1363 (11th Cir.1982); United States v. Stephens, 609 F.2d 230, 234 (5th Cir.1980). Because this issue is improperly before us, we decline to consider it on the merits. 2. Insufficiency of Evidence Our consideration of this claim is governed by clear legal standards. United States v. Sullivan, 763 F.2d 1215 (11th Cir.1985): [T]he standard of review is whether “a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” In prosecutions for conspiracy to distribute narcotics under 21 U.S.C. § 846, the essential element is an agreement by two or more persons to violate the drug laws. The existence of such an agreement may be proved by either direct or" }, { "docid": "22195627", "title": "", "text": "wanted to “withdraw his plea prior to sentencing but confusion in translation and attorney communication prevented this from being raised.” The trial court certified the issues for appeal. Despite the probable cause issue certification, Delgado’s new appointed counsel for appeal filed a brief that did not raise any issues or ask for reversal on any ground, but simply invited the California Court of Appeal to conduct an independent review of the record. Delgado filed his own supplemental brief alleging ineffective assistance of trial counsel. The California Court of Appeal affirmed the conviction without opinion. Delgado’s pro per petition before the Supreme Court of California was also denied without opinion. Delgado then filed a petition for a writ of habeas corpus in the Supreme Court of California, alleging ineffective assistance of both trial and appellate counsel. His petition was denied in a one sentence order. After properly exhausting his state remedies, see Delgado v. Lewis, 168 F.3d 1148, 1151, Delgado then filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of appellate counsel. The district court granted the petition. We affirmed the district court in Delgado I. II One of the bases for our holding in Delgado I that Delgado received ineffective assistance of appellate counsel was his counsel’s failure to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) by filing what is known in California as a Wende brief. See People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). We had previously held that the Wende procedure’s failure to follow the requirements of Anders rendered the Wende procedure fundamentally flawed, and therefore resulted in ineffective assistance of appellate counsel per se. See Davis v. Kramer, 167 F.3d 494, 496-98 (9th Cir.1999). Thus, under circuit precedent applicable at the time, Delgado’s counsel ineffectively assisted Delgado as a matter of law. In Smith, the Supreme Court upheld California’s Wende procedure as constitutionally adequate. See 120 S.Ct. at 763. Thus, on remand we must examine Delgado’s" }, { "docid": "23573559", "title": "", "text": "the cocaine evidence, and by failing to mitigate the effects of the cocaine evidence. Our standards for evaluating claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are well established: First, [a defendant] must demonstrate that his attorney’s performance fell below an objective standard of reasonableness. This court has described that standard as “requiring that counsel research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” Second, [a defendant] must also prove that he was prejudiced by his attorney’s substandard performance. “[T]o prove prejudice, [a defendant] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Herrera, 412 F.3d 577, 580 (5th Cir.2005) (footnotes omitted) (quoting United States v. Conley, 349 F.3d 837, 841 (5th Cir.2003)). However, we do not reach Salvador Garcia’s Strickland challenge because it is premature. [T]he “general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” Only in those rare occasions where the record is sufficiently developed will the court undertake to consider claims of inadequate representation on direct appeal. If we cannot fairly evaluate the claim from the record, we must decline to consider the issue without prejudice to a defendant’s right to raise it in a subsequent proceeding. United States v. Gulley, 526 F.3d 809, 821 (5th Cir.2008) (citations omitted) (quoting United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987)). This case falls within that general rule because the record reveals neither the reasons for Salvador Garcia’s attorney’s decisions nor the availability of alternative strategies. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.2007) (refusing to hear a Strickland claim because “the district court did not hold a hearing and the record does not provide sufficient detail about trial counsel’s conduct and" }, { "docid": "9754017", "title": "", "text": "hearing, Scrog-gins’s counsel asserted that she had requested a continuance when Young and Thomas did not appear at trial; however, the district court could not recall the request or find it in the trial transcript. In the brief in support of the motion for new trial, requested by the district court at the end of the January 2003 hearing, Scrog-gins’s counsel continued to assert that she had made such a request, even though no evidence of the request for a continuance could be found in the record. Scrog-gins’s counsel then argued in the brief that if the district court believed that she did not request a continuance, the failure to do so was ineffective assistance of counsel— because Young and Thomas were the “most crucial part” of the defense trial strategy. In denying Scroggins’s motion for new trial, the district court did not mention the ineffective assistance issue. In general, we do not resolve claims of ineffective assistance of counsel on direct appeal when the claim has not been raised before the district court since there was no opportunity to develop the record on the merits of the claim. United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987). Scroggins did not properly raise the ineffective assistance of counsel issue before the district court. Even though “issues raised for the first time in post judgment motions are preserved for appeal,” Instone Travel Tech Marine & Offshore v. Int’l Shipping, 334 F.3d 423, 431 n. 7 (5th Cir.2003), Scroggins’s attempt to raise the claim did not properly bring it before the district court. Scroggins did not raise the claim in his new trial motion or in the hearing on the motion, but only after the hearing and without amending his previously filed motion. Further, because the claim was raised in conjunction with a request for a new trial made more than seven days after the verdict, Scrog-gins was at that time limited to moving for a new trial only on the basis of newly discovered evidence, Rule 33(b)(2), and we have held that “a Rule 33 motion, filed more than seven" }, { "docid": "19890266", "title": "", "text": "six weeks more before attempting to withdraw his plea. See Carr, 740 F.2d 339 (describing as “not promptly filed” a motion to withdraw filed twenty-two days after plea). The court also properly concluded that the likelihood of prejudice to the government is considerable where the withdrawal occurs after a key witness has become unavailable for trial. The court found that none of the other Carr factors cuts in McElhaney’s favor. Given such a long delay, the possible prejudice to the government, and a lack of any considerations in McElhaney’s favor, the court properly denied the motion to withdraw his guilty plea. III. McElhaney contends that his plea should be withdrawn and the indictment dismissed for violations of the Speedy Trial Act. Title 18 U.S.C. § 1362(a)(2) provides that “[flailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under [the Speedy Trial Act].” This language “manifestly provides” that the right to a speedy trial can be waived. United States v. Hernandez, 457 F.3d 416 (5th Cir.2006). McElhaney failed to move for dismissal under the Speedy Trial Act before pleading guilty and has raised this claim for the first time on appeal. His right to dismissal is therefore waived. AFFIRMED. . McElhaney also contends that his plea should be withdrawn because he received ineffective assistance of counsel. Because this claim was not raised in the district court, it is not ripe for review. See United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991) (\"The general rule is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal unless it has been first raised before the district court .... Unless the district court has developed a record on the defendant’s allegations, we cannot fairly evaluate the merits of the claim.”). See also United States v. Higdon, 832 F.2d 312, 314 (5th Cir.1987) (\"We have undertaken to resolve claims of inadequate representation on direct appeal only in rare cases where the record allowed us to evaluate fairly the" }, { "docid": "14098566", "title": "", "text": "wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that" }, { "docid": "8665027", "title": "", "text": "then describes certain determinations made by the district court without analyzing the reasonableness of these determinations or the sentence as a whole. A “brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a ‘conscientious examination’ of possible grounds for appeal.” United States v. Zuluaga, 981 F.2d 74, 75 (2d Cir.1992) (per curiam) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). In addition, the failure to analyze reasonableness leaves us uncertain as to whether counsel diligently searched the record for any and all arguably meritorious claims in support of their clients’ appeals. “Counsel’s failure to submit a proper Anders brief works two harms. First, it fails to assist an appellate court ... in its review of a motion to affirm summarily a district court order or judgment.” Id. (internal quotation marks omitted). After all, “we may not independently determine the merits of an appeal, absent a properly prepared Anders brief.” Burnett, 989 F.2d at 104. “Second, and more importantly, [failure to submit a proper Anders brief] amounts to a constructive denial of counsel to appellants,” Zuluaga, 981 F.2d at 75, who are entitled to “a diligent and thorough review of the record and an identification of any arguable issues revealed by that review,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). An inadequate Anders brief also harms defendants by failing to provide them with complete information about the basis for counsel’s motion to withdraw. Cf. United States v. Leyba, 379 F.3d 53, 54 (2d Cir.2004) (Defense counsel must also provide the client with a copy of the An-ders brief and “a letter informing the client that he or she has the right to file a pro se brief.” (internal quotation marks omitted)). Without such information, defendants cannot effectively respond to counsel’s claims and inform us of their objections to Anders motions. Cf. Campusano v. United States, 442 F.3d 770, 776 (2d Cir.2006) (“An Anders brief at least makes available to the defendant the best possible arguments supporting his appeal or the reasons why counsel" }, { "docid": "14098567", "title": "", "text": "States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that his client wishes to appeal only part of the judgment. This court has not directly addressed this issue in a published opinion. In United States v. Prado-Prado, 188 Fed.Appx. 329 (5th Cir.2006) (unpublished), the court was faced with a similar factual pattern. In that case, counsel filed an Anders brief but did not review the record relating to the guilty plea based on her assertion that Prado-Prado instructed her not to challenge the plea. In response to counsel’s Anders brief, Prado-Prado filed a motion to appoint substitute counsel. The response did not challenge counsel’s assertion that Prado-Prado did not wish to appeal his guilty plea. Instead, the defendant requested the appointment of substitute counsel to challenge sentencing issues. The court construed Prado-Prado’s response as confirmation that he did not desire to appeal his guilty plea. Therefore, the court concluded that counsel’s Anders brief was sufficient. The court then went on to address the sentencing issues raised in the case. Prado-Prado is persuasive authority, see 5th CiR. R. 47.5, for the proposition that it is consistent" }, { "docid": "20545932", "title": "", "text": "Moreno-Rivera’s trial counsel was constitutionally ineffective. Ineffective assistance of counsel claims are generally reserved for collateral review. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance. When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.”); United States v. Morris, 350 F.3d 32, 39 (2d Cir.2003). In Fuller, we departed from this general rule, and fashioned a remedy, because it was undisputed that the defendant’s trial counsel had rendered constitutionally ineffective assistance by failing to file a timely appeal that the defendant had requested. Fuller thus fell into “a narrow category of cases in which the defendant has a new counsel on appeal and argues no ground of ineffectiveness that is not fully developed in the trial record.” United States v. Salameh, 152 F.3d 88, 160 (2d Cir.1998) (internal quotation marks omitted). We have permitted consideration of ineffective assistance claims on direct review in these circumstances. See id. In the instant case, however, the record concerning Moreno-Rivera’s potential ineffective assistance claim is not fully developed. While Moreno-Rivera has informed his new appellate counsel that he “always wanted to appeal,” Hershey Decl. ¶ 4 (emphasis added), Moreno-Rivera’s intentions are irrelevant to an ineffective assistance claim. What matters for purposes of that claim is whether Moreno-Rivera’s trial counsel “fail[ed] to file a requested appeal,” Garcia, 278 F.3d at 137 (emphasis added), in a timely manner. See McHale v. United States, 175 F.3d 115, 119 (2d Cir.1999) (“[I]n order to show that appellate counsel was constitutionally deficient in not filing an appeal, the petitioner must demonstrate that he asked to have an appeal filed.”). We cannot ascertain on this record whether Moreno-Rivera actually gave timely instructions to his trial counsel to file an appeal. Consequently, he is not entitled to the relief contemplated by Fuller." }, { "docid": "20545933", "title": "", "text": "record.” United States v. Salameh, 152 F.3d 88, 160 (2d Cir.1998) (internal quotation marks omitted). We have permitted consideration of ineffective assistance claims on direct review in these circumstances. See id. In the instant case, however, the record concerning Moreno-Rivera’s potential ineffective assistance claim is not fully developed. While Moreno-Rivera has informed his new appellate counsel that he “always wanted to appeal,” Hershey Decl. ¶ 4 (emphasis added), Moreno-Rivera’s intentions are irrelevant to an ineffective assistance claim. What matters for purposes of that claim is whether Moreno-Rivera’s trial counsel “fail[ed] to file a requested appeal,” Garcia, 278 F.3d at 137 (emphasis added), in a timely manner. See McHale v. United States, 175 F.3d 115, 119 (2d Cir.1999) (“[I]n order to show that appellate counsel was constitutionally deficient in not filing an appeal, the petitioner must demonstrate that he asked to have an appeal filed.”). We cannot ascertain on this record whether Moreno-Rivera actually gave timely instructions to his trial counsel to file an appeal. Consequently, he is not entitled to the relief contemplated by Fuller. Moreno-Rivera will have the opportunity to develop the record — and seek a remedy, should he prove that his trial counsel failed to timely file a requested appeal — in a § 2255 motion before the District Court. See Garcia, 278 F.3d at 138 (granting § 2255 motion on the basis of trial counsel’s failure to file a requested appeal). IY. Conclusion For the reasons stated above, we dismiss Moreno-Rivera’s appeal. . Fed. R.App. P. 4(b) stales, in relevant part: (1) Time for Filing a Notice of Appeal. (A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal. (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice" }, { "docid": "19110391", "title": "", "text": "United States v. Brantley, 537 F.3d 347, 349 (5th Cir.2008). Review of substantive reasonableness requires this court to “consider the totality of the circumstances ...” Brantley, 537 F.3d at 349 (internal quotation marks omitted) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Conn’s contention that his consecutive sentences are unreasonable because he and Caldwell are similarly situated fails, as Conn acknowledged his managerial role in the conspiracy, whereas Caldwell had no leadership role. We see no abuse of discretion by the district court in sentencing Conn to 360 months imprisonment. D. Effectiveness of Trial Counsel Conn contends that his attorney’s withdrawal of his objection to the sentencing enhancement for endangering children under U.S.S.G. § 2Bl.l(b)(13)(D) constitutes ineffective assistance of counsel. The record is insufficiently developed to allow consideration of Conn’s claim of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks omitted). Conn has shown no reason the court should make an exception to the general rule. We deny his claim of ineffective counsel without prejudice. See id. CONCLUSION For the foregoing reasons, we AFFIRM Conn’s sentence. . The pseudoephedrine at issue was all contained in tablets and Conn does not dispute that the tablets in question contained pseudoephedrine. Further, the pharmacy logs list the weight of the pure pseudoephedrine and not the total tablet weight." }, { "docid": "19110390", "title": "", "text": "defendant, received concurrent sentences for identical offenses. This court reviews sentencing decisions for reasonableness under the abuse of discretion standard of review. [T]he appellate court should ... consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall, 552 U.S. at 51, 128 S.Ct. 586 (internal citations omitted); see United States v. Brantley, 537 F.3d 347, 349 (5th Cir.2008). Review of substantive reasonableness requires this court to “consider the totality of the circumstances ...” Brantley, 537 F.3d at 349 (internal quotation marks omitted) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Conn’s contention that his consecutive sentences are unreasonable because he and Caldwell are similarly situated fails, as Conn acknowledged his managerial role in the conspiracy, whereas Caldwell had no leadership role. We see no abuse of discretion by the district court in sentencing Conn to 360 months imprisonment. D. Effectiveness of Trial Counsel Conn contends that his attorney’s withdrawal of his objection to the sentencing enhancement for endangering children under U.S.S.G. § 2Bl.l(b)(13)(D) constitutes ineffective assistance of counsel. The record is insufficiently developed to allow consideration of Conn’s claim of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v." } ]

[ { "docid": "9772381", "title": "", "text": "posed by the appeal is not whether we should grant the writ of habeas corpus and set Davis free but whether the state court records were adequate to justify the District Court’s denial of the petition without holding an evidentiary hearing. In 1947, after three days of trial, Davis changed his plea to the charge of murder from not guilty to non vult. For the purpose of the present proceeding, non vult is equivalent to a plea of guilty. In his petitions for habeas corpus in both the state and the federal courts, Davis sought to attack his plea as involuntary. He alleged first that the plea was motivated by a confession coerced from him by the police, and second that the plea was “the direct result of undue influence by the trial judge and assigned counsel.” In dealing with Davis’ two averments, we must be guided by the Supreme Court’s decisions in the McMann trilogy. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), held that when on advice of competent counsel a defendant pleads guilty in a state prosecution, he waives any objections he might have to an allegedly coerced confession. Id. 774, 90 S.Ct. 1441. See United States ex rel. Johnson v. Russell, 444 F.2d 1177 (3rd Cir., July 7, 1971). Therefore, Davis’ first claim, standing alone, clearly gives rise to no federal relief. However, the Supreme Court, in Mc-Mann, was also confronted with claims by the habeas petitioners concerning the competence of their counsel, based on grounds other than the arguably bad advice of counsel that the confessions would be admissible at trial. With regard to these claims, the Supreme Court said (397 U.S. at 772, 774, 90 S.Ct. at 1449, 1450, 25 L.Ed.2d 763): “. . .a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno [378 U.S. 368, 84 S.Ct." } ]

[ { "docid": "13241910", "title": "", "text": "held before the Honorable Theodore Spaulding on July 30, 1957, at which a prima facie case of murder was made out and he was indicted for murder on July 31,1957. Relator was 16 years old when his guilty plea was made on September 4, 1957, with the advice of competent counsel. . Since relator had competent counsel, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), reinforce the conclusions of the district court. See also United States ex rel. Broaddus v. Rundle, 429 F.2d 791 (3d Cir. 1970); United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970). . Under the Pennsylvania law, a juvenile over the age of 14 must be proceeded against in the criminal court (rather than the juvenile court) when he has been charged with murder and a prima facie case of murder has been made out. See Gaskins Case, 430 Pa. 298, 310, 244 A.2d 662, 669 (1968), relied on at 313 F.Supp. 244; Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970); Commonwealth v. Thomas, 440 Pa. 213, 270 A.2d 211 (1970); cf. Mont Appeal, 175 Pa. Super. 150, 154, 103 A.2d 460, 462-63 (1954). In the James case, the court said (269 A.2d at 899): “ * * * while the juvenile court has jurisdiction to determine delinquency, no matter what crime serves as the basis therefor, this does not oust the jurisdiction of the court of oyer and terminer over murder cases. If, at the hearing in the juvenile court, a prima facie case of murder is made out against a juvenile, then the court must hold the accused for prosecution in the court of oyer and terminer, subject, however, to the right of that court to return jurisdiction of the case to the juvenile court if it is determined such is in the best interests of the child and society.” For this reason, the Pennsylvania courts hold that the juvenile judge, unlike the situation when other crimes are" }, { "docid": "20064355", "title": "", "text": "U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although the doctrine enunciated in Boykin does not apply retroactively, United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1969), approving Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923, 1969, the mere fact that relator in the present case was tried before the effective date of Boykin (June 2, 1969) does not deprive him of the right to a hearing on the claim that his guilty plea was constitutionally infirm. In pre-Boykin cases where there had been no appropriate on-the-record inquiry, the burden of proving that a guilty plea was voluntarily and understandingly entered has been held to be on the prosecution. United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968). The Pennsylvania Supreme Court shifted this burden to the prosecution in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). Commonwealth v. Cushnie, 433 Pa. 131, 249 A.2d 290 (1969), then held that this burden is on the Commonwealth only in cases tried after the West case was decided. Commonwealth v. McBride, No. 415, Jan. Term, 1969 (Pa.Sup.Ct.Jan. 30, 1970), however, overruled Cushnie when the Pennsylvania Supreme Court held that “in silent record cases tried before Boykin was decided * * * the Commonwealth will have the burden of demonstrating that the plea was voluntary.” Although the opinion in McBride, written by Justice Roberts, does not have the explicit approval of a majority of the Court (two Justices concurred in the decision), it is based on the position that the United States Supreme Court considers a guilty plea a waiver of im portant constitutional rights, Boykin v. Alabama, and that due process requires that there be applied the waiver standard of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Commonwealth v. Godfrey, supra, 434 Pa. at 536, 254 A.2d at 925, the first reason enumerated for" }, { "docid": "4436567", "title": "", "text": "to the same constitutional test, the result should be the same. We hold that Boykin v. Alabama is not to be applied to guilty pleas entered before the date of that decision. This decision puts the Fifth Circuit in line with other circuits which have considered the problem. United States ex rel Rogers v. Adams, 435 F.2d 1372 (2d Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1970); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970). The voluntary guilty plea waived all non-jurisdictional defenses, so that petitioner cannot now raise issues concerning his rights to a jury trial and confrontation of witnesses. The district court properly denied the petition for writ of habeas corpus on all grounds. Affirmed. . In Ms brief, petitioner also asserts a violation of his Fifth Amendment rights against self-incrimination, which argument has been considered and disposed of by this appeal. . “In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E. g., Desist v. United States, ante, [394 U.S.] p. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248] ; Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967) ; Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed. 2d 882] (1966). In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds. Nevertheless, it is appropriate to analyze the question of that decision’s retroactivity in terms of the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied retroactively. See Linkletter v. Walker, 381 U.S. 618, 622-629 [85 S.Ct. 1731, 1733-1737, 14 L.Ed.2d 601] (1965).” Halliday v. United States," }, { "docid": "18044080", "title": "", "text": "court cast on the Commonwealth to show adequate representation by applying the Mathis presumption of prejudice. As we have now declared in Moore, no such presumption comes into operation and a fortiori petitioner’s claim must fail. Similarly, as to the validity of petitioner’s pleas of guilty, since the district court’s decision we held in United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), following the decision in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), that a plea of guilty entered with the advice of counsel is presumptively valid and the burden is on the habeas corpus applicant to show that the plea was not knowingly and voluntarily made. The pleas of guilty in this case were entered in 1961, prior to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires the record to disclose that a plea of guilty was knowingly and voluntarily made and establishes a prophylactic per se rule invalidating the plea if the record is silent. Under our decisions Boykin is prospective only, and hence is inapplicable to this case. Since the evidence was adequate to support the conclusion of the district court that the Commonwealth overcame the presumption against it, a fortiori it is sufficient under McMann and Grays. The order of the district court will be affirmed. . United States of America ex rel. Sadler v. Commonwealth of Pennsylvania, 306 P.Supp. 102 (D.C.1969). . United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Pennsylvania, 423 F.2d 55 (3 Cir. 1970); United States ex rel. Wiggins v. Pennsylvania, 430 F.2d 650 (3 Cir. 1970)." }, { "docid": "4436566", "title": "", "text": "1166, 22 L.Ed.2d 418 (1969) should not be retro actively applied. While Boykin was concerned with state court procedures, McCarthy dealt with the adequacy of guilty pleas in federal courts. McCarthy held that before a guilty plea could be accepted in a United States District Court under Rule 11 of the Federal Rules of Criminal Procedure, the district judge must first address the defendant personally and determine that the plea was made voluntarily with understanding of the nature of the charge. A silent record in this respect requires that a guilty plea be set aside. Although this decision was made pursuant to the Supreme Court’s supervisory power over the lower federal courts, rather than on the constitutional grounds which fathered Boykin, the court in Halliday used the three criteria usually considered to determine whether newly adopted constitutional rulings should apply retroactively. Inasmuch as the purposes for which the rule in McCarthy was adopted appear to be substantially the same as the reasons for the Boykin rule, it would appear clear that when retroactivity is put to the same constitutional test, the result should be the same. We hold that Boykin v. Alabama is not to be applied to guilty pleas entered before the date of that decision. This decision puts the Fifth Circuit in line with other circuits which have considered the problem. United States ex rel Rogers v. Adams, 435 F.2d 1372 (2d Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1970); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970). The voluntary guilty plea waived all non-jurisdictional defenses, so that petitioner cannot now raise issues concerning his rights to a jury trial and confrontation of witnesses. The district court properly denied the petition for writ of habeas corpus on all grounds. Affirmed. . In Ms brief, petitioner also asserts a violation of his Fifth Amendment rights against self-incrimination, which argument has been considered and disposed" }, { "docid": "15346119", "title": "", "text": "correct constitutional defects in his conviction. Cf. Johnson v. New Jersey, supra, at 730 [384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)]. * * In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule ll’s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively.” Halliday v. United States, supra at 833, 89 S.Ct. at 1499. Appellant’s counsel now points to Boykin, supra (decided after the District Judge’s opinion in our instant case) as making Rule 11 fully applicable to state court criminal proceedings. We do not find language in Boykin to support this view and if we did, we believe that the prospective rule adopted in relation to federal cases in Halliday, supra, would apply a fortiori to state court cases. Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971). Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir. 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971). The Fourth, Fifth and Tenth Circuits have likewise held (in post -Boykin cases) that Boykin does not require the" }, { "docid": "7754682", "title": "", "text": "432 F.2d 730 (3d Cir.1970). We will not reject the specific finding of the state post-conviction court “that [appellant] was in fact given counsel who acted fairly and effectively in the best interests of the petitioner.” Where the advice given an accused “was within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), “our inquiry into the validity of the guilty plea is limited . to the question whether the plea itself was intelligently and voluntarily entered.” United States ex rel. Broaddus v. Rundle, 429 F.2d 791, 795 (3d Cir. 1970). “[T]he validity of a guilty plea is not to be gauged by an examination of the admissibility of a confession or statement which may have, in part, prompted the plea.” 429 F.2d at 793. Moreover, the post-conviction court found that appellant’s confession was “freely given.” In a collateral attack on a criminal proceeding the petitioner has the burden of proving that a guilty plea was not made knowingly or voluntarily. United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir.1970). We find that appellant failed to meet that burden. The district court, 320 F.Supp. 1201, refused to consider appellant’s equal protection argument because of failure to exhaust state remedies on this issue. 28 U.S.C. § 2254. We agree. The order of the district court denying the writ of habeas corpus will be affirmed." }, { "docid": "13241908", "title": "", "text": "co-defendant Crow-son. See United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175 (E.D.Pa. 1968), aff'd 411 F.2d 910 (3d Cir. 1969). Relying on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing. It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968); Rambo v. Peyton, 380 F.2d 363 (4th Cir. 1967); Thompson v. Pepersack, 270 F. Supp. 793 (D.Md.1967), aff’d sub nom., Thompson v. Warden, 413 F.2d 454 (4th Cir. 1969), cert. denied 397 U.S. 950, 90 S.Ct. 972, 25 L.Ed.2d 131 (1970). We have concluded that Coleman should not be applied retroactively to the preliminary hearing on July 30, 1957, for the reasons clearly stated in Phillips v. North Carolina, 433 F.2d 659 (4th Cir. 1970), and Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970). See also United States ex rel. Bonner v. Pate, 430 F.2d 639 (7th Cir. 1970); Commonwealth v. James, supra 269 A.2d at 900. For the foregoing reasons, the district court order will be affirmed. . The attempted robbery of the drug store during which one of relator’s two co-defendants killed the owner took place on July 25, 1957. See Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959). He was arrested on July 27, 1957, and a preliminary hearing was" }, { "docid": "8609177", "title": "", "text": "Massachusetts, 412 F.2d 691 (1st Cir. 1969). See also Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969); Pennsylvania ex rel. Raymond v. Rundle, 339 F.2d 598 (3d Cir. 1964); James v. Copinger, 428 F.2d 235 (4th Cir. 1970); Donlavey v. Smith, 432 F.2d 940 (5th Cir. 1970); Donnell v. Nash, 323 F.2d 850 (8th Cir. 1963); Blair v. California, 340 F.2d 741 (9th Cir. 1965). For this reason alone, the petition was properly dismissed. Affirmed. . However, we note that the court relied primarily on witnesses’ statements made at the sentencing hearing. Since these statements came twelve days after petitioner’s guilty plea, they have only a tenuous relationship to his knowledge at the time of the plea. We believe that difficult questions of law and fact remain unresolved in this case. Although we are aware of the rule in some other circuits that habeas petitions may be rejected even though state remedies have not been exhausted, Petition of Ernst, 294 F.2d 556, 561-62 (3d Cir. 1961); United States v. Hendrick, 330 F.2d 263, 267 n. 5 (3d Cir. 1964), that rule seems most appropriate when the habeas claim is easily rejected. . “When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied" }, { "docid": "2793824", "title": "", "text": "of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for heabeas corpus. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, appellant’s trial counsel testified that appellant did not tell him his confession was coerced. And both the state court and the district court, after separate evidentiary hearings, found no coercion. The record indicates that the Pennsylvania felony-murder rule was explained to appellant by his counsel and suggests that appellant was induced to plead guilty because of assurances that the maximum sentence would be life imprisonment. This inflicts no constitutional infirmities upon the proceedings. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25 91 S.Ct. 160, 27 L.Ed.2d 162 (November 23, 1970). The judgment of the district court will be affirmed. . The district court applied the standard in effect at the time of the hearing which imposed upon the Commonwealth the burden of proving the voluntary nature of a guilty plea, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968);" }, { "docid": "22667287", "title": "", "text": "Eastern District of New York. Ross in his habeas petition alleged that his 1955 plea of guilty to second-degree murder was induced by the State’s possession of an unconstitutionally obtained confession. The Court of Appeals held that, like Dash, Ross was entitled to a hearing on his claims. Along with the three respondents dealt with in this opinion, we granted certiorari as to Ross but the matter was subsequently remanded for dismissal as moot after the death of Ross. See n. 1, supra. United States ex rel. Richardson v. McMann, 408 F. 2d 48 (C. A. 2d Cir. 1969); United States ex rel. Williams v. Follette, 408 F. 2d 658 (C. A. 2d Cir. 1969). The same day that the Court of Appeals ordered hearings in the Dash and Richardson cases, the court, en banc and without dissent, held that a hearing was not required in the case of a petitioner for habeas corpus who had pleaded guilty after a trial judge ruled that his confession was admissible in evidence — the Court of Appeals found that the petition for habeas corpus did not allege with sufficient specificity that the plea of guilty was infected by the allegedly coerced confession. United States ex rel. Rosen v. Follette, 409 F. 2d 1042 (C. A. 2d Cir. 1969). The majority and concurring opinions in the Dash case relied on decisions in several other circuits: United States ex rel. Collins v. Maroney, 382 F. 2d 547 (C. A. 3d Cir. 1967); Jones v. Cunningham, 297 F. 2d 851 (C. A. 4th Cir. 1962); Smith v. Wainwright, 373 F. 2d 506 (C. A. 5th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 940 (C. A. 5th Cir. 1967); Bell v. Alabama, 367 F. 2d 243 (C. A. 5th Cir. 1966), cert. denied, 386 U. S. 916 (1967); Reed v. Henderson, 385 F. 2d 995 (C. A. 6th Cir. 1967); Smiley v. Wilson, 378 F. 2d 144 (C. A. 9th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (C. A. 9th Cir. 1966). New York law now permits a defendant to. challenge the admissibility" }, { "docid": "20064356", "title": "", "text": "A.2d 196 (1968). Commonwealth v. Cushnie, 433 Pa. 131, 249 A.2d 290 (1969), then held that this burden is on the Commonwealth only in cases tried after the West case was decided. Commonwealth v. McBride, No. 415, Jan. Term, 1969 (Pa.Sup.Ct.Jan. 30, 1970), however, overruled Cushnie when the Pennsylvania Supreme Court held that “in silent record cases tried before Boykin was decided * * * the Commonwealth will have the burden of demonstrating that the plea was voluntary.” Although the opinion in McBride, written by Justice Roberts, does not have the explicit approval of a majority of the Court (two Justices concurred in the decision), it is based on the position that the United States Supreme Court considers a guilty plea a waiver of im portant constitutional rights, Boykin v. Alabama, and that due process requires that there be applied the waiver standard of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Commonwealth v. Godfrey, supra, 434 Pa. at 536, 254 A.2d at 925, the first reason enumerated for not applying Boy-kin retroactively is the fact that: “ [A] defendant who is not afforded' an on-the-record examination is not left without recourse. He is free to argue in a post-conviction proceeding that his plea was not made intelligently and voluntarily and he must be given a hearing on this claim if it is not patently frivolous on the face of the record. [Emphasis added] In Commonwealth ex rel. West v. Myers, 423 Pa. 1, 7, 222 A.2d 918, 922 (1966), the Pennsylvania Supreme Court held that a relator who alleges facts which, if true, would entitle him to the issuance of a writ of habeas corpus, “must be afforded a hearing and the opportunity to establish the truth of his allegations.” Significantly, appellants in several recent cases before this Court have been afforded hearings under similar circumstances. Evidentiary hearings were conducted by district courts in United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968); and United States" }, { "docid": "13241909", "title": "", "text": "U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968); Rambo v. Peyton, 380 F.2d 363 (4th Cir. 1967); Thompson v. Pepersack, 270 F. Supp. 793 (D.Md.1967), aff’d sub nom., Thompson v. Warden, 413 F.2d 454 (4th Cir. 1969), cert. denied 397 U.S. 950, 90 S.Ct. 972, 25 L.Ed.2d 131 (1970). We have concluded that Coleman should not be applied retroactively to the preliminary hearing on July 30, 1957, for the reasons clearly stated in Phillips v. North Carolina, 433 F.2d 659 (4th Cir. 1970), and Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970). See also United States ex rel. Bonner v. Pate, 430 F.2d 639 (7th Cir. 1970); Commonwealth v. James, supra 269 A.2d at 900. For the foregoing reasons, the district court order will be affirmed. . The attempted robbery of the drug store during which one of relator’s two co-defendants killed the owner took place on July 25, 1957. See Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959). He was arrested on July 27, 1957, and a preliminary hearing was held before the Honorable Theodore Spaulding on July 30, 1957, at which a prima facie case of murder was made out and he was indicted for murder on July 31,1957. Relator was 16 years old when his guilty plea was made on September 4, 1957, with the advice of competent counsel. . Since relator had competent counsel, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), reinforce the conclusions of the district court. See also United States ex rel. Broaddus v. Rundle, 429 F.2d 791 (3d Cir. 1970); United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970). . Under the Pennsylvania law, a juvenile over the age of 14 must be proceeded against in the criminal court (rather than the juvenile court) when he has been charged with murder and a prima facie case of murder has been made out. See Gaskins Case, 430 Pa. 298, 310, 244 A.2d 662, 669 (1968)," }, { "docid": "2589375", "title": "", "text": "This decision was subsequently affirmed by the Kentucky Court of Appeals on November 9, 1973. Hendron v. Commonwealth, Ky., 501 S.W.2d 795. Having exhausted all post conviction remedies in the Kentucky courts, Hendron filed a petition for writ of habeas corpus in the District Court on December 12, 1973. On his appeal Hendron contends: 1) the record shows that his plea of guilty was not voluntary under the standards prevailing at the time the plea was entered (pre-Boykin); and, 2) the standards enunciated by the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 69 S.Ct. 1302, 93 L.Ed. 1879 (1969), should be applied retroactively and that he should be afforded relief since the record fails to show compliance with those standards. We affirm. The District Court made findings of fact that the plea of guilty was prompted by the overwhelming evidence against him, and that at the time of the entry of the plea, Hendron was informed of the nature of the indictment and the consequences of pleading guilty. These findings are fully supported by the record. Asserting that Boykin should be applied retroactively, Hendron contends that his guilty plea was invalid because the record does not affirmatively show the plea was given intelligently and voluntarily. This court has held that Boykin should not be applied retroactively. See, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970). In Scranton, we said: Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir., 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The Fourth," }, { "docid": "10758062", "title": "", "text": "these claims are properly before us at this time; we must decide, at least with respect to some of relator’s claims, that he has exhausted his state court remedies as required as a matter of comity by 28 U.S.C. § 2254 (Supp. V 1970). We noted above that after relator was granted leave to file his post-trial motions, nunc pro tunc, these motions were denied; he then appealed to the Superior Court. Such appeal was of right. 17 Pa.Stat.Ann. §§ 181, 182 (Supp.1970). See Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964). In this type of case, the jurisdiction of the Superior Court is the “exclusive and final appellate jurisdiction * * 17 Pa.Stat.Ann. § 181 (Supp.1970). See United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3d Cir. 1969). However, a further appeal can be had from a decision of the Superior Court if the Superior Court or one Justice of the Supreme Court specially allows. 17 Pa.Stat.Ann. § 190 (Supp.1970). In our present case, relator went no further than the decision of the Superior Court. The Court of Appeals has held that exhaustion is satisfied when the petitioner’s contentions have been presented to and considered by the state’s highest court. United States ex rel. Howard v. Russell, 405 F.2d 169 (3d Cir. 1969). Mere denial by the State Supreme Court of a relator’s petition for allocatur has been held sufficient to satisfy this requirement but the Court of Appeals in so deciding did not reach the question now before us, which is whether a relator may properly petition for habeas corpus in federal court after having had his claims denied by the Superior Court but not having had any review in the Pennsylvania Supreme Court. United States ex rel. Fletcher v. Maroney, 413 F.2d 16, 17 & n. 9 (3d Cir. 1969). Under the circumstances of this case, we will entertain relator’s petition. United States ex rel. Thomas v. Rundle, Civ.Action No. 69-445 (E.D.Pa., April 12, 1971); United States ex rel. Bronson v. Russell, Misc. No. 69-317 (E.D.Pa., April 14, 1971). Since relator has exhausted" }, { "docid": "2793823", "title": "", "text": "OPINION OF THE COURT PER CURIAM: Before us is an appeal from the district court’s denial of a writ of habeas corpus. Represented by counsel, the appellant in 1949 entered a guilty plea to a general charge of murder before a panel of three judges which made a finding of first degree murder and imposed a life sentence. He took no direct appeal from the finding and the sentence. Seventeen years later, contending that his guilty plea had been unlawfully induced by a coerced confession, appellant filed a petition under the Pennsylvania Post Conviction Hearing Act. Testimony from both appellant and his trial counsel was received at an evidentiary hearing. The state court denied the petition, and the denial was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). Appellant then filed a habeas corpus petition in the district court, and a second evidentiary hearing was held at which the appellant and trial counsel again testified. The district court denied the petition. We find no merit in any of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on" }, { "docid": "567619", "title": "", "text": "explained the rights that Nelson would be relinquishing if he pled guilty. Defense counsel also told Nelson that he would not sponsor a plea of guilty to second degree murder unless Nelson had actually killed the woman. As a result of this discussion, Nelson decided to change his plea. The trial judge did not inquire into the voluntariness of the guilty pleas when he accepted them, nor did he explain to Nelson which rights he was giving up or the elements of the charged offenses. The clerk merely recited each charge, asked Nelson for his plea, and received the response “guilty.” Nelson now contends that his pleas to second degree murder and sodomy were involuntary because he did not understand that by pleading guilty he waived his self-incrimination privilege and his rights to a jury trial and confrontation; he also contends that he did not realize that consecutive sentences could be imposed, and that he was not informed of the elements of the charged offenses. The record does not affirmatively show that Nelson’s pleas were entered “voluntarily and understanding” as required since the Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). In cases like the present one tried before Boykin, however, the burden of proving involuntariness lies with the petitioner. Bruce v. Estelle, 536 F.2d 1051, 1058 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (burden of proof); United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1097-98 (2d Cir.1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973) (same); Smith v. Cox, 435 F.2d 453, 457-58 (4th Cir.1970), vacated on other grounds sub nom. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971) (nonretroactivity); United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir.1969) (same); see also Porter v. Superintendent, 383 Mass. 111, 417 N.E.2d 1199, 1202 (1981). It was therefore up to the state court to hear Nelson’s case, make findings of fact, and decide whether he met his burden" }, { "docid": "13241907", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This case challenges a May 22, 1970, district court order denying a petition for a writ of habeas corpus filed by a state prisoner sentenced to life imprisonment for first degree murder on September 9, 1957, after a hearing to determine the degree of murder following the entry of a guilty plea with the advice of counsel. The thorough opinion of Judge Higginbotham, 313 F.Supp. 237, with which, after consideration of the record as well as of the arguments and briefs of counsel, we are in agreement, makes it unnecessary for us to recite the lengthy history of the proceedings involving relator in both the state and federal courts, the facts, or the issues (particularly as to the voluntariness of the confession) raised in the district court and in this court, except as to the issue discussed below. See United States ex rel. Walker v. Maroney, 313 F.Supp. 237 (E.D.Pa.1970). We note that many of the issues argued here had previously similarly been determined in the case of relator’s co-defendant Crow-son. See United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175 (E.D.Pa. 1968), aff'd 411 F.2d 910 (3d Cir. 1969). Relying on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing. It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391" }, { "docid": "7754681", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This appeal by a state prisoner from a denial of federal habeas corpus raises constitutional questions of competency of counsel, the efficacy of his guilty plea, and equal protection. We have carefully considered all of his contentions, find them devoid of merit, and will affirm the order of the district court. In 1963, Eugene Kidd entered pleas of guilty to indictments charging aggravated robbery and conspiracy. Five years later, he filed a Pennsylvania Post-Conviction Hearing Act petition, alleging that his guilty plea was induced by a coerced confession, that it was motivated through the advice of incompetent counsel, and that it was not made knowingly. Following an evidentiary hearing, relief was denied. The Pennsylvania Superior Court affirmed, Commonwealth v. Kidd, 215 Pa.Super. 741, 255 A.2d 600 (1969), and the Pennsylvania Supreme Court denied allocatur. A petition for federal habeas corpus relief followed. Upon an independent review of the record, we are persuaded that the professional competence of appellant’s trial counsel met that standard required by Moore v. United States, 432 F.2d 730 (3d Cir.1970). We will not reject the specific finding of the state post-conviction court “that [appellant] was in fact given counsel who acted fairly and effectively in the best interests of the petitioner.” Where the advice given an accused “was within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), “our inquiry into the validity of the guilty plea is limited . to the question whether the plea itself was intelligently and voluntarily entered.” United States ex rel. Broaddus v. Rundle, 429 F.2d 791, 795 (3d Cir. 1970). “[T]he validity of a guilty plea is not to be gauged by an examination of the admissibility of a confession or statement which may have, in part, prompted the plea.” 429 F.2d at 793. Moreover, the post-conviction court found that appellant’s confession was “freely given.” In a collateral attack on a criminal proceeding the petitioner has the burden of proving that a guilty plea was not made knowingly" }, { "docid": "9766456", "title": "", "text": "757 (1969), has required adherence in a juvenile certification proceeding to the standards of Kent, supra. Kline v. State, 86 Nev. 59, 464 P.2d 460 (1970). . United States ex rel. Turner v. Rundle, 438 F.2d 839 (3rd Cir. 1971), involved a situation similar to the instant ease; a juvenile’s certification hearing took place approximately five weeks after Kent, supra, was decided. The Court of Appeals for the Third Circuit did not reach the issue of Gault’s retroactivity. Id. at 842. However, we believe that the uncertain state of the law at the time of Powell’s hearing — after Kent but prior to Gault, requires that we deal with the retroactivity of Gault. . Gault has been applied retroactively in the following cases: Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970); Heryford v. Parker, 396 F.2.d 393 (10th Cir. 1968); Marsden v. Commonwealth, 352 Mass. 564, 227 N.E.2d 1 (1967); Smith v. Commonwealth, 412 S.W.2d 256 (Ky.1967) (semble); Contra: Mordecai v. United States, 421 F.2d 1133 (D.C.Cir. 1969); Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970); Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970); Stanley v. Peyton, 292 F.Supp. 209 (W.D.Va.1968); In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615 (1967); Cradle v. Peyton, 208 Va. 243, 156 S.E.2d 874 (1967). . The Supreme Court has recently held that a guilty plea constitutes a waiver of certain constitutional defects. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Moreover, the Court made it clear that a plea is not rendered involuntary solely because defense counsel failed to foresee constitutional developments which subsequently made a defendant’s confession appear to be involuntary. The Court stated: “Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a" } ]

[ { "docid": "12808545", "title": "", "text": "original kidnapping trial. Tasby was a major participant. He knew the date and further could confirm it if he so desired. This issue is patently frivolous. It relates only to court records and only concerns court proceedings in which the defendant was a party. This information, if really necessary to prepare a defense, could have been sought by a motion for bill of particulars. We have reviewed the statements alleged by Tasby to be an improper comment by the court on the evidence and those of the prosecutor alleged to be improper comment on his failure to testify and do not find them objectionable. The judge’s statement concerning a formal witness to prove an unassailed court record was not a comment on the credibility of the witness. The prosecutor’s comment was to some extent invited, but was really collateral to the issue in this case and was not a comment on Tasby’s failure to take the stand in the perjury trial. If either could be considered error, we are satisfied that this error was harmless beyond a reasonable doubt. Ir-refragably Tasby is nailed by his own testimony and the written record of judicial proceedings. There are no relevant disputed factual issues except Tas-by’s incredible contentions. We find no violation of the attorney-client privilege in the facts of this case. It has long been the law that a client may waive protection of the privilege, either expressly or impliedly. Blackburn v. Crawfords, 70 U.S. (3 Wall.) 175, 194, 18 L.Ed. 186 (1865). One of the circumstances which may support a conclusion of a waiver is an attack by the client upon his attorney’s conduct which calls into question the substance of their communications. A client has a privilege to keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney’s competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence. Here, the confidentiality of the attorney-client relationship was breached by Tasby. Surely a client is not free" } ]

[ { "docid": "23044589", "title": "", "text": "see 204 Pa.Code § 81.4 (Rule 1.6(a) and (d)). Thus, as Creamer owed a duty to his former clients not to reveal this information, and as an actual conflict of interest therefore existed, the district court properly disqualified the Sprague firm. III. SUPPRESSION OF EVIDENCE In addition to disqualifying the Sprague firm, the district court held that the Thiel/Napolitano affidavits could not be used at trial because of the attorney-client evidentiary privilege. Moscony claims that this ruling was wrong under the law of evidence governing the privilege, and impermissibly infringed upon his Sixth Amendment right to confront the witnesses against him. In federal criminal cases, the privilege of a witness is governed by “the principles of the common law as ... interpreted by the courts of the United States in the light of reason and experience.” Fed.R. Evid. 501. One privilege, long established, is the attorney-client privilege which protects from disclosure the confidential communications made by a client to her lawyer in furtherance of his representation of her. See S. Stone & R. Liebman, Testimonial Privileges § 1.01 at 4 (1983). Supreme Court Standard 503, though unpromulgat-ed, “is a restatement of the traditional common law attorney-client privilege which had been applied in the federal courts prior to the adoption of the federal rules,” J. Wein-stein & M. Berger, Weinstein’s Evidence H 503[02] at 503-19 (1990). The Standard states, in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself ... and his lawyer ..., or (3) by him ... to a lawyer representing another in a matter of common interest. Sup.Ct.Stnd. 503(b), reprinted in Wein-stein’s Evidence 1(503 at 503-1. Moscony claims that the information communicated to Creamer by Thiel and Napolitano at the July 17, 1987, conference was not “confidential,” and was not imparted “for the purpose of seeking legal advice,” as it related only to “office procedures.” We do not agree. Both women credibly testified that when they spoke to Creamer" }, { "docid": "4450481", "title": "", "text": "to keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney’s competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence. Here, the confidentiality of the attorney-client relationship was breached by Tasby. Surely a client is not free to make various allegations of misconduct and incompetence while the attorney’s lips are sealed by invocation of the attorney-client privilege. Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived. Id. at 336 (citations omitted). This case illustrates the careful balance Rule 501 must strike with respect to the truth and how spontaneously an appropriate waiver will tip the balance in favor of revealing previously guarded truth. It is an equilibrium unaffected by the distinctively separate ethical rule of confidentiality that may also exist, which means that: [A] lawyer may reveal otherwise privileged communications from his clients in order to ... defend himself against charges of improper conduct, without violating the ethical rules of confidentiality or the attorney-client privilege ... The privilege for communications between client and attorney ceases when the purpose of the privilege is abused, when the lawyer becomes either the accomplice or the unwitting tool in a continuing or planned wrongful act. United States v. Ballard, 779 F.2d 287, 292 (5th Cir.1986); Tasby v. United States, 504 F.2d at 336. Sometimes, the issue of waiver is raised only to determine no privilege ever really existed — and whether a privilege exists is a matter for the court to decide. Fed.R.Evid. 104(a). In U.S. v. White, debtors Richard and Judith White were convicted of bankruptcy fraud following a one-count indictment charging that they failed to disclose various assets in their bankruptcy petition. U.S. v. White, 879 F.2d 1509, 1510-11 (7th Cir.1989); see also U.S. v. White, 970 F.2d 328, 332-33 (7th Cir.1992). One of the key" }, { "docid": "16225512", "title": "", "text": "abuse of discretion not to grant the motion to withdraw. See Id. II. Does the Defender Have an Actual Conflict of Interest? The Defender contends that because it concurrently represented Raid and Oberoi, New York Disciplinary Rule 5-105 applies. This rule provides that B. A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105(C). Although the Defender argues that it falls within DR 5-105(B) because it represented Raid and Oberoi at the same time, DR 5-105(B) governs “continue[d] multiple employment.” Once the district court relieved the Defender as Raid’s counsel, it no longer had multiple clients and its situation did not fit within DR 5-105(B). DR 5-108 covers conflict of interest issues related to former and present clients and provides: (A) ... a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure: 1. Thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client. 2. Use any confidences or secrets of the former client except as permitted by DR 4 — 101(C) or when the confidence or secret has become generally known. DR 4-101(a) defines “confidence” as the “information protected by the attorney-client privilege under applicable law” and “secret,” as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR4-101(B) states: Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of a client. (2) Use a confidence or secret of a client to the disadvantage of the client. (3) Use a confidence or secret of a client for the advantage of the lawyer" }, { "docid": "6420842", "title": "", "text": "defendant against whom the witness may testify, the witness does not waive the privilege simply because he takes the stand. Because Berger is a New York attorney, it is appropriate to assess his proposed cross-examination of Formato in light of New York’s ethics rules. Ethical Consideration 4-5 of Canon 4 of New York’s Code of Professional Responsibility provides: “A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes.” Disciplinary Rule 4-101(B) provides, in relevant part: “Except where permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client____(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.” (Footnotes omitted). Because I am advised Formato has not consented to the proposed nature of Berger’s cross-examination, the court must begin with the presumption Formato will not waive the privilege simply by taking the witness stand for the Government. Berger has cited to two cases, United States ex rel. Kachinski v. Cavell, 453 F.2d 581 (3d Cir.1971), and United States v. Rispo, 460 F.2d 965 (3d Cir.1972), to support his argument on this motion. Those cases, however, do not carry Berger’s point to the lengths he asserts. In Cavell, the Third Circuit merely noted a Government witness waived the confidentiality of attorney communications only to the extent he discusses such confidential communications with the Government: “[The witness] waived any attorney-client privilege by making a statement to the police about what he knew of the crimes for which [the defendant] was convicted, so that there was nothing to prevent the attorney from questioning [the witness] on behalf of [the defendant].” Cavell, 453 F.2d at 583 n. 6. In Rispo, the Third Circuit found a defense attorney who had represented another co-defendant at the outset of the case should have disqualified himself from continuing to represent his remaining" }, { "docid": "6420841", "title": "", "text": "Government and against Berger, will waive his privilege over all communications he has had with Berger, whether or not those communications are related to any aspect of Formato’s cooperation with the Government. The Government concedes Formato waives his privilege with respect to the subject matter of any attorney-client communications Formato has discussed with the Government or will disclose at trial. However, the Government disputes the privilege over all attorney-client communications is waived simply because Formato testifies for the Government. Although caselaw discussing this issue is scarce, I am persuaded a Government witness waives the confidentiality of those attorney-client communications the subject matter of which the witness discusses with the Government or discloses at trial. Consequently, such matters may properly be the subject of cross-examination at trial. However, I do not accept the suggestion a Government witness waives the privilege over attorney-client communications unrelated to discussions he has had with the Government or discloses at trial. Even in the unique circumstances of this case, in which the attorney to whom the communications were made is a defendant against whom the witness may testify, the witness does not waive the privilege simply because he takes the stand. Because Berger is a New York attorney, it is appropriate to assess his proposed cross-examination of Formato in light of New York’s ethics rules. Ethical Consideration 4-5 of Canon 4 of New York’s Code of Professional Responsibility provides: “A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes.” Disciplinary Rule 4-101(B) provides, in relevant part: “Except where permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client____(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.” (Footnotes omitted). Because I am advised Formato has not consented to the proposed nature of Berger’s cross-examination, the court must begin" }, { "docid": "22208882", "title": "", "text": "violation of the attorney-client privilege or for a hearing to determine whether there had been such a violation and, if so, the extent thereof. Pri- or to instructing the jury, the court ruled upon the motion as follows: Having heard the testimony and evidence presented during the trial, and having now inspected the grand jury testimony and the documents which Glick-man gave to the government, I now determine that the government has not violated the defendant’s attorney-client privilege. As to the grand jury testimony, it dealt almost exclusively with Glickman’s participation in the preparation of Renda’s personal tax returns for 1983 and four and the corporate tax return of First United for ’84. References to Mr. Schwimmer were negligible and amounted to virtually nothing except to say that Glickman had in fact met Schwimmer. As to the documents, similarly, these documents submitted by Glickman to the government were merely schedules used to prepare First United’s tax return or schedules setting forth the activities of the several First United Fund bank accounts. Thus, I find there has been no invasion of Schwimmer’s defense camp by Glickman. DISCUSSION Narrowly defined, riddled with exceptions, and subject to continuing criticism, the rule affording confidentiality to communications between attorney and client endures as the oldest rule of privilege known to the common law. See generally 2 Weinstein and Berger, Weinstein’s Evidence H 503[02] — 503(d) (5) [01]; Fisch on New York Evidence § 517 (2d ed. 1977). Even in its debilitated form, however, it provides essential support for the constitutional right to the assistance of counsel. Without the attorney-client privilegepthat right and many otherNights belonging\"]*) those accused of crime would in large part be rendered meaningless! DesignecT'“to encourage full and franlUcbmmumcation between attorneys and their clienteT’TtKis\" rule of confidentiality “recognizes that sound legal advice or advocácy séfves’pulT' lie ends and that such advice or advocacy depends upon the lawyer being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). It also recognizes that a lawyer’s “assistance can only be safely and readily" }, { "docid": "23055087", "title": "", "text": "no justification for wasting the time and resources of the parties, the trial court and this Court by requiring Cheng to re-appeal at a later date. Nor do we view Armstrong as intending such a result. . See Canon 4, quoted in note 1, supra. The only Disciplinary Rule keyed to Canon 4 provides: DR 4-101 Preservation of Confidences and Secrets of a Client. (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his client to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (C) A lawyer may reveal: (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order. (3) The intention of his client to commit a crime and the information necessary to prevent the crime. (4) Confidences or secrets necessary to establish or collect his fee or to defend himself' or his employees or associates against an accusation of wrongful conduct. (D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee. . In our recent decision in Armstrong, supra, we noted that “with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of" }, { "docid": "17518614", "title": "", "text": "client or clients affected, but only after full disclosure to them; (2) confidences or secrets when permitted or required by these rules, or when required by law or by court order; (3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used; (4) the intention of a client to commit a crime and the information necessary to prevent the crime; and (5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct. ed) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee. In this case, Freifeld obtained “confidences” as defined by MRCP 1.6(a); he was, therefore, precluded by the attorney-client relationship from divulging the information Rose disclosed-to him, unless she gave her consent after full disclosure. The essential elements of the attorney-client privilege, outlined as follows, were present. (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4)made in confidence (5) by the client, (6)are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. Fausek v. White, 965 F.2d 126, 129 (6th Cir.1992). Freifeld’s obligations under the attorney-client privilege were undiminished by the fact that Rose had only a preliminary consultation and never formally retained him. Kearns v. Fred Lavery Porsche Audi Co., 745 F.2d 600, 603 (Fed.Cir.1984). Freifeld also obtained “secrets” from Rose, i.e., information that Rose re quested be held inviolate and, more clearly, information that had a high potential to cause embarrassment and be detrimental to Rose in her employment environment if disclosed. If Rose’s allegations are credited, Freifeld violated MRPC 1.6(b)(3) by using Rose’s" }, { "docid": "22548357", "title": "", "text": "see also United States v. Liebman, 742 F.2d 807, 810 (3d Cir.1984). Although the privilege belongs to the client, and only the client may waive it, an attorney may assert the privilege on the client’s behalf. McCormick on Evidence § 92 (John W. Strong 4th ed. 1992). Moreover, the canons of ethics make the attorney’s common law obligation to maintain the secrecy of his communications with his client a professional mandate. See Model Rules of Professional Conduct Rule 1.6 (1983) (lawyer shall not reveal information relating to representation of client unless client consents after consultation); Model Code of Professional Responsibility DR 4-101 (1980) (lawyer is prohibited from revealing secrets or confidences of client); see also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960-61 (3d Cir.1984). But, it bears repeating that— the reason for that protection — the centrality of open client and attorney communication to the proper functioning of our adversary system of justice— “ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.” Zolin, 491 U.S. at 562-63, 109 S.Ct. at 2626. We must always keep in mind that the purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications from the lawyer to the client made by the lawyer for the purpose of giving advice for the commission of a fraud or crime. The seal is broken when the lawyer’s communication is meant to facilitate future wrongdoing by the client. Where the client commits a fraud or crime for reasons completely independent of legitimate advice communicated by the lawyer, the seal is not broken, for the advice is, as the logicians explain, non causa pro causa. The communication condemned and unprotected by the attorney-client privilege is advice that is illicit because it gives direction for the commission of future fraud or crime. The advice must relate to future illicit conduct by the client; it is the causa pro causa, the advice that leads to the deed. Petitioners clearly have an interest deserving of" }, { "docid": "23438694", "title": "", "text": "therefore, do not find a waiver by Mann-halt of the possible conflict between himself and Kempton. We turn now to the application of the Cuyler standard to the facts of this case. We must first determine whether an actual conflict existed. We find that when an attorney is accused of crimes similar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great. For example, a vigorous defense might uncover evidence of the attorney’s own crimes, and the attorney could not give unbiased advice to his client about whether to testify or whether to accept a guilty plea. See United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984) (counsel may have conspired with someone connected to defendant or similar fraudulent insurance claims and thus actual conflict existed); see also United States v. Salinas, 618 F.2d 1092, 1093 (5th Cir.) (trial judge was within discretion in disqualifying attorney over defendant’s objection where attorney was target of investigation concerning events for which clients were indicted), cert. denied, 449 U.S. 961, 101 S.Ct. 374, 66 L.Ed.2d 228 (1980). The second prong of Cuyler is whether the conflict adversely affected counsel’s performance. Here, Morris’ accusation against Kempton adversely affected Mannhalt’s representation in four areas: 1) Kempton’s failure to testify to rebut Morris’ allegations, 2) Kempton’s cross-examination of Morris, 3) Kempton’s failure to question Mannhalt on direct about the allegations, and 4) Kempton’s failure to explore possible plea bargains. First, Kempton should have disqualified himself so as to be available to testify and dispute Morris’ testimony about the stolen ring. The Washington State Rules of Professional Conduct (RPC) require that “[a] lawyer shall not act as advocate at a trial in which the lawyer ... is likely to be a necessary witness....” Washington Court Rules RPC 3.7. Moreover, the Model Code of Professional Responsibility in effect in Washington at the time of Mannhalt’s trial required that defense counsel withdraw when “a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on" }, { "docid": "23369273", "title": "", "text": "lawyer to guard the confidences and secrets of his client. The ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege .... EC 4^5 A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes .... EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment .... Disciplinary Rules DR 4-101 Preservation of Confidences and Secrets of a Client. (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) Except when permitted under DR 4-101(0), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his clienl to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (C) A lawyer may reveal: (4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct. Canon 9 A Lawyer Should Avoid Even the Appearance of Professional Impropriety Ethical Considerations EC 9-1 Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession. EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor" }, { "docid": "22199432", "title": "", "text": "lawyer confidences necessary for the lawyer to provide advice and representation. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). See E. Cleary, McCormick on Evidence, § 87, at 314 (3d ed. 1984). As the privilege serves the interests of justice, it is worthy of maximum legal protection. Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir.1992). If we intend to serve the interests of justice by encouraging consultation with counsel free from the apprehension of disclosure, then courts must work to apply the privilege in ways that are predictable and certain. “An uncertain privilege — or one which purports to be certain, but rests in widely varying applications by the courts — is little better than no privilege.” In re von Bulow, 828 F.2d at 100. There is authority for the proposition that a party can waive the attorney client privilege by asserting claims or defenses that put his or her attorney’s advice in issue in the litigation. For example, a client may waive the privilege as to certain communications with a lawyer by filing a malpractice action against the lawyer. See Wigmore, § 2827, at 638. A defendant may also waive the privilege by asserting reliance on the advice of counsel as an affirmative defense. Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (9th Cir.1992) (party’s claim that its tax position was reasonable because it was based on advice of counsel puts advice in issue and waives privilege); see also, Hunt v. Blackburn, 128 U.S. at 470, 9 S.Ct. at 127, (client waives privilege when she alleges as a defense that she was misled by counsel). See generally, E. Cleary, McCormick on Evidence § 93, at 343 (3d ed. 1984). In an action for patent infringement, where a party is accused of acting willfully, and where that party asserts as an essential element of its defense that it relied upon the advice of counsel, the party waives the privilege regarding communications pertaining to that advice. Mellon v. Beecham Group PLC, 17 U.S.P.Q.2d 1149, 1151, 1991 WL 16494 (D.N.J.1991);" }, { "docid": "22912465", "title": "", "text": "plaintiff’s motion. Furthermore, I deny defendants’ request for leave to take an interlocutory appeal. The Attorney-Client Privilege The attorney-client privilege bestows upon a client a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. See McCormick, Evidence § 87 (2d ed. 1972); 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961). The deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice. Garfinkle v. Arcata National Corp., 64 F.R.D. 688 (S.D.N.Y.1974); Smith v. Bentley, 9 F.R.D. 489 (S.D.N.Y.1949); see also, 8 Wigmore, Evidence § 2327 (McNaughton rev. 1961). An important consideration in assessing the issue of waiver is fairness. Bierman v. Marcus, 122 F.Supp. 250 (D.N.J. 1954). Thus, a party may not insist on the protection of the attorney-client privilege for damaging communications while disclosing other selected communications because they are self-serving. Voluntary disclosure of part of a privileged communication is a waiver as to the remainder of the privileged communication about the same subject. International Telephone and Telegraph Corp. v. United Telephone Company of Florida, 60 F.R.D. 177, 185-186 (M.D.Fla.1973). By putting their lawyers on the witness stand in order to demonstrate that the prior lawsuits were pursued on the basis of competent legal advice and were, therefore, brought in good faith, defendants will waive the attorney-client privilege as to communications relating to the issue of the good-faith prosecution of the patent actions. Garfinkle v. Arcata National Corp., supra; 8 Wigmore, Evidence § 2327 (McNaughton rev. 1961). Since the same rules of privilege govern the scope of discovery as generally govern the admissibility of evidence at trial, a party may obtain pretrial discovery of materials allegedly subject to the attorney-client privilege where the materials fall within some exception to the privilege or where the protection of the privilege will be waived at the trial. See International Telephone and Telegraph Corp. v. United Telephone Company of Florida, supra, at 180; 4 J. Moore, Federal Practice ¶ 26.60[1] (2d ed." }, { "docid": "23044590", "title": "", "text": "Privileges § 1.01 at 4 (1983). Supreme Court Standard 503, though unpromulgat-ed, “is a restatement of the traditional common law attorney-client privilege which had been applied in the federal courts prior to the adoption of the federal rules,” J. Wein-stein & M. Berger, Weinstein’s Evidence H 503[02] at 503-19 (1990). The Standard states, in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself ... and his lawyer ..., or (3) by him ... to a lawyer representing another in a matter of common interest. Sup.Ct.Stnd. 503(b), reprinted in Wein-stein’s Evidence 1(503 at 503-1. Moscony claims that the information communicated to Creamer by Thiel and Napolitano at the July 17, 1987, conference was not “confidential,” and was not imparted “for the purpose of seeking legal advice,” as it related only to “office procedures.” We do not agree. Both women credibly testified that when they spoke to Creamer as their attorney, they intended their communications to him to be held in confidence. A communication is “confidential” if “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client_” Sup.Ct.Stnd. 503(4). Furthermore, and as we have already noted, since “office procedures” were at the heart of the investigation in which Thiel and Napoli-tano had become ensnared, the witnesses’ communications to Creamer were clearly intended to facilitate his rendition of legal services to them. Accordingly, the affidavits, containing confidential information given to an attorney by his clients to facilitate his representation of them, were pri-ma facie protected from disclosure by the attorney-client privilege. Moscony argues in the alternative, however, that Thiel and Napolitano waived the privilege when they signed the documents, entitled “Affidavit,” in the presence of Moscony who notarized them. The contention is that by signing an affidavit— which, as a general matter, is designed to be shown to others — , and by doing so in front" }, { "docid": "2550561", "title": "", "text": "**1-3 (Apr. 8, 1991). . Clearly, this argument can only have merit, where as here, the entity has not waived its attorney-client privilege. . The issue confronted by many courts, often called a joint client or common interest exception, is whether communications between two or more clients and one or more lawyers on a matter of common interest waives the confidentiality requirement of the attorney-client privilege. Courts typically hold it does not effect a waiver. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 503(b)[06] (citing cases). However, when an attorney represents two or more clients on a matter of common interest and litigation between or among the clients ensues, the attorney-client privilege is waived. See Del.U.R.E. 502(d)(5). The issue before the Court, however, is as follows: an attorney provides advice to an entity client (E), composed of four members (Cl), (C2), (C3) and (C4), on a matter of common interest. Cl discloses part of this advice to a third person (X). X brings suit against C1-C4 and E. The Court has ruled that under the facts of this case, C1-C4 share in E’s attorney-client privilege and that Cl lacked authority to waive E’s privilege. See supra sections 1, 3. The Court must also consider whether Cl’s waiver waives the privilege of C2-C4. . Likewise, in the criminal context, the Kansas Court of Appeals has ruled that \"where several persons employ an attorney and a third party seeks to have communications made therein disclosed, none of the several persons — not even a majority — can waive this privilege.\" State v. Maxwell, 10 Kan.App.2d 62, 691 P.2d 1316, 1320 (1984). Accord In re Grand Jury Subpoenas, 902 F.2d 244, 248-50 (4th Cir.1990) (applying Virginia law, the court held \"a joint defense privilege cannot be waived without the consent of all parties who share the privilege.”). . The Court is aware of the difficulty its ruling may create at trial, but is confident counsel will be able to resolve any potential problems that may arise." }, { "docid": "23412206", "title": "", "text": "DR 4-101 Preservation of Confidences and • Secrets of a Client. (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his client to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (C) A lawyer may reveal: (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order. (3) The intention of his client to commit a crime and the information necessary to prevent the crime. (4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct. (D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences ■ or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee. . DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C). (B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to" }, { "docid": "18354825", "title": "", "text": "Special Agent, and Revenue Agent knew that Friend had concerns about the case, particularly with the lack of evidence against Bornstein. They knew that information was needed if the case was going to go forward. Their witness would be either Wilkins or Bornstein himself. On the advice of his attorneys, Bornstein consented to make a proffer as suggested at the December 15 conference. On December 23, 1983, Bornstein’s attorneys filed an application with the Court for an order permitting an off-the-record proffer to the Government. The application sought permission to disclose attorney-client confidences and other information necessary to defend himself against the proposed criminal indictment. Authority for the proffer was found in a portion of the Code of Professional Responsibility, DR 4-101(C)(4), which permits an attorney to disclose confidential communications made to him by a client in the attorney’s own self-defense: “A lawyer may reveal ... [confidences or secrets necessary ... to defend himself or his employees or associates against an accusation of wrongful conduct.” This provision affects the limitations otherwise imposed on the attorney by the attorney-client privilege. The Omni defendants vigorously challenged Bornstein’s right to make a proffer and requested the opportunity to intervene, to be heard with respect to the scope, if any, of the breach of the attorney-client privilege, and to limit the use of any privileged disclosures which may have been made. On January 12, 1984, after hearing arguments from Omni, Bornstein, and the Government, Judge Young issued an opinion setting forth the procedures that he would require Bornstein and the Government to follow for the proffer. Judge Young, again recognizing that Bornstein was an attorney, allowed the proffer to proceed but only under certain conditions “which will ensure that the rights of the attorney’s former clients are not compromised, or that, if they are compromised, the clients will be able to seek appropriate remedies.” Judge Young ruled that The government will be ordered to submit to the Court for in camera inspection by January 16, 1984, a list of the questions and the general areas of inquiry it wishes to pursue with the attorney." }, { "docid": "5355020", "title": "", "text": "as applying to issues other than are involved in this motion. City Consumer Services, Inc. v. Horne, 571 F.Supp. 965, 968 (D.Utah 1983); Greenebaum-Mountain Mrtg. Co. v. Pioneer Title Nt’l. Ins. Co., 421 F.Supp. 1348, 1349 (D.Colo.1976). Disciplinary Rules 1-102(A)(2) and (4) provide, respectively, that a lawyer shall not circumvent a disciplinary rule through the actions of another or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The pertinent parts of DR 4-101 state: (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client. (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his client to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (C) A lawyer may reveal:/ (1) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order____ The attorney-client privilege protects the confidentiality of communications between attorney and client made for the purpose of securing legal advice. The privilege was recognized as early as the reign of Elizabeth I. As originally expressed, it belonged to the attorney who, as a punctilio of honor was obliged to protect a client’s secrets. By the late 1700’s, however, this explanation had been replaced by the contemporary one that the privilege belongs to the client. The purpose of the rule is to encourage clients to speak openly with their attorneys when obtaining legal advice. See 8 J. Wigmore, Evidence, §§ 2290, 2291. One of the attorneys whom Arnold & Porter interviewed, George Glasier, was formerly employed by Denver Technological Center, Inc., an entity which has apparently neither existed nor owned any interest in the Tech Center since 1979. Glasier reported to DTC, Inc.’s management regarding" }, { "docid": "23055088", "title": "", "text": "disclosure. (C) A lawyer may reveal: (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order. (3) The intention of his client to commit a crime and the information necessary to prevent the crime. (4) Confidences or secrets necessary to establish or collect his fee or to defend himself' or his employees or associates against an accusation of wrongful conduct. (D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee. . In our recent decision in Armstrong, supra, we noted that “with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, . or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage 625 F.2d at 444, quoting Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979) (footnote and citations omitted) (emphasis added). In the instant, case, because the Epstein firm is defending the still pending suit brought on Cheng’s behalf by LSEP, Gassel is potentially in a position to use Cheng’s confidential information to Cheng’s disadvantage. . The following allegations appeared in the affidavits submitted on Cheng’s behalf: Gassel was personally introduced to Cheng; he “was present at and participated in several discussions with other LSEP attorneys and law students regarding the conduct, strategy, and facts of Mr. Cheng’s case;” he discussed Cheng’s communications with the representing attorney. Weiss affidavit at 4. These allegations were not" }, { "docid": "16754214", "title": "", "text": "for if no such relationship existed, the conversations were not privileged, and the government was under no obligation to minimize interception of the calls. Our review of the record reveals exactly what it revealed to the district court. No attorney-client relationship existed between Johnston and Jarvis at the time of the wiretaps. The defendant- argued that the intercepted conversations were privileged attorney-client communications simply because they involved an attorney. However, “the mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.” Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir.1995), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 781 (1996). In order to be covered by the attorney-client privilege, a communication between a lawyer and client must relate to legal advice or strategy sought by the client. See id.; In the Matter of Grand Jury Subpoena, 697 F.2d 277, 278 (10th Cir.1983); see also McCormicK § 88 (privilege covers communications where client seeks “professional legal advice”). The defendant does not point us to, nor could the district court uncover, any credible evidence in the record that demonstrates that the conversations related to legal advice or strategy sought by Jarvis. Johnston also argues that conversations he had with Jarvis regarding representation of certain of Jarvis’s relatives were privileged. In those cases, however, the “clients” are Jarvis’s relatives, not Jarvis, even if Jarvis paid for the legal representation. See 3 Jaok B. Weinstein & MaegaREt A. Bergee, Weinstein’s Federal Evidence § 503.11[2] (2d ed.1998) (noting that for purposes of the attorney-client privilege, the “client” is “the actual recipient of the services”). We also find no merit in the defendant’s argument that the conversations were privileged because, rather than demonstrating that he was participating in a drug conspiracy, they show that he was actually providing legal advice to Jarvis regarding how to withdraw from a conspiracy. The district court rejected the argument in denying the motion to suppress, and the jury subsequently rejected it as well when it returned a guilty verdict against the defendant. “The attorney-client privilege" } ]

[ { "docid": "23048386", "title": "", "text": "evidence for claimant was “stronger than that for the government,” but that the “substantial evidence” rule necessitated granting of summary judgment for the Secretary. He found substantial evidence to support the Secretary’s determination almost exclusively in Dr. Glendy’s statement of opinion that claimant could do light forms of work. The only question before this court is whether there is substantial evidence to support the findings of the Secretary. Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. Laws v. Celebrezze, 368 F.2d 640, 642 (4 Cir. 1966). If there is substantial evidence on the record as a whole to support the Secretary’s finding we must accept it although we might disagree. Establishment of a disability which would entitle one to benefits under the Act is a two-step process. First, there must be a 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 twelve months; and, second, there must be a factual determination that the impairment renders claimant unable to engage in any gainful employment. Laws v. Celebrezze, supra, 368 F.2d at 643; Brown v. Celebrezze, 367 F.2d 455 (4 Cir. 1966). See Thomas v. Celebrezze, 331 F.2d 541 (4 Cir. 1964). In Underwood v. Ribicoff, 298 F.2d 850 (4 Cir. 1962), this court stated certain elements which must be considered in determining a particular claimant’s ability to engage in substantial gainful activity. These are: “(1) the objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses, and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability testified to by Claimant, and corroborated by his wife and his neighbors, (4) Claimant’s educational background, work history, and present age.” Id. at 851. It would seem that the objective medical facts — the numerous operations of a serious" } ]

[ { "docid": "21182242", "title": "", "text": "the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the ALJ adhered to the appropriate five-step analysis. At step one, the ALJ found that the plaintiff had not engaged in gainful activity since December 28, 1998. At steps two and three, the ALJ found that the medical evidence established the plaintiff was severely impaired by her neck, shoulder, and back injury, but that this impairment did not meet or equal the criteria of any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.l. At step four, the ALJ found that the plaintiff retained the functional capacity to perform her past relevant work as a sewing machine operator. Because the ALJ was satisfied the plaintiff, despite her impairment, could still perform the light work of sewing machine operator, he did not proceed to the fifth step. The plaintiff makes two primary arguments why the ALJ’s conclusions are incorrect: (1) the ALJ wrongly rejected the opinions of the plaintiffs treating physicians; and (2) the ALJ failed to properly assess the plaintiffs credibility and erred in rejecting her subjective complaints. D. Analysis 1. The Treating Physician Rule" }, { "docid": "17884139", "title": "", "text": "summarized this evaluative process: The first step of this process requires the [Commissioner] to determine whether the claimant is presently employed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a “severe impairment” that limits her capacity to work. If the claimant has such an impairment, the [Commissioner] next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a' listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996)). The claimant bears the burden of proof with regard to the first four steps; the Commissioner bears the burden of proving the last step. Brown, 174 F.3d at 62. The Commissioner “must consider” the following in determining a claimant’s entitlement to benefits: “(1) objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjec tive evidence of pain or disability testified to by the claimant or others; (4) the claimant’s educational background, age, and work experience.” Id. (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam)). Here, in reaching his conclusion that plaintiff was not disabled under the SSA, the ALJ adhered to the five-step sequential analysis for evaluating applications for disability benefits. (Id. at 35-40.) At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged disability onset date of January 25, 2007. (Id. at 36.) At step two of the analysis, the ALJ found that plaintiff had severe impairment consisting of “a lumbar spinesprain/strain which results in pain in the lower back.” (Id. at 36.) Although the ALJ did not explicitly find plaintiffs HIV" }, { "docid": "21182241", "title": "", "text": "gainful activity by reason of any medically determinable physical or mental impairment ... 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). The impairment must be of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). Federal regulations set forth a five-step analysis that the Commissioner must follow in evaluating disability claims: 1. The ALJ must consider whether the claimant is currently engaged in substantial gainful activity. 2. If not, the ALJ must consider whether the claimant has a “severe impairment” which limits her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations. 4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the" }, { "docid": "11636917", "title": "", "text": "and despite that the court’s independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.1992). In other words, this Court must afford the Commissioner’s determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984). The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5, 107 S.Ct. 2287; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984). The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant’s job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant’s qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). B. Analysis 1. Commissioner’s Decision The ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2006. The ALJ found that Plaintiff had not engaged in substantial gainful activity since July 4, 2002, the alleged onset date. (T at 11). The ALJ concluded that Plaintiff had the following severe impairment, as defined under the Social Security Act: major depressive disorder. (T at 11). However, the ALJ determined that Plaintiff did not have an impairment" }, { "docid": "23024526", "title": "", "text": "1185, 1191 (3d Cir.1986), and review the ALJ’s factual findings for substantial evidence, see 42 U.S.C. 405(g); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.1992). The Social Security Administration has promulgated a five-step process to determine whether an applicant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner must determine whether the claimant has' engaged in substantial gainful activity since his alleged disability onset date. Id. § § 404.1520(b), 416.920(b). If not, the Commissioner next determines whether the claimant has an impairment or combination of impairments that is severe. Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, the Commissioner considers whether the impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, the Commissioner proceeds to step four. Id. §§ 404.1520(d), 416.920(d). In step four, the Commissioner determines whether, despite the severe impairment, the claimant retains the residual functional capacity to perform his past relevant work. Id. § § 404.1520(e), (f), 416.920(e), (f). The claimant bears the ultimate burden of establishing steps one through four. Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.2004). At step five, the burden of proof shifts to the Social Security Administration to show that the claimant is capable of performing other jobs existing in significant numbers in the national economy, considering the claimant’s age, education, work experience, and residual functional capacity. Id. at 551. In the instant case, the ALJ first determined that Appellant’s prior work attempts were too brief to constitute “substantial gainful activity,” and thus that a finding of disability was not precluded. (R. at 18.) In step two, the ALJ found that Appellant’s “combination of obesity, hypertension and right knee medial meniscus damage has been ‘severe,’ under the regulatory definition of the term, since at least 1995.” (R. at 20.) However, the ALJ concluded that Appellant’s EKG abnormalities, pulmonary disease, ear infections, upper respiratory infections, spinal abnormalities and neurological impairment were not severe. (R. at 26.)" }, { "docid": "5185519", "title": "", "text": "expert, Dennis J. Elliot, also testified at the hearing. The ALJ issued an unfavorable decision on June 20, 2008. The Appeals Council denied plaintiffs request for review on December 17, 2009. Accordingly, the ALJ’s decision became the final decision of the agency. FACTUAL BACKGROUND Plaintiff was 32 years old at the time of the hearing. Plaintiff was placed in special education classes at an early age, and completed high school. Plaintiff attended Southwestern Oregon Community College and took basic adult education courses. Plaintiff has worked as a teacher’s aide, a courtesy clerk/grocery bagger, a deli clerk, a fast food worker, and as a laundress in a hospital. At the time of the hearing, plaintiff was working part-time at a grocery store. Plaintiff alleges disability due to asthma, attention deficit disorder, dyslexia, a developmental disorder, back pain, and severe eczema. THE ALJ’S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). The burden shifts to the Commissioner at step five to show that a significant number of jobs exist in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287. The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416(i)(3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). At step one, the ALJ presumed for purposes of the decision that plaintiff has not engaged in substantial gainful activity since July 19, 2006, her amended alleged onset of disability. See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe impairments: asthma and a cognitive disorder with" }, { "docid": "22386772", "title": "", "text": "fails to show that her impairments are “severe,” she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant’s impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994). If the claimant is unable to resume her former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity. The ALJ must analyze the cumulative effect of all the claimant’s impairments in determining whether she is capable of per forming work and is not disabled. See 20 C.F.R. § 404.1523. The ALJ will often seek the assistance of a vocational expert at this fifth step. See, [sic] Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984). 186 F.3d at 428. In this case, the ALJ undertook the five-step sequential evaluation in determining that Fargnoli was not disabled. The ALJ made the following findings: (1) Fargnoli had not engaged in any substantial gainful activity since the alleged onset date of disability; (2) he suffers from a severe back impairment; (3) his back impairment, although severe, does not meet or equal the criteria of the Listing of Impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) he retains the residual functional capacity to engage in" }, { "docid": "9274873", "title": "", "text": "416.920(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel , 198 F.3d 45, 51 (2d Cir. 1999) ; Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's residual functional capacity (RFC), age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1512(f) (2015), 404.1560(c), 406.912(f) (2015), 416.960(c). \"Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden.\" Lacava v. Astrue , 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted , 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012). Prior to steps four and five, the ALJ must determine the claimant's RFC, that is, the \"most [a claimant] can still do despite [her] limitations.\" 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. Id. §§ 404.1545(a)(3), 416.945(a)(3). B. Application of Standards At step one, the ALJ found that plaintiff had \"not engaged in substantial gainful activity since February 22, 2014, the alleged onset date.\" (R. 15.) At step two, the ALJ found that plaintiff had the severe impairments of \"[d]egenerative disc disease, meniscal tears of bilateral knee, right hip arthritis, carpal tunnel syndrome, hypertension, vertigo, and obesity.\" (Id. ) At step three, the ALJ found that plaintiff did \"not have an impairment or combination of impairments\" meeting or equaling \"the severity of one of the listed impairments of 20 CFR Part 404, Subpart P, Appendix 1.\" (R. 15-16.) The ALJ considered Listings 1.02 (\"Major dysfunction of a joint(s)\"), 1.03 (\"Reconstructive surgery" }, { "docid": "10816836", "title": "", "text": "severity that she is unable to do her previous work and cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B). In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination of non-disability at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. 4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920. Here, in applying the five-step sequential evaluation, ALJ Brady made the following determinations. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 22, 2006, the alleged onset date of her disability. (Tr. 19). At the second step, the ALJ found that Plaintiff has the following severe impairments: history of herniated nucleus pulposus of the lumbar spine, degenerative disc disease of the lumbar spine, obesity, and fibromyalgia. (Id.). The ALJ also" }, { "docid": "20714549", "title": "", "text": "steps of the analysis, but at step five the burden shifts to the Social Security Administration to demonstrate that the claimant is able to perform “other work” based on his residual functional capacity, age, education, and past work experience. Butler v. Barnhart, 353 F.3d 992, 997 (D.C.Cir.2004). Plaintiffs application for a period of disability and disability insurance was denied both initially and upon reconsideration. A.R. 19. Plaintiff then requested a hearing before an ALJ. Id. That hearing was held on August 21, 2009. Id. at 19, 33-69. In a decision dated February 24, 2010, the ALJ, applying the five-step analysis, determined that Plaintiff was not disabled within the meaning of the Act and denied the requested benefits. See generally id. at 16-30. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 31, 2005, the alleged onset date and also his date of retirement from the USAF. The ALJ noted that Plaintiff was attending college which was paid for by the U.S. Department of Veterans Affairs (“VA”). Id. at 21. At step two, the ALJ found that Plaintiff had the following severe impairments: back disorder, left foot drop, and affective disorder. Id. Step three of this analysis requires the ALJ to compare the claimant’s impairments to the Social Security Administration’s Listing of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairments meet or are medically equal to a listed impairment, the ALJ will find the claimant is disabled. Id. The ALJ compared the Plaintiffs orthopedic impairments to Listing 1.04, and found that Plaintiffs impairments did not meet the criteria because there was no evidence of persistent motor, sensory, or reflex loss, of sitting and supine straight leg raising or of inability to ambulate effectively. A.R. 22. The ALJ also found that Plaintiffs impairments did not meet the criteria of Listing 1.02, pertaining to major dysfunction of a joint, because there was no evidence of an inability to perform fine or gross movements effectively. Id. Next, the ALJ found that Plaintiffs mental impairments did not meet or medically equal the criteria of Listing 12.04," }, { "docid": "14602827", "title": "", "text": "and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). ■ The following five steps are followed: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. 2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, .without considering vocational factors such as age, education, and work experience. 4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920. C. Analysis of ALJ’s Determination 1. Step One In applying the five-step sequential analysis at the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 1, 2009, the alleged onset date. (Dkt. 1-2 at 7). The parties do not contest this determination and it is supported by substantial evidence. 2.Step Two At the second step, the ALJ found that Plaintiff had the following severe impairments: obesity, depression, anxiety, and bipolar disorder. (Id.). The ALJ also noted that Plaintiff had asthma, but found this" }, { "docid": "22575782", "title": "", "text": "Shalala, 19 F.3d 329, 333-34 (7th Cir.1994). In order to qualify for disability benefits, a claimant must be found “disabled,” under the SSA. 42 U.S.C. § 423(a)(1)(E). The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. at § 423(d)(1)(A). The Social Security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. The ALJ must consider whether: (1) the claimant is presently employed; (2) the claimant has a severe impairment or combination of impairments; (3) the impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) the claimant’s residual functional capacity leaves him unable to perform his past relevant work; and (5) the claimant is unable to perform any other work existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520, 416.920. A finding of disability requires an affirmative answer at either step three or step five. The claimant bears the burden of proof at steps one through four, after which at step five the burden shifts to the Commissioner. See Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir.2004). The ALJ found that Taylor’s impairments met regulation listings on January 4, 1994, and that Taylor was disabled as of that date. Unfortunately, that date is well beyond the expiration of his insured status, and thus this finding did not in itself resolve the case. The ALJ therefore properly turned to the question whether Taylor’s impairments rendered him disabled prior to March 31, 1991. Where, as here, a claimant is found disabled but it is necessary to decide whether the disability arose at an earlier date, the ALJ is required to apply the analytical framework outlined in SSR 83-20 to determine the onset date of disability. See Perkins v. Chater, 107 F.3d 1290, 1295 (7th Cir.1997); Lichter v. Bowen, 814" }, { "docid": "12735856", "title": "", "text": "a “severe impairment” which limits her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the . ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations. 4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts, (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). C. Analysis 1.. The Treating Physician Rule The ALJ is required to accord special evidentiary weight to the opinion of the treating physician, as long as the treating physician’s opinion is supported by medically acceptable techniques, results from frequent examinations, and the administrative record. See Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir.1998). The “treating physician rule,” as it is known, “mandates that the medical opinion of the claimant’s treating physician [be] given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence.” Shaw v. Chater; 221 F.3d 126, 134 (2d Cir.2000); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Clark, 143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563," }, { "docid": "22575783", "title": "", "text": "national economy. 20 C.F.R. §§ 404.1520, 416.920. A finding of disability requires an affirmative answer at either step three or step five. The claimant bears the burden of proof at steps one through four, after which at step five the burden shifts to the Commissioner. See Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir.2004). The ALJ found that Taylor’s impairments met regulation listings on January 4, 1994, and that Taylor was disabled as of that date. Unfortunately, that date is well beyond the expiration of his insured status, and thus this finding did not in itself resolve the case. The ALJ therefore properly turned to the question whether Taylor’s impairments rendered him disabled prior to March 31, 1991. Where, as here, a claimant is found disabled but it is necessary to decide whether the disability arose at an earlier date, the ALJ is required to apply the analytical framework outlined in SSR 83-20 to determine the onset date of disability. See Perkins v. Chater, 107 F.3d 1290, 1295 (7th Cir.1997); Lichter v. Bowen, 814 F.2d 430, 434-37 (7th Cir.1987). SSR 83-20 defines the onset date of disability as “the first day an individual is disabled as defined in the Act and the regulations.” SSR 83-20 at *1. In the case of slowly progressive impairments, SSR 83-20 does not require an impairment to have reached the severity of an impairment listed in the regulations, as required under step three, but “[t]he onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in SGA (or gainful activity) for a continuous period of at least 12 months or result in death.” SSR 83-20 at *3; see Armstrong v. Comm’r, 160 F.3d 587, 590 (9th Cir.1998) (stating that the onset date is determined by the date when the impairment became disabling and not just present); Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir.1989) (same). The ALJ did not refer to SSR 83-20 specifically in his decision, but this omission by itself is" }, { "docid": "99290", "title": "", "text": "claimant’s age, education, and work experience, engage in any other kind of substantial gainful work existing in the national economy, regardless of whether such work exists in the immediate area in which claimant lives, or whether a specific job vacancy exists for the claimant, or whether the claimant would be hired if he or she applied for work. 42 U.S.C. § 423(d)(2)(A). In making an eligibility determination, the ALJ must consider four sources of evidence: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s educational background, age, and work experience.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999). In evaluating an application for disability insurance, an ALJ must follow the five-step procedure for finding disability set forth in the agency regulations implementing the Social Security Act. 20 C.F.R. § 404.1520; Diaz v. Shalala, 59 F.3d 307, 311 n.2 (2d Cir.1995). First, the ALJ must determine whether the claimant is presently engaged in substantial gainful activity. If not, the ALJ must determine whether the claimant has a “severe impairment” that significantly limits his or her ability to engage in basic work activities. If the claimant does suffer from such an impairment, the ALJ must determine whether this impairment “meets or equals a listed impairment” as contained in Appendix 1 of the regulations. If this third criteria is satisfied, the claimant is presumed to be disabled. If, however, the third criteria is not met, a presumption of disability does not arise, and the ALJ must determine whether or not the claimant is able to perform his or her past relevant work. If this fourth criteria is satisfied, the fifth step requires the ALJ to determine whether the claimant is capable of performing any other work. In this case, the ALJ, after proceeding through each of the steps listed above, determined that plaintiff was not disabled. First, the ALJ found that plaintiff has not engaged in any substantial gainful activity since the alleged onset of her disability. This finding" }, { "docid": "20714548", "title": "", "text": "20 C.F.R. § 404.1505(a). Substantial gainful work activity is work activity that involves doing significant physical or mental activities and is the kind of work that is usually done for pay or profit. 20 C.F.R. § 404.1572(a)-(b). In making a disability determination, the ALJ is required to use a five-step sequential analysis examining: (1) the claimant’s recent work activity, (2) the severity and duration of the claimant’s impairments, (3) whether the claimant’s impairments are medically equivalent to those contained in the Listing of Impairments promulgated by the Social Security Administration, (4) the claimant’s residual functional capacity and ability to perform past work, and (5) the claimant’s ability to perform jobs reasonably available in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Blackmon v. Astrue, 719 F.Supp.2d 80, 82-83 (D.D.C.2010). The ALJ is to consider (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) the plaintiffs age, education, and work history. Blackmon, 719 F.Supp.2d at 88-89. The claimant bears the burden of proof with respect to the first four steps of the analysis, but at step five the burden shifts to the Social Security Administration to demonstrate that the claimant is able to perform “other work” based on his residual functional capacity, age, education, and past work experience. Butler v. Barnhart, 353 F.3d 992, 997 (D.C.Cir.2004). Plaintiffs application for a period of disability and disability insurance was denied both initially and upon reconsideration. A.R. 19. Plaintiff then requested a hearing before an ALJ. Id. That hearing was held on August 21, 2009. Id. at 19, 33-69. In a decision dated February 24, 2010, the ALJ, applying the five-step analysis, determined that Plaintiff was not disabled within the meaning of the Act and denied the requested benefits. See generally id. at 16-30. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 31, 2005, the alleged onset date and also his date of retirement from the USAF. The ALJ noted that Plaintiff was attending college which was paid for by the U.S. Department of Veterans Affairs (“VA”). Id." }, { "docid": "9134138", "title": "", "text": "and meets the durational requirement (id. §§ 404.1509, 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity (\"RFC\"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e). The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant \"retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy\" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R § 404.1560(c). DISCUSSION I. The ALJ's Decision In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on September 30, 2013. (Dkt. 8 at 18). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since February 27, 2013, the alleged onset date. (Id. ). At step two, the ALJ found that Plaintiff suffered from the severe impairments of bipolar disorder, depression, and anxiety. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypertension, prostatism/hematuria, and frequent urination were non-severe. (Id. at 19). With respect to Plaintiff's representations that he suffered from eczema, dermatitis, and mild sleep apnea, the ALJ concluded that these were not medically determinable impairments. (Id. ). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met" }, { "docid": "17483640", "title": "", "text": "about symptoms alone may not establish a disability, the ALJ follows a two-step analysis for evaluating assertions of pain and other limitations. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). First, the ALJ must weigh whether “the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). If the answer at the first step of the analysis is yes, the ALJ proceeds to the second step and considers “the extent to which [the claimant’s] symp toms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citing 20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). Because “an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone,” the ALJ may take into account a variety of other considerations as evidence. Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)). These include: a claimant’s daily activities; the location, duration, frequency, and intensity of the claimant’s pain or other symptoms; factors that aggravate the symptoms; treatment and medication necessitated by the pain or other symptoms and their effects; other alleviating measures taken by the claimant; and other factors that relate to the claimant’s functional limitations and restrictions stemming from pain or other symptoms. Id. B. The ALJ’s Decision In his March 13, 2013 decision, the ALJ concluded that Craig was not disabled as defined by the Social Security Act. R. at 21. Following the five-step inquiry, at step one the ALJ found that Craig had not been engaged in substantial gainful activity since January 1, 2011, the amended onset date of Craig’s impairments. Id. at 17. At step two, the ALJ found that Craig had the severe impairment of diabetes mellitus. Id. The ALJ also found that Craig’s mental impairment of mood disorder was “nonsevere” because it did not cause more than minimal limitation in her ability to perform basic mental work activities." }, { "docid": "17884140", "title": "", "text": "Commissioner bears the burden of proving the last step. Brown, 174 F.3d at 62. The Commissioner “must consider” the following in determining a claimant’s entitlement to benefits: “(1) objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjec tive evidence of pain or disability testified to by the claimant or others; (4) the claimant’s educational background, age, and work experience.” Id. (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam)). Here, in reaching his conclusion that plaintiff was not disabled under the SSA, the ALJ adhered to the five-step sequential analysis for evaluating applications for disability benefits. (Id. at 35-40.) At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged disability onset date of January 25, 2007. (Id. at 36.) At step two of the analysis, the ALJ found that plaintiff had severe impairment consisting of “a lumbar spinesprain/strain which results in pain in the lower back.” (Id. at 36.) Although the ALJ did not explicitly find plaintiffs HIV to be a severe impairment, the ALJ considered plaintiffs HIV at steps three and four of the inquiry. In other words, if plaintiffs HIV was not a severe impairment under step two, that would end the ALJ’s inquiry with respect to plaintiffs HIV and there would be no need for the ALJ to proceed to determine whether it is a listed impairment under step three and whether plaintiff possesses the residual functional capacity to perform her past relevant work under step four. Thus, the Court concludes that the ALJ found plaintiffs HIV to be a severe impairment and its absence from the decision is an inadvertent typographical error. At step three of the analysis, the ALJ determined that plaintiff did not have an impairment or combination of impairments that “meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” (AR at 36.) With respect to plaintiffs back impairment, the ALJ noted that there was “no evidence of nerve" }, { "docid": "5185520", "title": "", "text": "416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). The burden shifts to the Commissioner at step five to show that a significant number of jobs exist in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287. The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416(i)(3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). At step one, the ALJ presumed for purposes of the decision that plaintiff has not engaged in substantial gainful activity since July 19, 2006, her amended alleged onset of disability. See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe impairments: asthma and a cognitive disorder with extremely low intellectual functioning. See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ found that plaintiffs impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform a full range of work at all exertional levels with the following nonexertional limitations: she is unable to follow complex or detailed instructions; she is unable to perform multiple tasks simultaneously; she should receive job instructions by demonstration, but can utilize lists to help remember things; she is unable to tolerate temperatures above normal room temperature; she is unable to tolerate excessive humidity; she needs to avoid skin irritants such as chemicals or disinfectants; she needs to avoid smoke and fumes in excessive amounts. See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929. At step four, the ALJ found plaintiff capable of performing her past relevant work (PRW) as a teacher’s aide II, courtesy elerk/bagger, and delicatessen cutter/slicer. See 20 C.F.R. §§" } ]

[ { "docid": "22454381", "title": "", "text": "the transmission of broadcast signals by cable, though without pre-empting regulation of similar matters by state or local franchising authorities. Cable Television Report and Order, 36 F. C. C. 2d 143, on reconsideration, 36 F. C. C. 2d 326 (1972), aff’d sub nom. American Civil Liberties Union v. FCC, 523 F. 2d 1344 (CA9 1975). Within two years, however, the Commission became convinced from its experience with conflicting federal and local technical standards that there is “a compelling need for national uniformity in cable television technical standards” which would require it to pre-empt the field of signal-quality regulation in order to meet the “necessity to rationalize, interrelate, and bring into uniformity the myriad standards now being developed by numerous jurisdictions.” Cable Television Report and Order, 49 F. C. C. 2d 470, 477, 480 (1974). The Commission explained that a multiplicity of mandatory and nonuniform technical requirements undermined “the ultimate workability of the over-all system,” could have “a deleterious effect on the development of new cable services,” and could “seriously imped[e]” the “development and marketing of signal source, transmission, and terminal equipment.” Id., at 478-479. In 1984, the Court approved the pre-emptive authority that the Commission had asserted over the regulation of cable television systems. We held that in the Communications Act of 1934, Congress authorized the Commission “to regulate all aspects of interstate communication by wire or radio,” including the subsequently developed medium of cable television, and that the Commission’s authority “extends to all regulatory actions ‘necessary to ensure the achievement of the Commission’s statutory responsibilities.’” Crisp, supra, at 700, quoting FCC v. Midwest Video Corp., 440 U. S. 689, 706 (1979). Although the state law that was invalidated in Crisp regulated commercial advertising on cable television, rather than the technical quality of cable television signals, the Court recognized that for 10 years the Commission had “retained exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards.” Crisp, supra, at 702. A few months after the Court’s decision in Crisp, Congress enacted the Cable Communications Policy Act of 1984 (Cable Act or Act), 98 Stat." } ]

[ { "docid": "12718367", "title": "", "text": "taxpayers. That harm may be caused by the sincere who would do good is but a price to be paid, lest no good be ever done. In this particular case, however, the circumstances tend to confirm the wisdom animating the Sherman Act, its national policy insistence on open, free competition, and its prohibition against unnecessary interference therewith. . Affirmance on First Amendment grounds avoids the constitutionality-risking interpretation of the Colorado constitution’s “home rule” provisions found necessary by the majority to support absolute immunity of Colorado cities from the Sherman Act. Further, affirmance on First Amendment grounds avoids the concern expressed by Mr. Justice Blackmun in City of Lafayette for the effect on municipalities and their citizens of the Sherman Act’s treble damage provisions. The Colorado Attorney General’s brief for Amicus State of Colorado, concentrating on Sherman Act considerations, “assumed arguendo that the first amendment may limit, but does not wholly prohibit” Boulder’s authority. . Cable TV is a First Amendment speaker. See Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir. 1978) (aff’d on other grounds sub nom. FCC v. Midwest Video, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979); Home Box Office, Inc. v. FCC, 567 F.2d 9, 46 (D.C.Cir. 1977) cert. den. 434 U.S. 829, 98 S.Ct. Ill, 54 L.Ed.2d 89 (1977); Greater Fremont, Inc. v. City of Fremont, 302 F.Supp. 652 (N.D.Ohio 1968) aff’d sub nom. Wonderland Ventures, Inc. v. City of Sandusky, 423 F.2d 548 (6th Cir. 1970); Weaver v. Jordan, 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289 (1966); and Television Transmission, Inc. v. Public Utilities Commission, 47 Cal.2d 82, 301 P.2d 862, 865 (1956). . Concerning the First Amendment, the trial judge said: Obviously there are wider concerns, including interstate commerce, giving rise to some uncertainty about the power of the state government in this regard, both in terms of an obstruction to interstate commerce, and with respect to the First Amendment rights of communicators. There are two other aspects of this case which are deserving of preliminary observations at this time. The plaintiff has attempted to use the shield" }, { "docid": "3600428", "title": "", "text": "(vii). The Boulder County Zoning Resolution stands as an obstacle to the accomplishment and execution of the federal objective of promoting amateur communication. Since the FCC’s statutorily-authorized regulations preempt any state or local laws that conflict with or frustrate the promotion of amateur radio communication, City of New York v. FCC, 486 U.S. 57, 64, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988); Dantus v. First Fed. Sav. & Loan Ass’n, 502 F.Supp. 658, 661 (D.Colo.1980), the Boulder County Zoning Resolution must fall. IV. In 1934, Congress created the Federal Communications Commission to regulate interstate and foreign communication. 47 U.S.C. § 151 (1962). Based on this authority, the FCC promulgated regulations concerning amateur radio service. 47 C.F.R. § 97 (1989). However, conflicts emerged between federal regulation of amateur radios and local zoning laws. On July 16, 1984, the American Radio Relay League, Inc. requested that the FCC issue a declaratory ruling to delineate the authority state and local zoning and regulatory boards had over federally-licensed radio facilities. Pursuant to this request, the FCC issued a ruling on September 19, 1985. In the Matter of Fed. Preemption of State and Local Regulations Pertaining to Amateur Radio Serv. (‘‘PRB-1”), 101 F.C.C.2d 952, Fed.Reg. 38,813 (1985). The Commission determined that a limited preemption policy was warranted. Id. at ¶ 24. It decided to strike a balance between federal and state interests, stating that “local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent minimum practical regulation to accomplish the local authority’s legitimate purpose.” Id. at 11 25. Other federal courts have addressed this ruling and have upheld the preemptive effect of PRB-1. Izzo v. Borough of River Edge, 843 F.2d 765, 768 (3d Cir.1988); Themes v. City of Lakeside Park, 779 F.2d 1187, 1188-89 (6th Cir.1986); MacMillan v. City of Rocky River, 748 F.Supp. 1241, 1247-48 (N.D.Ohio 1990); Williams v. City of Columbia, 707 F.Supp. 207, 210-11 (D.S.C.1989), aff'd, 906 F.2d 994 (4th Cir.1990); Howard v. City of Burlingame, No. C-87-5329 (N.D.Cal. July 29, 1988)" }, { "docid": "2775823", "title": "", "text": "Abandoning its initial view of cable as an auxiliary service that merely supplemented broadcasting by improving reception in outlying areas, the Commission now recognized cable as a legitimate, independent vehicle for providing alternative video services to the public. Economic Inquiry Report, 71 FCC2d at 645-646. With respect to the specific question of the continued value of the distant-signal and syndicated-exclusivity rules, the Commission found that its general economic analysis had failed to substantiate the intuitive fears on which the rules had been premised since the mid-1960’s. Upon examination of the economic evidence, we conclude that competition from cable television does not pose a significant threat to conventional television or to our overall broadcasting policies. * * [Ajudience losses attributable to increased competition from cable television take place in a context of offsetting factors. Increases in population and in the level of economic activity result in a fairly steady growth in the demand for advertising exposures and in station revenues. Thus, the ability of stations to maintain existing levels of service to their communities is likely to be unimpaired in the absence of our distant signal carriage rules. Id. at 661. Stating that the comprehensive nature of its analysis enabled it to speak “with a clarity[] which is uncommon in matters of public policy,” the Commission found that “continued regulatory intervention is not merely unnecessary, it is counterproductive.” Id. at 659. B. Prior Constitutional Challenges to Cable Regulations On several occasions the Supreme Court has addressed questions concerning the breadth of the FCC’s jurisdiction over cable television. See United States v. Southwestern Cable Co., supra, 392 U.S. at 178, 88 S.Ct. at 2005 (generally approving FCC jurisdiction over cable if “reasonably ancillary” to its regulation of broadcast television); United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972) (Midwest I) (finding rule requiring cable operators to originate local programming within FCC’s jurisdiction); FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (Midwest II) (striking down as beyond the FCC’s jurisdiction rules requiring cable operators to make channels available for" }, { "docid": "18863573", "title": "", "text": "an actual conflict between federal and state law even though Congress is silent, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); and (4) field preemption, which results from a determination that Congress intended to remove an entire subject from state regulatory authority, Fidelity Federal Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Preemption may also result from action taken by a federal agency acting within the scope of its congressionally delegated authority. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984). By applying the basic legal principles underlying the doctrine of preemption to PRB-1, we reach the following conclusions. The FCC labeled PRB-1 as a “limited preemption policy”, and specifically stated it would not specify any height limitation, but clarified that local authorities may not preclude amateur communications. Because the FCC explicitly declined to regulate the height of radio antenna towers, such regulation rests with the local zoning authorities provided they reasonably accommodate amateur communications with the minimum practicable regulation necessary to accomplish their purposes. Federal courts have given effect to the limited preemption policy of PRB-1. In Thernes v. City of Lakeside Park, 779 F.2d 1187, 1189 (6th Cir.1986), it was recognized that a ban upon the erection of amateur radio station antennas may contravene federal law. Courts have subsequently held that any local ordinance which absolutely prohibits antennas over a certain height is necessarily preempted. See Evans v. Board of County Comm’rs, 752 F.Supp. at 977; Bodony v. Incorporated Village of Sands Point, 681 F.Supp. 1009, 1013 (E.D.N.Y.1987). Moreover, courts have -held that locál ordinances are preempted when, as applied, they do not' provide for the reasonable accommodation of amateur radio communications. MacMillan v. City of Rocky River, 748 F.Supp. 1241, 1248 (N.D.Ohio 1990); Bulchis v. City of Edmonds, 671 F.Supp. 1270, 1274 (W.D.Wash.1987). Although courts have found local ordinances preempted when a height limitation is imposed, they recognize that zoning is typically a function" }, { "docid": "3278222", "title": "", "text": "create majority-minority districts voluntarily is considerably broader than a federal court's power to order it to do so). . The United States as amici suggests that the redistrieting plan at issue here should be judged under the intermediate scrutiny standard applied to \"benign” race-based measures mandated by Congress in Metro Broadcasting v. Federal Communications Comm’n, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (\"substantially related” to the achievement of an \"important” governmental interest that is within the scope of Congress’ legislative power), rather than the more exacting strict scrutiny standard generally applied to such measures when they are under taken by state and local governments. The argument is apparently that because the Plan was enacted in direct response to a § 5 objection from the United States Justice Department, to whom Congress has delegated authority to enforce the Voting Rights Act, and was later approved by the Justice Department in the § 5 preclearance process, it was “mandated by Congress\" in the same sense as the minority-preference policies adopted and maintained by the FCC in Metro Broadcasting, and thus should be evaluated under the more forgiving intermediate scrutiny standard announced in that case. We disagree. Even if Metro Broadcasting’s holding that race-based affirmative action programs mandated by Congress are not subject to strict scrutiny survives the retirement of Justices Brennan and Marshall, we do not think it can properly be applied in this context. The racial preference policies at issue in Metro Broadcasting had been specifically approved, indeed mandated, by Congress, in their exact form: though the FCC had developed them on its own, Congress had thereafter specifically directed the FCC to maintain them. See 497 U.S. at 560, 563, 110 S.Ct. at 3006, 3008. We do not think a race-based redistrieting plan enacted by a state can be said to cariy the same imprimatur of congressional approval, even when it is done with the purpose of complying with the Voting Rights Act or the Justice Department’s interpretation thereof. The Voting Rights Act itself does not command a state to adopt a particular redistrieting plan; instead, it simply" }, { "docid": "3600427", "title": "", "text": "enacting a federal statute, expresses a clear intent to preempt state law, (ii) an outright conflict exists between federal and state law, (iii) compliance with both federal and state law is in effect physically impossible, (iv) there is an implicit barrier within federal law to state regulation in this area, (v) federal legislation is so comprehensive as to occupy an entire field of regulation, (vi) state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress, or (vii) federal regulations promulgated within the scope of congressionally-delegated agency authority have any of the above effects. Frontier Airlines, Inc. v. United Air Lines, Inc., No. 89-F-645, slip op. at 13-14 (D.Colo. Aug. 14, 1989) (citing Louisiana Pub. Serv. Comm’n, 476 U.S. at 368-69, 106 S.Ct. at 1898-99); see also California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989). The County has argued that its zoning regulations should not be preempted by federal law. The court finds however that the instant case falls under (vi) and (vii). The Boulder County Zoning Resolution stands as an obstacle to the accomplishment and execution of the federal objective of promoting amateur communication. Since the FCC’s statutorily-authorized regulations preempt any state or local laws that conflict with or frustrate the promotion of amateur radio communication, City of New York v. FCC, 486 U.S. 57, 64, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988); Dantus v. First Fed. Sav. & Loan Ass’n, 502 F.Supp. 658, 661 (D.Colo.1980), the Boulder County Zoning Resolution must fall. IV. In 1934, Congress created the Federal Communications Commission to regulate interstate and foreign communication. 47 U.S.C. § 151 (1962). Based on this authority, the FCC promulgated regulations concerning amateur radio service. 47 C.F.R. § 97 (1989). However, conflicts emerged between federal regulation of amateur radios and local zoning laws. On July 16, 1984, the American Radio Relay League, Inc. requested that the FCC issue a declaratory ruling to delineate the authority state and local zoning and regulatory boards had over federally-licensed radio facilities. Pursuant to this request, the FCC issued a" }, { "docid": "1051383", "title": "", "text": "systems that were part of the national satellite network. Id. The Commission chose not to impose entry restrictions of its own, believing that open entry policies in the satellite field would create a more diverse and competitive telecommunications environment. Id. at 1433. Petitioners do not challenge the general authority of the Commission to preempt state and local regulation of cable television in appropriate circumstances. Rather, they contend that, in this particular instance, because the Commission has failed to show that preemption is necessary “to ensure the achievement of the Commission’s statutory responsibilities,” FCC v. Midwest Video Corp., 440 U.S. 689, 706, 99 S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979), it has acted beyond its authority. To support this contention, petitioners advance two closely related arguments. First, they contend that preemption of state and local regulation of SMATV is a reversal of well-established policy and therefore “presumptively” contrary to the achievement of the Commission’s statutory responsibilities. Second, petitioners contend that the policies underlying the Communications Act cannot be advanced by the Commission’s determination to allow SMATV to enter the telecommunications marketplace unregulated. We reject both of these arguments and conclude that the Commission’s action is not only consistent with prior Commission policy, but also a “ ‘reasonable accommodation of conflicting policies’ that are within the agency’s domain.” Crisp, 104 S.Ct. at 2701 (citation omitted). 1. The Allocation of Regulatory Responsibilities Between the Commission and State and Local Governments. During the past twelve years, the Commission has given local jurisdictions significant control over the franchising of traditional cable systems. Petitioners contend that the Commission’s refusal to give state and local governments the same amount of authority over SMATV as they have over traditional cable is a reversal of well-established policy. Careful review of Commis sion precedent, however, reveals that the petitioners’ argument ignores the critical distinction the Commission has made between cable television systems that use public rights-of-way and systems, like SMATV, that are operated solely on private property. The Commission recognized in 1972 that direct federal licensing of the thousands of cable systems operating in large and small communities throughout the" }, { "docid": "17642815", "title": "", "text": "10(b), and the Commission’s regulations thereunder, posed such serious constitutional questions that the Commission ought to reconsider the matter in light of the unconstitutionality of sections 10(a) and 10(e). Alliance for Community Media v. FCC, 10 F.3d 812, 823-24, 829 (D.C.Cir.1993). The full court vacated the panel’s judgment. Alliance for Community Media v. FCC, 15 F.3d 186 (D.C.Cir.1994). On rehearing the case in banc, we sustain section 10 and the Commission’s regulations. I The Commission gradually began asserting jurisdiction over a form of cable television— community antenna television systems — in the early 1960’s. Through that decade and into the next, the pace of regulation intensified. By 1980, however, the trend had reversed itself. The cable industry experienced substantial federal deregulation, driven in no small measure by the Supreme Court’s decision in FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). The Court there struck down, as beyond the Commission’s statutory authority over broadcasting, its 1972 rules (as modified by its 1976 rules) requiring cable operators to dedicate four of their “channels for public, governmental, educational, and leased access.” Id. at 691, 99 S.Ct. at 1437. Cable operators “own the physical cable network and transmit the cable signal to the viewer.” Turner Broadcasting Sys., Inc. v. FCC, — U.S. -, -, 114 S.Ct. 2445, 2452, 129 L.Ed.2d 497 (1994). By “transferr[ing] control of the content of access cable channels from cable operators to members of the public,” the Commission had — the Court held in Midwest Videotransformed cable operators into “common carriers.” 440 U.S. at 700, 701, 99 S.Ct. at 1441, 1442. Congress had prohibited the Commission from imposing common-carrier obligations on broadcasters because this would intrude on their editorial control over programming. Id. at 705, 99 S.Ct. at 1444. Cable operators were situated similarly. They shared “with broadcasters a significant amount of editorial discretion regarding what their programming will include,” and, like broadcasters, could not be burdened with common carrier obligations without Congress’ express direction. Id. at 707, 709, 99 S.Ct. at 1445, 1446. The Cable Communications Policy Act of 1984 revived much" }, { "docid": "1637062", "title": "", "text": "F.3d 88 (1st Cir.1999), a carrier challenged city policy regarding the use of underground cable and circuit conduits. In examining the “competitively neutral” requirements of § 253(c), the court held: that the term “competitively neutral” in § 253(c) imposes — at most — a negative restriction on local authorities’ choices regarding the management of their rights of way. This means that the statute would not require local authorities to purposefully seek out opportunities to level the telecommunications playing field. If, however, a local authority decides to regulate for its own reasons ..., § 253(c) would require that it do so in a way that avoids creating unnecessary competitive inequities among telecommunications providers. Id. at 105. The court assumed that the city’s oral policy which resulted in “equivalent notice obligations for all market participants” satisfied the competitively neutral requirement. Id. at 103 (emphasis added). Petitioners spend the majority of their briefs arguing that the Wyoming statute should not be preempted because it accords with the universal service policy of the federal Telecommunications Act. However, it is a well established rule of statutory construction that general policy does not trump specific legislative provisions. While we empathize with Wyoming’s desire to achieve statewide modern telecommunications service, § 253 governs this case and requires preemption. Petitioners further argue (1) that preemption is only possible when Congress has passed legislation occupying an entire field of regulation; (2) the FCC failed to give proper notice of the proceedings; and (3) the FCC exceeded its authority by preempting more than was “necessary” to enforce § 253. These arguments are mer-itless. First, “[p]re-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law....” Louisiana Pub. Serv. Comm. v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). § 253 is a clear example of this. See 47 U.S.C. § 253(d) (“the Commission shall preempt the enforcement of such statute”) (emphasis added). Second, the FCC gave proper notice of its contemplated action in two Public Notices, which specifically stated that the FCC was contemplating preempting both the Wyoming PSC’s Denial" }, { "docid": "4968075", "title": "", "text": "PER CURIAM: In 2007, the Town of Clarkstown in Rockland County, New York (the “Town”), passed a local law governing the installation of wireless telecommunications facilities. The law was intended to give the Town the ability to control visual and aesthetic aspects of wireless telecommunications facilities within the Town, and, in particular, it sought to implement a “preference” in residential areas for smaller and less intrusive antennas. Four national telecommunications service providers brought this action below to challenge the law on the grounds that it was preempted by federal communications law. The district court agreed, and held that the law was preempted. We affirm. BACKGROUND A. Federal Regulation of Telecommunications The field of telecommunications — the electronic transmission of sounds, words, and images, usually over a great distance — has long been the subject of federal regulation. In 1910, Congress passed the Wireless Ship Act of June 24, 1910, 36 Stat. 629, and the Radio Acts of 1912 and 1927 followed, 37 Stat. 302; 44 Stat. 1162. See Nat’l Broad. Co. v. United States, 319 U.S. 190, 210-13, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) (reviewing history of radio acts). In 1934, Congress passed the Communications Act of 1934, 48 Stat. 1064, and thereby created the Federal Communications Commission (the “FCC”). In doing so, Congress sought to create “a unified and comprehensive regulatory system for the industry,” “to protect the national interest involved in the new and far-reaching science of broadcasting.” Nat’l Broad. Co., 319 U.S. at 213-14, 63 S.Ct. 997 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 137, 60 S.Ct. 437, 84 L.Ed. 656 (1940)). Congress gave the FCC the exclusive authority to grant licenses to telecommunications providers, see 47 U.S.C. § 151, and it “intended the FCC to possess exclusive authority over technical matters related to radio broadcasting,” Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 320 (2d Cir.2000). Most relevant to this case, in 1996, Congress enacted the Telecommunications Act of 1996 (the “Telecommunications Act”), Pub.L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 151 et seq., as amended). The Telecommunications Act made" }, { "docid": "1051394", "title": "", "text": "authority. The Commission’s preemption policy has been “shouted from the rooftops.” Brookhaven Cable TV, Inc. v. Kelly, 573 F.2d 765, 768 (2d Cir.1978), cert. denied, 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372 (1979). There has been no reversal of policy that might indicate that the Commission has strayed from any well recognized limits of their jurisdiction over cable television regulation. State and local entry regulation that has either the purpose or the effect of restricting the ability of SMATV operators to provide services to the public clearly conflicts with the policies articulated by the Commission and, therefore, are a proper subject of preemption. C. The Reasonableness of the Commission’s Exercise of Authority Having established that preemption of state regulation of SMATV is within the Commission’s statutory authority, we now consider whether in exercising its authority the Commission acted arbitrarily or capriciously. Fidelity Federal Savings & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 151-54, 102 S.Ct. 3014, 3021-23, 73 L.Ed.2d 664 (1982) (federal agency’s decision to preempt “subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily”). As this court recently stated in Wold Communications, Inc. v. FCC, 735 F.2d 1465, 1476 (D.C.Cir.1984), the proper inquiry under the arbitrary and capricious standard is “whether a reasonable person, considering the matter on the agency’s table, could arrive at the judgment the agency made.” See also Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.) (court must ensure “both that the Commission has adequately considered all relevant factors ... and that it has demonstrated a ‘rational connection between the facts found and the choice made’ ”) (citations omitted), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). Our discussion of the Commission’s authority forecloses extensive inquiry into the rationality of its decision. A finding that the Commission has the power to preempt state regulation means that preemption is necessary for the full accomplishment of lawful Commission objectives. Establishing this logical relationship between the action taken — preemption—and Commission policy involves, at least to a certain extent, the" }, { "docid": "1051380", "title": "", "text": "interfering with, delaying, or terminating interstate and federally controlled communications services” is preempted. Earth Satellite Communications, Inc., 55 Rad.Reg.2d (P & F) at 1435. After the Commission denied its request for a hearing, FCC 84-206 (May 14, 1984), the New York State Commission on Cable Television petitioned this court for review. II. Discussion A. Introduction Because the Commission has expressed its unambiguous intention to preempt state regulation of SMATV, our review on appeal is limited to determining whether the Commission had the authority to preempt state regulation and whether the preemption was a reasonable exercise of that authority. As the Supreme Court stated in Capital Cities Cable, Inc. v. Crisp, — U.S. —, 104 S.Ct. 2694, 2701, 81 L.Ed.2d 580 (1984), “if the FCC has resolved to pre-empt an area of cable television regulation and if this determination ‘represents a reasonable accommodation of conflicting policies’ that are within the agency’s domain, ... we must conclude that all conflicting state regulations have been precluded.” (citation omitted). See also Fidelity Federal Savings & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982) (“Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily.”); Computer and Communications Industry Ass’n v. FCC, 693 F.2d 198, 214 (D.C.Cir.1982) (“To determine whether the Commission acted properly in preempting state [regulation], ... we must examine the Commission’s powers under the Act and the asserted justification for preempting state regulation.”), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983). B. The Commission’s Authority Congress created the Commission in 1934 to regulate “communication by wire and radio so as to make available ... to all the people of the United States a rapid, efficient, Nationwide and world-wide wire and radio communication service.” 47 U.S.C. § 151 (1982). Although the Commission’s general regulatory authority over cable television was originally in some doubt, the Supreme Court in United States v." }, { "docid": "1051382", "title": "", "text": "Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968), found that the Communications Act empowered the Commission to regulate cable television to the extent that it is “reasonably ancillary to the effective performance of the Commission’s various responsibilities for the regulation of television broadcasting.” Id. at 178, 88 S.Ct. at 2005. As the Supreme Court recently stated in Capital Cities Cable, Inc. v. Crisp, — U.S. —, 104 S.Ct. 2694, 2701, 81 L.Ed.2d 580 (1984), “[w]e have since explained that the Commission’s authority extends to all regulatory actions ‘necessary to ensure the achievement of the Commission’s statutory responsibilities.’ ” (quoting FCC v. Midwest Video Corp., 440 U.S. 689, 706, 99 S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979)). In its preemption order the Commission based its authority over SMATV upon the federal interest in “the unfettered development of interstate transmission of satellite signals.” Earth Satellite Communications, Inc., 55 Rad.Reg.2d (P & F) at 1432. This development would be frustrated, the Commission found, if each state could impose their own entry restrictions upon systems that were part of the national satellite network. Id. The Commission chose not to impose entry restrictions of its own, believing that open entry policies in the satellite field would create a more diverse and competitive telecommunications environment. Id. at 1433. Petitioners do not challenge the general authority of the Commission to preempt state and local regulation of cable television in appropriate circumstances. Rather, they contend that, in this particular instance, because the Commission has failed to show that preemption is necessary “to ensure the achievement of the Commission’s statutory responsibilities,” FCC v. Midwest Video Corp., 440 U.S. 689, 706, 99 S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979), it has acted beyond its authority. To support this contention, petitioners advance two closely related arguments. First, they contend that preemption of state and local regulation of SMATV is a reversal of well-established policy and therefore “presumptively” contrary to the achievement of the Commission’s statutory responsibilities. Second, petitioners contend that the policies underlying the Communications Act cannot be advanced by the Commission’s determination to allow SMATV" }, { "docid": "17702471", "title": "", "text": "license allocation — comparative hearing, lottery and auction. Each is presumed to be a regulatory tool for ensuring that licenses are distributed in the way that fulfils the goals of the FCA. See 47 U.S.C. § 309(a). And each license, on whatever basis it is awarded, is not to “be construed to create any right, beyond the terms, conditions, and periods of the license.” 47 U.S.C. § 301. A. The FCC and the Courts The Supreme Court has emphasized that the FCA’s “terms, purposes, and history all indicate that Congress formulated a unified and comprehensive regulatory system.” United States v. Southwestern Cable Co., 392 U.S. 157, 168, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968) (internal quotation marks and citation omitted). “Congress assigned to the Federal Communications Commission ... exclusive authority to grant licenses” under the Act. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 553, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The FCC was “expected to serve as the single Government agency with unified jurisdiction and regulatory power over all forms of electrical communication, whether by telephone, telegraph, cable, or radio.” Southwestern Cable Co., 392 U.S. at 168, 88 S.Ct. 1994 (internal quotation marks and footnotes omitted). In this case, we are required to “enforce the spheres of authority which Congress has given to the Commission and the courts, respectively, through its scheme for the regulation of’ radio transmissions. Pottsville Broadcasting Co., 309 U.S. at 136-37, 60 S.Ct. 437. For over fifty years the Supreme Court has recognized that under the FCA the division of authority between these “spheres” requires that “no court can grant an applicant an authorization which the Commission has refused.” Scripps-Howard Radio v. FCC, 316 U.S. 4, 14, 62 S.Ct. 876, 86 L.Ed. 1229 (1942). Under the FCA, it is the FCC and not the courts that “must be satisfied that the public interest will be served by ... the license.” FCC v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 91 L.Ed. 204 (1946)." }, { "docid": "1051381", "title": "", "text": "La Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982) (“Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily.”); Computer and Communications Industry Ass’n v. FCC, 693 F.2d 198, 214 (D.C.Cir.1982) (“To determine whether the Commission acted properly in preempting state [regulation], ... we must examine the Commission’s powers under the Act and the asserted justification for preempting state regulation.”), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983). B. The Commission’s Authority Congress created the Commission in 1934 to regulate “communication by wire and radio so as to make available ... to all the people of the United States a rapid, efficient, Nationwide and world-wide wire and radio communication service.” 47 U.S.C. § 151 (1982). Although the Commission’s general regulatory authority over cable television was originally in some doubt, the Supreme Court in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968), found that the Communications Act empowered the Commission to regulate cable television to the extent that it is “reasonably ancillary to the effective performance of the Commission’s various responsibilities for the regulation of television broadcasting.” Id. at 178, 88 S.Ct. at 2005. As the Supreme Court recently stated in Capital Cities Cable, Inc. v. Crisp, — U.S. —, 104 S.Ct. 2694, 2701, 81 L.Ed.2d 580 (1984), “[w]e have since explained that the Commission’s authority extends to all regulatory actions ‘necessary to ensure the achievement of the Commission’s statutory responsibilities.’ ” (quoting FCC v. Midwest Video Corp., 440 U.S. 689, 706, 99 S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979)). In its preemption order the Commission based its authority over SMATV upon the federal interest in “the unfettered development of interstate transmission of satellite signals.” Earth Satellite Communications, Inc., 55 Rad.Reg.2d (P & F) at 1432. This development would be frustrated, the Commission found, if each state could impose their own entry restrictions upon" }, { "docid": "3719804", "title": "", "text": "of must-carry rules on a five-year basis neither clearly furthers a substantial governmental interest nor is of brief enough duration to be considered narrowly tailored so as to satisfy the O’Brien test for incidental restrictions on speech. We do not suggest that must-carry rules are per se unconstitutional, and we certainly do not mean to intimate that the FCC may not regulate the cable industry so as to advance substantial governmental interests. But when trenching on first amendment interests, even incidentally, the government must be able to adduce either empirical support or at least sound reasoning on behalf of its measures. As in Quincy Cable TV, we reluctantly conclude that the FCC has not done so in this case, but instead has failed to “ ‘put itself in a position to know’ ” whether the problem that its regulations seek to solve “ ‘is a real or fanciful threat.’” Quincy Cable TV, 768 F.2d at 1457-59 (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 50 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977)). Accordingly, we have no choice but to strike down this latest embodiment of must-carry. So Ordered. . Rather than retrace the ground covered in Quincy Cable TV, we refer the reader at this juncture to the detailed and comprehensive history of early cable regulation provided in Judge Wright’s opinion in that case. See 768 F.2d at 1438-45. Other useful history appears in Southwestern Cable Co., supra, 392 U.S. at 161-67, 88 S.Ct. at 1996-2000; United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972) (holding that rule requiring cable operators to originate local programming fell within FCC's statutory jurisdiction); FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (striking down as beyond the FCC’s jurisdiction rules requiring cable operators to make channels available for local access); and Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984) (holding state regulation of alcoholic beverage advertising on cable television systems to be preempted by" }, { "docid": "2775824", "title": "", "text": "to be unimpaired in the absence of our distant signal carriage rules. Id. at 661. Stating that the comprehensive nature of its analysis enabled it to speak “with a clarity[] which is uncommon in matters of public policy,” the Commission found that “continued regulatory intervention is not merely unnecessary, it is counterproductive.” Id. at 659. B. Prior Constitutional Challenges to Cable Regulations On several occasions the Supreme Court has addressed questions concerning the breadth of the FCC’s jurisdiction over cable television. See United States v. Southwestern Cable Co., supra, 392 U.S. at 178, 88 S.Ct. at 2005 (generally approving FCC jurisdiction over cable if “reasonably ancillary” to its regulation of broadcast television); United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972) (Midwest I) (finding rule requiring cable operators to originate local programming within FCC’s jurisdiction); FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (Midwest II) (striking down as beyond the FCC’s jurisdiction rules requiring cable operators to make channels available for local access). See also Capital Cities Cable, Inc. v. Crisp, supra, — U.S. -, 104 S.Ct. 2694, 81 L.Ed.2d 580 (discussing federal preemption of state laws regulating cable). However, in marked contrast to the extensive First Amendment jurisprudence developed in the context of the broadcast media, see, e.g., FCC v. League of Women Voters of California, — U.S. -, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Court has never confronted a challenge to the constitutional validity of the must-carry rules or any other regulation affecting cable television. In the lower federal courts questions concerning the constitutionality of various cable regulations arose almost from the first moment the Commission asserted its regulatory jurisdiction over the industry. The initial challenges, which were brought when cable was in its infancy and apocalyptic visions of its impact were common, met with little success. See, e.g., Titusville Cable TV, Inc. v. United States, 404 F.2d 1187 (3d Cir.1968); Black Hills Video Corp. v." }, { "docid": "3719805", "title": "", "text": "111, 54 L.Ed.2d 89 (1977)). Accordingly, we have no choice but to strike down this latest embodiment of must-carry. So Ordered. . Rather than retrace the ground covered in Quincy Cable TV, we refer the reader at this juncture to the detailed and comprehensive history of early cable regulation provided in Judge Wright’s opinion in that case. See 768 F.2d at 1438-45. Other useful history appears in Southwestern Cable Co., supra, 392 U.S. at 161-67, 88 S.Ct. at 1996-2000; United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972) (holding that rule requiring cable operators to originate local programming fell within FCC's statutory jurisdiction); FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (striking down as beyond the FCC’s jurisdiction rules requiring cable operators to make channels available for local access); and Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984) (holding state regulation of alcoholic beverage advertising on cable television systems to be preempted by Communications Act of 1934). . Preferred Communications did not involve restrictions on the contours of a particular cable operator's offerings, as in Quincy Cable TV and the present case, but rather the issue of whether municipal restrictions on cable television franchising implicated first amendment interests. The Supreme Court held that they did, and accordingly remanded for a fuller development of the factual issues in the case. . In addition to claiming enhanced first amendment protection on Tomillo grounds, petitioners also contend that the must-carry rules constitute content-discrimination requiring more substantial governmental justification. See, e.g., Brief for Joint Petitioners at 4-5, 13-21 (stating that the rules favor the speech of certain popular local broadcast licensees with various characteristics). The FCC denies this characterization. See, e.g., Brief for FCC at 32-36. Because we conclude that these rules are invalid even under the O'Brien test, we need not resolve this additional claim for stronger first amendment protection. . The FCC’s primary justification for the new must-carry rules, as noted previously, is no longer that they are permanently needed" }, { "docid": "12536008", "title": "", "text": "that its policy constitutes “a vital part of the FCC’s public interest mandate,” and is therefore consistent with the statute. Relying on Steele, Lamprecht argues that the policy violates the Communications Act if it violates the Constitution, since a Commission policy that is unconstitutional would inherently conflict with the public interest. We have no occasion to decide whether the Communications Act bars the Commission from preferring women in comparative licensing. In the years since Steele, Congress by law has required a preference for women. See Pub.L. No. 101-515, 104 Stat. 2101, 2136-2137 (1990); Pub.L. No. 101-162, 103 Stat. 988, 1020-1021 (1989); Pub.L. No. 100-459, 102 Stat. 2186, 2216-2217 (1988); Pub.L. No. 100-202,101 Stat. 1329,1329-1331 (1987). That the laws at issue are appropriations riders does not change their status as the law. See, e.g., Action for Children’s Television v. FCC, 932 F.2d 1504, 1507-10 (D.C.Cir.1991). The Commission, in short, has not exceeded its authority — it has bowed to the will of Congress. Because we cannot decide this case on alternative grounds, we turn to the Constitution. B In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), the Supreme Court considered equal-protection challenges to two of the programs through which the Commission favors certain minorities. Together with the Supreme Court’s cases involving classifications by sex, Metro Broadcasting compels us to strike down the program through which the Commission favors women. We do not reach Lamprecht’s argument that Congress’s appropriations rider violates the separation of powers. (1) Metro Broadcasting concerned two programs through which the Commission chooses the owner of a broadcast station based in part on an applicant’s race, ethnicity, or surname. In sustaining the programs against equal-protection attack, the Supreme Court applied an intermediate standard of scrutiny, holding that “benign race-conscious measures mandated by Congress ... are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.” 110 S.Ct., at 3008-09 (footnote omitted). The Court thus considered first the stated aim of the government’s programs — “enhancing broadcast" }, { "docid": "9938153", "title": "", "text": "367, 375-386, 89 S.Ct. 1794, 1798-1804, 23 L.Ed.2d 371 (1968); National Broadcasting Co. v. United States, 319 U.S. 190, 210-17, 63 S.Ct. 997, 1006-09, 87 L.Ed. 1344 (1943). . Radio Act of 1927 § 4, 44 Stat. 1163. . The “public interest” includes the First Amendment interest of the public to receive “suitable access to social, political, esthetic, moral, and other ideas and experiences ...” Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806. . Section 3(h) provides as follows: ‘Common carrier,’ or ‘carrier’ means any person engaged as a common carrier for hire in interstate or foreign communication by wire or radio or in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier. 47 U.S.C. § 153(h). . See also FCC v. Midwest Video Corp., 440 U.S. 689, 705, 99 S.Ct. 1435, 1443, 59 L.Ed.2d 692 (1979). “As we see it § 3(h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common-carrier obligations on broadcast systems. The provision’s background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. It is difficult to deny, then, that forcing broadcasters to develop a “nondiscriminatory system for controlling access ... is precisely what Congress intended to avoid through § 3(h) of the Act.” . The most salient example is section 73.-658(e) of the Commission’s rules which provides: No license shall be granted to a television broadcast station having any contract, agreement, or understanding, express or implied, with a network organization which, with respect to programs offered or already contracted for pursuant to an affiliation contract, prevents or hinders the station from (1) rejecting or refusing network programs which the station reasonably believes" } ]

[ { "docid": "4885423", "title": "", "text": "evidence showing Mapes’s ability to control his alcoholism is strengthened when viewed in light of his capacity to engage in substantial gainful activity. Although Mapes worked only intermittently during the relevant time period, there is no indication in the record that alcohol abuse was the cause of his work interruptions. Indeed, Mapes has consistently maintained that he became unable to work because of his various physical impairments. Therefore, while we do not deny that Mapes had a drinking problem during the period at issue, we conclude that Mapes’s alcohol problem was controllable and did not preclude substantial gainful activity. See Starr v. Sullivan, 981 F.2d 1006, 1008 (8th Cir.1992). We also find substantial evidence supporting the ALJ’s determination that Mapes’s anxiety and depression were generally present only when Mapes was drinking. Several of the treatment notes from the Center reveal that although Mapes complained of anxiety and nervousness, he sought treatment out of the need to control his drinking. Moreover, Mapes’s anxiety appeared to lessen when he did not drink — a fact confirmed by Mapes at the hearing. His depression followed this same course, with physicians indicating that it was controllable when Mapes stayed sober. There is no indication that Mapes ever sought psychiatric treatment or counseling for these problems. Although Mapes was eventually treated with prescription medications for both anxiety and depression, these medications were prescribed well after the time period at issue in this case and therefore do not significantly detract from the evidence supporting the ALJ’s conclusions. At best, this evidence demonstrates that Mapes’s mental impairments may have worsened over time but nevertheless can be controlled by medication and therefore cannot be considered disabling. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993). Further evidence supports the ALJ’s finding that the corresponding functional limitations listed on the PRTF were present only when Mapes was drinking. As the ALJ noted, intelligence tests indicate that Mapes’s intellectual functioning is in the average range. A consultative psychological evaluation performed by Dr. Richard R. Christy corroborates the test results. According to Dr. Christy, Mapes possesses a good ability to" } ]

[ { "docid": "21097876", "title": "", "text": "Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir.1997) (claimant’s “failure to seek medical assistance for her alleged physical ... impairments contradicts her subjective complaints of disabling conditions and supports the ALJ’s decision to deny benefits”). The ALJ further noted that Wheeler smoked two packs of cigarettes per day, despite her complaints of asthma and despite directions to quit by a treating physician. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (impairments that are controllable or amenable to treatment, including certain respiratory problems, do not support a finding of disability, and failure to follow a prescribed course of remedial treatment, including the cessation of smoking, without good reason is grounds for denying an application for benefits). The ALJ then set forth a partial description of Wheeler’s history of medical treatment, as it appeared in the record. The ALJ discussed, for example, the findings of Dr. Charles Ash, who examined Wheeler on April 15, 1994. Dr. Ash determined that Wheeler exhibited satisfactory general movement with no limp or list, that Wheeler’s lungs exhibited no evidence of respiratory distress, that the spine showed a full range of motion with no deformity or muscle spasm, that no evidence of swelling or limited motion appeared in Wheeler’s fingers, that her grip was good in both hands, that no swelling was visible in the knees or ankles, and that Wheeler’s ankles exhibited a full range of motion. Similarly, after examining Wheeler on October 31, 1996, Dr. Ali J. Abu-Libdeh concluded that he could find no evidence of active rheumatoid arthritis. Dr. Abu-Libdeh determined that Wheeler’s hands, wrists, feet, and ankles were free from arthritis and showed no swelling or tenderness, that both elbows and shoulders were normal, that Wheeler’s knees showed minimal tenderness, and that a mild reduction in mobility appeared to be caused by Wheeler’s obesity. The record thus shows that the ALJ properly discounted Wheeler’s subjective complaints of arthritic pain and immobility. See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir.1996) (ALJ entitled to discount claimant’s complaints of pain based upon claimant’s failure to pursue regular medical treatment and where" }, { "docid": "274345", "title": "", "text": "WOLLMAN, Circuit Judge. Ruth A. Kisling appeals from the district court’s order affirming the decision of the Commissioner of the Social Security Administration, denying her claim for Supplemental Security Income (SSI) benefits. We affirm. I. Kisling filed for benefits on January 15, 1993, claiming disability due to arthritis, bronchitis, and asthma. At her hearing before an administrative law judge (ALJ), Kis-ling testified to arthritis pain, bronchitis, asthma, and bad nerves. She also stated that she often became depressed and angry. The ALJ found that Kisling suffered from bronchitis and dysthymia . Analyzing Kis-ling’s claim under the framework outlined in 20 C.F.R. §§ 416.920 and 416.920a, the ALJ found that while these impairments were severe, they did not meet the requirements for listed impairments. The AU concluded that Kisling retained the residual functional capacity to perform her past relevant work as a shirt factory worker, and therefore denied benefits. The Appeals Council denied Kisling's request for review. The district court granted summary judgment for the Commissioner. On appeal, Kisling argues that the Commissioner's decision was not supported by substantial evidence, that the AU's credibility determinations were erroneous, and that the AU failed to consider the combined effect of her impairments on her ability to perform her past relevant work. II. Our review on appeal is limited to determining whether the Commissioner's decision is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Comstock v. Chater, 91 F.3d 1143, 1145 (8th Cir.1996); Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir.1996). \"Substantial evidence is that which a reasonable mind would find as adequate to support the Commissioner's decision.\" Comstock, 91 F.3d at 1145; see Johnson, 87 F.3d at 1017. The record clearly supports the Commissioner's determination that Kisling's physical impairments do not inhibit her ability to perform her past relevant work. The medical evidence does not show that Kisling suffers from arthritis or from any other afflictions that might impair her ability to work. Medical records do confirm that Kis-ling suffers from chronic, and occasionally acute bronchitis, but there is no evidence that her pulmonary function" }, { "docid": "11575589", "title": "", "text": "earnings are greater than $300 per month. 20 C.F.R. § 404.1574(b)(2)(vi). The ALJ found that Comstock engaged in substantial gainful employment during 1983, 1984, 1985, and a significant portion of 1986. There is substantial evidence contained in the record to support the ALJ’s conclusion. First, Comstock’s earnings in 1983 and 1984 exceeded $300 per month. Although Comstock did not submit a tax return for 1985, he testified at the hearing that he continued to work at his job as a gas station attendant until the station closed in the fall of that year. In 1986, Comstock continued to earn a significant amount of income until his onset disability date of September 30. In any event, even assuming that Comstock did not engage in any substantial gainful employment during the relevant period, we find that he was not entitled to benefits for the reasons discussed below. If a claimant has not been substantially gainfully employed during the relevant period, the next step in making a disability determination involves deciding whether the claimant suffers from a severe impairment. 20 C.F.R. §§ 404.1520(e), 416.920(c). If the claimant suffers from an impairment, a determination must be made as to whether that impairment meets or equals an impairment listed in the regulations; if so, the claimant is considered disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. The ALJ found that Comstock had the following severe impairments: chronic low back pain syndrome with history of L5,S1 disc excision, tendinitis of the left shoulder, obesity, hypertension, dys-thymic disorder, and alcohol abuse. The ALJ concluded, however, that none of Com-stock’s impairments, singly or in combination, met any of the impairments listed in the regulations. Finally, the ALJ determined that Comstock could perform light, and probably medium work, including his past relevant work as a gas station attendant. The objective medical evidence in the record supports the ALJ’s determination that Comstock’s combined impairments did not constitute a disability as defined in the regulations. The record reveals that Corn-stock suffered a back injury in 1981 for which he underwent surgery. X-rays taken of Comstock’s lumbar" }, { "docid": "11575588", "title": "", "text": "medically determinable physical or mental impairment!;.]” 42 U.S.C. § 1382c(a)(3)(A). The first step in determining whether a claimant is disabled is to ascertain whether the claimant engaged in substantial gainful employment during the relevant period. 20 C.F.R. §§ 404.1520(b), 416.920(b). If a claimant engages in substantial gainful activity, there can be no finding of disability, even if the claimant does in fact have an impairment. Id.; Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir.1989). To qualify as substantial gainful activity, the work activity must be both substantial and gainful. 20 C.F.R. § 416.972. Substantial work includes physical or mental work, even if done on a part-time basis. 20 C.F.R. § 416.972(a). Gainful work merely means work done for compensation. 20 C.F.R. § 416.972(b). In determining whether a claimant is substantially gainfully employed, criteria such as the claimant’s level of earnings from the work activity and whether the claimant is working in a special or sheltered environment are relevant. 20 C.F.R. § 404.1574(a). Under the regulations, substantial gainful activity is presumed if the claimant’s average earnings are greater than $300 per month. 20 C.F.R. § 404.1574(b)(2)(vi). The ALJ found that Comstock engaged in substantial gainful employment during 1983, 1984, 1985, and a significant portion of 1986. There is substantial evidence contained in the record to support the ALJ’s conclusion. First, Comstock’s earnings in 1983 and 1984 exceeded $300 per month. Although Comstock did not submit a tax return for 1985, he testified at the hearing that he continued to work at his job as a gas station attendant until the station closed in the fall of that year. In 1986, Comstock continued to earn a significant amount of income until his onset disability date of September 30. In any event, even assuming that Comstock did not engage in any substantial gainful employment during the relevant period, we find that he was not entitled to benefits for the reasons discussed below. If a claimant has not been substantially gainfully employed during the relevant period, the next step in making a disability determination involves deciding whether the claimant suffers from a severe" }, { "docid": "7773190", "title": "", "text": "Apfel, 222 F.3d 448, 452 (8th Cir.2000), but if the opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ can accord it less weight, Krogmeier, 294 F.3d at 1023. Edwards’s treating physician, Dr. Clopton, wrote a letter that stated, “I feel that on the basis of her multisystem disease, this individual is unable to work.” Letter from Dr. Clopton (Dec. 19, 2000). The balance of the letter explained that she was diagnosed with hypertension in July 1998; listed her height, weight, and pulse; and listed her medications as of 1998. The letter then itemized eight current diagnoses, but it did not explain the objective medical evidence supporting the diagnoses. The ALJ found this letter to be inconsistent with Edwards’s treatment course and clinical notes, and we agree. Dr. Clopton’s third diagnosis was atypical chest pain, yet Edwards showed normal cardiac function and no ischemia (no decreased blood supply to the heart) as of November 30, 2000. Further, just one month later, Dr. Clopton assessed Edwards’s specific functional limitations and made no mention of hypertension or atypical chest pain. The assessment, which detailed environmental restrictions in addition to movement limitations, listed no significant or active treatments for the restrictions. Like the December 19 letter, it was conclusory, and a conclusory statement — that is, a statement not supported by medical diagnoses based on objective evidence — will not support a finding of disability. See Bates v. Chafer, 54 F.3d 529, 532 (8th Cir.1995). Edwards’s final argument is that the ALJ erred in finding that Edwards failed to seek consistent medical care for any one impairment and infrequently obtained medication. An ALJ may discount a claimant’s subjective complaints of pain based on the claimant’s failure to pursue regular medical treatment. Comstock v. Chafer, 91 F.3d 1143, 1147 (8th Cir.1996). Here, the ALJ concluded, and we agree, that if her pain was as severe as she alleges, Edwards would have sought regular medical treatment. Her failure to have sought regular medical care seriously undermines her case, especially in light of her apparent ability to pay for her" }, { "docid": "7773191", "title": "", "text": "made no mention of hypertension or atypical chest pain. The assessment, which detailed environmental restrictions in addition to movement limitations, listed no significant or active treatments for the restrictions. Like the December 19 letter, it was conclusory, and a conclusory statement — that is, a statement not supported by medical diagnoses based on objective evidence — will not support a finding of disability. See Bates v. Chafer, 54 F.3d 529, 532 (8th Cir.1995). Edwards’s final argument is that the ALJ erred in finding that Edwards failed to seek consistent medical care for any one impairment and infrequently obtained medication. An ALJ may discount a claimant’s subjective complaints of pain based on the claimant’s failure to pursue regular medical treatment. Comstock v. Chafer, 91 F.3d 1143, 1147 (8th Cir.1996). Here, the ALJ concluded, and we agree, that if her pain was as severe as she alleges, Edwards would have sought regular medical treatment. Her failure to have sought regular medical care seriously undermines her case, especially in light of her apparent ability to pay for her own medical care and medications. Consider, for example, that Edwards had an increase in her hypertension medication on March 23, 1999, and she has not sought treatment for headaches since then. Yet she claims that she has a headache throughout each day in which she vomits, and her days “are centered around her pain.” Br. of Appellant at 8. It was within the province of the ALJ to discount Edwards’s claims of dis abling pain in view of her failure to seek ameliorative treatment. The ALJ’s decision is supported by substantial evidence in the record, and we accordingly affirm the judgment of the District Court. . The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas." }, { "docid": "11575593", "title": "", "text": "recommended that Comstock seek professional treatment and enter a detoxification program. Comstock testified at the hearing that he attended Alcoholics Anonymous for approximately six months. Aside from that, he presented no evidence that he sought regular medical treatment for this problem. Moreover, other than an occasional bout of gastritis, which was controlled by antacids, there was no evidence that Comstock’s alcoholism affected his health or ability to work. Com-stock’s actual work history supported the ALJ’s determination that his alcoholism was controllable. See Mapes v. Chater, 82 F.3d 259, 263 (8th Cir.1996). In addition, there was no evidence in the record that Comstock sought regular medical treatment for his dysthymia. Furthermore, three psychiatric evaluations done on Com-stock in 1986 agreed that he was not suffering from a disability. One evaluation noted that Comstock’s mental impairments were not severe, while the other two noted that Comstock had no impairments. We agree that there was substantial evidence to support the ALJ’s determination that Com- stock’s combined impairments were not disabling. Comstock next contends that the ALJ erred in finding that his subjective complaints of pain were not credible. We find that the ALJ properly applied the guidelines set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) in evaluating Comstock’s subjective complaints. The ALJ found that Comstock’s complaints were inconsistent based on the objective medical evidence, lack of regular treatment and medication, work activity, and past work history. We agree that the lack of objective medical evidence contradicted Comstock’s claims of disabling pain. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) (ALJ can discount claimant’s complaints of pain when medical evidence failed to establish significant back problem). Moreover, the ALJ was entitled to discount Comstock’s complaints based on his failure to pursue regular medical treatment. See Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir.1987) (failure to seek regular treatment or obtain pain medication inconsistent with complaints of disabling pain). The ALJ pointed to a 1982 report by Dr. Hopkins which noted that Comstock was taking “no medicine steadily and is not under regular care.” In addition, Comstock failed" }, { "docid": "274347", "title": "", "text": "is significantly compromised, and no physician has ever restricted her activities because of her pulmonary status. Moreover, there is no evidence in the record showing that Kisling's pulmonary condition would inhibit her ability to work as a shirt factory worker. Furthermore, the medical records show that Kisling's respiratory problems are related to her smoking habit. Although her physicians repeatedly recommended that she curb her smoking, Kisling did not heed this advice. Impairments that are controllable or amenable to treatment do not support a finding of disabifity, and \"[f]ailure to follow a prescribed course of remedial treatment without good reason is grounds for denying an application for benefits.\" Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.1995); see 20 C.F.R. § 416.930(b). The record also supports the Commissioner's determination that Kisling's mental condition does not impair her capacity to perform her past relevant work. Kisling's treating psychiatrist, Dr. Gary Tharp, noted on December 19, 1992, that her dysthymia was in remission. In reports dated May 8, 1993 and July 10, 1993, Tharp did note that Kisling exhibited schizoid avoidance features. In two subsequent reports dated August 28, 1993 and October 30, 1993, however, Tharp does not mention any such features. Moreover, in the July 10th, August 28th, and October 30th reports, Tharp described Kis-ling as alert and oriented, in a good mood, maintaining a normal speech pattern, exhibiting appropriate reactions, and presenting no evidence of psychosis or suicidal or homicidal thoughts. We also find that the AU properly assessed the credibility of Kisling and her sister and was justified in discounting their testimony regarding Kisling's subjective complaints of pain. The AU based his credibility assessment on specific inconsistencies between Kisling's complaints and the record as a whole, as required by Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). He noted the absence of medical evidence supporting Kisling's subjective complaints of pain, a factor that supports the discounting of such complaints. See Comstock, 91 F.3d at 1147. He also relied on the fact that Kisling was not on any pain medication, which we have held \"is `inconsistent with subjective complaints of" }, { "docid": "11575587", "title": "", "text": "Law Judge (ALJ) also denied the claim, finding that Comstock was not disabled during the relevant period beginning April 7, 1981, and continuing through September 30, 1986. The Appeals Council denied Com-stock’s request for review and the. district court affirmed the ALJ’s decision. Corn-stock appeals, alleging that the ÁLJ erred in (1) finding that Comstock engaged in substantial gainful employment from 1983 through 1986; (2) failing to properly consider Comstock’s combination of impairments; (3) discrediting Comstock’s testimony regarding his subjective complaints of pain; and (4) finding that Comstock could return to his past relevant work as a gas station attendant. II. A denial of disability benefits will be upheld if it is supported by substantial evidence on the record as a whole. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996). Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ’s decision. Id. Under the Social Security disability program, a claimant is considered disabled if he “is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment!;.]” 42 U.S.C. § 1382c(a)(3)(A). The first step in determining whether a claimant is disabled is to ascertain whether the claimant engaged in substantial gainful employment during the relevant period. 20 C.F.R. §§ 404.1520(b), 416.920(b). If a claimant engages in substantial gainful activity, there can be no finding of disability, even if the claimant does in fact have an impairment. Id.; Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir.1989). To qualify as substantial gainful activity, the work activity must be both substantial and gainful. 20 C.F.R. § 416.972. Substantial work includes physical or mental work, even if done on a part-time basis. 20 C.F.R. § 416.972(a). Gainful work merely means work done for compensation. 20 C.F.R. § 416.972(b). In determining whether a claimant is substantially gainfully employed, criteria such as the claimant’s level of earnings from the work activity and whether the claimant is working in a special or sheltered environment are relevant. 20 C.F.R. § 404.1574(a). Under the regulations, substantial gainful activity is presumed if the claimant’s average" }, { "docid": "11575592", "title": "", "text": "and 1986 indicated that Comstock could stand and/or walk for six hours and sit for six hours in a normal workday, as well as lift twenty-five pounds frequently and fifty pounds maximum. From October 1982 through 1984, it appears that Comstock failed to seek significant medical treatment for back pain. After Comstock resumed treatment in April 1985 following a car accident, his doctors noted a slight limitation of motion in Comstock’s spine and diagnosed Comstock with mild degenerative disc disease in the lower lumbar spine. In January 1986, Dr. Quinn concluded that Comstock’s condition was not incapacitating. He recommended conservative treatment, including physical therapy and a back exercise program. A lumbar myelogram performed in March 1986 confirmed narrowing at L5,S1 but was otherwise unremarkable. The medical evidence supports the ALJ’s finding that Comstock’s back problems did not equal a listed impairment in the regulations. Comstock argues that the ALJ failed to properly consider his mental impairments. Comstock was diagnosed with alcohol abuse and dysthymic disorder in a psychological evaluation performed in October 1982. The evaluation recommended that Comstock seek professional treatment and enter a detoxification program. Comstock testified at the hearing that he attended Alcoholics Anonymous for approximately six months. Aside from that, he presented no evidence that he sought regular medical treatment for this problem. Moreover, other than an occasional bout of gastritis, which was controlled by antacids, there was no evidence that Comstock’s alcoholism affected his health or ability to work. Com-stock’s actual work history supported the ALJ’s determination that his alcoholism was controllable. See Mapes v. Chater, 82 F.3d 259, 263 (8th Cir.1996). In addition, there was no evidence in the record that Comstock sought regular medical treatment for his dysthymia. Furthermore, three psychiatric evaluations done on Com-stock in 1986 agreed that he was not suffering from a disability. One evaluation noted that Comstock’s mental impairments were not severe, while the other two noted that Comstock had no impairments. We agree that there was substantial evidence to support the ALJ’s determination that Com- stock’s combined impairments were not disabling. Comstock next contends that the ALJ erred in" }, { "docid": "274348", "title": "", "text": "exhibited schizoid avoidance features. In two subsequent reports dated August 28, 1993 and October 30, 1993, however, Tharp does not mention any such features. Moreover, in the July 10th, August 28th, and October 30th reports, Tharp described Kis-ling as alert and oriented, in a good mood, maintaining a normal speech pattern, exhibiting appropriate reactions, and presenting no evidence of psychosis or suicidal or homicidal thoughts. We also find that the AU properly assessed the credibility of Kisling and her sister and was justified in discounting their testimony regarding Kisling's subjective complaints of pain. The AU based his credibility assessment on specific inconsistencies between Kisling's complaints and the record as a whole, as required by Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). He noted the absence of medical evidence supporting Kisling's subjective complaints of pain, a factor that supports the discounting of such complaints. See Comstock, 91 F.3d at 1147. He also relied on the fact that Kisling was not on any pain medication, which we have held \"is `inconsistent with subjective complaints of disabling pain.'\" Johnson, 87 F.3d at 1017 (quoting Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir.1994)). The ALJ additionally noted that Kisling took care of her own daily personal needs, and that no physician had instructed her to limit herself in any capacity. Finally, he cited the opinion of Kisling’s therapist that Kisling’s motivation to work was suspect. These enumerated findings support the ALJ’s decision to discount Kisling’s subjective complaints of pain. See Polaski, 739 F.2d at 1322. Likewise, because Kisling’s sister merely stated that Kisling’s testimony was true and not exaggerated, the ALJ was justified in discrediting her testimony as well. See Brown v. Chater, 87 F.3d 963, 966 (8th Cir.1996) (ALJ may disbelieve witness’s testimony due to suspect nature). Finally, contrary to Kisling’s assertion, we find that the ALJ properly considered the combined effect of Kisling’s impairments. See 20 C.F.R. § 416.923; Weikert v. Sullivan, 977 F.2d 1249, 1251 (8th Cir.1992). Overall, the evidence in the record supports the Commissioner’s conclusion that Kisling’s impairments did not inhibit her ability to perform her" }, { "docid": "11575595", "title": "", "text": "to seek regular treatment for his back pain from late 1982 through 1984. At the hearing, Comstock stated that he took aspirin, used a whirlpool tub, and had his wife rub ointment on his back to alleviate the pain. The ALJ properly found that these measures did not support a claim of disabling pain. See id. (disabling pain not indicated when claimant merely took hot showers and used Advil and aspirin to relieve pain). In further support of his decision, the ALJ found that Comstock’s work activity bebed his claim of disabling pain. See Smith, 987 F.2d at 1374-75 (claimant’s extensive daily activities, including performance of pastoral duties, inconsistent with complaints of disabling pain). Not only did Comstock work as a gas station attendant from 1983 through 1985, he also had a full-time job for several months during 1986 which required him to dig around telephone poles. Finally, the ALJ noted, that Comstock’s prior work history was not “particularly notable and has been characterized by fairly low earnings and some significant breaks in employment.” We agree that these factors, taken together, cast doubt on Comstock’s complaints of disabling pain. Comstock also argues that the ALJ erred in concluding that he could return to his past relevant work as a gas station attendant. The Dictionary of Occupational Titles classifies a gas station attendant as medium work. It requires occasional lifting of twenty to fifty pounds and frequent lifting of ten to twenty-five pounds, along with occasional bending. At the hearing, Comstock stated that his basic responsibilities at the gas station included pumping gas, checking oil, and running the cash register. On vocational reports he submitted prior to the hearing, however, he listed additional duties such as changing tires, repairing minor mechanical problems, and lifting and carrying objects weighing from twenty-five to fifty pounds such as batteries, tires, and oil. The ALJ concluded that Comstock could “perform at least light work as he described it at the hearing and probably medium work as he described in the record.” In light of Com-stock’s work activity from 1983 through 1986, combined with the findings" }, { "docid": "14873633", "title": "", "text": "sit was not affected. A vocational expert testified that there were light and sedentary jobs available in the national economy that a person with Barnes’s impairments (including a left arm that could be used only for assistance), age, education, and work experience could perform, including 5,578 security guard jobs and 2,480 clerk jobs. The ALJ concluded Barnes was not disabled as defined by the Social Security Act, finding his testimony regarding his pain was “not credible to the extent alleged.” The ALJ found that Barnes could not return to his past work, but that he had the residual functional capacity to perform a limited range of one-arm light work. The Appeals Council denied review, and the District Court granted summary judgment in favor of the Commissioner. Our review on appeal is limited to a determination of whether the Commissioner’s decision is supported by substantial evidence on the record as a whole. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997). As the Appeals Council considered new material evidence and declined review, we must consider that new evidence in determining whether the Commissioner’s decision is supported by substantial evidence. See Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir.1995); Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.1994). We conclude the ALJ relied upon proper factors in discounting Barnes’s subjective complaints of pain under the standard set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Specifically, the ALJ relied upon the minimal objective medical evidence of an impairment of Barnes’s right arm; the consistent opinions of three doctors, including Barnes’s treating physician, who placed no restrictions on Barnes other than left-hand lifting; his use of only Tylenol for pain; his ability to manage self-care and household responsibilities; and, according to his report filled out in conjunction with his benefits application, his ability to do almost anything he wants with his right hand. See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir.1996); Smith v. Shalala, 987 F.2d 1371, 1374-75 (8th Cir.1993); Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir.1992); Murphy v. Sullivan, 953 F.2d 383, 386" }, { "docid": "14873634", "title": "", "text": "that new evidence in determining whether the Commissioner’s decision is supported by substantial evidence. See Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir.1995); Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.1994). We conclude the ALJ relied upon proper factors in discounting Barnes’s subjective complaints of pain under the standard set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Specifically, the ALJ relied upon the minimal objective medical evidence of an impairment of Barnes’s right arm; the consistent opinions of three doctors, including Barnes’s treating physician, who placed no restrictions on Barnes other than left-hand lifting; his use of only Tylenol for pain; his ability to manage self-care and household responsibilities; and, according to his report filled out in conjunction with his benefits application, his ability to do almost anything he wants with his right hand. See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir.1996); Smith v. Shalala, 987 F.2d 1371, 1374-75 (8th Cir.1993); Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir.1992); Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir.1992); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir.1990). There is no medical evidence indicating that the condition of his right shoulder has deteriorated since 1993, when he was able to work “reasonably well” using only his right side. After considering the record and the new evidence, we conclude that substantial evidence supports the ALJ’s decision. Barnes’s contention that the ALJ failed to consider the combined effect of his impairments lacks merit, as the ALJ discussed the evidence of impairments as a whole, recognizing Barnes’s left-arm deficits and considering whether the evidence would support Barnes’s allegations regarding his right arm. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir.1994); Gooch v. Secretary of Health & Human Servs., 833 F.2d 589, 592 (6th Cir.1987) (per curiam), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988). Finally, the ALJ’s hypothetical question to the VE was not erroneous, as it included all the impairments that the ALJ found supported by the record as a whole. See Hinchey v. Shalala, 29 F.3d 428," }, { "docid": "11575586", "title": "", "text": "WOLLMAN, Circuit Judge. Jerry Comstock appeals the district court’s order affirming the denial of his application for Social Security disability benefits. We affirm. I. Jerry Comstock was forty-one years old when he first applied for Social Security disability benefits in 1982. Comstock had completed the eleventh grade and had worked as a machinist, janitor, dock hand, gas station attendant, and golf course grounds keeper. In his claim for benefits, he alleged that he became disabled as of April 7, 1981, due to a back injury occurring on that date. His claim was denied initially and upon reconsideration. In 1985, Comstock again applied for disability benefits, alleging a disability onset date of April 21, 1985, because of back problems. This application was also denied. Finally, in Comstock’s third application for disability benefits in 1986, he was found disabled as of September 30,1986, and was awarded benefits. In 1989, Comstock requested that the denial of his first application be reopened. The Social Security Administration denied his application originally and upon reconsideration. After conducting a hearing, the Administrative Law Judge (ALJ) also denied the claim, finding that Comstock was not disabled during the relevant period beginning April 7, 1981, and continuing through September 30, 1986. The Appeals Council denied Com-stock’s request for review and the. district court affirmed the ALJ’s decision. Corn-stock appeals, alleging that the ÁLJ erred in (1) finding that Comstock engaged in substantial gainful employment from 1983 through 1986; (2) failing to properly consider Comstock’s combination of impairments; (3) discrediting Comstock’s testimony regarding his subjective complaints of pain; and (4) finding that Comstock could return to his past relevant work as a gas station attendant. II. A denial of disability benefits will be upheld if it is supported by substantial evidence on the record as a whole. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996). Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ’s decision. Id. Under the Social Security disability program, a claimant is considered disabled if he “is unable to engage in any substantial gainful activity by reason of any" }, { "docid": "11575590", "title": "", "text": "impairment. 20 C.F.R. §§ 404.1520(e), 416.920(c). If the claimant suffers from an impairment, a determination must be made as to whether that impairment meets or equals an impairment listed in the regulations; if so, the claimant is considered disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. The ALJ found that Comstock had the following severe impairments: chronic low back pain syndrome with history of L5,S1 disc excision, tendinitis of the left shoulder, obesity, hypertension, dys-thymic disorder, and alcohol abuse. The ALJ concluded, however, that none of Com-stock’s impairments, singly or in combination, met any of the impairments listed in the regulations. Finally, the ALJ determined that Comstock could perform light, and probably medium work, including his past relevant work as a gas station attendant. The objective medical evidence in the record supports the ALJ’s determination that Comstock’s combined impairments did not constitute a disability as defined in the regulations. The record reveals that Corn-stock suffered a back injury in 1981 for which he underwent surgery. X-rays taken of Comstock’s lumbar spiné in 1982 showed no significant abnormalities, except for mild narrowing at the L5,S1 intervertebral disc space. Although there was some conflicting evidence, most of the tests performed on Comstock during this period revealed that Comstock’s motor and sensory components of the nervous system were intact, that he had only slight limitation of flexion and extension, and that his reflexes were normal. In March 1982, Dr. Tietgen, Comstock’s treating physician, noted that Comstock “could get on and off the examination table without difficulty” and he “carried himself well.” He recommended, however, that Comstock “avoid heavy lifting, working in a bent over position or long periods of standing.” In June 1982, Dr. Hopkins agreed that Comstock should avoid physical exertion and long periods of standing, but concluded that Comstock should be able to perform some type of gainful employment. In an examination conducted by Dr. Harper in August 1982, Comstock was able to heel and toe walk normally and displayed no weakness in his motor examination. All of the residual functional capacity assessments performed in 1982" }, { "docid": "653687", "title": "", "text": "” Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (quoting Comstock v. Chater, 91 F.3d 1143, 1145 (8th Cir.1996)). We must evaluate the evidence in the record that supports the ALJ’s decision as well as that which detracts from it. Grebenick, 121 F.3d at 1193. “ ‘We may not reverse merely because substantial evidence would have supported an opposite decision.’ ” Id. (quoting Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir.1996)). Thus, we must determine if there was substantial evidence in the record as a whole to support the ALJ’s determination that Terrell could perform his past relevant work. An ALJ uses the familiar five-step sequential evaluation process to determine if a claimant is eligible for SSI benefits. Id at 1198; 20 C.F.R. 416.920 (1997). At step four of this process, the claimant has 'the burden of proving that he or she cannot perform his or her past relevant work. Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.1995). In this case, the ALJ began his analysis by presuming that Terrell was not presently engaged in substantial gainful activity. The ALJ next found that Terrell had severe impairments, but that none of these impairments or combination of impairments met or equaled the impairments listed in the regulations and that his complaints of disabling-pain were not credible. The ALJ then determined that based on Terrell’s residual functional capacity he could 'perform his past relevant work as an absentee truck owner/lessor. Because he found that Terrell could perform his past relevant work, the ALJ denied Terrell’s claim for SSI benefits. In determining whether a claimant can perform his or her past relevant work, social security regulations provide that the ALJ should normally only consider work that meets the following requirements: (1) the claimant performed the work in the prior 15 years; (2) the work lasted long enough for the claimant to learn to do it; and (3) the work was “substantial gainful activity.” See 20 C.F.R. § 416.965(a); Rater v. Chater, 73 F.3d 796, 798 (8th Cir.1996); see also Social Security Ruling 82-61 (1982). “Substantial gainful activity” is defined by" }, { "docid": "11575591", "title": "", "text": "spiné in 1982 showed no significant abnormalities, except for mild narrowing at the L5,S1 intervertebral disc space. Although there was some conflicting evidence, most of the tests performed on Comstock during this period revealed that Comstock’s motor and sensory components of the nervous system were intact, that he had only slight limitation of flexion and extension, and that his reflexes were normal. In March 1982, Dr. Tietgen, Comstock’s treating physician, noted that Comstock “could get on and off the examination table without difficulty” and he “carried himself well.” He recommended, however, that Comstock “avoid heavy lifting, working in a bent over position or long periods of standing.” In June 1982, Dr. Hopkins agreed that Comstock should avoid physical exertion and long periods of standing, but concluded that Comstock should be able to perform some type of gainful employment. In an examination conducted by Dr. Harper in August 1982, Comstock was able to heel and toe walk normally and displayed no weakness in his motor examination. All of the residual functional capacity assessments performed in 1982 and 1986 indicated that Comstock could stand and/or walk for six hours and sit for six hours in a normal workday, as well as lift twenty-five pounds frequently and fifty pounds maximum. From October 1982 through 1984, it appears that Comstock failed to seek significant medical treatment for back pain. After Comstock resumed treatment in April 1985 following a car accident, his doctors noted a slight limitation of motion in Comstock’s spine and diagnosed Comstock with mild degenerative disc disease in the lower lumbar spine. In January 1986, Dr. Quinn concluded that Comstock’s condition was not incapacitating. He recommended conservative treatment, including physical therapy and a back exercise program. A lumbar myelogram performed in March 1986 confirmed narrowing at L5,S1 but was otherwise unremarkable. The medical evidence supports the ALJ’s finding that Comstock’s back problems did not equal a listed impairment in the regulations. Comstock argues that the ALJ failed to properly consider his mental impairments. Comstock was diagnosed with alcohol abuse and dysthymic disorder in a psychological evaluation performed in October 1982. The evaluation" }, { "docid": "11575594", "title": "", "text": "finding that his subjective complaints of pain were not credible. We find that the ALJ properly applied the guidelines set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) in evaluating Comstock’s subjective complaints. The ALJ found that Comstock’s complaints were inconsistent based on the objective medical evidence, lack of regular treatment and medication, work activity, and past work history. We agree that the lack of objective medical evidence contradicted Comstock’s claims of disabling pain. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) (ALJ can discount claimant’s complaints of pain when medical evidence failed to establish significant back problem). Moreover, the ALJ was entitled to discount Comstock’s complaints based on his failure to pursue regular medical treatment. See Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir.1987) (failure to seek regular treatment or obtain pain medication inconsistent with complaints of disabling pain). The ALJ pointed to a 1982 report by Dr. Hopkins which noted that Comstock was taking “no medicine steadily and is not under regular care.” In addition, Comstock failed to seek regular treatment for his back pain from late 1982 through 1984. At the hearing, Comstock stated that he took aspirin, used a whirlpool tub, and had his wife rub ointment on his back to alleviate the pain. The ALJ properly found that these measures did not support a claim of disabling pain. See id. (disabling pain not indicated when claimant merely took hot showers and used Advil and aspirin to relieve pain). In further support of his decision, the ALJ found that Comstock’s work activity bebed his claim of disabling pain. See Smith, 987 F.2d at 1374-75 (claimant’s extensive daily activities, including performance of pastoral duties, inconsistent with complaints of disabling pain). Not only did Comstock work as a gas station attendant from 1983 through 1985, he also had a full-time job for several months during 1986 which required him to dig around telephone poles. Finally, the ALJ noted, that Comstock’s prior work history was not “particularly notable and has been characterized by fairly low earnings and some significant breaks in employment.” We" }, { "docid": "11575596", "title": "", "text": "agree that these factors, taken together, cast doubt on Comstock’s complaints of disabling pain. Comstock also argues that the ALJ erred in concluding that he could return to his past relevant work as a gas station attendant. The Dictionary of Occupational Titles classifies a gas station attendant as medium work. It requires occasional lifting of twenty to fifty pounds and frequent lifting of ten to twenty-five pounds, along with occasional bending. At the hearing, Comstock stated that his basic responsibilities at the gas station included pumping gas, checking oil, and running the cash register. On vocational reports he submitted prior to the hearing, however, he listed additional duties such as changing tires, repairing minor mechanical problems, and lifting and carrying objects weighing from twenty-five to fifty pounds such as batteries, tires, and oil. The ALJ concluded that Comstock could “perform at least light work as he described it at the hearing and probably medium work as he described in the record.” In light of Com-stock’s work activity from 1983 through 1986, combined with the findings in his residual functional capacity assessments, we agree that Comstock retained the ability to work as a gas station attendant. The order is affirmed. . The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri. . This amount applies for years after 1979 and before 1990." } ]

[ { "docid": "8164810", "title": "", "text": "the court, under similar circumstances, followed Floyd v. Scofield, supra, it was stated at page 530 of 292 F.2d: “In any case the outcome hinges upon whether there had been a realization of income By the distributing corporation. It is fundamental that all economic gain is not taxable income and that it is the realization of income that is the taxable event. But the law contemplates that there is some point at which all income which has accrued, in the sense of having been fully earned, will be realized and taxable to him who earned it regardless of the accounting method involved. An acceptable acccounting method should simply indicate this point logically and consistently.” Respondents protest that these were cases ‘of distribution of assets to shareholders under §§ 311 or 336; that the case at bar is one of a sale by a liquidating corporation clearly falling within § 337(a); that to sanction the commissioner’s authority to change the method of accounting under these circumstances is to deprive respondents of a right clearly and expressly bestowed by § 337(a). We cannot agree. The purpose of § 337 (a) was to eliminate the formal problem created by Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, and United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251, by achieving uniformity of tax treatment for the sale of assets by a liquidating corporation and the sale of assets by shareholders to whom the assets had been distributed in liquidation. Section 337 was thus intended to erase a formalistic inequity and not to create one. We find no suggestion or intimation that it was ever contemplated that a cash basis taxpayer was to receive unequal and advantageous treatment over an accrual basis taxpayer through his ability to avoid the consequences of an anticipatory assignment of earned income. We conclude that the commissioner was within his authority in computing income by the method selected; that the proceeds of the assignment of these construction contracts constituted recognized income to" } ]

[ { "docid": "23068939", "title": "", "text": "liquidating corporations to avoid a double incidence of capital gains taxation — once when capital assets are sold by the corporation, and again on distribution of the proceeds to the shareholders. Congress, however, clearly indicated that it did not intend section 337 to be used as a device to avoid taxation on income generated by the normal operations of a business. The taxpayers offer no explanation as to why Congress would wish to tax such income if received by the liquidating corporation directly from the customers but exempt it if it is received indirectly through a third party as consideration for an assignment before collection. The heart of the definition of “property” in section 337 was taken almost verbatim from the definition of capital assets referred to above, now found in section 1221. Both sections are designed to give preferential tax treatment to sales of certain types of assets not held for sale in the ordinary course of business. We interpret them as having the same meaning. Thus, section 337 exempts the sale of capital assets only during the year of liquidation. The uncompleted sales contracts not being capital assets, the proceeds received for their assignment are to be taxed as ordinary income. Ill The remaining issues may be disposed of without extensive discussion. For the reasons stated by the Tax Court we affirm its holding that deposits made on the “inactive” contracts must be included in Pridemark’s income for the year in which those contracts were sold to Golden Key rather than in the year of final liquidation. We reverse the Tax Court’s decision that legal fees incurred in connection with the sale of assets to Golden Key are to be deducted from the gain realized on that sale. Its decision was predicated on the determination that there was no complete liquidation. Having found a liquidation, we approve Pridemark’s deduction of these fees as ordinary and necessary business expenses incurred in liquidation. Pacific Coast Biscuit Co., 32 B.T.A. 39, 42 (1935); see Note, “Certain Tax Aspects of Organization, Reorganization, and Liquidation Costs,” 10 Stan.L.Rev. 112, 118-19 (1957). Finally, the" }, { "docid": "21941822", "title": "", "text": "the statutes involved are here set forth: Internal Revenue Code of 1954: “SEC. 61. GROSS INCOME DEFINED. “(a) General Definition. Exceptas otherwise provided in this subtitle, gross income means all income from whatever source derived, * * ****** (26 U.S.C. 1958 ed., Sec. 61) “SEC. 331. GAIN OR LOSS TO SHAREHOLDERS IN CORPORATE LIQUIDATIONS. “(a) General Rule.— “(1) Complete liquidations. Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock. “(2) Partial liquidations. Amounts distributed in partial liquidation of a corporation (as defined in section 346) shall be treated as in part or full payment in exchange for the stock.” ****** (26 U.S.C.1958 ed., Sec. 331) “SEC. 337. GAIN OR LOSS ON SALES OR EXCHANGES IN CONNECTION WITH CERTAIN LIQUIDATIONS. “(a) General Rule. — If— “(1) a corporation adopts a plan of complete liquidation on or after June 22, 1954, and “(2) within the 12-month period beginning on the date of the adoption of such plan, all of the assets of the corporation are distributed in complete liquidation, less assets retained to meet claims, then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period.” ****** (26 U.S.C.1958 ed., Sec. 337) The defendant argues that the donation constituted an assignment of taxpayer’s right to receive income and therefore he must be taxed on such income as was received by his donee pursuant to the assignment. In spite of the contentions of both parties, it is here concluded that no controlling case has been presented by either, and independent research has discovered no such precedent. One case primarily relied upon by the defendant is Friedman v. Commissioner, 346 F.2d 506 (6th Cir. 1965). In that case, taxpayer made a donation of insurance policies which had increased in value due to the additions of annual interest to the reserves, and it was determined that he could not avoid the taxation of income with an accompanying benefit of deduction. The defendant quotes as applicable to the present situation the comment" }, { "docid": "12826914", "title": "", "text": "the right to receive condemnation proceeds). See also Commissioner v. Kuckenberg, 309 F.2d 202, 204-206 (9th Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1296, 10 L.Ed.2d 411 (1963) (invoking the assignment of income doctrine to require a cash-basis corporation to recognize gain from a Section 337 sale of completed contracts); Family Record Plan, Inc. v. Commissioner, 309 F.2d 208 (9th Cir. 1962), cert. denied, 373 U.S. 910, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963) (same result where completed customer contracts, or accounts receivable, were sold by a cash-basis corporation under Section 337). Under the assignment of income doctrine, as discussed and applied in Commissioner v. Kuckenberg, supra, we conclude that the $1,344,191, realized by Surface upon the sale of its uncompleted, long-term contracts and representing the portion of the total estimated profits deemed to have been earned through its partial performance of those contracts, must be recognized to Surface, just as it would have been had the contracts been distributed in kind under Section 336 and thereafter sold by Surface’s shareholders. While Kuckenberg dealt with completed, rather than uncompleted, contracts under Section 337, this factor does not detract from the principle recited in Kuckenberg, 309 F.2d at 205: “‘[T]he corporation has performed the services which create the right to the income which brings into play the basic rule that income shall be taxed to him who earns it. Helvering v. Eubank, 1940, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81.’ ” We hold that Surface’s uncompleted, long-term contracts, not falling within any of the express exclusions of subsection (b)(1), were “property” under Section 337. Under the assignment of income doctrine, however, we further hold that the $1,344,191 in profits realized on that sale must be recognized to Surface, notwithstanding the nonrecognition provisions of Section 337. For the reasons stated above, a judgment will be entered affirming the judgment • of the District Court, with costs awarded against Appellant pursuant to 28 U.S.C. § 2412 (1966). . This tax liability was asserted solely by means of the Government’s affirmative defense of set off in the present suit, rather" }, { "docid": "12826913", "title": "", "text": "the language of the statute itself, we conclude that the term property should be read to include all assets owned by the corporation except those expressly excluded under subsection (b). While recognizing that no hard and fast rule is likely to fit every case arising under Section 337, we further conclude that a corporation’s recognition or nonrecognition of gain or loss arising from the sale of property not expressly excluded under subsection 337(b), should generally be governed by the established doctrines of tax law applicable to distributions in kind under Section 336 — specifically, for purposes of the present case, the assignment of income doctrine. See Williamson v. United States, 292 F.2d 524, 527-530, 155 Ct.Cl. 279 (1961) (invoking the assignment of income doctrine to require a cash-basis corporation to recognize gain on the distribution of accounts receivable under Section 336); Wood Harmon Corp. v. United States, 311 F.2d 918, 921-923 (2d Cir. 1963) (invoking the assignment of income doctrine to require a corporation to recognize capital gains on the distribution under Section 336 of the right to receive condemnation proceeds). See also Commissioner v. Kuckenberg, 309 F.2d 202, 204-206 (9th Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1296, 10 L.Ed.2d 411 (1963) (invoking the assignment of income doctrine to require a cash-basis corporation to recognize gain from a Section 337 sale of completed contracts); Family Record Plan, Inc. v. Commissioner, 309 F.2d 208 (9th Cir. 1962), cert. denied, 373 U.S. 910, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963) (same result where completed customer contracts, or accounts receivable, were sold by a cash-basis corporation under Section 337). Under the assignment of income doctrine, as discussed and applied in Commissioner v. Kuckenberg, supra, we conclude that the $1,344,191, realized by Surface upon the sale of its uncompleted, long-term contracts and representing the portion of the total estimated profits deemed to have been earned through its partial performance of those contracts, must be recognized to Surface, just as it would have been had the contracts been distributed in kind under Section 336 and thereafter sold by Surface’s shareholders. While Kuckenberg" }, { "docid": "10933369", "title": "", "text": "a state of complete liquidation and the sale (of property) takes place within a certain period of time. Any result which would cause the question of taxation to once again depend upon who made the sale, where the formal requirements of the section have been met, would be a direct violation of the section. We feel that as long as the sale is not inconsistent nor incompatible with the pending liquidation, that is, as long as the corporation is in fact in the process of complete liquidation, and the sale does not violate any other subsection of section 337, it is covered by section 337 regardless of the fact that it takes place after the permanent operating assets have been sold. It was not inconsistent with the plan of liquidation for the transferor corporations to seek some form of short-term investments while awaiting the actual date of liquidation. When some of these short-term investments were eventually sold, their sales were part of the plan of liquidation. We agree with respondent when he says that not all sales of property are protected under section 337. However, in those cases where a sale of property has not been afforded protection under section 337 it was because the corporation involved was trying to convert ordinary income into capital gain. See Central Building & Loan Association, 34 T.C. 447 (1960); Family Record Plan, Inc., 36 T.C. 305 (1961), affd. 309 F. 2d 208 (C.A. 9, 1962); Commissioner v. Kuckenberg, 309 F. 2d 202 (C.A. 9, 1962), modifying 35 T.C. 473 (1960), certiorari denied 373 U.S. 909 (1963); Jeanese, Inc. v. United States, 227 F. Supp. 304 (N.D. Cal. 1964); West Seattle National Bank of Seattle, 33 T.C. 341 (1959), affd. 288 F. 2d 47 (C.A. 9, 1961). In Central Building <& Loan Association, supra, this Court held there was only a collection of interest rather than a “sale or exchange” where part of the proceeds received represented accrued interest on note obligations. In Family Record Plan, Inc., supra, we held that accounts receivable of a cash basis taxpayer were installment obligations within the meaning" }, { "docid": "2265514", "title": "", "text": "ultimate legalo question is: What are the tax consequences of a dividend in kind that admittedly was intended to effect and did effect an anticipatory assignment of future corporate income? It is well settled that, when a deduction for income-tax purposes is taken and allowed for debts deemed worthless, recoveries on the debts in a later year constitute taxable income for that year to the extent that a tax benefit was received from the deduction taken in a prior year. Thus, when the tax benefit for a bad debt is obtained, the debt loses its nature as capital, and becomes representative of that portion of the taxpayer’s income which was not taxed. As stated in the just-cited case: “The profits or income used to pay back the capital when the debt is charged off is represented by the worthless loan, so that when such loan is paid the profits are replaced.” A dividend to a shareholder by a corporation in any medium other than money is a dividend in kind, and in a formal sense the notes here represented such a dividend. Ordinarily no gain or loss is realized by a corporation from the mere distribution of its assets in kind in partial or complete liquidation, however they may have appreciated or depreciated in value since their acquisition; but the rule is deemed to be otherwise where the dividend in kind is not in liquidation and consists of bad debts on account of the worthlessness of which a deduction was allowed for a prior taxable year. Whether or not the respondent corporation made an assignment of anticipatory income upon the distribution of its dividend in kind depends upon the nature of the property distributed in relation to the capital structure of the corporation. In this case, the charged-off debts no longer represented an asset except in the sense that any vested right to receive income is an asset; the notes had a basis of zero, and were no longer reflected in the capital structure of the corporation. They merely represented potential income to the extent of the tax deduction previously" }, { "docid": "904296", "title": "", "text": "expense of purchasing the items was charged; and that where there is no gain representing appreciation in value there is no basis for affording the transaction treatment as a gain entitled to non-recognition under § 337. The taxpayer’s position in substance is that there was a sale of items constituting property within the broad definition of that term in § 337 and not covered by its specified exclusions; that the tax benefit cases are of limited application, those involving anticipatory assignment of income and others relied on by the Government being inapposite; and that, in any event, the deductions taken by Service on purchase of the rental items were in the nature of depreciation deductions and not subject to recapture. In rejecting the Government’s contentions the Tax Court stated: “Assuming, for the purposes of this case, that the amount in question represents the recovery of expenses previously deducted from gross income by the corporation and that such recovered amount would be taxable to the corporation in the year of recovery under other circumstances, it is nevertheless gain which resulted to the corporation from the sale of all its assets pursuant to a plan of complete liquidation and is nonrecognizable to the corporation under the provisions of section 337” (48 T.C. at 820-821) We do not interpret § 337 as having the special effect on this transaction which the Tax Court finds. If “under other circumstances” (i.e., the sale of the rental items in question without a § 337 liquidation) the tax benefit rule and similar principles would have made the proceeds from the sale of such property taxable as ordinary income, they should also be taxable as ordinary income here. In § 337 Congress dealt with the problem of taxation on gain to both corporation and its stockholders where a sale of assets and subsequent liquidation occur, arising from the decisions in Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945), and United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950). And the means employed was" }, { "docid": "2696507", "title": "", "text": "is taxable. Often the decision is based upon one or more of the principles of— (a) Assignment of income, (b) Tax benefit, or (c) Tax accounting principles. Commissioner of Internal Revenue v. First State Bank of Stratford, (5 Cir. 1948) 168 F.2d 1004, 7 A.L.R.2d 738. Here the bank had charged off notes as wholly worthless and distributed the notes as dividends. The notes later appeared collectible. The Court held that the Bank could not avoid the tax, relying at length on the assignment of income cases, including the Horst case (supra), (311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75). Tax benefit principles are referred to in the concurring opinion approved by a majority of the judges, (p. 1011 of 168 F.2d.). The court inferentially refers to tax accounting principles in its statement that “ [consistency is essential to fairness in income-tax accounting.” (p. 1009 of 168 F.2d). In Williamson v. United States, (C.C1. 1961) 292 F.2d 524, accounts receivable were distributed to shareholders. The opinion relied on assignment of income principles and cited Horst, (supra). It also cites cases based on proper methods of accounting. Carter (1947) 9 T.C. 364, affirmed on other issues, (2d Cir. 1948) 170 F.2d 911, like Williamson (supra), involved distribution of receivables, namely oil brokerage commissions. The corporation was on a cash basis but the Tax Court required the items to be reported as income in the year of liquidation as if the corporation was on an accrual basis. The Court relies upon proper methods of accounting, but also talks in terms of assignment of income. “ * * * The corporation had fully earned the income * * * the contracts had been fully performed * * * the corporation had sent out bills for its earnings.” (9 T.C. at 373-374). Jud Plumbing & Heating, Inc. v. Commissioner, (5 Cir. 1946) 153 F.2d 681 and Standard Paving Co. v. Commissioner, (10 Cir. 1951) 190 F.2d 330, involved liquidating distributions of construction contracts using the completed contract method of reporting. After the contracts were completed by the shareholders, the Commissioner allocated between the" }, { "docid": "20100286", "title": "", "text": "Pierce, Judge: These proceedings involve deficiencies in income tax determined by the Commissioner as follows: All these cases were consolidated for trial. Decision in docket No. 93303 respecting the fiscal period ended in 1956 will be deferred until the recomputation of tax under Eule 50. The issue for this 1956 period involves the amount deductible by Pridemark, Inc., as a net operating loss carryback from a subsequent taxable period; and such amount will depend on the outcome of other issues before us. The issues to be here decided are: Whether certain 1958 and 1959 transactions of Pridemark, Inc., Pridemark, Inc., of Connecticut, and their respective stockholders, effected complete liquidations of said corporations within the meaning of section 337 of the 1954 Code; or whether such transactions were incidental to a reorganization of the continuing business enterprise. Determination of this issue will provide the answer to two other underlying questions, to wit: (a) Do the gains which said corporations realized from sales of certain assets during their taxable periods ended in 1958, qualify for nonrecognition for income tax purposes under section 337(a) ? (b) Do the distributions of cash which petitioners Eugene Blitz, Jules E. Blitz, and Gershan K. Thiman received from Pridemark, Inc., in 1958, qualify for capital gains treatment as liquidating dividends; or are these distributions taxable to them, as ordinary dividends ? Irrespective of the applicability or nonapplicability of section 337: (a) Whether gains which each of the above-named corporations realized from sales to another corporation of certain of their uncompleted customer contracts are taxable to said corporations as ordinary income; and (b) Whether any part of the proceeds which Pridemark, Inc., received upon its disposition of said customer contracts was consideration for the sale of goodwill. Whether the amounts of certain customer deposits, which the two corporations retained for their own benefit at the time they disposed of the customer contracts to which these deposits related, are includible in the taxable incomes of said corporations for their taxable years ended February 28, 1958, and May 31, 1958, respectively. Whether legal fees which Pridemark, Inc., incurred in connection" }, { "docid": "23068938", "title": "", "text": "are designed to lessen the hardship of taxing the appreciation in value of such property in any one tax year. It is clear that the contracts in question do not fall within this exception. They represent services rendered in obtaining the contracts rather than an enhancement of an income producing asset. The taxpayer contends, however, that even if the sale price of the uncompleted contracts is an ordinary income item, it is nevertheless exempted from taxation by the provisions of section 337. That section exempts from taxation gains arising from the sale of “property” during the year of liquidation. The parties to the appeal offer contrasting definitions of “property.” The taxpayers insist that the term embraces any asset other than those explicitly excluded. To this the Commissioner answers that it has the same meaning as when used in defining “capital asset” under section 1221. The Tax Court found it unnecessary to reach this issue, having decided that there was not complete liquidation. Section 337 was embodied in the Internal Revenue Code of 1954 to allow liquidating corporations to avoid a double incidence of capital gains taxation — once when capital assets are sold by the corporation, and again on distribution of the proceeds to the shareholders. Congress, however, clearly indicated that it did not intend section 337 to be used as a device to avoid taxation on income generated by the normal operations of a business. The taxpayers offer no explanation as to why Congress would wish to tax such income if received by the liquidating corporation directly from the customers but exempt it if it is received indirectly through a third party as consideration for an assignment before collection. The heart of the definition of “property” in section 337 was taken almost verbatim from the definition of capital assets referred to above, now found in section 1221. Both sections are designed to give preferential tax treatment to sales of certain types of assets not held for sale in the ordinary course of business. We interpret them as having the same meaning. Thus, section 337 exempts the sale of capital" }, { "docid": "23068940", "title": "", "text": "assets only during the year of liquidation. The uncompleted sales contracts not being capital assets, the proceeds received for their assignment are to be taxed as ordinary income. Ill The remaining issues may be disposed of without extensive discussion. For the reasons stated by the Tax Court we affirm its holding that deposits made on the “inactive” contracts must be included in Pridemark’s income for the year in which those contracts were sold to Golden Key rather than in the year of final liquidation. We reverse the Tax Court’s decision that legal fees incurred in connection with the sale of assets to Golden Key are to be deducted from the gain realized on that sale. Its decision was predicated on the determination that there was no complete liquidation. Having found a liquidation, we approve Pridemark’s deduction of these fees as ordinary and necessary business expenses incurred in liquidation. Pacific Coast Biscuit Co., 32 B.T.A. 39, 42 (1935); see Note, “Certain Tax Aspects of Organization, Reorganization, and Liquidation Costs,” 10 Stan.L.Rev. 112, 118-19 (1957). Finally, the Tax Court disallowed a deduction to Pridemark for the |30,000 paid to Eugene Blitz in 1959 as deferred compensation because, in part at least, the taxpayers had failed to sustain their burden of showing that the amount of compensation was reasonable. We affirm the disallowance on this ground. The Tax Court’s resolution of this factual issue was in no sense arbitrary. Affirmed in part and reversed in part. . 42 T.C. 510 (1964). . Int.Rev.Code of 1954, § 331: “(a) General rule.— “(1) Complete liquidations. — Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock.” Int.Rev.Code of 1954, § 337: “(a) General rule. — If— “(1) a corporation adopts a plan of complete liquidation on or after June 22, 1954, and “(2) within the 12-month period beginning on the date of the adoption of such plan, all of the assets of the corporation are distributed in complete liquidation, less assets retained to meet claims, then no gain or loss shall be recognized to such" }, { "docid": "20100287", "title": "", "text": "income tax purposes under section 337(a) ? (b) Do the distributions of cash which petitioners Eugene Blitz, Jules E. Blitz, and Gershan K. Thiman received from Pridemark, Inc., in 1958, qualify for capital gains treatment as liquidating dividends; or are these distributions taxable to them, as ordinary dividends ? Irrespective of the applicability or nonapplicability of section 337: (a) Whether gains which each of the above-named corporations realized from sales to another corporation of certain of their uncompleted customer contracts are taxable to said corporations as ordinary income; and (b) Whether any part of the proceeds which Pridemark, Inc., received upon its disposition of said customer contracts was consideration for the sale of goodwill. Whether the amounts of certain customer deposits, which the two corporations retained for their own benefit at the time they disposed of the customer contracts to which these deposits related, are includible in the taxable incomes of said corporations for their taxable years ended February 28, 1958, and May 31, 1958, respectively. Whether legal fees which Pridemark, Inc., incurred in connection with its above-mentioned sale of miscellaneous assets, are deductible by said corporation as ordinary and necessary business expenses; or whether the amounts of these fees should be treated as an offsetting adjustment in computing its gams from said sale. Whether Pridemark, Inc., is entitled to deduct for its taxable period ended on January 7, 1959, any amounts paid as salaries to Eugene Blitz and Jules E. Blitz in excess of $8,700 and $5,590, respectively. We shall hereinafter consider these several issues, consecutively. GENERAL FINDINGS OF FACT Some of the facts have been stipulated. The stipulation of facts and all exhibits identified therein are incorporated herein by reference. Petitioner Pridemark, Inc. (hereinafter called Pridemark), is a dissolved Maryland corporation, which was organized in 1946 under the name of Prefab Homes and Suppliers, Inc. At all times relevant, it kept its books of account and filed its income tax returns on an accrual basis. Its income tax returns for all fiscal periods here involved were filed with the district director of internal revenue at Baltimore. Petitioner Pridemark," }, { "docid": "13364913", "title": "", "text": "to his son was taxable on the interest collected by his son. In Eubank, the tax payer was liable for the income tax on renewal commissions earned by him as an insurance agent, the right to collect which had been assigned to another. In Harrison v. Schaffner, the Court held that a voluntary assignment by the income beneficiary of a trust of a percentage of the succeeding year’s trust income was an anticipatory assignment of income which remained taxable to the assignor. The philosophy underlying these cases is that the taxpayer has performed services or has a vested interest in property which gives him an unrestricted claim to compensation or income therefrom; the exercise of the unfettered power to dispose of that income is deemed analogous to its enjoyment or realization, thus resulting in a tax upon the assignor rather than upon the assignee who receives the income in fact. The same principle is found in cases involving corporations, where the assignment of the claim to income in the form of compensation for services or proceeds from sales is usually to the shareholders as part of a plan of liquidation. This Court confronted the problem in Donner v. Commissioner, 227 F.2d 381 (2d Cir. 1955), a case where the facts were more favorable to the corporation than in the instant case. There, a corporation owning numerous parcels of land on which homes had been constructed distributed in liquidation all of its property after contracting to sell most, but not all, of the parcels. The purchaser of each parcel closed title to the property after the liquidating distribution to the shareholders had taken place. This Court noted that most of the parcels of land had been contracted for at the time of the distribution and that the corporation had already contracted with a sales agent relating to the sale of the remaining parcels. Since the corporation’s contract rights had become relatively well determined and since the shareholders had no flexibility as to the administration of those contract rights at the time the property was distributed to them, we held the corporation" }, { "docid": "23068932", "title": "", "text": "than the alter ego of the transferor. See Lane, “The Reincorporation Game: Have the Ground Rules Really Changed?,” 77 Harv.L.Rev. 1218, 1247 (1964). Such was not the case here. Since there is a complete liquidation of Pridemark, Inc., and Pridemark, Inc. of Connecticut, within the meaning of sections 331 and 337, the distributions to the shareholders are entitled to be treated as a redemption of stock and taxed as a capital gain. II Among the assets sold by the old corporation to Golden Key on February 3, 1958, were all of Pridemark’s sales contracts upon which no deliveries had been made. There were 1,108 such contracts, 258 of which were described as “active” because it was anticipated that a substantial portion of them would be consummated by the final delivery of a house. A purchase price of $134,400 was agreed on by estimating the number of contracts in this active group that would result in final delivery (91) and multiplying it by the average purchase price of each house ($6,000). The agreed purchase price was 20% of this figure. The computation produced a figure of $109,200, to which was added $25,200 representing the possibility that eventually some of the remaining contracts might also be consummated. A total of $23,624 in deposits had been made by the customers in connection with these contracts. Although the petitioners kept their books on an accrual basis they had not accrued, at any time prior to the sale, any amount with respect to these 1,108 uncompleted contracts. The taxpayers’ position is that these contracts are “property” with the result that their sale during the year of complete liquidation is tax exempt under the terms of section 337(b). The Commissioner, on the oth er hand, contends that these uncompleted contracts are not “property,” as that term is used in section 337, because they represent ordinary income earned by the performance of services. Before determining whether the gain should be recognized it is necessary to decide the nature of the gain that the Commissioner seeks to tax and the taxpayers seek to exempt. The contracts were the" }, { "docid": "14141800", "title": "", "text": "liquidation proceeds and that the taxpayer was not entitled to exclude from gross income the capital gains resulting from the distribution. The Second Circuit applied the “realities and substance” test in reviewing the facts, and identified three reasons why it was unlikely that the plan of liquidation would be abandoned. The reasons identified were: (1) that a plan of liquidation under section 337 had been adopted and that section requires liquidation within one year of the adoption of the plan in order for the corporation to avoid a taxable gain on the sale of assets; (2) the donee, although holding a majority of the stock, did not have the requisite two-thirds control to unilaterally prevent the liquidation; and (3) the donee’s policy was to liquidate shares of stock given to it. The court’s conclusion was that: “Realistically considered, in the light of all the circumstances, the transfer of the . . . stock to DePauw [University] was an anticipatory assignment of the liquidation proceeds.” 477 F.2d at 1063. Upon consideration, we are persuaded to adopt the rule expressed by the Second and Eighth Circuits that the “realities and substance” of the events and not hypothetical possibilities should govern our determination whether an anticipatory assignment of income has occurred. We conclude that the realities and substance of the events in this case indicate that the taxpayer expected the liquidation proceedings to be completed. In fact, the taxpayer explained in a letter to the Dean of the College of Medicine of Ohio State University (one of the donees) that the company was being liquidated and that he would be notified by a bank officer when to present the stock for cash redemption. Also, the liquidation was conducted in accordance with section 337 of the Internal Revenue Code of 1954, which requires a corporation to liquidate within one year from the adoption of a plan of liquidation in order for the corporation to be eligible for non-recognition of any gain on the sale of assets. If the liquidation had not been completed, the corporation would have had to recognize a substantial taxable gain" }, { "docid": "20100340", "title": "", "text": "to providing assistance to the customers in their meeting the conditions precedent to delivery of materials, had been performed. The Commissioner, in the notices of deficiency issued herein to Pridemark and Connecticut, determined that said corporations derived gains from their sales of said uncompleted contracts to Golden Key in their fiscal years ended February 28,1958, and May 31, 1958, in the respective amounts of $97,547 and $17,321 (exclusive of certain customer deposits thereon which they retained); that these gains were not exempt from income tax because said corporations did not qualify under section 337; and that the same were taxable as ordinary income under section 61 of the 1954 Code. OPINION RE ISSUE 2 In our preceding opinion for Issue 1, we have in substance approved the Commissioner’s determination under the present issue that the gains which Pridemark and Connecticut realized from selling certain of their uncompleted customer contracts to Golden Key, are not exempt from income tax; and accordingly the only remaining question to be decided under the present issue is whether the Commissioner ivas correct in determining that such gains are to be taxed as ordinary income, rather than as capital gains. The Commissioner has contended on brief that such gains qualify as ordinary income, because they represent consideration for an anticipatory assignment of income — that is, a lump-sum consideration for-the advance assignment of income which they otherwise would have received in the form of dealer commissions or discounts if they had retained said contracts until Golden Key had made its deliveries to the customers. We agree with such contention. As we have hereinabove found, Pridemark and Connecticut were principally service organizations which derived their incomes by obtaining customer contracts for Golden Key prefabricated houses, through advertising, circulation of catalogs and sales pamphlets, and the solicitation of prospective customers; and also by assisting customers in making their arrangements for financing and erection of the houses. In those situations where customer contracts that were not assigned were consummated through deliveries of materials by Golden Key, these dealer corporations derived and accrued as ordinary income for their services, dealer" }, { "docid": "12826924", "title": "", "text": "any efforts to achieve a parity between Sections 336 and 337. See B. Bittker & J. Eustice, supra, para. 11.65, at 11-69 n. 124. It is interesting to note that the House version of what became Section 337 provided only for the nonreeognition of gains. See H.Rep.No. 1337, 83d Cong., 2d Sess.; [1954] 3 U.S. Code Cong. & Adm.News at 4244. See also Frank W. Verito, 43 T.C. 429, 438 (1965). For purposes of the present case, it is sufficient to note that the approach which we adopt creates no greater disparity in the context of sales at a loss than do the approaches based on the Section 337-1221 analogy. . The decisions in Kueheiiberg, Family Record Plan, Inc., and Williamson, cited in the text, rested upon the Commissioner’s authority under 26 U.S.C. § 446(b) to impose upon a taxpayer a method of accounting which clearly reflects income, in addition to the assignment of income doctrine. See also Jud Plumbing & Heating, Inc. v. Commissioner, 153 F.2d 681 (5th Cir. 1946) (allocating to a liquidated corporation its prorata portion of profits under uncompleted contracts, notwithstanding the corporation’s completed-contract method of accounting). While in its answer to the present suit the Government asserted that Surface’s profits at issue here were “based upon the percentage of completion of work in process”, it has at no time expressly invoked the Commissioner’s authority under Section 446(b). We find, however,' no authority suggesting that the invocation of Section 446(b) is a prerequisite to judicial application of the assignment of income doctrine. . In addition to the three completed contracts which were sold by the corporation pursuant to a Section 337 plan of liquidation, tlie Kuckeriberg case also involved one uncompleted contract which was distributed to the shareholders and completed by them. Again relying upon the Comissioner’s authority under Section 446(b) and, presúmably, the assignment of income doctrine, the Court of Appeals upheld the Commissioner’s imposition of a corporate tax under the percentage of completion method of accounting. See 309 F.2d at 207." }, { "docid": "2265515", "title": "", "text": "the notes here represented such a dividend. Ordinarily no gain or loss is realized by a corporation from the mere distribution of its assets in kind in partial or complete liquidation, however they may have appreciated or depreciated in value since their acquisition; but the rule is deemed to be otherwise where the dividend in kind is not in liquidation and consists of bad debts on account of the worthlessness of which a deduction was allowed for a prior taxable year. Whether or not the respondent corporation made an assignment of anticipatory income upon the distribution of its dividend in kind depends upon the nature of the property distributed in relation to the capital structure of the corporation. In this case, the charged-off debts no longer represented an asset except in the sense that any vested right to receive income is an asset; the notes had a basis of zero, and were no longer reflected in the capital structure of the corporation. They merely represented potential income to the extent of the tax deduction previously allowed. The Tax Court distinguished the Horst and Eubank cases because in them the anticipatory assignments were without consideration, which is not true as to a dividend in kind. We think the question of consideration is not controlling or even important here. The question is one of the realization of income. Property may be disposed of by gift, sale, exchange, or abandonment, among which only abandonment could involve no taxable gain- The distribution of a dividend in kind is none of these. It is a delivery or assignment of property to its equitable owners. In this case, a sale or exchange of the notes would doubtless have resulted in the realization of a taxable gain, but no such disposition was required to realize income. The notes as collected would have been income to the corporation, and they were none the less the fruition of economic gain when collected by the assignees. It is the realization of income, rather than the acquisition of the right to receive it, that is the taxable event, and there is" }, { "docid": "10933370", "title": "", "text": "all sales of property are protected under section 337. However, in those cases where a sale of property has not been afforded protection under section 337 it was because the corporation involved was trying to convert ordinary income into capital gain. See Central Building & Loan Association, 34 T.C. 447 (1960); Family Record Plan, Inc., 36 T.C. 305 (1961), affd. 309 F. 2d 208 (C.A. 9, 1962); Commissioner v. Kuckenberg, 309 F. 2d 202 (C.A. 9, 1962), modifying 35 T.C. 473 (1960), certiorari denied 373 U.S. 909 (1963); Jeanese, Inc. v. United States, 227 F. Supp. 304 (N.D. Cal. 1964); West Seattle National Bank of Seattle, 33 T.C. 341 (1959), affd. 288 F. 2d 47 (C.A. 9, 1961). In Central Building <& Loan Association, supra, this Court held there was only a collection of interest rather than a “sale or exchange” where part of the proceeds received represented accrued interest on note obligations. In Family Record Plan, Inc., supra, we held that accounts receivable of a cash basis taxpayer were installment obligations within the meaning of section 337 (b) so that the gain on their sale was fully recognizable. In West Seattle National Bank of Seattle, supra, involving the sale of accounts receivable with respect to which reserves for bad debts had been deducted, we held that an amount received equal to the bad debt reserves was ordinary income and section 337 did not apply because the income sought to be taxed did not arise from the sale of assets. Clearly, it was not the purpose of section 337 to allow the sale of the right to receive income to escape taxation. Respondent contends that to allow the sales here to escape taxation at the corporate level would be tantamount to allowing a corporation to operate tax free during the period of liquidation and to allowing ordinary income to be converted into capital gain. Since the major portion of the gain realized on the sales of the transferor corporations was short-term gain, respondent argues that if section 337 applies the short-term gain would be converted into long-term gain in the" }, { "docid": "904306", "title": "", "text": "imposed certain restrictions on application of the tax benefit rule. This provision is said to evidence legislative approval of decisions fashioning the rule. Reference is also made to a ruling which denied treatment as a non-recognizable gain in a § 337 liquidation involving the sale of coal, plumbing supplies and small tools. See Rev. Rui. 61-214, 1961-2 Cum.Bull. 60. . See S.Rep.No.1622, 83d Cong., 2d Sess. 258 (1954); H.R.Rep.No.1337,83d Cong., 2d Sess. A106 (1954); Pridemark, Inc. v. Commissioner, 345 F.2d 35 (4th Cir. 1965); and Commissioner v. Kuckenberg, 309 F.2d 202 (9th Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1296, 10 L.Ed.2d 411 (1963). . See Pridemark v. Commissioner, supra, 345 F.2d at 45, and Merchants National Bank of Mobile v. Commissioner, 199 F.2d 657 (5th Cir. 1952), applying the tax benefit rule and denying capital gains treatment under the predecessor to § 1221. . The written stipulation of the parties included the following paragraph: “6. For Federal income tax purposes Service charged to its expense accounts when purchased the cost of the items used in conducting the aforesaid rental service business. At the end of each taxable year the expense accounts were credited with the costs of the ending inventory of items which had not been placed in service at the end of such taxable year. In the sale of the business to Buyer, hereinafter referred to in paragraph 8 hereof, the sum of $233,000 of the consideration paid was allocated for the items in use.” The Tax Court opinion states, 48 T.C. at 823: “Respondent has not questioned the propriety of expensing the rental items when purchased, or the fact that they were not inventoried. See sec. 446(a) and (c), I.R.C.1954; sec. 1.446-1(c) (iv), Income Tax Regs.; sec. 471 I.R.C.1954; sec. 1.471-1, Income Tax Regs.” . But see Reynolds v. Boos, 188 F.2d 322 (8th Cir. 1951). Moreover, the Anders opinion has been followed and such tax benefit decisions held inapplicable in Spit-alny v. United States, 288 F.Supp. 650 (D.Ariz.1968), a § 337 liquidation case involving charged off expenses of cattle feed and similar supplies. ." } ]

[ { "docid": "23487472", "title": "", "text": "OPINION OF THE COURT MANSMANN, Circuit Judge. This matter, arising under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415 et seq., requires that we determine whether the parents of a student eligible for programs and services under the IDEA are entitled to have their daughter’s private school placement funded by the local public school district prior to the conclusion of litigation establishing the propriety of that placement. The case comes to us in an interlocutory posture; the public school district has asked us to review the district court’s order denying a Motion for Stay Pending Appeal. This denial effectively directs that the student remain in the private school placement and that this placement be funded by the local public school district pending resolution of the merits of the underlying litigation. Because we conclude that the district court properly declined to enter a stay, we will affirm the order of the district court. I. In the academic year 1994-1995, Raelee S., a learning disabled student within the meaning of the IDEA, entered the ninth grade at Susquenita High School. In the summer of 1994, the Susquenita school district had issued a Notice of Recommended Assignment (“NORA”) to Raelee’s parents and proposed an individualized education program (“IEP”). As of the start of the school year, the parents had not accepted either document. Shortly after school began, however, the parents rejected the NORA and the proposed IEP, withdrew Raelee from Susquenita, and placed her in a private school for the learning disabled. They then invoked their right to a due process hearing pursuant to section 1415(b)(2) of the IDEA in order to determine whether Raelee had been properly placed and whether, accordingly, they were entitled to tuition reimbursement. In a decision announced in April 1995, the hearing officer found that the IEP which Susquenita had proposed for Raelee was appropriate and that the school district should not be forced to bear the financial burden of the parents’ unilateral decision to place Rae-lee in a private school. The parents appealed this decision to a three member state special education appeals panel." } ]

[ { "docid": "23487476", "title": "", "text": "motion for stay pending appeal filed pursuant to Fed.R.Civ.P. 62(d) and (f), Susquenita asked that the district court stay the appeals panel decision “insofar as it directs Susquenita to reimburse the parents for expenses and ... states that Raelee’s placement within the meaning of 20 U.S.C. § 1415(e)(3) is a private school.” The district court denied Susquenita’s motion, noting that “Rule 62(d) requires an analysis similar to that employed in evaluating a request for a preliminary injunction.” (Typescript at 5.) The court identified four factors to be considered, including: 1) the movant’s likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the request is denied; 3) whether third parties will be harmed by the stay; and 4) whether granting the stay will serve the public interest. The district court evaluated each of these factors, concluding first that the likelihood of Susquenita’s success on the merits was very difficult to predict. The court found, however, that, “on the current state of the record made at the administrative level, we would conclude that the likelihood of success favors Raelee S.” (Typescript at 4.) The court also found the public interest factor difficult to evaluate, stating that while the public interest favored Raelee’s receiving a free and appropriate education, the state of the record made it difficult to assess whether Raelee received such an education in the Susquenita School District. The court concluded, however, that “were we compelled to make such an assessment at this juncture, we would be constrained to come down on the side of [Raelee S.].” Id. The court next found that third parties would not be harmed if the stay were denied: The only harm which we can conceive of is the financial burden which will be borne by the district during the pendency of this appeal. We have nothing before us to suggest that other students will be denied a proper or adequate education if the order compelling the district to fund her private school remains in effect during the pen-dency of this appeal. Id. Evaluating Susquenita’s allegation of irreparable harm, the" }, { "docid": "22956159", "title": "", "text": "141 F.3d at 527 (internal quotation marks, citations, and footnote omitted). We at least suggested our agreement with the authority outlined above in our en banc decision in Jersey City, 486 F.3d 791. In Jersey City, we recognized, in light of Burlington, that “[t]he district court is authorized to grant ‘such relief as the court determines is appropriate,’ including attorneys’ fees, reimbursement for a private educational placement, and compensatory education.” Id. at 802; see Shore Reg’l, 381 F.3d at 197 (affirming an administrative law judge’s order for a school district “to reimburse [the student] for the out-of-district tuition and related costs, including [the student’]s reasonable attorneys’ fees”); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 85 (3d Cir.1996). Indeed, in Bucks County, we pointed to our earlier broad interpretations of the term “appropriate.” 379 F.3d at 67. In line with that expansive view, we also clarified that “appropriate” should not be read so narrowly so as to preclude [a plaintiff] from being paid for her time just because she did not write a check to a third party. If we limited reimbursement to actual out-of-pocket expenses, we would give a narrow construction to “appropriate,” and this would be contrary to both the Supreme Court’s broad interpretation of the term in Burlington and our own broad interpretation in Matula. Id. at 69. Given the Supreme Court’s pronouncement in Burlington as well as the plain language and structure of the IDEA, we agree with our sister circuits, and now hold, that compensatory and punitive damages are not an available remedy under the IDEA. That language and structure make plain that Congress intended to ensure that disabled children receive a FAPE under appropriate circumstances, not to creaté a mechanism for compensating disabled children and their families for their pain and suffering where a FAPE is not provided. Accordingly, to the extent the Chambers seek such damages on their IDEA claim, that claim fails as a matter of law. The Chambers contend, however, that they are not seeking merely compensatory damages. They claim to have incurred expenses because of the School District’s alleged" }, { "docid": "6621457", "title": "", "text": "the end of January 1998, it denied a motion for reconsideration. The State defendants have also appealed both orders. Trial is set for 15 June 1998. II. The State defendants’ motion to consolidate these two interlocutory appeals is GRANTED. For each appeal, based on the facts and circumstances of this case, we conclude, dubitante, that we have jurisdiction under the collateral order doctrine. Concerning the.appeal from the stay-put order, see Susquenita School Dist. v. Raelee S., 96 F.3d 78, 81 n. 4 (3d Cir.1996) (stay-put order qualifies as a collateral order because it conclusively determines student’s pendent placement and tuition reimbursement rights associated with such placement; resolution of those questions is completely separate from the merits issues which focus on adequacy of the proposed IEP; and the propriety of the pendent placement and the concomitant financial responsibility are not effectively reviewable on appeal of a decision on the merits). Similarly, as for the appeal concerning the denial of the State defendants’ motion for scheduling and state management of an IEP for Daniel Slocum, the orders in issue conclusively deny the State defendants a right to schedule and manage an IEP pending a merits-decision; resolution of that question is separate from the merits-decision, which focuses on the adequacy of the April 1996 IEP; and the interlocutory order is not effectively reviewable on appeal of the merits-decision. In the first appeal, the State defendants raise the following issues: (1) whether the district court erred by imposing liability on the Department of Education for interim costs pending a merits-decision; (2) whether those costs are reasonable; (3) whether the Department can obtain reimbursement from the Slocums if the State defendants prevail on the merits; (4) whether IDEA, as interpreted by the district court, is unconstitutional; and (5) whether the Slocums violated IDEA by unilaterally placing Daniel Slocum at Heartspring, without giving the School Board and/or the State defendants an opportunity to make a site determination in accordance with the IEP. At issue in the second appeal are whether the district court erred (1) by concluding that the stay-put order remains in effect while it" }, { "docid": "23487475", "title": "", "text": "the academic year 1994-1995] are legally permissible. Id. at 6. Also critical to this controversy is the panel’s statement, in dicta, that “unless this order is overturned in a Commonwealth or federal district court, the private school placement shall be the pendent placement in any future disputes between the parent and the District.” Id. On July 3, 1995, Susquenita filed a Complaint in the Nature of an Appeal from the decision of the special education appeals panel. Jurisdiction was appropriate under the provisions of 20 U.S.C. § 1415(e)(2) which provides that “any p[arty] aggrieved by the findings and decision made [by a State educational agency] ... shall have the right to bring a civil action ... in a district court....” In the complaint, Susquenita alleged that the education appeals panel improperly disregarded the credibility determinations made by the hearing officer, made findings of fact not supported by the record, and, most importantly for purposes of this appeal, erred when it identified the private school as Rae-lee’s pendent placement and awarded tuition reimbursement. In a contemporaneous motion for stay pending appeal filed pursuant to Fed.R.Civ.P. 62(d) and (f), Susquenita asked that the district court stay the appeals panel decision “insofar as it directs Susquenita to reimburse the parents for expenses and ... states that Raelee’s placement within the meaning of 20 U.S.C. § 1415(e)(3) is a private school.” The district court denied Susquenita’s motion, noting that “Rule 62(d) requires an analysis similar to that employed in evaluating a request for a preliminary injunction.” (Typescript at 5.) The court identified four factors to be considered, including: 1) the movant’s likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the request is denied; 3) whether third parties will be harmed by the stay; and 4) whether granting the stay will serve the public interest. The district court evaluated each of these factors, concluding first that the likelihood of Susquenita’s success on the merits was very difficult to predict. The court found, however, that, “on the current state of the record made at the administrative level, we would" }, { "docid": "23487477", "title": "", "text": "conclude that the likelihood of success favors Raelee S.” (Typescript at 4.) The court also found the public interest factor difficult to evaluate, stating that while the public interest favored Raelee’s receiving a free and appropriate education, the state of the record made it difficult to assess whether Raelee received such an education in the Susquenita School District. The court concluded, however, that “were we compelled to make such an assessment at this juncture, we would be constrained to come down on the side of [Raelee S.].” Id. The court next found that third parties would not be harmed if the stay were denied: The only harm which we can conceive of is the financial burden which will be borne by the district during the pendency of this appeal. We have nothing before us to suggest that other students will be denied a proper or adequate education if the order compelling the district to fund her private school remains in effect during the pen-dency of this appeal. Id. Evaluating Susquenita’s allegation of irreparable harm, the district court found that, under current caselaw, the district would not be entitled to recover funds expended to maintain Raelee in private school even if it were to prevail on appeal. The court thus found merit in Susquenita’s argument that it would suffer irreparable harm if the stay were denied. The court, however, did not find this prospect of harm sufficient to justify granting the stay. “Taken together, we find that the relevant considerations do not justify granting the stay requested by the district.” (Typescript at 4.) Accordingly, the district court denied Susquenita’s motion for a stay and held that Raelee’s “‘current educational placement’ for section 1415(e)(3) purposes will remain the private school ... during the pendency of this appeal and until further order of the court declaring otherwise.” (Typescript at 5). This holding also effectively decided the reimbursement question in favor of Raelee’s parents. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291; we review the district court’s order under an abuse of discretion standard. Sierra Club v. Cedar Point Oil" }, { "docid": "23487478", "title": "", "text": "district court found that, under current caselaw, the district would not be entitled to recover funds expended to maintain Raelee in private school even if it were to prevail on appeal. The court thus found merit in Susquenita’s argument that it would suffer irreparable harm if the stay were denied. The court, however, did not find this prospect of harm sufficient to justify granting the stay. “Taken together, we find that the relevant considerations do not justify granting the stay requested by the district.” (Typescript at 4.) Accordingly, the district court denied Susquenita’s motion for a stay and held that Raelee’s “‘current educational placement’ for section 1415(e)(3) purposes will remain the private school ... during the pendency of this appeal and until further order of the court declaring otherwise.” (Typescript at 5). This holding also effectively decided the reimbursement question in favor of Raelee’s parents. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291; we review the district court’s order under an abuse of discretion standard. Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir.1996). II. The broadest issues in this litigation are those relating to the adequacy of the IEP proposed by Susquenita; these are the merits issues yet to be addressed by the district court. The issues underlying the district court’s denial of the stay are narrow, involving practical questions of where Raelee should attend school while the review process proceeds, who must pay for Raelee’s placement, and when that payment must be made. Susquenita argues that it has no financial obligation to Raelee’s parents because the private school is not the appropriate pendent placement. Alternatively, Susquenita contends that any financial obligation which it may have can be assessed only at the end of the appellate process. These issues of pendent placement and financial responsibility are linked; in order to evaluate the payment questions, we must first assess the legal impact of the education appeals panel directive that the private school be deemed Raelee’s pendent placement during the review process. III. The pendent placement concept is an important feature of the IDEA." }, { "docid": "23487474", "title": "", "text": "On June 1, 1995, the panel reversed the hearing officer’s decision, finding that the proposed IEP was deficient in a number of respects and that “Raelee’s educational program was not reasonably calculated to provide for meaningful education benefit.” (Special Education Opinion No. 672, Typescript at 13.) Addressing the private school placement, the panel wrote: Although the private school is dedicated to the education of students with learning disabilities and therefore represents a more restrictive placement, we find that Raelee’s current needs in learning outweigh her need for integration \"with non-disabled peers. Thus we find the program offered by the private school appropriate for Raelee. Id. The panel then moved to the crux of the issue which we now confront, writing: Parents have a right to withdraw their children from public school unilaterally ... and receive reimbursement for private school tuition when a district has failed to provide an appropriate education and when the private school meets the substantive requirements of IDEA.... Thus we find that the parents claim for reimbursement of tuition and transportation [for the academic year 1994-1995] are legally permissible. Id. at 6. Also critical to this controversy is the panel’s statement, in dicta, that “unless this order is overturned in a Commonwealth or federal district court, the private school placement shall be the pendent placement in any future disputes between the parent and the District.” Id. On July 3, 1995, Susquenita filed a Complaint in the Nature of an Appeal from the decision of the special education appeals panel. Jurisdiction was appropriate under the provisions of 20 U.S.C. § 1415(e)(2) which provides that “any p[arty] aggrieved by the findings and decision made [by a State educational agency] ... shall have the right to bring a civil action ... in a district court....” In the complaint, Susquenita alleged that the education appeals panel improperly disregarded the credibility determinations made by the hearing officer, made findings of fact not supported by the record, and, most importantly for purposes of this appeal, erred when it identified the private school as Rae-lee’s pendent placement and awarded tuition reimbursement. In a contemporaneous" }, { "docid": "23487500", "title": "", "text": "district court’s denial of Susquenita’s motion for stay was consistent with the sound exercise of judicial discretion. We will, therefore, affirm the order of the district court. Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, Circuit Judges and BROTMAN, District Judge. SUR PETITION FOR REHEARING Oct. 18, 1996 The petition for rehearing filed by appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. . \"Pendent placement” is a term of art with origins in section 1415(e)(3) of the IDEA. This section provides that [d]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child.... . On appeal, Susquenita cites Fed.R.Civ.P. 62(c), the section titled “Injunction Pending Appeal.” . The order encompassed reimbursement for expenses incurred in the 1994-1995 academic year. By adopting the appeals panel holding that the private school was the appropriate placement pending a contrary judicial order, Order # 1 also effectively made Susquenita financially responsible for continuing the private school placement. Order # 1 thus decided both reimbursement for and prospective payment of private school tuition. . Order # 1 qualifies as a collateral order subject to review under the three prong test established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The requirements of the collateral order doctrine are satisfied in that 1) Order # 1 conclusively determines Raelee's pendent placement and tuition reimbursement rights associated with that placement; 2) resolution of these questions is completely separate from the merits issues which focus on the adequacy" }, { "docid": "23487486", "title": "", "text": "the protection of the stay-put provision, opting instead to place Raelee in a private school at their own expense. Prior to the time that the education appeals panel announced its decision, then, the pendent placement provision was inoperative. At the time of her transfer to the private school, Raelee’s parents did not dispute that the public school would have been the appropriate pendent placement within the meaning of the IDEA. The parents argue, however, that the pendent placement and, therefore, the financial responsibility landscape was altered when the state education appeals panel ruled in their favor on June 1, 1995. We agree. In its decision the appeals panel found that the IEP which Susquenita proposed for Raelee was inadequate and that the private school placement was appropriate. The panel directed that the private school be deemed Raelee’s pendent placement in any future disputes “unless the [panel] order is overturned in a Commonwealth or federal district court.” (Typescript at 14 n. 27). Relying on this panel directive, the parents argue that a new pendent placement was created and that, from the time of the panel decision forward, Susquenita is required to bear the financial burden of maintaining Rae-lee at the private school. The parents’ position is derived directly from the language of the statute. As we have noted, section 1415(e)(3) of the Act reads as follows: “During the pendency of any proceedings conducted pursuant to this section, unless the state or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement....” The decision of the Supreme Court in Burlington established that a ruling by the education appeals panel in favor of the parents’ position constitutes agreement for purposes of section 1415(e)(3). In Burlington, the Supreme Court noted that while parents who unilaterally remove their child from a prior placement contravene[] the conditional command of § 1415(e)(3) that “the child remain in the then current educational placement,” ... we note that the section calls for agreement by either the state or the local educational agency. The [appellate panel]’s decision in favor of" }, { "docid": "319330", "title": "", "text": "be made by the public school district. In August, as the new school year was beginning, the district court granted the parents their requested relief. Id. The district court’s ruling was immediately appealed. Id. We concluded that a stay-put order qualifies as a collateral order for purposes of interlocutory appeal because it conclusively determines a student’s pendency placement and the tuition reimbursement rights associated with such placement. Id. at 781-82. In support of this holding, we cited a case from another circuit that found resolution of pendencyplacement issues to be “completely separate from the merits issues which focus on adequacy of the proposed IEP; and the propriety of the pendent placement and the concomitant financial responsibility are not effectively reviewable on appeal of a decision on the merits.” Id. at 782 (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 81 n. 4 (3d Cir.1996)); see also Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir.2004) (“A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP.”). In St. Tammany, the district court ordered payment for tuition and other costs for the school year that was about to begin. We affirmed. The Third Circuit case on which we relied also reviewed such a district court order. Susquenita Sch. Dist., 96 F.3d at 85. In that case, the school district appealed the administrative decision to the district court and filed for a stay of the requirement that it reimburse the parents for the private school placement. The district court denied the motion. On interlocutory appeal, the Third Circuit concluded that the school district was required to pay for the child’s private school placement from the point of the administrative decision forward; it also held that the school district “may be required to pay for tuition and expenses associated with a pendent placement prior to the conclusion of the litigation.” Id. at 84. The court explained that “[t]he purpose of the" }, { "docid": "23487479", "title": "", "text": "Co., 73 F.3d 546 (5th Cir.1996). II. The broadest issues in this litigation are those relating to the adequacy of the IEP proposed by Susquenita; these are the merits issues yet to be addressed by the district court. The issues underlying the district court’s denial of the stay are narrow, involving practical questions of where Raelee should attend school while the review process proceeds, who must pay for Raelee’s placement, and when that payment must be made. Susquenita argues that it has no financial obligation to Raelee’s parents because the private school is not the appropriate pendent placement. Alternatively, Susquenita contends that any financial obligation which it may have can be assessed only at the end of the appellate process. These issues of pendent placement and financial responsibility are linked; in order to evaluate the payment questions, we must first assess the legal impact of the education appeals panel directive that the private school be deemed Raelee’s pendent placement during the review process. III. The pendent placement concept is an important feature of the IDEA. In 1975 Congress enacted legislation appropriating funds to help states defray the cost of educating children with disabilities. The IDEA, known originally as the Education of the Handicapped Act, was passed in order “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(c). The IDEA resulted, in part, from a congressional determination that: handicapped children were not being properly educated and were, in most instances, excluded from the classroom. Congress concluded that the problem was the result not only of financial constraints at state and local levels but was also due to state and local laws which enabled school districts to exclude children without consultation with their parents. Thomas v. Cincinnati Board of Education, 918 F.2d 618, 619 (6th Cir.1990). See also H.R.Rep. 332, 94th Cong., 1st Sess. To be eligible for federal funding, states and local agencies are required by the IDEA to comply with federal guidelines and regulations established" }, { "docid": "6621456", "title": "", "text": "court and the Supreme Court denied a stay pending appeal. In early October 1997, the State defendants moved in the district court for authority to manage or participate in Daniel Slocum’s IEP conference at Heartspring, then scheduled for mid-November. That motion was denied as moot, because the November conference was postponed. Next, the State defendants moved in early November 1997 for an order requiring scheduling and state management of an IEP for Daniel Slocum, asserting, on the basis of a Heartspring advertisement, that his condition had dramatically improved and warranted reevaluation. The State defendants maintained that the administration of Prozac to Daniel Slocum in February 1996 triggered the increase in his self-injurious behavior that March, when the St. Tammany IEP evaluation was conducted; and that Daniel Slocum’s condition improved when he was taken off Prozac, just prior to his enrollment at Heartspring in April 1996. The State defendants also asserted that the stay-put order was ineffective while it was on appeal to our court. The district court denied the motion in late December. And, at the end of January 1998, it denied a motion for reconsideration. The State defendants have also appealed both orders. Trial is set for 15 June 1998. II. The State defendants’ motion to consolidate these two interlocutory appeals is GRANTED. For each appeal, based on the facts and circumstances of this case, we conclude, dubitante, that we have jurisdiction under the collateral order doctrine. Concerning the.appeal from the stay-put order, see Susquenita School Dist. v. Raelee S., 96 F.3d 78, 81 n. 4 (3d Cir.1996) (stay-put order qualifies as a collateral order because it conclusively determines student’s pendent placement and tuition reimbursement rights associated with such placement; resolution of those questions is completely separate from the merits issues which focus on adequacy of the proposed IEP; and the propriety of the pendent placement and the concomitant financial responsibility are not effectively reviewable on appeal of a decision on the merits). Similarly, as for the appeal concerning the denial of the State defendants’ motion for scheduling and state management of an IEP for Daniel Slocum, the orders" }, { "docid": "6621460", "title": "", "text": "relief as the court determines is appropriate”. 20 U.S.C. § 1415(e)(2). Accordingly, we have described the district court’s § 1415(e)(2) review as “virtually de novo ”. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998). And, our court will “review de novo, as a mixed question of law and fact, a district court’s [merits-]decision that a local school district’s IEP was or was not appropriate and that an alternative placement was or was not inappropriate under the IDEA”. Id. For these interlocutory appeals, however, we are not reviewing the merits of Daniel Slocum’s IEP or his placement at Heartspring. Instead, we are reviewing interlocutory orders relating to Daniel Slocum’s interim placement, to include the costs of such placement, during the pendency of this litigation. Under such circumstances, we will review for abuse of discretion. See 20 U.S.C. § 1415(e)(2) (authorizing court to “grant such relief as the court determines is appropriate”); School Committee of Town of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 2002-03, 85 L.Ed.2d 385 (1985) (interpreting IDEA as conferring “broad discretion on the court” to order “appropriate” relief, including “retroactive reimbursement to parents” for the earlier costs of placement in a private school); Susquenita, 96 F.3d at 86-87 (interpreting IDEA to permit district court to award costs pending a merits-decision and reviewing such assessment for abuse of discretion). In addition, our court has not considered whether IDEA permits a district court to order payment of the costs of an interim placement, prior to a merits-decision. Because the State defendants do not challenge the district court’s authority to award such costs, we assume, without deciding, that such an award is authorized under IDEA, as interpreted by the Third Circuit in Susquenita. A. Concerning the district court’s holding the Department of Education solely responsible for payment of the costs of Daniel Slocum’s education and related services at Heartspr-ing from 3 April 1997 (the date of the Review Panel decision) through the pendency of this litigation," }, { "docid": "23487501", "title": "", "text": "and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child.... . On appeal, Susquenita cites Fed.R.Civ.P. 62(c), the section titled “Injunction Pending Appeal.” . The order encompassed reimbursement for expenses incurred in the 1994-1995 academic year. By adopting the appeals panel holding that the private school was the appropriate placement pending a contrary judicial order, Order # 1 also effectively made Susquenita financially responsible for continuing the private school placement. Order # 1 thus decided both reimbursement for and prospective payment of private school tuition. . Order # 1 qualifies as a collateral order subject to review under the three prong test established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The requirements of the collateral order doctrine are satisfied in that 1) Order # 1 conclusively determines Raelee's pendent placement and tuition reimbursement rights associated with that placement; 2) resolution of these questions is completely separate from the merits issues which focus on the adequacy of the proposed IEP; and, 3) the propriety of Raelee’s pendent placement and the financial responsibility for that placement are not effectively reviewable on appeal. Should the merits of this matter reach us on appeal, Raelee could have spent years in an inappropriate placement either because the appropriate placement was misidentified or because her parents were unable to pay. See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978), and Praxis Properties, Inc. v. Colonial Savings Bank, S.L.A., 947 F.2d 49 (3d Cir.1991). . Judge Becker would rest the decision in this case on the block quote from Burlington in which the Cotut suggested that the decision by an appellate panel in favor of the parents constitutes agreement by the state for purposes of § 1415(e)(3). He notes in this regard that the appeals panel is the highest state level decision maker in these matters. In Judge Becker's view, Burlington deals with an entirely different issue, and he does not join in the balance of the" }, { "docid": "319332", "title": "", "text": "Act ... is not advanced by requiring parents, who have succeeded in obtaining a ruling that a proposed IEP is inadequate, to front the funds for continued private education.” Id. at 86-87. What is of particular importance for our issue is that the court considered the right to continuing payments to be automatic from the district court’s decision that the private school would be the “current educational placement.” “This holding also effectively decided the reimbursement question in favor of Raelee’s parents.” Id. at 80. That sentence was followed by a footnote, which concluded that once reimbursement for the first year was found to be appropriate, payments for continuing the private school placement were proper while proceedings under the statute were pending: The order encompassed reimbursement for expenses incurred in the 1994-1995 academic year. By adopting the appeals panel holding that the private school was the appropriate placement pending a contrary judicial order, Order # 1 also effectively made Susquenita financially responsible for continuing the private school placement. Order # 1 thus decided both reimbursement for and prospective payment of private school tuition. Id. at 81 n. 3. As the Supreme Court held, public payment of expenses of the “current education placement” flows from “the child’s right to a free appropriate public education” under the IDEA. Burlington, 471 U.S. at 370, 105 S.Ct. 1996. Reimbursement forces a school district “to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” Id. at 370-71, 105 S.Ct. 1996. Burlington did not involve paying for costs during the pendency of the litigation. Neither were we in St. Tammany faced with deciding the propriety of such payments because the state did not contest that legal issue. St. Tammany, 142 F.3d at 783. Our issue today is almost the opposite: do parents forfeit the right to receive reimbursements for the costs of the private placement, which by operation of law is the “current educational placement” during the pendency of the litigation, if they do not ask for funding at the beginning of" }, { "docid": "23487473", "title": "", "text": "ninth grade at Susquenita High School. In the summer of 1994, the Susquenita school district had issued a Notice of Recommended Assignment (“NORA”) to Raelee’s parents and proposed an individualized education program (“IEP”). As of the start of the school year, the parents had not accepted either document. Shortly after school began, however, the parents rejected the NORA and the proposed IEP, withdrew Raelee from Susquenita, and placed her in a private school for the learning disabled. They then invoked their right to a due process hearing pursuant to section 1415(b)(2) of the IDEA in order to determine whether Raelee had been properly placed and whether, accordingly, they were entitled to tuition reimbursement. In a decision announced in April 1995, the hearing officer found that the IEP which Susquenita had proposed for Raelee was appropriate and that the school district should not be forced to bear the financial burden of the parents’ unilateral decision to place Rae-lee in a private school. The parents appealed this decision to a three member state special education appeals panel. On June 1, 1995, the panel reversed the hearing officer’s decision, finding that the proposed IEP was deficient in a number of respects and that “Raelee’s educational program was not reasonably calculated to provide for meaningful education benefit.” (Special Education Opinion No. 672, Typescript at 13.) Addressing the private school placement, the panel wrote: Although the private school is dedicated to the education of students with learning disabilities and therefore represents a more restrictive placement, we find that Raelee’s current needs in learning outweigh her need for integration \"with non-disabled peers. Thus we find the program offered by the private school appropriate for Raelee. Id. The panel then moved to the crux of the issue which we now confront, writing: Parents have a right to withdraw their children from public school unilaterally ... and receive reimbursement for private school tuition when a district has failed to provide an appropriate education and when the private school meets the substantive requirements of IDEA.... Thus we find that the parents claim for reimbursement of tuition and transportation [for" }, { "docid": "319329", "title": "", "text": "issues that arise when parents seek to have the public school district pay the costs of the private school pending the final review of the merits. St. Tammany Parish Sch. Bd. v. Louisiana, 142 F.3d 776, 785 (5th Cir.1998). There, as here, the state administrative process resulted in an order that a private placement was appropriate because the public school education was inadequate. Id. at 780. The administrative process ended in April of a school year, and the administrative ruling was that the entire school year should be paid for by the public school. Id. Also, as here, the school district filed an appeal in district court in April. Unlike here, in June, the St. Tammany parents counterclaimed for compensation for the next school year. Id. at 781. Such a counterclaim is what HISD argued and the district judge accepted had to be made here, but it never was. The St. Tammany parents sought an order declaring the private school placement to be the correct one, and requiring payments for the next school year to be made by the public school district. In August, as the new school year was beginning, the district court granted the parents their requested relief. Id. The district court’s ruling was immediately appealed. Id. We concluded that a stay-put order qualifies as a collateral order for purposes of interlocutory appeal because it conclusively determines a student’s pendency placement and the tuition reimbursement rights associated with such placement. Id. at 781-82. In support of this holding, we cited a case from another circuit that found resolution of pendencyplacement issues to be “completely separate from the merits issues which focus on adequacy of the proposed IEP; and the propriety of the pendent placement and the concomitant financial responsibility are not effectively reviewable on appeal of a decision on the merits.” Id. at 782 (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 81 n. 4 (3d Cir.1996)); see also Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir.2004) (“A claim for tuition reimbursement pursuant" }, { "docid": "23487485", "title": "", "text": "by the school district; the provision is used to block school districts from effecting unilateral change in a child’s educational program. In cases of this type we have directed that “the dispositive factor in deciding a child’s ‘current educational placement’ should be the Individualized Education Program ... actually functioning when the ‘stay put’ is invoked.” Drinker, 78 F.3d at 867 (quoting Woods, 20 Indiv. Disabilities Educ.L.Rep. (LRP Publications) at 440). According to Susquenita, the last functioning IEP was in the public school system and, therefore, the public school placement must remain Raelee’s pendent placement for the duration of this litigation. This case, however, differs from many in which a child’s pendent placement is at issue. Here, it is the parents who advocate change. Mr. and Mrs. S. have no interest in having their daughter remain in the public school system under the terms of either the former or the proposed IEP. Because Raelee’s parents concluded that the program proposed for their daughter was inadequate and contrary to her best interest, they chose not to invoke the protection of the stay-put provision, opting instead to place Raelee in a private school at their own expense. Prior to the time that the education appeals panel announced its decision, then, the pendent placement provision was inoperative. At the time of her transfer to the private school, Raelee’s parents did not dispute that the public school would have been the appropriate pendent placement within the meaning of the IDEA. The parents argue, however, that the pendent placement and, therefore, the financial responsibility landscape was altered when the state education appeals panel ruled in their favor on June 1, 1995. We agree. In its decision the appeals panel found that the IEP which Susquenita proposed for Raelee was inadequate and that the private school placement was appropriate. The panel directed that the private school be deemed Raelee’s pendent placement in any future disputes “unless the [panel] order is overturned in a Commonwealth or federal district court.” (Typescript at 14 n. 27). Relying on this panel directive, the parents argue that a new pendent placement was" }, { "docid": "319331", "title": "", "text": "to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP.”). In St. Tammany, the district court ordered payment for tuition and other costs for the school year that was about to begin. We affirmed. The Third Circuit case on which we relied also reviewed such a district court order. Susquenita Sch. Dist., 96 F.3d at 85. In that case, the school district appealed the administrative decision to the district court and filed for a stay of the requirement that it reimburse the parents for the private school placement. The district court denied the motion. On interlocutory appeal, the Third Circuit concluded that the school district was required to pay for the child’s private school placement from the point of the administrative decision forward; it also held that the school district “may be required to pay for tuition and expenses associated with a pendent placement prior to the conclusion of the litigation.” Id. at 84. The court explained that “[t]he purpose of the Act ... is not advanced by requiring parents, who have succeeded in obtaining a ruling that a proposed IEP is inadequate, to front the funds for continued private education.” Id. at 86-87. What is of particular importance for our issue is that the court considered the right to continuing payments to be automatic from the district court’s decision that the private school would be the “current educational placement.” “This holding also effectively decided the reimbursement question in favor of Raelee’s parents.” Id. at 80. That sentence was followed by a footnote, which concluded that once reimbursement for the first year was found to be appropriate, payments for continuing the private school placement were proper while proceedings under the statute were pending: The order encompassed reimbursement for expenses incurred in the 1994-1995 academic year. By adopting the appeals panel holding that the private school was the appropriate placement pending a contrary judicial order, Order # 1 also effectively made Susquenita financially responsible for continuing the private school placement. Order # 1 thus decided both reimbursement for" }, { "docid": "5985817", "title": "", "text": "of Administrative Law. Proceedings in the district court D. Plaintiff filed her action in this Court on May 8, 1996, seeking an award of attorneys’ fees and costs as the prevailing party below. See 20 U.S.C. § 1415(e)(4)(B). The school district filed its appeal of the administrative decision in the New Jersey Superior Court, Chancery Division, which action was removed to this Court by plaintiff, and the two actions were consolidated by consent. Plaintiff initially moved for preliminary injunctive relief directing the school district to implement immediately the decision of the Administrative Law Judge. Following briefing and oral argument directed to that limited issue, we denied the motion in an unpublished written Memorandum and Order filed July 2, 1996. In that opinion, we found that R.H.’s current educational placement was the pendent placement under the “stay-put” provision of IDEA, 20 U.S.C. § 1415(e)(3), and that no injunctive relief should be issued by the Court to change that placement while the appeal was pending here. Plaintiff did not appeal from that denial of injunctive relief. See 28 U.S.C. § 1292(a)(1). The parties next filed cross-motions for affirmance and reversal, respectively, of the decision of the ALJ. At oral argument on the cross-motions for judgment' in this Court, each party agreed that the matter was ripe for review, and neither party requested the Court to take additional evidence. See 20 U.S.C. § 1415(e)(2) (“[T]he court shall receive the records of the administrative proceedings, [and] shall hear additional evidence at the request of a party....”). Also at oral argument on the motions for judgment, on October 21, 1996, counsel for plaintiff requested that we reconsider the denial of preliminary relief in view of the decision of our court of appeals issued September 18, 1996, in Susquenita School District v. Raelee S., 96 F.3d 78 (3d Cir.1996). We advised that we did not believe that case to be controlling under the facts presented here. Plaintiff subsequently filed another motion to enforce the decision of the ALJ, but because the motions for judgment on the merits had already been briefed and argued and the decision" } ]

[ { "docid": "22721375", "title": "", "text": "private information.” United States v. Nobles, 422 U. S. 225, 233 n. 7 (1975). Insofar as private information not obtained through compelled self-incriminating testimony is legally protected, its protection stems from other sources — the Fourth Amendment's protection against seizures without warrant or probable cause and against subpoenas which suffer from “too much indefiniteness or breadth in the things required to be 'particularly described,’ ” Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 208 (1946); In re Horowitz, 482 F. 2d 72, 75-80 (CA2 1973) (Friendly, J.); the First Amendment, see NAACP v. Alabama, 357 U. S. 449, 462 (1958); or evidentiary privileges such as the attorney-client privilege. Ill Our above holding is that compelled production of documents from an attorney does not implicate whatever Fifth Amendment privilege the taxpayer might have enjoyed from being compelled to produce them himself. The taxpayers in these cases, however, have from the outset consistently urged that they should not be forced to expose otherwise protected documents to summons simply because they have sought legal advice and turned the papers over to their attorneys. The Government appears to agree unqualifiedly. The difficulty is that the taxpayers have erroneously relied on the Fifth Amendment without urging the attorney-client privilege in so many words. They have nevertheless invoked the relevant body of law and policies that govern the attorney-client privilege. In this posture of the case, we feel obliged to inquire whether the attorney-client privilege applies to documents in the hands of an attorney which would have been privileged in the hands of the client by reason of the Fifth Amendment. Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged. 8 J. Wigmore, Evidence § 2292 (McNaughton rev. 1961) (hereinafter Wigmore); McCormick § 87, p. 175. The purpose of the privilege is to encourage clients to make full disclosure to their attorneys. 8 Wigmore § 2291, and §2306, p. 590; McCormick §87, p. 175, §92, p. 192; Baird v. Koerner, 279 F. 2d 623 (CA9 1960); Modern Woodmen of America v. Watkins, 132 F. 2d 352" } ]

[ { "docid": "8166293", "title": "", "text": "secure a right of access to civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (finding a right of access to litigation committee reports in shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.1983) (holding that the First Amendment limits judicial discretion to seal documents in a civil case). The California Supreme Court has also so held. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 86 Cal. Rptr.2d 778, 980 P.2d 337, 361 (1999). Though we have not expressly held that the First Amendment right of access encompasses civil cases, we have recognized a right of access to executions, documents related to a criminal defendant’s pretrial release, and criminal jury voir dire, among other proceedings. Cal. First Amendment Coal., 299 F.3d at 877 (executions); Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1519 (9th Cir.1988) (pretrial release documents); United States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir.1982) (voir dire). We have also applied the Press-Enterprise II framework to evaluate right of access claims in a variety of nonjudicial contexts. See, e.g., Cal-Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105, 109 (9th Cir.1992) (finding a “serious constitutional question” as to whether the plaintiff was entitled to access a list of almond growers eligible to vote in a referendum on a federal regulatory order). The news media’s right of access to judicial proceedings is essential not only to its own free expression, but also to the public’s. The Supreme Court has explained: “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press.... With respect to judicial proceedings in particular, the function of the press serves to ... bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). We have observed that the news media, when asserting the right of" }, { "docid": "7118410", "title": "", "text": "of the defamation is a publication in itself, even though the repeater states the source ... or makes clear that he himself does not believe the imputation.”) (footnotes omitted). To ameliorate the chilling effect that the republication rule would have on the reporting of controversial matters of public interest, common law courts, including those of the District of Columbia, recognize a privilege for fair and accurate accounts of governmental proceedings. See Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88-90 (D.C.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981). Following the Restatement, the District of Columbia common law abandons the concept of “adoption” where a report of an official proceeding is “(a) accurate and complete, or a fair abridgment of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern.” Phillips, 424 A.2d at 88 (quoting Restatement (Second) of Torts § 611 (1977)). Federal constitutional concerns are implicated as well when common law liability is asserted against a defendant for an accurate account of judicial proceedings. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the father of a deceased rape victim brought suit for common law invasion of privacy against a television station which mentioned his minor daughter’s name in conjunction with its report on the trial of those charged with the crime. The station’s reporter had obtained the victim’s name by attending the trial and inspecting the indictments in the case. Id. at 470, 95 S.Ct. at 1033. The Georgia Supreme Court rejected the television station’s first amendment defense, holding that the father was entitled to take his claim to a jury. The Supreme Court reversed, noting that, “[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox, 420 U.S. at 492, 95 S.Ct. at 1044. See also Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91" }, { "docid": "22349006", "title": "", "text": "representatives would be unable to vote intelligently or to register opinions on the administration of govern ment generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . . “. . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.” 420 U. S., at 491-492, 495. Crucial to the holding in Cox Broadcasting was the determination that a “reasonable man” standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against “timidity and self-censorship” in reporting judicial proceedings. Id., at 496. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings. II It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). Rosenbloom had held the New York Times privilege applicable to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” 403 U. S., at 44. But in light of the Court’s percep tion of an altered balance between the conflicting values at stake where the person defamed is in some sense a “private individual,” Gertz, supra, at 347, 349-350, held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of “fault” and" }, { "docid": "261928", "title": "", "text": "taken, of course, to ensure that the supervisory and informational rationales not expand into justifications for reporting any defamatory matter maintained in any government file. Personal interests in privacy are not to be taken lightly, and are not to be overborne by mere invocation of a public need to know. But we believe that the public interest is involved when, as here, information compiled by an enforcement agency may help shed light on a Congressman’s alleged criminal or unethical behavior. IV. Constitutional considerations also help resolve the present dispute. Although the Supreme Court has never explicitly recognized a constitutional privilege of fair report, several of its recent decisions point toward that result. While we need not decide today whether the First Amendment requires a privilege for the press to report on official acts and proceedings regardless of whether they contain defamatory information, we find that analysis of the constitutional issues reinforces our prediction that Pennsylvania would, as a matter of common law, apply the fair report privilege to Time’s publication about Medico. Two cases from outside the field of defamation reflect the Supreme Court’s recognition of the First Amendment value of reports of official proceedings. In Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court ruled that the First Amendment precludes a cause of action for invasion of privacy brought about by publication of the name of a deceased rape victim. The Court noted: “Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Id. at 495, 95 S.Ct. at 1046. In addition to these comments, which emphasize the informational rationale for the fair report privilege, the Court stressed the supervisory duties of the public: “The citizenry is the final judge of the proper conduct of public business.... With respect to judicial proceedings in particular, the function of the press serves ... to bring to bear the beneficial effect of public scrutiny upon the administration of justice.”" }, { "docid": "863238", "title": "", "text": "quoted supra) and according does not destroy the private character of the facts disclosed. See Timperley v. Chase Collection Service, 272 Cal. App.2d 697, 700, 77 Cal.Rptr. 782, 784 (1969); Schwartz v. Thiele, 242 Cal.App.2d 799, 805, 51 Cal.Rptr. 767, 770-71 (1966). Talking freely to a member of the press, knowing the listener to be a member of the press, is not then in itself making public. Such communication can be said to anticipate that what is said will be made public since making public is the function of the press, and accordingly such communication can be construed as a consent to publicize. Thus if publicity results it can be said to have been consented to. However, if consent is withdrawn prior to the act of publicizing, the consequent publicity is without consent. We conclude that the voluntary disclosure to Kirkpatrick did not in itself constitute a making public of the facts disclosed. Appellant contends that since Virgil has not denied the truth of the statements made in the article, the publication was privileged under the First Amendment. The law has not yet gone so far. The most recent Supreme Court expression on the subject, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), dealt with the same tort as is involved here, characterized by the Court as “the right [of one] to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities.” Id. at 489, 95 S.Ct. at 1043. The Court noted: “ * * * the appellants urge upon us the broad holding that the press may not be made criminally or civilly liable for publishing information that is neither false nor misleading but absolutely accurate, however damaging it may be to the reputation or individual sensibilities.” Id. The Court refused to reach this broad question “whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments * * *.” Id. at 491, 95 S.Ct. at 1044. It chose instead to deal" }, { "docid": "8166294", "title": "", "text": "II framework to evaluate right of access claims in a variety of nonjudicial contexts. See, e.g., Cal-Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105, 109 (9th Cir.1992) (finding a “serious constitutional question” as to whether the plaintiff was entitled to access a list of almond growers eligible to vote in a referendum on a federal regulatory order). The news media’s right of access to judicial proceedings is essential not only to its own free expression, but also to the public’s. The Supreme Court has explained: “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press.... With respect to judicial proceedings in particular, the function of the press serves to ... bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). We have observed that the news media, when asserting the right of access, “are surrogates for the public.... The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh, 677 F.3d at 900 (internal quotation marks omitted); see also Ekwin Chemerinsky, Constitutional Law: Principles and Policies § 11.6.3 (4th ed. 2011) (“[Wjithout a right of access to government papers and places the people will be denied information that is crucial in monitoring government and holding it accountable. The press obviously plays a crucial role in this regard.”). It is thus well-established that the right of access to public records and proceedings is “necessary to the enjoyment” of the right to free speech. Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613; Cal. First Amendment Coal., 299 F.3d at 874. C. CNS’s First Amendment right of access claim falls within the general rule against abstaining under Pullman in First Amendment cases. CNS’s right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention" }, { "docid": "261929", "title": "", "text": "outside the field of defamation reflect the Supreme Court’s recognition of the First Amendment value of reports of official proceedings. In Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court ruled that the First Amendment precludes a cause of action for invasion of privacy brought about by publication of the name of a deceased rape victim. The Court noted: “Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Id. at 495, 95 S.Ct. at 1046. In addition to these comments, which emphasize the informational rationale for the fair report privilege, the Court stressed the supervisory duties of the public: “The citizenry is the final judge of the proper conduct of public business.... With respect to judicial proceedings in particular, the function of the press serves ... to bring to bear the beneficial effect of public scrutiny upon the administration of justice.” Id. at 495, 492, 95 S.Ct. at 1046, 1044. While Cox Broadcasting arose from a news report based on judicial records open to public inspection, the Court’s commitment to dissemination of information of interest and value to the public seems just as apposite when, as here, the press reports on materials not open for inspection. Moreover, the Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), extended the protective mantle of the First Amendment to a report of a proceeding closed to the public. The Court there held that a state may not impose criminal sanctions on those who publish information regarding proceedings before a state judicial review commission, even when the state constitution and laws declare the proceedings confidential. The Court again stressed the need for public knowledge of the affairs of government: “ ‘A major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.' ... Neither the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in" }, { "docid": "4827342", "title": "", "text": "communicate statements of fact” because “[b]y producing documents ... the witness would admit that the papers existed, were in his possession or control, and were authentic” (internal quotations omitted)). We find particularly significant just how Ostergren communicates SSNs. She does not simply list them beside people’s names but rather provides copies of entire documents maintained by government officials. Given her criticism about how public records are managed, we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech. Indeed, the Supreme Court has deemed such speech particularly valuable within our society: Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Thus, although we do not foreclose the possibility that communicating SSNs might be found unprotected in other situations, we conclude, on these facts, that the First Amendment does reach Ostergren’s publication of Virginia land records containing unredacted SSNs. B. We next consider whether enforcing section 59.1-443.2 against Ostergren for posting online Virginia land records containing unredacted SSNs survives First Amendment scrutiny. Although Ostergren’s political speech criticizing Virginia “lies at the very center of the First Amendment,” Gentile, 501 U.S. at 1034, 111 S.Ct. 2720, publishing SSNs online undermines individual privacy. Freedom of speech must therefore be weighed against the “right of privacy” which the Supreme Court has also recognized. See Cox Broad., 420 U.S. at 488, 95 S.Ct. 1029 (recognizing “the so-called right of privacy”). The Court tried to strike that balance in Cox Broadcasting and subsequent cases involving restrictions on truthful publication of private information. Because we must decide where this case fits within that balance, we begin our analysis by" }, { "docid": "22621888", "title": "", "text": "against any attempt to employ our courts as instruments of persecution,” or “for the suppression of political and religious heresies.” Oliver, supra, at 270. Thus, Oliver acknowledged that open trials are indispensable to First Amendment political and religious freedoms. By the same token, a special solicitude for the' public character of judicial proceedings is evident in the Court’s rulings upholding the right to report about the administration of justice. While these decisions are impelled by the classic protections afforded by the First Amendment to pure communication, they are also bottomed upon a keen appreciation of the structural interest served in opening the judicial system to public inspection. So, in upholding a privilege for reporting truthful information about judicial misconduct proceedings, Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978), emphasized that public scrutiny of the operation of a judicial disciplinary body implicates a major purpose of the First Amendment — “discussion of governmental affairs,” id., at 839. Again, Nebraska Press Assn. v. Stuart, 427 U. S., at 559, noted that the traditional guarantee against prior restraint “should have particular force as applied to reporting of criminal proceedings. . . .” And Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (1975), instructed that “[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” See Time, Inc. v. Firestone, 424 U. S. 448, 473-474, 476-478 (1976) (Brennan, J., dissenting) (open judicial process is essential to fulfill “the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions . . .”). Tradition, contemporaneous state practice, and this Court’s own decisions manifest a common understanding that “[a] trial is a public event. What transpires in the court room is public property.” Craig v. Harney, 331 U. S. 367, 374 (1947). As a matter of law and virtually immemorial custom, public trials have been the essentially unwavering rule in ancestral England and in our own Nation." }, { "docid": "7118411", "title": "", "text": "an accurate account of judicial proceedings. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the father of a deceased rape victim brought suit for common law invasion of privacy against a television station which mentioned his minor daughter’s name in conjunction with its report on the trial of those charged with the crime. The station’s reporter had obtained the victim’s name by attending the trial and inspecting the indictments in the case. Id. at 470, 95 S.Ct. at 1033. The Georgia Supreme Court rejected the television station’s first amendment defense, holding that the father was entitled to take his claim to a jury. The Supreme Court reversed, noting that, “[w]ith respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox, 420 U.S. at 492, 95 S.Ct. at 1044. See also Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947) (“A trial is a public event. What transpires in a courtroom is public property____ Those who see and hear what transpired can report it with impunity.”). The Supreme Court held that Mr. Cohn’s suit was barred as a matter of law, stating, “the First and Fourteenth Amendments command nothing less than that the states may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.” Cox, 420 U.S. at 495, 95 S.Ct. at 1046. See also Time, Inc. v. Firestone, 424 U.S. 448, 457, 96 S.Ct. 958, 966, 47 L.Ed.2d 154 (1976) (“The public interest in accurate reports of judicial proceedings is substantially protected by Cox____”). The Garment column’s report on this lawsuit is privileged both under the common law and the Supreme Court’s decision in Cox. It fairly and accurately describes the substance of this action, in the context of a broader discussion of libel suits in general, clearly a matter of public concern. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829," }, { "docid": "591771", "title": "", "text": "as our Supreme Court has recognized, “is the most potent of all restraints upon misgovernment....” Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (“Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”); New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring) (“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.... The press was protected so that it could bare the secrets of government and inform the people”). In order to gather information on sensitive topics, reporters, particularly those investigating stories that implicate our government and public officials, often depend upon confidential sources. In the words of Max Frankel, the former Executive Editor of The Times, offered some thirty years ago in connection with the Pentagon Papers case: In the field of foreign affairs, only rarely does our Government give full public information to the press for the direct purpose of simply informing the people. For the most part, the press obtains significant information bearing on foreign policy only because it has managed to make itself a party to confidential materials, and of value in transmitting those materials from government to other branches and offices of government as well as the public at large. This is why the press has been wisely and correctly called The Fourth Branch of Government. (Affidavit of Judith Miller, sworn to Nov. 12, 2004 (“Miller Aff”), Ex. 8, at ¶7.) Just as the ability of the press to report on issues of significance often depends on information obtained from others, so too is the ability of federal prosecutors to investigate and enforce the nation’s criminal laws dependent upon the power of the federal prosecutor to obtain, at times through compulsion, testimony" }, { "docid": "21999969", "title": "", "text": "UPI story or other circumstances, had knowledge that it was false or were aware of its probable falsity. Inasmuch as that question cannot be resolved on the present record and plaintiff has stated that it has not yet completed discovery, the motion for summary judgment must be denied as to Copley Press without prejudice pending completion of discovery along the lines contemplated by this opinion. Accordingly, it is hereby ordered that the motions for summary judgment of defendants Associated Press and United Press International be granted and judgment be entered in their favor. It is further ordered that the motion for summary judgment for defendant Copley Press be denied, without prejudice to its subsequent renewal should the record warrant. IT IS SO ORDERED. . In United Medical Laboratories v. Columbia Broadcasting System, 404 F.2d 706 (9th Cir. 1968), this Circuit appears to have arrived at the same result but inasmuch as the decision predates Rosenbloom and Gertz, above, and Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), it does not dispense with the analysis undertaken in this opinion. . In another context — the protection afforded by the First Amendment to true reports of judicial proceedings which may invade an individual’s privacy — the Supreme Court commented on the importance of the role of the press in reporting government activities: “In the first place, in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-492, 95 S.Ct. 1029," }, { "docid": "23183526", "title": "", "text": "judicial process considered and decided political issues which were more profound and affected more lives than most legislation. The public’s right of access to the proceedings in these and similar cases is, in my view, at least as important as is the right of access to criminal proceedings. Protection of that right of access, to the extent recognized in Chief Judge Seitz’s opinion, should rest upon a broader constitutional foundation than is afforded by the sixth amendment. That foundation, I suggest, is the federal common law implied from the first amendment. Moreover, the public access right has a constitutionally protected minimum content. As Justice White observed: Public [court] records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975). The Cox Broadcasting case does not, of course, tell us what records or proceedings must be open. It does suggest, however, that the public’s right to be informed about the conduct of judicial proceedings rests upon the broader constitutional foundation of the first amendment and is therefore equally applicable to civil and to criminal proceedings. Nothing in either Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), or Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), suggests a contrary interpretation of the first amendment. Both recognize that the press enjoys no greater right of access to information than does the public generally. Neither, however, suggests that there" }, { "docid": "22349005", "title": "", "text": "First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concern's. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted: “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the. proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of govern ment generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . . “. . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.” 420 U. S., at 491-492, 495. Crucial to the holding in Cox Broadcasting was the determination that a “reasonable man” standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against “timidity and self-censorship” in reporting" }, { "docid": "22693601", "title": "", "text": "374. Similarly, Estes v. Texas, 381 U. S., at 541-542, a case involving the Sixth Amendment right to a fair trial, observed: “[R]eporters of all media . . . are plainly free to report whatever occurs in open court through their respective media. This was settled in Bridges v. California, 314 U. S. 252 (1941), and Pennekamp v. Florida, 328 U. S. 331 (1946), which we reaffirm.” See also id., at 583-585 (Warren, C. J., concurring). And Sheppard v. Maxwell, 384 U. S., at 362-363, a case that detailed numerous devices that could be employed for ensuring fair trials, explicitly reiterated that “[o]f course, there is nothing that proscribes the press from reporting events that transpire in the courtroom.” See also id., at 350; Stroble v. California, 343 U. S. 181, 193 (1952). The continuing vitality of these statements was reaffirmed only last Term in Cox Broadcasting Corp. v. Cohn, a case involving a suit for damages brought after publication under state law recognizing the privacy interest of its citizens. In holding that a “State may [not] impose sanctions on the accurate publication of the name of a rape victim obtained from public records,” 420 U. S., at 491, we observed: “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. See Sheppard v. Maxwell, 384 U." }, { "docid": "21999970", "title": "", "text": "not dispense with the analysis undertaken in this opinion. . In another context — the protection afforded by the First Amendment to true reports of judicial proceedings which may invade an individual’s privacy — the Supreme Court commented on the importance of the role of the press in reporting government activities: “In the first place, in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975); see, also, Rosenbloom v. Me- tromedia, Inc., above, 403 U.S. at 61, 91 S.Ct. 1811 (White, J. concurring in the judgment). . The circumstances, both factual and legal, leading to the FTC’s action which forms the basis of the finding that Trans World became a public figure for a limited purpose are wholly dissimilar from those in Rosenbloom, above, in which the plaintiff, a distributor of nudist magazines, happened to have been arrested when making a delivery to a newsstand in the course of a crackdown by police on newsstands selling obscene materials. His complaint concerned subsequent newsbroadcasts describing the magazines he distributed as obscene. . The position of Trans World is also entirely different from that of plaintiffs in Gertz and Time, Inc., above. In the former case, plaintiff was a private lawyer who merely represented the family of a boy shot by a policeman in a civil suit for damages against the policeman. He was not involved in criminal proceedings against the policeman or in any of the" }, { "docid": "22352727", "title": "", "text": "of that Amendment was to protect the free discussion of governmental affairs.” Al though it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives “[jjudges as persons, or courts as institutions ... no greater immunity from criticism than other persons or institutions.” Bridges v. California, 314 U. S. 252, 289 (1941) (Frankfurter, J., dissenting). The operations of the courts and the judicial conduct of judges are matters of utmost public concern. “A responsible press has always been regarded as the handmaiden of effective judicial administration .... Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U. S. 333, 350 (1966). Cf. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (1975). The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission, and in so doing clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect. See New York Times Co. v. Sullivan, supra, at 269-270. B The Commonwealth concedes that “[w]ithout question the First Amendment seeks to protect the freedom of the press to report and to criticize judicial conduct,” Brief for Appellee 17, but it argues that such protection does not extend to the publication of information “which by Constitutional mandate is to be confidential.” Ibid. Our recent decision in Cox Broadcasting Corp. v. Cohn, supra, is relied upon to support this interpretation of the scope of the freedom of speech and press guarantees. As we read Cox, it does not provide the answer" }, { "docid": "863239", "title": "", "text": "the First Amendment. The law has not yet gone so far. The most recent Supreme Court expression on the subject, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), dealt with the same tort as is involved here, characterized by the Court as “the right [of one] to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities.” Id. at 489, 95 S.Ct. at 1043. The Court noted: “ * * * the appellants urge upon us the broad holding that the press may not be made criminally or civilly liable for publishing information that is neither false nor misleading but absolutely accurate, however damaging it may be to the reputation or individual sensibilities.” Id. The Court refused to reach this broad question “whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments * * *.” Id. at 491, 95 S.Ct. at 1044. It chose instead to deal with a “narrower interface between press and privacy,” id., focusing on the protectable area of privacy and excluding from it material to be found in judicial records open to inspection by the public. The Supreme Court, then, has not held in accordance with the contentions of appellant. Instead it has expressly declined to reach the issue presented. That issue seems to us to be whether, despite California’s recognition and the recognition elsewhere given, this tortious violation of privacy is, as a tort to be written out of the law. It seems to us to contemplate the further .question whether the private individual is hereafter to be able to enjoy a private life save with leave of the press; whether (at least so far as the press is concerned) the concept of “private facts” continues to have meaning. To hold that privilege extends to all true statements would seem to deny the existence of “private” facts, for if facts be facts — that is, if they be true — they would not (at least to the" }, { "docid": "5266772", "title": "", "text": "386 F.Supp. at 642. Judge Gesell’s decision was the law of the case, and thus was presumptively controlling, See, e. g., Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 463 F.2d 268, 279 & n.20 (1971), cert. denied, W.H.D.H., Inc., v. Federal Communications Comm, et al., 406 U.S. 950, 92 S.Ct. 2043, 32 L.Ed.2d 338 (1972); IB J. Moore, supra, note 35, at ¶ 0.404 (1965). . 397 F.Supp. at 187. . Even this question technically is not before us, since Mr. Nixon has not filed a cross-appeal. But because the relevance of privacy and Presidential deference considerations have been briefed, we feel justified, in the interest of expedition, in discussing the issue. To some extent, the evils appellee fears may be minimized by the final plan for release of the tapes approved by the district court. The court’s power to control the uses to which the tapes are put once released, however, is sharply limited by the First Amendment. See Nebraska Press Association v. Stuart, supra note 39, 424 U.S. at 559-560, 568, 96 S.Ct. at 2803, 2807. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). . Brief at 47; see id. at 49. . Id. at 49 n.22; see, e. g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 493-94, 95 S.Ct. 1029 & sources cited (1975). . As the Senate Committee on Government Operations stated, in disapproving proposed G.S.A. regulations, Public Access Regulations § 105-63.402-l(b) (March 19, 1975), reserving to the Administrator the right to restrict access to embarrassing portions of President Nixon’s papers taken by G.S.A. pursuant to the Presidential Recordings and Material Preservation Act, Pub.L. 93-526, 88 Stat. 1695, 44 U.S.C.A. § 2107 note (Supp.1976): “Almost by definition, the Watergate affairs are embarrassing, to those who were associated with them.” S.Rep. No. 94-368 at 10, 94th Cong., 1st Sess. (1975). Significantly, under the regulations recently proposed, access to the Nixon papers can be restricted only if release “would constitute a clearly unwarranted invasion of personal privacy or constitute libel or slander of a living person.” Public Access" }, { "docid": "7764259", "title": "", "text": "recognition and enforcement. It has held that reputation is not part of the liberty that the due process clauses protect, Paul v. Davis, 424 U.S. 693, 711-13, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), even though concern with reputation is one of the principal reasons people don’t want personal information about themselves broadcast to strangers. It has held that the First Amendment forbids a state to punish broadcasting the name of a murdered rape victim if her name is in judicial records open to public inspection. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-96, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); see also The Florida Star v. B.J.F., 491 U.S. 524, 532-34, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783, 786-89 (3d Cir.2005). Even the publicizing of highly personal information that is not in a record open to public inspection is privileged if there is a public interest in access to the information. Bartnicki v. Vopper, 532 U.S. 514, 534-35, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1231-35 (7th Cir.1993). The rejection in Paul v. Davis of a liberty or property interest in reputation casts doubt on the propriety of basing a federal constitutional right to informational privacy on a state’s decision to recognize such privacy as a species of liberty or property. Paul illustrates the modern Supreme Court’s expansive view of freedom of speech and of the press, a view that casts doubt on any effort to limit the public disclosure of personal information, however private. But the Court has not yet completely extinguished state-law protections, whether common law or statute- ry, against publication of intimate details of people’s private lives in which other people might be interested. Amy Gajda, “Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,” 97 Cal. L.Rev. 1039 (2009). True, not extinguishing a private right is not the same thing as elevating it to a constitutional right. Yet there is an air of paradox in giving constitutional protection in the name of" } ]

[ { "docid": "14384290", "title": "", "text": "a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.”). The Court is generally limited to “the factual allegations in ... [the] complaint, ... to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff[’s] possession or of which plaintiff[] had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993). Because Plaintiffs rely on the purchase agreements in bringing suit, the Court may consider them on this motion. DISCUSSION I. Constitutional Claims The first and second causes of action allege various constitutional claims against the City. Plaintiffs allege that they have been deprived of the “right to safe and suitable housing” and of the “rights, privileges and immunities secured” by the Constitution (Compl. ¶¶ 72-73); plaintiffs specifically allege violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court interprets these claims as being brought pursuant to 42 U.S.C. § 1983 for the violation of constitutional rights by state actors. Section 1983 “is not itself a source of substantive rights” but “merely provides a method for vindicating federal rights elsewhere conferred.” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (citations and internal quotation marks omitted). The two federal rights arguably implicated by Plaintiffs’ Complaint are the right to equal protection and the right to due process. The Court addresses each in turn. A. Equal Protection Plaintiffs’ first cause of action alleges that the City violated the Equal Protection Clause of the Fourteenth Amendment by failing to enforce “virtually every significant statutory provision intended to ensure the maintenance of safe and healthy housing,” “conduct[ing] inadequate inspections ... and issuing] a certificate of occupancy.” (Compl. ¶¶ 68, 72.) They also rest this claim on the continued refusal “to inspect Plaintiffs buildings, notice the many egregious defects and violations present, or ensure that effective and adequate repairs are completed.” (Compl. ¶ 70.) Plaintiffs vaguely allege that the “ownership" } ]

[ { "docid": "23650500", "title": "", "text": "§ 1981. Instead, it is for violations of “constitutional rights ... se cured pursuant to the 5th Amendment and Hth Amendment of the United States Constitution”: (1) an equal protection claim (presumably) against Thomas; and (2) a deliberate indifference claim against Miller. The § 1981 claim is independent (Count 1). In sum, Carter has failed to invoke the only remedy available to him for the claimed deprivation of his § 1981 rights — he has essentially failed to state a claim. b. In any event, and as discussed below, even if Carter can maintain an independent § 1981 claim against Thomas in his individual capacity, or even if his complaint is sufficiently broad to incorporate the alleged § 1981 deprivations into his § 1983 claim, or even if amendment were permitted on remand, Thomas is nevertheless entitled to qualified immunity against the discrimination claims involved in this interlocutory appeal — racial harassment and disparate treatment. “To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute [e.g., enforcement of a contract].” Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.1994). (1) A harassment claim under § 1981 has not always been “clearly established”. For the pre-amended version of § 1981, and pursuant to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), employment discrimination claims alleging racial harassment [were] “not actionable under § 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process. Rather, such conduct is actionable under the more expansive reach of Title VII ”. Lavender v. V & B Transmissions and Auto Repair, 897 F.2d 805, 806 (5th Cir.1990) (emphasis added; quoting Patterson, 491 U.S. at 179-80, 109 S.Ct. 2363). However: In the Civil Rights Act of 1991," }, { "docid": "16019025", "title": "", "text": "Amendment Plaintiffs Complaint alleges that Choi, along with the other Defendants, engaged in a conspiracy to deprive him of his First Amendment rights. Specifically, Plaintiff contends that Choi and the others retaliated against him- for engaging in protected speech. Choi moves for summary judgment on the ground that he was not a state actor and, thus, cannot be held liable pursuant to 42 U.S.C. § 1983. Plaintiff opposes the motion for summary judgment arguing that Choi conspired with the other Defendants, who were state actors, to deprive him of his First Amendment rights and, accordingly, his actions can be considered to have been taken under color of state law. It hardly need be said that claims pursuant to 42 U.S.C. § 1983 have two “essential elements: (1) the defendant acted under color of state law; and (2) as a result of the defendant’s actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges.” Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998). For purposes of the instant motion, only the first element—whether Choi was acting under color of state law—is at issue. Ordinarily, “substantive claims under § 1983 are ... brought only against state officials.” Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). However, an ordinary citizen who conspires with a state agent to violate a plaintiffs civil rights may also be liable. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998); Singer, 63 F.3d at 119. Thus, assuming for purposes of this motion that Plaintiff has suffered a constitutional injury, the question is whether there are sufficient facts before the Court from which a jury reasonably could conclude that Choi conspired with Defendants to retaliate against Plaintiff for the exercise of his First Amendment rights. “To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and" }, { "docid": "14819006", "title": "", "text": "deprivation of a civil right there must be a remedy). See also Ellis v. Blum, 643 F.2d 68, 83-84 (2d Cir.1981) (following Davis v. Passman’s mandate not to leave constitutional torts unaddressed). DOCS has provided no reason why emotional damages should be available for due process and Fourth Amendment violations, but not equal protection deprivations. The rules governing compensation for injuries caused by a deprivation of constitutional rights should be tailored to the particular right in question. Carey v. Piphus, 435 U.S. at 259, 98 S.Ct. at 1050. The mental dignity and emotional integrity of racial minorities has been at the crux of the Supreme Court’s equal protection jurisprudence since the abandonment of the doctrine of separate but equal. The Court finds an award for emotional damages and out of pocket expenses to be appropriate for the alleged deprivation of equal protection by a state agency’s intentional racial discrimination. CONCLUSION The motion to dismiss is denied in part and granted in part. The Complaint is dismissed in its entirety as to Dr. Steinhart in his official capacity. The Court has jurisdiction and the Complaint alleges causes of action under Section 1983 against Dr. Steinhart in his personal capacity and under the equal protection clause against DOCS. All other causes of action are dismissed. SO ORDERED. . Plaintiff concedes that Will v. Michigan Dept. of State Police, — U.S. -, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and Patterson v. McClean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), respectively bar Section 1983 claims against DOCS and Section 1981 claims against both defendants. . The alleged \"conspiracy\" is not the type of joint activity that makes a privately retained doctor into a state actor. See Briley, 564 F.2d at 858. For a private individual’s actions to be attributable to state action, there must be allegations not only of a common goal or similar intent, but also of a mutual understanding or agreement. Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206-08 (7th Cir.1980) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598," }, { "docid": "404499", "title": "", "text": "claim arguing that no dispute of material fact exists and judgment is ripe as a matter of law. Specifically, defendant contends that: 1) any constitutional harm suffered by Jennifer Bosley was at the hands of private persons not acting under color of state law; 2) that the school district has no constitutional or federal duty to protect students from private actors; 3) that no evidence exists to show that Superintendent Logerwell knew of the alleged misconduct until after plaintiffs complaint was filed with the Missouri Division of Human Rights; and 4) that any omissions or commissions by other school district employees regarding the plaintiffs complaints of constitutional harm cannot be imputed by operation of law to Superintendent Logerwell or the Kearney R-l School District. B. Analysis The United States Congress stated in 42 U.S.C. § 1983 as Mows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress____ The statute was designed to deter state actors from using their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if deterrence failed. Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (1992). Under 42 U.S.C. § 1983, plaintiff must show that 1) the defendant acted under color of state law; 2) the defendant’s action involves one or more violations of plaintiffs constitutional rights; and 3) that the constitutional harm suffered was actually and proximately caused by the defendant’s conduct. Chapman v. Musich, 726 F.2d 405, 407 (8th Cir.1984), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984). In applying the second requirement of a § 1983 action, Jennifer Bosley asserts a substantive due process claim against the defendant school district" }, { "docid": "23449617", "title": "", "text": "failed to establish a trialworthy dispute on the issue of probable cause to arrest. b. Domina A section 1983 claim does not lie absent state action. Casa Marie, Inc. v. Superior Court of P.R., 988 F.2d 252, 258 (1st Cir.1993); 42 U.S.C. § 1983 (providing remedy for deprivations “under color of any statute, ordinance, regulation, custom, or usage” of any state or territory). There are two components to the “state action” requirement. First, the deprivation must be shown to have been caused by the exercise of some right or privilege created by the state, or by a rule of conduct imposed by the state, or by a person for whom the state is responsible. Casa Marie, 988 F.2d at 258. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. Id. Where a private individual is a defendant in a section 1983 action, there must be a showing that the private party and the state actor jointly deprived plaintiff of her civil rights. Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir.1987); Casa Marie, 988 F.2d at 258-59; see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185 (1980) (“Private persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes of § 1983 actions.”). There was no evidence of joint discriminatory action between Leporati and Domina — whether by plan, prearrangement, conspiracy, custom, or policy — which would enable a rational factfinder to conclude that Alexis’s arrest resulted from concerted action tantamount to substituting the judgment of a private party for that of the police or allowing the private party to exercise state power. Compare Wagenmann, 829 F.2d at 209-11 (close relationship between private citizen and deputy police chief, together with evidence that private actor and police collectively determined to arrest plaintiff, raised inference that private actor was more than “mere complainant” and that a “meeting of the minds” occurred between police and private defendant sufficient to warrant finding that defendant was state actor) with" }, { "docid": "731636", "title": "", "text": "and arbitration procedures before filing a section 1983 suit.”); see also McDonald v. City of West Branch, Michigan, 466 U.S. 284, 290, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (“[Although arbitration is well suited to resolving contractual disputes, [the Supreme Court’s] decisions ... compel the conclusion that it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.”). Second, defendants assert that the complaint must be dismissed because it cloaks a contract dispute as a Section 1983 claim and thereby attempts to evade the bargained-for dispute resolution procedures set forth in the CBA. The Court rejects that argument in part, as it finds, for the reasons that follow, that the complaint alleges some claims for violations of constitutional, rather than contractual, rights guaranteed to plaintiffs. 2. Standard for Section 1983 Claims To prevail on a claim under Section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, (2) by a person acting under the color of state law. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress of the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). Here, it is undisputed that defendants were acting under the color of state law. 3. First Amendment Retaliation Claims “[A] section 1983 claim will he where the government takes negative action against an individual because of his [or her] exercise of rights guaranteed by the Constitution or federal laws.” Friedl v. City of New York, 210 F.3d 79, 86-87 (2d Cir.2000). Plaintiffs assert that defendants denied them higher compensation because they engaged in associational activities protected by the First Amendment. (CompLIffl 173, 180(a) , 181.) Specifically, plaintiffs allege that they were targeted by defendants based on the plaintiffs’ membership and/or active participation in the Republican Party. The defendant County is a government entity and all individual defendants are County employees sued in their official capacities. Accordingly, plaintiffs’ First Amendment retaliation claims must be" }, { "docid": "17996628", "title": "", "text": "at *7 (E.D.N.Y.2009) (same). D. The Law Of Employment Discrimination 1. Section 1983 Claims of Employment Discrimination To state a claim under 42 U.S.C. § 1983 against the Individual Defendants, Bermudez must allege that: (1) the Individual Defendants were acting under color of state law, and (2) the Individual Defendants’ conduct deprived Bermudez of a constitutional or a federal statutory right. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). The deprivation alleged by Bermudez is race, gender, and religious discrimination and a hostile work environment. Employment discrimination claims under 42 U.S.C. § 1983, whether based on race, religion, or gender, are analyzed under the McDonnell Douglas framework. See Boykin v. KeyCorp., 521 F.3d 202, 213 (2d Cir.2008). Bermudez must allege the following four elements: (1) she falls within a protected class, (2) she was performing her duties satisfactorily, (3) she was subject to an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). Although “an employment discrimination plaintiff need not plead a prima facie case of discrimination” in order to survive a motion to dismiss, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), Bermudez must allege sufficient facts showing that she is entitled to relief. See, e.g., Alleyne v. American Airlines, Inc., 548 F.3d 219, 221 (2d Cir.2008); Leibowitz v. Cornell University, 445 F.3d 586, 591 (2d Cir.2006). When the defendant sued for discrimination under § 1983 is a municipality or an individual sued in his official capacity, the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom. See Patterson v. County of Oneida, 375 F.3d 206, 225-227 (2d Cir.2004) (citing Jett v. Dallas Independent School District, 491 U.S. at 733-36, 109 S.Ct. 2702; Monell v. Department of Social Services, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)) (internal citations omitted). Moreover, to bring a claim within the continuing-violation exception, the plaintiff must" }, { "docid": "6747492", "title": "", "text": "the county in proceedings to terminate parental rights enjoy absolute immunity from § 1983 suits for damages). Neither can the plaintiff maintain a § 1983 action against Mr. Milby and Ms. Ridings. As we stated in Bier v. Fleming, 717 F.2d 308, 310, 311 (6th Cir. 1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984), “[t]o be entitled to relief under § 1983, plaintiff must establish that defendant deprived him of a right secured by the Constitution and the laws of the United States and that the deprivation occurred under color of state law. The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the state?’ ... The Supreme Court has developed the so-called nexus test to determine whether conduct of a private actor is fairly attributable to a state. Under this test, a finding of state action may be made when ‘there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the latter may be fairly treated as that of the State itself.’ ... The required nexus may be established by showing that the State has ‘exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.’ Also a nexus may be established if the private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’ ” (Citations omitted.) Applying this test here, we find that the representation of the child’s adoptive parents by Mr. Milby and Ms. Riding did not constitute state action. The Kentucky Cabinet of Human Resources was not subject to suit by Mr. Whittington because a state agency may not be sued in federal court, regardless of the relief sought, unless the state has waived its sovereign immunity or Congress has overridden it. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114" }, { "docid": "6598631", "title": "", "text": "pleadings as to plaintiffs action against him under EMTALA. B. Action Under Section 1983 “Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory....’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 2747, 73 L.Ed.2d 482 (1982). In order to assert a valid claim, a plaintiff must allege the deprivation of a federal right, and that the person who deprived the plaintiff of that right acted under color of state law. The complained of action must be “fairly attributable to the state,” and not to a private actor. Id. at 937, 102 S.Ct. at 2753-54. Defendant Steele asserts that a private physician in a private hospital cannot be considered as acting under color of state law. In response, plaintiff contends that such a situation can produce an action under color of law, and that plaintiff has set forth such an allegation. In resolving the matter, the court takes notice of three factors utilized by the Supreme Court in evaluating the state action issue. First, there must be a “sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself.” Blum v. Yaretsky, 457 U.S. 991, 1004-12, 102 S.Ct. 2777, 2785-89, 73 L.Ed.2d 534 (1982). That nexus must be such that the state “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id. Finally, the entity must have exercised powers “that are traditionally the Exclusive prerogatives of the State.” Id. These factors must be applied to the specific facts alleged in count six of plaintiffs complaint. Plaintiff asserts that the County (initially, but no longer a defendant) involuntarily committed Mr. Jackson at East Bay under Welfare and Institutions Code section 5150. Complaint ¶ 35. Plaintiff then" }, { "docid": "22786077", "title": "", "text": "to include a substantive due process first amendment claim under section 1983), a first amendment claim in Count III, and an equal protection claim under section 1983 in Count IV. . 42 U.S.C. § 2000e-2 provides, in pertinent part: (a) Employer Practices It shall be an unlawful employment practice for an employer— (1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.... 42 U.S.C. § 2000e-2 (1988). . Busby also sued under 42 U.S.C. § 1981 for racial harassment and discrimination while she was employed at the OPD. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court limited actions under Section 1981 to exclude racial harassment and discrimination claims arising after contracts have been formed, i.e., Section 1981 is limited to actions for refusal to enter into a contract because of race. Busby's claim was for racial harassment and discrimination during her employment at OPD. Under Patterson, therefore, it would appear that her section 1981 claim is extinguished. However, even if the section 1981 claim has not been extinguished, we need not address it separately from the section 1983 claim. The section 1981 claim has been effectively merged into the section 1983 claim for racial discrimination. This occurs because the \"the express 'action at law’ provided by § 1983 for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’ provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Jett v. Dallas Independent School Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 2722, 105 L.Ed.2d 598 (1989) (holding that section 1981 can provide no broader remedy against a state actor than section 1983 and that therefore a plaintiff bringing such a claim must show custom or policy within the meaning of Monell, cited infra, just as the section 1983 plaintiff would); see also Brown v." }, { "docid": "19940853", "title": "", "text": "F.3d 482, 489 (6th Cir.2002). As an initial matter, we note that the Complaint does not allege a basis for federal jurisdiction other than reciting that “[t]his action arises under the due process clause of the Fifth and Fourteenth Amendments to the Constitution of the United States.” The district court observed that the Complaint purports to state a cause of action directly under 28 U.S.C. § 1331, but went on to construe the Complaint as alleging a cause of action under 42 U.S.C. § 1983. Plaintiffs prayer for relief includes a request for costs and attorneys fees. Given that such relief is available to § 1983 plaintiffs, 42 U.S.C. § 1988(b), but not plaintiffs bringing suit directly under the Constitution, the district court fairly read the Complaint as seeking to state a cause of action under § 1983. To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all the material elements of the claim. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir.2003). A § 1983 claim must present two elements: (1) that there was the deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law. Id. A private actor may be considered a person acting under color of state law (a state actor) if “(1) the deprivation complained of was ‘caused by the exercise of some right or privilege created by the state’ and (2) the offending party ‘acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.’ ” Id. at 590-91 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). The Sixth Circuit applies three tests for determining whether private action is fairly attributable to the state: the nexus test, the public function test, and the state compulsion test. Id. at 591. The nexus test requires that a sufficiently close relationship exist between the state and the private actor (through regulation or by contract) so that" }, { "docid": "913553", "title": "", "text": "... as is enjoyed by all white citizens ____ 42 U.S.C. § 1981(a). Section 1981(c) provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of state law.” Id. § 1981(c) (as amended by the Civil Rights Act of 1991). As with Section 1988, there are two separate issues in finding liability under Section 1981: first, whether there has been a substantive violation of plaintiffs right to make contracts based on his race, and second, whether the named defendants can be held liable for that violation. A Section 1981 claim based on alleged employment discrimination is evaluated in the same manner as a Title VII claim. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989) (overturned in part by the Civil Rights Act of 1991, which expanded Section 1981 to cover discriminatory actions that occur after a person is hired). To the extent that plaintiff has stated a valid cause of action under Title VII, he has sufficiently alleged a violation of the substantive portion of Section 1981. The more difficult issue in this case, however, is whether the named defendants can be held liable for the actions of the individual employees. Although the Supreme Court addressed this issue in Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598, the Civil Rights Act of 1991 has cast doubt onto the validity of the holding in that case. In Jett, the Supreme Court held that Section 1981 as originally enacted in 1866 did not create original federal jurisdiction which could support a federal damages remedy against state actors. Id. at 721, 109 S.Ct. at 2715. With the passage five years later in 1871 of what we now know as Section 1983, a statute that created liability for any person acting under color of state law who was responsible for a deprivation of constitutional rights, and the later expansion of Section 1983 to provide protection against a deprivation of rights established by federal law, however, the remedial provisions" }, { "docid": "9574318", "title": "", "text": "a duty imposed by state law in order to be held accountable for his actions. Ancata, 769 F.2d 700, 706 (11th Cir.1985). In the Complaint, the Plaintiffs have alleged that DURKIS acted wilfully, maliciously, and in reckless disregard for the rights of the Plaintiffs when he deprived them of their constitutional rights. Because of the liberal construction the courts must accord to the pleadings in a 12(b)(6) motion, the Plaintiffs may be able to establish liability under Section 1983 against DURKIS in his individual capacity. Therefore, the Defendant’s Motion to Dismiss Count II is DENIED. III. Defendant CURRY’s Motion to Dismiss Count III is DENIED. Defendant CURRY has filed a Motion to Dismiss the three counts against her in the Plaintiffs’ Complaint. The Counts are: III. A count for damages pursuant 42 U. S.C. § 1983. IV. A count for damages for abuse of process, (pendent claim) V. A count for damages alleging violations of Fla. Stat. 83.53 et seq., (Florida Landlord Tenant Act), (pendent claim) In Count III, the Plaintiffs allege that CURRY acted under color of state law and in concert with the Sheriff in infringing the Plaintiff’s property interest and liberty to be free from unlawful state actions without due process. The Plaintiffs also contend that CURRY’s actions resulted in a violation of their substantive due process rights. The issue in Count III is whether, under the facts of this case, Defendant CURRY, who is a private party, may be appropriately characterized as a “state actor” in order to fall within the purview of Section 1983, and therefore be held liable for her actions. It is clear that where a private party acting jointly with or through state officials becomes so allied with the state as to characterize the party as a state actor, the private party acts under color of state law. Cobb v. Georgia Power Co., 757 F.2d 1248 (11th Cir.1985). Again, Defendant DUREIS is considered an official for the purposes of resolving this dispute. See also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 942, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982)" }, { "docid": "13966839", "title": "", "text": "allegations ... to raise a right to relief above the speculative level.” Id. A court may consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference ... and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit” on a motion to dismiss. ATSI Commc’ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted). III. DISCUSSION A. Section 1983 Claims Section 1983 creates no substantive rights; rather, it provides a “mechanism for enforcing a right or benefit established elsewhere.” Morris-Hayes v. Bd. of Educ., 423 F.3d 153, 159 (2d Cir.2005) (citation omitted). “To state a claim under § 1983, a [p]laintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). For the purposes of a § 1983 action, private parties act under color of state law if (1) the state compelled the private party’s conduct, (2) the private party acted jointly with a state, or (3) the private party fulfilled a role that is traditionally a public function performed by a state. See Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.2008). A private party also acts under color of state law if it conspires with state actors to deprive someone of his or her constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There must be “such a close nexus between the State and the challenged [private] action that seemingly private behavior may be fairly treated as that of the State itself.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003) (citations and internal quotation marks omitted). Baez’s allegations are insufficient to state a claim that either JetBlue or Malabet acted under color of state law. Baez contends that Defendants acted under color" }, { "docid": "8590814", "title": "", "text": "the level of the irrational, fanciful, fantastic, delusional, or wholly incredible. To prove conspiracy under 1983, an agreement or a meeting of the minds to violate the plaintiffs’ constitutional rights must be alleged. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir.1989). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. To allege a conspiracy claim under 42 U.S.C. § 1985, they must establish: the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; an act in furtherance of the conspiracy; and a resulting injury. Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir.1998). In other words, to state a conspiracy claim against a Defendant, the Plaintiffs must allege facts that show that a specific Defendant did a specific act, based on an agreement with another Defendant to deprive them of the equal protection under the law. Lastly, Plaintiffs may not sue a lawyer in private practice for violations of their civil rights because private practice attorneys are not state actors. Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.2003) (holding that plaintiff cannot sue opposing counsel under section 1983 “because he is a lawyer in private practice who was not acting under color of state law” and “plaintiffs conclusory allegations that the lawyer was conspiring with state officers to deprive him of due process are insufficient.”) See also: Price v. Hawaii, 939 F.2d 702, 708 (9th Cir.1991); Kirtley v. Rainey, 326 F.3d 1088, 1093-95 (9th Cir.2003)). Dismissal of Plaintiffs’ Complaint for Abatement A case involving the same core facts as those alleged here is currently pending before the Defendant Judge Susan R. Bolton, CV 08-562 PHX SRB. On March 25, 2003, the Stones filed the complaint against Fanfare Media Works, Inc. (Fanfare) and Safeway, alleging that they entered into a contractual agreement with Fanfare to promote and sell Plaintiffs’ ‘V.J. Alert Bench Program for the Missing,” allegedly created by the Plaintiffs to find missing people, and alleging claims against Safeway for its involvement" }, { "docid": "11158842", "title": "", "text": "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.... 42 U.S.C. § 1983. To prevail on a Section 1983 claim, a plaintiff must establish that a person acting under color of state law deprived him of a federal right. See id.; see also Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). Roschelle argues that as a union representative, the Complaint fails to allege that he is a state actor or that he conspired with a state actor to deprive Plaintiff of her constitutional rights. The Court disagrees. Labor representatives such as Roschelle are generally not considered state actors and Plaintiff does not argue otherwise. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002). Instead, Plaintiff contends that Roschelle acted under color of state law by conspiring with the other defendants. The elements of a Section 1983 conspiracy claim are: (1) an agreement between two or more state actors or a state actor and a private entity (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal, and causing some harm. Id. at 324-25. Prior to the Supreme Court’s decision in Swierkiewicz, “complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights” were generally found to be inadequate under Rule 12(b). Id. at 325 (citations and internal quotation marks omitted). In Swierkiewicz, however, the Supreme Court held that the simplified pleading standard in Rule 8(a) applies generally to all civil actions. 534 U.S. at 513, 122 S.Ct. 992. Regardless of which standard is used, Plaintiffs claims pass muster. Plaintiff alleges that Roschelle, Ciulla, and Brown, acting in concert, coerced Plaintiff to sign the May 21, 2004 letter, forcing her to give up her contractual" }, { "docid": "8392657", "title": "", "text": "the plaintiff show any direct causal link between the policy of the Sheriffs Office and his alleged constitutional violations beyond the fact that the officers used the NCIC to verify the stolen property report and used that information in making their decisions. Such assertions are insufficient to maintain an action against Sheriff Walsh or the Cleveland County Board of Commissioners. C. Followwill and John’s Trucking Plaintiffs final claim is that defendant Followwill should be held liable for violations of his constitutional rights as a state actor under § 1983. In order for a private actor to be held liable under § 1983, there must be a- close nexus between the private action and the state. The two-pronged test set forth in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), requires that “[f]irst, the deprivation must be caused by the exercise of some right or privilege created by the State or by a person for whom the State is responsible [and, sjecond, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. at 937, 102 S.Ct. at 2753-54. “If private persons are charged they must be jointly engaged with state officials in prohibited action to become state actors under color of law.” Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429 (10th Cir.1984), vacated on other grounds, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985). Private parties who report suspected criminal activity to law enforcement officials exercising independent judgment are not held liable under § 1983. See Carey v. Continental Airlines, Inc., 823 F.2d 1402 (10th Cir.1987); Lee v. Town of Estes Park, Colo., 820 F.2d 1112 (10th Cir.1987). This is so regardless of how insistent a private complainant may be. See Lee, 820 F.2d at 1115. Plaintiff strenuously attempts to insinuate that something insidious was being hatched between Followwill and Deputy Sheriffs Winkler and Austin. Nevertheless, plaintiff offers nothing but conclusory assertions to support his claim. The fact that Followwill filed a complaint with the McClain County Sheriffs" }, { "docid": "22738236", "title": "", "text": "the § 1983 claim, plaintiff-appellant incorporated all facts previously set forth in the amended complaint, id. at 5, which are detailed above. We begin with the civil rights claims for money damages against the School for the Deaf and Blind and principal Moore in his official capacity. The Supreme Court held in Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Id. at 71, 109 S.Ct. 2304. Because the School and Moore, acting in his official capacity, are not “persons” under § 1983, plaintiff-appellant’s claims for money damages against them must fail because a cause of action under § 1983 requires a deprivation of a civil right by a “person” acting under color of state law. Id. at 64-65, 109 S.Ct. 2304. But a state official in his or her individual capacity is a “person” under § 1983. We thus consider whether plaintiff-appellant has alleged facts sufficient to state a claim under § 1983 against Moore in his individual capacity. “In deciding whether [plaintiff-appellant has] pled a cognizable claim, we must determine whether [he] can allege the deprivation of a constitutional right.” Graham v. Independent School Dist. No. I-89, 22 F.3d 991, 993 (10th Cir.1994). It is well-settled that a state does not have a constitutional duty to protect its citizens from private violence. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195-197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (noting that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” and holding that “a State’s failure to protect an individual against private violence ... does not constitute a violation of the Due Process Clause”). Rather, state actors are generally liable under the Due Process Clause only for their own acts. Id. There are, however, two established exceptions to this general rule: (1) the “special relationship” doctrine, and (2) the “danger creation”" }, { "docid": "20042861", "title": "", "text": "vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Brodeur v. City of New York, No. 04 Civ. 1859, 2005 WL 1139908, at *2-3, 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May 13, 2005) (stating court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss). III. Discussion A. § 1983 Plaintiff asserts several constitutional violations under § 1983. To prevail on a claim under § 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). Here, plaintiffs amended complaint asserts violations of the Fourth Amendment and Fourteenth Amendment, and conspiracy under § 1983. The moving defendants now seek to dismiss these claims on the grounds that (1) they were not state actors and, therefore, did not act under color of law as required by § 1983; and (2) plaintiff has failed to state a claim for relief for violations of the Fourth or Fourteenth Amendments, or for conspiracy under § 1983. 1. State Actor Requirement First, defendants argue that, as private persons and private entities, they are not subject to suit under § 1983. Specifically, all moving defendants argue that plaintiffs amended complaint contains no allegations that they are state actors or that they were acting under color of any law at the time of the alleged violations, and, thus, no § 1983 claim against them may lie. In response, plaintiff argues that the Young defendants, Joseph Quatela, and the media defendants (collectively the “private party defendants”)" }, { "docid": "20163733", "title": "", "text": "allege that the Defendants violated their due process rights by failing to provide an impartial decisionmaker. Although the Plaintiffs’ initial submission in support of the instant motion asserted that the purported inadequacy of the Decision constituted an independent due process violation, this contention is stated in a conclusory fashion and is not included in the complaint. Thus, the Court will only address the Plaintiffs’ likelihood of success on their claim, as asserted in the complaint, that the failure to provide an impartial decisionmaker was a violation of their constitutional right to due process. For its part, the IHA did not directly respond to the Plaintiffs’ due process claim, except to argue that the Plaintiffs have an adequate remedy for any alleged violations through an Article 78 proceeding. However, because the Court finds that the Plaintiffs have not shown a likelihood of success on the merits of the alleged due process violation, the Court does not need to consider whether the availability of an Article 78 proceeding precludes a cause of action under Section 1983. In order to state a valid claim under 42 U.S.C. § 1983, a plaintiff must show that the conduct in question deprived him of a right, privilege, or immunity secured by the Constitution or the laws of the United States, and that the acts were attributable at least in part to a person acting under color of state law. 42 U.S.C. § 1983; Washington v. Cnty. of Rockland, 373 F.3d 310, 315 (2d Cir.2004). It is well-settled that Section 1983 itself “creates no substantive rights” but rather “provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985)). Thus, whether brought directly as a due process violation under the Fourteenth Amendment, or through the statutory vehicle of Section 1983, the Plaintiffs necessarily must establish that the IHA’s conduct deprived them of their constitutional due process rights. The Due Process Clause does not protect against all deprivations" } ]

[ { "docid": "2144668", "title": "", "text": "TORRUELLA, Circuit Judge. The facts of this case are reported in United States v. McNatt, 637 F.Supp. 882 (D.Mass.1986) and under the same name in 813 F.2d 499 (1st Cir.1987). We will therefore merely outline the facts relevant to this appeal. Appellant McNatt was indicted together with Arcangelo DiFronzo on charges of conspiracy and bank larceny; DiFronzo was charged with receipt of stolen bank property and McNatt with aiding and abetting said offense. Both defendants were tried together, after the court denied McNatt’s motion to sever. At trial, the court conditionally admitted statements by DiFronzo and by a government informant as allowed by United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.1980). After both sides rested, the court found that the government had failed to prove sufficiently that McNatt formed part of the alleged conspiracy, and carefully instructed the jury to disregard those statements as against McNatt. The court also entered judgment of acquittal for McNatt on the conspiracy count. The jury found DiFronzo guilty of the three counts. The jury acquitted McNatt on the larceny count and convicted him of aiding and abetting DiFronzo in the receipt of stolen bank property. The court then granted McNatt’s motion for judgment of acquittal on the aid and abet count. The court based its decision on the government’s failure to put forth sufficient evidence linking McNatt’s misdeeds with DiFronzo’s receipt of stolen property. We disagreed. United States v. McNatt, 813 F.2d 499 (1st Cir.1987). We reviewed the evidence and concluded that the government presented sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that McNatt knowingly associated himself with DiFronzo’s check-counterfeiting and forgery scheme or sought by his actions to make the scheme succeed. Appellant now would have us reverse, first for the court’s failure to order a mistrial sua sponte. Secondly, appellant contends the trial court erred in denying the motion to sever. We will discuss these issues in the same order. I. Mistrial We begin by noting that appellant did not move for mistrial. Our review is therefore limited to the search for plain" } ]

[ { "docid": "2293277", "title": "", "text": "government presented its final two witnesses. After the government rested, Freeman renewed his motions for a judgment of acquittal and a mistrial. Again, the court denied the motion for a judgment of acquittal and left the motion for a mistrial under advisement. After concluding his defense, Freeman renewed his motions for a judgment of acquittal and a mistrial. The court denied both motions and submitted the conspiracy charge and three witness tampering charges to the jury. See supra note 2. The jury acquitted Freeman of the conspiracy charge and the witness tampering count involving officer Ward, but convicted him on the two counts of witness tampering involving Amy Clarke. After the verdict, Freeman moved for a new trial, citing the “overwhelming capacity of evidence that was ostensibly admitted on one count which was the conspiracy!;] all this not very subtle character assassination, Freeman’s a drinker, Freeman’s going into the dressing rooms.” According to Freeman, this evidence of “bad acts,” admitted for its relevance to the conspiracy count, substantially prejudiced his defense to the witness tampering charges. The court denied the motion for a new trial, concluding that “the evidence that was improperly allowed is just too peripheral here” (referring to Deborah Drew’s •hearsay account of DiBella’s statements to her), and that “the jury showed their independence and their ability to discern between counts” by acquitting Freeman on two of the four counts. The court sentenced Freeman to four months’ incarceration followed by twenty-four months of supervised release, the first four of those months in home confinement. The court also ordered Freeman to pay a $3,000 fine and a $200 special assessment. Freeman now appeals, arguing that the evidence was insufficient to support his convictions on the two witness tampering counts. Alternatively, he argues that the trial court erred in denying his motions for a mistrial and a new trial. II. SUFFICIENCY OF THE EVIDENCE To obtain convictions for witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) & (b)(3), the government had to prove beyond a reasonable doubt that Freeman (1) “knowingly use[d] intimidation or physical force, threaten[ed], or corruptly" }, { "docid": "21119653", "title": "", "text": "Count Two arose from the armed robbery of an American Savings Bank in Oakland on August 9, 1990. Count Three charged James with the armed robbery of an Oakland Home Federal Savings Bank branch office on August 28, 1990. Finally, Count Four involved the armed robbery of a Bank of the West branch, also in Oakland, on September 5,1990. James pleaded not guilty to all counts and his case proceeded to a jury trial. On September 11,1991, the jury found James guilty on Counts Two, Three, and Four and the court entered judgment on those counts. The jury was unable to reach a verdict on Count One, and the court declared a mistrial on that count. James moved for a judgment of acquittal on all counts under Fed. R.Crim.P. 29. The district court denied his motion. James then appealed the convictions on Counts Two, Three and Four. In his appeal, James did not challenge the order denying the motion for acquittal on Count One, but challenged only the sufficiency of the evidence on the counts of which he was convicted. On March 8, 1993, we reversed James’s three convictions due to insufficiency of the evidence, holding that no rational jury could have reached the result obtained because an essential element of the charged offenses had not been proven. United States v. James, 987 F.2d 648, 652 (9th Cir.1993). The Government had failed to present any evidence that the banks James was convicted of robbing were insured by the Federal Deposit Insurance Corporation (“FDIC”). On June 8, 1994, a federal grand jury indicted James on two charges. In one of the counts, James was charged anew with the armed bank robbery of Sanwa Bank on May 8, 1990, the count which previously resulted in a mistrial. The other indictment charged James with conspiracy to rob “federally insured banks, savings and loans, and other financial institutions.” James moved to dismiss these indictments on double jeopardy and collateral estoppel grounds pursuant to Fed.R.Crim.P. 12. The district court denied James’s motion on October 31, 1994. This timely appeal followed. The denial of a motion" }, { "docid": "2293282", "title": "", "text": "in the context of a visit to her home shortly after the appearance of a newspaper article that Clarke had reason to believe had angered him, were sufficient to permit a jury to conclude that Freeman knowingly acted in a way designed to intimidate, threaten, or corruptly persuade Clarke, with the specific intent to cause her to “withhold testimony” or to “hinder, delay, or prevent the communication” of information to the federal authorities. See United States v. Shotts, 145 F.3d 1289, 1301 (11th Cir.1998) (finding defendant’s statement to his secretary to “just not say anything [to the FBI] and I wasn’t going to be bothered” sufficient to support a conviction under 18 U.S.C. § 1512). III. THE MOTION FOR A MISTRIAL Freeman argues that the trial court abused its discretion in denying his motion for a mistrial or a new trial for three reasons. First, if the trial court had granted his motion for a judgment of acquittal on the conspiracy charge as it should have, it would have realized that so much “bad acts” testimony had been admitted as evidence of the conspiracy that Freeman could not get a fair trial on the witness tampering charges. Second, the trial court had exacerbated the prejudicial effect of the conspiracy evidence by allowing the government to present the hearsay testimony of a coconspirator, only to strike that evidence once it determined that the government had failed to show the existence of a conspiracy by a preponderance of the evidence. Third, even if the court properly submitted the conspiracy charge to the jury, the “bad acts” evidence admitted in support of that charge substantially prejudiced the jury’s consideration of the witness tampering charges. As with any review of a denial pi a motion for a mistrial, we consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of “clear” prejudice that would render the court’s denial of his motion for a mistrial a “manifest abuse of discretion.” United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998). In conducting this inquiry, we are mindful that the trial" }, { "docid": "7109408", "title": "", "text": "including the drug ledger and measuring materials— were located near the gun. For all these reasons, a rational juror could have concluded that the gun found at 2118 Fulton Street was used in furtherance of drug trafficking. The district court’s denial of Zamora’s motion for a judgment of acquittal on his conviction for possessing a firearm in furtherance of a drug trafficking offense was not erroneous. E. Freeman argues that the district court erroneously denied his motion for a mistrial. Freeman maintains that a witness’s testimony that Freeman had “a criminal history” was so prejudicial that it requires a mistrial. We review a denial of a motion for mistrial for abuse of discretion. United States v. Mitchell, 484 F.3d 762, 775 (5th Cir.2007). If a defendant moves for a mistrial on the grounds that the jury heard prejudicial testimony, “a new trial is required only if there is a significant possibility that the prejudicial evidence had a substantial impact upon the jury verdict, viewed in light of the entire record.” United States v. Paul, 142 F.3d 836, 844 (5th Cir.1998) (citation omitted). If the “evidence is so prejudicial that the jury will unlikely be able to erase it from their minds, then a mistrial should be ordered.” United States v. Escamilla, 666 F.2d 126, 128 (5th Cir.1982) (citations omitted). To determine whether prejudicial testimony should prompt a mistrial, we have focused on the characteristics of the prejudicial evidence, see Paul, 142 F.3d at 844, and the strength of the other evidence in the case, see United States v. Limones, 8 F.3d 1004, 1007 (5th Cir.1993); United States v. Millsaps, 157 F.3d 989, 993 (5th Cir.1998). Our review of the record demonstrates that the district court did not err when it denied Freeman’s motion for a mistrial. First, the inadmissible testimony was isolated, only vaguely related to the alleged crime, and its prejudicial impact was limited by subsequent events. The inadmissible testimony was only vaguely related to the charges brought by the government in that it did not establish any specific conduct by Freeman. Instead, it only established that Freeman had" }, { "docid": "23383365", "title": "", "text": "he was setting up drug dealers), it had to disbelieve Rodgers (that he was being held against his will). As it turned out the jury found both Hines and Rodgers .guilty, apparently rejecting both defenses. As we have noted, when antagonistic defenses are presented, there is a chance that the jury will find from the conflict the guilt of both parties. Walton, 552 F.2d at 1361. We are persuaded that Rodgers made a “strong showing of prejudice,” see Esch, 832 F.2d at 537, and demonstrated as he must, that he was denied a fair trial. Petersen, 611 F.2d at 1331. This is a paradigm case of prejudice. Denial of severance to afford a fair trial was prejudicial error. E. Denial of Hines’ Motion for Mistrial Count seven of the indictment charged Hines with knowingly and intentionally possessing a firearm as a felon, a violation of 18 U.S.C. § 922(g)(1) (1982) and 18 U.S.C. § 2 (1982). The trial court sustained Hines’ motion for judgment of acquittal as to count seven reasoning that “there is absolutely no evidence in this Court’s opinion which would link the defendant with the firearm sufficient that a reasonable person ... might find the accused guilty beyond a reasonable doubt.” IV R. 363. Hines then moved for a mistrial arguing that when “count 7 was charged and the indictment was read to the jury it obviously contained language concerning him being a prior felon. Now that that’s been let out and the jury has heard that, I asked that the case be mistried.” IV R. 363. Hines argues that failure to grant the mistrial forced him into the untenable position of having to take the stand to explain away the convictions referred to in the indictment, or of having to remain silent, thereby allowing the jurors to speculate as to why he did not take the stand. Hines argues that he was effectively forced to abandon his Fifth Amendment right to remain silent. The government emphasizes that the court specifically instructed the jury in its preliminary instructions “that an indictment is the method of getting this" }, { "docid": "23282467", "title": "", "text": "substitute for admissible evidence when a defendant is on trial. See In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). In contrast, the record contains sufficient evidence to sustain Hamblin’s conviction on section 924(c) charges in con nection with the December 14 robbery (Count Nine). For example, there was eyewitness testimony that Jones entered the bank on December 14 with his gun drawn, and a reasonable jury could also conclude that Hamblin knew about the gun based upon the excerpt from his signed statement quoted above. In other words, if the jury believed that Hamblin admitted hearing a shot fired during the first robbery, it could also reasonably believe that he knew Jones would use a gun again in the commission of the fourth robbery. Accordingly, we affirm Hamblin’s conviction on Count Nine but reverse on Count Two, the section 924(c) charge from the first robbery, for insufficient evidence. The district court sentenced Hamblin to 20 years in prison for Count Nine, which was his second conviction under section 924(c). Due to our reversal of his conviction on Count Two, Hamblin’s sentence must be vacated in its entirety. His case is remanded to the district court for resentencing in accordance with this opinion. 5. Failure To Grant Appellants’ Motions For Mistrial After the close of the government’s case, the district court granted a judgment of acquittal to both defendants on Counts Three, Four, Six, and Seven, which contained all of the charges relating to the second and third bank robberies. The defendants subsequently moved for a mistrial on the remaining counts. Their motions were denied by the district court, and appellants contend on appeal that such denial was reversible error. We review these claims under an abuse of discretion standard. United States v. Johnson, 713 F.2d 654, 659 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). Appellants’ motions for mistrial were based upon a theory of “prejudicial spillover,” which asserted that the government’s presentation of evidence to the jury on the dismissed counts had tainted the trial with" }, { "docid": "2293286", "title": "", "text": "hence he is entitled to a mistrial on the remaining charges. See United States v. McNatt, 842 F.2d 564, 565-66 (1st Cir.1988); see also United States v. Hamblin, 911 F.2d 551, 559 (11th Cir.1990); Leach v. United States, 402 F.2d 268, 268 (5th Cir.1968) (per curiam). Although Freeman was ultimately acquitted on the conspiracy charge, and therefore has no basis for challenging as a discrete issue on appeal the denial of his motion for a judgment of acquittal on that charge, he argues that he should be able to make on appeal the same mistrial argument that would have been available to him if he had persuaded the court to dismiss the conspiracy charge at the completion of the government’s case. That is, he should be able to argue that the denial of the mistrial request was erroneous because of the substantial prejudice created by the evidence that went to the jury in support of a conspiracy charge that should have been dismissed. Under the scenario in this case, the challenge to the judge’s ruling on the motion for a judgment of acquittal, instead of being the basis for a discretely appealable issue, becomes the predicate for Freeman’s first challenge to the trial court’s ruling on the motion for a mistrial. See United States v. Guiliano, 644 F.2d 85, 88-89 (2d Cir.1981) (ordering a retrial on a bankruptcy fraud count, even though the evidence was sufficient to support the conviction, because it reversed on appeal a RICO conviction and concluded that there was a “distinct risk that the jury was influenced in its disposition of [the bankruptcy fraud] count by improper evidence and by the allegations of the RICO count”). We accept the theory of Freeman’s appeal on this mistrial issue. That is a pyrrhic victory, however, because we agree with the trial court’s decision to deny Freeman’s motion for a judgment of acquittal on the conspiracy charge. We explain. Federal Rule of Criminal Procedure 29(a) provides, “[t]he court on a motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one" }, { "docid": "2293276", "title": "", "text": "evidence to determine whether it had properly allowed Drew to testify to DiBella’s out-of-court statements on the first day of trial. The court concluded that there was insufficient evidence of a conspiracy to admit the hearsay statements of a coconspirator, but that there was sufficient evidence to deny the motion for a judgment of acquittal on the conspiracy charge: [T]he Court is not persuaded by a fair preponderance of the evidence, as I make findings of preliminary fact, that at any time there existed a conspiracy between Mr. Freeman and Mr. DiBel-la. That requires me to strike so much of the testimony of Ms. Drew as recounted things that Mr. DiBella had to say. At the same time ... I think that wholly apart from anything I believe about the evidence, that there is enough evidence independent of Mr. DiBella ... that a reasonable jury could find a conspiracy- So, I must deny the motion for a judgment of acquittal.... Freeman then, moved for a mistrial, the court took the motion under advisement, and the government presented its final two witnesses. After the government rested, Freeman renewed his motions for a judgment of acquittal and a mistrial. Again, the court denied the motion for a judgment of acquittal and left the motion for a mistrial under advisement. After concluding his defense, Freeman renewed his motions for a judgment of acquittal and a mistrial. The court denied both motions and submitted the conspiracy charge and three witness tampering charges to the jury. See supra note 2. The jury acquitted Freeman of the conspiracy charge and the witness tampering count involving officer Ward, but convicted him on the two counts of witness tampering involving Amy Clarke. After the verdict, Freeman moved for a new trial, citing the “overwhelming capacity of evidence that was ostensibly admitted on one count which was the conspiracy!;] all this not very subtle character assassination, Freeman’s a drinker, Freeman’s going into the dressing rooms.” According to Freeman, this evidence of “bad acts,” admitted for its relevance to the conspiracy count, substantially prejudiced his defense to the witness tampering" }, { "docid": "23282468", "title": "", "text": "924(c). Due to our reversal of his conviction on Count Two, Hamblin’s sentence must be vacated in its entirety. His case is remanded to the district court for resentencing in accordance with this opinion. 5. Failure To Grant Appellants’ Motions For Mistrial After the close of the government’s case, the district court granted a judgment of acquittal to both defendants on Counts Three, Four, Six, and Seven, which contained all of the charges relating to the second and third bank robberies. The defendants subsequently moved for a mistrial on the remaining counts. Their motions were denied by the district court, and appellants contend on appeal that such denial was reversible error. We review these claims under an abuse of discretion standard. United States v. Johnson, 713 F.2d 654, 659 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). Appellants’ motions for mistrial were based upon a theory of “prejudicial spillover,” which asserted that the government’s presentation of evidence to the jury on the dismissed counts had tainted the trial with respect to the remaining counts. See, e.g., United States v. Guiliano, 644 F.2d 85 (2d Cir.1981). Appellants claim they were further prejudiced when counsel for the government referred to evidence regarding the dismissed counts in his closing argument. Hamblin also argues that he was prejudiced by testimony concerning Jones’s involvement in the robberies that was inadmissible against Hamblin; by the trial judge’s decision to permit photocopies of bank surveillance photographs to go out with his jury, while the originals remained in the courtroom for use in the case against Jones; and by the lower court’s failure to give any curative instructions to his jury regarding its consideration of evidence relating to Jones or to the dismissed counts. The government responds on appeal with a series of alternative contentions. First, it argues that the evidence was sufficient to convict both defendants on the dismissed counts, therefore no improper prejudice resulted from the admission of that evidence. Second, even if the evidence was insufficient to convict on the dismissed counts, it was properly admissible under Fed.R.Evid. 404(b)" }, { "docid": "2293284", "title": "", "text": "court has a “superior point of vantage,” and that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record,-will venture to reverse a trial judge’s on-the-spot decision.” United States v. Fierro, 32 F.3d 611, 617 (1st Cir.1994). Where “a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice.” Torres, 162 F.3d at 12 (emphasis added). This is so because a mistrial is viewed as a “last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.” United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.1993). We conclude that the trial court did not abuse its discretion by denying Freeman’s motion for a mistrial for the following reasons: (A) the court properly denied the motion for a judgment of acquittal on the conspiracy charge; (B) the minimal hearsay statements of a coconspirator, later stricken from the record, did not substantially prejudice the jury’s consideration of the witness tampering charges; and (C) the “bad acts” evidence admitted in support of the conspiracy charge did not spill over to substantially prejudice the jury’s consideration of the witness tampering charges. A. The Denial of the Motion for a Judgment of Acquittal on the Conspiracy Charge We must first note the unusual nature of this mistrial argument, premised as it is on the allegedly erroneous denial of a motion for a judgment of acquittal on a charge later rejected by the jury with a not guilty verdict. Although Freeman’s logic in pursuing this argument is not always clear, we divine this meaning in his claim. If a defendant in a trial involving multiple charges succeeds in obtaining a judgment of acquittal on some of the charges at the completion of the government’s case, the defendant can argue that he cannot get a fair trial on the charges that remain in the case because of the evidence presented on the now dismissed charges, and" }, { "docid": "2293287", "title": "", "text": "on the motion for a judgment of acquittal, instead of being the basis for a discretely appealable issue, becomes the predicate for Freeman’s first challenge to the trial court’s ruling on the motion for a mistrial. See United States v. Guiliano, 644 F.2d 85, 88-89 (2d Cir.1981) (ordering a retrial on a bankruptcy fraud count, even though the evidence was sufficient to support the conviction, because it reversed on appeal a RICO conviction and concluded that there was a “distinct risk that the jury was influenced in its disposition of [the bankruptcy fraud] count by improper evidence and by the allegations of the RICO count”). We accept the theory of Freeman’s appeal on this mistrial issue. That is a pyrrhic victory, however, because we agree with the trial court’s decision to deny Freeman’s motion for a judgment of acquittal on the conspiracy charge. We explain. Federal Rule of Criminal Procedure 29(a) provides, “[t]he court on a motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” Pursuant to this standard, the defendant may claim a “hopeless variance in the proof’ between the crime charged and the evidence produced at trial. See 2 Charles Alan Wright, Federal Practice & Procedure: Criminal .2d § 466, at 654 (West 1982). Freeman argued that the government’s evidence, especially DiBella’s testimony that he was motivated by fear rather than by an agreement with Freeman, indicated that Freeman was guilty if at all of extortion, an offense not charged by the government. Although the evidence presented by the government arguably would have lent more support to a charge of extortion than a charge of conspiracy, the evidence was sufficient to submit the conspiracy charge to the jury. To prove a conspiracy, the government must show beyond a reasonable doubt that the “defendant and one or more coconspirators intended to agree and ... to commit the substantive" }, { "docid": "2293285", "title": "", "text": "from the record, did not substantially prejudice the jury’s consideration of the witness tampering charges; and (C) the “bad acts” evidence admitted in support of the conspiracy charge did not spill over to substantially prejudice the jury’s consideration of the witness tampering charges. A. The Denial of the Motion for a Judgment of Acquittal on the Conspiracy Charge We must first note the unusual nature of this mistrial argument, premised as it is on the allegedly erroneous denial of a motion for a judgment of acquittal on a charge later rejected by the jury with a not guilty verdict. Although Freeman’s logic in pursuing this argument is not always clear, we divine this meaning in his claim. If a defendant in a trial involving multiple charges succeeds in obtaining a judgment of acquittal on some of the charges at the completion of the government’s case, the defendant can argue that he cannot get a fair trial on the charges that remain in the case because of the evidence presented on the now dismissed charges, and hence he is entitled to a mistrial on the remaining charges. See United States v. McNatt, 842 F.2d 564, 565-66 (1st Cir.1988); see also United States v. Hamblin, 911 F.2d 551, 559 (11th Cir.1990); Leach v. United States, 402 F.2d 268, 268 (5th Cir.1968) (per curiam). Although Freeman was ultimately acquitted on the conspiracy charge, and therefore has no basis for challenging as a discrete issue on appeal the denial of his motion for a judgment of acquittal on that charge, he argues that he should be able to make on appeal the same mistrial argument that would have been available to him if he had persuaded the court to dismiss the conspiracy charge at the completion of the government’s case. That is, he should be able to argue that the denial of the mistrial request was erroneous because of the substantial prejudice created by the evidence that went to the jury in support of a conspiracy charge that should have been dismissed. Under the scenario in this case, the challenge to the judge’s ruling" }, { "docid": "2293308", "title": "", "text": "plea bargain, DiBella agreed to cooperate in the government’s investigation of Freeman and to testify against him at trial. .Although the government had not yet rested, it consented to the court’s consideration of the defendant’s motion for a judgment of acquittal at this time. . Freeman's defense consisted of only three witnesses. John Carney, a captain in the Marblehead Police Department, and Robert Marrón, a Peabody police officer, were each called by the defense to impeach the credibility of Officer Ward. (The court found Marron’s testimony inadmissible.) Robert Russell, a Peabody police detective, testified that DiBel-la had spoken favorably of Freeman and that Francis DiBella had told him that the federal authorities were trying to get his father to say that he had paid Freeman off. Freeman did not testify on his own behalf. . Because Freeman's motion for a new trial is not based upon grounds arising subsequent to judgment, the appeal is from the judgment, with the denial of his motions for a mistrial and a new trial being assigned as an error in the judgment. See 2 Charles Alan Wright, Federal Practice & Procedure: Criminal 2d § 559, at 367 (West 1982 & 1999 Supp.); Gray v. United States, 299 F.2d 467, 468 (D.C.Cir.1962). Freeman's arguments in support of a mistrial and a new trial are the same, and they are subject to the same standard of review, see United States v. Wihbey, 75 F.3d 761, 773 (1st Cir.1996) (“We review a trial judge's ruling on a motion for a mistrial, or for a new trial, only for abuse of discretion.”). We therefore simplify our discussion by referring hereafter only to the motion for a mistrial. . DiBella also owned a fruit distributorship that specialized in, among other things, bananas. . Despite these rulings, the court remained concerned about the closeness of the conspiracy/extortion issue. It therefore took special care in its jury instructions to distinguish extortion, which was not charged, from the conspiracy charge at issue in this case: [Tjhere’s some evidence here, if you believe it, evidence of a shakedown. Squeezing money out of people." }, { "docid": "22052065", "title": "", "text": "(reversing dismissal of indictment under supervisory powers because of government informant’s use and distribution of cocaine during investigation). Moreover, Appellants have not shown that they were substantially prejudiced by any government misconduct. Appellant Sanchez raises some additional issues which, he argues, make the claim of outrageous government conduct particularly strong in his case. Sanchez argues that Turscak engaged in a concerted effort to have Sanchez join a conspiracy to murder Martinez, and that the government sought to keep this information from the defense. Sanchez’s claims may have had some merit had the government charged him with conspiracy to murder Martinez. The government did not, however, and there is therefore no basis for Sanchez’s claim that Turscak created the crimes with which he was charged. None of the conversations between Turscak and Sanchez regarding Martinez was used for any purpose by the government, so we fail to see how Sanchez could have been prejudiced by their occurrence. Nor do we find any merit to Sanchez’s claim that the government concealed relevant information: Sanchez conceded that the government provided him with the actual tape of the conversations between Turscak, Detevis and Sanchez (Consensual Tape # 142), and Sanchez has not disputed the government’s reasonable explanation for not providing him with a transcript. Moreover, Sanchez quoted extensively from that tape in his mid-trial motion for a dismissal of the indictment, which undermines any claim that he was deprived of relevant evidence. For these reasons, we conclude that the district court properly rejected Sanchez’s request for dismissal of the indictment based on outrageous government conduct. V. Denial of mistrial Appellants argue that the district court abused its discretion in failing to grant their motion for a mistrial based on co-defendant Roland Ramirez’s mid-trial decision to plead guilty and testify for the government. We review the denial of a motion for a mistrial under the abuse of discretion standard. United States v. Prime, 363 F.3d 1028, 1037 (9th Cir.2004). Appellants' first argument is that Ramirez and/or his counsel were present during defense strategy sessions at the same time that they were negotiating a plea deal" }, { "docid": "22895170", "title": "", "text": "as an essential element of the count 1 conspiracy. See id. at 1400 (“ ‘Merely because appellants were acquitted of the substantive ... charges does not mean that the facts upon which the charges were based cannot later be used as non-criminal overt acts in furtherance of the conspiracy to commit the substantive offenses.’ ”) (citation omitted). The count 1 conspiracy also listed overt acts different from the specific transactions making up the substantive counts of the indictment. Therefore, evidence concerning substantive acts on which El-Mezain was acquitted was not barred by collateral estoppel as long as it was otherwise admissible. See Dowling, 493 U.S. at 348, 110 S.Ct. 668 (declining to extend collateral estoppel “to exclude in all circumstances ... relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged crimi nal conduct for which a defendant has been acquitted”). El-Mezain does not argue that the challenged evidence was not relevant or probative; he argues only that it was inadmissible because it predated or coincided with the time frame of the conspiracy for which he was acquitted. This argument fails to establish that collateral estoppel barred the evidence. L. Mistrial and double jeopardy The defendants next claim that the district court erroneously denied their motion to dismiss the instant prosecution on double jeopardy grounds because there was no manifest necessity for a mistrial in the first case. The defendants reason that the Government induced the mistrial through prosecutorial misconduct by improperly submitting non-admitted exhibits to the first jury. We hold that the record shows that all defendants validly agreed to the mistrial and that there has been no. showing that the Government engaged in intentional misconduct either to induce the defendants’ consent to the mistrial or to avoid an acquittal that it believed was likely- Our review of the denial of a double jeopardy claim following declaration of a mistrial is plenary. United States v. Campbell, 544 F.3d 577, 581 (5th Cir.2008). “We review all factual findings underpinning the district court’s determination for clear error.” Id. Although the Double Jeopardy" }, { "docid": "2293297", "title": "", "text": "a thirteenth juror, much less [is] he a super-juror whose views of credibility could override the jury’s verdict.” Id. Accordingly, although in a Petrozziello ruling the court can make credibility assessments and draw inferences from the facts, it must take the evidence in the light most favorable to the government in ruling on a motion for a judgment of acquittal. It is not inconsistent for a court to conclude, therefore, based on its own inferences and credibility assessments, that it' is more likely than not that no conspiracy existed, while, at the same time, concluding that the evidence, viewed in the light most favorable to the government, would permit a rational juror to find the defendant guilty beyond a reasonable doubt. For all of these reasons, we conclude that the trial court did not err in denying Freeman’s motion for a judgment of acquittal on the conspiracy charges. The court properly submitted that charge to the jury. B. The Statements of a Coconspirator As an additional argument for a mistrial, Freeman .contends that the court erred in allowing “hearsay testimony in support of an existing conspiracy,” and that this error “unfairly prejudiced Mr, Freeman with respect to the witness tampering charges.” Before the trial court made its Petrozziello ruling, it had provisionally admitted the hearsay testimony of Deborah Drew. This approach -is consistent with the law of this circuit which provides that “[hjearsay evidence may be admitted provisionally, subject to the trial court’s final Petrozziello determination, which should be made ‘at the close of all the evidence.’” Pórtela, 167 F.3d at 702-03 (quoting United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.1980)). When a court ultimately concludes that hearsay evidence provisionally admitted does not meet the Petrozziello standards, the court must “give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice.” Ciampag-lia, 628 F.2d at 638. The court gave a cautionary instruction. We conclude that it sufficed to cure the effect of Drew’s hearsay testimony. Deborah Drew testified that DiBella told her that he" }, { "docid": "16986271", "title": "", "text": "conspiracy began earlier than January 1994, but claimed that under the law of this circuit it was entitled to do so. The government stated that it had learned of the longer duration of the conspiracy after the indictment had been returned and, rather than obtaining a superseding indictment, it chose instead to use the evidence of the earlier conspiratorial acts to establish and explain the conspiracy as charged in the indictment. After confirming that the government intended to prove that the conspiracy existed from January to March 1994 by introducing evidence that established that the same conspiracy might have started considerably pri- or to January 1994, the district court denied the motions for mistrial and judgment of acquittal. The district court also denied the defendant’s motion in limine and overruled the defendant’s continuing objection to the admission of the evidence. During the remainder of the trial, the government introduced evidence of the earlier conspiratorial acts as proof of the charged conspiracy. At the close of the evidence, the defendant again moved for mistrial and judgment of acquittal. The district court denied both motions. The jury found the defendant guilty of both counts. At the sentencing hearing, the district court found that during the course of the conspiracy Mr. Spaeni had possessed between 15 and 50 kilograms of cocaine and that he was a manager or supervisor in a conspiracy which involved at least five participants. On the basis of these findings, the district court imposed a 210-month sentence. Mr. Spaeni then filed this timely appeal. DISCUSSION We review a denial of a motion for mistrial or judgment of acquittal de novo. United States v. Sax, 89 F.3d 1380, 1385 (7th Cir.1994). A trial court has broad discretion in assessing the admissibility of evidence and its rulings may be reversed only if the court has abused its discretion. United States v. Miller, 984 F.2d 201, 203 (7th Cir.1993). On appeal, Mr. Spaeni contends that, by presenting evidence of the conspiracy predating by almost two years the conspiracy charged in the indictment, the government impermissibly broadened the indictment and thus committed reversible" }, { "docid": "23116750", "title": "", "text": "24, 1973, Goodwin was tried before a jury and was found guilty both of importing and of conspiring to import marijuana. He was sentenced to five years imprisonment and a two year special parole term on each count, the two sentences to run concurrently. On this appeal Goodwin seeks to have his conviction reversed for any of four alleged errors on the part of the district court. First, appellant contends that the court erred in failing to grant his motion for acquittal after the conspiracy charges against the other alleged co-conspirators had been dismissed. Second, Goodwin argues that the court should have granted various motions for directed verdict of acquittal because the evidence presented at trial was insufficient to support a conviction. Third, Goodwin claims that several comments by the prosecutor during closing argument were prejudicial, and that the court erred in denying motions for a mistrial on that basis. Finally, appellant maintains that the trial court erred in permitting the government to introduce testimony regarding his arrest while committing a similar offense nine months after the crime charged herein. We find the first two assignments of error unpersuasive. As to the third contention, we believe that at least one of the statements in the government’s closing argument exceeded the limits of permissible prosecutorial zeal, and that the district court erred by failing, at a minimum, to provide a corrective cautionary instruction to the jury. Finally, after careful study of the record in this ease and the decisions of this Circuit, we conclude that the district court committed prejudicial error by admitting evidence of subsequent similar conduct on the part of appellant. We therefore reverse for a new trial. I. Appellant argues that because conspiracy charges against his alleged co-conspirators, Ritsema and Hansen, were dropped he should have been acquitted. This Court has followed the general rule that the conviction of only one defendant in a conspiracy prosecution will not be upheld if all other alleged co-conspirators are acquitted. Farnsworth v. Zerbst, 5 Cir. 1938, 98 F.2d 541; United States v. Peterson, 5 Cir. 1974, 488 F.2d 645, 651. The" }, { "docid": "2293283", "title": "", "text": "testimony had been admitted as evidence of the conspiracy that Freeman could not get a fair trial on the witness tampering charges. Second, the trial court had exacerbated the prejudicial effect of the conspiracy evidence by allowing the government to present the hearsay testimony of a coconspirator, only to strike that evidence once it determined that the government had failed to show the existence of a conspiracy by a preponderance of the evidence. Third, even if the court properly submitted the conspiracy charge to the jury, the “bad acts” evidence admitted in support of that charge substantially prejudiced the jury’s consideration of the witness tampering charges. As with any review of a denial pi a motion for a mistrial, we consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of “clear” prejudice that would render the court’s denial of his motion for a mistrial a “manifest abuse of discretion.” United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998). In conducting this inquiry, we are mindful that the trial court has a “superior point of vantage,” and that “it is only rarely — and in extremely compelling circumstances — that an appellate panel, informed by a cold record,-will venture to reverse a trial judge’s on-the-spot decision.” United States v. Fierro, 32 F.3d 611, 617 (1st Cir.1994). Where “a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice.” Torres, 162 F.3d at 12 (emphasis added). This is so because a mistrial is viewed as a “last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.” United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir.1993). We conclude that the trial court did not abuse its discretion by denying Freeman’s motion for a mistrial for the following reasons: (A) the court properly denied the motion for a judgment of acquittal on the conspiracy charge; (B) the minimal hearsay statements of a coconspirator, later stricken" }, { "docid": "454735", "title": "", "text": "reasons, we reverse Delagarza’s conviction for possession with intent to distribute marijuana and affirm his conviction for conspiracy to possess with intent to distribute marijuana. MOTION TO DISMISS DENIED; AFFIRMED in part; REVERSED in part; and REMANDED for RESENTENCING. . Delagarza had previously pled guilty to a superseding indictment for his failure to appear. . The Court specifically noted, however, that an appeal successfully premised on insufficiency of the evidence would fall outside that class of cases. Irrespective of the prejudice to the government, a defendant may not be retried if he wins under that argument. 507 U.S. at 249, 113 S.Ct. at 1208. Delagarza presents arguments premised on insufficiency of the evidence, but also on ineffective assistance of counsel and failure to grant a mistrial. . See supra note 2. . We employ this standard of review because Delagarza preserved his insufficient evidence claim by moving for a judgment of acquittal at trial. United. States v. Sneed, 63 F.3d 381, 385, n. 2 (5th Cir. 1995), cert, denied, 516 U.S. 1048, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996); see United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991) (reviewing for “manifest miscarriage of justice” because defendant failed to move for directed verdict or judgment of acquittal). . Delagarza argues that the government failed to prove an overt act in furtherance of the conspiracy. No proof of an overt act is required in order to obtain a conviction for conspiracy to possess a controlled substance with the intent to distribute it. United States v. Bermea, 30 F.3d 1539, 1551— 52 (5th Cir.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995); United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989). . The government maintains that Delagarza has not appealed the denial of his motion for mistrial and, thus, that he has waived that issue. United States v. Denman, 100 F.3d 399, 405 (5th Cir. 1996) (\"We review for abuse of discretion a trial judge’s denial of a motion for mistrial based on allegations of improper extrajudicial conduct by jurors.”); United States v. Almeida-Biffi, 825" } ]

[ { "docid": "18873379", "title": "", "text": "§ 1447(c). Plaintiff’s motion will, therefore, be denied. Section 1447(c) provides, in part, that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.” Although the standard contained in § 1447(c) is stated in the conjunctive, implying that the district court must find both improper removal and a lack of jurisdiction, the section has been construed to authorize remand where a case has been improvidently removed even though the defect was not jurisdictional. See, e. g., London v. United States Fire Ins. Co., 531 F.2d 257, 260 (5th Cir. 1976) (untimeliness of removal petition under § 1446(b)); Robertson v. Ball, 534 F.2d 63, 65, n. 2 (5th Cir. 1976); Manas y Pineiro v. Chase Manhattan Bank, N. A., 443 F.Supp. 418, 421-22 (S.D.N.Y.1978) (remand within court’s discretion on basis of judicial economy, comity and prejudice). However, remand on grounds other than those expressly enunciated in § 1447(c) will subject the district court’s action to appellate review and the possible issuance of a writ of mandamus. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). See generally, 14 Wright & Miller, Federal Practice & Procedure, §§ 3739-40, at 755-70 (1976). In this case, the Court is unable to say either (1) that plaintiff’s action against Amoco was improvidently removed or (2) that it lacks jurisdiction to hear the instant claim. The cause asserted between plaintiff and Amoco is between citizens of different states and involves a claim in excess of $10,000, exclusive of interest and costs. As such, it falls within the diversity jurisdiction of this Court and could, in fact, have originally been brought here pursuant to 28 U.S.C. § 1332. The record reveals nothing which would indicate the removal herein failed to comply with the requirements of 28 U.S.C. § 1446 or that there was any statutory provision forbidding removal. The fact that plaintiff attempted to join a nondiverse defendant following removal is irrelevant for purposes of the instant motion" } ]

[ { "docid": "18309948", "title": "", "text": "broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In the case at bar these requisites are clearly satisfied. Plaintiff’s action arises out of the defective nature of certain milking equipment, liability for which may rest with one or more of the proposed defendants. Questions of law and fact are common to all these parties. There is no question that the joinder of these parties will promote trial convenience and will prevent the possibility, if not likelihood, of multiple litigation. In opposition to plaintiff’s motions the defendant has pointed to the oft-stated general rule that the plaintiff cannot act so as to divest a court of jurisdiction over a case that has been properly removed. However, the majority of federal courts which have addressed this issue have concluded that when there is no showing that the plaintiff seeks to join the additional defendants solely to effectuate a remand, “in the exercise of ... sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand.” Desert Empire Bank v. Insurance Co. of America, 623 F.2d 1371 (9th Cir.1980); Shaw v. Munford, 526 F.Supp. 1209 (S.D.N.Y.1981); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978). When joinder of additional parties will necessitate a remand to state court, the district court should properly give serious consideration to the motive underlying plaintiff’s motion. The plaintiff may be adding a new defendant solely to have his action remanded to the state forum, the one he had originally chosen as best suited to his purpose. Desert Empire Bank v. Insurance Co. of North America, 623 F.2d at 1376. This caution, however, should not require the court to preclude summarily any action that would divest the court of jurisdiction. Rather, “when there is no showing that the plaintiff seeks to join the additional defendants solely to effectuate a remand, the better rule seems to be that in the exercise" }, { "docid": "2935843", "title": "", "text": "new and extended pretrial schedule, including the period for discovery; and (v) a jury trial pursuant to Rules 38 and 39 of the Federal Rules of Civil Procedure, should the action not be remanded. Because the proposed amendments to the complaint form the centerpiece of the present motion, the Court begins its analysis there. DISCUSSION Rule 15(a) of the Federal Rules of Civil Procedure mandates that leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This is understood to mean that “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir.1983). Amendments which effectively divest a district court of diversity jurisdiction, however, present a unique problem inasmuch as the joinder of additional non-diverse parties to a validly removed action destroys federal subject matter jurisdiction, and thereby necessitates a remand to the state court. However, it is well settled in this circuit that a district court may, in the exercise of its sound discretion, add new parties despite the fact that their citizenship will destroy diversity and require a remand. See Wilson v. Famatex GmbH, 726 F.Supp. 950, 952 (S.D.N.Y.1989); Aries Ventures Ltd. v. Axa Finance S.A., 696 F.Supp. 965, 966 (S.D.N.Y.1988); Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 (W.D.N.Y.1988); McIntyre v. Codman & Shurtleff, Inc., 103 F.R.D. 619, 620-621 (S.D.N.Y.1984); Grogan v. Babson Bros. Co. of Ill., 101 F.R.D. 697, 699 (N.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209, 1213 (S.D.N.Y.1981). With that principle in mind, the Court turns to consider the application at bar. I. Proper Parties to be Joined NML argues that the only valid ground for allowing joinder of a non-diverse party and thereby compel a remand is when the additional parties are indispensable pursuant to Rule 19 of the Federal Rules of Civil Procedure. To support its position, NML cites In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5th Cir. 1978)." }, { "docid": "6468106", "title": "", "text": "who must be joined under Rule 19 of the Federal Rules of Civil Procedure. In any event, resolution of this issue is unnecessary for the purposes of this motion. . Whether to allow a plaintiff to proceed in a manner that will divest the Court of jurisdiction after the case has been properly removed is a difficult question and one that calls for a thorough briefing by the parties. Unfortunately, the parties have cited virtually no cases in support of their positions and have presented this Court with only a superficial analysis of the issue. . The Fifth Circuit has gone so far as to state that a district court lacks discretion to allow the joinder of non-indispensible parties whose joinder would destroy diversity. In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 647 & n.8 (5th Cir. 1978). Relying on Therm-iron Products, Inc. v. Hermansdorfer, supra, the Fifth Circuit noted that “Thermtron makes it clear that such discretion is not vested in the district judge.” 587 F.2d at 647 n.8. We think that this far overstates the import of Thermtron. In Thermtron, a case in which a district judge.had ordered a remand simply because of calendar congestion, the Supreme Court merely held that 28 U.S.C. § 1447(c) (1976) stated the exclusive grounds for remand. See pt. I supra. There is nothing in the opinion to suggest that the discretion accorded a district judge under Rule 20 has been abrogated in situations in which joinder will destroy diversity. It should also be noted that several decisions after Thermtron have implicitly rejected the approach of the Fifth Circuit. See Desert Empire Bank v. Insurance Co. of North America, supra; Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978). . Other factors that should be considered when determining whether to allow permissive joinder are the delay of the movant in seeking to amend his pleadings, the closeness of the relationship between the present parties and the parties to be joined, and whether the party to be joined has had any notice of the pending" }, { "docid": "22374413", "title": "", "text": "But that rule has “no application to a case where at the time of judgment citizens of the same State were on both sides of the litigation.” Id. at 704, 92 S.Ct. at 1348. Here, there were Louisiana residents on both sides of the litigation at the time of judgment. III. Having decided that the district court did not have subject matter jurisdiction does not end our inquiry. We should next decide whether the district court’s joinder of Gueydan was proper. Deere argues that the district court can only add a nondiverse indispensable party, see Fed.R. Civ.P. 19, and has no discretion to add a nondiverse permissive party after removal. Therefore, Deere urges us to treat the joinder of Gueydan as a nullity, but uphold the judgment as to Deere. Alternatively, Deere urges us to vacate the addition of Gueydan and have the district court proceed to judgment as to Deere alone. On the other hand, Hensgens argues that the district court properly allowed amendment to add Gueydan under Fed.R.Civ.P. 15. See Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980). Once Gueydan was joined, Hens-gens concludes, the district court had to remand the case back to state court. We are confronted with competing interests. On one hand, there is the danger of parallel federal/state proceedings with the inherent dangers of inconsistent results and the waste of judicial resources. On the other side, the diverse defendant has an interest in retaining the federal forum. Indeed, the removal statutes are predicated on giving the diverse defendants a choice of a state or federal forum. We conclude that the balancing of these competing interests is not served by a rigid distinction of whether the proposed added party is an indispensable or permissive party. Instead, the district court, when confronted with an amendment to add a nondiverse nonindispensable party, should use its discretion in deciding whether to allow that party to be added. Accord, Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); McIntyre v. Codman & Shurtleff, 103 F.R.D. 619 (S.D.N.Y.1984); Grogan" }, { "docid": "15957510", "title": "", "text": "these motions is whether plaintiff may amend his complaint after removal to add a defendant who is merely a proper party and whose citizenship destroys the diversity jurisdiction of this Court which existed at the time of removal. Plaintiff contends that the amendment should be allowed under Rule 15, which relates to amended pleadings, and Rule 20, which relates to permissive joinder of parties. There is conflicting authority on this issue. In In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir. 1979), the Fifth Circuit ruled that a district court lacks discretion to allow the joinder of non-indispensable parties whose joinder after removal would destroy diversity. Id. at 647 n. 8. This ruling was based on a broad interpretation of Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), a case in which the Supreme Court held that a district court’s order to remand because of its calendar congestion did not state a reason falling within the exclusive grounds for remand stated in 28 U.S.C. § 1447(c). Although the Fifth Circuit conceded that the district court could remand after allowing the addition of indispensable non-diverse parties, it extended the Thermatron case to prohibit the district court from exercising its discretion under Rule 20 to permit the addition after removal of a non-diverse defendant who is not indispensable. Two district courts have rejected the Fifth Circuit’s reasoning and conclusion in the Merrimack case. See Shaw v. Munford, 526 F.Supp. 1209 (S.D.N.Y.1981); Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N. Y.1980). In both cases the court concluded that the Fifth Circuit overstated the holding of the Supreme Court’s decision in the Thermtron case. In Shaw v. Munford, supra, the court observed: There is nothing in the [Thermtron ] opinion to suggest that the discretion accorded a district judge under Rule 20 has been abrogated in situations in which joinder will destroy diversity. 526 F.Supp. at 1213 n. 10. Furthermore, in Desert Empire Bank v. INA, 623 F.2d 1371 (9th Cir.1980), the Ninth Circuit implicitly rejected the Fifth Circuit’s conclusion. The Ninth Circuit" }, { "docid": "15957511", "title": "", "text": "1447(c). Although the Fifth Circuit conceded that the district court could remand after allowing the addition of indispensable non-diverse parties, it extended the Thermatron case to prohibit the district court from exercising its discretion under Rule 20 to permit the addition after removal of a non-diverse defendant who is not indispensable. Two district courts have rejected the Fifth Circuit’s reasoning and conclusion in the Merrimack case. See Shaw v. Munford, 526 F.Supp. 1209 (S.D.N.Y.1981); Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N. Y.1980). In both cases the court concluded that the Fifth Circuit overstated the holding of the Supreme Court’s decision in the Thermtron case. In Shaw v. Munford, supra, the court observed: There is nothing in the [Thermtron ] opinion to suggest that the discretion accorded a district judge under Rule 20 has been abrogated in situations in which joinder will destroy diversity. 526 F.Supp. at 1213 n. 10. Furthermore, in Desert Empire Bank v. INA, 623 F.2d 1371 (9th Cir.1980), the Ninth Circuit implicitly rejected the Fifth Circuit’s conclusion. The Ninth Circuit held that the district court should allow the joinder of a non-diverse defendant after removal if plaintiff satisfies the requirements of Rule 20. It also stated that the action must then be remanded to state court. See also Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978) (action remanded after plaintiff permitted to join non-diverse defendant). The Court concludes that plaintiff may not amend his complaint to add Go-lightly to this action regardless of which authority is followed. On the one hand, the Merrimack case ruled that a district court does not have discretion under Rule 20 to allow the addition after removal of a non-diverse defendant who is not an indispensable party. Since the Court has determined that Golightly is not an indispensable party, the Court may not allow the addition of Golightly under the Merrimack case because Golightly’s presence would destroy the Court’s diversity jurisdiction. On the other hand, the conflicting authority indicates that a non-diverse defendant can be added after removal if the joinder satisfies the requirements of Rule 20. That Rule imposes two" }, { "docid": "17696035", "title": "", "text": "fact to both the medical malpractice and products liability claims. However, because allowing these amendments would defeat diversity jurisdiction, we do not believe that leave to amend should be as freely given as in the usual case. As the Ninth Circuit has stated, a trial court should look with particular care at the [plaintiff’s] motive in removal cases, when the presence of a new defendant will defeat the court’s diversity jurisdiction and will require a remand to the state court. In such cases, a plaintiff may well be inclined to add a new defendant only to have his action remanded to the state forum, the one that he had originally chosen as best suited to his purposes. Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371, 1376 (9th Cir.1980) (citations omitted). In exercising our discretion under Fed.R.Civ.P. 20, we must determine whether joinder “will comport with the principles of fundamental fairness.” Desert Empire Bank, 623 F.2d at 1375. On this record, we do not find that plaintiff’s motive in amending is solely to defeat diversity jurisdiction, and consideration of a number of factors persuades us that a remand would not be fundamentally unfair to defendant Codman. A synthesis of the existing case law which allows a plaintiff to add parties under these circumstances shows that the following are appropriate factors to consider: any delay in moving to amend and any reasons for delay, Shaw v. Munford, 526 F.Supp. 1209, 1212 (S.D.N.Y.1981); Miller v. Davis, 464 F.Supp. 458, 460 (D.D.C.1978); the existence of a motion to amend in the state court, Shaw, supra, 526 F.Supp. at 1212; substantial differences between the original complaint and the amended complaint, Miller, supra, 464 F.Supp. at 460; Harper Financial Corp. v. Hanson Oil Corp., 403 F.Supp. 1405, 1407 (W.D.Tenn.1975); the possibility of a multiplicity of lawsuits, Shaw, supra, 526 F.Supp. at 1214; Soam Corp. v. Trane Co., 506 F.Supp. 302, 310 (S.D.N.Y.1980); Miller, supra, 464 F.Supp. at 460; Ingersoll v. Pearl Assurance Co., 153 F.Supp. 558, 560 (N.D.Cal.1957); an inability to identify the defendants at the time of the original complaint, Heatherton" }, { "docid": "18359785", "title": "", "text": "determination of the issues raised by Acme’s motion to amend. Sigma objected here to the order as being beyond the authority of the Magistrate in that the granting of the motion was dispositive in that it destroyed diversity jurisdiction and required a remand to the state court. Fed.R.Civ.P. rule 72(a) authorizes a magistrate to hear and determine pre-trial motions not dispositive of a party’s claim or defense. 28 U.S.C. § 636(b)(1)(A) provides that “a magistrate [may] hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, * * *, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Acme’s motion to add Summit as a defendant does not explictly fall within any of the stated exceptions to section 636(b)(1)(A). Upon remand to state court all parties will be able to assert any claim or defense permitted in this Court. Accordingly, this Court finds that the Magistrate’s Order was non-dispositive of any claim or defense and, therefore, must be affirmed unless “clearly erroneous or contrary to law.” See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984); 28 U.S.C. § 636(b)(1)(A). Past precedent establishes that the Magistrate’s Order is not clearly erroneous or contrary to law. Substantial case law holds that a party may amend its pleadings even if the amendment destroys diversity jurisdiction and causes a remand to a state court. Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); Kamunda v. Harley Davidson Motor Co., Inc., Civ. No. 84-462C (W.D.N.Y. 1986); McIntyre v. Codman and Shurtleff Inc., 103 F.R.D. 619 (S.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209 (S.D. N.Y.1981); Soam Corp. v. Trane Co., 506" }, { "docid": "695601", "title": "", "text": "that a cause of action against GECC is properly pleaded. In that circumstance, once again, non-diverse parties would be present. However, once a case has been properly removed, subsequent alteration in the parties to the action that revives a failure of diversity will only rarely serve to defeat the federal court’s jurisdiction. “[T]he general rule [is that] the plaintiff cannot act so as to divest a court of jurisdiction over a case that has been properly removed.” Shaw v. Munford, 526 F.Supp. 1209, 1213 (S.D.N.Y.1981); see Comstock v. Morgan, 165 F.Supp. 798 (W.D.Mo.1958); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3723, at 598-99. Although a court may in its discretion permit subsequent joinder of non-diverse parties thereby requiring remand to the state court, see Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980), in doing so “a trial court should pay particular attention to the motive underlying the plaintiff’s motion because ‘he may well be inclined to add a new defendant only to have his action remanded to the state forum, the one he had originally chosen as best suited to his purposes.’ ” Shaw, supra, at 1213, quoting Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371, 1376 (9th Cir. 1980). Such concerns might well be determinative in this action. It is similarly the case that were this action remanded to state court and were defendant GECC then dismissed, the case would once again be removable to federal court. See Quinn v. Aetna Life and Gas Co., 616 F.2d 38, 40 n. 2 (2d Cir.1980); Platt v. Illinois Cent. R. Co., 305 F.2d 136, 139 (5th Cir.1962). Although it is true that a distinction remains between the ability to remove subsequent to either a voluntary or an involuntary termination of the plaintiff’s case against the non-diverse defendant, see Weems v. Louis Dreyfus Corp., 380 F.2d 545, 548 (5th Cir.1967), 14 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure, § 3723 at 595-6, the final involuntary dismissal of the claim against the non-diverse party will afford the defendant an" }, { "docid": "18309951", "title": "", "text": "While the court is at a complete loss to understand why the plaintiff did not merely join the instant defendant to his pending state court action, this tactical blunder should not effect the outcome of the present motion. If this motion were denied it would necessitate the continuance of parallel cases resulting in a great waste of judicial resources. Moreover, granting the motion will not prejudice the defendant because both lawsuits are in their infancy. Having concluded that the reasons for bringing this motion are legitimate, the court grants the plaintiff’s motion to amend its complaint adding the two non-diverse defendants. Because their joinder destroys this court’s jurisdiction over the lawsuit, the case must be remanded to the New York State Supreme Court, Oneida County, pursuant to 28 U.S.C. § 1447(c). It is so Ordered. . Defendants contend that this court is without authority to entertain plaintiff’s motion for remand because the case was properly removed from state court in the first instance. The plaintiff argues that under 28 U.S.C. § 1447(c), a case removed to federal court may be remanded if an impropriety or jurisdictional flaw appears at any time before a final judgment is rendered. Since the Supreme Court's decision in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the clear trend in authority is to allow a remand if events subsequent to removal divest the court of federal jurisdiction. Thus, where the court’s jurisdictional basis has failed subsequent to removal, a remand pursuant to § 1447(c) is permissible. See, e.g., Shaw v. Munford, 526 F.Supp. 1209, 1215 n. 13 (S.D.N.Y.1981); Soam Corp. v. Trane Co., 506 F.Supp. 302, 305-08 (S.D.N.Y.1980); J.L. Stanhope v. Ford Motor Credit Co., 483 F.Supp. 275, 277-79 (W.D.Ark.1980); Miller v. Davis, 464 F.Supp. 458, 461 (D.D.C.1978)." }, { "docid": "6468098", "title": "", "text": "to state court, a trial court should pay particular attention to the motive underlying the plaintiff’s motion because he “may well be inclined to add a new defendant only to have his action remanded to the state forum, the one that he had originally chosen as best suited to his purposes.” Desert Empire Bank v. Insurance Co. of North America, supra, 623 F.2d at 1376. That a court should be cautious, however, should not require it to preclude summarily any action that would divest the court of jurisdiction. Rather, when there is no showing that the plaintiff seeks to join the additional defendants solely to effectuate a remand, the better rule seems to be that “in the exercise of . . . sound discretion the court may permit a new party to be added, although his citizenship destroys di versity and requires a remand.” 1A Moore’s Federal Practice, supra, ¶ 0.161[1], at 209; accord, Desert Empire Bank v. Insurance Co. of North America, supra, (plaintiff permitted to join additional defendant whose presence destroyed diversity jurisdiction and necessitated a remand); Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980) (same); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978) (same); Harper Financial Corp. v. Hanson Oil Corp., 403 F.Supp. 1405 (W.D.Tenn.1975) (same): see J.L. Stanhope v. Ford Motor Credit Co., 483 F.Supp. 275, 278-79 (W.D.Ark.1980) (when there was no evidence that the plaintiff was attempting to oust the court of jurisdiction by adding non-diverse defendants, “remand [would] not transgress the policy behind the rule that a plaintiff should not be allowed to force a remand by action taken after removal”). See also Littlefield v. Continental Casualty Co., 475 F.Supp. 887 (C.D.Cal.1979) (joinder of additional defendants that destroyed diversity allowed when the defendants were originally listed as John Doe defendants); Heatherton v. Playboy, Inc., 60 F.R.D. 372 (C.D.Cal.1973) (same). In the case at bar, there is no reason to believe that the motive underlying the plaintiff’s motion to join Malone and the Law Firm as additional defendants is to deprive this Court of jurisdiction to hear the case. When he filed his complaint in" }, { "docid": "18309946", "title": "", "text": "Surge Inc. Don Carrier Surge Inc. [Don Carrier] installed the milking equipment on the plaintiffs premises. Plaintiff alleges that the equipment caused electric current to come into contact with the livestock during the milking operations. Don Carrier undertook to modify and correct the defect but allegedly abandoned its efforts without having corrected the problem. Plaintiff seeks to amend his complaint joining Surge Inc. of Babson Brothers and Don Carrier Surge Inc. to the present action. Plaintiff had previously commenced a separate action in state court against these two proposed defendants. Plaintiff argues that by granting the instant motion the court will preserve precious judicial resources and avoid multiplicity of litigation. Defendant contends that the motion should be denied because plaintiff’s sole motive in seeking joinder is to destroy diversity of citizenship thereby subverting the defendant’s right to defend this litigation in a federal forum. DISCUSSION This ease presents the interesting but seldom addressed question of whether a plaintiff is entitled to join additional non-diverse parties to a validly removed action when the effect is to destroy federal subject-matter jurisdiction, thereby necessitating a remand to state court, as a threshold matter, however, the court must determine whether joinder under Rule 20 is permissible in the first instance. Shaw v. Munford, 526 F.Supp. 1209 (S.D.N.Y.1981); see also Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371 (9th Cir.1980). Rule 20(a) imposes two specific requisites for the joinder of parties: (1) a right to relief must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence; and (2) some question of law or fact common to all the parties will arise in the action. League to Save Tahoe v. Tahoe Reg. Plan Agency, 558 F.2d 914, 917 (9th Cir.1977); see also 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 1653 (1972). Joinder is to be construed liberally “in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits.” Id. Moreover, under the federal rules “the impulse is toward the" }, { "docid": "2935847", "title": "", "text": "plaintiff’s claims arise out of one single transaction or occurrence—the completion of the application in question. Accordingly, there can be no question that a trial on the merits will involve many issues of law and fact common in their application to all defendants. Having decided that the joinder proposed satisfies the requirements of Rule 20, however, does not end the analysis. The Court must next weigh certain relevant considerations to “determine whether joinder will comport with the principles of fundamental fairness” the Federal Rules were designed to promote. McIntyre, 103 F.R.D. at 622 (quoting Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371, 1376 (9th Cir.1980)); accord, Wilson, 726 F.Supp. at 952. B. Balancing Test A synthesis of the relevant case law in this circuit which supports a plaintiff’s amendment to add non-diverse parties, thereby necessitating remand, shows that the following are appropriate factors to consider: (1) any delay, and its reasons, in moving to amend, see e.g., Wilson, 726 F.Supp. at 952; Aries Ventures, 696 F.Supp. at 969; Shaw, 526 F.Supp. at 1212; (2) any resulting prejudice to the defendants, see e.g., Aries Ventures, 696 F.Supp. at 969; Shaw, 526 F.Supp. at 1214; Soam Corp. v. Trane Co., 506 F.Supp. 302, 310 (S.D.N.Y.1980); (3) the likelihood of multiple litigation, see e.g., Grogan, 101 F.R.D. at 700; Wilson, 726 F.Supp. at 952; Shaw, 526 F.Supp. at 1214; Soam, 506 F.Supp. at 310; and (4) the plaintiff’s motivation in moving to amend, see e.g., Wilson, 726 F.Supp. at 952; Aries Ventures, 696 F.Supp. at 969; Grogan, 101 F.R.D. at 699. NML claims that plaintiff’s motion to amend is unduly dilatory because “all of the facts upon which plaintiff bases her request for leave to serve an amended complaint were known to plaintiff before she commenced this action in September 1990.” See Defendant’s Memo, at 4. However, NML’s position is technically inaccurate, for plaintiff apparently believed in September of 1990 that Araujo and O’Brien were employed by NML, a belief which, if true, obviated naming them separately as defendants. It was not until January of 1991 that plaintiff’s counsel" }, { "docid": "18309950", "title": "", "text": "of sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand.” Shaw v. Munford, 526 F.Supp. at 1213; IA Moore’s Federal Practice, ¶ 0.161[1] at 208-10 (2d Ed. 1981). Accord Desert Empire Bank v. Insurance Co. of North America, 623 F.2d at 1376; Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980); J.L. Stanhope v. Ford Motor Credit Corp., 483 F.Supp. 275 (W.D.Ark.1980); Miller v. Davis, 464 F.Supp. at 459-60. In the present case there is no evidence to suggest that plaintiff seeks to join additional defendants solely to effectuate a remand to state court. When plaintiff filed his original complaint he was apparently under the impression that Surge Inc. of Babson Brothers Co. was the exclusive manufacturer of the defective equipment. He subsequently discovered that Babson Brothers Co. of Illinois was the manufacturer of the defective product and thus the instant lawsuit was commenced. The plaintiff’s motive in bringing this suit is simply to consolidate the pending suit with the state court action. While the court is at a complete loss to understand why the plaintiff did not merely join the instant defendant to his pending state court action, this tactical blunder should not effect the outcome of the present motion. If this motion were denied it would necessitate the continuance of parallel cases resulting in a great waste of judicial resources. Moreover, granting the motion will not prejudice the defendant because both lawsuits are in their infancy. Having concluded that the reasons for bringing this motion are legitimate, the court grants the plaintiff’s motion to amend its complaint adding the two non-diverse defendants. Because their joinder destroys this court’s jurisdiction over the lawsuit, the case must be remanded to the New York State Supreme Court, Oneida County, pursuant to 28 U.S.C. § 1447(c). It is so Ordered. . Defendants contend that this court is without authority to entertain plaintiff’s motion for remand because the case was properly removed from state court in the first instance. The plaintiff argues that under 28 U.S.C. § 1447(c), a case removed" }, { "docid": "18359786", "title": "", "text": "within any of the stated exceptions to section 636(b)(1)(A). Upon remand to state court all parties will be able to assert any claim or defense permitted in this Court. Accordingly, this Court finds that the Magistrate’s Order was non-dispositive of any claim or defense and, therefore, must be affirmed unless “clearly erroneous or contrary to law.” See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984); 28 U.S.C. § 636(b)(1)(A). Past precedent establishes that the Magistrate’s Order is not clearly erroneous or contrary to law. Substantial case law holds that a party may amend its pleadings even if the amendment destroys diversity jurisdiction and causes a remand to a state court. Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); Kamunda v. Harley Davidson Motor Co., Inc., Civ. No. 84-462C (W.D.N.Y. 1986); McIntyre v. Codman and Shurtleff Inc., 103 F.R.D. 619 (S.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209 (S.D. N.Y.1981); Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978); Harper Financial Corp. v. Hanson Oil Corp., 403 F.Supp. 1405 (W.D.Tenn.1975). Amendments for non-diverse joinder have been granted where the movant complies with the specific requirements of Fed.R. Civ.P. rules 15 and 20 and where granting the motion comports with “principles of fundamental fairness.” Kamunda v. Harley Davidson Motor Co., Inc., supra, at 10; McIntyre v. Codman and Shurtleff Inc., supra, at 622; Shaw v. Munford, supra, at 1213; Desert Empire Bank v. Ins. Co. of North America, supra, at 1375. The specific requirements of rules 15 and 20 have been complied with in the instant case. Rule 15 states that leave to amend shall be “freely given when justice so requires.” Rule 20 provides for permissive joinder of defendants if the claim arises from the “same transaction” and where “[common] questions of law and fact * * * will arise in the action.” The action here concerns the same transaction—viz., a contract for the sale of electronic relay components entered into by Acme and" }, { "docid": "17696036", "title": "", "text": "to defeat diversity jurisdiction, and consideration of a number of factors persuades us that a remand would not be fundamentally unfair to defendant Codman. A synthesis of the existing case law which allows a plaintiff to add parties under these circumstances shows that the following are appropriate factors to consider: any delay in moving to amend and any reasons for delay, Shaw v. Munford, 526 F.Supp. 1209, 1212 (S.D.N.Y.1981); Miller v. Davis, 464 F.Supp. 458, 460 (D.D.C.1978); the existence of a motion to amend in the state court, Shaw, supra, 526 F.Supp. at 1212; substantial differences between the original complaint and the amended complaint, Miller, supra, 464 F.Supp. at 460; Harper Financial Corp. v. Hanson Oil Corp., 403 F.Supp. 1405, 1407 (W.D.Tenn.1975); the possibility of a multiplicity of lawsuits, Shaw, supra, 526 F.Supp. at 1214; Soam Corp. v. Trane Co., 506 F.Supp. 302, 310 (S.D.N.Y.1980); Miller, supra, 464 F.Supp. at 460; Ingersoll v. Pearl Assurance Co., 153 F.Supp. 558, 560 (N.D.Cal.1957); an inability to identify the defendants at the time of the original complaint, Heatherton v. Playboy, Inc., 60 F.R.D. 372 (C.D.Cal.1973); Shaw, supra, 526 F.Supp. at 1214; Soam, supra, 506 F.Supp. at 308; Harper, supra, 403 F.Supp. at 1407; the closeness of the relationship between the present parties and the parties to be added, and whether the new defendants had any notice of the lawsuit, Desert Empire Bank, supra, 623 F.2d at 1375; Shaw, supra, 526 F.Supp. at 1215; Soam, supra, 506 F.Supp. at 309; the nature of the parties to be added, i.e., whether they are merely formal or nominal, Harper, supra, 403 F.Supp. at 1407; any prejudice to the defendants, Desert Empire Bank, supra, 623 F.2d at 1375; Shaw, supra, 526 F.Supp. at 1214; Soam, supra, 506 F.Supp. at 308; Miller, supra, 464 F.Supp. at 461; any prejudice to the plaintiff, Shaw, supra, 526 F.Supp. at 1214; Soam, supra, 506 F.Supp. at 308; and the stage of the lawsuit, Shaw, supra, 526 F.Supp. at 1214. See also, Stanhope v. Ford Motor Credit Co., Inc., 483 F.Supp. 275 (W.D.Ark.1980); Adams v. Beland Realty Corp., 187 F.Supp. 680 (E.D.N.Y.1960)." }, { "docid": "14032096", "title": "", "text": "Co., 303 U.S. 283, 294, 58 S.Ct. 586, 593, 82 L.Ed. 845 (1938) (barring post-removal amendment to lower amount in controversy below federal court’s jurisdictional limit). Under this standard, there is no question that Pfeiffer’s action was properly removed to federal court on Hartford’s petition. We also reject Pfeiffer’s implicit argument that the district court abused its discretion in dismissing the claims against Dr. Brittain and the Colorado Attorney General instead of remanding them and the remainder of the action to state court. The cases Pfeiffer cites in support of this argument are either indirectly supportive of our ruling, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988) (district court has discretion to remand action to state court rather than dismiss it when plaintiff amends complaint to eliminate federal questions that had formed basis for removal); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987) (district court has broad discretion in deciding whether to allow amendment to join a nondiverse, .nonin-dispensable party), or readily distinguishable from the present case. See, e.g., Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371, 1375-76 (9th Cir.1980) (principles of fundamental fairness required remand); Grogan v. Babson Bros. Co., 101 F.R.D. 697, 700 (N.D.N.Y.1984) (remand ordered to consolidate action with parallel action pending in state court); Stanhope v. Ford Motor Credit Co., 483 F.Supp. 275, 278-79 (W.D.Ark.1980) (remand rather than dismissal chosen because facts giving rise to claim against nondi-verse defendant were not fully known to plaintiff at the time the state court action was filed). Accordingly, we affirm the district court’s dismissal of the claims against these two parties for lack of federal jurisdiction. B. Absolute immunity of individual state attorneys The district court granted summary judgment in favor of the individual state attorneys on the basis of prosecutorial immunity. Summary Judgment Order at 4. Pfeiffer argues that this ruling was erroneous because all or some of the conduct he complains of was either investigative or administrative in function and hence not subject to absolute immunity from section 1983 liability. We" }, { "docid": "18309949", "title": "", "text": "effectuate a remand, “in the exercise of ... sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand.” Desert Empire Bank v. Insurance Co. of America, 623 F.2d 1371 (9th Cir.1980); Shaw v. Munford, 526 F.Supp. 1209 (S.D.N.Y.1981); Miller v. Davis, 464 F.Supp. 458 (D.D.C.1978). When joinder of additional parties will necessitate a remand to state court, the district court should properly give serious consideration to the motive underlying plaintiff’s motion. The plaintiff may be adding a new defendant solely to have his action remanded to the state forum, the one he had originally chosen as best suited to his purpose. Desert Empire Bank v. Insurance Co. of North America, 623 F.2d at 1376. This caution, however, should not require the court to preclude summarily any action that would divest the court of jurisdiction. Rather, “when there is no showing that the plaintiff seeks to join the additional defendants solely to effectuate a remand, the better rule seems to be that in the exercise of sound discretion the court may permit a new party to be added, although his citizenship destroys diversity and requires a remand.” Shaw v. Munford, 526 F.Supp. at 1213; IA Moore’s Federal Practice, ¶ 0.161[1] at 208-10 (2d Ed. 1981). Accord Desert Empire Bank v. Insurance Co. of North America, 623 F.2d at 1376; Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980); J.L. Stanhope v. Ford Motor Credit Corp., 483 F.Supp. 275 (W.D.Ark.1980); Miller v. Davis, 464 F.Supp. at 459-60. In the present case there is no evidence to suggest that plaintiff seeks to join additional defendants solely to effectuate a remand to state court. When plaintiff filed his original complaint he was apparently under the impression that Surge Inc. of Babson Brothers Co. was the exclusive manufacturer of the defective equipment. He subsequently discovered that Babson Brothers Co. of Illinois was the manufacturer of the defective product and thus the instant lawsuit was commenced. The plaintiff’s motive in bringing this suit is simply to consolidate the pending suit with the state court action." }, { "docid": "22374414", "title": "", "text": "v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980). Once Gueydan was joined, Hens-gens concludes, the district court had to remand the case back to state court. We are confronted with competing interests. On one hand, there is the danger of parallel federal/state proceedings with the inherent dangers of inconsistent results and the waste of judicial resources. On the other side, the diverse defendant has an interest in retaining the federal forum. Indeed, the removal statutes are predicated on giving the diverse defendants a choice of a state or federal forum. We conclude that the balancing of these competing interests is not served by a rigid distinction of whether the proposed added party is an indispensable or permissive party. Instead, the district court, when confronted with an amendment to add a nondiverse nonindispensable party, should use its discretion in deciding whether to allow that party to be added. Accord, Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371 (9th Cir.1980); McIntyre v. Codman & Shurtleff, 103 F.R.D. 619 (S.D.N.Y.1984); Grogan v. Babson Brothers Co. of Illinois, 101 F.R.D. 697 (N.D.N.Y.1984). If the court grants the joinder, it must, under 1447(c) and Thermtron remand the case to state court. If it denies the joinder, it cannot remand. Because the court's decision will determine the continuance of its jurisdiction, the addition of a nondiverse party must not be permitted without consideration of the original defendant’s interest in the choice of forum. The district court, when faced with an amended pleading naming a new nondiverse defendant in a removed case, should scrutinize that amendment more closely than an ordinary amendment. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “should be freely given when justice so requires,” and Rule 20 permits joinder of proper parties. In this situation, justice requires that the district court consider a number of factors to balance the defendant’s interests in maintaining the federal forum with the competing interests of not having parallel lawsuits. For example, the court should consider the extent to which the purpose of the amendment" }, { "docid": "2935844", "title": "", "text": "is well settled in this circuit that a district court may, in the exercise of its sound discretion, add new parties despite the fact that their citizenship will destroy diversity and require a remand. See Wilson v. Famatex GmbH, 726 F.Supp. 950, 952 (S.D.N.Y.1989); Aries Ventures Ltd. v. Axa Finance S.A., 696 F.Supp. 965, 966 (S.D.N.Y.1988); Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 (W.D.N.Y.1988); McIntyre v. Codman & Shurtleff, Inc., 103 F.R.D. 619, 620-621 (S.D.N.Y.1984); Grogan v. Babson Bros. Co. of Ill., 101 F.R.D. 697, 699 (N.D.N.Y.1984); Shaw v. Munford, 526 F.Supp. 1209, 1213 (S.D.N.Y.1981). With that principle in mind, the Court turns to consider the application at bar. I. Proper Parties to be Joined NML argues that the only valid ground for allowing joinder of a non-diverse party and thereby compel a remand is when the additional parties are indispensable pursuant to Rule 19 of the Federal Rules of Civil Procedure. To support its position, NML cites In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5th Cir. 1978). However, “Merrimack’s implication that only indispensable parties may be added” has since been rejected by the Fifth Circuit. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 n. 1 (5th Cir.1987), cert. denied, 493 U.S. 851, 110 S.Ct. 150, 107 L.Ed.2d 108 (1989). In fact, the Hensgens court described Merrimack’s implication as “dictum since the [.Merrimack ] court’s holding, not issuing the writ of mandamus which allowed the remand order to stand, did not in any way depend on that implication.” Id. Courts in this circuit have comported with Hensgens in holding that additional non-diverse parties need not be indispensable to be joined. See e.g., Wilson, 726 F.Supp. at 952; McIntyre, 103 F.R.D. at 621; Grogan, 101 F.R.D. at 699; Shaw, 526 F.Supp. at 1213. The courts in the cases cited have instead required that join-der be merely permissible under Rule 20 of the Federal Rules of Civil Procedure, and that the balancing of certain relevant con siderations weighs in favor of joinder and its necessarily attendant remand. Thus, the Court turns to consider each" } ]

[ { "docid": "12586985", "title": "", "text": "Plumbing Tubes in a continuous and uninterrupted flow in interstate commerce to customers located in states other than the states in which the Defendants produced Copper Tubing.” (Consol. Am. Class Action Compl. ¶ 44.) (emphasis added). Plaintiffs go on to allege that Defendants engaged in a conspiracy to fix prices of Copper Plumbing Tubes in the United States at “anti-competitive prices,” resulting in economic injury to domestic purchasers. Id. ¶¶61-67. (emphasis added). The complaint alleges that each named defendant “directly or through its subsidiaries and/or affiliates, produced Copper Tubing and sold it throughout the United States”. Id. ¶¶ 10-32. (emphasis added). Although Plaintiffs aver that the alleged price fixing conspiracy is “international in nature, scope and effect” and that the copper tubing market is “global,” there is only a single passing mention of “foreign trade” in the complaint’s allegations. Id. ¶¶ 60, 66. Since the violations alleged involve primarily domestic conduct and domestic injury, Plaintiffs’ allegations must be analyzed as direct Sherman Act claims without resort to the qualifying provisions of the FTAIA. See Dee K Enter. Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281, 286 (4th Cir.2002). Consequently, the Court concluded that, as it had earlier determined, Halcor’s FTAIA subject matter jurisdiction challenge was a losing argument. However, the Court’s FTAIA reexamination, combined with its previous findings as to personal jurisdiction in the Mueller Europe dismissal, impelled the Court to reflect more broadly on the issue of subject matter jurisdiction. On its face, the complaint appears to satisfy Fed.R.Civ.P. 8(a)’s requirement of a “short and plain statement of the grounds upon which the court’s jurisdiction depends.” Plaintiffs invoked the Court’s jurisdiction pursuant to 28 U.S.C. § 1331 and 1337, and Sections 4 and 16 of the Clayton Act, to recover damages for, and obtain injunctive relief from, Defendants’ alleged violation of Section 1 of the Sherman Act. Title 28 U.S.C. § 1331 grants the Court original jurisdiction over civil actions involving federal questions generally, and § 1337 grants jurisdiction over commerce and antitrust regulations specifically. The Sherman Act makes illegal any contract, trust or conspiracy in restraint of trade." } ]

[ { "docid": "5782335", "title": "", "text": "F.Supp.2d 538, 576-577 (M.D.Pa.2009) (distinguishing In re Elevator and holding that “Defendants’ alleged [anticompetitive] conduct in Canada enhances the plausibility of the alleged U.S. price-fixing conspiracy.”). In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F.Supp.2d 487, 492 (D.Conn.2008), also cited by Arctic Glacier, is distinguished by the fact that plaintiffs attempted to introduce evidence of guilty pleas as to a conspiracy to unlawfully raise prices (on a different trade route) as proof of a conspiracy to unlawfully lower prices, i.e. predatory pricing. The court found that the suggested inference did not, therefore, tend to enhance the plausibility of plaintiffs’ claim: “in the context of a predatory pricing claim, ‘a conspiracy to increase profits in one market does not tend to show a conspiracy to sustain losses in another.’ ” 541 F.Supp.2d at 492 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). This is not a predatory pricing case and Plaintiffs are not attempting cross-fertilize by utilizing guilty pleas as to one type of prohibited conduct as proof of a different type of unlawful behavior. Finally, the Court distinguishes In re Hawaiian & Guamanian Cabotage Antitrust Litig., 647 F.Supp.2d 1250 (W.D.Wash.2009), where the court rejected plaintiffs’ proffer of guilty pleas relating to conduct on an entirely different trade route by certain individuals, only one of whom was involved in the litigation before the court. Declining plaintiffs’ suggestion that the case before the court was analogous to the SRAM litigation discussed above, the court stated: “The cases on which plaintiffs primarily rely do not support a different view because those cases involved defendants with overlapping involvement in different markets, a factual scenario that plaintiffs in this case have not pleaded.” 647 F.Supp.2d at 1259 Thus, under certain circumstances, the “if there, then here” argument certainly can have merit. Particularly where, as here, there is a significant overlap in identity of interest of the alleged co-conspirators in both markets (the corporate actors are the same and all of the individual defendants who pled guilty to anticompetitive conduct in southeastern" }, { "docid": "1617711", "title": "", "text": "20, 2000. (Pl.' Mot. Ex. 56, at 5.) The record contains no evidence regarding the nature of any communications between Ortho and those customers. Ortho contends that the slide establishes that it had already implemented the BBLP prior to the alleged price-fixing conspiracy, which plaintiffs contend began in November 2000. Plaintiffs argue that, even if Ortho engaged in some kind of discussion with select customers in September and October of 2000, Ortho did not finalize the BBLP until after its allegedly unlawful communications with Immucor. On the present state of the record, the Court finds that the slide does not establish that Ortho implemented the BBLP before the AABB meeting, which began on November 4, 2000. . At the class certification hearing, Ortho provided the Court with the Supplemental Declarations of Mike Poynter and Bill Weiss, two Immucor executives. In those declarations, Poynter and Weiss aver that they do not \"remember anything being said during [Ortho's] presentation about a 2001 price increases or anything about Ortho's future pricing plans.” (Supp. Poynter Decl. ¶ 8; see also Supp. Weiss Decl. ¶ 5.) However, other Immucor employees who attended the AABB meeting testified to the contrary. . The Court dismissed plaintiffs' claims against Ortho's' parent company, Johnson & Johnson Health Care Systems. See In re Blood Reagents Antitrust Litig., 756 F.Supp.2d 623, 633 (E.D.Pa. 2010). . The Supreme Court granted certiorari in Behrend on June 25, 2012. See - U.S. -, 133 S.Ct. 24, 183 L.Ed.2d 673, 80 U.S.L.W. 3707 (U.S. June 25, 2012) (No. 11-864). . At the class certification hearing, Dr. Bronsteen testified that the evidence regarding whether TBR are commodities is “mixed.” (7/26/12 Hr’g Tr. 182.) He argued that differences in the prices of Ortho’s and Immucor's TBR during the class period show that some customers preferred one defendant's TBR to the other. (Id. at 182— 83.) However, Dr. Beyer’s analysis shows that, even if Ortho and Immucor prices were not identical for all products, they were similar. (See, e.g., Beyer Reply fig. 1.) Moreover, Dr. Bronsteen compares average prices charged by Immucor and Ortho. Those average prices are" }, { "docid": "17259441", "title": "", "text": "so long as one such inference suggests a plausible conspiracy. As the Sixth Circuit recently explained in Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452 (6th Cir.2011), if a complaint specifically alleges both an express agreement to restrain trade and later conduct by defendants consistent with the agreement, a defendant cannot prevail at the pleading stage by offering alternative explanations for the allegedly unlawful behavior. Id. at 454-55. The plaintiff must set forth an alleged conspiratorial agreement as a plausible explanation of the defendant’s conduct, not the probable or only explanation. Id. (emphasis added). Such a complaint must also plausibly allege that behavior or conduct characteristic of a conspiratorial agreement was undertaken in furtherance of the conspiracy. Id. at 457-58. When viewed in isolation, the allegation that Defendants “contracted, combined, or conspired to fix, raise, maintain, and/or stabilize prices and allocate customers” rings conclusory (Doc. No. 46 at ¶ 3; Doc. No. 52 at ¶ 3). Alone, these paragraphs resemble the sort of “formulaic recitation” of an antitrust claim’s elements rejected by Twombly. But relevant case law counsels this Court to view the individual allegations in context of the whole complaint. In re Packaged Ice Antitrust Litig., 723 F.Supp.2d 987, 1005-06 (E.D.Mich.2010) (quoting In re Se. Milk Antitrust Litig., 555 F.Supp.2d 934, 943-944 (E.D.Tenn.2008)). Moreover, by tying this key general allegation to those that follow, the Complaints make clear that Plaintiffs do not rely on labels alone to establish an express agreement — “Defendants and their co-conspirators contracted, combined, or conspired ... by the means and mechanisms described herein” (Doc. No. 46 at ¶ 3; Doc. No. 52 at ¶ 3) (emphasis added). The Complaints heavily rely on materials derived from criminal investigations being conducted by the U.S. Department of Justice (“DOJ”) and the Canadian Bureau of Competition (“CBC”) into certain potential antitrust violations. As a result, Defendants argue that to conclude the Complaints allege a plausible conspiracy, this Court must assume the as-yet unknown scope of these investigations correspond exactly with the Complaints’ alleged conspiracy. This Court disagrees. Defendants correctly note that some courts" }, { "docid": "1617637", "title": "", "text": "MEMORANDUM DuBOIS, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................226 II. BACKGROUND...........................................................227 A. Background on Blood Reagents........................................227 B. Creation of Duopoly by Ortho and Immucor.............................228 C. Post-Duopoly Price Increases..........................................228 1. Operation Create Value............................................228 2. Blood Bank Leadership Program...................................229 D. The Alleged Price-Fixing Conspiracy...................................229 E. 2005 Price Increases...................................................230 F. 2008 Price Increases...................................................231 G. Procedural History....................................................231 III. LEGAL STANDARD ......................................................231 IV. DISCUSSION.............................................................232 A. Rule 23(a) Requirements...............................................232 1. Numerosity .......................................................232 2. Commonality......................................................232 3. Typicality.........................................................233 4. Adequacy of Representation........................................233 B. Rule 23(b)(3) Requirements............................................234 1. Predominance.....................................................234 a. Violation of 1 of the Sherman Act...............................234 b. Antitrust Impact...............................................234 1. Bogosian Shortcut.........................................235 2. Market Structure Analysis..................................236 3. Empirical Pricing Analysis .................................238 4. Defendants Documents.....................................238 5. Damages Calculation.......................................239 c. Damages......................................................240 1. Legal Standard ............................................240 2. Damages Models Offered by Dr. Beyer.......................241 3. Orthos Criticisms of Dr. Beyers Damages Models.............242 i. Common Proof Versus Individualized Proof.............242 ii. General Reliability Arguments.........................243 iii. The RhoGAM Yardstick...............................244 d. Fraudulent Concealment.......................................245 2. Superiority........................................................246 V. CONCLUSION..................... .....................................247 I. INTRODUCTION In these consolidated antitrust actions, plaintiffs allege that the two leading producers of blood reagents—Immucor, Inc. (“Immucor”) and Ortho Clinical Diagnostics, Inc. (“Ortho”)—conspired to unreasonably restrain trade and commerce in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Presently before the Court is Plaintiffs’ Motion for Class Certification. On July 26, 2012, the Court received evidence, including testimony from Ortho’s economic expert, and held oral argument on the motion. Plaintiffs’ economic expert provided rebuttal testimony on August 6, 2012. For the reasons set forth below, Plaintiffs’ Motion for Class Certification is granted. II. BACKGROUND Between 2000 and 2009, defendants drastically increased the prices of their blood reagent products. Many products’ prices rose by more than 2000% during that period. (See Beyer Report, Pls.’ Mot. Ex. 1, at 13, 14.) The parties agree that some part of this increase resulted from the creation of a duopoly in the blood reagents industry in 1999 as a result of the acquisition of numerous manufacturers of blood reagents by defendants over a period of several years. However, plaintiffs allege that an unlawful horizontal price-fixing agreement that began in November 2000 accounts for much of the" }, { "docid": "4005812", "title": "", "text": "an entitlement to relief.” Id. at 1951. Carrier’s claim falls under § 1 of the Sherman Act, which prohibits conspiracies “in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Here, the parties focus on the existence of a conspiracy impacting U.S. markets. Carrier’s complaint attempts to establish a Sherman Act violation by alleging “an explicit agreement to restrain trade,” and therefore must “ ‘plau sibly suggest^],’ rather than be ‘merely consistent with,’ an agreement to restrain trade in violation of the Sherman Act.” Watson, 648 F.3d at 457 (quoting In re Travel Agent Comm’n Antitrust Litig., 583 F.3d at 908). To survive a motion to dismiss, these allegations must be specific enough to establish the relevant “who, what, where, when, how or why.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue. Shield, 552 F.3d 430, 437 (6th Cir.2008) (internal quotation marks omitted). Furthermore, they must “specify how [each] defendant [was] involved in the alleged conspiracy.” In re Travel Agent Comm’n Antitrust Litig., 583 F.3d at 905. Outokumpu first reiterates its previous argument that the alleged conspiracy had no effect on the United States. That argument, however, fails for the same reasons as did Outokumpu’s challenge to this court’s subject-matter jurisdiction under the Sherman Act’s effects test. Furthermore, as was also detailed above, 'the allegations extend well beyond the conclusory “if it happened there, it could have happened here” argument that has been rejected in other courts. In re Elevator Antitrust Litig., 502 F.3d 47, 52 (2d Cir.2007). Outokumpu’s U.S. entities — Outokumpu U.S.A. and Outokumpu Copper Franklin— then argue that there are insufficient allegations as to their specific involvement in the conspiracy. The two U.S. entities’ argument stems from Carrier’s frequent use of blanket references to the “Outokumpu defendants,” without always specifying the role that each corporate entity played in the conspiracy. Outokumpu U.S.A. and Outokumpu Copper Franklin further note that neither EC decision mentions their involvement. In addition, the complaint does not specifically identify either company as a member of the Cuproclima conspiracy. Even in the absence" }, { "docid": "16437443", "title": "", "text": "Amended Complaint’s conspiracy allegations against Hood adequately pled, Hood seeks dismissal on the further ground that the Amended Complaint does not support an economically plausible inference that Hood violated any provision of the antitrust laws. Because the court agrees that the Amended Complaint is facially deficient insofar as it pertains to Hood, the court does not reach the issue of economic plausibility. To state a claim under Section 1 of the Sherman Act, a plaintiff must allege: “(1) concerted action, (2) by two or more persons that (3) unreasonably restrains trade.” In re Nine West Shoes Antitrust Litig., 80 F.Supp.2d 181, 190 (S.D.N.Y. 2000). A successful conspiracy claim under Section 2 of the Sherman Act requires: “(1) proof of a concerted action deliberately entered into with the specific intent to achieve an unlawful monopoly, and (2) the commission of an overt act in furtherance of the conspiracy.” AD/SAT, a Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 233 (2d Cir.1999) (quotation omitted). In order to survive a motion to dismiss, “it is not enough to make allegations of an antitrust conspiracy that are consistent with an unlawful agreement; to be viable, a complaint must contain ‘enough factual matter (taken as true) to suggest that an agreement [to engage in anticompetitive conduct] was made.’ ” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (per curiam) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009) (en banc) (“Broad allegations of conspiracy are insufficient; the plaintiff must provide some factual basis supporting a meeting of the minds ... ”) (citation and internal quotation marks omitted). In Kendall, the Ninth Circuit accurately summarized the degree of specificity required: “[T]erms like ‘conspiracy’ or even ‘agreement,’ are border-line: they might well be sufficient in conjunction with a more specific allegation — for example, identifying a written agreement or even a basis for inferring a tacit agreement, ... but a court is not required to accept such terms as a sufficient basis for a complaint.” [Twombly, 550 U.S. at 557, 127" }, { "docid": "5782334", "title": "", "text": "insufficient factual basis” for inferring a worldwide conspiracy based upon apparent (not proven) misconduct in Europe. 502 F.3d at 52. The court found that there was no evidence linking the conduct alleged to have occurred in Europe to the United States, in particular no indication that the two markets were even responsive to one another on price and “no allegations of the actual pricing of elevators or maintenance services in the United States or changes therein attributable to defendants’ alleged misconduct.” Id. The court did not hold that such a theory could never be viable, only that it hadn’t been sufficiently alleged: “Without adequate allegation of facts linking transactions in Europe to transactions and effects here, plaintiffs’ conclusory allegations do not “nudge [their] claims across the line from conceivable to plausible.” ” Id. (quoting Twombly, supra.) Plaintiffs in the instant case are not reaching across the ocean to unproven allegations in an unknown market — they are pointing to an admitted conspiracy in a neighboring state. See also In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 576-577 (M.D.Pa.2009) (distinguishing In re Elevator and holding that “Defendants’ alleged [anticompetitive] conduct in Canada enhances the plausibility of the alleged U.S. price-fixing conspiracy.”). In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F.Supp.2d 487, 492 (D.Conn.2008), also cited by Arctic Glacier, is distinguished by the fact that plaintiffs attempted to introduce evidence of guilty pleas as to a conspiracy to unlawfully raise prices (on a different trade route) as proof of a conspiracy to unlawfully lower prices, i.e. predatory pricing. The court found that the suggested inference did not, therefore, tend to enhance the plausibility of plaintiffs’ claim: “in the context of a predatory pricing claim, ‘a conspiracy to increase profits in one market does not tend to show a conspiracy to sustain losses in another.’ ” 541 F.Supp.2d at 492 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). This is not a predatory pricing case and Plaintiffs are not attempting cross-fertilize by utilizing guilty pleas as to one" }, { "docid": "8295349", "title": "", "text": "for customers, parallel price increases, and excess production capacity' — are placed among other factual allegations that plausibly suggest a preceding agreement.”). . The Foreign Trade Antitrust Improvement Act of 1982 (\"FTAIA”), 15 U.S.C. § 6a, does not foreclose consideration of defendants’ conduct in Canada for purposes of the Rule 12(b)(6) motions. The FTAIA places foreign anticompetitive conduct beyond the reach of the Sherman Act if it \"adversely affect[s] only foreign markets.” F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 161, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (emphasis added). It does preclude a Sherman Act claim based upon foreign conduct that has a \"direct, substantial, and reasonably foreseeable effect” on domestic commerce. Id. at 161, 124 S.Ct. 2359 (quoting 15 U.S.C. § 6a(l)); In re Intel Corp. Microprocessor Antitrust Litig., No. Civ.A. 05-1717, 2007 WL 137152, at *11 (D.Del. Jan. 12, 2007) (observing that the FTAIA does not prohibit inquiry into foreign conduct that is relevant to domestic claims.) Hence, the Act permits assessment of the Canadian conduct, which allegedly constitutes an integral component of the instant price-fixing scheme. See Intel Corp., 2007 WL 137152, at *11; cf. In re Aspartame Antitrust Litig., No. 2:02-CV-1732, 2008 WL 2275531, at *3 (E.D.Pa. May 13, 2008) (concluding that the FTAIA does not limit discovery requests directed abroad if they are related to an antitrust matter properly before a federal court). . Of course, defendants contest the connectivity between the U.S. and Canadian chocolate confectionary markets and have produced evidence that the Canadian defendants do not interact with the U.S. See supra p. 559. Unlike Rule 12(b)(2) challenges, however, a Rule 12(b)(6) motion restricts the court's review to the face of the complaint and documents upon which it relies. See supra note 18; Part III.A. Accordingly, the court has considered only the facts contained in the amended complaints for purposes of the instant motions notwithstanding defendants evidence to the contrary. . In re Elevator Antitrust Litigation, 502 F.3d 47 (2d Cir.2007), does not compel a contrary conclusion. The plaintiffs in Elevator alleged a price-fixing conspiracy in the U.S. market for" }, { "docid": "1480081", "title": "", "text": "respect to alleged meetings among some of the defendants. Although the complaint repeatedly refers to these alleged “clandestine meetings” among certain defendants, it states no specific examples of the defendants’ conduct in the meetings, other than general allegations of conspiracy. No where does the complaint cite to specific wrongful acts of specific defendants to support the allegations of “customer allocation, the division of markets, the adjustment of capacity bid rigging, elimination of competitors, predatory pricing, non-competition and monopolization.” Complaint p. 31. This lack of specifics with respect to the acts of a particular defendant or defendants renders the complaint inadequate after the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and the second circuit’s decision in In re Elevator Antitrust Litigation, 502 F.3d 47 (2d Cir.2007). The complaint here fails to state “plausible grounds to infer an agreement,” Twombly, 127 S.Ct. at 1965, or “ ‘enough factual matter (taken as true) to suggest that an agreement [to engage in anticompetitive conduct] was made.’ ” In re Elevator, 502 F.Bd at 50 (quoting Twombly, 127 S.Ct. at 1974). Although the complaint alleges conspiratorial activity, it does not allege facts tending to show how these activities were accomplished. Further, although the defendants plead guilty to criminal conspiracy charges, those charges involved conduct on a different trade route and amounted to a conspiracy to unlawfully raise prices, while this case involves conspiracy claims of predatory pricing; that is, conspiring to unlawfully lower prices. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)(holding that in the context of a predatory pricing claim, “a conspiracy to increase profits in one market does not tend to show a conspiracy to sustain losses in another.”). The allegations in the complaint are the type of “labels and conclusions” that the Twombly and In re Elevator courts found to be insufficient to maintain a conspiracy claim and, therefore, the defendants’ motion for reconsideration in light of Twom-bly is granted and the relief requested is granted. The" }, { "docid": "1617653", "title": "", "text": "2008. (Del’s Opp. Ex. 81, at 7.) In July 2008, Immucor implemented its own price increase. Having reconfigured its pricing tiers since 2004, Immucor increased prices by 20% for customers in its “Automation” tier and by 50% for customers in its “Base” tier. (Def.’s Opp. Ex. 99.) The price increase did not apply to GPOs. (Id.) G. Procedural History Plaintiffs began to file civil lawsuits against Ortho and Immucor in 2009, shortly after the Antitrust Division of the Department of Justice opened a criminal grand jury investigation into blood reagents pricing. By Orders dated August 17, 2009, and August 19, 2009, the Judicial Panel on Multidistrict Litigation transferred twenty-three of those cases to this Court for coordinated pretrial proceedings pursuant to 28 U.S.C. § 1407. Another ten cases were originally filed in this Court. By Order dated December 23, 2009, this Court consolidated these thirty-three eases pursuant to Federal Rule of Civil Procedure 42(a). Plaintiffs filed a Consolidated Amended Class Action Complaint on February 15, 2010. On August 23, 2010, the Court denied Ortho and Immueor’s motion to dismiss the Amended Class Action Complaint. See In re Blood Reagents Antitrust Litig., 756 F.Supp.2d 623 (E.D.Pa.2010). The Court denied their motion for reconsideration of that ruling on December 14, 2010. See In re Blood Reagents Antitrust Litig., 756 F.Supp.2d 637 (E.D.Pa.2010). On March 5, 2012, the Court granted preliminary approval of a proposed settlement between Immucor and plaintiffs. Plaintiffs filed a motion for final approval of the settlement on May 23, 2012, and a fairness hearing was held on June 15, 2012. Although the Court has not yet ruled on the motion for final approval of the Immucor settlement, the response and surreply to Plaintiffs’ Motion for Class Certification were filed in Ortho’s name only. The Court held a hearing on Plaintiffs’ Motion for Class Certification on July 26, 2012. Counsel for plaintiffs and for Ortho presented argument at the hearing. Ortho’s economic expert, Dr. Peter Bronsteen, testified, and plaintiffs’ counsel cross-examined him. Plaintiffs’ economic expert, Dr. John C. Beyer, was unable to attend the July 26, 2012, hearing due to" }, { "docid": "20507116", "title": "", "text": "settled with plaintiffs, and Ortho-Clinical Diagnostics, Inc., the appellant here. Plaintiffs claim Ortho and Immucor violated federal antitrust law by conspiring to fix traditional blood reagent prices. By 1999, the entire domestic supply of traditional blood reagents had come under the control of Ortho and Immucor in a duopoly in which both companies anticipated they could raise their prices and increase their profits. In November 2000, Ortho and Immucor executives attended an annual trade meeting at which plaintiffs assert the conspiracy began. Soon thereafter, both Ortho and Immucor began increasing traditional blood reagents prices in rapid succession, and by 2009, many prices had risen more than 2000%. Following a Department of Justice probe, a number of private suits were filed and transferred by the Judicial Panel on Multidistrict Litigation to the District Court, which consolidated them in December 2009. Plaintiffs seek damages under the Clayton Act, see 15 U.S.C. § 15, for alleged horizontal price fixing in violation of the Sherman Act, see 15 U.S.C. § 1. In July 2012, after preliminary approval of plaintiffs’ settlement with Immucor, the court-held a hearing to determine whether to certify plaintiffs’ class of “[a]ll individuals and entities who purchased traditional blood reagents in the United States directly from Defendants Immucor, Inc., and Ortho-Clinical Diagnostics, Inc. at any time from January 1, 2000 through the present.” 283 F.R.D. at 247. The court then certified the class over Ortho’s objection. We granted Ortho’s petition to appeal under Rule 23(f). II. Plaintiffs relied in part on expert testimony to produce their antitrust impact analyses and damages models. The District Court evaluated the testimony, the reliability of which Ortho consistently chal lenged, and, in part by holding that the testimony “could evolve to become admissible evidence” at trial, determined that plaintiffs had met Rule 23(b)(3)’s predominance requirement. See 283 F.R.D. at 243-45 (quoting Behrend, 655 F.3d at 204 n. 13). Relying on our decision in Behrend, the court rejected Ortho’s challenges to plaintiffs’ damages models as irrelevant to class certification because, the court reasoned, [vjirtually all of Ortho’s arguments go to the merits of the models [plaintiffs’" }, { "docid": "8295350", "title": "", "text": "integral component of the instant price-fixing scheme. See Intel Corp., 2007 WL 137152, at *11; cf. In re Aspartame Antitrust Litig., No. 2:02-CV-1732, 2008 WL 2275531, at *3 (E.D.Pa. May 13, 2008) (concluding that the FTAIA does not limit discovery requests directed abroad if they are related to an antitrust matter properly before a federal court). . Of course, defendants contest the connectivity between the U.S. and Canadian chocolate confectionary markets and have produced evidence that the Canadian defendants do not interact with the U.S. See supra p. 559. Unlike Rule 12(b)(2) challenges, however, a Rule 12(b)(6) motion restricts the court's review to the face of the complaint and documents upon which it relies. See supra note 18; Part III.A. Accordingly, the court has considered only the facts contained in the amended complaints for purposes of the instant motions notwithstanding defendants evidence to the contrary. . In re Elevator Antitrust Litigation, 502 F.3d 47 (2d Cir.2007), does not compel a contrary conclusion. The plaintiffs in Elevator alleged a price-fixing conspiracy in the U.S. market for elevators based upon evidence that defendants fixed prices in European markets. Id. at 51-52. As to the American market, plaintiffs advanced only conclusory allegations that defendants \"(a) [participated in meetings in the United States and Europe to discuss pricing and market divisions; (b) [ajgreed to fix prices for elevators and services; (c) [rjigged bids for sales and maintenance; (d) [e]x-changed price quotes; (e) [ajllocated markets for sales and maintenance; (f) [c]ollusively required customers to enter long-term maintenance contracts; and (g) [cjollectively took actions to drive independent repair companies out of business.” Id. at 51 n. 5. (internal quotation omitted). The court upheld dismissal of the plaintiffs allegations because \"[a]llegations of anticompetitive wrongdoing in Europe — absent any evidence of linkage between such foreign conduct and conduct here— is merely to suggest ... that if it happened there, it could have happened here.” Id. at 52 (emphasis added, internal quotation omitted). The court noted that the outcome may have differed had the plaintiffs alleged that the defendants engaged in global marketing, produced fungible products, monitored prices" }, { "docid": "1617683", "title": "", "text": "that will be discussed infra Section IV.B.1.c, the Court concludes that these arguments do not defeat plaintiffs’ ease at the class certification stage. In addition to its arguments regarding the merits of plaintiffs’ damages formula, Ortho argues that Dr. Beyer’s conclusions are based on a faulty understanding of antitrust impact. Ortho asserts that it is not enough for plaintiffs to show that a customer paid more than the but-for price for at least one item in at least one transaction. Instead, according to Ortho, plaintiffs must analyze “whether the net effect of the alleged antitrust violation is positive or negative.” (Def.’s Surreply 16 (emphasis added).) They must offset class members’ losses from the alleged conspiracy against any benefits they received from it. (Id. at 17.) For example, Ortho contends that Dr. Beyer wrongly “overlooks the prospect that higher prices for traditional reagents led to lower prices or lower price increases for proprietary reagents and equipment.” (Id.) The Court rejects this argument. The case on which Ortho relies involved a merger, not a horizontal price-fixing conspiracy. See Kottaras v. Whole Foods Market, Inc., 281 F.R.D. 16 (D.D.C.2012). Mergers frequently produce pro-competitive efficiencies that outweigh their anti-competitive harm, and courts routinely weigh these countervailing effects as an integral component of merger analysis. See, e.g., id. at 24; see also U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines § 10 (issued Aug. 19, 2010). It is far less plausible, on the other hand, that a price-fixing conspiracy would have offsetting benefits to consumers. See Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 830 (3d Cir.2010) (“Some categories of restraints, such as horizontal price-fixing ..., ‘because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.’” (emphasis added) (quoting United States v. Brown Univ., 5 F.3d 658, 669 (3d Cir.1993))). Ortho cites no case in which a court required plaintiffs to account for potential decreases in the price of some products as the result of an alleged horizontal price-fixing conspiracy. At the class certification hearing, Dr. Bronsteen stated that the alleged" }, { "docid": "5782333", "title": "", "text": "1149 (citations to the record omitted). Similarly, the court in SRAM held that guilty pleas in the DRAM litigation supported an inference of conspiracy in the SRAM industry: “Plaintiffs allege that the same actors associated with certain Defendants were responsible for marketing both SRAM and DRAM. Although the allegations are not sufficient to support Plaintiffs’ claims standing on their own, they do support an inference of a conspiracy in the SRAM industry.” 580 F.Supp.2d at 903. See also In re Air Cargo Shipping Services Antitrust Litig., MDL No. 1775, 2009 WL 3443405 at *1 (E.D.N.Y. Aug. 21, 2009) (reversing the magistrate judge’s opinion (which Arctic Glacier relied on in its brief at p. 12) and holding that “admissions of price-fixing by so many of the defendants certainly ‘are suggestive enough to render a § 1 conspiracy claim plausible.’ ”) (quoting Twombly, supra at 556,127 S.Ct. 1955). The Court finds the cases cited by Defendants distinguishable. In In re Elevator Antitrust Litig., 502 F.3d 47, 52 (2nd Cir.2007), the court found that plaintiffs had offered “an insufficient factual basis” for inferring a worldwide conspiracy based upon apparent (not proven) misconduct in Europe. 502 F.3d at 52. The court found that there was no evidence linking the conduct alleged to have occurred in Europe to the United States, in particular no indication that the two markets were even responsive to one another on price and “no allegations of the actual pricing of elevators or maintenance services in the United States or changes therein attributable to defendants’ alleged misconduct.” Id. The court did not hold that such a theory could never be viable, only that it hadn’t been sufficiently alleged: “Without adequate allegation of facts linking transactions in Europe to transactions and effects here, plaintiffs’ conclusory allegations do not “nudge [their] claims across the line from conceivable to plausible.” ” Id. (quoting Twombly, supra.) Plaintiffs in the instant case are not reaching across the ocean to unproven allegations in an unknown market — they are pointing to an admitted conspiracy in a neighboring state. See also In re Chocolate Confectionary Antitrust Litig., 602" }, { "docid": "20507124", "title": "", "text": "Ortho’s reliability attacks, if any, challenge those aspects of plaintiffs’ expert testimony offered to satisfy Rule 23 and then, if necessary, to conduct a Daubert inquiry before assessing whether the requirements of Rule 23 have been met. IV. For the foregoing reasons, we will vacate the class certification order and remand for proceedings consistent with this opinion. .The District Court had jurisdiction under 15 U.S.C. § 15(a) and 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1292(e) and Rule 23(f). We review the grant of class certification for an abuse of discretion, which occurs if the certification \"rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” . In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.2008) (citation omitted). “Whether an incorrect legal standard has been used is an issue of law to be reviewed de novo.” Id. (alteration and citation omitted). . The District Court’s Memorandum provides a more detailed description of the alleged facts in this case. See In re Blood Reagents Antitrust Litig., 283 F.R.D. 222 (E.D.Pa.2012). . During the 1980s and 1990s, the traditional blood reagent market was highly competitive. Faced with more than a dozen competing companies and low profit margins, Ortho considered abandoning the industry while Im-' mucor approached bankruptcy. At some point in the 1990s, Immucor began to acquire competing producers and by 1999, Immucor and Ortho were the only remaining firms in the U.S. market. .More specifically, Ortho contends that plaintiffs’ expert's methodologies cannot prove antitrust impact as a matter of law because they are incapable of distinguishing lawful price increases resulting from the creation of a duopoly from price increases resulting from the alleged price-fixing conspiracy. Ortho bases this argument in part on statements in Comcast such as, \"Prices whose level above what an expert deems 'competitive' has been caused by factors unrelated to an accepted theory of antitrust harm are not 'anticompetitive' in any sense relevant here,” 133 S.Ct. at 1435, and the suggestion that a damages model must be able \"to" }, { "docid": "20224671", "title": "", "text": "Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 L.Ed. 273 (1954)). Allegations that a defendant acted contrary to its economic interest can be suggestive of conspiratorial agreement as opposed to mere parallel pricing. See id. at 324 (quoting In re Flat Glass Antitrust Litig., 385 F.3d 350, 360-61 (3d Cir.2004) (“Evidence that the defendant acted contrary to its interests means evidence of conduct that would be irrational assuming that the defendant operated in a competí tive market.”)) Here, Plaintiffs allege that UBS and Piper Jaffray acted against their economic interests by offering similar pricing terms to those offered by Citibank and Lehman. Although the Supreme Court has cautioned that parallel behavior may be a “rational and competitive business strategy,” Twombly, 550 U.S. at 554, 127 S.Ct. 1955, and the Second Circuit has similarly found that “[s]imilar pricing can suggest competition at least as plausibly as it can suggest anticompetitive conspiracy,” In re Elevator Antitrust Litig., 502 F.3d 47, 51 (2d Cir.2007), the Court views the allegations against Citibank in light of the California Complaints as a whole, as well as the Court’s prior findings in this MDL. The California Complaints, the SCAC, and the JSAC all contain detailed allegations of collusive communications by UBS and Piper Jaffray, which, as discussed at length in the April 2009 and March 2010 Decisions, the Court has found to plausibly implicate both UBS and Piper Jaffray. Accordingly, the Court, drawing all reasonable inferences and resolving doubts in Plaintiffs’ favor, finds that the similar pricing offers for the 2003 San Mateo Swap render Citibank’s involvement in the alleged conspiracy plausible for the purposes of a motion to dismiss. However, while Plaintiffs’ allegations plausibly suggest that Citibank, UBS, and Piper Jaffray colluded to manipulate the pricing of the 2003 San Mateo Swap, Plaintiffs have not alleged sufficient facts connecting AIG Financial to the allegedly collusive conduct. The California Complaints assert merely that AIG Financial was substituted for Lehman as a counter-party following the agreement on pricing terms. As alleged, it was Citibank and Lehman that proposed the original pricing terms similar to those offered by" }, { "docid": "20507115", "title": "", "text": "OPINION OF THE COURT SCIRICA, Circuit Judge. The principal issues in this appeal under Federal Rule of Civil Procedure 23(f) in this antitrust action are (1) whether Rule 23 requires scrutiny under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), of challenged expert testimony and (2) the propriety of class certification in light of the Supreme Court’s decision in Comcast Corp. v. Behrend, - U.S. -, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (Comcast), which re versed Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir.2011) {Behrend), after the District Court relied on Behrend in granting class certification. Because we find that the District Court had no opportunity to consider the implications of Com-cast and hold that, if applicable, a court must resolve any Daubert challenges to expert testimony offered to demonstrate conformity with Rule 23, we vacate and remand. I. Plaintiffs are direct purchasers of traditional blood reagents, products used to test blood compatibility between donors and recipients, from two companies, defendants Immucor, Inc., which has settled with plaintiffs, and Ortho-Clinical Diagnostics, Inc., the appellant here. Plaintiffs claim Ortho and Immucor violated federal antitrust law by conspiring to fix traditional blood reagent prices. By 1999, the entire domestic supply of traditional blood reagents had come under the control of Ortho and Immucor in a duopoly in which both companies anticipated they could raise their prices and increase their profits. In November 2000, Ortho and Immucor executives attended an annual trade meeting at which plaintiffs assert the conspiracy began. Soon thereafter, both Ortho and Immucor began increasing traditional blood reagents prices in rapid succession, and by 2009, many prices had risen more than 2000%. Following a Department of Justice probe, a number of private suits were filed and transferred by the Judicial Panel on Multidistrict Litigation to the District Court, which consolidated them in December 2009. Plaintiffs seek damages under the Clayton Act, see 15 U.S.C. § 15, for alleged horizontal price fixing in violation of the Sherman Act, see 15 U.S.C. § 1. In July 2012, after preliminary approval of plaintiffs’" }, { "docid": "20507125", "title": "", "text": "this case. See In re Blood Reagents Antitrust Litig., 283 F.R.D. 222 (E.D.Pa.2012). . During the 1980s and 1990s, the traditional blood reagent market was highly competitive. Faced with more than a dozen competing companies and low profit margins, Ortho considered abandoning the industry while Im-' mucor approached bankruptcy. At some point in the 1990s, Immucor began to acquire competing producers and by 1999, Immucor and Ortho were the only remaining firms in the U.S. market. .More specifically, Ortho contends that plaintiffs’ expert's methodologies cannot prove antitrust impact as a matter of law because they are incapable of distinguishing lawful price increases resulting from the creation of a duopoly from price increases resulting from the alleged price-fixing conspiracy. Ortho bases this argument in part on statements in Comcast such as, \"Prices whose level above what an expert deems 'competitive' has been caused by factors unrelated to an accepted theory of antitrust harm are not 'anticompetitive' in any sense relevant here,” 133 S.Ct. at 1435, and the suggestion that a damages model must be able \"to bridge the differences between supra-competitive prices in ■ general and supra-competitive prices attributable to” the antitrust violation, id. See also, e.g., id. at 1433 (stating that \"a model purporting to serve as evidence of damages ... must measure only those damages attributable to” the \"theory of antitrust impact accepted for class-action treatment,” and those damages must be \"susceptible of measurement across the entire class”); id. at 1435 (\"The first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.’ \" (quoting Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed.2011))). . See generally Comcast, 133 S.Ct. at 1433-35. . See supra note 4 and accompanying text. . Similarly, ''[u]nder the present structure of Rule 23(c), ... a district court [is] no longer permitted to issue a ‘conditional certification’ ... because [a] trial court must ‘make a definitive determination that the requirements of Rule 23 have been met before certifying a class.' ” In re NFL Players Concussion" }, { "docid": "16058305", "title": "", "text": "alleged to be involved in the water trade between Puerto Rico and the United States mainland, and any anticompetitive agreements Horizon’s executives made concerning shipping to and/or from Puerto Rico would necessarily have been with entities other than Matson. Similar attempts at cross-fertilization have been rejected by other courts, and the Court finds plaintiffs’ invocation of the DOJ investigation equally unavailing. See, e.g., In re Elevator, 502 F.3d at 52 (“Allegations of anticompetitive wrongdoing in Europe ... is merely to suggest (in defendants’ words) that ‘if it happened there, it could have happened here.’... Without an adequate allegation of facts linking transactions in Europe to transactions and effects here, plaintiffs’ conclusory allegations do not ‘nudge[ their] claims across the line from conceivable to plausible.’ ” (insertion in original, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). The cases on which plaintiffs primarily rely do not support a different view because those cases involved defendants with overlapping involvement in different markets, a factual scenario that plaintiffs in this case have not pleaded. See In re Flash Memory Antitrust Litig., 643 F.Supp.2d 1133, 1148-49 (N.D.Cal.2009) (observing that employees of two antitrust defendants, which controlled the majority of the flash memory market, had responsibility for both flash memory and dynamic random access memory (“DRAM”) pricing, and concluding that the employees’ guilty pleas concerning price fixing as to DRAM gave rise to a reasonable inference that they engaged in similar activities relating to flash memory); In re Static Random Access Memory (“SRAM”) Antitrust Litig., 580 F.Supp.2d 896, 903 (N.D.Cal.2008) (ruling that, because “the same actors associated with certain Defendants were responsible for marketing both SRAM and DRAM,” the DRAM guilty pleas supported an inference of a conspiracy in the SRAM industry, but also holding that the DOJ investigation regarding SRAM did not itself support the plaintiffs’ SRAM antitrust claims). 3. Nothing Beyond Parallel Activity In light of Twombly’s admonition that parallel conduct alone does not establish a plausible antitrust claim, Twombly’s progeny have identified certain types of factual allegations that might save a complaint from dismissal pursuant to Rule 12(b)(6), including direct evidence" }, { "docid": "12308672", "title": "", "text": "Warehousing Antitrust Litig., 95 F.Supp.3d at 447 (citing Socony-Vacuum, 310 U.S. at 223-24, 60 S.Ct. 811). Claims for bid rigging, on the other hand, typically involve competitors conspiring to raise prices for purchasers—often, but not always, governmental entities—who acquire products or services by soliciting competing bids. See, e.g., Gatt, 711 F.3d at 72-74; State of N.Y. v. Hendrickson Bros., 840 F.2d 1065 (2d Cir.1988). With regard to unlawful restraints of trade, “[b]ecause [Section] 1 of the Sherman Act does not prohibit [all] unreasonable restraints of trade ... but only restraints effected by a contract, combination, or conspiracy, ... [t]he crucial question is whether the challenged anticompetitive conduct stem[s] from independent decision or from an agreement, tacit or express.” Twombly, 550 U.S. at 553, 127 S.Ct. 1955 (alterations in the original) (internal quotations and citations omitted). Regardless of whether Plaintiffs’ allegations are evaluated in terms of price fixing, bid rigging or an unlawful restraint of trade, an unlawful agreement must be pleaded with respect to each antitrust claim brought under Section 1. See, e.g., In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“To survive a motion to dismiss ... a complaint must contain enough factual matter ... to suggest that an agreement ... was made.”) (internal citations and quotations omitted). To allege an unlawful agreement, Plaintiffs must assert either direct evidence (such as a recorded phone call or email in which competitors agreed to fix prices) or “circumstantial facts supporting the inference that a conspiracy existed.” Mayor & City Council of Baltimore (City of Baltimore) v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013) (emphasis in original). Because conspiracies “nearly always must be proven through inferences that may fairly be drawn from the behavior of the alleged conspirators,” the Court cannot take Plaintiffs’ failure to present direct evidence as a sign that no conspiracy existed. In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F.Supp.3d at 591 (quoting Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012)). At the pleading stage, Plaintiffs “need not show that [their] allegations suggesting an agreement" } ]

[ { "docid": "23559811", "title": "", "text": "that they had already pleaded the requisite facts to state causes of action under §§ 101 and 501 of the LMRDA. In their third amended complaint, the plaintiffs alleged that “the mem bers of the Union never voted to accept the [collective bargaining agreement with Matthews], nor the transfer of their employment from Jewel to Matthews, in violation of Section 27(A) of the By-laws of [the Union].” They claim that this constitutes a violation of § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1). We disagree. Section 101(a)(1) guarantees to every union member “equal rights ... to vote in elections or referendums of the labor organization, to attend. membership meetings, and to participate in the deliberations and voting upon the business of such meetings.” 29 U.S.C. § 411(a)(1). To state a claim under § 101(a)(1), a union member must allege a denial of rights accorded to other members. Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964); see Grant v. Chicago Truck Drivers, 806 F.2d 114, 117 (7th Cir.1986) (focus of § 101(a)(1) is on discrimination); McGinnis v. Local Union 710, International Brotherhood of Teamsters, 774 F.2d 196, 199 (7th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1638, 90 L.Ed.2d 184 (1986). There is no provision in the LMRDA that requires that a labor contract be submitted to the membership for ratification. Ackley v. Western Conference of Teamsters, 958 F.2d 1463, 1463 (9th Cir.1992); Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1240 (5th Cir.1980). Section 101(a)(1) protects the rights of members to vote on collective bargaining agreements only when the constitution, by-laws or articles of a union so provide. Ackley at 1463; Christopher v. Safeway Stores, Inc., 644 F.2d 467, 470 (5th Cir.1981); Confederated Independent Unions v. Rockwell-Standard Co., 465 F.2d 1137, 1140 (3rd Cir.1972). A failure to follow a union’s internal rules, including its procedures governing contract ratifications, constitutes a violation of the union’s obligations to its members, and is actionable under § 301 of the LMRA, 29 U.S.C. § 185(a). Ackley at 1463. The plaintiffs failed to allege" } ]

[ { "docid": "9497942", "title": "", "text": "were pursuing their claim under Title IV. IV. The plaintiffs have failed to demonstrate that they have a likelihood of succeeding on their claim that the meeting attendance requirement is invalid under Title I because it disqualifies over ninety-five percent of the members of the Car Maintenance Division from running for Section or Division office. Indeed, they have failed to demonstrate sufficiently serious questions going to the merits to make them a fair ground for litigation. The plaintiffs argue that the attendance requirement violates the Title I mandate, set forth in Section 101(a), that union members have “equal rights ... to nominate candidates,” and “to vote in elections”. See 29 U.S.C. § 411(a)(1) (1985). They argue that the attendance requirement has prevented Bernard from being a candidate, thus nullifying Simino’s right to nominate him and the rights of the members to vote for the candidate of their choice. However, the protections of Title I have never been construed to encompass such a claim where all union members have an equal right to nominate and vote for eligible candidates, as they do in this case. Section 101(a)(1) of Title I (Bill of Rights of Members of Labor Organizations) of the LMRDA provides: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. 29 U.S.C. § 411(a)(1) (1985) In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1965), the Supreme Court explained that this Section “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139, 85 S.Ct. at 295. The Supreme Court discussed the parameters of Title IV, in contrast with those of Title I. The Court observed that Title IV of the LMRDA, codified at 29 U.S.C. § 481 et seq., pertains" }, { "docid": "7897550", "title": "", "text": "defendant’s procedure for amending its dues by-law violated his statutorily-guaranteed equal rights. For this cause of action, based upon 29 U.S.C. § 411(a)(1) rather than § 411(a)(3)(A), plaintiff has again alleged an injury in fact sufficient to give him standing. b. 29 U.S.C. § 411(a)(1) Section 411(a)(1) of the LMRDA, entitled “Equal Rights,” reads as follows: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Even though plaintiff has standing to assert a § 411(a)(1) claim against defendant for its alleged violation thereof, plaintiff has failed to state a claim. The core of the statute’s equal rights provision is the prevention of discrimination against union members and classes of union members. Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295-96, 13 L.Ed.2d 190 (1964) (holding that district court lacked jurisdiction to hear § 411(a)(1) claim because “the complaining union members ... have not been discriminated against in any way and have been denied no privilege or right to vote or nominate which the union has granted to others”); Fritsch v. District Council No. 9, 493 F.2d 1061, 1063 (2d Cir.1974) (stating that “essence” of equal rights provision is “the command not to discriminate against members and classes of members in their right to vote and nominate”) (citing Calhoon); Gurton v. Arons, 339 F.2d 371, 374 (2d Cir.1964) (“As long as no claim is made that provisions of the [union’s] constitution and by-laws are being applied in such a way as to deny equality in voting, there is nothing in Section [411] which authorizes consideration of these documents.”); see also Smith v. United Mine Workers of America, 493 F.2d 1241, 1244 (10th Cir.1974) (stating that absent claim of discrimination, district court lacks jurisdiction over 411(a)(1) claim); Keck v. Employees Independent Ass’n., 387 F.Supp. 241, 247 (E.D.Pa.1974) (holding that even if" }, { "docid": "21455654", "title": "", "text": "such relief.”) Therefore, Vazquez’s Count III state law contract claim based on the CSJB employment manual cannot be dismissed under Rule 12(b)(6) on the basis of the arbitration agreement. While Torel-lo’s argument may ultimately prove well-taken, the matter must be raised anew, if appropriate, at a later stage when an appropriate evidentiary foundation is presented. Count III also asserts a breach of the IUC. (D.E. 97 ¶ 291.) As this Court has previously noted (see D.E. 46 at 15), Seventh Circuit precedent teaches that “a union constitution regulates the relation between the union and its members, not the union and its employees.” Korzen v. Local Union 705, Int’l Bhd. of Teamsters, 75 F.3d 285, 289 (7th Cir.1996). Count III is not based on Vazquez’s removal from union membership, as it is explicitly entitled, “Vazquez was terminated as an employee of the CSJB contrary to contract law as established by the state of Illinois.” (D.E. 97 at 40; emphasis added). Since Plaintiffs cannot assert a breach of the IUC based on Vazquez’s employment termination in this suit, that portion of Count III is dismissed. With respect to Count X, Kane’s grievance was denied by the arbitration panel on June 1, 2004. (D.E. 97 ¶ 230.) Kane first became a plaintiff in this action on February 17, 2005, well over 90 days later. (D.E.80.) Plaintiffs do not dispute that Kane’s claim was not filed within the 90 day period required by the FAA. Rather, they make the same arguments regarding the implied covenant of good faith and fair dealing and futility discussed in Section IV. For the same reasons previously given, these arguments do not absolve Plaintiffs from the requirements of the FAA. Therefore, Count X is dismissed against Torello as well, again without prejudice if Kane believes he can cure the apparent substantial defects with the claim. CONCLUSION For the reasons stated above, the motions to dismiss are granted in part and denied in part. Specifically, to the extent and as explained above, Plaintiffs’ claims under LMRDA Section 101(a)(1) are dismissed with prejudice, Plaintiffs’ claims under LMRDA Section 101(a)(5) are dismissed" }, { "docid": "21455599", "title": "", "text": "85 S.Ct. 292. In this regard, the Seventh Circuit has taught that Section 101(a)(1) “says only that when voting occurs every union member has equal rights to take part.” Serpico v. Laborers’ Int’l Union of N. Am., 97 F.3d 995, 998 (7th Cir.1996). Or, as the Seventh Circuit explained, in order to state a claim under Section 101(a)(1), a plaintiff must “allege discrimination against some union members.” Fulk v. United Transp. Union, 81 F.3d 733, 736 (7th Cir.1996) (collecting cases; emphasis in original); accord Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 666 (7th Cir.1992) (collecting cases). Plaintiffs argue that their Section 101(a)(1) rights were violated when Vazquez appealed his grievance denial. (D.E. 164 at 17.) Specifically, Plaintiffs argue that this occurred when Spano barred Vazquez from sitting on the arbitration panel, but told Vazquez that Spano would not recuse himself. (Id.) Plaintiffs cite no authority for the proposition that the selection of panel members hearing grievances constitutes the right to “nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings” embodied in Section 101(a)(1). Plaintiffs, with all respect, do not make any serious argument as to why this right, which on its face is targeted at meetings and elections regarding union-wide issues, should be extended to the context of nominating panel members to hear grievance appeals. See Gilvin v. Fire, 259 F.3d 749, 760-61 (D.C.Cir.2001) (stating that plaintiffs “claim was properly dismissed because ... [plaintiff] has failed to articulate how he was deprived of any of the specific rights protected by § 101(a)(1)”). As a result, Plaintiffs objection, at least insofar as it is couched as a putative Section 101(a)(1) claim, is misplaced. The claim is dismissed with prejudice. B. Plaintiffs Have Stated a Claim Under Section 101(a)(2) Section 101(a) (2) of the LMRDA “grants union members the rights of freedom of speech and assembly, including the right to ‘express any views, arguments or opinions.’ ” Brunt, 284 F.3d at 719 (quoting 29 U.S.C. § 411(a)(2)). Defendants argue" }, { "docid": "10792314", "title": "", "text": "union officers’ conduct in the matter here at hand. SECTION 101 LMRDA Sections 101(a)(1) and 101(a) (2) of the Landrum-Griffin Act comprise a bill of rights applicable to the microeosmic union entity in the same way that the first ten amendments to the Constitution are applicable to society at large. Section 101(a)(1) incorporates the provisions of the fifth and fourteenth amendments to union activities. It provides: “Equal Rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Section 101(a)(2) is analogous to the first amendment in guaranteeing the principles of free speech and assembly in union affairs. It provides: “Freedom of speech and assembly.— Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or .opinions;, and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” Plaintiffs have not demonstrated that either section was violated by the activities complained of here. It was held in Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964) that Section 101(a)(1) forbids only unequal treatment as between members of a union. Since plaintiffs complain of a failure to ratify which affects all union members equally, for better or worse, there can be no violation of Section 101(a)(1) in this case. Section" }, { "docid": "9497943", "title": "", "text": "for eligible candidates, as they do in this case. Section 101(a)(1) of Title I (Bill of Rights of Members of Labor Organizations) of the LMRDA provides: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. 29 U.S.C. § 411(a)(1) (1985) In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1965), the Supreme Court explained that this Section “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139, 85 S.Ct. at 295. The Supreme Court discussed the parameters of Title IV, in contrast with those of Title I. The Court observed that Title IV of the LMRDA, codified at 29 U.S.C. § 481 et seq., pertains to issues of eligibility and qualifications- of candidates and not to the equal rights protected by Title I. Id. at 138, 85 S.Ct. at 295. While Title I addresses pre-election and voting issues, Title IV provides an elaborate and exclusive post-election procedure aimed at effecting its goal of assuring free and democratic union elections. It regulates the frequency of elections, the distribution of campaign literature, the inspection of membership lists, the eligibility of candidates for office, campaign financing and the removal of officers guilty of serious misconduct. In contrast with the way in which a union member can bring a private suit in federal court alleging a Title I violation, see 29 U.S.C. § 412 (1985), Title TV’s provisions may be enforced only by the Secretary of Labor after a union member pursues the union’s internal channels and then files a complaint with the Secretary of Labor. Then, if the Secretary finds that there is probable cause to believe that a violation of the LMRDA occurred, the Secretary can bring suit in federal court to" }, { "docid": "17691831", "title": "", "text": "of Council 9 and a member of painters’ local 1011. The Secretary-Treasurer is elected by all the locals, but has authority to negotiate and enforce contracts for the painters’ locals only. Each autonomous local bargains collectively for itself and elects its own negotiating officers without participation by the painters’ locals. Plaintiff contends that this voting scheme, prescribed by the Brotherhood’s constitution and Council 9’s bylaws, discriminates against members of the paintters’ local and violates their equal right to vote because (1) it permits members of the autonomous locals, but not of the painters’ locals, both to vote for the Secretary-Treasurer and choose their own negotiators and (2) it permits members of the autonomous locals to vote for the negotiator for the painters’ locals (who is the Secretary-Treasurer) but does not permit members of the painters’ locals to vote for the negotiator for the autonomous locals. Plaintiff has exhausted his union remedies. In the course of his fruitless attempts to amend the bylaws, the plaintiff alleges that a number of incidents occurred which were infractions of the “Bill of Rights of Members of Labor Organizations,” § 101(a) of the LMRDA. Jurisdiction Section 102 of the LMRDA, 29 U.S.C. § 412, provides that “[a]ny person” whose rights under § 101 of the LMRDA, 29 U.S.C. § 411, are violated “may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.” Section 101 provides members of labor organizations with a “Bill of Rights” including, in § 101(a) (1), “equal rights and privileges ... to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Section 101(a) (2) assures “Freedom of speech and assembly”; (a) (3) regulates dues, initiation fees and similar matters; (a) (4) guarantees that “no labor organization shall limit the right of any member thereof to institute an action in any court”; (a) (5) provides for due process" }, { "docid": "23136039", "title": "", "text": "the union constitution and expressly disclaiming any attack on the agreement itself, have failed to allege a sufficient effect on labor-management relations. II. SECTION 101 Appellants assert that jurisdiction lies under sections 101(a)(1) and 102 of the LMRDA, 29 U.S.C. §§ 411 and 412. Under § 101(a)(1): Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Section 102 permits any person whose rights under § 101 have been violated to sue in district court. The appellants contend that § 101 guarantees the individual members of a union the right to vote on collective bargaining agreements, and that the district court erroneously held that because all union members were treated equally, no claim under § 101 was stated. In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), members of a union alleged that provisions of the union’s constitution and bylaws infringed on their right to nominate candidates as guaranteed by § 101. The Court concluded that the portion of § 101 relating to nominations “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139, 85 S.Ct. at 295. The operative factor was whether the complainants had been discriminated against. Appellants contend that § 101 was intended to guarantee the right of union members to vote on collective bargaining agreements; however, in post-Calhoon decisions interpreting the sections, courts have looked to whether there was discrimination in the right to vote: “the essence of Title I is the command not to discriminate against members and classes of members in their right to vote and nominate.” Fritsch v. District Council No. 9, 493 F.2d 1061, 1063 (2d Cir. 1974). Accord, Smith v. United Mine Workers, 493 F.2d 1241 (10th Cir. 1974); Lux v." }, { "docid": "10823997", "title": "", "text": "with regard to its own internal affairs. Fulk, 160 F.3d at 407-08. We conclude that although the election procedure departed somewhat from the strictures of Section 33, plaintiffs have not shown the union violated its duty of fair representation with these fairly minor der-ogations. IV. PLAINTIFFS’ REMAINING CLAIMS Relying on the same facts, as well as the same interpretation of the BLE constitution, plaintiffs contend the union’s internal restructuring violated two provisions of the Labor Management Reporting and Disclosure Act. The first is Section 101(a)(1) of the Act, which grants union members “equal rights and privileges ... to nominate candidates, to vote in elections or referendums ..., to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings....” 29 U.S.C. § 411(a)(1). The magistrate judge rejected plaintiffs’ claim, reasoning that any infringement of the statute “must be predicated on some form of discrimination.” Aplt.App., vol. V at 831. The judge found that plaintiffs had failed to allege facts showing they were “treated differently than other union members with regard to their opportunity to vote on the recommended merger of General Committees.” Id. at 832. She made the same finding with respect to the plaintiffs’ right to pursue an administrative appeal of the merger. Id. The district court adopted these findings in full. We agree. The magistrate judge correctly interpreted the governing law and properly applied that law to the facts. See Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964) (Section 101(a) is “no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.”). The district court, acting again on a recommendation from the magistrate judge, also was correct in rejecting plaintiffs’ second claim under the Labor Management Reporting and Disclosure Act, this one resting on Section 101(a)(2) of the Act. That section protects union members’ “right to meet and assemble freely with other members; and to express any views, arguments, or opinions.” 29 U.S.C. § 411(a)(2). The record contains no evidence to support plaintiffs’ claim" }, { "docid": "21455600", "title": "", "text": "attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings” embodied in Section 101(a)(1). Plaintiffs, with all respect, do not make any serious argument as to why this right, which on its face is targeted at meetings and elections regarding union-wide issues, should be extended to the context of nominating panel members to hear grievance appeals. See Gilvin v. Fire, 259 F.3d 749, 760-61 (D.C.Cir.2001) (stating that plaintiffs “claim was properly dismissed because ... [plaintiff] has failed to articulate how he was deprived of any of the specific rights protected by § 101(a)(1)”). As a result, Plaintiffs objection, at least insofar as it is couched as a putative Section 101(a)(1) claim, is misplaced. The claim is dismissed with prejudice. B. Plaintiffs Have Stated a Claim Under Section 101(a)(2) Section 101(a) (2) of the LMRDA “grants union members the rights of freedom of speech and assembly, including the right to ‘express any views, arguments or opinions.’ ” Brunt, 284 F.3d at 719 (quoting 29 U.S.C. § 411(a)(2)). Defendants argue that Plaintiffs’ claim under Section 101(a)(2) should be dismissed under Finnegan, which held that this Section applied to union members, but not union officers or employees. Id., 456 U.S. at 436-38, 102 S.Ct. 1867. Plaintiffs, however, cite Sheet Metal Workers’ Int’l Assoc, v. Lynn, 488 U.S. 347, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989), in support of their contention that their removal from office violated Section 101(a)(2). This Court’s January 25, 2005 opinion discussed these precedents, but the Court will do so once again since additional parties were added since that opinion issued. In Lynn, the Supreme Court addressed the issue of “whether the removal of an elected business agent, in retaliation for statements he made at a union meeting in opposition to a dues increase sought by the union trustee, violated the LMRDA.” Id. at 349, 109 S.Ct. 639. A trustee removed the plaintiff in Lynn from his position as an elected business representative because of Ms opposition to an increase in union dues. Id. at 350, 109 S.Ct. 639. The Lynn plaintiff subsequently" }, { "docid": "11769887", "title": "", "text": "ratified. A. LMRDA Claim Plaintiffs claim the union deprived them of a meaningful vote by failing to provide adequate notice of the vote or sufficient information about the final offer, as well as by misrepresenting the terms of the offer. They argue that this violated section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), which provides: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to the reasonable rules and regulations in such organization’s constitution and by-laws. The section has been read to “encompass more than just discrimination among union members.” Petrazzulo v. Lowen, 534 F.Supp. 173, 177 (S.D.N.Y.1982); see also Sheldon v. O’Callaghan, 497 F.2d 1276, 1282-83 (2nd Cir.1974). A union has been required, once it has provided its members with the right to vote, to extend that right “in a meaningful manner.” See, e.g., McGinnis v. Local Union 710, 774 F.2d 196, 199 (7th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1638, 90 L.Ed.2d 184 (1986). Courts have differed on whether a union violates section 101(a)(1) if it fails to provide adequate information in connection with an election or referendum. Compare Brown v. International Brotherhood of Electrical Workers Local Union No. 58, 936 F.2d 251, 254 (6th Cir.1991) (allowing claim of inadequate notice and information); Sako v. Local Union No. 705, 1987 WL 10981 (N.D.Ill. May 11, 1987); Bauman v. Presser, 117 L.R.R.M. (BNA) 2393, 1984 WL 3255 (D.D.C.1984); Gilliam v. Independent Steelworkers Union, 572 F.Supp. 168, 171 (N.D.W.Va.1983) with Ackley v. Western Conference of Teamsters, 958 F.2d 1463, 1473 (9th Cir.1992); O’Connor v. Local 719, 739 F.Supp. 1158, 1161 (N.D.Ill.1990) (claim of insufficient notice of ratification vote not cognizable under section 101(a)(1)). The majority of courts allow the claim. 1. Standing Defendants argue that those plaintiffs who voted to reject the final offer, or did not vote, have no standing to sue because they did not rely on" }, { "docid": "13923709", "title": "", "text": "District Judge was clearly correct in dismissing this aspect of Count II. Right to Vote, § 101(a)(1) (Count II) We believe the District Judge was correct likewise in refusing to dismiss plaintiffs’ (members) claims based upon § 101(a)(1). That section states: Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Plaintiffs (members) claim that the equal right to vote on referendums conveyed by this statute has been violated by defendants’ (unions) failure to submit the Michigan Rider to the Michigan teamsters membership for ratification. They also claim that if it had been so submitted, the Rider would have been rejected, thus preventing the loss of wages which they assert has occurred. Defendants (unions) claim that the word “referendums” should not be read to apply to the asserted right to vote on the Michigan Rider, that § 101(a)(1) does not protect the right to vote on the terms of a collective bargaining agreement, that plaintiffs (members) have not alleged a deprivation of the equal right to vote, and that plaintiffs have failed to exhaust remedies under the union constitution and are thus barred from maintaining this action. The exhaustion issue we shall deal with below. The other arguments for reversal advanced by defendants (unions) do not appear to us to have merit at this stage of the proceeding. We believe the word “referendum” is sufficiently broad to guarantee to all union members a right to vote on a union contract which any of them enjoy. There being no factual record before the District Judge or this court, no determination can now be made as to why and how ratification votes were limited to the national and central states agreements excluding the Michigan Rider or as to whether there were “Riders” negotiated in other states and made subject to ratification" }, { "docid": "9588695", "title": "", "text": "within the union’s jurisdiction is both a prerequisite to and a continuing condition of membership. The union asserts that this membership policy constitutes a proper exercise of its authority, under section 10(a)(1) of the LMRDA, to make “reasonable rules and regulations.” 29 U.S.C. § 411(a)(1). Section 101(a)(1) states: (a)(1) Equal rights. — Every member of a labor organization shall have equal rights and .privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. (emphasis added). The appellants, on the other hand, contend that the language of section 3(o) of the LMRDA prohibits the union from premising “membership” on continued employment. Section 3(o) states: “Member” or “member in good standing,” when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization. 29 U.S.C. § 402(o) (emphasis added). According to appellants, this provision guarantees continued union membership to anyone who has once fulfilled the threshold requirements and who has neither “voluntarily withdrawn” nor been “expelled after appropriate proceedings.” Maul and his fellows argue that their previous employment satisfies the statutory criteria and that they are thus entitled to continued privileges of membership in Local 5000. To support their position, appellants cite two Seventh Circuit cases, Alvey v. General Electric Co., 622 F.2d 1279 (7th Cir.1980), and Brennan v. Independent Lift Truck Builders Union, 490 F.2d 213 (7th Cir.1974). We have reviewed appellants’ arguments carefully, but find them unpersuasive for several reasons. First, neither authority cited by appellants bears directly on the present case. Both Brennan and Alvey involved former union members whose employment within their unions’ jurisdiction had been terminated involuntarily through discharge or replacement of striking workers. As we observed earlier, the Steelworkers’" }, { "docid": "21455597", "title": "", "text": "of Title I of the [LMRDA].” Finnegan, 456 U.S. at 439, 102 S.Ct. 1867. Pursuant to Section 102, a Plaintiff can bring a claim under Section 101(a)(2) even if no 101(a)(5) violation is shown. See Maddalone v. Local 17, United Bhd. of Carpenters and Joiners of Am., 152 F.3d 178, 183 (2nd Cir.1998) (citing Finnegan, 456 U.S. at 439, 102 S.Ct. 1867; and Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461, 1468 (6th Cir.1992)). “[S]ection 609 [of the LMRDA] provides that a union and its officers may not fine, suspend, expel or otherwise discipline any union members for exercising such rights to free speech and assembly.” Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 719 (7th Cir.2002) (citing 29 U.S.C. § 529). The Supreme Court has stated that “a litigant may maintain an action under § 102 ... without necessarily stating a violation of § 609.” Finnegan, 456 U.S. at 439, 102 S.Ct. 1867; accord Harvey v. Hollenback, 113 F.3d 639, 643 (6th Cir. 1997) (“Section 102 provides a right of action to members ‘whose rights ... have been infringed, ’ ... which the Supreme Court has acknowledged is a somewhat broader concept than the term ‘discipline’ in § 609.”) (quoting 29 U.S.C. § 412, with emphasis in Harvey, and citing Finnegan, 456 U.S. at 439, 102 S.Ct. 1867). A. Plaintiffs Fail to State a Claim Under Section 101(a)(1) Section 101(a) (1) of the LMRDA provides that “[e]very member of a labor or ganization shall have equal rights and privileges ... to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” 29 U.S.C. § 411(a)(1). In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court held that Section 101(a)(1) of the LMRDA “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139," }, { "docid": "23136040", "title": "", "text": "292, 13 L.Ed.2d 190 (1964), members of a union alleged that provisions of the union’s constitution and bylaws infringed on their right to nominate candidates as guaranteed by § 101. The Court concluded that the portion of § 101 relating to nominations “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139, 85 S.Ct. at 295. The operative factor was whether the complainants had been discriminated against. Appellants contend that § 101 was intended to guarantee the right of union members to vote on collective bargaining agreements; however, in post-Calhoon decisions interpreting the sections, courts have looked to whether there was discrimination in the right to vote: “the essence of Title I is the command not to discriminate against members and classes of members in their right to vote and nominate.” Fritsch v. District Council No. 9, 493 F.2d 1061, 1063 (2d Cir. 1974). Accord, Smith v. United Mine Workers, 493 F.2d 1241 (10th Cir. 1974); Lux v. Blackman, 546 F.2d 713 (7th Cir. 1976). Jurisdiction under § 101 exists only when such discrimination has been alleged. Trail v. International Brotherhood of Teamsters, 542 F.2d 961 (6th Cir. 1976). See Parish v. Legion, 450 F.2d 821 (9th Cir. 1971). Although the LMRDA guarantees members the right to vote in union elections it does not guarantee them the right to vote on a particular question. Its emphasis is on equal voting rights. The Court, in Calhoon, recognized that, [w]hether the [voting] requirements set by the union’s constitution and bylaws were reasonable and valid is a question separate and distinct from whether the right to [vote] on an equal basis given by § 101(a)(1) was violated. 379 U.S. at 139, 85 S.Ct. at 296. Appellants have asserted no denial of a voting right given to any other member or class of members. The district court properly dismissed the action for failure to state a claim. III. SECTION 501 Plaintiffs next assert that the court had jurisdiction under § 501 of the LMRDA, 29 U.S.C. §" }, { "docid": "21455595", "title": "", "text": "plaintiff has a right to relief, raising that possibility above a “speculative level”; if they do not, the plaintiff pleads himself out of court. Id. (citing Bell Atlantic, 127 S.Ct. at 1965). DISCUSSION I. The LMRDA Claims Are Dismissed in Part In a Memorandum Opinion and Order of January 25, 2005, the Court denied the CSJB, International Union, and Local No. 10’s motion to dismiss Vazquez’s LMRDA claims in his earlier Complaint. (See D.E. 32 in Case No. 04 C 861 at 21-28.) The CSJB, the International Union (together, the “Union Defendants”), and Torello now move to dismiss certain of Plaintiffs’ LMRDA claims in the operative Complaint. These claims involve Sections 101(a)(1), 101(a)(2), 101(a)(5), 301 and 609 of the LMRDA. Title I of the LMRDA grants union members a “Bill of Rights.” See 29 U.S.C. § 411; see also Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, and Packers v. Crowley, 467 U.S. 526, 528, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984). Sections 101(a)(1) and (a)(2) of Title I, 29 U.S.C. §§ 411(a)(1) and (a)(2), “guarantee equal voting rights, and rights of speech and assembly, to every member of a labor organization.” Finnegan v. Leu, 456 U.S. 431, 436, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982) (internal quotation marks and emphasis omitted). Section 101(a) (5) of Title I provides that, “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization ... unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” 29 U.S.C. § 411(a)(5). In this regard, precedent teaches that Section 101(a)(5) “guarantee[s] that [union] members will not be disciplined by their union without certain procedural protections.” Stevens v. N.W. Ind. Dist. Council, United Bhd. of Carpenters, 20 F.3d 720, 727 n. 16 (7th Cir.1994); English v. Cowell, 969 F.2d 465, 469 (7th Cir.1992). Section 102 of Title I, 29 U.S.C. § 412, provides “authority for a suit against a union based on an alleged violation" }, { "docid": "15655886", "title": "", "text": "Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Plaintiffs claim their equal rights to vote were denied by virtue of the business agent’s patent disregard of the two referen-da in which the proposed project agreement had been unanimously rejected. The word “referendum” in section 101(a)(1) has been held to be sufficiently broad “to guarantee to all union members a right to vote on a union contract which any of them enjoy.” Trail v. International Brotherhood of Teamsters, 542 F.2d at 966. The Supreme Court held in Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964), however that the guarantee of “equal rights” in section 101(a)(1) forbids only unequal treatment as between members of a union. Thus, the issue under section 101(a)(1) is not whether the members were treated properly or fairly, but whether they were treated equally. See Lux v. Blackman, 546 F.2d 713, 716 (7th Cir. 1976); Case v. IBEW Local 1547, 438 F.Supp. 856, 859 (D.Alas.1977), aff’d sub nom. Stelling v. IBEW Local 1547, 587 F.2d 1379 (9th Cir. 1978), cert. denied, 442 U.S. 944, 61 L.Ed.2d 315, 99 S.Ct. 2890 (1979); Aikens v. Abel, 373 F.Supp. 425, 434 (W.D. Pa.1974). There is no allegation here that the two complaining union members have been discriminated against, or that they have been denied a privilege or right to vote that the union has granted to others. It is undisputed that the local members voted unanimously to reject the proposed Redroek project agreement. If there was a denial of a right to vote, because of the business agent’s abrogation of the members’ wishes, that denial affected each member equally. Plaintiffs themselves were not singled out for disparate treatment, nor is there any hint that other union members received better treatment in exercising their union" }, { "docid": "21455598", "title": "", "text": "‘whose rights ... have been infringed, ’ ... which the Supreme Court has acknowledged is a somewhat broader concept than the term ‘discipline’ in § 609.”) (quoting 29 U.S.C. § 412, with emphasis in Harvey, and citing Finnegan, 456 U.S. at 439, 102 S.Ct. 1867). A. Plaintiffs Fail to State a Claim Under Section 101(a)(1) Section 101(a) (1) of the LMRDA provides that “[e]very member of a labor or ganization shall have equal rights and privileges ... to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” 29 U.S.C. § 411(a)(1). In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court held that Section 101(a)(1) of the LMRDA “is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Id. at 139, 85 S.Ct. 292. In this regard, the Seventh Circuit has taught that Section 101(a)(1) “says only that when voting occurs every union member has equal rights to take part.” Serpico v. Laborers’ Int’l Union of N. Am., 97 F.3d 995, 998 (7th Cir.1996). Or, as the Seventh Circuit explained, in order to state a claim under Section 101(a)(1), a plaintiff must “allege discrimination against some union members.” Fulk v. United Transp. Union, 81 F.3d 733, 736 (7th Cir.1996) (collecting cases; emphasis in original); accord Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 666 (7th Cir.1992) (collecting cases). Plaintiffs argue that their Section 101(a)(1) rights were violated when Vazquez appealed his grievance denial. (D.E. 164 at 17.) Specifically, Plaintiffs argue that this occurred when Spano barred Vazquez from sitting on the arbitration panel, but told Vazquez that Spano would not recuse himself. (Id.) Plaintiffs cite no authority for the proposition that the selection of panel members hearing grievances constitutes the right to “nominate candidates, to vote in elections or referendums of the labor organization, to" }, { "docid": "15655885", "title": "", "text": "made. The business agent, by signing the agreement without authorization, sparked a dispute solely between the employees and their respective unions. There has been no suggestion that Redrock, or any of the unions that had already agreed to commence work on the Olinkraft job, in any way prompted the international’s president to urge ratification of the agreement. We do not decide whether such a scenario would have been sufficient to bring the matter within the context of collective bargaining, and out of the realm of a strictly intraunion squabble. We conclude the present controversy does not have a significant impact on external labor-employer relationships and therefore cannot form the basis of jurisdiction under section 301. The district court properly denied jurisdiction under that section. Sections 101 and 102: Labor Management Reporting and Disclosure Act The next question is whether plaintiffs have alleged a sufficient violation of section 101(a)(1) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C.A. § 411(a)(1), to confer jurisdiction under section 102 of the Act, 29 U.S.C.A. § 412. Section 101(a)(1) provides, Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Plaintiffs claim their equal rights to vote were denied by virtue of the business agent’s patent disregard of the two referen-da in which the proposed project agreement had been unanimously rejected. The word “referendum” in section 101(a)(1) has been held to be sufficiently broad “to guarantee to all union members a right to vote on a union contract which any of them enjoy.” Trail v. International Brotherhood of Teamsters, 542 F.2d at 966. The Supreme Court held in Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964), however that the guarantee of “equal rights” in section 101(a)(1) forbids only unequal treatment as between members of a union. Thus, the issue under" }, { "docid": "12547675", "title": "", "text": "ratification process and because the LMRDA does not require that union members be provided with “meaningful” information prior to voting on contract ratification, appellants’ section 101 claims lack merit. If there is a remedy for the conduct they complain of, and there well may be, it lies elsewhere. A Section 101(a)(1) of the LMRDA guarantees to every union member “equal rights ... to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings.” 29 U.S.C. § 411(a)(1) (1988). Ackley and Cole maintain that the union leadership’s decision to withhold from the rank-and-file membership information regarding the nonmonetary terms of the proposed collective bargaining agreement violated this guarantee. In light of the settled law in this circuit regarding section 101(a)(1), the district court properly rejected this argument. Section 101(a)(1) is an anti-discrimination provision, pure and simple. To state a claim under section 101(a)(1), a union member must allege a denial of rights accorded to other members. Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964); Lodge 1380, BRAC, 625 F.2d at 826; see also Grant v. Chicago Truck Drivers, 806 F.2d 114, 117 (7th Cir.1986); Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1240 (5th Cir.1980); Smith v. United Mine Workers, 493 F.2d 1241, 1244 (10th Cir.1974). The facts surrounding the ratification of the 1988-1991 collective bargaining agreement make clear that WCT and the local union leaders furnished the same type and amount of information to all of the Matlack Teamsters and accorded them identical rights to speak at the ratification meetings. No discrimination against any member or group of members occurred. Appellants further argue that the union leaders abused their control over information relating to the contract negotiations by presenting the proposed contract to the membership in the most favorable light. The question whether the information provided was biased toward a particular outcome is irrelevant for purposes of section 101(a)(1). Section 101(a)(1) prohibits discrimination against people, not against ideas. We recognize that the conduct at" } ]

[ { "docid": "22334022", "title": "", "text": "Though United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has rendered the Sentencing Guidelines advisory, the standards of review remain the same. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). When a district court imposes an enhancement for obstruction of justice, we review the district court’s factual findings for clear error. United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir.2004); see also Merrill Stevens Dry Dock Co. v. M/V Yeocomico II, 329 F.3d 809, 816 (11th Cir. 2003) (stating that under clear error, we must affirm the district court’s determination so long as it is “plausible in light of the record viewed in its entirety”). We review the district court’s application of the Sentencing Guidelines to those facts de novo. Uscinski, 369 F.3d at 1246. When the appealing party does not clearly state the grounds for an objection in the district court, we are limited to reviewing for plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir.2003) (citation omitted). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights .... [and then] only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005) (citation and quotations omitted). B. Whether Massey Acted Willfully Massey argues that her lack of Zoloft and ingestion of heroin left her without the capacity to willfully obstruct justice. The government responds that Massey failed to object to the “willful” component of U.S.S.G. § 3C1.1 in the PSI or at the sentencing hearing and therefore has not preserved that issue for appeal. As such, the government argues that this objection should be reviewed under the plain error standard. We have held that, for a defendant to preserve an objection to her sentence for appeal, she must “raise that point in such clear and simple language that the trial court may not misunderstand it.” United States v." } ]

[ { "docid": "22762669", "title": "", "text": "the chapter seven guidelines’ recommended sentencing range for an abuse of discretion. See United States v. Hofierka, 83 F.3d 357, 361-62 (11th Cir.1996). Where a defendant raises a sentencing argument for the first time on appeal, we review for plain error. See United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995). The plain error standard is applicable here, because in the district court Aguillard did not raise the specific issues she raises now. There is a difference between arguing that a longer sentence is unnecessary for rehabilitation, and arguing that rehabilitative programs may not be taken into account in deciding the length of the sentence. “For this Court to correct plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” Id. at 1294. The district court did not commit plain error when it sentenced Aguillard to the 24-month statutory maximum term of imprisonment. That period is a permissible term of imprisonment under 18 U.S.C. § 3583(e)(3) & (g). We have held that the chapter seven guidelines are merely advisory, and it is enough that there is some indication the district court was aware of and considered them. See Hofierka, 83 F.3d at 361. In this case, the district court explicitly mentioned those guidelines and decided the sentence they recommended was inadequate under the circumstances. The court was not required to apply the § 7B1.4 recommended sentence. See id. That leaves Aguillard’s argument that the district court erred in basing the length of her sentence on the prospects of her receiving drug rehabilitation treatment. In United States v. Harris, 990 F.2d 594, 597 (11th Cir.1993), we did say that “it is inappropriate to imprison or extend the term of imprisonment of a federal drug defendant for the purpose of providing him with rehabilitative treatment.” However, Hams involved an initial sentencing, not a sentence being imposed upon the revocation of supervised release. Moreover, that case involved a guidelines requirement (about concurrent versus consecutive sentences) which the district court violated, not an advisory guideline which the court could follow or not." }, { "docid": "4860326", "title": "", "text": "we will remand for resentencing only if there is plain error. “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005) (quotations omitted). The government concedes, and we agree, that Mr. Meacham has satisfied the first two prongs of plain-error review. See id. (errors are “plain” if they are “clear or obvious at the time of the appeal”). We further conclude, despite the government’s objection, that the third and fourth prongs are also met. “For an error to have affected substantial rights, the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Romero, 491 F.3d 1173, 1179 (10th Cir.2007) (quotations omitted). To meet the fourth prong, the defendant must “demonstrate[ ] a strong possibility of receiving a significantly lower sentence .... ” United States v. Andrews, 447 F.3d 806, 813 (10th Cir.2006). The district court believed that the Guidelines range was 135-168 months, but the court varied downward to 120 months. The correct range, as noted, is only 87-108 months. The sentence imposed is thus twelve months higher than the top of the proper Guidelines range. In such circumstances, we will exercise our discretion to correct the sentencing errors. We have explained: A review of federal appellate decisions considering whether to correct unobjected-to sentencing errors reveals that the key concern has been whether correct application of the sentencing laws would likely significantly reduce the length of the sentence. When circuit courts have concluded that it would, they have not hesitated to exercise them discretion to correct the error. See, e.g., United States v. Syme, 276 F.3d 131, 157-58 (3d Cir.2002) (when the erroneously applied offense level was 21 (37-46 months) and the correct level was 19 (30-37 months), concluding that the error “seriously af fects the fairness, integrity, or public reputation of judicial proceedings”) ...; United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir.2001) (in exercising its discretion" }, { "docid": "23192094", "title": "", "text": "1 F.3d 1167, 1170 (11th Cir.1993)); see Paslay, 971 F.2d at 674 n. 13 (stating that, for sentencings after Bums issued, “Bums notice will be subject to waiver and limited review under the plain error rule when a defendant fails to make a timely objection predicated on Bums in district court”). When sentence objections are raised for the first time on appeal, we consider them “under the plain error doctrine to avoid manifest injustice.” United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995) (per curiam). For our court “to correct plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” Id. We conclude that the revised PSR, received six days prior to her sentencing, was reasonable notice to Garrison of the potential for upward departure in her fine. The sufficiency of this notice is evidenced by Garrison’s responsive sentencing memorandum, which she determined to be adequate to preserve her objection at sentencing after pronouncement of the fine. Furthermore, she should not have been surprised by the reasons for the upward departure, which were based on the facts of the PSR. There was no plain error regarding notice of the upward departure in Garrison’s fine. 2. Upward Departure Garrison argues that the district judge used improper factors in upwardly de parting in the imposition of her fine from the Guidelines range of $7,500 to $75,000, U.S.S.G. § 5E 1.2(c)(3). She contends that her $2,500,000 fine “is so large and disproportionate to the offense that it is unreasonable on its face.” Appellant’s Brief at 49. We review a district court’s departure from the applicable Sentencing Guidelines for abuse of discretion, and that decision is entitled to “substantial deference.” Koon v. United States, 518 U.S. 81, -, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). The Sentencing Guidelines mandate that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a); see United States v. Hairston, 46 F.3d" }, { "docid": "19941023", "title": "", "text": "district court then conducts a resentencing. United States v. Gomez, 431 F.3d 818, 823 (D.C.Cir.2005). As noted, after Brown appealed his sentence, we granted the parties’ joint motion for a Coles remand. Brown, 455 F.3d at 267. Because a Coles remand is only a record remand rather than a resentencing, Brown’s original sentencing was his only sentencing and his failure to object to the use of his arrest record at that time means that we review at this time for plain error only. See In re Sealed Case, 349 F.3d 685, 690 (D.C.Cir.2003) (“[Pjlain error review is appropriate when the appellant fails to raise a claim at his sentencing hearing or when he fails to object to the district court’s ruling.”) (citing Fed.R.Crim.P. 52(b)). Plain error exists “ ‘where (1) there is error (2) that is plain and (3) that affects substantial rights, and (4) the court of appeals finds that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Andrews, 479 F.3d 894, 896 (D.C.Cir.2007) (quoting United States v. Johnson, 437 F.3d 69, 74 (D.C.Cir.2006)). “An error ‘affect[s] substantial rights’ if it is ‘prejudicial.’ ” United States v. Williams, 488 F.3d 1004, 1008 (D.C.Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in Olano). “To establish prejudice in the sentencing context, [the defendant] ‘must show a reasonable likelihood that the sentencing court’s obvious errors affected his sentence.’ ” Id. (quoting United States v. Saro, 24 F.3d 283, 288 (D.C.Cir.1994)). 2. The Merits The district court imposed a sentence at the high end of the Guidelines range based on its consideration of numerous factors, including Brown’s arrest record. Sentencing Tr. 24-25, Aug. 19, 2003. Brown argues that the district court erred in considering his arrest record where the record lacked any evidence that Brown had in fact committed the conduct for which he was arrested. Brown also asserts that section 4A1.3 of the Guidelines expresses a policy against reliance on arrest records. Finally, Brown contends that “without evidence showing by a preponderance that" }, { "docid": "1329932", "title": "", "text": "He also argues that even if the district court could rely solely on the factual allegations contained in the PSR, those allegations do not support a finding of bodily injury, as defined by the guidelines, because the PSR did not describe the precise nature of the victim’s injuries or specify that they were of a type that ordinarily would require medical attention. As we have discussed, because Aguilar-Ibarra did not file a timely objection to the bodily injury enhancement, and because the district court did not waive the applicable time limit for good cause shown, we review the present claim for plain error only. See United States v. Parrish, 427 F.3d 1345, 1346 (11th Cir.2005) (“[W]e review for plain error those issues to which the defendant did not make timely objections in the district court.”). Under plain error review, Aguilar-Ibarra bears the “burden of establishing that (1) there is an error; (2) that is plain or obvious; (3) affecting his substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Bedeles, 565 F.3d 832, 842 (11th Cir.2009) (quotation marks and brackets omitted). “Before an error is subject to correction under the plain error rule, it must be plain under controlling precedent or in view of the unequivocally clear words of a statute or rule.” United States v. Schmitz, 634 F.3d 1247, 1270-71 (11th Cir.2011) (quotation marks omitted). Section 2B3.1 of the sentencing guidelines, which governs robbery offenses, imposes varying degrees of enhancements if “any victim sustained bodily injury.” U.S.S.G. § 2B3.1(b)(3). The guidelines call for a two-level enhancement in the event of “[b]odily [i]njury,” a four-level enhancement for “[s]erious [bjodily [i]njury,” and a six-level enhancement for “[permanent or [l]ife-[t]hreatening [b]odily [i]njury.” Id. Bodily injured is defined by the guidelines as “any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” Id. § 1B1.1, cmt. n.1(B). When a defendant challenges one of the factual bases of his sentence, the" }, { "docid": "22690382", "title": "", "text": "his post-sentencing rehabilitative efforts. Moreno asserts for the first time on appeal that, after Booker, the guidelines are no longer binding, so this case should be remanded to allow the district court to determine whether a reduction under § 3582(c)(2) is warranted. When a defendant fails to raise an error in the district court, we may not correct the error “unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Fields, 408 F.3d 1356, 1360 (11th Cir.2005) (quotation omitted). Section 3582 only provides a district court with the discretion to reduce a sentence following the lowering of a sentencing range by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). “[A] sentencing adjustment undertaken pursuant to Section 3582(c)(2) does not constitute a de novo resentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir.2000). “[A]ll original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original sentencing.” Id. We have held that Booker does not apply retroactively to cases on collateral review. Varela v. United States, 400 F.3d 864, 868 (11th Cir.2005). We have also held that the Supreme Court has not made Booker retroactively available on collateral review for purposes of authorizing a second or successive § 2255 motion. In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir.2005). After reviewing the record, we conclude that the district court did not plainly err by determining that § 3582(c)(2) did not provide a jurisdictional basis to reduce Moreno’s sentence based on his post-sentencing rehabilitative conduct. Further, Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions. The district court did not plainly err by determining that neither § 3582(c)(2) nor Booker provided a jurisdictional basis to reduce Moreno’s sentence based on his post-sentencing rehabilitative conduct." }, { "docid": "23319246", "title": "", "text": "States v. Hill, 643 F.3d 807, 840-41 (11th Cir.2011). 5) Whether the district court abused its discretion by denying defendant Jorge Macli’s motion for mistrial based on a government witness’s reference to the invocation of Jorge Macli’s right to counsel. This Court reviews for abuse of discretion the denial of a mistrial motion based on a comment regarding a defendant’s right to counsel. See United States v. Reeves, 742 F.3d 487, 504 (11th Cir.2014). 6) Whether all appellants are entitled to a new trial based on remarks made by the prosecutor during rebuttal closing argument. This Court reviews de novo allegations of prosecutorial misconduct in closing argument. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). 7) Whether the omission of a jury instruction defining “attempt” is plain error. Because this issue is raised for the first time on appeal, we review it for plain error. United States v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir.2007) (en banc). Under the plain error standard, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. McKinley, 732 F.3d 1291, 1296 (11th Cir.2013). Where these three conditions are met, the Court may then exercise its discretion to correct the error, “but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. 8) Whether defendants Dr. Kushner and Biseayne Milieu were denied a fair trial by the cumulative effect of the alleged trial errors. 9) Whether the individual defendant-appellants’ sentences are procedurally and substantively reasonable. This Court reviews de novo the district court’s interpretation of the guidelines and its application of guidelines to the facts. Findings of fact by the trial court at sentencing, however, are reviewed for only clear error. United States v. Medina, 485 F.3d 1291, 1297, 1303 (11th Cir. 2007) (loss amount); United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.2010) (sophisticated means); United States v. De Varón, 175 F.3d 930, 937 (11th Cir.1999) (en bane) (role in the offense); United States" }, { "docid": "15879909", "title": "", "text": "of 51-63 months. See id. Ch.5, Pt.A (sentencing table). The district court convened the disposition hearing on March 21, 2003. The appellant argued that he was entitled to a three-level reduction for acceptance of responsibility, see id. § 3El.l(b), instead of the two-level reduction recommended in the PSI Report. The appellant also sought a downward departure, see id. § 5K2.0, based on a claim that he had committed the offense of conviction out of impoverished desperation. The sentencing court agreed with the appellant that he had timely accepted responsibility (and that, therefore, a three-level reduction was in order). This reduction in the offense level yielded a GSR of 46-57 months, based on a total offense level of 21 and a CHC of III. See id. Ch.5, Pt.A (sentencing table). The court refused to depart downward and sentenced the appellant to a forty-six month incarcera-tive term. This appeal ensued. II. Discussion We review a district court’s interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Mateo, 271 F.3d 11, 13 (1st Cir.2001); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). Here, however, the appellant advances on appeal an asseverational array composed wholly of objections that he neglected to raise before the district court. Because of this procedural default, our review is restricted to plain error. United States v. Vazquez-Molina, 389 F.3d 54, 57-58 (1st Cir.2004); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002). That raises the bar appreciably. To achieve a finding of plain error, a defendant must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). Against this backdrop, we turn to the appellant’s three assignments of error. A. Offense Level Enhancement The sentencing guidelines set a base offense level of 8 for the crime of unlawfully entering or remaining in the United States. USSG § 2L1.2(a). The trial court" }, { "docid": "22848225", "title": "", "text": "pursuant to U.S.S.G. § 2B3.1(b)(2)(E) for possession of a dan gerous weapon — pepper spray — during the conspiracy to rob the check-cashing store. Second, Perez asserts that the district court committed plain error in failing to articulate on the record, as required by 18 U.S.C. § 3553(c)(2), its rationale for varying upward from the Guidelines sentence range of 57 to 71 months’ imprisonment; the court imposed sentences of 80 months. See Gall v. United States, 552 U.S. 38, 50,128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (stating that the district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing”) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Where a party fails to seasonably object to a district court ruling, we review the ruling only for plain error. United States v. Straub, 508 F.3d 1003, 1010-11 (11th Cir.2007). To find reversible error under the plain error standard, we must conclude that: (1) an error occurred, (2) the error was plain, (3) the error affected substantial rights in that it was prejudicial and not harmless, and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding. United States v. Dorman, 488 F.3d 936, 938 (11th Cir.2007). Where the district court, as required by United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc), offered the defendant the opportunity to object to his sentences, this court will not entertain an unraised objection “unless refusal to do so would result in manifest injustice.” Id. We begin our consideration of Perez’s sentence appeals by addressing the Rule 32 issue. We conclude that the district court failed to afford Perez his right of allocution as Rule 32 requires. The failure constitutes plain error and a manifest injustice, requiring the vacation of Perez’s sentences and the remand of his ease for resentencing. In light of this disposition, we need not address the two additional grounds on" }, { "docid": "22340308", "title": "", "text": "of the evidence that Bennett’s possession of the firearm was not in connection with a violent felony. After some confusion about the correct base offense level, the district court arrived at a total offense level of 32 (a base offense level of 34 with a two-level acceptance of responsibility reduction) with a range of 210 to 263 months’ imprisonment. The district court then sentenced Bennett to 220 months, stating that “a sentence not at the low end, but toward the low end of the Guidelines appears to be appropriate.” II. STANDARD OF REVIEW Assuming that Bennett properly preserved his objection regarding his classification as an armed career criminal, we review de novo the district court’s determination, based on information in Bennett’s PSI, that Bennett’s prior convictions were “violent felonies” under the ACCA. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.2006). With respect to Bennett’s argument about his total offense level being 31 rather than 32, we review objections to sentencing calculation issues raised for the first time on appeal for plain error. United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.1999). This standard requires that there be error, that the error be plain, and that the error affect a substantial right. Id. A substantial right is affected if the appealing party can show that there is a reasonable probability that there would have been a different result had there been no error. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 866 (2005). If these three conditions are met, then we may exercise our discretion to notice the forfeited error if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. III. DISCUSSION A. Classification as an Armed Career Criminal Bennett first argues the district court erred in determining, based on facts contained in his PSI, that his prior burglary convictions were violent felonies under the ACCA. Bennett contends that, because Georgia’s burglary statute is non-generic, the district court was required under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254," }, { "docid": "23254818", "title": "", "text": "support the violation at issue in this case, and (2) the court’s ultimate sentence following revocation of supervised release was unconstitutional. As a preliminary matter, to the extent White is attempting to challenge the district court’s original imposition of three years’ supervised release, a defendant may not challenge, for the first time on appeal from the revocation of supervised release, his sentence for the underlying offense. United States v. Almand, 992 F.2d 316, 317-18 (11th Cir.1993). We explained in Almand that “[a] sentence is presumed valid until vacated under [28 U.S.C. § 2255].” Id. at 317. We also have determined that the Supreme Court’s decisions in Blakely and Booker are not retroactively applicable to cases on collateral review. Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.2005). The scope of our review, therefore, is limited to White’s challenge of the court’s sentence following the revocation of his supervised release. Because White did not raise his Blakely/Booker objections in the district court, we review them only for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.) (reviewing a newly raised Blakely/Booker challenge to the federal guidelines for plain error), cert. denied, — U.S. —, 125 S.Ct. 2935, 162 L.Ed. 866 (2005). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects substantial' rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). “ ‘If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. at 1785). In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that “[ojther 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" }, { "docid": "7556674", "title": "", "text": "aggravating role and two levels for his abuse of a position of trust. The court also declined to grant the government’s motion for a downward departure for substantial assistance. Harness did not object to the probation officer’s findings of fact and sentencing recommendations in his presentence investigation report (PSR) and did not object after the district court imposed the sentence. Harness now appeals his sentence, arguing that the district court’s adjustments and refusal to depart downward were erroneous. II. Standard of Review We review the district court’s application and interpretation of the Sentencing Guidelines under the de novo standard, but review its findings of fact only for clear error. See United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997); United States v. Williams, 51 F.3d 1004, 1011 (11th Cir.1995). Because Harness did not object to the probation officer’s or the district court’s findings of fact and sentencing calculations, we are limited to reviewing his claims of error for the first time on appeal under the plain error standard to avoid manifest injustice. See United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995) (per curiam). “For the Court to correct plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” Id. III. Discussion A. Aggravating Role Harness first argues that the district court erred by increasing his offense level two levels pursuant to U.S.S.G. § 3Bl.l(c) for his aggravating role in the offense, We agree. Section 3Bl.l(c) requires a sentencing court to enhance a defendant’s offense level two levels if he was “an organizer, leader, manager, or supervisor in any criminal activity....” U.S.S.G. § 3Bl.l(c). “To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” Id. comment, (n.2) (emphasis added). The probation officer recommended that the court enhance Harness’s offense level two levels because he “exercised management responsibility over the property and assets of the victim organization as contemplated by U.S.S.G. § 3Bl.l(c), Application Note 2.” PSR at 6, ¶ 25. This was" }, { "docid": "22762668", "title": "", "text": "PER CURIAM: Jennifer Ford Aguillard appeals her 24-month sentence imposed upon revocation of supervised release, contending that it is too long. Aguillard concedes that 18 U.S.C. § 3583 authorizes the district court to revoke her term of supervised release and impose a maximum term of two years’ imprisonment. But she argues that although the policy statements of chapter seven of the sentencing guidelines are not binding, the sentencing court must at least consider them in revocation proceedings. Aguillard points out that under U.S.S.G. § 7B1.4 she would be subject to a three- to nine-month term of imprisonment, and that two-year terms of imprisonment generally are reserved for more serious offenders and offenses. Aguillard further argues that the district court imposed the maximum sentence solely for the purpose of ensuring that she would undergo comprehensive drug abuse rehabilitation treatment, including mental health counseling. She argues that sentencing solely for rehabilitative program purposes is contrary to this Court’s decision in United States v. Harris, 990 F.2d 594 (11th Cir.1993). We review a district court’s decision to exceed the chapter seven guidelines’ recommended sentencing range for an abuse of discretion. See United States v. Hofierka, 83 F.3d 357, 361-62 (11th Cir.1996). Where a defendant raises a sentencing argument for the first time on appeal, we review for plain error. See United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995). The plain error standard is applicable here, because in the district court Aguillard did not raise the specific issues she raises now. There is a difference between arguing that a longer sentence is unnecessary for rehabilitation, and arguing that rehabilitative programs may not be taken into account in deciding the length of the sentence. “For this Court to correct plain error: (1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” Id. at 1294. The district court did not commit plain error when it sentenced Aguillard to the 24-month statutory maximum term of imprisonment. That period is a permissible term of imprisonment under 18 U.S.C. § 3583(e)(3) & (g). We have held that the" }, { "docid": "23684556", "title": "", "text": "officer, Harris qualified as a career offender under U.S.S.G. § 4B1.1. As a result, the PSR increased his offense level to 37. It calculated his criminal history category, to be VI. The result was a guidelines range of 440 months to life imprisonment. Under 18 U.S.C. § 3559(c), however, a defendant convicted of a serious violent felony, who has previously been convicted of a combination of two or more serious violent felonies or serious drug offenses is subject to a mandatory sentence of life imprisonment. Harris met those criteria, and the district court imposed the statutorily mandated life sentence. It also sentenced him to serve, consecutively, 57 years imprisonment for his other crimes. Harris contends for the first time on appeal that the Supreme Court’s recent decision in Alleyne prohibits a court at sentencing from considering a defendant’s prior convictions if the jury has not found that the defendant committed those crimes. He also renews the argument that he made in the district court that imposing a mandatory life sentence under 18 U.S.C. § 3559(c) is unconstitutional on separation of powers grounds. II. This Court normally reviews constitutional sentencing issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008). However, where a defendant fails to raise such an objection before the district court at sentencing, we review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Because Harris raised the Alleyne argument for the first time on appeal, the proper standard of review is for plain error. Under that standard, we cannot “correct an error the defendant failed to raise in the district court” unless the defendant shows “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (quotation marks omitted). If those conditions are met, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Because Harris raised his constitutional challenge to 18 U.S.C. § 3559 and 21 U.S.C. § 851 in the district court, we will apply de novo review to that" }, { "docid": "22603961", "title": "", "text": "aiding and abetting .... ”). The conviction does not, however, constitute an “aggravated felony” as defined by the Immigration and Nationality Act (INA) because her term of imprisonment was less than one year. See 8 U.S.C. § 1101(a)(4S). Gonzalez challenges her sentence and contends: (1) the district court erred by imposing the 16-level increase because her prior conviction did not qualify as an “aggravated felony”; (2) her 50-month sentence is both procedurally and substantively unreasonable; and (3) her Fifth and Sixth Amendment rights were violated when the district court enhanced her sentence based on a prior conviction not alleged in the indictment or proven to the jury beyond a reasonable doubt. II. DISCUSSION A. Enhancement under U.S.S.G. § 2L 1.2 (b)(1) (A) (ii) We review objections to the applicability of U.S.S.G. § 2L1.2 not raised in the district court for plain error and can only make corrections if (1) there is an error; (2) the error was plain, clear, or obvious; and (3) the error affected substantial rights. United States v. Hernandez-Gonzalez, 318 F.3d 1299, 1301 (11th Cir.2003). If these criteria are met, we have discretion to correct the error, but should correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quotation and alteration omitted). “Where errors could have cut either way and uncertainty exists, the burden is the decisive factor in the third prong of the plain error test, and the burden is on the defendant.” United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.2005). We conclude from the record there is no error in this case as to the district court’s application of the Guidelines. Gonzalez contends § 2L1.2’s background, history, structure, and commentary lead to the conclusion § 2L1.2(b)(l)(A)(ii) only applies to crimes of violence also qualifying as aggravated felonies. The plain language of § 2L1.2, however, permits a 16-level enhancement for a prior conviction of a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). Further, the recently amended commentary uses permissive, rather than" }, { "docid": "22955342", "title": "", "text": "However, because the statutory maximum term of 120 months imprisonment was less than his applicable guidelines range, 120 months became the guidelines sentence under U.S.S.G. § 5Gl.l(a). In explaining Pantle’s sentence, the district court stated that it had reviewed the 18 U.S.C. § 3553(a) factors and the guidelines and indicated that it thought 120 months was not enough. Specifically, the court stated: And while I’m not willing to find that this sentence is reasonable, it is the maximum permitted, and therefore, I do think that it will serve the sentencing purpose and meet the general goals of punishment and hopefully deter anyone else from similar criminal conduct. Pantle contends that the district court erred in setting his base offense level at 24 based on his prior Florida and Alabama convictions because he believes that neither conviction qualifies as a “crime of violence” within the meaning of § 2K2.1(a). I. Generally, we review de novo the issue of whether a defendant’s prior conviction constitutes a crime of violence under the sentencing guidelines. United States v. Llanos-Agostadero, 486 F.3d 1194, 1196 (11th Cir.2007). But because Pantle failed to object to his prior convictions being considered “crimes of violence,” we review that aspect of the sentence calculation only for plain error. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.2005). For this Court to correct an error under plain error review, “(1) there must be error; (2) the error must be plain; (3) the error must affect the appellant’s substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gallego, 247 F.3d 1191, 1196 (11th Cir.2001) (quotation marks and alteration omitted). “In order to be plain enough for the plain error rule, an asserted error must be clear from the plain meaning of a statute or constitutional pro vision, or from a holding of the Supreme Court or this Court.” United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 2010). But it is enough that the error was plainly established under the law at the time of appellate review." }, { "docid": "12682158", "title": "", "text": "violence” necessary for imposition of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This conclusion follows clearly from the court’s analysis in Calderon-Pena and Vargas-Duran, and accordingly, the district court’s error was clear or obvious. The district court’s error in applying the 16-level enhancement affected Andino-Ortega’s substantial rights. As a result of the enhancement, the sentencing range was 51 to 63 months. AndinoOrtega received a sentence of 60 months’ imprisonment. If, as Andino-Ortega contends, he is subject to only a 4-level enhancement pursuant to § 2L1.2(b)(1)(D), the applicable Guidelines range is 10 to 16 months, a range four to five times lower than his sentence. And even if the Government is correct that Andino-Ortega is properly subject to an 8-level enhancement under § 2L1.2(b)(1)(C), the Guidelines range would still only be 21 to 27 months, a range substantially lower than the sentence Andino-Ortega received. Because these ranges, however calculated, do not overlap with the range applied to Andino-Ortega, the district court’s error necessarily increased his sentence and thus affected his substantial rights. See, e.g., Villegas, 404 F.3d at 364. We find that Andino-Ortega has satisfied his burden under the plain-error test by showing that the district court misapplied the Guidelines in calculating the sentencing range, the court imposed a sentence based on that miscalculation, and the sentence was higher than the correct range under the Guidelines. See id. Furthermore, because the district court’s er ror clearly affected Andino-Ortega’s sentence, we also find that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See id. Accordingly, we vacate his sentence and remand for resentencing. B The second issue that Andino-Ortega raises is that the district court abused its discretion in refusing his request for a one-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3El.l(b). This reduction is only applicable if the defendant qualifies for the two-point reduction under § 3El.l(a) and “the offense level determined prior to the operation of subsection (a) is level 16 or greater.” § 3E 1.1(b). Whether Andino-Ortega is even eligible for the additional reduction will depend on the calculation of his" }, { "docid": "23655120", "title": "", "text": "VI for eighteen different criminal convictions over a ten-year period. At the time of his sentencing, the record indicated that Guzman-Mata had been previously deported fourteen times. For the present § 1326 violation, the district court determined Guzman-Mata’s base offense level to be eight. See U.S.S.G. § 2L1.2. Guzman-Mata received a three point reduction for acceptance of responsibility and for timely notifying the government of an intention to plead guilty. See U.S.S.G. §§ 3El.l(a)-(b). Per the PSR, the district court also applied a 16-level enhancement (under U.S.S.G. § 2L1.2(b)(l)(A)(vii)) for Guzman-Mata’s prior conviction of an alien smuggling offense under 8 U.S.C. § 1324(a)(1). With a total offense level of 21, the district court calculated the sentencing range to be 77 to 96 months. The district court then expressly considered the § 3553(a) sentencing factors and sentenced Guzman-Mata to 77 months’ imprisonment. At sentencing, Guzman-Mata made no objection to the PSR or to the sentence imposed. This appeal followed. STANDARD OF REVIEW We review de novo the district court’s interpretation and application of the Federal Sentencing Guidelines, including whether a prior conviction qualifies for enhancement under U.S.S.G. § 2L1.2(b)(A). See United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir.2005). However, because GuzmanMata did not object to the sentencing enhancement at the time of sentencing, we review his sentence only for plain error. See United States v. Rodriguez-Lara, 421 F.3d 932, 948 (9th Cir.2005). Plain error is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (omitting citation and internal quotation marks)). Even if Guzman-Mata shows plain error, we may only reverse if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 948-49 (quoting Ameline, 409 F.3d at 1078 and omitting citation and internal quotation). DISCUSSION I. A Conviction under § 1324(a)(1) Qualifies as an “Alien Smuggling Offense” under U.S.S.G. § 2L1.2(b)(l)(A). We must decide whether GuzmanMata’s prior conviction under 8 U.S.C. § 1324(a)(l)(A)(ii) qualifies as an “alien smuggling offense” for the purposes of U.S.S.G. § 2L1.2(b)(l)(A). To" }, { "docid": "14493286", "title": "", "text": "error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this Court may exercise discretion to correct the error if [4] it seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.2011) (alteration in original) (quoting United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007)). Mr. McGehee’s argument on appeal is essentially twofold. See Aplt. Opening Br. at 8. First, he contends that the district court’s denial of his request for a reduction for acceptance of responsibility was clearly erroneous because it was made without an adequate factual foundation and, more specifically, neglected to properly take into account his conduct in conceding many aspects of Counts One and Three. Second, he claims that the district court inappropriately suggested that it ordinarily would have given him some credit for his truthfulness in reaching its decision about the acceptance-of-responsibility adjustment, but it did not do so because Mr. McGehee was allegedly receiving a windfall in light of the fact that his sentence in the instant case would run concurrently with another sentence that he had previously received in the United States Dis trict Court for the Western District of Missouri, by order of that sentencing court. See R., Vol. 3, at 15 (PSR, dated Dec. 7, 2010, and revised Feb. 2, 2011) (noting that the Missouri federal court ordered “[t]he sentence imposed in th[at] case” to run concurrently with the sentence “yet to be imposed” in the instant case (internal quotation marks omitted)). However, Mr. McGehee cannot prevail under plain-error review on either argument because the district court did not commit error, much less clear or obvious error. In other words, he cannot satisfy the first prong of the plain-error test. Generally, we review a district court’s decision to refuse application of the two-level reduction for acceptance of responsibility under the deferential clearly erroneous standard. See United States v. Dazey, 403 F.3d 1147, 1172 (10th Cir.2005) (“Whether the facts of a particular case warrant a" }, { "docid": "4860325", "title": "", "text": "counted the seven firearms, in addition to the five destructive ^evices, in determining that the offense irfvolved between eight and twenty-four firearms. Because Mr. Meacham is not a “prohibited person,” counting the firearms was improper. Again, the government concedes this point and agrees that the offense only involved the five destructive devices. Accordingly, Mr. Meacham should have received a two-level, rather than a four-level, specific offense enhancement. See U.S.S.G. § 2K2.1(b)(l)(A). The correct total offense level should have been 28, not 32. Thus, the correct advisory Guidelines range was 87-108 months, not 135-168 months. See U.S.S.G. Manual ch. 5, pt. A (2008). The district court sentenced Mr. Meacham to 120 months, a term below the range the court thought was correct but above the proper range. In such a case, we generally remand for resentencing. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006) (“A non-harmless error in [the Guidelines] calculation entitles the defendant to a remand for resentencing.”). Mr. Meacham, however, did not make these arguments to the district court, and therefore we will remand for resentencing only if there is plain error. “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005) (quotations omitted). The government concedes, and we agree, that Mr. Meacham has satisfied the first two prongs of plain-error review. See id. (errors are “plain” if they are “clear or obvious at the time of the appeal”). We further conclude, despite the government’s objection, that the third and fourth prongs are also met. “For an error to have affected substantial rights, the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Romero, 491 F.3d 1173, 1179 (10th Cir.2007) (quotations omitted). To meet the fourth prong, the defendant must “demonstrate[ ] a strong possibility of receiving a significantly lower sentence .... ” United States v. Andrews, 447 F.3d 806, 813 (10th Cir.2006). The district" } ]

[ { "docid": "106562", "title": "", "text": "of Mitchell Moore, plaintiffs supervisor, and Carmella Surdyk. However, Moore testified that an exchange of assets deal was an example of a project and that the special accounts he was familiar with were “inter-company accounts.” Moore Dep., Jan. 21, 2003, at 56-67. Surdyk testified that “[a] special account would have been any customer or set of accounts of a customer that would have resulted in significant earnings potential for the rep.” Surdyk Dep., Jan 28, 2003, at 106. Neither of these statements supports plaintiffs interpretation of the Windfall Provision. The plain language of the provision does not limit its application to break-even or net-loss sales, but states that Level 3 “reserves the right to limit the amount of Commission paid on any revenue that could result in a windfall payment.” Plan at 15 (emphasis added). The Windfall Provision, which we find defendant could properly apply to plaintiffs XO commissions, grants Level 3 absolute discretion to determine what accounts would result in a windfall. The email by Carmella Surdyk regarding plaintiffs XO commissions shows that Level 3 exercised that discretion in good faith, limiting plaintiffs commissions because he did not sell any of the XO contracts. Therefore, even if Level 3 were obligated to pay plaintiff commissions on the Dark Fiber Deal, the Plan permitted them to limit those commissions. On these uncontradicted facts, we find defendant had no contractual obligation to pay plaintiff any commissions on the Dark Fiber deals, and, therefore, defendant did not breach its contract with the plaintiff when it failed to pay him the additional $69,534.98 he seeks. B. Transoceanic Deal Plaintiff received $15,000.00 in commissions on the Transoceanic deal in 2001, and seeks an additional $516,844.28 in commissions for this deal. However, for the reasons stated above, we find that he is not entitled to any commissions on this deal. Like Dark Fiber commissions, Transoceanic commissions are calculated “based on the eligible Contract Value of Transoceanic IRU deals which you have sold and for which the Company has received payment.” Plan at 10 (emphasis added). Plaintiff does not allege that he sold the original Transoceanic" } ]

[ { "docid": "9883359", "title": "", "text": "which the option is being exercised, but in no event shall exceed a maximum monthly rate of 66 vehicles per month. (3) The unit price(s) to be paid for vehicles added by option exercise shall be no higher than the original unit price specified in the contract. ... The provision therefore stipulates that, unless the parties agreed otherwise, delivery of the optional vehicles would begin 180 days following the option exercise, and the unit price for each optional vehicle would be no higher than the unit price of a basic quantity vehicle. The contracting officer funded the basic quantity of SEE vehicles for THE first program year with appropriations from fiscal year (“FY”) 1984. The contracting officer also funded the option quantities with appropriations from various fiscal years that did not necessarily correspond to the appropriations used for the basic quantity from the same program year. Thus, for example, option quantities from the first program year were paid for with funds appropriated for FY 1984 and FY 1985. On June 29, 1988, TACOM exercised its option in the fifth program year by ordering 82 SEE vehicles, which it funded with appropriations from FY 1987 and FY 1988. On September 21, 1988, TACOM exercised another option in the fifth program year by ordering 38 SEE vehicles, which it funded with appropriations from FY 1986 and FY 1987. Then, on January 5, 1989, the contracting officer issued unilateral modification P00051 (“the P00051 modification”), exercising another option in the fifth program year for 491 SEE vehicles. The P00051 modification stated that the “delivery schedule is to be negotiated and contractualized by 31 Mar. 89. The contractor must provide for a delivery proposal within 30 days following date of contract modification execution.” The modification also indicated that the price would be $68,755 per vehicle. The accounting classification indicated that the option quantity would be paid with funds from FY 1987, FY 1988, and FY 1989. On February 15, 1989, Freightliner informed the contracting officer that it believed that the P00051 modification was an ineffective exercise of the contract’s option provision, and that it would" }, { "docid": "8315830", "title": "", "text": "of the notice. Plaintiff then filed this action on April 27, 2010. In a confusing 60-page complaint, plaintiff sets forth the following three counts. I. Retaliation against Mills via written Disciplinary Action for complaining about harassment by an employee under Civil Programs. Id. at 4. II. Defamation of Character (Libel) by making unfounded negative claims in Mills’ ePerformance Evaluation and DC Government Wide Permanent Official Personnel-Employee Record and then denying Mills his Rights to Due Process as indicated in a.) the DC Human Resources Performance Management Manual, b.) on line FAQs page, c.) the District Personnel Manual Issuance System DPM Instruction No. 14-19 O.P. Form 279(99), d.) an Employees Guide to the DC Govt. Use of ePerformance, and e.) the electronic on line DC Dept, of Human Resources’ revised 6-1-08 page ‘The Steps in the FY 2009 ePerformance Evaluation Phase[’]. Id. at 8. III. Wrongful Termination in retaliation for being perceived by Vidoni-Clark as a ‘Whistle Blower’ about a.) Chapter VII Civil Rights Violations (ie. [sic] harassment of Mills by another employee under civil programs and the retaliation against Mills by way of disciplinary action). Also, b.) Mills unintentionally and unknowingly exposing St. Elizabeths Hospital Violation of the Department of Justice orders to discontinue long term use of Benzodiazapines as a chemical restraint in consumers who do not have a Diagnosis to support that use as set forth by DOJ., & c.) Mills’ prevention of ‘safety violation’/discharge of consumer not ready for the community.” Id. at 26-27. Plaintiff further claims that he was denied his “employee right to due process in meeting to review and challenge said performance evaluation prior to [its] posting on [the] City Wide District Government Human Resource Peoplesoft site as part of [his] official and permanent electronic employee file.” Compl. at 36. LEGAL STANDARD All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which" }, { "docid": "6557038", "title": "", "text": "2008. Upon contacting Symantec, Marolda was issued a refund for the cost of the Norton 360 subscription during 2008, but not for her NIS 2006 subscriptions in 2007 and 2008. The four software products allegedly all feature the same functionality—anti-virus protection. Older software thus becomes redundant when an “upgrade” is purchased. Marolda does not state in which form and by what means she received the yearly offer to “upgrade.” All her purchases and downloads took place on Symantec’s website. Marolda alleges that Symantec has a means of knowing whether a consumer is purchasing an upgrade for use on the same computer as the previous version of her anti-virus program or for use on a second machine. On December 12, 2008, Marolda brought this suit against Symantec, asserting the following eight causes of action: (1) violation of the Consumer Legal Remedies Act (“CLRA”), Cal. Civ.Code sections 1750-1784; (2) violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code sections 17200-17210; (3) violation of the False Advertising Law (“FAL”), Cal. Bus. & Prof.Code sections 17500-17509; (4) breach of express and/or implied contract; (5) breach of covenant of good faith and fair dealing; (6) money had and received; (7) unjust enrichment; and (8) declaratory relief. On April 6, 2009, at an initial Case Management Conference, the court instructed plaintiff to file an amended complaint paying particular attention to the proposed class definition and attaching documents that would clearly support her allegations. On April 20, 2009, plaintiff filed a first amended complaint, which defendant now moves to dismiss. LEGAL STANDARD I. Motion to Dismiss for Failure to State a Claim A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Since Rule 12(b)(6) is concerned with a claim’s sufficiency rather than its substantive merits, when faced with a motion to dismiss, courts typically courts “look only at the face of the complaint.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002). Additionally, the doctrine of incorporation by reference allows a district" }, { "docid": "21767538", "title": "", "text": "collectively. Between FYs 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each FY was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F. 3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U. S. C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FYs 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Circuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was therefore binding. 644 F. 3d, at 1063-1065. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U. S. 1104 (2012), and now affirm. I—! A In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation, we also considered the Government’s promise to pay contract support costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.”" }, { "docid": "15595982", "title": "", "text": "that these changes “will provide added funds to enable the Postal Service to proceed with its plans to spend $5.6 billion on equipment and service enhancement programs in the 1998 fiscal year.” A month later, the Governors adopted most of the Commission’s recommendations. See 39 U.S.C. § 3625. In their view, “[t]he revenue requirement was driven in large part by the need to fund specific management initiatives and programs, many of which have been approved by the Board of Governors to maintain and improve service for the public, as well as by the usual need to cover expenses and repay prior years’ losses.” At the same time, they acknowledged that in FY 1998 they expected a gain in net income. Although criticizing the Commission’s rejection of certain costs and the 1.5% contingency figure, the Governors accepted the revenue requirement portion of the Commission’s decision. They added, however, that, under their Resolution No. 95-9, the Postal Service could recover for prior years’ losses at a more rapid rate, if possible, than that based on the amount included in the revenue requirement. Continued surpluses above and beyond those anticipated will allow for the complete restoration of equity in the near future, obviating the need to include this provision in subsequent revenue requirements, and thus relieving the ratepayers of a burden they have carried for many years. Finally, in light of comments by mail customers to the Governors and the Commission’s request of a delay, the Governors postponed implementing the rate changes until January 10, 1999. Among the factors influencing the delay were the Service’s current financial situation, as reflected in the annual report for FY 1997 and reported expectations for FY 1998, and the fact that January marked the four-year anniversary of the last general rate increase. The Governors also concluded that applying the increase in January was “consistent with the Postal Service’s goal for equity restoration through FY 1998, in accordance with Resolution No. 95-9 and the Commission’s recommendation for the recovery of prior years’ losses.” 2. In 1970, Congress enacted the “break even” requirement, see 39 U.S.C. § 3621, as" }, { "docid": "1546408", "title": "", "text": "divestiture simply because of their voluntary participation in a housing program under government control. To hold otherwise would mean that Congress could have changed the mortgage contracts in any way to affect any of the rights established by the contracts — including changing the contracts to extend their term from forty to, for example, eighty years — and the Owners would be without a remedy. Again, this is not and cannot be the law. 331 F.3d at 1334. . For reasons unrevealed, two of these subsequent amendments created and preserved a window from April 26, 1996, through September 30, 1996, during which the amendment did not apply. See The Balanced Budget Act of 1997, Pub.L. No. 105-33, § 2003, 111 Stat. 251 (1997) (applying the provision to FY 1995, FY 1996 prior to April 26, 1996, FY 1997, FY 1999, and thereafter); Pub.L. No. 105-65, § 201(c)(1), 111 Stat. 1344 (1997) (applying provision to FY 1995, FY 1996 prior to April 26, 1996, FY 1997 and FY 1998); Pub.L. No. 104-204, § 201(g), 110 Stat. 2874 (1996) (applying provision to FY 1995 and FY 1997). . For example, the House report accompanying the passage of Pub.L. No. 105-65, indicates that the limitation on automatic adjustments was one of a “number of administrative provisions designed to reduce costs at HUD.” H. Rep. 105-175 at 45; see also S.Rep. 104-318 at 29 (noting, in regards to P.L. 104-19, that \"[c]entral to the Committee’s program is the critical task of reversing the ever-increasing cost of Federal housing subsidy commitments, which cannot be sustained if the Federal budget is to be brought into balance”); id. at 47 (noting that reviewing new subsidy proposals for \"overall economic and budgetary effect ... provides some external discipline to what has been little more than a popularity contest.”); H. Rep. 104 — 628 at 1 (describing the rationale for HUD’s FY 1997 budget as \"reflectfing] a fundamental recognition that significant changes are required if the goal of a balanced budget is to be realized”); H.Rep. 105-175 at 4 (same as to FY 1998 budget). . These concerns were" }, { "docid": "6187294", "title": "", "text": "Between FY 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each fiscal year was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F.3d 1054, 1061 (C.A.10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FY 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Circuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was therefore binding. 644 F.3d, at 1063-1065. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U.S.-, 132 S.Ct. 995, 181 L.Ed.2d 725 (2012), and now affirm. II A In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation, we also considered the Government’s promise to pay contract support costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.”" }, { "docid": "15138571", "title": "", "text": "Agency to contract for all Bureau of Indian Affairs provided operation and services in FY 89 and future years.” Pl.’s Statement of Material Facts at 3; AR at Tab 60 (Ex. A, Attachment 1). The difference between the self-determination contract and the self-governance contract is described in the ISDA and its regulations. Once a tribe has entered into a Compact, it may no longer execute self-determination contracts. 25 U.S.C. § 458cc(b)(8)(A). Under the provisions governing self-determination contracts, tribes may submit proposals to the Department for such contracts which, if approved, would allow them to oversee certain programs with the use of Department funds. See 25 U.S.C. § 450f; 25 C.F.R. §§ 900.8-.16 (2009). Under the ISDA, a Compact of Self-Governance allows the tribe to assume more comprehensive responsibility for programs otherwise overseen by the Department. See 25 U.S.C. §§ 458aa~cc; 25 C.F.R. §§ 1000.91-.104. Under the self-government arrangement, tribes negotiate AFAs each year for the disbursement of program funds. See 25 U.S.C. §§ 458aa-ce; 25 C.F.R. §§ 1000.91-.104. During the period between 1988 and FY 1999, Plaintiff entered into self-determination contracts with Defendants. Pl.’s Statement of Material Facts at ¶ 7; 25 U.S.C. §§ 450f-450n. Although the ISDA governed these contracts and funds were disbursed according to the terms of the Tribal Resolution, see Pl.’s Statement of Material Facts at ¶¶ 2-3, CPN had not yet formally entered the ISDA’s Tribal Self-Governance Program, id. at ¶ 7. In 1998, it did so. Id. at ¶ 9; AR at Tab 45. Under the ISDA, tribes may enter into a Compact of Self-Governance and Annual Funding Agreements (“AFAs”) with the Department. PL’s Statement of Material Facts at ¶ 1. Such arrangements allow the tribes to assume responsibility for the “planning and administration of programs and services previously provided by the Department and the Department transfers the related funds to the tribes to administer.” Id. CPN alleges it did not learn that the Department was still applying 1988 data in calculating disbursement of funds among the Shawnee Agency Tribes for FY 1999 until it entered into the Compact for FY 1999. Compl. at" }, { "docid": "8315829", "title": "", "text": "jurisdiction over any non-federal claims. Hence, the Court will grant defendants’ motions to dismiss. BACKGROUND Plaintiff was hired on April 28, 2008, as a clinical administrator at St. Elizabeths. See Compl. Attach. (Charge of Discrimination). He received an annual performance evaluation on December 23, 2009. Compl. at 2, 8. By letter dated January 5, 2010, defendant fired plaintiff effective January 22, 2010, and informed him that “appointments to the Management Supervisory Service are at-will; therefore this termi nation action is neither grievable nor appealable.” Supp’l Attach. [Dkt. No. 14-1, pp. 3 — 4]. On March 15, 2010, plaintiff lodged the above-referenced charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on the bases of race and retaliation. The EEOC closed plaintiffs file on March 26, 2010, “[biased upon its investigation ... that [it was] unable to conclude that the information obtained establishes violations of [Title VII of the Civil Rights Act].” Id. (Dismissal and Notice of Rights). The EEOC informed plaintiff of his right to file a lawsuit within 90 days of his receipt of the notice. Plaintiff then filed this action on April 27, 2010. In a confusing 60-page complaint, plaintiff sets forth the following three counts. I. Retaliation against Mills via written Disciplinary Action for complaining about harassment by an employee under Civil Programs. Id. at 4. II. Defamation of Character (Libel) by making unfounded negative claims in Mills’ ePerformance Evaluation and DC Government Wide Permanent Official Personnel-Employee Record and then denying Mills his Rights to Due Process as indicated in a.) the DC Human Resources Performance Management Manual, b.) on line FAQs page, c.) the District Personnel Manual Issuance System DPM Instruction No. 14-19 O.P. Form 279(99), d.) an Employees Guide to the DC Govt. Use of ePerformance, and e.) the electronic on line DC Dept, of Human Resources’ revised 6-1-08 page ‘The Steps in the FY 2009 ePerformance Evaluation Phase[’]. Id. at 8. III. Wrongful Termination in retaliation for being perceived by Vidoni-Clark as a ‘Whistle Blower’ about a.) Chapter VII Civil Rights Violations (ie. [sic] harassment of Mills by another employee under civil programs" }, { "docid": "21767537", "title": "", "text": "entitled to pursue “money damages” in accordance with the Contract Disputes Act. § 450m-l(a). B During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e. g., Department of the Interior and Belated Agencies Appropriations Act, 2000,113 Stat. 1501A-148. Of that sum, Congress provided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs” under ISDA. E. g., ibid. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. Ibid. During each relevant FY, Congress appropriated sufficient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appropriate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FYs 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each FY was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F. 3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U. S. C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FYs 1994 through 2001, as required by ISDA and their contracts. The United States District Court for" }, { "docid": "21834182", "title": "", "text": "distinguish between tax expenditures and appropriations. The majority indicates that some persons could challenge these hypothetical government actions based on individualized injury, separate and apart from taxpayer status. See ante, at 129-13Q, 145. That is quite right; indeed, some parents or children likely have standing to challenge the Arizona tax credit on such grounds. But this possibility does not detract from the point made here. The purpose of these illustrations is to show that if taxpayer status is the thing alleged to confer standing, it should do so irrespective of the form of the government subsidy. See Arizona Dept, of Revenue, Revenue Impact of Arizona’s Tax Expenditures FY 2009/10, p. 48 (preliminary Nov. 15,2010); FY 2008/09, p. 54 (preliminary Nov. 16, 2009); FY 2007/08, p. 58 (preliminary Nov. 17, 2008); FY 2006/07, p. 65 (preliminary Nov. 15, 2007/final Sept. 2010); FY 2005/06, p. 73 (preliminary Nov. 15,2006/final Dec. 2009); FY 2004/05, p. 72 (preliminary Nov. 15, 2005/fmal June 2009); FY 2003/04, p. 74 (preliminary Nov. 14, 2004/final Feb. 2007); FY 2002/03, p. 74 (preliminary Nov. 15, 2003/final Mar. 2007); FY 2001/02, p. 71 (preliminary Nov. 15, 2002/final Mar. 2004); FY 2000/01, p. 73 (preliminary Nov. 15, 2001/final July 2003); FY 1999/00, p. 72 (preliminary Nov. 15, 2000/final Aug. 2002). Even taken on its own terms, the majority’s reasoning does not justify the conclusion that the Plaintiffs lack standing. Arizona’s tuition-tax-credit program in fact necessitates the direct expenditure of funds from the state treasury. After all, the statute establishing the initiative requires the Arizona Department of Revenue to certify STOs, maintain an STO registry, make the registry available to the public on request and post it on a website, collect annual reports filed by STOs, and send written notice to STOs that have failed to comply with statutory requirements. Ariz. Rev. Stat. Ann. §§43-1502(A)-(C), 43-1506 (West Supp. 2010). Presumably all these activities cost money, which comes from the state treasury. Thus, on the majority’s own theory, the government has “extract[ed] and spen[t]” the Plaintiffs’ (along with other taxpayers’) dollars to implement the challenged program, and the Plaintiffs should have standing. (The" }, { "docid": "6031581", "title": "", "text": "from: (1)reducing or otherwise altering any reimbursement rate to any licensed child placing agency (“LCPA”) or residential placement provider in the Title IV-E program below the DCS rates being paid on August 1, 2009; (2) taking any action to circumvent this order, including but not limited to transferring a child to a less expensive placement, reclassifying a child to a less expensive rate, or declining to assign a child to a more expensive placement, solely or primarily to reduce expenditures on the child; and (3) reducing or otherwise altering all foster care maintenance payments paid directly to foster parents and all adoption assistance payments paid to adoptive parents below the amounts being paid on December 31, 2009. The State is therefore PRELIMINARILY ENJOINED from implementing or otherwise effectuating the planned ten percent reduction in these payments, which was scheduled to go into effect on January 1, 2010, absent further order of this Court. Said PRELIMINARY INJUNCTION took effect at the conclusion of the hearing on January 20, 2010, by order of the Court and shall remain in effect and extend until further order of the Court or, in any event, no later than a final ruling on the merits. IT IS SO ORDERED. . Although these cases have been consolidated for pretrial proceedings, the facts pertaining to each case, while similar, embody many important differences. Accordingly, we summarize the facts of each case separately. . The reimbursement rate is set prior to each federal fiscal year by the federal government. This rate has risen in each of the last three fiscal years, from 62.69% in fiscal year (\"FY”) 2008, to 64.26% in FY 2009, and 65.93% in FY 2010. In February 2009, the federal stimulus bill raised the reimbursement rate an additional 6.2% for expenses incurred from October 1, 2008 through December 31, 2010. Thus, the current reimbursement rate is 72.13%. . To be eligible for foster care maintenance payments, the child, among other requirements, must have met the eligibility requirements for the former Aid to Families with Dependent Children in the month of his or her removal from the" }, { "docid": "22266507", "title": "", "text": "Federal Contract Compliance Programs, Department of Labor, being duly sworn, deposes and says: 1. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is responsible for the enforcement of Section 503 of the Rehabilitation Act of 1973. 2. It is the position of the Office of Federal Contract Compliance Programs that complainants should have a private right of action under Section 503, and that they should be permitted to pursue such actions without first exhausting the Department of Labor’s administrative process. While a person bringing a private action may seek individual or class relief, it is the Department’s view that the sanctions of debarment, termination of contract funds, or the withholding of contract progress payments may be imposed on a contractor only by the Department. 3. OFCCP believes that a private right of action would be consistent with Congress’ intent, and would greatly assist the Department of Labor’s effort to enforce Section 503. Such assistance has become necessary because of the large backlog of Section 503 administrative complaints, which the Department of Labor, due to limited resources, will not be able to investigate and resolve expeditiously. The following Department of Labor data on Section 503 administrative complaints, which were filed and processed for fiscal year 1978 and for the first three-quarters of fiscal year 1979, clearly illustrate the developing agency backlog: FY 79 FY 78 (1st 8/4’s) Open Inventory 1270 1537 Complaints Received 2682 2004 Cases Established 2027 1412 Cases Closed 1760 813 Ending Inventory 1537 2136 4. The Department of Labor disagrees with the district court’s views in Rogers v. Frito-Lay, Inc., 433 F.Supp. 200 (N.D.Tex. 1977); Anderson v. Erie Lackawanna Ry. Co., 468 F.Supp. 934 (N.D.Ohio [1979]), and Wood v. Diamond State Telephone Co., 440 F.Supp. 1003 (D.Del.1977) that a private right of action would jeopardize informal efforts to resolve Section 503 complaints. The Department believes that the prospect of litigation would have a sobering effect on the parties concerned, and actually encourage informal conciliation. The Department, of course, acknowledges that in some situations conciliation efforts might be negatively affected. But it has concluded that when" }, { "docid": "6187293", "title": "", "text": "entitled to pursue “money damages” in accordance with the Contract Disputes Act. § 450m-1(a). B During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e.g., Department of the Interior and Related Agencies Appropriations Act, 2000, 113 Stat. 1501A-148. Of that sum, Congress provided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs” under ISDA. E.g., ibid. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. Ibid. During each relevant FY, Congress appropriated sufficient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appropriate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FY 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each fiscal year was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F.3d 1054, 1061 (C.A.10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FY 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of" }, { "docid": "3012720", "title": "", "text": "FY 2010, the Board found that non-management employees “received the same rate of incentive compensation, equal to 160 hours of his or her unit pay hourly rate.” (J.A. 5). Citing the 2009 Plan’s statements that (i) “[n]ot all incentive compensation should be paid at the same percentage of annual salary”; (ii) “[incentives for superior work performance should be higher than for average or below average performers”; and (iii) TNS “will follow a matrix for determining employee worth to 'the organization,” the Board concluded that “paying all non-management employees the same level of incentive compensation- without taking into account individual employee performance ... directly conflicted with TNS’s incentive compensation policies. Those awards, therefore, were not made pursuant to TNS’s ‘established plan’ for incéntive compensation, in violation of the cost principles.” (J.A. 5-6). The Board also noted that some management employees “received less generous incentive compensation awards, both in terms of actual money awarded and in terms of the award as a percentage of their annual salaries, than did employees with lower or equivalent ratings” in FY 2010. (J.A. 6). The Board found that this “call[ed] into question whether TNS actually used the ratings to determine the amount of incentive compensation awarded,” as the 2009 Plan required, and that none of the records produced by TNS adequately explained these inconsistent awards. (Id.). The Board also took issue with TNS’s failure to provide the FY 2Ó10 performance evaluations that the 2007 Policy required it to keep on file or any records about its employees’ disciplinary histories, which the 2007 Policy.' also deemed relevant. (Id.). ' Similarly, for FY 2011, the Board found that some, of TNS’s employees “received less generous incentive compensation awards, both in terms of actual money awarded and in terms of the award as a percentage of their annual salaries, than did employees with lower or equivalent grades,” and that TNS “did not provide any employee-specific. documentation substantiating” these inconsistent payments, neither of which was in keeping with the 2007 Policy and 2009 Plan. (J.A. 7). As to FY 2012, the Board found that TNS “failed to provide documentation to" }, { "docid": "1546407", "title": "", "text": "displayed in every contract were a provision explicitly indicating that the government reserved the right to change unilaterally any provision subsequently deemed by the Congress or executive agency to be unduly expensive or otherwise ill-advised. . Indeed, in Cienega, supra, the Federal Circuit rejected the notion that the mortgage contracts there did not give rise to vested rights, but instead were subject to subsequent regulation and modification, stating: This case is instead comparable to Winstar, 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964. Though Winstar was a breach of contract case and not a takings case, it showed that the abrogation by legislation of clear, unqualified contract rights requires a remedy, even in a highly regulated industry, there banking, because the contracts embodied the commitments of the contracting parties. Id. at 896-97, 116 S.Ct. 2432. The Owners’ contractual prepayment rights are such clear, unqualified rights. The purpose of contracts is precisely to fix obligations and entitlements so that they will not be affected by subsequent background changes. Nor were the Owners’ rights subject to divestiture simply because of their voluntary participation in a housing program under government control. To hold otherwise would mean that Congress could have changed the mortgage contracts in any way to affect any of the rights established by the contracts — including changing the contracts to extend their term from forty to, for example, eighty years — and the Owners would be without a remedy. Again, this is not and cannot be the law. 331 F.3d at 1334. . For reasons unrevealed, two of these subsequent amendments created and preserved a window from April 26, 1996, through September 30, 1996, during which the amendment did not apply. See The Balanced Budget Act of 1997, Pub.L. No. 105-33, § 2003, 111 Stat. 251 (1997) (applying the provision to FY 1995, FY 1996 prior to April 26, 1996, FY 1997, FY 1999, and thereafter); Pub.L. No. 105-65, § 201(c)(1), 111 Stat. 1344 (1997) (applying provision to FY 1995, FY 1996 prior to April 26, 1996, FY 1997 and FY 1998); Pub.L. No. 104-204, § 201(g), 110 Stat." }, { "docid": "3012721", "title": "", "text": "2010. (J.A. 6). The Board found that this “call[ed] into question whether TNS actually used the ratings to determine the amount of incentive compensation awarded,” as the 2009 Plan required, and that none of the records produced by TNS adequately explained these inconsistent awards. (Id.). The Board also took issue with TNS’s failure to provide the FY 2Ó10 performance evaluations that the 2007 Policy required it to keep on file or any records about its employees’ disciplinary histories, which the 2007 Policy.' also deemed relevant. (Id.). ' Similarly, for FY 2011, the Board found that some, of TNS’s employees “received less generous incentive compensation awards, both in terms of actual money awarded and in terms of the award as a percentage of their annual salaries, than did employees with lower or equivalent grades,” and that TNS “did not provide any employee-specific. documentation substantiating” these inconsistent payments, neither of which was in keeping with the 2007 Policy and 2009 Plan. (J.A. 7). As to FY 2012, the Board found that TNS “failed to provide documentation to substantiate the determination that certain non-management employees met the qualifications to receive incentive compensation or to justify the varying amounts that, they received as awards,” and “failed to provide documentation substantiating the ratings given to management employees,” some of whom “received less generous incentive compensation awards, both in terms of actual money awarded and in terms of the award as a percentage of their annual salaries, than did employees with lower or equivalent grades and ratings.” (J.A. 8). The Board also pointed out that one employee who received a “C-/D +'” grade was nevertheless paid incentive compensation, which it considered “difficult to reconcile” with the 2007 Policy’s provision that incentive compensation was intended to reward “consistent or exemplary performance.” (Id.). In the court’s.view, the Board’s determination that TNS failed to follow the 2007 Policy and 2009 Plan “so consistently as to imply, in effect, an agreement to make” the challenged incentive compensation awards was not arbitrary, capricious, contrary to law or an abuse of discretion. 45 C.F.R. § 75.430(f). The 2009 Plan required TNS to" }, { "docid": "106560", "title": "", "text": "commissions be based on the eligible contract value of Dark Fiber Deals “which you have sold and for which the Company has received payment.” Plan at 6 (emphasis added). Although plaintiff concedes that he did not sell the Dark Fiber Deal, he argues in his Opposition that he “remained entitled to one-half commissions on all the Dark Fiber deals he had inherited” and that he “was entitled to commissions on Dark Fiber even if he did not make the sale.” Opposition at 7, 23. Plaintiff does not explain why he believes he is entitled to these commissions and cites only the Plan, generally, to support these statements. From our reading of the Plan, we can find no provisions that support his argument that he was entitled to commissions on contracts he did not sell. Even if plaintiff were entitled to a commission on the Dark Fiber Deal, according to the deposition testimony of David M. Windfeldt, Manager of Finance at Level 3, “dark fiber commissions.. .were earned when the segments were accepted by the customers.” Windfeldt Dep., Feb. 25, 2003, at 52 (cited in Plaintiffs Supp. Memo, in Opp. at 2). Plaintiff has presented no evidence of any Dark Fiber segments accepted by XO during his employment with Level 3. Therefore, plaintiff has not shown he was entitled to any Dark Fiber commissions on the basis of product acceptance. Lastly, defendant argues that even if plaintiff were entitled to commissions on the Dark Fiber Deal, it properly invoked the Windfall Provision to limit any commissions plaintiff may have been eligible to receive on the XO account. Plaintiff counters that there is a genuine dispute about the meaning of the Windfall Provision and whether it was properly applied to plaintiffs XO commissions. Plaintiff argues that because the Windfall Provision is titled “Windfall on Projects and Special Accounts” it could only be applied to “projects” and “special accounts.” These terms are not defined in the Plan but plaintiff argues that they were understood to mean break-even or net-loss sales. Opp. at 6. He tries to support this argument with the deposition testimony" }, { "docid": "3012702", "title": "", "text": "board of directors to direct the Executive Director to operate the grants at approx. 95% of full funding by implementing a system of cost reductions, cost management and efficient purchasing processes. Should the management of TNS be successful in operating the programs efficiently, then all staff will be able to share in an incentive plan to help the agency achieve fair and reasonable compensation for all employees. (Id.). The 2009 Plan further provides that “[n]ot all incentive compensation should be paid at the same percentage of annual salary,” and that “[i]ncentives for superior work performance should be higher than for average or below average performers.” (Id.). It also dictates that “[n]o employee compensation will be in excess of the Level II Executive Compensation set by the Federal Government at the time of the payment,” and that “[t]otal compensation for all employees will not exceed the maximum compensation for that position” as determined by a wage comparability study prepared for TNS. (Id.). Additionally, the 2009 Plan contains an appendix mth a matrix for TNS to follow in “determining employee worth to the organization” when deciding on incentive compensation awards. (J.A. 189, 141-42). Lastly, the 2009 Plan explicitly states that TNS will follow the Cost Principles in making incentive compensation awards. (J.A. 139-40). In February 2018, Defendant conducted a triennial monitoring review of TNS’s expenditure of Head Start grant funds in FY 2010, FY 2011 and FY 2012. (J.A. 123-25). That review led to an April 2013 monitoring report in which Defendant determined that TNS was out of compliance with the Cost Principles (the “Monitoring Report”). (J.A. 123-30). The Monitoring Report stated that TNS “did not ensure incentivé compensation payments to employees were allowable to the extent the overall compensation was determined to be reasonable,” and that TNS “was unable to document the basis for amounts awarded as incentive compensation.” (J.A. 127). In September 2013, Defendant sent TNS-a letter disallowing $1,332,698.09 in unsupported incentive payments for -FY 2010, FY 2011 and FY 2012 pursuant to the Cost Principles (the “Disallowance Letter”) (J.A. 23-26), The Disallowance Letter reiterated the findings in the Monitoring" }, { "docid": "15138570", "title": "", "text": "factors. The parties have litigated this matter in federal court in the past, see infra, at pp. 106-07, and more recently before the Interior Board of Indian Appeals. The crux of the dispute at the agency level was whether parties intended this formula to be calculated by using new data as it changed from year to year, or by using data as it existed in 1988 at the time the resolution was adopted. Compl. at ¶¶ 17-37; AR at Tab 66 (Citizen Potawatomi Nation v. Director, Office of Self-Governance, 42 IBIA 160 (Jan. 25, 2006) (hereinafter cited as “IBIA Decision”)). CPN now seeks a review of the Board’s decision. The two-page Tribal Resolution, which is essentially a contract, specifies the above formula, and includes language that would later become central to this litigation. The Resolution committed the tribes to “conform to all aspects of the CFR appropriate to the given program to be contracted by all five tribes of the Shawnee Agency.” Before certifying the agreement, CPN agreed “with the tribes served by the Shawnee Agency to contract for all Bureau of Indian Affairs provided operation and services in FY 89 and future years.” Pl.’s Statement of Material Facts at 3; AR at Tab 60 (Ex. A, Attachment 1). The difference between the self-determination contract and the self-governance contract is described in the ISDA and its regulations. Once a tribe has entered into a Compact, it may no longer execute self-determination contracts. 25 U.S.C. § 458cc(b)(8)(A). Under the provisions governing self-determination contracts, tribes may submit proposals to the Department for such contracts which, if approved, would allow them to oversee certain programs with the use of Department funds. See 25 U.S.C. § 450f; 25 C.F.R. §§ 900.8-.16 (2009). Under the ISDA, a Compact of Self-Governance allows the tribe to assume more comprehensive responsibility for programs otherwise overseen by the Department. See 25 U.S.C. §§ 458aa~cc; 25 C.F.R. §§ 1000.91-.104. Under the self-government arrangement, tribes negotiate AFAs each year for the disbursement of program funds. See 25 U.S.C. §§ 458aa-ce; 25 C.F.R. §§ 1000.91-.104. During the period between 1988 and FY" } ]

[ { "docid": "15441139", "title": "", "text": "at 1326, and “will recommend” as used in this plea agreement, are legally indistinguishable. The government’s obligation to make a nonbinding recommendation was satisfied under the circumstances given our precedent. It is telling that Smith never dis cusses either the passage of time between the plea hearing and the sentencing hearing, nor the precise language of the plea agreement included in the PSR at issue in that case, for neither factor is legally relevant to the straightforward holding of Smith: “We hold that the term ‘recommendation’ in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments in the defendant’s sentence if the recommendations are contained in the PSR.... ” 140 F.3d at 1327. Apparently, even Mr. Thomas himself no longer believes that the government breached the plea agreement by failing to allocute concerning the recommendation, for he has moved to dismiss this appeal without prejudice, characterizing the issues raised by his able counsel in this appeal as “frivolous.” AFFIRMED. The motion to dismiss the appeal is DENIED. . Although a divided panel of the Ninth Circuit has held that the district court’s aware ness of the recommendation contained in the plea agreement is insufficient in the absence of government allocution prior to sentencing, see United States v. Myers, 32 F.3d 411, 413 (9th Cir.1994) (per curiam), this court declined to follow Myers, citing it as contrary authority in Smith. Smith, 140 F.3d at 1327. HENRY, Circuit Judge, dissenting. In my view, the plea agreement at issue here required the government, at the sentencing hearing, to recommend that the court sentence Mr. Thomas at the low end of the applicable guideline range. By failing to make this recommendation at the time of sentencing, the government materially breached the plea agreement. I would therefore remand the case to the district court for re-sentencing and direct the government to make the required recommendation. My conclusion is based on a reading of United States v. Smith, 140 F.3d 1325 (10th Cir.1998), that differs from the majority’s, and on the application of standard principles of contract interpretation. Smith Unlike" } ]

[ { "docid": "15933159", "title": "", "text": "it is factor that, would warrant that sentence .... App. at 78-80 (emphases added). The plea agreement provided that each side retained the right to allocute at sentencing. This is the essence of the government’s allocution on this issue before the District Court at sentencing. The government, having recommended a sentence at the high end of the guideline range, offered reasons in support of that recommendation. It happened that those reasons, as the government noted, also warranted an upward departure, but the government explicitly stated that it was recommending a sentence within the applicable guideline range. This was consistent with the agreement. Nothing in the plea agreement suggests or states that the government may not make the statements it did. Queensborough emphasizes the decision of the First Circuit in United States v. Canada, 960 F.2d 263 (1st Cir.1992), where the court stated that the government is prohibited not only from an “explicit repudiation of the government’s assurances, but [the agreement] must in the interests of fairness be read to forbid end-runs around them.” Id. at 269 (citation and quotations omitted). We agree with the principle, but we do not agree with Queensborough that the prosecutor made an “end run” around the agreement in this case. Although the prosecutor made a misstatement, see note 4 supra, the District Court was aware of both the plea agreement and the PSR, and there is no likelihood that it was influenced as a result. Nor do we think that the prosecutor’s remarks concerning the savageness of Queensborough’s conduct constituted a breach of the plea agreement. The prosecutor’s statement, quoted above supra, was made in response to defense counsel’s argument that Queensborough should be sentenced to 121 months, the low end of the guideline range. In support of this argument, defense counsel referred, inter alia, to the sentence given a defendant named Caswell Fredericks in another rape case. Fredericks had pled guilty to four aggravated rapes, and Queensborough’s counsel, in attempting to analogize to the Fredericks situation, emphasized that Fredericks had “also received the ten year minimum mandatory, and the five years on the gun...." }, { "docid": "22464412", "title": "", "text": "plea of guilty can truly be said to be voluntary only when “the bargain represented by the plea agreement is not frustrated.” United States v. Jureidini, 846 F.2d 964, 965-66 (4th Cir.1988). Because a government that lives up to its commitments is the essence of liberty under law, the harm generated by allowing the government to forego its plea bargain obligations is one which cannot be tolerated. III. Peglera maintains that the government breached the plea agreement by failing to recommend a sentence at the low end of the guideline range. Peglera points to a provision in the plea agreement stating that “[t]he Government agrees ... to recommend a sentence at the low end of the guideline range.” Given the express inclusion of this term in the plea agreement, there would seem to be little question that the government’s arguments at sentencing constituted a breach. When faced with the district court’s recognition of the term cited above, the government first responded by denying its existence. Now that the provision’s inclusion in the agreement has been acknowledged, the government presents two arguments as to why resentencing is not required. First, the government contends that since the district court was already well aware of the plea bargain, the government’s failure to recommend a sentence at the low end of the guideline range had no effect on the ultimate middle-range sentence. This argument is without merit. In Santobello, the Supreme Court remanded the case for resentencing even though the sentencing judge stated that he was not influenced by the prosecutor’s violation of the plea bargain. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Courts have held that resentencing is required under Santobello regardless of the judge’s awareness of the government’s “real” position as indicated in the plea agreement. See, e.g., United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir.1990). Accordingly, the district court’s understanding of the plea agreement’s actual terms will not excuse the government’s failure to live up to its end of the bargain. Second, the government contends that Peglera’s perjured testimony at the sentencing hearing relieves it of" }, { "docid": "15231651", "title": "", "text": "it has been found that [t]he Government’s failure to argue the terms of [the plea agreement] to the district court at the sentencing hearing constituted a breach of the plea agreement. And because violations of the plea agreements on the part of the government serve not only to violate the constitutional rights of the defendant, but directly involve the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government, we hold that the Government’s breach constituted plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (citation and internal quotation marks omitted); see also United States v. Myers, 32 F.3d 411, 413 (9th Cir.1994) (“It was insufficient that the court, by reading the presentence report and the plea agreement, was aware that the government had agreed to recommend a sentence at the low end of the guideline range. The harmless error rule does not apply to the law of contractual plea agreements.”). Indeed, several circuits have gone so far as to hold that a de novo standard is used when reviewing a defendant’s claim that the government breached the plea agreement regardless of whether the defendant objected to the alleged breach at sentencing. See United States v. Lawlor, 168 F.3d 633, 636 (2d Cir.1999) (holding that the defendant was not required to object to violations of the plea agreement at sentencing and that failure to do so neither waived the defendant’s right to appeal nor required the court to conduct a plain error review); United States v. Courtois, 131 F.3d 937, 938 & n. 2 (10th Cir.1997) (same); United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989) (same). Accordingly, where this Court has opined in binding precedent that the fact that a sentencing court may have implied that it would not have accepted a certain recommendation made by the government in a plea agreement, and the fact that the district court may have read and had the plea agreement before it, are insufficient reasons to find that the government upheld its part of" }, { "docid": "12844812", "title": "", "text": "Rock Creek District is a recognized governing authority of the Standing Rock Sioux Tribe-a sovereign entity under federal law. Act of Mar. 2, 1889, ch. 405, § 3, 25 Stat. 888, 889 (codified as amended 25 U.S.C. §§ 476, 477). As such, it is a “body of persons that constitutes the governing authority of’ the Standing Rock Sioux Tribe and is a “governmental entity” under § 5K2.7 of the Guidelines. Thus, for the foregoing reason, we conclude that an upward departure was warranted in this case. III. Arehambault also argues that the Government breached its plea agreement because it failed to object to the district court’s upward departure. Arehambault’s plea agreement stated that the United States Attorney’s Office would “recommend that the Court consider imposing a sentence of imprisonment at the lower end of the appropriate guideline range.” Yet, at sentencing, the Assistant United States Attorney did not bring the agreed recommendation to the attention of the District Court Judge. However, we have previously rejected Archambault’s argument. United States v. Cohen, 60 F.3d 460, 462 (8th Cir.1995). In Cohen, we were faced with nearly the same situation. There, the Government stated that it had “no specific recommendation as to [the defendant’s] sentence,” despite promising in its plea agreement that it would recommend a sentence at the low end of the Guidelines range. Id. Nevertheless, we reasoned that because Cohen’s defense counsel neither objected, nor questioned the Government’s silence at any time during the sentencing, Cohen failed to preserve his objection for appeal. Id. Likewise in this case, the Government did not recommend that Arehambault be sentenced at the low end of the Guidelines range. Also similarly, Arehambault, like Cohen, failed to raise an objection or otherwise comment on the Government’s silence. As we noted in Cohen, Archam-bault could have done any number of things to preserve the objection: [He] could have raised an immediate objection to the statement, thereby requiring the prosecutor to make the specific recommendation it had promised. Second, he could have asked for a continuance for the purpose of recalling the Assistant United States Attorney who had" }, { "docid": "22220483", "title": "", "text": "The Seventh Circuit has expressed doubt as to whether a defendant’s self-serving, post-conviction testimony regarding his in tent with respect to a plea offer would be sufficient, by itself, to establish a “reasonable probability” that he or she would have accepted the plea agreement. See Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.1986). As a result, the Seventh Circuit requires some further “objective evidence” that a petitioner would have accepted a plea offer. See Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.1991); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir.1991) (finding awareness of plea offer and after-the-fact testimony concerning desire to plead is insufficient evidence). This “objective evidence” rule is consistent with our holding in Boria. See 99 F.3d at 497. Aware of the “objective evidence” precedent, the district court rejected the Government’s argument because “[t]he fact that there is a great disparity between the actual maximum sentencing exposure under the Sentencing Guidelines and the sentence exposure represented by defendant’s attorney provides sufficient objective evidence to establish a reasonable probability that the outcome of the proceedings would differ.” We agree with the district court that such a disparity provides sufficient objective evidence — when combined with a petitioner’s statement concerning his intentions — to support a finding of prejudice under Strickland. Accordingly, we affirm the district court’s determination that Gordon satisfied the two prongs of the Strickland test for ineffective assistance of counsel and is therefore entitled to habeas relief. 3. Habeas Remedy Finally, the Government argues that the even “if it is determined that a Sixth Amendment violation occurred, the appropriate remedy is resentencing rather than vacatur of the underlying convictions.” The Government contends that “[a] sentence should be imposed consistent with the limited plea discussion between the parties, which consisted of a recommendation by the government that the low end of the applicable guideline range be imposed. This range, after taking into account the two level reduction for acceptance of responsibility, is 168 to 210 months.” Accordingly, the Government requests that we order Gordon to be resen-tenced to 168 months’" }, { "docid": "15441134", "title": "", "text": "Doc. 69 at 6. During the change of plea hearing, the district court carefully reviewed the agreement with Mr, Thomas, expressly reminding him that “[t]he government will also recommend that you be sentenced at the low end of the applicable Guideline range.” IV R. at 10. At the conclusion of the hearing, Mr. Thomas signed the plea agreement and the court accepted his guilty plea. At sentencing on August 23, 2001, Mr. Thomas spoke for over 55 minutes to announce a range of objections to the Pre-sentence Report (“PSR”), his treatment in confinement and other issues not relevant here. V R. at 31. The PSR expressly noted that “the government also agreed ... to recommend [Mr. Thomas] be sentenced at the low end of the applicable guideline range.” VI R. at 2. During the hearing, the district court indicated that it had read Mr. Thomas’ PSR “about 3 times.” V R. at 30. Mr. Thomas twice expressed his agreement with the PSR’s conclusion regarding the appropriate sentencing range of 18 to 24 months: “the 18 to 24 I’m not going to dispute that,” V R. at 29, and “I agree with the 18 to 24 months.” Id. at 41. During the sentencing hearing, (1) the government did not verbalize its recommendation that Mr. Thomas be sentenced at the low end of the range, (2) Mr. Thomas did not object to the government’s failure to do so, and (3) the court itself made no specific reference to the sentencing recommendation. Mr. Thomas received a sentence of 24 months imprisonment, the highest permitted under the guideline range. Id. Discussion A claim that the government has breached a plea agreement is a question of law we review de novo, even where, as here, the defendant failed to object at the time of the alleged breach. United States v. Peterson, 225 F.3d 1167, 1170 (10th Cir.2000); see also id. .at n. 2 (noting the circuit split on whether to apply a plain error analysis, as do a majority of circuits, or de novo review). Government promises in a plea agreement must be fulfilled to" }, { "docid": "17664421", "title": "", "text": "THE COURT: You may. (Mr. Stickman and Mr. Kokrda confer in low tones) MR. KOKRDA: Your Honor, the government has — has no specific recommendation as to sentence. It has no objection to the defendant being sentenced at the low end of the guideline range. [The prosecutor then went on to discuss the matter of restitution and fine.] At the conclusion of the prosecutor’s statement, defense counsel voiced no objection or question. Likewise, after the court had pronounced sentence and inquired of defense counsel whether he had any reason why sentence should not be imposed as pronounced by the court, defense counsel voiced no question, objection, or complaint regarding the prosecutor’s statement quoted above. It was not until he filed a memorandum in support of his motion for release on bail pending appeal that Cohen alleged that the government had failed to honor its agreement to recommend a sentence at the low end of the guideline range. Putting aside the government’s argument that it substantially complied with the terms of the plea agreement, we conclude that Cohen waived any objection to the government’s failure to make the recommendation it had provided. As we see it, Cohen could have taken several steps in response to the prosecutor’s statement that the government had no specific recommendation regarding the sentence. First, he could have raised an immediate objection to the statement, thereby requiring the prosecutor to make the specific recommendation it had promised. Second, he could have asked for a continuance for the purpose of recalling the Assistant United States Attorney who had made the promise. Third, he could have restated the terms of the agreement in open court. Fourth, he could have moved to withdraw the plea. Having elected to take none of these actions, he cannot now raise an eleventh-hour attack on the validity of his plea. See United States v. Beatty, 9 F.3d 686, 691-92 (8th Cir.1993). It would be unfair to permit Cohen to sit idly by at the time of sentencing, when by exercising any one of the courses of action open to him he could have obtained" }, { "docid": "16837979", "title": "", "text": "district court asked the government whether it had any comment. Id. The government pointed out in response that the defendant had frequently run from law enforcement, resisted arrest, and skipped court dates. See id. We rejected the government’s argument that its comments served the legitimate purpose of responding to the court’s question or correcting factual misstatements by opposing counsel. See id. at 980. Because the “prosecutor’s comments did not provide the district judge with any new information or correct any factual inaccuracies,” but simply repeated information already contained in the PSR, we concluded that “the comments could have been made for only one purpose: to influence the district court to impose a harsher sentence.” Id. By implicitly making a sentencing recommendation, the government breached the plea agreement. Id. In Whitney, the government promised the defendant it would recommend a sentence at the low end of the applicable Guidelines range. See Whitney, 673 F.3d at 968. After defense counsel stated that the defendant was merely a nonviolent thief, and “not a good thief,” the government responded to “rebut[j” the claim, arguing that the defendant was in fact a “good thief.” Id. at 969-70. As in Mon-dragon, the prosecutor’s comments provided no new factual information to the district court. See id. at 971. We rejected as “disingenuous” the government’s argument that it was compelled to provide an argument to “justify even its low-end guideline sentence recommendation.” Id. at 971-72. The district court had given no indication that it was considering imposing a sentence lower than the government’s recommendation; the defendant could not have requested a below-Guidelines sentence under the terms of the plea agreement; and the probation office recommended a sentence more than double the low end of the Guidelines range. See id. at 972. We therefore concluded that the prosecutor’s critical comments “could only have been intended” to persuade the district court to impose a higher sentence than the government had promised to recommend, “and not to guard against an unsolicited downward departure.” Id. Here, the parties agreed to recommend that Morales receive a prison term equal to the low end" }, { "docid": "22956832", "title": "", "text": "to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C.A. § 3553(f)(1)-(5); U.S.S.G. § 5C1.2(1)-(5). It is undisputed that Bel-tran-Ortiz satisfied the first four of these requirements. Thus, the only question concerning his entitlement to sentencing under the safety valve provision was whether he had satisfied the final requirement that he truthfully disclose all of the information and evidence he had to the Government. During the sentencing hearing, defense counsel notified the court that the Government had failed to debrief Beltran-Ortiz as contemplated by the plea agreement. In response to questions by the district court to counsel for the Government concerning the plea agreement, the Assistant United States Attorney acknowledged that the Government had agreed to debrief Beltran-Ortiz, but that it had not done so. Recognizing this failure, the Government proposed to recommend that in any event Beltran-Ortiz be sentenced at the low end of whatever guideline range the court determined to be applicable. The district court then questioned whether, in light of the Government’s position, Beltran-Ortiz desired to pursue the matter further. Although defense counsel initially responded that he did not, counsel quickly explained that no further pursuit of the issue was necessary if the Government intended to recommend a sentence of 108 months imprisonment — the low end of the guideline range when the safety valve provision was applied. The Government, however, opposed application of the safety valve provision, cataloging its efforts to verify the information Bel-tranOrtiz had provided in his proffer letter and representing that despite its attempts, “at this point we cannot verify his truthfulness.” J.A. 30. The district court refused to apply the safety valve provision. Although noting that Beltran-Ortiz may well have been telling the truth, and specifically declining to" }, { "docid": "15441137", "title": "", "text": "at the low end of the guidelines. Our holding in United States v. Smith, 140 F.3d 1325 (10th Cir.1998), controls our analysis of this provision. In Smith, we held that “the term ‘recommendation’ in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments in the defendant’s sentence if the recommendations are contained in the PSR and the prosecutor does not allocute against an agreed-upon adjustment.” 140 F.3d at 1327. We noted that “[defendants should be advised that when there is no specific statement in a plea agreement that the government must allocute in favor of its recommendation(s) at a sentencing hearing, the government can satisfy the term ‘recommendation’ by having its recommendations included in the PSR, which is then called to the attention of the sentencing court.” Id. In this case, the government agreed in the plea agreement to recommend that Mr. Thomas be sentenced at the low end of the guideline range. The sentencing judge was aware of this recommendation, having advised Mr. Thomas of it during the change of plea hearing. Furthermore, the recommendation was included in the PSR, which the sentencing judge reviewed immediately prior to sentencing. The plea agreement contained no specific language requiring the government to allocute at sentencing and the government did not allocute against the recommendation. In light of Smith, the legal implications of the government’s promise are clear. Mr. Thomas’ reasonable expectations concerning the government’s promise were fulfilled. His failure to object at sentencing is but further evidence that his expectations of the government were satisfied. As we noted in Smith, the sentencing judge may exercise his discretion at sentencing to ignore the government’s recommendation without transforming the prosecutor’s silence into a breach of the plea agreement. 140 F.3d at 1327. Contrary to the dissent, we will not presume that an experienced district judge sentenced Mr. Thomas without awareness of the plea agreement, particularly when the terms of that agreement were contained in the PSR. No matter how much we deconstruct its language, Smith still controls this case; “would recommend” as used in Smith, 140 F.3d" }, { "docid": "22956833", "title": "", "text": "the Government had agreed to debrief Beltran-Ortiz, but that it had not done so. Recognizing this failure, the Government proposed to recommend that in any event Beltran-Ortiz be sentenced at the low end of whatever guideline range the court determined to be applicable. The district court then questioned whether, in light of the Government’s position, Beltran-Ortiz desired to pursue the matter further. Although defense counsel initially responded that he did not, counsel quickly explained that no further pursuit of the issue was necessary if the Government intended to recommend a sentence of 108 months imprisonment — the low end of the guideline range when the safety valve provision was applied. The Government, however, opposed application of the safety valve provision, cataloging its efforts to verify the information Bel-tranOrtiz had provided in his proffer letter and representing that despite its attempts, “at this point we cannot verify his truthfulness.” J.A. 30. The district court refused to apply the safety valve provision. Although noting that Beltran-Ortiz may well have been telling the truth, and specifically declining to find that he was not, the court reasoned that it “simply [could not] find enough evidence to support a finding that it [was] the truth.” J.A. 39. Upon ruling that the safety valve provision did not apply, the district court imposed a sentence of 120 months imprisonment. From this sentence Beltran-Ortiz appeals, claiming that the Government breached its plea agreement by failing to debrief him and in failing to recommend a sentence of 108 months, the low end of the guideline range that would have resulted from application of the safety valve provision. II. Beltran-Ortiz first contends that his sentence must be vacated and a remand must be ordered because the Government agreed in the plea agreement to debrief him and it failed to do so. The Government con cedes before this court, as it did before the district court, that the plea agreement contemplated that it would debrief Beltran-Ortiz, but it argues that the benefit for which BeltranOrtiz bargained in the plea agreement was a recommendation for a sentence at the low end of" }, { "docid": "22655449", "title": "", "text": "to grant the reduction, he would not do so. “[I]t’s so rare [as] to be unknown around here where one has committed a crime subsequent to the crime for which they appear before the court and for them even then to get the three points.” Id., at 80a-81a. He agreed, however, to follow the recommendation that the Government made, pursuant to its commitment in the plea agreement, that Puckett be sentenced at the low end of the applicable Guidelines range, which turned out to be 262 months in prison for the armed bank robbery and a mandatory minimum consecutive term of 84 months for the firearm crime. Had the District Court granted the three- level reduction for acceptance of responsibility, the bottom of the Guidelines range would have been 188 months for the robbery; the firearm sentence would not have been affected. Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises. On appeal to the United States Court of Appeals for the Fifth Circuit, Puckett did argue, inter alia, that the Government violated the plea agreement at sentencing. The Government conceded that by objecting to the reduction for acceptance of responsibility, it had violated the obligation set forth in paragraph 8 of the agreement, but maintained that Puckett had forfeited this claim by failing to raise it in the District Court. The Court of Appeals agreed, and applied the plain-error standard that Rule 52(b) makes applicable to unpreserved claims of error. 505 F. 3d 377, 384 (2007). It held that although error had occurred and was obvious, Puckett had not satisfied the third prong of the plain-error analysis by demonstrating that the error affected his substantial rights, i. e., caused him prejudice. Id., at 386. Especially in light of the District Judge’s statement that granting a reduction when the" }, { "docid": "15441136", "title": "", "text": "maintain the integrity of the plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We apply a two-step analysis to determine if the government breached a plea agreement: (1) we examine the nature of the government’s promise; and (2) we evaluate this promise in light of the defendant’s reasonable understanding of the promise at the time the guilty plea was entered. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir.1998). Principles of general contract law guide our analysis of the government’s obligations under the agreement. Thus, in assessing whether the government has breached the agreement, we look first to the express terms of the agreement, and if applicable, we construe any ambiguities against the government as the drafter of the agreement. Id. The plea agreement contained the following language: “The government will recommend that [Mr. Thomas] be sentenced at the low end of the applicable guideline range.” I R. Doc. 69 at 6. Mr. Thomas contends that this required the government to allocute in favor of sentencing at the low end of the guidelines. Our holding in United States v. Smith, 140 F.3d 1325 (10th Cir.1998), controls our analysis of this provision. In Smith, we held that “the term ‘recommendation’ in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments in the defendant’s sentence if the recommendations are contained in the PSR and the prosecutor does not allocute against an agreed-upon adjustment.” 140 F.3d at 1327. We noted that “[defendants should be advised that when there is no specific statement in a plea agreement that the government must allocute in favor of its recommendation(s) at a sentencing hearing, the government can satisfy the term ‘recommendation’ by having its recommendations included in the PSR, which is then called to the attention of the sentencing court.” Id. In this case, the government agreed in the plea agreement to recommend that Mr. Thomas be sentenced at the low end of the guideline range. The sentencing judge was aware of this recommendation, having advised Mr. Thomas of it during the" }, { "docid": "15441135", "title": "", "text": "to 24 I’m not going to dispute that,” V R. at 29, and “I agree with the 18 to 24 months.” Id. at 41. During the sentencing hearing, (1) the government did not verbalize its recommendation that Mr. Thomas be sentenced at the low end of the range, (2) Mr. Thomas did not object to the government’s failure to do so, and (3) the court itself made no specific reference to the sentencing recommendation. Mr. Thomas received a sentence of 24 months imprisonment, the highest permitted under the guideline range. Id. Discussion A claim that the government has breached a plea agreement is a question of law we review de novo, even where, as here, the defendant failed to object at the time of the alleged breach. United States v. Peterson, 225 F.3d 1167, 1170 (10th Cir.2000); see also id. .at n. 2 (noting the circuit split on whether to apply a plain error analysis, as do a majority of circuits, or de novo review). Government promises in a plea agreement must be fulfilled to maintain the integrity of the plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We apply a two-step analysis to determine if the government breached a plea agreement: (1) we examine the nature of the government’s promise; and (2) we evaluate this promise in light of the defendant’s reasonable understanding of the promise at the time the guilty plea was entered. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir.1998). Principles of general contract law guide our analysis of the government’s obligations under the agreement. Thus, in assessing whether the government has breached the agreement, we look first to the express terms of the agreement, and if applicable, we construe any ambiguities against the government as the drafter of the agreement. Id. The plea agreement contained the following language: “The government will recommend that [Mr. Thomas] be sentenced at the low end of the applicable guideline range.” I R. Doc. 69 at 6. Mr. Thomas contends that this required the government to allocute in favor of sentencing" }, { "docid": "16837978", "title": "", "text": "agrees to recommend a sentence at the low end of the applicable Guidelines range, but then makes inflammatory comments about the defendant’s past offenses that do not “provide the district judge with any new information or correct factual inaccuracies.” Whitney, 673 F.3d at 971 (quoting Mon-dragon, 228 F.3d at 980). B. As the district court observed, we have not previously applied the principles governing the breach of plea agreements to Rule 11(c)(1)(C) agreements. The only logical conclusion, however, is that those principles apply with equal force in this context. Our decisions in Mondragon and Whitney confirm that the government breached its agreement with Morales by denying him the united front for which he bargained. The government’s statements in this case did at least as much to recommend a harsher than agreed-upon sentence as the statements that breached the plea agreements in Mondragon and Whitney. In Mondragon, the government promised the defendant that it would “make no recommendation regarding [the] sentence.” 228 F.3d at 979. After defense counsel characterized the defendant’s previous crimes as “petty,” the district court asked the government whether it had any comment. Id. The government pointed out in response that the defendant had frequently run from law enforcement, resisted arrest, and skipped court dates. See id. We rejected the government’s argument that its comments served the legitimate purpose of responding to the court’s question or correcting factual misstatements by opposing counsel. See id. at 980. Because the “prosecutor’s comments did not provide the district judge with any new information or correct any factual inaccuracies,” but simply repeated information already contained in the PSR, we concluded that “the comments could have been made for only one purpose: to influence the district court to impose a harsher sentence.” Id. By implicitly making a sentencing recommendation, the government breached the plea agreement. Id. In Whitney, the government promised the defendant it would recommend a sentence at the low end of the applicable Guidelines range. See Whitney, 673 F.3d at 968. After defense counsel stated that the defendant was merely a nonviolent thief, and “not a good thief,” the government responded" }, { "docid": "15441149", "title": "", "text": "to the court, that speculation is immaterial to the question of whether the government had an obligation to make the promised recommendation and, whether it fulfilled that obligation. See, e.g., United States v. Roberts, 570 F.2d 999, 1010 (D.C.Cir.1977) (in holding that the government breached the plea agreement at issue, reasoning that although the government was not the sole party at fault, “nevertheless the defendant was denied his right to have the allocution he had been promised put before the court at the time of sentencing as it clearly would have had the prosecutor addressed the court directly or filed a statement ... at the time of sentence”) (internal quotations and citations omitted). Breach The government concedes that the government counsel at the sentencing hearing said literally nothing regarding the recommendation and the government does not point to, nor does the record include, any other verbal or written words in which it actually made the recommendation. Nor does the government argue that it was not required to make the recommendation because Mr. Thomas did not demonstrate his acceptance of responsibility. Instead, the government simply argues by citation to Smith that it satisfied its obligation under the plea agreement by including the me-morialization of the promise in the PSR, which the district court indicated it had reviewed prior to sentencing. This argument is unpersuasive. A promise cannot be fulfilled merely by noting that the promise has been made and then doing nothing else. As I have noted, the plea agreement refers to a promise to commit a future act, stating that the government “will recommend” the designated terms of sentencing. Rec. vol. 1, doc. 69, at 6 (emphasis supplied). The PSR, on which the majority places critical importance in concluding that the government satisfied its obligations under the plea agreement, states only that “[t]he government also agreed to recommend the defendant be given a reduction in the offense level if he demonstrates said acceptance by virtue of his conduct up to and including the time of sentencing and to recommend he be sentenced at the low end of the applicable guideline" }, { "docid": "22464413", "title": "", "text": "acknowledged, the government presents two arguments as to why resentencing is not required. First, the government contends that since the district court was already well aware of the plea bargain, the government’s failure to recommend a sentence at the low end of the guideline range had no effect on the ultimate middle-range sentence. This argument is without merit. In Santobello, the Supreme Court remanded the case for resentencing even though the sentencing judge stated that he was not influenced by the prosecutor’s violation of the plea bargain. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Courts have held that resentencing is required under Santobello regardless of the judge’s awareness of the government’s “real” position as indicated in the plea agreement. See, e.g., United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir.1990). Accordingly, the district court’s understanding of the plea agreement’s actual terms will not excuse the government’s failure to live up to its end of the bargain. Second, the government contends that Peglera’s perjured testimony at the sentencing hearing relieves it of its obligations under the agreement. The government asserts that Peglera’s testimony regarding his lack of knowledge of the conspiracy’s methods was inconsistent with the evidence the government had collected from other cooperating witnesses. In particular, Peglera testified that all of the cocaine he distributed for the conspiracy was in powder form, while other witnesses indicated Peglera’s involvement in the distribution of crack cocaine. The government notes language in the plea agreement stating that it would no longer be bound by the agreement if Peglera gave false testimony or if his conduct constituted a change in the circumstances prior to sentencing. While this argument has considerable force in the abstract, it runs afoul of this particular agreement’s terms. Here the agreement expressly reserved Peglera’s right to argue that “the Schedule II narcotic controlled substance for which he should be held accountable is cocaine hydrochloride [powder cocaine].” Similarly, more than two months before the sentencing hearing, Peglera’s counsel sent a letter to the Assistant United States Attorney stating: As you may recall, my client, Miguel Peglera, has" }, { "docid": "15231663", "title": "", "text": "any comment at this juncture, Barnes did not either. In short, the District Judge knew as early as the change of plea hearing that the Government had agreed to recommend that Barnes be sentenced at the low end of the guideline range. Barnes also knew at the change of plea hearing that the district court was not bound by the Government’s recommendation. Thus, it cannot be said that Barnes’s substantial rights were affected, because the District Judge was fully cognizant of the Government’s non-binding position when she exercised her authority in sentencing Barnes. Barnes has not shown, and cannot show, that the District Judge would have imposed a different sentence, at the low end of the applicable guideline, had the Government openly asserted its recommendation at sentencing. The majority’s attempt to isolate the sentencing hearing process ignores the reality of the interplay between the plea and sentencing process. Cohen v. United States, 593 F.2d 766 (6th Cir.1979), and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) are not controlling because in both of those cases the issue was preserved. See United States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir.1992) (“Santobello ... is predicated upon a defendant’s proper objection to the government’s alleged breach.”) Thus, a plain error analysis, requiring a showing that the plain error affected both the defendant’s substantial rights and the integrity of the judicial proceedings, was not at issue in those cases. For this reason, Teeple v. United States, No. 00-1389, 2001 WL 873644 (6th Cir. July 26, 2001), which involved a plain error analysis, is persuasive authority, even though it is unpublished. See also United States v. Pryor, 957 F.2d 478, 482 (7th Cir.1992) (holding that breach of a plea agreement cannot be raised for the first time on direct appeal). In Teeple, as in this case, the plea agreement provided that the government would make a non-binding recommendation that the defendant’s sentence be imposed within the guideline range. At sentencing, the district court commented on the defendant’s extensive criminal record, especially given his tender age of twenty-two years," }, { "docid": "12844813", "title": "", "text": "(8th Cir.1995). In Cohen, we were faced with nearly the same situation. There, the Government stated that it had “no specific recommendation as to [the defendant’s] sentence,” despite promising in its plea agreement that it would recommend a sentence at the low end of the Guidelines range. Id. Nevertheless, we reasoned that because Cohen’s defense counsel neither objected, nor questioned the Government’s silence at any time during the sentencing, Cohen failed to preserve his objection for appeal. Id. Likewise in this case, the Government did not recommend that Arehambault be sentenced at the low end of the Guidelines range. Also similarly, Arehambault, like Cohen, failed to raise an objection or otherwise comment on the Government’s silence. As we noted in Cohen, Archam-bault could have done any number of things to preserve the objection: [He] could have raised an immediate objection to the statement, thereby requiring the prosecutor to make the specific recommendation it had promised. Second, he could have asked for a continuance for the purpose of recalling the Assistant United States Attorney who had made the promise. Third, he could have restated the terms of the agreement in open court. Fourth, he could have moved to withdraw the plea. Having elected to take none of these actions, he cannot now raise an eleventh-hour attack on the validity of his plea. Id. (citations omitted). As we noted in Cohen, it would be unfair to permit Ar-chambault “to sit idly by at the time of sentencing, when by exercising any one of the courses of action open to him he could have obtained a clarification and correction of the government’s position .... ” Id. Thus, based on the precedent of Cohen, we conclude that Arehambault has waived his right to appeal this issue. IV. Accordingly, we affirm the judgment of the district court. . The Honorable Charles B. Kommann, United States District Judge for the District of South Dakota. . Archambault has waived his third argument-that the district court erred when it failed to allow the defendant an opportunity for allocution at sentencing. Appellant’s Br. at 25-26. . If a district" }, { "docid": "17664420", "title": "", "text": "failing to recommend a sentence at the low end of the guidelines range. In response to the district court’s question at the plea hearing about the details of the plea agreement, the Assistant United States Attorney responded in part, “There’s also one other matter, which is that the government will make a nonbinding recommendation at the time of sentencing that Mr. Cohen be sentenced at the low end of the guideline range.” Towards the end of the sentencing hearing, the Assistant United States Attorney who made the above-quoted statement at the plea hearing was excused from the courtroom to attend a hearing in a different case. Her place was taken by one of her colleagues, whereupon the sentencing hearing continued. Cohen’s counsel concluded his plea for a lenient sentence by saying, “It’s a case where we would ask that you sentence Mr. Cohen to the low end of the guideline range, 24 months, for those reasons.” The record then reveals the following: [By Mr. Stickman]: May I confer with Mr. Kokrda just for a second? THE COURT: You may. (Mr. Stickman and Mr. Kokrda confer in low tones) MR. KOKRDA: Your Honor, the government has — has no specific recommendation as to sentence. It has no objection to the defendant being sentenced at the low end of the guideline range. [The prosecutor then went on to discuss the matter of restitution and fine.] At the conclusion of the prosecutor’s statement, defense counsel voiced no objection or question. Likewise, after the court had pronounced sentence and inquired of defense counsel whether he had any reason why sentence should not be imposed as pronounced by the court, defense counsel voiced no question, objection, or complaint regarding the prosecutor’s statement quoted above. It was not until he filed a memorandum in support of his motion for release on bail pending appeal that Cohen alleged that the government had failed to honor its agreement to recommend a sentence at the low end of the guideline range. Putting aside the government’s argument that it substantially complied with the terms of the plea agreement, we conclude" } ]

[ { "docid": "12296714", "title": "", "text": "California Department of Corrections and the wardens and superintendents of the above-listed institutions. This decision applies only to conditions at San Quentin and Folsom, which were the subject of a trial before the Court beginning November 7, 1983, and ending January 11, 1984. The second phase of trial, pertaining to conditions at DVI-Tracy and Soledad, is presently scheduled to commence in November, 1984. Segregated units at these two prisons will continue to.be subject to the preliminary injunction entered January 14, 1983. . See Wright v. Enomoto, 462 F.Supp. 397, 399, 404 (N.D.Cal.1976), aff'd, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978); Toussaint v. Rushen, 553 F.Supp. 1365 (N.D.Cal.1983). . Such indicia include, for example, history, the provisions of law enacted by state legislature, expert opinions and professional standards. See, e.g., Rhodes, 452 U.S. at 346-47, 101 S.Ct. at 2399-2400; Estelle v. Gamble, 429 U.S. 97, 103-04 & n. 8, 97 S.Ct. 285, 290-91, & n. 8, 50 L.Ed.2d 251 (1976); Toussaint v. Yockey, 722 F.2d at 1495. . As of April 6, 1982, at least 1000 segregated inmates were housed in five-tier cell blocks at San Quentin. See Exhibit 56. About 64 were housed in another unit, the Adjustment Center. Likewise, at Folsom the great majority of segregated inmates are housed in the five-tier SHU II. . The official definition of plaintiffs’ class is set forth in the Order Determining that Action is Maintainable as a Class Action, entered February 25, 1976. Plaintiffs include all inmates housed in \"any of the maximum security, minimum privilege, segregated housing units in San Quentin Prison, Folsom Prison, the Correctional Training Facility ('Soledad'), and the Deuel Vocational Institute ('DVI').” The most significant aspect of this definition is the term “segregated housing.” The meaning of this concept is discussed in text below. . See generally 15 Cal.Admin.Code § 3375(b) (1981). . As a result of the preliminary injunction entered by this Court on January 14, 1983, there is now no double-celling in segregated units of either prison. However, the record contains ample evidence, including the testimony of inmates formerly double-celled in lockup, to" } ]

[ { "docid": "23598518", "title": "", "text": "double celling at the State Prison at Pontiac, Illinois in Smith v. Fairman, 690 F.2d 122 (1982), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). Pontiac’s double cells ranged in size from 55 to 65 square feet, giving prisoners there 20 to 35 per cent more space than their Pendleton counterparts. Most of the cells at the Pontiac facility were “neat and clean” and much of the crowding in prisoners’ cells was due to the inmates’ books, records, stereos and electronic equipment. Food at Pontiac was found to be nutritious and wholesome. Violence had dramatically declined and medical care was found adequate. While these institutions passed constitutional muster, the Rhodes court noted that prison conditions could be cruel and unusual when they “deprive inmates of the minimal civilized measure of life’s necessities,” 452 U.S. at 347, 101 S.Ct. at 2399, or when they result in punishments that “ ‘involve the unnecessary and wanton infliction of pain’ or are grossly disproportionate to the severity of the crime.” Id. at 346, 101 S.Ct. at 2399 (citations omitted). In this circuit, we determine whether there have been “serious deprivations of basic human needs,” id. at 347,101 S.Ct. at 2399, by examining the “totality of conditions of confinement.” Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981). In this light, the picture painted of Pendleton is very different from that seen in Smith or Rhodes, from the lack of space and furnishings, to the unwholesome food, medical neglect and continuous threats to prisoners’ safety. We agree that such conditions constitute cruel and unusual punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (injunction upheld against double celling where it “engender[s] violence, tension and psychological problems”); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (overcrowding can violate eighth amendment). On appeal, defendants contend that even if the conditions were cruel and unusual, the district court’s remedy was too broad. They assert that if the population is reduced, there should be no need to ban double celling. At" }, { "docid": "21848616", "title": "", "text": "modify, is not one of them. In Bell v. Wolfish the Supreme Court upheld double bunking of federal pretrial detainees in cells only slightly larger than those in Division I — 75 square feet — albeit in a modern jail. See 441 U.S. at 526, 541-43, 99 S.Ct. at 1867, 1875-76. In Rhodes v. Chapman the Court upheld double bunking of convicted criminals in state prison cells even smaller (if barely) than those involved in this case — 63 square feet. In Smith v. Fairman, 690 F.2d 122, 124, 126 (7th Cir. 1982), we upheld double bunking, again of convicted criminals in state prisons, in cells of only 56 square feet. See also Union County Jail Inmates v. DiBuono, 713 F.2d 984, 996, 998-1000 (3d Cir.1983). If all this sounds like a reversion to the Dark Ages, remember that these cells are mainly for sleeping; in Cook County Jail, the inmates are required to be in their cells only from 11 p.m. to 6 or 7 a.m., and they can spend the rest of the day watching television or exercising or using the law library or the chapel. The decree itself allows either double bunking (though in larger cells — 100 square feet), or large dormitory rooms with up to 52 inmates in them, in every other division of the jail. A delay in compliance of seven weeks is not “an extended period of time” even for persons detained the entire period, as of course many pretrial detainees will be. Rhodes and Smith upheld double bunking in cells no larger than those in Division I for convicted criminals, who unlike pretrial detainees may be kept in such cells for years, sometimes for many years — though on the other hand they have been convicted, and pretrial detainees have not been. Double bunking could of course violate the Constitution if the cells were much smaller, cf. Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), or if in a particular case the double bunking were shown to cause “violence, tension and psychiatric problems,” as in Toussaint v. Yockey, 722 F.2d 1490," }, { "docid": "23598519", "title": "", "text": "at 2399 (citations omitted). In this circuit, we determine whether there have been “serious deprivations of basic human needs,” id. at 347,101 S.Ct. at 2399, by examining the “totality of conditions of confinement.” Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981). In this light, the picture painted of Pendleton is very different from that seen in Smith or Rhodes, from the lack of space and furnishings, to the unwholesome food, medical neglect and continuous threats to prisoners’ safety. We agree that such conditions constitute cruel and unusual punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (injunction upheld against double celling where it “engender[s] violence, tension and psychological problems”); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (overcrowding can violate eighth amendment). On appeal, defendants contend that even if the conditions were cruel and unusual, the district court’s remedy was too broad. They assert that if the population is reduced, there should be no need to ban double celling. At this time we disagree. The district court has broad powers to forge an adequate remedy to permanently correct any constitutional violation. As the Supreme Court has stated, “once a constitutional violation is demonstrated, the scope of the district court’s equitable powers to remedy past wrongs is broad, for breadth is inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). Here, where there was narrowly cramped double celling as a feature of severely overcrowded, unsafe and unsanitary conditions, we cannot conclude that the district court exceeded its broad remedial power. Under present conditions, a complete ban on double celling is fully justified. However, since double celling is not per se unconstitutional, if the Indiana prison system eliminates the severe overcrowding at Pendleton and the pernicious evils that accompany it, the state can at a later date seek some modification of the ban on double celling. If adequate reasons were shown and overall conditions warrant, such a request would, of course, be entitled to" }, { "docid": "6495742", "title": "", "text": "CANBY, Circuit Judge: Plaintiffs are a class of approximately 2,000 prisoners confined in administrative segregation in four California State Prisons: Deuel Vocational Institution, Folsom Prison, San Quentin Prison, and Soledad Correctional Training Facility. Defendants are the wardens of the four prisons and the California Director of Corrections. Plaintiffs sought relief on two claims. In Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal.1976), aff’d, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978) (“ Wright F), a three-judge panel convened pursuant to 28 U.S.C. § 2281, now repealed, granted relief on the first claim. The court concluded that the due process clause of the fourteenth amendment required certain procedures before a prisoner could be placed in administrative segregation. This appeal involves the second claim for relief, based on the eighth amendment’s prohibition of cruel and unusual punishment. A prior preliminary injunction, issued on November 3, 1980, was vacated by this court in Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) (“Wright II\"). In Wright II we held that the district court erred in relying on a “totality of conditions” approach in analyzing the constitutionality of prison conditions. On remand the district court entered detailed findings of fact and concluded that even when analyzed individually, many of the current conditions in administrative segregation at three of the institutions are probably unconstitutional. Determining that plaintiffs had demonstrated a probability of success on the merits and that the balance of hardships tipped sharply in their favor, the court entered a new preliminary injunction. Defendants challenge the district court’s conclusions on several grounds, each of which will be discussed in turn. We affirm all of the preliminary injunction except the provision relating to food services. I. Double Celling The district court found that prisoners who are confined in administrative segregation live in cells which in general are approximately six feet wide and eight to nine feet long. Each cell is furnished with a bed of some sort, a thin mattress, a pillow, a blanket, a coverless toilet and a sink. Each inmate is supplied a cardboard box in which to keep his personal belongings. Shelf" }, { "docid": "15135847", "title": "", "text": "need for almost 1,800 new prison beds a week); Behind Bars, an ever-expanding crowd of inmates, Phila. Inquirer, May 8, 1989, at 1, col 1 (between 1980 and the end of 1988 nation’s prison population increased 90%). States have been hard pressed to build additional cells to house the hundreds of inmates entering the system and many facilities are overburdened and overcrowded. See, e.g., More and More, Prison Is America’s Answer to Crime, N.Y. Times, Nov. 26, 1989, sec. 4, at 1, col. 1 (California state prisons routinely operate at 175% of capacity); Behind Bars, Phila. Inquirer, May 8, 1989, at 1, col. 1 (forty-two states are under some type of court order to reduce overcrowding; federal prison system housing up to 72% more than designed for; New Jersey state prisons operating at 118% capacity). As a result, inmates are increasingly forced to double-cell. See, e.g., Heath v. De Courcy, 888 F.2d 1105 (6th Cir.1989) (Hamilton County, Ohio jail); Badgley v. SantaCroce, 853 F.2d 50 (2d Cir.1988) (Nassau County, New York Corrections Center); Vosburg v. Solem, 845 F.2d 763 (8th Cir.) (South Dakota State Penitentiary), cert. denied, 488 U.S. 928, 109 S.Ct. 313, 102 L.Ed.2d 332 (1988); Marsh v. Barry, 824 F.2d 1139 (D.C.Cir.1987) (per curiam) (District of Columbia Central Detention Facility). When double-celling was instituted at SCIP in 1982, it was envisioned as a temporary measure. App. at 859 (testimony of Superintendent Petsock). However, at this time, there is no end to the practice in sight. Id. at 861, 875. The district court’s determination that the practice of double-celling at SCIP violates the Eighth Amendment and must be eliminated was made in light of detailed and meticulous findings of fact concerning overcrowding, staff shortages, health care and environmental conditions, including plumbing, ventilation and sanitation. Although we recognize that our recapitulation of the district' court’s findings necessarily entails a repetition of what is already set forth in that court’s reported opinion, we believe an understanding of the salient facts is necessary to the legal analysis we must undertake. II. District Court’s Findings of Fact SCIP, which dates to the late" }, { "docid": "12296653", "title": "", "text": "679 F.2d 1115, 1151 (5th Cir.1982); Capps v. Atiyeh, 559 F.Supp. 894, 907 (D.Ore.1982). However, conditions under which lockup inmates are double-celled at San Quentin and Folsom differ markedly from those prevailing at SOCF when Rhodes was decided. The Supreme Court characterized SOCF as a “topflight, first-class facility,” and noted that “though small, the cells in SOCF are exceptionally modern and functional; they are heated and ventilated and have hot and cold running water and a sanitary toilet.” Rhodes, 452 U.S. at 341, 348 n. 13, 101 S.Ct. at 2396, 2400 n. 13. San Quentin and Folsom are old prisons presenting the “deplorable” and “sordid” conditions the Supreme Court contrasted with those at SOCF. See id. at 352, 101 S.Ct. at 2402; see also Union County Jail Inmates, 713 F.2d at 1001 n. 30. In these prisons, unlike SOCF, double-celling increases violence among inmates and causes intolerable stress and psychiatric problems. Cf. Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400. The constitutional significance of both distinctions was noted by the Ninth Circuit in affirming the double-celling provision of the preliminary injunction. Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir.1984). The Court concludes, based on the virtually unanimous testimony of witnesses at trial, that the double-celling of segregated inmates at San Quentin and Folsom under conditions now prevailing or likely to prevail in the foreseeable future is cruel and inhuman, violating the Eighth Amendment. C. Heating and Ventilation It is clear that adequate heating and ventilation are fundamental attributes of “shelter,” which is a basic Eighth Amendment concern. See Ramos v. Lamm, 639 F.2d 559, 566, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Martino v. Carey, 563 F.Supp. 984, 999 (D.Ore.1983). An institution must therefore provide all inmates, including segregated inmates, with “adequate” heat and ventilation. See Hoptowit, 682 F.2d at 1246; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981); Newman, 559 F.2d at 286; see also Palmigiano v. Garrahy, 443 F.Supp. 956, 961, 979 (D.R.I.1977), aff'd, 616 F.2d 598 (1st Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 115," }, { "docid": "12296654", "title": "", "text": "the double-celling provision of the preliminary injunction. Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir.1984). The Court concludes, based on the virtually unanimous testimony of witnesses at trial, that the double-celling of segregated inmates at San Quentin and Folsom under conditions now prevailing or likely to prevail in the foreseeable future is cruel and inhuman, violating the Eighth Amendment. C. Heating and Ventilation It is clear that adequate heating and ventilation are fundamental attributes of “shelter,” which is a basic Eighth Amendment concern. See Ramos v. Lamm, 639 F.2d 559, 566, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Martino v. Carey, 563 F.Supp. 984, 999 (D.Ore.1983). An institution must therefore provide all inmates, including segregated inmates, with “adequate” heat and ventilation. See Hoptowit, 682 F.2d at 1246; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981); Newman, 559 F.2d at 286; see also Palmigiano v. Garrahy, 443 F.Supp. 956, 961, 979 (D.R.I.1977), aff'd, 616 F.2d 598 (1st Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980). The evidence in this case established that, with the exception of a relative few inmates housed in the San Quentin Adjustment Center and Folsom SHU I, plaintiffs are not provided with either adequate heat or ventilation. This condition violates the Eighth Amendment. D. Plumbing As an aspect of “sanitation,” plumbing is a basic Eighth Amendment concern. See Ramos, 639 F.2d at 566, 568; Martino, 563 F.Supp. at 999. Consequently the plumbing in a facility used to house inmates, including segregated inmates, must be “adequate.” See Hoptowit, 682 F.2d at 1246. The evidence established that the plumbing in most if not all of the units housing lockup inmates at San Quentin and Folsom is grossly inadequate. In fact, the leaking pipes and fixtures, clogged drains, rotting sewer lines, and other plumbing and sewage deficiencies are a major cause of the serious health hazards prevalent in lockup units of the two prisons. These conditions are inconsistent with human decency, and violate the Eighth Amendment. E. Lighting Lighting is an indispensable aspect of adequate" }, { "docid": "15135846", "title": "", "text": "double-celling, while disfavored, is not unconstitutional and that they should not be required to halt the practice. The problem of double-celling is not unique to SCIP, see, e.g., Brooks v. Kleiman, No. 88-5068 (E.D.Pa. July 31, 1989) (double-celling at State Correctional Institution at Graterford, Pennsylvania), aff'd without opinion, 899 F.2d 1216 (3d Cir.1990); Inmates of Allegheny County Jail v. Wecht, 699 F.Supp. 1137 (W.D.Pa.1988) (double-celling at Allegheny County, Pennsylvania jail), appeal dismissed in part, affirmed in part, 874 F.2d 147 (3d Cir.), vacated on other grounds, — U.S. -, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989), on remand, 893 F.2d 33 (3d Cir.1990); Vazquez v. Carver, 729 F.Supp. 1063 (E.D.Pa.1989) (double-celling at Lehigh County, Pennsylvania prison), or, indeed, to the Commonwealth of Pennsylvania. Throughout the nation prison populations are rising at an explosive rate. See, e.g., U.S. Prison Population Sets Record for a Year, in Six Months, N.Y. Times, Sept. 11, 1989, at 18, col. 4 (in first six months of 1989 nation’s prison population rose by 7.3% to total of 673,565 inmates; figures reflect need for almost 1,800 new prison beds a week); Behind Bars, an ever-expanding crowd of inmates, Phila. Inquirer, May 8, 1989, at 1, col 1 (between 1980 and the end of 1988 nation’s prison population increased 90%). States have been hard pressed to build additional cells to house the hundreds of inmates entering the system and many facilities are overburdened and overcrowded. See, e.g., More and More, Prison Is America’s Answer to Crime, N.Y. Times, Nov. 26, 1989, sec. 4, at 1, col. 1 (California state prisons routinely operate at 175% of capacity); Behind Bars, Phila. Inquirer, May 8, 1989, at 1, col. 1 (forty-two states are under some type of court order to reduce overcrowding; federal prison system housing up to 72% more than designed for; New Jersey state prisons operating at 118% capacity). As a result, inmates are increasingly forced to double-cell. See, e.g., Heath v. De Courcy, 888 F.2d 1105 (6th Cir.1989) (Hamilton County, Ohio jail); Badgley v. SantaCroce, 853 F.2d 50 (2d Cir.1988) (Nassau County, New York Corrections Center); Vosburg v." }, { "docid": "22714448", "title": "", "text": "1, supra. Overcrowding and cramped living conditions are particularly pressing problems in many prisons. Out of 82 court orders in effect concerning conditions of confinement in federal and state correctional facilities as of March 31, 1978, 26 involved the issue of overcrowding. 3 American Prisons and Jails 32. Two-thirds of all inmates in federal, state, and local correctional facilities were confined in cells or dormitories providing less than 60 square feet per person — the minimal standard deemed acceptable by the American Public Health Association, the Justice Department, and other authorities. The problems of administering prisons within constitutional standards are indeed “ 'complex and intractable,’ ” ante, at 351, n. 16, quoting Procunier v. Martinez, 416 U. S. 396, 404 (1974), but at their core is a lack of resources allocated to prisons. Confinement of prisoners is unquestionably an expensive proposition: the average direct current expenditure at adult institutions in 1977 was $5,461 per inmate, 3 American Prisons and Jails 115; the average cost of constructing space for an additional prisoner is estimated at $25,000 to' $50,000. Id., at 119. Oftentimes, funding for prisons has been dramatically below that required to comply with basic constitutional standards. For example, to bring the Louisiana prison system into compliance required a supplemental appropriation of $18,431,622 for a single year’s operating expenditures, and of $105,605,000 for capital outlays. Williams v. Edwards, 547 F. 2d 1206, 1219-1221 (CA5 1977) (Exhibit A). Over the last decade, correctional resources, never ample, have lagged behind burgeoning prison populations. In Ruiz v. Estelle, 503 F. Supp. 1265 (SD Tex. 1980), for example, the court stated that an “unprecedented surge” in the number of inmates has “undercut any realistic expectation” of eliminating double and triple celling, despite construction of a new $43 million unit. Id., at 1280-1281. The number of inmates in federal and state correctional facilities has risen 42% since 1975, and last year grew at its fastest rate in three years. Krajick, The Boom Resumes, 7 Corrections Magazine 16-17 (Apr. 1981) (report of annual survey of prison populations). A major infusion of money would be required merely to" }, { "docid": "23009880", "title": "", "text": "that continued double celling in Unit 9 would violate the eighth amendment. The Board claims that the district court’s ordered remedy requires more than is possible, because the new facility for high-risk prisoners such as those presently double celled in Unit 9 is not yet complete. The Board points to its accelerated efforts to provide additional space, and cites May 1989 as the earliest date for completion. We hold that the district judge did not abuse his discretion. The prison was designed to hold 495 prisoners. On January 7, 1987, the prison’s population was 741. Technically, it may be said that the prison is 50% “overcrowded,” but this fact has no constitutional significance standing alone. Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), citing Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (Rhodes). Only when overcrowding is combined with other factors such as violence or inadequate staffing does overcrowding rise to an eighth amendment violation. Hoptowit, 682 F.2d at 1246-49. In Baila I, the district court did not base any of its findings of unconstitutionality on prison overcrowding, although even then there “seemed to be little question but that [the prison] [was] overcrowded.” Baila I, 595 F.Supp. at 1573. The court observed that “overcrowding clearly brings on many problems, including idleness, frustration, stress, discomfort, edginess, and fear____ [and] it is one of the principal causes of the effect of violence, fights, stabbings, and of course, extreme management problems.” Id. However, the court determined “that a real effort [was] being made to alleviate the overcrowding.” Id. As the court later explained in Balia II: In Baila [I], the court did not explicitly find, in terms of numbers of inmates, unconstitutional overcrowding at [the prison]. In fact, this court, based upon [the Board’s] testimony heard in March of 1984, felt the obvious overcrowding at [the prison] would in all likelihood be alleviated by giving the Board of Corrections a little time to develop some of their announced plans____ Thus, the court in its original decision sidestepped the issue of overcrowding for another day. Balla II, 656" }, { "docid": "15135880", "title": "", "text": "688 F.2d 266 (5th Cir.1982) (per curiam), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Johnson v. Levine, 588 F.2d 1378 (4th Cir.1978) (en banc) (affirming order requiring close of section housing mentally ill patients). But see Inmates of Occoquan, 844 F.2d 828 (reversing imposition of population cap); Cody, 830 F.2d 912 (en banc) (reversing prohibition on double-cell-ing). Defendants suggest that the district court order unduly interferes with the state’s administration of its prison system because the end of double-celling in North and South Blocks “requires an immediate reduction in population there; this, in turn, requires that they be absorbed by a statewide system which is already thirty-seven percent over capacity and which receives two hundred twenty five inmates a month more than it releases. The district court’s double celling order in this case appropriates the department.” Appellants’ Brief at 20. Although defendants protest that they will have to transfer SCIP inmates to other state prisons in order to comply with the order, that is not necessarily the only option. The district court clearly suggested that inmates who have been double-celled could be housed in the vacant cells in North Block and Block A, stating: Prompt action is necessary to relieve the egregious conditions imposed on inmates by double-celling. With sufficient staff, more cells can be utilized. Defendants will have to take immediate steps to eliminate double-celling in the North and South Blocks by hiring sufficient addi tional corrections officers to staff the now vacant tiers. 719 F.Supp. at 1274. Thus, defendants had at hand the option of hiring more guards so that the empty tiers could be used rather than transferring inmates to other institutions. Defendants have not contended that they should not be required to hire additional staff, that the vacant cells at the time of the district court’s order were not sufficiently numerous, or that requiring them to fill those cells is too intrusive a remedy. It appears from the record that, given the current SCIP population, there were sufficient empty cells to permit the end of double-celling without transferring any inmates from" }, { "docid": "21848617", "title": "", "text": "day watching television or exercising or using the law library or the chapel. The decree itself allows either double bunking (though in larger cells — 100 square feet), or large dormitory rooms with up to 52 inmates in them, in every other division of the jail. A delay in compliance of seven weeks is not “an extended period of time” even for persons detained the entire period, as of course many pretrial detainees will be. Rhodes and Smith upheld double bunking in cells no larger than those in Division I for convicted criminals, who unlike pretrial detainees may be kept in such cells for years, sometimes for many years — though on the other hand they have been convicted, and pretrial detainees have not been. Double bunking could of course violate the Constitution if the cells were much smaller, cf. Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), or if in a particular case the double bunking were shown to cause “violence, tension and psychiatric problems,” as in Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), but there is no suggestion of that here. Granted, a party often gives up more in a consent decree than it is legally obligated to give up, usually in exchange for something; so the fact that the County was not legally obligated to abandon double bunking in Division I of the Cook County Jail by no means deprives the inmates of a legitimate interest in the continued observance of that párt of the decree. To place this interest in perspective, however, it should be noted that the current crop of pretrial detainees was not in the jail when the decree was signed in 1982. It is only by treating the class in this class action as if it were a single person and the County too as if it were a single person and ignoring the effects of the decree on nonparties — the law-abiding population of Cook County— that it becomes possible to fit the decree into the familiar framework of contract law and insist that it be enforced to the" }, { "docid": "2605008", "title": "", "text": "U.S. 337, 348, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), the Supreme Court held that allegations of overcrowding must be tested by an examination of the effects of overcrowding on the totality of prison conditions, including among other factors the adequacy of food, sanitation, medical care, and the quality of the physical facility. Yet, overcrowding may be the root cause of deficiencies in other areas of prison life. Fischer v. Winter, 564 F.Supp. 281, 298 (N.D.Cal.1983). Indeed, a number of recent cases have found constitutional violations which in large part were the product of overcrowding. See, e.g., Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.1984); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Monmouth County Correctional Institution Inmates v. Lanzaro, 595 F.Supp. 1417 (D.N.J.1984); Benjamin v. Malcolm, 564 F.Supp. 668 (S.D.N.Y.1983). The decision in the instant case is not based solely on the overcrowding. The Court has considered the crowding as it affects the factors listed in Rhodes. The Sedgwick County Jail was designed to house 135 inmates when it was built in the 1950s. Under today’s standards, the Kansas Department of Corrections would recommend that this facility house no more than 90 inmates. Yet, in 1986, an average of 239 prisoners were confined in the jail on any given day. In 1985, an average of 225 inmates were in the jail each day. On one dark day in that year, a total of 298 inmates were housed there. Even worse, the county has rated the population capacity of the facility at 327; that is, the county has placed on a permanent basis 327 bunks in the jail facility (13 of which are located in isolation cells) and apparently would have no compunctions about filling every one of them. In Battle v. Anderson, 564 F.2d 388 (10th Cir.1977), the Tenth Circuit Court of Appeals affirmed the district court’s finding of a constitutional violation where the institution was 91% over capacity. The United States District Court for the Northern District of New York issued injunctive relief where a" }, { "docid": "21701366", "title": "", "text": "overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. Id., at 85a. Crowding in these areas runs as high as 300% of design capacity. Id., at 86a. Living conditions are “‘toxic,’” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and provide even rudimentary care. Id., at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with physicals or provid[e] any kind of chronic care follow-up.’ ” Id., at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general population. Some prisoners are held in the reception centers for their entire period of incarceration. Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the California prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” Id., at 83a. The former executive director of the Texas Department of Criminal Justice testified that “‘[e] very thing revolves around overcrowding’ ” and that “ ‘overcrowding is the primary cause of the medical and mental health care viola tions.’” Id., at 127a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ 'overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.'” Ibid. And the current secretary of the Pennsylvania Department of Corrections testified that “ “the biggest inhibiting factor right now in California being able to deliver appropriate mental health and medical care is the severe overcrowding.'” Id., at 82a. 2 The State attempts to undermine the substantial evidence presented at trial, and the three-judge court's findings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison conditions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant" }, { "docid": "21892926", "title": "", "text": "district court’s mandates are probably desirable components of a prison system. Chief Justice Burger has recently urged improvements in prison conditions as part of an overall attack on crime. New York Times, Jan. 9, 1981, p. 11, col. 3- Courts must diligently ensure compliance with constitutional requirements and with statutes designed to improve prison conditions. But courts may not institute reform programs on their own under the guise of correcting cruel and unusual punishment.I. *** The preliminary injunction is vacated and the case is remanded to the district court for further proceedings consistent with this opinion. APPENDIX PRELIMINARY INJUNCTION It is ORDERED, ADJUDGED AND DECREED as follows: Defendants, the Director of the California Department of Corrections, the Wardens and Superintendents of the California State Prison at San Quentin, Deuel Vocational Institution at Tracy, and Correctional Training Facility at Soledad, their agents, servants, employees, successors in office and all persons in active concert or participation with them, are hereby restrained and enjoined from continuing to confine, or causing to be confined, in administrative segregation, any member of the plaintiff class unless they implement fully and within the times prescribed each of the requirements set forth in this Preliminary Injunction. I. Defendants shall take immediate steps to provide the following physical and environmental facilities and/or conditions to all members of the plaintiff class. 1. Each cell used for administrative segregation shall be supplied with a bed and a clean, untorn mattress, two clean blankets, a properly functioning toilet, a properly functioning sink with running water, a surface which the occupant can use for writing while in an uncramped seated position, shelf space, and adequate lighting. 2. No prisoner shall be involuntarily double-celled with another prisoner. 3. Defective or clearly inadequate heating, cooling, ventilating, and plumbing equipment shall be repaired or replaced promptly unless the defect or need for repair results from any deliberate act of the prisoner or prisoners suffering from the defect or inadequacy. 4. Unless caused by a prisoner or prisoners suffering as a consequence of broken windows, they shall be repaired promptly. Temporary covering shall be placed over all" }, { "docid": "15793436", "title": "", "text": "decree regarding double bunking); Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14, 25 (D.Mass.1993) (Keeton, J.) (holding that modification was not yet appropriate), aff'd, 12 F.3d 286 (1st Cir.1993); Palmigi- ano v. DiPrete, 737 F.Supp. 1257, 1262 (D.R.I.1990) (awarding, inter alia, good time credits to inmates to .ensure prompt compliance with prison conditions consent decree regarding overcrowding and numerous other conditions of confinement); Duran v. Anaya, 642 F.Supp. 510, 526-27 (D.N.M.1986) (awarding a preliminary injunction to prevent statewide cuts in corrections staff, as the cuts were likely to lead to “[d]eath, extreme pain, self-mutilation, ... [and] increased rates of physical assault, rape, and other forms of violence”). d. Degrading, Unhealthy, and Unsafe Conditions In addition to overcrowding, courts have in many cases held that unsanitary, dangerous, or otherwise degrading conditions violate the Constitution. The Court discusses several such cases elsewhere in this opinion. See also, e.g., Hutto v. Finney, 437 U.S. 678, 685-88, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (upholding the district court’s order forbidding confinement in punitive isolation cells for over 30 days, because in combination with existing conditions, isolation for longer than that period would constitute cruel and unusual punishment); Russell v. Johnson, No. 1:02-CV-261-JAD, 2003 WL 22208029, at *2-5 (N.D.Miss. May 21, 2003) (holding that numerous conditions in the Mississippi State Penitentiary’s Death Row constituted cruel and unusual punishment, including filth and pest infestation in cells, unregulated temperature, plumbing that frequently resulted in an inmate’s fecal matter bubbling up in another inmate’s cell, poor lighting, foul-smelling laundry, and inadequate mental health services); Knop v. Johnson, 667 F.Supp. 467, 483-84, 496 (W.D.Mich.1987) (holding, inter alia, that forcing inmates “to live in close proximity to their bodily wastes” constituted cruel and unusual punishment); Toussaint v. McCarthy, 597 F.Supp. 1388, 1408-13 (N.D.Cal.1984) (holding that conditions at the California State Prisons at Folsom and San Quentin violated the Constitution in areas including double-celling, heating and ventilation, plumbing, lighting, noise, electrical systems, fire safety, clothing, laundry, bedding, personal hygiene, sanitation, pests, food, exercise, and access to courts), rev’d in part on other grounds, 801 F.2d 1080 (9th Cir.1986); Capps" }, { "docid": "22820030", "title": "", "text": "Court noted that: Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets.... To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists. Id. (emphasis in original) (citations omitted). Thus, to state a claim under the Eighth Amendment, Williams had to demonstrate that the overcrowding, in light of overall prison conditions, deprived him of a specific human need. It is clear that double or triple celling of inmates is not per se unconstitutional. See, e.g., Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400 (double-celling not per se unconstitutional); Hite v. Leeke, 564 F.2d 670, 673-74 (temporary triple-celling not per se unconstitutional). But, overcrowding accompanied by unsanitary and dangerous condi tions can constitute an Eighth Amendment violation, provided an identifiable human need is being deprived. See Wilson, 111 S.Ct. at 2327; Tillery, 907 F.2d at 423; Gillespie, 833 F.2d at 50; French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984). Thus, the task remaining for us is to determine whether Williams’ verified complaint alleged sufficient prison conditions, which in concert amounted to deprivation of a human necessity, thereby rendering the cumulative effect of the prison conditions unconstitutional. It has been Williams’ contention that his verified complaint described unsanitary conditions, which combined with the overcrowding to render his confinement unconstitutional. He has described his cell toilet, shared by twelve inmates, as “constantly coated with urine day and night.” He has contended that only four showers" }, { "docid": "12296601", "title": "", "text": "WEIGEL, Senior District Judge. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION The. following Findings of Fact and Conclusions of Law underlie the Court’s decision on the merits of a class action challenging the legality of conditions of confinement for prisoners held in administrative segregation — hereafter referred to as “segregation” — in the California State Prison at San Quentin (“San Quentin”) and the California State Prison at Folsom (“Folsom”). The lengthy history of the litigation was recounted in some detail, in connection with the preliminary injunction entered in this case on January 14, 1983, see Toussaint v. Rushen, 553 F.Supp. 1365, 1367-69 (N.D.Cal.1983), vacated in part, 722 F.2d 1490 (9th Cir.1984), and need not be repeated here. The preliminary injunction was affirmed by the Ninth Circuit on January 5, 1984, except for one portion dealing with food service, which was vacated because unsupported by specific findings. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.1984). The first phase of trial on the merits commenced in this Court on November 7, 1983. It was limited to conditions at the San Quentin and Folsom prisons largely because of representations made by defendants that segregation at Soledad and Tracy would soon be discontinued. Trial lasted nearly two months. More than 65 witnesses testified. There are well over 1000 trial exhibits. The transcript is 4643 pages long. In addition, the Court, accompanied by counsel for both sides, inspected the premises at San Quentin. The findings and conclusions which follow are based upon the Court’s independent review of all the evidence as well as upon consideration of the findings and conclusions proposed by both sides. As detailed below, the Court finds and concludes that conditions of confinement for segregated inmates at San Quentin and Folsom violate the Eighth and Fourteenth Amendments to the United States Constitution and that relief previously ordered in this case to correct constitutional violations has not been fully effective. The Court accordingly renders a Judgment of Permanent Injunction ordering termination of the unlawful conduct of defendants and providing for the appointment of a Special Master to monitor compliance. The Eighth" }, { "docid": "12296713", "title": "", "text": "a copy of this Permanent Injunction to every employee of the California Department of Corrections at San Quentin and/or Folsom. No person who has notice of this Permanent Injunction shall fail to comply with the letter and spirit hereof nor shall any person subvert the letter or spirit hereof by any sham, indirection, or other artifice. VII The Court retains jurisdiction to modify this Injunction at any time and from time to time on its own motion or upon the motion of any party in the interest of effectuating its intendments or in the interest of furthering the ends of justice under all applicable law. . Plaintiffs are a class, certified February 25, 1976, comprising all prisoners confined in or subject to confinement in administrative segregation in four California state prisons — in addition to San Quentin and Folsom, Deuel Vocational Institute at Tracy (\"DVI-Tracy\"), and the Correctional Training Facility at Soledad (\"Soledad”). See Toussaint v. Rushen, 553 F.Supp. 1365, 1367 & n. 1 (N.D.Cal.1983) (defining term \"administrative segregation”). Defendants are the Director of the California Department of Corrections and the wardens and superintendents of the above-listed institutions. This decision applies only to conditions at San Quentin and Folsom, which were the subject of a trial before the Court beginning November 7, 1983, and ending January 11, 1984. The second phase of trial, pertaining to conditions at DVI-Tracy and Soledad, is presently scheduled to commence in November, 1984. Segregated units at these two prisons will continue to.be subject to the preliminary injunction entered January 14, 1983. . See Wright v. Enomoto, 462 F.Supp. 397, 399, 404 (N.D.Cal.1976), aff'd, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978); Toussaint v. Rushen, 553 F.Supp. 1365 (N.D.Cal.1983). . Such indicia include, for example, history, the provisions of law enacted by state legislature, expert opinions and professional standards. See, e.g., Rhodes, 452 U.S. at 346-47, 101 S.Ct. at 2399-2400; Estelle v. Gamble, 429 U.S. 97, 103-04 & n. 8, 97 S.Ct. 285, 290-91, & n. 8, 50 L.Ed.2d 251 (1976); Toussaint v. Yockey, 722 F.2d at 1495. . As of April 6, 1982," }, { "docid": "23009879", "title": "", "text": "make sure that the remedy protects the plaintiffs' constitutional rights and does not require more of state officials than is necessary to ensure their compliance with the constitution.” Id. at 1089. Here, the Board appeals on this issue only from the denial of its Rule 59(e) motion for reconsideration. Both McCarthy and the only subsequent case to apply its standard, Gary H. v. Hegstrom, 831 F.2d 1430, 1432-33 (9th Cir.1987), involved direct appeals of permanent injunctions. Because of the difference in procedural posture in this case, our review is properly governed by Coastal Transfer. The Board does not contest the holding that unconstitutional conditions will persist if Unit 9 remains double celled. It argues, however, that in light of its compliance with the district court’s injunction elsewhere throughout the prison, it should be allowed to double cell the Unit 9 “close custody” inmates as long as their “basic needs” are met. We assume under the facts of this case that this would fall short of the minimum required by the Constitution, since the Board admits that continued double celling in Unit 9 would violate the eighth amendment. The Board claims that the district court’s ordered remedy requires more than is possible, because the new facility for high-risk prisoners such as those presently double celled in Unit 9 is not yet complete. The Board points to its accelerated efforts to provide additional space, and cites May 1989 as the earliest date for completion. We hold that the district judge did not abuse his discretion. The prison was designed to hold 495 prisoners. On January 7, 1987, the prison’s population was 741. Technically, it may be said that the prison is 50% “overcrowded,” but this fact has no constitutional significance standing alone. Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), citing Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (Rhodes). Only when overcrowding is combined with other factors such as violence or inadequate staffing does overcrowding rise to an eighth amendment violation. Hoptowit, 682 F.2d at 1246-49. In Baila I, the district court did not base" } ]

[ { "docid": "1198871", "title": "", "text": "not refuted by the plaintiff. The court finds that the plaintiff has not established by clear and convincing evidence grounds for denying the debtors’ discharge under 11 U.S.C. § 727(a)(2). 11 U.S.C. § 727(a)(3) provides that the court shall not grant a debtor a discharge if the debtor has concealed, destroyed, or failed to keep or preserve financial records unless such act or failure to act was justified. The plaintiff has not presented any evidence which would justify denying the debtors’ discharge under 11 U.S.C. § 727(a)(3). Under 11 U.S.C. § 727(a)(4)(A), discharge is to be denied if “the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” In order to be denied a discharge under this section, the debtor must have made a statement under oath which he knew to be false, and he must have made the statement willfully, with intent to defraud. Williamson v. Fireman’s Fund Insurance Co., 828 F.2d 249, 251 (4th Cir.1987). The false oath must also have related to a material matter; this requirement is satisfied if the false oath bears a relationship to the debtor’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor’s property. Id. at 251-52 (citing In re Chalik, 748 F.2d 616 (11th Cir.1984)). The purpose of § 727(a)(4)(A) is to insure that debtors provide reliable information to those with an interest in the administration of the debt- or’s estate. In re Ingle, 70 B.R. 979, 983 (Bankr.E.D.N.C.1987). Creditors are entitled to truthful statements in a debtor’s statement of financial affairs so that they may conduct their own investigations of those affairs. Id. A material omission from a debtor’s sworn statement of affairs or schedules presents grounds for denying a discharge under 11 U.S.C. § 727(a)(4)(A). Id. Because debtors are unlikely to acknowledge a fraudulent intent, the court may infer such intent from circumstantial evidence including a pattern of nondisclosure. Williamson, 828 F.2d at 252. A reckless indifference to the truth is sufficient to constitute the requisite fraudulent intent for" } ]

[ { "docid": "4797240", "title": "", "text": "to do so requires the court to deny the debt- or’s discharge under Section 727(a)(5). This court also finds that the debtor’s discharge should be denied pursuant to Section 727(a)(4)(A), which provides: (a) The court shall grant the debtor a discharge, unless— ****** (4) the debtor knowingly and fraudulently, in connection with the case— (A) made a false oath or account; 11 U.S.C. § 727(a)(4)(A). In order to sustain an objection to discharge under this section, it must be established that the debtor made a false oath or account knowingly with the intent to defraud his creditors. See generally, 4 Collier on Bankruptcy ¶ 727.04 at 727-47 (15th ed. 1985). This false oath must relate to a material fact. In re Braidis, 27 B.R. 470, 472 (Bankr.E.D.Pa.1983). The debtor made materially false statements in his omission of his interest in the Lutz Road property on the schedules filed with this court. Further, the debtor failed to list on his schedules, assets owned by him as of the petition date including: (1) household goods, supplies and furnishings, (2) books, (3) wearing apparel, jewelry and other personal possessions, and (4) business equipment. The debtor also failed to reveal the transfer of the paper Mill Road property and Lot 1, Orchard Lane in his statement of affairs. These omissions have directly hindered and delayed the trustee in the administration of this estate. Even after instruction from the trustee to file amended schedules to rectify the omissions, the debtor failed to comply. The debtor’s failure, after such direction, confirms that the aforementioned omissions were intentional on the debtor’s part. The debtor has offered no satisfactory explanation for his actions or lack thereof. Consequently, the debtor’s discharge will be denied pursuant to Section 727(a)(4)(A). In addition, the debtor, under oath, at his Section 341(a) meeting of creditors stated that his schedules were true and correct. Those schedules failed to reveal that the debtor had an interest in the real estate that constituted his principal residence. The debtor’s false statement is a sufficient basis for denial of his discharge. Furthermore, at the trial of this matter" }, { "docid": "7696200", "title": "", "text": "727(a)(4): False Oath or Account In his Complaint, the Trustee also argues that the Court should deny Debtors’ discharge on the grounds that they made a false oath or account. Specifically, the Trustee alleges eleven instances where Debtors failed to answer questions accurately or completely in their Schedules and in their Statement of Financial Affairs. To deny a debtor’s discharge under § 727(a)(4), courts must find, by a preponderance of the evidence, that a debtor made a statement under oath that he or she knew to be false and that the debtor made the statement willfully with the intent to defraud. See Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251 (4th Cir.1987). In addition, the false oath must relate to a material matter. See id. In its Findings of Fact, the Court concluded that there were ten instances where Debtors omitted information or failed to provide accurate information in their Schedules and Statement of Financial Affairs. Without repeating the Findings of Fact in their entirety, the Court notes the following examples of inaccuracies in Debtors’ bankruptcy documents: Debtors failing to disclose Ms. Hooper’s previous married name, Debtors failing to disclose their income over a three year span, and Debtors failing to disclose payments made to Mr. Hartzog approximately one month prior to filing bankruptcy. Accordingly, Debtors provided false information in their Schedules and Statement of Financial Affairs, and their declarations in these documents constitute oaths. See Kaler v. McLaren (In re McLaren), 236 B.R. 882, 894 (Bankr.D.N.D.1999) (“For purposes of [§ 727(a)(4)(A) ], a ‘false oath’ sufficient to merit a denial of discharge includes a misrepresentation or an omission in the debt- or’s bankruptcy Schedules or Statement of Financial Affairs.”); Huntington Center Partners, Ltd. v. Dupree (In the Matter of Dupree), 197 B.R. 928, 937 (Bankr.N.D.Ala.1996) (“For purposes of section 727(a)(4)(A), ‘false oaths’ include false statements or omissions in a debtor’s schedules, false statements made by a debtor during the section 341 meeting of creditors, and false statements at the debt- or’s deposition.”); Peoples Bank of Charles Town v. Colburn (In re Colburn), 145 B.R. 851, 857 (Bankr.E.D.Va.1992)" }, { "docid": "3311203", "title": "", "text": "MEMORANDUM OF DECISION ON § 727 COMPLAINTS ALAN H. W. SHIFF, Chief Judge. The defendant-debtor, Erika Kurtaj, filed this chapter 7 petition on October 11, 2000. On March 12 and 21, 2001, the plaintiffs, chapter 7 trustee Barbara H. Katz and Fidelity National Title Insurance Company of New York, commenced adversary proceedings 01-5065 and 01-5071, respectively, to deny Kurtaj a discharge under 11 U.S.C. § 727. For the following reasons, the debtor’s discharge is denied. False Statement Under Oath — ■ § 727(a)(1) Code § 727(a)(4)(A) provides that “the court shall grant the debtor a discharge, unless ... the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” To deny the debtor’s discharge under this subsection, a plaintiff must prove that the defendant made a statement under oath, which he knew to be false, with the intent to defraud creditors or the trustee, and which related materially to the bankruptcy case. Chemical Bank v. Hecht (In re Hecht), 237 B.R. 7, 9 (Bankr.D.Conn.1999). Statements under oath include statements in documents, such as the bankruptcy schedules and statement of financial affairs, filed with the petition and statements by the debtor during examinations under oath, such as testimony during the meeting of creditors held pursuant to § 341(a). See Montey Corp. v. Maletta (In re Maletta), 159 B.R. 108, 114 (Bankr.D.Conn.1993) (cited in Casa Investments Co. v. Brenes (In re Brenes), 261 B.R. 322, 334 (Bankr. D.Conn.2001)). As this court noted in In re Maletta: a debtor has ... affirmative [duties] to identify all assets [and] liabilities and to answer all questions fully and with the utmost candor. Creditors and those charged with the administration of the bankruptcy estate are entitled to a truthful statement of the debtor’s financial condition. Such complete disclosure is essential to the proper administration of the bankruptcy case and is a prerequisite to the debtor’s ability to obtain a discharge. A statement is considered to have been made with knowledge of its falsity if it was known by the debtor to be false, made without belief in its" }, { "docid": "10060110", "title": "", "text": "materially false oath. Section 727(a)(4)(A) of the Bankruptcy Code provides as follows: (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account 11 U.S.C. § 727(a)(4)(A). The purpose behind this subsection is to enforce a debtor’s duty of disclosure and to ensure that the debtor provides reliable information to those who have an interest in the administration of the estate. Bensenville Community Center Union v. Bailey (In re Bailey), 147 B.R. 157, 163 (Bankr.N.D.Ill.1992) (citations omitted). In order to prevail, the Plaintiffs must establish five elements under § 727(a)(4)(A): (1) the Debtors made a statement under oath; (2) the statement was false; (3) the Debtors knew the statement was false; (4) the Debtors made the statement with the intent to deceive; and (5) the statement related materially to the bankruptcy ease. Bailey, 147 B.R. at 162; MacLeod v. Arcuri (In re Arcuri), 116 B.R. 873, 880 (Bankr.S.D.N.Y.1990). If made with the requisite fraudulent intent, a false statement, whether made in the schedules or orally at a § 341 creditors’ meeting is sufficient grounds for denying a discharge provided it was knowingly made and is material. Armstrong v. Lunday (In re Lunday), 100 B.R. 502, 508 (Bankr.D.N.D.1989). In In re Yonikus, 974 F.2d 901 (7th Cir.1992), the Seventh Circuit held that a debt- or’s failure to list a pre-petition personal injury and workmen’s compensation claim on his schedules constituted grounds for revocation of the debtor’s discharge (the Yonikus trustee sought to revoke debtor’s discharge under 11 U.S.C. § 727(d)(2), the post-discharge equivalent to § 727(a)(4)(A)). In rejecting the debtor’s argument that the workmen’s compensation award was exempt and the personal injury claim was property of his employer and not him, the court stated, “[djebtors have an absolute duty to report whatever interests they hold in property, even if they believe their assets are worthless or are unavailable to the bankruptcy estate.” Id. at 904 (citations omitted). Section 727(a)(4) ensures that debtors will provide reliable information to parties with an interest in" }, { "docid": "13344111", "title": "", "text": "727(a)(4)(A) requires establishing that: (1) the debtor made a statement under oath, (2) such statement was false, (3) the debtor knew the statement was false, (4) the debtor made the statement with fraudulent intent, and (5) the statement related materially to the bankruptcy case. Congress Talcott Corp. v. Sicari (In re Sicari), 187 B.R. 861, 880 (Bankr.S.D.N.Y.1994). Omissions from a debtor’s sworn statement of affairs or schedules provide grounds for denying discharge. Chalik, 748 F.2d at 618. A debtor’s complete disclosure is essential to the proper administration of the bankruptcy estate. In re Evans, 106 B.R. 722, 723 (Bankr.M.D.Fla.1989). This disclosure serves the purpose of providing reliable information to those with an interest in the bankruptcy estate, who are entitled to a truthful statement of the debt- or’s affairs. Defendant’s duty in filing her bankruptcy petition was to list all assets and fully answer the questions set forth in the petition. This duty was performed under oath. Defendant neglected to list her having signatory authority on two bank accounts. Whether or not Defendant had any of her own funds deposited in these bank accounts, omitting them from her schedules constitutes a false oath. Despite making a false oath, the Court finds no evidence that Defendant omitted her interest in the accounts with fraudulent intent. The Court believes Defendant’s statement concerning her use of the accounts. No evidence is in the record pinpointing certain funds in these accounts actually belonging to Defendant. Defendant did not intend to hide these accounts, rather she admitted having signatory authority on both accounts to the Trustee prior to the meeting of creditors. From the evidence presented, the Court finds that Defendant had no fraudulent intent when she failed to list her interest in these accounts in her schedules. Plaintiff did not specifically plead nor argue any specific ground for discharge under Section 727(a)(4). In finding Defendant had no fraudulent intent under Section 727(a)(4)(A), the Court sees no reason to discuss other grounds to deny a discharge under that Section because each requires the element of fraudulent intent. For the reasons discussed above, the Court denies" }, { "docid": "21169027", "title": "", "text": "or provide a persuasive justification for their failure, in order to receive a bankruptcy discharge. See Meridian Bank v. Alten, 958 F.2d at 1234 (“The purpose of section 727(a)(3) is to make full financial disclosure a condition precedent to the grant of discharge in bankruptcy.”). Their failure to maintain records is clearly evident; furthermore, their justification for these deficiencies is unpersuasive. Thus, denial of discharge under section 727(a)(3) is also warranted. Id. V. Under 11 U.S.C. § 727(a)(4), a debtor will not receive his bankruptcy discharge when he: knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; The purpose of this statutory provision is to create an “affirmative duty” for the debtor to completely disclose “all assets [and] liabilities and to answer all questions fully and with the utmost candor.” In re Maletta, 159 B.R. 108, 112 (Bankr.D.Conn.1993). As recognized by one court, “[t]he purpose of [section 727(a)(4)(A)] is to allow creditors to have adequate information of the [debtor’s] estate without the need for an examination or investigation to determine if the statements are correct.” In re Kearns, 149 B.R. at 192; In re Gudowitz, 1986 WL 28906, at *4; see also In re Haverland, 150 B.R. 768, 772 (Bankr.S.D.Cal.1993) (“A trustee or creditor should not be required to make a costly investigation ... to uncover the existence of property which the debtor knowingly fails to disclose.”). To meet this evidentiary burden, the plaintiffs must prove by a preponderance standard, see In re Georges, 138 Fed.Appx. 471, 472 (3d Cir.2005), that: (1) [the debtor] made a statement under oath; (2) the statement was false; (3) [the debtor] knew the statement was false; (4) [the debtor] made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case. False oaths sufficient to justify the denial of discharge include (1) a false statement or omission in the debtor’s schedules or (2) a false statement by the debtor at the examination during the course of the proceedings. Matter of Beaubouef, 966 F.2d at 178 (citations and quotations omitted); accord, e.g., Williamson" }, { "docid": "15914475", "title": "", "text": "under the facts of this case, and we join those having adopted the doctrine. Keeney also notes that under Kentucky law, Smith cannot recover the subject property because the statute of limitations has run. See Ky.Rev.Stat. Ann. §§ 413.120, 413.130 (Banks-Baldwin 1998). He argues that even if a violation of section 727(a)(2)(A) can otherwise be shown, that fact is irrelevant because Smith is too late to reach the property. This argument fails. “[Cjoncealment or transfer under § 727(a)(2) may occur even if no creditors are harmed by it. ‘Proof of harm is not a required element of a cause of action under Section 727.’ ” Peterson v. Scott (In re Scott), 172 F.3d 959, 968 (7th Cir.1999) (citation omitted). B. In addition to relying upon a violation of section 727(a)(2)(A), the bankruptcy and district courts also based the denial of discharge on Keeney’s making of a false oath when he omitted his beneficial interest in the properties from his benefit schedules filed with the bankruptcy court, in violation of section 727(a)(4)(A). (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account[.] 11 U.S.C. § 727(a)(4)(A) (1993). In order to deny a debtor discharge under this section, a plaintiff must prove by a preponderance of the evidence that: 1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement related materially to the bankruptcy case. See Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir.1992). Whether a debtor has made a false oath under section 727(a)(4)(A) is a question of fact. See Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251 (4th Cir.1987). “ ‘Complete financial disclosure’ ” is a prerequisite to the privilege of discharge. Peterson, 172 F.3d at 967. The Court of Appeals for the Seventh Circuit has explained that intent to defraud “involves a material representation that you know to be" }, { "docid": "21307198", "title": "", "text": "erred in awarding summary judgment on the basis of Peninsula’s claim that he knowingly made false oaths during his bankruptcy proceedings. The Bankruptcy Code provides that a debtor seeking Chapter 7 relief shall be granted a discharge of his debts unless “the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” 11 U.S.C. § 727(a)(4)(A). In order to be denied a discharge under this provision, “the debtor must have made a statement under oath which he knew to be false, and he must have made the statement willfully, with the intent to defraud.” Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251 (4th Cir.1987). Significantly, in evaluating a claim under § 727(a)(4)(A), we have recognized that the question of whether a debtor has made a false oath is generally a question of fact. See id. On appeal, French focuses on the essential element of intent, maintaining that a genuine issue of material fact is present on whether he made any false statements with an intent to defraud. In particular, French points to his personal affidavit, in which he maintains that any inaccurate or inconsistent statements he made under oath in the bankruptcy proceedings were the result of confusion or impaired mental function. He also relies on Dr. Freedenburg’s affidavit, in which French’s psychiatrist opined that French suffers from a progressive cognitive disease that makes it difficult for him to answer questions accurately. Based on these affidavits, French contends that a genuine issue exists as to whether he possessed the intent to defraud essential for a denial of discharge under § 727(a)(4)(A). Notwithstanding the evidence forecast by these affidavits, the bankruptcy court concluded that there was no genuine issue of material fact as to French’s intent to defraud. In so ruling, the court made several points. First, the court observed that the timing of French’s inaccurate statements indicated that they were made with an intent to defraud. Second, the court made known that it simply disbelieved the Freedenburg affidavit, describing it as “a doctor’s excuse that the debtor is a compulsive" }, { "docid": "15907643", "title": "", "text": "L.Ed.2d 518 (1985)). “Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.” Id. at 109 (quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)). B. The Findings Appealed The issues to be decided are (1) whether the Bankruptcy Court erred in finding that Debtor’s failures to disclose information in his bankruptcy schedules were innocent oversights, and not “false oaths,” pursuant to Bankruptcy Code Section 727(a)(4)(A), (2) whether the court erred in finding that the omissions in the bankruptcy schedules, taken together, did not constitute reckless disregard for the truth, sufficient to deny a discharge pursuant to Section 727(a)(4)(A), (3) whether the court erred in finding that the $60,000.00 loan from Reba Weaver to Debtor was not a fictitious claim within the meaning of Section 727(a)(4)(B), and (4) whether the court erred in finding that Debtor adequately disclosed the alleged Everlink loan, and thus did not conceal a prior fraudulent transfer within the meaning of Section 727(a)(2)(A). 1. The Omissions from the Bankruptcy Schedules Section 727(a)(4)(A) provides that: (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account. 11 U.S.C. § 727(a)(4)(A). This section is intended to ensure “that adequate information is available to those interested in the administration of the bankruptcy estate without the need of examinations or investigations to determine whether the information is true.” In re Kaiser, 94 B.R. 779, 781 (Bankr.S.D.Fla. 1988); see In re Arcuri, 116 B.R. 873, 879-80 (Bankr.S.D.N.Y.1990). As the party objecting to Debtor’s discharge under Section 727(a)(4)(A), Painewebber must prove, by a preponderance of the evidence, that: (1) Debtor made a statement under oath, (2) such statement was false, (3) Debtor knew the statement was false, (4) Debtor made the statement with the intent to defraud creditors, and (5) the statement related materially to the bankruptcy case. In re Kelly, 135 B.R. 459," }, { "docid": "14528903", "title": "", "text": "him throughout his bankruptcy case were to the best of his knowledge and belief. As set forth below, the Court finds sufficient basis to deny the Debtor a discharge under section 727(a)(4). To be denied a discharge pursuant to section 727(a)(4)(A) of the Bankruptcy Code, the objecting party must prove by a preponderance of the evidence that: 1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement materially related to the bankruptcy case. Sheehan v. Stout (In re Stout), 348 B.R. 61, 64 (Bankr.N.D.W.Va.2006) (citing Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251-52 (4th Cir.1987)). “In order to be denied a discharge under this provision, ‘the debtor must have made a statement under oath which he knew to be false, and he must have made the statement willfully, with the intent to defraud.’ ” In re French, 499 F.3d at 352 (quoting Williamson, 828 F.2d at 251). In evaluating a claim under § 727(a)(4)(A), the Fourth Circuit Court of Appeals has recognized that the question of whether a debtor has made a false oath is generally a question of fact. See id. “[A] determination concerning fraudulent intent [under § 727(a)(4)(A) ] depends largely upon an assessment of the credibility and demean- or of the debtor.” Id. at 353 (citing Williamson, 828 F.2d at 252)). Once it reasonably appears that the oath is false, however, the burden falls upon the debtor to provide evidence that he has not committed the offense charged. Hatton v. Spencer (In re Hatton), 204 B.R. 477, 482 (E.D.Va.1997). As stated earlier, a debtor may be denied a discharge based on his/her pre-conversion conduct. In re Van Den Heuvel, 125 B.R. at 849. Because a debtor is unlikely to admit that he acted with fraudulent intent, fraudulent intent may be established in one of two ways. In re Hatton, 204 B.R. at 483-484. First, it may be established by circumstantial evidence or by inference drawn from a course of conduct. Id." }, { "docid": "15907644", "title": "", "text": "conceal a prior fraudulent transfer within the meaning of Section 727(a)(2)(A). 1. The Omissions from the Bankruptcy Schedules Section 727(a)(4)(A) provides that: (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account. 11 U.S.C. § 727(a)(4)(A). This section is intended to ensure “that adequate information is available to those interested in the administration of the bankruptcy estate without the need of examinations or investigations to determine whether the information is true.” In re Kaiser, 94 B.R. 779, 781 (Bankr.S.D.Fla. 1988); see In re Arcuri, 116 B.R. 873, 879-80 (Bankr.S.D.N.Y.1990). As the party objecting to Debtor’s discharge under Section 727(a)(4)(A), Painewebber must prove, by a preponderance of the evidence, that: (1) Debtor made a statement under oath, (2) such statement was false, (3) Debtor knew the statement was false, (4) Debtor made the statement with the intent to defraud creditors, and (5) the statement related materially to the bankruptcy case. In re Kelly, 135 B.R. 459, 461 (Bankr. S.D.N.Y.1992); Arcuri 116 B.R. at 880. The party objecting to discharge must show that a debtor omitted information which he knew should have been disclosed in his schedules for the specific purpose of misleading his creditors “and not simply because the debtor was careless or failed to fully understand his attorney’s instructions.” Kelly, 135 B.R. at 461; Arcuri 116 B.R. at 885. Accordingly, “[w]here it reasonably appears that the oath is false, the burden falls upon the debtor to come forward with evidence to prove that it was not an intentional misrepresentation.” Arcmi, 116 B.R. at 884. If the debtor fails to provide such evidence or a credible explanation for his failure to do so, a court may infer fraudulent intent. Id.; Silverstein, 151 B.R. at 662-63. Whether the debtor made a false oath within the meaning of Section 727(a)(4)(A) is a question of fact. Avallone v. Gross, 309 F.2d 60, 62 (2d Cir.1962); Arcuri 116 B.R. at 880. Debtor omitted the following assets from his bankruptcy petition: a 1988 Donzi Regatta Speedboat;" }, { "docid": "7622710", "title": "", "text": "727(a)(4) ensures that debtors will provide reliable information to parties with an interest in the administration of the estate. Britton Motor Service, Inc. v. Krich (In re Krich), 97 B.R. 919, 923 (Bankr.N.D.Ill.1988). It is a debtor’s role to consider the questions posed on the schedules and at the creditors’ meeting carefully, and answer them accurately and completely. Lunday, 100 B.R. at 508. B. Application of the Standards to this Matter The Bank first must establish that the Debtors made a statement under oath. A debtor’s petition and schedules constitute a statement under oath for purposes of a discharge objection under § 727(a)(4). See Nof v. Gannon (In re Gannon), 173 B.R. 313, 320 (Bankr.S.D.N.Y.1994); Golden Star Tire, Inc. v. Smith (In re Smith), 161 B.R. 989, 992 (Bankr.E.D.Ark.1993). A statement under oath also includes statements made by the debtor when being examined at creditors’ meetings. See Nerco Coal Corp. v. Ball (In re Ball), 84 B.R. 410, 415.(Bankr.D.Md.1988). There is no dispute that this element has been met. Second, the Bank must show that such statements were false. Whether the Debtors made a false oath within the meaning of § 727(a)(4)(A) is a question of fact. Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251 (4th Cir.1987); Continental Ill. Nat. Bank & Trust Co. of Chicago v. Ber nard (In re Bernard), 99 B.R. 563, 570 (Bankr.S.D.N.Y.1989). “Filing of false schedules with material omissions or misrepresentations with an intent to mislead creditors and the trustee as to a debtor’s actual financial condition constitutes a false oath under section 727(a)(4)(A).” Krich, 97 B.R. at 923 (citation omitted). A debtor’s failure to disclose income may warrant denial of discharge. See First Fed. Savs. and Loan Ass’n of Raleigh v. Johnson (In re Johnson), 82 B.R. 801, 805 (Bankr.E.D.N.C.1988) (citations omitted). The Court finds that the Bank has established the second element with respect to Donald based on his failure to disclose his second source of income — Midwest Sporting Goods — on either the Schedules or at the creditors’ meeting. A debtor’s omission of income on his bankruptcy schedules constitutes" }, { "docid": "4203862", "title": "", "text": "relevant part: The court shall grant the debtor a discharge, unless the debtor knowingly and fraudulently, in connection with the case: (A) made a false oath or account; (B) presented or used a false claim; (C) gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or (D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs. The purpose of § 727(a)(4) is to enforce the debtor’s duty of disclosure and to ensure that the debtors provide reliable information to those who have an interest in the administration of the estate. Stathopoulos v. Bostrom (In re Bostrom), 286 B.R. 352, 359 (Bankr.N.D.Ill.2002). For purposes of § 727(a)(4), a debtor’s petition and schedules, statement of financial affairs, statements made at a § 341 creditor’s meeting, and testimony at a Rule 2004 examination all constitute statements that are made under oath. Id at 359-60. Filing of false schedules with material omissions or representations with an intent to mislead creditors as to the debtor’s financial condition constitutes a false oath under Section 727(a)(4). Id. at 360. Deere alleges several false representations and omissions related to the bankruptcy case, knowingly made by Debtors with the intent to deceive. Compl. ¶¶ 48-51. Specifically, Debtors’ petitions fail to disclose the disposition of the “stolen” property or receipt of the cash proceeds from selling this property; Kenneth Bro-holm’s statements at his Rule 2004 examination that he had no knowledge of the theft scheme or that any property was even stolen from ESS’s premises; and the Broholms’ failure to disclose in their petitions complete and accurate records of their property and financial affairs. Compl. ¶¶ 49-51. These allegation sufficiently allege a cause of action under § 727(a)(4). Therefore, Deere is entitled to proceed under the seventh count of its Complaint. Debtor’s Failure to Explain the Loss of Assets under Count VIII 11 U.S.C. § 727(a)(5) states in relevant part: The court shall" }, { "docid": "7696199", "title": "", "text": "from this standpoint, this transaction is suspect. Insiders, father and daughter, transferred land for inadequate consideration, and, during her Rule 2004 Examination, Ms. Hooper alluded to her family’s financial difficulties during the time of the transfer and that she was faced with selling the land because it was all she owned. As noted previously, Debtors continue to the live on the property after it was transferred to her father. However, the Court believes a critical aspect regarding intent missing from this case is concealment. The question in the Schedules and Statement of Financial Affairs does not require Debtors to disclose the transfer. Furthermore, when asked about the transfer during her Rule 2004 Examination, Ms. Hooper was forthright about the transaction and admitted it occurred. Accordingly, although several of the badges of fraud are present in this case, the Court concludes that the Trustee did not meet his burden of proving, by a preponderance of the evidence, Debtors’ intent to conceal a secret property interest that carried over into the year prior to bankruptcy. II. Section 727(a)(4): False Oath or Account In his Complaint, the Trustee also argues that the Court should deny Debtors’ discharge on the grounds that they made a false oath or account. Specifically, the Trustee alleges eleven instances where Debtors failed to answer questions accurately or completely in their Schedules and in their Statement of Financial Affairs. To deny a debtor’s discharge under § 727(a)(4), courts must find, by a preponderance of the evidence, that a debtor made a statement under oath that he or she knew to be false and that the debtor made the statement willfully with the intent to defraud. See Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251 (4th Cir.1987). In addition, the false oath must relate to a material matter. See id. In its Findings of Fact, the Court concluded that there were ten instances where Debtors omitted information or failed to provide accurate information in their Schedules and Statement of Financial Affairs. Without repeating the Findings of Fact in their entirety, the Court notes the following examples of inaccuracies" }, { "docid": "18153662", "title": "", "text": "at a time when the Abramovs were subject to New World’s judgments and restraining notices, amply supports the inference that this transfer was made with an intent to hinder, delay and defraud the Abramovs’s creditors, an inference which Boris Abramov has failed to rebut with any credible explanation or evidence. Section 727(a)(4)(A) of the Code provides an additional ground for denying Mr. Abramov’s discharge, and for denying Mrs. Abramov’s discharge. Section 727(a)(4)(A) of the Bankruptcy Code states that: (a) the court shall grant the debtor a discharge, unless... (4) the debtor knowingly and fraudulently, in or in connection with the case- (A) made a false oath or account; “The burden of proof rests with the party objecting to the discharge to establish the following elements in order to deny a debtor its discharge pursuant to § 727(a)(4)(A): (1) the debtor made a statement under oath, (2) such statement was false, (3) the debtor knew the statement was false, (4) the debtor made the statement with fraudulent intent, and (5) the statement related materially to the bankruptcy case.” Bank of India v. Sapru (In re Sapru), 123 B.R. 948, 956 (Bankr.E.D.N.Y.1990) (citations omitted). A false oath may consist of (1) a false statement or omission in the debtor’s schedules or (2) a false statement by the debtor at an examination during the course of the proceedings. Id., 28 U.S.C.S. § 1746, see also Nof v. Gannon (In re Gannon), 173 B.R. 313, 320 (Bankr.S.D.N.Y.1994) (“A debtor’s petition and annexed schedules constitute a statement under oath for purposes of § 727(a)(4)(A).”). Once the plaintiff makes a prima facie showing that a debtor knowingly-made a false oath, the debtor must come forward with a credible explanation for his actions. Gannon, 173 B.R. at 320 (citations omitted). A failure to do so is a sufficient ground for the denial of the debtors’ discharge. Id. The Abramovs made numerous false statements under oath on their petition and during the course of their § 341 meeting and Rule 2004 examinations. The debtors swore that the information they provided in their schedules and statement of affairs was" }, { "docid": "8594460", "title": "", "text": "debtor than of the creditor.” Martin, 698 F.2d at 888. Consequently, the Court finds that the Debtor has violated § 727(a)(3). Thus, the Court grants judgment in favor of the Creditor. The Debtor’s discharge is denied under § 727(a)(3). C. 11 U.S.C. § 727(a)(4)(A) Next, the Creditor contends that the Debtor violated 11 U.S.C. § 727(a)(4) be cause he failed to disclose significant assets and certain transfers on his Schedules and Statement of Financial Affairs. In addition, the Creditor argues that the Debtor made false statements at the § 341 creditors’ meeting and in his answers to interrogatories propounded by the Creditor. Section 727(a)(4) bars a debtor’s discharge if he knowingly and fraudulently makes a false oath in connection with the case. Specifically, § 727(a)(4) provides that: (a) The court shall grant the debtor a discharge, unless — • (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account[.] 11 U.S.C. § 727(a)(4)(A) (2005). The purpose of § 727(a)(4) is to enforce a debtor’s duty of disclosure and to ensure that the debtor provides reliable information to those who have an interest in the administration of the estate. Costello, 299 B.R. at 899; Bostrom, 286 B.R. at 359; Carlson, 231 B.R. at 655; Bensenville Cmty. Ctr. Union v. Bailey (In re Bailey), 147 B.R. 157, 163 (Bankr.N.D.Ill.1992). The trustee and the creditors have a right to information that will allow them to evaluate the case and administer the estate’s property. Bostrom, 286 B.R. at 359. Thus, “[complete financial disclosure is a condition precedent to the privilege of discharge.” Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 359 (Bankr. N.D.Ill.2001); see also Fosco v. Fosco (In re Fosco), 289 B.R. 78, 93 (Bankr.N.D.Ill. 2002). In order to prevail, a creditor must establish five elements under § 727(a)(4)(A): (1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with the intent to deceive; and (5) the statement related materially to the bankruptcy" }, { "docid": "18001971", "title": "", "text": "request denial of discharge based on Code Sections 727(a)(4)(A) and 727(a)(4)(D) which provide for denial of discharge if: (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account: sf: % # # (D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs. With reference to their request pursuant to Code Section 727(a)(4)(A), plaintiffs allege that the debtors’ schedules and statement of financial affairs were false in indicating that the debtors kept books and records relating to their affairs for two years proceeding the bankruptcy and that all such records were available. Additionally, the plaintiffs claim that the schedules and statement of affairs failed to disclose both the admitted transfer of the debtors’ residence prior to the filing of their bankruptcy petition and transfers of assets to explain diminution of their personalty from the sum stated in the March 30,1981 financial statement ($125,000.00) to the “nominal value of $500.00 listed in schedule B-2. (See discussion re: Section 727(a)(5) above). On February 3, 1983, five days before trial, the debtors amended their schedules to reflect ownership of two insurance policies. A false oath must relate to a material matter to be sufficient to warrant denial of discharge. See Matter of Ramos, 8 B.R. 490 at 495 (Bkrtcy.W.D.Wisc.1981) stating that “Materiality of the false oath does not require that the creditors were prejudiced by the false statement. Materiality depends on whether the false oath was pertinent to the discovery of assets or past transactions.” The false oath must also have been made knowingly and fraudulently. See Section 727(a)(4). In Matter of Vogel, 16 B.R. 546 at 550 (Bkrtcy.S.D.Fla.1981) this Court stated that “The basic rule in the Bankruptcy Court in the Southern District of Florida is that any false oath must be made intentionally and must hinder the [trustee’s] administration of the estate.” The element of fraud required to satisfy Section 727(a)(4)(A) is established when statements are made “with a calculated disregard" }, { "docid": "14168347", "title": "", "text": "Debtor failed to disclose the existence of the timeshares, and that the records the Debtor did produce were inadequate to understand or explain the Debtor’s business and financial condition”); Doubet v. Palermo (In re Palermo), 370 B.R. 599, 617 (Bankr.S.D.N.Y.2007) (denying discharge under § 727(a)(3) when debtor “did not maintain records of his financial transactions, and his accountings [were] fraught with inaccuracies and inconsistencies”); In re Frommann, 153 B.R. at 115, 119 (denying discharge when the debtor provided the Trustee “with a morass of records consisting of bills, checks, bank statements and closing statements,” but “no books of account were furnished to the Trustee”). TV. Section 727(a)(4)(A) The Bankruptcy Court also denied Mr. and Mrs. Moreo discharge under 11 U.S.C. § 727(a)(4)(A), which provides for denial of discharge if a debtor makes a false oath or account in connection with her bankruptcy petition. For the reasons set forth below, the Court affirms the Bankruptcy Court’s conclusion. A. The Legal Framework under Section 727(a)(4)(A) Section 727(a)(4)(A) provides the following: (a) The court shall grant a debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account. 11 U.S.C. § 727(a)(4)(A). A debtor’s bankruptcy petition and the accompanying schedules constitute statements under oath for purposes of this Section. See, e.g., Nof v. Gannon (In re Gannon), 173 B.R. 313, 320 (Bankr.S.D.N.Y.1994). The Second Circuit has made clear that a denial of discharge pursuant to § 727 is a severe sanction and must be construed strictly in favor of the debtor. See In re Chalasani, 92 F.3d at 1310 (citation omitted). Therefore, it is well established that to prove an objection to discharge under § 727(a)(4)(A), the party objecting to discharge must establish by a preponderance of the evidence that: “(1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew that the statement was false; (4) the debtor made the statement with intent to deceive; and (5) the statement related materially to the bankruptcy case.” Dubrowsky v. Estate of Perlbinder (In re Dubrowsky)," }, { "docid": "14528902", "title": "", "text": "for bankruptcy. He had sufficient business experience to file timely and complete Monthly Operating Reports in accordance with the guidelines provided and explained to him by the Office of the United States Trustee. The Court further finds that despite the production of certain documents by third parties, the Debtor, without Court approval, voluntarily placed his financial documents out of his control and abdicated his responsibility to obtain and produce them to the Trustee. Although the evidence does not clearly indicate what documents were or were not produced to the Trustee by third parties, it is unrefuted that the Trustee never received tax returns for the Debtor, SCS, and/or Westmark. Accordingly, section 727(a)(3) provides an additional basis to deny the Debtor a discharge. 3. 11 U.S.C. § 727(a)(4)(A) Count III of the Complaint seeks to deny the Debtor a discharge pursuant to 11 U.S.C. § 727(a)(4) based on alleged false oaths and accounts made in connection with the Debtor’s bankruptcy ease. The Debtor responded to Count III by stating that all actions and representations made by him throughout his bankruptcy case were to the best of his knowledge and belief. As set forth below, the Court finds sufficient basis to deny the Debtor a discharge under section 727(a)(4). To be denied a discharge pursuant to section 727(a)(4)(A) of the Bankruptcy Code, the objecting party must prove by a preponderance of the evidence that: 1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and 5) the statement materially related to the bankruptcy case. Sheehan v. Stout (In re Stout), 348 B.R. 61, 64 (Bankr.N.D.W.Va.2006) (citing Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 251-52 (4th Cir.1987)). “In order to be denied a discharge under this provision, ‘the debtor must have made a statement under oath which he knew to be false, and he must have made the statement willfully, with the intent to defraud.’ ” In re French, 499 F.3d at 352 (quoting Williamson, 828 F.2d at 251). In evaluating" }, { "docid": "6911438", "title": "", "text": "3. Section 727(a)(4)(A) Section 727(a)(4)(A) provides: (a) The court shall grant the debtor a discharge, unless- (4) the debtor knowingly and fraudulently, in or in connection with the case- (A) made a false oath or account. 11 U.S.C. § 727(a)(4)(A). A debtor’s duty to fully and accurately disclose all legal or equitable interests in property on the bankruptcy schedules is paramount and absolute. Matter of Yonikus, 996 F.2d 866 (7th Cir.1993). A debtor’s duty of full disclosure imposes an uncompromising duty to carefully and truthfully answer all questions presented in the bankruptcy schedules and the Statement of Affairs. In re Famisaran, 224 B.R. 886 (Bankr.N.D.Ill.1998). The very integrity of the bankruptcy court and the successful administration of the bankruptcy system rest upon compliance with the debtor’s obligation of disclosure. In order to prevail on an objection to discharge under this provision, a creditor must establish five elements: (1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knows the statement was false; (4) the statement was made with the intent to deceive; and (5) the statement related materially to the bankruptcy case. In re Sholdra, 249 F.3d 380 (5th Cir.2001); In re Bostrom, 286 B.R. 352 (Bankr.N.D.Ill.2002), aff'd, Stathopoulos v. Bostrom, 2003 WL 403138 (N.D.Ill.2003). A false oath is material if it “bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.” In re Bailey, 147 B.R. 157, 162 (Bankr.N.D.Ill.1992). The GROUP asserts that the DEBTOR knowingly and fraudulently made a number of false oaths in connection with her bankruptcy petition. First, the GROUP points to the DEBTOR’S failure to list the litigation pending between the parties in paragraph 4 of the Statement of Financial Affairs, which requires a debtor to disclose all pending suits to which the debtor is a party. The listing of pending litigation on the Statement of Affairs serves the important purpose of alerting the trustee and affording him an opportunity to examine the proceeding in order to determine if unreported assets may exist." } ]

[ { "docid": "3714262", "title": "", "text": "it was being used as a vehicle and not as a residence, and, accordingly, upheld the warrantless search of Mr. Carney’s motor home on the basis of the automobile exception. Although this case presents a variation on Carney because the vehicle searched was parked in a private driveway, the Court finds that the Carney rationale is controlling. In Carney, just as in this case, agents had the motor home under surveillance and could have obtained a search warrant for the vehicle. In addition, as Justice Stevens noted in his dissent, the motor home was parked in an off-the-street lot in downtown San Diego, only a few blocks from the Courthouse, where dozens of Magistrates were available to entertain a warrant appli cation. However, the majority opinion did not address this issue. Clearly, the Car-net/ majority, perhaps in an attempt to avoid requiring law enforcement officers to make judgment calls about the security of every vehicle which they have probable cause to search, did not contemplate that an agent’s inability to obtain a search warrant be a prerequisite to the application of the automobile exception. In fact, as discussed above, the Carney majority held that whenever a vehicle is readily capable of use on public roads, the automobile exception is applicable. In this case, the motor home searched was on wheels and bore Tennessee license plates. In addition, although Mr. Markham resided in Tennessee, the vehicle was parked in a driveway connected to a public street in Barberton, Ohio. Moreover, there were no utility lines connected to the motor home. Clearly, Mr. Markham’s motor home was so situated that an objective observer would conclude that it was being used as a vehicle and not as a residence. Therefore, in accordance with the holding in Carney, the underlying considerations justifying a warrantless search under the automobile exception came into play and the warrantless search of the appellant’s motor home was proper pursuant to the automobile exception to the warrant requirement of the Fourth Amendment. III. The Court concludes that the search of appellant’s motor home and subsequent seizure of marijuana were lawful." } ]

[ { "docid": "12159100", "title": "", "text": "where the stoppage of movement itself constitutes a substantial intrusion, and is not applicable to a parked and unoccupied car, where all that is needed is a non-intrusive overwatch. The application of the Carroll doctrine, as characterized in Chambers, to unoccupied, parked cars has been particularly troublesome for the Supreme Court. The plurality in Coolidge struck down the search of an unoccupied car parked on private property, and appeared to restrict Chambers to searches preceded by a valid Carroll stop, i. e., to vehicles stopped while moving on the open highway. Another plurality opinion, however, relied directly on Chambers to uphold the warrantless seizure of an unoccupied car parked in a public parking lot, and refused to attach any significance to the lack of a prior Carroll stop. See Card-well v. Lewis, 417 U.S. 583, 594, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974): The fact that the car in Chambers was seized after being stopped on a highway, whereas Lewis’ car was seized from a public parking lot, has little, if any, legal significance. This plurality opinion stated that Coolidge was distinguishable from Chambers because Coolidge involved entry on private property (a driveway), whereas in Chambers “the automobile was seized from a public place where access was not meaningfully restricted.” 417 U.S. at 593, 94 S.Ct. at 2471. Our acceptance of an independent justifying exigency put forth by the Government makes it unnecessary to attempt to synthesize and reconcile these divergent plurality opinions, and it is to that other exigency we now turn. IV. Although this case is not governed by the Carroll “automobile exception” for cars stopped on a highway, it does present a situation in which time was of the essence and it was “not practicable to secure a warrant.” Carroll, 267 U.S. at 153, 45 S.Ct. at 285. There was need to proceed as quickly as possible to apprehend the robbers who had used this as the getaway car in an armed bank robbery consummated about an hour prior to the search. There was strong probable cause to believe this was the getaway car. Bank robbers" }, { "docid": "12806535", "title": "", "text": "are [ ] required to justify a warrantless search of a vehicle when the vehicle is parked in the driveway of a residence.”). The search of Fields’ vehicle was valid under the automobile exception to the warrant requirement, and we AFFIRM the district court’s denial of Fields’ motion to suppress. . United States v. Jones, 155 Fed.Appx. 204, 207 (6th Cir.2005) (holding that an arrest ten to fifteen feet from the car is a close spatial relationship). . The Thornton Court declined to address whether a \"recent occupant” of a vehicle needed to be within reaching distance of the car to constitute a close spatial relationship. Thornton, 541 U.S. at 622 n. 2, 124 S.Ct. 2127. . Pittman also raises doubts as to the Seventh Circuit’s holding in United States v. Arango, 879 F.2d 1501 (7th Cir.1989). In that case, the court upheld the validity of a search of the defendant's vehicle when he was a mile away at the time of the arrest. Notably, Arango precedes Thornton. . Fields contends that the government cannot raise the automobile exception for the first time on appeal. The government did not raise the automobile exception in the district court because that court found that the search in question was a valid search incident to an arrest. The issue underlying both the automobile exception and the search incident to an arrest exception to the warrant requirement is the ultimate reasonableness of a war-rantless search. See Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (explaining that the Fourth Amendment guarantees freedom from unreasonable searches and seizures); see also United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (\"[An automobile] search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.”); United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (stating that a search‘incident to an arrest is a reasonable intrusion under the Fourth Amendment). At trial, the Government opposed Fields’ motion" }, { "docid": "20000533", "title": "", "text": "to trial. A. Automobile Search Blaylock alleges the search of the blue Nissan parked in the driveway of 7339 Wabash occurred in violation of his Fourth Amendment right to be free from unreasonable searches. In denying Blay-lock’s motion to suppress evidence seized from the car, the district court concluded no exigent circumstances necessitated the search and the search was not an inventory search or a search incident to arrest. Neither party challenges these conclusions. The court relied solely upon the “automobile exception” as a justification for the warrantless search, and we will likewise focus our attention on that exception to the warrant requirement. We review for clear error the factual findings of the district court and consider de novo whether the motion to suppress was properly denied. United States v. Roberson, 439 F.3d 934, 939 (8th Cir.2006). The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Generally, a warrant is required to ensure a search’s reasonableness. Maryland v. Dyson, U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Starting with Carroll v. United States, the Supreme Court recognized an exception to the Fourth Amendment’s warrant requirement when officers search an automobile. 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Originally, the rationale for the exception was the practical challenges of obtaining a warrant for a vehicle that could be “quickly moved” out of the jurisdiction. Id. Since Carroll, the Court has identified an additional justification for the exception: “the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). This reduced expectation in privacy is based, in part, upon the relative openness of a car’s passenger compartment, Cardwell v. Lems, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), but the Court has also applied the exception to searches of car trunks, Cady v. Dombrowski, 413 U.S. 433, 446, 93 S.Ct." }, { "docid": "12806532", "title": "", "text": "Even where an automobile is not immediately mobile at the time of the search, “the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified] application of the vehicular exception.” California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)(emphasis added). Fields used his Impala as a readily mobile vehicle throughout the police chase and in all the events leading up to his arrest and the search in question. Furthermore, the fact that Fields crashed his car after a police chase does not increase his privacy interest in his vehicle. “An essential element to a successful challenge of a search or seizure on Fourth Amendment grounds is the existence of a legitimate expectation of privacy.” United States v. Salvucci, 448 U.S. 83, 92-93, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). “[R]educed expectations of privacy [in a vehicle] derive ... from the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U.S. at 392, 105 S.Ct. 2066. Fields disregarded these “pervasive regulations”: the Impala was involved in a high speed police chase immediately prior to the search; Fields ran a stop sign, drove erratically, and crashed into the side wall of a building. If the car was not mobile at the time of the search, it was solely by virtue of Fields complete disregard of driving regulations, and this does not entitle him to a heightened privacy interest. Second, Fields contends that the automobile exception does not apply because his vehicle was located on private property, the duplex, at the time of the search. California v. Carney clarifies that the automobile exception applies when the vehicle searched is “found stationary in a place not regularly used for residential purposes.” 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Thus, we have concluded that automobile exception may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search. See United States v. Sinisterra, 77 F.3d 101, 104-05 (5th Cir.1996) (“Here, the mall parking lot was not related to anyone’s" }, { "docid": "20000540", "title": "", "text": "the automobile search analyzed in Section II.A. Despite this seemingly straightforward application of the automobile exception, aspects of this case give me pause. As the Nissan provided the crucial link to the home at 7339 Wabash, it is curious that officers did not seek a warrant for the car. Searches conducted pursuant to a warrant are always preferred. See Georgia v. Randolph, 547 U.S. 103, 117, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (“ ‘[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers[.]’ ”) (quoting United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932)). In contrast to many other instances where the automobile exception provided the grounds to search a car, in this case probable cause did not develop immediately prior to the search. Officers obtained no new information during the search of the residence to augment their existing suspicions about the car. Cf. United States v. Rowland, 341 F.3d 774, 785 (8th Cir.2003) (stating that evidence uncovered during a Terry search provided probable cause to search the entire car under the automobile exception). Nor was there any contraband in plain view. Cf. United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir.2000) (per curiam) (upholding a search of a car parked in the driveway of a home subject to search pursuant to a warrant when officers observed items commonly used for the manufacture of methamphetamine in plain view). The lack of plain view evidence or additional incriminating information undermines any argument that it was impractical for the officers to obtain a warrant for the Nissan in advance of the search. Additionally, the car was parked in Blaylock’s driveway. This court has previously upheld a warrantless search of a car parked in the driveway of a residence. Id. However, other courts have expressed reservations about applying the automobile exception doctrine to cars encountered on private property. See United States v. Fields, 456 F.3d 519, 524-25 (5th Cir.2006) (noting that the automobile" }, { "docid": "307867", "title": "", "text": "In fact, the bulk of the analysis in White centered on Carroll and the “special considerations recognized in the context of movable items.” White, 526 U.S. at 565, 119 S.Ct. 1555. Those “special considerations” apply regardless of whether a vehicle is located on public or private property. Moreover, several courts of appeals have interpreted Carroll to permit the warrantless search of an automobile located on a private driveway. See, e.g., United States v. Blaylock, 535 F.3d 922, 925-27 (8th Cir.2008); United States v. Hines, 449 F.3d 808, 813-15 (7th Cir.2006); United States v. Brookins, 345 F.3d 231, 237 (4th Cir.2003); United States v. Hatley, 15 F.3d 856, 858-59 (9th Cir.1994). Thus, it remains an open question whether the Fourth Amendment permits the war-rantless seizure of a vehicle from private property when state law designates that vehicle as forfeitable contraband. See al-Kidd, 131 S.Ct. at 2085 (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”). Even if White clearly established a public/private distinction, the facts of this case do not clearly fall on the “private” side. In its discussion of the “public” factor in White, the Court stressed that “the war-rantless seizure also did not involve any invasion of respondent’s privacy.” Id. at 566, 119 S.Ct. 1555. The warrantless seizure in this case also did not involve any invasion of the Trents’ privacy because police were lawfully present on the Trents’ property as they pursued a suspect who was evading arrest. Thus, the porte coch-ere was not “private” in the same sense as would be private property to which officers had no lawful access. See Wayne R. La-Fave, Search and Seizure: A Treatise on the Fourth Amendment § 7.3(b) (4th ed. 2004) (“[I]t would appear that the Court is also accepting as controlling in forfeiture cases ... that this power of warrantless seizure ... does not extend to vehicles situated on private premises to which access is not otherwise available for the seizing officer.” (emphasis added) (internal quotation marks omitted)). Indeed, Wade’s lawful presence on the property implicates a separate line of cases" }, { "docid": "15673710", "title": "", "text": "(1973). Finally, a number of circuits have upheld driveway searches with probable cause but no warrant: three have squarely applied the automobile exception to permit searches of vehicles parked in the driveway of the defendant’s own residence, while others including this one have permitted such searches of vehicles in private driveways that were not the defendant’s residence. A few others have expressed doubts in light of Coolidge, e.g., United States v. Fields, 456 F.3d 519, 524-25 (5th Cir.), cert. denied, 549 U.S. 1046, 127 S.Ct. 614, 166 L.Ed.2d 455 (2006), but no circuit appears to read Coolidge as a per se rule against all driveway searches without a warrant. Here, it would be enough for us to uphold the search under the automobile exception on the grounds that Goncalves had tried to flee with a car known to be used for carrying drugs, had been chased into a driveway, and then had fled so that probable cause certainly existed to believe that the car contained contraband and quite possibly a weapon. Even if this were a close call, we are dealing with an unpreserved claim of error. There is certainly no “plain” error — let alone anything remotely approaching the miscarriage of justice required under the Olano standard. The remaining issues on appeal concern Goncalves’ sentence. At sentencing, the district court imposed concurrent twenty-year sentences on each of the three drug counts, 21 U.S.C. § 841(a)(1), (b)(l)(A)-(C), a concurrent ten-year sentence on the firearm felon-in-possession count, 18 U.S.C. § 922(g), and a consecutive five-year sentence on the count charging gun possession in furtherance of a drug crime, id. § 924(c). Thus, his current term of imprisonment is twenty-five years. Our concern is with the count I sentence of twenty years imposed for the 92.43 grams of crack stored in the Providence apartment. At the time Goncalves committed the crime, the governing federal statute, 21 U.S.C. § 841(b)(1)(A)(iii), imposed a mandatory ten-year minimum term for offenses involving over fifty grams of cocaine base (a term that encompasses crack cocaine); but the mandatory minimum increased to twenty years because Goncalves had a" }, { "docid": "19600991", "title": "", "text": "Magnum. Based on this record, we conclude that the district court did not err in finding that the officers had probable cause to believe that the Dodge Magnum contained evidence of a crime. B. Expectation of Privacy One rationale for the automobile exception is that a citizen possesses a reduced expectation of privacy in the contents of his car, particularly in light of \"the pervasive regulation of vehicles capable of traveling on the public highways.\" California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). This rationale applies \"forcefully\" when an officer observes the vehicle \"being used for transportation.\" Navas, 597 F.3d at 500-01. Jones argues that he had a heightened expectation of privacy in the Dodge Magnum because he parked the car in a lot within his home's curtilage. After oral argument in this case, the Supreme Court granted a writ of certiorari in Collins v. Virginia to address the issue of whether the automobile exception applies to a vehicle parked in a private driveway and within the curtilage of a home. See --- U.S. ----, 138 S. Ct. 53, 198 L.Ed.2d 780 (2017) (mem.); United States v. Jones , No. 16-87, Dkt. No. 107 (2d Cir. Oct. 2, 2017) (a letter from the government regarding the grant). The Supreme Court recently decided Collins , holding that the automobile exception does not permit \"a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.\" --- U.S. ----, 138 S.Ct. 1663, 1668, --- L.Ed.2d ---- (2018). That decision, however, has no effect on Jones's appeal, which fails because the driveway in which Jones's vehicle was parked was the shared driveway of tenants in two multi-family buildings and was not within the curtilage of Jones's private home. We hold that Jones had no legitimate expectation of privacy in the rear parking lot, where he initially parked the car and to which it was returned by the towing company. First, the lot was not within the curtilage of Jones's home. The lot was a common area" }, { "docid": "15673709", "title": "", "text": "was far from cooperative, he did seek to flee, he had not had a chance to destroy or to remove the gun or drugs, his car was being used for the illegal purpose of transporting drugs and a concealed weapon, and the items being sought were both contraband and dangerous. Further, after Coolidge, the Court has distinguished between buildings and cars, emphasizing the “significantly” lesser “expectation of privacy” in the latter, South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), based on “the pervasive regulation of vehicles capable of traveling on the public highways,” California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). In various contexts, the Court has been lenient in upholding searches under the automobile exception. E.g., Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion); Cady v. Dombrowski, 413 U.S. 433, 446, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Finally, a number of circuits have upheld driveway searches with probable cause but no warrant: three have squarely applied the automobile exception to permit searches of vehicles parked in the driveway of the defendant’s own residence, while others including this one have permitted such searches of vehicles in private driveways that were not the defendant’s residence. A few others have expressed doubts in light of Coolidge, e.g., United States v. Fields, 456 F.3d 519, 524-25 (5th Cir.), cert. denied, 549 U.S. 1046, 127 S.Ct. 614, 166 L.Ed.2d 455 (2006), but no circuit appears to read Coolidge as a per se rule against all driveway searches without a warrant. Here, it would be enough for us to uphold the search under the automobile exception on the grounds that Goncalves had tried to flee with a car known to be used for carrying drugs, had been chased into a driveway, and then had fled so that probable cause certainly existed to believe that the car contained contraband and quite possibly a weapon. Even if this were" }, { "docid": "50529", "title": "", "text": "fifteen minutes had transpired between Crystal Broo-kins’ dash from the scene of arrest and the discovery of the vehicle. Reviewing the relevant “historical facts,” none of which is in dispute, we conclude that the district court erred when it found that probable cause no longer obtained at the time of seizure. B. The district court next proceeded to analyze whether, assuming that probable cause had existed, a warrantless search would have been constitutionally permissible pursuant to the “automobile exception,” which was established under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and its progeny. The district court interpreted the Carroll line of cases to require a showing of exigency, notwithstanding recent Supreme Court precedent specifically disavowing the existence of any such separate requirement. The district court found in Carroll a requirement that the subject automobile be, in a somewhat phenomenological sense, “readily mobile” to justify a warrantless search. Applying this formulation of the rule, the district court concluded that on the facts presented — viz. the ease with which the officers could have blocked Brookins’ automobile and the fact that the Ford Expedition was unoccupied when discovered by the officers — a warrant was required to search and seize the automobile because it was not “readily mobile.” On appeal, Brookins proposes an interpretation of the “automobile exception,” which he grounds largely in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Coolidge, the Supreme Court, by the opinion of a four-justice plurality, declined to apply Carroll under circumstances evincing no exigency whatsoever. Specifically, the defendant’s automobile was parked in his own driveway and contained no contraband. Additionally, the police had developed probable cause well in advance of the warrantless search. Brookins maintains that Coolidge represents the sole Supreme Court decision to address “head-on” the warrantless search of an automobile at a private residence. Based upon the facts of Coolidge, Brookins would posit a bright-line rule, whereby the automobile exception may never apply when a vehicle is stationed on private, residential property. Brookins seeks additional support for this theory" }, { "docid": "22477887", "title": "", "text": "In essence, Kelly urges us to recognize an exception to the automobile exception when the police have significantly reduced the likelihood that a car will be driven away. As an initial matter, we note that officers may not have had as much control over this situation as Kelly suggests. They had no way of knowing whether Kelly’s girlfriend or one of his co-conspirators would arrive at the residence during the time it took them to secure a warrant, nor did they know whether there was a spare set of keys to the Lexus. Moreover, the Lexus was parked along a road where it was easily accessible to others. But even if Kelly is correct that there was little risk that the Lexus would be driven away, it matters not. It is well established that the exception “does not have a separate exigency requirement” apart from the inherent mobility of the automobile. Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam). This is because “[e]ven in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified] application of the vehicular exception.” Carney, 471 U.S. at 391, 105 S.Ct. 2066. Thus, reviewing courts need not determine the probability in each case that someone would have driven the car away during the time it would have taken the police to secure a warrant. Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) (per curiam). Instead, the exception applies as long as a car is “readily mobile” in the sense that it is “being used on the highways” or is “readily capable of such use” rather than, say, “elevated on blocks.” Carney, 471 U.S. at 392-93, 394 n. 3, 105 S.Ct. 2066. Following this precedent, we have previously declined to carve out exceptions to the automobile exception based on the degree of control police exercise over a vehicle. In United States v. Brookins, 345 F.3d 231 (4th Cir.2003), for example, we applied the exception to the search of an" }, { "docid": "12806533", "title": "", "text": "was involved in a high speed police chase immediately prior to the search; Fields ran a stop sign, drove erratically, and crashed into the side wall of a building. If the car was not mobile at the time of the search, it was solely by virtue of Fields complete disregard of driving regulations, and this does not entitle him to a heightened privacy interest. Second, Fields contends that the automobile exception does not apply because his vehicle was located on private property, the duplex, at the time of the search. California v. Carney clarifies that the automobile exception applies when the vehicle searched is “found stationary in a place not regularly used for residential purposes.” 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Thus, we have concluded that automobile exception may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search. See United States v. Sinisterra, 77 F.3d 101, 104-05 (5th Cir.1996) (“Here, the mall parking lot was not related to anyone’s residence.”); see also United States v. Williams, 124 Fed.Appx. 885, 887 (5th Cir.2005) (“[S]ome support exists for the proposition that the automobile exception does not apply when a vehicle is parked in the defendant’s private driveway ....”). As an initial matter, the automobile exception applies because Fields did not regularly use the duplex for residential purposes. While there is some indication in the record that Fields had an ownership interest in the duplex, a search of the duplex revealed that Fields did not use the duplex as a residence; he used it to sell his drags. Furthermore, Fields’ vehicle was not parked in the driveway. Rather, Fields had crashed the car into the side of the building. The Fourth Amendment concerns that arise when the police search a car that is parked in the driveway of a home, without a warrant, are not present here. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also United States v. Orona, 166 Fed.Appx. 765, 766 (5th Cir.2006) (“[E]xigent circumstances" }, { "docid": "50530", "title": "", "text": "the officers could have blocked Brookins’ automobile and the fact that the Ford Expedition was unoccupied when discovered by the officers — a warrant was required to search and seize the automobile because it was not “readily mobile.” On appeal, Brookins proposes an interpretation of the “automobile exception,” which he grounds largely in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Coolidge, the Supreme Court, by the opinion of a four-justice plurality, declined to apply Carroll under circumstances evincing no exigency whatsoever. Specifically, the defendant’s automobile was parked in his own driveway and contained no contraband. Additionally, the police had developed probable cause well in advance of the warrantless search. Brookins maintains that Coolidge represents the sole Supreme Court decision to address “head-on” the warrantless search of an automobile at a private residence. Based upon the facts of Coolidge, Brookins would posit a bright-line rule, whereby the automobile exception may never apply when a vehicle is stationed on private, residential property. Brookins seeks additional support for this theory in California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), where the Supreme Court held that a mobile home, on the facts presented, was more characteristic of an automobile than a fixed residence. The Court did look to the nature of the location where the vehicle was discovered, but only to ascertain whether the vehicle itself was, in an ontological sense, in use as a “movable vessel” or as a fixed residence. Hence, the Court’s reference to a “place not regularly used for residential purposes,” Carney, 471 U.S. at 892, 105 S.Ct. 2066 — from which the police would be less likely to infer that the object was residential in nature— served as a guidepost to determine, ah initio, whether the object encountered was a vehicle or a residence. After considering these circumstances, the Court concluded that the warrantless search of the mobile home was covered by the “automobile exception.” Id. at 394, 105 S.Ct. 2066. Brookins’ invocation of Carney to buttress his reading of Coolidge as generating a bright-line" }, { "docid": "22477888", "title": "", "text": "automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified] application of the vehicular exception.” Carney, 471 U.S. at 391, 105 S.Ct. 2066. Thus, reviewing courts need not determine the probability in each case that someone would have driven the car away during the time it would have taken the police to secure a warrant. Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) (per curiam). Instead, the exception applies as long as a car is “readily mobile” in the sense that it is “being used on the highways” or is “readily capable of such use” rather than, say, “elevated on blocks.” Carney, 471 U.S. at 392-93, 394 n. 3, 105 S.Ct. 2066. Following this precedent, we have previously declined to carve out exceptions to the automobile exception based on the degree of control police exercise over a vehicle. In United States v. Brookins, 345 F.3d 231 (4th Cir.2003), for example, we applied the exception to the search of an unoccupied vehicle parked in a driveway even though the police could have blocked the vehicle from escaping. Id. at 237-38. Likewise, in United States v. Gastiaburo, 16 F.3d 582 (4th Cir.1994), we applied the exception after the police had impounded a vehicle, rendering it “virtually impossible for anyone to drive the car away or tamper with its contents.” Id. at 586. As these cases recognize, “the justification to conduct a warrantless search under the automobile exception does not disappear merely because the car has been immobilized.” Id. These cases also reflect the well-recognized need to provide “clear and unequivocal guidelines to the law enforcement profession” in the context of automobile searches. See California v. Acevedo, 500 U.S. 565, 577, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (internal quotations omitted). As this very case illustrates, whether the police exercise control over an automobile sufficient to eliminate any exigencies may turn on a number of imponderable factors. Were the applicability of the automobile exception to turn on such factors, it would be hard for courts to administer" }, { "docid": "11869102", "title": "", "text": "He maintains that “the warrant requirement applies to vehicles in private driveways.” Aplt’s Br. at 25. Mr. DeJear’s argument is not persuasive. Since Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court has recognized an exception to the Fourth Amendment’s warrant requirement when there is probable cause that a car contains contraband. See California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). The exception is based upon (a) mobility (which makes the delay imposed by the warrant requirement too great an obstacle to effective law enforcement) and (b) reduced expectations of privacy. Carney, 471 U.S. at 390-93, 105 S.Ct. 2066; United States v. Mercado, 307 F.3d 1226, 1228 (10th Cir.2002). The police may also search an automobile’s passenger compartment without first obtaining a warrant if there is probable cause to arrest one of its occupants. See Thornton, 541 U.S. at 623, 124 S.Ct. 2127 (stating that “[o]nce an officer determines that there is probable cause to make an arrest [of an occupant of an automobile], it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment”). We acknowledge that some courts have concluded that “the automobile exception [to the warrant requirement] may not apply when it is parked at the residence of the criminal defendant challenging the constitutionality of the search.” United States v. Fields, 456 F.3d 519, 524-25 (5th Cir.2006). However, Mr. DeJear does not contend that the car was parked outside his residence. As a result, the principle set forth in Thornton establishes that the search of the car comported with the Fourth Amendment. In particular, once Mr. DeJear told Officer Morrison that he was stuffing “some weed” into the seat, there was probable cause to arrest Mr. DeJear. Thus, the police could search the passenger compartment without first obtaining a warrant. III. CONCLUSION We therefore AFFIRM Mr. DeJear’s convictions." }, { "docid": "20000534", "title": "", "text": "Maryland v. Dyson, U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Starting with Carroll v. United States, the Supreme Court recognized an exception to the Fourth Amendment’s warrant requirement when officers search an automobile. 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Originally, the rationale for the exception was the practical challenges of obtaining a warrant for a vehicle that could be “quickly moved” out of the jurisdiction. Id. Since Carroll, the Court has identified an additional justification for the exception: “the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). This reduced expectation in privacy is based, in part, upon the relative openness of a car’s passenger compartment, Cardwell v. Lems, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), but the Court has also applied the exception to searches of car trunks, Cady v. Dombrowski, 413 U.S. 433, 446, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and other closed compartments, Chambers v. Maroney, 399 U.S. 42, 44, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This is because the reduced expectation of privacy is also based upon “the pervasive regulation of vehicles capable of traveling on the public highways.” California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). With these two theoretical underpinnings, the automobile exception “justifies] searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.” Id. No exigency beyond that created by the ready mobility of an automobile is required for a warrantless search of a car to fall within the exception. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Within this framework, we consider whether the search of the blue Nissan comports with the Fourth Amendment. The testimony about King driving the Nissan to meet Detective Ropka demonstrates that the Nissan was readily mobile. And, the car’s registration to Blaylock and King" }, { "docid": "307866", "title": "", "text": "being used in the commission of a felony (evading arrest). As in White, state law designates as contraband property “used in the commission of ... any [specified] felony” and permits police to seize that “contraband.” Tex.Code Crim. P. art. 59.01 (2)(A)(ii); id. art. 59.02(a). However, unlike White, police in this case seized the vehicle from the porte cochere of the Trents’ property, not from a public parking lot. Notwithstanding this important distinction, Wade was entitled to rely on White in effectuating the seizure of the ATV. As noted, neither party has identified a Supreme Court or Fifth Circuit case addressing whether police may effect a warrant-less seizure of a vehicle as contraband when that vehicle is located on private, rather than public, property. Thus, White appears to be the most on-point precedent, and it permitted a similar seizure. Although the Court in White supported its holding by noting that the vehicle was seized from public property, the Court did not say that the seizure was permissible only because the vehicle was located on public property. In fact, the bulk of the analysis in White centered on Carroll and the “special considerations recognized in the context of movable items.” White, 526 U.S. at 565, 119 S.Ct. 1555. Those “special considerations” apply regardless of whether a vehicle is located on public or private property. Moreover, several courts of appeals have interpreted Carroll to permit the warrantless search of an automobile located on a private driveway. See, e.g., United States v. Blaylock, 535 F.3d 922, 925-27 (8th Cir.2008); United States v. Hines, 449 F.3d 808, 813-15 (7th Cir.2006); United States v. Brookins, 345 F.3d 231, 237 (4th Cir.2003); United States v. Hatley, 15 F.3d 856, 858-59 (9th Cir.1994). Thus, it remains an open question whether the Fourth Amendment permits the war-rantless seizure of a vehicle from private property when state law designates that vehicle as forfeitable contraband. See al-Kidd, 131 S.Ct. at 2085 (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”). Even if White clearly established a public/private distinction, the facts of this case" }, { "docid": "20000541", "title": "", "text": "v. Rowland, 341 F.3d 774, 785 (8th Cir.2003) (stating that evidence uncovered during a Terry search provided probable cause to search the entire car under the automobile exception). Nor was there any contraband in plain view. Cf. United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir.2000) (per curiam) (upholding a search of a car parked in the driveway of a home subject to search pursuant to a warrant when officers observed items commonly used for the manufacture of methamphetamine in plain view). The lack of plain view evidence or additional incriminating information undermines any argument that it was impractical for the officers to obtain a warrant for the Nissan in advance of the search. Additionally, the car was parked in Blaylock’s driveway. This court has previously upheld a warrantless search of a car parked in the driveway of a residence. Id. However, other courts have expressed reservations about applying the automobile exception doctrine to cars encountered on private property. See United States v. Fields, 456 F.3d 519, 524-25 (5th Cir.2006) (noting that the automobile exception “may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search”); United States v. Brookins, 345 F.3d 231, 237 n. 8 (4th Cir.2003) (suggesting that “heightened privacy interests may be triggered when a vehicle is encountered on private property”); but see United States v. Hines, 449 F.3d 808, 810, 815 (7th Cir.2006) (applying the automobile exception to a car parked on a private driveway); United States v. Markham, 844 F.2d 366, 369 (6th Cir.1988) (same). The officers encountered the Nissan exactly where they expected to find it— parked in front of Blaylock’s residence— and learned nothing about the car that was not known prior to applying for a warrant for the house, but not the car. Yet the car search is justified by an exception to the warrant requirement originally grounded upon practical difficulties occurring when officers encounter a moving vehicle on a public road and develop probable cause during the encounter. Allowing for a war-rantless search in this context seems antithetical to the" }, { "docid": "20000542", "title": "", "text": "exception “may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search”); United States v. Brookins, 345 F.3d 231, 237 n. 8 (4th Cir.2003) (suggesting that “heightened privacy interests may be triggered when a vehicle is encountered on private property”); but see United States v. Hines, 449 F.3d 808, 810, 815 (7th Cir.2006) (applying the automobile exception to a car parked on a private driveway); United States v. Markham, 844 F.2d 366, 369 (6th Cir.1988) (same). The officers encountered the Nissan exactly where they expected to find it— parked in front of Blaylock’s residence— and learned nothing about the car that was not known prior to applying for a warrant for the house, but not the car. Yet the car search is justified by an exception to the warrant requirement originally grounded upon practical difficulties occurring when officers encounter a moving vehicle on a public road and develop probable cause during the encounter. Allowing for a war-rantless search in this context seems antithetical to the automobile exception as originally conceived; as the Carroll Court stated, “[i]n cases where the securing of a warrant is reasonably practicable, it must be used.” Carroll, 267 U.S. at 156, 45 S.Ct. 280. Regardless, the Court has more recently stated, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Labron, 518 U.S. at 940, 116 S.Ct. 2485. I interpret “without more” to foreclose the imposition of a requirement to obtain a warrant when probable cause is established well before a search of a car is conducted or the consideration of the location of the vehicle on private property. While I am troubled by the cavalier attitude towards obtaining a warrant this case represents, I concur in the court’s opinion upholding the search under the expansive reading of the automobile exception articulated by the Supreme Court. . I acknowledge that the Court has steered away from the Carroll Court's suggestion that a warrant should be used when possible." }, { "docid": "12806534", "title": "", "text": "residence.”); see also United States v. Williams, 124 Fed.Appx. 885, 887 (5th Cir.2005) (“[S]ome support exists for the proposition that the automobile exception does not apply when a vehicle is parked in the defendant’s private driveway ....”). As an initial matter, the automobile exception applies because Fields did not regularly use the duplex for residential purposes. While there is some indication in the record that Fields had an ownership interest in the duplex, a search of the duplex revealed that Fields did not use the duplex as a residence; he used it to sell his drags. Furthermore, Fields’ vehicle was not parked in the driveway. Rather, Fields had crashed the car into the side of the building. The Fourth Amendment concerns that arise when the police search a car that is parked in the driveway of a home, without a warrant, are not present here. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also United States v. Orona, 166 Fed.Appx. 765, 766 (5th Cir.2006) (“[E]xigent circumstances are [ ] required to justify a warrantless search of a vehicle when the vehicle is parked in the driveway of a residence.”). The search of Fields’ vehicle was valid under the automobile exception to the warrant requirement, and we AFFIRM the district court’s denial of Fields’ motion to suppress. . United States v. Jones, 155 Fed.Appx. 204, 207 (6th Cir.2005) (holding that an arrest ten to fifteen feet from the car is a close spatial relationship). . The Thornton Court declined to address whether a \"recent occupant” of a vehicle needed to be within reaching distance of the car to constitute a close spatial relationship. Thornton, 541 U.S. at 622 n. 2, 124 S.Ct. 2127. . Pittman also raises doubts as to the Seventh Circuit’s holding in United States v. Arango, 879 F.2d 1501 (7th Cir.1989). In that case, the court upheld the validity of a search of the defendant's vehicle when he was a mile away at the time of the arrest. Notably, Arango precedes Thornton. . Fields contends that the government cannot" } ]

[ { "docid": "18894209", "title": "", "text": "LOGAN, Circuit Judge. H. Christopher Clark, the trustee in this Chapter 7 bankruptcy proceeding, appeals the district court’s order that reversed an extension of time the bankruptcy court granted the trustee to file objections to exemptions claimed by the debtor, William E. Brayshaw. 110 B.R. 935. Debtor filed his bankruptcy petition on May 10, 1989, claiming exempt property, pursuant to 11 U.S.C. § 522(Z). Under that section, property claimed as exempt automatically becomes exempt unless a party objects. Fed.R.Bankr.P. 4003(b) provides that objections must be filed within thirty days after the meeting of creditors, “unless, within such period, further time is granted by the court.” The trustee here filed a motion to extend the time for objections within the thirty-day period, actually on the thirtieth day after the creditor’s meeting, and the bankruptcy court granted the motion after its expiration. The district court granted the debtor leave to take an interlocutory appeal under 28 U.S.C. § 158(a) and reversed the bankruptcy court’s extension order. There are two issues on this appeal: (1) whether the district court’s order is an appealable final order; and (2) whether the bankruptcy court had power to grant a motion to extend time for objections under Rule 4003(b) after expiration of the designated thirty-day time period, provided the motion was filed within the period. I We have jurisdiction in bankruptcy cases only over final orders of district courts when they have exercised appellate jurisdiction. See 28 U.S.C. § 158(d); Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 911 F.2d 380, 386 (10th Cir.1990). “Grant or denial of a claimed exemption is a final appealable order from a bankruptcy proceeding.” Sumy v. Schlossberg (In re Sumy), 777 F.2d 921, 923 (4th Cir.1985) (citing White v. White (In re White), 727 F.2d 884, 885-86 (9th Cir.1984)). Although the bankruptcy court order extending the time for objections did not finally dispose of the status of the debtor’s exemptions, the district court’s reversal of that order had the effect of granting the debtor’s claimed exemptions and, therefore, is a final appealable order. II Rule 4003(b) provides that “[t]he" } ]

[ { "docid": "6503167", "title": "", "text": "and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.” In re Rimsat, Ltd., 98 F.3d 956, 961 (7th Cir.1996). The filing of a bankruptcy petition ... operates as a stay, applicable to all entities of (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. 11 U.S.C. § 362(a)(1). Under the Bankruptcy Code, either the applicable state law or the federal exemptions may be selected pursuant to 11 U.S.C. § 522(b) unless a state chooses to “opt out” of the federal exemption system. The state of Illinois has “opted out” of the federal exemption system. 735 ILCS 5/12-1201. Thus, in order to claim exemptions in bankruptcy, an Illinois debtor must schedule in bankruptcy all property that is asserted to be exempt under Illinois law. 735 ILCS 5/12-1201; Fed. R. Bankr.P. 4003. Bankruptcy debtors list their claimed exemptions on schedule C of Official Bankruptcy Form 6. After a debtor claims property exempt, any party in interest may object to the claimed exemption. 11 U.S.C. 522(l); Fed. R. Bankr.P. 4003(b). Section 522(l) provides that “unless a party in interest objects, the property claimed as exempt on such list is exempt.” The time for anyone to challenge a claimed exemption is 30 days after the conclusion of the meeting of creditors or the filing of any amendment to the exemption list or supplemental schedules unless further time is granted by the court. Fed. R. Bankr.P. 4003(b). Failure of a trustee or creditor to object within the thirty days provided by Bankruptcy Rule 4003(b) waives the right to contest the validity of an exemption. Taylor v. Freeland & Kronz, 503 U.S. 638, 643, 112 S.Ct. 1644, 1647, 118 L.Ed.2d 280 (1992). Included in the list of exemptions available to Illinois debtors is a “wildcard” exemption which allows a" }, { "docid": "4568020", "title": "", "text": "Wells Fargo Bank, N.A. (In re Jimenez), 335 B.R. 450, 451 (Bankr. D.N.M.2005) (“Jimenez I ”), rev’d by, Jimenez II; Calvin, 329 B.R. at 593. Because Wells Fargo is not attempting to protect setoff rights, the “exception” to turnover of funds in a deposit account recognized by Strumpf does not apply in this case. B. Property of the Estate and Exemption Rights Section 522(b) allows an individual debtor to exempt specific property from liquidation as part of the estate. As recently noted by the Supreme Court, “most assets become property of the estate upon commencement of a bankruptcy case, see 11 U.S.C. § 541, and exemptions represent the debtor’s attempt to reclaim those assets or, more often, certain interests in those assets, to the creditors’ detriment.” Schwab v. Reilly, 560 U.S. -, -, 130 S.Ct. 2652, 177 L.Ed.2d 234 (2010). In order to make exemption claims under § 522(b), § 522(Z) requires that the debtor “file a list of property that the debtor claims as exempt....” Implementing this provision, Rule 4003 required the Appellants to “list the property claimed as exempt under § 522 of the Code on the schedule of assets required to be filed by Rule 1007.” Rule 1007(b)(1)(A) required the Appellants to file their schedules of assets and liabilities “prepared as prescribed by the appropriate Official Forms.... ” Appellants filed their amended Official Form 6C (Schedule C — Property Claimed as Exempt) on August 11, 2009, claiming an exemption under Nevada law for 75% of the funds in the accounts. Once a claim of exemption has been asserted, “[u]nless a party in interest objects, the property claimed as exempt on [Official Form 6C] is exempt.” § 522(l); Taylor v. Freeland & Kronz, 503 U.S. 638, 643, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). Objections are timely if filed with in 80 days after the § 841(a) meeting of creditors is concluded, or within 30 days after the schedule of property claimed exempt is amended by the debtor, whichever is later. See Bankruptcy Rule 4003(b). If the 30-day objection period mandated by Bankruptcy Rule 4003(b) runs without objection," }, { "docid": "1147037", "title": "", "text": "of this section.... Unless a party in interest objects, the property claimed as exempt on such list is exempt. 11 U.S.C. § 522(1). Bankruptcy Rule 4003(b) states in relevant part: The trustee or any creditor may file objection to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors ... unless, within such period, further time is granted by the court. Bankruptcy Rule 4003(b). The Supreme Court recently addressed the operative effect of § 522(Z) and Rule 4003(b) in Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the debtor listed as exempt property “Proceeds from lawsuit— [Davis] v. TWA ... Claim for lost wages” and list the value as “unknown.” Taylor, — U.S. at-, 112 S.Ct. at 1646. Eventually, the debtor's lawsuit settled for ap proximately $110,000.00, and the trustee filed a complaint seeking turnover of the proceeds for the benefit of the creditors of the bankruptcy estate. Taylor, — U.S. at -, 112 S.Ct. at 1647. In Taylor it was uncontested that the debtor did not have a right to exempt more than a small portion of the proceeds either under state law or under the federal exemptions specified in 11 U.S.C. § 522(d). However, the debtor claimed the full amount as exempt and no party in interest timely objected. Taylor, — U.S. -, 112 S.Ct. at 1647. Therefore, the Court concluded that § 522(Z) made all the proceeds exempt, and that Rule 4003(b) prevents the trustee from challenging the validity of the exemption beyond the 30-day time limit. Taylor, — U.S. at-, 112 S.Ct. at 1648. In this case the debtor has listed his interest in two partnerships as exempt property and valued each at $1.00. Therefore, the issue before the court is whether the debtor’s entire interest in each partnership is exempt or only “$1.00” of each partnership interest is exempt. The debtor submits that the Supreme Court’s decision is Taylor dictates that the debtor’s entire interest in each partnership is exempt. I disagree. Although I base my decision on other" }, { "docid": "18981452", "title": "", "text": "dismissed or converted to a case under Chapter 7, 11 or 12 of [Title 11], whichever occurs first[.]” 11 U.S.C. § 1306(a)(1); Carroll v. Logan, 735 F.3d 147, 150 (4th Cir.2013) (holding that post-confirmation inheritance was property of the estate under Section 1306(a), despite Section\" 541(a)(5)’s 180-day limitation for post-petition inheritances). Property of the estate can be exempted by the Debtor, at which point, it ceases to be property of the estate. In this case, the Debtor amended her Schedules B and C on February 25, 2015, listing the claim as exempt under Va.Code § 34-28.1. Once thirty days had passed from that date, i.e., by March 28, 2015, the Debtor’s personal injury claim was exempted and no longer constituted property of the estate. Fed. R. Bankr. P. 4003(b) (requiring objections to exemptions “within 30 days after the meeting of creditors held under § 341(a) is concluded or within SO days after any amendment to the list or supplemental schedules is filed, whichever is later”) (emphasis added); Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) (untimely objection to claim of exemption disallowed, even where the debtor had no colorable basis for the claim of exemption). VPSI argues that the Debtor’s Motion should be denied because the Debtor, lacked standing to file the lawsuit, at the time that the suit was filed. Docket No. 98 at 3-4 (VPSI Response); Docket No. 104 at 3-6 (VPSI Reply) (“Debtor is not authorized to sue for her own benefit.”) The Fourth Circuit has held that Chapter 13 Debtors have standing to maintain non-bankruptcy causes of action. Wilson v. Dollar General Corp., 717 F.3d 337, 343-44 (4th Cir.2013). The Wilson case involved a pre-petition cause of action under the Americans with Disabilities Act (ADA). The Fourth Circuit made clear the distinction between a Chapter 13 debtor’s standing to bring non-bankruptcy causes of action and a Chapter 7 debtor’s standing to bring the same kinds of claims. The Court stated: [I]n the Chapter 7 bankruptcy context— which requires liquidation and distribution of assets by the trustee—« have recognized," }, { "docid": "17388877", "title": "", "text": "these arguments are unpersuasive. The Court affirms the bankruptcy court’s decision to grant the Boyds’ motion to dismiss because Towers’ claims are time-barred. I. THE BANKRUPTCY COURT CORRECTLY HELD THAT TRUSTEE’S OBJECTION TO DEBTORS’ EXEMPTION WAS TIME-BARRED. Towers first argues that the bankruptcy court erred in holding that U.S. Supreme Court case Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), requires timely filing of an objection to a claim of exemption where actual notice of the objection was given. Alternatively, he argues that the Court should use its equitable powers under Bankruptcy Code section 105 to cure his failure to file a timely objection. A. Overview of Bankruptcy Code, Bankruptcy Rules, and Case Law Regarding Objections to Exemptions The requirements for exempting property from a debtor’s estate and for filing objections to such exemptions are governed by the bankruptcy code and rules. Bankruptcy Code section 522(l) requires debtors to list any property exempted under federal or state law, and Rule 4003(a) requires the exemptions to be listed on a schedule of assets pursuant to Rule 1007. The Boyds amended their joint bankruptcy schedule under California Code of Civil Procedure section 704.140(a), which exempts a cause of action for personal injury. See Judge Montali’s Memorandum Deci sion of May 18, 1999 (“Mem.Dec.”) at 8 n. 3. A trustee has 30 days to file an objection to an exemption claimed by a debtor on his or her amended bankruptcy schedule. Fed.R.Bankr.P. 4003(b). Absent an objection, the claimed property will be exempted from the estate. 11 U.S.C. § 522(1). The U.S. Supreme Court articulated a rule of strict interpretation for the timeliness of Rule 4003(b) objections in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the Court held that a trustee must object to a claimed exemption within the 30-day time limit, and that if a trustee fails to object within 30 days, the property is rendered exempt and the trustee is barred from contesting the validity of the exemption. 503 U.S. at 642, 112 S.Ct. 1644." }, { "docid": "19262342", "title": "", "text": "(Bankr.N.D.Ill.1996). Illinois exemption statutes are to be liberally interpreted in favor of the debtor. In re Barker, 768 F.2d 191, 196 (7th Cir.1985). If it is possible to construe an exemption statute in ways that are both favorable and unfavorable to a debtor, the favorable method should be chosen. Id.; In re Dealey, 204 B.R. 17, 18 (Bankr.C.D.Ill.1997). The purpose of the exemption provision is to protect a debtor’s fresh start in bankruptcy. In re Wright, 156 B.R. 549, 554 (Bankr.N.D.Ill.1992). Federal Rule of Bankruptcy Procedure 4003 governs hearings on disputed claims of exemption and objections thereto. Section 522(i) of the Bankruptcy Code and Rule 4003(a) require debtors to list the property claimed as exempt on the schedule of assets they are required to file. The rule provides that: A debtor shall list the property claimed as exempt under § 522 ... on the schedule of assets required to be filed by Rule 1007. If the debtor fails to claim exemptions or file the schedules within the time specified ... a dependent of the debtor may file the list within 30 days thereafter. Fed. R. Bankr.P. 4003(a) (emphasis supplied). Critical to the Debtor’s defense and objection to the motion is the last sentence of § 522(i) which states: “Unless a party in interest objects, the property claimed as exempt on such list is exempt.” 11 U.S.C. § 522(l). See also Taylor v. Freeland & Kronz, 503 U.S. 638, 642, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). Rule 4003(b) affords the trustee and creditors 30 days after the conclusion of the § 341 meeting of creditors to object to the exemptions claimed. The United States Supreme Court has held that § 522© and the Rule 4003 time limits bar contesting the validity of an exemption after the 30-day period for objecting has expired where the court has not granted an extension, even though a valid objection could have been made had the party acted promptly. Taylor, 503 U.S. at 642-44, 112 S.Ct. 1644. See also In re Salzer, 52 F.3d 708 (7th Cir.1995), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273," }, { "docid": "10228661", "title": "", "text": "ORDER JOHN L. PETERSON, Bankruptcy Judge. In this Chapter 7 case, the Debtor has filed a “Motion and Brief to Alter or Amend Judgment” entered March 14, 1995, on the Debtor’s motion to avoid the judgment lien of Citizens First National Bank (Bank). In the March 14, 1995, holding, the Court, applying 11 U.S.C. § 522(f) as amended by the Bankruptcy Reform Act of 1994, P.L. 103-394, held, in part, that under Montana’s exemption law the value of the Debtor’s homestead exemption was limited to Debtor’s proportional interest in the real property. Mont. Code Ann. § 70-32-104(2). That meant the Debtor’s exemption was limited to $20,000.00. Debtor now contends in the present motion, that since there was no objection to the Debtor’s claim of exemption under § 70-32-104 of $40,000.00, under the decision of Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), this Court as a matter of law was bound to the higher figure of $40,000.00, “whether or not legally correct” under Montana law. Taylor considered and concluded that a Chapter 7 trustee’s late-filed objection to a legally insufficient exemption was foreclosed under § 522© and Rule 4003(b), which required the trustee to object within 30 days from the § 341 First Meeting of Creditors. 503 U.S. at 643-45, 112 S.Ct. at 1648. The Supreme Court concluded: Davis claimed the lawsuit proceeds as exempt on a list filed with the Bankruptcy Court. Section 522(1), to repeat, says that “[ujnless a party in interest objects, the property claimed as exempt on such list is exempt.” Rule 4003(b) gives the Trustee and creditors 30 days from the initial creditors’ meeting to object. By negative implication, the Rule indicates that creditors may not object after 30 days “unless, within such period, further time is granted by the court.” The Bankruptcy Court did not extend the 30-day period. Section 522(1) therefore has made the property exempt. Taylor cannot contest the exemption at this time whether or not Davis had a color-able statutory basis for claiming it. Taylor, 503 U.S. at 643-44, 112 S.Ct. at 1648. In" }, { "docid": "14635485", "title": "", "text": "one case construing 11 U.S.C. § 105(a), In re Budinsky, 1991 WL 105640 (W.D.Pa.1991), and In re Olszewski, 124 B.R. 743, 746 (Bankr.S.D.Ohio 1991). The Debtors cite in opposition the U.S. Supreme Court opinion Taylor v. Freeland & Kronz (Taylor), — U.S. —, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), which this Court cited in Braddock v. U.S.A. (In re Braddock), 149 B.R. 636 (Bankr.Mont.1992): In Taylor, the United States Supreme Court provided the following summary of the procedure for claiming exemptions: When a debtor files a bankruptcy petition, all of his property becomes property of a bankruptcy estate. See 11 U.S.C. § 541. The Code, however, allows the debtor to prevent the distribution of certain property by claiming it as exempt. Section 522(b) allowed Davis to choose the exemptions afforded by state law or the federal exemptions listed in § 522(d). Section 522(Z) states the procedure for claiming exemptions and objecting to claimed exemptions as follows: “The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section_ Unless a party in interest objects, the property claimed as exempt on such list is exempt.” Although § 522(¿) itself does not specify the time for objecting to a claimed exemption, Bankruptcy Rule 4003(b) provides in part: “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) ... unless, within such period, further time is granted by the court.” Taylor, — U.S. at —, 112 S.Ct. at 1167. The U.S. Supreme Court went on to state that by negative implicatidn, Rule 4003(b): [Ijndicates that creditors may not object after 30 days ‘unless, within such period, further time is granted by the court.’ The Bankruptcy Court did not extend the 30 day period. Section 522(l) therefore has made the property exempt. Taylor cannot contest the exemption at this time whether or not Davis had a colorable statutory basis for claiming it. Deadlines may lead to unwelcome results, but they prompt parties to" }, { "docid": "16621573", "title": "", "text": "possession to hold assets for no benefit to the estate would unconscionable.”). In this case, thé Debtor argues that there wás no net equity remaining in the Property because his claimed exemptions combined with the existing lien amount exceed the scheduled value of the Property as of the date of the filing. Therefore, the Debtor avers the Property is of inconsequential value and no benefit to the estate and must be abandoned, notwithstanding any postpetition appreciation in value. The Debtor also contends that the Trustee is bound by the claimed exemptions because he did not file a timely objection under Section 522(1). Bankruptcy Rule 4003(b) requires that an objection be filed within 30 days after the conclusion of the § 341 meeting unless, during the 30 day period, the court extends the time for objections. Because the Trustee failed to object to the exemptions within the requisite time, the Debtor contends that the Property is fully exempt, is of no benefit to the estate, and must be abandoned. The Debtor relies on the Supreme Court’s opinion in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the Court held that a chapter 7 trustee could not contest the validity of a claimed exemption after the expiration of the Rule 4003(b) 30-day objection period, even though the debtor had no color-able basis for claiming the exemption. Taylor, 503 U.S. at 643-45, 112 S.Ct. at 1647-49. In Taylor, that debtor claimed an exemption for proceeds from a discrimination suit which she had pending against her employer. In her schedules, the debtor described the value of the exempt property as “unknown.” During the first meeting of creditors, the debtor orally estimated that her claim was worth $90,000. In response to further inquiries from the trustee, the debtor optimistically raised her estimation to $110,000. Nevertheless, the trustee decided not to object to the claimed exemption because he doubted that the lawsuit had any value. Eventually, the debtor settled with her employer for $110,000 which resulted in a net recovery to the debt- or of $71,000. The" }, { "docid": "17388878", "title": "", "text": "a schedule of assets pursuant to Rule 1007. The Boyds amended their joint bankruptcy schedule under California Code of Civil Procedure section 704.140(a), which exempts a cause of action for personal injury. See Judge Montali’s Memorandum Deci sion of May 18, 1999 (“Mem.Dec.”) at 8 n. 3. A trustee has 30 days to file an objection to an exemption claimed by a debtor on his or her amended bankruptcy schedule. Fed.R.Bankr.P. 4003(b). Absent an objection, the claimed property will be exempted from the estate. 11 U.S.C. § 522(1). The U.S. Supreme Court articulated a rule of strict interpretation for the timeliness of Rule 4003(b) objections in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the Court held that a trustee must object to a claimed exemption within the 30-day time limit, and that if a trustee fails to object within 30 days, the property is rendered exempt and the trustee is barred from contesting the validity of the exemption. 503 U.S. at 642, 112 S.Ct. 1644. The time limit applies regardless of the merits of the exemption. Id. The debtor in Taylor had claimed the expected proceeds from a pending lawsuit as exempt property, and the trustee failed to object to the exemption. Id. at 640-41, 112 S.Ct. 1644. After the debtor settled her lawsuit, the trustee sought to have the money turned over to the debtor’s bankruptcy estate. Id. at 641, 112 S.Ct. 1644. Although the bankruptcy court and the district court held that the debtor had no statutory basis for claiming the entire settlement exempt, the Supreme Court found that the property was exempt because the trustee failed to object within the 30-day time limit. Id. at 640-42, 112 S.Ct. 1644. The Supreme Court concluded that the trustee could not contest the exemption, whether or not the debtor “had a colorable statutory basis for claiming it.” Id. at 643-44, 112 S.Ct. 1644. B. Actual Notice Does Not Satisfy the Filing Requirement Under Bankruptcy Rule 4003 Towers does not deny that Taylor controls the determination of the timeliness of his" }, { "docid": "12627507", "title": "", "text": "Bankruptcy Rule 4003(b) govern objections to exemptions. Under these provisions, a debt- or is required to file a list of property that the debtor claims as exempt. Unless a party in interest objects to an exemption within 30 days of the conclusion of the meeting of creditors, the property is exempt in the amount claimed. 11 U.S.C. § 522(i); FED. R. BANKR. PROC. 4003(b). This is true even if the debtor had no colorable basis for claiming the exemption. In re Canelos, 216 B.R. 159, 163 (Bankr.D.Md.1997) (citing Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992)). Claiming exemptions for property, if allowed, precludes the property from being distributed to creditors. The meeting of creditors was held on April 18, 2000. Therefore, the deadline to file objections to exemptions was May 18, 2000. In the instant case, an objection to the debtor’s claim of exemption for the preference recovery sought by this action was filed by Defendant on June 12, 2000. Thus, the objection to exemption must be denied as untimely under Taylor v. Free-land. Notwithstanding, this court in In re Canelos, held that although no objection to the debtor’s claim of exemption was filed within the prescribed time period of § 522®, the lienor could still challenge the amount of the claimed exemption in defense of debtor’s motion to avoid lien. In re Canelos, 216 B.R. 159 (Bankr.D.Md.1997) “If a creditor defeats a lien avoidance motion by successfully contesting the amount of the exemption, the debtor loses the ability to avoid the lien, but the property retains its status as exempt from being administered as property of the bankruptcy estate.” Id. at 164. Likewise, this court finds that the defendant may proceed to contest the debtor’s claimed exemption in opposition to the preferential transfer action despite the denial of objection to exemption. It is in this context that the court will address the debtor’s claimed exemption. Section 522 of the Bankruptcy Code (hereinafter all sections refer to the Bankruptcy Code unless otherwise noted) allows a debtor to exempt certain property from property of" }, { "docid": "6503168", "title": "", "text": "be exempt under Illinois law. 735 ILCS 5/12-1201; Fed. R. Bankr.P. 4003. Bankruptcy debtors list their claimed exemptions on schedule C of Official Bankruptcy Form 6. After a debtor claims property exempt, any party in interest may object to the claimed exemption. 11 U.S.C. 522(l); Fed. R. Bankr.P. 4003(b). Section 522(l) provides that “unless a party in interest objects, the property claimed as exempt on such list is exempt.” The time for anyone to challenge a claimed exemption is 30 days after the conclusion of the meeting of creditors or the filing of any amendment to the exemption list or supplemental schedules unless further time is granted by the court. Fed. R. Bankr.P. 4003(b). Failure of a trustee or creditor to object within the thirty days provided by Bankruptcy Rule 4003(b) waives the right to contest the validity of an exemption. Taylor v. Freeland & Kronz, 503 U.S. 638, 643, 112 S.Ct. 1644, 1647, 118 L.Ed.2d 280 (1992). Included in the list of exemptions available to Illinois debtors is a “wildcard” exemption which allows a debtor to protect his interest, not to exceed $2,000 in value, “in any other property,” including cash on hand. 735 ILCS 5/12-1001(b). This “wildcard” exemption can certainly be used by a bankruptcy debtor to exempt assets which could then be used to pay the bankruptcy court filing fee and attorneys fees. There could be an issue raised as to whether particular funds used by a debtor for these purposes were truly exempt, but this question can be resolved in the context of the bankruptcy case by an objection to the exemption claim under Rule 4003(b). See Fed. R. Bankr.P. 4003(b). In this case, Debtor did assert his “wildcard exemption” and no objection was filed thereto. Several conclusions can be drawn from the foregoing. A judgment debtor who has been served with a citation containing a restraining order may nonetheless use exempt funds to pay for bankruptcy filing fees and legal representation, but should specifically claim such funds as exempt on bankruptcy schedule C. If payments in connection with a bankruptcy case came from funds listed" }, { "docid": "18807442", "title": "", "text": "protestations, this is not an instance where the Trustee is seeking to sell property to ameliorate his failure to timely object to exemption claims, and thereby shift to the Debtors the burden of proof that he would have borne in an exemption objection matter under Fed.R.Bank.P. 4003(c). In point of fact, the Trustee does not object to the Debtors’ exemption claim, and he is fully prepared to recognize their $1.00 claimed exemption interest in the Stock. B. Effect of Trustee’s Failure to Object to Debtors’ Claim of Exemption in the Stock. The filing of a joint petition under 11 U.S.C. § 302(a) creates an estate or estates comprised of, inter alia, “all legal or equitable interests of ... [each] debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The Bankruptcy Code permits debtors to exempt from their estates certain interests in property. 11 U.S.C. § 522(b). Toward that end, the Code directs that “[a] debtor shall file a list of property that the debtor claims as exempt. ...” and that “[u]nless a party in interest objects, the property claimed exempt on such list is exempt.” 11 U.S.C. § 522(l). Bankruptcy Rule 4003(b) specifies the time within which objections must be made to a debtor’s list of exemption claims, to wit: 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 or supplemental schedules unless, within such period, further time is granted by the court. The Debtors’ argue, on the strength of Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), inter alia, that because they claimed the entire scheduled value of the Stock (i.e. $1.00) as exempt, the Trustee’s failure to object to the exemption claim revested them with title to the Stock by operation of law 30 days after the conclusion of their meeting of creditors. This Court does not read Taylor to compel the result urged" }, { "docid": "1147036", "title": "", "text": "Plaintiffs’ position is simple; since debt- or declared the value of his exempted interest in Piper and Lisa Square as $1.00 each, debtor’s interest is available for purchase subject to debtor’s $1.00 exemption. DEBTOR. Debtor argues that the recent Supreme Court case of Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), is dispositive. In Taylor, the Court held that a party cannot contest a debtor’s exemption beyond the 80-day period Bankruptcy Rule 4003(b) whether or not the debtor had a colorable statutory basis for claiming it. Accordingly, debtor argues that since no timely objections were made in this case the entire value of his interests in Piper and Lisa Square are exempt by operation of 11 U.S.C. § 522(0 regardless of the $1.00 valuation. Therefore, debtor argues that there is no “nonexempt” interest available for plaintiffs to purchase. Discussion and Conclusions of Law Section 522(Z) of the bankruptcy code states in pertinent part: The debtor shall file a list of property the debtor claims as exempt under subsection (b) of this section.... Unless a party in interest objects, the property claimed as exempt on such list is exempt. 11 U.S.C. § 522(1). Bankruptcy Rule 4003(b) states in relevant part: The trustee or any creditor may file objection to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors ... unless, within such period, further time is granted by the court. Bankruptcy Rule 4003(b). The Supreme Court recently addressed the operative effect of § 522(Z) and Rule 4003(b) in Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the debtor listed as exempt property “Proceeds from lawsuit— [Davis] v. TWA ... Claim for lost wages” and list the value as “unknown.” Taylor, — U.S. at-, 112 S.Ct. at 1646. Eventually, the debtor's lawsuit settled for ap proximately $110,000.00, and the trustee filed a complaint seeking turnover of the proceeds for the benefit of the creditors of the bankruptcy estate. Taylor, — U.S. at -, 112 S.Ct. at 1647. In Taylor" }, { "docid": "5465848", "title": "", "text": "governing exemptions, F.R.B.P. 4003. In turn, the Debtors must comply with the requirements of 11 U.S.C. § 522(b) . The United States Supreme Court succinctly summarized the procedure to be followed in claiming exemptions in Taylor v. Freeland & Kronz, 503 U.S. 638, 642, 112 S.Ct. 1644, 1647, 118 L.Ed.2d 280 (1992): When a debtor files a bankruptcy petition, all of his property becomes property of a bankruptcy estate. See 11 U.S.C. § 541. The Code, however, allows the debtor to prevent the distribution of certain property by claiming it as exempt. Section 522(b) allowed Davis to choose the exemptions afforded by state law or the federal exemptions listed in § 522(d). Section 522(1) states the procedure for claiming exemptions and objecting to claimed exemptions as follows: “The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section.... Unless a party in interest objects, the property claimed as exempt on such list is exempt.” Although § 522(1) itself does not specify the time for objecting to a claimed exemption, Bankruptcy Rule 4003(b) provides in part: “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) ... unless, within such period, further time granted by the Court.” The solution to the instant dispute lies in the simple language of Taylor that all of the Debtors’ property, including their homestead, became property of the estate under the broad scope of § 541(a). Id.; Campbell, 14 Mont.B.R. at 141; United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983); Gitts, 116 B.R. at 176 n. 4. Property that is to be claimed as exempt is included as property of the estate by § 541(a). Taylor, 503 U.S. at 642, 112 S.Ct. at 1647; H.R.Rep. No. 595, 95th Cong., 1st Sess. 367-68 (1977) U.S.Code Cong.Admin.News 1978 pp. 5787, 5963, 6173. This is a major change from the treatment of exempt property under the former Section" }, { "docid": "19322779", "title": "", "text": "at 409. See also 735 ILCS 5/12-112. Consequently, when any debtor timely asserts as exempt his entire equity in entirety property, that claim should prevail. Debtor Claimed the Exemption It is clear here that Debtor claimed his residence as exempt on his Bankruptcy Petition in Schedule C. He claimed $7,500 exempt as his homestead pursuant to 735 ILCS 5/12-901, but also claimed $51,926 exempt as property held in tenancy by the entirety pursuant to 735 ILCS 5/12-112, also citing Allard, 196 B.R. 402 in that Schedule. After a debtor claims property as exempt, the trustee or any creditor may file objections to the claimed exemptions within 30 days after the meeting of creditors held under 11 U.S.C. § 341. Fed. R. Bankr.P. 4003(b). Pursuant to 11 U.S.C. § 522(i), if no party in interest objects within that period to a claimed exemption, such property becomes incontestably exempt. No objections to exemption claims were filed here by Sheikh or anyone else. The Supreme Court has held that, even when a debtor has no colorable basis for claiming an exemption, once the 30-day period has expired the property is exempt, Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992), and the Seventh Circuit Court of Appeals has more recently followed that rule. In re Salzer, 52 F.3d 708 (7th Cir.1995), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273 (failure to object within the 30 days provided by Rule 4003(b) waives the right to object); In re Kazi, 985 F.2d 318, 320 (7th Cir.1993). Sheikh protests that the Debtor admitted in his Schedules that he wasn’t even married when he filed in bankruptcy (though Debt- or has claimed that to be a typographical error). Without deciding whether that is a valid objection to the claimed exemption of the entireties property, the issue presented is whether any objection comes too late to be considered. The conclusion must be that Debtor may avoid the lien on his residence regardless of whether he was actually entitled to the exemption under Illinois law when there was no timely objection" }, { "docid": "10708814", "title": "", "text": "Clear of Any Claims of the Estate. Rule 4003(b)(1) provides the deadlines for filing objections to exemptions. In pertinent part, the rule states: A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under Section 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. Fed. R. Bankr.P. 4003(b)(1). Interpreting each word in accordance with its plain meaning, and applying the above analysis respecting the statutory necessity of holding a second Section 341(a) meeting of creditors following conversion, the rule literally provides for two, fresh thirty day periods to object to exemptions in a converted case. However, the rule also states with equal vigor that objections to “any amendment” or “supplement schedules” must likewise be filed within thirty days. Do these seemingly incongruous interpretations lead to an irreconcilable conflict in this instance? Both are entirely plausible and the hair’s breadth of a difference in the rule’s divergent ‘plain meanings’ is reflected in the almost equal division in outcomes among the reported cases. Which then, is the correct choice? On the facts of this ease, the Court believes the question must be resolved in favor of a strict interpretation of both the rule and the statute it is intended to implement. Taylor v. Freeland & Kronz, 503 U.S. 638, 643, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). That provision is Section 522(1). The rule’s construction cannot override the statute’s plain meaning. Section 522(() provides in pertinent part that, “Unless a party in interest objects, the property claimed as exempt on such list [the debtor’s list of exemptions] is exempt.” See also Bell, 225 F.3d at 215 (the effect of this self-executing exemption is to remove property from the estate and to vest it in the debtor). As used in the Statute, the word ‘objects’ must mean a timely objection filed in accordance with Rule 4003(b)(1). See Taylor v. Freeland & Kronz, Id. at 642, 112 S.Ct. 1644 (1992). Hence, in a case where a" }, { "docid": "18051961", "title": "", "text": "the timely complaint of January 13, 1998, such that the family account claim itself was timely. See In re Magno, 216 B.R. 34, 37-40 (BAP 9th Cir.1997). Both courts assumed that the amended complaint and the family account allegation of May 6, 1998, were untimely. Dr. Ryan does not contest this assumption on appeal. Therefore, we shall proceed in the same fashion as the bankruptcy and district courts and assume that the amended complaint was untimely. . Because the rules are almost identical, it is appropriate to consider decisions by courts construing Rule 4007(c) as well as Rule 4004(a). See In re Santos, 112 B.R. 1001, 1004 n. 2 (BAP 9th Cir.1990). . Contrary to Dr. Kontriclc's assertion, we do not think that the Supreme Court’s \"decision in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), requires a different result. But see In re Leet, 274 B.R. 695, 696-97 (BAP 6th Cir.2002). In Taylor, the Court held that there was no good-faith exception to the time limits for filing objections to a debtor's list of exempt property. See Taylor, 503 U.S. at 644-45, 112 S.Ct. 1644. Under 11 U.S.C. § 522(b), a debtor may claim certain property as exempt from his bankruptcy estate; the debtor may elect to use exemptions under state or federal law. See 11 U.S.C. § 522(b)(1)-(2). Section 522(1) describes the procedures for claiming such exemptions: \"The debtor shall file a list of property the debtor claims as exempt.... Unless a party in interest objects, the property claimed on such list is exempt.” Id. § 522(l). Bankruptcy Rule 4003(b) provides that \"[t]he 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.” Fed.R.Bankr.P. 4003(b). In Taylor, the debtor had claimed as exempt the proceeds from an employment discrimination lawsuit that was pending in state court at the time of her bankruptcy filing. See Taylor, 503 U.S. at 640, 112 S.Ct. 1644. The parties agreed that there was no basis for her to claim an exemption" }, { "docid": "23294868", "title": "", "text": "sought to sell the interest. Unless the Reavis’s seek to adjust their exemption for January 16th Associates upward by amendment, within the statutory maximum amount allowed for the sum of the interests claimed under the homestead exemption, Virginia law limits their exemption of this interest to $10.00. B. Implications of Trustees’ Failure to Object The debtors in both cases suggest that a recent decision of the United States Supreme Court interpreting Section 522(7) of the Bankruptcy Code and Bankruptcy Rule 4003(b) entitles them to an exemption of the full value of the interests at issue, notwithstanding the limitations imposed by the Virginia homestead law. This Court concludes that debtors are not entitled to an exemption exceeding the $5,000/$10,000 statutory cap under any provision of bankruptcy law nor any ruling by the Supreme Court. The Bankruptcy Code states that a “debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section.... Unless a party in interest objects, the property claimed as exempt on such a list is exempt.” 11 U.S.C.S. § 522(0 (Law. Coop. 1986). The' Bankruptcy Rules provide the time within which objections must be made: 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 or supplemental schedules unless, within such period, further time is granted by the court. Fed.R.Bankr.P. 4003(b) (Law. Co-op. Supp. 1993). In neither of the present cases did the trustee timely file an objection to the claimed exemptions pursuant to 11 U.S.C. § 522(0 or Rule 4003(b). The United States Supreme Court recently addressed the consequences flowing from the trustee’s failure to object under 11 U.S.C. § 522(0 and Rule 4003(b). See Taylor v. Freeland & Kronz, — U.S. -, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). In Taylor, the debtor “claimed as exempt property the money she expected to win in her discrimination suit against TWA. She described this property as ‘Proceeds from lawsuit —" }, { "docid": "17614559", "title": "", "text": "allegations of the Debtors’ bad faith, and assertions of concealment or nondisclosure of property of the estate. The Trustee’s allegation of prejudice to the estate will also be considered. C. The Basics and the Burden of Proof. The Bankruptcy Code succinctly requires that a “debtor shall file a list of property that the debtor claims as exempt under [§ 522(b)].” § 522(l). Unless a party in interest [normally the trustee or sometimes a creditor] objects, the property claimed as exempt on such list is exempt. Id. The Bankruptcy Rules parrot the Code. “A debtor shall list the property claimed as exempt under § 522 of the Code on the schedule of assets required to be filed by Rule 1007.” Fed. R. BaNKR.P. 4003(a). To object to an exemption, or exemptions, a party in interest must timely object to the list of exempt property within a specified time. Fed. R. BankR.P. 4003(b). The current deadline is “within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later.” Fed. R. Bankr.P. 4003(b)(1); cf. In re Kazi, 985 F.2d 318, 323 (7th Cir.1993) (after the amendment, a new 30-day period commences for added or revised exemptions but not for unchanged exemptions). As would be expected, “[a] copy of any objection shall be delivered or mailed to the trustee, the debtor and the debtor’s attorney....” Fed. R. Banxr.P. 4003(b)(4). If no timely objection is lodged by a party in interest, the property listed as exempt becomes exempt even when the claimed exemption is legally invalid or asserted without good faith. Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). However, when a debtor claims a legally valid exemption under § 522(b), a party in interest is not required to object to the debtor’s scheduled value of the exempt property which may be asserted in conjunction the debtor’s list of exempt property. Schwab v. Reilly, — U.S. -, 130 S.Ct. 2652, 177 L.Ed.2d 234 (2010); In re Cormier," } ]

[ { "docid": "23232661", "title": "", "text": "into the mainstream of trademark law.” 1 McCarthy, supra, at 287. See also CPG Products Corp. v. Pegasus Luggage, Inc., 776 F.2d 1007, 1011-12 (Fed.Cir.1985); University of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535, 1541 and n. 14 (11th Cir.1985); LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 75 (2d Cir.1985); Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d 417, 425 n. 3 (5th Cir.1984); John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980-81 and n. 25 (11th Cir.1983). And high time. Labels should not determine rights. It would not do to give Blau more protection for its location box conceived as “trade dress” than it would be entitled to if the box were called a common law trademark. Some cases, it is true, hold that in a trade dress case the plaintiff must always prove secondary meaning, rather than just when the trade dress is descriptive, which is the rule in a conventional trademark case. See, e.g., Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d 299, 303-04 (2d Cir.1981). But these holdings may just reflect the fact that trade dress may be undistinctive without being descriptive; in such a case “secondary meaning” may be a synonym for “distinctive.” If any of these cases stands for the broader proposition that secondary meaning must be shown even if the trade dress is a distinctive, identifying mark, then we think they are wrong, for the reasons explained by Judge Rubin for the Fifth Circuit in Chevron. At all events, decisions that impose a heavier burden of proof on plaintiffs in trade dress cases than in conventional trademark cases cannot help Blau. The goal of trademark protection is to allow a firm to affix an identifying mark to its product (or service) offering that will, because it is distinctive and no competitor may use a confusingly similar designation, enable the consumer to discover in the least possible amount of time and with the least possible amount of head-scratching whether a particular brand is that firm’s brand or a competitor’s brand. W.T. Rogers Co. v." } ]

[ { "docid": "7671091", "title": "", "text": "addition to the factors recognized by the Supreme Court on this subject, cases in the Eleventh Circuit also evaluate distinctiveness in terms of (1) whether a shape or design is common, (2) whether it is unique in a particular field, and (3) whether it is a mere refinement of a well-known form of ornamentation for a particular class of goods. AmBrit, 812 F.2d at 1536 (citing the test first established in Seabrook Foods, Inc. v. BarWell Foods, Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977)). The essential purpose of this inquiry is to withhold protection of common forms of presentation in a particular field of competition. See Reed-Union Corp. v. Turtle Wax, Inc., 869 F.Supp. 1304 (N.D.Ill.1994). Thus, for example, an arctic sun and a polar bear on a blue ice cream wrapper are inherently distinctive because they are suggestive of the coldness of the product and are not merely descriptive of the ice cream. AmBrit, 812 F.2d at 1537. However, an industry custom, such as packaging lime-flavored soda in a green twelve-ounce can, would not be inherently distinctive. Paddington Corp. v. Attiki Importers & Distrib., 996 F.2d 577, 583 (2d Cir.1993). Similarly, genetic packages or symbols are not inherently distinctive by themselves. Thus, a standard size plastic bottle is not by itself a basis for trade dress protection, nor is a shining car on a bottle of car wax. Id. at 584 (dicta). As a matter of policy, color- alone is not protected as trade dress, unless it has acquired a secondary meaning. See Qualitex Co. v. Jacobson Prods. Co., — U.S. -, -, 115 S.Ct. 1300, 1303, 131 L.Ed.2d 248 (1995) (trademark case); AmBrit, 812 F.2d at 1548 (citation omitted). Rather than any one feature, though, it is “the combination of elements and the total impression that the dress gives to the observer that should be the focus of a court’s analysis of distinctiveness.” Paddington, 996 F.2d at 584 (citing Roulo v. Russ Berrie & Co., 886 F.2d 931, 936 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990)) (emphasis added). Applying these principles to" }, { "docid": "8339571", "title": "", "text": "common basic shape or design, whether it is unique or unusual in a particular field, and whether it is a mere refinement of a commonly adopted and well-known form of ornamentation for the particular class of goods viewed by the public as a dress or ornamentation for the goods. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986). Plaintiffs trade dress is not inherently distinctive. Most of the product features claimed by plaintiff to identify its Nor-fins — the pointed ears, puggish nose, pot belly, big eyes, proportion of the body to the head, furrowed brow, wild hair, out-stretched arms, and four-digit fingers, see supra at 133 — have been elements of the public domain doll for 25 years. As for the remaining element of plaintiffs trade dress — the dis tractive clothing — plaintiff admitted to copying this market concept of selling a group or family of dressed dolls from the Smurf line of children’s dolls. EFS I, 1991 WL 275647 at 5, 1991 U.S.Dist. LEXIS 18203 at 11; Record at 55-56. Indeed, even defendant Russ had used the same concept before EFS on a host of other dolls. See supra at 131. Given the mere refinements that plaintiff has made to the public domain troll along with its adoption of a market concept commonly used in the field, this Court cannot find that the “intrinsic nature” of plaintiffs trade dress “serves to identify a particular source of a product.” Two Pesos, — U.S. at-, 112 S.Ct. at 2757; AmBrit, 812 F.2d at 1539. ii. Likelihood of Confusion Plaintiff has also failed to meet its burden of showing the likelihood of confusion. Determining the likelihood of confusion requires a two-part approach. See Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1004-05 (2d Cir.1983). First, the Court must first make factual determinations as to the many variables that may be material in assessing the likelihood of confusion. See id.; American Int’l Group, Inc. v. London American Int’l Corp. Ltd., 664 F.2d 348, 351 (2d Cir.1981); Chevron, 659 F.2d at 703. In Polaroid Corp. v. Polarad Electronics" }, { "docid": "20090037", "title": "", "text": "shown. The Court addresses each of plaintiff’s objections in turn. A. Inherent Distinctiveness. Turtle Wax first contends that Magistrate-Judge Guzman erred when he found that the Liquid Crystal trade dress was not inherently distinctive. Plaintiff agrees with the Magistrate-Judge that two tests exist for analyzing the inherent distinctiveness of a trade dress — that enunciated by the Second Circuit in Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342 (C.C.P.A.1977) (the “Seabrook test”), and the alternative test utilized by the Fifth Circuit in Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695 (5th Cir.1981), cert. denied, 457 U.S. 1126, 102 S.Ct. 2947, 73 L.Ed.2d 1342 (1982) (the “Chevron test”). (See Report at 30.) Although the parties and the Magistrate-Judge agree that these are the appropriate tests for inherent distinctiveness, Turtle Wax maintains that the Magistrate-Judge erred when he found that plaintiff had failed to satisfy either test. 1. Seabrook In applying the Seabrook test of inherent distinctiveness, the Magistrate-Judge explained that he was required to determine whether plaintiff’s trade dress “was a ‘common’ basic shape or design, whether it was unique or unusual in a particular field, or whether it was a mere refinement of commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.” (Report at 36.) Seabrook, 568 F.2d at 1344; see also AmBRIT, Inc. v. Kraft, 812 F.2d 1531, 1536 (11th Cir.1987), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987); Wiley v. American Greetings Corp., 762 F.2d 139, 141 (1st Cir.1985); Blue Coral, Inc. v. Turtle Wax, Inc., 664 F.Supp. 1153, 1161 (N.D.Ill.1987) (Aspen, J.). Magistrate-Judge Guzman concluded that the field or class of goods to which plaintiff’s product belongs is that of “automotive appearance chemicals.” (Id. at 37.) See Blue Coral, 664 F.Supp. at 1161 (automobile wheel cleaner part of “au tomotive appearance chemicals” group or class of goods). Within this class, the Magistrate-Judge found that the “basic shape and design of the Liquid Crystal trade dress is common” and that the trade dress “is" }, { "docid": "14283271", "title": "", "text": "X-IT’s false designation of origin claim under Count II fails as a matter of law because X-IT’s packaging trade dress is not inherently distinctive, and because X-IT has failed to put forth any evidence that XIT’s packaging trade dress acquired secondary meaning. a. Is X-IT’s Trade Dress Inherently Distinctive? Factors that are considered in determining inherent distinctiveness include (1) whether the trade dress is a common basic shape or design; (2) whether the trade dress is unique or unusual in a particular field; and (3) whether the trade dress is a “ ‘mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for goods.’ ” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986) (quoting Brooks Shoe Mfg. Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir.1983)). In evaluating these factors, the “total image” of the packaging design must be considered such that the relevant inquiry is not whether the individual components or elements of a design are common or not, but rather whether the alleged trade dress as a whole is inherently distinctive. See Two Pesos, 505 U.S. at 764 n. 1, 112 S.Ct. 2753 (explaining that trade dress “involves the total image of a product, and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques”); Tools USA & Equip. Co. v. Champ Frame Straightening Equip., Inc., 87 F.3d 654, 657 (4th Cir.1996). Kidde asserts that X-IT’s trade dress is not inherently distinctive because certain individual elements of X-IT’s packaging trade dress — a small rectangular box with dimensions similar to the size of the ladder, a picture of a mother and child using the ladder to escape from a burning house, and a vertical listing of the product’s attributes — cannot be seen as inherently distinctive in light of the fact that a number of other emergency escape ladders that predated X-IT’s ladder incorporated similar elements in their packaging trade dress. As such, Kidde maintains that if these elements are" }, { "docid": "5474538", "title": "", "text": "that its trade dress is inherently distinctive. (1) Inherent ■ Distinctiveness in Product Configuration Cases The 21-year-old test applied generally to determine inherent distinctiveness in a Lanham' Act case is familiar to the courts. Though originally developed for trademarks, the Supreme Court in Two Pesos endorsed the following categorical inquiry for trade dress as well, because “[t]here is no persuasive reason to apply different analysis to the two.” Two Pesos, 505 U.S. at 773, 112 S.Ct. at 2760. Trade dress, “following the classic formulation set out by Judge Friendly, ... may be (1) generic; (2) descriptive; (8) suggestive; (4) arbitrary; or (5) fanciful.” Id. at 768, 112 S.Ct. at 2757 (citing Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976)). The category into which trade dress or a trademark is placed under the so-called Abercrombie classifications determines its distinctiveness for purposes of the Lanham Act. Marks or dress that are suggestive, arbitrary or fanciful, “because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection” without a further showing. Two Pesos, 505 U.S. at 768, 112 S.Ct. at 2757. “In contrast, generic marks — those that refer to the genus of which the particular product is a species” are disqualified from protection under the Lanham Act. Id. (internal quotations and alteration omitted). Descriptive marks or dress hold down the middle ground. Such marks are not inherently distinctive, but rather can only meet the distinctiveness requirement if they have “acquired ‘secondary meaning’ by which consumers associate it with a particular product or source.” Boston Beer, 9 F.3d at 180 (evaluating the distinctiveness of the trademark of a beer) (citing Two Pesos, 505 U.S. at 768-69, 112 S.Ct. at 2757-58). Unfortunately, considerable dissention has developed in the courts over the applicability of Abercrombie to cases involving claims of trade dress protection in “product configuration”. Two circuits have expressly rejected the categorical Abercrombie inquiry in this type of case, and the uncertainty of the law on this point requires discussion. The Third Circuit was the first to" }, { "docid": "12590175", "title": "", "text": "whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Seabrook Foods, 568 F.2d at 1344 (footnotes omitted). The first three of the Seabrook Foods “ ‘questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.’ ” I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 40 (1st Cir.1998) (quoting 1 McCarthy on Trademarks § 8:13, at 8-58.5). As is true of the Abercrombie test, the Seabrook Foods test seeks an answer to the question whether a mark’s “ ‘intrinsic nature serves to identify a particular source.’” Wal-Mart Stores, 529 U.S. at 210, 120 S.Ct. 1339 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753); accord 1 McCarthy on Trademarks § 3:3, at 3-6 (“[A] designation must be proven to perform the job of identification: to identify one source and distinguish it from other sources. If it does not do this, then it is not protectable as a trademark, service mark, trade dress or any similar exclusive right.”). We agree with the assessment of the I.P. Lund Trading court and Professor McCarthy that the Seabrook Foods factors are variations on a theme rather than discrete inquiries. In Star Industries v. Bacardi & Co., the Second Circuit noted that “ ‘[c]ommon basic shapes’ or letters are, as a matter of law, not inherently distinctive ..., [but] stylized shapes or letters may qualify, provided the design is not commonplace but rather unique or unusual in the relevant market.” 412 F.3d 373, 382 (2d Cir.2005) (citing Seabrook Foods, 568 F.2d at 1344; Permatex Co. v. Cal. Tube Prods.," }, { "docid": "23177482", "title": "", "text": "112 S.Ct. at 2758-59. Consumers generally rely on packaging for information about the product and its source. But the varieties of labels and packaging available to wholesalers and manufacturers are virtually unlimited. As a consequence, a product’s trade dress typically will be arbitrary or fanciful and meet the inherently distinctive requirement for § 43(a) protection. Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1069 (2d Cir.1995); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 703 (5th Cir.1981). Yet trade dress protection has limits. A trade dress that consists of the shape of a product that conforms to a well-established industry custom is generic and hence unprotected. For example, the cosmetics industry’s common use of black, rectangular-shaped compacts renders that packaging generic. Mana, 65 F.3d at 1070; see also Paddington, 996 F.2d at 583 (soda industry practice would render green cans generic for the purpose of packaging lime-flavored soda). In short, despite the broad opportunity to design an arbitrary or fanciful trade dress, a specific trade dress must still be evaluated to determine whether it is so distinctive as to point to a single source of origin and thereby be entitled to Lanham Act protection. Defendants urge us to adopt a more stringent standard of distinctiveness than that used by the trial court. Recently we declined to use the Abercrombie spectrum of distinctiveness in a trade dress case that involved features of the product itself. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir.1995). In an attempt to extend that rationale, defendants suggest we adopt an alternative test for inherent distinctiveness of trade dress set forth in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977). Under Seabrook, the inquiry is whether the design or shape of a package is a common, basic one, or whether it is unique or unusual in a particular field; whether the design is a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a trade dress or ornamentation for such goods, or whether" }, { "docid": "12590174", "title": "", "text": "of descriptive, suggestive, arbitrary and fanciful is largely confined to word marks. It is usually not suitable for nonword designations such as shapes and images making up trade dress.”). We do not go so far as to hold that the Abercrombie test is eclipsed every time a mark other than a word is at issue. Instead, we hold that the Abercrombie test fails to illuminate the fundamental inquiry in this case: whether the Star Symbol’s “ ‘intrinsic nature serves to identify’ ” Amazing Spaces and its storage services. Wal-Mart Stores, 529 U.S. at 210, 120 S.Ct. 1339 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753). For the answer to that question, we now turn to the Seabrook Foods test employed by the district court. b. Seabrook Foods In contrast to the Abercrombie test, the Seabrook Foods test, articulated by the U.S. Court of Customs and Patent Appeals in 1977, applies expressly to marks consisting of symbols and designs: In determining whether a design is arbitrary or distinctive this court has looked to [1] whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Seabrook Foods, 568 F.2d at 1344 (footnotes omitted). The first three of the Seabrook Foods “ ‘questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.’ ” I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 40 (1st Cir.1998) (quoting 1 McCarthy on Trademarks § 8:13, at 8-58.5). As is true of the Abercrombie test, the Seabrook Foods test seeks an answer to the question whether a mark’s “ ‘intrinsic nature" }, { "docid": "14283270", "title": "", "text": "cannot be sustained on this basis. The Court now turns to Kidde’s second argument in support of summary judgment under Count II, which focuses on whether there is any evidence that X-IT’s packaging trade dress is inherently distinctive or has acquired secondary meaning. 3. Can X-IT Prove that Its Packaging Trade Dress Is Inherently Distinctive or Has Acquired Secondary Meaning? To satisfy the first element of a packaging trade dress claim under the Lanham Act, X-IT must show that its packaging trade dress is either (1) inherently distinctive or (2) has acquired secondary meaning. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). The Fourth Circuit has recently stated that whether a product’s trade dress is inherently distinctive “almost always involves heavily disputed facts and so is not ordinarily amenable to summary judgment.” Ashley Furniture Indus., Inc. v. Sangiacomo N.A. Ltd., 187 F.3d 363, 377 (4th Cir.1999) (citing Mana Products, Inc. v. Columbia Cosmetics Mfg., 65 F.3d 1063, 1069 (2d Cir.1995)). Nonetheless, Kidde argues that X-IT’s false designation of origin claim under Count II fails as a matter of law because X-IT’s packaging trade dress is not inherently distinctive, and because X-IT has failed to put forth any evidence that XIT’s packaging trade dress acquired secondary meaning. a. Is X-IT’s Trade Dress Inherently Distinctive? Factors that are considered in determining inherent distinctiveness include (1) whether the trade dress is a common basic shape or design; (2) whether the trade dress is unique or unusual in a particular field; and (3) whether the trade dress is a “ ‘mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for goods.’ ” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986) (quoting Brooks Shoe Mfg. Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir.1983)). In evaluating these factors, the “total image” of the packaging design must be considered such that the relevant inquiry is not whether the individual components or elements of a" }, { "docid": "7671090", "title": "", "text": "be recognizable by consumers as having a specific origin or source. Distinctiveness is measured along an increasing scale: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, 505 U.S. at 767, 112 S.Ct. at 2757 (citation omitted). This characterization adapts the standards for distinctiveness under trademark law to the context of trade dress law. Id. Under this approach, to be inherently distinctive the trade dress must be more than merely descriptive. Two Pesos, 505 U.S. at 767, 112 S.Ct. at 2757. For example, an advertisement with four boxes labeled north, south, east, and west, each containing the locations and phone numbers of different branches of the advertiser in those quadrants of the city, is not inherently distinctive because it is merely descriptive. Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609 (7th Cir.1986) (applying the same analysis endorsed in Two Pesos); see also AmBrit, 812 F.2d at 1537 n. 20, 23 (citations omitted). As a rule, the more arbitrary the design, the more inherently distinctive the trade dress. In addition to the factors recognized by the Supreme Court on this subject, cases in the Eleventh Circuit also evaluate distinctiveness in terms of (1) whether a shape or design is common, (2) whether it is unique in a particular field, and (3) whether it is a mere refinement of a well-known form of ornamentation for a particular class of goods. AmBrit, 812 F.2d at 1536 (citing the test first established in Seabrook Foods, Inc. v. BarWell Foods, Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977)). The essential purpose of this inquiry is to withhold protection of common forms of presentation in a particular field of competition. See Reed-Union Corp. v. Turtle Wax, Inc., 869 F.Supp. 1304 (N.D.Ill.1994). Thus, for example, an arctic sun and a polar bear on a blue ice cream wrapper are inherently distinctive because they are suggestive of the coldness of the product and are not merely descriptive of the ice cream. AmBrit, 812 F.2d at 1537. However, an industry custom, such as packaging lime-flavored soda in a green twelve-ounce can, would not be" }, { "docid": "7671089", "title": "", "text": "Swatch Watch S.A. v. Taxor, Inc., 785 F.2d 956, 958-59 (11th Cir.1986). In a trade dress infringement case, likelihood of success on the merits requires proof to a preponderance of the evidence that (1) the trade dress is inherently distinctive or has acquired secondary meaning; (2) it is primarily non-functional; and (3) the defendant’s trade dress is confusingly ' similar. Bauer Lamp Co. v. Shaffer, 941 F.2d 1165, 1170 (11th Cir.1991); AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 (11th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987). The last prong of the test is the most important and is also referred to as the “likelihood of confusion.” See AmBrit, 812 F.2d at 1538. III. Analysis A. Inherent Distinctiveness and Secondary Meaning Distinctiveness is defined as whether the appearance of the product is sufficient to “allow consumers to identify the product from the trade dress.” Bauer, 941 F.2d at 1170. Essentially, this inquiry asks whether the labeling and packaging of Stolichnaya Cristall is distinct enough on its face to be recognizable by consumers as having a specific origin or source. Distinctiveness is measured along an increasing scale: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, 505 U.S. at 767, 112 S.Ct. at 2757 (citation omitted). This characterization adapts the standards for distinctiveness under trademark law to the context of trade dress law. Id. Under this approach, to be inherently distinctive the trade dress must be more than merely descriptive. Two Pesos, 505 U.S. at 767, 112 S.Ct. at 2757. For example, an advertisement with four boxes labeled north, south, east, and west, each containing the locations and phone numbers of different branches of the advertiser in those quadrants of the city, is not inherently distinctive because it is merely descriptive. Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609 (7th Cir.1986) (applying the same analysis endorsed in Two Pesos); see also AmBrit, 812 F.2d at 1537 n. 20, 23 (citations omitted). As a rule, the more arbitrary the design, the more inherently distinctive the trade dress. In" }, { "docid": "12590144", "title": "", "text": "was inherently distinctive, the district court considered two tests. See id. at 735-36. The first is known as the Abercrombie test, after Judge Friendly’s opinion in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir.1976). Under this test, marks are “classified in categories of generally increasing distinctiveness ... [:] (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (citing Abercrombie, 537 F.2d at 9). The second test was articulated in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342 (C.C.P.A.1978). Under the Seabrook Foods test, courts look to a set of factors “[i]n determining whether a design is arbitrary or distinctive”: whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 1344 (footnotes omitted). After laying out the two tests, the district court proceeded to consider their application to the Star Symbol. It first determined that the Star Symbol was not generic or a common geometric shape. Amazing Spaces, 665 F.Supp.2d at 737. It then determined that the Star Symbol was not descriptive of any “characteristic or quality of self-storage service[s].” Id. For essentially the same reason, and because Amazing Spaces disclaimed any argument to the contrary, the court further concluded that the Star Symbol was not suggestive. Id. Under the Abercrombie rubric, this process of elimination left only two possibilities remaining: the Star Symbol was either arbitrary or fanciful. Both of those “categories of marks, because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection.” Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. However, the district court refused to reach such a" }, { "docid": "12590143", "title": "", "text": "dress.” Following discovery, Metro moved for summary judgment on the ground that the Star Symbol was not a valid service mark. It argued primarily that the Star Symbol was not inherently distinctive and that Amazing Spaces could not establish that it had acquired secondary meaning. It supported this contention by presenting evi dence that the same or a similar five-pointed star was used in commerce “in at least 63 different industries and businesses on buildings, property, and as part of logos” and on the buildings of “at least 28 other self-storage locations.” Amazing Spaces, Inc. v. Metro Mini Storage, 665 F.Supp.2d 727, 738 (S.D.Tex.2009). The court concluded that “[t]he ubiquitous nature of the five-pointed star set within a circle precludes a finding that it is inherently distinctive or that it can serve as an indicator of origin for a particular business,” id., and that “the record d[id] not raise a fact issue material to determining whether the star mark has acquired distinctiveness through a secondary meaning,” id. at 742. In determining whether the Star Symbol was inherently distinctive, the district court considered two tests. See id. at 735-36. The first is known as the Abercrombie test, after Judge Friendly’s opinion in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir.1976). Under this test, marks are “classified in categories of generally increasing distinctiveness ... [:] (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (citing Abercrombie, 537 F.2d at 9). The second test was articulated in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342 (C.C.P.A.1978). Under the Seabrook Foods test, courts look to a set of factors “[i]n determining whether a design is arbitrary or distinctive”: whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation" }, { "docid": "8777116", "title": "", "text": "that it is appropriate to analyze Pure Power’s trade dress under the product packaging standard for analyzing distinctiveness. See, e.g., Samara Bros., 529 U.S. at 215, 120 S.Ct. at 1345 (describing interior decor as either product packaging or a “tertium quid” akin to product packaging); see also Best Cellars Inc. v. Wine Made Simple Inc., 320 F.Supp.2d 60, 70 (S.D.N.Y.2003) (concluding that interior decor is not product design and should be analyzed under the product packaging standard for inherent distinctiveness). A. Inherent Distinctiveness The distinctiveness of a trade dress under the product packaging standard is evaluated under the test set forth in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976), which classifies trade dress on a spectrum of increasing distinctiveness, as either: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful. See Paddington Corp. v. Attiki Imps. & Distrib., Inc., 996 F.2d 577, 583 (2d Cir.1993) (citation omitted). Suggestive and arbitrary or fanciful trade dress are deemed “inherently distinctive,” and always satisfy the first prong of the test for protection. Two Pesos, 505 U.S. at 768, 112 S.Ct. at 2757. If a trade dress is merely descriptive, however, then Plaintiffs must establish that the trade dress has acquired “secondary meaning” in order for it to be deemed distinctive. See id. at 769, 112 S.Ct. at 2757-58. A generic trade dress is never protectable. See id. at 768, 112 S.Ct. at 2757. “The focus of the distinctiveness inquiry, and the ultimate test of protectability under the Lanham Act, is whether the plaintiffs trade dress is capable of distinguishing the plaintiffs goods from those of others.” Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 743 (2d Cir.1998) (citing Two Pesos, Inc., 505 U.S. at 768, 112 S.Ct. at 2757); see also Forschner Grp., Inc. v. Arrow Trading Co., Inc., 124 F.3d 402, 407-08 (2d Cir.1997) (finding trade dress is inherently distinctive if it serves “primarily as an indication of origin, such that consumers will readily rely on it to distinguish the product from those of competing manufacturers”). The requirement that" }, { "docid": "23539508", "title": "", "text": "See id. at 768-69, 112 S.Ct. 2753. The holding of Two Pesos was that plaintiffs seeking protection for inherently distinctive trade dress are not required to demonstrate secondary meaning. See id. at 770, 112 S.Ct. 2753. Unless the Court decides to carve out an exception to this rule for claims about product design, which we deem unlikely, then the holding must be honored. And so we agree with the Eighth Circuit that the test for inherent distinctiveness should not be altered to the degree that it eviscerates the distinction between inherently distinctive trade dress and trade dress that has acquired secondary meaning. We do not believe, however, that analysis of the problem using different factors than the Abercrombie factors results in such an outcome. This court has previously relied on the test set forth in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342 (C.C.P.A.1977), to determine whether a product design is inherently distinctive, and we do so again. In Wiley v. American Greetings Corp., 762 F.2d 139 (1st Cir.1985), this court stated that inherent distinctiveness of a product design should be determined by reference to whether [the design] was a “common” basic shape or design, whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 141 (alteration in original) (quoting Seabrook Foods, 568 F.2d at 1344) (internal quotation marks omitted). We also agree with one commentator’s analysis that “[i]n reality, all three [Seabrook Foods ] questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.” 1 McCarthy § 8:13. Although the plaintiff in Wiley brought suit under state common law, we find the test" }, { "docid": "22975658", "title": "", "text": "dress infringement is therefore reviewed for substantial evidence. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973, 219 USPQ 515, 522 (11th Cir.1983). Legal determinations of the district court, however, receive no deference on review. See Lucero v. Trosch, 121 F.3d 591, 599 (11th Cir.1997). Trade dress protection embraces the total image of the product including such factors as the size, shape, and color of the product’s packaging and appearance. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n. 1, 112 S.Ct. 2753, 120 L.Ed.2d 615, 23 USPQ2d 1081, 1082 n. 1 (1992). To prove trade dress infringement, the plaintiff must show: (1) the inherent distinctiveness or secondary meaning of its trade dress, (2) the essential nonfunctionality of its trade dress, and (3) the likelihood of consumer confusion as to origin, sponsorship, or approval due to similarity between its and the defendant’s trade dress. See University of Fla. v. KPB, Inc., 89 F.3d 773, 776-77, 39 USPQ2d 1603, 1605 (11th Cir.1996). Because this is a conjunctive test, failure to prove even one of these elements precludes a showing of trade dress infringement. Therefore, the defendant can secure a summary judgment of nonin-fringement by demonstrating that the plaintiff cannot show any element of the cause of action. As mentioned above, protection hinges on the distinctiveness or secondary meaning of the trade dress. Distinctive trade dress enables consumers to distinguish a product from others and identify that product with its source. See id. at 776 n. 5. The Eleventh Circuit gauges distinctiveness based on whether trade dress “[is] a ‘common’ basic shape or design, whether it [is] unique or unusual in a particular field, [and] whether it [is] a mere refinement of a commonly adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.” Id. (quoting AmBrit, 812 F.2d at 1536). Trade dress can also satisfy this requirement by showing secondary meaning, or a “connection in the consumer’s mind between the mark and the product’s producer, whether that producer is" }, { "docid": "10448992", "title": "", "text": "no function to either describe the product, or 3) assist in its effective packaging. In our case, the purely arbitrary features of the Wheel Magic trade dress are the green color of the liquid, cap, and label; the clear plastic of the bottle and its actual shape; and the size of the lettering. The use of a spray bottle itself is purely functional, although not its shape. The use of the high tech grid is descriptive of the advanced high tech nature of the product. The pictures of the wheels are descriptive of the purpose of the product. Finally, the use of the hang tag is predominantly functional, as the testimony indicated that its purpose was to set forth all the additional information about Wheel Magic that did not fit on the label. Thus, under the Chevron test, because some of the elements of the trade dress are nonarbitrary and functional, it would appear that the Wheel Magic trade dress is unprotectable absent secondary meaning. The Seabrook Test The Eleventh Circuit has recently used a test which originated from the United States Court of Customs and Patent Appeals to identify whether a trade dress is “inherently distinctive.” See, e.g., Am-BRIT, Inc. v. Kraft, Inc., 805 F.2d 974, 979 (11th Cir.1986), review denied, — U.S. -, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987); Brooks Shoe Manufacturing Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir. 1983). In Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977), the court set forth the key factors to consider when determining whether a design for a trademark is inherently distinctive. Seabrook indicated we should decide whether it was a “common” basic shape or design, whether it was unique or unusual in a particular field, or whether it was a mere refinement of commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods. Seabrook, 568 F.2d at 1344. Before applying this test to the evidence presented to the Court, we must decide to which “particular field” or" }, { "docid": "23177481", "title": "", "text": "F.2d 4, 9 (2d Cir.1976). See Paddington Corp. v. Attiki Importers & Distrib., Inc., 996 F.2d 577, 583 (2d Cir.1993) (adopting Judge Friendly’s test to evaluate the inherent distinctiveness of product packaging). Within this framework, trade dress is classified on a spectrum of increasing distinctiveness as generic, descriptive, suggestive, or arbitrary/fanciful. Suggestive and arbitrary or fanciful trade dress 'are deemed inherently distinctive and thus always satisfy the first prong of the test for protection. Two Pesos, 505 U.S. at 768, 112 S.Ct. at 2757. A descriptive trade dress may be found inherently distinctive if the plaintiff establishes that its mark has acquired secondary meaning giving it distinctiveness to the consumer. Two Pesos, 505 U.S. at 769, 112 S.Ct. at 2757-58. A generic trade dress receives no Lanham Act protection. Id. at 768, 112 S.Ct. at 2757. The Supreme Court has emphasized that an inherently distinctive trade dress is one whose “intrinsic nature serves to identify a particular source of a product,” id., although it may not yet have widespread identification among consumers. Id. at 771, 112 S.Ct. at 2758-59. Consumers generally rely on packaging for information about the product and its source. But the varieties of labels and packaging available to wholesalers and manufacturers are virtually unlimited. As a consequence, a product’s trade dress typically will be arbitrary or fanciful and meet the inherently distinctive requirement for § 43(a) protection. Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1069 (2d Cir.1995); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 703 (5th Cir.1981). Yet trade dress protection has limits. A trade dress that consists of the shape of a product that conforms to a well-established industry custom is generic and hence unprotected. For example, the cosmetics industry’s common use of black, rectangular-shaped compacts renders that packaging generic. Mana, 65 F.3d at 1070; see also Paddington, 996 F.2d at 583 (soda industry practice would render green cans generic for the purpose of packaging lime-flavored soda). In short, despite the broad opportunity to design an arbitrary or fanciful trade dress, a specific trade dress must still be" }, { "docid": "20090117", "title": "", "text": "wide base and sufficient weight to allow the user to place it securely on the ground while otherwise engaged in applying the product and is of a shape that is easy to hold. The utility of this particular element of the trade dress is .clearly established by the fact that it has been used for many years by a very large number of manufacturers of a large variety of automotive and non automotive products including car waxes. This element of the trade dress is neither arbitrary nor unique, but rather both functional and common. Other than possibly the addition of the overcap there is no change or alteration of the shape of the basic F-style can which has been in such common use for so many years in the American marketplace. Thus, under the Chevron test, because so many of the elements of the trade dress are nonarbitrary and functional, I recommend that the Court find that the Liquid Crystal trade dress fails to qualify for trademark protection absent secondary meaning. The Seabrook Test The Eleventh Circuit has adopted a different test to determine whether a trade dress is “inherently distinctive.” AmBRIT, Inc. v. Kraft, Inc., 805 F.2d 974, 979 (11th Cir.1986), review denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987); Brooks Shoe Manufacturing Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir.1983). In Seabrook Foods, Inc. v. BarWell Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977), the court .set forth the key factors to consider when determining whether a design for a trademark is inherently distinctive. According to the Sea-brook test the Court must determine whether it was a “common” basic shape or design, whether it was unique or unusual in a particular field, or whether it was a mere refinement of commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.. Id. at 1344. Before applying this test to the evidence presented to the Court, we must decide how to define the “field” or “class of goods” to which Liquid" }, { "docid": "8339570", "title": "", "text": "a trade dress is inherently distinctive if its features are “arbitrary and serve no function either to describe the product or assist in its effective packaging.” Chevron, 659 F.2d at 702. A trade dress that either refers to the genus of which the particular product is a species or that is merely descriptive does not qualify as being inherently distinctive. See Two Pesos, — U.S. at -, 112 S.Ct. at 2757. In fact, generic marks are never protectable under the Lanham Act and descriptive marks must have acquired secondary meaning to become distinctive and thereby satisfy the first prong of the Two Pesos test. See Two Pesos, at ---, 112 S.Ct. at 2757-58; The Paddington Corp., at 583. Nevertheless, given that a court’s analysis must focus on the “total impression that the dress gives to the observer,” a trade dress may still be inherently distinctive despite its incorporation of.generic or descriptive elements. The Paddington Corp., at 584. Other factors that have been deemed helpful in determining inherent distinctiveness include: whether [plaintiffs trade dress] is a common basic shape or design, whether it is unique or unusual in a particular field, and whether it is a mere refinement of a commonly adopted and well-known form of ornamentation for the particular class of goods viewed by the public as a dress or ornamentation for the goods. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986). Plaintiffs trade dress is not inherently distinctive. Most of the product features claimed by plaintiff to identify its Nor-fins — the pointed ears, puggish nose, pot belly, big eyes, proportion of the body to the head, furrowed brow, wild hair, out-stretched arms, and four-digit fingers, see supra at 133 — have been elements of the public domain doll for 25 years. As for the remaining element of plaintiffs trade dress — the dis tractive clothing — plaintiff admitted to copying this market concept of selling a group or family of dressed dolls from the Smurf line of children’s dolls. EFS I, 1991 WL 275647 at 5, 1991 U.S.Dist. LEXIS 18203 at 11; Record at 55-56." } ]

[ { "docid": "16428123", "title": "", "text": "enhancement for \"permanent or life-threatening bodily injury” even if the physical injuries resulting from the maltreatment were not themselves life-threatening or permanent. Notably, however, that case involved a carjacking where the victim was thrown into a car trunk, beaten repeatedly over the head with a metal pipe, and left for dead outdoors in bitterly cold weather. While the victim, miraculously, did not suffer permanent or life-threatening injuries, that crime bore considerable resemblance to the kidnapping example described in the Guideline Commentary. In contrast, the crime here, while committed with the most brutal and fatal of intentions, did not inflict the sort of punishing physical abuse described in the commentary’s kidnapping example and perpetrated in the Morgan case. For an application of a sentencing enhancement for \"permanent or life-threatening bodily injury” in a factual situation similar to that in Morgan, see United States v. Williams, 258 F.3d 669, 673-74 (7th Cir.2001). . Some courts faced with the question of whether psychological injury can constitute “bodily injury” for the purposes of the sentencing enhancement for \"serious bodily injury” have declined to decide the issue. See, e.g., United States v. Sawyer, 115 F.3d 857, 860 n. 2 (11th Cir.1997) (finding no \"bodily injury” in the instant case, but declining to decide the question more generally); United States v. Lanzi, 933 F.2d 824, 827 (10th Cir.1991) (same). . In United States v. Rivera, 83 F.3d 542, 548 (1st Cir.1996), the court found that a victim's statement to a probation officer that a carjacking and rape \"ha[d] had a devastating effect on her life, family, and consensual relationship” was a \"generalit[y]” that, when combined with a lack of evidence that she sought professional help, \"f[e]ll short of proof measuring up to 'protracted ... impairment of ... mental faculty' sufficient to justify an additional ten-year sentence” under the carjacking statute’s definition of “serious bodily injury.” On remand, the trial court resen-tenced the defendant, applying the enhancement after finding \"protracted impairment of mental faculties]” based upon new evidence of the nature, severity, and longevity of the victim's post-traumatic stress. The First Circuit affirmed. See United States v." } ]

[ { "docid": "19783147", "title": "", "text": "Cir.1995)), hearsay statements are “often an integral part of the sentencing process.” Id. In fact, there are few limitations on the types of evidence a sentencing judge may consider, as long as it has “sufficient indicia of reliability to support its probable accuracy.” Id. (quoting United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999)). The district judge credited the teller’s statement in the PSR and applied the two-point enhancement. Once the court relies on information in a PSR that it determines has sufficient indicia of reliability, it is the defendant’s burden to create “real doubt” by showing why the statement is inaccurate or unreliable. United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.2009). The district judge found the victim’s report sufficiently reliable to support its probable accuracy. And Maiden has not created any doubt about the teller’s statement because, other than generically criticizing it as hearsay, he offers no evidence that would lead us to question the teller’s reliability. See United States v. Taylor, 135 F.3d 478, 481-82 (7th Cir.1998) (hearsay acceptable at sentencing where judge found statement reliable). Maiden additionally argues that the teller’s statement is insufficient evidence upon which to base the bodily injury enhancement because pepper spray is not a dangerous weapon and is virtually incapable of inflicting a “significant injury” as contemplated by the Guidelines. He seems to say that if mace is used, a judge can presume bodily injury because mace is considered a dangerous weapon under Illinois law. On the other hand, when pepper spray is used, Maiden suggests that the government must produce additional evidence to prove the injury because pepper spray is not a dangerous weapon. In light of the government’s failure to demonstrate that he used a dangerous weapon, Maiden contends that the teller’s statement is insufficient. To the extent Maiden claims that the sentencing judge automatically applied the enhancement in reliance on Taylor, 135 F.3d at 481-82, and United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994), his argument is without merit. Though in both cases we affirmed application of a two-point bodily injury enhancement where" }, { "docid": "16428109", "title": "", "text": "denial of food or medical care) would constitute life-threatening bodily injury.” U.S.S.G. § 1B1.1, cmt. n.l(h) (1999). The Commentary defines “serious bodily injury” as an “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.... ” U.S.S.G. § 1B1.1, cmt. n.l(j) (1999). We review the district court’s factual findings for clear error, and its interpretation of the Guidelines de novo. See United States v. Maaraki, 328 F.3d 73, 75 (2d Cir.2003) (per curiam). The district court offered alternative theories in support of its application of a four-level enhancement. In his initial consideration of the PSR recommendation, Judge Dearie emphasized the permanent nature of Capozzalo’s emotional injury. Upon reconsideration, the judge also referred to the life-threatening circumstances to which Capozzalo was subjected, and emphasized the sheer good fortune that had prevented her death. The government argues that the district court’s imposition of the four-level enhancement was appropriate under either of these rationales. The defendant, instead, contends that because the victim escaped with minor physical injuries of a temporary nature, only a two-level enhancement for “serious bodily injury” is appropriate. We agree with the defendant that the sentencing enhancements apply to the results of a crime, rather than to the circumstances of its commission. In remanding for resentencing, however, we emphasize that emotional injury can result in “loss or substantial impairment of the function of a ... mental faculty” that is sufficient to warrant a four-level enhancement. The issue before the district court, on remand, is whether Capozzalo suffered such a loss or impairment. A. The threshold question presented by this case is whether the sentencing enhancements at issue should depend solely upon the results of the criminal act, or, alternatively, at least in some extreme and unusual situations, can reflect the defendant’s conduct, the circumstances surrounding the crime, or the nature of the crime attempted. At least two circuits that have considered this question have unequivocally held that the resulting injury to the victim is the sole determinant of whether" }, { "docid": "11936016", "title": "", "text": "addressed by this court. Other courts have addressed similar issues with mixed results. See United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.1998) (holding that where mace did in fact cause serious injury it constituted a dangerous weapon); United States v. Harris, 44 F.3d 1206, 1216 (3d Cir.1995) (holding that the government failed to prove that mace constituted a dangerous weapon); United States v. Dukovich, 11 F.3d 140, 142 (11th Cir.1994) (holding that tear gas is a dangerous weapon because it can harm eyes, induce vomiting, cause loss of breath and leave rashes). In the instant case, Neill offered testimony from Kenneth G. Heide, a twenty-five year police veteran. He testified that in his opinion pepper spray was not a dangerous weapon, and that in four years of investigating use of pepper spray by Eugene police officers, there was never an instance of injury. Neill also entered into evidence an article from the National Institute of Justice which provided that only 14 of 174 suspects sprayed with pepper spray suffered any injuries and those injuries were minor, requiring no hospital treatment. The United States offered the testimony of Janet Williams, a loan secretary at the Salem Bank, who was sprayed in the. face with pepper spray during the robbery. Before the incident, Williams suffered from exercise-induced asthma controllable with a inhaler after exercising. She testified that the pepper spray caused her to cough and choke and her eyes and nose to burn. Williams also testified that she suffered from severe asthma attacks for a week after the incident and was forced to go see a doctor. The doctor prescribed steroids to control Williams’s severe asthma attacks. Williams testified that she continues to suffer from severe asthma brought on by the pepper spray and is required to take five asthma relief pills a day for the rest of her life. The United States argued and the district court agreed that, in this case, pepper spray caused serious bodily injury and was therefore a dangerous weapon. The district court did not err. Evidence presented to the district court demonstrates that pepper" }, { "docid": "11589155", "title": "", "text": "sleep only an hour per night. Despite psychiatric medication and treatment, a year after the incident he was still unable to sleep more than four to five hours each night. The father, who is a surgeon, also has been unable to perform surgeries as a result of the mental impact of the crime. In addition, the father told the District Court at sentencing that his son “doesn’t want to go back to a patio, doesn’t want to ride a bike, because [Urbina] and [his] gang might show, up.” On these facts, the District Court did not make a clear or obvious error in applying the “serious bodily injury” enhancement. The Fifth Circuit, in - United States v. Reed, 26 F.3d 523 (5th Cir.1994), a case Urbina cites, held -that a victim’s “post-traumatic stress syndrome” from a robbery did constitute “serious bodily injury? under the sentencing guidelines. Id. at 530-31. And we have held that “serious and continuing mental trauma,” at least where it follows a serious physical assault, can constitute a “protracted ... impairment” of “mental faculty” for purposes of the nearly identical definition of “serious bodily injury” contained in 18 U.S.C. § 1365(g)(3). See United States v. Lowe, 145 F.3d 45, 53 (1st Cir.1998). Given this precedent, we cannot say on this record that-the District Court “clear[ly] and obviously]” erred in applying the serious bodily injury enhancement in the absence of any objection from Urbina. Hernández-Maldonado, 793 F.3d at 226 (quoting Correa-Osorio, 784 F.3d at 18). 2. Urbina next asserts' that the District Court erred when it. applied a two-level increase to the carjacking offense under USSG § 2B3.1(b)(7)(C) (2013), after finding that the offense involved a “loss” of over $50,000. Urbina contends that the presentence report states that the loss from the offense was only $40,000, and that the District Court overestimated the amount lost. Urbina is wrong. The presentence report — which Urbina does not contest— does state that Urbina took $40,000 in cash from the victim’s safe. But the presen-tence report reveals that Urbina and his accomplices also took “other valuables such as Ipads [sic], video" }, { "docid": "17054605", "title": "", "text": "on him pursuant to section 2B3.1(b) amounted to increases for either “weapon involvement” or “injury”, and that the resulting 12-level increase caused the total number of enhancements for “weapon involvement and injury” to exceed the 11-level maximum provided for by the guidelines. We review de novo the district court’s interpretation of the sentencing guidelines. See United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir.1990). U.S.S.G. § 2B3.1(b)(2) outlines various enhancements a court should impose for the use of weapons in the commission of a robbery (e.g., discharging, brandishing, threatening or possessing a firearm). U.S.S.G. § 2B3.1(b)(3) outlines enhancements to be imposed for various types of injuries sustained by a victim, “[provided, however, that the cumulative adjustments from (2) and (3)shall not exceed 11 levels.” This limitation is reiterated in Application Note 4, which states: “The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.” Although Mr. Perkins urges otherwise, Application Note 4 plainly refers to subsections (2) and (3) and not to enhancements imposed pursuant to other subsections of section 2B3.1(b). The Application Note serves only to describe what the guideline provisions require, not to impose additional limitations not contained within the text of the guidelines. The district court enhanced Mr. Perkins’ sentence nine levels under sections 2B3.1(b)(2) and (3). The court thus did not impose excessive enhancements to Mr. Perkins’ sentence for weapon involvement and injury in violation of the guidelines. III. Mr. Perkins next contends the district court erred in increasing his sentence by two levels for bodily injury sustained by the security guard because the guard’s injury was not sufficiently “significant” within the meaning of the guidelines. The district court’s determination of the significance of a bodily injury is a finding of fact .we review for clear error. See United States v. Lanzi 933 F.2d 824, 827 (10th Cir.1991). The sentencing guidelines define “bodily injury” as “any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1, comment, (n. 1(b)). “[T]o be ‘significant’" }, { "docid": "23577412", "title": "", "text": "and victims suffered burning sensation in faces and throats, eye pain and severe headaches, the gas struck one teller near her eye; two women were visibly pregnant; tear gas is a dangerous weapon and is capable of inflicting death or serious bodily injury as defined in § 1B1.1, comment n. 1(b)); United States v. Brown, 508 F.2d 427, 430 (8th Cir.1974) (loaded tear gas gun is dangerous weapon under statute which prohibits carrying dangerous weapons on aircraft; tear gas can cause great bodily harm in the form of powder and chemical burns). The Fourth Circuit went the other way in United States v. Lancaster, 6 F.3d 208, 210-11 (4th Cir.1993), when they upheld a finding of no “bodily injury” under § 2B3.1(b)(3), in a case where a bank robber sprayed mace in a security guard’s eyes. “While the burning in [the guard’s] eyes and cheeks caused by the mace was undoubtedly unpleasant, and could not be described as wholly trivial, it was only momentary and the mace produced no lasting harm.” Id. In contrast to the evidence here, the security guard in Lancaster apparently testified that the effects were only momentary. Moreover, the court in Lancaster was deferring to factual findings made by the district court. See United States v. Hamm, 13 F.3d 1126 (7th Cir.1994) (finding Lancaster consistent with ■ court’s holding that “bodily injury” occurred when bank robber suffered bumps and bruises and back injury, because Lancaster involved the government’s appeal from the district court’s refusal to enhance, and the clear error standard required affirmance). The district court properly enhanced the sentence two levels based on defendant’s having caused bodily injury. VIII. “Physical Restraint” from Spraying Mace Defendant contends that the sentencing court erred in enhancing her sentence for “physically restraining” the tellers by spraying mace. This issue also was waived, since it was not raised in the district court. Under U.S.S.G. § 2B3.1(b)(4)(B), which requires a two-level increase if “any person was physically restrained to facilitate commission of the offense or to facilitate escape,” the district court increased the offense level on the basis that spraying mace" }, { "docid": "14457974", "title": "", "text": "(7th Cir.1994); knocking the victim down, causing bumps, bruises, and a back injury that required chiropractic treatment, United States v. Hamm, 13 F.3d 1126, 1127-28 (7th Cir.1994); a slap in the face, causing swelling and pain that required medical attention, United States v. Greene, 964 F.2d 911, 911-12 (9th Cir.1992); and a small laceration and bruising, requiring medical attention, Perkins, 132 F.3d at 1325. But see United States v. Lancaster, 6 F.3d 208, 210 (4th Cir.1993) (affirming finding that being sprayed with mace is not “significant” injury warranting bodily injury increase because burning sensation suffered by victim was “only momentary and the mace produced no lasting harm”). In most of these cases upholding “bodily injury”, the courts indicated that the victim sought medical treatment for the injury. But, again, the Guidelines do not condition the increase on such treatment. The injury must be either “painful and obvious” or “of a type for which medical attention would ordinarily be sought”. U.S.S.G. § 1B1.1, comment (n.l(b)) (emphasis added). Another common thread in the above-discussed cases is that there appears to have been evidence regarding the injury sustained. For the May robbery, the PSR does not indicate that the guard’s being “struck on his back” resulted in any bruising, swelling, or other type injury. And, the assaulted guard did not testify at sentencing. In Dodson, 109 F.3d at 488, the PSR recommended the bodily injury increase, stating that a police officer sustained “minor injuries” from a struggle with the defendant, during which the officer was choked. The Eighth Circuit reversed the imposition of the enhancement because “the government did not call [the officer] to testify regarding the nature of his injuries or whether he had suffered any pain as a result of being choked”. Id. at 489. Further, the court disagreed with the finding that the act of choking, itself, falls within the category of “bodily injury”, because such a finding improperly focuses on the act rather than on the injury. Id. The imposition of the May robbery increase constitutes reversible error. Such error results from the district court’s erroneous guideline interpretation and" }, { "docid": "19783145", "title": "", "text": "report (“PSR”) recommended a two-point enhancement to Maiden’s sentence under § 2B3.1(b)(3)(A) of the U.S. Sentencing Guidelines, based on the injury caused by the pepper spray. Specifically, the PSR included a statement from one of the tellers that following the incident, she felt a burning sensation whenever she attempted to wear contact lenses and has therefore been unable to wear them. Maiden objected to the application of the bodily injury enhancement on the basis that pepper spray is not a dangerous weapon under Illinois law, and so the trial judge should have viewed more suspiciously the teller’s “uncorroborated” statement in the PSR that she was injured. He essentially argued that when the government cannot establish whether bodily injury was inflicted by mace or pepper spray, the court must examine hospital and other records to determine whether the offender caused a bodily injury. The district court rejected his arguments. It held that the teller’s testimony was sufficiently reliable to support application of the bodily injury enhancement, regardless of what type of spray was used, and sentenced Maiden to 141 months’ imprisonment. He timely appealed. II. DISCUSSION Maiden challenges the district court’s application of a two-level enhancement to his sentence following his conviction for bank robbery, a determination we review for clear error. United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). Section 2B3.1(b)(3)(A) directs a sentencing judge to increase an offender’s base offense level by two points “if any victim sustained bodily injury.” The Guidelines broadly define bodily injury as “any significant injury,” including “injury that is painful and obvious, or is of a type for which medical attention would ordinarily be sought.” U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n. (1)(A) (2009). In determining a sentence under the Guidelines, the stringent rules governing admission of evidence in a criminal trial are not applicable. United States v. Johnson, 489 F.3d 794, 796 (7th Cir.2007). While a defendant has a due process right to have his sentence based upon accurate information, United States v. Hankton, 432 F.3d 779, 790 (7th Cir.2005) (quoting United States v. Salinas, 62 F.3d 855, 859 (7th" }, { "docid": "23577411", "title": "", "text": "the sentence for “bodily injury” based on her spraying mace at the bank tellers. This issue was not raised at sentencing and thus was waived. Rivero, 993 F.2d at 662. The court may review for plain error. The district court enhanced the sentence two levels under U.S.S.G. § 2B3.1(b)(3)(A) for “bodily injury” because in two of the robberies, defendant sprayed the tellers with mace or pepper-guard. “Bodily injury” means any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. As used in guidelines, the definition of this term is somewhat different than that used in various statutes. U.S.S.G. § 1B1.1, Commentary, Application Note 1(b). The bank tellers who were sprayed experienced pain which lasted for hours and had some residual effect for days. The district court could properly make the factual finding that this was painful and obvious. Cf. United States v. Dukovich, 11 F.3d 140, 142-43 (11th Cir.1994) (defendant sprayed tear gas into bank where victims were prone on floor and victims suffered burning sensation in faces and throats, eye pain and severe headaches, the gas struck one teller near her eye; two women were visibly pregnant; tear gas is a dangerous weapon and is capable of inflicting death or serious bodily injury as defined in § 1B1.1, comment n. 1(b)); United States v. Brown, 508 F.2d 427, 430 (8th Cir.1974) (loaded tear gas gun is dangerous weapon under statute which prohibits carrying dangerous weapons on aircraft; tear gas can cause great bodily harm in the form of powder and chemical burns). The Fourth Circuit went the other way in United States v. Lancaster, 6 F.3d 208, 210-11 (4th Cir.1993), when they upheld a finding of no “bodily injury” under § 2B3.1(b)(3), in a case where a bank robber sprayed mace in a security guard’s eyes. “While the burning in [the guard’s] eyes and cheeks caused by the mace was undoubtedly unpleasant, and could not be described as wholly trivial, it was only momentary and the mace produced no lasting harm.” Id. In contrast to" }, { "docid": "16428113", "title": "", "text": "the defendant’s crime had inflicted on Capozzalo. The defense argues that even if an enhancement for “serious bodily injury” may properly encompass the emotional wounds suffered by a victim like Capozzalo, a four-level enhancement requires a showing that the victim’s mental faculties were impaired as a result of the crime. The emotional agony suffered by victims of violent crime eludes precise measurement and often defies description. There is no question that emotional or psychological injuries can be “permanent or life-threatening,” and that they may, in some instances, cause the “loss or substantial impairment of the function of a ... mental faculty.” Courts that have considered the applicability of the “permanent or life-threatening” and “serious” “bodily injury” sentencing enhancements to emotional or psychological injuries have interpreted “bodily injury” to include harm to a victim’s mental processes and psychic well-being. Any suggestion, then, that this sentencing enhancement applies only in cases of corporeally manifest physical injury is untenable. Cf. United States v. Jacobs, 167 F.3d 792, 801 (3d Cir.1999) (noting that Guidelines treat physical and nonphysical injuries with comparable seriousness); see also United States v. Rodgers, 122 F.3d 1129, 1132-33 (8th Cir.1997) (holding that while PTSD may not always rise to the level of “serious bodily injury,” it can do so in some circumstances). Since virtually every murder attempt is likely to inflict some psychological damage upon its victim, it is not surprising that the Guidelines draw distinctions between various degrees of psychic harm. Thus, the two-level enhancement for “serious bodily injury” automatically becomes applicable in cases where “medical intervention” is required, and this remains so when the necessary intervention is the result of psychic damage only. But, under the Commentary, the four-level enhancement for “permanent or life-threatening bodily injury” makes “substantial impairment of the function of a ... mental faculty” a prerequisite in cases involving emotional or psychological rather than physical injury. Precedents from other circuits, however, correctly suggest that severe PTSD and its psychological manifestations may constitute an “impairment of the function of a ... mental faculty” in certain circumstances. Defendants prosecuted under the federal carjacking statute, see 18 U.S.C." }, { "docid": "16428114", "title": "", "text": "with comparable seriousness); see also United States v. Rodgers, 122 F.3d 1129, 1132-33 (8th Cir.1997) (holding that while PTSD may not always rise to the level of “serious bodily injury,” it can do so in some circumstances). Since virtually every murder attempt is likely to inflict some psychological damage upon its victim, it is not surprising that the Guidelines draw distinctions between various degrees of psychic harm. Thus, the two-level enhancement for “serious bodily injury” automatically becomes applicable in cases where “medical intervention” is required, and this remains so when the necessary intervention is the result of psychic damage only. But, under the Commentary, the four-level enhancement for “permanent or life-threatening bodily injury” makes “substantial impairment of the function of a ... mental faculty” a prerequisite in cases involving emotional or psychological rather than physical injury. Precedents from other circuits, however, correctly suggest that severe PTSD and its psychological manifestations may constitute an “impairment of the function of a ... mental faculty” in certain circumstances. Defendants prosecuted under the federal carjacking statute, see 18 U.S.C. §§ 2119(2) & 1365(g)(3) (1999) (referring to 18 U.S.C. § 2119(2)), for example, have been subjected to a sentencing enhancement for “serious bodily injury,” which was defined in part as the “protracted loss or impairment of the function of a mental faculty,” when their victims have suffered from lasting psychological debilitation. See, e.g., United States v. Lowe, 145 F.3d 45, 53 (1st Cir.1998) (holding that persistent psychological trauma from rape during carjacking constituted “protracted impairment of mental faculties”). And, in upholding the application of the “permanent or life-threatening bodily injury” enhancement, courts have also considered the permanence of psychological damage caused by the criminal act. See, e.g., United States v. James, 957 F.2d 679, 681 (9th Cir.1992) (affirming enhancement for a defendant who infected a nine-year-old child with genital herpes, in part because the permanent and recurring nature of disease served as a constant reminder of sexual assaults, thereby lessening the likelihood that the victim would overcome her psychological trauma). Indeed, under the language of the Guideline, the four-level enhancement applies only if there is" }, { "docid": "16428115", "title": "", "text": "§§ 2119(2) & 1365(g)(3) (1999) (referring to 18 U.S.C. § 2119(2)), for example, have been subjected to a sentencing enhancement for “serious bodily injury,” which was defined in part as the “protracted loss or impairment of the function of a mental faculty,” when their victims have suffered from lasting psychological debilitation. See, e.g., United States v. Lowe, 145 F.3d 45, 53 (1st Cir.1998) (holding that persistent psychological trauma from rape during carjacking constituted “protracted impairment of mental faculties”). And, in upholding the application of the “permanent or life-threatening bodily injury” enhancement, courts have also considered the permanence of psychological damage caused by the criminal act. See, e.g., United States v. James, 957 F.2d 679, 681 (9th Cir.1992) (affirming enhancement for a defendant who infected a nine-year-old child with genital herpes, in part because the permanent and recurring nature of disease served as a constant reminder of sexual assaults, thereby lessening the likelihood that the victim would overcome her psychological trauma). Indeed, under the language of the Guideline, the four-level enhancement applies only if there is loss or impairment of the function of a mental faculty that is “likely to be permanent.” It is clear, then, that the “impairment of a ... mental faculty” category is capacious enough to encompass lasting emotional and psychological harm, at least when that harm is aggravated by circumstances that prolong its detrimental impact on the victim. On the facts before us it seems possible that the shooting of Patricia Capozzalo may have led to lasting psychological and emotional effects sufficiently severe to constitute “loss or substantial impairment of a ... mental faculty that is likely to be permanent,” thereby warranting a four-level enhancement. As we stated earlier, the sentencing enhancements at issue are directed at the injurious results of a defendant’s crime, not his conduct. Given that, in applying this enhancement, we look not to intentions or circumstances, but to outcomes, defendants must take the bitter with the sweet. Thus if Spinelli can benefit from Capozzalo’s miraculous avoidance of serious physical injury despite the fact that she was shot several times at point-blank range, Spinelli" }, { "docid": "22936154", "title": "", "text": "bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. “Permanent or life-threatening bodily injury” means injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent. Where a particular situation falls on this analogue scale is an issue the Commission clearly intended to be resolved on a case-by-case basis after a fact-specific inquiry into the circumstances of the particular crime and its impact on the victims. See United States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.1994); United States v. Lancaster, 6 F.3d 208 (4th Cir.1993). A sentencing court’s resolution of this issue is a finding of fact that will be disturbed on appellate review only if clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 126 (3d Cir.1989). The district court in this case made only one brief reference to the particular circumstances of this case, citing the FBI agent’s testimony that the tellers “required immediate medical attention.” The court’s primary focus, however, was not on what happened in this case. It found the reported North Carolina death important and cast its ultimate finding in terms of the non-case-specific conclusion that “a victim of mace sustains a significant injury.” App. 275. The difficulty with the district court’s approach can best be illustrated by comparing two cases from other courts of appeals which present the question of whether a victim of the defendant’s crime had received “bodily injury” from mace. In United States v. Lancaster, 6 F.3d 208 (4th Cir.1993), a security guard had been sprayed with mace during a robbery and had suffered “severe burning in his eyes and cheeks.” Id. at 209. The district court found that no “bodily injury” occurred. The court of appeals held that this finding was not clearly erroneous. In the course of doing so it observed: While the burning in [the security guard’s] eyes and cheeks caused by the mace was undoubtedly unpleasant, and could not be" }, { "docid": "19233727", "title": "", "text": "mental faculty. Even if the witnesses were correct in their belief that the victim lost consciousness, we do not know whether the injury was “protracted,” and the cases cited by the government do not support the contention that a brief loss of consciousness without more satisfies the definition of serious bodily injury. While the court in United States v. Thompson, 60 F.3d 514, 516, 518 (8th Cir.1995), mentions “the impairment of [the victim’s] mental faculties when he was knocked unconscious” as relevant to its finding that the evidence supported an enhancement for serious bodily injury, it also noted that the victim required hospitalization and treatment for a concussion, black eyes, and abrasions to the head and face. The government also relies on Dennison, but that case involved a different definition of serious bodily injury, which specifically included unconsciousness as an indication of such injury. 937 F.2d at 562. We conclude that there was insufficient evidence of a “protracted impairment of a function of a bodily member, organ, or mental faculty” to uphold the district court’s finding that the victim of the Port O’Call assault suffered serious bodily injury as opposed to bodily injury. V. Mr. Walker challenges the four-level enhancement he received for his role as an “organizer or leader” under section 3Bl.l(a) of the sentencing guidelines. The government bears the burden of proving the facts necessary to support the enhancement by a preponderance of the evidence. United States v. Torres, 53 F.3d 1129, 1142 (10th Cir.1995). We review the district court’s finding for clear error. Tagore, 158 F.3d at 1130. “To impose the 4-level increase, the sentencing court must make two findings of fact: first, that defendant [wa]s an organizer or leader; and, second, that the criminal activity involved five or more participants or was otherwise extensive.” United States v. Roberts, 14 F.3d 502, 523 (10th Cir.1993). In determining whether the defendant was an organizer or leader of a criminal activity, the district court should consider: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right" }, { "docid": "17054606", "title": "", "text": "subsections of section 2B3.1(b). The Application Note serves only to describe what the guideline provisions require, not to impose additional limitations not contained within the text of the guidelines. The district court enhanced Mr. Perkins’ sentence nine levels under sections 2B3.1(b)(2) and (3). The court thus did not impose excessive enhancements to Mr. Perkins’ sentence for weapon involvement and injury in violation of the guidelines. III. Mr. Perkins next contends the district court erred in increasing his sentence by two levels for bodily injury sustained by the security guard because the guard’s injury was not sufficiently “significant” within the meaning of the guidelines. The district court’s determination of the significance of a bodily injury is a finding of fact .we review for clear error. See United States v. Lanzi 933 F.2d 824, 827 (10th Cir.1991). The sentencing guidelines define “bodily injury” as “any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1, comment, (n. 1(b)). “[T]o be ‘significant’ an injury need not interfere completely with the injured person’s life but cannot be wholly trivial and, while it need not last for months or years, must last for some meaningful period.” United States v. Lancaster, 6 F.3d 208, 209 (4th Cir.1993) (per curiam). Injuries that are “painful and obvious” but that do not require medical attention may nevertheless constitute “bodily injuries” justifying application of a sentence enhancement. See United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994). Courts have held visible Injuries such as bumps, bruises, and redness or swelling to constitute “bodily injury.” See id.; United States v. Greene, 964 F.2d 911, 912 (9th Cir.1992) (per curiam). Here the district court based its finding of bodily injury upon information in the presentence report indicating that the security guard sustained a “small laceration and bruising” and that he experienced continued neck and shoulder pain causing him to seek chiropractic treatment. We agree with Mr. Perkins that it is the actual nature of the injury sustained and not generalized statements concerning the nature of" }, { "docid": "19233726", "title": "", "text": "Newman, 982 F.2d 665, 672 (1st Cir.1992) (medical testimony showed victim suffered severe headaches, facial bruising, hemorrhaging, and inner ear injury and required six-day hospitalization); United States v. Corbin, 972 F.2d 271, 272 (9th Cir.1992) (uncontested facts showed victim suffered head injury requiring more than twenty-five sutures). While the government is correct to point out that “there is no case law requiring that a victim be identified in order to find that serious bodily injury occurred,” Aple. Br. at 40, the case law does require something more by way of proof that serious bodily injury occurred than what we have here. “[I]t is the actual nature of the injury sustained and not generalized statements concerning the nature of the conduct ... that must be the focus of the district court’s determination.” Perkins, 132 F.3d at 1326 (emphasis in original); accord United States v. Mejia-Canales, 467 F.3d 1280, 1284 (10th Cir.2006). The government contends that the evidence supports a finding that the victim lost consciousness, which, according to the government, constitutes a protracted impairment of a mental faculty. Even if the witnesses were correct in their belief that the victim lost consciousness, we do not know whether the injury was “protracted,” and the cases cited by the government do not support the contention that a brief loss of consciousness without more satisfies the definition of serious bodily injury. While the court in United States v. Thompson, 60 F.3d 514, 516, 518 (8th Cir.1995), mentions “the impairment of [the victim’s] mental faculties when he was knocked unconscious” as relevant to its finding that the evidence supported an enhancement for serious bodily injury, it also noted that the victim required hospitalization and treatment for a concussion, black eyes, and abrasions to the head and face. The government also relies on Dennison, but that case involved a different definition of serious bodily injury, which specifically included unconsciousness as an indication of such injury. 937 F.2d at 562. We conclude that there was insufficient evidence of a “protracted impairment of a function of a bodily member, organ, or mental faculty” to uphold the district court’s" }, { "docid": "19783144", "title": "", "text": "BAUER, Circuit Judge. David Maiden pleaded guilty to bank robbery, 18 U.S.C. §§ 2113(a), (b), and carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A), pursuant to a written plea agreement. The district court sentenced him to 141 months’ imprisonment, including a two-level bodily injury enhancement for injuries Maiden inflicted on two bank tellers when he sprayed them with pepper spray. Maiden appeals the application of the enhancement to his sentence. Finding his appeal without merit, we affirm. I. BACKGROUND On June 5, 2008, David Maiden robbed a TCF Bank on the northwest side of Chicago. During the robbery, he carried a .45 caliber Uzi and wore a bulletproof vest. When two young tellers were too slow retrieving money from the bank’s vault, Maiden sprayed them in the face with pepper spray. He then made off with approximately $6,000. Maiden pleaded guilty to aggravated bank robbery and carrying a gun during a crime of violence. In his written plea agreement, he also admitted spraying the tellers with pepper spray. The pre-sentence investigation report (“PSR”) recommended a two-point enhancement to Maiden’s sentence under § 2B3.1(b)(3)(A) of the U.S. Sentencing Guidelines, based on the injury caused by the pepper spray. Specifically, the PSR included a statement from one of the tellers that following the incident, she felt a burning sensation whenever she attempted to wear contact lenses and has therefore been unable to wear them. Maiden objected to the application of the bodily injury enhancement on the basis that pepper spray is not a dangerous weapon under Illinois law, and so the trial judge should have viewed more suspiciously the teller’s “uncorroborated” statement in the PSR that she was injured. He essentially argued that when the government cannot establish whether bodily injury was inflicted by mace or pepper spray, the court must examine hospital and other records to determine whether the offender caused a bodily injury. The district court rejected his arguments. It held that the teller’s testimony was sufficiently reliable to support application of the bodily injury enhancement, regardless of what type of spray was used, and sentenced" }, { "docid": "19783148", "title": "", "text": "at sentencing where judge found statement reliable). Maiden additionally argues that the teller’s statement is insufficient evidence upon which to base the bodily injury enhancement because pepper spray is not a dangerous weapon and is virtually incapable of inflicting a “significant injury” as contemplated by the Guidelines. He seems to say that if mace is used, a judge can presume bodily injury because mace is considered a dangerous weapon under Illinois law. On the other hand, when pepper spray is used, Maiden suggests that the government must produce additional evidence to prove the injury because pepper spray is not a dangerous weapon. In light of the government’s failure to demonstrate that he used a dangerous weapon, Maiden contends that the teller’s statement is insufficient. To the extent Maiden claims that the sentencing judge automatically applied the enhancement in reliance on Taylor, 135 F.3d at 481-82, and United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994), his argument is without merit. Though in both cases we affirmed application of a two-point bodily injury enhancement where the defendant sprayed victims with mace or pepper spray, in neither did we hold that bodily injury could be presumed simply because mace or pepper spray was used. In both cases, application of the bodily injury enhancement turned on a statement from the victim who suffered injury, or a person who witnessed the injury first-hand. See Taylor, 135 F.3d at 481-82 (supervisor’s first-hand account of tellers’ injuries was sufficiently reliable so that sentencing judge “could properly make the factual finding” regarding bodily injury); Robinson, 20 F.3d at 278 (teller’s statement that she suffered injuries was sufficient evidence to apply enhancement). See also U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (enhancement applicable if “victim sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A) (bodily injury is “any significant injury,” including those that are “painful and obvious”). In this case, the judge properly followed the Guidelines, basing his finding of bodily injury on the “burning sensation” the teller experienced in her eyes, and that she was unable to wear contact lenses. He found her statement, as relayed" }, { "docid": "19783149", "title": "", "text": "the defendant sprayed victims with mace or pepper spray, in neither did we hold that bodily injury could be presumed simply because mace or pepper spray was used. In both cases, application of the bodily injury enhancement turned on a statement from the victim who suffered injury, or a person who witnessed the injury first-hand. See Taylor, 135 F.3d at 481-82 (supervisor’s first-hand account of tellers’ injuries was sufficiently reliable so that sentencing judge “could properly make the factual finding” regarding bodily injury); Robinson, 20 F.3d at 278 (teller’s statement that she suffered injuries was sufficient evidence to apply enhancement). See also U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (enhancement applicable if “victim sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A) (bodily injury is “any significant injury,” including those that are “painful and obvious”). In this case, the judge properly followed the Guidelines, basing his finding of bodily injury on the “burning sensation” the teller experienced in her eyes, and that she was unable to wear contact lenses. He found her statement, as relayed by the PSR, sufficiently reliable. Thus, the sentencing judge appropriately applied the bodily injury enhancement because he determined that the teller had a painful and obvious injury, not simply because Maiden used pepper spray. III. CONCLUSION There was sufficient evidence to determine that Maiden inflicted bodily injury during the commission of his crime and the court properly applied the two-point enhancement under § 2B3.1(b)(3)(A). We Affirm. . The term \"Mace” is a trade name for a particular brand of pepper spray. However, mace also refers to a more potent form of tear gas known as alpha-chloroacetophenone, or CN gas, typically available only to law enforcement or the military. See U.S. Centers For Disease Control and Prevention, National Institute for. Occupational Safety and Health, Pocket Guide To Chemical Hazards 61 (2007). But the term is most commonly used as a generic word for pepper spray. See, e.g., United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994); People v. Runge, 346 Ill. App.3d 500, 282 Ill.Dec. 13, 805 N.E.2d 632, 637-38 (2004)(describing pepper spray as \"mace”)." }, { "docid": "11936015", "title": "", "text": "The legality of a guideline sentence is reviewed de novo. United States v. Garcia, 112 F.3d 395, 397 (9th Cir.1997). However, the district court’s factual findings in the sentencing phase are reviewed for clear error. United States v. Ladum, 141 F.3d 1328, 1344 (9th Cir.1998). The government has the burden of proving by a preponderance of the evidence the facts necessary to enhance a defendant’s offense under the Guidelines. United States v. Burnett, 16 F.3d 358, 361 (9th Cir.1994). Section 2B3.1(b)(2)(D) (1997) of the Sentencing Guidelines provides for a four-level increase if a dangerous weapon is used in the commission of the crime. A dangerous weapon is “an instrument capable of inflicting death or serious bodily injury.” Id. at § 1B1.1, cmt. (n.l(d)). A serious bodily injury is one “involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” Id. at (n.l(j)). The issue of whether pepper spray constitutes a dangerous weapon has not been addressed by this court. Other courts have addressed similar issues with mixed results. See United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.1998) (holding that where mace did in fact cause serious injury it constituted a dangerous weapon); United States v. Harris, 44 F.3d 1206, 1216 (3d Cir.1995) (holding that the government failed to prove that mace constituted a dangerous weapon); United States v. Dukovich, 11 F.3d 140, 142 (11th Cir.1994) (holding that tear gas is a dangerous weapon because it can harm eyes, induce vomiting, cause loss of breath and leave rashes). In the instant case, Neill offered testimony from Kenneth G. Heide, a twenty-five year police veteran. He testified that in his opinion pepper spray was not a dangerous weapon, and that in four years of investigating use of pepper spray by Eugene police officers, there was never an instance of injury. Neill also entered into evidence an article from the National Institute of Justice which provided that only 14 of 174 suspects sprayed with pepper spray suffered any injuries and those" } ]

[ { "docid": "23512692", "title": "", "text": "reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511—12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055 (1947)); see also Zipfel v. Halliburton, 832 F.2d 1477, 1481-82 (9th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). Although this circuit has not articulated a dispositive test to govern forum non conveniens dismissal, the Gulf Oil Court suggested that both “private” and “public” factors must be analyzed in deciding whether a case should be heard in an alternative forum. This forum non conveniens analysis applies with equal force in the context of admiralty and maritime jurisdiction. As the Second Circuit observed: “[I]t is in the field of admiralty that our federal courts have applied the doctrine of forum non conveniens most flexibly and over the longest period of time.” Alcoa S.S. Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 153 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1981). In a motion to dismiss on the ground of forum non conveniens, “the burden of proving an alternative forum is the defendant’s and ... the remedy must be clear before the case will be dismissed.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983). Accordingly, appellee must prove the existence of an adequate alternative forum and that private and public interest factors favor dismissal. See Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843; Piper Aircraft, 454 U.S. at 247-52, 102 S.Ct. at 261-64. In carrying this burden, appellee must provide sufficient information to enable the district court to balance the parties’ interests. If appellant, however, can demonstrate that choice of law requires retaining the case, the motion to dismiss will be" } ]

[ { "docid": "1630547", "title": "", "text": "quotation marks and citation omitted); see also Kamel v. Hill-Rom Co., 108 F.3d 799, 802 (7th Cir.1997) (forum non conveniens dismissal appropriate when dismissal “best serves the convenience of the parties and the ends of justice”), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828; 91 L.Ed. 1067 (1947). Thus, when an alternative forum has jurisdiction to hear a dispute, a case can be dismissed if trial in the plaintiffs chosen forum would be more oppressive to the defendant than it would be convenient to the plaintiff or if the forum otherwise creates administrative and legal problems that render it inappropriate. See Sinochem, 549 U.S. at 429, 127 S.Ct. 1184; Kamel, 108 F.3d at 802. Given the variety of relevant factors, their case-specific nature, and the absence of any formula for weighing them precisely, a district court’s decision to dismiss a suit for forum non conveniens is “committed to the sound discretion of the trial court” and “may be reversed only when there has been a clear abuse of discretion.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); see also Abad, 563 F.3d at 665-66. ‘Where a district court has contemplated all relevant public and private interest factors and where its balancing of these factors is reasonable, its forum non conveniens determination warrants substantial deference.” Kamel, 108 F.3d at 802, citing Piper, 454 U.S. at 254, 102 S.Ct. 252. Accordingly, we must take care not to “substitute[ ] [our] own judgment for that of the District Court.” Piper, 454 U.S. at 257, 102 S.Ct. 252. To decide an appeal of a forum non convenims dismissal, we determine first whether there is an adequate alternative forum available to hear the case. Kamel, 108 F.3d at 802. If so, we evaluate the various private and public interest factors to see whether a finding that the balance counseled in favor of dismissal was reasonable. Id. at 803. A. The Adequacy of Hungary as" }, { "docid": "19036131", "title": "", "text": "of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). Specifically, when applying abuse of discretion review, the Supreme Court has instructed appellate courts not to “los[e] sight of this rule, and substitute[ their] own judgment for that of the District Court.” Id. at 266-67. IV. DISCUSSION When it made its motion for dismissal on grounds of forum non conveniens, Cessna must have demonstrated “that (1) an adequate alternative forum [was] available, (2) the public and private factors weigh[ed] in favor of dismissal, and (3) the plaintiffs could] reinstate [their] suit in the alternative forum without undue convenience or prejudice.” See Leon v. Million Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir.2001). The Supreme Court outlined a number of private and public interest factors for courts to consider in a forum non conveniens determination. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In Gilbert, the Court listed these factors in detail: An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the" }, { "docid": "22985543", "title": "", "text": "accomplish the translating effort. Lockman and TEAM maintained a relationship for over 30 years, which led to the publishing of a new Japanese version of the Bible (“Shinkaiyaku Seisho”) distributed almost exclusively in Japan. The Lockman and TEAM cooperation also led to ongoing projects to produce more translations into several other Asian languages. The relationship eventually soured and Lockman brought this suit, alleging various claims for copyright infringement, unfair competition, and tort, contract and RICO violations. TEAM/Domei brought its own suit in Japan seeking a declaratory judgment that it owns the Japanese copyright to the Shin-kaiyaku Seisho. Loekman has appeared in that Japanese action. II The district court had jurisdiction over this suit under 28 U.S.C. § 1331 (federal question), § 1332(a) (diversity) & § 1338 (copyright). This court has jurisdiction under 28 U.S.C. § 1291. We review the district court's dismissal for abuse of discretion. “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055, 1064 (1947)); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1448-49 (9th Cir.1990). This standard presents Loekman with an uphill battle. A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. Contact Lumber, 918 F.2d at 1449. This showing must overcome the “great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.” Contact Lumber, 918 F.2d at 1449 (citing Gates Learjet Corp. v. Jensen, 743" }, { "docid": "9429057", "title": "", "text": "aside the Magistrate’s recommendation to deny Famossul’s motion to dismiss on the basis of forum non conveniens, and dismissed the present action. STANDARD OF REVIEW In Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981), the United States Supreme Court stated that: [t]he forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. It is important to determine whether the relevant factors have been considered since it has been said that “the [trial] court abus es its discretion when it fails to balance the relevant factors.” C.A. La Seguridad v. Transutur Line, 707 F.2d 1304, 1308 (11th Cir.1983). DISCUSSION In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947), the Supreme Court stated that the doctrine of forum non conveniens is based on the principle “that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” The doctrine permits “a trial court to decline to exercise its jurisdiction ... where it appears that the convenience of the parties and the court, and the interests of justice indicate that the action should be tried in another forum.” Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1218 (11th Cir.), cert. denied, 474 U.S. 948, 106 S.Ct. 347, 88 L.Ed.2d 294 (1985). Hence, as stated by the Supreme Court, since the doctrine “was designed as an ‘instrument of justice,’ ” Williams v. Green Bay & W.R.R., 326 U.S. 549, 554, 66 S.Ct. 284, 287, 90 L.Ed. 311 (1946), the question to be answered is “whether the actions brought are vexatious or oppressive or whether the interests of justice require that the trial be had in a more appropriate forum.” Roster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 530, 67 S.Ct. 828," }, { "docid": "12795976", "title": "", "text": "territorial waters of another country. We concluded that it could, and in that context opined that “there is nothing inherently absurd with the notion of an American court applying American law to an action filed by an American plaintiff against an American defendant, particularly when the law in question was expressly designed to cover wrongful deaths occurring outside the territorial boundaries of the United States.” Id. at 529-30. This does not mean that the doctrine of forum non conveniens is unavailable if DOHSA applies. Accordingly, we hold that DOHSA neither explicitly, nor implicitly, rejects application of the doctrine of forum non conveniens. Ill Given our conclusion that the district court could dismiss on grounds of forum non conveniens, the remaining question is whether it clearly abused its discretion in doing so. American Dredging, 510 U.S. at 455, 114 S.Ct. 981 (noting that the forum non conveniens determination is committed to the sound discretion of the trial court and may be reversed only when there has been a clear abuse of discretion); Creative Tech., 61 F.3d at 699 (same). “[Wjhere the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” American Dredging, 510 U.S. at 455, 114 S.Ct. 981 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)); Creative Tech., 61 F.3d at 699. “A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. This showing must overcome the ‘great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.’ ” Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir.1991) (quoting Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir.1990)). Private interest factors include “(1) relative ease of access to sources of proof; (2) the" }, { "docid": "22985544", "title": "", "text": "where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055, 1064 (1947)); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1448-49 (9th Cir.1990). This standard presents Loekman with an uphill battle. A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. Contact Lumber, 918 F.2d at 1449. This showing must overcome the “great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.” Contact Lumber, 918 F.2d at 1449 (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985)). Loekman stresses that plaintiffs presumptively may choose their forums. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062 (“unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed”). The deference due to plaintiffs, however, is far from absolute. We have recognized that “[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983); Contact Lumber, 918 F.2d at 1449. In practice, “the cases demonstrate that defendants frequently rise to the challenge” of showing an alternative forum is the more convenient one. Contact Lumber, 918 F.2d at 1449. “A citizen’s forum choice should not be given dispositive weight_" }, { "docid": "13354039", "title": "", "text": "and opposing Karim's access to other courts, and then after the vessel was sold (and the company defunct), filed a motion to dismiss the limitation action on the basis of personal jurisdiction and forum non conve-niens. When the instant United States laws cease to be of use, a party cannot extinguish the proceedings. Shipowners cannot avail themselves of the benefits under United States laws, but then refuse to bear the possible burdens under those laws. B. Forum Non (Jonveniens \"The forum non conveniens deter-is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion,; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.\" Piper Aircraft Co. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (emphasis omitted and added); see also McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 423 (5th Cir.2001) (\"We review the district court's denial of a motion to dismiss for forum non conveniens for a clear abuse of discretion.\"). The \"doctrine of forum non conve-liens proceed[s] from [the] premise [that] [i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum.\" Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (emphasis omitted). This doctrine enables a court to decline to exercise its jurisdiction if the moving party establishes that the convenience of the parties and the court and the interests of justice indicate that the case should be tried in another forum. Building upon its previous case in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court set out the framework for analyzing forum non conve-niens in an international context in Piper Aircraft. First, \"the court must determine whether there exists an alternative forum.\" Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252. Second, the court must determine which forum is best suited to the litigation. See id. at 255, 102 S.Ct." }, { "docid": "23245284", "title": "", "text": "for an evidentiary hearing on the pending motion. After reviewing plaintiffs’ documents, the court denied the motion. On April 13, 1982, the court granted defendants’ motion to dismiss on the ground of forum non conveniens but conditioned the dismissal on Boeing’s and United’s agreement to the following four-part undertaking: 1. The courts of Taiwan have, and will assert, jurisdiction over these actions. 2. Defendants will submit themselves to the jurisdiction of the Taiwanese court, and will make their employees available to testify in Taiwan. 3. Defendants agree to waive any statute of limitations claims arising from the date that these actions were filed to the date that this Order dismissing the complaints becomes effective. 4. Defendants consent to satisfy any judgment that may be rendered against them in Taiwan. The dismissal as to Far Eastern was unconditional. STANDARD OF REVIEW Our standard of review is narrow: The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). ISSUE The only issue is whether the district court abused its discretion in dismissing these cases on the ground of forum non conveniens. We affirm. ANALYSIS Whether the district court abused its discretion by granting defendants’ motion to dismiss on the ground of forum non conven-iens depends on the application to the facts of this case of the doctrine which the Supreme Court enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Piper Aircraft Co. v. Rey-no, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The district court found that the facts in Reyno were sufficiently analogous to the facts in this case to justify dismissal on grounds of forum non conven-iens. Plaintiffs argued on appeal that there are sufficient differences" }, { "docid": "22275323", "title": "", "text": "against the First American defendants. B. BCCI Defendants’ Motion to Dismiss After dismissing Panama’s claims against the First American defendants, the district court dismissed its claims against the BCCI defendants on the basis of forum non conveniens and, alternatively, under the doctrine of international comity. We review a dismissal on the grounds of forum non conveniens for abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981) (“The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.”). A party moving to dismiss on the basis of forum non conveniens must demonstrate: (1) that an adequate alternative forum is available; and (2) that the private and public interest factors weigh in favor of dismissal. See Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1429 (11th Cir.1996); Lockman Foundation v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir.1991). After carefully reviewing the record, we conclude that the district court did not abuse its discretion in concluding that the BCCI defendants had established both of the necessary prongs of the forum non conveniens analysis. 1. Available and Adequate Forum Panama asserts that the district court abused its discretion in finding that the court-ordered liquidation proceedings underway in the Cayman Islands, England, and Luxembourg are adequate alternative fora. Generally, a defendant satisfies the first prong of the analysis by showing that it is “ ‘amenable to process’ in the other jurisdiction.” Piper, 454 U.S. at 254 n.22, 102 S.Ct. at 265 n. 22 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947)). “In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied.” Id. Because Panama has never" }, { "docid": "23512694", "title": "", "text": "denied. See Zipfel, 832 F.2d at 1486. Courts have not agreed on whether U.S. plaintiffs are entitled to special deference in their selection of a U.S. forum. Appellants contend the district court erred in attaching little significance to their choice of forum. In support of their argument, they rely on Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, which states: “But unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”' This Circuit has found that while a U.S. citizen has no absolute right to sue in a U.S. court, great deference is due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown. Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). While the courts’ language suggests that a U.S. citizen’s decision to sue in the domestic forum creates a presumption of deference: [a] citizen’s forum choice should not be given dispositive weight.... [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper. Piper Aircraft, 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23. As this Circuit has observed: “The presence of American plaintiffs, however, is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum, non conveniens.” Cheng, 708 F.2d at 1411 (following Alcoa, 654 F.2d 147, 154-58). Although “a defendant must meet an almost impossible burden in order to deny a citizen access to the courts of this country,” Mizokami Bros. of Ariz., Inc. v. Baychem Corp., 556 F.2d 975, 977 (9th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 770, 54 L.Ed.2d 783 (1978), the cases demonstrate that defendants frequently rise to the challenge. In fact, the Mizokami Court upheld the lower court’s dismissal on the ground of forum non conveniens." }, { "docid": "19695107", "title": "", "text": "case to ensure that Hill-Rom is not merely seeking to delay the proceedings or otherwise illegitimately frustrate [Kamel].” Despite the heightened burden it imposed on Hill-Rom, the district court granted Hill-Rom’s motion, and we affirm. Analysis A. Forum Non Conveniens and Standard of Review. The principle of forum non conveniens comes down to this: a trial court may dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842-43, 91 L.Ed. 1055 (1947); Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). When an alternative forum has jurisdiction to hear a case, and when a trial in the chosen forum would result in vexation and oppression to the defendant which would far outweigh the plaintiff’s convenience or when the chosen forum would generate administrative and legal entanglements for the trial court, the court may dismiss the case. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981); see also Macedo v. Boeing Co., 693 F.2d 683, 689 (7th Cir.1982). A forum non conveniens determination is consigned to the trial court’s sound discretion. Piper, 454 U.S. at 254, 102 S.Ct. at 265. Where a district court has contemplated all relevant public and private interest factors and where its balancing of these factors is reasonable, its forum non conveniens determination -warrants substantial deference. Id.; Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir.1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991). We review this determination only for abuse of discretion. Id.; see also Wilson, 916 F.2d at 1245. B. Whether an Adequate Alternative Forum Exists. As a practical matter, it makes little sense to broach the subject of forum non conveniens unless an adequate alternative forum is available to hear the ease. Therefore, the first step in any forum non conveniens inquiry is to decide whether such a place exists. Piper, 454 U.S." }, { "docid": "11835601", "title": "", "text": "S.Ct. 252, 70 L.Ed.2d 419 (1981). This Court reviews a district court’s dismissal of a complaint on forum non conveniens grounds for abuse of discretion. Id.; Lony v. E.I. Du Pont de Nemours & Co. (“Lony I”), 886 F.2d 628, 631 (3d Cir.1989). The district court’s determination “may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co., 454 U.S. at 257, 102 S.Ct. 252. Thus, “we do not perform a de novo resolution of forum non conveniens issues.” Lacey v. Cessna Aircraft Co. (“Lacey I”), 862 F.2d 38, 43 (3d Cir.1988). “[A] district court abuses its discretion in a forum non conveniens analysis when it fails to consider adequately and to determine the amount of deference due the foreign plaintiffs choice of forum or when it clearly errs in weighing the factors to be considered.” Lony I, 886 F.2d at 632 (internal citations omitted). III. The Supreme Court has articulated precepts applicable in forum non conve-niens cases. Although “a plaintiffs choice of forum should rarely be disturbed,” Piper Aircraft Co., 454 U.S. at 241, 102 S.Ct. 252, a federal court “may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). When an alternative forum has jurisdiction to hear the case, and when trial in the plaintiffs chosen forum would “establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience,” or when the “chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems,” the court may, in the exercise of its sound discretion, dismiss the case. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). To guide the trial court’s exercise of discretion and its determination of oppressiveness and vexation, the Supreme Court has" }, { "docid": "12795977", "title": "", "text": "at 699 (same). “[Wjhere the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” American Dredging, 510 U.S. at 455, 114 S.Ct. 981 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)); Creative Tech., 61 F.3d at 699. “A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. This showing must overcome the ‘great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.’ ” Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir.1991) (quoting Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir.1990)). Private interest factors include “(1) relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of hostile witnesses, and cost of obtaining attendance of willing witnesses; (3) possibility of viewing subject premises; (4) all other factors that render trial of the case expeditious and inexpensive.” Creative Tech., 61 F.3d at 703 (quoting Zipfel, 832 F.2d at 1485). Public interest factors include “(1) administrative difficulties flowing from court congestion; (2) imposition of jury duty on the people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; (4) the interest in having a diversity case tried in a forum familiar with the law that governs the action; (5) the avoidance of unnecessary problems in conflicts of law.” Id. at 703-04. The district court found that Baja California Sur, Mexico provides an adequate forum because all defendants agreed to accept service, submit to the jurisdiction, and waive any statute of limitations defenses; Loya could bring a tort-based suit there; and Mexican courts would afford some remedy, even though less than available in this country. (Loya’s expert," }, { "docid": "22985545", "title": "", "text": "F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985)). Loekman stresses that plaintiffs presumptively may choose their forums. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062 (“unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed”). The deference due to plaintiffs, however, is far from absolute. We have recognized that “[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983); Contact Lumber, 918 F.2d at 1449. In practice, “the cases demonstrate that defendants frequently rise to the challenge” of showing an alternative forum is the more convenient one. Contact Lumber, 918 F.2d at 1449. “A citizen’s forum choice should not be given dispositive weight_ [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Piper Aircraft, 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23, 70 L.Ed.2d at 436 n. 23. A. Adequate Alternative Forum “At the outset of any forum non conve-niens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process’ in the other jurisdiction.” Id. at 254 n. 22, 102 S.Ct. at 265 n. 22, 70 L.Ed.2d at 435 n. 22 (citing Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061). Because the record shows that TEAM has agreed to submit to Japanese jurisdiction, .and because TEAM/Domei and McVety reside in Japan, the threshold test is satisfied. The initial requirement may not be satisfied, however, in “rare circumstances ... where the remedy offered by the other forum is clearly unsatisfactory.” Id.; see also Cheng, 708 F.2d at 1411 (“[T]he" }, { "docid": "23245285", "title": "", "text": "where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). ISSUE The only issue is whether the district court abused its discretion in dismissing these cases on the ground of forum non conveniens. We affirm. ANALYSIS Whether the district court abused its discretion by granting defendants’ motion to dismiss on the ground of forum non conven-iens depends on the application to the facts of this case of the doctrine which the Supreme Court enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Piper Aircraft Co. v. Rey-no, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The district court found that the facts in Reyno were sufficiently analogous to the facts in this case to justify dismissal on grounds of forum non conven-iens. Plaintiffs argued on appeal that there are sufficient differences between the two cases to justify a contrary result in the case now before us and that the district court’s failure to recognize the consequences of these differences was an abuse of discretion. The doctrine of forum non conveniens permits a court to decline to exercise its jurisdiction for prudential reasons. Although 28 U.S.C. § 1404(a) codifies the rule of forum non conveniens when the choice is between alternative forums within the United States, the common law governs when it is a choice between a United States and a foreign forum. Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 670 (9th Cir. 1975). When a court decides in its discretion that a case before it should more appropriately be tried in a foreign forum, it may dismiss the case. Miskow v. Boeing Co., 664 F.2d 205, 208 (9th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982). In Gulf Oil v. Gilbert the Supreme Court set forth the factors which a trial court must consider in" }, { "docid": "23579385", "title": "", "text": "Singapore jurisdiction and is now a party to the ongoing Singapore action. Aztech filed a motion to dismiss the United States action under the forum non conve-niens doctrine. The district court granted Aztech’s motion, concluding that Singapore offered an adequate alternative forum and that the balance of public and private interest factors favored dismissing the action in favor of adjudication in Singapore. Creative appeals. II. DISCUSSION The party moving for forum non conveniens dismissal must demonstrate two things: (1) the existence of an adequate alternative forum; and (2) that the balance of relevant private and public interest factors favor dismissal. Contact Lumber Co. v. P.T. Moges Shipping Co. Ltd,., 918 F.2d 1446, 1449 (9th Cir.1990) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). Creative raises three primary issues on appeal: (1) whether the district court erred in concluding that the forum non conveniens doctrine applies to the United States Copyright Act; (2) whether the district court abused its discretion in concluding that the High Court of Singapore will provide an adequate alternative forum; and (3) whether the district court abused its discretion in determining that the balance of relevant public and private interest factors favors dismissal. The scope of our review is narrow: The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Ceramic Corp. of America v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981)). A. Applicability of the Forum Non Con-veniens Doctrine The forum non conveniens doctrine is inapplicable to certain federal statutes such as the Jones Act or the Federal Employers’ Liability Act (FELA) which contain special provisions mandating venue in the United States district courts. Zipfel v. Halliburton Co., 832 F.2d 1477," }, { "docid": "23512691", "title": "", "text": "rendered, will be satisfied. I. Forum Non Conveniens Appellants and appellee offer competing views concerning how this litigation ought to be characterized. Appellants argue the court must focus on whether the bills of lading issued by Moges contained false information upon which U.S. purchasers of cargo relied to their detriment. They maintain that their case turns on the rights and duties set forth in the Moges bills of lading, that COGSA requires interpretation of these documents under U.S. law, and that the evidence (i.e., the bill of lading) upon which the court’s decision would rest is located in the United States. Moges, on the other hand, emphasizes that the principal issue is the assignment of fault in the listing and grounding of the ISABELITA. Because all of the evidence and parties that can best explain the casualty are located in the Philippines, Moges argues that Manila is a more appropriate forum in which to litigate this dispute. “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511—12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055 (1947)); see also Zipfel v. Halliburton, 832 F.2d 1477, 1481-82 (9th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). Although this circuit has not articulated a dispositive test to govern forum non conveniens dismissal, the Gulf Oil Court suggested that both “private” and “public” factors must be analyzed in deciding whether a case should be heard in an alternative forum. This forum non conveniens analysis applies with equal force in the context of admiralty and maritime jurisdiction. As the Second Circuit observed: “[I]t is in the field of admiralty that our federal courts have applied the doctrine of forum" }, { "docid": "22972756", "title": "", "text": "Louisiana on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir.1987) (citing Friends For All Children v. Lockheed Aircraft Corp., 717 F.2d 602, 607 (D.C.Cir.1983)). “[W]here the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper, 454 U.S. at 257, 102 S.Ct. at 266 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844, 91 L.Ed. 1055 (1947)). Therefore, our review is limited to consideration of whether the district court abused its discretion, and we do not perform a de novo resolution of forum non conveniens issues. See, In re Air Crash, 821 F.2d at 1166 n. 32. We have previously stated that the district court abuses its discretion if it does not hold the defendants to their proper burden on the forum non conveniens motion or has clearly erred in weighing the factors to be considered. Reyno v. Piper Aircraft Company, 630 F.2d 149, 160 (3d Cir.1980), rev’d. on other grounds, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Cf. Founding Church of Scientology v. Verlag, 536 F.2d 429, 436 (D.C.Cir.1976) (“Where, as here, there has been no weighing of the relative advantages of each forum but only a consideration of the drawbacks of one, that discretion has been abused.”); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1334 (9th Cir.1984) (the failure to consider relevant public and private interest factors constitutes an abuse of discretion), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). Other courts of appeals have held that a district court abuses its discretion when it summarily grants or denies a motion to dismiss on forum non conveniens grounds without oral or written explanation, see, In re Air Crash, 821 F.2d at 1166, and that if the district court does not supply specific reasons and develop adequate facts to support its decision, that decision cannot be adequately reviewed for abuse of discretion. See, id. at 1166, n. 32; La Seguridad v. Transytur Line, 707 F.2d 1304, 1308-10 (11th Cir.1983) (court" }, { "docid": "3815843", "title": "", "text": "would render it constitutionally suspect and, accordingly, we decline to give it such a reading. Cf. NLRB v. Catholic Bishops of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979). On this record, we cannot determine whether Holiday Inns had a sufficient level of conduct and activity in Indiana to justify the characterization “continuous and systematic.” Helicopteros Nacionales de Colombia, 466 U.S. at 416, 104 S.Ct. at 1873. Accordingly, we remand this aspect of the case to the district court for a more plenary inquiry into the contacts and conduct of Holiday Inns in Indiana. C. Forum Non Conveniens We review under an abuse of discretion standard the district court’s decision to deny a motion to dismiss for forum non conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); FMC Corp. v. Varonos, 892 F.2d 1308, 1314 (7th Cir.1990). As the Supreme Court has instructed, [Wjhere the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co., 454 U.S. at 257, 102 S.Ct. at 266. Furthermore, the district court is granted “substantial flexibility” in deciding a forum non conveniens argument. Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 1953, 100 L.Ed.2d 517 (1988). “There is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum.” Macedo v. Boeing Co., 693 F.2d 683, 688 (7th Cir.1982); see Piper Aircraft Co., 454 U.S. at 255, 102 S.Ct. at 265; Koster v. (American) Lumbermens Mutual Casualty, 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947); Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). “Courts routinely give less weight to a foreign plaintiff’s choice of forum. Citizens or residents deserve somewhat more deference than foreign plaintiffs.” Macedo, 693 F.2d at 688; see Piper Aircraft, 454 U.S. at 256," }, { "docid": "11065848", "title": "", "text": "banc); De Aguilar v. Boeing Co., 11 F.3d 55, 59 (5th Cir.1993). “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419(1981) (emphasis omitted and added); see also McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 423 (5th Cir.2001). The “doctrine of forum non conveniens proceed[s] from [the] premise [that] ... [i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (emphasis omitted). Building on its holding in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court set out the framework for analyzing forum non conveniens in an international context in Piper Aircraft. First, “the court must determine whether there exists an alternative forum.” Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. at 265. The court considers the amenability of the defendant to service of process and availability of an adequate remedy in the alternative forum. See Piper Aircraft, 454 U.S. at 254-55 n. 22, 102 S.Ct. at 265; see also McLennan, 245 F.3d at 424. Second, the court must determine which forum is best suited to the litigation. See id. at 255, 102 S.Ct. at 266. In performing this second step, a court must consider whether “certain private and public interest factors weigh in favor of dismissal.” McLennan, 245 F.3d at 424. The court must bear in mind that “the ultimate inquiry is where trial will best serve the convenience of the parties and the interests of justice.” In re Air Crash, 821 F.2d at 1162 (quoting Koster v. Am. Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947)). The" } ]

[ { "docid": "23608099", "title": "", "text": "U.S. 347, n. 19, 88 S.Ct. 507, 19 L.Ed.2d 576; Camara v. Municipal Court, 1967, 387 U.S. 523, 529, 87 S.Ct. 1727, 18 L.Ed.2d 930. The Court continues to stress the desirability of obtaining a search warrant when it is reasonably practicable to do so. See, e. g., Katz v. United States, supra. If no penalty will ever attach to a failure to seek a warrant, as distinguished from the officers making their own, correct, determination of probable cause, warrants will never be sought, at least when the search is expected to be accompanied by an arrest. We think it proper to say that while the failure to obtain a warrant when one could readily have been had is not of necessity fatal to a search or seizure concomitant with an arrest the nature of which had been fully anticipated, it will be fatal unless there are at least some countervailing factors. We need not define such circumstances. In the ease at bar we find none. We hold that the government cannot rely upon an expected arrest to seize stolen goods, the presence of which it long had probable cause to know of, simply to avoid the inconvenience of obtaining a search warrant. Cf. United States v. James, 6 Cir., 1967, 378 F.2d 88; United States v. Harris, 6 Cir., 1963, 321 F.2d 739, 741 and cases there collected. We will pick up some loose details. Proceeding without a warrant is not to be justified, as the government suggests here, by the fact that by the time the officers act, dispatch is necessary to avoid flight or injury to person or property. Haste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle. Secondly, we mention, only to discard, speculation in the briefs whether the government was unable to obtain a warrant because Ford was not known to be a reliable informant. Questions as to the reliability of the informer arise only in connection with warrants sought upon hearsay." } ]

[ { "docid": "18174650", "title": "", "text": "in Coolidge sets forth three requirements for a valid plain view seizure. First, there must be a legitimate prior justification for the officer’s presence. Id. at 466, 91 S.Ct. at 2038. Second, the discovery must be “inadvertent.” Id. at 469, 91 S.Ct. at 2040. Finally, it must be “immediately apparent to the police that they have evidence before them.” Id. at 466, 91 S.Ct. at 2038. Chesher argues that the government has failed to meet its burden in establishing the third requirement of Coolidge — that the incriminating nature of the item seized be immediately apparent to the officer. First, he contends, acetone (the chemical smelled by Agent Stewart as he approached the back room) has lawful uses. Second, he contends, even Stewart’s closer inspection of the glassware and equipment disclosed only that it was a laboratory of some sort, not whether it existed for legal or illegal purposes. We reject both of Chesher’s arguments. Although the Supreme Court has given little guidance as to what the third Coolidge requirement specifically requires, we know of no authority suggesting that Coolidge requires that an object be conclusively incriminating. We agree with the Second Circuit that “under the plain view doctrine ... the incriminating nature of an object is generally deemed ‘immediately apparent’ where police have probable cause to believe it is evidence of crime.” United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979). This is consistent with the rationale for allowing plain view seizures. If the benefit of permitting warrantless seizure in narrow circumstances is avoidance of the inconvenience of obtaining a warrant for inadvertently discovered evidence, Coolidge, 403 U.S. at 467-68, 91 S.Ct. at 2038-2039, it follows that an object’s possible relevance as evidence need not be shown to any greater degree than would be sufficient to obtain a warrant were one sought. We hold that if facts sufficient to provide probable cause to believe an object is incriminating are immediately apparent to the officer, the third Coolidge requirement is met. We conclude that the smell of acetone, the appearance of the room in which the laboratory was" }, { "docid": "23334897", "title": "", "text": "but impossible. Note also that the Court, in discussing a seizure which lacks inadvertence, uses the phrases “anticipated,” and “know in advance.” This indicates more than a mere expectation. In applying the facts of Coolidge to its' analysis, the Court focused on the fact that the police had simply neglected to obtain a warrant with no excuse; thus there was no “exigency” created when the automobile came into plain view: In light of what has been said, it is apparent that the “plain view” exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. Id. at 472, 91 S.Ct. at 2041. Later, the Court noted: Since the police knew of the presence of the automobile and planned all along to seize it, there was no “exigent circumstance” to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed. Id. at 478, 91 S.Ct. at 2044. At first, it may seem illogical to hold that police who lawfully enter premises and discover evidence which is not described in their warrant, in the course of a properly limited search, may not seize it if they knew they would find it before entering, but may seize it if they only thought they might find it, or if they discover it unexpectedly. After all, the line between suspicion and probable cause is seldom very clear. It makes sense, however, if the fact is kept in mind that a warrant is normally required before a search can be conducted or a seizure effectuated, and if it is remembered that the only reason plain view seizures are permitted at all is because the intrusion which the Fourth Amendment seeks to guard against has already lawfully occurred, and the police are faced with a situation in which they observe evidence which they could not" }, { "docid": "22657992", "title": "", "text": "in plain view must be inadvertent. ' The rationale of' the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited)- search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is. anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless, searches as “per .se unreasonable” in the absence of “exigent circumstances.” If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a. violation of the express constitutional requirement of “Warrants . . . particularly describing . . . [the] things to be seized.” The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects — not contraband nor stolen nor dangerous in themselves — which the police know in advance they will • find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure. In the light of what has been said, it is apparent that the “plain view” exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves. The seizure was therefore unconstitutional, and so was the subsequent search at the" }, { "docid": "901056", "title": "", "text": "to be seized. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), recognized that the plain view doctrine satisfied these objectives of the Fourth Amendment. The Court, however, also noted the inherent limitations that must be imposed on this exception to the warrant requirement: “The limits on the doctrine [plain view] are implicit in the statement of its rationale. The first of these is that the plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Id. at 468, 91 S.Ct. at 2039. The second limitation imposed on the aforementioned doctrine which was discussed by the Coolidge Court is that the discovery of evidence in plain view must be inadvertent. “But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Id. at 470, 91 S.Ct. at 2040. In light of what has been said, it is apparent that the plain view exception cannot justify the police seizure of the marijuana in this case. The Government has demonstrated no circumstances other than the plain view of the evidence itself upon which to bottom its warrant-less search, nor have they satisfied the requisite limited scope of this doctrine in that the police searched every room in the house before seizing the incriminating substance. The second Governmental theory propounded" }, { "docid": "22657991", "title": "", "text": "warrant particularly describing it. The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U. S. 1; Johnson v. United States, 333 U. S. 10; McDonald v. United States, 335 U. S. 451; Jones v. United States, 357 U. S. 493, 497-498; Chapman v. United States, 365 U. S. 610; Trupiano v. United States, 334 U. S. 699. The second limitation is that the discovery of evidence in plain view must be inadvertent. ' The rationale of' the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited)- search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is. anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless, searches as “per .se unreasonable” in the absence of “exigent circumstances.” If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a. violation of the express constitutional requirement of “Warrants . . . particularly describing . . . [the] things to be seized.” The initial intrusion may, of course, be" }, { "docid": "901057", "title": "", "text": "imposed on the aforementioned doctrine which was discussed by the Coolidge Court is that the discovery of evidence in plain view must be inadvertent. “But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Id. at 470, 91 S.Ct. at 2040. In light of what has been said, it is apparent that the plain view exception cannot justify the police seizure of the marijuana in this case. The Government has demonstrated no circumstances other than the plain view of the evidence itself upon which to bottom its warrant-less search, nor have they satisfied the requisite limited scope of this doctrine in that the police searched every room in the house before seizing the incriminating substance. The second Governmental theory propounded to validate the instant search is that under the circumstances the officers and agents had a right to make a “protective sweep” of the area. Apparently with this argument the Government ceases to characterize police conduct as constituting a “buy and bust”, for they do not contend that an individual entering a private residence to purchase goods, albeit contraband, may make a “protective sweep” throughout the entire premises. Although not explicitly argued, it is a fair inference that with the immediate failure of the police to procure the items sought, the subsequent events had the effect of converting their conduct into an arrest with the alleged concomitant right to conduct a protective sweep. The controlling principles of a search incident to an arrest are set forth in Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969): “When an arrest is made There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from" }, { "docid": "23334896", "title": "", "text": "on: The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as “per se unreasonable” in the absence of “exigent circumstances.” Coolidge, 403 U.S. at 469-470, 91 S.Ct. at 2040 (emphasis added). Obviously, the emphasized phrases are only relevant if the Supreme Court is talking about situations in which the police have probable cause and thus could have obtained a warrant; otherwise, procurement of a warrant would not only be inconvenient, but impossible. Note also that the Court, in discussing a seizure which lacks inadvertence, uses the phrases “anticipated,” and “know in advance.” This indicates more than a mere expectation. In applying the facts of Coolidge to its' analysis, the Court focused on the fact that the police had simply neglected to obtain a warrant with no excuse; thus there was no “exigency” created when the automobile came into plain view: In light of what has been said, it is apparent that the “plain view” exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. Id. at 472, 91 S.Ct. at 2041. Later, the Court noted: Since the police knew of the presence of the automobile and planned all along to seize it, there was no “exigent circumstance” to justify their failure to obtain a warrant. The application of the basic" }, { "docid": "655018", "title": "", "text": "may not be justified on the basis of exigent circumstances which are created by the government itself”). I concur in the position taken by the Sixth Circuit: Where law enforcement officers have squandered an overt opportunity to obtain a warrant antecedent to an otherwise acceptable search (justified by exigent circumstances or incident to a valid arrest), there must be a showing of compelling “countervailing factors” to sustain the constitutionality of the suspect intrusion. Niro v. United States, [388 F.2d 535, 539 (1st Cir.1968)]. We are persuaded that this view is not foreclosed by the Supreme Court’s holding in Cardwell v. Lewis, [417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974)]. We believe that, if a defendant’s allegation of deliberate bypass of a warrant is supported by a finding that a realistic opportunity existed to procure one, as in this case, the Government must come forward with objective evidence tending to justify this deviation from normal police procedure. Subjective good faith on the part of the authorities cannot suffice as a complete defense if we are to honor the principle that warrantless searches are per se unreasonable under the Fourth Amendment. United States v. Chuke, 554 F.2d 260, 263-64 (6th Cir.1977) (emphasis in original). I do not maintain that a search warrant must always be obtained at “the first practicable moment.” Cardwell, 417 U.S. at 595, 94 S.Ct. at 2471. However, a definite factor to consider when evaluating whether exigent circumstances justify a warrantless search is whether there was a prior “realistic opportunity” to secure a warrant. Absent “compelling countervailing factors” and adequate “objective evidence” to satisfy the Government’s burden of justifying the failure to obtain a warrant when it had a reasonable opportunity, I would not absolve the divergence from the constitutional requirement of procuring a search warrant before entering a private residence. The only testimony in the record with respect to why the officers made no attempt to obtain a search warrant earlier in the evening was a statement by Officer Gonzales: “I didn’t have any probable cause, I didn’t know who the connection was or where the" }, { "docid": "21863916", "title": "", "text": "83 L.Ed.2d 890 (1985). Nevertheless, the automobile exception does not apply. The pickup here was immobile, because its engine was partially dismantled, and it was on private property, not on a public way. Furthermore, it was not taken into custody at the time of the arrest. This fact distinguishes United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), relied upon by defendants. In Edwards the Court upheld a warrantless search and seizure of defendant’s clothing the morning after his custodial arrest. Id. at 803-04, 808, 94 S.Ct. at 1237-38, 1239. But the officers had custody of defendant, as well as defendant’s clothing, from the time of arrest until the time of seizure. The defendants in the instant case did not take the truck into custody at the time of plaintiff’s arrest and thus cannot argue that their actions were merely a matter of searching evidence of which they had custody. Defendants also argue the subsequent seizure of the pickup was justified because at the time of arrest the stolen parts were within Burnett’s plain view. By waiting until the next day to seize the pickup, however, defendants fail to satisfy the inadvertence requirement of the plain view doctrine. See United States v. Tolerton, 669 F.2d 652, 654 (10th Cir.), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 473 (1982). Burnett knew the exact location of plaintiff’s truck the day after plaintiff’s arrest and thus cannot argue that the seizure was inadvertent. As the Supreme Court noted in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), when the police know in advance the location of evidence that they intend to seize, “The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Id. at 470-71, 91 S.Ct. at 2040 (emphasis in original). IV Qualified Immunity Defendant Deputy Sheriff Burnett argues that even if his actions in seizing the truck violate the" }, { "docid": "21863917", "title": "", "text": "were within Burnett’s plain view. By waiting until the next day to seize the pickup, however, defendants fail to satisfy the inadvertence requirement of the plain view doctrine. See United States v. Tolerton, 669 F.2d 652, 654 (10th Cir.), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 473 (1982). Burnett knew the exact location of plaintiff’s truck the day after plaintiff’s arrest and thus cannot argue that the seizure was inadvertent. As the Supreme Court noted in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), when the police know in advance the location of evidence that they intend to seize, “The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ” Id. at 470-71, 91 S.Ct. at 2040 (emphasis in original). IV Qualified Immunity Defendant Deputy Sheriff Burnett argues that even if his actions in seizing the truck violate the Fourth Amendment, he cannot be held liable if those actions were taken in good faith. Burnett possesses qualified immunity from liability under § 1983 if he proves that he did 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). We have recently approved a jury instruction similar to the one used by the trial court in the instant case. Varela v. Jones, 746 F.2d 1413 (10th Cir.1984). We believe that the evidence presented could support a jury finding that a reasonable police officer would have known that he was violating the plaintiff’s Fourth Amendment rights by seizing the truck without a warrant under the circumstances involved in this case. Therefore, we reject defendant Burnett’s argument of qualified immunity. V Sufficiency of the Evidence Defendant Burnett argues that he is not liable to plaintiff because there is no evidence that his actions caused any damage to plaintiff’s truck. We reject this argument. Plaintiff is" }, { "docid": "22721231", "title": "", "text": "Stewart concluded that the inadvertence requirement was necessary to avoid a violation of the express constitutional requirement that a valid warrant must particularly describe the things to be seized. He explained: “The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a ‘general’ one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ “If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of ‘Warrants . . . particularly describing . . . [the] things to be seized.’” 403 U. S., at 469-471. We find two flaws in this reasoning. First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. If the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. Specification of the additional item could only permit the offi cer to expand the scope of the search. On the other hand, if he or" }, { "docid": "23334900", "title": "", "text": "of one of these other crimes turns up, even though it would have been impossible to obtain a warrant previously, someone must be sent to obtain a new warrant to authorize the seizure. It is even questionable whether the police would be authorized to remain until the new warrant is obtained, securing the premises against possible destruction of the evidence, since their right to be on the property lapses as soon as they have completed the search authorized by the warrant. At the same time, the intrusion has already occurred in a fully legal, limited manner, so Fourth Amendment interests are not served by delay. The courts do try to avoid imposing significant limitations and burdens on the ability of the police to do their job when those burdens would serve no purpose. We conclude that unless the police had the ability and opportunity to obtain a warrant prior to the seizure and failed to do so, the inadvertency requirement of the plain view doctrine has not been violated. This conclusion is supported by prior decisions, both of this Circuit and others. In Lewis v. Cardwell, 476 F.2d 467 (6th Cir. 1973), a car parked in a public garage was seized without a warrant. The Court held that the seizure was not justified under the plain view doctrine, because the discovery of the car was not inadvertent: [W]hen law enforcement officers have prior knowledge amounting to probable cause establishing the nexus between the article sought and the place of seizure a warrant must be obtained in order to protect the fourth amendment principle that warrantless seizures are per se unreasonable in the absence of exigent circumstances. Id. at 470. The Fifth Circuit, in United States v. Bolts, 558 F.2d 316 (5th Cir. 1977), held that a passport discovered on a bookcase during a warrantless arrest was legally seized under the plain view doctrine: This case does not present a situation where an agent has maneuvered himself into a position in order to discover evidence he was seeking. The discovery of the passport, although a foreseeable possibility, was unplanned and inadvertent." }, { "docid": "18722155", "title": "", "text": "simplest generic use of the term: he contends that since the contents of the building were open to the “plain view” of any curious citizen who, like Baker, wanted to stand on the porch of a nonresidential building and look through cracks in the wall, Tarantino manifested no “reasonable expectation of privacy” in the building’s interior. Bradshaw, in contrast, implicated the “plain-view doctrine” as it related to warrantless seizures. As the Supreme Court explained in Andreas: The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.... The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy. 463 U.S. at 771, 103 S.Ct. at 3324. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a plurality of the Supreme Court decided that the plain-view exception to the requirement of a warrant before seizure required that the seizure be “inadvertent.” The rationale of the plain-view doctrine, as the Court noted, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrant- less searches as “per se unreasonable” in the absence of exigent circumstances. 403 U.S. at 470-71, 91 S.Ct. at 2040. In Bradshaw, this circuit invalidated a warrantless seizure of evidence when the officer’s inspection of the defendant’s truck exceeded the limited justification for his presence" }, { "docid": "23334895", "title": "", "text": "otherwise-justified search. There are many times when a police officer may “expect” to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery. This reading of the inadvertency requirement is supported by Coolidge itself. The thrust of the discussion is aimed at condemning seizures ostensibly made under the plain view doctrine, when the police could have, but failed to, obtained a warrant first. For example, after pointing out that the plain view doctrine was only applicable if the initial intrusion was justifiable on some independent grounds, the Supreme Court went on: The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as “per se unreasonable” in the absence of “exigent circumstances.” Coolidge, 403 U.S. at 469-470, 91 S.Ct. at 2040 (emphasis added). Obviously, the emphasized phrases are only relevant if the Supreme Court is talking about situations in which the police have probable cause and thus could have obtained a warrant; otherwise, procurement of a warrant would not only be inconvenient," }, { "docid": "14290066", "title": "", "text": "in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), must be dispositive of this appeal: Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest (citation omitted). The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action. 417 U.S. at 595-596, 94 S.Ct. at 2472. Accord: United States v. Mitchell, 538 F.2d 1230 (5th Cir. 1976). Where law enforcement officers have squandered an overt opportunity to obtain a warrant antecedent to an otherwise acceptable search (justified by exigent circumstances or incident to a valid arrest), there must be a showing of compelling “countervailing factors” to sustain the constitutionality of the suspect intrusion. Niro v. United States, supra at 539. We are persuaded that this view is not foreclosed by the Supreme Court’s holding in Cardwell v. Lewis, supra. We believe that, if a de fendant’s allegation of deliberate bypass of a warrant is supported by a finding that a realistic opportunity existed to procure one, as in this case, the Government must come forward with objective evidence tending to justify this deviation from normal police procedure. Subjective good faith on the part of the authorities cannot suffice as a complete defense if we are to honor the principle that warrantless searches are per se unreasonable under the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2122, 29 L.Ed.2d 564 (1971); United States v. Lewis, 504 F.2d 92, 100 (6th Cir. 1974). We must satisfy ourselves from the facts that the officers conducted themselves reasonably under all of the circumstances and did not gratuitously usurp the role of the impartial" }, { "docid": "23334901", "title": "", "text": "decisions, both of this Circuit and others. In Lewis v. Cardwell, 476 F.2d 467 (6th Cir. 1973), a car parked in a public garage was seized without a warrant. The Court held that the seizure was not justified under the plain view doctrine, because the discovery of the car was not inadvertent: [W]hen law enforcement officers have prior knowledge amounting to probable cause establishing the nexus between the article sought and the place of seizure a warrant must be obtained in order to protect the fourth amendment principle that warrantless seizures are per se unreasonable in the absence of exigent circumstances. Id. at 470. The Fifth Circuit, in United States v. Bolts, 558 F.2d 316 (5th Cir. 1977), held that a passport discovered on a bookcase during a warrantless arrest was legally seized under the plain view doctrine: This case does not present a situation where an agent has maneuvered himself into a position in order to discover evidence he was seeking. The discovery of the passport, although a foreseeable possibility, was unplanned and inadvertent. What Coolidge proscribes is an anticipated discovery, where the police know in advance the location of the evidence and intend to seize it. Here the agent had a legitimate reason for being in the room, he came upon the passport inadvertently and it was immediately apparent to him that the passport constituted evidence of the conspiracy. Even if the DEA agent had expected to find the passport — and the evidence does not suggest that they did — that would not have destroyed the necessary inadvertence to satisfy Coolidge. Id. at 320 (citations omitted). There is no indication in the record in this case that the federal agents were attempting to use the plain view doctrine as a ploy to evade the warrant requirement. It does not appear that the DEA agents could have obtained a warrant for narcotics, though it is clear that both the DEA agents and the ATF agents expected that some drugs might be found. There is perhaps, as the district court found, a hint of subterfuge here; a suggestion that" }, { "docid": "18722156", "title": "", "text": "U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a plurality of the Supreme Court decided that the plain-view exception to the requirement of a warrant before seizure required that the seizure be “inadvertent.” The rationale of the plain-view doctrine, as the Court noted, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrant- less searches as “per se unreasonable” in the absence of exigent circumstances. 403 U.S. at 470-71, 91 S.Ct. at 2040. In Bradshaw, this circuit invalidated a warrantless seizure of evidence when the officer’s inspection of the defendant’s truck exceeded the limited justification for his presence on the defendant’s property. Tarantino cannot, however, extend Bradshaw and cases from this circuit explicitly applying Coolidge to prove that Baker’s actions clearly constituted an illegal search merely because he already expected to find marijuana in the building — i.e., that his inspection was not inadvertent. Such reasoning would convert every police officer’s gaze into a search as long as the officer hoped or expected to detect incriminating evidence. Baker did not seize the marijuana until he obtained a warrant and the character of Baker’s inspection as a “search” depends wholly on the determination whether his actions violated Tarantino’s reasonable expectation of privacy. The inadvertence requirement articulated in Coolidge, in other words, simply does not apply beyond warrantless seizures following a prior physical intrusion into a constitutionally protected “private” area. See LaFave, Search and Seizure (1978 ed.) pp. 242-43; see also United States v. Dunn, — U.S. -, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (finding no prior physical intrusion into a constitutionally protected “open fields” area and thus no “search” despite an obviously “advertent”" }, { "docid": "22721230", "title": "", "text": "the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.” Id., at 466; see also Arizona v. Hicks, 480 U. S., at 326-327. Thus, in Coolidge, the cars were obviously in plain view, but their probative value remained uncertain until after the interiors were swept and examined microscopically. Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. As the United States has suggested, Justice Harlan’s vote in Coolidge may have rested on the fact that the seizure of the cars was accomplished by means of a warrantless trespass on the defendant’s property. In all events, we are satisfied that the absence of inadvertence was not essential to the Court’s rejection of the State’s “plain-view” argument in Coolidge. III Justice Stewart concluded that the inadvertence requirement was necessary to avoid a violation of the express constitutional requirement that a valid warrant must particularly describe the things to be seized. He explained: “The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a ‘general’ one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ “If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express" }, { "docid": "23500545", "title": "", "text": "to remove him from the home. Because no evidence indicates that Rusty was in immediate threat of death or severe physical harm — indeed, the evidence points to the opposite conclusion — we do not find sufficient exigent circumstances to relieve the state actors here of the burden of obtaining a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it ... [t]he requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards war-rantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ”). (2) The “special needs” doctrine Within the last thirty years, courts have increasingly recognized certain narrow circumstances that justify searches and seizures without reference to the Fourth Amendment’s warrant clause or probable cause requirement. These are situations in which the requirement of a warrant based upon probable cause is ill-suited to achieving certain “special needs” of government, such as enforcing school discipline, New Jersey v. T.L.O., 469 U.S. 325, 333-40, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), allowing administrative searches of the business premises of “closely-regulated industries,” New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and taking inventory of seized items for “caretaking” purposes, Cady v. Dombrowski, 413 U.S. 433, 447-48, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In all “special needs” cases, the nature of the need addressed makes particularized suspicion impossible or otherwise renders the warrant requirement impractical. For example, in Griffin v. Wisconsin, the Court noted that requiring a warrant before a search of a probationer’s home would “interfere to an appreciable degree with the probation system,” and would “reduce the deterrent effect that the possibility of expeditious searches would otherwise create.” 483 U.S. 868, 876, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (citation omitted). Similarly, the Burger Court noted that “surprise is crucial if the regulatory scheme aimed at remedying" }, { "docid": "23082114", "title": "", "text": "for the protective search”), cert. denied, 490 U.S. 1052, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989). In general, law enforcement officials, pursuant to the fourth amendment, must obtain a search warrant in order to seize an individual’s property. United States v. Jenkins, 876 F.2d 1085, 1088 (2d Cir.1989) (per curiam) (citation omitted). The warrant requirement “creates a presumption that any warrantless search or seizure is unconstitutional, and requires that evidence obtained in such illegal searches be excluded from trial.” Id. (citation omitted). Detective Gozun testified that (i) Scopo threw an object down in the car, and (ii) the butt of the confiscated firearm had been in “plain view.” The “plain view” exception to the fourth amendment warrant requirement “authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). Under this exception to the fourth amendment warrant requirement, a police officer may seize evidence when in “plain view” if: “(1) the officer’s initial intrusion was permissible under the fourth amendment; (2) the discovery of the evidence is ‘inadvertent’; and (3) the incriminating nature of the evidence found is ‘immediately apparent’.” Jenkins, 876 F.2d at 1088. Here, the police had “authority” to stop and arrest Scopo pursuant to New York State law; the police saw Scopo throw down an object; and the mere presence of a partially concealed firearm is highly and immediately incriminating. Thus, we find that the district court’s ruling was incorrect, and we conclude that the police were justified in both stopping and arresting Scopo, and in seizing his firearm. The district court concluded that Scopo’s traffic violation was merely a pretext to search his car for weapons. Scopo, 814 F.Supp. at 305. In reaching its conclusion, the district court applied the “usual police practices” approach, adopted by the Tenth and Eleventh Circuits, which asks “ ‘not whether the officer could validly have made the stop," } ]

[ { "docid": "22734869", "title": "", "text": "court made an off-hand general remark about psychiatric treatment after the sentence was completed. Vautier’s new counsel now challenges that remark, even though no objections were made by prior counsel at the time. A reading of the challenged reference to psychiatric treatment in context and the sentencing transcript as a whole does not establish that the district court simply selected the\" number of months to be imprisoned based on impermissible medical factors but instead shows that the district court based the length of imprisonment appropriately on the guideline calculations. In summary, although the district court’s order ruling on Vautier’s motion is brief, a review of the entire record demonstrates that the district court properly undertook the two-step inquiry in deciding not to reduce Vautier’s sentence. Consequently, we conclude that the district court did not abuse its discretion in denying Vautier’s motion to reduce his sentence. AFFIRMED. . At the sentencing hearing, the government moved for a two-level downward departure based on Vautier’s substantial assistance. The district court granted this motion, which should have resulted in an offense level of 36 and sentencing guideline range of 188 to 235 months. However, without restating the specific number of levels it intended to depart for substantial assistance, the court imposed a sentence of 120 months. On appeal, the parties do not address this discrepancy and assume the court imposed an eight-level downward departure for substantial assistance. Thus, for purposes of this appeal, we assume that the court granted an eight-level downward departure for substantial assistance, arriving at a total offense level of 30. . Since Vautier fell within a criminal history category of, I, the applicable sentencing range for his total offense level of 30 was 97 to 121 months. . We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. See United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir.1997). . Section 1B1.10 states in full: (a)Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a" } ]

[ { "docid": "22875815", "title": "", "text": "imprisonment pursuant to 18 U.S.C. § 3582(c)(2). He argued that the November 1, 1993 retroactive amendment of U.S.S.G. § 2Dl.l(e), known as Amendment 488, would result in a sentence less than the eighty-four months’ imprisonment he had received. The district court denied Mr. Trujeque’s motion sua sponte reasoning that “[defendant’s sentence of 84 months ... is below or within the guidelines even by his own calculations under the Amendment.” Rec. vol. I, doe. 3, at 2. Mr. Trujeque now appeals the district court’s denial of his motion. The district court’s ruling raises legal issues that we review de novo. See United States v. Phommachanh, 91 F.3d 1383, 1385 (10th Cir.1996). II. DISCUSSION We must first address the government’s contention that we lack jurisdiction to review Mr. Trujeque’s sentence. The government is correct in its assertion that federal courts lack jurisdiction to review a Rule 11(e)(1)(C) sentence where a prisoner claims that his Rule 11(e)(1)(C) sentence is greater than the sentence range specified in the applicable guidelines. See 18 U.S.C. § 3742(c)(1); United States v. Denogean, 79 F.3d 1010, 1013-14 (10th Cir.1996), cert. denied, — U.S -, 117 S.Ct. 154, 136 L.Ed.2d 99 (1996); United States v. Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir.1994). However, this is not a direct appeal of Mr. Tru-jeque’s sentence, nor is it a collateral attack under 28 U.S.C. § 2255. Rather, Mr. Tru-jeque has filed a motion under 18 U.S.C. § 3582(c)(2), and the viability of his motion depends entirely upon that statute. Our ap pellate jurisdiction over final decisions extends as far as to consider the district court’s denial of Mr. Trujeque’s § 3582(c)(2) motion. See 28 U.S.C. § 1291. Section 3582(c)(2) provides, in relevant part, as follows: The court may not modify a term of imprisonment once it has been imposed except that ... in the ease of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant ... after considering the factors set forth in section 3553(a)" }, { "docid": "22300379", "title": "", "text": "court, ruling from the bench, granted the motion as to all claims, concluding that there had been no showing of deliberate indifference or negligent training and supervision on the part of the Sheriff, nor was the evidence sufficient to enable a reasonable person to conclude that Tessier’s suicide was foreseeable and therefore to hold the Sheriff vicariously liable for the failure of MCDC employees to prevent it. It is from this ruling, as well as from the trial court’s in limine evidentiary rulings, that Cook now appeals. II. We turn first to the district court’s evi-dentiary rulings on the admissibility of evidence of other suicides occurring within the MCDC and of the testimony of Cook’s suicide expert, Dr. Maris. The legal framework against which we measure these evidentiary rulings is clear. We review a trial court’s evidentiary rulings, including its rulings on the admissibility of expert testimony, for abuse of discretion. See, e.g., United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc); Wright v. CSX Transp., Inc., 375 F.3d 1252, 1260 (11th Cir.2004); Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.2001). As we have recently explained, “the deference that is the hallmark of abuse-of-discretion review requires that we not reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous. Thus, it is by now axiomatic that a district court enjoys ‘considerable leeway’ in making these determinations.” Frazier, 387 F.3d at 1258 (citations and internal quotation marks omitted). Abuse-of-discretion review “recognizes the range of possible conclusions the trial judge may reach. ‘By definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” ’ ” Id. at 1259 (quoting Rasbury v." }, { "docid": "22700717", "title": "", "text": "to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The applicable Guidelines range of imprisonment for Kirkendoll’s offenses was 168 to 210 months, with a ten-year statutory minimum. Pursuant to the Government’s § 3553(e) motion for downward departure and the district court’s consideration of the § 3553(a) factors, Kirkendoll received concurrent terms of 144 months on the crack cocaine conviction and 120 months on the firearm conviction. Kirkendoll filed a motion for rehearing pursuant to Federal Rule of Criminal Procedure 35(a). The district court granted the motion and resentenced him to two concurrent terms of 96 months of imprisonment. Following the retroactive amendment to the base offense levels for crack cocaine offenses, the probation officer recalculated Kirkendoll’s crack cocaine sentence and determined that he was subject to an amended Guidelines range of 135 to 168 months of imprisonment with no statutory minimum sentence. Kirkendoll filed a sentencing memorandum requesting a comparable reduction of his sentence pursuant to U.S.S.G. § 1B1.10(b)(2)(B). He urged the court to consider the still-existing unwarranted disparity between crack and powder cocaine sentences and his ef forts at rehabilitation since his incarceration. The district court denied the sentence reduction, finding that: Having reviewed the Probation Office’s re-calculation of the applicable Guideline range of imprisonment, the responses thereto, and the record in this matter, including the Pre-Sentence Report, the Court finds that the defendant previously received adjustment under a government motion filed pursuant to ... § 3553(e) at which time the Court had determined a total sentence pursuant to ... § 3553(a) factors. Accordingly, the Court will not reduce Defendant’s sentence further. Kirkendoll filed a timely notice of appeal. STANDARD OF REVIEW This court reviews a district court’s decision “whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009), cert. denied," }, { "docid": "14787010", "title": "", "text": "on his other claims, and we affirmed the district court’s decision to deny those COAs in an unpublished opinion. II. TIMELINESS A. Statutory Tolling The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a one-year limitations period for the filing of a federal petition for post-conviction relief. Specifically, a petitioner must file his petition within one year from the date that his conviction becomes final. The one-year statute of limitations, however, is not absolute. AEDPA provides that the limitations period is tolled while a properly-filed application for state post-conviction relief is pending. We review a district court’s decision on statutory tolling de novo. As noted, Prieto’s conviction and sentence became final on March 17, 1999. Prieto filed his state habeas petition 215 days later, thus tolling the AEDPA limitations period. This tolling ceased on November 28, 2001, when the Texas Court of Criminal Appeals denied his application. At that time, Prieto had 150 days remaining in which to file his federal habeas petition. Therefore, to be timely, Prieto had until approximately the end of April 2002 to file for federal post-conviction relief. Instead, Prieto filed his habeas petition almost 100 days late, on August 2, 2002. The district court’s well-reasoned opinion addresses and properly rejects Prieto’s claims that he is entitled to additional statutory tolling. Accordingly, we adopt the district court’s opinion with respect to statutory tolling. B. Equitable Tolling In addition to statutory tolling, we have recognized that the AEDPA limitations period is subject to equitable tolling in “rare and exceptional circumstances.” We review a district court’s decision on equitable tolling for abuse of discretion, remaining ever mindful, however, that “[w]e must be cautious not to apply the statute of limitations too harshly.” Dismissing a habeas petition is a “particularly serious matter.” This is why we look to the facts and circumstances of each case to determine whether the district court abused its discretion in declining to apply equitable tolling. Although Prieto is not entitled to additional statutory tolling, we conclude that his circumstances are sufficiently rare and exceptional to warrant equitable tolling. In mid-April 2002, Prieto filed a" }, { "docid": "22409400", "title": "", "text": "a consecutive sixty-month sentence for Count 4. The district court sentenced Williams to forty months of imprisonment for Count 1, followed by the consecutive sixty-month sentence for Count 4 for a total of one hundred months of imprisonment. Id. at 2. Williams filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706. R1-54 at 1-2. In his motion he asserted, inter alia, that mandatory treatment of the amended provisions of U.S.S.G. § 1B1.10 and § 2D1.1 would violate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). R1-54 at 2-3. On 13 March 2008, the district court reduced Williams’s sentence for Count 1 from forty to thirty-seven months of imprisonment, based on a reduction of his base offense level from 17 to 15. The sixty-month sentence for Count 4 remained unchanged. Rl-55. The two-level reduction of the base offense level resulted in an amended guideline range of thirty to thirty-seven months of imprisonment on Count 1 — down from his original range of thirty-seven to forty-six months. Williams now appeals the district court’s amended sentence to us. II. DISCUSSION “We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003). “[W]e review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008) (quotation marks omitted). A district court may modify a term of imprisonment in the case of a defendant who was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This authority is limited to those guideline amendments listed in U.S.S.G. § lB1.10(c) that “have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (Nov.2008). Amendment 706 is listed" }, { "docid": "23622387", "title": "", "text": "the record on appeal will disclose Rule 11 violations that are so egregious that any refusal by the district court to impose sanctions would necessarily constitute an abuse of discretion. To see why, it is necessary to unpack the abuse of discretion standard and the elements of a Rule 11 violation. The critical difference between abuse of discretion review and de novo review is that abuse of discretion “recognizes [a] range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc). More specifically, [b]y definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” Id. (quoting Rasbury v. I.R.S., 24 F.3d 159, 168 (11th Cir.1994)). That said, abuse of discretion never gives the district court unfettered discretion: the court must not base its discretionary decision on an erroneous view of the law or a clearly erroneous assessment of the evidence. Accordingly, the “range of possible conclusions” varies with the nature of the inquiry (legal v. factual) and the relative merit of the parties’ competing positions (whether the question is close). In sum, when reviewing the elements of a district court’s decision of whether to impose sanctions, the relevant question is not whether we would have come to the same decision if deciding the issue in the first instance. The relevant inquiry, rather, is whether the district court’s decision was tenable — in the “range of possible conclusions,” or, metaphorically, “in the ballpark.” In the non-PSLRA context, the Rule 11 ballpark is large because, as discussed above, a district court has discretion to grant mercy for a violation of Rule 11. Moreover, no hard legal test governs the" }, { "docid": "12077309", "title": "", "text": "his motion appears, at first glance, to be wide-ranging. Upon closer review, however, Brown’s additional arguments appear to fall within two broad categories. In addition to his request for a reduction in his sentence based on Amendment 706, Brown argued: (1) the district court should reconsider his sentence under 18 U.S.C. § 3553(a), Booker, and Kimbrough v. United States, — U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); and (2) the district court should reconsider its use of uncharged relevant conduct in forming his new sentence. Id. Doc. 107. The district court denied Brown’s motion. The district court stated: At sentencing, the Court found that the relevant conduct totaled 1.2 kilograms of cocaine base, which resulted in a Base Offense Level of 36. Additionally, Defendant received a two-level enhancement for having a firearm. The resulting Total Offense Level was 38, providing a sentencing range of 235 to 293 months. After consideration, the Court adjusted the offense level to 34 to provide a more reasonable sentence, thus reducing the sentencing range to 151 to 188 months. Defendant was sentenced to 165 months. The 165 months imposed is lower than the sentence Defendant would have received pursuant to Amendment 706. Since Defendant is serving a sentence imposed below the applicable guideline, the Court finds that a further reduction would be inappropriate. Id. Doc. 114 (emphasis added) (internal footnote omitted). Brown appeals the district court’s denial of his motion. In his appeal, Brown additionally contends the district court erred by not appointing counsel and not holding a hearing on his § 3582(c)(2) motion. II. Legal Standards and Analysis “We review de novo the district court’s interpretation of a statute or the sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540 (10th Cir.1997) (internal quotation omitted). We review for an abuse of discretion a district court’s decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2). United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.1996). When a “motion for [a] sentence reduction is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of [the]" }, { "docid": "3503437", "title": "", "text": "PER CURIAM: Ruben Prieto appeals his sentence following his conviction for failing to register or update his registration as a sex offender. Because Prieto cannot meet the plain-error standard, we affirm. I. Prieto pleaded guilty, without a plea agreement, to failing to register or update a registration as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA). The presentence investigation report (PSR) calculated a Guidelines range of 15 to 21 months. In his written objections to the PSR, Prieto argued that he was entitled to a three-level reduction under U.S.S.G. § 2A3.5(b)(2), for voluntarily correcting the failure to register. At sentencing, the district court overruled Prieto’s objection and adopted the PSR. The district court sentenced Prieto within the calculated Guidelines range to 15 months of imprisonment and a life term of supervised release. Among the special conditions of supervised release that it imposed, the district court ordered that Prie-to “refrain'from purchasing, possessing, or using any sexually stimulating or sexually oriented materials, including, but not limited to, written, audio, and visual depictions, such as pornographic books, magazines, photographs, films, videos, DVD’s, computer programs, or any other media for the portrayal of the same.” In this opinion, we refer to that condition as the “pornography restriction.” The district court also ordered that Prieto “not resid[e] or go[ ] to places where a minor or minors are known to frequent without prior approval of the probation officer.” We refer to that condition as the “geographic restriction.” Both of these special conditions had been recommended by the PSR. At the sentencing hearing, Prieto did not object to the special conditions. He timely filed a notice of appeal. II. On appeal, Prieto argues that the district court plainly erred by imposing the two special conditions described above. Prieto concedes that because he failed to object to the special conditions in the district court, review is for plain error. To demonstrate plain error, Prieto must make four showings: First, there must be. an error or defect — some sort of “[deviation from a legal rule” — that has not been intention" }, { "docid": "23622386", "title": "", "text": "a district court’s Rule 11 determination for abuse of discretion. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1507 n. 10 (11th Cir.1993). “ ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” McGregor v. Bd. of Comm’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir.1992) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)). The court seems to doubt whether it can review the district court’s exercise of discretion in this case because the record contains only a conclusory, unreviewable order. Accordingly, the court remands the case to the district court so that it can make findings of fact and conclusions of law regarding the parties’ and counsel’s compliance with Rule 11. There is no doubt, however, that even without extensive findings, it is possible for this court to review PSLRA Rule 11 determinations under the abuse of discretion standard. Sometimes, the record on appeal will disclose Rule 11 violations that are so egregious that any refusal by the district court to impose sanctions would necessarily constitute an abuse of discretion. To see why, it is necessary to unpack the abuse of discretion standard and the elements of a Rule 11 violation. The critical difference between abuse of discretion review and de novo review is that abuse of discretion “recognizes [a] range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc). More specifically, [b]y definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error" }, { "docid": "23186966", "title": "", "text": "fraud. He also provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. And, as previously stated, Kuhlman had paid back the full amount he stole — $2,944,883—pri- or to the initial May 28, 2011 sentencing hearing. At the second sentencing hearing on November 15, 2011, the district court lauded Kuhlman’s work during his six-month continuance. In light of Kuhlman’s full restitution payment, his community service, and the rising costs of incarceration, the district court sentenced Kuhlman to probation for the “time served” while awaiting his sentence. In doing so, the district court varied downward 20 levels. II. STANDARD OF REVIEW We review the reasonableness of a sentence under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). “That familiar standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.2010) (en banc) (internal quotation marks omitted). We have explained that, under the abuse of discretion standard of review, “there will be occasions in which we affirm the district court even though we would have gone the other way.” Id. (internal quotation marks omitted). The burden of establishing unreasonableness lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (per curiam). Here, the government appeals Kuhlman’s sentence; thus, the government carries the burden of demonstrating that Kuhlman’s sentence is unreasonable. III. DISCUSSION A. Reasonableness of Sentence When reviewing the reasonableness of a sentence, our task is two-fold. We will first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51,128 S.Ct. at 597. In" }, { "docid": "22300380", "title": "", "text": "Cir.2004); Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.2001). As we have recently explained, “the deference that is the hallmark of abuse-of-discretion review requires that we not reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous. Thus, it is by now axiomatic that a district court enjoys ‘considerable leeway’ in making these determinations.” Frazier, 387 F.3d at 1258 (citations and internal quotation marks omitted). Abuse-of-discretion review “recognizes the range of possible conclusions the trial judge may reach. ‘By definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” ’ ” Id. at 1259 (quoting Rasbury v. I.R.S. (In re Rasbury), 24 F.3d 159, 168 (11th Cir.1994) (quoting United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989))). “Thus, when employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. A. First, Cook appeals from the district court’s order granting the Sheriffs Motion in Limine to Preclude Reference to Other Suicides. Cook sought to introduce at trial evidence oí five other suicides occurring in the MCDC within a twenty-three-month period. Three of these suicides occurred prior to Tessier’s, while two occurred af-terwards. Cook argued that the other suicides were relevant to her negligence claims “to show Defendant’s generalized business practice or habit as regards the detection and prevention of suicides in general,” and relevant to her § 1983 claim to “establish[ ] a pattern of negligence by inadequately trained/supervised personnel, such to demonstrate the Sheriffs deliberate indifference.” Plaintiffs’ Response Memorandum in Opposition to Defendant’s Motion to [sic] in Limine to Exclude Evidence of" }, { "docid": "22664868", "title": "", "text": "a mine-run case.” Id., 128 S.Ct. at 575 (quotation marks omitted). The Court in Kimbrough also reiterated the importance of appellate review of sentences for substantive reasonableness. See id. at 107-08, 128 S.Ct. at 573-74 (explaining that appellate review along with the ongoing revision of the guidelines “will help to avoid excessive sentencing disparities” and variations among district courts). 3. The Abuse of Discretion Standard Since the Supreme Court’s Booker decision it has been “pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.” Gall, 552 U.S. at 46, 128 S.Ct. at 594; see also Pugh, 515 F.3d at 1191 (explaining that the Supreme Court’s teachings “leave no doubt that an appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and that appellate review has not been extinguished”). That familiar standard “allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc) (quotation marks omitted) (quoting Rasbury v. I.R.S., 24 F.3d 159, 168 (11th Cir.1994)). As we have explained, “under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review.” Id. (quoting Rasbury, 24 F.3d at 168); see also, e.g., Ledford v. Peeples, 605 F.3d 871, 922 (11th Cir.2010) (“[T]he relevant question [when reviewing for abuse of discretion] is not whether we would have come to the same decision if deciding the issue in the first instance. The relevant inquiry, rather, is whether the district court’s decision was tenable, or, we might say, ‘in the ballpark’ of permissible outcomes.”). “A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor," }, { "docid": "22777358", "title": "", "text": "431, 432 (1st Cir.2006); United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.2005)). Pursuant to statute, a “court may reduce the term of imprisonment” of “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” upon the court’s consideration of “the factors set forth in section 3553(a),” so long as “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2)(em- phasis added). Because the statute states that a district court may reduce the term of imprisonment, it clearly allows for a district court to exercise its discretion when considering a motion to reduce a sentence brought pursuant to § 3582(c)(2). Accordingly, we join our sister circuits in holding that we review a district court’s decision to deny a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion. See, e.g., United States v. Pardue, 36 F.3d 429, 430 (5th Cir.1994) (“The decision to reduce a sentence under [18 U.S.C.] § 3582(c)(2) is discretionary. We therefore review challenges for abuse of discretion.” (internal citation omitted)), cert. denied, 514 U.S. 1113, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995); see also United States v. LaBonte, 70 F.3d 1396, 1411 (1st Cir.1995) (“The law permits, but does not require, the district court to [reduce defendant’s sentence]. Because this decision is committed to the trial court’s discretion, the court of appeals will interfere only if the record reveals a palpable abuse of that discretion.” (internal citation omitted)), rev’d on other grounds, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). As we have previously stated, “[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (internal alteration, citations, and quotation marks omitted). Based upon our review of the record and the arguments of counsel, we conclude that the District" }, { "docid": "23051664", "title": "", "text": "States v. Kopituk, 690 F.2d 1289, 1320 (11th Cir.1982) (affirming the denial of a severance in a labor corruption case involving 12 defendants, a 70-count indictment, 130 witnesses, and a seven-month trial resulting in 22,000 pages of transcript); see also United States v. Hernandez, 921 F.2d 1569, 1580-81 (11th Cir.1991) (collecting some of the more complex cases in which this Court has found that the district court did not abuse its discretion in denying severance). Evidence that is probative of a defendant’s guilt but admissible only against a codefendant is another situation that might justify a severance. Zafiro, 506 U.S. at 539, 113 S.Ct. at 938 (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Conversely, if a joint trial prevented a defendant from introducing exculpatory evidence that would be admissible in a separate trial, a severance might be required. See id. at 539, 113 S.Ct. at 938. B. The decision of whether to grant a severance under the circumstances that present themselves in a particular case lies within the district court’s sound and substantial discretion. Zafiro, 506 U.S. at 538-39, 113 S.Ct. at 938; Chavez, 584 F.3d at 1360 (ICWe will not reverse the denial of a motion for severance in the absence of a clear abuse of discretion.”); United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (“We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court could offer no protection.” (quoting United States v. Walser, 3 F.3d 380, 385 (11th Cir.1993))). “The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc). Or, as we have also explained: By definition under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo" }, { "docid": "8736858", "title": "", "text": "to show that the jurors’ consideration of extrinsic evidence was harmless to the defendant.” Id. (internal quotation marks omitted). We review for an abuse of discretion the determination of the district court that consideration of the extrinsic evidence was harmless, and we consider four factors: “(1) the nature of the extrinsic evidence; (2) the manner in which it reached the jury; (3) the factual findings in the district court and the manner of the court’s inquiry into-the juror issues; and[ ] (4) the strength of the government’s case.” Id. (quoting-Siegelman, 640 F.3d at 1182). “[W]hen employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004). Because the “standard allows a range of choice for the district court,” “there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call.” In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994) (internal quotation marks omitted). “That is how an abuse of discretion standard differs from a de novo standard of review.” Id. Our deferential standard respects that the district court has a better vantage point from which to make this judgment call. Our decision in Dortch is instructive. There we concluded that the district court did not abuse its discretion when it determined that juror consideration of an unre-dacted copy of the defendant’s indictment was harmless, even though the unredacted indictment referenced several of the defendant’s previously undisclosed felony convictions. 696 F.3d at 1110-11. The first factor weighed against the conclusion that the extrinsic evidence was harmless because the evidence in question was highly prejudicial. See id. at 1109. But the second factor weighed in favor of a conclusion that the exposure was. harmless because the jury had received the indictment through the inadvertence of the district court, not through any machinations of the parties. See id.. And the third and fourth factors weighed heavily in favor of a conclusion that the" }, { "docid": "23051665", "title": "", "text": "the district court’s sound and substantial discretion. Zafiro, 506 U.S. at 538-39, 113 S.Ct. at 938; Chavez, 584 F.3d at 1360 (ICWe will not reverse the denial of a motion for severance in the absence of a clear abuse of discretion.”); United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (“We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court could offer no protection.” (quoting United States v. Walser, 3 F.3d 380, 385 (11th Cir.1993))). “The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc). Or, as we have also explained: By definition under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment. Id. (quotation marks and alteration omitted) (quoting In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994)); see also McMahan v. Toto, 256 F.3d 1120, 1129 (11th Cir.2001) (“[U]nder an abuse of discretion standard there will be circumstances in which we would affirm the district court whichever way it went.”). “[W]hen employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Frazier, 387 F.3d at 1259 (citing Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.2001)). This Court is rightly reluctant to second guess a district court’s decision on whether to sever. See Baker, 432 F.3d at 1236; Ramirez, 426 F.3d at 1352; Novaton, 271 F.3d at 989. C. It is through that highly deferential lens that we review the district court’s discretionary" }, { "docid": "22403773", "title": "", "text": "that the court erred by not appointing counsel for him during the § 3582(c)(2) proceedings. We will address these arguments in turn. A. Denial of § 3582(c)(2) Motion We review a district court’s denial of a motion for a sentence reduction pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.2005) (per curiam). “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines” as well as all “questions of statutory interpretation.” United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008) (quotation marks and citations omitted). Additionally, as Webb is proceeding pro se, we will construe his pleadings liberally. See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir.2008). Webb contends that the district court erred in denying his motion because it did not consider that the sentencing guidelines are merely advisory after Booker. If the court had done so, he asserts, then it would have reduced his sentence since it had initially sentenced him to 264 months of imprisonment, which reflected an offense level of 34, rather than the 360 months commensurate with his actual offense level of 42. In addition, if Amend ment 706 had been in effect at the time he was originally sentenced and if the guidelines had been advisory at that point, then his actual offense level would now be lower than 40, thus entitling him to a reduction. Furthermore, Webb contends that the district court failed to consider all of the sentencing factors when resentencing him, as is required by Booker. Section 3582(c)(2) permits a district court to reduce the term of imprisonment for a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” so long as “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Commission has indicated that sentence reductions are permissible when “the guideline range applicable to that defendant has subsequently been lowered" }, { "docid": "23451799", "title": "", "text": "the date the errata sheet was submitted until the initial imposition of sanctions by the district court. The sanctions award included the costs, expenses, and fees incurred in connection with the sanctions proceedings. The sanctions amount imposed by the district court following remand totaled $387,738.45. The Amlongs then brought this appeal, contending that the district court abused its discretion in imposing sanctions against them under § 1927. They also contend that, even if the district court did not abuse its discretion by imposing sanctions, it did so by including in the sanctions award the costs, expenses, and fees arising from the sanctions proceedings themselves. II. We review the district court’s imposition of sanctions under 28 U.S.C. § 1927 only for an abuse of discretion. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir.2003). “The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). By definition ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows “a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” Id.; see also McMahan v. Toto, 256 F.3d 1120, 1129 (11th Cir.2001) (“[U]nder an abuse of discretion standard there will be circumstances in which we would affirm the district court whichever way it went.”); In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994) (“Quite frankly, we would have affirmed the district court had it reached a different result, and if we were reviewing this matter de novo, we may well have decided it differently.”). “[W]hen employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong" }, { "docid": "22280311", "title": "", "text": "conduct associated with 87 grams of cocaine base by two levels. See U.S.S.G. app. C, amends. 706, 711, 713. Because the Amendment resulted in a lower Guidelines range for Jules, see U.S.S.G. § 2D1.1(c)(5), he filed a motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2), claiming he was eligible for an overall sentencing reduction. Defendant acknowledged his physical presence at the § 3582(c)(2) proceedings was not required, and he did not request to attend. One day before the district court ruled on Jules’ § 3582(c)(2) motion, the Probation Office sent a memorandum to assist the court in evaluating whether to reduce Jules’ sentence. The report was not docketed or provided to either of the parties. The report stated that, while in prison, Jules had been sanctioned three times for possession of marijuana and once for being in an unauthorized area. In its order on Jules’ § 3582(c)(2) motion, the district court acknowledged Jules’ eligibility for a reduction in sentence pursuant to Amendment 706 but declined to use its discretion to reduce Jules’ sentence. The court relied, inter alia, on the prison sanctions reported in the Probation Office’s memorandum to deny Jules’ motion. On appeal, Jules argues the district court abused its discretion by relying on the new information provided by the Probation Office without giving Jules the opportunity to review or contest it. He claims that although he was not entitled to one, a hearing would have been the best vehicle for allowing him to respond to the information in the report. The Government argues Jules did not have a right to review or contest the Probation Office’s report because § 3582(c)(2) proceedings are not de novo re-sentencings and do not afford a defendant the same procedural protections as an original sentencing. II. STANDARD OF REVIEW We review for abuse of discretion a district court’s decision not to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2). United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.2005). The “district court abuses its discretion if it ‘fails to apply the proper legal standard or to follow proper" }, { "docid": "22403772", "title": "", "text": "a second motion to reduce Webb’s sentence based on Rule 35(b). R2-100. The district court granted the Rule 35(b) motion and reduced Webb’s sentence to 228 months of imprisonment. R2-103. The court denied Webb’s § 3582(c)(2) motion, however, because it found that, though Amendment 706 lowered Webb’s offense level from 42 to 40, his amended guideline range would still be 360 months to life, and thus he would not be eligible for a § 3582(c)(2) reduction. R2-104. Webb filed a motion for reconsideration of this latter decision, which the district court rejected. R2-105, 107. He now appeals the denial of his § 3582(c)(2) motion. II. DISCUSSION On appeal, Webb argues that the district court erred in denying his § 3582(c)(2) motion. He contends that the court incorrectly applied Amendment 706 to his case and, in rejecting his motion, failed to take into account both the sentencing factors listed in 18 U.S.C. § 3553(a) and the effect of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In addition, he argues that the court erred by not appointing counsel for him during the § 3582(c)(2) proceedings. We will address these arguments in turn. A. Denial of § 3582(c)(2) Motion We review a district court’s denial of a motion for a sentence reduction pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.2005) (per curiam). “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines” as well as all “questions of statutory interpretation.” United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008) (quotation marks and citations omitted). Additionally, as Webb is proceeding pro se, we will construe his pleadings liberally. See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir.2008). Webb contends that the district court erred in denying his motion because it did not consider that the sentencing guidelines are merely advisory after Booker. If the court had done so, he asserts, then it would have reduced his sentence since it had" } ]

[ { "docid": "23419972", "title": "", "text": "protection of the Fourteenth Amendment by the Due Process Clause of the Fifth Amendment, see Bolling, 347 U.S. at 499, 74 S.Ct. at 694, and if there is no fundamental right to engage in homosexual sodomy under the Due Process Clause of the Fifth Amendment, see Hardwick, 478 U.S. at 194, 106 S.Ct. at 2846, it would be incongruous to expand the reach of equal protection to find a fundamental right of homosexual conduct under the equal protection component of the Due Process Clause of the Fifth Amendment. See Bolling, 347 U.S. at 500, 74 S.Ct. at 694. Other circuits are in accord and have held that although the Court in Hardwick analyzed the constitutionality of the sodomy statute on a due process rather than equal protection basis, by the Hardwick majority holding that the Constitution confers no fundamental right upon homosexuals to engage in sodomy, and because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes. See Ben-Shalom, 881 F.2d at 464-65; Woodward, 871 F.2d at 1076; Padula, 822 F.2d at 103. This court first considered equal protection and governmental classifications based on homosexuality in Hatheway v. Secretary of Army, 641 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864, 102 S.Ct. 324, 70 L.Ed.2d 164 (1981). In Hatheway, an Army lieutenant challenged his court-martial conviction for sodomy under Article 125 of the Uniform Code of Military Justice (U.C.M.J.), which makes it a crime for a service person to engage in “unnatural carnal copulation with another person of the same or opposite sex.” Id. at 1378 (quoting U.C.M.J., 10 U.S.C. § 925 (1976)). Hatheway contended that the convening authority prosecuted only homosexual sodomy cases, would not prosecute any cases involving heterosexual sodomy, and thus violated his constitutional rights. Id. We understood Hatheway’s claim to be an equal protection argument, but did not reach the question whether homosexuals were a suspect or quasi-suspect class. Id. at 1382 n. 6. However, we noted that “heightened scrutiny is independently required where a classification penalizes the exercise" } ]

[ { "docid": "11003961", "title": "", "text": "not in any way suggest that we should abstain from consideration of this question. In that case, unlike in that sub judice, the plaintiff had abandoned his constitutional argument altogether. . Obviously it is this propensity, this attraction for members of the same sex, that, at once, renders permissible the military's exclusion of homosexuals in order to preserve unit cohesion and also distinguishes the ban on homosexuals from what would be an emphatically impermissible policy of excluding service members based upon, for example, race. . Jacobson v. United States, 503 U.S. 540, 551-52, 112 S.Ct. 1535, 1541-42, 118 L.Ed.2d 174 (1992), and Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), which held unconstitutional the criminal punishment of individuals based upon a presumption of action from mere status or predisposition, do not dictate otherwise. Discharge from military service is not \"punishment,” as the District of Columbia Circuit observed in Steffan, 41 F.3d at 687. See also Gov't Br. at 30 (\"Jacobson was a criminal prosecution, which involves restrictions not applicable to military personnel decisions.”). In any event, the statute as written does not presume likely conduct from status, but merely homosexual propensity (that is, inclination or attraction) from a statement or other manifestation of homosexuality. . THE COURT: Does the United States believe that if this regulation permits the discharge of someone who is homosexual, irrespective of conduct, then the regulation is invalid? ' COUNSEL: No. THE COURT: So in other words ... [t]he military and Congress can provide for the discharge of any individual who is homosexual in the view of the Department of Justice; is that correct, Mr. Kneedler? COUNSEL: Well, this case does not present that. THE COURT: I understand that. COUNSEL: And that yes, in the sense that the — that the military is entitled to make a judgment that an expression ... that one is homosexual has a correlation at least, as the D.C. Circuit said in Steffan, a correlation that that— THE COURT: My question is: Suppose there’s no correlation. Irrespective of conduct, may the military discharge homosexuals" }, { "docid": "9836599", "title": "", "text": "unconstitutional and remanded for consideration of the constitutionality of § 654(b)(1) in Able v. United States, 88 F.3d 1280 (2nd Cir.1996). III. DUE PROCESS Richenberg argues that 10 U.S.C. § 654(b)(2) and DOD Directive 1332.30 violate the Fifth Amendment’s Due Process Clause, and particularly its equal protection component, by adopting an irrational and “constitutionally repugnant” presumption that discriminates against homosexuals on the basis of their “status.” Applying rational basis review, the district court held that the exclusion of those with a propensity or intent to engage in homosexual acts furthers the legitimate government purpose of protecting “unit cohesion, morale, good order and discipline and military readiness”; that the military can rationally infer such propensity or intent from a servicemember’s declaration of homosexuality; and therefore that the “rebuttable presumption is a rational means of furthering the military’s legitimate purpose.” 909 F.Supp. at 1312-13. Richen-berg argues that we should apply heightened scrutiny because homosexuality is a suspect classification. We reject this contention for the reasons stated by the Fourth Circuit in Thomasson, 80 F.3d at 927-28. In conducting rational basis review, we presume that the statute and implementing Directive are valid, placing the burden on Richenberg to show that they are not rationally related to any legitimate government purpose. See Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 2642-43, 125 L.Ed.2d 257 (1993). Our role is not “to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). Substantive due process review is especially deferential when military policy is challenged. The Constitution expressly grants responsibility for military affairs to Congress, art. I, § 8, and the President, art. II, § 2, not the judiciary. See United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). When action under this authority is challenged, “judicial deference ... is at its apogee.” Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981). Moreover, at a more practical level, deference to the considered professional judgment of military" }, { "docid": "11003935", "title": "", "text": "in Ballew v. Georgia, 435 U.S. 223, 235, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978), did use the words “propensity” and “likelihood” interchangeably in discussing the conviction rates for juries comprised of different numbers of jurors, he did not use either word to mean “likely,” as the Department of Defense regulation and implementing interpretations use the phrase “a likelihood.” If resort to easelaw is to be had, even a cursory review reveals that the weight of even arguably relevant authority is that the word “propensity” means merely an “inclination,” precisely the definition the dictionaries ascribe to the term. See, e.g., Robinson v. California, 370 U.S. 660, 678-79, 82 S.Ct. 1417, 1426-27, 8 L.Ed.2d 758 (1962) (Harlan, J., concurring) (“Since addiction alone cannot reasonably be thought to amount to more than a compelling 'propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.” (emphasis added)); Powell v. Texas, 392 U.S. 514, 543, 88 S.Ct. 2145, 2159, 20 L.Ed.2d 1254 (1968) (Black, J., concurring) (“Punishment for a status is particularly obnoxious, and in many instances can reasonably be called cruel and unusual, because it involves punishment for a mere propensity, a desire to commit an offense _” (emphasis added)). There is simply no credible argument that in common usage “propensity” means “likely”; any argument that it does is sophism. There certainly is no argument that the very Congress that refused to lift the long-time ban on homosexuals in the military and insisted that service members be discharged even for statements that they were homosexual would have regarded these terms as equivalent. For to define the term “propensity” as “likely” is “to create ... a sanctuary in the military where homosexuals could serve discreetly and still be subject to separation for proscribed conduct,” the very circumstance the Congress concluded would be “inimical to unit cohesion, morale, welfare and discipline, unenforceable in the field, and open to legal challenge.” H.R.Rep. No. 200, 103d Cong., 1st Sess. 289 (1993), reprinted in 1993 U.S.Code Cong. & Admin. News 2013, 2076. B. When" }, { "docid": "22853929", "title": "", "text": "was limited to this due process question. The parties did not argue and the Court explicitly did not decide the question whether the Georgia sodomy statute might violate the equal protection clause. See id. at 196, n. 8, 106 S.Ct. at 2846 n. 8. The Army nonetheless argues that it would be “incongruous” to hold that its regulations deprive gays of equal protection of the laws when Hardwick holds that there is no constitutionally protected privacy right to engage in homosexual sodomy. Army’s Second Supp. Brief at 19. I could not disagree more. First, while Hardwick does indeed hold that the due process clause provides no substantive privacy protection for acts of private homosexual sodomy, nothing in Hardwick suggests that the state may penalize gays merely for their sexual orientation. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding that state violated due process by criminalizing the status of narcotics addiction, even though the state could criminalize the use of the narcotics — conduct in which narcotics addicts by definition are prone to engage). In other words, the class of persons involved in Hardwick — those who engage in homosexual sodomy — is not congruous with the class of persons targeted by the Army’s regulations — those with a homosexual orientation. Hardwick was a “conduct” case; Watkins’ is an “orientation” case. Second, and more importantly, Hardwick does not foreclose Watkins’ claim because Hardwick was a due process, not an equal protection case. Although the Army acknowledges, as it must, that Hardwick does not discuss equal protection explicitly, the Army nonetheless argues that Hard-wick’s discussion of due process has equal protection implications. Specifically, the Army argues that the Hardwick Court, in holding that the criminalization of homosexual sodomy does not violate due process, decided sub silentio that the criminalization of heterosexual sodomy would violate due process. The Army concludes from this that Hardwick is controlling precedent that the government may discriminate against homosexuals without violating equal protection. Both the premise and the conclusion of the Army’s argument are mistaken. In the first place, Hardwick did" }, { "docid": "9752798", "title": "", "text": "in Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313-14, 89 L.Ed.2d 478 (1986), the Supreme Court upheld this court’s ruling that a military prohibition on servieemembers wearing yarmulkes survived strict scrutiny, although the regulation would likely have been struck down as violative of the First Amendment in other contexts. In effect, the Court deferred to the military’s judgment that its interest in uniformity of dress — which may not have been even an “important” governmental interest in another context — rose to a “compelling” level in the military. Surely the military itself is most competent to determine whether uniformity of dress is merely “important” or positively “compelling” in the military context. Steffan’s case presents quite a different picture, however. Steffan has conceded, “for today,” that keeping individuals who engage or intend to engage in homosexual conduct out of. the military is a “legitimate” interest. The issue here is thus limited to whether the government may “rationally” infer past or future conduct from Steffan’s admission of “homosexuality.” The military has no special competence to decide this question. To the contrary, reviewing the “rationality” of such inferences — with attendant legal consequences — drawn from status to conduct falls more properly within the expertise of the courts. Such analyses are an important part of our work. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 509-11, 84 S.Ct. 1659, 1665-66, 12 L.Ed.2d 992 (1964) (government cannot punish status of Communist on the theory that subversive conduct would follow); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962) (disallowing punishment of drug addicts, absent evidence of drug use). We therefore decline the government’s invitation to establish the military branches as ultimate arbiters of the “rationality” of their inferences under the Equal Protection Clause. With due respect for military expertise in appropriate areas, we employ the traditional rational basis tools in this situation. We must, however, take issue with the majority’s assertion that we hold the mistaken view that “the government’s position is weakened if it does not produce evidence to support (‘demonstrate’) its" }, { "docid": "2284454", "title": "", "text": "we considered an equal protection challenge to the military’s old policy on homosexuals. Navy Petty Officer Meinhold was discharged after he made the statement “I am in fact gay.” In assessing Meinhold’s constitutional claims, we recognized the “serious question” raised by the military’s apparent policy of presuming that persons of homosexual orientation would violate regulations: “Equating status or propensity with conduct or acts that are prohibited is problematic as well. The Supreme Court has long recognized the constitutional infirmity of penalizing status alone.” Id. at 1478. To avoid this constitutional difficulty, we interpreted the old policy regarding homosexuals in the military narrowly, relying on the fact that the military’s policy did not appear to allow the discharge of a service member solely because of a homosexual orientation. Accordingly, the holding we reached was narrow: We therefore hold that the regulation under which Meinhold was processed need not be construed so broadly as to raise constitutional concerns. It can reasonably be construed to reach only statements that show a concrete, fixed, or expressed desire to commit homosexual acts despite their being prohibited. The Navy adopted its regulation to Meinhold’s statement of orientation alone and based his separation solely on his classification as a homosexual. His statement- ! am in fact gay”in the circumstances under which he made it manifests no concrete, expressed desire to commit homosexual acts. The Navy’s presumption that Meinhold desires or intends to engage in prohibited conduct on this basis of his statement alone therefore arbitrarily goes beyond what [the military’s] policy seeks to prevent. Accordingly, Meinhold’s discharge on that basis cannot stand. Id. at 1479-80. Because we face a direct challenge to the statement prong of the military’s new policy, we must now face the question we avoided in Meinhold: whether the military’s presumption from a service member’s statement of homosexuality that he or she will engage in homosexual conduct bears a rational relation ship to the military’s interest in maintaining effective armed forces. We are assisted in this regard by recent decisions from several other circuit courts. In Thomasson, the Navy discharged Lieutenant Thomasson after he" }, { "docid": "9752815", "title": "", "text": "as evidenced by membership in a “subversive organization”— could never be sufficient grounds for deprivation of civil rights. In Aptheker, the Court held unconstitutional a law that indiscriminately deprived Communist Party members of their passports. Id. at 509-11, 84 S.Ct. at 1665-67. Cf. Robinson v. California, 370 U.S. 660, 665-67, 82 S.Ct. 1417, 1419-21, 8 L.Ed.2d 758 (1962) (unconstitutional to criminalize narcotics addiction in absence of proof of use); Powell v. Texas, 392 U.S. 514, 532-36, 88 S.Ct. 2145, 2154-56, 20 L.Ed.2d 1254 (1968) (upholding conviction for public intoxication because it was based on conduct, not status as chronic alcoholic). Thus, even Cold War fears of internal subversion could not induce the Supreme Court to countenance the kind of presumption that the government argues and the majority adopts here — an inference of future misconduct on the basis of an admission of inchoate “desire,” unaccompanied by any specific intent to engage in misconduct. Such an inference is repugnant to time-honored legal principles that guard the sanctity of a person’s “thoughts and desires” against governmental control. Indeed, numerous circuits have already applied this axiom to homosexual status in the context of gay and lesbian student groups denied recognition by state universities. The universities argued that because such organizations would encourage homosexuals to congregate and fraternize, they would facilitate the commission of criminal acts — homosexual sodomy or “deviate” sex acts. See Gay Students Org. of Univ. of New Hampshire v. Bonner, 509 F.2d 652, 662 (1st Cir. 1974); Gay Alliance of Students v. Matthews, 544 F.2d 162, 166 (4th Cir.1976); Gay Lib v. University of Missouri, 558 F.2d 848, 853 (8th Cir.1977). Therefore, the universities contended — much like the military here — they could deny university recognition to inhibit anticipated offensive behavior. The courts roundly rejected this line of argument. The Fourth Circuit, for example, wrote that while “the University could constitutionally regulate [ ] conduct,” its argument for denying official recognition to homosexual groups on campus could not be squared with the Supreme Court’s holding in Robinson prohibiting punishment for status. See Gay Alliance, 544 F.2d at 166 (citing" }, { "docid": "22853956", "title": "", "text": "(Brennan, J., dissenting from denial of cert.) (quoting Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14). The Army suggests that the opprobrium directed towards gays does not constitute prejudice in the pejorative sense of the word, but rather is simply appropriate public disapproval of persons who engage in immoral behavior. The Army equates homosexuals with sodomists and justifies its regulations as simply reflecting a rational bias against a class of persons who engage in criminal acts of sodomy. In essence, the Army argues that homosexuals, like burglars, cannot form a suspect class because they are criminals. The Army’s argument rests on two false premises. First, as I have noted throughout this opinion, the class burdened by the regulations at issue in this case is defined by the sexual orientation of its members, not by their sexual conduct. See supra at 712-716. To my knowledge, homosexual orientation itself has never been criminalized in this country. Moreover, any attempt to criminalize the status of an individual’s sexual orientation would present grave constitutional problems. See generally Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Second, little of the homosexual conduct covered by the regulations is criminal. The regulations reach many forms of homosexual conduct other than sodomy such as kissing, hand-holding, caressing, and hand-genital contact. Yet, sodomy is the only consensual adult sexual conduct that Congress has criminalized, 10 U.S.C. § 925. Indeed, the Army points to no law, federal or state, which criminalizes any form of private consensual homosexual behavior other than sodomy. The Army’s argument that its regulations merely ban a class of criminals might be relevant, although not necessarily persuasive, if the class at issue were limited to sodomists. But the class banned from Army service is not comprised of sodomists, or even of homosexual so-domists; the class is comprised of persons of homosexual orientation whether or not they have engaged in sodomy. Finally, I turn to immutability as an indicator of gross unfairness. The Supreme Court has never held that only classes with immutable traits can be deemed suspect." }, { "docid": "11003960", "title": "", "text": "that he engages in, or is likely to engage in, homosexual acts. The First Amendment docs not prohibit such evidentiary use of a member's statements.”); id. at 13 (\"Thomasson argues (Br. at 34) that heightened scrutiny should apply because the policy is directed, he contends, at 'sexual orientation.' As we show infra, pp. 22-24, however, this argument fundamentally misapprehends the relevant classification, which the district court correctly held is directed at homosexual 'acts and the likelihood of acts.' ”); id. at 22 (\"The Directives equally make clear that the new policy is conduct-directed and does not target orientation.”); id. at 23 (\"Thomasson's repeated assertion, (.e.g., Br. 24, 33-37) that the policy classifies on the basis of homosexual orientation cannot be reconciled with the plain regulatory language that equates 'propensity' with 'likelihood.' ” (emphasis added)). . Reno v. Koray, — U.S. -, -n. 2, 115 S.Ct. 2021, 2024 n. 2, 132 L.Ed.2d 46 (1995), urged upon us by both the government and Lt. Thomasson as authority against our consideration of the validity of the regulation, does not in any way suggest that we should abstain from consideration of this question. In that case, unlike in that sub judice, the plaintiff had abandoned his constitutional argument altogether. . Obviously it is this propensity, this attraction for members of the same sex, that, at once, renders permissible the military's exclusion of homosexuals in order to preserve unit cohesion and also distinguishes the ban on homosexuals from what would be an emphatically impermissible policy of excluding service members based upon, for example, race. . Jacobson v. United States, 503 U.S. 540, 551-52, 112 S.Ct. 1535, 1541-42, 118 L.Ed.2d 174 (1992), and Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), which held unconstitutional the criminal punishment of individuals based upon a presumption of action from mere status or predisposition, do not dictate otherwise. Discharge from military service is not \"punishment,” as the District of Columbia Circuit observed in Steffan, 41 F.3d at 687. See also Gov't Br. at 30 (\"Jacobson was a criminal prosecution, which involves restrictions not" }, { "docid": "2284453", "title": "", "text": "own circuit precedent plus the authority from every other circuit court that has addressed this issue establishes that the military has a legitimate interest in discharging service members on account of homosexual conduct in order to maintain effective armed forces, we must reject Watson’s and Holmes’s argument that there is no legitimate government interest in excluding homosexuals from military service on account of homosexual conduct. As stated by the Fourth Circuit, “[a]ny argument that Congress was misguided in [concluding that homosexual conduct would affect military effectiveness] is one of legislative policy, not constitutional law.” Thomasson, 80 F.3d at 929. 3. Rational Relation Watson and Holmes next contend that it is not rational for the government to presume from statements regarding homosexual orientation that they will likely engage in homosexual conduct. Watson and Holmes argue that the presumption of § 654(b)(2) and its implementing regulations lacks a rational relationship to a legitimate state interest because it allows for discharge based on homosexual status. In Meinhold v. United States Dep’t of Defense, 34 F.3d 1469 (9th Cir.1994), we considered an equal protection challenge to the military’s old policy on homosexuals. Navy Petty Officer Meinhold was discharged after he made the statement “I am in fact gay.” In assessing Meinhold’s constitutional claims, we recognized the “serious question” raised by the military’s apparent policy of presuming that persons of homosexual orientation would violate regulations: “Equating status or propensity with conduct or acts that are prohibited is problematic as well. The Supreme Court has long recognized the constitutional infirmity of penalizing status alone.” Id. at 1478. To avoid this constitutional difficulty, we interpreted the old policy regarding homosexuals in the military narrowly, relying on the fact that the military’s policy did not appear to allow the discharge of a service member solely because of a homosexual orientation. Accordingly, the holding we reached was narrow: We therefore hold that the regulation under which Meinhold was processed need not be construed so broadly as to raise constitutional concerns. It can reasonably be construed to reach only statements that show a concrete, fixed, or expressed desire to commit" }, { "docid": "9752809", "title": "", "text": "they were quite confident that no additional evidence of conduct or intent existed. ’ The Ninth Circuit is in agreement with this view, and has interpreted the regulation at issue here as not reaching simple, unadorned admissions of homosexuality. In so doing, it cited numerous inconsistencies in the military’s position that raised, in the court’s view there, serious doubts about the “rationality” of the same inference urged upon us here. In Meinhold, 34 F.3d at 1478 n. 11, Judge Rymer noted that when an individual admits or has been found to engage in past homosexual acts, the military does not necessarily infer future homosexual conduct. Rather, so long as certain “approved findings” are made — including that the individual no longer “desires” to engage in homosexual acts — the DOD Directive permits such servicemembers to remain in the military. DOD Directives 1332.14 and 1332.30. Judge Rymer correctly concludes that it is not “wholly rational” to infer future homosexual conduct from a mere statement of “homosexuality” at the same time a similar inference is not necessarily made from past homosexual conduct by professed heterosexuals. The Meinhold court also observed that the military’s “propensity” inference treated homosexuals and heterosexuals differently for no reason. Judge Rymer wrote: Although courts defer to the military’s judgment about homosexual conduct, and classifications having to do with homosexuality may survive challenge if there is any rational basis for them [citations omitted], at least a serious question is raised whether it can ever be rational to presume that one class of persons (identified by their sexual preference alone) will violate regulations whereas another class (identified by their preference) will not. Id. at 1478. It is telling that the majority does not seriously attempt to distinguish Meinhold, but rather limits its criticism of the holding to two points of secondary importance. See Maj. op. at 687 n. 7 (definition of the class of persons at issue) & 694 (exhaustion of remedies). 3. The Constitution Prohibits Inferring Proscribed Conduct Finally, and most fundamentally, presuming that servicemembers who admit to homosexual orientation will inevitably violate military regulations conflicts with bedrock principles" }, { "docid": "11003943", "title": "", "text": "Lt. Thomasson on occasion agrees, that the validity of the regulation is not before the court and should under no circumstance be addressed by the court. See, e.g., Gov’t Supp. Br. at 3. These protestations are to be expected, but they are unavailing. Lt. Thomasson makes two separate arguments in challenging the. military’s policy, not one. The first, which the majority ably addresses, is that the policy, defined collectively by the statute and the regulation, is unconstitutional because it irrationally presumes prohibited conduct from a mere statement of status. The second, which the majority does not address, is that the military’s policy is wholly status-based because the conduct-based regulation is invalid under the statute, and, without the regulation, the statute unconstitutionally authorizes the discharge of homosexuals solely on the basis of their status as homosexuals. The Administration defends against Thom-asson’s argument that the policy is status-based entirely on the ground that the policy is conduct-based by virtue of the regulatory definition of the statutory term “propensity.\" Lt. Thomasson responds that, to the extent this is so, the regulation is but “law-yerly afterthought” and “definitional trickery.” Appellant’s Br. at 26; Appellant’s Reply Br. at 19. This is necessarily to draw into question the validity of the regulation. Otherwise, Lt. Thomasson’s argument that the policy is entirely status-based is patently specious, because, as the Administration notes, it is contradicted by “the plain regulatory language.” Gov’t Br. at 23. IV. Because I would invalidate the regulation, I must address whether the statute’s mandatory exclusion of known homosexuals is constitutionally permissible. Under rational basis review, this exclusion must be sustained if both of the distinctions implicit in the statute — that between homosexuals and heterosexuals and that between known and undetected homosexuals — are rationally related to a legitimate governmental interest. Heller v. Doe, 509 U.S. 312, 318-19, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). Although not required under rational basis review, see id. at 321, 113 S.Ct. at 2643 (“[The Government] has no obligation to produce evidence to sustain the rationality” of the Act; “a legislative choice is not subject to courtroom" }, { "docid": "3194274", "title": "", "text": "they have a \"propensity” to engage in theft, although non-minority service members are not excluded unless and until they engage in theft. Surely defendants would not attempt to defend the constitutionality of such a policy; likewise, they cannot defend the policy at issue in this case. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 883, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) (holding that the Fourth Amendment prohibits immigration officials from stopping a vehicle near the Mexican border to question its occupants about their immigration status when the only ground for suspicion is their apparent Hispanic ancestry). . Although this report is no doubt offered to establish on the record DOD's comments on those aspects of the report with which it did not agree (see Defs.' Ex. 2, GAO report at 56-77), DOD did not object to that portion of the report discussed herein. . See Beller, 632 F.2d at 811-812 (\"the Navy could conclude that a substantial number of naval personnel have feelings regarding homosexuality, based upon moral precepts recognized by many in our society as legitimate, which would create tensions and hostilities, and that these feelings might undermine the ability of a homosexual to command the respect necessary to perform supervisory .duties”). . \"Similar weaknesses inhere in Hatheway v. Sect'y of the Army, 641 F.2d 1376 (9th Cir.1981),” cert. denied, 454 U.S. 864, 102 S.Ct. 324, 70 L.Ed.2d 164 (1981), another case involving homosexual conduct. Pruitt, 963 F.2d 1165 n. 4. Plaintiff in Hatheway challenged his court martial conviction for sodomy under Article 125 of the Uniform Code of Military Justice on several constitutional grounds, including Fifth Amendment equal protection. As the Ninth Circuit in Pruitt observed: [i]n rejecting the equal protection argument, [the] Hatheway [court] relied on the same justifications accepted in Beller, including those arising from prejudice of other servicemembers or potential recruits against homosexuals____ Much of the same can be said of the other cases ... that rely on Beller to support the rationality of \"blanket discrimination by the armed forces against homosexuals. See Dronenburg v. Zech, 741 F.2d 1388 (D.C. [Cir.] 1984); Rich" }, { "docid": "9752757", "title": "", "text": "at 694 n. 18 (discussing the appropriateness of the Meinhold court’s factual finding), the court determined that Mein-hold’s discharge was illegal under the Navy's own regulations. The Ninth Circuit accepted Meinhold’s characterization that the class of persons at issue was those \"who say they are gay but have not acted in accordance with their propensity in the past.” In our view, however, the proper characterization of the class is persons who say they are gay, but as to whom the military has no additional evidence as to their conduct. The Meinhold court also did not consider the rationality of treating all persons who identify themselves as homosexuals as likely violators of the prohibition on homosexual conduct. . The dissent would also distinguish Beazer on the basis of the district court's findings that some of the participants in the methadone treatment program exhibited physical symptoms that impaired their capacity for employment. Dissent at 715. The Supreme Court did not, however, rely on this basis in upholding the policy; indeed, the Court recognized that some participants in the program, if “examined individually, satisfied the Transit Authority's employment criteria,” but • nevertheless held that \"it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined sub-parts of the classification as it is with respect to the classification as a whole.” Id., at 593, 99 S.Ct. at 1370 (citation omitted). . Classifications based on race or religion, of course, would trigger strict scrutiny. . The dissent mistakenly asserts that our view on this issue is contradicted by the DOD Directives and the government's position in Selland v. Aspin, 832 F.Supp. 12, 13 (D.D.C.1993). Dissent at 710. We repeatedly emphasize that the military’s practice of discharging service members who state that they are homosexual, based on an inference of future conduct, is permissible because the inference is rational in the run of cases. Contrary to the dissent's assertions, the existence of possible individual exceptions to the rule does not affect our equal protection analysis. . Lambda, the gay rights organization representing Steffan, appeared as amicus in" }, { "docid": "21504038", "title": "", "text": "statement presumption if he can show that his statement “I am gay” is not indicative of a likelihood that the he will engage in proscribed homosexual conduct. As several courts have pointed out, the line between “propensity” and “orientation” is razor-thin at best. See, e.g., Able, 880 F.Supp. at 975 (characterizing the distinction between “orientation” and “propensity” as “Orwellian”); Thomasson, 80 F.3d at 941-42 n. 8 (Luttig, J., concurring) (“I do not know what homosexual orientation is, if it is not the propensity to commit homosexual acts; indeed, I do not understand how one even knows that he has a homosexual orientation except by realizing that he has a propensity toward the commission of homosexual acts.”). Emphasizing that “propensity” sweeps in everyone who is gay, plaintiffs allege that, in practice, gay and lesbian service members are routinely discharged despite evidence that there is no likelihood that they will engage in proscribed homosexual conduct while they are in military service. Accordingly, plaintiffs contend that any honest admission of a gay or lesbian service member’s sexual orientation results in discharge. In my view, if the Act were applied to punish statements about one’s status as a homosexual, it would constitute a content-based speech restriction subject to strict scrutiny. See Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469, 1476-80 (9th Cir.1994) (in an equal protection challenge to the military’s pre-“Don’t Ask, Don’t Tell” homosexuality policy, construing the policy as only applying to conduct in order to avoid constitutional concerns that would arise if the policy punished service members for “mere propensity” or status alone) (quoting Powell v. Texas, 392 U.S. 514, 543-44, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (Black, J., concurring)). Indeed, as Lawrence articulates, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); see also Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) (stating that the founders “believed that freedom to think as you will and to speak as" }, { "docid": "3194273", "title": "", "text": "Clinton’s July 19, 1993 speech made in support of the recently revised homosexual exclusion policy. President Clinton stated: members feel about gays in general and, in particular, those in military service. \"Clinton: Policy on Gays in Miliary 'Sensible Balance’,” The Washington Post, July 20, 1993 (emphasis added). . Indeed, as previously indicated, defendants’ , evidence shows that homosexuals, whether declared or undeclared, do not present an unusual risk of engaging in prohibited conduct. See, e.g., Defs.’ Ex. 8, 1988 PERSEREC report at 31; see also \"Clinton: Policy on Gays in Military 'Sensible Balance,’ ” Washington Post, July 20, 1993, quoting President Clinton’s July 19, 1993 speech on homosexuals in the military (\" 'there is no study showing [homosexuals] to be less capable or more prone to misconduct than heterosexual soldiers. Indeed, all the information we have indicates that they are not less capable or more prone to misbehavior' ”). . In fact, the homosexual exclusion policy is indistinguishable from a patently unconstitutional hypothetical policy providing that ethnic minorities must be excluded from military service because they have a \"propensity” to engage in theft, although non-minority service members are not excluded unless and until they engage in theft. Surely defendants would not attempt to defend the constitutionality of such a policy; likewise, they cannot defend the policy at issue in this case. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 883, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) (holding that the Fourth Amendment prohibits immigration officials from stopping a vehicle near the Mexican border to question its occupants about their immigration status when the only ground for suspicion is their apparent Hispanic ancestry). . Although this report is no doubt offered to establish on the record DOD's comments on those aspects of the report with which it did not agree (see Defs.' Ex. 2, GAO report at 56-77), DOD did not object to that portion of the report discussed herein. . See Beller, 632 F.2d at 811-812 (\"the Navy could conclude that a substantial number of naval personnel have feelings regarding homosexuality, based upon moral precepts recognized by many in" }, { "docid": "2284455", "title": "", "text": "homosexual acts despite their being prohibited. The Navy adopted its regulation to Meinhold’s statement of orientation alone and based his separation solely on his classification as a homosexual. His statement- ! am in fact gay”in the circumstances under which he made it manifests no concrete, expressed desire to commit homosexual acts. The Navy’s presumption that Meinhold desires or intends to engage in prohibited conduct on this basis of his statement alone therefore arbitrarily goes beyond what [the military’s] policy seeks to prevent. Accordingly, Meinhold’s discharge on that basis cannot stand. Id. at 1479-80. Because we face a direct challenge to the statement prong of the military’s new policy, we must now face the question we avoided in Meinhold: whether the military’s presumption from a service member’s statement of homosexuality that he or she will engage in homosexual conduct bears a rational relation ship to the military’s interest in maintaining effective armed forces. We are assisted in this regard by recent decisions from several other circuit courts. In Thomasson, the Navy discharged Lieutenant Thomasson after he submitted a written statement indicating that he was gay and then failed to rebut the presumption by presenting any specific evidence about whether he engaged or intended to engage in homosexual acts. In holding that the presumption contained in § 654(b)(2) is rationally related to a legitimate state interest, the Fourth Circuit reasoned as follows: We think, however, that the means chosen by Congress in the Act are rationally related to legitimate legislative ends. The presumption that declared homosexuals have a propensity or intent to engage in homosexual acts certainly has a rational factual basis. In fact, the presumption ... represents perhaps the most sensible inference raised by a declaration of one’s sexual orientation____ Although Thomas-son argues that some declared homosexuals have not engaged in and do not have a propensity or intent to engage in homosexual acts, “courts are compelled ... to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id. at 930 (quoting Heller, 509 U.S. at 312, 113 S.Ct. at 2639) (citation omitted). Similarly, the" }, { "docid": "9752820", "title": "", "text": "punishment,” but only an “employment deeision[ ].” Maj. op. at 682. The majority is mistaken. It is just as irrational and fundamentally unfair for the government to draw such an inference in the “employment” context as in any other. Indeed, the Supreme Court’s decisions indicate that the government may neither punish nor make “employment decisions” solely on the basis of citizens’ political affiliations or membership in “subversive organizations.” See Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (prohibiting dismissal of non-policymaking county employees based on political affiliation); Elfbrandt v. Russel, 384 U.S. 11, 17-19, 86 S.Ct. 1238, 1241-12, 16 L.Ed.2d 321 (1966) (invalidating law denying employment on grounds of membership in subversive organization). Cf. Meinhold, 34 F.3d at 1478 (pointing out “the constitutionally significant danger of making status a surrogate for prohibited conduct”). Stripped down, the majority’s distinction is constitutionally unpalatable. Any government action with serious civil or economic consequences for an individual admitting homosexual (as opposed to heterosexual) “desire,” predicated on the assumption that only the homosexual individual will violate government regulations prohibiting certain behavior, is equally defective. F. Inferring Past Conduct From an Admission of “Homosexuality” The majority advances the alternative position that the Navy could — on the basis of Steffan’s admission of “homosexuality” — discharge him for past conduct, quite apart from any “propensity” to engage in future conduct. In our view, any assumption of past conduct from such an admission is subject to all the same objections made against inferring “propensity” to future conduct. And more. A rational connection between an admission of “homosexuality” and homosexual conduct is equally lacking whether the conduct inferred is past or future; and our Constitution prohibits the government from drawing that inference in either case. The Supreme Court’s ruling in Robinson v. California— holding unconstitutional a state’s attempt to criminalize narcotics addiction in absence of proof of use — did not hinge on whether California anticipated future use or suspected past use. The majority’s assertion that the Navy may infer that Steffan “admitted” past conduct when he acknowledged his “homosexuality” is just" }, { "docid": "9752810", "title": "", "text": "made from past homosexual conduct by professed heterosexuals. The Meinhold court also observed that the military’s “propensity” inference treated homosexuals and heterosexuals differently for no reason. Judge Rymer wrote: Although courts defer to the military’s judgment about homosexual conduct, and classifications having to do with homosexuality may survive challenge if there is any rational basis for them [citations omitted], at least a serious question is raised whether it can ever be rational to presume that one class of persons (identified by their sexual preference alone) will violate regulations whereas another class (identified by their preference) will not. Id. at 1478. It is telling that the majority does not seriously attempt to distinguish Meinhold, but rather limits its criticism of the holding to two points of secondary importance. See Maj. op. at 687 n. 7 (definition of the class of persons at issue) & 694 (exhaustion of remedies). 3. The Constitution Prohibits Inferring Proscribed Conduct Finally, and most fundamentally, presuming that servicemembers who admit to homosexual orientation will inevitably violate military regulations conflicts with bedrock principles of our legal and constitutional order. For that reason, it is inherently irrational. The Supreme Court has repeatedly emphasized that even prior conduct does not demonstrate a “propensity” to engage in the same actions after they later become illegal. See, e.g., Jacobson v. United States, — U.S. —,—, 112 S.Ct. 1535, 1542, 118 L.Ed.2d 174 (1992) (“Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it.”). And if prior conduct does not permit an inference regarding future conduct, such a conclusion is still less justifiable when based on mere orientation or “desire.” “[A] person’s inclinations and ‘fantasies ... are his own and beyond the reach of government....” Id. (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446 (1973)). Indeed, as Justice Marshall wrote in Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248," }, { "docid": "9752799", "title": "", "text": "to decide this question. To the contrary, reviewing the “rationality” of such inferences — with attendant legal consequences — drawn from status to conduct falls more properly within the expertise of the courts. Such analyses are an important part of our work. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 509-11, 84 S.Ct. 1659, 1665-66, 12 L.Ed.2d 992 (1964) (government cannot punish status of Communist on the theory that subversive conduct would follow); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962) (disallowing punishment of drug addicts, absent evidence of drug use). We therefore decline the government’s invitation to establish the military branches as ultimate arbiters of the “rationality” of their inferences under the Equal Protection Clause. With due respect for military expertise in appropriate areas, we employ the traditional rational basis tools in this situation. We must, however, take issue with the majority’s assertion that we hold the mistaken view that “the government’s position is weakened if it does not produce evidence to support (‘demonstrate’) its regulatory proposition.” See Maj. op. at 685, 689-90. No such thing. Our position is that the inferences drawn in the regulations are not in fact rational ones — we do not rely on any argument that the government has failed to support them with evidence. In particular, as we explain in greater detail later, there are fundamental impediments deeply rooted in our constitutional jurisprudence that will not permit the government to treat a service-member’s statement of homosexual identity as a proxy for proscribed homosexual conduct. Governmental actions predicated on such a presumption must therefore fail rational-basis review, quite apart from eviden-tiary disputes. That the government has never tried to demonstrate — either in this case or in any other ease upon which the majority relies — that its inference of homosexual conduct following from an admission of orientation is rooted in “realit[y],” see Heller v. Doe, — U.S. at —, 113 S.Ct. at 2643, serves only to reinforce our view of its basic irrationality. E. Inferring Future Homosexual Conduct From “Homosexuality\" Although the questions of" } ]

[ { "docid": "15300009", "title": "", "text": "465 F.2d 1277, 1290 (4th Cir.1972) (Sobeloff, J., concurring in part and dissenting in part). We have admitted evidence of other acts on the issue of intent, for example, where the defendant claimed that “he was present but innocent” during the sale of the drugs, and he elicited false testimony that he had no prior involvement in any cocaine transaction, United States v. Rhodes, 779 F.2d 1019, 1030-31 (4th Cir.1985); where the defendant contended he had merely obtained a truck for friends without knowing it would be used to transport stolen property, Hadaway, 681 F.2d at 217; where intent was a “key issue” because the defendant was “sharply contesting the sufficiency of the government’s proof of lascivious intent” in a child-molestation case, United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981); and where the defendant has sought “to depict herself as one whose essential philosophy and habitual conduct in life is completely at odds with the possession of a state of mind requisite to guilt of the offense charged_” United States v. Johnson, 634 F.2d 735, 737 (4th Cir.1980). Id. at 1039-40. The 404(b) evidence of Kohn’s payment of $200 to Bailey was closely related in time because it was during the. same legislative term. It is not tenuous to the charges in the indictment because it involved the acceptance of money for the use of his political office. Also, Bailey admitted taking money from Cobb but contended it was a campaign contribution and not a bribe. This contention made his intent in accepting the money the primary issue for the jury to decide. The government was required to prove Bailey’s intent was to treat the money as a payment for his assistance to Cobb in supporting and moving along the pari-mutuel betting bill. The evidence of a prior similar act of accepting money for his actions as a legislator was admissible to show intent and absence of mistake. United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986). The same reasoning is applicable to the Rawle prong that requires 404(b) evidence to be necessary to prove an element" } ]

[ { "docid": "17140169", "title": "", "text": "should consider the evidence concerning such a statement with caution and great care and should give such weight to the statement as you believe it deserves under all the circumstances. IV R. 253 (emphasis added). Inherent in defendant’s assertion that the district court erroneously failed to instruct the jury to disregard the drug dealer testimony, or that its instruction confused the jury, is a claim that the “drug dealer” comment was character evidence not properly admitted under Fed.R.Evid. 404(a) and (b). Under Fed.R.Evid. 404(b), evidence of prior bad acts may not be admitted “to show bad character or propensity to commit a crime, but may be admitted to prove, among other things, intent or knowledge.” United States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir.1992). We note defense counsel did not object to the instruction. Indeed, we cannot determine from the appellate record whether this was an instruction submitted by the prosecution or the defense. The court noted that the only dispute over both parties’ proffered jury instructions was over the use of Gallegos’ “other name.” IV R. 244-45. Thus, we review the instruction only for plain error. The district court was correct in ruling that such a statement is not considered hearsay, because it was made by defendant himself. See Fed.R.Evid. 801(d)(2)(A). But it should have been considered for its admissibility under Rule 404(b). Some courts have expressed “doubt whether evidence of an occupation or status like ‘drug dealer’ falls within the realm of ‘other crimes, wrongs, or acts’ admissible to show knowledge or intent under Rule 404(b).” United States v. Brewer, 1 F.3d 1430, 1435 (4th Cir.1993) (citing United States v. Reed, 647 F.2d 678, 686 (6th Cir.) (testimony that defendants charged with receiving stolen goods were known burglars or fences not admissible under Fed.R.Evid. 404(b))), cert. denied, 454 U.S. 837, 1037, 102 S.Ct. 142, 580, 70 L.Ed.2d 118, 483 (1981). But evidence of prior drug transactions can be admissible to prove intent in drug prosecutions. See United States v. Elkins, 732 F.2d 1280, 1286 (6th Cir.1984) (prior cocaine deals observed by witness admissible to prove intent in" }, { "docid": "3679298", "title": "", "text": "barred from the trial altogether. The Rule itself provides a number of exceptions allowing for the admission of prior “bad act” evidence, including evidence of “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, [and] absence of mistake or accident.” Fed.R.Evid. 404(b). As our cases illustrate, a trial court’s analysis of these competing considerations presents a continuing challenge. See United States v. Johnson, 617 F.3d 286, 296 (4th Cir.2010) (comparing United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991), which held that prior drug-transaction testimony in a drug conspiracy case was admissible under Rule 404(b), with Hernandez, 975 F.2d at 1040, which held that prior drug-transaction testimony in a drug conspiracy case was inadmissible under Rule 404(b)). Because the danger inherent in admitting prior “bad act” evidence is that it will be considered impermissibly as evidence of character, we have developed certain criteria governing admission of this type of evidence. We have provided a four-factor test for courts to consider when determining the admissibility of prior “bad acts” evidence: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence’s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process. Johnson, 617 F.3d at 296-97 (quoting United States v. Queen, 132 F.3d 991, 997 (4th Cir.1997)); see United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988). In addition to these four factors, we also have stated that other protection against the misuse of prior “bad act” evidence is provided by (1) the requirement that a criminal defendant receive prior notice of the" }, { "docid": "22828583", "title": "", "text": "to the paucity of evidence before the court linking him to the conspiracy. We agree. A. Rule Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ... Fed.R.Evid. 404(b). Our Circuit’s jurisprudence concerning the application of Rule 404(b) has evolved by addressing the tension in cases involving evidence of prior drug transactions. Compare United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (holding evidence of prior drug-transaction testimony admissible under Rule 404(b) to prove knowledge and intent in drug conspiracy case) with United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir.1992) (holding prior drug-transaction testimony inadmissible under Rule 404(b) in drug conspiracy case). As a result we endeavored to further clarify “the rule’s [elusive] underlying principles” in United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997). We held that evidence of prior bad acts under Rule 404(b) is admissible when the following criteria are met: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence’s probative value must not be substantial ly outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process. Queen, 132 F.3d at 997. Johnson argues that Timpson’s testimony is not admissible under Rule 404(b) because the alleged prior drug transaction is not sufficiently related to the conspiracy charged such that it could be considered probative of intent or" }, { "docid": "22870770", "title": "", "text": "should be raised, if at all, in a 28 U.S.C. § 2255 motion. See United States v. Baptiste, 596 F.3d 214, 216 n. 1 (4th Cir.2010). B. Next, we consider .whether the district court correctly admitted prior acts evidence under Rule 4Q4(b). We review evidentiary rulings for abuse of discretion, United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997), and will not reverse a district court’s decision to admit prior acts evidence-unless it was “arbitraxy or irrational,” United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988) (citing United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986)). Faulls asserts that the district court should not have admitted testimony regarding the Mineral and Williamsburg incidents because the evidence was neither relevant nor necessary to the charges. Alternatively, Faulls argues that the probative value of the evidence was substantially outweighed by its prejudicial effect because the evidence (if believed) demonstrated a pattern of domestic violence. Evidence of prior wrongs is not admissible “to prove a person’s character in order to show that on a particular occasion the person acted in accordance.'with the character.” Fed.R.Evid. 404(b)(1). However, such evidence may be admissible for other purposes, including to show motive, opportunity, intent, preparation, or plan. Id: 404(b)(2). Prior act evidence is also admissible under Rule 404(b) to show the victim’s state of mind. E.g., United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.1995). To be admissible under any theory, the prior act evidence must be “(1) relevant to an issue other than character; (2) necessary; and (3) reliable.” United States v. Siegel, 536 F.3d 306, 317 (4th Cir.2008) (quoting United States v. Wells, 163 F.3d 889, 895 (4th Cir.1998)). Evidence is necessary when it is “probative of an essential claim or an element of the offense,” Queen, 132 F.3d at 997, or when it “furnishes part of the context of the crime,” United States v. McBride, 676 F.3d 385, 398 (4th Cir.2012) (quoting Rawle, 845 F.2d at 1247 n. 4). Even so, a district court may exclude the proffered evidence “if its probative value is substantially outweighed by a danger of" }, { "docid": "22732099", "title": "", "text": "v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir.1993). On the other hand, we have also held that evidence of prior drug transactions was inadmissible to demonstrate intent in a prosecution for other drug transactions when the former transactions were unrelated to the charges contained in the indictment. See United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir.1992). And similarly, in United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir.1992), we held that a conviction for an earlier assault was inadmissible to show intent for a later charge of .assault even where the defendant had placed intent at issue by pleading self-defense to the later charge. These seemingly contradictory holdings have led to some confusion over what principles should be used to guide courts’ discretion in considering evidence under Rule 404(b).' Accordingly, it will be instructive to identify the dangers that Rule 404(b) was intended to avoid. The principal danger that Rule 404(b) targets is addressed by the language of the rule itself — that defendants not.be convicted simply for possessing bad character. See Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218-19, 93 L.Ed. 168 (1948) (explaining that propensity evidence is excluded because it might “overpersuade” a jury and cause them to “prejudge one with a bad general record”); Wigmore on Evidence § 58.2, at 1215 (Tillers rev.1983) (noting the concern courts have felt over “the overstrong tendency to believe the accused guilty of the charge merely because he is a likely person to do such acts”). This danger is compounded by the idea that juries might face defendants whom the government has brought forth merely because it has “rounded up the usual suspects” who have a history of prior bad acts. There are two other dangers that Rule 404(b) addresses. First, it protects against juries trying defendants for prior acts rather than charged acts, and guards against juries becoming confused by the purpose of the admitted acts and using the acts improperly in arriving at a verdict. See Michelson, 335 U.S. at 475-76, 69 S.Ct. at 218-19; Wigmore, supra, at 1215 (noting" }, { "docid": "22614454", "title": "", "text": "commit the charged offense. See United States v. Sanchez, 118 F.3d 192, 196 (4th Cir.1997) (holding that a not-guilty plea places defendant’s intent at issue and that evidence of similar prior crimes can thus be relevant to prove intent to commit charged crime); United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (explaining that “a defendant’s knowledge and intent are clearly elements which the prosecution must establish to prove a [narcotics] conspiracy”). Further, as the district court noted, although Cassandra’s testimony concerned events that were remote in time from the charged offense, the evidence was nonetheless probative because it involved prior drug transactions between White and Cassandra — both of whom were named as coconspirators in the present indictment. See Sanchez, 118 F.3d at 195 (explaining that evidence of earlier narcotics transactions between alleged coconspirators “show[ed] the relationships between the parties”). Moreover, the probative value of this evidence was not substantially outweighed by the danger that it would cause unfair prejudice. In light of the Government’s other compelling evidence that White was involved in the charged conspiracy and White’s admission of some prior drug dealing, we cannot say that the evidence concerning his prior dealings with Cassandra unfairly prejudiced the jury against him. And, any risk of such prejudice was mitigated by a limiting instruction from the district court clarifying the issues for which the jury could properly consider this evidence. See Hodge, 354 F.3d at 312. We therefore conclude that the district court did not abuse its discretion in admitting Cassandra’s testimony under Rule 404(b). White also contends, however, that the admission of Cassandra’s testimony violated Rule 608(b), which provides that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness ... may not be proved by extrinsic evidence.” White relies on United States v. Ling, 581 F.2d 1118 (4th Cir.1978), in which we reversed a defendant’s narcotics convictions because the district court had improperly permitted the Government to introduce testimony from a police officer rebutting the defendant’s testimony on cross-examination that he had never discharged a firearm" }, { "docid": "3679304", "title": "", "text": "January 14, 2008 transaction, McBride’s residence, and the club where the activities occurred on August 12, 2009. We note that, in other cases involving narcotics in which we have upheld the admission of prior “bad act” evidence, we have identified a linkage between the pri- or-act evidence and the drug crimes charged in the indictment. Compare Rawle, 845 F.2d at 1245-46,1248 (evidence of prior use of tractor trailers to transport marijuana from southern states to northeastern states was sufficiently linked to charged conduct of conspiracy to use tractor trailers to transport marijuana from southern states to northeastern states), and Cabrera-Beltran, 660 F.3d at 755 (“same drugs were sold in similar quantities and transported in a similar manner,” once even using the same vehicle), with Johnson, 617 F.3d at 298 (testimony held inadmissible that defendant sold drugs five years before the beginning of the conspiracy alleged in the indictment to persons unrelated to the conspiracy), and Hernandez, 975 F.2d at 1037-38, 1041 (testimony held inadmissible that six months before the conduct alleged in Washington-area drug distribution conspiracy case, the defendant stated she “knew a special recipe for cooking crack” because she used to “sell that in New York”). The type of linkage supporting admission of such evidence is notably absent in this case. Instead, the Blanding evidence is relevant primarily to establish McBride’s character as a “drug dealer.” This is the very type of evidence that the limitation imposed by Rule 404(b) was designed to exclude. See United States v. Sanders, 964 F.2d 295, 299 (4th Cir.1992). Similarly, the government’s argument regarding the “necessity” for Blanding’s testimony is not persuasive. The government correctly contends that McBride’s plea of not guilty required that the prosecution prove beyond a reasonable doubt each element of the crimes, including McBride’s intent. While this statement of the law is accurate, it does not provide a general license for the use of essentially unrelated prior “bad act” evidence. We have held that evidence is “necessary,” for purposes of establishing an exception under Rule 404(b), when that evidence “is an essential part of the crimes on trial” or" }, { "docid": "22828584", "title": "", "text": "that evidence of prior bad acts under Rule 404(b) is admissible when the following criteria are met: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence’s probative value must not be substantial ly outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process. Queen, 132 F.3d at 997. Johnson argues that Timpson’s testimony is not admissible under Rule 404(b) because the alleged prior drug transaction is not sufficiently related to the conspiracy charged such that it could be considered probative of intent or knowledge or necessary to prove those elements of the offense. The government counters that not only does Timpson’s testimony satisfy the four criteria outlined in Queen, but the district court also provided a limiting instruction in this case, which provided “additional protection against the pitfalls” of admitting the character evidence that the rule seeks to exclude. See Id. The meager protection afforded by the court’s limiting instruction, however, cannot outweigh the prejudice incurred by evidence that does not meet the mandate of the rule in the first instance. In order for evidence of prior drug transactions to be admissible in a drug conspiracy case, the prior acts must be relevant to the charged offense. Thus, we have repeatedly found that the prior act which is alleged to be probative of an element of the crime must be “sufficiently related to the charged offense.” Mark, 943 F.2d at 448 (internal quotation marks omitted) (quoting United States v. Rawle, 845 F.2d 1244, 1247 n. 3 (4th Cir.1988)); Hernandez, 975 F.2d at 1039. Therefore, the more closely the" }, { "docid": "17393816", "title": "", "text": "hand, we have construed Rule 404(b) to permit admission of “all evidence of other crimes or acts except that which tends to prove only criminal disposition.” United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.1995) (internal quotation marks omitted). On the other hand, we have construed Rule 403 to require exclusion of evidence as prejudicial “only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” Id. at 1467 (internal quotation marks omitted). Together, these theories require exclusion of prior bad act evidence only in rare and egregious circumstances. Indeed, we have consistently held that the admission of even highly prejudicial bad act evidence does not violate either rule. See, e.g., United States v. Branch, 537 F.3d 328, 341-42 (4th Cir.2008) (affirming admission of evidence of prior unrelated arrest and conviction for possession with intent to distribute cocaine base in trial for the same crime); United States v. Uzenski 434 F.3d 690, 710 (4th Cir.2006) (affirming admission of evidence of defendant’s teenage attempts to make pipe bombs in trial of defendant — now an adult — for manufacture of a pipe bomb); United States v. Hodge, 354 F.3d 305, 311—12 (4th Cir.2004) (affirming admission of evidence of prior unrelated drug transactions in trial for possession of cocaine with intent to distribute); United States v. Van Metre, 150 F.3d 339, 350-52 (4th Cir.1998) (affirming admission of evidence of a prior conviction for kidnapping and sexual assault in trial for separate act of unrelated kidnapping). In the face of this precedent, it is not at all surprising that a busy district judge, concerned with both justice and judicial economy, might find joinder permissible if evidence as to one count demonstrated likelihood to commit a crime charged in another count. Of course, as the majority explains, the law does not permit such joinder any more than it permits admission of propensity evidence." }, { "docid": "22614453", "title": "", "text": "admissible under Rule 404(b) if the evidence is (1) relevant to an issue other than the general character of the defendant, (2) “probative of an essential claim or an element of the offense,” and (3) reliable. United States v. Queen, 132 F.3d 991, 997 (4th Cir.1997). Additionally, the probative value of the evidence must not be substantially outweighed by the danger that it will cause unfair prejudice. See Fed.R.Evid. 403; Queen, 132 F.3d at 997. Here, White does not challenge the reliability of Cassandra’s testimony. Rather, he apparently contends that the testimony was irrelevant, unnecessary, and unfairly prejudicial. In particular, White argues that this evidence concerned events factually distinct and temporally remote from the charged conspiracy. We conclude, however, that the evidence of White’s prior drug sales to Cassandra was relevant and necessary. Contrary to White’s testimony that he had only dabbled in the drug trade for a brief period, Cassandra’s testimony tended to show that White had been a regular dealer of narcotics and therefore that he possessed the requisite knowledge and intent to commit the charged offense. See United States v. Sanchez, 118 F.3d 192, 196 (4th Cir.1997) (holding that a not-guilty plea places defendant’s intent at issue and that evidence of similar prior crimes can thus be relevant to prove intent to commit charged crime); United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (explaining that “a defendant’s knowledge and intent are clearly elements which the prosecution must establish to prove a [narcotics] conspiracy”). Further, as the district court noted, although Cassandra’s testimony concerned events that were remote in time from the charged offense, the evidence was nonetheless probative because it involved prior drug transactions between White and Cassandra — both of whom were named as coconspirators in the present indictment. See Sanchez, 118 F.3d at 195 (explaining that evidence of earlier narcotics transactions between alleged coconspirators “show[ed] the relationships between the parties”). Moreover, the probative value of this evidence was not substantially outweighed by the danger that it would cause unfair prejudice. In light of the Government’s other compelling evidence that White was involved in" }, { "docid": "15709525", "title": "", "text": "the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case”). D. Prior Act Evidence Over Holler’s objection, the district court admitted evidence of three prior illegal drug transactions involving Holler. The district court’s decision to admit evidence pursuant to Federal Rules of Evidence 403 and 404(b) is reviewed for abuse of discretion. United States v. Rubio-Villareal, 927 F.2d 1495, 1502 (9th Cir.1991), vacated in part and remanded on other grounds, 967 F.2d 294 (9th Cir.1992) (en banc). The issue of whether the evidence falls within the scope of Rule 404(b) is reviewed de novo. Id.; see also United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993). According to the four-part test applied in this circuit, prior act evidence is admissible if (1) it proves a material element of the charged offense; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the act; and (4) in cases where knowledge and intent are at issue, the act is similar to the offense charged. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th Cir.1995). Additionally, Federal Rule of Evidence 403 requires the district court to balance the probative value of the evidence against its prejudicial effect. Arambula-Ruiz, 987 F.2d at 604. To knowingly and intentionally possess contraband with the intent to distribute is a specific intent offense. See 21 U.S.C. § 841(a)(1). As we held in Arambula-Ruiz, defendant’s prior conviction for possession of contraband with the intent to distribute is relevant to a material element of conspiracy to possess contraband with the intent to distribute and attempted possession of contraband with the intent to distribute, “because it tends to show knowledge.” Arambula-Ruiz, 987 F.2d at 603; see United States v. Schmidt, 947 F.2d 362, 367 (9th Cir.1991) (knowledge of the objective of the conspiracy is an material element of any conspiracy conviction). Additionally, any error with respect to the admission of prior act evidence was harmless for two reasons. First, the judge gave a limiting instruction. See, e.g., United States v. Santa-Cruz, 48 F.3d" }, { "docid": "12951980", "title": "", "text": "discretion. This is satisfied by demonstrating that no reasonable person could take the view of the trial court. United States v. Hilgeford, 7 F.3d 1340, 1345 (7th Cir.1993). Evidence admitted over a Rule 404(b) objection must satisfy a four-part test. First, the evidence must be relevant to prove something other than character. Second, the act in question must be similar in nature and close in time to the crime. Third, the evidence of the prior act must be reliable. Finally, the probative value of the evidence must outweigh any undue prejudice caused by its admission. United States v. Goodapple, 958 F.2d 1402, 1406 (7th Cir.1992). Hernandez asserts that permitting Alvarez to testify as to Hernandez’s alleged prior smuggling activities did not meet the first of these criteria. This court discussed the admissibility of similar evidence in United States v. Goodapple, Id. The defendant in Goodapple objected to testimony from the government’s informant regarding prior drug transactions between him and the defendant. We held' that because the defendant raised an entrapment defense, evidence of prior bad acts was admissible under Rule 404(b) to prove the defendant’s predisposition. Id. We added that the evidence was also probative of the defendant’s specific intent to distribute. Id. at 1407. See also United States v. Parkin, 917 F.2d 313, 316 (7th Cir.1990) (prior drug transactions admissible to prove intent and predisposition in subsequent drug offense). Under the standard set forth in Goo-dapple, Hernandez’s statements were properly admitted. The record reveals that from the opemng statement on, all three defendants were relying on an entrapment defense. In the event the jury did not accept this argument, Hernandez, individually, also advanced the theory that his role was solely to act as a Spamsh interpreter for Kerley. He argued that the absence of criminal intent on his part required an acquittal. Hernandez’s statements about prior drug smuggling were admissible to rebut both these defenses. They demonstrated that Hernandez was more than just a stooge unwittingly caught in an overly zealous law enforcement sting operation. Hernandez’s statements and his offer to assist Alvarez in future operations suggest that he" }, { "docid": "22732098", "title": "", "text": "acts, we still review a district court’s determinations of the admissibility of evidence under Rule 404(b) for abuse of discretion, as we do generally for evidentiary rulings. See, e.g., United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986). Notwithstanding our test for application of Rule 404(b), the decisions applying the test to determine whether prior-act evidence is probative of intent appear to lack consistency, perhaps because the rule’s underlying principles are so elusive. For example, in United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991), we held that evidence of a defendant’s involvement in prior drug transactions was admissible to prove intent in later drug trafficking incidents. Similarly, in United States v. Bailey, 990 F.2d 119, 124 (4th Cir.1993), we held it permissible for a district court to admit a defendant’s prior acceptances of bribes in order to prove intent in a prosecution for vote-selling. Indeed, we have noted that “when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element.” Sparks v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir.1993). On the other hand, we have also held that evidence of prior drug transactions was inadmissible to demonstrate intent in a prosecution for other drug transactions when the former transactions were unrelated to the charges contained in the indictment. See United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir.1992). And similarly, in United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir.1992), we held that a conviction for an earlier assault was inadmissible to show intent for a later charge of .assault even where the defendant had placed intent at issue by pleading self-defense to the later charge. These seemingly contradictory holdings have led to some confusion over what principles should be used to guide courts’ discretion in considering evidence under Rule 404(b).' Accordingly, it will be instructive to identify the dangers that Rule 404(b) was intended to avoid. The principal danger that Rule 404(b) targets is addressed by the language of the rule itself — that defendants not.be convicted simply for possessing bad" }, { "docid": "3679297", "title": "", "text": "of McBride’s trial, Rule 404(b) provided, in relevant part; Other Crimes, Wrongs, or Acts.-Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident... . Fed.R.Evid. 404(b). The purposeful exclusion of such prior “bad act” evidence is not grounded in its irrelevance. Instead, the general inadmissibility of such evidence is based on the danger that this type of evidence will overly influence the finders of fact and thereby persuade them “to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Hernandez, 975 F.2d 1035, 1038 (4th Cir.1992). Although prior “bad act” evidence is inadmissible under Rule 404(b) to demonstrate a defendant’s bad character, such evidence is not always barred from the trial altogether. The Rule itself provides a number of exceptions allowing for the admission of prior “bad act” evidence, including evidence of “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, [and] absence of mistake or accident.” Fed.R.Evid. 404(b). As our cases illustrate, a trial court’s analysis of these competing considerations presents a continuing challenge. See United States v. Johnson, 617 F.3d 286, 296 (4th Cir.2010) (comparing United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991), which held that prior drug-transaction testimony in a drug conspiracy case was admissible under Rule 404(b), with Hernandez, 975 F.2d at 1040, which held that prior drug-transaction testimony in a drug conspiracy case was inadmissible under Rule 404(b)). Because the danger inherent in admitting prior “bad act” evidence is that it will be considered impermissibly as evidence of character, we have developed certain criteria governing admission of this type of evidence. We have provided a four-factor test for courts to consider when determining the admissibility of prior “bad acts” evidence: (1) The evidence must be" }, { "docid": "19551832", "title": "", "text": "nightclub incident, which occurred respectively six months and nearly two years before the crimes charged, was inadmissible under Federal Rule of Evidence 404(b). We disagree with Cowden's position. We review the admission of this evidence for abuse of discretion. United States v. Hodge , 354 F.3d 305, 312 (4th Cir. 2004). Rule 404(b) provides, in relevant part: Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with th[at] character. Fed. R. Evid. 404(b). Prior \"bad act\" evidence presents the risk that such evidence will unduly influence the jury and cause the jury \"to prejudge [a person] with a bad general record and deny him a fair opportunity to defend against a particular charge.\" Michelson v. United States , 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948) ; United States v. Hernandez , 975 F.2d 1035, 1038 (4th Cir. 1992). Although prior \"bad act\" evidence is inadmissible under Rule 404(b) for purposes of establishing a defendant's bad character, such evidence is not always barred. The evidence may be admitted under one of several exceptions in Rule 404(b), as \"proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\" Fed. R. Evid. 404(b). When one of these exceptions is applicable, two additional requirements guard against misuse of the evidence. First, the government may provide the criminal defendant notice of its intent to introduce such evidence. See United States v. Queen , 132 F.3d 991, 997 (4th Cir. 1997). And, second, the district court may give the jury a limiting instruction explaining the narrow purpose for which the prior \"bad act\" evidence may be considered. Id. In light of the competing considerations underlying Rule 404(b), we apply a four-factor test in evaluating whether a district court abused its discretion in admitting prior \"bad act\" evidence: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant." }, { "docid": "23439762", "title": "", "text": "404(b). Under Rule 404(b), [e]videnee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). Rule 404(b) is “an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition.” United States v. Young, 248 F.3d 260, 271-72 (4th Cir.2001) (internal quotation marks omitted). “To be admissible under Rule 404(b), prior bad acts evidence ... must be relevant to an issue other than character, ... necessary to prove an element of the crime charged, ... [and] reliable.” United States v. Blauvelt, 638 F.3d 281, 292 (4th Cir.2011). Finally, the “probative value [of the evidence] must not be substantially outweighed by its prejudicial nature.” Id. (emphasis in original). We review the admission of such “bad acts” evidence for abuse of discretion. See United States v. Hadaway, 681 F.2d 214, 217 (4th Cir.1982). However, because “[judgments of evidentiary relevance and prejudice are fundamentally a matter of trial management, ... we will not vacate a conviction unless we find that the district court judge acted arbitrarily or irrationally in admitting evidence.” United States v. Benkahla, 530 F.3d 300, 309 (4th Cir.2008) (internal quotation marks omitted). The district court did not clarify the basis under Rule 404(b) upon which it was admitting the evidence. However, “we may sustain the admission of such evidence on any viable theory.” Blauvelt, 638 F.3d at 292. The government submits that the testimony is relevant to prove knowledge and intent. We agree. In drug cases, evidence of a defendant’s prior, similar drug transactions is generally admissible under Rule 404(b) as evidence of the defendant’s knowledge and intent. See, e.g., United States v. Branch, 537 F.3d 328, 341-42 (4th Cir.2008) (admitting evidence of prior arrest and conviction for possession with intent to distribute cocaine in subsequent prosecution for, inter alia, the same offense); United States v. Hodge, 354 F.3d 305, 312" }, { "docid": "23439763", "title": "", "text": "F.2d 214, 217 (4th Cir.1982). However, because “[judgments of evidentiary relevance and prejudice are fundamentally a matter of trial management, ... we will not vacate a conviction unless we find that the district court judge acted arbitrarily or irrationally in admitting evidence.” United States v. Benkahla, 530 F.3d 300, 309 (4th Cir.2008) (internal quotation marks omitted). The district court did not clarify the basis under Rule 404(b) upon which it was admitting the evidence. However, “we may sustain the admission of such evidence on any viable theory.” Blauvelt, 638 F.3d at 292. The government submits that the testimony is relevant to prove knowledge and intent. We agree. In drug cases, evidence of a defendant’s prior, similar drug transactions is generally admissible under Rule 404(b) as evidence of the defendant’s knowledge and intent. See, e.g., United States v. Branch, 537 F.3d 328, 341-42 (4th Cir.2008) (admitting evidence of prior arrest and conviction for possession with intent to distribute cocaine in subsequent prosecution for, inter alia, the same offense); United States v. Hodge, 354 F.3d 305, 312 (4th Cir.2004) (admitting evidence of prior possession and sale of cocaine in subsequent prosecution for, inter alia, possession of cocaine with intent to distribute). Here, the conduct charged in the indictment is exceedingly similar to the conduct about which Salgado testified: the same drugs were sold in similar quantities and transported in a similar manner, even allegedly using the same car in one instance. Because the evidence helped establish the existence of a continuing distribution scheme, it was admissible under Rule 404(b). See Hodge, 354 F.3d at 312 (“[T]he evidence of [a defendant’s prior] drug transactions was relevant and necessary in that it tended to show the existence of a continuing narcotics business.... ”); United States v. Sanchez, 118 F.3d 192, 196 (4th Cir.1997) (“A not-guilty plea puts one’s intent at issue and thereby makes relevant evidence of similar prior crimes when that evidence proves criminal intent.” (emphasis added)). Accordingly, rather than being admitted for an impermissible purpose, Salgado’s testimony served to “prove [the defendant’s] knowledge of the drug trade and suggest that he was" }, { "docid": "22732097", "title": "", "text": "of earlier specific states of mind from proving a later similar state of mind. Thus, just as Federal Rule of Evidence 406 recognizes the probative value of repetitive conduct, authorizing the admission of evidence about habit and routine practice, Rule 404(b) recognizes the probative value of willful states of mind. However, because of the complex and difficult distinction between evidence of character and evidence of, for example, intent or motive, the broad discretion generally given to trial judges in regulating the admissibility of evidence is, under Rule 404(b), more restricted. Thus, we have articulated a four-prong test of admissibility for prior-act evidence: (1) the prior-act evidence must be relevant to an issue other than character, such as’ intent; (2) it must be necessary to prove an element of the crime charged; (3) it must be reliable; and (4) as required by Federal Rule of Evidence 403, its probative value must not be “substantially outweighed” by its prejudicial nature. See, e.g., Rawle, 845 F.2d at 1247. Notwithstanding the greater care required in admitting evidence of prior acts, we still review a district court’s determinations of the admissibility of evidence under Rule 404(b) for abuse of discretion, as we do generally for evidentiary rulings. See, e.g., United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986). Notwithstanding our test for application of Rule 404(b), the decisions applying the test to determine whether prior-act evidence is probative of intent appear to lack consistency, perhaps because the rule’s underlying principles are so elusive. For example, in United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991), we held that evidence of a defendant’s involvement in prior drug transactions was admissible to prove intent in later drug trafficking incidents. Similarly, in United States v. Bailey, 990 F.2d 119, 124 (4th Cir.1993), we held it permissible for a district court to admit a defendant’s prior acceptances of bribes in order to prove intent in a prosecution for vote-selling. Indeed, we have noted that “when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element.” Sparks" }, { "docid": "23081510", "title": "", "text": "involved in the charged conspiracy. Therefore, he argues, both pieces of evidence should have been excluded under Rule 404(b). We hold that the district court did not abuse its discretion in admitting the contested evidence at Sanchez’s trial. See United States v. Mark, 943 F.2d 444, 447 (4th Cir.1991) (employing the abuse of discretion standard of review for admissibility of “other acts” evidence). Rule 404(b) provides: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. We have long treated 404(b) as an inclusionary rule, permitting introduction of all evidence except that which proves only criminal disposition. See Mark, 943 F.2d at 447. We have also made clear that 404(b)’s specific list of acceptable grounds for admission of evidence is not exhaustive. See United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988). Rather, evidence is admissible under 404(b) if it is “(1) relevant to an issue other than character, (2) necessary, and (3) rehable.” Id.; see also Mark, 943 F.2d at 447. In this ease, given our very inclusive interpretation of Rule 404(b), the contested pieces of evidence easily satisfy the test for admissibility on several grounds. Sanchez’s prior dealings with Espinosa prove his knowledge of the drug trade and suggest that he was an intentional, rather than unwitting, participant in the conspiracy. The early drug deals also establish the mechanics of the indicted conspiracy and show the relationships between the parties. Similarly, the cocaine found near Sanchez at the time of his arrest is relevant to his knowledge of the drug trade and the mechanics" }, { "docid": "22828582", "title": "", "text": "law enforcement officer with no criminal record, against that of a convicted drug dealer and two co-defendants with long rap sheets. Where Agent Smith’s testimony buttressed evidence against Johnson that was otherwise weak, “we cannot conclude that the evidence was unimportant or was not a substantial factor in the jury’s verdict.” United States v. Grinage, 390 F.3d 746, 751 (2nd Cir.2004); see also Peoples, 250 F.3d at 642 (holding the Rule 701 error was not harmless where the jury may have found the testimony of a co-conspirator “inadequate to support a guilty verdict beyond a reasonable doubt had it not been buttressed by [the agent’s] supporting information and opinions.”). We thus cannot find that admission of Agent Smith’s testimony was harmless where it bolstered the scant, conflicting, and not entirely credible evidence against Johnson. III. Johnson next argues that Timpson’s testimony was not properly admitted under Rule 404(b) because it was not relevant to nor necessary to prove Johnson’s intent or knowledge in the case. He further argues that this error was not harmless due to the paucity of evidence before the court linking him to the conspiracy. We agree. A. Rule Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ... Fed.R.Evid. 404(b). Our Circuit’s jurisprudence concerning the application of Rule 404(b) has evolved by addressing the tension in cases involving evidence of prior drug transactions. Compare United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (holding evidence of prior drug-transaction testimony admissible under Rule 404(b) to prove knowledge and intent in drug conspiracy case) with United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir.1992) (holding prior drug-transaction testimony inadmissible under Rule 404(b) in drug conspiracy case). As a result we endeavored to further clarify “the rule’s [elusive] underlying principles” in United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997). We held" } ]

[ { "docid": "13562205", "title": "", "text": "in a monopoly to the plaintiff, preventing any other person from entering the field and, through his own efforts and the expenditure of time and money in advertising, etc., building up a business of supplying to moving picture houses, and others, advertising trailers, registration book cards, and other matter used in connection with a system so as to bring about a drawing and award. As said in Chadwick v. Covell, 151 Mass, 190, 191, 23 N.E. 1068, 6 L.R.A. 839, 21 Am.St.Rep. 442, and paraphrasing: “So far as the right to manufacture and sell the medicines [to exhibit in accordance with the system] goes, the plaintiff’s case may be disposed of in a few words. Dr. Spencer [plaintiff] had no exclusive right to the use of his formulas [its system], His [its] only right was to prevent any one from obtaining or using them [the system] through a breach of trust or contract. Any one who came honestly to the knowledge of them [the system] could use them [it] without Dr. Spencer’s [plaintiff’s] permission, and against his [its] will.” See, also, Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc. (C.C.A.) 64 F.(2d) 575. However good and valuable an idea, plan, scheme, or system is, the moment it is disclosed to the public without the protection of a patent, it becomes public property, and the fact that it has been made popular by advertising and the expenditure of effort, time, and money on the part of the originator does not alter the situation. As the system has not been copyrighted and, being in no sense a writing, could not be (Constitution, art. 1, § 8, cl. 8; 17 U.S.C. § 4 [17 U.S.C.A. § 4]) and has not been patented, if it could be, we are constrained to hold that, although plaintiff has expended time and money in originating and developing a system, it has no property right therein which has been appropriated by the defendants. While the plaintiff restricts operating under the system to its licensees, by its very nature, in order for it to operate, knowledge thereof must be" } ]

[ { "docid": "23547327", "title": "", "text": "requires that all elements of each card, including text, arrangement of text, art work, and association between art work and text, be considered as a whole. Considering all of these elements together, the Roth cards are, in our opinion, both original and copyrightable. In reaching this conclusion we recognize that copyright protection is not available for ideas, but only for the tangible expression of ideas. Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 98 L.Ed. 630 (1954). We conclude that each of Roth’s cards, considered as a whole, represents a tangible expression of an idea and that such expression was, in totality, created by Roth. See Dorsey v. Old Surety Life Ins. Co., 98 F.2d 872, 873 (10th Cir. 1938). This brings us to the question of infringement. Greeting cards are protected under 17 U.S.C. § 5(a) or (k) as a book, Jackson v. Quickslip Co., Inc., 110 F.2d 731 (2d Cir. 1940), or as a print, 37 C.F.R. § 202.14. They are the embodiment of humor, praise, regret or some other message in a pictorial and literary arrangement. As proper subjects of copyright, they are susceptible to infringement in violation of the Act. Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940). To constitute an infringement under the Act there must be substantial similarity between the infringing work and the work copyrighted; and that similarity must have been caused by the defendant’s having copied the copyright holder’s creation. The protection is thus against copying — not against any possible infringement caused when an independently created work coincidentally duplicates copyrighted material. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936). It appears to us that in total concept and feel the cards of United are the same as the copyrighted cards of Roth. With the possible exception of one United card (exhibit 6), the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card are substantially the same" }, { "docid": "12682912", "title": "", "text": "Plaintiffs are the owners of copyrights to twenty-five of the fifty-seven songs. However, no music was provided in the songbook. It has been stipulated that the “Mad” lyrics have the same meter as plaintiffs’ lyrics, and can be sung to the music of plaintiffs’ songs. The subject matter of defendants’ lyrics, however, is completely different from that of plaintiffs’. For example, to the tune of “I’ve Got You Under My Skin”, defendants have written a lyric about fraternity hazing entitled “I Swat You Hard on the Skin.” To the tune of “A Pretty Girl Is Like a Melody”, the defendants have written “Louella Schwartz Describes Her Malady”. To “The Last Time I Saw Paris”, defendants write of the rewards earned by a baseball player who sponsors razor blades and beer in “The Last Time I Saw Maris”. It has been further stipulated that plaintiffs “are the proprietors of, or are possessed of all rights under,” valid and subsisting copyrights in the songs which are the subject matter of the action, and that plaintiffs never gave any authorization, permission, consent or license to any of the defendants for the making, publishing or distribution of the lyrics in the “Mad” songbook. Plaintiffs contend that defendants’ lyrics are “a counterpart” of the lyrics of plaintiffs’ musical compositions. Infringement occurs when the accused work is a colorable copy or paraphrase of the copyrighted work. The copying must be visible by the ordinary observer, and must be of a substantial portion of the protected work. Wihtol v. Wells, 231 F.2d 550 (7th Cir. 1956); Ansehl v. Puritan Pharmaceutical Co., 61 F.2d 131 (8th Cir.), cert. denied, 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374 (1932); Peter Pan Fabrics, Inc. v. Acadia Co., 173 F.Supp. 292, 301 (S.D.N.Y.1959), aff’d, 274 F.2d 487 (2d Cir. 1960). In Harold Lloyd Corp. v. Witwer, 65 F.2d 1 (9th Cir.), appeal dismissed per stipulation, 296 U.S. 669, 54 S.Ct. 94, 78 L.Ed. 1507 (1933), the court quoted from Justice Story that the true test of piracy is whether defendant used plaintiff’s plan as a model, with colorable alterations, or" }, { "docid": "9629540", "title": "", "text": "82 F. 316, 317-319; National Tel. News Co. v. Western Union Tel. Co., 7 Cir., 119 F. 294, 297, 60 L.R.A. 805; Metro-Goldwyn-Mayer D. Corporation v. Bijou Theatre, 1 Cir., 59 F.2d 70; Clayton v. Stone, C.C.S.D.N.Y., Fed.Cas.No.2872, 5 Fed.Cas. 999, 1003. Perhaps Congress could grant monopolies for non-useful and non-original material if Congress based its authority to do so on the constitutional interstate ■commerce power. Cf. Picard v. United Aircraft Corporation, 2 Cir., 128 F.2d 632, 643 n. 22. But we need not consider that question here, for Congress has not so acted. Cf. “The right secured by a copyright is * * * the right to that arrangement of words which the author has selected to express his ideas Tand not] * * * the right to employ ideas expressed thereby.” Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 873, 119 A.L.R. 1250; Kaeser & Blair, Inc. v. Merchants Ass’n, Inc., 6 Cir., 64 F.2d 575, 577. It is not easy to ascertain what is intended and what inadvertent in the work of genius: That a man is colorblind may make him a master of black and white art; a painter’s unique distortions, hailed as a sign of his genius, may be due to defective muscles. Consider the great scientific discoveries— such as the X-ray and the galvanic circuit — which resulted from accidents. Higgins v. Keuffel, supra; National Tel. News Co. v. Western Union Tel. Co., supra; General Drafting Co., Inc. v. Andrews, 2 Cir., 37 F.2d 54; Andrews v. Guenther Pub. Co., D.C.S.D.N.Y., 60 F.2d 555." }, { "docid": "17193115", "title": "", "text": "PHILLIPS, Circuit Judge. Dorsey brought this suit against Old Surety Life Insurance Company, hereinafter called Insurance Company, for alleged infringement of copyrights on three forms of life insurance policies, seeking an injunction against future infringements and damages for alleged past infringements. In his hill Dorsey alleged that he is the originator and author of three types of insurance policies, denominated “Family Group Life Insurance Policy,” “Family Group Policy,” and “Reserve Loan Life Insurance Co. Policy Family Group”; that copyrights covering such policies were duly granted to him in October, 1927, November, 1928, and September, 1930, respectively, and that he is now the owner of such copyrights; that such policies were composed, edited, prepared, arranged, and compiled by him at great expense after extended research and as a result of more than thirty years of actuarial and sales experience in the life insurance field; that such publications are of the value of $100,000; that commencing on a date unknown to him and continuing until on or about July'28, 1936, the Insurance Company had without license, leave, right, or authority knowingly published, issued, and sold certain insurance policies denominated “Family Group Policy” which infringed vital portions of Dorsey’s copyrighted publications. The bill sets out the parts of the copyrighted forms alleged to be infringed and the parts of the Insurance Company’s policies alleged to infringe them. The trial court sustained a motion to dismiss the bill and entered its decree dismissing the suit. Dorsey has appealed. The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas. In Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577, the court said: “It has been frequently held that the copyright law does not afford protection' against the use of an idea, but only as to the means by which the idea is expressed.” It follows that Dorsey’s copyrights in nowise restricted the right of the Insurance Company" }, { "docid": "12682913", "title": "", "text": "any authorization, permission, consent or license to any of the defendants for the making, publishing or distribution of the lyrics in the “Mad” songbook. Plaintiffs contend that defendants’ lyrics are “a counterpart” of the lyrics of plaintiffs’ musical compositions. Infringement occurs when the accused work is a colorable copy or paraphrase of the copyrighted work. The copying must be visible by the ordinary observer, and must be of a substantial portion of the protected work. Wihtol v. Wells, 231 F.2d 550 (7th Cir. 1956); Ansehl v. Puritan Pharmaceutical Co., 61 F.2d 131 (8th Cir.), cert. denied, 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374 (1932); Peter Pan Fabrics, Inc. v. Acadia Co., 173 F.Supp. 292, 301 (S.D.N.Y.1959), aff’d, 274 F.2d 487 (2d Cir. 1960). In Harold Lloyd Corp. v. Witwer, 65 F.2d 1 (9th Cir.), appeal dismissed per stipulation, 296 U.S. 669, 54 S.Ct. 94, 78 L.Ed. 1507 (1933), the court quoted from Justice Story that the true test of piracy is whether defendant used plaintiff’s plan as a model, with colorable alterations, or whether defendant’s item is a product of his own labor, that is, whether defendant’s book is “a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.” 65 F.2d at 17. It is obvious that defendants’ lyrics have little in common with plaintiffs’ but meter and a few words, except in two instances which will be discussed below. Defendants have created original, ingenious lyrics on subjects completely dissimilar from those of plaintiffs’ songs. Much has been made by both plaintiffs and defendants of the parody cases. It is clear that a parody of a copyrighted work is an infringement of the copyright. Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Hill v. Whalen & Martell, 220 Fed. 359 (S.D.N.Y.1914). A parody is “A writing in which the language and style of an author, or poem, or other work, is closely imitated or mimicked.” Webster’s New International Dictionary (2d ed. 1960). Defendants have" }, { "docid": "15413547", "title": "", "text": "identical phrasing are, alone, probably not enough to support a claim of infringement. However, to constitute an infringement of copyright, the infringing composition need not be identical with the infringed; paraphrasing is an infringement. Warner Bros. Pictures v. C. B. S., (9 Cir., 1954) 216 F.2d 945; Ansehl v. Puritan Pharm. Co., (8 Cir., 1932) 61 F.2d 131, cert. den. 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 574; Borden v. General Motors Corp., (S.D.N.Y.1939) 28 F.Supp. 330. Merwin’s article was in large part a paraphrase of portions of the plaintiff’s book, “Mammy Pleasant’s Partner”. Merwin extracted therefrom numerous passages which, though synonyms for certain words are substituted and certain phrases rearranged, are otherwise unchanged in form. In the ordinary case, applying the principles set out above, copyright infringement would be apparent. However, the concept of “fair use” has been established and applied in cases involving scientific, medical and historical materials. If Merwin’s use of the plaintiff’s book (which the plaintiff claimed to be a serious, historically sound work) was a “fair use”, then there has been no actionable infringement. “Fair use” may be defined as a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent. Though technically an infringement of copyright, it is allowed by law on the ground that the appropriation is reasonable and customary. Toksvig v. Bruce Publ’g. Co., supra; Loew’s Inc. v. C. B. S., (S.D.Cal.1955) 131 F.Supp. 165. Whether or not the defendant’s use was a “fair use” is a matter of fact. Eisenschiml v. Fawcett Publications, supra; Mathews Conveyor Co. v. Palmer-Bee Co. (6 Cir., 1943), 135 F.2d 73. Some use of the plaintiff’s book as a source for an article on Mammy Pleasant as an historical personage could certainly be termed “fair”. But not only is Merwin’s article based in large part, on “Mammy Pleasant’s Partner”, it mirrors the manner and style in which the plaintiff chose to set down the factual and historical material she used, and to express her thoughts and conclusions. Such an extensive use is well outside" }, { "docid": "21349902", "title": "", "text": "the book notwithstanding the fact that the court had in its mind this bill of particulars, which, in some respects, was factual and in others argumentative, similarities pointed out by Mr. Kustoff, some of which exist and which I will later on discuss either generally or in more detail, but the picture as a whole to the court, with the psychology or suggestion of the bill of particulars in its mind or part of the bill of particulars, did not present to the judge of th:s court any definite, fixed view that it was copied from the work in question, Mr. KustofFs work: ‘Against Gray Walls or Lawyer’s Dramatic Escapes’.” Appellant contends that the court should have found that appellees read his book and copied their film therefrom. From the direct evidence no finding reasonably could have been made that appellees, or any of them, read the book; and the court properly refused to make such finding from the testimony, a summary of which hereinbefore has been set out. Assuming, however, that said finding indicating access, and based on the circumstantial evidence, means that appellees did read the book before or in the course of production of the motion picture, this, of itself, avails appellant nothing. Reading, alone, is not sufficient to show infringement. In order to prove infringement there must have been copying of a substantial portion of the copyrighted work. Such copying is essential to recovery in an action for infringement of a copyright. Perris v. Hexamer, 99 U.S. 674, 675, 676, 25 L.Ed. 308; Oxford Book Co. v. College Entrance Book Co., 2 Cir., 98 F.2d 688, 692; Carr v. National Capital Press, 63 App.D.C. 210, 71 F.2d 220; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 137, certiorari denied, 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374; Frankel v. Irwin, D.C., 34 F.2d 142, 143; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691; Eggers v. Sun Sales Corp., 2 Cir., 263 F. 373, 375; Springer Lithographing Co. v. Falk, 2 Cir., 59 F. 707, 712, writ of error dismissed 17 S.Ct. 998," }, { "docid": "17193119", "title": "", "text": "the family group provisions in the copyrighted policies. There is no more similarity than might naturally be expected in policies embracing the same plan of insurance and incorporating like contractual provisions. There can be no doubt, that the Insurance Company is free to make contracts embracing like contractual provisions as those included in the copyrighted policies and to use suitable words to express the provisions of such contracts so long as it does not copy the particular means of expression originated by Dorsey. A copyright upon a form of contractual. provision should not be construed so, as to impinge upon the natural right of persons to make contracts containing the same, contractual provisions and creating like contractual .rights and obligations, and similarity of expression should not be held to constitute infringement in such cases. Necessarily, where the same contractual .provision is to be expressed there will be similarity of language. To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted materia} should be required. See Brightley v. Littleton, C.C.Pa., 37 F. 103, 104. Hence, we think the trial court was fully warranted in holding upon the face of the bill that the policies of.the Insurance Company did not infringe Dorsey’s copyrighted forms. The decree- is affirmed. Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904; Hartfield v. Peterson, 2 Cir., 91 F.2d 998, 999; Guthrie v. Curlett, 2 Cir., 36 F.2d 694, 696; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 137, 138; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 25; Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691. See, also, Affiliated Enterprises, Inc., v. Gantz, 10 Cir., 86 F.2d 597, 598, and Affiliated Enterprises, Inc., v. Gruber, 1 Cir., 86 F.2d 958, 961. American Code Co., Inc., v. Bensinger, 2 Cir., 282 F. 829, 834; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 23." }, { "docid": "4692224", "title": "", "text": "the degree of protection afforded by the copyright is measured by what is actually copyrighted in the publication and not by the entire publication.” Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 873, 119 A.L.R. 1250. “Originality” in the above context means that the material added to what is in the public domain, must have aspects of “novelty” and be something more than a trivial addition or variation. Cf. Chamberlin v. Uris Sales Corporation, 2 Cir., 150 F.2d 512. If what is added does not itself give some value to a public domain composition, or serve some purpose other than to merely emphasize what is present and subsisting in the public domain, it is not entitled to copyright. Cf. Norden v. Oliver Ditson Co., Inc., D.C., 13 F.Supp. 415. In other words, if all that an author of a musical composition does is to add a mechanical application of sound to a word that is itself not copyrightable, and adds the same to a descriptive phrase already dedicated to the public domain, without the use of even the most simple harmonious chords, he has no musical composition subject to copyright. Cf. Shapiro, Bernstein & Co., Inc. v. Miracle Record Co., Inc., D.C., 91 F.Supp. 473. Any skilled or unskilled musician might readily make or produce such a composition. It was not the intent of the Congress that such matters would be the subject of copyright. With the above in mind, what did the plaintiff here do to sustain a claim of copyright? To a descriptive phrase, (Time for Muehlebach) admittedly in the public domain by dedication by defendant, he added “Tic Toe” and scaled such addition and phrase to two notes in the commonest scale of music at the tempo of a clock, to produce the background sound- of a clock ticking, for a jingle. That the music claimed for his jingle is too simple to be copyrightable, that it is a mere copy of what has been in the public domain of all music for centuries, and that it may be reproduced, mechanically, by a" }, { "docid": "23698915", "title": "", "text": "an entrant and may qualify for a prize. “Use the correct Social Security number, belonging to the person named on the entry — wrong numbers will be disqualified.” (Defendant’s Rule) The district court, following an earlier decision, Gaye v. Gillis, D.Mass., 1958, 167 F.Supp. 416, took the position that since the substance of the contest was not copyrightable, which is unquestionably correct, Baker v. Selden, 1879, 101 U.S. 99, 25 L.Ed. 841; Affiliated Enterprises v. Gruber, 1 Cir., 1936, 86 F.2d 958; Chamberlin v. Uris Sales Corp., 2 Cir., 1945, 150 F.2d 512, and the substance was relatively simple, it must follow that plaintiff’s rule sprung directly from the substance and “contains no original creative authorship.” 262 F.Supp. at 738. This does not follow. Copyright attaches to form of expression, and defendant’s own proof, introduced to deluge the court on the issue of access, itself established that there was more than one way of expressing even this simple substance. Nor, in view of the almost precise similarity of the two rules, could defendant successfully invoke the principle of a stringent standard for showing infringement which some courts apply when the subject matter involved admits of little variation in form of expression. E. g., Dorsey v. Old Surety Life Ins. Co., 10 Cir., 1938, 98 F.2d 872, 874, 119 A.L.R. 1250 (“a showing of appropriation in the exact form or substantially so.”); Continental Casualty Co. v. Beardsley, 2 Cir., 1958, 253 F.2d 702, 705, cert. denied, 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 (“a stiff standard for proof of infringement.”). Nonetheless, we must hold for the defendant. When the uncopyrightable subject matter is very narrow, so that “the topic necessarily requires,” Sampson & Murdock Co. v. Seaver-Radford Co., 1 Cir., 1905, 140 F. 539, 541; cf. Kaplan, An Unhurried View of Copyright, 64-65 (1967), if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. In such circumstances it does" }, { "docid": "17193116", "title": "", "text": "right, or authority knowingly published, issued, and sold certain insurance policies denominated “Family Group Policy” which infringed vital portions of Dorsey’s copyrighted publications. The bill sets out the parts of the copyrighted forms alleged to be infringed and the parts of the Insurance Company’s policies alleged to infringe them. The trial court sustained a motion to dismiss the bill and entered its decree dismissing the suit. Dorsey has appealed. The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas. In Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577, the court said: “It has been frequently held that the copyright law does not afford protection' against the use of an idea, but only as to the means by which the idea is expressed.” It follows that Dorsey’s copyrights in nowise restricted the right of the Insurance Company to use the plans of insurance embraced in the copyrighted policies. They only restricted the use or copying of the means of expression selected by Dorsey to the extent that such means were original with Dorsey. To be copyrightable a work must be original in that the author has created it by his own skill, labor, and judgment. If he takes matter which has been dedicated to the public by publication without copyright and adds thereto materials which are the result of. his own efforts a copyright thereon is not void, but is valid as to the new and original matter. However, the degree of protection afforded by the copyright is measured by what is actually, copyrightable in the publication and not by the entire publication. Insurance policies were old at the time Dorsey’s copyrights were granted. Standard provisions had been worked out through long'study and experience. Many of such standard provisions are now inserted in life insurance policies pursuant to statutory requirement. Oklahoma requires that certain provisions be included in each policy of life" }, { "docid": "4692223", "title": "", "text": "hearers; they are not a ‘composite’ work, like the articles in an encyclopedia, but are as little separable for purposes of copyright as are the individual musical notes which constitute the melody.” Hence plaintiff’s jingle, as a subject of copyright, should be considered as a single original work from the standpoint of its melody and lyrics, and not disjointedly, nor from the standpoint of the intellectual conception thereby expressed. If, however, a song or jingle as a whole is subject to copyright, then plagiarism of any substantial component part would, of course, constitute copyright infringement. Section 3, Title 17 U.S.C.A.; Fred Fisher, Inc., v. Dillingham, D.C., 298 F. 145. “To be copyrightable a work must be original in that the author has created it by his own skill, labor, and judgment. If he takes matter which has been dedicated to the public by publication without copyright and adds thereto materials which are the result of his own efforts a copyright thereon is not void, but is valid as to the new and original matter. However, the degree of protection afforded by the copyright is measured by what is actually copyrighted in the publication and not by the entire publication.” Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 873, 119 A.L.R. 1250. “Originality” in the above context means that the material added to what is in the public domain, must have aspects of “novelty” and be something more than a trivial addition or variation. Cf. Chamberlin v. Uris Sales Corporation, 2 Cir., 150 F.2d 512. If what is added does not itself give some value to a public domain composition, or serve some purpose other than to merely emphasize what is present and subsisting in the public domain, it is not entitled to copyright. Cf. Norden v. Oliver Ditson Co., Inc., D.C., 13 F.Supp. 415. In other words, if all that an author of a musical composition does is to add a mechanical application of sound to a word that is itself not copyrightable, and adds the same to a descriptive phrase already dedicated to the public" }, { "docid": "9629539", "title": "", "text": "copying which he perceived to add distinctiveness to the product, he might perhaps obtain a valid copyright on his copy, although the question would then arise whether originality is precluded by lack of intention. That question we need not consider. For plaintiff’s error yields nothing new of substance or distinction. Without originality, his drawing, if it stood alone, could not be the subject of a valid copyright. We assume, arguendo, that that fact does not invalidate the entire copyright. But since the only copying here was of that portion of the subject matter which, standing alone, could not validlv be copyrighted, we hold there is no infringement. Judgment affirmed. Pennock v. Dialogue, 2 Pet. 1, 16, 7 L.Ed. 327; Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59, 4 S.Ct. 279, 28 L.Ed. 349; Higgins v. Keuffel, 140 U.S. 428, 430, 11 S.Ct. 731, 35 L.Ed. 470; Harlan, J., dissenting in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 252, 23 S.Ct. 298, 47 L.Ed. 460; J. L. Mott Iron Works v. Clow, 7 Cir., 82 F. 316, 317-319; National Tel. News Co. v. Western Union Tel. Co., 7 Cir., 119 F. 294, 297, 60 L.R.A. 805; Metro-Goldwyn-Mayer D. Corporation v. Bijou Theatre, 1 Cir., 59 F.2d 70; Clayton v. Stone, C.C.S.D.N.Y., Fed.Cas.No.2872, 5 Fed.Cas. 999, 1003. Perhaps Congress could grant monopolies for non-useful and non-original material if Congress based its authority to do so on the constitutional interstate ■commerce power. Cf. Picard v. United Aircraft Corporation, 2 Cir., 128 F.2d 632, 643 n. 22. But we need not consider that question here, for Congress has not so acted. Cf. “The right secured by a copyright is * * * the right to that arrangement of words which the author has selected to express his ideas Tand not] * * * the right to employ ideas expressed thereby.” Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 873, 119 A.L.R. 1250; Kaeser & Blair, Inc. v. Merchants Ass’n, Inc., 6 Cir., 64 F.2d 575, 577. It is not easy to ascertain what is intended and what inadvertent" }, { "docid": "521111", "title": "", "text": "L.Ed. 630; Ricker v. General Electric Co., 2 Cir., 1947, 162 F.2d 141. “Originality” in the realm of copyright refers to the form of the expression, and not to the novelty of the subject matter. Chamberlin v. Uris Sales Corporation, 2 Cir., 1945, 150 F.2d 512; Silvers v. Russell, D.C.S.D.Cal.1953, 113 F.Supp. 119. This is necessarily so because a copyright protects only the expression of the idea, not the idea itself. Mazer v. Stein, 1954, 347 U.S. 201, 74 S. Ct. 460, 98 L.Ed. 630; Kalem Co. v. Harper Bros., 1911, 222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92; Holmes v. Hurst, 1899, 174 U.S. 82, 19 S.Ct. 606, 43 L.Ed. 904; Kaeser & Blair, Inc., v. Merchants’ Ass’n, 6 Cir., 1933, 64 F.2d 575. The fact that a copyrighted article depicts a figure, theme or idea in the public domain, does not in itself void the copyright. Rather, the test of copyrightability must be the form which the author has used to express the figure, idea or theme. In the instant case, plaintiffs have reproduced the familiar figure of Santa Claus in a three-dimensional, plastic form. Therefore, the question is whether this medium of expression is sufficiently original to support the granting of the copyright. To be copyrightable, a work must be “original” in that the author has created it by his own skill, labor and judgment. Dorsey v. Old Surety Life Ins. Co., 10 Cir., 1938, 98 F.2d 872, 119 A.L.R. 1250; Smith v. George E. Muehlebach Brewing Co., D.C.W.D.Mo.1956, 140 F. Supp. 729. As stated in Alfred Bell & Co. v. Catalda Fine Arts, 2 Cir., 1951, 191 F.2d 99, 102. “ * * * ‘Original’ in reference to a copyrighted work means that the particular work ‘owes its origin’ to the ‘author.’ No large measure of novelty is necessary. * * * “ * * * All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’ Originality in this context ‘means little more than a prohibition of" }, { "docid": "17033281", "title": "", "text": "plaintiffs’ copyrighted property. This the defendants impliedly, though not in so many words, con cede. We say impliedly, because the defendants defend on the ground that they have made a burlesque of “Gaslight;” that such is “fair use;” that plaintiffs are barred by laches, and finally that the value of Loew’s “Gaslight” has not been impaired and that Loew’s have not and will not suffer damage. It is well settled law that the owner of a copyright is entitled to be protected against the taking of a substantial portion of his protectible material. Universal Pictures Co. v. Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354, at page 361, where the court said: “The whole picture need not be copied to constitute infringement. The mere copying of a major sequence is sufficient.” Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 81 F.2d 49, 56, “* * * it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 1932, 61 F.2d 131, 137, “A copy of a ‘substantial part’ constitutes an infringement”, and cases cited therein. “ * * * when a study of the two writings is made and it is plain from the study that one of them is not in fact the creation of the putative author, but instead has been copied in substantial part exactly or in transparent re-phrasing to produce essentially the story of the other writing, it infringes.” Warner Bros. Pictures v. Columbia Broadcasting System, 9 Cir., 1954, 216 F.2d 945, 950, certiorari denied 75 S.Ct. 532. Folsom v. Marsh, C.C.Mass.1841, 9 Fed.Cas. page 342, No. 4901, is one of the earliest cases on copyright law in the United States. The case concerns a “Life of Washington” which the court found infringed an earlier copyrighted work. The court met the issue as to how much taking constitutes an infringement. Justice Story’s opinion, widely quoted, laid down the rule that the test is not alone quantitative but qualitative. The Justice said that courts must" }, { "docid": "21349903", "title": "", "text": "access, and based on the circumstantial evidence, means that appellees did read the book before or in the course of production of the motion picture, this, of itself, avails appellant nothing. Reading, alone, is not sufficient to show infringement. In order to prove infringement there must have been copying of a substantial portion of the copyrighted work. Such copying is essential to recovery in an action for infringement of a copyright. Perris v. Hexamer, 99 U.S. 674, 675, 676, 25 L.Ed. 308; Oxford Book Co. v. College Entrance Book Co., 2 Cir., 98 F.2d 688, 692; Carr v. National Capital Press, 63 App.D.C. 210, 71 F.2d 220; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 137, certiorari denied, 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374; Frankel v. Irwin, D.C., 34 F.2d 142, 143; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691; Eggers v. Sun Sales Corp., 2 Cir., 263 F. 373, 375; Springer Lithographing Co. v. Falk, 2 Cir., 59 F. 707, 712, writ of error dismissed 17 S.Ct. 998, 41 L.Ed. 1179; Caruthers v. R.K.O. Radio Pictures, D.C., 20 F.Supp. 906, 907; Hirsch v. Paramount Pictures, D.C., 17 F.Supp. 816, 818; Sheldon v. Metro-Goldwyn Pictures Corp., D.C., 7 F.Supp. 837, 842, reversed on other grounds, 2 Cir., 81 F.2d 49. Upon this point the court’s finding was definitely against appellant. The finding that “such matters indicating access to the book are not a substantial copying within the decision of Harold Lloyd Corporation v. Witwer * * * ” simply means that in the instant case the court applied the test employed in the Witwer decision, that of the ordinary observer, and found as a fact that there had been no copying of appellant’s book or of a substantial portion thereof. Such finding is fully supported by the evidence. We shall now refer to the alleged errors of the court in failure to find on certain matters, designated in appellant’s assignments of error, and not heretofore specifically considered. It is our view that many of the matters to which no reference was made in the" }, { "docid": "23698916", "title": "", "text": "the principle of a stringent standard for showing infringement which some courts apply when the subject matter involved admits of little variation in form of expression. E. g., Dorsey v. Old Surety Life Ins. Co., 10 Cir., 1938, 98 F.2d 872, 874, 119 A.L.R. 1250 (“a showing of appropriation in the exact form or substantially so.”); Continental Casualty Co. v. Beardsley, 2 Cir., 1958, 253 F.2d 702, 705, cert. denied, 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 (“a stiff standard for proof of infringement.”). Nonetheless, we must hold for the defendant. When the uncopyrightable subject matter is very narrow, so that “the topic necessarily requires,” Sampson & Murdock Co. v. Seaver-Radford Co., 1 Cir., 1905, 140 F. 539, 541; cf. Kaplan, An Unhurried View of Copyright, 64-65 (1967), if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated. Cf. Baker v. Selden, supra. Upon examination the matters embraced in Rule 1 are so straightforward and simple that we find this limiting principle to be applicable. Furthermore, its operation need not await an attempt to copyright all possible forms. It cannot be only the last form of expression which is to be condemned, as completing defendant’s exclusion from the substance. Rather, in these circumstances, we hold that copyright does not extend to the subject matter at all, and plaintiff cannot complain even if his particular expression was deliberately adopted. Affirmed. . The court did not discuss, nor need we, the additional fact that the almost exact following of plaintiff’s wording and format in an area in which there is at least some" }, { "docid": "13924949", "title": "", "text": "very similar, the Beardsley form is sufficiently different from both to negate infringement. And as to the other documents none are close enough to the Beardsley forms to require the reversal of the trial court’s holding of non-infringement. There have been several cases dealing with the copyrighting of insurance and similar forms. Significantly, they uniformly are decided by holdings of non-infringement and leave undecided the copyrightability point. These cases have set a stiff standard for proof of infringement. In Dorsey v. Old Surety Life Ins. Co., 10 Cir., 98 F.2d 872, 874, 119 A.L.R. 1250 the court found non-infringement declaring, “To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted material should be required.” In Crume v. Pacific Mut. Life Ins. Co., 7 Cir., 140 F.2d 182, certiorari denied 322 U.S. 755, 64 S.Ct. 1265, 88 L.Ed. 1584, the court found non-infringement of plaintiff’s pamphlet describing a method for reorganizing insurance companies. As in all of these cases, the court was keenly aware that to prohibit similarity of language would have the effect of giving the copyright owner a monopoly on his idea — which the cases uniformly deny to copyright owners. Thus, the court stated, 140 F.2d at pages 184-185: “ * * * jn the instant situation there is no room for the skill of the mechanic or artisan in utilizing the plan or the method disclosed. Its use, to which the public is entitled, can be effected solely by the employment of words descriptive thereof. In our view, where the use can be effected only in such manner, there can be no infringement even though the plan or method be copied. We realize that such a view leaves little, if any, protection to the copyright owners; in fact, it comes near to invalidating the copyright. This situation, however, results from the fact that the practical use of the art explained by the copyright and lodged in the public domain can be attained solely by the employment of language which gives expression to that which is disclosed.” Further," }, { "docid": "20184815", "title": "", "text": "copy was protected only by the Copyright Law, 17 U.S.C.A. § 1 et seq., which did not sanction an existing right, it created a new one. Caliga v. Inter Ocean Newspaper, 215 U.S. 182, 188, 30 S.Ct. 38, 54 L.Ed. 150. His ideas or conceptions could not be made the subject of a copyright or the basis of rights. They would become such only when executed and in being. And when executed and sold, they were gone from his control. Pushman v. New York Graphic Society, supra; Yardley v. Houghton Mifflin Co., supra. A contention similar to that made by plaintiff, that he did not sell his concept of what gnomes should look like, was made and overruled in the case of Parton v. Prang, 18 Fed.Cas. 10,784, and such overruling seems to be in accord with the well-settled law. The common law and the copyright statute do not protect intellectual conceptions, however meritorious they may be, until they have been produced. White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1, 17, 28 S.Ct. 319, 52 L.Ed. 655, 14 Ann.Cas. 628; Moore v. Ford Motor Co., D.C., 28 F.2d 529, 536, affirmed, 2 Cir., 43 F.2d 685; Ansehl v. Puritan Pharmaceutical, 8 Cir., 61 F.2d 131, 137, certiorari denied 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 374; Bowen v. Yankee Net Work, D.C., 46 F.Supp. 62, 63; Plus Promotions, Inc., v. RCA Mfg. Co., D.C., 49 F.Supp. 116, 118. There may be literary property in a particular combination of ideas in the form in which ideas are embodied. There can be none in ideas. Fendler v. Morosco, 253 N.Y. 281-287, 171 N.E. 56. The question is asked, was he selling his right to copy his conception of a gnome. It seems to me that he certainly was selling what his conception was as executed in what he sold. As the cases cited above hold, he could not hold his unexecuted conception of a gnome, or what that conception might be inferred to be from what he had executed. He sold all that could be drawn or depicted or" }, { "docid": "14407582", "title": "", "text": "in concrete form. 2. Advertisements which exhibit some original intellectual effort as to conception, composition, and arrangement, have been held copyrightable under the United States copyright statutes. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460; Westerman Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131; Sebring Pottery Co. v. Steubenville Pottery Co., D.C., 9 F.Supp. 383, 384. Under the cases cited the advertisement created and originated by plaintiff’s father, Edwin I. Gordon, was copyrightable. 3. The recent trend in copyright actions indicates a tendency on the part of courts to afford more liberal protection to the copyright owner and such owners have not been denied relief on the ground that their work is not of sufficient literary quality to merit copyright protection. Ansehl v. Puritan Pharmaceutical Co., supra. 4. Unlike patent law, which gives the patent owner absolute ownership of the patented domain, copyright law gives thé copyright owner no right other than to prevent copying. Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410. 5. Upon the death of his father, Edwin I. Gordon, plaintiff acquired all the right, title and interest in and to Copyright No. 57529 covering the advertisement material created and originated by his father. As legal owner of such copyright he is entitled to restrain others from copying such material and to claim damages for infringement. 6. Copying is not confined to a literary repetition, and infringement of a copyright is not avoided by taking the substance or idea and producing it through a different medium and picturing in shape and details in sufficient imitation to make it a true copy of the subject thought of by the originator of the copyrighted work. King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533. “Copy”, constituting infringement of copyright, is that which comes so near to original as to give every person seeing it the idea created by the original. Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1. 7. Defendant’s contentions as" } ]

[ { "docid": "7918087", "title": "", "text": "sentence. II. Section 5G1.3 of the Guidelines provides instructions concerning the imposition of sentence when the defendant is subject to an undischarged term of imprisonment. At the time of Rouse’s sentencing, § 5G1.3 provided in pertinent part: (b) If ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. (c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3(b), (c). Rouse contends that the April 6 drug sale was “fully taken into account” in his sentencing for the instant offense and thus that the district court was required by § 5G1.3(b) to impose a concurrent sentence. The Government contends, and we agree, that Rouse did not adequately raise this issue before the district court. While Rouse’s counsel did inquire of the court whether the federal sentence would be served concurrently or consecutively to the . state sentence, he neither cited § 5G1.3(b) nor argued that the court was required to impose a concurrent sentence. Therefore, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Rouse must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Rouse makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (alteration in original)). A. Before turning to the application of the plain error standard, we pause for a" } ]

[ { "docid": "22307253", "title": "", "text": "error review applied to a district court’s failure to impose a concurrent federal sentence; the court imposed instead a departure sentence of ten years to be served consecutively to an active six-year state sentence defendant was then serving. Remarkably, the government conceded that the district court had committed plain error. See Br. of the United States at 8, 2003 WL 25315119 (May 22, 2003) (’’[T]he United States concedes that if the defendant’s [federal] sentence was erroneously imposed [as a consecutive sentence] and that he was [therefore] erroneously sentenced to serve a longer sentence than the law allows, then the district court committed plain error.”). The government contended, however, that in light of the significant \"substantial assistance” departure the district court had awarded the defendant, the case should be remanded to allow the district court to reduce the magnitude of the departure in order to achieve the effective sixteen year sentence it intended. Without even mentioning the government’s concession or its alternative argument, the Rouse panel agreed with Rouse that the district court had erred but it simply called the error \"not plain.” 362 F.3d at 264. No previous or subsequent panel of this Court has employed such reasoning so far as I can discern. . To its credit, the government has not remotely suggested that Olano steps three and four are unsatisfied in this case. There is no doubt that they are satisfied. . Our own circuit precedent consists entirely of unpublished opinions. See United States v. Baker, 326 Fed.Appx. 213 (4th Cir.2009) (unpublished); United States v. Lowe, No. 94-5792, 1995 WL 440410 (4th Cir. July 26, 1995) (unpublished); United States v. Alston, No. 94-5498, 1995 WL 331095 (4th Cir. June 2, 1995) (unpublished). This is telling; none of our colleagues felt the issue was of sufficient import to deserve a precedential determination. As Henderson makes clear, of course, an error arising out of \"unsettled law” can be plain in the light of intervening authority. I do not find anything in Henderson to suggest that new authority that \"settles” \"unsettled” circuit law must come from the Supreme Court itself or" }, { "docid": "14943816", "title": "", "text": "125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because he did not preserve this objection before the district court, we review his sentence for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “The plain error principle applies even when, as here, the error results from a change in the law that occurred while the case was pending on appeal.” United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005). He has the burden of proving plain error. Olano, 527 U.S. at 389, 119 S.Ct. 2090. Plain error review is subject to a four-part test. “[T]here must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). As in our en banc Pirani decision, it is obvious the first two plain error factors are met here. The district court committed Booker error by applying the guidelines as mandatory, and such error is clear and obvious at this time. See Pirani, at 550. He however, fails to satisfy the third plain error factor because he has not shown “a ‘reasonable probability,’ based on the record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Finck has pointed to nothing in the record to suggest a reasonable probability that the district court would have imposed a lesser sentence absent Booker error. Therefore, he has not carried his burden of demonstrating plain error under Olano, and we do not need to evaluate the fourth plain error factor. Contrary to the argument in his Supplemental Brief regarding plain error, the sentence itself is not illegal under the advisory guideline regime mandated by Booker. See Pirani, 406 F.3d at 553-54. IV. Finally, Finck argues that the district court’s use of the name “Glenn Benton" }, { "docid": "23250430", "title": "", "text": "296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We held the motion in abeyance pending United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now take this motion with the case. In light of Booker and our recent decision in United States v. Pirani, 406 F.3d 543 (8th Cir.2005), we deny the motion because Johnson cannot carry his burden of showing prejudice necessary to be entitled to plain-error relief. While Johnson objected to the district court’s finding that tampering by operation qualified as a violent felony under § 924(e), he did not object to his sentence on the basis of Apprendi, Blakely, or the constitutionality of the federal sentencing guidelines. See Pirani, 406 F.3d at 549. As a result, Johnson is only entitled to plain-error review. Id. We apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The test has been stated as follows: before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Johnson must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. We conclude that Johnson cannot demonstrate a reasonable probability that the district court would have imposed a more favorable sentence" }, { "docid": "20135579", "title": "", "text": "was paroled again and delivered to federal authorities in January 2009, but was not resentenced on the federal conviction until July 2009. At resentencing on July 30, 2009, the district court first declined to recalculate the Guidelines range on the grounds that the issue was outside the scope of the remand, and then explained that it had “obviously misspoke[n]” at the original sentencing by stating that § 5G1.3(c) required the imposition of a consecutive sentence. Defense counsel urged the district court to exercise its discretion and either impose a concurrent or partially concurrent sentence, or, at least, take into account the time served on the state sentence in considering the § 3553(a) factors. The colloquy that followed shifted between the defendant’s argument for a concurrent sentence and a discussion of the credit defendant might receive for time served on his then-completed state sentence. In the end, the district court reimposed a sentence of 108 months, omitted the earlier order of a consecutive sentence, and added a recommendation to the Bureau of Prisons (BOP) that defendant receive credit for time served since his arrest on the federal charge on January 10, 2006. This appeal followed. II. This court reviews challenges to the reasonableness of a defendant’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). While there is both a procedural and a substantive component to the reasonableness inquiry, defendant’s claims of error have been framed in terms of procedural unreasonableness. Id. If defense counsel does not object with a reasonable degree of specificity to a purported procedural error, a plain error standard of review applies. United States v. Simmons, 587 F.3d 348, 353-54 (6th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004). A. USSG § 5G1.3(c) A district court has discretion to order a federal sentence to run either concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C. § 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir.2009); United States" }, { "docid": "22418483", "title": "", "text": "a two-point enhancement pursuant to U.S.S.G. § 3Bl.l(c) for being an organizer, leader, manager, or supervisor. Wade was sentenced to 36 months’ imprisonment, which was within the applicable Guidelines range of 33 to 41 months. Wade’s sentence violated the Sixth Amendment, however, because if the district judge had relied only on facts found by the jury, the applicable Guidelines range for Wade’s sentence would have been 6 to 12 months’ imprisonment. Thus, the first condition for plain-error review has been satisfied in Wade’s case as well. Next, we conclude that the errors committed by the district court in sentencing McDaniel and Wade are “plain,” i.e., “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Although the constitutional infirmity of the Guidelines may not have been clear or obvious at the time McDaniel and Wade were sentenced, see United States v. Koch, 383, F.3d 436, 440 (6th Cir.2004) (en banc), overruled by Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621, “it is enough that an error be ‘plain’ at the time of appelláte consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544; see Oliver, 397 F.3d at 378, 2005 WL 233779, at *7. We see no relevant distinction between the Sixth Amendment violation that occurred in the sentencing of Freddie Booker and the Sixth Amendment concerns raised by the manner in which McDaniel and Wade were sentenced; thus, the errors here are plain. See Oliver, at 378, 2005 WL 233779, at *7. Third, in order for us to reach the merits of McDaniel’s and Wade’s Booker claims, we must find that the district court’s “plain errors” affected McDaniel’s and Wade’s substantial rights. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. In Oliver, we recognized that: the district court’s sentencing determination unconstitutionally increased [the defendant]^ sentence beyond that which was supported by the jury verdict and [the defendant’s criminal history. As a result [the defendant] arguably received a sentence that was longer than his sentence would have been absent a Sixth Amendment..violation. We must therefore conclude that this sentencing error affected [the defendant’s substantial rights. 397 F.3d at" }, { "docid": "6682482", "title": "", "text": "under the third step of the plain-error test. Step three requires Becker to show a “reasonable probability, based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Lovelace, 565 F.3d at 1092 (quoting United States v. Pirani, 406 F.3d 543, 552 (8th Cir.2005)). He cannot do so here. The district court acknowledged that whether Becker would be paroled early on his state sentence was “a great unknown” and explicitly noted this was not a consideration in its sentencing decision. The court advised Becker: “[R]egardless of whether you would be released early by the state system to serve your federal sentence or not, I would reach the same conclusion. This was a rather egregious offense and to me very disturbing behavior that I’ve read about.” (emphasis added). It was motivated to impose the sentence it did because of the severity and nature of Becker’s offense. In short, Becker cannot show a reasonable probability that he would have received a more favorable sentence than 210 months. B. Failure to apply Guideline § 5G1.3(b) Becker next argues that his sentence failed to comply with Sentencing Guideline § 5G1.3(b) in two respects: first, he was not given credit for eleven months already served on his state convictions; and second, his sentence should have run concurrent with, rather than consecutive to, his state sentence. Generally, a district court’s sentencing decisions are reviewed for abuse of discretion. United States v. Rutherford, 599 F.3d 817, 820 (8th Cir.2010) (citing Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Becker argues, however, that de novo review should apply because he is asking the Court to review the district court’s interpretation of the Sentencing Guidelines. Regardless how the claim is reviewed, § 5G1.3(b) does not apply here. Section 5G1.3(b) of the Sentencing Guidelines provides that credit should be given for time served and that sentences should run concurrently when a defendant is subject to a prior, undischarged sentence. However, subsection (b) applies only where a defendant is subject to an undischarged term" }, { "docid": "20135580", "title": "", "text": "receive credit for time served since his arrest on the federal charge on January 10, 2006. This appeal followed. II. This court reviews challenges to the reasonableness of a defendant’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). While there is both a procedural and a substantive component to the reasonableness inquiry, defendant’s claims of error have been framed in terms of procedural unreasonableness. Id. If defense counsel does not object with a reasonable degree of specificity to a purported procedural error, a plain error standard of review applies. United States v. Simmons, 587 F.3d 348, 353-54 (6th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004). A. USSG § 5G1.3(c) A district court has discretion to order a federal sentence to run either concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C. § 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir.2009); United States v. Watford, 468 F.3d 891, 915-16 (6th Cir.2006). That determination is based, in part, on the Guidelines and policy statements of the Sentencing Commission. Johnson, 553 F.3d at 997. In particular, the first appeal involved the application of USSG § 5G1.3(c), which provides that “[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” At resentencing, defendant continued to urge the district court to impose a partially concurrent sentence under § 5G1.3(c), but also argued that the district court could adjust the length of the sentence to take into account the time served for which the BOP might not give him credit. The district court expressed the view that defendant should receive credit for time served from the time of his arrest on the federal warrant on January 10, 2006 — rather than from his release to federal custody in January 2009 —" }, { "docid": "20253987", "title": "", "text": "murder sentence. In his brief, Lomeli makes passing reference to an abuse of discretion by the district court. We interpret this statement as an argument that the district court failed to consider the § 3553(a) factors and to be cognizant of the elements listed in section 5G1.3 of the Guidelines. Because this argument was raised for the first time on appeal, we review for plain error. See, e.g., United States v. Starfield, 563 F.3d 673, 674 (8th Cir.2009); United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1390, 173 L.Ed.2d 641 (2009). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Consecutive sentences are specifically contemplated by the Sentencing Guidelines, which provide that, in cases where the defendant is subject to an undischarged term of imprisonment, “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the pri- or undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” United States Sentencing Commission, Guidelines Manual, § 5G1.3(c) (Nov.1995) ; see also 18 U.S.C. § 3584(a) (authorizing a court to impose concurrent or consecutive sentences absent exceptions that do not apply here and stating that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”). In determining whether to impose a concurrent or consecutive sentence, the Guidelines direct the sentencing court to: consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of: (a) the type {e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely" }, { "docid": "4898257", "title": "", "text": "Defendant admits he is not supervisable. (Statement of Reasons § VIII.) In sum, the judge imposed a term of imprisonment based on a higher guideline range than that which was calculated in the PSR — without explaining how he arrived at a higher range and in spite of his statement that he was proceeding to sentencing based on the PSR’s calculations. Although the record reveals that the sentencing judge believed Johnson’s criminal history category was under-represented, it is unclear as to how that finding was used to calculate Johnson’s sentence. Because the record does not reveal an adequate explanation of the chosen sentence, Johnson’s sentence must be reversed. Second, Johnson claims the district court committed a substantive error by imposing Johnson’s sentence consecutively to an undischarged term of imprisonment from a sentence imposed by another judge in another case. However, the record does not reflect that Johnson specifically requested a concurrent sentence or objected to a consecutive sentence at any time before or after the sentencing judge announced that Johnson’s sentences would run consecutively. Indeed, Johnson’s attorney conceded at oral argument that the plain-error standard “would probably apply in this case.” Thus, we review only for plain error. See United States v. Brassell, 49 F.3d 274, 277 (7th Cir.1995) (“Because [defendant] made no objection at the time of sentencing, review is limited to the standard of plain error.”). Only if the error both is clear and obvious and affected the outcome of the court proceedings should the sentence be disturbed. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, there is no plain error in the district court’s decision to sentence Johnson to a term of imprisonment that would run consecutively to the undischarged term he was serving based on the revocation of his supervised release. When a defendant was on supervised release at the time he committed the offense and his supervised release is revoked, the Guidelines provide that “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment" }, { "docid": "22414272", "title": "", "text": "under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny because the district court enhanced his sentence for obstruction of justice under the mandatory sentencing regime after finding facts not admitted by the defendant or proved beyond a reasonable doubt. Because Infante did not raise this claim in the district court below, our review is for plain error. E.g., United States v. Mares, 402 F.3d 511, 519, 2005 WL 503715, at *7 (5th Cir. March 4, 2005). We find plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Mares, 402 F.3d at 520, 2005 WL 503715, at *8. “If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Mares, 402 F.3d at 520, 2005 WL 503715, at *8 (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). Infante satisfies the first two prongs of the plain-error test because the district court committed Sixth Amendment Booker error and because that error is now plain after Booker. See Mares, 402 F.3d at 520, 2005 WL 503715, at *8. However, he has not satisfied the third prong of the plain-error test because he cannot show that the error in question affected his substantial rights. Infante has not shown, with a probability sufficient to undermine confidence in the outcome, that if the judge had sentenced him under an advisory sentencing regime rather than a mandatory one, he would have received a lesser sentence. See id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). The judge imposed a sentence in the middle of the properly determined Guidelines range, and there is no indication in the record from the judge’s remarks or otherwise that the judge" }, { "docid": "15491708", "title": "", "text": "sentence above that authorized by the jury’s verdict alone. An error is “plain” if it is clear or obvious. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Although the district court’s practice complied with then-prevailing Circuit law, Booker now makes that error obvious. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“it is enough that an error be ‘plain’ at the time of appellate consideration.”) Defendant therefore has satisfied the first two prongs of the plain error test. While the government concedes these points, it argues that Vincent can show neither that the error affects substantial rights nor that it affects the fairness, integrity, or public reputation of judicial proceedings. In most cases, an error affects substantial rights only if it is prejudicial: “[i]t must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Booker’s remedial holding permits the district courts to continue to make findings of fact, but directs them to apply the sentencing guidelines as advisory only. 125 S.Ct. at 764-65. Thus, Vincent was prejudiced, if at all, by the district court’s application of the guidelines as mandatory. Whether the third prong is satisfied here therefore turns on whether the district court would have imposed a lower sentence had it considered the guidelines as advisory. As for the fourth prong, an error that causes a “miscarriage of justice” seriously affects the fairness, integrity and public reputation of judicial proceedings. United States v. Stewart, 411 F.3d 825, 829 (7th Cir.2005); Paladino, 401 F.3d at 481. “[I]f the defendant has been prejudiced by an illegal sentence, then allowing that illegal sentence to stand would constitute a miscarriage of justice.” United States v. White, 406 F.3d 827, 836 (7th Cir.2005) (quoting United States v. Macedo, 406 F.3d 778, 790 (7th Cir.2005)). This inquiry also hinges on what the district court would have done with the benefit of additional discretion. We cannot answer this question on the current record. Accordingly, while retaining jurisdiction, we remand to the district court to conduct the limited inquiry described in Paladino. III. Conclusion For the reasons stated" }, { "docid": "22307251", "title": "", "text": "plain. See, e.g., United States v. Strieper, 666 F.3d 288, 295 (4th Cir.2012) (“Because the district court followed the reasoning of the Eighth Circuit regarding an issue on which we have not ruled directly, it did not commit plain error____\"). On many other occasions, we have assumed there was error but have relied on Olano step three or step four (see maj. op., ante, at 510) to deny relief. United States v. Jackson, 327 F.3d 273, 304 (4th Cir.2003) (opinion of the court by Motz and King, JJ., on the relevant issue) (\"We, along with several of our sister circuits, have frequently disposed of a plain error issue by analyzing either the third or fourth prong of Olano after assuming, without deciding, that there was an error and that it was plain.\") (collecting cases). On at least one or two other occasions, we have reasoned that there was no error that was \"plain”, United States v. Wynn, 684 F.3d 473, 480 (4th Cir.2012) (\"It is therefore apparent that the issue has not been resolved plainly.”), only to go on to say there was in fact no error at all, id. (\"Moreover, on the facts of this case we do not even find error.”), or that Olano step three or four was not satisfied, United States v. Johnson, — Fed.Appx.-, No. 12-4155, 2013 WL 3069776, at *8 (4th Cir. June 20, 2013) (holding that sentencing error was not plain but further holding that defendant failed to satisfy step three of Olano, stating: \"Unfortunately for Johnson, even assuming arguendo that the district court’s failure to conclude that USSG § 5G1.3(b) applies to advise the district court that sixteen months of Johnson’s 151-month sentence on Count 1 should run concurrent with his Undischarged State Sentence constitutes error that is plain, thus satisfying the first two prongs of Olano's plain error test, Johnson cannot satisfy the third prong.”). A strikingly odd exception to our practice is the pre-Booker case of United States v. Rouse, 362 F.3d 256 (4th Cir.2004), cert. denied, 543 U.S. 867, 125 S.Ct. 209, 160 L.Ed.2d 112 (2004). In Rouse, plain" }, { "docid": "22333206", "title": "", "text": "an Undischarged Term of Imprisonment.” . At the time of Mr. Contreras’ sentencing, § 5G1.3(a) required a consecutive sentence when the defendant committed the instant offense while serving a term of imprisonment, or before the defendant began serving such a term. Section 5G1.3(b) required a concurrent sentence when “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction.” Section 5G1.3(c), a policy statement, applied in any other case involving an undischarged term of imprisonment, and authorized the district court to impose a sentence to run concurrently, partially concurrently, or consecutively to the undischarged sentence “to achieve a reasonable punishment.” The parties agree subsection (a) did not apply here. Rather, Mr. Contreras contends subsection (b) mandated the imposition of a concurrent sentence because his illegal reentry and violation of supervised release sentences were based on the same underlying relevant conduct. Because Mr. Contreras failed to argue at sentencing that the court was required, as a matter of law, to order the sentence it imposed for the supervised release violation to run concurrently with the sentence imposed for his illegal reentry, we review this claim for plain error. United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir.2003). The plain error test requires Mr. Contreras to demonstrate the district court (1) committed error, (2) that is plain, and (3) affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If Mr. Contreras meets his burden of establishing the first three prongs of the plain error test, we may exercise discretion to correct the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). Here, however, we need not examine the second, third, or fourth prongs of the plain error test because we conclude the district court committed no error. \"TJ.S.S.G. § 5G1.3(b)'s central aim is to ensure no defendant is punished twice for the same crime.\" United States" }, { "docid": "22333207", "title": "", "text": "violation to run concurrently with the sentence imposed for his illegal reentry, we review this claim for plain error. United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir.2003). The plain error test requires Mr. Contreras to demonstrate the district court (1) committed error, (2) that is plain, and (3) affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If Mr. Contreras meets his burden of establishing the first three prongs of the plain error test, we may exercise discretion to correct the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). Here, however, we need not examine the second, third, or fourth prongs of the plain error test because we conclude the district court committed no error. \"TJ.S.S.G. § 5G1.3(b)'s central aim is to ensure no defendant is punished twice for the same crime.\" United States v. Moyer, 282 F.3d 1311, 1316 (10th Cir.2002) (internal quotation omitted). Accordingly, § 5G1.3(b) provides \"credit[ I for guidelines purposes [to] defendants who have already served time-generally in another jurisdiction-for the same conduct or course of conduct.\" United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir.1994) (internal quotations omitted). We thus declined in Moyer to apply § 5G1.3(b) where a defendant's conduct resulted in revocation of a term of probation plus an additional sentence, because the original term of probation stemmed from a separate offense. 282 F.3d at 1317; see also United States v. Tisdale, 248 F.3d 964, 974, 976-77 (10th Cir.2001) (holding that § 5G1.3(c) provides a district court with discretion to sentence defendant consecutively or concurrently where conduct giv ing rise to the instant offense resulted in revocation of probation). Similarly, Mr. Contreras’ conduct, his 2003 illegal reentry, resulted in revocation of his term of supervised release and an additional sentence because the original term of supervised release stemmed from a separate offense: his 1999 illegal reentry. Consequently, § 5G1.3(b) simply did" }, { "docid": "7465792", "title": "", "text": "a Sixth Amendment challenge, nor did he make specific reference to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely. Therefore, we review Plumman’s Booker challenge only for plain error. United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). “Plain error is error that is ‘plain’ (that is, clear or obvious), ‘affects substantial rights’ (that is, prejudicial) and ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Rashid, 383 F.3d 769, 775 (8th Cir.2004) (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). See also Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The first two Olano factors are satisfied because “[t]he district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain.” Pirani, 406 F.3d at 550. In determining whether plain error has affected substantial rights, we focus on “what sentence would have been imposed absent the error.” Id. at 551. The third prejudice factor “turns on whether [Plum-man] has demonstrated a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. In imposing the mandatory life sentences, the district judge stated: I do agree with [defense counsel] that this-that a life sentence is too severe for this defendant under even all the facts of this case as bad as they are. And I would not impose a life sentence but for the sentencing guidelines. But ... it makes no difference what I think. I think that the sentencing guideline as it’s applied here is too harsh. I would sentence Mr. Plumman to a period of less than life if it were up to me .... If I were to downwardly depart in this case I would be reversed before the ink was dry. (emphasis supplied). This judicial proclamation confirms that, at the time of Plumman’s sentencing, the district court believed it was required to impose concurrent life sentences for Counts" }, { "docid": "18832666", "title": "", "text": "that the guidelines required that his federal sentence run concurrently with his state sentences. Since he failed to object to the consecutive sentence at the time, our review is limited to plain error. We agree that under the Olano test already discussed, Bartlett must be re-sentenced. Because we are satisfied that the requisites for plain error review are present, we do not reach Bartlett’s contention — raised for the first time on appeal — that his trial counsel’s failure to object to the consecutive sentence violated the Sixth Amendment. In this case, after the district court determined the guideline range for the conspiracy charge, it then considered whether to make the federal sentence consecutive or concurrent to the state sentences. The court found that although Bartlett had been allowed to plead guilty to second degree murder, the conduct underlying both convictions would have supported convictions for first degree murder. Concluding that under Massachusetts law Bartlett would be eligible for parole in 16 years and would probably not be held past that date, the court concluded the federal sentence should run consecutively rather than concurrently. The governing statute confers broad authority on the district court to determine whether a sentence is consecutive or concurrent. See 18 U.S.C. §§ 3553(a), 3584(a), (b). That discretion, however, is confined by guideline provisions that govern this choice where sentence is imposed on a defendant who is “subject to an undischarged term of imprisonment.” U.S.S.G. § 5G1.3. See United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993). The guideline applicable here provides that — with two exceptions not now relevant — “the sentence for the instant offense shall be imposed to run consecutively to the prior unexpired term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The commentary then provides that to the extent practicable the court should determine the “reasonable incremental punishment” by determining a sentence “that results in a combined sentence that approximates the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all" }, { "docid": "22678957", "title": "", "text": "1140, 1143 (10th Cir.2005) (on harmless-error review, remanding a non-constitutional Booker error case in the face of a silent record). Therefore, we do not adopt the Barnett burden-shifting approach and hold that Mr. Gonzalez-Huerta bears the burden to establish by a reasonable probability based upon the record on appeal that his substantial rights were affected by the District Court’s mandatory application of the Guidelines. Accord United States v. Mares, 402 F.3d 511, 520-22, 2005 WL 503715 at *8-*9 (5th Cir.2005); Antonakopoulos, 399 F.3d at 79-80; Rodriguez, 398 F.3d at 1299-1301. D. We need not determine whether Mr. Gonzalez-Huerta can satisfy this burden because even if he were to meet the third prong, he must also satisfy the fourth prong to obtain relief. See Cotton, 535 U.S. at 632-33, 122 S.Ct. 1781 (“[W]e need not resolve ... [the third prong of plain-error review], because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.”); Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544 (same); United States v. Gonzalez Edeza, 359 F.3d 1246, 1251 (10th Cir.2004) (applying Cotton and Johnson). Mr. Gonzalez-Huerta does not satisfy this prong. As a preliminary matter, we note that in the wake of Booker several courts of appeals have collapsed the third and fourth prong analyses. That is to say, if these courts find the third prong satisfied, they conclude that the fourth prong is met as a matter of course. See, e.g., United States v. Crosby, 397 F.3d 103, 118 (2d Cir.2005) (“[A] district judge’s decision that the original sentence would have differed in a nontrivial manner from that imposed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis.”). We cannot subscribe to this approach. The Court in Olano clearly held that “a plain error affecting substantial rights does not, without more, satisfy the ... standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.” 507 U.S. at 737, 113 S.Ct. 1770. Therefore, we are bound to treat the third and fourth prongs as independent" }, { "docid": "4898258", "title": "", "text": "Johnson’s attorney conceded at oral argument that the plain-error standard “would probably apply in this case.” Thus, we review only for plain error. See United States v. Brassell, 49 F.3d 274, 277 (7th Cir.1995) (“Because [defendant] made no objection at the time of sentencing, review is limited to the standard of plain error.”). Only if the error both is clear and obvious and affected the outcome of the court proceedings should the sentence be disturbed. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, there is no plain error in the district court’s decision to sentence Johnson to a term of imprisonment that would run consecutively to the undischarged term he was serving based on the revocation of his supervised release. When a defendant was on supervised release at the time he committed the offense and his supervised release is revoked, the Guidelines provide that “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c) & Application Note 3(C); see also United States v. Jackson, 546 F.3d 465, 469 (7th Cir.2008). The Sentencing Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation. U.S.S.G. § 5G1.3, Application Note 3(C). In imposing Johnson’s sentence, the judge stated, “Mr. Lipscomb [the Assistant United States Attorney] indicated that the sentence was probably on the light side, and he was correct. So the Court is going to impose a sentence of 96 months, but it’s going to be consecutive to case 02-CR-128. That’s the decision that Judge Charles Clevert entered on the revocation.” (Sentencing Tr. 24:1-5.) The district court acted within its discretion and followed the recommendation set forth in the Guidelines. A consecutive sentence was not an abuse of discretion. Johnson’s final argument on appeal is that the district court erred by failing to ask Johnson whether he had read the PSR. Federal Rule of Criminal Procedure 32 provides that the sentencing" }, { "docid": "22096403", "title": "", "text": "sentence of five years and a maximum sentence of forty years where a violation of 21 U.S.C. § 841(a) involves one hundred kilograms or more of a mixture or substance containing marijuana. . Duarte’s brie! ignores the money laundering counts, so we assume that he concedes the propriety of the sentences imposed on those counts. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). . If an error occurred, it resulted from the trial judge’s understandable adherence to prevailing pre-Apprendi practice — a praxis that the Supreme Court subsequently ruled unconstitutional. See Apprendi, 120 S.Ct. at 2362-63. When a judge applies a legal regime which, though widely accepted at the time of trial, proves to be antithetic to the law as it appears at the time of direct appeal, the error is deemed sufficiently clear to satisfy the second part of the test for plain error. Johnson, 520 U.S. at 468, 117 S.Ct. 1544. . We note, however, that several courts have deemed the availability of consecutive sentences sufficient to defeat claims of plain error in the Apprendi context. E.g., United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (per curiam) (finding no prejudice in concurrent thirty-year sentences that violated Apprendi where three twenty-year sentences could have been imposed consecutively); United States v. White, 238 F.3d 537, 542-43 (4th Cir.2001) (holding that the defendant’s substantial rights were not affected by what the court assumed was Apprendi error because, even if the sentencing court had limited the defendant's sentence on each count to the default statutory maximum, it would have been obliged under the sentencing guidelines to impose those sentences consecutively to reach the same aggregate span of incarceration); United States v. Page, 232 F.3d 536, 543-45 (6th Cir.2000) (declining to notice un-preserved Apprendi error where defendants in any event would have been jailed for the same period through the imposition of consecutive sentences), cert. denied, - U.S. -, 121 S.Ct. 1389, 149 L.Ed.2d 312 (2001). . Having reached this conclusion, we have no cause to proceed to the fourth prong of the plain-error test." }, { "docid": "22307252", "title": "", "text": "only to go on to say there was in fact no error at all, id. (\"Moreover, on the facts of this case we do not even find error.”), or that Olano step three or four was not satisfied, United States v. Johnson, — Fed.Appx.-, No. 12-4155, 2013 WL 3069776, at *8 (4th Cir. June 20, 2013) (holding that sentencing error was not plain but further holding that defendant failed to satisfy step three of Olano, stating: \"Unfortunately for Johnson, even assuming arguendo that the district court’s failure to conclude that USSG § 5G1.3(b) applies to advise the district court that sixteen months of Johnson’s 151-month sentence on Count 1 should run concurrent with his Undischarged State Sentence constitutes error that is plain, thus satisfying the first two prongs of Olano's plain error test, Johnson cannot satisfy the third prong.”). A strikingly odd exception to our practice is the pre-Booker case of United States v. Rouse, 362 F.3d 256 (4th Cir.2004), cert. denied, 543 U.S. 867, 125 S.Ct. 209, 160 L.Ed.2d 112 (2004). In Rouse, plain error review applied to a district court’s failure to impose a concurrent federal sentence; the court imposed instead a departure sentence of ten years to be served consecutively to an active six-year state sentence defendant was then serving. Remarkably, the government conceded that the district court had committed plain error. See Br. of the United States at 8, 2003 WL 25315119 (May 22, 2003) (’’[T]he United States concedes that if the defendant’s [federal] sentence was erroneously imposed [as a consecutive sentence] and that he was [therefore] erroneously sentenced to serve a longer sentence than the law allows, then the district court committed plain error.”). The government contended, however, that in light of the significant \"substantial assistance” departure the district court had awarded the defendant, the case should be remanded to allow the district court to reduce the magnitude of the departure in order to achieve the effective sixteen year sentence it intended. Without even mentioning the government’s concession or its alternative argument, the Rouse panel agreed with Rouse that the district court had erred but" } ]

[ { "docid": "22650844", "title": "", "text": "Court granted respondents’ motion under Rule 12 (b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, suggesting that only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries and concluding that petitioner had failed to show a deprivation of federally protected rights. The Court of Appeals affirmed, emphasizing that prison officials are vested with “wide discretion” in disciplinary matters. We granted certiorari and appointed counsel to represent petitioner. The only issue now before us is petitioner’s contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims. Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F. 2d 774 (CA2 1944). Accordingly, although we intimate no view whatever on the merits of petitioner’s allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith. Reversed and remanded. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case." } ]

[ { "docid": "9437730", "title": "", "text": "Dismissal under either would be improper. A district court’s authority to dismiss a claim under Fed.R.Civ.P. 12 is more narrow than its authority under section 28 U.S.C. § 1915(d). Montana v. Commissioner’s Court, 659 F.2d 19, 21 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Green v. Montezuma, 650 F.2d 648, 650-51 (5th Cir.1981). But the standard for determining the legal sufficiency of a complaint is the same under either, Montana v. Commissioners Court, 659 F.2d at 21. A complaint must not be dismissed unless the court is satisfied “beyond doubt” that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Wright v. El Paso County Jail, 642 F.2d 134, 135 (5th Cir.1981); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir.1976). Moreover, Bienvenu’s handwritten pro se complaint is to be liberally construed regardless of how inartfully Bienvenu has pleaded his claim. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Wright v. El Paso County Jail, 642 F.2d at 135. The district court relied upon Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), in dismissing Bienvenu’s claim. From Paul the district court derived the basic propositions that not every governmentally-inflicted tort gives rise to a violation of the fourteenth amendment, 424 U.S. at 699, 96 S.Ct. at 1159, and that Bienvenu “must point to a specific constitutional guaranteed safeguard in the interest he alleges has been invaded,” citing id. at 700-701, 96 S.Ct. at 1160. But Gamble belies the court’s authority to dismiss Bienvenu’s complaint. In Gamble, the Supreme Court began its discussion by noting that “[bjecause the complaint was dismissed for failure to state a claim, we must take as true its handwritten, pro se allegations.” Estelle v. Gamble, 429 U.S. at 99, 97 S.Ct. at 288. The court explained that the “deliberate" }, { "docid": "1214635", "title": "", "text": "in a number of previous cases. See Boston v. Stanton, 450 F.Supp. 1049 (W.D. Mo.1978); Serna v. O’Donnell, 70 F.R.D. 618 (W.D.Mo.1976). Those cases define a frivolous action as one in which the plaintiff’s realistic chances of success are slight. Boston v. Stanton, supra, at 1054. See also Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972). The Boston standard of frivolity has been subjected to criticism, however. In Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979), the Fourth Circuit argued that the Boston standard of frivolity could not be reconciled with the holdings of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Citing this apparent difficulty, the Boyce court promulgated a different standard: To satisfy the test of frivolousness under § 1915(d), it is . . . essential for the district court to find “beyond doubt” and under any “arguable” construction, “both in law and in fact” of the substance of the plaintiff’s claim that he would not be entitled to relief. Id. at 952. This definition of frivolity rests on Haines, Gamble, supra, which hold that a complaint may not be dismissed for failure to state a claim on which relief can be granted unless “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’ ” Haines v. Kerner, supra, 404 U.S. at 520-21, 92 S.Ct. at 596 quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Haines also establishes that in making the determination of whether a complaint states a claim on which relief can be granted, a court must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Id. Gamble holds that these rules must be applied when a court dismisses a claim sua sponte for failure to state a claim on which relief can be granted. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. 285, 292 (1977). Boyce then adopts" }, { "docid": "12882926", "title": "", "text": "¶ 73.) On June 18, 2001, three days after their responsive pleading was due, Defendants filed the instant motion to dismiss and Plaintiff thereafter filed a memorandum in opposition. In addition, Plaintiff moved to “dismiss” or “default” Defendants because their motion to dismiss was filed three days late. Plaintiff then moved for an award of sentence-reduction credits. He recently informed the court that he is no longer in state custody but, rather, residing independently in West Springfield. (See Docket No. 29.) III. Standards Of Review A defendant’s motion to dismiss must focus not on “whether [the] plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Pursuant to Rule 12(b)(6), the court may grant dismissal only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accord Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987). Under Rule 12(b)(1), the plaintiff, the party invoking jurisdiction, has the burden of proof to establish its existence. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). In either case, the court must take as true the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in his favor. See Kiely, 105 F.3d at 735; Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Finally, as applicable here, a court must take special care when viewing a pro se litigant’s complaint which, “however inartfully pleaded,” is 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). See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). IV. Defendants’ Motion To Dismiss Defendants’ motion to dismiss tracks the three statutes alleged to have been" }, { "docid": "2908924", "title": "", "text": "state action necessary to maintain his claim under 42 U.S.C. § 1983. Plaintiff asserts in Count II that Drs. Flicker and Chopin committed medical malpractice during their interaction with him. Plaintiff has two difficult hurdles to surmount before he can amend his complaint. Sufficient state action must be pled to bring the allegations within the boundaries of the civil rights laws. Furthermore, plaintiff must overcome the argument that his action is barred by the appropriate statute of limitation. A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1956). Notice pleading, which gives the defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests,” is all that is required. All facts pled by the plaintiff must be taken as true and all reasonable inferences must be drawn in favor of the plaintiff. Altemose Construction Co. v. Atlantic, 493 F.Supp. 1181, 1183 (D.N.J.1980), citing McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3d Cir.1978). To withstand a Fed.R.Civ.P. 12(b)(6) motion to • dismiss, “[i]t is not necessary to plead evidence, nor is it necessary to plead facts upon which the claim is based.” Bogosian v. Gulf Oil Co., 561 F.2d 434, 446 (3d Cir.1977). Greater latitude than usual be given to plaintiff’s complaint: [A] pro se complaint “however inartfully pleaded,” must be held to less stringent standards than formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), quoting Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Defendant opposes plaintiff’s motion to amend his complaint on two grounds in his cursory brief. Defendant argues that Dr. Flicker’s actions, as a private physician, fail to constitute state action as needed to maintain a civil rights suit under 42 U.S.C. § 1983. Furthermore, defendant contends that plaintiff’s action is" }, { "docid": "23393271", "title": "", "text": "PER CURIAM: Henry Platsky appeals from the judgment and order of the United States District Court for the Eastern District of New York, I. Leo Glasser, District Judge, dismissing his pro se complaints for lack of standing, as barred by the doctrine of sovereign immunity, and for failure to state a claim upon which relief could be granted. Platsky brings these actions for injunctive relief and damages against the Central Intelligence Agency, the Federal Bureau of Investigation and the Defence Intelligence Agency based upon the defendants’ alleged surveillance and counter espionage activities which Platsky claims interfered with his constitutional right of free association. More specifically, Platsky alleged that the defendants’ activities deprived him of his “right to join a political organization of his choice,” and resulted in his suffering “harassment in application for government services, on jobs, and in everyday life.” Pro se plaintiffs are often unfamiliar with the formalities of pleading requirements. Recognizing this, the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel. See e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); see also Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir.1989) (per curiam). In order to justify the dismissal of a pro se complaint, it must be “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In light of these principles, we think that the district court should not have dismissed Platsky’s complaints without affording him leave to replead. Generally, “[i]n a suit against the United States, there cannot be a right to money damages without a" }, { "docid": "937312", "title": "", "text": "the U.D.C. During this period of investigation Milhouse was held in administrative detention. He remained in detention until his transfer to the federal penitentiary at Marion, Illinois, on August 28, 1979. Milhouse did not aver specifically that each of the actions described above was taken in furtherance of the alleged conspiracy. Nonetheless, reading the complaint as a whole, the magistrate observed: “Plaintiff, in effect alleges that the above actions were taken against him as harassment because of his religious leadership functions and because of his prior actions in seeking access to the courts to remedy religious grievances.” Appendix for Appellant at 121a. The magistrate acknowledged that appellant’s allegations would state a claim upon which relief could be granted if the claim were properly pleaded. He analyzed separately the allegations made against each defendant, concluding that they were too vague and conclusory to establish a sufficient claim. The magistrate recommended that the complaint be dismissed with respect to all defendants except Fen-ton, in whose favor he recommended the entry of summary judgment. The district court adopted the magistrate’s recommendations, and entered judgment following Milhouse’s failure to amend his complaint with respect to defendants Hudson, Jacobson, Divers and Cain. This appeal followed. II. Our review of the sufficiency of appellant’s pro se complaint, “however inartfully pleaded,” is less stringent than that of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). A pro se complaint may be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 520-21, 92 S.Ct. at 595-96, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Applying this standard of liberal construction to Milhouse’s pro se complaint, it becomes apparent that the district" }, { "docid": "23441847", "title": "", "text": "so construed as to do substantial justice”), the mandate of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), is applicable to a district court’s substantiality review of a pro se plaintiffs complaint. Thus the district court is required to liberally construe the pro se plaintiffs pleadings, “however inartfully pleaded.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (reaffirming the mandate of Haines). See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (reviewing and applying the “settled law” arising from Haines). The purpose of this more solicitous review is to insure that pro se pleadings are given “fair and meaningful” consideration. Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984) (quoting Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982)). If the district court determines that the plaintiffs claims are sufficiently substantial to invoke federal jurisdiction, the complaint, as previously noted, must be initially entertained by the district court. Bell, 327 U.S. at 681-82, 66 S.Ct. at 775-76. At this second tier, the complaint may be dismissed for failure to state a claim according to Rule 12(b)(6) only if “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. at 175 (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). When the plaintiffs complaint is meritorious enough to proceed to this second tier, the district court’s authority to dismiss the complaint sua sponte is, to a certain degree, limited by the requirements of the Federal Rules. For example, this court has consistently interpreted Rule 4(a) to require that summons be issued and served before the complaint may be dismissed. Nicholes v. Schubert, 499 F.2d 946, 947 (7th Cir.1974) (per curiam) (sua sponte dismissal of complaint prior to the issuance of summons and service of process is improper “in light of the mandate of Rule 4(a) that the clerk ‘shall forthwith" }, { "docid": "330266", "title": "", "text": "motion to dismiss under Rule [12(b)(6)] for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not under the law entitle him to a remedy.” Perez v. United States, 156 F.3d at 1370. The court acknowledges that the plaintiff is proceeding pro se. Normally, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). The United States Court of Appeals for the Federal Circuit has similarly stated that “the pleadings of pro se litigants should be held to a lesser standard than those drafted by lawyers when determining whether the complaint should be dismissed for failure to state a claim because ‘[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.’” Forshey v. Principi, 284 F.3d 1335, 1357 (Fed.Cir.2002) (quoting Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)), cert. denied, 537 U.S. 823, 123 S.Ct. 110 (2002). However, “there is no ‘duty [on the part] of the trial court ... to create a claim which appellant has not spelled out in his pleading ____’ ” Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975)) (alterations in original); see also Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). “ ‘A complaint that is ... confusing makes it difficult for the defendant to file a responsive pleading and makes it difficult for the trial court to conduct orderly" }, { "docid": "8656233", "title": "", "text": "of Louisville Medical Center. The magistrate made findings of fact and conclusions of law and recommended that the complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915. Judge John-stone adopted the magistrate’s findings and conclusions and, accordingly, dismissed the complaint. Appellant appealed from the district court’s dismissal of the case. The district court’s determination that a complaint is frivolous pursuant to 28 U.S.C. § 1915 is a discretionary ruling. Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir.1979). In reviewing such a dismissal, however, this Court must examine the pro se allegations to determine whether they are sufficient to overcome a charge of frivolousness. Id. at 953. Under the standards enunciated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), a pro se complaint that alleges deliberate indifference to a prisoner’s medical needs'is to be liberally construed. Id. at 103-04, 97 S.Ct. at 290. As such, the complaint can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Id. at 106, 97 S.Ct. at 292. Accord Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, the allegations in the complaint are taken as true and are to be construed in favor of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976); Timson v. Wright, 532 F.2d 552, 553 (6th Cir.1976). The Supreme Court has held that both state and federal prisoners have a constitutionally-guaranteed right to a certain degree of medical treatment while incarcerated. 429 U.S. at 103, 97 S.Ct. at 290. While not every showing of inadequate medical treatment will establish the existence of a constitutional violation, the Eighth Amendment does protect a prisoner from actions amounting to a “deliberate indifference” to his medical needs. Id. at 104, 97 S.Ct. at 291. When an inmate can establish that prison" }, { "docid": "4532514", "title": "", "text": "to other “local facilities.” He complains that, while at the hospital, the condition of his broken leg worsened, and he failed to receive Supplemental Security Income (“SSI”) benefits through the Social Security Administration. Lastly, he complains that, when he was confined at the hospital, he was not provided with enough stamps for meaningful access to the courts. II. LEGAL DISCUSSION AND CONCLUSION The complaint must stand unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). This is especially true when the complaint is pro se. However inartfully drafted, a pro se complaint is held to a less stringent standard than a formal pleading drafted by a lawyer. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Haines v. Kemer, 404 U.S. at 520-21, 92 S.Ct. at 595-96. As we have considered matters that are outside the pleading, the motion to dismiss shall be treated as one for summary judgment pursuant to Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b). The emergency civil commitment procedure required by Colo.Rev.Stat. § 27-10-105 (1989) provides, in pertinent part, as follows: (1) (a) When any person appears to be mentally ill and, as a result of such mental illness, appears to be an imminent danger to others or to himself or appears to be gravely disabled, ... a professional person, ... upon probable cause and with such assistance as may be required, may take the person into custody, or cause him to be taken into custody, and place him in a facility designated or approved by the executive director [of the department of institutions] for a seventy-two-hour treatment and evaluation. (2) Such [mental health treatment] facility shall require an application in writing, stating the circumstances under which the person’s condition was called to the attention of the ... professional person ..." }, { "docid": "18735248", "title": "", "text": "gallstones too large to treat. Dixon filed an answer denying the allegations of Toombs’ complaint. Bell, asserting lack of jurisdiction, filed a motion to dismiss, which the district court granted. Toombs brought this appeal pro se, and counsel was appointed for him. II. DISCUSSION. The district court stated that it lacked jurisdiction over Toombs’ complaint because there was no diversity and because the claim alleged malpractice actionable under state law. Toombs, however, sought to assert a complaint under section 1983, and thus the district court had jurisdiction under 28 U.S.C. § 1331. The district court’s ruling was, in effect, an order of dismissal under Fed.R.Civ.P. 12(b)(6) for “failure to state a claim upon which relief can be granted.” The issue before the district court was not whether Toombs’ claim should ultimately prevail, but whether he should have the chance to prove his case. The question before us is thus whether Toombs states a claim under section 1983. In reviewing a dismissal for failure to state a claim, we follow the accepted rule that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). We also note that this action was filed pro se, and we hold such complaints “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); see also Toombs v. Hicks, 773 F.2d 995, 997 (8th Cir.1985). In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), which is dispositive, a prisoner alleged a section 1983 violation in mistreatment of a back injury. The Estelle Court traced the evolution of the Eighth Amendment from its early goal of protecting prisoners from torture or a lingering death to the more recent “standards of decency that mark the progress of a maturing society.” Id. at 102, 97 S.Ct. at 290. The Supreme Court stated that" }, { "docid": "23645240", "title": "", "text": "for prosecuting legal malpractice claims against attorneys. O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972). Richardson now appeals the dismissal. STANDARD OF REVIEW In testing the sufficiency of a § 1983 complaint it must be remembered that the complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra. A prisoner’s pro se complaint “however inartfully pleaded” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See Williams v. Rhoden, 629 F.2d 1099 (5th Cir. 1980); Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979); Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978); Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). Covington v. Cole, 528 F.2d 1365 (5th Cir. 1976); See also, Finley v. Staton, 542 F.2d 250, (5th Cir. 1976); Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976); Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976); Goff v. Jones, 500 F.2d 395 (5th Cir. 1974); Reed v. Jones, 483 F.2d 77 (5th Cir. 1973); and Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969). Keeping this standard in mind, we turn to the content of Richardson’s complaint. In summary, Richardson’s complaint alleges that he retained Fleming to represent him in two" }, { "docid": "1214636", "title": "", "text": "would not be entitled to relief. Id. at 952. This definition of frivolity rests on Haines, Gamble, supra, which hold that a complaint may not be dismissed for failure to state a claim on which relief can be granted unless “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’ ” Haines v. Kerner, supra, 404 U.S. at 520-21, 92 S.Ct. at 596 quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Haines also establishes that in making the determination of whether a complaint states a claim on which relief can be granted, a court must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Id. Gamble holds that these rules must be applied when a court dismisses a claim sua sponte for failure to state a claim on which relief can be granted. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. 285, 292 (1977). Boyce then adopts the holding of Watson v. Ault, 525 F.2d 886 (5th Cir. 1976), that actions in the district court should be governed by the standard of frivolity established in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1968); an action is not frivolous under this standard unless it lacks arguable merit. Boyce equates the term “without arguable merit” with the standard evolved in Conley, Haines and Gamble; thus, an action is frivolous only if it appears beyond doubt that a plaintiff can prove no set of facts to support his claim for relief. And, under Boyee, an action is not frivolous unless and until the Court determines that a plaintiff cannot adduce such facts under any arguable construction of the complaint. Boyce assumes that standards of frivolity must be determined by reference to standards of pleading under the Federal Rules of Civil Procedure. The equation fails for a number of reasons. Analysis of frivolity must begin from an obvious but often overlooked point: it is part of a statute creating affirmative conditions" }, { "docid": "2315620", "title": "", "text": "bring a motion to dismiss. DISCUSSION I. Standard of Review In determining whether a complaint should be dismissed for failure to state a claim pursuant to Rule 12(b)(6), the Court must limit its consideration to the facts alleged in the complaint. Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir.1978). Moreover, in its examination of the complaint, the Court is required to accept all of the allegations contained therein and all inferences arising therefrom as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). If plaintiff can prove any set of facts in support of his claim that would entitle him to relief, his complaint should not be dismissed. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). It is recognized that pro se submissions “must be held to ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 101-102); see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Therefore, this Court will endeavor to construe plaintiffs complaint in a light' most favorable to the plaintiff. This Court will first examine plaintiffs claims against the defendant judges. Because plaintiff seeks both damages and injunctive relief, this Court will examine each of these issues separately. The Court then will examine plaintiffs claims against the State of New Jersey and the Administrative Office of the Courts. II. Claims Against Defendant Judges A. Claims for Damages It is well-established that judges are absolutely immune from liability for, damages for acts committed within their judicial discretion. Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978); Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 1,16 L.Ed.2d 9 (1991). A judge will not" }, { "docid": "18496315", "title": "", "text": "entities, e.g., the Healdton Police Department, the Wilson Police Department and the Carter County Sheriff’s Department. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992) (“Sheriffs departments and police departments are not usually considered legal entities subject to suit[.]”), citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.1985) (“The ‘City of Denver Police Department’ is not a separate suable entity, and the complaint will be dismissed as to it.”), vacated as moot, 800 F.2d 230 (10th Cir.1986). In summary, even under the less stringent standard applicable to pro se complaints, see Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988) (“Moreover, -pro se complaints, like the one involved here, are held ‘to less stringent standards than formal pleadings drafted by lawyers.’ ”), quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it is clear that the Plaintiff has wholly failed to state any actionable civil rights claims in his amended complaint. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (“[C]onelusory allegations without supporting factual avei’ments are insufficient to state a claim upon which relief can be based.”). Ordinarily, the Court would be required to grant the Plaintiff leave to amend before dismissing this action pursuant to Fed.R.Civ.P. 12(b)(6). See, e.g., McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991) (“[T]he preferred practice is to accord a plaintiff notice and an opportunity to amend his complaint before acting upon a motion to dismiss for failure to state a claim[.]”). See generally Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). The Court declines to do so here, however, for two reasons. First, it is well-established that a" }, { "docid": "330265", "title": "", "text": "in the nonmovant’s favor. See Conley v. Gibson, 355 U.S. at 45-6, 78 S.Ct. 99; Boyle v. United States, 200 F.3d at 1372; Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Hamlet v. United States, 873 F.2d at 1416; Ho v. U.S., 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (2002); Alaska v. United States, 32 Fed.Cl. at 695. If a defendant or the court challenges jurisdiction or plaintiffs’ claim for relief, however, the plaintiffs cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). “A motion to dismiss under Rule [12(b)(6)] for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not under the law entitle him to a remedy.” Perez v. United States, 156 F.3d at 1370. The court acknowledges that the plaintiff is proceeding pro se. Normally, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). The United States Court of Appeals for the Federal Circuit has similarly stated that “the pleadings of pro" }, { "docid": "937313", "title": "", "text": "the magistrate’s recommendations, and entered judgment following Milhouse’s failure to amend his complaint with respect to defendants Hudson, Jacobson, Divers and Cain. This appeal followed. II. Our review of the sufficiency of appellant’s pro se complaint, “however inartfully pleaded,” is less stringent than that of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). A pro se complaint may be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 520-21, 92 S.Ct. at 595-96, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Applying this standard of liberal construction to Milhouse’s pro se complaint, it becomes apparent that the district court erred by dismissing it for failure to state a claim upon which relief can be granted. We read appellant’s complaint as alleging that he was subjected to a conspiratorially planned series of disciplinary actions as retaliation for initiating a civil rights suit against prison officials. Such allegations, if proven at trial, would establish an infringement of Milhouse’s first amendment right of access to the courts. “[Pjersons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose of presenting their complaints.’ ” Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), quoting Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969). See also Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977) (“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.”). The right of access to the courts must be" }, { "docid": "17052526", "title": "", "text": "happened to him there and alleged that the District of Columbia “knew or should have known” that he had been mistreated. Warren’s five-page response to the District’s motion to dismiss provided more detail. It is often stated that pro se prisoner complaints should be “liberally construed.” E.g., Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). But that does not distinguish such complaints from any others. The general rule, applicable in all cases, is “that the complaint will be construed liberally on a Rule 12(b)(6) motion.” 5A CHARLES ALAN WRIGHT & ARTHUR R. Miller, Federal Praotioe AND Prooedure § 1357 (2d ed. 1987). In pro se prisoner cases, courts frequently add — after noting the “liberal construction” rule — that the complaint should not be dismissed under Rule 12(b)(6) unless “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). But again this is not unique for prisoner cases. It is the “accepted rule” in every type of case. Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02. Perhaps courts are more forgiving in pro se prisoner cases because the complaints are often handwritten; they may not follow formal pleading conventions; and they may not draw fine lines between the legal ly relevant and the legally irrelevant. For example, in one such case, we derived the prisoner’s cause of action not only from his formal complaint but also from other papers he had filed. See Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C.Cir.1998). Viewing Warren’s complaint and his response to the District’s motion to dismiss together, as did the district court, we discern the following allegations: prison officials used common needles to draw blood from Warren and members of" }, { "docid": "19378393", "title": "", "text": "prejudice, noting the absence of specific factual allegations of racial discrimination. II. STANDARD OF REVIEW AND SCOPE OF THE COMPLAINT In Richardson v. Fleming, 651 F.2d 366 (5th Cir. Unit A 1981), the predecessor of this court succinctly stated the standard applicable in this case: In testing the sufficiency of a ... complaint it must be remembered that the complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra. A ... pro se complaint “however inartfully pleaded” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 651 F.2d at 367-68; see also Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983) (“a pro se ... complaint is governed by ‘less stringent standards than formal pleadings drafted by lawyers' ”). Implicit in appellees’ arguments is the assumption that in order to reverse the district court’s order dismissing with prejudice, we must determine that appellant’s second amended complaint alone, not his original complaint as twice amended, states a claim on which relief can be granted. We reject this assumption and conclude that for purposes of sufficiency review, appellant’s complaint encompasses the initial submission and the first effort to amend as well as the second effort to amend. Our conclusion rests on three grounds. First, an expansive view of the complaint’s scope" }, { "docid": "9773271", "title": "", "text": "the Amended Complaint (“Count IV”) alleges the actions of OTS and the Individual Defendants violated 42 U.S.C. § 1985. Amended Complaint, ¶ 29. The Amended Complaint seeks $100,000,-000.00 in damages for this violation. Id., ad damnum clause, ¶4. The fifth count of the Amended Complaint (“Count V”) alleges the actions of OTS and the Individual Defendants constituted “abuse of process.” Amended Complaint, ¶ 30. Count V, like the other counts in the Amended Complaint, seeks $100,000,000.00 in damages. Id, ad damnum clause, ¶ 5. The OTS Motion was filed 7 March 1994. The Individual Defendants’ Motion followed on 9 March 1994. Discussion A. Standard of Review for Pro Se Submissions and Pleadings Pro se submissions “must be held to less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also (Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972)); United States v. Day, 969 F.2d 39, 42 (3rd. Cir.1992); Lewis v. Attorney Gen. of United States, 878 F.2d 714, 722 (3d Cir.1989). When reviewing a pro se complaint in this context, a court must assume a plaintiffs factual allegations are true and construe his claims liberally. Neitzke v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 1834 n. 9, 104 L.Ed.2d 338 (1989); Haines, 404 U.S. at 520, 92 S.Ct. at 595-96; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990). B. The OTS Motion As indicated, OTS moves to dismiss the Amended Complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6). 1. Standard of Review under Fed.R.Civ.P. 12(b)(1) A challenge to the court’s subject matter jurisdiction under Fed.R.Civ.P.12(b)(1) differs from an attack on the merits pursuant to Fed.R.Civ.P.12(b)(6) or" } ]

[ { "docid": "22652460", "title": "", "text": "copy of the charge, reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided. 416 U. S., at 142-146. These decisions underscore the truism that “ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, supra, at 167-168 (Powell, J., concurring in part); Goldberg v. Kelly, supra, at 263-266; Cafeteria Workers v. McElroy, supra, at 895. More precisely, our prior de cisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, at 263-271. We turn first to a description of the procedures for the termination of Social Security disability benefits, and thereafter consider the factors bearing upon the constitutional adequacy of these procedures. B The disability insurance program is administered jointly by state and federal agencies. State agencies make the initial determination whether a disability exists, when it began, and when it ceased. 42 U. S. C. §421 (a). The standards applied and the procedures followed are prescribed by the Secretary, see § 421 (b), who has delegated his responsibilities and powers under the Act to the SSA. See 40 Fed. Reg. 4473 (1975). In order to establish initial and continued entitlement to disability benefits a worker must" } ]

[ { "docid": "5200521", "title": "", "text": "v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.1994). But the initial question we decide is not whether Plaintiffs have forfeited a liberty interest by trespass or other violation of law, but what interest Plaintiffs allege they possessed (and then have been deprived of) in the first place. Plaintiffs’ factual allegations that the City prohibited them from being in city parks (in general, and in Williams Park specifically), on public sidewalks, and at bus shelters located on public sidewalks lead us to conclude that “there is more than a sheer possibility” that Plaintiffs have been deprived of a constitutionally protected liberty interest. Cf. Iqbal, 129 S.Ct. at 1949. Plaintiffs have sufficiently alleged that the City has deprived them of liberty interests in two ways, by 1) enforcing the trespass ordinance to prohibit them from having access to a specific park (Williams Park) as ordinarily used by the public; and 2) carrying out a policy of enforcing the ordinance to prohibit their use of all parks in the City open to the public generally. These allegations satisfy the first element for a procedural due process claim. And the parties do not dispute that state action is present. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). Therefore, due process is needed, and we must determine whether Section 20-30 provides the constitutionally adequate process that is due. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). To determine whether the ordinance satisfies the constitutional requirement of procedural due process, we apply the Mathews balancing test: identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 96 S.Ct. at 903." }, { "docid": "4125962", "title": "", "text": "provided in Mathews. There, the Supreme Court identified the factors to be considered in determining whether additional due process is required: [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. 1 The first Mathews factor is an assessment of the private interest that will be affected by the official action. Here, Plaintiffs explain that “[without an 1-130 approval, Ms. Ching faces imminent removal from the United States, thus undoubtedly causing immense hardship to herself and her husband.” The right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that protected liberty interests include “the right of the individual ... to marry, establish a home and bring up children”). The right to live with and not be separated from one’s immediate family is “a right that ranks high among the interests of the individual” and that cannot be taken away without procedural due process. Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Therefore, the first Mathews factor favors Joseph and Ching. 2 The second Mathews factor we consider is the risk of an erroneous deprivation of such interest through the procedures used and the probative value of additional procedural safeguards. In this case, the risk of an erroneous finding that a prior marriage was fraudulent is high in eases where an ex-spouse is relied upon for evidence that the previous marriage was fraudulent. Here, for example, USCIS officers went to Fong’s home and solicited from him his six-sentence statement; the BIA concluded on the basis" }, { "docid": "22327712", "title": "", "text": "U. S. 471, 481 (1972), we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures. The framework, established in Mathews v. Eldridge, 424 U. S. 319 (1976), requires consideration of three distinct factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous depriva tion of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335. The Court of Appeals upheld the District Court’s procedural modifications under the assumption that Sandin altered the first Mathews factor. It reasoned that, “[i]n this first factor, Sandin affects the due process balance: because only those conditions that constitute ‘atypical and significant hardships’ give rise to liberty interests, those interests will necessarily be of a weight requiring greater due process protection.” 372 F. 3d, at 358-359. This proposition does not follow from Sandin. Sandin concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all. Having found no liberty interest to be at stake, Sandin had no occasion to consider whether the private interest was weighty vis-á-vis the remaining Mathews factors. Applying the three factors set forth in Mathews, we find Ohio’s New Policy provides a sufficient level of process. We first consider the significance of the inmate’s interest in avoiding erroneous placement at OSP. Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all. See, e. g., Gerstein v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The private interest at stake here, while more than minimal, must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties. The second factor addresses the risk" }, { "docid": "15274273", "title": "", "text": "Order throughout the Pretrial Period. Traditional due process evaluation of such questions entails balancing three factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 1018-22, 25 L.Ed.2d 287 (1970)). We consider these in turn. a. The Private Interest to be Affected by the Official Action. The first factor weighs particularly heavily in this ease. The private interest at stake is not merely a defendant’s wish to use his property in whatever manner he sees fit. Here, that interest is augmented by an important liberty interest: the qualified right, under the sixth amendment, to counsel of choice. The restraining order severely affects that right by putting beyond the defendant’s reach assets which are demonstrably necessary to obtain the legal counsel he desires. The temporary, nonfinal deprivation is, in that respect, effectively a permanent one. See Moya-Gomez, 860 F.2d at 726 (“The defendant needs the attorney now if the attorney is to do him any good.”). In the decision remanding the instant case to this court, the Supreme Court held that “neither of the Fifth or Sixth Amendments to the Constitution requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant’s legal fees.” Monsanto III, 109 S.Ct. at 2666 (citing and following Caplin & Drysdale, 109 S.Ct. at 2651). In addressing, however, the situation posed by a pretrial restraint of assets needed to retain counsel when those assets concededly have not been “adjudged to be forfeitable,” the Court ruled only that “no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order ... [restraining] assets prior to trial.” Monsanto III," }, { "docid": "21723435", "title": "", "text": "Barry, 107 F.3d 32, 37 (D.C.Cir.1997) (concluding that a property interest in the receipt of shelter resources did not exist where D.C. law did not mandate any particular priority system for the distribution of limited shelter resources ). We agree with these other courts’ approach. Under state law, eligible HEAP applicants are entitled to receive benefits, so long as funding for such benefits remains available. See N.Y. Soc. Serv. L. § 97[2]; NY. Comp.Codes R. & Regs. tit. 18, § 393.4(c). To the extent that LI-HEAA program funds are available, the fact that the HEAP program is, as a general matter, limited to the extent of federal funding does not matter. Plaintiffs’ claim of entitlement — while funds remain available — is the same as it would be were the program not contingent on the availability of sufficient funds. We therefore conclude that plaintiffs possess a valid property interest in the receipt of regular HEAP benefits. ii. Process Due Having determined that plaintiffs possessed a protected property interest, we must determine “what process plaintiffs were due before they could be deprived of that interest.” Sealed, 332 F.3d at 55. In doing so, we apply the Supreme Court’s familiar Mathews v. Eldridge test. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Pursuant to this test, we conclude that the process due to applicants for HEAP benefits is notice of the reasons for the agency’s preliminary determination, and an opportunity to be heard in response. Cf. Abuhamra, 389 F.3d at 320-21. Under Mathews, three factors guide our decision: 1) the private interest affected; 2) the risk of erroneous deprivation, and the probable value, if any, “of additional or substitute procedural safeguards”; and 3) the government’s interest, which may include the fiscal and administrative burdens that additional procedures would impose. See id. at 335, 96 S.Ct. 893. Because the plaintiffs have not appealed the district court’s determination that they were not entitled to the full procedural relief requested below, we restrict our discussion to the propriety of the procedures ordered by the district court. As the" }, { "docid": "22731220", "title": "", "text": "a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway.” The court regarded such a prior hearing as mandated by this Court’s decision in Bell v. Burson, 402 U. S. 535 (1971). Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing § 6-206 (a)(3). The Secretary appealed, and we noted probable jurisdiction sub nom. Howlett v. Love, 429 U. S. 813 (1976). Ill It is clear that the Due Process Clause applies to the deprivation of a driver’s license by the State: “Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U. S., at 539. It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under § 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in Mathews v. Eldridge, 424 U. S. 319, 333 (1976), namely, “the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter.” We may analyze the present case, too, in terms of the factors considered in Eldridge: “[Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335. The private interest affected by the decision here" }, { "docid": "23603678", "title": "", "text": "to protect the interest in freedom from bodily intrusion that is retained by an involuntarily-committed individual after a prior due process proceeding that significantly curtails his basic liberty interest. Ill There is of course no across-the-board prescription for procedural due process. The concept “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600. More specifically, the process due in particular situations generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). These factors provide the framework for assessment of the procedural protections due here. Charters and his supporting amicus, predictably emphasizing the highly sensitive nature of the individual interest at stake, contend that once an inmate has manifested objection to medication, only an elaborate two-stage procedural process is adequate to protect the interest thereby asserted. To provide it, they contend for a plenary judicial proceeding in an appropriate district court. In the first stage, an adversarial factfinding process would be used by the court to determine whether the inmate was mentally competent to make a rational decision respecting his own best interests — whether to accept the medication or not. If found competent in this respect, his objection must be honored. If found incompetent, the court would then make a “substituted” judicial judgment of the inmate’s “best interests.” Given the undoubtedly sensitive nature of the individual liberty interest at stake, there may be great instinctive appeal to the notion that only a panoply of procedural protections this complex and multilayered is adequate to protect it. This was the view advanced in the vacated panel opinion in this case, which directed just such a procedure." }, { "docid": "17406176", "title": "", "text": "at 224, 125 S.Ct. 2384 (internal quotation marks omitted). Thus, in determining what process is due, courts rely not on rigid rules, but on the framework articulated in Mathews v. Eldridge. Under Mathews, courts consider three factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. 893. The first Mathews factor, the private interest at stake, is to be evaluated “within the context of the prison system and its attendant curtailment of liberties.” Wilkinson, 545 U.S. at 225, 125 S.Ct. 2384. “[T]he procedural protections to which [prisoners] are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all.” Id. The second factor looks to the risk of erroneous deprivation through the procedures used and the value of any additional safeguards. The Supreme Court has stated that notice of the factual basis for the government’s decision and a “fair opportunity for rebuttal” are “among the most important procedural mechanisms for purposes of avoiding erroneous deprivations.” Id. at 226, 125 S.Ct. 2384. The third factor, the government’s interest and burden of additional procedures, is a “dominant consideration” in the context of prison management. Id. at. 227, 125 S.Ct. 2384. The government must ensure the safety of guards and other prison personnel, other inmates, and the public. It must be able to prevent prison violence. In the case of inmates who purportedly have links to terrorist organizations, the danger to the public is all the greater. Finally, the simple issue of time and money and the resources necessary to put in place additional procedures are relevant. Hewitt v. Helms specifies the minimum procedures for placing an inmate in segregative conditions if he has a liberty interest in avoiding such segregation. See Hatch," }, { "docid": "23358192", "title": "", "text": "a claim against a proper party, the complaint and the arbitrator’s decision attached to the complaint reveal that the plaintiff has failed to allege a constitutional violation. In order to properly plead a section 1983 violation the plaintiff must also allege that he was deprived of a right “secured by the Constitution____” As previously noted, Papapetropoulous alleged in his complaint that he was deprived of his property interest in his job without due process of law when the arbitrator denied him the right to a thorough cross-examination of the complaining witness, when he based his decision upon the uncorroborated hearsay testimony of the complaining witness’ social worker and when he applied an incorrect burden of proof in rendering his decision upholding the dismissal of Papapetro-poulous. Due process is a flexible concept that requires “some form of hearing____ ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In Mathews the Supreme Court identified three factors that generally should be considered in determining whether the requirements of due process are satisfied: “First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved in the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335. Applying the factors elicited in Mathews to the facts in this case, the first factor cited in Mathews clearly favors the plaintiff as he has a substantial interest in retaining his job. The second factor weighs in Milwaukee Transport’s favor as the risk of an erroneous deprivation through the procedures used in terminating Papapetropoulous was minimal at best. Although the precise scope of the protections in the context of public employment is “far from clear,” at a minimum they include “prior notice of the" }, { "docid": "15975124", "title": "", "text": "v. United States Department of Agriculture, 713 F.2d 179, 183 (6th Cir.1983). Although the parties disagree as to the type of hearing required here, they agree on the proper test to be used to make that determination. The test is basically one of balancing the government’s interest against the private interest involved. Three factors are considered: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation through current procedures and the appropriateness of additional procedural safeguards; and (3) the government’s interest, including the governmental function involved and the administrative burdens imposed by additional safeguards. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See also Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 1018-22, 25 L.Ed.2d 287 (1970). Applying the proper factors to the instant case, we conclude that the trial court was incorrect in requiring such an extensive predetermination hearing for persons who were denied original eligibility and for present participants in the program. In considering the first factor of the private interest affected by the official action, potential and current participants have different private interests. Participants who are terminated or denied recertification are deprived of their present shelter. Their loss is greater than that of persons from whom a benefit it withheld through denial of initial eligibility. The difference in interests is particularly apparent since a determination of eligibility does not guarantee a place to live. An individual who receives a certificate of eligibility still must find an appropriate unit and a willing landlord. C.F.R. § 882.103 (1983). 24 The second factor to consider is the risk of erroneous deprivation through current procedures and the appropriateness of additional safeguards. In this case the risk of erroneous deprivation is great. The trial court essentially found that no protection was provided to applicants or current participants, either before or after eligibility and termination decisions were made. Contrary to defendants’ argument, the occasional fortuitous inclusion of a tenant in the resolution of a claim between the housing authority and the landlord affords no protection to" }, { "docid": "21839512", "title": "", "text": "protection in this proceeding. 2. Whether the Rulemaking Complied with Due Process Regardless of whether FBME’s connections to the United States are sufficient to establish a general right to due process, thé Court agrees with Fin-CEN that the procedures it afforded the Bank (with the exceptions noted in this opinion) complied with both the APA and constitutional due process. Claims of denials of due process are evaluated under the familiar framework set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews requires the Court to balance three factors: “[f]irst, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and. administrative burden that the additional or substitute procedural requirement would entail.” Id. FBME’s “private interest” in maintaining correspondent accounts (whether or not the ability to do so is a constitutionally-protected property interest) is undeniably substantial: the inability to conduct U.S. dollar transactions would present a potentially existential threat to any international bank. But so too is the United States’ interest in preventing international criminal and terrorist organizations from using unscrupulous (or merely inattentive) banks to launder funds though the international financial system. As the Court has noted, “[ejliminating [terrorist and transnational criminal] financing, and extricating it from the U.S. financial system, are of paramount importance to the Government and the public.” FMBE I, 125 F.Supp.3d at 128. Give the weighty interests on both sides of the scale, application of the Mathews test in this case boils down to its second factor: the risk of an erroneous deprivation through the procedures used and the probable value of additional procedures. In making this assessment, the Court is mindful that “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). Rather," }, { "docid": "14587891", "title": "", "text": "what process was due the plaintiff by applying the analysis set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews held that the identification of the specific dictates of due process generally requires consideration of three different factors: (1) the private interest that will be 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. The Biliski court found that the plaintiff had a significant interest in his job, but that his employer had a significant countervailing interest in removing employees who fail to perform, display inappropriate behaviors, and have been warned to change their behavior, and in doing so without undue administrative costs. Biliski, 574 F.3d at 221. The court found that the most important factors to consider in a procedural due process analysis were the risk of erroneous deprivation from the existing procedure and the likely value of additional procedural safeguards. Id. Weighing these interests, the Biliski court found that the employee received disciplinary memos giving him notice of the behavior for which his employer sought to terminate him. Id. at 221-22 After his termination date, the employee had a chance to send a letter to the Board with the authority to terminate him. Id. at 222. The court held that the letter and the fact it was considered at the meeting provided the employee a meaningful opportunity to be heard and to give his version of events. Id. The court held that the plaintiff had failed to show that additional procedural safeguards would have led to a different result. Id. at 223. Before the Supreme Court’s decisions in Goss, Horowitz, and Mathews, the Third Circuit addressed due process for disciplinary proceedings in Sill v. Pennsylvania State University, 462 F.2d 463 (3d Cir.1972). The students in Sill challenged a special panel assembled by the University’s Board" }, { "docid": "10168818", "title": "", "text": "action; second, 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 finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Accord, Adams, 94 B.R. at 846-48. The private interest here is very strong, since the outcome will result in loss of shelter to a person likely to be of very limited means. Sensitivity to this issue has undoubtedly motivated the PMC to establish some procedure short of merely accepting the landlord’s ex parte Affidavit as a basis for proceeding. This procedure, however, featured the following notice requirements: (1) a single, regular-mail letter, which (2) fails to set forth or even summarize the contents of the Affidavit of default, and (3) which provides only five days to respond, and (4) even then, to respond in a manner which is not officially to the court and hence of which no record can be made. A more reliable form of notice and a procedure which better guarantees an opportunity of the tenant to a judicial determination of whether an Agreement is violated would seem necessary. The present procedure creates a risk of an erroneous deprivation of a leasehold to a tenant. Establishment of a procedure, according to specific rules, which assures judicial oversight of the agreement-enforcement process would not appear to be unduly burdensome. We were also impressed with that portion of Simpson’s testimony which indicated that, being regulated only by unwritten rules, the PMC procedure for enforcing agreements tends to be ad hoc and, consequently, arbitrary. The crucial distinction as to whether the landlord alleging a violation of an agreement can use the truncated procedure, must file a new complaint, or where the PMC sets up a hearing after receipt of the landlord’s Affudavut if default — a third variation which Simpson introduced near the end of his testimony as appropriate when the court administrator has a question as to whether “an agreement was good or bad” — appears to be" }, { "docid": "6920280", "title": "", "text": "contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Wilkinson, 125 S.Ct. at 2394-95 (citations omitted). Having determined that the conditions at the Ohio supermax facility imposed an atypical and significant hardship within the correctional context and thus constituted the deprivation of a liberty interest, the Supreme Court turned to the question of what process was required before such conditions were imposed on a prisoner. Reminding the reader that the Court previously has avoided the use of rigid rules, see Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in favor of flexibility tailored to the particular situation, the Court articulated the familiar framework of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that requires a court to consider the following three factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. 893. With respect to the first factor, the Court noted that the private interest of the prisoner to be free from confinement, while “more than minimal,” had to be evaluated in the context of the prison system where, pursuant to a lawful sentence, confinement already has curtailed liberty to a great degree. Wilkinson, 125 S.Ct. at 2395. The private liberty interest, then," }, { "docid": "5659384", "title": "", "text": "is a function of three factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail. Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See Mattern v. Matthews, 582 F.2d 248, 254-57 (3d Cir. 1978), cert. denied, — U.S. —, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979). The factor which calls most strongly for a pre-enforcement hearing is the risk of an erroneous deprivation of property rights. As we have stated, the district court should not issue a tracing order that is unreasonably burdensome on the telephone company. The court is not likely to know most of the facts that would make an order too burdensome unless the company informs it of such facts. These facts include the type of switching equipment that will have to be utilized, the number of central offices carrying the calls, what sort of preparations might be possible, and the periods during which telephone company personnel would have to stand ready to execute a trace. Without a prior hearing, a district court is not likely to learn that a tracing order is too burdensome until after the company has carried out the order. A prior hearing could have the further value of allowing the district court to restrict any excessively burdensome order sufficiently to make it valid. Therefore, the only meaningful time for a hearing on a challenge to a tracing order is prior to its enforcement. The contract and property rights which a pre-enforcement order would protect are probably not the most zealously guarded rights in modern due process cases. Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (right of welfare recipients to benefits necessary for subsistence). Nonetheless, these rights are of primary importance to a large business enterprise. Companies" }, { "docid": "10168817", "title": "", "text": "to the contrary should not be relevant. A court cannot change its own rules as written simply because certain litigants wish to or even agree to employ different procedures. Furthermore, we question whether the unwritten, truncated procedure recited by Simpson and set forth at Finding of Fact 12, pages 211-12 supra, can withstand constitutional muster in any event. First, the procedure is not codified by Rules, which renders its employment suspect. More substantively, it seems to us that, if a party wishes to transform an executory agreement into a totally-enforceable judgment, that party must be obliged to present a motion, after reasonable notice to the adverse party, which comes before the court for disposition. We note that, in Mathews v. Eldridge, 424 U.S. 319, 345, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976), the Supreme Court held that the following three elements must be considered to determine whether particular procedures satisfy the requirements of due process in the context of a given fact situation: first, the private interest that will be affected by the official action; second, 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 finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Accord, Adams, 94 B.R. at 846-48. The private interest here is very strong, since the outcome will result in loss of shelter to a person likely to be of very limited means. Sensitivity to this issue has undoubtedly motivated the PMC to establish some procedure short of merely accepting the landlord’s ex parte Affidavit as a basis for proceeding. This procedure, however, featured the following notice requirements: (1) a single, regular-mail letter, which (2) fails to set forth or even summarize the contents of the Affidavit of default, and (3) which provides only five days to respond, and (4) even then, to respond in a manner which is not officially to the court and hence of which no record can be made. A more" }, { "docid": "23358193", "title": "", "text": "L.Ed.2d 62 (1965)). In Mathews the Supreme Court identified three factors that generally should be considered in determining whether the requirements of due process are satisfied: “First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved in the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335. Applying the factors elicited in Mathews to the facts in this case, the first factor cited in Mathews clearly favors the plaintiff as he has a substantial interest in retaining his job. The second factor weighs in Milwaukee Transport’s favor as the risk of an erroneous deprivation through the procedures used in terminating Papapetropoulous was minimal at best. Although the precise scope of the protections in the context of public employment is “far from clear,” at a minimum they include “prior notice of the discharge, and the reasons for it, and a meaningful opportunity to respond prior to termination.” Schultz v. Baumgart, 738 F.2d 236, 237 (7th Cir.1984). See Rodgers v. Norfolk School Bd., 755 F.2d 59, 63 (7th Cir.1985). In this case, Papapetropoulous was fully informed of the charges against him, he knew the identity of the victim and he had an opportunity to gather evidence in his behalf prior to the arbitration proceeding. Further, at that hearing he had an opportunity to testify before an independent arbitrator, conduct a limited cross-examination of the young woman and a complete cross-examination of the social worker. Finally, he was represented by his own counsel as well as the union’s counsel during the hearing. Papapetropoulous complains that he was denied procedural due process when the young woman was excused from testifying further after she broke down, continued to cry and was unable to compose herself to a degree tht would allow him to complete his cross-examination. As established in this court’s recent decision in Green v. Bd. of Sch. Com’rs. of" }, { "docid": "14587890", "title": "", "text": "Id. The Palmer court held that the school’s governmental interest was the same as in Goss — to maintain order and discipline without prohibitive costs and disruption— and that the additional procedures demanded by the student would not be materially different in efficacy. The court held that the slightly greater deprivation to the Palmer student did not warrant the additional procedures. Id. at 96. The most recent Third Circuit case addressing the requirements of procedural due process involved an employee terminated by a school board for poor performance and inappropriate behavior. Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214 (3d Cir.2009). In Biliski, the district court had dismissed the plaintiffs due process claims on the ground that he did not have a property interest in his continued at-will employment. Id. at 219. On appeal, the Third Circuit upheld the decision on different grounds, holding that, assuming that the employee had a property interest in con tinued employment, he had received due process before being terminated. Id. The Biliski court determined what process was due the plaintiff by applying the analysis set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews held that the identification of the specific dictates of due process generally requires consideration of three different factors: (1) the private interest that will be 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. The Biliski court found that the plaintiff had a significant interest in his job, but that his employer had a significant countervailing interest in removing employees who fail to perform, display inappropriate behaviors, and have been warned to change their behavior, and in doing so without undue administrative costs. Biliski, 574 F.3d at 221. The court found that the most important factors to consider in a procedural due" }, { "docid": "2556342", "title": "", "text": "112 S.Ct. 2572, 2576, 120 L.Ed.2d 353 (1992). Mathews set out a three-part test to determine the type and amount of procedure required by the Due Process Clause in an administrative proceeding: [Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. at 903. As to the first Mathews factor, the Supreme Court recognized the significant private interest in retaining employment and “the severity of depriving a person of the means of livelihood,” explaining that “[w]hile a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494 (1985). The strength of the private interest in retaining employment is the same in this ease. The second Mathews factor weighs the risk of an erroneous deprivation and the value of additional procedures. Loudermill recognized that dismissals for cause will often involve factual disputes, and that even when the facts are clear, the appropriateness or necessity of the discharge may not be. 470 U.S. at 543, 105 S.Ct. at 1493-94. In addressing the specific question of what process is due a government employee faced with termination for cause, Loudermill applied Mathews to determine the appropriate pre-termination process, but it based its evaluation of the constitutionality of that process in large part on the presence of significant post-termination procedures. Id. at 546, 105 S.Ct. at 1495. Similarly, we must evaluate the constitutionality of post-termination process in light of the pre-termination procedures it follows. When the pre-termination process offers little or no opportunity for the employee" }, { "docid": "5760801", "title": "", "text": "system. We need not decide here whether these procedures would be constitutionally sufficient if a favorable decision by the Airport Authority would have enabled Eagle to begin operation of the landfill immediately or within a short time thereafter. Here, on September 25, 1996 — almost four months before the Airport Authority’s adverse action — the PDEP suspended Eagle’s construction permits for Happy Landing because the proposed site contained protected wetlands. Both the Pennsylvania Environmental Hearing Board and a state court have upheld this suspension, which continues in effect pending Eagle’s latest appeal. Consequently, even if the Airport Authority had granted Eagle permission to construct the landfill pursuant to the 1996 Amendment, Eagle would have been unable to do so because of the suspension of the construction permits. Under these circumstances, the availability of review under 2 Pa. Cons. Stat. Ann. § 752 satisfied due process. Cf. Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3d Cir.l984)(state may provide adequate due process when it provides “ ‘reasonable remedies to rectify a legal error by a local administrative body’ ”) (citation omitted). “[IJdentification of the specific dictates of [procedural] due process requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, 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 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In this case, although Eagle had a substantial interest in the development of its property as a landfill, Eagle could not have developed the property for this landfill use until it obtained the necessary permits from the PDEP. While Eagle was attempting to obtain those permits, it could have contested the action of the Airport Authority in the state courts. Thus, as a practical matter, the adverse effects during the relevant time period of the Airport Authority’s action" } ]

[ { "docid": "22581634", "title": "", "text": "798 F.2d 348, 350 (9th Cir.1985) (imposing monetary penalty against government under Fed.R.Civ.P. 60(b) without addressing sovereign immunity); United States v. National Medical Enters., Inc., 792 F.2d 906, 910-11 (9th Cir.1986) (upholding penalty against government imposed under Fed.R.Civ.P. 37(b) without addressing sovereign immunity). Two panels in the Ninth Circuit have suggested that the Civil Rules themselves, having been authorized by Congress, may provide the basis for a waiver of sovereign immunity. See Mattingly v. United States, 939 F.2d 816, 818 (9th Cir.1991) (discussing Fed.R.Civ.P. 11); Barry v. Bowen, 884 F.2d 442, 444 (9th Cir.1989) (same). At the same time, monetary penalties under court rules have been found to be barred by sovereign immunity in other contexts. See, e.g., United States v. Woodley, 9 F.3d 774, 781-82 (9th Cir.1993) (holding that neither a local rule nor Fed.R.Crim.P. 16(d)(2) works a waiver). And, moreover, even though a federal statute, 18 U.S.C. § 401, confers broad powers upon federal district courts to punish contumacious conduct, most courts continue to hold that sovereign immunity bars court-imposed fines for contempt against the government. See Coleman v. Espy, 986 F.2d 1184, 1191-92 (8th Cir.1993) (holding that compensatory contempt sanctions are barred by sovereign immunity); Barry, 884 F.2d at 444 (holding that coercive contempt sanctions are barred by sovereign immunity); see also McBride v. Coleman, 955 F.2d 571, 576-77 (8th Cir.1992) (dictum; expressing grave doubt that compensatory contempt sanctions can override sovereign immunity). But see Armstrong v. Executive Office of the Pres., 821 F.Supp. 761, 773 (D.D.C.1993) (holding, without undertaking any waiver analysis, that a coercive contempt sanction is not barred by sovereign immunity). To our knowledge, no court has considered on the merits the applicability of sovereign immunity to a monetary penalty assessed under the judiciary’s supervisory power in a criminal case. III. ANALYSIS In this case, the doctrines of sovereign immunity and supervisory power, each formi dable in its own right, are in unavoidable tension. Despite the fact that, in recent years, the domain of sovereign immunity has tended to contract and the domain of supervisory power has tended to expand, we believe that sovereign" } ]

[ { "docid": "22221803", "title": "", "text": "it granted Adam-son’s Rule 11 motion, the district court declined to certify the proposed class action. Both sides have appealed aspects of the district court’s rulings. The Secretary asserts that (1) the Rule 11 sanctions are barred by sovereign immunity; and (2) if not barred, the sanctions were imposed for conduct not deserving reprimand. Adam-son argues that (1) the issue of certification of the class is not mooted by the resolution of his individual claims; and (2) the district court improperly denied class certification. I The Secretary’s first argument — that imposing monetary sanctions against him under Fed.R.Civ.P. 11 violates the federal government’s sovereign immunity — apparently is an issue of first impression. Unless the United States has waived its sovereign immunity, the government is immune from actions for attorney’s fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983). The courts have not discussed the specific issue whether the United States has waived immunity from monetary sanctions under Rule 11. Although the court in National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D.Cal.1987), acknowledged the issue, the defendant Veterans Administration there expressly declined to assert immunity as a defense. Id. at 562. Other courts, while discussing or even awarding fee sanctions against the government under Rule 11, have not discussed the question of sovereign immunity. See, e.g., Larkin v. Heckler, 584 F.Supp. 512, 513-14 (N.D.Cal.1984) (imposing attorney’s fees against Secretary of Health & Human Services); Mager v. Heckler, 621 F.Supp. 1009, 1012-13 (D.Colo.1985) (declining to impose Rule 11 sanctions against United States). The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1981), expressly waives immunity against attorney’s fee awards. Under § 2412(b) of the EAJA, the United States is liable for attorney’s fees “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” Id. (emphasis added). This section, enacted in 1980 and remaining in force to the present, would appear on its face to be sufficiently broad to waive" }, { "docid": "567837", "title": "", "text": "amount that was paid each month for rent. His argument is without merit. He relies primarily on Richlands Medical Ass’n v. Harris, 651 F.2d 931 (4th Cir.1981). In Richlands, the parties were unrelated organizations when the lease was signed. Id. at 936. In this case, Lynn terminated the prior lease for nonpayment before Imperial took over as White Pine’s operator. From its first day as operator, Imperial was related to the trust. A related provider is limited to its supplier’s actual costs even though the charged rent is fair. We have held that once organizations are deemed related, the regulation “operates as a prophylactic rule and defines any charges [exceeding the supplier’s] actual costs as per se unreasonable.” Goleta Valley, 647 F.2d at 897. The court did not err in ordering restitution or in its calculations. VII. Sanctions Against the Government The court ordered the government to pay $6,916.64 as attorneys’ fees and costs related to the Fay letter discovery process. It imposed this sanction under the Western District of Washington Local Rule GR 3(d), the Federal Rule of Criminal Procedure 16(d)(2) and its supervisory powers. The government appeals and argues that the sanctions were unwarranted and barred by sovereign immunity. We review de novo whether sovereign immunity bars the imposition of sanctions. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985). A court may impose money awards against the United States only under an express waiver of sovereign immunity. See Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). There was no express waiver here. a. Local Rule GR 3(d) Few cases discuss sovereign immunity in the context of fees or costs awarded against the United States under a local federal rule. The few courts that have discussed this issue conclude that a local rule is insufficient because it does not waive sovereign immunity. See United States v. 50.50 Acres of Land, 931 F.2d 1349, 1356 n. 5 (9th Cir.1991). We hold that assessing monetary sanctions against the government under this local rule is subject to the same infirmity. There was no" }, { "docid": "567840", "title": "", "text": "absence of a statute or under the most unusual circumstances”). Civil Rules 11 and 37(b) expressly provide for monetary sanctions. Rule 11 requires a court to impose upon an offending party “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 pleading, ... including a reasonable attorney’s fee.” Fed. R.Civ.P. 11. Similarly, Rule 37(b) provides that a court may sanction a party for failing to comply with a discovery order by requiring the party “to pay the reasonable expenses, including attorney’s fees, caused by the failure” to comply. Fed.R.Civ.P. 37(b)(2). Unlike these Civil Rules, Federal Rule of Criminal Procedure 16(d)(2) provides no independent authority for a monetary sanction against the government. The Rule only provides a court with authority to “prescribe such terms and conditions as are just” to remedy a violation of a discovery order. Fed.R.Crim.P. 16(d)(2). We think such language is insufficient to constitute an express waiver of sovereign immunity. We also note that, in general, “federal courts cannot ... alter the uniform system of cost-bearing created by Congress.” Zambrano v. City of Tustin, 885 F.2d 1473, 1481 (9th Cir.1989); see also International Video Corp. v. Ampex Corp., 484 F.2d 634, 637 (9th Cir.1973) (attorney’s fees award “ordinarily improper in the absence of a statute or under the most unusual circumstances”). Congress did not extend “any roving authority to the Judiciary to allow counsel fees as costs or otherwise wherever courts might deem them warranted.” Zambrano, 885 F.2d at 1481. The district court said that it sanctioned the government to send a “significant and strong message” that it would not tolerate such misconduct. But, it found that only the Fay letter was clearly Brady material. It took the unusual step of allowing Woodley’s attorney to depose those witnesses with knowledge of the letter. This cured any possible prejudice. c. Supervisory Powers Sovereign immunity does not bar a court from imposing monetary sanctions under an exercise of its supervisory powers. These powers are judicially created to remedy a violation of recognized" }, { "docid": "22581662", "title": "", "text": "-, 112 S.Ct. 39, 116 L.Ed.2d 18 (1992), the court granted a motion for sanctions against the federal government made under Rule 11, 28 U.S.C. § 1926, and the court's inherent powers, without specifying the source for the sanction imposed. See also United States v. Prince, 1994 WL 99231 at *1-2, 1994 U.S.Dist. LEXIS 2962 at *1-*4 (E.D.N.Y.1994) (withdrawing assessment of jury costs against U.S. Attorney’s Office under court's supervisory power, in the face of a motion for reconsideration arguing constraints imposed by sovereign immunity). . We see no way to avoid this tension by upholding the fee award on an alternative ground. While government counsel's disobedience and deception of the court perhaps could have been punished under the contempt statute, 18 U.S.C. § 401, and the entire fiasco, if conceived as a discovery violation within the ambit of Fed. R.Crim.P. 16(b)(2), might have been punishable under the broadly worded sanction authority of Fed.R.Crim.P. 16(d)(2), these possibilities afford no hope of averting a head-on collision between judicial power and sovereign immunity. In the first place, the district court’s order made it pellucid that supervisory power comprised the sole foundation on which the monetary sanction rested. See Horn, 811 F.Supp. at 753-54. We will not go behind such a determination and speculate what the court might (or might not) have done had it analyzed the prosecutor's misconduct under a different standard. See R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 19 (1st Cir.1991). In the second place, neither section 401 nor Criminal Rule 16 offer a vehicle powerful enough to overrun sovereign immunity. See Woodley, 9 F.3d at 781-82 (holding that Fed.R.Crim.P. 16 does not work a waiver of sovereign immunity); Espy, 986 F.2d at 1191 (holding that 18 U.S.C. § 401 does not work a waiver of sovereign immunity). Thus, dressing the district court's decision in different, less confrontational garb would not sidestep the imminent doctrinal clash. . At early common law, costs were awarded to prevailing parties as a matter of course in all cases. See Arthur L. Goodhart, Costs, 38 Yale L.J. 849, 851-53 (1929). Before" }, { "docid": "22581665", "title": "", "text": ". In this regard, fines for civil contempt under 18 U.S.C. § 401, quoted supra note 9, are of special interest because contempt originated as an aspect of the supervisory power, see Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966), and it continues to serve essentially \"the same purpose” as do sanctions imposed under the supervisory power in respect to litigants’ and lawyers' bad-faith tactics, Chambers, 501 U.S. at 53, 111 S.Ct. at 2137 (citation omitted). The better reasoned decisions hold that, when the two doctrines lock horns, contempt is barred by sovereign immunity. See supra p. 17. Although these decisions have little bearing here because they turn, explicitly or implicitly, on statutory interpretation, they do show that the principle of immunity to monetary damages is understood by thoughtful courts to sweep broadly. . There would seem to be no sovereign immunity bar to imposing a monetary penalty as a sanction against a rogue attorney merely because she happens to represent the federal government. See Larson, 337 U.S. at 693, 69 S.Ct. at 1463 (noting that sovereign immunity does not protect federal officials in the performance of acts that are unconstitutional or beyond their statutory authority); see also Chilcutt, 4 F.3d at 1327; Sumitomo Marine, 617 F.2d at 1370-71. . Although the district court eschewed these additional remedies, the Justice Department later engaged its internal disciplinary mechanism on its own initiative. . The statute provides in pertinent part, with exceptions not relevant here, that “the courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States....” 28 U.S.C. § 1291. . We are not the first court to deem an assessment against the government qua prosecutor to be a collateral order for jurisdictional purposes. See United States v. Baker, 603 F.2d 759, 761-62 (9th Cir.1979) (per curiam) (entertaining government appeal, under section 1291, from district court's Rule 15(c) assessment against government of deposition-related attorneys’ fees); United States v. Rogalsky, 575 F.2d 457, 459 (3d Cir.1978) (entertaining government appeal, under section 1291, from" }, { "docid": "7332837", "title": "", "text": "exempting the United States government from Rule 11 on the ground of sovereign immunity. This conclusion, we noted, was in keeping with our prior holding that the government is subject to the sanction provisions of Rule 37(b). Id. See United States v. National Medical Enterprises, Inc., 792 F.2d 906 (9th Cir.1986). The government is not immune from Rule 11 sanctions. The government next argues that if it is subject to sanctions under Rule 11, the sanctions should be limited to attorneys’ fees. It points out that the leading cases involving sanctions against the government did involve the imposition of attorneys’ fees. It contends that if there is any basis for sanctioning the government, the basis lies in the provisions of the Equal Access to Justice Act, 28 U.S.C. § 2412(b), authorizing the imposition of attorneys’ fees in favor of a prevailing party under certain circumstances. That Act, according to the government, serves as a limited waiver of immunity, but does not authorize the imposition of sanctions. The Rules of Civil Procedure, however, apply by their own force to all litigants before the court. See Fed.R.Civ.P. 1 (“These rules govern the procedure in the United States district courts in all suits of a civil nature_”); Fed.R.Civ.P. 81 (listing specific instances where the rules do not apply, and failing to exempt the United States in any way). Rule 11 itself contains no exemption for attorneys representing the United States. Since Congress authorized the promulgation of these rules, applying them to the government with full force cannot be said to violate the principles of sovereign immunity. See 28 U.S.C. § 2072 (1988). Cf. Barry v. Bowen, 884 F.2d 442, 444 (9th Cir.1989) (sanction against the government under the Equal Access to Justice Act for failure to pay attorney’s fees in a timely fashion inappropriate because, unlike Rules of Civil Procedure, which “can be viewed as an explicit waiver of sovereign immunity,” the Act does not specifically authorize such a sanction); United States v. McPherson, 840 F.2d 244 (4th Cir.1988) (refusing to consider awarding attorneys’ fees under Rule 11 to a pro se plaintiff" }, { "docid": "18742047", "title": "", "text": "are reviewed de novo. In re Chase & Sanborn Corp., 904 F.2d 588, 593 (11th Cir.1990). Title 11, the Bankruptcy Code, specifically provides for waiver of sovereign immunity in certain circumstances. 11 U.S.C. § 106. Absent waiver, sovereign immunity precludes monetary recovery from the federal government. See generally United States v. Nordic Village, Inc., — U.S. -, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The Government’s consent to be sued for monetary relief must be “unequivocally expressed” by Congress; without an unequivocal expression of congressional intent to waive sovereign immunity, any perceived waiver is ineffectual. King, 395 U.S. at 4, 89 S.Ct. at 1503. Where Congress provides for waiver of sovereign immunity by statute, the terms of the waiver are narrowly and strictly construed in the sovereign’s favor. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990). On appeal, Hardy argues that sovereign immunity does not apply to “sanctions” in the form of court costs, attorney’s fees and punitive damages. Alternatively, the Appellant contends that sovereign immunity in this ease has been waived. There is no binding or substantially persuasive authority cited in Hardy’s brief (or revealed by the Court’s research) that recognizes the distinction Hardy finds for purposes of sovereign immunity in the meanings of “sanctions” (and all that Hardy includes therein) and “monetary judgment.” The Court does not agree that sovereign immunity, as traditionally espoused by the courts, embraces Hardy’s semantical distinction. To conclude otherwise would render superfluous federal statutory provisions clearly intended to effect waiver of sovereign immunity for the limited purpose of allowing a recovery of costs against the Government. See, e.g., 42 U.S.C. §§ 2000e-5(k), 2000a-3(b); 5 U.S.C. § 552(a)(4)(E). Sovereign immunity forecloses all actions against the Government that, if successful, would require payment of funds from the United States Treasury. This is so regardless of the nomenclature used to describe the recovery. Hardy’s action," }, { "docid": "10642878", "title": "", "text": "this case presents no facts implicating any connection to commerce, we decline to address the state prison officials’ arguments regarding the constitutionality of RLUIPA under the Commerce Clause. 2. Eleventh Amendment Immunity under RLUIPA The prison officials challenge the district court’s conclusion that RLUIPA, coupled with the explicit language of CRREA, permits monetary damage claims against the state subject to the limitations imposed by the PLRA. Our conclusion above that RLUIPA is sufficiently clear to be a valid exercise of Spending Clause power does not foreclose our consideration of whether RLUIPA is sufficiently clear to effectuate a knowing waiver of the state’s Eleventh Amendment sovereign immunity from a suit for monetary damages. See Sossamon, 560 F.3d at 330-331 (considering the issue of sovereign immunity separately from the Dole factors); Madison, 474 F.3d at 129 (same). There can be no constructive waiver of sovereign immunity, and we “indulge every reasonable presumption against waiver.” Coll. Sav. Bank, 527 U.S. at 682, 119 S.Ct. 2219 (internal marks omitted). The Supreme Court, construing the federal government’s waiver of sovereign immunity, has stated that “[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)). Additionally, waivers are to be “construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” See Nordic Village, Inc., 503 U.S. at 34, 112 S.Ct. 1011 (internal marks and citations omitted). RLUIPA conditions the state’s acceptance of federal funds, in part, on its consent to suit for “appropriate relief.” 42 U.S.C. § 2000cc-2(a). As we concluded above, this phrase plainly creates a private cause of action against the state “for at least some form of relief.” Madison, 474 F.3d at 130. The phrase, “appropriate relief,” is broad enough to include both injunctive relief and compensatory damages, but the question is whether the language unambiguously extends to monetary claims." }, { "docid": "1130408", "title": "", "text": "the requirements for the waiver of the government’s sovereign immunity under § 106(a) have not been met. Section 106(b) provides for a waiver of sovereign immunity when the estate seeks to exercise a set-off against a claim filed by the government. See 11 U.S.C. § 106(b) supra. The debtor seeks to recover a money judgment against the government, not a setoff. Moreover, the claim against the governmental unit under this section must also be “property of the estate”. For the reasons outlined previously debtor’s § 524 claim does not meet this criteria. Accordingly, § 106(b) also fails to provide for a waiver of the government’s sovereign immunity. A plain reading of § 106(c), supra, establishes that for a waiver of sovereign immunity to exist under that subsection, the section upon which a debtor’s claim relies must contain one of the trigger words “creditor”, “entity”, or “governmental unit”. Section 524, on which debtor relies in this ease, does not contain those words. Accordingly, § 106(c) cannot provide for a waiver of sovereign immunity in regard to debtor’s § 524 claim. Moreover, in United States v. Nordic Village, Inc., — U.S.-,-, 112 S.Ct. 1011, 1017, 117 L.Ed.2d 181 (1992) the Supreme Court of the United States held that § 106(c) does not authorize the recovery of a monetary judgment against the United States. Under the Supreme Court’s interpretation of § 106(c), only declaratory or injunctive relief is available against the United States. Nordic Village, Inc., — U.S. at---, 112 S.Ct. at 1015-16. For the § 524 claim, debtor seeks recovery of monies collected by the IRS post-discharge, any special and actual damages proved, punitive damages, and all court costs and attorney fees. Section 106(c) does not waive the government’s sovereign immunity to allow recovery of this type of relief. Nevertheless, the debtor contends such relief is available because bankruptcy courts in this circuit in gost-Nordic Village decisions have allowed awards of monetary sanctions and attorney fees against the government under § 106(c) for IRS violations of the § 524 discharge injunction. See In re Moulton, 146 B.R. 495 (Bankr.M.D.Fla.1992); In re Daniels," }, { "docid": "3850114", "title": "", "text": "does not operate as a waiver of a State’s sovereign immunity. The United States seeks to expand the application of that rule and have us find that § 106(c) does not operate as a waiver of the United States’ sovereign immunity from suits for money damages. Upon our first review of this matter, our initial inclination was to limit Hoffman to situations involving monetary awards against states as did Judge Rovner in In re Pnce, 130 B.R. 259 (N.D.Ill.1991). In Price, Judge Rovner affirmed the bankruptcy court’s decision to sanction the IRS for willfully violating the automatic stay. Judge Rovner rejected the United States’ argument that Hoffman barred an award of costs and attorneys’ fees. She distinguished Hoffman in three ways. First, Judge Rovner noted that the Supreme Court was evenly divided about whether § 106(c) waives a state’s sovereign immunity. Therefore, Judge Rovner found that even assuming Hoffman is controlling on the issue of the federal government’s waiver of sovereign immunity under § 106(c), “there is no signal from the divided Court which suggests one result or another on this question.” Price, 130 B.R. at 267. Second, the issue before the Hoffman court concerned the relationship between Congress’ ability to waive a state’s sovereign immunity under § 106(c) and a state’s constitutional protection under the Eleventh Amendment. This peculiar constitutional issue distinguishes Hoffman from a suit involving the United States, because the United States does not enjoy similar constitutional protection. Finally, Judge Rovner found that the legislative history of § 106 supports the conclusion that Congress intended to waive the federal government’s immunity from suit, including suits for monetary relief. Id. We delayed issuing our decision because the Supreme Court granted certiorari to decide whether § 106(c) of the Bankruptcy Code waives the United States’ sovereign immunity from an action seeking monetary recovery in bankruptcy. On February 25, 1992, the Supreme Court issued its opinion, holding that § 106(c) does not waive the United States’ sovereign immunity. United States v. Nordic Village, — U.S. -, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). In that case, the debtor, Nordic Village" }, { "docid": "567839", "title": "", "text": "explicit waiver of sovereign immunity. The court incorrectly levied sanctions under Local Rule GR 3(d). b. Federal Rule of Criminal Procedure 16(d)(2) We have not addressed whether sovereign immunity is waived when monetary sanctions are imposed against the government under the Federal Rules of Criminal Procedure. We find no explicit waiver of sovereign immunity under the rules. We have affirmed money penalties against the government under Federal Rules of Civil Procedure 11 and 37(b). See Mattingly v. United States, 939 F.2d 816, 818-19 (9th Cir.1991) (upholding Rule 11 sanctions); United States v. National Medical Enters., Inc., 792 F.2d 906, 910-11 (9th Cir.1986) (upholding Rule 37(b) sanctions). But Civil Rules 11 and 37(b) expressly provide for monetary sanctions. Because Criminal Rule 16(d)(2) provides no independent authority for a monetary sanction, we decline to recognize a waiver of sovereign immunity in the criminal context. Zambrano v. City of Tustin, 885 F.2d 1473, 1481 (9th Cir.1989); see also International Video Corp. v. Ampex Corp., 484 F.2d 634, 637 (9th Cir.1973) (attorney s fees award “ordinarily improper in the absence of a statute or under the most unusual circumstances”). Civil Rules 11 and 37(b) expressly provide for monetary sanctions. Rule 11 requires a court to impose upon an offending party “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 pleading, ... including a reasonable attorney’s fee.” Fed. R.Civ.P. 11. Similarly, Rule 37(b) provides that a court may sanction a party for failing to comply with a discovery order by requiring the party “to pay the reasonable expenses, including attorney’s fees, caused by the failure” to comply. Fed.R.Civ.P. 37(b)(2). Unlike these Civil Rules, Federal Rule of Criminal Procedure 16(d)(2) provides no independent authority for a monetary sanction against the government. The Rule only provides a court with authority to “prescribe such terms and conditions as are just” to remedy a violation of a discovery order. Fed.R.Crim.P. 16(d)(2). We think such language is insufficient to constitute an express waiver of sovereign immunity. We also note that, in" }, { "docid": "23085046", "title": "", "text": "sanction it would decline to recognize that the rule waived sovereign immunity. Accordingly, the sanction could not be imposed. See id. at 781. It seems to us that this conclusion is at odds with the result in Martinson. Moreover, Rule 16(d)(2) is broader than Rule 41(e) in that Rule 16(d)(2) allows a court to prescribe such terms and conditions as are just, whereas Rule 41(e), even though proceedings under it are treated as general equitable actions, only provides for one express remedy — the return of property. After careful analysis we reject the cases which allow an award of damages in a proceeding under Rule 41(e) as we conclude that a Federal Rule of Criminal Procedure that does not expressly provide for an award of monetary damages does not waive sovereign immunity. We find the reasoning of the Court of Appeals for the Fifth Circuit in Pena and of the United States District Court for the District of New Jersey in Chambers to be persuasive on this point. The court in Pena reasoned as follows: Pena has named the United States as the defendant in his case. The principle of sovereign immunity protects the federal government from suit except insofar as that immunity is waived. A waiver must be unequivocally expressed in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135 L.Ed.2d 486 (1996) (citations omitted). Rule 41(e) makes no provision for monetary damages, and we will not read into the statute a waiver of the federal government’s immunity from such damages. Numerous Supreme Court decisions hold that courts should construe statutes against waiver unless Congress has explicitly provided for it. See, e.g., Lane[, 518 U.S. at 193], 116 S.Ct. at 2097 (refusing to allow monetary damages under § 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., where the relevant statutory provisions failed to provide the ‘clarity of expression necessary to establish a waiver of the Government’s sovereign immunity against monetary damages’); United States v. Nordic Village, Inc., 503 U.S. 30, 33-34,112 S.Ct. 1011," }, { "docid": "567838", "title": "", "text": "the Federal Rule of Criminal Procedure 16(d)(2) and its supervisory powers. The government appeals and argues that the sanctions were unwarranted and barred by sovereign immunity. We review de novo whether sovereign immunity bars the imposition of sanctions. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985). A court may impose money awards against the United States only under an express waiver of sovereign immunity. See Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). There was no express waiver here. a. Local Rule GR 3(d) Few cases discuss sovereign immunity in the context of fees or costs awarded against the United States under a local federal rule. The few courts that have discussed this issue conclude that a local rule is insufficient because it does not waive sovereign immunity. See United States v. 50.50 Acres of Land, 931 F.2d 1349, 1356 n. 5 (9th Cir.1991). We hold that assessing monetary sanctions against the government under this local rule is subject to the same infirmity. There was no explicit waiver of sovereign immunity. The court incorrectly levied sanctions under Local Rule GR 3(d). b. Federal Rule of Criminal Procedure 16(d)(2) We have not addressed whether sovereign immunity is waived when monetary sanctions are imposed against the government under the Federal Rules of Criminal Procedure. We find no explicit waiver of sovereign immunity under the rules. We have affirmed money penalties against the government under Federal Rules of Civil Procedure 11 and 37(b). See Mattingly v. United States, 939 F.2d 816, 818-19 (9th Cir.1991) (upholding Rule 11 sanctions); United States v. National Medical Enters., Inc., 792 F.2d 906, 910-11 (9th Cir.1986) (upholding Rule 37(b) sanctions). But Civil Rules 11 and 37(b) expressly provide for monetary sanctions. Because Criminal Rule 16(d)(2) provides no independent authority for a monetary sanction, we decline to recognize a waiver of sovereign immunity in the criminal context. Zambrano v. City of Tustin, 885 F.2d 1473, 1481 (9th Cir.1989); see also International Video Corp. v. Ampex Corp., 484 F.2d 634, 637 (9th Cir.1973) (attorney s fees award “ordinarily improper in the" }, { "docid": "13077887", "title": "", "text": "1210 (2d Cir.), vacated, — U.S.-, 112 S.Ct. 39, 116 L.Ed.2d 18 op. reinstated, 952 F.2d 652 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2992, 120 L.Ed.2d 869 (1992); National Lawyers Guild v. Attorney General, 94 F.R.D. 600, 615 n. 32 (S.D.N.Y.1982) (award of fees as a Fed.R.Civ.P. 37(b) sanction: “The legislative history of [the EAJA] is strewn with references to the United States and its agencies’ abuse of the litigation process, and Congress expressed, through this law, the judgment that the Government may not be treated differently from other litigants.”); see also Mattingly v. United States, 939 F.2d 816, 818 (9th Cir.1991) (“Since Congress authorized the promulgation of [the FRCP], applying them to the government with full force cannot be said to violate the principles of sovereign immunity.”); Barry v. Bowen, 884 F.2d 442, 444 (9th Cir.1989) (FRCP “can be viewed as an explicit waiver of sovereign immunity”). Various courts have also relied upon procedural rules other than the FRCP, yet promulgated by the Supreme Court pursuant to 28 U.S.C. §§ 2072 & 2075, in assessing monetary sanctions against the United States. See, e.g., In re Good Hope Indus., Inc., 886 F.2d 480, 482 (1st Cir.1989) (“It is not [the court’s own procedural rule] that by itself waives the government’s sovereign immunity. Rather, it is section 2412(b) that waives the government’s sovereign immunity for purposes of [Fed.R.App.P. 38].”); In re Dorman, 98 B.R. 560, 572 (Bankr.D.Kan. 1987) (EAJA waives sovereign immunity to sanctions under Bankruptcy Rule 7037, which incorporates Fed.R.Civ.P. 37). IV In the present ease, it is clear that the Claims Court qualifies as a “court having jurisdiction of such [civil] action.” Mortenson brought its cause of action under both the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988), under which the Claims Court shall hear “any claim against the United States founded ... upon ... any express or implied contract with the United States_”, and the Contract Disputes Act of 1978, Pub.L. No. 95-563, 92 Stat. 2383 (codified at 41 U.S.C. §§ 601-613 (1988)). Since Mortenson claimed increased costs in excess of $10,000 incurred as a" }, { "docid": "10310040", "title": "", "text": "contempt proceedings in that court and allows for the award of damages to the party harmed by the contumacious conduct, effects a waiver of sovereign immunity under the Equal Access to Justice Act, Pub.L. No. 96-481, Title II, 1980 U.S.C.C.A.N. (94 Stat.) 2325 (1980) (“EAJA”) (codified as amended at various sections of 5 & 28 U.S.C.). Neither of the theories that Yancheng presents establishes an unequivocal waiver. Waivers of sovereign immunity must be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). The Supreme Court has found that “firmly grounded in [their] precedents” is the fact that “[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text” and “will not be implied.” Lane, 518 U.S. at 192, 116 S.Ct. 2092. Yancheng has not pointed to any language in 28 U.S.C. § 1581(c) that unequivocally expresses a waiver of sovereign immunity for liability to sanctions for contempt of court, and according to Supreme Court precedent, we cannot imply one. Although monetary damage awards in contempt proceedings may be an effective tool for the Court of International Trade to control litigant behavior, monetary damages are not the exclusive means to vindicate the authority of the court. The government’s submission to the jurisdiction of the court alone is not sufficient to supply a waiver of sovereign immunity for the sanctions the court sought to impose. Similarly, Yancheng cannot point to a statutory basis for a waiver of sovereign immunity with regard to Rule 86.2 of the Court of International Trade. Yancheng attempts to rely on M.A. Mortenson Co. v. United States, 996 F.2d 1177 (Fed.Cir.1993), to establish a waiver of sovereign immunity. Mortenson, however, is distinguishable from the present case. In Mortenson, the rule at issue was Rule 37 of the United States Claims Court (“RUSCC 37”) which was drawn in its entirety from Federal Rule of Civil Procedure 37. 996 F.2d at 1183. The Federal Rules are promulgated under" }, { "docid": "1130409", "title": "", "text": "debtor’s § 524 claim. Moreover, in United States v. Nordic Village, Inc., — U.S.-,-, 112 S.Ct. 1011, 1017, 117 L.Ed.2d 181 (1992) the Supreme Court of the United States held that § 106(c) does not authorize the recovery of a monetary judgment against the United States. Under the Supreme Court’s interpretation of § 106(c), only declaratory or injunctive relief is available against the United States. Nordic Village, Inc., — U.S. at---, 112 S.Ct. at 1015-16. For the § 524 claim, debtor seeks recovery of monies collected by the IRS post-discharge, any special and actual damages proved, punitive damages, and all court costs and attorney fees. Section 106(c) does not waive the government’s sovereign immunity to allow recovery of this type of relief. Nevertheless, the debtor contends such relief is available because bankruptcy courts in this circuit in gost-Nordic Village decisions have allowed awards of monetary sanctions and attorney fees against the government under § 106(c) for IRS violations of the § 524 discharge injunction. See In re Moulton, 146 B.R. 495 (Bankr.M.D.Fla.1992); In re Daniels, 150 B.R. 985 (Bankr.M.D.Ga.1992) (adopting the reasoning in Moulton). I decline to follow these decisions. The court in Moulton held that the Supreme Court’s decision in Nordic Village did not prevent sanctions against the IRS because Nordic Village involved an action seeking a monetary recovery on claims and did not involve a § 524 violation. According to the Moulton court sanctions against the IRS do not constitute a claim for a money judgment precluded from recovery against the government by Nordic Village. Moulton, 146 B.R. at 497. I disagree. The Supreme Court’s reading of § 106(c) in Nordic Village effectively limited that subsection solely to a waiver of the government’s sovereign immunity with regard to declaratory and injunctive relief. Recovery of money collected by the IRS, actual and special damages, and sanctions against the United States through allowance of court costs, attorney fees, and punitive damages all constitute monetary relief for which § 106(c) has not provided a waiver of the government’s sovereign immunity. See In re Shafer, 146 B.R. 477 (D.Kan.), amended, 148 B.R." }, { "docid": "13077886", "title": "", "text": "for abuse of discovery. Ill Consistent with this reading of the EAJA is the fact that other circuit courts have employed the FRCP as vehicles for sanctioning the United States for various abuses of the litigative process. See, e.g., Adamson, 855 F.2d at 672 (EAJA waived sovereign immunity to an award of fees pursuant to Fed.R.Civ.P. 11); United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1251 (9th Cir.1988) (sovereign immunity does not prohibit award under Fed. R.Civ.P. 11); United States v. National Med. Enters., Inc., 792 F.2d 906, 910-11 (9th Cir.1986) (affirming award of fees against the government under Fed.R.Civ.P. 37); Schanen v. United States Dep’t of Justice, 798 F.2d 348, 350 (9th Cir.1986) (approving an assessment of fees and costs against the government for failure properly to defend a Fed. R.Civ.P. 60(b) motion); Andrulonis v. United States, 724 F.Supp. 1421, 1537 (N.D.N.Y.1989) (limitations of sovereign immunity did not preclude consideration of sanctions against the United States under Fed.R.Civ.P. 11), aff'd in part & rev’d in part on other grounds, 924 F.2d 1210 (2d Cir.), vacated, — U.S.-, 112 S.Ct. 39, 116 L.Ed.2d 18 op. reinstated, 952 F.2d 652 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2992, 120 L.Ed.2d 869 (1992); National Lawyers Guild v. Attorney General, 94 F.R.D. 600, 615 n. 32 (S.D.N.Y.1982) (award of fees as a Fed.R.Civ.P. 37(b) sanction: “The legislative history of [the EAJA] is strewn with references to the United States and its agencies’ abuse of the litigation process, and Congress expressed, through this law, the judgment that the Government may not be treated differently from other litigants.”); see also Mattingly v. United States, 939 F.2d 816, 818 (9th Cir.1991) (“Since Congress authorized the promulgation of [the FRCP], applying them to the government with full force cannot be said to violate the principles of sovereign immunity.”); Barry v. Bowen, 884 F.2d 442, 444 (9th Cir.1989) (FRCP “can be viewed as an explicit waiver of sovereign immunity”). Various courts have also relied upon procedural rules other than the FRCP, yet promulgated by the Supreme Court pursuant to 28 U.S.C. §§ 2072" }, { "docid": "12002784", "title": "", "text": "that his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated during the parole revocation process, and he seeks monetary damages for the loss of his business and the deprivation of his liberty. A. Sovereign Immunity The Federal Government can only be sued insofar as it has agreed to be sued. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Id,.; see also United States v. Nordic Village, 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Sovereign immunity also bars suit for money damages against federal officials in their official capacities absent a specific waiver by the Federal Government. Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C.Cir.1984). Thus, unless the Federal Government waived its sovereign immunity, Mr. Epps’s claims for alleged constitutional violations by the Federal Defendants must be dismissed. Id. at 474-75, 114 S.Ct. 996; Meyer v. Reno, 911 F.Supp. 11, 18 (D.D.C.1996). When a plaintiff seeks monetary damages against a federal agency for certain torts committed by federal employees, the only possible basis for court jurisdiction would be the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). This statute provides no authority for Mr. Epps’s claims here, however, for two separate reasons. First, he does not assert that he has exhausted necessary administrative remedies under the FTCA, which is a mandatory prerequisite to bringing such a claim in court. See GAF Corp. v. United States, 818 F.2d 901, 904-05 (D.C.Cir.1987). Second, the FTCA does not waive sovereign immunity for constitutional torts, as alleged by Mr. Epps, even if he had completed the administrative process. See F.D.I.C. v. Meyer, 510 U.S. at 477-78, 114 S.Ct. 996; Clark v. Library of Congress, 750 F.2d at 102-104. Because the Federal Government, its agencies and its employees acting in their official capacity have sovereign immunity, Mr. Epps’s claims against the Federal Defendants, including the Individual Defendants in their official capacities, must be dismissed for lack of subject matter jurisdiction. B. Bivens Claims Against the Attorney General and" }, { "docid": "7332836", "title": "", "text": "government appeals, contending that the district court lacked jurisdiction to impose sanctions because the government is immune as a sovereign from Rule 11 sanctions. In the alternative it argues that, if there is no immunity, the imposition of sanctions in this case was an abuse of discretion because the Justice Department Attorney who filed the counterclaim acted reasonably in concluding, from the file be fore him, that Mattingly was a “responsible person.” We agree with the government on the latter point. We turn first to the question of jurisdiction. The government contends as its threshold position that it cannot be sanctioned under Rule 11 because the Rules of Civil Procedure do not contain any independent waiver of sovereign immunity. This court has held, however, that when the United States comes into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other litigant. United States v. Gavilan Joint Community College District, 849 F.2d 1246, 1251 (9th Cir.1988). We held that there is no justification for exempting the United States government from Rule 11 on the ground of sovereign immunity. This conclusion, we noted, was in keeping with our prior holding that the government is subject to the sanction provisions of Rule 37(b). Id. See United States v. National Medical Enterprises, Inc., 792 F.2d 906 (9th Cir.1986). The government is not immune from Rule 11 sanctions. The government next argues that if it is subject to sanctions under Rule 11, the sanctions should be limited to attorneys’ fees. It points out that the leading cases involving sanctions against the government did involve the imposition of attorneys’ fees. It contends that if there is any basis for sanctioning the government, the basis lies in the provisions of the Equal Access to Justice Act, 28 U.S.C. § 2412(b), authorizing the imposition of attorneys’ fees in favor of a prevailing party under certain circumstances. That Act, according to the government, serves as a limited waiver of immunity, but does not authorize the imposition of sanctions. The Rules of Civil Procedure, however, apply by their" }, { "docid": "22581632", "title": "", "text": "fees and other expenses on behalf of indigent criminal defendants). In considering legislation that is claimed to have the effect of waiving sovereign immunity in a particular class of cases, courts usually have been guided by two maxims. First, a waiver of sovereign immunity must be definitely and unequivocally expressed. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); In re Perry, 882 F.2d at 544. The Court has gone so far as to suggest that the unequivocal expression must appear in the text of the statute itself. See United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992); Ardestani v. INS, 502 U.S. 129, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991). Second, a waiver of sovereign immunity always is to be construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires. See Nordic Village, — U.S. at-, 112 S.Ct. at 1014-15; Ruckelshaus, 463 U.S. at 685, 103 S.Ct. at 3277-78; In re Perry, 882 F.2d at 544. Applying these tests, several courts have held that monetary sanctions for litigation abuse are not barred by sovereign immunity in certain classes of cases on the theory that an enacted statute, typically the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (allowing prevailing parties to recover fees from the government in certain civil and administrative proceedings), serves to waive the government’s immunity. See, e.g., M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1181-82 (Fed.Cir.1993) (holding that the EAJA works a waiver of immunity suffi cient to allow the imposition of fees under Fed.R.Civ.P. 37); In re Good Hope Indus., Inc., 886 F.2d 480, 482 (1st Cir.1989) (same, in respect to fees under 28 U.S.C. § 1912 and Fed.R.App.P. 38); Adamson v. Bowen, 855 F.2d 668, 672 (10th Cir.1988) (same, in respect to monetary sanction under Fed. R.Civ.P. 11); United States v. Gavilan Joint Comm’y Coll. Dist., 849 F.2d 1246, 1251 (9th Cir.1988) (similar); see also Schanen v. United States DOJ," } ]

[ { "docid": "5700316", "title": "", "text": "within the meaning of Section 10(b). Id.; see also, Dillon v. Militano, 731 F.Supp. 634 (S.D.N.Y.1990) (dismissing a manipulation claim against a clearing broker because there was no allegation that the broker was making decisions regarding the introducing broker’s client accounts); Katz v. Financial Clearing & Sens. Corp., 794 F.Supp. 88, 94 (S.D.N.Y. 1992) In certain portions of the Complaint, Plaintiffs characterize Bear Stearns’ conduct as “engaging in,” “executing,” or “entering into” fraudulent trades. Such conclusory characterizations do not suffice when the factual allegations underlying those assertions are consistent with the normal activity of a clearing broker. Blech I, 928 F.Supp. at 1295. For example, Plaintiffs allege that in July and August of 1994, Bear Stearns “entered into” fraudulent trades of E cogen stock. However, Plaintiffs’ factual allegations make clear that what Bear Stearns “entered into” were transactions “between David Blech or Blech & Co. and the parking accounts.” Compl. ¶81. In other words, Bear Stearns cleared trades initiated by Blech. Plaintiffs do not allege that Bear Stearns initiated the trades as a seller or by directing specific trades, but merely that it executed the trades at Blech’s behest. Such allegations are insufficient to state a claim of primary liability. See Faturik v. Woodmere Sec., Inc., 442 F.Supp. 943, 945 (S.D.N.Y. 1977) (dismissing direct liability claims under Section 10(b) against clearing broker who had “no part in initiating purchases and sales, but merely effected them at the behest of’ the introducing broker.) When Plaintiffs allege mere clearing conduct against Bear Stearns, such allegations amount to no more than a non-existent claim of aiding and abetting because, at most, they allege only that Bear Stearns knowingly and substantially assisted Blech by clearing the fraudulent trades. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir.1994) (holding, in a case arising prior to Central Bank, that the elements of an. action for aiding and abetting are (1) knowledge of the wrong; and (2) substantial assistance in the perpetration of the wrong). However, the Complaint crosses the line dividing secondary liability from primary liability when it claims that Bear Stearns “directed”" } ]

[ { "docid": "6207798", "title": "", "text": "give rise to an inference of fraud. It reflects nothing more than the standard practice of clearing brokers to look first to the introducing broker’s customer for payment and, in the event of non-payment, to inform the introducing broker. The insufficiency of the allegations is highlighted by the fact that the Complaint does not allege that Bear Steams caused or directed trading by Blech & Co.’s customers or solicited or induced them to buy Blech Securities at inflated prices. Nor are there any allegations that Bear Steams did anything in an attempt to affect the price of such securities. This Court confronted a similar situation in Dillon v. Militano, 731 F.Supp. 634 (S.D.N.Y.1990). There the market-maker defendants had allegedly “cornered the market” in certain stock shares by using customer accounts without authorization, purchasing shares from short sellers, and obtaining extensions of time to meet margin requirements. The clearing broker for the defendants cleared all of the trades at issue and was charged with primary liability under § 10(b). The court dismissed the Rule 10b-5 manipulation claim against the clearing broker because the complaint did not “plead that [the clearing broker] was making decisions regarding the accounts.” Id. at 636; see also Faturik v. Woodmere Secs., Inc., 442 F.Supp. 943, 945 (S.D.N.Y.1977) (“Certainly, one requirement for direct liability under § 10(b), namely ‘control’ over plaintiff’s account would be lacking as to [the clearing broker]”). Here, as in Dillon the plaintiffs have failed to allege facts showing that Bear Steams did anything more than act as Blech & Co.’s' clearing broker. Even if Bear Stearns knew but failed to disclose a material fact, no plaintiff can claim to have been defrauded by that omission, because, as a matter of law, a clearing broker owes no duty of disclosure to the clients of an introducing broker. See, e.g., Connolly v. Havens, 763 F.Supp. at 10 (dismissing action against clearing broker because “such firms generally have no duty to disclose”); Dillon, 731 F.Supp. at 634 (dismissing Section 10(b) claim against clearing agent because the clearing agent was not in a fiduciary relationship with- the" }, { "docid": "5700318", "title": "", "text": "or “contrived” certain allegedly fraudulent trades. Under these circumstances, the Complaint adequately alleges that Bear Stearns engaged in conduct, with scienter, in an attempt to affect the price of the Blech securities. Blech I, 928 F.Supp. at 1295. Plaintiffs allege that Bear Stearns “directed” Blech & Co. to sell Blech Securities by demanding that Blech reduce its debit balance with knowledge of Blech’s history of sham trading, and that Blech, in response to Bear Stearns’ pressure, engaged in manipulative parking transactions, which Bear Stearns cleared. This course of conduct by Bear Stearns — the instigation of trading that Bear Stearns knew or should have known would result in fraudulent trades that would artificially inflate the price of the Blech Securities, and the subsequent clearing of the resultant fraudulent trades for its own pecuniary benefit — constitutes an attempt to affect the price of the Blech Securities. As a result, by participating at both the initiation and clearing stages of the allegedly fraudulent transactions, Bear Steams knowingly engaged in a manipulative scheme to defraud under Section 10(b), which affected the market upon which Plaintiffs relied in purchasing the Blech Securities. The pressure exerted by Bear Stearns on Blech to reduce his debit balance, when combined with Bear Stearns’ knowledge of Blech’s sham trading and its clearing of such trades, does not “reflect ... the standard practice of [a] clearing broker.” Id.; compare Dillon, 731 F. Supp at 636 (dismissing claims against a clearing broker was “merely performing back office functions”). Plaintiffs further properly allege manipulative conduct against Bear Stearns when they claim that on July 5,1994, Bear Stearns, in an effort to sell and transfer certain Blech Securities, “contrived and agreed to fund” the pre-planned fraudulent sale of Blech Securities. Compl. ¶ 85. This allegation satisfies the conduct element of a Section 10(b) claim because Bear Steams is alleged to have conceived of and participated in the initiation and clearing of sham transactions aimed at affecting the affecting the price of the Blech Securities. These allegations stand on grounds different from those presented in Ross v. Bolton, 904 F.2d at 821." }, { "docid": "6419000", "title": "", "text": "when the clearing broker continued to provide clearing services after it knew or should have known of a third party’s fraudulent scheme. Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 471-72 (S.D.N.Y.2001); Schwarz v. Bear Stearns & Co., No. 603795/97, 1998 WL 672708 (N.Y.Sup. 1998), aff'd, 266 A.D.2d 133, 698 N.Y.S.2d 855 (1st Dep’t 1999) (dismissing plaintiffs claims against Bear Stearns, the clearing broker, even though Bear Stearns was alleged to have had knowledge of fraud by introducing broker). Here, the Trust instruments themselves provided that the SSB Defendants had no duty to investigate trades directed by the Trust Managers. (Compl., Ex. A at 13, Ex. B at 15.) Aiding and abetting liability only arises when a defendant affirmatively assists a breach and “when plaintiffs injury was ‘a direct or reasonably foreseeable result’ of the complained of conduct.” Kolbeck, 939 F.Supp. at 249; Cromer, 137 F. Supp.2d at 471-72 (dismissing an action against Bear Stearns because, while the “scheme may only have been possible because of Bear Stearns’ actions, or inaction, Bear Stearns’ conduct was not the proximate cause ... of the scheme”). Lesavoy’s complaint contains no such allegation. D. Fraud Claims Lesavoy fails to plead fraud with the requisite particularity. To state a fraud claim, plaintiff is required to delineate the alleged fraudulent conduct committed by each defendant. The annexation of trading records to the complaint is unavailing as the plaintiff must “specify the statements it claims were false or misleading [and] give particulars as to the respect in which plaintiffs contend the statements were fraudulent ...” McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir.1992) (quoting Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989)). As previously explained, “Rule 9(b) is not satisfied by a complaint in which ‘defendants are clumped together in vague allegations.’ ” In re Blech Sec. Litig., 928 F.Supp. 1279, 1294 (S.D.N.Y.1996) (quoting Three Crown Ltd. P’ship v. Caxton Corp., 817 F.Supp. 1033, 1040 (S.D.N.Y.1993); see also Ouaknine v. MacFarlane, 897 F.2d 75, 80 (2d Cir.1990)). Here, instead of specifying which act or omission was made by which party, the complaint names all of" }, { "docid": "6207799", "title": "", "text": "claim against the clearing broker because the complaint did not “plead that [the clearing broker] was making decisions regarding the accounts.” Id. at 636; see also Faturik v. Woodmere Secs., Inc., 442 F.Supp. 943, 945 (S.D.N.Y.1977) (“Certainly, one requirement for direct liability under § 10(b), namely ‘control’ over plaintiff’s account would be lacking as to [the clearing broker]”). Here, as in Dillon the plaintiffs have failed to allege facts showing that Bear Steams did anything more than act as Blech & Co.’s' clearing broker. Even if Bear Stearns knew but failed to disclose a material fact, no plaintiff can claim to have been defrauded by that omission, because, as a matter of law, a clearing broker owes no duty of disclosure to the clients of an introducing broker. See, e.g., Connolly v. Havens, 763 F.Supp. at 10 (dismissing action against clearing broker because “such firms generally have no duty to disclose”); Dillon, 731 F.Supp. at 634 (dismissing Section 10(b) claim against clearing agent because the clearing agent was not in a fiduciary relationship with- the broker’s customer). Silence, absent a duty to disclose, is not actionable under the federal securities laws. Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 17, 108 S.Ct. 978, 987 n. 17, 99 L.Ed.2d 194 (1988). In Ross v. Bolton, No. 83 Civ. 8244 (WK), 1989 WL 80428 (S.D.N.Y. Apr. 4, 1989), aff'd, 904 F.2d 819 (2d Cir.1990), a similar case, Bear Steams, there too accused of Section 10(b) manipulation, had acted as the clearing broker for R.E. Bolton & Co., an “introducing broker”. Bear Stearns had processed a materially large and unauthorized trade by Bolton in Bolton’s client’s account. The client had allegedly called Bear Stearns’ managing partner to discuss the trade (though he apparently never expressly stated that the trade was fictitious). There, as here, Bear Stearns purportedly demanded that the client honor the trade. The Complaint was dismissed with prejudice as to Bear Stearns because the facts pleaded demonstrated that Bear Stearns had not acted other than as a normal clearing agent, had not possessed sufficient knowledge of the fraud, and had" }, { "docid": "23656440", "title": "", "text": "not for all transactions. In addition, there is no well-settled law imposing a duty upon a clearing broker, who is unaware of an introducing broker’s undisclosed and excessive profit, to inquire into the matter and then inform the latter’s customers of such self-dealing. Third, Greenberg contends that Bear Stearns failed to comply with 17 C.F.R. § 230.174, which requires delivery of a prospectus in connection with the sale of newly issued securities. But the regulation imposes this requirement only on underwriters and dealers, not on clearing brokers, and nothing in the agreement between Bear Stearns and Sterling Foster unambiguously shifted the burden of complying with this requirement onto Bear Stearns. Finally, Greenberg asserts that Bear Stearns should be held liable as an aider and abetter under New York law because it participated in the fraudulent scheme and provided substantial assistance to Sterling Foster. See S & K Sales Co. v. Nike, Inc., 816 F.2d 843, 847-48 (2d Cir.1987). However, there was ample basis for the arbitrators to conclude that Bear Stearns’s participation was insufficient to constitute substantial assistance. “[T]he simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Stander v. Financial Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990); cf. Edwards & Hanly v. Wells Fargo Sec. Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979) (clearing brokers owe no separate duty to customers of an introducing broker). In sum, the arbitrators did not ignore or refuse to apply well-defined and clearly applicable law in rejecting any of the appellant’s claims in such a way that would amount to manifest disregard. CONCLUSION For the foregoing reasons, we hold that: (1) where, as here, a § 10 petitioner complains principally and in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition; and (2) the district court in this case properly rejected the petitioner’s claim for failure to demonstrate that the arbitrators had manifestly disregarded" }, { "docid": "41890", "title": "", "text": "came to know of “irregularities in the various instructions submitted to it by May Davis.” (Am.CompLIffl 72-73). A claim for negligence should be dismissed where a plaintiff has failed to plead facts that would establish the requisite elements of: (i) the existence of a duty flowing from defendant to plaintiff; (ii) a breach of that duty; (iii) a reasonably close causal connection between the acts in issue and the resulting injury; and (iv) actual loss, harm or damage. Renner v. Chase Manhattan Bank, No. 98 Civ. 926(CSH), 2000 WL 781081, at *21 (S.D.N.Y. June 16, 2000) (citing Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 299 (2d Cir.1997)). Courts have determined that clearing brokers do not owe duties to plaintiffs who are customers of their introducing brokers. See, e.g., Riggs, 939 F.Supp. at 329-332 (dismissing negligence claim against clearing broker); Greenberg v. Bear Steams & Co., 220 F.3d 22, 28-29 (2d Cir.2000) (no duty of clearing broker to make inquiry re introducing broker’s alleged undisclosed and excessive profits and to inform introducing broker’s customers); In re Blech Securities Litigation, 928 F.Supp. 1279, 1295-96 (S.D.N.Y. 1996) (a clearing broker owed no duty of disclosure to clients of an introducing broker). Rozsa contends that the cases holding that clearing brokers do not owe a duty to customers of their introducing firms are inapplicable because he was not informed that SG Cowen was acting as May Davis’s clearing broker; and SG Cowen owed Roz-sa a duty pursuant to (i) NYSE Rules 382, 405, 406, and 408; (ii) New York UCC § 3-205, concerning restrictive endorsements; (iii) a release issued by The Society for Worldwide Interbank Financial Telecommunication (“SWIFT”), a “bank-owned cooperative,” which may have been applicable to the transfer of funds in issue; and (iv) SG Cowen’s alleged failure to comply with the standards of the brokerage community. (PI. Mem. at 20-23). However, the cases cited by SG Cowen for the proposition that clearing brokers do not owe a duty to customers of their introducing firms are not predicated on the existence of a fully-disclosed clearing relationship. See, e.g.," }, { "docid": "5530554", "title": "", "text": "first and second prongs of these tests. Bear Stearns does not deny the existence of an underlying fraud or that Berger breached his fiduciary duty to the plaintiffs, nor does it contest for the purposes of these motions that it had actual knowledge of those wrongs. Rather, the parties disagree as to whether the plaintiff has adequately alleged the “substantial assistance” and “participation” elements which, as discussed above, share largely identical requirements. A clearing broker does not provide “substantial assistance” to or “participate” in a fraud when it merely clears trades. “The simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000). The plaintiffs have attempted to allege that Bear Stearns did more than just clear trades. To meet their obligation to plead that Bear Stearns provided substantial assistance to the fraud, the plaintiffs have alleged that, in violation of the margin regulations of the FED, the NYSE, and its own institutional rules, it over-extended margin credit to Berger and permitted him to violate the concentration limitations ordinarily applied by Bear Stearns and described in the Offer Memo, and instead of freezing the Fund’s account when it was required by regulations to do so, it allowed Berger to continue to trade. A failure to enforce margin requirements, or continuing to execute trades despite margin violations, however, does not constitute substantial assistance. Dillon v. Militano, 731 F.Supp. 634, 637, 639 (S.D.N.Y.1990); Stander v. Fin. Clearing & Serv. Corp., 730 F.Supp. 1282, 1287 (S.D.N.Y.1990). Similarly, executing trades in order to reduce “a loan of money under margin” is insufficient to create liability. Ross v. Bolton, 639 F.Supp. 323, 327 (S.D.N.Y.1986). None of the cases on which the plaintiffs rely are sufficient to overcome these long established principles. Neither IIT v. Cornfield, 619 F.2d 909, 922 (2d Cir.1980), nor the other cases cited by the plaintiffs permit allegations of heightened scienter to substitute for adequately alleged substantial assistance. Even" }, { "docid": "5700315", "title": "", "text": "at 1455 (emphasis added). The question here is whether the conduct alleged against Bear Stearns constitutes the employment of a manipulative device under Section 10(b) and 10b-5. In other words, is Bear Stearns’ alleged conduct no more than aiding and abetting, or has it crossed the line into primary liability? Plaintiffs purport to have alleged sufficient facts to charge Bear Stearns with primary liability. However, in some instances, their allegations amount to no more than aiding and abetting. Even assuming that Bear Stearns had knowledge of the Blech scheme, primary liability cannot attach when the fraudulent conduct that is alleged is no more that the performance of routine clearing functions. In other words, under Section 10(b), the act of clearing sham trades is not equivalent to causing or directing sham trades for the purpose of soliciting or inducing a plaintiff to purchase securities. See Blech I, 928 F.Supp. at 1295. The act of clearing sham trades alone, even with scienter, is not enough to show an attempt to unlawfully affect the price of such securities within the meaning of Section 10(b). Id.; see also, Dillon v. Militano, 731 F.Supp. 634 (S.D.N.Y.1990) (dismissing a manipulation claim against a clearing broker because there was no allegation that the broker was making decisions regarding the introducing broker’s client accounts); Katz v. Financial Clearing & Sens. Corp., 794 F.Supp. 88, 94 (S.D.N.Y. 1992) In certain portions of the Complaint, Plaintiffs characterize Bear Stearns’ conduct as “engaging in,” “executing,” or “entering into” fraudulent trades. Such conclusory characterizations do not suffice when the factual allegations underlying those assertions are consistent with the normal activity of a clearing broker. Blech I, 928 F.Supp. at 1295. For example, Plaintiffs allege that in July and August of 1994, Bear Stearns “entered into” fraudulent trades of E cogen stock. However, Plaintiffs’ factual allegations make clear that what Bear Stearns “entered into” were transactions “between David Blech or Blech & Co. and the parking accounts.” Compl. ¶81. In other words, Bear Stearns cleared trades initiated by Blech. Plaintiffs do not allege that Bear Stearns initiated the trades as a seller or" }, { "docid": "16974909", "title": "", "text": "or solicited or induced them to buy Blech Securities at inflated prices,” i.e., “in addition to alleging scienter of the Blech scheme, Plaintiffs must also allege that Bear Stearns itself engaged in the kind of manipulative conduct that Section 10(b) prohibits in this context.” Blech II, 961 F.Supp. at 582-83 (Section 10(b) requires allegation that Bear Stearns “directly and knowingly participated in deceptive or ma nipulative conduct that caused damage to the [plaintiff].”). Furthermore, conclusory “allegations that are consistent with the normal activity” of such a business entity, standing alone, e.g., in Blech the normal legitimate activity of a clearing broker, are insufficient to state a claim of primary liability under Central Bank. Blech II, 961 F.Supp. at 584 (“[T]he Complaint crosses the line dividing secondary liability from primary liability when it claims that Bear Stearns ‘directed’ or ‘contrived’ certain allegedly fraudulent trades. Under these circumstances, the Complaint adequately alleges that Bear Stearns engaged in conduct with scienter, in an attempt to affect the price of the Blech securities.”) ; McDaniel v. Bear Stearns & Co., Inc., 196 F.Supp.2d 343, 353, (S.D.N.Y.2002)(“[W]here a clearing firm moves beyond performing mere ministerial or routine clearing functions and [with actual knowledge] becomes actively involved in the introductory broker’s [fraudulent] action, it may expose itself to liability with respect to the introductory broker’s misdeeds.”). Thus to state a claim for market manipulation under § 10(b) and Rule 10b-5 against parties that employed manipulative and deceptive practices in a scheme to defraud, a plaintiff must allege (1) that it was injured (2) in connection with the purchase or sale of securities (3) by relying on a market for securities (4) controlled or artificially affected by defendants’ deceptive and manipulative conduct, and (5) the defendants engaged in the manipulative conduct with scienter. Blech II, 961 F.Supp. at 582, citing Ernst & Ernst v. Hochfelder, 425 U.S. at 199, 96 S.Ct. 1375. Furthermore because courts acknowledge the difficulty of satisfying Rule 9(b) in pleading a claim of market manipulation, “where the exact mechanism of the scheme is likely to be unknown to the plaintiffs, allegations of the" }, { "docid": "6418999", "title": "", "text": "of any assets of the trust created hereby in accordance with the directions of the Trustees.” (Compl., Ex. A at 13-14; Ex. B at 15.) Moreover, Lesavoy claims that the SSB Defendants owed the Trust Managers a fiduciary duty to execute trades according to instructions. 2. Substantial Assistance Lesavoy further alleges that the SSB Defendants “enabled” the Trust Managers to commit breaches of their fiduciary duty by providing routine clearing services in accordance with the Trust Managers’ instructions. However, the SSB Defendants owed no fiduciary duty to the Trust, and as held by the Second Circuit, “the simple providing of normal clearing services to a primary broker [, even one] who is acting in violation of the law [,] does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000) (quoting Stander v. Fin. Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990)). New York courts have further refused to hold clearing brokers liable for the practices of others even when the clearing broker continued to provide clearing services after it knew or should have known of a third party’s fraudulent scheme. Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 471-72 (S.D.N.Y.2001); Schwarz v. Bear Stearns & Co., No. 603795/97, 1998 WL 672708 (N.Y.Sup. 1998), aff'd, 266 A.D.2d 133, 698 N.Y.S.2d 855 (1st Dep’t 1999) (dismissing plaintiffs claims against Bear Stearns, the clearing broker, even though Bear Stearns was alleged to have had knowledge of fraud by introducing broker). Here, the Trust instruments themselves provided that the SSB Defendants had no duty to investigate trades directed by the Trust Managers. (Compl., Ex. A at 13, Ex. B at 15.) Aiding and abetting liability only arises when a defendant affirmatively assists a breach and “when plaintiffs injury was ‘a direct or reasonably foreseeable result’ of the complained of conduct.” Kolbeck, 939 F.Supp. at 249; Cromer, 137 F. Supp.2d at 471-72 (dismissing an action against Bear Stearns because, while the “scheme may only have been possible because of Bear Stearns’ actions, or inaction, Bear Stearns’ conduct was" }, { "docid": "16448497", "title": "", "text": "e.g., Blech II, 961 F.Supp. at 584. The Amended Complaint is devoid of any allegations forming a primary violation of Section 10(b) and Rule 10b-5 on the part of these defendants. As to Cohn and Greenfield, however, the allegations that they are controlling persons of Green-Cohn sustain the instant motions. Cohn and Greenfield are alleged to be, respectively, the owner and the president of Green-Cohn, positions from which control “can be directly inferred without more.” Sloane Overseas Fund, 941 F.Supp. at 1878. Accordingly, claims of primary liability under Section 10(b) and Rule 10b-5 are dismissed as to Cohn, Greenfield, and Schwalb, and claims of controlling person liability pursuant to Section 20(a) remain as to Cohn and Greenfield. d. Bear Stearns Bear Stearns is alleged both to have been the clearing broker for GreenCohn’s transactions and to have sold unregistered Scorpion stock. Bear Stearns’ activity as clearing broker, standing alone, is not a ground for liability under Section 10(b). See Blech II, 961 F.Supp. at 584; Blech I, 928 F.Supp. at 1295-96; Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990). Dietrich’s response, that his claims against Bear Stearns are not based merely on the clearing services it performed but rather on allegations that Bear Stearns knowingly and recklessly worked with the other Defendants to bring Regulation S stock into the United States and sell it here, is not supported by the allegations in the Amended Complaint, all of which are con-clusory, unparticularized, and factually unsupported. Contrary to Dietrich’s assertions, Blech II provides no support for his contention that he has asserted viable claims against Bear Stearns. In Blech II, this Court found insufficient the allegations which “characterize Bear Stearns’ conduct as ‘engaging in,’ ‘executing,’ or ‘entering into’ fraudulent trades,” because “[s]uch conclu-sory characterizations do not suffice when the factual allegations underlying those assertions are consistent with the normal activity of a clearing broker.” Blech II, 961 F.Supp. at 584. It was explained that: Even assuming that Bear Stearns had knowledge of the Blech scheme, primary liability cannot attach when the fraudulent conduct that" }, { "docid": "16974910", "title": "", "text": "Co., Inc., 196 F.Supp.2d 343, 353, (S.D.N.Y.2002)(“[W]here a clearing firm moves beyond performing mere ministerial or routine clearing functions and [with actual knowledge] becomes actively involved in the introductory broker’s [fraudulent] action, it may expose itself to liability with respect to the introductory broker’s misdeeds.”). Thus to state a claim for market manipulation under § 10(b) and Rule 10b-5 against parties that employed manipulative and deceptive practices in a scheme to defraud, a plaintiff must allege (1) that it was injured (2) in connection with the purchase or sale of securities (3) by relying on a market for securities (4) controlled or artificially affected by defendants’ deceptive and manipulative conduct, and (5) the defendants engaged in the manipulative conduct with scienter. Blech II, 961 F.Supp. at 582, citing Ernst & Ernst v. Hochfelder, 425 U.S. at 199, 96 S.Ct. 1375. Furthermore because courts acknowledge the difficulty of satisfying Rule 9(b) in pleading a claim of market manipulation, “where the exact mechanism of the scheme is likely to be unknown to the plaintiffs, allegations of the nature, purpose, and effect of the fraudulent conduct and the roles of the defendants are sufficient for alleging participation.” Blech II, 961 F.Supp. at 580; see also Vandenberg v. Adler, No. 98 CIV. 3544 WHP, 2000 WL 342718, *5 (S.D.N.Y. Mar.31, 2000); In re Sterling Foster & Co., Inc. Sec. Litig., 222 F.Supp.2d 216, 278-79 (E.D.N.Y.2002)(“Courts have found allegations of fraud to have been pled with sufficient particularity when the complaint specifies (1) the manipulative acts performed; (2) which defendants performed them; and (3) the effect the scheme had on the market for the securities at issue.”). Moreover, to effectuate the Congressional purpose behind the 1934 Act of “ ‘in-surfing] honest securities markets and thereby promotfing] investor confidence,’ ” by requiring full disclosure “ ‘to achieve a high standard of business ethics in the securities industry,’ ” the Supreme Court has repeatedly “construed [the statute] ‘not technically and restrictively, but flexibly.” Zandford, 122 S.Ct. at 1903 (citations omitted). The SEC has also “consistently adopted a broad reading of the phrase, ‘in connection with the purchase" }, { "docid": "5700325", "title": "", "text": "Jersey Securities, 101 F.3d 1450, 1472 (2d Cir.1996) (citations omitted). Furthermore, “control over a primary violator may be established by showing that [the controller] possessed ‘the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.’ ” Id., quoting 17 C.F.R. § 240.12b-2. Plaintiffs allege control person liability against Bear Stearns in two instances: first, with respect to its control over its employee John Todona, and second with respect to control over Blech & Co. itself. The allegations with respect to both are insufficient. First, as to Todona, Plaintiffs have not alleged that Todona engaged in any acts of fraud actionable under the securities laws. As with some of the allegations against Bear Steams, Plaintiffs have established at most that Todona knew of the Blech scheme; there are, as in the previous complaint, no allegations of fraudulent conduct made against Todona. Therefore Bear Steams can not be liable as a control person. See, e.g., Moss v. Morgan Stanley, 719 F.2d 5, 16-17 (2d Cir.1983). Second, as to Blech & Co., the Complaint makes no allegations that Bear Steams controlled the actions of Blech. Actual control is essential to control person liability. See Ross v. Bolton, 83 Civ. 8244, 1989 WL 80428, at *2 (S.D.N.Y. Apr.4, 1989) (defendant must possess actual control over the transactions in question). The lower court decision in Ross held that even if a clearing broker affects the actions of an introducing broker, such action is not the same as directing those actions. Id. at *4. Bear Stearns, it is alleged, influenced Blech by telling him that his margin debt was too high and that he should sell securities to reduce the debt. See Compl. ¶ 82. While this exercise of influence over Blech, when coupled with the knowing execution of the resulting fraudulent transactions, is sufficient for primary liability to attach, such an exercise of influence is not “actual control.” Bear Stearns did not have the power to direct or cause the direction of the management and policies of Blech" }, { "docid": "19677709", "title": "", "text": "question raised is whether the ordinary services of a clearing broker can qualify as “overt acts.” The Second Circuit has explained that “ ‘the simple providing of normal clearing services to a primary broker who is acting in violation of the law does not make out a case of aiding and abetting against the clearing broker.’ ” A broker owes no fiduciary duty to its clients’ counterparties; in the absence of such a duty, the broker has no affirmative duty to disclose known manipulation. “A simple allegation of inaction can make out a claim of aider and abettor liability ‘only where there is a conscious or reckless violation of an independent duty to act.’ ” Plaintiffs try to avoid this conclusion by alleging that JPMFI took affirmative steps to aid the manipulation — the clearing of Amaranth’s transactions and the extension of credit. But “a clearing broker cannot be held liable as an aider and abettor simply because it performed its contracted-for services.” The Complaint states that “[t]he JPM Defendants’ assistance to Amaranth was non-routine and went beyond those regular and usual services typically provided by an [futures commission merchant] and clearing firm to its customer.” But there is no indication of any services provided by JPMFI that were not typical of the relationship between a futures clearing merchant and its client. “[W]here a clearing firm moves beyond performing mere ministerial or routine clearing functions and becomes actively and directly involved in the introductory broker’s actions, it may expose itself to liability with respect to the introductory broker’s misdeeds.” There are no allegations of such behavior here. JPMFI’s alleged activities were limited to the provision of clearing services and the extension of credit, activities that are typical of the relationship between a clearing broker and its client. The aiding and abetting claim against JPMFI is therefore dismissed. 4. Respondeat Superior The CEA creates liability for those employers whose agents committed manipulative acts while functioning within the scope of the relationship. As discussed above, to state a claim for vicarious liability, plaintiffs must allege that the principal manifested an intent to" }, { "docid": "6207797", "title": "", "text": "Todona, a Bear Stearns representative, asking why the individual’s bank had denied knowledge or refused to affirm the trades. Bear Stearns was then told, in words or substance, to ‘speak to Blech.’ ” Compl. ¶¶ 77-79. Second, Plaintiffs allege that Bear Steams knew of the “sham transactions” in which Blech was engaged. For instance, they allege that: during the Summer of 1994, Bear Steams exerted pressure on David Blech to contribute substantial additional cash or other liquid capital to Blech & Co. and advised Blech to find a financial partner that could provide capital to Blech & Co. Through its representative John Todona and others, Bear Steams knew of and participated in the sham transactions in which David Blech and Blech & Co. had engaged. Moreover, Bear Stearns’ compliance officer knew or should have known that David Blech and Blech & Co. were involved in “round tripping” of hundreds of thousands of shares of Blech Securities in these sham transactions____ Compl. ¶ 42. This alleged conduct, on its face, reflects no fraud, nor does it give rise to an inference of fraud. It reflects nothing more than the standard practice of clearing brokers to look first to the introducing broker’s customer for payment and, in the event of non-payment, to inform the introducing broker. The insufficiency of the allegations is highlighted by the fact that the Complaint does not allege that Bear Steams caused or directed trading by Blech & Co.’s customers or solicited or induced them to buy Blech Securities at inflated prices. Nor are there any allegations that Bear Steams did anything in an attempt to affect the price of such securities. This Court confronted a similar situation in Dillon v. Militano, 731 F.Supp. 634 (S.D.N.Y.1990). There the market-maker defendants had allegedly “cornered the market” in certain stock shares by using customer accounts without authorization, purchasing shares from short sellers, and obtaining extensions of time to meet margin requirements. The clearing broker for the defendants cleared all of the trades at issue and was charged with primary liability under § 10(b). The court dismissed the Rule 10b-5 manipulation" }, { "docid": "18100639", "title": "", "text": "broker.” Fezzani v. Bear, Stearns & Co., 592 F.Supp.2d 410, 425-26 (S.D.N.Y.2008); see also, e.g., Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 470 (S.D.N.Y.2001) (“A clearing broker does not provide ‘substantial assistance’ to or ‘participate’ in a fraud when it merely clears trades.”); In re Blech Sec. Litig., 961 F.Supp. 569, 584 (S.D.N.Y.1997) (“[P]rimary liability [under § 10(b)] cannot attach when the fraudulent conduct that is alleged is no more tha[n] the performance of routine clearing functions.”). The district courts have so held even if the clearing broker was alleged to have known that the introducing broker was committing fraud, Fezzani, 592 F.Supp.2d at 425; even if the clearing broker was alleged to have been clearing sham trades for the introducing broker, In re Blech, 961 F.Supp. at 584; and even if the clearing broker was alleged to have failed to enforce margin requirements against the introducing broker — thereby allowing the introducing broker’s fraud to continue — in violation of Federal Reserve and NYSE rules, Cromer, 137 F.Supp.2d at 471-72. In the second, much more limited category of cases, district courts have found plaintiffs’ allegations to be adequate — -and so have permitted claims to proceed— where a clearing broker is alleged effectively to have shed its role as clearing broker and assumed direct control of the introducing firm’s operations and its manipulative scheme. Thus, in Berwecky v. Bear, Stearns & Co., 197 F.R.D. 65 (S.D.N.Y.2000), the district court granted class certification in a suit brought by investors against clearing broker Bear Stearns for its role in the introducing firm A.R. Baron & Company’s (“Baron”) scheme to defraud investors. The Ber-wecky plaintiffs alleged that Bear Stearns “asserted control over Baron’s trading operations by, inter alia, placing Bear, Stearns’ employees at Baron’s offices to observe Baron’s trading activities, approving or declining to execute certain trades, imposing restrictions on Baron’s inventory, and loaning funds to Baron.” Id. at 67. The plaintiffs alleged that Bear Stearns asserted control over Baron’s activities “in order to keep A.R. Baron a viable concern while Bear, Stearns ... continued to reap the large profits they" }, { "docid": "18100641", "title": "", "text": "received from their activities with A.R. Baron.” Id. The district court found the allegations that Bear Stearns “controlled]” the implementation of the scheme to manipulate the price of securities sold by Baron sufficient to satisfy Rule 23(b)(3)’s predominance requirement. Id. at 68-69. Similarly, the district court in In re Blech, 961 F.Supp. 569, found that the “[c]omplaint crosse[d] the line dividing secondary liability from primary liability when it claim [ed] that Bear Stearns [the clearing broker] ‘directed’ or ‘contrived’ certain allegedly fraudulent trades.” Id. at 584. The plaintiffs in Blech had alleged that “Bear Stearns ‘directed’ Blech & Co. [the introducing firm] to sell Blech Securities by demanding that Blech reduce its debit balance with knowledge of Blech’s history of sham trading, and that Blech, in response to Bear Stearns’s pressure, engaged in manipulative parking transactions, which Bear Stearns cleared.” Id. The district court concluded that the alleged “instigation of trading that Bear Stearns knew or should have known would result in fraudulent trades that would artificially inflate the price of the Blech Securities,” and Bear Stearns’s subsequent “clearing of the resultant fraudulent trades for its own pecuniary benefit” constituted “an attempt to affect the price of the Blech Securities” and was therefore sufficient to state a claim for primary liability under § 10(b). Id. at 584-85 (emphasis added). We think that the distinctions drawn by these district courts properly implement Rule 382’s scheme, which allows clearing and introducing brokers to contractually allocate functions amongst themselves. As noted above, this scheme permits clearing brokers to place the burden of monitoring trades on the introducing broker. In return, the introducing broker has access to the services of the clearing broker and thus avoids the overhead costs associated with providing clearing services in-house. In view of the importance of not holding clearing brokers liable for conduct for which the introducing broker assumed responsibility pursuant to NYSE Rule 382, we here adopt the approach thus far taken by the district courts of this Circuit in § 10(b) suits against clearing brokers governed by Rule 382. In the present case, however, we conclude that" }, { "docid": "18100640", "title": "", "text": "much more limited category of cases, district courts have found plaintiffs’ allegations to be adequate — -and so have permitted claims to proceed— where a clearing broker is alleged effectively to have shed its role as clearing broker and assumed direct control of the introducing firm’s operations and its manipulative scheme. Thus, in Berwecky v. Bear, Stearns & Co., 197 F.R.D. 65 (S.D.N.Y.2000), the district court granted class certification in a suit brought by investors against clearing broker Bear Stearns for its role in the introducing firm A.R. Baron & Company’s (“Baron”) scheme to defraud investors. The Ber-wecky plaintiffs alleged that Bear Stearns “asserted control over Baron’s trading operations by, inter alia, placing Bear, Stearns’ employees at Baron’s offices to observe Baron’s trading activities, approving or declining to execute certain trades, imposing restrictions on Baron’s inventory, and loaning funds to Baron.” Id. at 67. The plaintiffs alleged that Bear Stearns asserted control over Baron’s activities “in order to keep A.R. Baron a viable concern while Bear, Stearns ... continued to reap the large profits they received from their activities with A.R. Baron.” Id. The district court found the allegations that Bear Stearns “controlled]” the implementation of the scheme to manipulate the price of securities sold by Baron sufficient to satisfy Rule 23(b)(3)’s predominance requirement. Id. at 68-69. Similarly, the district court in In re Blech, 961 F.Supp. 569, found that the “[c]omplaint crosse[d] the line dividing secondary liability from primary liability when it claim [ed] that Bear Stearns [the clearing broker] ‘directed’ or ‘contrived’ certain allegedly fraudulent trades.” Id. at 584. The plaintiffs in Blech had alleged that “Bear Stearns ‘directed’ Blech & Co. [the introducing firm] to sell Blech Securities by demanding that Blech reduce its debit balance with knowledge of Blech’s history of sham trading, and that Blech, in response to Bear Stearns’s pressure, engaged in manipulative parking transactions, which Bear Stearns cleared.” Id. The district court concluded that the alleged “instigation of trading that Bear Stearns knew or should have known would result in fraudulent trades that would artificially inflate the price of the Blech Securities,” and" }, { "docid": "18100638", "title": "", "text": "law ... make out a ease of aiding and abetting against the clearing broker.” We made this latter point in Greenberg v. Bear, Steams & Co., 220 F.3d 22, 29 (2d Cir.2000), which dealt with claims against Bear Stearns arising out of the very same ML Direct IPO at issue in the present case. There, we affirmed the district court’s denial of a petition to vacate an NASD arbitration award that had in turn dismissed securities fraud and state-law claims brought against Bear Stearns by an investor in the IPO. As relevant here, we noted that “there was ample evidence for the arbitrators to conclude that Bear Stearns’ participation [in the ML Direct IPO] was insufficient to constitute substantial assistance” under New York aiding and abetting law. Id. at 29. Applying these principles, district courts in this Circuit have distinguished two categories of cases. First, in cases where a clearing broker was simply providing normal clearing services, district courts have declined to “impose[ ] liability on the clearing broker for the transgressions of the introducing broker.” Fezzani v. Bear, Stearns & Co., 592 F.Supp.2d 410, 425-26 (S.D.N.Y.2008); see also, e.g., Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 470 (S.D.N.Y.2001) (“A clearing broker does not provide ‘substantial assistance’ to or ‘participate’ in a fraud when it merely clears trades.”); In re Blech Sec. Litig., 961 F.Supp. 569, 584 (S.D.N.Y.1997) (“[P]rimary liability [under § 10(b)] cannot attach when the fraudulent conduct that is alleged is no more tha[n] the performance of routine clearing functions.”). The district courts have so held even if the clearing broker was alleged to have known that the introducing broker was committing fraud, Fezzani, 592 F.Supp.2d at 425; even if the clearing broker was alleged to have been clearing sham trades for the introducing broker, In re Blech, 961 F.Supp. at 584; and even if the clearing broker was alleged to have failed to enforce margin requirements against the introducing broker — thereby allowing the introducing broker’s fraud to continue — in violation of Federal Reserve and NYSE rules, Cromer, 137 F.Supp.2d at 471-72. In the second," }, { "docid": "6418998", "title": "", "text": "but only that Gatullo-Wilson and SSB knew or should have known that the hedge loan proceeds were not being used by Lane for the purposes intended. However, monthly statements on the SSB accounts and monthly account transaction statements for the Petit Trust during the year 2000 disprove that the SSB Defendants aided and abetted Lane and Land “by transferring funds from the Petit Trust to the Keefer Trust.” SSB Keefer account statements from the period in question reveal transfers into the Keefer Trust on. the dates alleged by Lesavoy (August 28, 2000 and September 5, 2000) from First South Bancorp, not from Petit Trust. Account statements further show transfers between sub-accounts ■ of the same Trust, and not any transfers between the Petit and Keefer Trusts. The SSB Petit account statements also confirm that there were no transfers to the Keefer accounts. Fourth, the SSB Defendants are not responsible for the riskiness of trades placed by the Trustee. The Trust Agreement states, “any such person ... or firm shall be fully protected in making disposition of any assets of the trust created hereby in accordance with the directions of the Trustees.” (Compl., Ex. A at 13-14; Ex. B at 15.) Moreover, Lesavoy claims that the SSB Defendants owed the Trust Managers a fiduciary duty to execute trades according to instructions. 2. Substantial Assistance Lesavoy further alleges that the SSB Defendants “enabled” the Trust Managers to commit breaches of their fiduciary duty by providing routine clearing services in accordance with the Trust Managers’ instructions. However, the SSB Defendants owed no fiduciary duty to the Trust, and as held by the Second Circuit, “the simple providing of normal clearing services to a primary broker [, even one] who is acting in violation of the law [,] does not make out a case of aiding and abetting against the clearing broker.” Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 29 (2d Cir.2000) (quoting Stander v. Fin. Clearing & Servs. Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990)). New York courts have further refused to hold clearing brokers liable for the practices of others even" } ]

[ { "docid": "17766649", "title": "", "text": "the circumstances of each case. Mr. Chief Justice Hughes, in the case of Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754, commenting upon the legislative history of the Act, among other things, says at page 136, 50 S. Ct. at page 305: “When the bill which became the Longshoremen’s and Harbor Workers’ Compensation Act was pending in Congress, the importance of the policy of compensation acts, and their advantages in providing for appropriate compensation in the case of injury or death of employees, without regard to the fault of the employer, were distinct ly recognized. It appears that the bill originally excluded a master or members of a crew of a vessel, but was amended so as to extend to them the benefits of compensation. House Rep. No. 1767, 69th Cong., 2d Sess. As these seamen preferred to remain outside of the provisions of the bill, they were finally excluded, and the bill was passed with the exceptions above-quoted. Cong.Rec., 69th Cong., 2d. Sess., vol. 68, pt. 5, 5908. * * * ” In the case of Diomede v. Lowe, 2 Cir., 87 F.2d 296, 297, after quoting the above, the court went on to say: “Seamen, therefore, retained their rights under the maritime law and the right of election under the Jones Act (41 Stat. 1007, 46 U.S.C.A. § 688) to bring an action under the Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq.). In making the exception in question, the Longshoremen’s Act drew a distinction between ‘seamen’ and ‘harbor workers’ which must be applied consistently with its scope and purpose.” This distinction is well illustrated in the case of C. Flanagan & Sons v. Carken, Tex.Civ.App., 11 S.W.2d 392, 394. There the Court, in commenting upon this difference, used the following language: “A stevedore or longshoreman has no contract with the ship. He has not bound himself to its service. He does not serve as a member of its crew, but performs for an independent contractor a duty that formerly was ordinarily done by the" } ]

[ { "docid": "22634237", "title": "", "text": "certiorari, reversed this Court, and remanded the case to the district court with directions to reinstate its judgment. The Supreme Court, without discussing the law, cited four cases in Gianfala: South Chicago Coal & Dock Co. v. Bas sett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Summerlin v. Massman Construction Co., 4 Cir., 1952, 199 F.2d 715; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 1953, 202 F.2d 383, and Gahagan Construction Corp. v. Armao, 1 Cir., 1948, 165 F.2d 301, 305. These cases must be examined in order to understand the reasoning behind the per curiam opinion. In South Chicago Coal & Dock Co. v, Bassett the decedent was employed aboard a lighter to facilitate the flow of coal from the lighter to vessels being fueled. He did not work while the lighter was enroute from the dock to the vessel and he had no duties to perform while the lighter was in motion. The Court held that there was sufficient evidence to support a finding of the commissioner that the Longshoremen’s Act was the proper remedy and that the decedent was not a member of the crew under the Jones Act. Mr. Justice Hughes held that “the word ‘crew’ does not have an absolutely unvarying legal significance” [309 U.S. 251, 60 S.Ct. 548.] The determination, therefore, whether a person is a “member of the crew’’, a word that has a “wide range of variation”, is a question of fact to be left to the trier of the facts. The Supreme Court observed, however, that as used in the statute, “crew” seemed to mean “employees on the vessel who are naturally and primarily on board to aid in her navigation”. In Summerlin v. Massman Construction Co. the plaintiff was employed as a fireman on a floating derrick anchored in the York River. The derrick had no motive power of its own, no sleeping quarters, and was used in connection with pouring concrete into certain forms incident to building a bridge across the river. On an agreed statement of facts, the Fourth Circuit held that" }, { "docid": "22636962", "title": "", "text": "cleaning of the boat. He did no work while the boat was en route from dock to the vessel to be fueled.” The Court of Appeals thought it significant that his only duty relating to navigation was the incidental task of throwing the ship’s line; that his primary duty was to free the coal if it stuck in the hopper while being discharged into the fueled vessel while both boats were at rest; that he had no duties while the boat was in motion; that he was paid an hourly wage; that he had no “articles”; that he slept at home and boarded off ship'; that he was called very early in the morning each day as he was wanted; that while he had worked only three weeks, and it might have been possible that he would have been retained for years to come, his employment was somewhat akin to temporary employment. In Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128, we had occasion to consider the purpose and scope of the Longshoremen’s and Harbor Workers’ Compensation Act. Its general scheme was to provide compensation to employees engaged in maritime employment, except as stated, for disability or death resulting from injury occurring upon the navigable waters of the United States where recovery through workmen’s compensation proceedings might not validly be provided by state law. We had held that one engaged as a stevedore in loading a ship lying in port in navigable waters was performing a maritime' service and that the rights and liabilities of the parties were matters within the admiralty jurisdiction. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. But the Court had also held that in the case of a longshoreman who was injured on the land, although engaged in unloading a vessel, the local law governed and hence the workmen’s compensation law of the State applied. State Industrial Commission v. Nordenholt Corporation, 259 U. S. 263. The distinction had thus been maintained between injuries on land and those suffered by persons engaged in maritime employment on a vessel in" }, { "docid": "22634263", "title": "", "text": "as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, supra), were still regarded as distinct from members of a ‘crew’. They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation.” South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 261, 60 S.Ct. 544, 549, 84 L.Ed. 732. . Mr. Justice Harlan, however, points out: “[Bassett] does not suggest that a jury’s verdict on this issue is to be accorded some special sanctity. That case simply hold that a District Court could not grant a trial de novo on an issue within the primary jurisdiction of the Administrator, under the Longshoremen’s Act. * * * [T]his Court did in fact examine the Administrator’s determination that the plaintiff there was not a member of a crew, and sustained it only after concluding that it was supported by the evidence. Further, the Court’s citation of Bassett in Cantey v. McLain Line, Inc., 312 U.S. 667, 61 S.Ct. 829, 85 L.Ed. 1111, supra, would seem in context to imply that the Court regarded the result in Bassett as reflecting its own independent determination as to the status of the petitioner there, rather than as a decision passing merely on the scope of judicial review to be accorded to the determination of the Administrator. And, if that be so, Bassett should surely control the result here, since if the Bassett petitioner was as a matter of law not a ‘member of a crew,’ a fortiori, Senko was not.” Senko v. La Crosse Dredging Corporation, 1957, 352 U.S. 370, 77 S.Ct. 415, 420, 1 L.Ed.2d 404. . “While this court is bound by the findings of fact of the District Judge, if they" }, { "docid": "2506583", "title": "", "text": "the maritime jurisdiction of the United States. S.R. No. 973, 69th Cong., 1st Sess. 16 (1927). The 1927 Act, consistent with the 1922 Act, did not extend benefits to “a master or member of a crew of any vessel____” Act of March 4, 1927, Ch. 509, § 2(3), 44 Stat. at 1425. No definition of “member of a crew” is included in the LHWCA, but two Supreme Court cases are instructive on its meaning. In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940), a workman drowned while working aboard a lighter used for providing coal to steamships. The Court was presented with the question of whether his widow was entitled to benefits under the LHWCA. The Court described generally the type workers who were covered by the Act despite the “member of the crew” exception: We think it is clear that Congress in finally adopting the phrase ‘a master or member of a crew’ in making its exception, intended to leave entitled to compensation all those various sorts of longshoremen and harbor workers who were performing labor on a vessel---- ****** They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. Id. at 257, 260, 60 S.Ct. at 548, 549. The most definitive expression by the Court on the meaning of the member of the crew exclusion and the relationship between that exclusion and “seamen” in the Jones Act was made in Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946). The question before the Court was whether a longshoreman injured on a dock could recover benefits under the Jones Act. The employee argued that Haverty established his right to claim Jones Act benefits and that his right to such benefits was unaffected by the LHWCA because he was injured on land, outside the coverage of the LHWCA." }, { "docid": "14538025", "title": "", "text": "learn the business.” The captain instructed him in the proper operation of the wheel in navigating across the river. Thus plaintiff, although employed on an “extra man” basis, was merely standing on the first rung of the ladder which would lead him to a regular position in the ferryboat .service. Despite the irregularity of his work, he was .performing the duties of a seaman and was entitled to the rights pertaining to that status. Though but a neophyte, he was a member of a crew actively engaged in navigation. We recognize that to be considered a “seaman” for purposes of recovery under the Jones Act and for exclusion from the Longshoremen’s Act the nature of a claimant’s duties aboard a vessel is not controlling and that he need not be serving her in a strictly naviga-, tional capacity. See A. L. Mechling Barge Line v. Bassett, supra, 7 Cir., 119 F.2d 995, 998. Still we know of no case where an employee whose duties consisted of actually operating the wheel of a vessel has been denied the designation; of “seaman,” as traditionally and universal: ly associated with his position. Thus in the leading case of South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 260, 60 S.Ct. 544, 549, Mr. Chief Justice Hughes said: “This [Longshoremen’s] Act, as we have seen, was,.tc> provide compensation for a class of. em7 ployees at work on a vessel in navigable waters who, although they might be-classed as seamen (International Stevedoring Co. v. Haverty, supra [272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157]), were still regarded as distinct from members of a ‘crew.’ They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. See De Wald v. Baltimore & Ohio R. Co., 4 Cir., 71 F.2d 810; Diomede v. Lowe, 2 Cir., 87 F.2d 296; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100" }, { "docid": "22118906", "title": "", "text": "the lighter. The court observed that whether an individual is a member of a crew is a question to be left to the trier of fact, and concluded that “[t]he word ‘crew’ does not have an absolutely unvarying legal significance.” Id. at 258, 60 S.Ct. at 548. The court went on to state: [The LHWCA] as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen [citing International Stevedoring Co. v. Haverty ] were still regarded as distinct from members of a “crew.” They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. 309 U.S. at 260, 60 S.Ct. at 549. Since the employee’s duties had little to do with navigation, the Supreme Court concluded that he was not a member of the crew and thus was covered by the LHWCA. This restrictive approach to the seaman-status question was to be relaxed by later cases. The next case to consider the status question was Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944). The trial court found a bargeman who lived aboard the barge, and whose duties included pumping, tying and untying lines, putting out navigational lights, and assisting while the barge was in tow to be a harbor-worker, not a member of the crew. The Court of Appeals reversed, and the Supreme Court affirmed the reversal. In reaching this decision, the Court repeated the Bassett statement that the term “crew” embraces individuals who are naturally and primarily on board the vessel to aid in her navigation, but went on to explain that: [Navigation is not limited to “putting over the helm.” It also embraces duties essential for other purposes of the vessel. Certainly members of the crew are not confined to those who can “hand, reef and steer.” Judge Hough" }, { "docid": "15857752", "title": "", "text": "does not include a master or member of a crew of any vessel .... ” To find that an employee is a member of a crew excluded from coverage, the court must conclude that the vessel is in navigation, that the worker had a .permanent connection with the vessel and that the employee was aboard the vessel primarily to aid in navigation. Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); accord, Burks v. American River Transportation Co., 679 F.2d 69, 75-76 (5th Cir. 1982). Whether the decedent was a master or crew member is primarily a question of fact. Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (5th Cir. 1980); Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383, 389 (6th Cir.), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344 (1953). Thus, the finding of the ALJ that decedent was not a member of a crew must be affirmed if it is supported by substantial evidence. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 257, 60 S.Ct. 544, 547, 84 L.Ed. 732 (1940); Hardaway Contracting Co. v. O’Keeffe, 414 F.2d 657, 660-61 (5th Cir. 1968). The Supreme Court in Bassett stated that the question turns upon the employee’s actual duties and held that the claimant’s employment did not aid in navigation except for the incidental task of throwing the ship’s rope or securing the line — duties which could be performed by any harbor worker. 309 U.S. at 260, 60 S.Ct. at 549. The ALJ in this case made similar findings regarding decedent Freer’s duties. The ALJ stated: (a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times" }, { "docid": "22634262", "title": "", "text": "power and was furnished with machinery and equipment for cleaning and screening coal. . “In our judgment, an employer who hires men to work on the water on vessels engaged in navigation and permits them to have such a permanent connection with the vessel as to expose them to the same hazards of marine service as those shared by all aboard should not be permitted, by merely restricting their duties or by adopting particular nomenclature as descriptive of their tasks, to limit Ms liability to such employees, in the event of disability or death alleged to have been caused by the negligence of the employer, to the extent prescribed by the Longshoremen’s Act.” Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 1953, 202 F.2d 383, 388. . “That is our concern here in construing this particular statute — the Longshoremen’s and Harbor Workers’ Compensation Act — with appropriate regard to its distinctive aim. We find little aid in considering the use of the term ‘crew’ in other statutes having other purposes. This Act, as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, supra), were still regarded as distinct from members of a ‘crew’. They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation.” South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 261, 60 S.Ct. 544, 549, 84 L.Ed. 732. . Mr. Justice Harlan, however, points out: “[Bassett] does not suggest that a jury’s verdict on this issue is to be accorded some special sanctity. That case simply hold that a District Court could not grant a trial de novo on an issue within the primary jurisdiction of the Administrator, under the Longshoremen’s Act. *" }, { "docid": "22634236", "title": "", "text": "accident. The drilling crew was handling casing pipe in the completion of operations of a well drilled to a depth of 11,000 feet. A lift blew out a piston rod that struck and killed Gianfala. The defendant contended that the drilling barge was not a vessel in navigation and that the decedent was an oil field employee whose duties were not primarily in aid of navigation. The trial court held that the decedent’s status was a question for the jury. This Court reversed the district court in a unanimous opinion, holding that the facts were undisputed and that the applicability of the Jones Act is a question of law to be determined by the court. As a matter of law, the decedent was not aboard ship, primarily to aid in navigation; “on the contrary he was aboard ship not as a member of the ship’s crew, but as a member of the drilling crew” doing work done only by oil field workers. The Supreme Court, in a short per curiam opinion, granted a writ of certiorari, reversed this Court, and remanded the case to the district court with directions to reinstate its judgment. The Supreme Court, without discussing the law, cited four cases in Gianfala: South Chicago Coal & Dock Co. v. Bas sett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Summerlin v. Massman Construction Co., 4 Cir., 1952, 199 F.2d 715; Wilkes v. Mississippi River Sand & Gravel Co., 6 Cir., 1953, 202 F.2d 383, and Gahagan Construction Corp. v. Armao, 1 Cir., 1948, 165 F.2d 301, 305. These cases must be examined in order to understand the reasoning behind the per curiam opinion. In South Chicago Coal & Dock Co. v, Bassett the decedent was employed aboard a lighter to facilitate the flow of coal from the lighter to vessels being fueled. He did not work while the lighter was enroute from the dock to the vessel and he had no duties to perform while the lighter was in motion. The Court held that there was sufficient evidence to support a finding of the commissioner" }, { "docid": "22636960", "title": "", "text": "commissioner was precluded from weighing the evidence, being required to examine the record and ascertain whether there was any evidence to support the commissioner’s finding. Holding that there was such evidence, the Court of Appeals reversed the decree of the District Court and directed the dismissal of the bill of complaint. 104 F. 2d 522. Because of an alleged conflict with a decision of the Court of Appeals of the Fifth Circuit in the case of Maryland Casualty Co. v. Lawson, 94 F. 2d 190, we granted certiorari, 308 U. S. 532. The statute provides specifically in § 3 as to “Coverage,” that no compensation shall be payable in respect of the disability or death of a “master or member of a crew of any vessel.” And these persons were excluded from the definition of the term employee. § 2 (3). It appears that the vessel was a lighter of 312 net tons used for fueling steamboats and other marine equipment. It was licensed to operate in' the Calumet River and Harbor and in the Indiana River and Harbor. The Court of Appeals thus summarized its operations: “It supplied coal to other vessels on their order, each operation consuming only a couple of hours. It had no. sleeping or eating quarters. Its certificates of inspection required that ‘Included in the entire crew hereinafter specified and designated there must be 1 licensed master and pilot, 1 licensed chief engineer, three seamen, 1 fireman’. If deceased were counted as a member of the crew, the full complement of the ship was present.. Otherwise not.” The captain testified before the deputy, commis^ sioner that he had five men on the boat with him, one engineer, fireman and three “deckhands,” the decedent being one of the latter. The Court of Appeals described his chief task as “facilitating the flow of coal from his boat to the vessel being fueled — removing obstructions to the flow with a stick. He performed such additional tasks as throwing the ship’s rope in releasing or making the boat fast. He performed no navigation duties. He occasionally did some" }, { "docid": "11004474", "title": "", "text": "L. Ed. 732, where the Court, determining whether a laborer on a coaling vessel was a “member of a crew” and therefore without .the protection of the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C.A. § 901 et seq. said: “The word ‘crew’ does not have an absolutely unvarying legal significance. * * * our concern there was ‘to define the meaning for the purpose of a particular statute which must be read in the light of the mischief to be corrected and the end t»o be attained.’ * * * “That i's our concern here in construing this particular statute — the Longshoremen’s and Harbor Workers’ Compensation Act — with appropriate regard to its distinctive aim. Wc find little aid in considering the use of the term ‘crew’ in other statutes having other purposes. This Act, a's we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen * * * were still regarded as distinct from members of a ‘crew.’ They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation.” Other cases which command special attention and consideration are: Helena Glendale Ferry Co. v. Walling, supra; Spinner v. Waterways Co., supra; Arnesen v. Manhattan Lighterage Corp., D.C., 57 F.Supp. 218, reversed, by the Second Circuit Court of Appeals sub. nom. Anderson v. Manhattan Lighterage Co., 148 F.2d 971; and Gale v. Union Bag & Paper Co., 5 Cir., 116 F.2d 27. The decree is Affirmed. Spinner v. Waterways Fuel & Dock Co., 70 Ohio App. 121, 41 N.E.2d 144; Arnesen v. Manhattan Lighterage Corp., D.C.N.Y., 57 F.Supp. 218, reversed in Anderson v. Manhattan Lighterage Co., 2 Cir., 148 F.2d 971, which opinion has just come to our attention and meets our approval; Helena Glendale Ferry Co. v. Walling, 8 Cir., 132 F.2d 616; Gale v. Union" }, { "docid": "22636961", "title": "", "text": "Indiana River and Harbor. The Court of Appeals thus summarized its operations: “It supplied coal to other vessels on their order, each operation consuming only a couple of hours. It had no. sleeping or eating quarters. Its certificates of inspection required that ‘Included in the entire crew hereinafter specified and designated there must be 1 licensed master and pilot, 1 licensed chief engineer, three seamen, 1 fireman’. If deceased were counted as a member of the crew, the full complement of the ship was present.. Otherwise not.” The captain testified before the deputy, commis^ sioner that he had five men on the boat with him, one engineer, fireman and three “deckhands,” the decedent being one of the latter. The Court of Appeals described his chief task as “facilitating the flow of coal from his boat to the vessel being fueled — removing obstructions to the flow with a stick. He performed such additional tasks as throwing the ship’s rope in releasing or making the boat fast. He performed no navigation duties. He occasionally did some cleaning of the boat. He did no work while the boat was en route from dock to the vessel to be fueled.” The Court of Appeals thought it significant that his only duty relating to navigation was the incidental task of throwing the ship’s line; that his primary duty was to free the coal if it stuck in the hopper while being discharged into the fueled vessel while both boats were at rest; that he had no duties while the boat was in motion; that he was paid an hourly wage; that he had no “articles”; that he slept at home and boarded off ship'; that he was called very early in the morning each day as he was wanted; that while he had worked only three weeks, and it might have been possible that he would have been retained for years to come, his employment was somewhat akin to temporary employment. In Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128, we had occasion to consider the purpose and" }, { "docid": "22118905", "title": "", "text": "master or member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). Thus, the coverage of the Jones Act is narrowed by the LHWCA. The LHWCA limits the broad term “seamen” so that only “member[s] of a crew of a vessel” are exempted and permitted to be covered by the Jones Act. Just what the term “member of a crew of a vessel” signifies, however, is a question with which the Supreme Court grappled from 1940 until 1958, and which has concerned the circuit courts ever since. The first real attempt by the Supreme Court to define the term “member of a crew” in order to determine the scope of the Jones Act was South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940), a suit for the death of an employee who had worked on a lighter used for fueling steamships. The decedent’s primary job was to facilitate the passage of coal from the lighter to the steamship. On occasion he threw lines and cleaned the lighter. The court observed that whether an individual is a member of a crew is a question to be left to the trier of fact, and concluded that “[t]he word ‘crew’ does not have an absolutely unvarying legal significance.” Id. at 258, 60 S.Ct. at 548. The court went on to state: [The LHWCA] as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen [citing International Stevedoring Co. v. Haverty ] were still regarded as distinct from members of a “crew.” They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. 309 U.S. at 260, 60 S.Ct. at 549. Since the employee’s duties had little to do with navigation, the Supreme Court concluded that he was not a member" }, { "docid": "22324004", "title": "", "text": "that decedent’s widow was not entitled to recovery under the LHWCA because decedent was a “member of the crew” of the lighter. In holding that decedent’s widow was entitled to LHWCA coverage, the Court explained that the “member of a crew” exception was meant to exclude only “those employees on the vessel who are naturally and primarily on board to aid in her navigation.” Id., at 260. Without defining further precisely what aiding in navigation entailed, the Court seemed to be harkening back to an earlier, discarded notion of seaman status. But the Court was not defining “seaman” under the Jones Act; it was construing “member of a crew” under the LHWCA. Bassett was decided before Swanson, at a time when the Court viewed “seaman” as a broader term than “member of a crew.” The Bassett Court stated explicitly that it did not equate “member of a crew” under the LHWCA with “seaman” under the Jones Act: “[The LHWCA], as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, [272 U. S. 50 (1926)]), were still regarded as distinct from members of a ‘crew.’” Bassett, supra, at 260. Bassett did not impose an aid in navigation requirement for seaman status under the Jones Act. The Court emphasized this point a year later in a one-sentence summary reversal order in Cantey v. McLain Line, Inc., 312 U. S. 667 (1941). Cantey was a Jones Act case. In ruling that claimant was not entitled to Jones Act relief, the District Court found the facts of the case indistinguishable from those of Diomede v. Lowe, 87 F. 2d 296 (CA2), cert. denied, 301 U. S. 682 (1937). Cantey v. McLain Line, Inc., 32 F. Supp. 1023 (SDNY), aff’d, 114 F. 2d 1017 (CA2 1940). Diomede had held that a maritime worker was entitled to LHWCA coverage because he was not a “member of a crew.” Diomede, supra, at 298. The District Court in Cantey concluded that because, following Diomede," }, { "docid": "22636970", "title": "", "text": "— the Longshoremen's and Harbor Workers’ Compensation Act — with appropriate regard to its distinctive aim. We find little aid in considering the use of the term ^crew” in other statutes having other purposes. This Act, as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, supra), were still regarded as distinct from members of a “crew.” They were persons serving on vessels, to be sure, but their service was that .of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. See De Wald v. Baltimore & Ohio R. Co., 71 F. 2d 810; Diomede v. Lowe, 87 F. 2d 296; Moore Dry Dock Co. v. Pillsbury, 100 F. 2d 245. Regarding the word “crew” in this statute as referring to the latter class, we think there was evidence to support the finding of the deputy commissioner. The fact that the certificate of inspection called for three “deckhands” and that the captain included the decedent to make up that complement is not controlling. The question concerns his actual duties. These duties, as the Court of Appeals said, did not pertain to navigation, aside from the incidental task of throwing the ship’s rope or making the boat fast, a service of the sort which could readily be performed or aided by a harbor worker. What the court considered as supporting the finding of the deputy commissioner was that the primary duty of the decedent was to facilitate the flow of coal to the vessel being fueled, that he had no duties while the boat was in' motion, that he slept at home and boarded off ship and was called each day as he was wanted and was paid an hourly wage. Workers of that- sort on harbor craft may appropriately be regarded as “in the position of longshoremen or o tier casual workers on the" }, { "docid": "22118904", "title": "", "text": "that Barrett was a Jones Act seaman. On these facts, the majority of the panel agreed with the district court. II. BACKGROUND The historical background of the question that we address today is one that has been related many times in many places. Yet for the sake of clarity, we set it forth once again. The Jones Act grants its liberal remedies to “any seaman.” This term is not defined in the Act, and in the years immediately following the passage of the Jones Act it was given an expansive interpretation by the Supreme Court. In International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926), the Supreme Court held that “seaman” included longshoremen when they were employed in maritime work on navigable waters. 272 U.S. at 52, 47 S.Ct. at 19. The next year Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq. (LHWCA), which provides a compensation remedy for all maritime workers injured on navigable waters, except those employees who are “a master or member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). Thus, the coverage of the Jones Act is narrowed by the LHWCA. The LHWCA limits the broad term “seamen” so that only “member[s] of a crew of a vessel” are exempted and permitted to be covered by the Jones Act. Just what the term “member of a crew of a vessel” signifies, however, is a question with which the Supreme Court grappled from 1940 until 1958, and which has concerned the circuit courts ever since. The first real attempt by the Supreme Court to define the term “member of a crew” in order to determine the scope of the Jones Act was South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940), a suit for the death of an employee who had worked on a lighter used for fueling steamships. The decedent’s primary job was to facilitate the passage of coal from the lighter to the steamship. On occasion he threw lines and cleaned" }, { "docid": "14538026", "title": "", "text": "denied the designation; of “seaman,” as traditionally and universal: ly associated with his position. Thus in the leading case of South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 260, 60 S.Ct. 544, 549, Mr. Chief Justice Hughes said: “This [Longshoremen’s] Act, as we have seen, was,.tc> provide compensation for a class of. em7 ployees at work on a vessel in navigable waters who, although they might be-classed as seamen (International Stevedoring Co. v. Haverty, supra [272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157]), were still regarded as distinct from members of a ‘crew.’ They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. See De Wald v. Baltimore & Ohio R. Co., 4 Cir., 71 F.2d 810; Diomede v. Lowe, 2 Cir., 87 F.2d 296; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245.” The Moore Dry Dock Co. case, cited supra and relied upon by defendant in this case, is clearly distinguishable on the grounds set forth in the South Chicago Coal case; for in the Moore Dry Dock case the plaintiff Howland was employed as a “rigger” and spent the greater part of his working time aboard a launch or tug which performed various; tasks connected with the operation of defendant’s shipyard. He was not one of “those employees on the vessel who are-naturally and primarily on board to aid-in her navigation.” South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 260, 60 S.Ct. 544, 549. In this case,, on the other hand, plaintiff, as part of his assigned duties as a crewman, took the wheel of a vessel regularly engaged in the carriage of passengers and vehicles- across navigable waters. Thus as “a man who serve[d] the ship as the result of a contractual engagement * * *, and serve[d] her in her navigation, [he was] a member of the crew" }, { "docid": "22636969", "title": "", "text": "the arrangement under which they are on board.” Judge Hough in The Buena Ventura, 243 F. 797, 799. thought that statement was a fair summary, and in his view one who served the ship “in her navigation” was a member of the “crew.” Id., p. 800. See, also, Seneca Gravel Co. v. McManiyal, 65 F. 2d 779. Recently, in considering the application of the Jones Act to “any seaman.” we adverted to the “range of variation” in the use of the word “crew,” and it was again emphasized that what concerned us in that case, which had relation to the status of a “'master.” was “not the scope of the class of seamen at other times and in other contexts.\" We said that our concern there was “to define the meaning for the purpose of a particular statute which must be read in the light of the mischief to be corrected and the end to be attained.\" Warner v. Goltra, 293 U. S. 155, 158. That is our concern here in construing this particular statute — the Longshoremen's and Harbor Workers’ Compensation Act — with appropriate regard to its distinctive aim. We find little aid in considering the use of the term ^crew” in other statutes having other purposes. This Act, as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, supra), were still regarded as distinct from members of a “crew.” They were persons serving on vessels, to be sure, but their service was that .of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. See De Wald v. Baltimore & Ohio R. Co., 71 F. 2d 810; Diomede v. Lowe, 87 F. 2d 296; Moore Dry Dock Co. v. Pillsbury, 100 F. 2d 245. Regarding the word “crew” in this statute as referring to the latter class, we think there was evidence" }, { "docid": "22636971", "title": "", "text": "to support the finding of the deputy commissioner. The fact that the certificate of inspection called for three “deckhands” and that the captain included the decedent to make up that complement is not controlling. The question concerns his actual duties. These duties, as the Court of Appeals said, did not pertain to navigation, aside from the incidental task of throwing the ship’s rope or making the boat fast, a service of the sort which could readily be performed or aided by a harbor worker. What the court considered as supporting the finding of the deputy commissioner was that the primary duty of the decedent was to facilitate the flow of coal to the vessel being fueled, that he had no duties while the boat was in' motion, that he slept at home and boarded off ship and was called each day as he was wanted and was paid an hourly wage. Workers of that- sort on harbor craft may appropriately be regarded as “in the position of longshoremen or o tier casual workers on the water.” Scheffler v. Moran Towing Co., 68 F. 2d 11, 12. Even if it could be said that the evidence permitted .conflicting inferences, we think hat there was enough to sustain the deputy commissioner’s ruling. The judgment of the Court of Appeals is Affirmed. Mr. Justice Murphy took no part in the consideration and decision of this case. 44 Stat. 1424; 33 U. S. C. and U. S. C. Supp. IV, §§ 901, et seq The entire text of § 3 is as follows: “Sec. 3. Coverage. — (a) Compensation shall be payable under this chapter in respect of disability, or death of an employee, but only if the disability or death results from an injury occurring upon the návi- ’ gable waters of the United States (including any drydock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. No compensation shall be payable\"‘in respect of the disability or death of— “(1) A master or member of a crew of any vessel, nor any" }, { "docid": "22324003", "title": "", "text": "does affects ‘the operation and welfare of the ship when she is upon a voyage.’ The Buena Ventura, 243 Fed. 797, 799, where a wireless operator was brought within the term.” Warner, supra, at 157. There is no reference to navigation. The Court quoted The Buena Ventura again, specifically on the point of the expanded definition of “seaman”: “The word ‘seaman’ undoubtedly once meant a person who could ‘hand, reef and steer,’ a mariner in the true sense of the word. But as the necessities of ships increased, so the word ‘seaman’ enlarged its meaning.” The Buena Ventura, supra, at 799, quoted in Warner, supra, at 157, n. 1. Warner plainly rejected an aid in navigation requirement under the Jones Act. The confusion began with South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 (1940). Decedent was drowned while working as a deckhand on board a lighter used to fuel steamboats and other marine equipment. His primary duty was to move coal from the boat to other vessels being fueled. Petitioner maintained that decedent’s widow was not entitled to recovery under the LHWCA because decedent was a “member of the crew” of the lighter. In holding that decedent’s widow was entitled to LHWCA coverage, the Court explained that the “member of a crew” exception was meant to exclude only “those employees on the vessel who are naturally and primarily on board to aid in her navigation.” Id., at 260. Without defining further precisely what aiding in navigation entailed, the Court seemed to be harkening back to an earlier, discarded notion of seaman status. But the Court was not defining “seaman” under the Jones Act; it was construing “member of a crew” under the LHWCA. Bassett was decided before Swanson, at a time when the Court viewed “seaman” as a broader term than “member of a crew.” The Bassett Court stated explicitly that it did not equate “member of a crew” under the LHWCA with “seaman” under the Jones Act: “[The LHWCA], as we have seen, was to provide compensation for a class of employees at work on" } ]

[ { "docid": "13624009", "title": "", "text": "loss deductible under section 23 (e) (3) because in that case there would be no theft, or anything resembling theft, of any of the money paid by the petitioners to Landstrom. Likewise, if Landstrom, without spending all of the money paid to him, had placed a structure on the premises having a value equal to or in excess of $7,500, it would be difficult to see wherein there would be any theft, or anything resembling a theft, which would be deductible under section 23 (e) (3). However, it is reasonably clear that the structure on the premises at the time Landstrom absconded was worth considerably less than $7,500, and less than $7,500 had been expended on it. The Court, following the principle of Cohan v. Commissioner, 39 F. 2d 540, has determined the amount of loss at $2,500. The respondent contends further that even though the amount of the alleged loss is established, it is nevertheless not deductible because it was neither a theft nor an embezzlement. The determination of the Commissioner was merely that the alleged loss had not been substantiated and was disallowed “Pending further substantiation.’’ The record supplies further substantiation to the extent of $2,500 at least and that overcomes the determination of the Commissioner. Furthermore, the deduction is not limited to theft since embezzlement has frequently been held sufficiently like theft to give rise to a deduction under section 23 (e) (3) as the Commissioner admits. Cf. The Morris Plan Co. of St. Joseph, 42 B. T. A. 1190, appeal dismissed 122 F. 2d 412, holding that a sale of forged mortgages was a “theft.” He advances no persuasive argument that loss from felonious acts such as Landstrom was guilty of should not be regarded as deductible under section 23 (e) (3). Landstrom received the $7,500 as his own and agreed to build the building. Had he wanted to terminate the agreement, honesty would have required him to have a settlement with the petitioners and pay back to them at least some portion of the $7,500 to which they then had a right. But instead of" } ]

[ { "docid": "5184065", "title": "", "text": "and the exact nature of the crime, whether larceny or obtaining money under false pretenses, is of little importance. The respondent argues that, admitting the loss by theft, the petitioner is not entitled to a deduction under the provisions of section 23 (e) (3) for the reason that to permit the loss would contravene public policy. This reasoning is based upon the respondent’s contention that the petitioner here was involved in an illegal scheme. We have no evidence before us to support the respondent’s position that the petitioner was involved in any illegal scheme. Respondent failed to introduce any evidence of the law of Mexico upon this point and had he done so we are not certain that his position could be sustained. Section 23 (e) (3) and its accompanying regulations do not prohibit a deduction otherwise allowable by reason of theft on the grounds that to allow the deduction would violate or frustrate public policy. See Lilly v. Commissioner, 343 U. S. 90. We therefore hold that the petitioner is entitled to deduct $8,500 as a loss incurred by theft under the provisions of section 23 (e) (3) of the Internal Revenue Code. Decision will he entered under Rule 60." }, { "docid": "23298606", "title": "", "text": "wider term than larceny and includes other forms of wrongful deprivation of property of another [such as] embezzlement or swindling.’ ” In People v. Jones, 36 Cal.2d 373, 224 P.2d 353, 355: “Crimes of larceny, embezzlement, obtaining money by false pretenses and kindred offenses are now all included under the designation of theft, * * * but the elements of the several offenses have not been changed.” RIVES, Circuit Judge (dissenting). In permitting the deduction of losses from “theft”, I.R.C.1939, Sec. 23(e) (3), I.R.C.1954, Sec. 165(c) (3) and (e), I do not think that Congress intended to make the inquiry so broad as to include all forms of dishonesty, cheating, and swindling. See 41 Words and Phrases, Theft, p. 480 et seq. The taxpayer turned over the money to Goldberg for the purpose and with the intent that it should be used to defraud other persons who might bet their money upon horses in ignorance of the fact that the races had been fixed. Now when he finds that, instead of defrauding others, he himself is the party defrauded, he is in no position to call on the Government to bear a part of his loss. Stone v. White, 301 U.S. 532, 534, 57 S.Ct. 851, 81 L.Ed. 1265; Commissioner v. Heininger, 320 U.S. 467, 474, 64 S.Ct. 249, 88 L.Ed. 171. Finally and certainly, under the statute, to authorize deduction, the taxpayer must establish not only the theft but the loss therefrom. Alison v. United States, 344 U.S. 167, 170, 73 S.Ct. 191, 97 L.Ed. 186. I, therefore, respectfully dissent." }, { "docid": "22557998", "title": "", "text": "(C. A. 4th Cir. 1956) (false pretenses); Smith v. United States, 233 F. 2d 744 (C. A. 9th Cir. 1956) (embezzlement); Breece v. United States, 218 F. 2d 819 (C. A. 6th Cir. 1954) (embezzlement); Wilson v. United States, 214 F. 2d 313 (C. A. 6th Cir. 1954) (embezzlement); Collier v. United States, 190 F. 2d 473 (C. A. 6th Cir. 1951) (embezzlement); Davilman v. United States, 180 F. 2d 284 (C. A. 6th Cir. 1950) (embezzlement). And see United States v. Sicurella, 187 F. 2d 533, 534 (C. A. 2d Cir. 1951) where the court said that “a narrow common law definition [of “stolen”] is not required under the Dyer Act.” Most of these cases adopted the definition of “stolen” given by Judge Shackelford Miller, Jr., in United States v. Adcock, 49 F. Supp. 351, 353 (D. C. W. D. Ky. 1943) (embezzlement): “. . . the word ‘stolen’ is used in the statute not in the technical sense of what constitutes larceny, but in its well known and accepted meaning of taking the personal property of another for one’s own use without right or law, and that such a taking can exist whenever the intent to do so comes into existence and is deliberately carried out regardless of how the party so taking the car may have originally come into possession of it.” United States v. Carll, 105 U. S. 611 (1882); United States v. Smith, 5 Wheat. 153 (1820); United States v. Brandenburg, 144 F. 2d 656 (C. A. 3d Cir. 1944). In defining “theft” Webster’s New International Dictionary (2d ed. 1953) says: “Stealing and theft, esp. in popular use, are broader terms than larceny, and may include swindling as well as embezzlement.” “The term ‘theft,’ sometimes used as a synonym of larceny, is in reality a broader term, applying to all cases of depriving another of his property whether by removing or withholding it, and includes larceny, robbery, cheating, embezzlement, breach of trust, etc.” 13 Encyclopaedia Britannica, Larceny (1953), 720. And see 2 Bouvier’s Law Dictionary (3d rev. ed. 1914) 3267. See, e. g., United States" }, { "docid": "23592228", "title": "", "text": "§ 2113(b) (“takes and carries away, with intent to steal ... ”), enacted under the Federal Bank Robbery Act, encompassed the charged crime of “obtaining money from a bank under false pretenses,” or rather, was limited to larceny. The Court first observed that “larceny” and statutory theft crimes (such as false pretenses and embezzlement) existed as separate crimes, but only because late-18th century courts were reluctant to expand the definition of “theft” beyond common law larceny. Id. at 359, 103 S.Ct. 2398. The Bell Court held that the Act did encompass “false pretenses” because although the 1934 Congress had intended that “larceny” cover theft only by forcible means, the 1937 Congress amended the Act by adding the “take and carry away” language specifically to cover theft by either forcible or non-forcible means. Id. at 361-62, 103 S.Ct. 2398. The Court cautioned, however, that its holding was limited to the crime of “false pretenses,” by stating that the Act “may not cover the full range of theft offenses.” Id. Thus, Bell does not, as Hayden asserts, stand for the proposition that embezzlement necessarily falls outside the purview of § 661. If anything, the Bell holding suggests that embezzlement is proscribed because the legislative history of this crime is similar to that of false pretenses. We adopt the reasoning of Schneider, 2. Jurisdiction under 18 U.S.C. § 661. Hayden argues that United States “special maritime and territorial jurisdiction” under 18 U.S.C. § 661 cannot he because her criminal intent was formed where she had a “duty to account,” i.e., at the off-base bank. Where a continuing offense — such as embezzlement — runs through several jurisdictions, the offense is committed and cognizable in each. See United States v. Angotti, 105 F.3d 539, 542-43 (9th Cir.1997). Moreover, 18 U.S.C. § 3237(a) states that “[a]ny offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of or prosecuted in any district in which such offense was begun, continued or completed.” (emphasis added). Here, Hayden’s offenses at least “began” and “continued” on" }, { "docid": "23298594", "title": "", "text": "The district j'udge, finding and con-eluding that plaintiff was entitled to recover, entered judgment accordingly, and the collector’s administrator has appealed. Here, urging upon us that the district judge erred, in holding that the taxpayer is entitled to deductions for theft losses under the invoked section with respect to sums which he turned over to Goldberg, in 1948 and 1949, and in entering judgment accordingly, appellant insists that the judgment must be reversed and here rendered for him. As- developed in his argument, this contention takes three forms. One is that the evidence of plaintiff does not make out a case of losses by theft but only one of losses from swindling and that the invoked section contains no provision for deducting these. Another is that in the act of parting with his money, • plaintiff Bromberg was himself a party to, and engaged in, a swindling scheme, and that recovery is forbidden by considerations of public policy, as well as the consideration that a suit for moneys wrongfully had and received through a wrongful tax exaction is based upon equitable principles and equity will •not aid a swindler. A third point not made below is that the taxpayer had the burden and made no attempt to discharge it, of showing that he had tried to and could not recover his losses. .The taxpayer meets each of these grounds head on with the insistence that none of them is well taken. In addition he asserts of the third that, not made below, it may not be made here. For the reasons hereafter stated, we agree with taxpayer throughout. We reject appellant’s first claim that the loss was not within the theft deduction provided by Sec. 23(e) on reason and on authority. We reject it on-reason because the word “theft” is not like “larceny”, a technical word of art with a narrowly defined meaning but is, on the contrary, a word of general and broad connotation, intended to cover and covering any criminal appropriation of another’s property to the use of the taker, particularly including theft by swindling, false pretenses, and" }, { "docid": "23298596", "title": "", "text": "any other form of guile. We reject the contention on the authority of Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186, holding that theft includes embezzlement, and of Morris Plan Co. v. Commissioner, 42 B.T.A. 1190; Muncie v. Commissioner, 18 T.C. 849; Miller v. Commissioner, 19 T.C. 1046; Earle v. Commissioner, 2 Cir., 72 F.2d 366; and Borden v. Commissioner, 2 Cir., 101 F.2d 44. In fact there are no decisions to the contrary. Under this line of decisions it has been long and well established that whether a loss from theft occurs within the purview of Section 23(e) (3) of the Internal Revenue Code of 1939 and the corresponding provisions of prior acts, depends upon the law of the jurisdiction where it was sustained and that the exact nature of the crime, whether larceny or embezzlement, of obtaining money under false pretenses, swindling or other wrongful deprivations of the property of another, is of little importance so long as it amounts to theft. His second point is, we think, equally without merit for the reason given by the district judge, that there was in reality no scheme to defraud others to which taxpayer was a party. There was only the fraudulent pretense of Goldberg, the thief, that there was and the use of that fraudulent pretense to obtain custody and control of taxpayer’s money ostensibly as agent or joint adventurer with him but really with the purpose, which was later given effect, of depriving the taxpayer of it by felonious appropriation to his own use. In Akers v. Scofield, 5 Cir., 167 F.2d 718, we held that a swindler could not claim that the title to money he obtained by theft and false pretenses had not passed to him so as to make the money taxable to him as income, just as it was held as to Goldberg that he was liable for income taxes on the money he obtained from the taxpayer in this case. That case does not at all support, it does not even deal with appellant’s contention here, that because" }, { "docid": "20020607", "title": "", "text": "thus by false pretense induced petitioner to go through a ceremonial marriage with herself for the purpose of obtaining monies from the petitioner. Petitioner contends that Edna’s acts in obtaining such monies constituted larceny by false pretenses within the meaning of section 1290 of the New York Penal Code, and that as a result, petitioner suffered a loss by theft within the meaning of section 23 (e) of the Code, deductible in full in the year in which the theft was discovered. The question of whether or not the circumstances amount to theft depends upon the law of the State of New York. Curtis H. Muncie, 18 T. C. 849 (1952); Morris Plan Co. of St. Joseph, 42 B. T. A. 1190 (1940). Section 1290 of the New York Penal Code defines larceny in the following language: A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, steals such property and is guilty of larceny. Hereafter it shall be immaterial in, and no defense to, a prosecution for larceny that: 1. The accused obtained possession of, or title to, such property with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token or writing; or 2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and benefit of such property; or 3. The person from whom the accused obtained such property intended to part with title to, ns well as possession of, such property, or with possession as" }, { "docid": "5184064", "title": "", "text": "OPINION. Hill, Judge: The parties disagree first of all as to the existence of the loss. Our finding as to the existence of the theft is dispositive of this question. The respondent objects to the condition of the petitioner’s proof and intimates on brief that it would be possible for a taxpayer to fabricate a story such as that before us in order to place a trip to Mexico “on a paying basis.” However, the petitioner’s evidence is sufficient to support his case for a deduction for theft under the pro visions of section 23 (e) (3) of the Code. The respondent, upon cross-examination, was unable to discredit the petitioner’s testimony and failed to offer any independent proof discrediting the petitioner’s evidence. Whether a loss by theft occurred depends upon the law of the jurisdiction wherein it was sustained. Morris Plan Co. of St. Joseph, 42 B. T. A. 1190. The swindlers here obtained the petitioner’s money by deceit, trickery, and forgery, which amounted to theft under the Mexican law. This is the controlling fact and the exact nature of the crime, whether larceny or obtaining money under false pretenses, is of little importance. The respondent argues that, admitting the loss by theft, the petitioner is not entitled to a deduction under the provisions of section 23 (e) (3) for the reason that to permit the loss would contravene public policy. This reasoning is based upon the respondent’s contention that the petitioner here was involved in an illegal scheme. We have no evidence before us to support the respondent’s position that the petitioner was involved in any illegal scheme. Respondent failed to introduce any evidence of the law of Mexico upon this point and had he done so we are not certain that his position could be sustained. Section 23 (e) (3) and its accompanying regulations do not prohibit a deduction otherwise allowable by reason of theft on the grounds that to allow the deduction would violate or frustrate public policy. See Lilly v. Commissioner, 343 U. S. 90. We therefore hold that the petitioner is entitled to deduct $8,500" }, { "docid": "12724111", "title": "", "text": "are not aware of any provision which endows the Commissioner with the same capacity. . 26 C.F.R. § 1.165-8(d) (1973) provides: For purposes of this section the term “theft” shall be deemed to include, but shall not necessarily be limited to, larceny, embezzlement, and robbery. Whether a theft has occurred is a factual question, Alison v. United States, 344 U.S. 167, 170, 73 S.Ct. 191, 97 L.Ed. 186, which must be answered in accordance with the law of the jurisdiction where the loss was sustained. Edwards v. Bromberg, 232 F.2d 107, 111 (5th Cir. 1956). Plaintiffs, of course, had the burden of establishing that a theft occurred. See Boehm v. Commissioner, 326 U.S. 287, 294, 66 S.Ct. 120, 90 L.Ed. 78. This burden was not met simply by proving that their claim of theft was initially allowed by the Commissioner. . There is some uncertainty as to the precise nature of this agreement. At trial plaintiffs claimed that they were making a loan to CMP and that Laures was authorized only to use the $100,000 for CMP’s working capital. This was perhaps consistent with their claims in the Bankruptcy of CMP. On the other hand, Laures testified in his deposition that plaintiffs were not making a loan to the corporation; rather plaintiffs permitted him to use their stock as an accommodation to obtain the $100,000.00. This was perhaps consistent with plaintiffs’ attachment action against Laures in which they claimed that a personal loan was made to Laures. The district court concluded that, under either version, a theft had not been proven. . The Illinois Criminal Code provides that theft is committed when, inter alia, a person “obtains by deception control over property of the owner” and “intends to deprive the owner permanently of the use or benefit of the property.” Ill.Rev.Stat. ch. 38, § 16-1 (1973). The Code further provides: “Failure to perform standing alone is not evidence that the offender did not intend to perform.” Ill.Rev.Stat. ch. 38, § 15-4(e) (1973)." }, { "docid": "15737919", "title": "", "text": "was forced to pay a sum of money for the return of securities withdrawn by the taxpayer’s son for his own use. Earle v. Commissioner of Internal Revenue, 2 Cir. 1934, 72 F.2d 366. Again, when a wife, the co-owner of a joint bank account with her husband, withdrew money from the account in circumstances constituting embezzlement, a theft loss was allowed. Saul M. Weingarten, 1962, 38 T.C. 75. To our mind, a taxpayer-wife who owns income that is appropriated by her husband-manager for his own use should be permitted to claim similar tax treatment. The Commissioner concedes that the taxpayers may have sustained a loss. He insists, however, that loss cannot be categorized as a theft, and thus is not deductible, because the Louisiana head and. master provision makes a theft by the husband impossible. That does not settle the question of the taxpayer’s liability under federal law. Because the elements of theft vary with the criminal statutes of each state, the question whether a theft loss has been sustained is determined by reference to the criminal law of the jurisdiction where the loss occurred. Monteleone v. Commissioner, 34 T.C. 688, 692. In Louisiana, theft is defined as “the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” La.Rev.Stat. § 14:67. This definition of theft is broad enough to cover the situation before us. A theft occurs when anything of value “which belongs to another” is taken without his or her consent. The Commissioner admits, of course, that one-half of the community income belonged to the wife — that is why she is liable for the taxes in the first place — and that a portion of this income was taken by the taxpayer’s husband without her consent. The Commissioner contends, however, that this definition of theft contained in the Louisiana statutes must be read together" }, { "docid": "20020606", "title": "", "text": "obtained from him in previous years in the same manner: All of these monies represent payments made to Edna for her clothing and spending money during the period that Bonney and she lived together as man and wife. OPINION. Issue 13. The respondent disallowed the deductions in question on the ground that they do not qualify as proper deductions under either section 23 (e) or (u) of the Code. We think it is obvious that section 23 (u) of the Code, dealing with alimony payments in the case of a divorce or decree of separate maintenance, has no application, and that petitioner’s only serious contention is that these payments were made under such circumstances as to constitute a loss by theft under New York law, giving rise to a deduction under section 23 (e) of the Internal Revenue Code. Petitioner’s theory is that these monies were obtained from him by fraud amounting to theft. Petitioner argues that Edna, knowing of her legal inability to marry petitioner in 1937, intentionally did not disclose this fact and thus by false pretense induced petitioner to go through a ceremonial marriage with herself for the purpose of obtaining monies from the petitioner. Petitioner contends that Edna’s acts in obtaining such monies constituted larceny by false pretenses within the meaning of section 1290 of the New York Penal Code, and that as a result, petitioner suffered a loss by theft within the meaning of section 23 (e) of the Code, deductible in full in the year in which the theft was discovered. The question of whether or not the circumstances amount to theft depends upon the law of the State of New York. Curtis H. Muncie, 18 T. C. 849 (1952); Morris Plan Co. of St. Joseph, 42 B. T. A. 1190 (1940). Section 1290 of the New York Penal Code defines larceny in the following language: A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, or of any other person other than the true" }, { "docid": "12724110", "title": "", "text": "statutory deduction. 26 U.S.C. § 165(c)(3). . Neither the Secretary of the Treasury nor his authorized delegate entered into a closing agreement with plaintiffs pursuant to 26 U. S.C. § 7121. Nor did the IRS ever inform plaintiffs that their return had been audited and found to be correct. The IRS simply failed, albeit after considerable investigation, to disallow the loss. . Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, is not to the contrary. There the Court indicated that a judgment of the Board of Tax Appeals could be given res judicata or collateral estoppel effect. The Revenue Act of 1926, however, had endowed the Board with capacity to render decisions which were final and binding. American S.S. Co. v. Wickwire Spencer Steel Co., 8 F.Supp. 562, 566 (S.D.N.Y.1934). Prior to the 1926 Act decisions of the Board did not have such an effect. IB J. Moore, Federal Practice ¶ 0.422 [2], at 3403 (2d ed. 1974). With the exception of 26 U.S.C. § 7121, see note 2 supra, we are not aware of any provision which endows the Commissioner with the same capacity. . 26 C.F.R. § 1.165-8(d) (1973) provides: For purposes of this section the term “theft” shall be deemed to include, but shall not necessarily be limited to, larceny, embezzlement, and robbery. Whether a theft has occurred is a factual question, Alison v. United States, 344 U.S. 167, 170, 73 S.Ct. 191, 97 L.Ed. 186, which must be answered in accordance with the law of the jurisdiction where the loss was sustained. Edwards v. Bromberg, 232 F.2d 107, 111 (5th Cir. 1956). Plaintiffs, of course, had the burden of establishing that a theft occurred. See Boehm v. Commissioner, 326 U.S. 287, 294, 66 S.Ct. 120, 90 L.Ed. 78. This burden was not met simply by proving that their claim of theft was initially allowed by the Commissioner. . There is some uncertainty as to the precise nature of this agreement. At trial plaintiffs claimed that they were making a loan to CMP and that Laures was authorized only to use the $100,000" }, { "docid": "6812847", "title": "", "text": "calls during April and May 1978, the district court found that, through its alleged omissions and misrepresentations, GAM had effectively “appropriated Lombard’s funds to its own use to cover up its own gross malfeasance and acted with complete knowledge that the funds would be disposed of in such a manner that Lombard would never be able to recover them.” Thus, the district court concluded that GAM had committed larceny under Connecticut law with regard to the specified funds and that Lombard Brothers was entitled to claim a theft loss of $1.77 million. The government appealed. We reverse. DISCUSSION Section 165(a) of the Tax Code authorizes the deduction of “any loss sustained during the taxable year and not compensated for by insurance or otherwise.” 26 U.S.C. § 165(a). The Section permits a deduction for, inter alia, losses resulting from theft. See 26 U.S.C. § 165(e). For purposes of Section 165, “theft” includes larceny, embezzlement, and robbery, see 26 C.F.R. § 1.165-8(d), as defined by the law of the state where the claimed loss occurred — in the instant matter, Connecticut. See Bagur v. Commissioner, 603 F.2d 491, 501 (5th Cir.1979). Moreover, to gain the deduction, Lombard Brothers had the burden of proving by clear and convincing evidence that it was caused by larceny or similar criminal acts. See Bonney v. Commissioner, 247 F.2d 237, 239 (2d Cir.), cert. denied, 355 U.S. 906, 78 S.Ct. 333, 2 L.Ed.2d 261 (1957); see also Helvering v. Leonard, 310 U.S. 80, 85-86, 60 S.Ct. 780, 783-84, 84 L.Ed. 1087 (1940) (stating that taxpayer must establish by “clear and convincing proof” that local law supports his claim of nontaxability under federal law) (citing Helvering v. Fitch, 309 U.S. 149, 156, 60 S.Ct. 427, 430, 84 L.Ed. 665 (1940)). In pertinent part, the Connecticut penal code defines larceny as follows: A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or property an owner. Conn.Gen.Stat.Ann. § 53a-119 (West 1985). A finding of larceny under that statute requires the proof of:" }, { "docid": "23592227", "title": "", "text": "“steal or purloin” meant any taking where a person, without permission and “by some wrongful act, willfully obtains or retains possession of property belonging to another.” Lastly, the Schneider court also noted our decision in United States v. Maloney, 607 F.2d 222, 231 (9th Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1280, 63 L.Ed.2d 603 (1980), where we stated that “[t]he implication from the [wording of the] titles and placement of § 661 in Chapter 31 of Title 18 is that the statute was not enacted with the definitional refinements of the particular crime of larceny in mind, but rather with an intent to broaden the offense.” Hayden suggests that we reject Schneider based on Bell v. United States, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983), and cites Bell for the proposition that the term “take and carry away” indicates an intent to limit the scope of theft offenses covered. The Bell holding does not support this characterization. The issue before the Bell Court was whether the language of 18 U.S.C. § 2113(b) (“takes and carries away, with intent to steal ... ”), enacted under the Federal Bank Robbery Act, encompassed the charged crime of “obtaining money from a bank under false pretenses,” or rather, was limited to larceny. The Court first observed that “larceny” and statutory theft crimes (such as false pretenses and embezzlement) existed as separate crimes, but only because late-18th century courts were reluctant to expand the definition of “theft” beyond common law larceny. Id. at 359, 103 S.Ct. 2398. The Bell Court held that the Act did encompass “false pretenses” because although the 1934 Congress had intended that “larceny” cover theft only by forcible means, the 1937 Congress amended the Act by adding the “take and carry away” language specifically to cover theft by either forcible or non-forcible means. Id. at 361-62, 103 S.Ct. 2398. The Court cautioned, however, that its holding was limited to the crime of “false pretenses,” by stating that the Act “may not cover the full range of theft offenses.” Id. Thus, Bell does not, as Hayden asserts," }, { "docid": "20102606", "title": "", "text": "that the advances which petitioner made Prujansky were either capital investments or loans, and that any loss attendant thereon constituted nonbusiness bad debts. He maintains petitioner has failed to prove her loss of these funds constituted a theft as that term is defined in section 484 of the California Penal Code. For tax purposes, whether a theft loss has been sustained depends upon the law of the jurisdiction wherein the particular loss occurred. Edwards v. Bromberg, 232 F. 2d 107 (C.A. 5, 1956); David H. Schultz, 30 T.C. 256 (1958), remanded 278 F. 2d 927 (C.A. 5, 1960); Morris Plan Co. of St. Joseph, 42 B.T.A. 1190 (1940). Tinder the wording of section 484 of the California Penal Code, as well as the decided cases, the taking of money from another upon •false representations or false pretenses constitutes theft. People v. Daniels, 192 P. 2d 788 (1948). In the civil complaint which she filed against Prujansky and Coleman, petitioner alleged among other things that: defendants were indebted to [ber] in the sum of $28,000 * * * which debt the defendants fraudulently contracted by falsely, fraudulently and deceitfully representing to * * * [her] that they would pay over said sum to an escrow * * *, by means of which false representations they induced * * * [her] to pay over to defendants the said sum of money, whereas the defendants when the said debt was contracted did thus obtain said sum of money with the intent of cheating and defrauding * * * [her] out of the same. By admitting the truth of this allegation, Prujansky conceded he obtained the $28,000 from petitioner under false pretenses; which, as noted above, constitutes theft under California law. In our opinion this admission is sufficient proof, under the circumstances of this case, that petitioner sustained a $28,000 theft loss during 1954. In reaching this conclusion, we have rejected respondent’s contention that Prujansky’s testimony during the course of the instant proceeding indicated he only intended to admit civil liability for the amounts received from the petitioner. By stipulating to the truth of" }, { "docid": "23298595", "title": "", "text": "tax exaction is based upon equitable principles and equity will •not aid a swindler. A third point not made below is that the taxpayer had the burden and made no attempt to discharge it, of showing that he had tried to and could not recover his losses. .The taxpayer meets each of these grounds head on with the insistence that none of them is well taken. In addition he asserts of the third that, not made below, it may not be made here. For the reasons hereafter stated, we agree with taxpayer throughout. We reject appellant’s first claim that the loss was not within the theft deduction provided by Sec. 23(e) on reason and on authority. We reject it on-reason because the word “theft” is not like “larceny”, a technical word of art with a narrowly defined meaning but is, on the contrary, a word of general and broad connotation, intended to cover and covering any criminal appropriation of another’s property to the use of the taker, particularly including theft by swindling, false pretenses, and any other form of guile. We reject the contention on the authority of Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186, holding that theft includes embezzlement, and of Morris Plan Co. v. Commissioner, 42 B.T.A. 1190; Muncie v. Commissioner, 18 T.C. 849; Miller v. Commissioner, 19 T.C. 1046; Earle v. Commissioner, 2 Cir., 72 F.2d 366; and Borden v. Commissioner, 2 Cir., 101 F.2d 44. In fact there are no decisions to the contrary. Under this line of decisions it has been long and well established that whether a loss from theft occurs within the purview of Section 23(e) (3) of the Internal Revenue Code of 1939 and the corresponding provisions of prior acts, depends upon the law of the jurisdiction where it was sustained and that the exact nature of the crime, whether larceny or embezzlement, of obtaining money under false pretenses, swindling or other wrongful deprivations of the property of another, is of little importance so long as it amounts to theft. His second point is, we think," }, { "docid": "17705097", "title": "", "text": "no case has been cited holding that the criminal intent necessary for conviction of the crime of larceny must be inferred from a ceremonial marriage contracted by a disqualified spouse. Cf. People v. Lehrer, supra. The taxpayer has the burden of showing by “clear and convincing proof” that the local law supports his contentions. We cannot say that the Tax Court’s finding that he had not carried this burden was clearly erroneous. The final contention, Issue 14 of the opinion below, relates to the denial of a deduction claimed by Bonney in 1947 on account of money and property transferred to Edna to cause her to cease making derogatory accusations against him which were adversely affecting his professional reputation as a lawyer. The deduction was claimed as losses by theft or alternatively, as ordinary and necessary business expenses. Under neither theory is it sustainable. The taxpayer has not met his burden of showing that under New York law Edna could be convicted of larceny on these facts. The common meaning of “theft” does not include extortion. Nor was the payment an ordinary business expense, even assuming it to have been necessary for the protection of Bonney’s law practice. See Welch v. Helvering, 290 U.S. 111, 114, 54 S.Ct. 8, 78 L.Ed. 212. Decision affirmed. . Cf. Helvering v. Owens, 305 U.S. 468, 59 S.Ct. 260, 83 L.Ed. 292; United States v. Koshland, 9 Cir., 208 F.2d 636, 639, note 3. . Arguendo it may be assumed that the losses, if allowable at all, could be deducted in the year of discovery. See Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186. . This provides that “A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, * * * wrongfully takes, obtains or withholds, * * * any money, * * * or article of value of any kind, steals such property and is guilty of larceny.” The section further provides that it is no defense to a" }, { "docid": "23298605", "title": "", "text": "& Loan Associations were not taxable income to the plaintiffs.” .This accords with the definition in Webster’s New International Dictionary and in Vol. 3, Bouvier’s Law Dictionary, Rawles Third Revision, 3267, as “a popular term for larceny. It is a wider term than larceny and includes other forms of wrongful deprivation of property of another * * * acts constituting embezzlement or swindling may be properly so called.” Of. Vol. 41, Words and Phrases, Theft, pp. 480 to 486. Many authorities are collected showing that the term “theft” has wide meaning, including the obtaining of property by swindling, false pretenses and other tricks. See also the great number of cases to the same effect in the Cumulative Pocket Part. In Cox v. World Fire & Marine Ins. Co., Mo.App., 239 S.W.2d 538, 540, it is said: “ ‘Theft’ ” is an “ ‘Act of stealing; * * * the felonious taking and removing of personal property, with the intent to deprive the rightful owner of it; # * ‘A popular term for larceny [but] a wider term than larceny and includes other forms of wrongful deprivation of property of another [such as] embezzlement or swindling.’ ” In People v. Jones, 36 Cal.2d 373, 224 P.2d 353, 355: “Crimes of larceny, embezzlement, obtaining money by false pretenses and kindred offenses are now all included under the designation of theft, * * * but the elements of the several offenses have not been changed.” RIVES, Circuit Judge (dissenting). In permitting the deduction of losses from “theft”, I.R.C.1939, Sec. 23(e) (3), I.R.C.1954, Sec. 165(c) (3) and (e), I do not think that Congress intended to make the inquiry so broad as to include all forms of dishonesty, cheating, and swindling. See 41 Words and Phrases, Theft, p. 480 et seq. The taxpayer turned over the money to Goldberg for the purpose and with the intent that it should be used to defraud other persons who might bet their money upon horses in ignorance of the fact that the races had been fixed. Now when he finds that, instead of defrauding others, he himself" }, { "docid": "23298604", "title": "", "text": "reimbursed. “No actual scheme for fixing races ever existed. The plaintiff was not a part of or co-conspirator in an actual scheme which could be said to contravene sharply defined public policy of the State or Nation. “In 1949 the plaintiffs received $450 in dividends from Federal Savings & Loan Associations. These dividends were paid to plaintiffs on account of deposits made by them prior to March 28; 1942.” “Conclusions of Law. “The Court has jurisdiction of the parties and subject matter of this action. “Exhibits Nos. 23 to 29, 38 to 40, which were offered at the trial, were admissible in evidence and have been considered. '-‘The losses sustained by the plaintiffs constituted losses from theft under the law of Georgia. “The losses resulting from theft were properly,deductible under Sec. 23(e) (3) of the .Internal Revenue Code, of 1939. “There is no.provision in Sec. 23(e) (3) of the Internal Revenue Code which would permit .disallowance of a deduction on the gr.ound that its allowance would frustrate public policy. “The dividends received from Federal Savings & Loan Associations were not taxable income to the plaintiffs.” .This accords with the definition in Webster’s New International Dictionary and in Vol. 3, Bouvier’s Law Dictionary, Rawles Third Revision, 3267, as “a popular term for larceny. It is a wider term than larceny and includes other forms of wrongful deprivation of property of another * * * acts constituting embezzlement or swindling may be properly so called.” Of. Vol. 41, Words and Phrases, Theft, pp. 480 to 486. Many authorities are collected showing that the term “theft” has wide meaning, including the obtaining of property by swindling, false pretenses and other tricks. See also the great number of cases to the same effect in the Cumulative Pocket Part. In Cox v. World Fire & Marine Ins. Co., Mo.App., 239 S.W.2d 538, 540, it is said: “ ‘Theft’ ” is an “ ‘Act of stealing; * * * the felonious taking and removing of personal property, with the intent to deprive the rightful owner of it; # * ‘A popular term for larceny [but] a" }, { "docid": "15737918", "title": "", "text": "declared that “an exempt status under state law does not bind the federal collector”. 403 U.S. at 204, 91 S.Ct. at 1771. V. We turn now to the possibility of affording a measure of relief for the two taxpayers who suffered from their husbands’ abuse of authority as head and master of the community. The term “theft” as used in the statute is defined broadly to encompass all criminal appropriations of another’s property. See Edwards v. Bromberg, 5 Cir. 1956, 232 F.2d 107, 110; Treas.Reg. § 1.165-8(d). A taxpayer is not foreclosed from claiming a theft loss deduction even though he is closely related to the thief. Indeed, the crime of embezzlement often presupposes a special relationship of trust between the victim and the thief. Scott & LaFave, Criminal Law, 455 (1966). For example, a deduction was allowed when money was entrusted to a faithless trustee and, thereafter, appropriated by the trustee for his own use. Vincent v. Commissioner of Internal Revenue, 9 Cir. 1955, 219 F.2d 228, 231. It was allowed when a taxpayer was forced to pay a sum of money for the return of securities withdrawn by the taxpayer’s son for his own use. Earle v. Commissioner of Internal Revenue, 2 Cir. 1934, 72 F.2d 366. Again, when a wife, the co-owner of a joint bank account with her husband, withdrew money from the account in circumstances constituting embezzlement, a theft loss was allowed. Saul M. Weingarten, 1962, 38 T.C. 75. To our mind, a taxpayer-wife who owns income that is appropriated by her husband-manager for his own use should be permitted to claim similar tax treatment. The Commissioner concedes that the taxpayers may have sustained a loss. He insists, however, that loss cannot be categorized as a theft, and thus is not deductible, because the Louisiana head and. master provision makes a theft by the husband impossible. That does not settle the question of the taxpayer’s liability under federal law. Because the elements of theft vary with the criminal statutes of each state, the question whether a theft loss has been sustained is determined by reference" } ]

[ { "docid": "22103112", "title": "", "text": "equitable remedies. However, ERISA provides that: “Any person who is a fiduciary with respect to [a covered employee benefit] plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter ... shall be subject to such other equitable or remedial relief as the court may deem appropriate.” 29 U.S.C. § 1109(a). The accompanying legislative history expressly contemplated that such “other equitable or remedial relief” would include removal: “It is expected that a fiduciary ... may be removed for repeated or substantial violations of his responsibilities and that upon removal the court may, in its discretion, appoint someone to serve until a fiduciary is properly chosen in accordance with the plan.” S.Rep. No. 383, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.News 4890, 4989. As we have held, removal of pension fund trustees and the appointment of a person to serve in their stead is appropriate under the statute when they have engaged in “repeated or substantial violation^] of [their] responsibilities.” Marshall v. Snyder, 572 F.2d 894, 901 (2d Cir.1978). Since the trustees here acted imprudently with respect to the Green loan and the Bancorporation loan, it was not an abuse of discretion for the court to remove the trustees pursuant to its equitable power. The appointment of the asset and fund managers was therefore permissible and appropriate. Judge Mishler’s decision to appoint asset and fund managers also does not in our view violate the Labor Management Relations Act (“LMRA”). It is true that under § 302(c)(5) of the LMRA, 29 U.S.C. § 186(c), employees and employers of a pension fund must be represented in the administration of the fund and this provision has been interpreted by the Supreme Court to require an equal balance in the representation. NLRB v. Amax Coal Company, 453 U.S. 322, 330, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981). However, although the union has appointed its successor trustees and the employer association is prepared to do likewise, we are satisfied that these provisions of the LMRA are subject to the broad equitable powers granted by ERISA" } ]

[ { "docid": "16979563", "title": "", "text": "of which were well supported by the record evidence. RJR’s challenge to those findings fails. IV. We next address the district court’s holding with respect to which party bears the burden of proof as to loss causation. A breach of fiduciary duty “does not automatically equate to causation of loss and therefore liability.” Plasterers’, 663 F.3d at 217. ERISA provides that a fiduciary who breaches its duties “shall be personally liable” for “any losses to the plan resulting from each such breach.” Id. (quoting 29 U.S.C. § 1109(a)). Accordingly, in Plasterers’, we adopted the Seventh Circuit’s reasoning that “[i]f trustees act imprudently, but not dishonestly, they should not have to pay a monetary penalty for their imprudent judgment so long as it does not result in a loss to the Fund.” Id. (emphasis added) (quoting Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987)). We cautioned, however, that “imprudent conduct will usually result in a loss to the fund, a loss for which [the fiduciary] will be monetarily penalized.” Id. at 218 (quoting Brock, 830 F.2d at 647). But in Plasterers’ we did not need to answer the question of which party bore the burden of proof on loss causation. In this case, the district court had to resolve that question. The court held that the burden of both production and persuasion rested on RJR at this stage of the proceedings. The court explained that “once Tatum made a showing that there was a breach of fiduciary duty and some sort of loss to the plan, RJR assumed the burden (that is, the burden of production and persuasion) to show that the decision to remove the Nabisco stock from the plan was objectively prudent.” Tatum, 926 F.Supp.2d at 683. RJR contends that in doing so, the court erred. We disagree. Generally, of course, when a statute is silent, the default rule provides that the burden of proof rests with the plaintiff. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56, 126 S.Ct. 528, 168 L.Ed.2d 387 (2005). But “[t]he ordinary default rule ... admits of exceptions,” id. at 57," }, { "docid": "11511281", "title": "", "text": "their terms would be imprudent. Laborers National Pension Fund, 173 F.3d at 322; Cunningham, 716 F.2d at 1467 (ESOP fiduciaries breached duty of prudent in purchasing company stock); Eaves, 587 F.2d at 459 (ERISA “requires that in making investment decision whether to invest in company stock, an ESOP fiduciary, like a fiduciary from other ERISA plans, is subject to the “solely in the interest” and “prudence” tests of § 404). Because the complaint states a claim that the Administrative Committee and the Trustee were fiduciaries that breached their duties, Plaintiffs also state a claim against each for co-fiduciary liability relating to the failure to diversify under 29 U.S.C. § 1105(a)(2). 4. Count IV (Plaintiffs on behalf of certain retirement plan participants and beneficiaries sue Enron and the Enron ERISA Defendants for breach of fiduciary duties to the Cash Balance Plan participants and beneficiaries from 1998-2000 relating to offsets based on the inflated value of Enron stock) Section XVII.l of the Cash Balance Plan provides in part, The general administration of the Plan shall be vested in the Committee, which shall be appointed by the Company and shall consist of one or more persons.... For purposes of the Act, the Committee shall be the Plan “administrator” and shall be the “named fiduciary” with respect to the general administration of the Plan (except as to the investment of the assets of the Trust Fund). Ex. A3 to # 271. The “Company” denotes Enron Corp. Id. at (i). The Committee’s duties are set out in § XVII.7. Section XVIII.l, dealing with the Trustee, states that “[t]he Trustee shall be appointed, removed and replaced by and in the sole discretion of the Company. The Trustee shall be the ‘named fiduciary’ with respect to investment of the Trust Fund’s assets.” Moreover, under Section XVIII.5, “The Committee shall issue directions to the Trustee concerning all benefits which are to be paid from the Trust Fund pursuant to the provisions of the Plan.” Section XVIII.7, entitled “No Benefits to the Employer,” states, “No part of the corpus or income of the Trust Fund shall be used for" }, { "docid": "6406449", "title": "", "text": "§§ 1132(a)(1)(B), 1132(a)(3). Of course, if a court states only that it is determining which remedies are available under a specific provision of ERISA, that determination cannot necessarily be taken as a statement of federal trust law. On the other hand, if a federal court presiding over an ERISA case renders a determination about the require-mente of trust law, including a determination about remedies available under the law of trusts, that determination should be considered to be statement of the federal common law of trusts. Regarding remedial trust law, the D.C. Circuit has explained: “Trust law contemplates the use of broad and flexible equitable remedies as means for dealing with breaches of fiduciary duty, and it imposes the obligation upon the courts to use the remedy that is most advantageous to the participants and that will most closely effectuate the purposes of the trust.” Crawford v. La Boucherie Bernard Ltd., 815 F.2d 117, 120 (D.C.Cr.1987) (citation omitted). In applying the remedial provisions of ERISA, the federal courts have drawn upon the traditionally wide remedial discretion afforded to courts in trust cases. For example, they have appointed receivers to manage plans, and removed fiduciaries. See, e.g., Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987) (“If the Secretary [of Labor] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate in-junctive relief such as removing the offending trustees from their positions.”) (citation omitted); Katsaros v. Cody, 744 F.2d 270 (2d Cir.1984) (affirming the removal of trustees of pension funds); Marshall v. Snyder, 572 F.2d 894 (2d Cir.1978) (affirming the appointment of a receiver to manage an employee benefit plan); Corley v. Hecht Co., 530 F.Supp. 1155 (D.D.C.1982) (removing the trustee of an employee benefit plan). The federal courts have also utilized less intrusive equitable remedies, such as the appointment of plan administrators or investment managers. See Katsaros, 744 F.2d at 281-83 (affirming the appointment of a plan asset manager); Donovan v. Mazzola, 716 F.2d 1226, 1238-39 (9th" }, { "docid": "16979616", "title": "", "text": "remedies in those situations where a fiduciary’s breach of procedural prudence does not result in losses: “other equitable or remedial relief ..., including removal of such fiduciary.” 29 U.S.C. § 1109(a); see also Brock, 830 F.2d at 647 (“If [a plaintiff] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions.”); Fink, 772 F.2d at 962 (“Breach of the fiduciary duty to investigate and evaluate would sustain an action to enjoin or remove the trustee.... But it does not sustain an action for the damages arising from losing investments.”) (citation omitted). This provision for such relief as removal is in direct contrast to the monetary liability that ERISA imposes only upon a finding of loss causation. ERISA is a “comprehensive and reticulated statute,” Mertens v. Hewitt Assocs., 508 U.S. 248, 251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (internal quotation marks omitted), and Congress crafted its provisions with care. Removing a fiduciary is one thing; holding that same fiduciary personally liable for a prudent investment decision is something else altogether. Where, as here, the statutory text speaks clearly to the proper use of monetary versus other, more traditionally equitable remedies, it should be followed, not flouted. The majority gets this all wrong. It states that § 1109(a) “provides for both monetary and equitable relief, and does not (as the dissent claims) limit a fiduciary’s liability for breach of the duty of prudence to equitable relief.” Maj. Op. at 356 (emphasis in original). Of course it provides for both, but it provides for monetary liability only to make good losses to the plan resulting from the breach. And here the court found after a month-long trial that such losses did not result, because the investment decision was itself objectively prudent. It is astounding that ERISA fiduciaries are henceforth going to be held personally liable when losses did not “result from” any breach on their part. The" }, { "docid": "23099193", "title": "", "text": "Of course, the measure of such damages need not be exact — “it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). Injunctive relief. The district court permanently enjoined appellees “from serving directly or indirectly as fiduciaries of any ESOP or ESOT, or any other employee benefit plan covered by ERISA” and “from engaging in any acts that would violate fiduciary duties imposed by ERISA.\" The district court properly entered a permanent injunction against Henss and Stephen Thielking because they had repeatedly used their fiduciary control over the ESOP’s assets to profit from self dealing. “ERISA imposes a high standard on fiduciaries, and serious misconduct that violates statutory obligations is sufficient grounds for a permanent injunction.” Beck v. Levering, 947 F.2d 639, 641 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). The Secretary argues that the district court erred in refusing to enjoin Henss and Stephen from providing services to any ERISA plan. This is not a minor issue. Accountants frequently provide professional services to ERISA plans in a non-fiduciary capacity, services that would be barred by the injunction the Secretary seeks. Henss testified that he holds himself out to the public as an ERISA expert and has set up and served over two hundred ESOPs. In other words, the Secretary seeks effectively to put these outside accountants out of business. The Secretary cites a number of prior cases in which defendants who breached ERISA fiduciary duties were permanently enjoined from acting as service providers. See Beck, 947 F.2d at 640; Whitfield v. Tomasso, 682 F.Supp. 1287, 1306 (E.D.N.Y.1988); Brock v. Lindemann, No. CA3-84-1814-R (N.D.Tex. Jan. 29, 1987); Brock v. Crapanzano, CA No. 84-1899, 1986 WL 15752 (S.D.Fla. Jul. 23, 1986). These cases either did not involve professional service providers, or they involved service providers whose services were found to be less than professional. In this case," }, { "docid": "23099192", "title": "", "text": "727 F.2d at 138-39; Kim v. Fujikawa, 871 F.2d 1427, 1430-31 (9th Cir.1989); Donovan v. Bierwirth, 754 F.2d at 1056; Marshall v. Snyder, 572 F.2d 894, 900 (2d Cir.1978); Schoenholtz v. Doniger, 657 F.Supp. 899, 907 (S.D.N.Y.1987). As Judge Friendly commented, “Courts do not take kindly to arguments by fiduciaries who have breached their obligations that, if they had not done this, everything would have been the same.” In re Beck Ind., Inc., 605 F.2d 624, 636 (2d Cir.1979). Therefore, on remand the district court must determine the specific damages that resulted from each of the transactions in which ERISA fiduciary duties were breached. Under § 1109(a), damages can result from a financial loss to the plan, such as paying CRC’s debt to Central Federal for no consideration; from a profit wrongfully made, such as a fiduciary purchasing FMC stock from the ESOP just before a large cash dividend was paid, without reflecting the dividend in the purchase price; or from a combination of the two, which may result from the manipulation of stock prices. Of course, the measure of such damages need not be exact — “it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). Injunctive relief. The district court permanently enjoined appellees “from serving directly or indirectly as fiduciaries of any ESOP or ESOT, or any other employee benefit plan covered by ERISA” and “from engaging in any acts that would violate fiduciary duties imposed by ERISA.\" The district court properly entered a permanent injunction against Henss and Stephen Thielking because they had repeatedly used their fiduciary control over the ESOP’s assets to profit from self dealing. “ERISA imposes a high standard on fiduciaries, and serious misconduct that violates statutory obligations is sufficient grounds for a permanent injunction.” Beck v. Levering, 947 F.2d 639, 641 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). The" }, { "docid": "11510906", "title": "", "text": "MEMORANDUM AND ORDER HARMON, District Judge. TITTLE ROADMAP I. Overview of Causes of Action and Pending Motions.531 Annnpimlp Law ii. A FRTSA 1. Fiduciary Liability. a. Expansive Definition. b. Fiduciary Duties... c. “Two-Hat” Doctrine. d. Power to Appoint/Remove Plan Fiduciaries. e. Duty to Disclose. f. Personal Liability of Corporate Employees. g. Professional Liability. h. Section 404(e) Plans. i. Causation. 2. Co-fiduciary Liability. 3. Directed Trustee Liability. 4. Standing and Remedies. 5. Service on and Liability of the Administrative Committees of the Plans as Unincorporated Associations. 05 RICO Amendment. 05 Common Law Claims . 05 1. Preemption and the Federal Statutes at Issue. 05 a. ERISA (Generally). 05 b. SLUSA (Generally) . © 2. ERISA Preemption and Plaintiffs’ Common-Law Conspiracy Claim 05 3. ERISA Preemption and Plaintiffs’ Common-Law Negligent Misrepresentation Claim 05 III. Application of the Law to the Complaint s Allegations... A. Procedural Objections. B. RICO Amendment. C. ERISA Breach of Fiduciary and Co-Fiduciary Duty 1. Count I and Count V. 2. Count II. 3. Count III. 4. Count IV . D. Texas Common Law Causes of Action. 1. Count IX: Civil Conspiracy. 2. Count VIII: Negligent Misrepresentation. RE TITTLE DEFENDANTS’ MOTIONS TO DISMISS The above referenced action is brought on behalf of Enron Corporation (“Enron”) employees who were participants in three employee pension benefit plans governed by the Employment Retirement Income Security Act of 1974 (“ERISA”), § 3(2), 29 U.S.C. § 1002(2), specifically the Enron Corporation Savings Plan (“Savings Plan”), the Enron Corporation Employee Stock Ownership Plan (“ESOP”), and the Enron Corporation Cash Balance Plan (“Cash Balance Plan”), and also on behalf of Enron employees who received “phantom stock” as compensation. The first consolidated amended class action com plaint (instrument # 145) alleges that Defendants are liable for the following violations during a proposed Class Period from January 20, 1998 through December 2, 2001:(1) breach of fiduciary and co-fiduciary duties under ERISA, 29 U.S.C. §§ 1104 and 1105; (2) the commission of or conspiracy to commit unlawful acts or omissions in the conduct of certain enterprises’ affairs through a pattern of racketeering activity in a scheme to mislead and" }, { "docid": "4157348", "title": "", "text": "request for summary judgment when the defendant has failed to meet the requirements prescribed by Rule 56(e).” Beck, 947 F.2d at 642 (affirming permanent injunction prohibiting defendants from acting as fiduciaries to any ERISA plan granted on summary judgment). Finally, injunctive relief is appropriate where the trustees’ conduct has violated the prudence standards of Section 404, even if no losses have been established. If the [plaintiffs] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions.... In determining the appropriate injunctive relief, it is irrelevant that the honest but imprudent actions of the trustees resulted in no loss to the fund. Honest but imprudent trustees can dissipate the assets of a fund with speed comparable to dishonest trustees. In either case, imprudent trustees undermine the purpose of ERISA which is to insure that the assets of a fund will be there when the beneficiaries need them. Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987). The fact that plaintiffs have moved for partial summary judgment and have not established any losses to the funds does not, therefore, render injunctive relief improper. B. Current Employer Trustees: Smith and Pasqualone As the record discussed above demonstrates, the defendant trustees as a group completely failed to act with the prudence and skill required of them. Their failure to adopt any investment policy or guidelines, to investigate proposed investments, to apprise themselves of the commissions paid to their broker, to solicit and consider competitive bids from other service providers, to monitor the pension fund’s solvency and take action to correct its growing problems all constituted breaches of their most basic obligations as fiduciaries. The current Employer Trustees are not responsible for all of the acts described above, as they began to serve only in December 1992 (Smith) and December 1993 (Pasqualone). Nevertheless, the nature of the failures is ongoing and much of it occurred on Smith and Pasqualone’s watch." }, { "docid": "7412488", "title": "", "text": "show neither self-dealing nor loss to the Fund. We concur. If trustees act imprudently, but not dishonestly, they should not have to pay a monetary penalty for their imprudent judgment so long as it does not result in a loss to the Fund. The entire statutory scheme of ERISA demonstrates that Congress’ overriding concern in enacting the law was to insure that the assets of benefit funds were protected for plan beneficiaries. See, e.g., Leigh v. Engle, 727 F.2d 113, 126 (7th Cir.1984). The only possible statutory purpose for imposing a monetary penalty for imprudent but harmless conduct would be to deter other similar imprudent conduct. However, honest but potentially imprudent trustees are adequately deterred from engaging in imprudent conduct by the knowledge that imprudent conduct will usually result in a loss to the fund, a loss for which they will be monetarily penalized. This monetary sanction adequately deters honest but potentially imprudent trustees. Any additional deterrent value created by the imposition of a monetary penalty unrelated to actual loss is marginal at best. No ERISA provision justifies the imposition of such a penalty. See 29 U.S.C. § 1109(a) (imposing personal liability only for losses “resulting from each such breach” of fiduciary responsibilities). While monetarily penalizing an honest but imprudent trustee whose actions do not result in a loss to the fund will not further the primary purpose of ERISA, other remedies such as injunctive relief can further the statutory interests. Section 502(a)(5) authorizes the Secretary of Labor to obtain appropriate equitable relief when the Secretary shows that a trustee has violated his fiduciary responsibilities. 29 U.S.C. § 1132(a)(5). If the Secretary can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions. See 29 U.S.C. § 1109(a). The likelihood that a fund’s assets will be unnecessarily diminished is greatly increased when its trustees show a propensity to engage in imprudent conduct. In determining the appropriate" }, { "docid": "4157346", "title": "", "text": "the Employer Trustees. ERISA Section 409 provides that “[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries ... shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.” 29 U.S.C. § 1109(a). By its terms, section 409 applies only to fiduciaries. ERISA Section 502(a)(3), however, authorizes suits “to obtain other appropriate equitable relief’ to redress violations of the statute. 29 U.S.C. § 1132(a)(3). As noted above, it is pursuant to Section 502(a)(3) that equitable relief can be obtained against non-fiduciaries who participate in either breaches of fiduciary duty or prohibited transactions. See supra Part II.B; Nieto, 845 F.2d at 873-74. “Where there has been a breach of fiduciary duty, ERISA grants to the courts broad authority to fashion remedies for redressing the interests of participants and beneficiaries.” Donovan v. Mazzola, 716 F.2d 1226, 1235 (9th Cir.1983); see also Delgrosso v. Spang & Co., 769 F.2d 928, 937 (3d Cir.1985)(“A federal court enforcing fiduciary obligations under ERISA is thus given broad equitable powers to implement its remedial decrees.”). The Second Circuit has held repeatedly that “removal of pension fund trustees and the appointment of a person to serve in their stead is appropriate under the statute when they have engaged in ‘repeated or substantial violation[s] of [their] responsibilities.’” Katsaros, 744 F.2d at 281 (quoting Marshall v. Snyder, 572 F.2d 894, 901 (2d Cir.1978)). Other appropriate relief includes permanent injunctive relief prohibiting defendants from serving as fiduciaries or service providers to any ERISA plan, see Beck v. Levering, 947 F.2d 639, 641-42 (2d Cir.1991); Lancaster, 55 F.3d at 1054, and the appointment of a receiver or investment manager pending appointment or election of new trustees. Bierwirth, 680 F.2d at 276; Donovan v. Bryans, 566 F.Supp. 1258, 1264 (E.D.Pa.1983). Moreover, although injunc-tive relief is usually awarded after a full trial . or evidentiary hearing, the Court of Appeals has made clear that “even in suits for injunc-tive relief, the district courts should not hesitate to grant a plaintiff’s" }, { "docid": "4157347", "title": "", "text": "court enforcing fiduciary obligations under ERISA is thus given broad equitable powers to implement its remedial decrees.”). The Second Circuit has held repeatedly that “removal of pension fund trustees and the appointment of a person to serve in their stead is appropriate under the statute when they have engaged in ‘repeated or substantial violation[s] of [their] responsibilities.’” Katsaros, 744 F.2d at 281 (quoting Marshall v. Snyder, 572 F.2d 894, 901 (2d Cir.1978)). Other appropriate relief includes permanent injunctive relief prohibiting defendants from serving as fiduciaries or service providers to any ERISA plan, see Beck v. Levering, 947 F.2d 639, 641-42 (2d Cir.1991); Lancaster, 55 F.3d at 1054, and the appointment of a receiver or investment manager pending appointment or election of new trustees. Bierwirth, 680 F.2d at 276; Donovan v. Bryans, 566 F.Supp. 1258, 1264 (E.D.Pa.1983). Moreover, although injunc-tive relief is usually awarded after a full trial . or evidentiary hearing, the Court of Appeals has made clear that “even in suits for injunc-tive relief, the district courts should not hesitate to grant a plaintiff’s request for summary judgment when the defendant has failed to meet the requirements prescribed by Rule 56(e).” Beck, 947 F.2d at 642 (affirming permanent injunction prohibiting defendants from acting as fiduciaries to any ERISA plan granted on summary judgment). Finally, injunctive relief is appropriate where the trustees’ conduct has violated the prudence standards of Section 404, even if no losses have been established. If the [plaintiffs] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions.... In determining the appropriate injunctive relief, it is irrelevant that the honest but imprudent actions of the trustees resulted in no loss to the fund. Honest but imprudent trustees can dissipate the assets of a fund with speed comparable to dishonest trustees. In either case, imprudent trustees undermine the purpose of ERISA which is to insure that the assets of a fund will be" }, { "docid": "5172938", "title": "", "text": "The “Additional Defendants” to each Plan include those persons with authority to administer and construe the respective Plan, and appoint and remove members of the Compensation Committee. {Id. ¶¶ 49, 52, 56, 111-13, 117-19.) —The AmSouth Thrift Plan Benefits Committee Defendants are named fiduciaries to the Am-South Plan and have responsibility for selecting and monitoring the investment funds within the Plan. {Id. ¶¶ 114-16.) —The Regions 401(k) Plan Benefits Management Committee Defendants are the named fiduciaries and Plan Administrators to the Merged Plan with the authority and responsibility to manage and control the operation and administration of the Merged Plan. {Id. ¶¶ 120-24.) —The Regions 401(k) Plan Investment Committee Defendants have the responsibility delegated by the Regions 401(k) Benefits Management Committee to select and monitor the funds in the Merged Plan. {Id. ¶¶ 125-27.) Plaintiffs allege that each of them is or was a participant in the Merged Plan, the Legacy Plan, and/or the AmSouth Plan. Each Plaintiff also alleges that he or she chose to invest in the Plans’ Employees Stock Ownership Plan (“ESOP”) Fund, in one or more of the Regions Morgan Keegan (“RMK”) Select Funds, or in some combination of those Funds. {Id. ¶¶ 32-37.) Plaintiffs further allege that the Plans suffered losses because of investments made through the ESOP Funds and the RMK Select Funds. {Id. ¶¶ 497-99.) In their fifteen-count Complaint, Plaintiffs contend that various of the four corporate and 37 individual Defendants named in the Complaint are personally liable under ERISA § 409, 29 U.S.C. § 1109, and are obligated to restore the alleged investment losses or to disgorge any profits earned in violation of ERISA requirements. (Compl. ¶ 26.) Counts I-V, the “Company Stock Subclass Allegations,” allege that Defendants violated ERISA by offering Regions stock as an investment alternative during the Company Stock Subclass Period, January 1, 2007 to present. Plaintiffs allege that, throughout this period, Defendants failed to remove Regions stock as an investment alternative and divest the Plans of stock although they knew or should have known it was not a prudent investment. (Id. ¶¶ 152-231.) To support these claims, Plaintiffs" }, { "docid": "12491164", "title": "", "text": "to either enforce his rights under an employee benefit plan governed by ERISA, or to recover benefits allegedly due him under the terms of his plan, contains nothing to support a private right of action for compensatory or punitive relief. 29 U.S.C. § 1132(a)(1)(B); Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 105 S.Ct. 3085, 3091, 87 L.Ed.2d 96 (1985). See also, Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 626 (7th Cir.1987) (punitive damages are not recoverable under 29 U.S.C. § 1132(a)(2)); Pokratz v. Jones Dairy Farm, 597 F.Supp. 326 (D.Wis.1984) aff'd, 771 F.2d 206 (7th Cir.1985) (relief under 29 U.S.C. § 1109 for a fiduciary’s liability for breach of duty does not include compensatory and punitive damages). As the United States Supreme Court stated in Russell, “the entire text of Section 409 persuades us that Congress did not intend that section to authorize any relief except for [enforcement of] the plan itself.” Id., construing 29 U.S.C. § 1109. The civil enforcement provisions found in 29 U.S.C. § 1132(a) do not permit the inference that Congress intended to permit other remedies. These provisions “provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Russell, 473 U.S. at 146, 105 S.Ct. at 3092 (original emphasis). Section 1132(a)(1)(B) provides a plaintiff remedies in an action to recover benefits which include the recovery of accrued benefits, declaratory judgment that plaintiff is entitled to benefits under the provisions of his plan, and an injunction prohibiting the plan administrator from improperly refusing to pay benefits in the future. Russell, 473 U.S. at 147-48, 105 S.Ct. at 3092-93, construing 29 U.S.C. § 1132(a)(1)(B). Sections 1132(a)(2) and 1109 provide for the removal of a fiduciary where his refusal to pay contractually authorized benefits is willful and part of a larger systematic breach of fiduciary obligations. Id., construing 29 U.S.C. §§ 1109 and 1132(a)(2). It should also be noted that ERISA authorizes the award of attorney fees in appropriate cases. 29 U.S.C. § 1132(g)(1); Russell, 473 U.S. at 148, 105 S.Ct. at 3093." }, { "docid": "16979562", "title": "", "text": "share prices and “overwhelmingly” recommending that investors “buy” or at least “hold” Nabisco stocks. The court also found that RJR did so without consulting any experts, without considering that the Plan’s purpose was to provide for retirement savings, and without acknowledging that the spin-off was undertaken in large part to enhance the future value of the Nabisco stock by eliminating the tobacco taint. The district court further found that RJR sold the Nabisco funds when it did because of its fear of liability, not out of concern for its employees’ best interests. RJR blinks at reality in maintaining that its actions served to “protect[] participants” or to “minimize the risk of large losses.” To the contrary, RJR’s decision to force the sale of its employees’ shares of Nabisco stock, within an arbitrary time-frame and irrespective of the prevailing circumstances, ensured immediate and permanent losses to the Plan and its beneficiaries. In sum, in support of its holding that RJR breached its duty of procedural prudence, the district court made extensive and careful factual findings, all of which were well supported by the record evidence. RJR’s challenge to those findings fails. IV. We next address the district court’s holding with respect to which party bears the burden of proof as to loss causation. A breach of fiduciary duty “does not automatically equate to causation of loss and therefore liability.” Plasterers’, 663 F.3d at 217. ERISA provides that a fiduciary who breaches its duties “shall be personally liable” for “any losses to the plan resulting from each such breach.” Id. (quoting 29 U.S.C. § 1109(a)). Accordingly, in Plasterers’, we adopted the Seventh Circuit’s reasoning that “[i]f trustees act imprudently, but not dishonestly, they should not have to pay a monetary penalty for their imprudent judgment so long as it does not result in a loss to the Fund.” Id. (emphasis added) (quoting Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987)). We cautioned, however, that “imprudent conduct will usually result in a loss to the fund, a loss for which [the fiduciary] will be monetarily penalized.” Id. at 218 (quoting Brock, 830" }, { "docid": "20779201", "title": "", "text": "been permanently enjoined from service as an ERISA fiduciary are ordinarily brought by the Secretary of Labor under the authority provided by ERISA § 502(a)(3) or § 502(a)(5), 29 U.S.C. § 1132(a)(5). See, e.g., Solis v. Sonora Envtl., L.L.C., No. 10-675, 2012 WL 5269211, at *6 (D.Ariz. Oct. 24, 2012) (permanently enjoining a trustee in a suit brought by the Secretary from providing any sendees — whether as a fiduciary or otherwise — directly or indirectly to any ERISA-covered plan); Solis v. Couturier, No. 08-2732, 2009 WL 1748724, *6-7 and n. 36 (E.D.Cal. June 19, 2009) (holding that ERISA permits the Secretary to obtain a permanent injunction to prevent a fiduciary from managing an ERISA plan in the future and collecting cases); Reich v. Lancaster, 55 F.3d 1034, 1042, 1054 (5th Cir.1995) (affirming the district court’s permanent injunction in a suit brought by the Secretary enjoining ERISA plan fiduciaries from administering ERISA plans in the future because they received unreasonable compensation without disclosing their charged premiums to beneficiaries); Whitfield v. Tomasso, 682 F.Supp. 1287, 1306-07 (E.D.N.Y.1988) (granting the Secretary an injunction preventing defendants from serving as fiduciaries or service providers to any ERISA plan, either permanently or for a ten-year period). In only one case brought by a participant or beneficiary of a defrauded plan has a court imposed a permanent injunction on future service as an ERISA trustee. See Beck v. Levering, 947 F.2d 639, 641 (2d Cir.1991) (rejecting “the argument'that ERISA fiduciaries and their associates must be allowed to loot a second pension plan before an injunction may be issued. ERISA imposes a high standard on fiduciaries, and serious misconduct that violates statutory obligations is sufficient grounds for a permanent injunction.”); cf. Liss v. Smith, 991 F.Supp. 278, 312-14 (S.D.N.Y.1998) (stating that, in a suit brought by a private party, “appropriate relief’ may include permanent injunctive relief prohibiting defendants from serving as fiduciaries or service providers to any ERISA plan, but not actually awarding such relief). In Beck, there is no indication that the issue of prudential standing of the private party to seek to enjoin the fiduciary" }, { "docid": "6406450", "title": "", "text": "afforded to courts in trust cases. For example, they have appointed receivers to manage plans, and removed fiduciaries. See, e.g., Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987) (“If the Secretary [of Labor] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate in-junctive relief such as removing the offending trustees from their positions.”) (citation omitted); Katsaros v. Cody, 744 F.2d 270 (2d Cir.1984) (affirming the removal of trustees of pension funds); Marshall v. Snyder, 572 F.2d 894 (2d Cir.1978) (affirming the appointment of a receiver to manage an employee benefit plan); Corley v. Hecht Co., 530 F.Supp. 1155 (D.D.C.1982) (removing the trustee of an employee benefit plan). The federal courts have also utilized less intrusive equitable remedies, such as the appointment of plan administrators or investment managers. See Katsaros, 744 F.2d at 281-83 (affirming the appointment of a plan asset manager); Donovan v. Mazzola, 716 F.2d 1226, 1238-39 (9th Cir.1983) (affirming the appointment of a plan investment manager). Additionally, the federal courts have recognized that a permanent injunction is one of the remedies available to federal courts adjudicating trust eases: Although we have never ruled that permanent injunctions are available as a remedy under ERISA, it is self-evident that such a remedy may be appropriate where individuals participate in the kind of egregious self-dealing proved in [Lowen v. Tower Asset Management, 829 F.2d 1209 (2d Cir.1987) ]. Congress intended to make the full range of equitable remedies available. ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions codify and make applicable to ERISA fiduciaries certain principles developed in the evolution of the law of trusts. Permanent injunctions are among the remedies available under the law of trusts. To deny the power in federal courts to issue permanent injunctions would, therefore, fly in the face of both precedent, Congressional intent, and common sense. Beck v. Levering, 947 F.2d 639, 641 (2d Cir.1991) (internal citations and punctuation omitted). Thus, federal courts have enjoined individuals and" }, { "docid": "629157", "title": "", "text": "MEMORANDUM AND ORDER ALDRICH, District Judge. This action arises under Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et. seg., as amended. The Secretary of the United States Department of Labor (the “Secretary”) is suing Hall Holding Company, Inc., David L. Goldman, Kathleen A. Keating, George P. Ahearn, Michael F. Shields, and Goldman Financial Group, Inc. (“defendants”) for allegedly violating various provisions of ERISA. The Secretary claims that the defendants breached their duties as fiduciaries by purchasing stock on behalf of an employee stock ownership plan (“ESOP”) for more than adequate consideration as defined by ERISA. The defendants have moved for summary judgment, or in the alternative, partial summary judgment (doe. 54), and the Secretary has moved for partial summary judgment (doe. 59). Both motions are opposed. For the following reasons, this Court denies both motions. I. ERISA is a “comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). ERISA regulates employee benefit plans, in part, by establishing strict standards of conduct, responsibilities and obligations for fiduciaries of the plans. 29 U.S.C. § 1001(b). A type of plan covered by the provisions of ERISA is an employee stock ownership plan (“ESOP”). “An ESOP is a type of ERISA plan that invests primarily in the stock of the employer creating the plan.” Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir.1994); see also 29 U.S.C. § 1107(d)(6). ERISA governs the creation, maintenance and administration of ESOPs through a number of somewhat complex and interrelated rules. An employer desiring to create an ESOP is required to execute a written document to define the terms of the plan and the rights of the beneficiaries under it. 29 U.S.C. § 1102(a). This plan must also name one or more fiduciaries who are “to control and manage the' operation and administration of the plan.” Id. A trust is established to hold the assets of the ESOP. 29 U.S.C. § 1103(a). An" }, { "docid": "7412489", "title": "", "text": "ERISA provision justifies the imposition of such a penalty. See 29 U.S.C. § 1109(a) (imposing personal liability only for losses “resulting from each such breach” of fiduciary responsibilities). While monetarily penalizing an honest but imprudent trustee whose actions do not result in a loss to the fund will not further the primary purpose of ERISA, other remedies such as injunctive relief can further the statutory interests. Section 502(a)(5) authorizes the Secretary of Labor to obtain appropriate equitable relief when the Secretary shows that a trustee has violated his fiduciary responsibilities. 29 U.S.C. § 1132(a)(5). If the Secretary can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions. See 29 U.S.C. § 1109(a). The likelihood that a fund’s assets will be unnecessarily diminished is greatly increased when its trustees show a propensity to engage in imprudent conduct. In determining the appropriate injunctive relief, it is irrelevant that the honest but imprudent actions of the trustees resulted in no loss to the fund. Honest but imprudent trustees can dissipate the assets of a fund with speed comparable to dishonest trustees. In either case, imprudent trustees undermine the purpose of ERISA which is to insure that the assets of a fund will be there when the beneficiaries need them. See 29 U.S.C. § 1104(a)(1)(A) (a fiduciary shall discharge his duties in the interest of beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries); Blatt v. Marshall and Lassman, 812 F.2d 810, 813 (2d Cir.1987). As the district court pointed out, it was only through “fortune” that “the fees, though not adequately investigated as to their basis and justification, turned out, under all the circumstances, to be fair and reasonable____” Beneficiaries of ERISA funds are entitled to have a court issue “appropriate equitable relief” to insure that the trustees of their funds are not relying on mere fortune to manage the assets of the" }, { "docid": "20779202", "title": "", "text": "(E.D.N.Y.1988) (granting the Secretary an injunction preventing defendants from serving as fiduciaries or service providers to any ERISA plan, either permanently or for a ten-year period). In only one case brought by a participant or beneficiary of a defrauded plan has a court imposed a permanent injunction on future service as an ERISA trustee. See Beck v. Levering, 947 F.2d 639, 641 (2d Cir.1991) (rejecting “the argument'that ERISA fiduciaries and their associates must be allowed to loot a second pension plan before an injunction may be issued. ERISA imposes a high standard on fiduciaries, and serious misconduct that violates statutory obligations is sufficient grounds for a permanent injunction.”); cf. Liss v. Smith, 991 F.Supp. 278, 312-14 (S.D.N.Y.1998) (stating that, in a suit brought by a private party, “appropriate relief’ may include permanent injunctive relief prohibiting defendants from serving as fiduciaries or service providers to any ERISA plan, but not actually awarding such relief). In Beck, there is no indication that the issue of prudential standing of the private party to seek to enjoin the fiduciary from serving other plans was ever raised. Jeffrey does not directly address Defendants’ prudential standing argument. He does not discuss, how, in seeking to bar Defendants from serving as fiduciaries for other plans, he is asserting his own legal interests, rather than those of a hypothetical beneficiary of some other ERISA plan. Given that the overwhelming majority of cases in which this type of injunctive relief was awarded were brought by the Secretary, we-find that Jeffrey is not “the litigant best suited” to assert the claim that Raymond and Guzek should never again serve as an ERISA fiduciary. Freeman, 629 F.3d at 154. We therefore dismiss Paragraph 8 of the SAC’s Prayer for Relief to the extent that it seeks as equitable relief for the claims presented “(b) to have Raymond Perelman and Jason Guzek permanently enjoined from ever serving as a fiduciary with regard to any employee benefit plan subject to ERISA.” D. Audit of the Plan GRC argues that Jeffrey’s claim seeking an audit of the Plan should be dismissed because an independent" }, { "docid": "16979615", "title": "", "text": "difficult to establish loss causation when a fiduciary’s substantive decision is objectively prudent. This is because objectively prudent decisions tend not to lead to losses to the plan. But even where they do, they are not the sort of losses contemplated by the § 1109 remedial scheme, since it is unreasonable to fault a prudent investment strategy for the statistical reality that even the best-laid investment plans often go awry. Because “[t]he entire statutory scheme of ERISA demonstrates that Congresses] overriding concern in enacting the law was to insure that the assets of benefit funds were protected for plan beneficiaries,” it follows that fiduciaries _ who “act imprudently, but not dishonestly, ... should not have to pay a monetary penalty for their imprudent judgment so long as it does not result in a loss to the [f]und.” Plasterers’, 663 F.3d at 217 (internal quotation marks omitted) (quoting Brock v. Robbins, 830 F.2d 640, 647 (7th Cir.1987)). Thirdly, the loss-causation requirement shows how the majority has misconceived ERISA’s remedial scheme. Section 1109 sets out the appropriate remedies in those situations where a fiduciary’s breach of procedural prudence does not result in losses: “other equitable or remedial relief ..., including removal of such fiduciary.” 29 U.S.C. § 1109(a); see also Brock, 830 F.2d at 647 (“If [a plaintiff] can prove to a court that certain trustees have acted imprudently, even if there is no monetary loss as a result of the imprudence, then the interests of ERISA are furthered by entering appropriate injunctive relief such as removing the offending trustees from their positions.”); Fink, 772 F.2d at 962 (“Breach of the fiduciary duty to investigate and evaluate would sustain an action to enjoin or remove the trustee.... But it does not sustain an action for the damages arising from losing investments.”) (citation omitted). This provision for such relief as removal is in direct contrast to the monetary liability that ERISA imposes only upon a finding of loss causation. ERISA is a “comprehensive and reticulated statute,” Mertens v. Hewitt Assocs., 508 U.S. 248, 251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (internal quotation" } ]

[ { "docid": "10845905", "title": "", "text": "PER CURIAM. Some years ago, Willie Edwards was charged and convicted on one count of conspiring to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and another count of using a telephone to facilitate the distribution of heroin and cocaine, in violation of 21 U.S.C. § 843(b). He was sentenced to 324 months’ imprisonment on the first count and, concurrently, 96 months on the second. This court affirmed both the convictions and sentences on direct appeal, in United States v. Edwards, 115 F.3d 1322 (7th Cir.1997). Like many others before him, Edwards has now filed a motion under 28 U.S.C. § 2255 seeking to obtain relief from his sentence based on the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied his motion, and we now affirm that judgment. Before reaching the merits of Edwards’s Apprendi argument, however, we must address a preliminary question touching this court’s jurisdiction. The district court denied Edwards’s § 2255 motion on July 29, 1999; it entered judgment on the same day. On August 16, 1999, the district court docketed a paper from Edwards entitled “Motion Pursuant to Rule 59(e) and Request for Evidentiary Hearing Pursuant to Rule 8(c) that Governs Habeas Corpus and 28 U.S.C. § 2243.” Edwards had tendered this paper, with the correct postage, to the prison authorities on August 10, 1999. About two months later, on October 14, 1999, the district court denied the motion, and Edwards filed his notice of appeal to this court on October 22, 1999. The question is whether Edwards filed that notice of appeal in a timely manner. In general, because the United States is a party to a § 2255 case, a petitioner has 60 days in which to appeal. See Fed. R.App. P. 4(a)(1)(B). Measuring that time from the original judgment, however, yields a time for appeal of September 27, 1999, well before Edwards’s actual filing date of October 22, 1999. This means that Edwards’s appeal was not timely unless the time for filing was tolled" } ]

[ { "docid": "8039613", "title": "", "text": "case today where [a writ of coram nobis ] would be necessary or appropriate.” United States v. Smith, 331 U.S. [469], at 475, n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 [(1947)]. In the present case, Rule 29 provides the applicable law. 517 U.S. at 429, 116 S.Ct. 1460. In Carlisle the deadline was set by Fed. R.Crim.P. 29, and here it was set by § 2255 ¶ 6. The effect on coram nobis is identical, as we held in Owens, 235 F.3d at 360. Our point is not that the period of limitations in § 2255 ¶ 6 applies to claims under other federal statutes. That would be inconsistent with Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), which held that statutory scope must be respected, and that 28 U.S.C. § 2244(b), which limits successive petitions in the district court under § 2254, therefore does not foreclose original petitions in the Supreme Court under § 2241 (though the Court said in Felker that its exercise of discretion under § 2241 would be guided by the criteria in § 2244(b)). The point, rather, is that after Carlisle it is not possible to change the source of authority to grant relief by changing the caption on a piece of paper. To say that a claim arises under § 1651 does not make it so, any more than calling a donkey’s tail a “leg” gives the animal five legs. No matter what its caption, a motion is under § 2255 if it falls within the description of § 2255 ¶ 1. That’s the implication of Car-lisle and the holding of Romandine v. United States, 206 F.3d 731 (7th Cir.2000), and United States v. Evans, 224 F.3d 670 (7th Cir.2000), which concluded that prisoners cannot avoid restrictions added to § 2255 in 1996 by the Antiterrorism and Effective Death Penalty Act by captioning their papers under Fed.R.Crim.P. 33 rather than § 2255. A post-conviction filing that fits the description of § 2255 ¶ 1 is a motion under § 2255, and subject to its restrictions, no matter what" }, { "docid": "8479717", "title": "", "text": "of limitations. The court reasoned that because Gilbert did not file his § 2255 motion until almost three years after the imposition of judgment, his petition was untimely. However, recognizing the lack of precedent on this issue, the district court granted a certificate of appealability on whether Gilbert’s petition is time barred. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a) and 2255(d), and review the district court’s dismissal of Gilbert’s habeas petition on timeliness grounds de novo. See United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir.2005). For the reasons that follow, we affirm. Under 28 U.S.C. § 2255(f), there is a one-year period of limitation to file a collateral attack on a federal conviction that runs from the latest of four events, including the date on which the judgment of conviction becomes final. If the movant pursues a direct appeal to the Court of Appeals but does not file a petition for writ of certiorari with the United States Supreme Court, the conviction becomes final when the time for filing such a petition lapses. See Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000). However, if the movant does not pursue a direct appeal to the Court of Appeals, the conviction becomes final when the time for filing a direct appeal expires. See United States v. Schwartz, 274 F.3d 1220, 1223 & n. 1 (9th Cir.2001) (citing Fed. R.App. P. 4). The Supreme Court has not directly addressed whether a judgment that imposes a period of incarceration and an unspecified amount of restitution is a “final” judgment for appellate purposes. See Dolan, 560 U.S. at 618, 130 S.Ct. 2533 (“We leave all such matters for another day.”) However, the Court noted that “strong arguments favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount.” Id. at 617, 130 S.Ct. 2533. The Court pointed to the language of several statutes, including 18 U.S.C. § 3582(b), which states that a “sentence to imprisonment” is a “final judgment.”" }, { "docid": "21305296", "title": "", "text": "will file a motion under Rule 60(b) of the civil rules, that is, a motion to reconsider a judgment, but the ground of the motion and the relief he seeks will mark the motion as functionally a petition for habeas corpus or a motion under section 2255, because it challenges the legality of his detention and seeks his release. If so, it will be treated as such. Gonzalez v. Crosby, 545 U.S. 524, 530-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). “Prisoners cannot avoid the ... rules [governing federal post-conviction remedies] by inventive captioning...'. [T]he name makes no difference. It is substance that controls.” Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004). Similar issues of characterization arise when a prisoner brings a civil rights suit but actually is asking for relief available only under sections 2254 or 2255. Cochran v. Buss, 381 F.3d 637, 639—40 (7th Cir.2004); Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir.2001). If a Rule 60(b) motion is really a successive postconviction claim, the district court will lack jurisdiction unless the prisoner has first obtained our permission to file it. (If his pleading is a bona fide Rule 60(b) motion, the denial can be appealed, Gonzalez v. Crosby, supra, 545 U.S. at 532-34, 125 S.Ct. 2641, provided — we have held, though the issue has been left open by the Supreme Court, id. at 535 n. 7, 125 S.Ct. 2641 — a certificate of appealability is issued. West v. Schneiter, 485 F.3d 393, 394-95 (7th Cir.2007).) But suppose the district judge does not spot the true character of the Rule 60(b) motion. He thinks it’s a bona fide Rule 60(b) motion, denies it on the merits, and grants a certificate of appealability. But then we spot it as really a habeas corpus or section 2255 application that we had not permitted to be filed, permission never having been sought, as required by section 2244(b)(3) (for habeas corpus) or section 2255 ¶ 8 (for motions under that section). Because a district judge lacks jurisdiction to rule on a successive such application without our permission, if" }, { "docid": "22594330", "title": "", "text": "granted a CA regarding “(1) what constitutes a ‘final’ judgment so as to start the one-year limitations period running; and (2) how the limitations period is computed.” Marcello and Zizzo appealed Judge Plunkett’s dismissal of their petition. The government moved to dismiss, arguing that the judge should not have issued a CA in the first place. A lone circuit judge, acting as our motions judge, ordered that the government’s challenge to the CA be considered together with the underlying statute of limitations question. The AEDPA, enacted in 1996, narrowed and shortened the avenue of collateral relief available to convicted criminals. A state prisoner under 28 U.S.C. § 2254 or a federal prisoner under § 2255 may appeal the denial of a petition only if a CA is issued. 28 U.S.C. § 2253. A CA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The government attempts to knock this entire appeal out of the box by arguing that the denial of Marcello and Zizzo’s § 2255 petition as untimely does not implicate their constitutional rights. Therefore, says the government, the district court never should have issued the CA and we lack jurisdiction. Marcello and Zizzo contend that once a district judge issues a CA — rightly or wrongly — the appeals must move forward to the merits. We have sent what might be construed as conflicting signals on whether the grant of a CA may be challenged. We have said that any challenge to a CA must be made right away because quibbling over the worthiness of the CA itself after the case has progressed to briefing on the merits will not serve the CA’s purpose of conserving judicial and prosecutorial resources. See Romandine v. United States, 206 F.3d 731 (7th Cir.2000); Dahler v. United States, 143 F.3d 1084, 1087 (7th Cir.1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999); Young v. United States, 124 F.3d 794, 799 (7th Cir.1997). Yet in at least one other case we dismissed an 'issue as" }, { "docid": "8039614", "title": "", "text": "2241 would be guided by the criteria in § 2244(b)). The point, rather, is that after Carlisle it is not possible to change the source of authority to grant relief by changing the caption on a piece of paper. To say that a claim arises under § 1651 does not make it so, any more than calling a donkey’s tail a “leg” gives the animal five legs. No matter what its caption, a motion is under § 2255 if it falls within the description of § 2255 ¶ 1. That’s the implication of Car-lisle and the holding of Romandine v. United States, 206 F.3d 731 (7th Cir.2000), and United States v. Evans, 224 F.3d 670 (7th Cir.2000), which concluded that prisoners cannot avoid restrictions added to § 2255 in 1996 by the Antiterrorism and Effective Death Penalty Act by captioning their papers under Fed.R.Crim.P. 33 rather than § 2255. A post-conviction filing that fits the description of § 2255 ¶ 1 is a motion under § 2255, and subject to its restrictions, no matter what the pleader says. See also, e.g., Calderon v. Thompson, 523 U.S. 538, 553-54, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (motion to recall mandate); Dunlap v. Litscher, 301 F.3d 873 (7th Cir.2002) (collecting authority) (motion under Fed.R.Civ.P. 60(b)). Paragraph 1 of § 2255 reads: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in -violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. That description covers the papers Annie Godoski has filed. She is in custody and seeks relief from a criminal sentence on the ground that it was imposed in violation of the Constitution because her lawyer rendered ineffective assistance. So her claim arises under § 2255," }, { "docid": "10095857", "title": "", "text": "416, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996); Eaton v. United States, 178 F.3d 902 (7th Cir.1999). A post-judgment motion needs a source of authority for the judge to act, and Fed. R.Crim.P. 6(e), which authorizes motions to inspect grand-jury materials in criminal cases, does not purport to authorize judges to act after the litigation has concluded. If the documents are relevant to some other pending case, then authority to consider a request for access may be supplied by the ancillary jurisdiction. See, e.g., United States v. Baggot, 463 U.S. 476, 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983); McDonnell v. United States, 4 F.3d 1227, 1247-48 (3d Cir.1993); American Friends Service Committee v. Webster, 720 F.2d 29, 71-72 (D.C.Cir.1983); United States v. Tager, 638 F.2d 167, 171 (10th Cir.1980); Doe v. Rosenberry, 255 F.2d 118 (2d Cir.1958) (L.Hand, J.). See also Charles Alan Wright, 1 Federal Practice & Procedure § 109 (3d ed.1999). But Scott has no other proceeding under way, and his only option for launching one would be § 2255. Gonzalez holds that a motion under Fed.R.Civ.P. 60(b) must be treated as a collateral attack when the prisoner makes a “claim” within the scope of § 2244(b). This means, the Court concluded, that a procedural argument (say, one about the statute of limitations) raised using Rule 60(b) is not a new collateral attack, but that\" an objection to the validity of the criminal conviction or sentence is one no matter how it is couched or captioned. See also, e.g., Melton v. United States, 359 F.3d 855 (7th Cir.2004); United States v. Evans, 224 F.3d 670 (7th Cir.2000). The reasoning of Gonzalez does not depend on which rule the prisoner invokes; its approach is as applicable to post-judgment motions under Fed.R.Crim.P. 6(e) as it is to motions under Rule 60(b). Any contrary understanding in Campbell about the extent to which § 2244(b) and § 2255 ¶ 8 apply to post-judgment motions that do not bear the label “collateral attack” must yield to higher authority. This means that, if Scott had sought the grand-jury materials out of academic interest, he" }, { "docid": "23076665", "title": "", "text": "the Brady claim to his § 2255 proceeding, but the district judge declined to allow him to amend his motion; the Singleton claim was new. But both the Brady claim and the Singleton claim readily could have been presented under § 2255. Both fit the description in § 2255 ¶ 1: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. If a motion within the scope of § 2255 ¶ 1 is the kind of “motion” to which § 2255 ¶ 8 refers, then Evans’s motion was a second or successive collateral attack requiring this court’s prior approval. Without considering the possibility that he was looking at a second collateral attack, the district judge denied Evans’s motion on the merits (and redundantly held that it was untimely). When Evans sought leave to proceed on appeal in forma pauperis, we directed the parties to file memoranda addressing the question whether the district judge had jurisdiction to entertain the motion at all. These memoranda have been received, and the ease is ready for decision. It is awfully hard to see how the “motion” to which § 2255 ¶ 8 refers could be anything other than a motion fitting the description of ¶ 1. This is how we understood matters in Romandine v. United States, 206 F.3d 731, 734-36 (7th Cir.2000), and Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998); the approach those opinions take is generalizable: any motion filed after the expiration of the time for direct appeal, and invoking grounds mentioned in § 2255 ¶ 1, is a collateral attack for purposes of ¶ 8. The qualification relating to the time for" }, { "docid": "23588587", "title": "", "text": "judge did not ask an antecedent question: whether Rule 33 applies. It does not. Rule 33 deals with contentions that evidence discovered after trial shows that the accused is innocent. The recantation of an important witness fits this description; new DNA analysis or other scientific evidence also would come within Rule 33. But Rollins did not advance an argument of this kind. Instead he asserted that the indictment had been procured irregularly, that the prosecutor withheld some information during discovery, that arguments presented to the jury reflected racial bias, and that his attorney furnished ineffective assistance. These are standard contentions under 28 U.S.C. § 2255. We held in United States v. Evans, 224 F.3d 670 (7th Cir.2000), that a post-trial motion making arguments within the scope of § 2255(a) is a motion under that statute, even if it bears the caption “Fed.R.Crim.P. 33.” See also, e.g., Melton v. United States, 359 F.3d 855 (7th Cir.2004). The district court should have treated Rollins’s motion as a petition under § 2255 and asked him whether he wished to proceed on that basis, or to have the motion dismissed. See Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). (Castro entitles prisoners to make this election because one “real” § 2255 motion forecloses another, unless the criteria of 28 U.S.C. § 2244 and § 2255(h) are satisfied. Uncounselled defendants who think that they are filing some other kind of motion should not lose the opportunity to file one § 2255 motion containing all of their contentions, so the judge must warn them when a paper bearing a different caption counts as one under § 2255.) Rollins filed his motion within a year of our affirmance, so it is timely, § 2255(f)(1), and he has not filed any other collateral attack on his conviction or sentence. Because an initial motion under § 2255 does not depend on evidence being “newly discovered,” the district court should have addressed Rollins’s arguments on the merits (at least, should do so if Rollins consents under Castro to this re-characterization). The judgment is vacated," }, { "docid": "21305295", "title": "", "text": "978, 980 (7th Cir.2005), seems to us the best, and as it has not been fully explained in our previous decisions, we take this opportunity to do so. Section 2244(b)(3) forbids a prisoner to file a second or otherwise successive petition for habeas corpus without his moving the court of appeals for permission; section 2255 ¶ 8 imposes a similar limitation on motions under that section. Section 2253(c) requires a prisoner to obtain a certificate of appealability, either from the district court or from this court, Dressier v. McCaughtry, 238 F.3d 908, 912 and n. 3 (7th Cir.2001), before he can appeal from a final decision in either “a habeas corpus proceeding” or, as in this case, “a proceeding under section 2255.” It is the interaction between the limitation on successive petitions (or motions) and the appealability of denials of such claims that generates the question presented by the appeal. Critically, it does not matter how the prisoner labels his pleading. Federal postconviction law is complex, and few prisoners understand it well. Often a prisoner will file a motion under Rule 60(b) of the civil rules, that is, a motion to reconsider a judgment, but the ground of the motion and the relief he seeks will mark the motion as functionally a petition for habeas corpus or a motion under section 2255, because it challenges the legality of his detention and seeks his release. If so, it will be treated as such. Gonzalez v. Crosby, 545 U.S. 524, 530-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). “Prisoners cannot avoid the ... rules [governing federal post-conviction remedies] by inventive captioning...'. [T]he name makes no difference. It is substance that controls.” Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004). Similar issues of characterization arise when a prisoner brings a civil rights suit but actually is asking for relief available only under sections 2254 or 2255. Cochran v. Buss, 381 F.3d 637, 639—40 (7th Cir.2004); Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir.2001). If a Rule 60(b) motion is really a successive postconviction claim, the district court will lack jurisdiction" }, { "docid": "23076666", "title": "", "text": "Without considering the possibility that he was looking at a second collateral attack, the district judge denied Evans’s motion on the merits (and redundantly held that it was untimely). When Evans sought leave to proceed on appeal in forma pauperis, we directed the parties to file memoranda addressing the question whether the district judge had jurisdiction to entertain the motion at all. These memoranda have been received, and the ease is ready for decision. It is awfully hard to see how the “motion” to which § 2255 ¶ 8 refers could be anything other than a motion fitting the description of ¶ 1. This is how we understood matters in Romandine v. United States, 206 F.3d 731, 734-36 (7th Cir.2000), and Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998); the approach those opinions take is generalizable: any motion filed after the expiration of the time for direct appeal, and invoking grounds mentioned in § 2255 ¶ 1, is a collateral attack for purposes of ¶ 8. The qualification relating to the time for appeal is important, because issues presented to the district court in time for inclusion on direct appeal are not collateral attacks on a judgment. Reading § 2255 ¶ 8 in this manner treats likes alike. Any other approach enables prisoners to defeat the aedpa by changing the captions on their papers and proceeding as if the Act did not exist. But, as Romandine added, a corollary is that proceedings that do not meet the description of § 2255 ¶ 1 are not motions for purposes of ¶ 8, even if they otherwise walk and talk like collateral attacks. A bona fide motion for a new trial on the basis of newly discovered evidence falls outside § 2255 ¶ 1 because it does not contend that the conviction or sentence violates the Constitution or any statute. We know from Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), that a conviction does not violate the Constitution (or become otherwise subject to collateral attack) just because newly discovered evidence implies that the defendant" }, { "docid": "11680033", "title": "", "text": "he argued, bolstered his claim of innocence and required a new trial. The government opposed Ruth’s motion, claiming that the evidence of his guilt was overwhelming. In denying Ruth’s motion, the district court held that the evidence Ruth offered was merely cumulative and would not likely lead to an acquittal if presented at a new trial. Earlier this year, Ruth filed a § 2255 motion raising an argument under Appren-di v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and asking the district court to correct his sentence because the amount of PAA for which he was held responsible was not included in the indictment. The district court acknowledged Ruth’s earlier Rule 33 motion and, citing Evans, concluded that it “must” be treated as a § 2255 motion. The district court then determined that it lacked jurisdiction to hear Ruth’s § 2255 motion because he had not obtained this court’s permission to file a second or successive collateral attack and dismissed the motion. See Nunez v. United States, 96 F.3d 990 (7th Cir.1996). Ruth then filed a motion under Federal Rule of Civil Procedure 59(e) asking the district court to reconsider its judgment because, according to Ruth, the court erred in construing his prior Rule 33 motion as a collateral attack under § 2255 ¶ 1. The district court denied Ruth’s motion to •reconsider because it believed Ruth’s Rule 33 motion fit the description of § 2255 ¶ 1. See, e.g., Evans, 224 F.3d at 672 (holding that “any post-judgment motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under § 2255”). Ruth renews his arguments in this court. A Rule 33 motion must be considered a collateral attack for purposes of § 2255 ¶ 8, the provision governing successive habeas corpus filings, when the substance of the motion falls within the scope of § 2255 ¶ 1. Evans, 224 F.3d at 672-73; see also Romandine v. United States, 206 F.3d 731, 734-35 (7th Cir.2000). In Evans, a prisoner who lost his direct appeal and his first §" }, { "docid": "7882957", "title": "", "text": "today where [a writ of coram nobis] would be necessary or appropriate.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (alteration in original) (citation omitted). 1. A Threshold Showing for a Writ of Error Coram Nobis The government argues that Evo-la’s petition should be denied because it is in substance a matter governed by 28 U.S.C. § 2255. The government suggests that Evola has filed the writ to avoid having to clear the difficult statutory hurdle of receiving certification for a second or successive § 2255 petition. Without such certification, the Court would lack jurisdiction. See Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004). The Court disagrees with this position. Evola cannot seek certification to file a successive § 2255 petition because he is no longer “in custody” for purposes of the statute. See Stoneman, 870 F.2d at 105-06. A person is no longer “in custody” for purposes of § 2255 where the sentence imposed for the conviction has expired, and Evola’s expired in 2003. Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). However, an argument can be made that Evola remains “in custody” because he is being detained by BICE pending his deportation, and such detention flowed from his conviction. In United States v. Romero-Vilca, 850 F.2d 177 (3d Cir.1988), the petitioner filed a § 2255 petition while in custody to collaterally attack his sentence once he discovered he could be deported. Upon the petitioner’s release from his prison sentence, the government sought to dismiss his petition as moot. Id. at 178. The Third Circuit refused, finding that the petition could survive because the continuing collateral consequence of removal “flows from his conviction.” Id. at 179. The distinguishing factor here, however, is that Evola filed the petition for the writ after his release, whereas the petitioner in Romero-Vilca filed while still incarcerated on his conviction. The Third Circuit has not decided a case such as Evola’s, but the Court surmises that a § 2255 petition filed after the conclusion of a sentence would" }, { "docid": "11680034", "title": "", "text": "(7th Cir.1996). Ruth then filed a motion under Federal Rule of Civil Procedure 59(e) asking the district court to reconsider its judgment because, according to Ruth, the court erred in construing his prior Rule 33 motion as a collateral attack under § 2255 ¶ 1. The district court denied Ruth’s motion to •reconsider because it believed Ruth’s Rule 33 motion fit the description of § 2255 ¶ 1. See, e.g., Evans, 224 F.3d at 672 (holding that “any post-judgment motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under § 2255”). Ruth renews his arguments in this court. A Rule 33 motion must be considered a collateral attack for purposes of § 2255 ¶ 8, the provision governing successive habeas corpus filings, when the substance of the motion falls within the scope of § 2255 ¶ 1. Evans, 224 F.3d at 672-73; see also Romandine v. United States, 206 F.3d 731, 734-35 (7th Cir.2000). In Evans, a prisoner who lost his direct appeal and his first § 2255 motion filed a Rule 33 motion seeking a new trial on the basis of what he considered to be “newly discovered evidence.” Evans’s motion, however, revealed a different underlying argument. His purported “new evidence” was that the prosecution had failed to disclose evidence in violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evans also argued that he was entitled to a new trial because the prosecution violated federal law by using witnesses who anticipated lenient treatment in exchange for their testimony. Labels to one side, these were the kinds of arguments contemplated by § 2255 ¶ 1: the Brady argument raised a constitutional attack on the conviction, and the witness argument rested on statutory grounds. We held that his motion, properly construed, was a collateral attack and instructed the district court to dismiss for lack of jurisdiction under Nunez. In analyzing Evans’s motion and our prior law concerning successive filings, we noted that “[a] bona fide motion for a new trial on" }, { "docid": "13565436", "title": "", "text": "Constitution or laws of the United States or if it is otherwise subject to collateral attack. In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress created a one-year statute of limitations for § 2255 motions, running from the latest of four dates. 28 U.S.C. § 2255(f). The relevant date here is “the date on which the judgment of conviction becomes final.” Id. (emphasis added). Section 2255(f) does not define “judgment of conviction” or “final.” Nonetheless, we have concluded that when a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires. Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.2000) (noting that when no direct appeal was taken from the original judgment of conviction, the judgment of conviction became final when the time for filing a direct appeal expired); Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir.2000) (“A conviction ordinarily becomes final when the opportunity for direct appeal of the judgment of conviction has been exhausted.”); cf. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003) (“Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”). At the time of Murphy’s sentencing, a criminal defendant had ten days to file an appeal. Fed. R.App. P. 4(b)(1)(A) (2005) (amended 2009). Therefore, had the district court never granted the Government’s Rule 35(b) motion, it is perfectly clear that AEDPA’s statute of limitations would have expired on May 9, 2005, and Murphy’s § 2255 motion filed on August 3, 2007, would have been time-barred. Murphy contends that when the district court reduced his sentence under Rule 35(b), it entered a new “judgment of conviction.” We conclude that Congress has foreclosed this argument by statute, a conclusion that is confirmed by the decisions of our sister circuits and Congress’s overriding intent in enacting AEDPA. Rule 35(b) permits a district court, upon the Government’s motion," }, { "docid": "3847338", "title": "", "text": "request for a sentence reduction under § 3582(c)(2), his request is unrelated to that statute. Many decisions in this circuit hold that substance controls over the caption. Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter what title the prisoner plasters on the cover. See, e.g., Ramunno v. United States, 264 F.3d 723 (7th Cir.2001). Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram no-bis, coram vobis, audita querela, certio-rari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls. See Thurman v. Gramley, 97 F.3d 185, 186-87 (7th Cir.1996). Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004) (emphasis in original). Lloyd’s motion advanced the kind of arguments and sought the kind of relief covered by § 2255 ¶ 1. It therefore was a collateral attack, and because we had not granted permission for its commencement the district court was obliged to dismiss it for lack of jurisdiction. Although a mis-captioned initial collateral attack does not count for purposes of § 2244(b) and § 2255 ¶8 unless the district judge alerts the prisoner that it will use up the one allowed as of right, see Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003), all later collateral attacks must be seen for what they are. A captioning error in a successive collateral proceeding cannot cost the prisoner any legal entitlement, so Castro’s warn-and-allow-withdrawal approach does not apply. See Melton, 359 F.3d at 857. All of this is straightforward, so it is puzzling that both the district court and the prosecutor have mishandled the situation. What led us to issue a published opinion, however, is not these oversights but the litigation strategy adopted by the United States. It is a strategy that is all too common, has been disapproved, see Ramos v. Ashcroft, 371 F.3d 948, 949-50 (7th Cir.2004), yet" }, { "docid": "10095858", "title": "", "text": "a motion under Fed.R.Civ.P. 60(b) must be treated as a collateral attack when the prisoner makes a “claim” within the scope of § 2244(b). This means, the Court concluded, that a procedural argument (say, one about the statute of limitations) raised using Rule 60(b) is not a new collateral attack, but that\" an objection to the validity of the criminal conviction or sentence is one no matter how it is couched or captioned. See also, e.g., Melton v. United States, 359 F.3d 855 (7th Cir.2004); United States v. Evans, 224 F.3d 670 (7th Cir.2000). The reasoning of Gonzalez does not depend on which rule the prisoner invokes; its approach is as applicable to post-judgment motions under Fed.R.Crim.P. 6(e) as it is to motions under Rule 60(b). Any contrary understanding in Campbell about the extent to which § 2244(b) and § 2255 ¶ 8 apply to post-judgment motions that do not bear the label “collateral attack” must yield to higher authority. This means that, if Scott had sought the grand-jury materials out of academic interest, he would not have made a “claim” within the scope of § 2244(b), and his motion would not have been a second collateral attack. Indeed, if he had sought the materials hoping that they would furnish the basis for a request ,to this court under § 2255 ¶ 8, then the motion in the district court would not (yet) be a second collateral attack. (This is parallel to the holding of Gonzalez that an effort to clear away the statute of limitations, so that a substantive challenge to the conviction could be launched, is not a “claim” under § 2244(b).) But Scott did not stop with a request for documents. He told the district judge, point blank, that he “is challenging the legality, constitutionality and authenticity of the instant indictment.” That is a “claim” for collateral relief under Gonzalez and initiated a second collateral attack. Because Scott lacks this court’s permission to pursue another collateral attack, the district judge should have dismissed it for lack of jurisdiction. See Nunez v. United States, 96 F.3d 990 (7th" }, { "docid": "22599773", "title": "", "text": "for want of jurisdiction. Melton can’t try again tomorrow under § 2255 and couldn’t have employed § 2255 at the time he filed this petition in the district court; his application in 1997 used up the only collateral attack allowed as of right, see Altman v. Benik, 337 F.3d 764 (7th Cir.2003), and the district court thus lacks jurisdiction to entertain any further collateral proceedings unless this court first grants permission under § 2244 and § 2255 ¶8. See Nuñez v. United States, 96 F.3d 990 (7th Cir.1996). The prosecutor brought this problem to the attention of the district judge, who did not mention the subject in the brief order denying Melton’s petition. Prisoners cannot avoid the AED-PA’s rules by inventive captioning. See, e.g., Owens v. Boyd, 235 F.3d 356 (7th Cir.2000) (application for coram nobis); United States v. Evans, 224 F.3d 670 (7th Cir.2000) (use of Rule 33 based on matters other than newly discovered evidence of innocence). Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter what title the prisoner plasters on the cover. See, e.g., Ramunno v. United States, 264 F.3d 723 (7th Cir.2001). Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, ca-pias, habeas corpus, ejectment, quare im-pedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls. See Thurman v. Gramley, 97 F.3d 185, 186-87 (7th Cir.1996). Paragraph 1 of § 2255 reads: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence" }, { "docid": "22599772", "title": "", "text": "Just as in 1997, Melton contended that his sentence had been spoiled by ineffective assistance of counsel. The ancient writ of audita querela, long ago abolished in federal civil proceedings, see Fed.R.Civ.P. 60(b), has no apparent relevance to criminal sentences. Black’s Law Dictionary 126 (7th ed.1999), describes it as a “writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses.” Melton is not a judgment debtor, and the territory of new facts and law is occupied for civil matters by Rule 60(b) and for criminal matters by Fed.R.Crim.P. 33 plus § 2255. See United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982). The district judge viewed Melton’s invocation of audita querela as reflecting confusion about the appropriate remedy to use and denied his application on that ground, inviting him to try again under § 2255. Things are not so simple, however, given the AEDPA. The prosecutor had asked the district judge not to deny the application but to dismiss it for want of jurisdiction. Melton can’t try again tomorrow under § 2255 and couldn’t have employed § 2255 at the time he filed this petition in the district court; his application in 1997 used up the only collateral attack allowed as of right, see Altman v. Benik, 337 F.3d 764 (7th Cir.2003), and the district court thus lacks jurisdiction to entertain any further collateral proceedings unless this court first grants permission under § 2244 and § 2255 ¶8. See Nuñez v. United States, 96 F.3d 990 (7th Cir.1996). The prosecutor brought this problem to the attention of the district judge, who did not mention the subject in the brief order denying Melton’s petition. Prisoners cannot avoid the AED-PA’s rules by inventive captioning. See, e.g., Owens v. Boyd, 235 F.3d 356 (7th Cir.2000) (application for coram nobis); United States v. Evans, 224 F.3d 670 (7th Cir.2000) (use of Rule 33 based on matters other than newly discovered evidence of innocence). Any motion filed in the district court that imposed the sentence, and substantively within the scope" }, { "docid": "7882956", "title": "", "text": "served his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” Stoneman, 870 F.2d at 105-06. Moreover, it is only appropriate to “correct errors for which there was no remedy available at the time of trial and where ‘sound reasons’ exist for failing to seek relief earlier.” Id. at 106. Due to the Court’s significant interest in finality of judgments, and because the writ is so extraordinary, the standard for a successful collateral attack is more stringent than that of § 2255 petitions. Stoneman, 870 F.2d at 106. There must be errors of fact “of the most fundamental kind” that “must go to the jurisdiction of the trial court, thus rendering the trial itself invalid.” Id.; United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). There must be a complete miscarriage of justice. Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir.1996). The remedy is so extreme that the Supreme Court observed it “is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.” Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (alteration in original) (citation omitted). 1. A Threshold Showing for a Writ of Error Coram Nobis The government argues that Evo-la’s petition should be denied because it is in substance a matter governed by 28 U.S.C. § 2255. The government suggests that Evola has filed the writ to avoid having to clear the difficult statutory hurdle of receiving certification for a second or successive § 2255 petition. Without such certification, the Court would lack jurisdiction. See Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004). The Court disagrees with this position. Evola cannot seek certification to file a successive § 2255 petition because he is no longer “in custody” for purposes of the statute. See Stoneman, 870 F.2d at 105-06. A person is no longer “in custody” for purposes of § 2255 where the sentence imposed for the conviction has expired, and Evola’s expired in 2003. Custis" }, { "docid": "10696616", "title": "", "text": "Benitez was sentenced. Benitez’s claim regarding his right to counsel during his sentencing hearing is thus the sole issue presently before us. II. ANALYSIS A. Statute of limitations A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitations, with the limitations period beginning to run “from the latest of’ four possible dates. The only two that are potentially relevant in the present case are the date on which the judgment of conviction becomes final; [or] the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.... 28 U.S.C. § 2255(f)(1) & (3). Although Benitez’s claim based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is not before us, we note that any sentencing claim would now be governed by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Moreover, Booker has not been made retroactively applicable to cases on collateral review. Humphress v. United States, 398 F.3d 855, 860 (6th Cir.2005). Benitez’s judgment became final on September 15, 2003, the date that marked the expiration of the 10-day time period (plus intervening weekends and a federal holiday) when he could have filed a timely appeal of his August 29, 2003 judgment and commitment order. See Fed. R.App. P. 4(b)(1); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir.2004) (concluding that, as a general matter, the time limitation for appealing a criminal judgment contained in Rule 4(b)(1) of the Federal Rules of Appellate Procedure governs when a judgment of conviction becomes final for the purposes of 28 U.S.C. § 2255(f)(1)). Benitez filed his § 2255 motion on September 17, 2004, two days after the limitations period lapsed. The district court therefore determined that Benitez’s motion was untimely. As the government points out, the district court’s “primary ruling of time barred has never been found to be in error.” Neither the parties nor the district court, however, addressed the merits" } ]

[ { "docid": "22674051", "title": "", "text": "not have cause to withdraw his pleas; and (4) failing to establish a factual basis for his guilty pleas. Finally, Martinez contests his convictions and sentence on the basis that Apprendi rendered 21 U.S.C. § 841, the substantive statute forming the object of the Count One conspiracy, unconstitutional. We possess jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. II. Before we address the merits of Martinez’s contentions, we must consider a predicate procedural issue concerning the applicable standard of review. Because Martinez did not seek to withdraw his guilty plea in the district court, we review his alleged Rule 11 errors under the standard applicable to forfeited error, i.e., assertions of error raised for the first time on appeal. The courts addressing this question disagree over whether such assertions are to be reviewed under a plain error standard or a harmless error standard. This question is one of first impression in our circuit, and we must resolve the question before we consider the substance of Martinez’s Rule 11 claims. As a general proposition, of course, it is well established that forfeited error is reviewed under a plain error standard. See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial lights may be noticed although they were not brought to the attention of the court.”); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain error review, we may notice an error that was not preserved by timely objection only if the defendant can demonstrate (1) that an error occurred, (2) that it was plain error, and (3) that the error was material or affected the defendant’s substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even when these three conditions are satisfied, we retain discretion whether to correct the error, which we should exercise only if the “error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. Under the provisions of Rule 11(h), errors in plea proceedings are normally evaluated under a harmless error standard. Fed.R.Crim.P. 11(h) (“Any variance from the procedures required by this rule which does" } ]

[ { "docid": "2258348", "title": "", "text": "after he submitted his motion to withdraw. Cf. United States v. Welker, 103 Fed.Appx. 72, 73 (8th Cir.2004) (per curiam) (reversing the district court’s decision denying the defendant’s withdrawal request because “[t]he government conceded error on this issue, recognizing that the district court should have permitted Mr. Welker to withdraw his guilty plea” based on the “plain meaning of [Rule 11(d)(1) ]”). Under the clear language of Rule 11(d)(1), Arami had an absolute right to withdraw his plea, and the district court erred in denying Arami’s request to do so. B. Plain Emr Because Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court’s decision for plain error. See Vonn, 535 U.S. at 59, 122 S.Ct. 1043. There are four steps in this analysis. We must initially determine “(1) whether the district court committed error; (2) whether the error is ‘clear and obvious’; and (3) whether the error affects substantial rights.” United States v. Stevens, 487 F.3d 232, 242 (5th Cir.2007) (internal citations omitted). If these three conditions are present, we still cannot reverse the conviction unless the error “seriously affects] the fairness, integrity, or public reputation of judicial proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Arami easily satisfies the first two prongs of the plain error test. First, as noted above, the district court committed error under Rule 11(d)(1) by denying Ara-mi’s motion to withdraw before the court had accepted his plea. Second, this error was “clear and obvious” because the plain language of Rule 11(d)(1) is unambiguous, as it clearly gives defendants an absolute right to withdraw a plea before the district court accepts it. See Welker, 103 Fed.Appx. at 73 (mentioning the “plain meaning of the applicable rule”). Next, Arami must establish that the error affected his “substantial rights.” Ola- no, 507 U.S. at 734, 113 S.Ct. 1770. In particular, he must demonstrate that “the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v. Dominguez Benitez," }, { "docid": "19656484", "title": "", "text": "of a drug trafficking crime. Accordingly, Todd was properly advised of the nature of the charge to which he pled guilty, and the district court did not fail to comply with Rule 11(b)(1)(G). [4] Todd argues that the district court committed a second, distinct violation of Rule 11 by failing to inform him of the maximum penalties for a violation of 18 U.S.C. § 924(c)(1)(A). See Fed.R.Crim.P. 11(b)(1)(H). On this point, we conclude that there was error. The statutory maximum sentence under 18 U.S.C. § 924(c) is life imprisonment. Davidson, 437 F.3d at 741. At the plea hearing, the attorneys first described to the maximum statutory penalty as “not less than five years’ imprisonment,” and suggested that the maximum penalty was five years. The district court recognized that the attorneys were incorrect, and told Todd that his term of imprisonment could be “far in excess of five years,” but never advised the defendant that the maximum term of imprisonment was life. The district court also did not inform Todd that the maximum term of supervised release available for a violation of § 924(c) was five years. The prosecutor stated at the hearing that the maximum term was three years. Todd failed to object to these Rule 11 errors in the district court, so he must satisfy the plain-error rule to gain relief. United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Before we may set aside a conviction based on a violation of Rule 11, the defendant must show not only a plain error in following the provisions of the rule, but also that the errors affected his substantial rights, and that failure to correct them would seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error in following the strictures of Rule 11 affects substantial rights only where the defendant shows a reasonable probability that but for the error, he would not have entered a guilty plea. United States v. Dominguez Benitez, 542 U.S. 74," }, { "docid": "22219869", "title": "", "text": "error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). In this case, Moussaoui cannot show that a plain error even occurred. An error is plain if it is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As support for his claim of error, Moussaoui relies on statements made by the district court when accepting Moussaoui’s guilty plea. See, e.g., J.A. 1421 (“You are aware that the first four counts essentially expose you to the possibility of a death sentence or life imprisonment without the possibility of parole?”). The Federal Rules of Criminal Procedure, however, require a district court before accepting a guilty plea to inform the defendant of the maximum sentences he faces. See Fed.R.Crim.P. 11(b)(1)(H) (“Before the court accepts a plea of guilty the court must inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment, fine, and term of supervised release.... ”). When these statements are read in the context of the Rule 11 proceeding, it is apparent that the district court was simply fulfilling its Rule 11 obligation to inform Moussaoui about the maximum sentences he faced. See J.A. 1419 (“I need to go over the indictment with you at this time, the specific charges that are included in the indictment, the maximum sentences to which you are exposed with any finding of guilt .... ” (emphasis added)). These statements therefore provide no support for Moussaoui’s claim that the district court wrongly believed that a life sentence was mandated once the jury declined to sentence Moussaoui to death. And because Moussaoui has not demonstrated that the district court in fact believed that Moussaoui was not eligible for a term-of-years sentence, he has not carried his burden of establishing the existence of a plain error. See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir.2009) (“[T]he defendant bears the burden of satisfying each of the elements of the plain error standard.”). Moreover, even if Moussaoui could establish that the district court wrongly" }, { "docid": "16927202", "title": "", "text": "2000 denied the motion. It sentenced the appellant to concurrent sentences of 151 months in each case and ordered him to serve supervised terms of release of three years in Cr. No. 96-106-01 and four years in Cr. No. 97-93-01. The appellant filed a timely notice of appeal in each case and on June 28, 2001 this court granted his motion to consolidate. II. The appellant first asks this court to vacate his guilty plea on the ground that the district court accepted his plea in violation of Rule 11 of Federal Rules of Criminal Procedure. He contends that although the district court informed him of the charge, it failed to detail the elements of the crime of conspiracy and, consequently, did not ascertain that he understood the nature of the charge to which he was pleading guilty. Accordingly, he argues that the guilty plea proceeding did not comply with Fed.R.Crim.P. 11(c)(1) and his plea must be vacated. Ordinarily, if Rule 11 error occurs during a plea hearing, the government bears the burden of demonstrating that the error was harmless. See Fed.R.Crim.P. 11(h) (“[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded”); see also United States v. Lyons, 53 F.3d 1321, 1322 n. 1 (D.C.Cir.1995). If the defendant allows an alleged error to pass without objection, however, he then assumes the burden of meeting the more exacting plain error requirement of Rule 52(b), Fed.R.Crim.P. 52(b). See United States v. Vonn, — U.S.-, 122 S.Ct. 1043, 1048, 152 L.Ed.2d 90 (2002). Because the appellant made no objection at the plea hearing, he has the burden to show that the district court’s alleged Rule 11 violation implicated “substantial rights” and that the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” See United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Entry of a guilty plea is governed by Rule 11, Fed.R.Crim.P., which provides in relevant part: Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the" }, { "docid": "22767922", "title": "", "text": "review Covian’s final conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We generally review de novo whether a plea colloquy met the requirements of Rule 11. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir.2003). Because Covian failed to raise this issue before the district court, however, we may only reverse his conviction on Rule 11 grounds if the district court committed plain error. Id. We also generally review de novo whether a sentence violates Apprendi. See United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003). Again, however, because Covian-Sandoval failed to raise this claim before the district court, we review his sentence for plain error. United States v. Minore, 292 F.3d 1109, 1121 (9th Cir.2002). To grant relief under the plain error standard, we must determine: (1) there was error, (2) that is plain, and (3) that affects substantial rights. Id. at 1117 (holding that the plain error test requires that there “must be an ‘error’ that is ‘plain’ and that ‘affects substantial rights’ ”) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). However, even if those requirements are met, we “will exercise our discretion to correct the error only if it ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). III. Rule 11 requires a trial judge, before accepting a guilty plea, to engage in a colloquy with the defendant to confirm that the defendant understands, among other things, “the nature of each charge to which the defendant is pleading.” Fed. R.Crim.P. 11(b)(1)(G). Before entering judgment on a plea, the court must also “determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). In evaluating the adequacy of a Rule 11 colloquy, we examine solely the record of the plea proceeding itself. United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.1986). In ascertaining whether a Rule 11 error affected the defendant’s substantial rights or the integrity of the proceeding, however, “we may look to other portions ..." }, { "docid": "9831834", "title": "", "text": "to Count Two. Quinones did not move in the district court to withdraw his guilty plea; he raises the district court’s failure to comply with Rule 11(c) for the first time on this appeal. Usually, when an objection is not made in the district court, our review is confined to review for plain error. See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). Plain error is error that is clear or obvious and affects substantial rights. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Plain error analysis differs from harmless error analysis in that the defendant bears the burden of persuasion with respect to prejudice. Id. at 734-36, 113 S.Ct. at 1778. We have not addressed whether a defendant who fails to assert a Rule 11 violation in the district court must show plain error on a direct appeal. We see no reason why the plain error rule should not apply in the Rule 11 context, though we recognize that many non-technieal deviations from Rule 11 will constitute plain error. We hold that a defendant who has not presented his objection to the district court—for example, through a motion to withdraw the plea— must show plain error on direct appeal. In this case, the district court’s failure to comply with Rule 11 was plain error because the court failed to address a core concern of Rule 11. We have identified three core objectives of Rule 11: (1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant understands the nature of the charges against him; and (3) ensuring that the defendant is aware of the direct consequences of the guilty plea. United States v. Zickert, 955 F.2d 665, 668 (11th Cir.1992). Failure to satisfy any of the core objectives violates the defendant’s substantial rights. Id. In this ease, the district court failed to satisfy the core objective that Qui-nones understand the nature of the charge against him. Quinones’s substantial rights were violated, therefore," }, { "docid": "9831833", "title": "", "text": "from Rule 11(c) at Quinones’s plea hearing was harmless error under Rule 11(h). See Fed.R.Crim.P. 11(h) (“Any variance from the procedures required by this rule wMch does not affect substantial rights shall be disregarded.”). On a direct appeal, our analysis of whether the district court’s failure to comply with Rule 11 was harmless error is conducted solely on the basis of the record of the Rule 11 proceedings. United States v. Hourihan, 936 F.2d 508, 511 (11th Cir.1991); Fed.R.Crim.P. 11(h) advisory committee’s note. Our review of the record of Quinones’s plea hearing reveals that the district court failed to inform Quinones of the nature of the charge in Count Two. The record, moreover, gives no indication that Quinones knew or understood the elements comprising a charge of using or carrying a firearm during and in relation to a drug trafficking crime. Thus, the district court failed to comply with Rule 11(c)(1). The issue, then, is whether the district court’s failure to inform Quinones of the nature of the charge entitles him to withdraw his plea to Count Two. Quinones did not move in the district court to withdraw his guilty plea; he raises the district court’s failure to comply with Rule 11(c) for the first time on this appeal. Usually, when an objection is not made in the district court, our review is confined to review for plain error. See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). Plain error is error that is clear or obvious and affects substantial rights. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Plain error analysis differs from harmless error analysis in that the defendant bears the burden of persuasion with respect to prejudice. Id. at 734-36, 113 S.Ct. at 1778. We have not addressed whether a defendant who fails to assert a Rule 11 violation in the district court must show plain error on a direct appeal. We see no reason why the plain error rule should not apply in" }, { "docid": "23573820", "title": "", "text": "court concluded the plea colloquy by finding that the guilty pleas were “freely and voluntarily entered and knowingly entered” and that there was “a factual basis to support each of the counts to which the plea [was] entered.” (Id.) The district court then stated that it would accept the pleas as to both Appellant and Mr. Portillo. Subsequent to the April 12 hearing and before sentence was imposed on July 30, 1999, Appellant and her trial counsel received a copy of the presentence investigation report and filed no objections thereto. Also prior to the July 30 sentencing hearing, the United States filed a motion, pursuant to United States Sentencing Guidelines § 5K1.1, to authorize the district court to depart downward in imposing sentence as to Appellant. The district court subsequently granted the Government’s motion and sentenced Appellant to 145 months’ incarceration, which was below the guideline range contained in the pre-sentence investigation report of 188 to 235 months’ incarceration. Appellant filed a timely notice of appeal. II. On appeal, Appellant asserts for the first time that the district court failed to comply with Federal Rule of Criminal Procedure 11 in accepting her guilty plea. Because Appellant failed to object to any alleged error under Rule 11 before the district court, we review the proceedings below for plain error. See United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999); United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Under the plain error standard, an error is reversible only if it “is clear or obvious and affects substantial rights.” Id.; see also United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (error not timely raised in district court is forfeited unless the error is plain and affects substantial rights). Plain error review differs from harmless error review in that under plain error review, the defendant bears the burden of persuasion with respect to prejudice. See United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000). Although plain error review is an exacting standard, see United States v. Humphrey, 164 F.3d 585, 588" }, { "docid": "23018188", "title": "", "text": "asserts that some of his responses during the plea colloquy demonstrate that his mental state was impaired at the time. To the extent he presents this argument to establish his plea was unknowing or involuntary, “such a claim would not be cogni zable on direct appeal where he failed to present it to the district court in the first instance by a motion to withdraw his guilty plea.” United States v. Washington, 515 F.3d 861, 864 (8th Cir.2008) (citing United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990)); see also United States v. Young, 927 F.2d 1060, 1061 (8th Cir.1991). Second, he contends that the district court failed to inform him that the twenty-year statutory maximum sentences for the § 876(b) charges could be run consecutively. He alleges this omission was a violation of the requirement in Federal Rule of Criminal Procedure 11 to advise him of the maximum possible penalty he faced. See Fed.R.Crim.P. 11(b)(1)(H). Instances of noncompliance with Rule 11 may be raised for the first time on appeal, but our review is for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To succeed on plain error review in this context, a defendant must show “not only an error in the failure to follow Rule 11 but also a ‘reasonable probability that but for the error, he would not have entered a guilty plea.’ ” United States v. Garcia, 604 F.3d 575, 578 (8th Cir.2010) (quoting United States v. Luken, 560 F.3d 741, 745 (8th Cir.2009)). “Even if he establishes such a probability, relief is discretionary and ‘the court should not exercise that discretion unless the error seriously affectfed] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In determining whether a Rule 11 error affected a defendant’s substantial rights, the reviewing court considers the entire record, not merely the plea proceedings. Vonn, 535 U.S. at 74-75, 122 S.Ct. 1043. Regarding the maximum penalties, the district court stated in relevant" }, { "docid": "23648582", "title": "", "text": "WYNN, Circuit Judge: David James Williams, III and Kristin Deantanetta Williams (“Defendants”) were convicted and sentenced pursuant to stipulated plea agreements under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Both Defendants appeal from their convictions, but only Defendant Kristin Williams challenges her sentence. Regarding the convictions, we find no error below, and therefore affirm. But regarding the sentence imposed on Defendant Kristin Williams, we find that we lack jurisdiction to review her sentence because a sentence imposed pursuant to the terms of a Rule 11(c)(1)(C) plea agreement may only be reviewed if it is unlawful or expressly based on the United States Sentencing Guidelines (the “Guidelines”) — circumstances not present here. I. Defendants separately pled guilty to one count of conspiracy to possess and distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. In their respective plea agreements, Defendants stipulated to a sentence of 120 months of imprisonment under Rule 11(c)(1)(C). The district court sentenced each defendant in accordance with those agreements. On appeal, Defendants’ appellate counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), questions whether the district court. complied with Rule 11 with respect to each defendant. Additionally, appellate counsel for Defendant Kristin Williams questions whether her sentence was reasonable. II. Before accepting a guilty plea, a trial court, through colloquy with the defendant, must ensure that the defendant understands the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty, and the various rights the defendant is relinquishing by pleading guilty. Fed.R.Crim.P. 11(b). The court also must determine that the plea is voluntary and that there is a factual basis for the plea. Id. Generally, we review the acceptance of a guilty plea under the harmless error standard. United States v. Martinez, 277 F.3d 517, 524 (4th Cir.2002). But when, as here, a defendant fails to move in the district court to withdraw his or her guilty plea, any error in the Rule 11 hearing is reviewed only for plain error. Id. at 525. Having reviewed the" }, { "docid": "23700793", "title": "", "text": "appealed the amended judgment, and this Court removed the stay and ordered briefing of the appeal to resume. III. Discussion a. Guilty Plea Rodriguez argues for the first time on appeal that the guilty plea proceedings violated her constitutional rights and failed to comport with the core components of Rule 11. She contends that she was not competent to plead guilty due to mental illness, that her guilty plea was not knowing and voluntary because the district court did not adequately explain her rights or the charges against her, and that there was an insufficient factual basis for her plea. We review for plain error when a defendant, as with Rodriguez, fails to object in the district court to a claimed Rule 11 violation, including a claim that there was an insufficient factual basis for a guilty plea. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); United States v. Franklin, 323 F.3d 1298, 1299 n. 1 (11th Cir.2003). We also find that we should review for plain error when a defendant fails to object to the district court’s determination that she is competent to plead guilty. See United States v. Bennett, 518 Fed.Appx. 660, 663 (11th Cir.2013) (unpublished) (holding that the district court did not commit plain error when it found that the defendant was competent to enter his guilty plea, where the defendant asserted for the first time on appeal that he did not understand the consequences of his guilty plea due to limited mental capacity and paranoia) (citing United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005), for the general rule that errors not raised in the district court are reviewed for plain error). “To establish plain error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). In the Rule 11 context, a defendant who seeks to establish plain error “must show" }, { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," }, { "docid": "23265628", "title": "", "text": "that he did not raise in the district court, that claim is reviewable only for plain error. See, e.g., United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (a previously “silent defendant” making a Rule 11 challenge “has the burden to satisfy the plain-error rule”). To satisfy the plain-error standard, the defendant must demonstrate, inter alia, “that (1) there was error, (2) the error was ‘plain,’ [and] (3) the error prejudicially affected his ‘substantial rights.’ ” United States v. Flaharty, 295 F.3d 182, 195 (2d Cir.) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), cert. denied, 537 U.S. 936 (2002). “And because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” Vonn, 535 U.S. at 63, 122 S.Ct. 1043 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770 (other internal quotation marks omitted)). In assessing the likely effect of a Rule 11 error, we are to examine the entire record. See, e.g., Vonn, 535 U.S. at 59, 122 S.Ct. 1043; Maher, 108 F.3d at 1521; United States v. Parkins, 25 F.3d 114, 118 (2d Cir.), cert. denied, 513 U.S. 1008, 115 S.Ct. 530, 130 L.Ed.2d 433 (1994). In order to demonstrate that a Rule 11 error affected his substantial rights, a defendant must show “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). In determining whether the defendant has made such a showing, we consider, inter alia, “any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s decision” to plead guilty, as well as the “overall strength of the Government’s ease.” Id. at 84-85, 124 S.Ct. 2333. In his brief on appeal, Torrellas argues principally that the district court failed to comply with Rule 11(b) because it elicited only monosyllabic “Yes” or" }, { "docid": "15364893", "title": "", "text": "at 1166. Beck did not, however, address the alleged error in the context of Rule 11(b)(3) and the colloquy designed to ensure a knowing and voluntary plea. And notwithstanding the statements about “waiver” of a challenge to the factual basis, the court ultimately concluded that there was “no plain error” in the district court’s acceptance of the guilty plea, id. at 1167, thus sending arguably mixed signals about the availability of appellate review. We think the earlier decision in Marks, augmented by the plain-error analysis of the Supreme Court in Vonn and Dominguez Benitez, indicates the correct approach. Accord Garcia, 587 F.3d at 520-21; United States v. Arenal, 500 F.3d 634, 637 (7th Cir.2007); United States v. Caraballo-Rodriguez, 480 F.3d 62, 69-70 (1st Cir.2007); United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.2007); United States v. Castro-Trevino, 464 F.3d 536, 540-41 (5th Cir.2006); United States v. Martinez, 277 F.3d 517, 531-32 (4th Cir.2002). Frook did not object to the district court’s determination that there was an adequate factual basis, so we review only for plain error. To obtain relief on plain error review, Frook must show that the district court committed an error that was obvious and that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A defendant asserting a Rule 11 violation satisfies the substantial-rights prong of the inquiry if he demonstrates “a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333. If the first three criteria are met, then this court should correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation omitted). Rule 11(b)(3) requires that, “[bjefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This provision is “satisfied by the existence of sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the" }, { "docid": "22219868", "title": "", "text": "believed that a life sentence (as opposed to a term-of-years sentence) was mandated after the jury did not unanimously recommend a sentence of death. Moussaoui therefore contends that a remand for resentencing is required. See, e.g., United States v. Daiagi, 892 F.2d 31, 33 (4th Cir.1989) (“[T]he defendant should be accorded a right to press his petition for a probationary sentence before a court which has not incorrectly assumed that it absolutely lacks the power to impose such a sentence.”). Because Moussaoui raises this argument for the first time on appeal, we review for plain error only. See United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005); Fed. R.Crim.P. 52(b). Under plain error review, “we must affirm unless an appellant can show that (1) an error was made, (2) it was plain, and (3) it affected the appellant’s substantial rights.” United States v. Alerre, 430 F.3d 681, 689 (4th Cir.2005). Even if the appel lant makes that showing, “the correction of plain error lies within our discretion, which we do not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). In this case, Moussaoui cannot show that a plain error even occurred. An error is plain if it is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As support for his claim of error, Moussaoui relies on statements made by the district court when accepting Moussaoui’s guilty plea. See, e.g., J.A. 1421 (“You are aware that the first four counts essentially expose you to the possibility of a death sentence or life imprisonment without the possibility of parole?”). The Federal Rules of Criminal Procedure, however, require a district court before accepting a guilty plea to inform the defendant of the maximum sentences he faces. See Fed.R.Crim.P. 11(b)(1)(H) (“Before the court accepts a plea of guilty the court must inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment, fine, and term of supervised release.... ”). When these statements are read in" }, { "docid": "22340871", "title": "", "text": "to what occurred. After determining that Monroe was acting voluntarily and understood his rights and the consequences of his guilty plea, the district court accepted Monroe’s guilty plea. During the hearing, Monroe never objected to the plea colloquy. Subsequently, the district court sentenced Monroe to 188 months’ imprisonment. During sentencing, Monroe never objected to the earlier plea colloquy. Monroe also never filed a motion to withdraw his guilty plea. Instead, for the first time on appeal, Monroe objects to the plea colloquy and contends that the district court erred under Rule 11 by not expressly informing him of his right against compelled self-incrimination. Monroe requests that his conviction and sentence be vacated based on that Rule 11 error. II. STANDARD OF REVIEW When a defendant, such as Monroe, fails to object to a Rule 11 violation in the district court, this Court reviews under the plain-error analysis. United States v. Vonn, 535 U.S. 55, 59,122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002) (“holding] that a silent defendant has the burden to satisfy the plain-error” standard in Rule 11 error). Under plain-error review, the defendant has the burden to show that “there is (1) ‘error’ (2) that is ‘plain’ and (3) that ‘affect[s] substantial rights.’ ” United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir.2003) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)) (other internal quotation marks and citations omitted). Under plain-error review, the silent defendant has the burden “to show the error plain, prejudicial, and disreputable to the judicial system.” Vonn, 535 U.S. at 65,122 S.Ct. at 1050. Further, in the Rule 11 context, the “reviewing court may consult the whole record when considering the effect of any error on substantial rights.” Vonn, 535 U.S." }, { "docid": "8609948", "title": "", "text": "plea was knowing and voluntary and was “supported by an independent basis in fact,” and set ■ a date for sentencing before the district court. The district court entered an order accepting Monzon’s plea and sentenced Monzon to a 120-month term of imprisonment and four years of supervised release. This timely appeal followed. STANDARD OF REVIEW When a defendant fails to object to a district court’s asserted Rule 11 error, our review is limited to plain error. Fed. R.Crim.P. 52(a)-(b); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2383, 2338, 159 L.Ed.2d 157 (2004). In assessing the effect of Rule 11 error, we must look to the entire record and not to the plea proceedings alone. The error requires reversal only if it affected the defendant’s substantial rights. Id. We exercise our discretion to correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). ANALYSIS On appeal, Monzon first contends that the district court violated Rule 11 of the Federal Rules of Criminal Procedure by failing to establish a factual basis for his guilty plea to possession of a gun in furtherance of a drug trafficking crime and in failing to ensure that he understood the charge against him and that the plea was voluntary. Monzon further argues that the Rule 11 error is not harmless because it affected his substantial rights. Second, Monzon contends that, in the absence of a conviction for possession of a gun in furtherance of a drug trafficking crime, he would be eligible for a safety valve reduction in his sentence pursuant to 18 U.S.C. § 3553(f). I. Rule 11 Error The government concedes that the district court erred by failing to determine that there was a factual basis for Monzon’s guilty plea to possession of a gun in furtherance of a drug trafficking crime. Because the government concedes that the district court’s acceptance of Monzon’s plea in violation of Rule 11 was plain error, we proceed to the issue of" }, { "docid": "22788657", "title": "", "text": "PER CURIAM: Defendant Henry Affit Lejarde-Rada pled guilty, pursuant to a written plea agreement, to one count of attempted illegal reentry into the United States following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). At sentencing, the district court denied Lejarde-Rada’s motion for a downward departure and sentenced him to 41 months of imprisonment, in addition to three years of supervised release, and a $100 special assessment. On appeal, Lejarde-Rada argues that his guilty plea is invalid because the district court failed to ensure that he understood the direct consequences of his guilty plea. When a district court accepts a guilty plea, it must ensure that the three core concerns of Rule 11 of the Federal Rules of Criminal Procedure have been met: “(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.” United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir.1999) (internal marks omitted); see also United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Because Lejarde-Rada failed to object to any alleged error under Rule 11 before the district court, we review only for plain error, Mosley, 173 F.3d at 1322. Thus, Lejarde-Rada must show that there is (1) “error” (2) that is “plain” and (3) that “affeet[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776) (other internal quotation marks omitted). We have previously said that “[a] district court’s failure to address a core concern of Rule 11 constitutes plain error.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000);" }, { "docid": "22981263", "title": "", "text": "F.3d at 133. Even if the sentencing court erred in that regard and such error was plain— satisfying the first two prongs of plain error review — a vacatur of Aplicano’s guilty plea would not be warranted because Aplicano has not shown that such an error affected his substantial rights. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). That is, Aplicano has not shown a “ ‘reasonable probability that, but for the error, [he] would not have entered the plea.’ ” See United States v. Sanya, 774 F.3d 812, 817 (4th Cir.2014) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Imortantly, Aplicano does not point to anything in the record suggesting that he would not have pleaded guilty absent the court’s failure to advise him of the nature and consequences of supervised release. Indeed, the fact that Aplicano made no effort to withdraw his guilty plea after the district court imposed the term of supervised release is compelling “evidence that he would have entered the plea regardless.” See United States v. Massenburg, 564 F.3d 337, 344 (4th Cir.2009). And there is no dispute that the prosecution’s case against Aplicano was strong. See id. Accordingly, the record fails to show a “reasonable probability” that Aplicano would have refrained from pleading guilty but for the assumed Rule 11 error, and Aplicano is unable to satisfy the third prong of the plain error analysis. See id. at 343. Thus, this appellate contention also fails. IV. Pursuant to the foregoing, we affirm the judgment of the district court. AFFIRMED. . Citations herein to \"J.A. -” refer to the contents of the Joint Appendix filed by the parties in this appeal. . Aplicano represented to the sentencing court that a nonprofit organization had agreed to help him apply for immigration relief. He suggested that, if the court imposed a sentence greater than ten months, the Bureau of Prisons would relocate him to another detention facility and thereby cause him to lose the assistance of the nonprofit organization. ." }, { "docid": "22808225", "title": "", "text": "11 before accepting their guilty pleas because it did not address drug quantity, which they believe Apprendi converted into an element of their offense. The second aspect of their argument is that Apprendi vitiated the voluntariness of their guilty pleas by reducing the legally permissible maximum penalty they faced for their drug offense. More specifically, they aver that their guilty pleas were induced by the threat of a harsher punishment—up to forty years or life imprisonment—than was possible given Apprendi, under which they faced a maximum penalty of only twenty years’ imprisonment under § 841(b)(1)(C). 1. Standard of Review The Sanchezes raise the Apprendi issues concerning their guilty pleas for the first time on appeal. This Court has held “that a defendant who has not presented his objection to the district court—for example, through a motion to withdraw the plea—must show plain error on direct appeal.” United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996). Thus, the San- chezes must show that there is (1) “error,” (2) “that is ‘plain/ ” and (3) “that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (other internal quotation marks omitted). 2. Rule 11 The Sanchezes claim that the district court failed to comply with the requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that “[b]efore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,” certain matters. Fed. R.Crim.P. 11(c). At issue in this case are the requirements in Rule 11 that the court properly advise the defendant of “the nature of the charge to which" } ]

[ { "docid": "14841740", "title": "", "text": "type of statistical analyses at issue with respect to plaintiffs’ prima facie case is referred to as a pools analysis. This Circuit has held that a pools analysis, standing alone, that demonstrates a statistically significant adverse result for a protected class relative to what would be expected if discrimination were not in play, is sufficient circumstantial evidence to make out a prima facie pattern or practice Title VII claim. Palmer, 815 F.2d at 91 (citing Segar v. Smith, 738 F.2d at 1278). A pools analysis looks to pools of similarly situated employees to determine how the promotion success of a certain pool — here, African American would-be promotees — stacks up against that of a control group, such as all other would-be promotees. Of course, it is important that a statistician compare “similarly situated employees” and that the pools must be properly defined by controlling for a variety of factors. See Sec’y of Labor v. Keystone Coal Min. Corp., 151 F.3d 1096, 1109 (D.C.Cir.1998). In a promotion ease, such as this one, the organization in which the class members are “employee[s] is appropriately utilized as the relevant labor market,” and “it would be expected that, absent discriminatory promotion practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications for promotion in the employer’s labor force as a whole.” Davis, 613 F.2d at 964-65 (citing Teamsters, 431 U.S. at 339-40 n. 20, 97 S.Ct. 1843). Plaintiffs’ expert, Dr. Bernard Sis-kin, analyzed the data provided by Sodexho and identified highly-significant statistical disparities by race at the company-wide level. Using a pools analysis that did not control for unit, but that did consider division, Siskin found a i;aee effect during the class period of 5.3/4/ standard deviations, which is far in excess of the 1.96 threshold. (See Pls.’ Ex. 160 [11/01 Siskin report] at ¶¶ 4, 6 & Table S-2). Significantly, defendant’s expert also did a pools analysis that analyzed 7,018 promotions for the class period and found a company-wide statistically significant disparity of" } ]

[ { "docid": "20328597", "title": "", "text": "motion for summary judgment, but that the government might respond to a motion filed before the close of discovery by asking for time to complete discovery under Rule 56. Id. at 6-7. Accepting Judge Robertson’s invitation, Shea promptly filed his Motion for Summary Judgment on New Year’s Day 2010. Pi’s. Mot. Summ. J. [74], Defendant responded by filing a Motion to Strike under Federal Rule of Civil Procedure 56(e) (now Rule 56(c)), or in the alternative to deny the motion pending further discovery pursuant to Federal Rule of Civil Procedure 56(f) (now Rule 56(d)). Mot. Strike [77] at 1, Feb. 1, 2010. Defendant asserted that because plaintiff was incompetent to testify on statistical matters vital to his Title VII case and provided no expert testimony, other than his own analysis, he failed to meet Rule 56(e)’s requirement to “set out facts that would be admissible in evidence.” Id. at 1-2. In the alternative, defendant requested more time for discovery because of plaintiffs failure to make Rule 26(a)(2)(B) disclosures, which were required to accompany his “expert” statistical analysis. Id. at 2. Defendant, therefore, desired to depose Shea in order to obtain information regarding his qualifications and background, and the analytical methods he used to create his statistical evidence. Id. at 2; Deck of Counsel [77-4] at 2. Defendant also requested time to “find persons knowledgeable about the Department’s 1990-92 MLAAP” program and to retain their own rebuttal expert witness. Id. at 2-3. One day later, with little discussion or guidance and before plaintiff even filed an opposition, the Court denied the government’s Motion to Strike [77]. Order [78] at 2, Feb. 2, 2010. The Court held in abeyance plaintiffs Motion for Summary Judgment and instructed the government that it had no obligation to respond to it until discovery was complete. Id. Defendant then filed a Motion for Reconsideration asking the Court to review its Order [78]. Mot. Recons. [93] at 1, Apr. 5, 2011. The next day, in a hearing before Judge Sullivan on April 6, 2011, the parties stipulated that discovery had been completed. See Shea v. Clinton, 850 F.Supp.2d" }, { "docid": "6912214", "title": "", "text": "Respond, and will deny plaintiffs Motion for Clarification as moot. 1. BACKGROUND This case is a long-running employment discrimination case in which Mr. William Shea (“Shea”) alleges that the State Department (“State”) violated his rights under Title VII of the Civil Rights Act of 1964 (42 U.S.C.2000e et seq.). See generally Compl. [1]. A. Basis for the Complaint State’s Mid-Level Minority Hiring Program (“MLAAP”) was in force when Shea was hired in 1992. See Mem. P. & A. Supp. Def.’s Mot. Recons. (“State Recons. P. & A.”) at 3 (noting that the MLAAP ran from 1987 to 1993). Mid-level hiring allowed a Foreign Service candidate to be hired directly into a higher grade rather than into an entry-level grade. See Def.’s Mot. Summ. J. (“State MSJ”) [46] Statement of Material Facts Not in Genuine Dispute (“State Mat. Facts”) ¶ 6. Mid-level hiring required either a “certification of need” that an outside hire was required, or membership in one of a set of specified minority groups under the MLAAP. See id. ¶ 7. Candidates for mid-level hiring were also required (a) to have substantial professional experience, (b) to receive a passing grade on an oral examination, and (c) to pass a background check. See id. ¶ 8. Shea alleged that he would have passed the screening process but was excluded from consideration for mid-level hiring solely on the basis of his race, as there was no certification of need. See Compl. ¶ 6. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, on an ongoing basis, in violation of his rights under Title VII. See id. Shea also alleged constitutional violations, but the Court dismissed that claim, and Shea did not appeal the dismissal, State Recons. P. & A. at 8 n. 5, so the Title VII claim is the only one before the Court. B. Procedural History The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal" }, { "docid": "8205324", "title": "", "text": "“any further evidence of discrimination that may be available to the plaintiff ... or any contrary evidence that may be available to the employer.” Aka, 156 F.3d at 1289. Among other possibilities, this “further evidence” may include “independent evidence of discriminatory statements or attitudes on the part of the employer” or “evidence of a strong track record in equal opportunity employment.” Id. Here, both parties offer several types of evidence, as discussed below. Upon review, the court finds that this “other evidence” also cannot support a reasonable inference of discriminatory intent. i Statistical evidence of a pattern of discriminatory practices Plaintiff attempts to use statistical evidence to show that “[i]t is undisputed that younger individuals were more favorably treated and were sought after by CISA.” Pl.’s Opp’n at 9. “As evidence of the Agency’s preference for younger faculty,” he states, “in 2011, the Agency had 6 faculty members under 40 and 25 faculty over 40 .... In 2012, the amount of faculty members under 40 increased to 15 and the number of faculty member[s] over 40 decreased to 13.” Id.-, see also PL’s Opp’n, Ex.- 24, EOF No. 28-27. After “a simple average calculation,” Plaintiff testified that “the best conclusion [he] reached is that not a single person below the age of 40 has ever been terminated from CISA as a faculty member.” PL’s Steele Dep. at 97. ■ ■ Generally, statistical calculations can be used to demonstrate pretext. Jones, 565 F.Supp.2d at 78; Forman, 271 F.3d at 292. That does not mean, however, that evidence of statistical disparity is dis-positive in- the context of a summary judgment motion or that a court cannot evaluate the weight of the statistical evidence within its review of the evidence as a whole. Shea v. Kerry, 961 F.Supp.2d 17, 48 (D.D.C.2013), aff'd, 796 F.3d 42 (D.C.Cir.2015) (emphasizing the “rigorous, exacting analysis courts in this circuit have applied to-this kind of statistical evidence”); Burton, 153 F.Supp.3d at 68-69, 2015 WL 9907798, at *41 (finding a statistical report to be insufficient to show that any individual plaintiff was subject to disparate disciplinary action). Nor must" }, { "docid": "19194331", "title": "", "text": "survive a motion to dismiss.” Het-tinga v. United States, 677 F.3d 471, 480 (D.C.Cir.2012) (per curiam). The Court’s previous denial of summary judgment does not mean that the laches defense would not survive a motion to dismiss. Plaintiff claims that allowing amendment to add a laches defense would unduly delay trial and prejudice the plaintiff. The plaintiff has not specifically indicated what additional discovery would be required on this matter. He claims that he would be prejudiced because now he would have to “get serious about laches.” PL’s Opp’n to Def.’s Mot. Am. 12. This level of prejudice does not overcome Rule 15(a)’s mandate to freely allow amendment. B. Amendment to Include Affirmative Defense of Failure to Mitigate Damages The defendant also seeks leave to amend its Answer to include an affirmative defense of failure to mitigate damages. State claims that “information regarding Plaintiffs failure to apply for a mid-level position in the race-neutral Mid-Level Foreign Service Career Candidate Program did not become known to the Defendant until very recently[.]” Def.’s Mot. Am. 5. With this new discovery, defendant seeks leave to include this affirmative defense. Shea emphasizes that this amendment comes ten years after the filing of this suit, and roughly two decades after the events giving rise to the defense. By raising mitigation now, plaintiff claims, State exhibits a dilatory motive and would cause undue delay and prejudice. PL’s Opp’n to Def.’s Mot. Am. 4-5, 17-19. Focusing on how long this case has been pending is not as helpful here. The plaintiff filed this case over a decade ago, but neither party can be “blamed” for some of the case’s lengthier delays. When Shea first filed his complaint, State moved to dismiss, in part, because the statute of limitations had run. Def.’s Mot. Dismiss 10-11, Jan. 21, 2003, ECF No. 11. The Court agreed that the case was time-barred, and granted State’s motion. Order, Sept. 30, 2003, ECF No. 15; Mem., Oct. 31, 2003, ECF No. 16. The D.C. Circuit disagreed, and remanded the ease for further proceedings. Shea, 409 F.3d at 453. While on remand, the ease" }, { "docid": "19194320", "title": "", "text": "receive a passing grade on an oral examination, and (e) pass a background cheek. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F.Supp.2d 153, 156 (D.D.C.2012) (providing factual and procedural history of ease). The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) — which brought the D.C. Circuit’s analysis into question — this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F.Supp.2d 166 (D.D.C.2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied" }, { "docid": "6912237", "title": "", "text": "injustice would result from denial of reconsideration of these issues when he already conceded the point on the unlawfulness of the MLAAP. Therefore Shea’s first two issues for reconsideration will also be denied. D. Shea Has Not Shown that the Court Erred by Allowing State to File Responses to His Request for Admissions Out of Time Shea’s third issue for reconsideration concerns the Court’s decision to grant State’s motion for leave to file responses to Shea’s requests for admissions out of time. See Shea Mot. Recons, at 1; see generally Def.’s Mot. Leave to File [75]; Feb. 2, 2010 Order [78]. Shea argues that the Court misapplied the standard for withdrawing or amending an admission under Rule 36(b) of the Federal Rules of Civil Procedure. Shea Mot. Recons, at 19-23. Shea’s opposition to State’s motion only-objected to allowing State to respond to admission number 10. Pl.’s Opp. to Def.’s Rule 36(b) Mot. [76] at 1; Shea Mot. Recons. at 20. Admission number 10 stated: Plaintiff met the minimum objective qualifications to have applied to start at a mid-level FSO grade under the MLAAP, with this one exception: as a white non-Hispanic, he was not eligible to participate in the program. Shea Mot. Recons, at 20. In granting State’s motion for leave to file, the Court limited State’s response to this request for admission: [UJnless the government is prepared to demonstrate that any non-minority person applied for and was denied acceptance to MLAAP because of his or her qualifications, the plaintiff will be deemed to have been qualified for MLAAP — except for his race (or national origin, or ethnicity). Feb. 2, 2010 Order [78] at 1-2 (emphasis in original). Shea himself notes that in allowing State to late file its admissions subject to this limitation, State’s “victory [was] a hollow one.” Shea Mot. Recons, at 21. Hence Shea has not met his burden of showing that harm or injustice would arise by the Court’s failure to change its decision on this matter. Therefore Shea’s third issue for reconsideration will also be denied. E. Resolution of Motions Filed Subsequent to the" }, { "docid": "15055303", "title": "", "text": "Schmick confirmed that Exhibit 1 was “the coat that we recovered,” id. at 152, and, when questioned whether the jacket in the courtroom was the one that Summers wore while fleeing, Morris responded simply, “Yes, it was,” id. at 267. The government’s case-in-chief otherwise featured the expert testimony of Brendan Shea, a forensic examiner at the Quantico laboratory who supervises Unit l’s analysts and directs them to perform particular tests on evidence. After identifying Government’s Exhibit 1 as the coat submitted to the lab, Shea explained that he had directed his subordinate analysts to conduct two methods of polymerase chain reaction based, short tandem repeat typing on the jacket. The lab also performed DNA typing on buccal swabs taken from Summers’s mouth. Shea compared the typing data, testifying that although DNA from at least four different people was found on the jacket, Summers was the major contributor. Shea documented the typing results and his conclusions in a three-page report. The report contained a table juxtaposing the numerical identifiers of the allele found at corresponding loci of the DNA extracted from the jacket and the buccal swabs, revealing an exact match. Shea stated “to a reasonable degree of scientific certainty” that Summers was the major DNA contributor, statistically calculating the probability of a random match as equal to or less than one in 280 billion. See J.A. 524-25. Shea signed the report, and no other lab employee was named therein or testified at trial. The report was admitted into evidence as Government’s Exhibit 25. The government presented no evidence of the jacket’s whereabouts from the time Corporal Hampson placed it in his cruiser until it arrived at the FBI laboratory. While the jacket was at the lab, the internal log documented its movement within Unit 1. The log reflects that four lab employees signed for and took custody of the jacket at different times. Based on the varying legibility of their signatures, some of the employees’ identities are more susceptible than others of being ascertained. It is clear, however, that none of them were Shea, though he did initial the log" }, { "docid": "20328607", "title": "", "text": "resolve the case in the plaintiffs favor. However, “[0]ur [justice] system favors the disposition of cases on the merits.” Trakas v. Quality Brands, Inc., 759 F.2d 185, 186-87 (D.C.Cir.1985). The D.C. Circuit has also warned against issuing default judgments for attorney misconduct when less drastic sanctions are available to rectify the harm. See Butera v. District of Columbia, 235 F.3d 637, 661 (D.C.Cir.2001); Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-75 (D.C.Cir.1986). Therefore, ruling for plaintiff, even if the Court was inclined to do so, would likely be reversible error. The purpose of judicial estoppel is to “protect the integrity of the judicial process.” Maine, 532 U.S. at 750, 121 S.Ct. 1808 (citations omitted). Holding for the plaintiff here would not serve that interest, but would instead give plaintiff a shortcut to the result he desires. Far from being equitable, resolving this case in this fashion would create a manifest injustice. IV. CONCLUSION For the aforementioned reasons, the court will not grant plaintiffs Motion for the Application of Judicial Estoppel [106]. Accordingly, it is hereby ORDERED, that the plaintiffs Motion be, and hereby is, DENIED. It is FURTHER ORDERED that defendant’s Opposition to plaintiffs Motion for Summary Judgment is due on or before August 13, 2012, and plaintiffs Reply, if any, is due on or before August 20, 2012. SO ORDERED. . The pending action’s ten-year history was related in this Court's recent Opinion, and so only facts relevant to the pending Motion [106] are stated here. See Shea v. Clinton, 850 F.Supp.2d 153, 155-56 (D.D.C.2012). . Plaintiff’s request is so far reaching that it deserves a full recitation: Shea asks the Court to bar the defendant from: [Challenging with evidence or argument [plaintiff's] qualifications to give opinions concerning this matter; [his] methodology in arriving at [his] opinions; [his] use of the comparator population of Public Administrators in [his] analysis; [his] lack of any back-up analysis using other comparator populations or more recent data; any calculations into the statistical significance and standard deviation of [his] results; and whether [his] methods are the kind to be accepted by courts so" }, { "docid": "20328596", "title": "", "text": "at 3-4. In the present motion, Shea asks the Court to apply the doctrine of judicial estoppel to bar defendant from filing an opposition to his Motion for Summary Judgment [74], or from “presenting evidence or argument contradicting the facts and arguments” plaintiff asserted in his Motion [74]. Mot. [106] at 1, Nov. 7, 2011. In what Shea terms as “more-limited” relief, he asks, in the alternative, that the Court bar defendant from “challenging with evidence or argument” both his qualifications to give opinion testimony and the analysis he uses to support his Title VII claim. Id. at 1, 22-23. Shea’s current Motion [106] has its genesis in a status conference held before Judge Robertson on December 18, 2009. At that hearing, the Court ordered that expert and fact discovery close by April 15, 2010, and gave the parties until May 15, 2010, to file Motions for Summary Judgment. Hr’g Tr. [115-1] at 11, Dec. 18, 2009. Judge Robertson specifically advised Shea that he need not wait for the close of discovery to file his motion for summary judgment, but that the government might respond to a motion filed before the close of discovery by asking for time to complete discovery under Rule 56. Id. at 6-7. Accepting Judge Robertson’s invitation, Shea promptly filed his Motion for Summary Judgment on New Year’s Day 2010. Pi’s. Mot. Summ. J. [74], Defendant responded by filing a Motion to Strike under Federal Rule of Civil Procedure 56(e) (now Rule 56(c)), or in the alternative to deny the motion pending further discovery pursuant to Federal Rule of Civil Procedure 56(f) (now Rule 56(d)). Mot. Strike [77] at 1, Feb. 1, 2010. Defendant asserted that because plaintiff was incompetent to testify on statistical matters vital to his Title VII case and provided no expert testimony, other than his own analysis, he failed to meet Rule 56(e)’s requirement to “set out facts that would be admissible in evidence.” Id. at 1-2. In the alternative, defendant requested more time for discovery because of plaintiffs failure to make Rule 26(a)(2)(B) disclosures, which were required to accompany his “expert”" }, { "docid": "19194321", "title": "", "text": "the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) — which brought the D.C. Circuit’s analysis into question — this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F.Supp.2d 166 (D.D.C.2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied State’s subsequent Motion for Reconsideration. Order, Aug. 20, 2009, ECF No 71. On July 23, 2010 the plaintiff moved to hold discovery deadlines in abeyance until resolution of his latest motions for reconsideration. ECF No. 86. In response, the Court stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, the Court orally extended this stay. The stay remained in effect until the Court resolved plaintiffs motions for reconsideration and motion for application of judicial estoppel. See Mem. Op. & Order Denying Pl.’s Mots. Reconsideration, Mar. 23, 2012, ECF Nos. 113 & 114; Mem. & Order Denying Pl.’s Mot. Judicial Estoppel, July 30, 2012, ECF No. 118. On August 17, 2012, State filed a second Motion for Summary Judgment, ECF No. 120, raising the affirmative defense of mitigation of damages, id. at 34-36. Plaintiff objected to State first raising this affirmative defense in a dispositive motion, rather than in a pleading. Pl.’s Opp’n to Def.’s Second Mot. Summ. J. 34, Aug. 30, 2012, ECF No. 123." }, { "docid": "20328608", "title": "", "text": "hereby ORDERED, that the plaintiffs Motion be, and hereby is, DENIED. It is FURTHER ORDERED that defendant’s Opposition to plaintiffs Motion for Summary Judgment is due on or before August 13, 2012, and plaintiffs Reply, if any, is due on or before August 20, 2012. SO ORDERED. . The pending action’s ten-year history was related in this Court's recent Opinion, and so only facts relevant to the pending Motion [106] are stated here. See Shea v. Clinton, 850 F.Supp.2d 153, 155-56 (D.D.C.2012). . Plaintiff’s request is so far reaching that it deserves a full recitation: Shea asks the Court to bar the defendant from: [Challenging with evidence or argument [plaintiff's] qualifications to give opinions concerning this matter; [his] methodology in arriving at [his] opinions; [his] use of the comparator population of Public Administrators in [his] analysis; [his] lack of any back-up analysis using other comparator populations or more recent data; any calculations into the statistical significance and standard deviation of [his] results; and whether [his] methods are the kind to be accepted by courts so as to be admissible. Mot. [106] at 22-23. With regard to “matters of [] possible career advancement in the Foreign Service and [] lost pay had [he] been accepted and placed in the Foreign Service through MLAAP,” plaintiff asks the Court to bar defendant from challenging his: [Q]ualifications and background to offer opinions on those matters; [his] methodology in coming to [his] opinions; alternative likely career paths or results as demonstrated by other entrants’ history in the MLAAP; and all other matters that form the basis or demonstrate a lack of basis for [his] opinions regarding these matters. Id. . At the time of plaintiff's Motion [77], Rule 26(a)(2) required disclosure of a written report from each expert witness identified by a party at least 70 days before the close of discovery. The expert witness’s report had to include the data or other information considered by the witness in forming his expert opinions, and the witness's qualifications to form such opinions. Fed.R.Civ.P. 26(a)(2) (West 2010). . The government's averment that \"there is some question as" }, { "docid": "1792360", "title": "", "text": "rely on evidence of statistical disparities. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1295 n. 11 (D.C.Cir.1998). Plaintiff relies on Dr. Thomas A. DiPrete, the same expert who testified at the Delgado trial. Dr. DiPrete calculated the proportion of African-American applicants deemed unsuitable and compared this to the rate for white applicants. (Pl.’s Opp’n, Exh. 55 at ¶ 6.) Dr. DiPrete found that 19.53% of African-American applicants were found unsuitable, while only 9.70% of white applicants were disqualified based on suitability. (Id.) According to Dr. DiPrete, this difference is statistically significant at over six standard deviations (id. at ¶ 7), which is much higher than the conventional threshold of two to three standard deviations. See Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1412 (D.C.Cir.1988) (internal citations omitted). Relying on Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C.Cir.1983), defendant suggests that such statistical evidence is only relevant to plaintiffs prima facie case. (Def.’s Reply 16.) While the D.C. Circuit did hold that such evidence may establish a prima facie case, it did not preclude its consideration with respect to the issue of pretext. On the contrary, the Court noted that “[s]ta-tistical and other comparative information is clearly ‘relevant to the claim’ of an individual plaintiff in a Title VII case.” Id. See also Cook v. Boorstin, 763 F.2d 1462, 1468 (D.C.Cir.1985) (“a disparate treatment plaintiff may employ statistics concerning the employment practices of the defendant to rebut explanatory defenses as pretextual” (citing Minority Employees at NASA, 723 F.2d at 962)). Defendant also criticizes Dr. DiPrete’s methodology, saying that he relied on “discontinuation codes” produced by the FBI that “may be unreliable” and may “contain[] anomalies.” (Def.’s Reply. 10-11.) If the FBI produced unreliable data, it certainly cannot fault the plaintiff. Moreover, any dispute regarding the reliability of the data hardly defeats the sufficiency of plaintiffs showing of pretext; rather, at best, it only raises an issue of fact for the jury. C. Subjectivity in the Hiring Process Plaintiff also argues pretext based on the FBI’s “highly subjective” hiring criteria. See Aka, 156 F.3d" }, { "docid": "6912215", "title": "", "text": "hiring were also required (a) to have substantial professional experience, (b) to receive a passing grade on an oral examination, and (c) to pass a background check. See id. ¶ 8. Shea alleged that he would have passed the screening process but was excluded from consideration for mid-level hiring solely on the basis of his race, as there was no certification of need. See Compl. ¶ 6. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, on an ongoing basis, in violation of his rights under Title VII. See id. Shea also alleged constitutional violations, but the Court dismissed that claim, and Shea did not appeal the dismissal, State Recons. P. & A. at 8 n. 5, so the Title VII claim is the only one before the Court. B. Procedural History The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that the statute of limitations had expired. See Sept. 30, 2003 Order [15]; Sept. 30, 2003 Mem. [16]. On appeal, the U.S. Court of Appeals for the D.C. Circuit re versed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time an employer pays an employee less than another for a discriminatory reason, that pay event is a discrete discriminatory event with its own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which brought the D.C. Circuit’s analysis into question, this Court granted State’s Motion for Summary Judgment. Nov. 21, 2008 Order [64]; Nov. 21, 2008 Mem. [63]. While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of the intervening change of law." }, { "docid": "1792359", "title": "", "text": "have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it. Id. (internal citations and quotations omitted). In Waterhouse, plaintiff failed to provide basic information about some of the individuals she identified for comparison, such as their job titles. Id. More importantly, because she did not provide any specifics about their alleged performance problems, it was impossible to make any meaningful comparisons. Id. The instant case is markedly different from Waterhouse. First, plaintiff is comparing himself to a relatively homogenous group of people. All of the white applicants identified by plaintiff were seeking the same position as a Special Agent, and all went through the same application process that he did. Second, plaintiff has provided enough specific details about the white applicants so that a meaningful comparison can be made. To the extent that defendant disagrees with plaintiffs inferences, this is a matter of fact for a jury. B. Statistical Disparities in Rejection Rates To demonstrate pretext, a plaintiff can also rely on evidence of statistical disparities. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1295 n. 11 (D.C.Cir.1998). Plaintiff relies on Dr. Thomas A. DiPrete, the same expert who testified at the Delgado trial. Dr. DiPrete calculated the proportion of African-American applicants deemed unsuitable and compared this to the rate for white applicants. (Pl.’s Opp’n, Exh. 55 at ¶ 6.) Dr. DiPrete found that 19.53% of African-American applicants were found unsuitable, while only 9.70% of white applicants were disqualified based on suitability. (Id.) According to Dr. DiPrete, this difference is statistically significant at over six standard deviations (id. at ¶ 7), which is much higher than the conventional threshold of two to three standard deviations. See Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1412 (D.C.Cir.1988) (internal citations omitted). Relying on Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C.Cir.1983), defendant suggests that such statistical evidence is only relevant to plaintiffs prima facie case. (Def.’s Reply 16.) While the D.C. Circuit did hold that such evidence may establish a prima" }, { "docid": "8205325", "title": "", "text": "40 decreased to 13.” Id.-, see also PL’s Opp’n, Ex.- 24, EOF No. 28-27. After “a simple average calculation,” Plaintiff testified that “the best conclusion [he] reached is that not a single person below the age of 40 has ever been terminated from CISA as a faculty member.” PL’s Steele Dep. at 97. ■ ■ Generally, statistical calculations can be used to demonstrate pretext. Jones, 565 F.Supp.2d at 78; Forman, 271 F.3d at 292. That does not mean, however, that evidence of statistical disparity is dis-positive in- the context of a summary judgment motion or that a court cannot evaluate the weight of the statistical evidence within its review of the evidence as a whole. Shea v. Kerry, 961 F.Supp.2d 17, 48 (D.D.C.2013), aff'd, 796 F.3d 42 (D.C.Cir.2015) (emphasizing the “rigorous, exacting analysis courts in this circuit have applied to-this kind of statistical evidence”); Burton, 153 F.Supp.3d at 68-69, 2015 WL 9907798, at *41 (finding a statistical report to be insufficient to show that any individual plaintiff was subject to disparate disciplinary action). Nor must a court permit clearly deficient statistical evidence to go to a jury. See Burton, 153 F.Supp.3d at 68-69, 2015 WL 9907798, at *41 (noting in the court’s discussion of statistical evidence that “to survive summary judgment, the plaintiffs must each point to competent record evidence” (emphasis added)). Here, several factors lead the court to conclude that the statistical evidence proffered by Plaintiff is not a useful indicator of discrimination. First, the statistics directly Compare employees above the age of 40 with employees under the age 40. As Defendant rightly contends, this is “the very type of analysis rejected by the Supreme Court.” Def.’s Reply, EOF No. 31, at 9. A simple comparison of the numbers of employees above 40 and below 40 does not provide any evidence regarding how employees were treated in comparison to one another, show differences in the treatment of employees' in the above-40 age group with those in the under-40 age group, or identify if there were significant age differences between employees who allegedly were treated differently from one another. See" }, { "docid": "8205326", "title": "", "text": "a court permit clearly deficient statistical evidence to go to a jury. See Burton, 153 F.Supp.3d at 68-69, 2015 WL 9907798, at *41 (noting in the court’s discussion of statistical evidence that “to survive summary judgment, the plaintiffs must each point to competent record evidence” (emphasis added)). Here, several factors lead the court to conclude that the statistical evidence proffered by Plaintiff is not a useful indicator of discrimination. First, the statistics directly Compare employees above the age of 40 with employees under the age 40. As Defendant rightly contends, this is “the very type of analysis rejected by the Supreme Court.” Def.’s Reply, EOF No. 31, at 9. A simple comparison of the numbers of employees above 40 and below 40 does not provide any evidence regarding how employees were treated in comparison to one another, show differences in the treatment of employees' in the above-40 age group with those in the under-40 age group, or identify if there were significant age differences between employees who allegedly were treated differently from one another. See O’Connor, 517 U.S. at 312, 116 S.Ct. 1307 (noting the lack of probative value in an ADEA .case that someone inside the protected class was replaced by someone outside the protected class). Absent such additional facts, the statistical evidence has little value. Second, “[t]he case law in this circuit overwhelmingly finds that this kind of [statistical] analysis requires proof as to its statistical significance.” Shea, 961 F.Supp.2d at 47. Plaintiff has provided no such proof. He calculated the statistics himself, but has not offered evidence that he has any sort of specialized skill or knowledge of statistics. Cf. Jones, 565 F.Supp.2d at 78 (using statistical evidence, calculated and provided by an expert, to establish pretext). Nor has he addressed if and how his statistical calculations account for issues such as retirement; the range of ages, experiences, and skills available in the hiring pool; employees who “aged out” of the under-40 group into the over-40 group; or changes in the administrative staff responsible for making employment decisions. Burton, 153 F.Supp.3d at 68-69, 2015 WL 9907798, at" }, { "docid": "6912235", "title": "", "text": "reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative action program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons, at 23-28. Arguably, the Court’s analysis of Shea’s Title VII claim might have ended here, as the summary judgment motion fails for the Title VII claim on this finding alone. But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerated. See Aug. 11, 2009 Mem. Order [69] at 9-11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary judgment motion would still fail on the unlawfulness element. Shea cannot show that any harm or" }, { "docid": "6912236", "title": "", "text": "for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative action program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons, at 23-28. Arguably, the Court’s analysis of Shea’s Title VII claim might have ended here, as the summary judgment motion fails for the Title VII claim on this finding alone. But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerated. See Aug. 11, 2009 Mem. Order [69] at 9-11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary judgment motion would still fail on the unlawfulness element. Shea cannot show that any harm or injustice would result from denial of reconsideration of these issues when he already conceded the point on the unlawfulness of the MLAAP. Therefore Shea’s first two issues for reconsideration will also be denied. D. Shea Has Not Shown that the Court Erred by Allowing State to File Responses to His Request for Admissions Out of Time Shea’s third issue for reconsideration concerns the Court’s decision to grant State’s motion for leave to file responses to Shea’s requests for admissions out of time. See Shea Mot. Recons, at 1; see generally Def.’s Mot. Leave to File [75]; Feb. 2, 2010 Order [78]. Shea argues that the Court misapplied the standard for withdrawing or amending an admission under Rule 36(b) of the Federal Rules of Civil Procedure. Shea Mot. Recons, at 19-23. Shea’s opposition to State’s motion only-objected to allowing State to respond to admission number 10. Pl.’s Opp. to Def.’s Rule 36(b) Mot. [76] at 1; Shea Mot. Recons. at 20. Admission number 10 stated: Plaintiff met the minimum objective qualifications to have applied to start" }, { "docid": "6912234", "title": "", "text": "strike Shea’s motion will be denied. C. Shea Has Not Met His Burden of Showing that Reconsideration of the Court’s Title VII Analysis is Warranted. Upon remand, the Court denied the parties’ cross-motions for summary judgment. Having addressed the issues State raised for reconsideration, the Court now turns to the issues that Shea has raised. Three of the four issues Shea posits (items numbered 1, 2, and 4) relate to the Court’s analysis of Shea’s Title VII claim: (1) that the Court placed the burden on Shea to establish the amount of damages to which he was entitled, (2) that the Court failed to give conclusive effect to certain requests for admissions, and (4) that the MLAAP must be presumed lawful until Shea demonstrates that it is not. See Shea Mot. Recons, at 1. Because a decision in Shea’s favor here would still not result in the Court granting summary judgment, Shea has not met his burden of demonstrating that harm or injustice would result from the denial of reconsideration of these three issues. In reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue" }, { "docid": "8239110", "title": "", "text": "circumstances presented in this record does not rise to the level necessary to support a hostile work environment claim.” Baloch, 550 F.3d at 1201. . On March 17, 2009, the plaintiff moved for reconsideration. That motion has been reviewed and will be denied. . See, McReynolds v. Sodexho Marriott Services, Inc., 349 F.Supp.2d 1 (D.D.C.2004) (discussing the use of statistics in disparate treatment cases and citing to various D.C. Circuit cases); Whitener v. England, 2006 WL 3755220 (D.D.C.2006) (\"It is well-settled that merely noting the composition of a workforce, without more, cannot sustain a discrimination action.”) (citing, Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) and Koger v. Reno, 98 F.3d 631, 639 (D.C.Cir.1996)); Horvath v. Thompson, 329 F.Supp.2d 1, 11 (D.D.C.2004) (\"[E]vidence that merely indicates an under-representation ... in the workforce does not itself establish pretext” and \"absent a showing of their significance, [such] numbers are simply irrelevant.”); cf., Thomas v. Chao, 65 Fed.Appx. 321, 324 (D.C.Cir.2003) (\"The District Court was correct to exclude from evidence the list of employees identified by race and sex, and witness' observations about the race and sex of employees, in the absence of an expert who could testify that the alleged underrepresentation was statistically significant.”). In any event, PMG's hiring practices are not at issue in this case. See, 45 C Am. Jur.2d Job Discrimination § 2410 (“statistics must pertain to the decision being challenged, and must be sufficient to raise the inference of disparate treatment discrimination with regard to the plaintiff's situation.”) (citing, Davis v. Califano, 613 F.2d 957 (D.C.Cir. 1979)). Even if the numbers were relevant, \"[i]n individual disparate treatment cases ... statistical evidence is less significant [than in pattern of practice cases] because the ultimate issue is whether the particular plaintiff was the victim of an illegitimately motivated employment decision.” Krodel v. Young, 748 F.2d 701, 710 (D.C.Cir. 1984). . Unless indicated, all of the other claims are for both race and sex discrimination, and for retaliation. . The plaintiff produced a document stating that she had called an EEOC" } ]

[ { "docid": "23213661", "title": "", "text": "specific jurisdiction depending on the quality and nature of the defendant’s contacts with the forum state in relation to the cause of action. Data Disc, 557 F.2d at 1287. We use a tripartite analysis in determining specific jurisdiction: (1) the nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Haisten, 784 F.2d at 1397; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-76, 105 S.Ct. 2174, 2181-84, 85 L.Ed.2d 528 (1985). The first step of the specific jurisdiction analysis involves a qualitative evaluation of the defendant’s contact with the forum state. Specifically, we look for “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). This purposeful availment requirement is the test for the fundamental determination of whether “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there.” World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567; see Haisten, 784 F.2d at 1397. The purposeful availment requirement is based on the presumption that it is not unreasonable to require a defendant who purposefully conducts business in a state, thereby using the benefits and protections of the forum state’s laws, “to submit to the burdens of litigation in that forum as well.” Burger King, 471 U.S. at 476, 105 S.Ct. at 2184. Jurisdiction may not be avoided by a lack of physical contact with the forum state. Indeed, the Supreme Court has upheld the assertion of jurisdiction over a defendant whose efforts were" } ]

[ { "docid": "22035271", "title": "", "text": "error. Adler v. Federal Rep. of Nig., 107 F.3d 720, 723 (9th Cir.1997). There is no applicable federal statute governing personal jurisdiction in this case. Accordingly, we apply the law of California, the state in which the district court sits. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1484 (9th Cir.1993). California’s long-arm statute permits a court to exercise personal jurisdiction over a defendant to the extent permitted by the Due Process Clause of the Constitution. Cal.Code Civ. P. § 410.10; Gordy v. Daily News, L.P., 95 F.3d 829, 831 (9th Cir.1996). The issue we address, therefore, is whether the requirements of due process are satisfied by the district court’s exercise of personal jurisdiction over Toeppen. Core-Vent, 11 F.3d at 1484. Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction. 1. General Jurisdiction General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are “substantial” or “continuous and systematic.” Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984). The district court correctly concluded that it did not have general jurisdiction over Toeppen. Toeppen is domiciled in Illinois and his activities in California are not substantial or continuous and systematic. See Toeppen, 938 F.Supp. at 620. 2. Specific Jurisdiction We apply a three-part test to determine if a district court may exercise specific jurisdiction: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant’s forum-related activities; and (3) exercise of jurisdiction must be reasonable. Omeluk v. Langsten Slip & Batbyggeri AJS, 52 F.3d 267, 270 (9th Cir.1995) (quotation omitted). The first of these requirements is purposeful availment. a. Purposeful Availment The purposeful availment requirement ensures that a nonresident defendant will not be haled into court based upon “random, fortuitous or attenuated” contacts with" }, { "docid": "1955260", "title": "", "text": "BRUNETTI, Circuit Judge: Plaintiff-Appellant Elaine Caruth filed a complaint against the International Psychoanalytic Association (IPA), alleging that IPA’s decision to deny her membership and training analyst status was based on age discrimination. On July 6, 1993, IPA removed the case to the United States District Court and filed a motion to dismiss for lack of personal jurisdiction, which was granted by the district court. Caruth timely appeals. We have jurisdiction and reverse. I. As a court sitting in diversity, the district court could exercise in personam jurisdiction over IPA pursuant to California’s long-arm statute, Cal.Civ.Proc.Code § 410.10. See Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 1065 (9th Cir.1990). Section 410.10 provides for personal jurisdiction “on any basis not inconsistent with the Constitution of this state or of the United States.” Id. Jurisdiction in this ease is therefore constrained only by constitutional due process requirements. Those requirements are satisfied here. “A court may exercise either general or specific jurisdiction over a nonresident defendant.” Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.1990). Specific jurisdiction, the type at issue here, is appropriate when the following requirements are met: “(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir.1993) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). Since the district court resolved Appellee’s motion to dismiss without an evidentiary hearing, relying only on the pleadings and affidavits, we only inquire into whether Caruth’s pleadings and affidavits make a prima facie showing of personal jurisdiction. See Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). The facts alleged in Caruth’s" }, { "docid": "8020197", "title": "", "text": "has “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be “present” in that forum for all purposes, a forum may exercise only “specific” jurisdiction — that is, jurisdiction based on the relationship between the defendant’s forum contacts and plaintiffs claims. The parties agree that general jurisdiction does not exist here; only specific jurisdiction is at issue. We analyze specific jurisdiction according to a three-prong test: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state.” Id. (internal citation omitted). On the other hand, if the plaintiff succeeds in satisfying both of the first two prongs, “the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). We next elaborate on the three prongs of our personal jurisdiction analysis: (1) purposeful availment and direction; (2) forum-related conduct; and (3) reasonableness. 1. Purposeful Availment" }, { "docid": "22993465", "title": "", "text": "this appeal, Core-Vent’s allegations must be accepted as true. Fields v. Sedgwick Associated Risks, 796 F.2d 299, 301 (9th Cir.1986) (Fields). The issue, then, is whether a federal district court may exercise jurisdiction over foreign defendants, who intentionally publish defamatory articles about a forum resident in the forum. Core-Vent bears the burden of establishing that jurisdiction over the Swedish doctors would be proper. Data Disc, Inc. v. Systems Technology Assocs., 557 F.2d 1280, 1285 (9th Cir.1977). However, because the district court relied only upon the parties’ written submissions, Core-Vent need only make a prima facie showing of jurisdiction. Id. We review the holding of the district court on this issue de novo. Fields, 796 F.2d at 301. Judge O’Scannlain’s analysis leads him to conclude that jurisdiction is absent and would affirm the district court. Judge Fernandez writes separately, agreeing with me that there was purposeful availment, but voting that there is a lack of jurisdiction and, in effect, joining in the result of Judge O’Scann-lain’s opinion on reasonableness, stating his own reasons for his position. I take a third position, and write to demonstrate the failure of the Swedish doctors to meet their burden of proof to overcome Core-Vent’s prima facie showing of jurisdiction. As Judge O’Scannlain states, we use' the following test to determine whether specific jurisdiction over a nonresident defendant is proper: (1) the nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Although Judge O’Scannlain has correctly stated the jurisdictional test, I disagree with his application. I therefore turn to my analysis of the three factors described in Lake. I The leading case dealing with purposeful" }, { "docid": "22801589", "title": "", "text": "appeal; we consider only whether the district court properly exercised specific jurisdiction over RII. A three-part test dictates whether specific jurisdiction can be exercised over the defendant: (1) RII must have performed some act or consummated some transaction with the forum by which it purposefully availed itself of the privilege of conducting business in Nevada; (2) RIO’s claims must arise out of or result from RII’s forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Haisten v. Grass Valley Med. Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir.1986). A. Purposeful Availment The purposeful availment requirement ensures that a non-resident defendant will not be haled into court based upon random, fortuitous, or attenuated contacts with the forum state. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174. A non-resident defendant purposefully avails itself of the forum if its contacts with the forum are attributable to (1) intentional acts; (2) expressly aimed at the forum; (3) causing harm, the brunt of which is suffered—and which the defendant knows is likely to be suffered—in the forum. See Calder v. Jones, 465 U.S. 783, 788-89, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (establishing an “effects doctrine” for intentional action aimed at the forum); Core Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485-86 (9th Cir.1993). In Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir.1997), we considered the exercise of specific jurisdiction over a website advertiser. The website advertiser had done nothing other than register a domain name and post an essentially passive website. Certainly, it had done nothing to encourage residents of the forum state to access its site. See id. at 419. We held that these acts were insufficient to confer jurisdiction over a nonresident defendant. The objectionable webpage “simply was not aimed intentionally at[the forum state] knowing that harm was likely to be caused there.” Id. at 420. Under the effects doctrine, “something more” was required to indicate that the defendant purposefully directed its activity in a substantial way" }, { "docid": "10229556", "title": "", "text": "“traditional notions of fair play and substantial justice.” Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1485 (9th Cir.1993) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). There are two types of personal jurisdiction that a court may exercise over a nonresident defendant. A court may exercise “general jurisdiction” over a nonresident defendant, even if “the cause of action does not arise out of or relate to the [nonresident defendant’s] activities in the forum State,” when the nonresident defendant’s activities within the state are “substantial” or “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-15, 415 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984); see also Pacific Atlantic Trading, 758 F.2d at 1327; Data Disc, 557 F.2d at 1287. It is evident in this case that Fox Five does not conduct substantial or continuous and systematic activities in the State of Nevada. Plaintiffs’ complaint does not allege facts showing that the defendant’s activities in the forum state even approach those of the defendant in Helicópteros, supra, which were held to be insufficient to confer general jurisdiction. Therefore, this court must determine whether the defendant has “minimum contacts” with the forum of Nevada sufficient to subject it to “specific jurisdiction.” Core-Vent, 11 F.3d at 1485. Specific jurisdiction, which is sometimes referred to as limited jurisdiction, may lie even when a nonresident defendant’s activities are not so pervasive as to subject him to general jurisdiction. Data Disc, 557 F.2d at 1287. However, “the issue of whether [specific] jurisdiction will lie turns on an evaluation of the nature and quality of the defendant’s contacts in relation to the cause of action.” Id. (emphasis added). The Ninth Circuit analyzes whether a nonresident defendant has sufficient “minimum contacts” with the forum state by applying the following three-prong test: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the" }, { "docid": "1955261", "title": "", "text": "the type at issue here, is appropriate when the following requirements are met: “(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir.1993) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). Since the district court resolved Appellee’s motion to dismiss without an evidentiary hearing, relying only on the pleadings and affidavits, we only inquire into whether Caruth’s pleadings and affidavits make a prima facie showing of personal jurisdiction. See Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). The facts alleged in Caruth’s complaint sound in tort. The purposeful availment prong is therefore analyzed under the “effects” test: Has Caruth alleged that IPA committed “(1) intentional actions (2) expressly aimed at [California] (3) causing harm, the brunt of which is suffered — and which [IPA knew was] likely to be suffered— in [California?]” Core-Vent, 11 F.3d at 1486. Caruth satisfied the first element by alleging that IPA intentionally denied her membership and IPA training analyst status based-on age bias; that IPA’s decision was directed at a California resident and was facilitated by site visits in California; and that IPA knew that any harm allegedly suffered from its decision would be suffered by Caruth, a California resident, in California. Caruth has sufficiently alleged that IPA purposefully availed itself of the benefits and protections of the forum state and Caruth’s claims arise out of IPA’s forum-related activities. II. Having concluded that IPA had sufficient contacts with California in relation to Caruth’s cause of action, we now turn to the question of whether the exercise of jurisdiction would be reasonable. See" }, { "docid": "11211680", "title": "", "text": "1280, 1285 (9th Cir.1977). The court will construe the facts in the light most favorable to CalFed and resolve all doubts in its favor. Pacific Atlantic, 758 F.2d at 1827. For a California district court sitting in diversity, jurisdiction must comport with the constitutional requirement of due process and with California’s long-arm statute, Cal. Code Civ.P. § 410.10. Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir.1993) (“California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution”); Vibration Isolation Prods., Inc. v. American National Rubber Co., 23 Cal.App.3d 480, 100 Cal.Rptr. 269, 271 (Ct.App.1972). We need only determine whether personal jurisdiction would meet the requirements of due process because the state and federal limits to jurisdiction are coextensive. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir.1995); Core-Vent Corp., 11 F.3d at 1484. The due process clause prohibits the exercise of jurisdiction over nonresident defendants unless those defendants have “minimum contacts” with the forum state so that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the nonresident defendant has not had “continuous and systematic” or “substantial” contacts with the state sufficient to subject it to general jurisdiction, the court may exercise specific or limited jurisdiction if the specific cause of action arises out of a defendant’s more limited contacts with the state. Richard Roth v. Gabriel Garcia Marquez, 942 F.2d 617, 620 (9th Cir.1991) (citing Data Disc, 557 F.2d at 1287). Here, CalFed alleges that California has limited jurisdiction over KPMG. Therefore, CalFed must satisfy the following three-part test to show that KPMG has sufficient “minimum contacts” with the forum: (1) the nonresident defendant purposefully directed his activities or consummated some transaction with the forum or residents thereof, or performed some act by which he purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking the protection" }, { "docid": "3665277", "title": "", "text": "of those contacts, there are two forms that personal jurisdiction may take: general and specific. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir.2008). Picot does not contend that Weston is subject to general jurisdiction in California; instead, he argues that specific jurisdiction exists. When a plaintiff relies on specific jurisdiction, he must establish that jurisdiction is proper for “each claim asserted against a defendant.” Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir.2004). If personal jurisdiction exists over one claim, but not others, the district court may exercise pendent personal jurisdiction over any remaining claims that arise out of the same “common nucleus of operative facts” as the claim for which jurisdiction exists. Id. at 1181. We employ a three-part test to assess whether a defendant has sufficient contacts with the forum state to be subject to specific personal jurisdiction: (1) The .non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger, 374 F.3d at 802. The plaintiff has the burden of proving the first two prongs. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir.2011). If he does so, the burden shifts to the defendant to “set forth a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). The exact form of our jurisdictional inquiry depends on the nature of the claim at issue. For claims sounding in contract, we generally apply a “purposeful availment” analysis and ask whether a defendant has “purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and" }, { "docid": "13425171", "title": "", "text": "de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). We apply the long-arm statute of the state in which the district court sits in this diversity case where no federal statute governing personal jurisdiction is applicable. See Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir.1993), citing Hylwa, M.D., Inc. v. Palka, 823 F.2d 310, 312 (9th Cir.1987). California’s long-arm statute allows -the exercise of pérsonal jurisdiction over defendants to the fullest extent permitted by due process. Core-Vent Corp., 11 F.3d at 1484, citing Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir.1977). “[D]ue process requires only that ... [the person] have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Loral argues that the district court can exercise “specific” or “limited” personal jurisdiction over Citizens because the “cause of action arises out of or is related to the defendant’s forum activities.... ” Hirsch v. Blue Cross, Blue Shield, 800 F.2d 1474, 1477 (9th Cir.1986). In order to determine whether the exercise of specific jurisdiction comports with due process, we apply the following three part test: (1) The defendant must have done some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must arise out of the defendant’s forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir.1990) (citations omitted), rev’d on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). We find.that Citizens did not purposely avail itself of the privilege of conducting activities in California. The purposeful availment standard requires more than foreseeability of causing injury in another state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). Rather, “the foreseeability that is" }, { "docid": "10229557", "title": "", "text": "forum state even approach those of the defendant in Helicópteros, supra, which were held to be insufficient to confer general jurisdiction. Therefore, this court must determine whether the defendant has “minimum contacts” with the forum of Nevada sufficient to subject it to “specific jurisdiction.” Core-Vent, 11 F.3d at 1485. Specific jurisdiction, which is sometimes referred to as limited jurisdiction, may lie even when a nonresident defendant’s activities are not so pervasive as to subject him to general jurisdiction. Data Disc, 557 F.2d at 1287. However, “the issue of whether [specific] jurisdiction will lie turns on an evaluation of the nature and quality of the defendant’s contacts in relation to the cause of action.” Id. (emphasis added). The Ninth Circuit analyzes whether a nonresident defendant has sufficient “minimum contacts” with the forum state by applying the following three-prong test: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant’s forum-related activities. (3) Exercise of jurisdiction must be rear sonable. Core-Vent, 11 F.3d at 1485 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)) (emphasis added); see also Data Disc, 557 F.2d at 1287 (citations omitted). The seminal ease for contested personal Jurisdiction in products liability actions is the U.S. Supreme Court’s decision in World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In World-Wide Volkswagen, the issue was whether “an Oklahoma court [could] exercise in personam, jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants’ only connection with Oklahoma [was] the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma.” Id. at 287, 100 S.Ct. at 562. The holding in that case has been widely cited for the proposition that “[t]he forum State does not exceed its" }, { "docid": "22993439", "title": "", "text": "158, 90 L.Ed. 95 (1945) (citations omitted). Where the defendant has not had continuous and systematic contacts with the state sufficient to subject him or her to general jurisdiction, the following three-part test is applied to determine whether the defendant has “minimum contacts” with the forum: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Here, Core-Vent claims that the Swedish doctors purposefully directed their activities into California by publishing or causing to be published libelous articles about Core-Vent’s products in international medical journals. The libel claims clearly “arose out” of the publication of the articles; we thus need consider only the first and third elements of the minimum contacts test. A “The first step of the specific jurisdiction analysis involves a qualitative evaluation of the defendant’s contact with the forum state,” Lake, 817 F.2d at 1421, in order to determine whether the “defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Fulfilling this step is not necessarily precluded by a lack of physical contacts with the forum. Rather, “within the rubric of ‘purposeful availment’ the [Supreme] Court has allowed the exercise of jurisdiction over a defendant whose only ‘contact’ with the forum state is the ‘purposeful direction’ of a foreign act having effect in the forum state.” Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir.1986) (citing Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984)). Core-Vent claims" }, { "docid": "11211681", "title": "", "text": "forum state so that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the nonresident defendant has not had “continuous and systematic” or “substantial” contacts with the state sufficient to subject it to general jurisdiction, the court may exercise specific or limited jurisdiction if the specific cause of action arises out of a defendant’s more limited contacts with the state. Richard Roth v. Gabriel Garcia Marquez, 942 F.2d 617, 620 (9th Cir.1991) (citing Data Disc, 557 F.2d at 1287). Here, CalFed alleges that California has limited jurisdiction over KPMG. Therefore, CalFed must satisfy the following three-part test to show that KPMG has sufficient “minimum contacts” with the forum: (1) the nonresident defendant purposefully directed his activities or consummated some transaction with the forum or residents thereof, or performed some act by which he purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking the protection of its law; (2) the claim arises out of or is related to the defendant’s forum-related activities; and (3) the exercise of jurisdiction comports with fair play and substantial justice, i.e., it is reasonable. Id. at 620-21; Lake v. Lake, 817 F.2d 1416, 1420-21 (9th Cir.1987). 1. Purposeful Availment The first prong of the test, purposeful availment, requires that the defendant engage in some act purposefully to avail himself of the benefits and protection of the forum state to ensure that a person is not haled into court as the result of random, fortuitous, or attenuated contacts or on account of the unilateral activities of third parties. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (citations and internal quotations omitted). Thus the court’s inquiry is whether the defendant’s contacts with the forum are attributable to his actions or are solely the actions of the plaintiff; the defendant must have performed some type of affirmative conduct which allows or promotes the transaction of business with the forum" }, { "docid": "7636004", "title": "", "text": "154). C. Minimum Contacts In determining whether a defendant had minimum contacts with the forum state such that the exercise of jurisdiction over the defendant would not offend the Due Process Clause, courts focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Depending on the nature and extent of the defendant’s contacts with the forum state, the court may exercise either general or specific jurisdiction over the defendant. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-15 nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Ziegler v. Indian River County, 64 F.3d at 473 (internal citation omitted). Plaintiff does not allege that Fayazi and Merkwan are subject to general jurisdiction. Therefore, the discussion will be confined to whether the Court can assert specific jurisdiction over them. In determining whether a defendant has had contacts with the forum state sufficient to subject himself to the Court’s specific jurisdiction, the Ninth Circuit applies the following three part test: (1) The nonresident defendant must purposely direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Core-Vent, 11 F.3d at 1485 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)) (emphasis added); see Burger King, 471 U.S. at 472-76, 105 S.Ct. 2174. 1. Purposeful Availment In analyzing the “purposeful availment” requirement of the specific jurisdiction test, the Ninth Circuit performs a qualitative evaluation of the defendant’s contact with the forum state to determine whether the “ ‘defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’” Core-Vent, 11 F.3d at 1484 (quoting World-Wide Volkswagen Corp. v." }, { "docid": "7636005", "title": "", "text": "test: (1) The nonresident defendant must purposely direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Core-Vent, 11 F.3d at 1485 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)) (emphasis added); see Burger King, 471 U.S. at 472-76, 105 S.Ct. 2174. 1. Purposeful Availment In analyzing the “purposeful availment” requirement of the specific jurisdiction test, the Ninth Circuit performs a qualitative evaluation of the defendant’s contact with the forum state to determine whether the “ ‘defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’” Core-Vent, 11 F.3d at 1484 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). This requirement may also be met when the defendant has purposefully directed his activities or consummated some transaction with the forum or residents thereof. Brainerd v. Governors of the University of Alberta, 873 F.2d 1257, 1259 (9th Cir.1989) (citing Lake, 817 F.2d at 1421). Fayazi and Merkwan drafted and participated in sending the letters to Plaintiff and members of the class in Arizona. (Def.’s First Supplemental Answers to Pl.[’s] Interrogs. attached to Pl.[’s] Reply as App. A.) The letter invited the recipient to establish a credit card account with. First Credit, promoting the transaction of business in the forum state by purportedly extending credit to debtors for the purpose of paying off their outstanding debts. The Court concludes that, by purposefully directing the letter to residents of Arizona, Fayazi and Merkwan fulfilled the purposeful availment element. 2. Arising Out of Forum-Related Activities The Ninth Circuit has adopted a “but for” test for determining whether a plaintiffs claim arises out of a defendant’s forum" }, { "docid": "22899215", "title": "", "text": "141 F.3d 1316, 1320 (9th Cir.1998). California’s long-arm statute is co-extensive with federal standards, so a federal court may exercise personal jurisdiction if doing so comports with federal constitutional due process. Id. at 1320. “For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend traditional no tions of fair play and substantial justice.’ ” Schwarzenegger, 374 F.3d at 801 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). There are two forms of personal jurisdiction that a forum state may exercise over a nonresident defendant — general jurisdiction and specific jurisdiction. We deal here only with the latter. A. The district court correctly dismissed Boschetto’s complaint for lack of personal jurisdiction. We apply a three-part test to determine whether the exercise of specific jurisdiction over a nonresident defendant is appropriate: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Id. at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). The plaintiff bears the burden on'the first two prongs. Id. If the plaintiff establishes both prongs one and two, the defendant must come forward with a “compelling case” that the exercise of jurisdiction would not be reasonable. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). But if the plaintiff fails at the first step, the jurisdictional inquiry ends and the case must be dismissed. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006) (“[Plaintiffs] arguments fail under the first prong." }, { "docid": "11038963", "title": "", "text": "court did not hear testimony or make findings of fact. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 268 (9th Cir.1995). We review de novo. Id. at 269. There are two types of personal jurisdiction: general and specific. Reebok Int’l Ltd. v. McLaughlin, 49 F.3d 1387, 1391 (9th Cir.1995). General jurisdiction exists if the nonresident’s contacts with the forum are continuous and systematic, and the exercise of jurisdiction satisfies “traditional notions of fair play and substantial justice.” Id. Ziegler does not contend that the district court had general jurisdiction; only specific jurisdiction is at issue. An exercise of specific “[j]urisdiction must comport with the state long-arm statute, and with the constitutional requirement of due process.” Omeluk, 52 F.3d at 269. California’s long-arm statute extends jurisdiction to the limits imposed by the Due Process Clause. Cal.Code Civ.P. § 410.10; see also Terracom v. Valley Nat’l Bank, 49 F.3d 555, 559 (9th Cir.1995). Consequently, the question is whether exercising jurisdiction over defendants would offend due process. Ziegler was required to show that: (1) defendants purposefully availed themselves of the privilege of conducting activities in California, thereby invoking the benefits and protections of its laws; (2) his claims arise out of defendants’ California-related activities; and (3) the exercise of jurisdiction would be reasonable. Terracom, 49 F.3d at 560. A. Purposeful Availment The purposeful availment requirement ensures that defendants will not be “haled into a jurisdiction through ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.’ ” Terracom, 49 F.3d at 560 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)). Although there is some disagreement on the issue, we apply different purposeful availment tests to contract and tort cases. See Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1486 (9th Cir.1993); Roth v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir.1991). But see Core-Vent, 11 F.3d at 1493 (Wallace, C.J., dissenting). Consistent with the Supreme Court’s holding in Burger King, merely contracting with a resident of the forum state is insufficient to confer specific jurisdiction over a nonresident. Roth, 942 F.2d at 621. In tort" }, { "docid": "22993438", "title": "", "text": "federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. See Hylwa, M.D., Inc. v. Palka, 823 F.2d 310, 312 (9th Cir.1987). This case was brought in the Central District of California; California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution. Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir.1977). Thus, we “need only determine whether personal jurisdiction in this case would meet the requirements of due process.” Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir.1989). “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the defendant has not had continuous and systematic contacts with the state sufficient to subject him or her to general jurisdiction, the following three-part test is applied to determine whether the defendant has “minimum contacts” with the forum: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Here, Core-Vent claims that the Swedish doctors purposefully directed their activities into California by publishing or causing to be published libelous articles about Core-Vent’s products in international medical journals. The libel claims clearly “arose out” of the" }, { "docid": "23137660", "title": "", "text": "For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least “minimum contacts” with the relevant forum such that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citation omitted). Even if a defendant has not had continuous and systematic contacts with the state sufficient to confer “general jurisdiction,” a court may exercise “specific jurisdiction” when the following requirements are met: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Caruth, 59 F.3d at 127 (quoting Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir.1993)) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)) (quotation marks omitted) (emphasis added). We analyze these three requirements in turn. A. Purposeful Direction or Availment Under our precedents, the purposeful direction or availment requirement for specific jurisdiction is analyzed in intentional tort cases under the “effects” test derived from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Colder, the Supreme Court determined that California courts could exercise jurisdiction over an editor and a reporter who caused a defamatory article about a California resident to be published in Florida and circulated in California, on the ground that the tortious conduct was “expressly aimed” at the forum state in which harm occurred. See id. at 788-89, 104 S.Ct. 1482. As we have previously recognized, Colder stands for the proposition that purposeful availment is satisfied even by a defendant “whose only ‘contact’ with the forum state is the ‘purposeful direction’ of" }, { "docid": "22993466", "title": "", "text": "I take a third position, and write to demonstrate the failure of the Swedish doctors to meet their burden of proof to overcome Core-Vent’s prima facie showing of jurisdiction. As Judge O’Scannlain states, we use' the following test to determine whether specific jurisdiction over a nonresident defendant is proper: (1) the nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Although Judge O’Scannlain has correctly stated the jurisdictional test, I disagree with his application. I therefore turn to my analysis of the three factors described in Lake. I The leading case dealing with purposeful direction is Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (Colder). There, the Supreme Court determined that California courts could exercise jurisdiction over an editor and a reporter who caused a defamatory article to be published in Florida and circulated in California because the tor-tious conduct was “expressly aimed” at the forum state. As we have previously recognized, Colder stands for the proposition that purposeful availment is satisfied even by a defendant “whose only ‘contact’ with the forum state is the ‘purposeful direction’ of a foreign act having effect in the forum state.” Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir.1986) (Haisten). Nevertheless, Judge O’Scannlain reads Colder narrowly. His opinion seems to argue that but for the fact that “defendants knew that the. brunt of the harm would be suffered in California,” op. at 1486, jurisdiction would not have been found. In Colder, the fact that the author and editor knew the brunt of the harm from their article would be suffered in California was" } ]

[ { "docid": "22129975", "title": "", "text": "Code: “After a finding of guilt in such a criminal proceed-' ing as the instant case, in which neither imprisonment in a jail or penitentiary nor a fine is imposed, is an order by the district court, that the convicted man ‘be placed on probation for the period of five (5) years’ a final decision reviewable on appeal by this circuit court of appeals?” The federal probation law authorizes a district judge “after conviction or after a plea of guilty or nolo contendere ... to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms” as seem wise. 18 U. S. C. § 724. In Berman v. United States, 302 U. S. 211, we held that when a court had imposed a sentence and then suspended its execution, the judgment was final and would support an appeal. The question here is whether the judgment is equally final when the imposition of sentence itself is suspended and the defendant subjected to probation. The government concedes that this question should be answered in the affirmative. It has often been said that there can be no “final judgment” in a criminal case prior to actual sentence, Miller v. Aderhold, 288 U. S. 206, 210; Hill v. Wampler, 298 U. S. 460, 464, and this proposition was restated in Berman v. United States, 302 U. S. 211, 212. In applying this general principle to a situation like that of the instant case, the Second and Fourth Circuit Courts of Appeals have concluded that they lacked jurisdiction to hear an appeal from an order placing a defendant on probation without first imposing sentence. United States v. Lecato, 29 F. 2d 694, 695; Birnbaum v. United States, 107 F. 2d 885. The Fifth Circuit appears to take the opposite view. Nix v. United States, 131 F. 2d 857. The “sentence is judgment” phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. Thus" } ]

[ { "docid": "22824890", "title": "", "text": "its terms.”), cert. denied, —U.S.-, 133 S.Ct. 298, 184 L.Ed.2d 176 (2012); cf. Baty, 980 F.2d at 978-79 (holding that inadequate explanation of waiver-of-appeal provision specifically questioned by defendant rendered the waiver invalid); United States v. Robinson, 187 F.3d 516, 518 (5th Cir.1999) (\"It is clear from the plea colloquy that the district court did not ask Robinson whether he had read the written plea agreement and understood it.”). . Although Higgins argues that the government has failed to object to his appeal regarding the conditions of SR on appeal and that, as a result, they have waived the appeal waiver, United States v. Story, 439 F.3d 226, 231 (5th Cir.2006), we do not agree. The government has adequately invoked the waiver on appeal. . “[T]he defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any ap peal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255.” (emphasis added). . See United States v. Benbrook, 119 F.3d 338, 341 n. 10 (5th Cir.1997); 18 U.S.C. § 3583(a) (\"The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of [SR] after imprisonment.” (emphasis added)). . \"A defendant may file a notice of appeal in the district court for review of another wise final sentence if the sentence ... is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or [SR] than the maximum established in the guideline range, or includes a more limiting condition of probation or [SR] under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range.” 18 U.S.C. § 3742(a) (emphasis added). . The main reason that the oral pronouncement of sentence prevails" }, { "docid": "19346633", "title": "", "text": "319 U.S. 432, 434, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943) (holding that direct appeal can be taken following imposition of probation without a formal sentence because probation subjects a defendant to judicial control). It is not intended to deny review to defendants who have not received a “final” sentence but nonetheless are subjected to judicial control for a criminal conviction, as when imposition of sentence is suspended and the defendant is placed on probation. Id. (“[Cjertainly when discipline has been imposed, the defendant is entitled to review.”). The imposition of discipline subjecting the defendant to the orders of the court makes a conviction final for purposes of appeal. Id. The Supreme Court has held in a different context that a provisional sentence can be considered final for purposes of appeal. In Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), the Court considered a now-repealed statute similar to § 4244. The statute permitted a district court to commit a defendant to the custody of the Attorney General for three to six months of observation before imposing a sentence. Id. at 172, 84 S.Ct. 298. During that time, the defendant was provisionally sentenced to the maximum for his offense, and that sentence could be adopted or revised at the end of the commitment. The Court concluded that the provisional sentence was “clearly not lacking in sufficient ‘finality’ to support an immediate appeal” because it was imposed after conviction and placed the defendant in custody. Id. at 173-74, 84 S.Ct. 298. The Court cautioned that a contrary result “might raise constitutional problems of significant proportions.” Id. Relying upon Corey, the only circuit court to address the question of jurisdiction over an appeal following a § 4244 provisional sentence concluded that jurisdiction exists. See United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir.1996). In Abou-Kassem, the Fifth Circuit held that a defendant provisionally sentenced under the procedures established in § 4244 has been convicted of the underlying crime and committed to custody, thereby making the provisional sentence sufficiently final for purposes of appeal. Id. at 167-68." }, { "docid": "23446013", "title": "", "text": "TROTT, Circuit Judge: Appellant Jeffrey Littlejohn appeals his conviction and sentence for distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). Littlejohn pled guilty pursuant to a plea agreement with the government, under which twelve counts of a thirteen-count indictment were dismissed in exchange for the plea. Littlejohn argues that both his acceptance of the plea agreement and his actual plea were involuntary. He also contends that the district court failed sufficiently to state on the record the reasons for choosing the sentence it imposed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Although we conclude that the district court was required to warn Littlejohn that by pleading guilty he would suffer ineligibility for certain food stamp and social security benefits under 21 U.S.C. § 862a, we AFFIRM Littlejohn’s conviction and DISMISS his appeal from the sentence imposed by the district court. We note that the importance of this ease is that we identify a new consequence of certain convictions that must be included in the information imparted to a defendant pleading guilty to specified felony offenses in order to render that plea knowing and voluntary. BACKGROUND Littlejohn entered into a favorable plea agreement that allowed him to plead guilty to one count of cocaine base distribution in exchange for, among other things, the government’s agreement to stipulate to, and recommend, that Littlejohn receive a 240-month sentence instead of the possibility of life in prison. In addition, the plea agreement provided for a mutual waiver of appeal as to the sentence imposed. In his waiver, Littlejohn specifically “[gave] up the right to appeal any sentence imposed, and the manner in which the sentence is determined, provided that [he] is sentenced within the statutory maximum and his term of imprisonment is 240 months or less.” Littlejohn signed a statement indicating that he voluntarily agreed to the terms of the plea agreement and that his attorney had advised him “of the consequences of entering into this agreement.” Little-john’s attorney also signed a statement providing that she had “fully advised [Litt-lejohn] of his rights, of" }, { "docid": "13638189", "title": "", "text": "not prevail here — as he will not — there is the same finality that exists in an appeal after sentence of conviction rendered upon a jury verdict. This court not only has the power to review an appeal after sentence of conviction, we have the duty to review it as a 'final order, 28 U.S.C. § 1291. Present federal law has made an appeal from a District Court’s judgment of conviction in a criminal case what is, in effect, a matter of right. That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise of its discretion to allow him to bring the ease before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as-time limitations within which various procedural steps must be completed. Coppedge v. United States, 369 U.S. 438, 441-42, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962) (footnote omitted). See also Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 299 (1963); Pollard v. United States, 352 U.S. 354, 359, 77 S.Ct. 481, L.Ed.2d 393 (1957); Berman v. New York, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937). Admittedly, the range of questions open for consideration on the merits in a direct appeal from a sentence entered on a guilty plea is somewhat restricted; United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); but the power to hear these appeals and the extent of relief which can be granted are two very different things. We have the power to hear the merits of this appeal from a final order of sentence; we do not distinguish our power to review issues preserved at trial from our power to review issues preserved at the reception of a guilty plea. B. The government’s related argument is that the district" }, { "docid": "10001493", "title": "", "text": "we look to Federal Rule of Appellate Procedure 4(b), see supra n. 1. This rule begins with the command: “In a criminal case, the notice of appeal by a defendant shall be filed in the district court within ten days after the entry of the judgment or order appealed from.” It has long been established that “[fjinal judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937). Therefore, the judgment of sentence is the point from which the ten-day time limitation of Rule 4(b) begins to run. Hashagen, however, filed his appeal three days before his sentence was formally entered and thus technically before “entry of the judgment or order appealed from.” Therefore, the issue presented by Hashagen’s appeal concerns the effect of a filing that is three days premature. The second sentence of Rule 4(b) may be construed as addressing this situation. It provides that “[a] notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof.” The Mathews panel found that the second sentence of Rule 4(b) did not support jurisdiction over an appeal filed prematurely. In Mathews, the defendant filed a notice of appeal from a judgment of conviction and denial of post-trial motions five days before sentence was entered. The panel refused to base jurisdiction on that appeal, finding it “premature because ‘[a]n appeal may not be taken until the pronouncement of sentence____’” 462 F.2d at 183 (quoting Corey v. United States, 375 U.S. 169, 172, 84 S.Ct. 298, 301, 11 L.Ed.2d 229 (1963)). It noted the rule’s second sentence but found that it operated only to save a premature appeal where the notice of appeal is filed after the sentence is imposed but before the judgment is formally entered. Id. at 184 n. 2. The Mathews panel’s reading of Rule 4(b) is a plausible one. At least equally as plausible, however, is a reading" }, { "docid": "22671390", "title": "", "text": "subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (describing subject matter jurisdiction as “the courts’ statutory or constitutional power to adjudicate the case”). Assuming for purposes of this jurisdictional discussion that the appellate waiver is enforceable, we disagree with the government and hold that we have subject matter jurisdiction to hear this appeal. 1. Statutory Subject Matter Jurisdiction We read Mr. Hahn’s briefs to argue that the district court’s failure to consider a concurrent sentence constitutes a sentence imposed in violation of law. The government, therefore, contends that we lack statutory subject matter jurisdiction over this appeal because it could only arise under 18 U.S.C. § 3742(a)(1), which in the government’s view does not apply in this case because the sentence was not imposed in violation of law. See 18 U.S.C. § 3742(a)(1) (“A defendant may file a notice of appeal ... if the sentence ... was imposed in violation of law”). We disagree. The government’s argument ignores the fact that the district court’s entry of a sentence constitutes a final order, thereby establishing subject matter jurisdiction under 28 U.S.C. § 1291. See 28 U.S.C. § 1291 (providing that courts of appeals have subject matter jurisdiction over final orders of district courts). It is beyond dispute that a conviction and imposition of a sentence constitute a final judgment for § 1291 purposes. Corey v. United States, 375 U.S. 169, 174, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (“Final judgment in a criminal case ... means sentence. The sentence is the judgment.”) (internal quotations omitted); United States v. Moskow, 588 F.2d 882, 889 (3d Cir.1978) (“A judgment of sentence is a final order whether the sentence is imposed after a jury verdict or after the entry of a guilty plea.”). We regularly take subject matter jurisdiction pursuant to both § 3742(a) and § 1291 over cases in which a defendant, after entering into a plea agreement, seeks to challenge only the sentence imposed by the district court. This practice is not unique to our Court. We" }, { "docid": "15429979", "title": "", "text": "U.S.C. § 3552(b) to a provisional sentence of five years of imprisonment and ordered committed to the Bureau of Prisons for further mental and physical examination. As required under § 3552(b) this study was limited to sixty days; after its completion appellant was to return to the district court for further proceedings and imposition of a final sentence. Because appellant has not yet received a final sentence under § 3552(b), it has been suggested that this court does not have jurisdiction over this appeal. See 28 U.S.C. § 1291 (1990). We disagree. In Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), the Supreme Court addressed the issue of appellate jurisdiction over cases in which a defendant had been sentenced pursuant to former 18 U.S.C. § 4208(b), the predecessor statute to § 3552(b). Section 4208(b), like § 3552(b), utilized a two-step sentencing procedure. The Court held that an appeal could be taken after the first sentence had been imposed by that statute and the defendant had been ordered committed to the Bureau of Prisons for study. The Court emphasized that at this stage of the proceedings “[t]he litigation is complete as to the fundamental matter at issue — ‘the right to convict the accused of the crime charged in the indictment’ ” and that a sentence had been imposed. 375 U.S. at 174, 84 S.Ct. at 302, (quoting Heike v. United States, 217 U.S. 423, 429, 30 S.Ct. 539, 541, 54 L.Ed. 821 (1910)). The Court noted that a different result could lead to “the imposition of ... a mandatory three- or six-month term of imprisonment before the defendant could file an appeal,” a result that “might raise constitutional problems of significant proportions.” Id., 375 U.S. at 173, 84 S.Ct. at 302. Although there are several differences between the former statute, § 4208(b), and the current one, § 3552(b), the rationale that drives Corey controls the present case. Like the defendant in Corey, appellant’s guilt has been determined and a sentence, albeit one that is subject to change, has been imposed. Like the defendant in" }, { "docid": "3483879", "title": "", "text": "be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation ... or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section. 18 U.S.C. § 4208(b). As the Supreme Court explained, the district court entered an order committing Corey to the custody of the Attorney General for a study under § 4208(b), Corey, 375 U.S. at 170, 84 S.Ct. at 300, which meant that he was committed for the maximum sentence possible until the court acted again. Over three months later, after considering the reports submitted by the Bureau of Prisons, the District Court entered an order suspending the imposition of Corey’s sentence and placing him on probation for two years. Id. Thereafter, Corey appealed his convictions, and the Court of Appeals dismissed the appeal for want of jurisdiction because it was filed out of time. Id. The Supreme Court reversed, concluding that a defendant sentenced pursuant to § 4208(b) could appeal his convictions following the entry of an order committing him to the custody of the Attorney General for a study or after the later order imposing the defendant’s actual sentence, because “the trial judge sentences a convicted defendant not once, but twice.” Id. at 172, 84 S.Ct. at 301. A close reading of Corey confirms that § 4208(b)’s unique procedures created a situation whereby the initial commitment “sufficiently satisfies conventional requirements of finality for purposes of appeal.” Id. at 174, 84 S.Ct. at 302. By contrast, Muzio has not been sentenced twice; he has not been sentenced at all. Muzio would be sentenced after the District Court determined the amount of restitution due in a sentencing hearing conducted in accordance with Rule 32 and then entered a final" }, { "docid": "19346634", "title": "", "text": "to six months of observation before imposing a sentence. Id. at 172, 84 S.Ct. 298. During that time, the defendant was provisionally sentenced to the maximum for his offense, and that sentence could be adopted or revised at the end of the commitment. The Court concluded that the provisional sentence was “clearly not lacking in sufficient ‘finality’ to support an immediate appeal” because it was imposed after conviction and placed the defendant in custody. Id. at 173-74, 84 S.Ct. 298. The Court cautioned that a contrary result “might raise constitutional problems of significant proportions.” Id. Relying upon Corey, the only circuit court to address the question of jurisdiction over an appeal following a § 4244 provisional sentence concluded that jurisdiction exists. See United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir.1996). In Abou-Kassem, the Fifth Circuit held that a defendant provisionally sentenced under the procedures established in § 4244 has been convicted of the underlying crime and committed to custody, thereby making the provisional sentence sufficiently final for purposes of appeal. Id. at 167-68. “Were we to accept the opposing view,” the court commented, “we would be countenancing the totally unacceptable proposition that a defendant could be incarcerated for many years ... without meaningful opportunity to challenge timely the validity of his conviction.” Id. at 168. We agree with the Fifth Circuit that a provisional sentence imposed pursuant to § 4244 is sufficiently final for appeal. Like the defendants in Corey and Abou-Kassem, Ewing has been convicted of the underlying criminal charge and has been committed to custody and is subject to judicial control. Were he denied appeal until a final sentence is imposed, he might remain under commitment for the entire duration of the provisional sentence, with no opportunity to appeal his conviction. Nothing in § 4244 indicates that the provisional nature of the sentence imposed on a defendant committed for treatment deprives the district court’s decision of the finality necessary to support an appeal. We are satisfied that Ewing’s provisional sentence meets the criteria laid out in Corey and Korematsu to supply appellate jurisdiction over his appeal." }, { "docid": "8479718", "title": "", "text": "petition lapses. See Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000). However, if the movant does not pursue a direct appeal to the Court of Appeals, the conviction becomes final when the time for filing a direct appeal expires. See United States v. Schwartz, 274 F.3d 1220, 1223 & n. 1 (9th Cir.2001) (citing Fed. R.App. P. 4). The Supreme Court has not directly addressed whether a judgment that imposes a period of incarceration and an unspecified amount of restitution is a “final” judgment for appellate purposes. See Dolan, 560 U.S. at 618, 130 S.Ct. 2533 (“We leave all such matters for another day.”) However, the Court noted that “strong arguments favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount.” Id. at 617, 130 S.Ct. 2533. The Court pointed to the language of several statutes, including 18 U.S.C. § 3582(b), which states that a “sentence to imprisonment” is a “final judgment.” Id. at 618, 130 S.Ct. 2533. The Court mentioned its concern with requiring incarcerated defendants to delay their appeals until the restitution amount is set. Id. This dictum in Dolan is in line with previous Supreme Court precedent holding that a judgment that imposes a sentence is a final judgment. See Corey v. United States, 375 U.S. 169, 174, 175, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (a judgment that imposes “discipline” is “freighted with sufficiently substantial indicia of finality to support an appeal”) (internal citations and quotation marks omitted); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) (“Final judgment in a criminal case means sentence. The sentence is the judgment.”) (citations omitted). Corey and Berman support our conclusion that a judgment that includes a sentence but leaves the amount of restitution open is sufficiently final for appellate purposes. Also, we afford any dictum of the Supreme Court due deference, see United States v. Baird, 85 F.3d 450, 453 (9th Cir.1996), and agree that there is a serious" }, { "docid": "3483880", "title": "", "text": "him on probation for two years. Id. Thereafter, Corey appealed his convictions, and the Court of Appeals dismissed the appeal for want of jurisdiction because it was filed out of time. Id. The Supreme Court reversed, concluding that a defendant sentenced pursuant to § 4208(b) could appeal his convictions following the entry of an order committing him to the custody of the Attorney General for a study or after the later order imposing the defendant’s actual sentence, because “the trial judge sentences a convicted defendant not once, but twice.” Id. at 172, 84 S.Ct. at 301. A close reading of Corey confirms that § 4208(b)’s unique procedures created a situation whereby the initial commitment “sufficiently satisfies conventional requirements of finality for purposes of appeal.” Id. at 174, 84 S.Ct. at 302. By contrast, Muzio has not been sentenced twice; he has not been sentenced at all. Muzio would be sentenced after the District Court determined the amount of restitution due in a sentencing hearing conducted in accordance with Rule 32 and then entered a final judgment. The District Court acknowledged as much on June 30, 2010, when it announced that it would determine the restitution to be ordered at a later hearing to be held for that purpose. A sentence that includes imprisonment and restitution is part of one complete sentencing package. These elements cannot be considered independently; they are interrelated. Until the sentencing package is complete, the sentencing process is necessarily unfinished. Finality, which was present in Corey, is lacking here. The other cases relied on by the majority fare no better. In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), the Court of Appeals dismissed the defendant’s appeal on the ground that the District Court’s judgment was interlocutory — because the court had suspended the execution of the defendant’s sentence, a term of imprisonment, and placed him on probation. Id. at 212, 58 S.Ct. at 165-66. The Supreme Court reversed. [T]he imposition of the sentence was not suspended, but only its execution. The sentence was not vacated. It stood as a final" }, { "docid": "23446042", "title": "", "text": "appeal and entered into the plea agreement does not, therefore, render the waiver and agreement per se involuntary. Given both Littlejohn’s and his attorney’s contemporary assertions of voluntariness in accepting the plea agreement, there is nothing to suggest that the acceptance was invalid. Littlejohn’s waiver as part of the plea agreement of his right to appeal his sentence and the manner in which it was imposed was therefore valid. See id. at 320-21. Hence, we dismiss his appeal insofar as it challenges the district court’s adherence to the requirements of 18 U.S.C. § 3553(c)(1). CONCLUSION The district court was not required, when it took Littlejohn’s plea, to inform him of the effects of subsection 862(a). The district court ivas required to inform Littlejohn of the direct consequences implicated by section 862a, but the court’s failure to do so in this case was harmless error. As such, Littlejohn’s conviction is AFFIRMED. His appeal of his sentence is DISMISSED. . Because Littlejohn's plea hearing occurred on February 10, 1999, the hearing was not governed by the newly added Federal Rule of Criminal Procedure 11(c)(6) (effective December 1, 1999), which requires that a district court determine that a defendant understands “the terms of any provision in a plea agreement waiving the right to appeal or to collaterally attack the sentence.\" See United States v. Maree, 934 F.2d 196, 200 (9th Cir.1991) (version of Rule 11 applicable at lime of plea hearing governs on appeal). In his appeal, Littlejohn presents no argument based upon Rule 11(c)(6). . The government concedes in its brief, and we agree, that while Littlejohn's plea agree ment included a waiver of his right to appeal his sentence, nowhere did he give up his right to appeal his conviction.. . Perhaps this is not surprising, in light of the fact that United States Sentencing Guideline section 5F1.6, titled \"Denial of Federal Benefits to Drug Traffickers and Possessors,” refers only to 21 U.S.C. § 862. . Section 862a(b) reads, in full: (b) Effects on assistance and benefits for others (1) Program of temporary assistance for needy families The amount of assistance" }, { "docid": "8657797", "title": "", "text": "84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (the Court held that a defendant may take an appeal from a conviction and sentence imposed pursuant to now-repealed 18 U.S.C. § 4205(b) either at the time of the imposition of the first maximum sentence or after completion of the study provided by the statute and imposition of the final sentence by the court); see also United States v. Donaghe, 924 F.2d 940 (9th Cir.), cert. denied, 502 U.S. 871, 112 S.Ct. 204, 116 L.Ed.2d 163 (1991) (relying on Corey the court held that a provisional sentence imposed pursuant to 18 U.S.C. § 3552(b) is appealable). But see United States v. Muther, 912 F.2d 1371 (11th Cir.1990) (the court held that a provisional sentence imposed pursuant to 18 U.S.C. § 3552(b) is a non-final order and is not appealable). .Corey, 375 U.S. at 174, 84 S.Ct. at 302 (quoting Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821 (1910)). . See id. at 173, 84 S.Ct. at 301 (the Court in Corey was concerned that precluding an appeal after imposition of the initial sentence could lead to \"the imposition of ... a mandatory three- or six-month term of imprisonment before the defendant could file an appeal,” a result that \"might raise constitutional problems of significant proportions.”). . See id. (a defendant can appeal after imposition of the initial or final sentence)." }, { "docid": "16083443", "title": "", "text": "the Sentencing Guide-fines, and involved a statute that permitted the sentencing court to commit the defendant to the custody of the Attorney General for the maximum period permitted by law, pending the completion of a presen-tencing investigation, and, after receipt and study of the investigative report, to affirm the initial sentence or to impose a new and lesser sentence. Relying upon its prior pronouncement that “when discipline has been imposed, the defendant is entitled to review,” Korematsu v. United States, 319 U.S. 432, 434, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943), the Court held that the imposition of the initial sentence was “freighted with sufficiently substantial in-dicia of finality to support an appeal.” Corey, 375 U.S. at 175, 84 S.Ct. 298 (1963). The Eighth Circuit has held that a “sentence of probation is a 'final decision’ for purposes of appellate review” even when one of the terms of probation is payment of restitution in an undetermined amount. United States v. McKnight, 771 F.2d 388, 390 (8th Cir.1985). The Seventh Circuit reached a similar conclusion regarding a sentence provision that required the defendant to reimburse the government for his court-appointed attorney’s fees. United States v. Gurtunca, 836 F.2d 283, 285 (7th Cir.1987). The court reasoned that although the exact amount of repayment was still in question, the sentence “sufficiently satisfie[d] conventional requirements of finality.” Id., quoting Corey, at 372, 84 S.Ct. 298. The interests of justice require that the appellate process move as expeditiously as practicable. If a defendant was properly convicted and sentenced, then public policy demands that his punishment be swift and certain. If a defendant was wrongfully convicted, justice requires timely review and corrective action. See Corey, 375 U.S. at 172, 84 S.Ct. 298 (“The dominant philosophy embodied in these rules reflects the twin concerns that criminal appeals be disposed of as expeditiously as the fair and orderly administration of justice may permit, and that the imposition of actual punishment be avoided pending disposition of the appeal.”). Jolivette was properly convicted and has not contested any aspect of the trial or pre-trial proceedings. He was also sentenced to" }, { "docid": "3483846", "title": "", "text": "itself bound when a subsequent case finally brings the jurisdictional issue before us.”)). Nonetheless, Gilbert did not involve a simple review of judgment, but instead, a finding that the judgment was such that the government’s failure to appeal from it resulted in a waiver. Further, if we were to find a lack of jurisdiction, Mr. Muzio may be unable to appeal his conviction and sentence before he has served the sentence in its entirety, or at least much more of it. After all, there is no guarantee that the U.S. Attorney’s office will ever submit, or the district court will ever enter, an amended final judgment on restitution in this case. Finding no jurisdiction under these circumstances would create an unintended incentive where either the government or the district court could essentially evade appellate review by failing to include a restitution award in a judgment. While I recognize the federal courts’ “long-established rule against piecemeal appeals in federal cases and the overriding policy considerations upon which that rule is founded,” Andrews v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 1240, 10 L.Ed.2d 383 (1963), the rule against piecemeal appeals is a prudential policy employed to promote efficient judicial administration, not a constitutional prohibition. See Cobbledick v. United States, 309 U.S. 323, 325-26, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940) (“[CJongress ... by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. ... [The rule of finality] is a means for achieving a healthy legal system.”). This is an unusual case, and the facts of this case drive the Court to an unusual conclusion. When faced with the tension, as we are here, between the federal courts’ policy against piecemeal appeals and the right of a defendant to a speedy appeal once a judgment imposing discipline has been executed against him, the defendant’s rights must prevail. See Corey, 375 U.S. at 173, 84 S.Ct. at 302 (“[T]he imposition of such a mandatory three — or six-month term of imprisonment before the defendant could file an appeal might" }, { "docid": "16083444", "title": "", "text": "a sentence provision that required the defendant to reimburse the government for his court-appointed attorney’s fees. United States v. Gurtunca, 836 F.2d 283, 285 (7th Cir.1987). The court reasoned that although the exact amount of repayment was still in question, the sentence “sufficiently satisfie[d] conventional requirements of finality.” Id., quoting Corey, at 372, 84 S.Ct. 298. The interests of justice require that the appellate process move as expeditiously as practicable. If a defendant was properly convicted and sentenced, then public policy demands that his punishment be swift and certain. If a defendant was wrongfully convicted, justice requires timely review and corrective action. See Corey, 375 U.S. at 172, 84 S.Ct. 298 (“The dominant philosophy embodied in these rules reflects the twin concerns that criminal appeals be disposed of as expeditiously as the fair and orderly administration of justice may permit, and that the imposition of actual punishment be avoided pending disposition of the appeal.”). Jolivette was properly convicted and has not contested any aspect of the trial or pre-trial proceedings. He was also sentenced to a definite period of incarceration and restitution. The only issue remaining for determination is the precise amount of that restitution. Since no question exists regarding the propriety of defendant’s conviction, we think that the requirements of Corey and Korematsu have been met. The language of the statute pursuant to which Jolivette’s sentence of restitution was imposed also points to a conclusion that the judgment in this case is final for purposes of appeal. The statute states that “[a] sentence that imposes an order of restitution is a final judgment notwithstanding the fact that the sentence” can be subsequently corrected, appealed, modified or adjusted. 18 U.S.C. § 3664(o). According to the statute, a correction means the repair of an earlier error. See 18 U.S.C. § 3664(o)(1)(A). Modification also presumes a change made to a pre-deter-mined amount. See 18 U.S.C. § 3664(o)(1)(B). The amendment and adjustment provisions also cite to specific code sections that allow changes to the earlier restitution amount when the defendant’s financial conditions change. See 18 U.S.C. § 3664(o)(1)(C-D). These provisions allowing corrections and" }, { "docid": "22628388", "title": "", "text": "waiver or explicitly declined to seek enforcement of the appeal waiver. In these cases, we did not raise the issue sua sponte or enforce the waiver where the parties did not mention the waiver in their briefs. Recently, we declared that appeal waivers are not jurisdictional, but did not cite to any authority. United States v. Kennedy, 137 Fed.Appx. 685, 686 (5th Cir.2005). In Kennedy, we did not dismiss the defendant’s appeal based on the assumption that the government did not wish that the appeal waiver be enforced because it made no mention of the appeal waiver in its brief. Id. at 686-87. In United States v. Rhodes, “in the absence of published authority dictating otherwise,” this court chose not to enforce an appeal waiver where the government explicitly chose not to rely on it. 253 F.3d 800, 804 (5th Cir.2001). Several cases thereafter followed Rhodes. See, e.g., United States v. Alanis-Zuniga, 135 Fed.Appx. 759 (5th Cir.2005); United States v. Saldua, 120 Fed.Appx. 553, 554 (5th Cir.2005); United States v. Trevino, 125 Fed.Appx. 549, n.2 (5th Cir.2005); United States v. Castro-Aguilar, 150 Fed.Appx. 335, 336 (5th Cir.2005). These cases do not provide analysis supporting the conclusion that appeal waivers do not implicate a court’s jurisdiction. This court’s attention to jurisdiction with regard to appeal waivers is misplaced, see, e.g., Martinez, 263 F.3d at 438, United States v. White, 258 F.3d at 380, because such waivers do not deprive us of jurisdiction. We have jurisdiction to hear Story’s appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v. Hahn, 359 F.3d 1315, 1320 (10th Cir.2004). The district court’s entry of Story’s sentence is a final decision and § 1291 confers subject matter jurisdiction upon this court. See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963)(“ ‘Final judgment in a criminal case ... means sentence. The sentence is the judgment.’ ”)(quoting Ber-man v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). Further, our jurisdiction to hear Story’s appeal of his sentence is conferred by" }, { "docid": "22628389", "title": "", "text": "(5th Cir.2005); United States v. Castro-Aguilar, 150 Fed.Appx. 335, 336 (5th Cir.2005). These cases do not provide analysis supporting the conclusion that appeal waivers do not implicate a court’s jurisdiction. This court’s attention to jurisdiction with regard to appeal waivers is misplaced, see, e.g., Martinez, 263 F.3d at 438, United States v. White, 258 F.3d at 380, because such waivers do not deprive us of jurisdiction. We have jurisdiction to hear Story’s appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v. Hahn, 359 F.3d 1315, 1320 (10th Cir.2004). The district court’s entry of Story’s sentence is a final decision and § 1291 confers subject matter jurisdiction upon this court. See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963)(“ ‘Final judgment in a criminal case ... means sentence. The sentence is the judgment.’ ”)(quoting Ber-man v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). Further, our jurisdiction to hear Story’s appeal of his sentence is conferred by § 3742, which states, “[a] defendant may file notice of appeal ... if the sentence ... was imposed in violation of the law [or] was imposed as a result of an incorrect application of the sentencing guidelines .... ” Both of these alternatives in § 3742 apply to the instant case because Story contends his sentence violated Booker. Notwithstanding this court’s jurisdiction to hear appeals of defendants’ sentences pursuant to § 3742, the defendant’s statutory right to appeal, also conferred by § 3742, may be waived by defendants. Waiver of statutory rights by voluntary agreement of parties is not prohibited absent an affirmative indication of Congress’s intent to preclude waiver. United States v. Dodson, 288 F.3d 153, 160 (5th Cir.2002)(citing United States v. Mezzanatto, 513 U.S. 196, 201, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995)). Further, plea agreements, as long as they are made voluntarily and intelligently, are not constitutionally prohibited. Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Thus, a defendant may waive his or her right to" }, { "docid": "3483840", "title": "", "text": "serving an already-executed sentence. As thoroughly discussed in the majority opinion, Supreme Court precedent mandates that in criminal cases, a judgment becomes final the moment discipline — even discipline less severe than imprisonment — is imposed. See Corey v. United States, 375 U.S. 169, 173, 84 S.Ct. 298, 302, 11 L.Ed.2d 229 (1963) (judgment committing the defendant to the Attorney General’s custody for a three-month diagnostic study before sentencing is final for purposes of appeal); Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) (judgment imposing a term of imprisonment is still final for purposes of appeal even when the execution of the sentence is suspended while the defendant is placed on probation); Korematsu v. United States, 319 U.S. 432, 434, 63 S.Ct. 1124, 1126, 87 L.Ed. 1497 (1943) (judgment imposing nothing more than a term of probation is final for purposes of appeal). However, this case does not require us to determine whether a sentence that has been pronounced or imposed but not yet executed is final. Mr. Muzio was told by the district judge at his sentencing hearing nearly four years ago that he must appeal within fourteen days of that date, and he has now already served over forty months of his prison term. Surely when Mr. Muz-io’s sentence was actually executed — in other words, when he was placed in federal disciplinary confinement — he had the right to an immediate appeal. Moreover, I do not believe that the district court could have ordered the Bureau of Prisons to execute the July Judgment against Mr. Muzio if the July Judgment had not been final. In civil cases, it is well-established that “[a]n execution ordinarily may issue only upon a final judgment.” Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721, 727 (D.C.Cir.1969); see also Int’l Controls Corp. v. Pesco, 535 F.2d 742, 744 (2d Cir.1976) (quoting Redding & Co.); Gerardi v. Pelullo, 16 F.3d 1363, 1371 n. 13 (3d Cir.1994) (citing Redding & Co. and 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §" }, { "docid": "3483807", "title": "", "text": "Supreme Court held that a final appealable judgment existed. Id. at 173, 84 S.Ct. at 301. The Court explained that “the imposition of such a mandatory three — or six-month term of imprisonment before the defendant could file an appeal might raise constitutional problems of significant proportions.” Id., 84 S.Ct. at 302. The Court further reasoned that a sentence imposed “after the whole process of the criminal trial and determination of guilt has been completed, sufficiently satisfies conventional requirements of finality for purposes of appeal. The litigation is complete as to the fundamental matter at issue — the right to convict the accused of the crime charged in the indictment.” Id. at 174, 84 S.Ct. at 302 (internal quotation marks omitted). There, as here, the same potential bar to appellate jurisdiction existed: the district court’s retention of power over some issues in the case and the need for the court to enter another judgment. That potential bar was held to be an insufficient basis for denying appellate review because the right to convict had been established and because a term of imprisonment had been imposed. Those two facts are also true here, and if anything, the facts here are more extreme. In Corey, the provisional term of imprisonment prior to appellate review was three to six months, while the term here is indefinite. More than forty months have already been served. Thus, here, as in Corey, finality has been established notwithstanding the fact that tasks remain to be completed by the district court. Corey is not alone. The Court has said elsewhere that “certainly when discipline has been imposed, the defendant is entitled to review.” Korematsu, 319 U.S. at 434, 63 S.Ct. at 1125. The Court has also plainly held that the sentence is the judgment for purposes of permitting appeal. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); see also Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940) (explaining that" } ]

[ { "docid": "2765304", "title": "", "text": "law.” Fed.R.Civ.P. 56(e). The moving party must show that, if the evidentiary material of record were -reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Fed. R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Ill We must first, examine the basis of our jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). A court of appeals has jurisdiction of appeals from all final district court decisions. 28 U.S.C. § 1291. Under the collateral order doctrine, however, interlocutory appeals from district court orders denying summary judgment on the basis of absolute or qualified immunity may be immediately appealed, assuming these orders are based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). Recently, the Supreme Court clarified the scope of Mitchell. In Johnson v. Jones, 515 U.S. 304, 312, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995), the Court distinguished between orders that resolve legal wrangles and those that determine “evidence sufficiency” disputes. If, for example, the district court denies summary judgment on the basis that, given the set of undisputed facts, the defendant official’s conduct was not objectively reasonable in light of clearly established law, the official may seek immediate appeal. If the district court denies summary judgment on the grounds that material facts exist which a party may or may not be able to prove at trial, the official" } ]

[ { "docid": "23565700", "title": "", "text": "they are not the mere fruits of fear or coercion, but are reliable expressions of the truth ... coercion is thought to carry with it the danger of unreliability. Involuntary confessions also affront society’s “deep-rooted feeling that ... in the end, life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” These principles are doubly true in cases such as this one, in which the suspect is a young child whose statements are more likely to be the product of “fear, ignorance, fantasy, or despair.” Nonetheless, the independent roles of police officers, prosecutors, and judges operate in this context to prevent individuals who have suffered violations of their Fifth Amendment rights from recovering for their damages, absent a showing that a neutral intermediary, such as a judge, did not have all pertinent information surrounding an interrogation before him when deciding a confession’s admissibility. Therefore summary judgment in favor of the defendants is appropriate. III. CONCLUSION As LaCresha cannot demonstrate that the acts of the defendants in obtaining her confession proximately caused the violation of her Fifth Amendment rights, we hold that she may not maintain against the defendants either a claim under § 1983 for a constitutional violation or civil conspiracy claim under Texas law. REVERSED and REMANDED. . In Texas, juvenile criminal adjudications are civil in nature, therefore, LaCresha’s conviction is for a civil, not criminal, offense. . In re L.M., 993 S.W.2d 276, 291 (Tex.App.— Austin 1999, pet. denied). . Id. . Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). . Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.2002). . Tex. Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th Cir.1996). . Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir.1997), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). . Hope v. Pelzer, 536" }, { "docid": "23565715", "title": "", "text": "resulting from admission into evidence of a coerced confession as officers did not proximately cause the violation); Crowe v. County of San Diego, 303 F.Supp.2d 1050, 1092 (S.D.Cal.2004) (“Given the roles and obligations of prosecutors and judges and the independent nature of these positions, a police officer could not reasonably know that by obtaining a coerced confession he will cause a prosecutor and/or a trial judge to violate a defendant’s Fifth Amendment privilege against self-incrimination.”). See also Hector v. Watt, 235 F.3d 154, 161 (3d Cir.2000)(declining to reach the question of whether proximate cause prevented a § 1983 plaintiff from suing police officers for fabri-eating evidence as “there is a great deal of tension in the caselaw about when official conduct counts as an intervening cause.”). . We emphasize again that our analysis does not apply to Fourteenth Amendment claims brought by plaintiffs against officials that attack the lawfulness of the interrogation itself. See Chavez v. Martinez, 538 U.S. 760, 773-74, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). . In re L.M., 993 S.W.2d 276, (Tex.App.— Austin, 1999)(pet. denied). . Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). . Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996). . As the Texas Tort Claims Act does not waive the State’s immunity for civil conspiracy suits or other intentional torts committed by officials in their official capacity, the district court correctly dismissed claims brought against the defendants in their official capacities. TRST Corpus, Inc. v. Financial Ctr., Inc., 9 S.W.3d 316, 322 (Tex.App. — Houston [14th Dist.] 1999, writ denied)(citing Tex. Civ. Prac. & Rem.Code § 101.021 (2004), which enumerates the causes of action for which the state has waived immunity, but not including civil conspiracy). Accordingly, we address only state conspiracy claims brought against the defendants in their individual capacities. . Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.2002). . Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000). . City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). . Id. at 654 (citation omitted). . Id. at 656. ." }, { "docid": "16106637", "title": "", "text": "harm. b. Qualified Immunity Garcia also asserts that he it entitled to qualified immunity from Casanova’s § 1983 claims. Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded 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, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Tamez v. City of San Marcos, 118 F.3d 1085, 1091 (5th Cir.1997), 522 U.S. 1125, 118 S.Ct. 1073, 140 L.Ed.2d 132 (1998); Hart, 127 F.3d at 441. “An official acts within his discretionary authority when he performs nonministerial acts within the boundaries of his official capacity.” Tamez, 118 F.3d at 1091-92; see Cronen v. Texas Dep’t of Human Servs., 977 F.2d 934, 939 (5th Cir.1992). The qualified or ‘good faith’ immunity doctrine was established to reconcile two competing interests. One interest is the compensation of persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties. Qualified immunity has therefore been recognized to protect ‘all but the plainly incompetent or those who knowingly violate the law.’ Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Whether a government official is entitled to qualified immunity ‘generally turns on the “objective reasonableness of the action” assessed in light of the legal rules that were “clearly established” at the time it was taken.’ ” Johnston, 14 F.3d at 1059 (quoting Texas Faculty Ass’n v. University of Tex. at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))); see Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Anderson, 483 U.S. at 638, 107 S.Ct. 3034; Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Petta v." }, { "docid": "16623465", "title": "", "text": "official is protected by qualified immunity thus turns upon the objective legal reasonableness of the action, in light of legal rules clearly estab-hshed at the time the action was taken. The contours of the right allegedly violated must be sufficiently clear so that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “ ‘This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say .that in light of pre-existing law that unlawfulness must be apparent.’ ” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034) (internal citation omitted). Thus, if prior case law provides “fair warning” that an officer’s conduct would violate the plaintiffs constitutional rights, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 739-740, 741, 122 S.Ct. 2508. It is important to note that qualified immunity “establishes a right not to be tried.” Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991). Accordingly, the courts often find it appropriate to make a determination on this issue prior to commencement of trial. “[T]he ‘entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’ ” National Commodity and Barter Association v. Archer, 31 F.3d 1521, 1532 n. 8 (10th Cir.1994) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir.2005). Dr. MacArthur’s § 1983 Claim Dr. MacArthur’s “Right” to Practice at SJHSD Facilities Counsel asserts that “Dr. MacArthur’s ability to practice medicine entering into patient contracts which are property constitutes a liberty and property right,” relying on an oft-quoted passage from the Declaration" }, { "docid": "387533", "title": "", "text": "se Section 1983 complaints, and that several other courts of appeals have extended Houston to the fil ing of Section 1983 complaints) (citations omitted). See also Rivers v. Horn, 2001 WL 312236, at *1 n. 1 (E.D.Pa. March 29, 2001)(extending Houston to pro se prisoner Section 1983 complaints). The Court concludes that Houston’s mailbox rule is applicable in the instant circumstances. Accordingly, the Court concludes that Plaintiffs Complaint was filed on December 8, 1998, the date it was delivered to prison officials in New York for mailing, which was one day before the two-year limitations period expired. Thus, Defendant Deckers Motion to Dismiss will be denied insofar as it is based on statute of limitations grounds. B. Prosecutorial Immunity Defendant Deckers contends that he is absolutely immune from monetary liability because he is afforded the protections of prosecutorial immunity. The United States Supreme Court has held that “in initiating prosecutions and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under [Section] 1983.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Prosecutors are also immune from liability for their participation in probable cause hearings and for seeking the issuance of search warrants from courts. Burns v. Reed, 500 U.S. 478, 487, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Prosecutorial immunity applies even if the prosecutor acted wilfully, maliciously, or in bad faith. Imbler, 424 U.S. at 427, 428 n. 27, 96 S.Ct. 984; Ernst v. Child & Youth Servs, of Chester County, 108 F.3d 486, 502 (3d Cir.1997). However, the Supreme Court has held that prosecutorial immunity does not apply when a prosecutor’s conduct falls outside of the traditional advocacy functions, such as when the prosecutor engages in “investigative” or “administrative” functions. Imbler, 424 U.S. at 430-31, 96 S.Ct. 984. Thus, a prosecutor’s involvement in wiretapping, Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), giving legal advice to police during a police investigation, Bums, 500 U.S. at 496, 111 S.Ct. 1934, making false statements at a press conference and fabricating evidence prior" }, { "docid": "1004661", "title": "", "text": "Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), citing Fed. R. Civ. P. 56(e). “Qualified immunity may protect government officials from liability under 42 U.S.C. § 1983, but not if their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 527 (8th Cir. 2009) (en banc), quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The tests for whether an officer is entitled to qualified immunity are: (1) whether the facts alleged, taken in the light most favorable to the injured party, show that the officer’s conduct violated a constitutional right; and (2) whether the constitutional right was clearly established at the time of the deprivation so that a reasonable officer would understand his conduct was unlawful. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). This court may consider these in either order. Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010). Reviewing the denial of qualified immunity, this court views the facts most favorably to Ingrassia and draws all reasonable inferences in his favor. Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009). “Denial of qualified immunity will be affirmed if a genuine issue of material fact exists as to whether a reasonable officer could have believed his actions to be lawful.” Id. This court may not weigh evidence or make credibility determinations at this stage. Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir. 2001). III. Although Ingrassia is civilly committed — not imprisoned — his confinement is subject to the same safety and security concerns as that of a prisoner. Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004). Only those deprivations denying “the minimal civilized measure of life’s necessities” implicate the Constitution. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). While the Eighth Amendment does not apply, In-grassia’s rights arise under the Fourteenth Amendment. Revels, 382 F.3d at 874. Civilly-committed individuals have" }, { "docid": "21110864", "title": "", "text": "Officer. Roe then filed this action seeking equitable and monetary relief in state court against Lee, Smith, the City and County of San Francisco and John Does 1-30, claiming, inter alia, that the defendants had retaliated against him for the circulation of the legal memorandum in violation of his right to free speech. Defendants removed the case to federal district court on federal question jurisdiction. From the district court’s grant of summary judgment, Roe appeals. STANDARD OF REVIEW We review a grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Summary judgment is appropriate when the movant shows “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). “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 v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if “there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Id. at 249,106 S.Ct. at 2511. ANALYSIS I. IMMUNITY FOR THE INDIVIDUAL PROSECUTORS Prosecutors are “absolutely immune from liability under section 1983 for their conduct in ‘initiating a prosecution and in presenting the State’s ease’ insofar as that conduct is ‘intimately associated with the judicial phase of the criminal process.’ ” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934,. 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)) (internal citations omitted). However, when prosecutors perform “administrative or investigative, rather than advocatory, functions they do not receive absolute immunity.” Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir.1996). To determine whether an action was judicial, administrative, or investigative, “[w]e look at ‘the nature of the function performed, not the identity of the actor who" }, { "docid": "23391857", "title": "", "text": "been an inadvertent and harmless mistake. . The court also directed the parties to attempt to resolve the attorneys' fees issues themselves. . Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.1994). . Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . Harper, 21 F.3d at 600. . Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir.1994). . Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). . 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). . Roe v. Texas Dep’t of Protective and Regulatory Serv., 299 F.3d 395, 408-09 (5th Cir.2002). . The district court outlined a three step inquiry, examining (1) whether a constitutional right was violated, (2) whether that right was clearly established, and (3) whether the officers engaged in objectively unreasonable conduct. The district court, however, unnecessarily decoupled the clearly established/objective unreasonableness test of the Supreme Court. That is, if a right is clearly established enough to impart fair warning to officers, then their conduct in violating that right cannot be objectively reasonable. . Hope, 536 U.S. at 736, 122 S.Ct. 2508 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). . Id. at 739, 122 S.Ct. 2508 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). . Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). . Id. at 740, 122 S.Ct. 2508 (relying on its reasoning and holding in United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). . Id. (quoting Lanier, 520 U.S. at 269, 117 S.Ct. 1219). According to the Hope court, Lanier explained \"that the 'fair warning' requirement is identical under § 242 and the qualified immunity standard.” Hope, 536 U.S. at 740, 122 S.Ct. 2508. . Id. at 741, 122 S.Ct. 2508. . Id. The Hope Court addressed Alabama's practice of handcuffing inmates to a \"hitching post” as a disciplinary remedy. The Court concluded" }, { "docid": "20733785", "title": "", "text": "Cronen v. Tex. Dep’t of Human Servs., 977 F.2d 934, 939 (5th Cir.1992)); see also Beltran v. City of El Paso, 367 F.3d 299, 302-03 (5th Cir.2004). The qualified or “good faith” immunity doctrine was established to reconcile two competing interests. One interest is the compensation of persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties. Qualified immunity has therefore been recognized to protect “all but the plainly incompetent or those who knowingly violate the law.” Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity is available to defendant officials in suits arising under § 1983 and is an immunity from suit, extending beyond a defense to liability to include all aspects of civil litigation, including discovery. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002), cert. denied, 537 U.S. 1232, 123 S.Ct. 1355, 155 L.Ed.2d 196 (2003); Heitschmidt v. City of Houston, 161 F.3d 834, 840 (5th Cir.1998); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.1994); see also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’” McCully v. City of North Richland Hills, 406 F.3d 375, 380 (5th Cir.2005) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806); see Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Austin v. Johnson, 328 F.3d 204, 207 (5th Cir.2003). Because it is “an affirmative defense, the defendant must both plead and establish his entitlement to immunity.” Tamez, 118 F.3d at 1091 (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Cronen, 977 F.2d at 939); see Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow, 457 U.S. at 815, 102 S.Ct. 2727. “ ‘Although nominally an affirmative defense, the plaintiff has the" }, { "docid": "11364708", "title": "", "text": "and committed acts amounting to negligence and gross negligence. Defendants filed motions to dismiss on the basis of absolute immunity, which the district court denied. Burke, Range, and Donnelly now appeal the denial of their motions to dismiss. II. STANDARD OF REVIEW We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of absolute immunity treated as a “decision ‘final’ within the meaning of § 1291”). We review a district court’s rulings on absolute immunity de novo. Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir.2012) (en banc). An official seeking absolute immunity bears the burden of showing that it is justified. Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). The presumption is that qualified rather than absolute immunity should apply. Id. at 486-87, 111 S.Ct. 1934. “[A]bsolute immunity is an extreme remedy, and it is justified only where ‘any lesser degree of immunity could impair the judicial process itself.’ ” Lacey, 693 F.3d at 912 (quoting Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)). III. DISCUSSION The complaint alleges that Burke, Range, and Donnelly all participated in the decision not to extradite Tavares from Washington for prosecution on pending assault charges. Setting aside whether all three defendants actually had the authority to make this decision, the law requires that we look at “the nature of the function performed, not the identity of the actor who performed it.” Kalina, 522 U.S. at 127, 118 S.Ct. 502 (internal quotations omitted). Functions are prosecutorial in nature and entitled to absolute immunity when they are “ ‘intimately associated with the judicial phase of the criminal process,’ in which the prosecutor is acting ‘as an officer of the court.’ ” Lacey, 693 F.3d at 912 (quoting Van de Kamp v. Goldstein, 555 U.S. 335, 342, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)). “Absolute immunity also protects those functions in which the prosecutor acts as an ‘advocate for the State,’ even if they" }, { "docid": "23565701", "title": "", "text": "the acts of the defendants in obtaining her confession proximately caused the violation of her Fifth Amendment rights, we hold that she may not maintain against the defendants either a claim under § 1983 for a constitutional violation or civil conspiracy claim under Texas law. REVERSED and REMANDED. . In Texas, juvenile criminal adjudications are civil in nature, therefore, LaCresha’s conviction is for a civil, not criminal, offense. . In re L.M., 993 S.W.2d 276, 291 (Tex.App.— Austin 1999, pet. denied). . Id. . Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). . Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.2002). . Tex. Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th Cir.1996). . Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir.1997), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). . Hope v. Pelzer, 536 U.S. 730, 736, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Defendants Emmons and Blazey are each prosecuting attorneys in Travis County, however, they are entitled to claim only qualified immunity rather than the absolute immunity normally enjoyed by prosecutors. LaCresha is suing them for the legal advice which they provided the police investigators, for which they are not entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478, 496, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)(holding that absolute immunity does not protect the prosecutorial function of giving advice to the police). . LaCresha spent three years in juvenile detention as a result of her conviction. . Miranda v. Arizona, 384 U.S. 436, 465 n. 33, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court has held that § 1983 plaintiffs do not have a Fifth Amendment claim against law-enforcement officials who have elicited unlawful confessions if those confessions are not then introduced against the plaintiffs in criminal proceedings. This case is distinguishable, as LaCresha's statement was admitted at trial and did result" }, { "docid": "14713815", "title": "", "text": "without a warrant, and thereafter by their conduct while inside the apartment, by arresting her without probable cause, and by making material misrepresentations in the subsequent arrest warrant application. Holmes also argues that the district court erroneously granted summary judgment to Cobb County on her claim that it instituted a policy that failed to provide its police offi cers with adequate training regarding citizens’ constitutional rights. DISCUSSION A. Summary judgment is appropriate only when the evidence before the court demonstrates that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). This court reviews de novo the district court’s grant of summary judgment based on the defense of qualified immunity. See Tinney v. Shores, 77 F.3d 378, 380 (11th Cir.1996). Qualified immunity protects government actors performing discretionary functions from being sued in their individual capacities. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The doctrine shields government officials “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). Qualified immunity liberates government agents from the need to constantly err on the side of caution by protecting them both from liability “and the other burdens of litigation, including discovery.” Lambert v. Fulton County, 253 F.3d 588, 596 (11th Cir.2001). See also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). At the same time, it does not offer protection “if an official ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].’ ” Harlow, 457 U.S. at 815, 102 S.Ct. 2727 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)) (emphasis omitted). The essence of qualified immunity is notice. See Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002). Qualified immunity analysis proceeds in" }, { "docid": "23565716", "title": "", "text": "(Tex.App.— Austin, 1999)(pet. denied). . Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). . Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996). . As the Texas Tort Claims Act does not waive the State’s immunity for civil conspiracy suits or other intentional torts committed by officials in their official capacity, the district court correctly dismissed claims brought against the defendants in their official capacities. TRST Corpus, Inc. v. Financial Ctr., Inc., 9 S.W.3d 316, 322 (Tex.App. — Houston [14th Dist.] 1999, writ denied)(citing Tex. Civ. Prac. & Rem.Code § 101.021 (2004), which enumerates the causes of action for which the state has waived immunity, but not including civil conspiracy). Accordingly, we address only state conspiracy claims brought against the defendants in their individual capacities. . Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.2002). . Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000). . City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). . Id. at 654 (citation omitted). . Id. at 656. . Id. at 658. . Id. . Id. at 655. . Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.2002). . See Chambers, 883 S.W.2d at 656. . Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 95 (Tex.App. — Corpus Christi 1992, writ dism'd w.o.j.). . Hopt v. Utah, 110 U.S. 574, 584-85, 4 S.Ct. 202, 28 L.Ed. 262 (1884). . Bruton v. United States, 391 U.S. 123, 140, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting). . Stephen A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-D.N.A. World, 82 N.C.L.Rev. 891, 923 (2004). \"Regardless of how often police elicit confessions from the innocent, the social science literature strongly suggests that interrogation-induced false confessions are highly likely to lead to the wrongful conviction of the innocent, perhaps more so than any other type of erroneous evidence. This is due to the strong effect that confession evidence exerts on the perceptions and decision-making of criminal justice officials and lay jurors. With the exception" }, { "docid": "6901980", "title": "", "text": "appealable collateral order. See Mattox v. City of Forest Park, 183 F.3d 515, 518 (6th Cir.1999) (citing Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which categorized the denial of qualified immunity as a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).. In Johnson v. Jones, a unanimous Supreme Court held that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). B. Denial of Qualified Immunity The determination of whether qualified immunity applies to an official’s actions is a legal determination that we review de novo. See Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.1996). A motion for summary judgment will be granted if the evidence presented to the court demonstrates that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must not weigh the evidence, but rather we must only determine whether there is a factual dispute that precludes summary judgment. See Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. In Harlow v. Fitzgerald, the Supreme Court held that “government officials performing discretionary functions generally are shielded 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). Qualified immunity protects public officers “from undue interference with their duties and from potentially disabling threats of liability.” Id. at 806, 102 S.Ct. 2727. In Butz v. Economou, the Supreme Court explained" }, { "docid": "22773870", "title": "", "text": "311, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 & 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Generally, the collateral order doctrine applies to summary judgments that “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-43, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). . Palmer, 193 F.3d at 350-51 (citing Naylor v. State of Louisiana, Dep't of Conections, 123 F.3d 855, 857 (5th Cir.1997) (per curiam); Petta v. Rivera, 143 F.3d 895, 898 (5th Cir.1998)) (internal citations omitted). . Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir.2004) (en banc). . Id. . Id. (citing Behrens, 516 U.S. at 313, 116 S.Ct 834; Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). . Id. at 347-48. . Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). . Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Bel-tran v. City of El Paso, 367 F.3d 299, 303 (5th Cir.2004). . A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required. Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir.1994), abrogated on other grounds by Hope, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666. . Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.” (internal quotation and citation omitted)); see also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.1999) (quoting Estelle). . \"Once raised, a plaintiff has the burden to rebut the qualified immunity defense by establishing that the official's allegedly wrongful conduct violated clearly established law.”" }, { "docid": "23565702", "title": "", "text": "U.S. 730, 736, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Defendants Emmons and Blazey are each prosecuting attorneys in Travis County, however, they are entitled to claim only qualified immunity rather than the absolute immunity normally enjoyed by prosecutors. LaCresha is suing them for the legal advice which they provided the police investigators, for which they are not entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478, 496, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)(holding that absolute immunity does not protect the prosecutorial function of giving advice to the police). . LaCresha spent three years in juvenile detention as a result of her conviction. . Miranda v. Arizona, 384 U.S. 436, 465 n. 33, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court has held that § 1983 plaintiffs do not have a Fifth Amendment claim against law-enforcement officials who have elicited unlawful confessions if those confessions are not then introduced against the plaintiffs in criminal proceedings. This case is distinguishable, as LaCresha's statement was admitted at trial and did result in her conviction. See Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). . Chavez, 538 U.S. at 767, 123 S.Ct. 1994; United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)(internal citations omitted). . In re Gault, 387 U.S. 1, 30-31, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . Id. at 55, 87 S.Ct. 1428. \"[A]uthoritative opinion has cast formidable doubt upon the reliability and trustworthiness of 'confessions' by children.” Id. at 52, 87 S.Ct. 1428. . See Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990)(citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602); United States v. Gonzales, 121 F.3d 928, 939 (5th Cir.1997)(\"It is axiomatic that 'the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during \"custodial interrogation” without a prior warning.'\")(quoting Perkins, 496 U.S. at 296, 110 S.Ct. 2394). . Gonzales, 121 F.3d at 939 (5th Cir.1997)(citing Perkins, 496 U.S. at 296, 110 S.Ct. 2394)(internal quotations omitted). . Gonzales, 121 F.3d at" }, { "docid": "13793962", "title": "", "text": "its conclusion that the altercation in the counselor’s office between Jones and the two officials did not amount to an unconstitutional seizure and that, even if it did, Haberman did not violate clearly established law, the district court granted Haberman’s motion to dismiss on the basis of qualified immunity. Jones appeals that order. II We review de novo a district court’s ruling on qualified immunity. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir.2002). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Our threshold inquiry in the qualified immunity analysis is whether, taking Jones’ allegations as true, Haberman violated Jones’ Fourth Amendment right to be free from unreasonable seizures. Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). If we conclude that Jones has alleged constitutionally impermissible conduct, Haberman “may nevertheless be shielded from liability for civil damages if [his] actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 739, 122 S.Ct. 2508 (citation omitted). A Applicable to the states through the Fourteenth Amendment’s Due Process Clause, the Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” U.S. Const, amend, iv. Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and not on regulating the behavior of particular governmental actors, the prohibition against unreasonable seizures extends to civil, as well as criminal, investigations by the government. See, e.g., Dubbs v. Head Start, Inc., 336 F.3d 1194, 1206 (10th Cir.2003) (“The focus of the Amendment is thus on the security of the person, not the identity of the searcher or the purpose of the search.”); Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (“If the government intrudes on a person’s property, the privacy interest suffers whether the government’s motivation is to investigate violations of criminal laws" }, { "docid": "16368486", "title": "", "text": "... constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727; see also Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir.2000). This rule “recognizes that officials can act without fear of harassing litigation only if they can reasonably anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Accordingly, to ensure that government officials do “not err always on the side of caution” because they fear being sued, the “qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). The Supreme Court has emphasized that qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original). Thus, a qualified immunity ruling “should be made early in the proceeding so that the costs and expenses of trials are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992) (“[T]he Supreme Court has expressly encouraged the use of summary judgment when qualified immunity is raised as a defense.”). Generally, courts must perform a two-step analysis in determining whether an official is entitled to qualified immunity. See Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir.2002). Before proceeding to the analysis, however, “[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiffs allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002); Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). If a plaintiffs allegations do not state a constitutional claim, there is no necessity for further inquiries concerning" }, { "docid": "16766681", "title": "", "text": "alleges a violation of the Due Process Clause. Docket No. 21 at 11-20. The Supreme Court has determined that Congress would have expressly made common-law immunities inapplicable to actions brought under § 1983 if it had intended to do so. Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Therefore, the “qualified immunity” that was available to executive officials at common law is available to defendants such as Hart. Malley v. Briggs, 475 U.S. 335, 339-340, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). As a general matter, executive officials performing discretionary functions are “shielded 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.” Harloiv v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The primary purpose of qualified immunity is to provide executive officials sued for violating statutory or constitutional rights of uncertain scope with “the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes.” Hope v. Pelzer, 536 U.S. 730, 740, n. 10, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In order for a right to be “clearly established” for purposes of qualified immunity, its contours must be “sufficiently clear” to enable an objectively reasonable official to understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). An executive official’s qualified immunity includes not only a shield from monetary liability, but also “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). For this reason, the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). Since the inquiry as to whether Hart is entitled to qualified immunity is inextricably intertwined with the merits of Burns’" }, { "docid": "1364072", "title": "", "text": "F.3d 1241, 1251 (3d Cir.1994). In both cases, we apply the same standard as the District Court, accepting as true the factual allegations in the complaint and drawing all reasonable inferences in favor of Schneyder and Odd. Yarris, 465 F.3d at 134; Giuffre, 31 F.3d at 1251. We will affirm the dismissal of Schneyder’s case only if it appears from her complaint that she can prove no set of facts that would entitle her to relief. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). We will affirm the District Court’s refusal to dismiss Odd’s case so long as his complaint states a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In seeking to dismiss the suits against them, ADAs Smith and Malone invoke prosecutorial immunity. More than a mere defense to liability, prosecutorial immunity embodies the “right not to stand trial,” Montgomery County, 215 F.3d at 373 (citing Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), and is properly raised in a Rule 12(b)(6) motion to dismiss. See, e.g., Kulwicki, 969 F.2d at 1461-62. A prosecutor bears the “heavy burden” of establishing entitlement to absolute immunity. Light v. Haws, 472 F.3d 74, 80-81 (3d Cir.2007) (quoting Forsyth v. Kleindienst, 599 F.2d 1203, 1212 (3d Cir.1979)). In light of the Supreme Court’s “quite sparing” recognition of absolute im munity to § 1983 liability, we begin with the presumption that qualified rather than absolute immunity is appropriate. Carter v. City of Philadelphia, 181 F.3d 339, 355 (3d Cir.1999) (citing Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). To overcome this presumption, a prosecutor must show that he or she was functioning as the state’s advocate when performing the action(s) in question. Yarris, 465 F.3d at 136. This inquiry focuses on “the nature of the function performed, not the identity of the actor who performed it.” Light, 472 F.3d at 78 (quoting Hughes v. Long, 242 F.3d 121, 125 (3d Cir.2001)). Under this functional approach, a prosecutor enjoys absolute immunity for actions performed in a judicial or “quasi-judicial”" } ]

[ { "docid": "22216099", "title": "", "text": "3582 proceeding, there must be some explanation in the record of the district court’s reasoning. Marion, 590 F.3d at 476-77. To the extent that the Government relies on Clark to support an argument that the court sufficiently explained its decision here, that reliance is misplaced. In Clark, the district court considered the relevant § 3553(a) factors during the initial sentencing and sentenced Clark to a term of imprisonment at the top of his guidelines range. 563 F.3d at 724-25. Clark later moved for a sentence reduction under § 3582, and the district court in a brief order reduced his sentence to a term at the top of his amended guidelines range. Id. at 724. We concluded that the district court “fully considered” the § 3553(a) factors and sufficiently explained its decision. Id. at 725. We based our conclusion on “the district court’s statements at Clark’s initial sentencing and its determination that sentences at the top of the respective Guidelines ranges were appropriate following both the initial sentencing and the § 3582 proceedings.” Id. at 724-25. Our cases applying Clark uniformly have involved proportionality between the initial sentence and the amended sentence. United States v. Paige, 381 Fed.Appx. 639, 640 (8th Cir.2010) (unpublished per curiam); United States v. Mull, 365 Fed.Appx. 723, 725 (8th Cir.2010) (unpublished per curiam), cert. denied, 561 U.S. -, 130 S.Ct. 3483, — L.Ed.2d-(June 21, 2010); United States v. Phillips, 361 Fed.Appx. 702, 703 (8th Cir.2010) (unpublished per curiam); United States v. Geralds, 338 Fed.Appx. 557, 558 (8th Cir.2009) (unpublished per curiam), cert. denied, 561 U.S. -, 130 S.Ct. 3465, — L.Ed.2d - (June 21, 2010); United States v. Wiley, 334 Fed.Appx. 782, 783 (8th Cir.2009) (unpublished per curiam). That proportionality is missing here. Burrell’s amended sentence is at the top of his amended guidelines range, but his initial sentence was near the middle of his guidelines range. Because Burrell’s initial and amended sentences are not proportional, we cannot presume that the reasons given for imposing a sentence near the middle of the guidelines range at his initial sentencing apply with equal force to the amended sentence" } ]

[ { "docid": "22419125", "title": "", "text": "may be harmless, because, as the government suggests is the case here, the reasons for the district court’s actions may be obvious from the history of the case. This was the case, e.g., in United States v. Batista, 480 Fed.Appx. 639 (2d Cir.2012) (summary order). There, in granting a sentence reduction, the district court’s “rationale for its exercise of discretion [was] apparent from the record” because the “reduction of [the defendant’s] term of imprisonment to a term 31.5% below the low end of the 235-to-293-month amended Guidelines range [was] comparable to the 31.5% downward variance the district court gave [the defendant] in sentencing him below the 292-to-365-month Guidelines range applicable at sentencing.” Id. at 641-42. Here, however, the reasons for the district court’s exercise of discretion are not apparent from the record. The Government’s sentencing memorandum contained a number of arguments against reducing Christie’s sentence (including his prior criminal history and his firearms offenses), and there is no way to determine which of these — or other — reasons the district court relied on in reaching its determination that the pre-existing 151 month term was the appropriate sentence for Christie. The basis for the district court’s decision is especially unclear because Christie’s sentence of 151 months in fact was above his now-applicable Guidelines range of 120-150 months. In 2004, the district court imposed Christie’s original sentence of 168 months, which represented the low end of his initial 168-210 month Guidelines range, and in April 2010, the district court granted Christie’s first § 8582(c) motion to impose a sentence of 151 months, which again was at the bottom of his then-applicable Guidelines range of 151-188 months. There is no indication in the record as to why an above-Guidelines sentence is now called for, or why a comparable within-Guidelines sentence would now be inappropriate. Our conclusion that at least some minimal statement of reasons for a court’s action on a § 3582(c)(2) motion is required accords with the view of every other Circuit to have addressed the issue. In United States v. Burrell, for example, the Eighth Circuit vacated and remanded a" }, { "docid": "22419124", "title": "", "text": "defendant nevertheless argued that because the district court failed to state that it considered one of the defendant’s many arguments at sentencing, it had not adequately discharged its duty to consider the statutory sentencing factors. Id. at 28-32. Fernandez did not confront a challenge to a sentencing decision for which the district court provided no explanation whatsoever. While Fernandez noted that “we will not conclude that a district judge shirked her obligation to consider the § 3553(a) factors simply because she did not discuss each one individually or ... address every argument relating to those factors,” id. at 30, this does not relieve the district court of its obligation to provide, at a minimum, enough explanation of how it exercised its sentencing discretion to permit meaningful appellate review. The explanation required need not be lengthy. But absent some indication of the rationale for the ruling, we are precluded from conducting meaningful appellate review. Cavera, 550 F.3d at 193. The failure to state reasons will not always require a remand. In some situations, such a failure may be harmless, because, as the government suggests is the case here, the reasons for the district court’s actions may be obvious from the history of the case. This was the case, e.g., in United States v. Batista, 480 Fed.Appx. 639 (2d Cir.2012) (summary order). There, in granting a sentence reduction, the district court’s “rationale for its exercise of discretion [was] apparent from the record” because the “reduction of [the defendant’s] term of imprisonment to a term 31.5% below the low end of the 235-to-293-month amended Guidelines range [was] comparable to the 31.5% downward variance the district court gave [the defendant] in sentencing him below the 292-to-365-month Guidelines range applicable at sentencing.” Id. at 641-42. Here, however, the reasons for the district court’s exercise of discretion are not apparent from the record. The Government’s sentencing memorandum contained a number of arguments against reducing Christie’s sentence (including his prior criminal history and his firearms offenses), and there is no way to determine which of these — or other — reasons the district court relied on in" }, { "docid": "22761604", "title": "", "text": "— my point is that he has gone far beyond what anybody else had. If he had just gone and gotten his GED and taken a few courses, maybe the bottom of the guideline would be appropriate. But that is much greater than necessary at this point to fulfill the goals of sentencing. Id. at 117-119. At that point, the district court, without directly addressing defense counsel’s arguments, proceeded to resen-tence Rhodes to the bottom of the revised guideline range: THE COURT: All right. This matter comes before the Court for sentencing pursuant to a motion by the defendant in accordance with 18 United States Code 3582(c)(2). The Court has determined the defendant is eligible for reduction of his term of imprisonment based upon the guideline sentencing range that has subsequently been lowered and made retroactive pursuant to 28 United States Code 994(u). The Court has reviewed the presen-tence report factual findings and has considered the sentencing guideline applications and the factors set forth in 18 United States Code 3553(a)(1) through (7). The original offense level was 35, and the original criminal history category was III, resulting in a guideline imprisonment range of 210 to 262 months. The amended offense level is 33, and the criminal history category remains III, resulting in an amended guideline sentencing range of 168 to 210 months. The Court notes the defendant conspired with others to possess and distribute 194.8 grams of cocaine base. As to Count I of the indictment, Criminal 97-638, the defendant, Theomas Rhodes, is committed to the custody of the Bureau of Prisons for a term of 168 months. Id. at 119-120. II On appeal, Rhodes contends the district court erred in concluding that, in modifying his sentence pursuant to § 3582(c)(2), “it lacked the authority to impose a sentence ... less than the minimum of the amended guideline range.... ” Aplt. Br. at 10. The scope of a district court’s authority in a resentencing proceeding under § 3582(c)(2) is a question of law that we review de novo. See United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008) (“In" }, { "docid": "19733749", "title": "", "text": "HANSEN, Circuit Judge. Deborah Marie Dalton pleaded guilty to conspiring to distribute 500 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 846, and was originally sentenced to a term of 60 months of imprisonment. The Government appealed Ms. Dalton’s sentence, which we found unreasonable, and we vacated and remanded for resentencing. See United States v. Dalton, 404 F.3d 1029, 1034 (8th Cir.2005). Upon remand, and post-Booker, the district court sentenced Ms. Dalton to a term of 160 months of imprisonment, and she now appeals that sentence as unreasonable, contending, that at least a fifty percent reduction from the mandatory minimum sentence was warranted. After a thorough review, we affirm. Because we made a thorough analysis of Ms. Dalton’s original sentence and the charges against her in our prior opinion, we review the facts now only as they are pertinent to this appeal. Based on a stipulated offense level of 34 and a criminal history category IV, Ms. Dalton’s advisory Guidelines range at her resentencing was 210-262 months. Because of her prior felony drug conviction, however, she faced a statutory mandatory minimum sentence of 240 months, thus making her advisory Guidelines range 240-262 months. The Government filed substantial assistance downward departure motions under both USSG § 5K1.1 and 18 U.S.C. § 3553(e), and recommended a ten percent departure. The district court granted Ms. Dalton a reduction of 80 months from the mandatory minimum sentence and imposed a sentence of 160 months of imprisonment. It is this sentence that Ms. Dalton now appeals, arguing that the sentence was unreasonable, that undue weight was given to the Guidelines in determining her sentence, and that the sentence should be remanded to give the district court more freedom in determining a reasonable sentence. When sentencing a defendant, the district court must first determine the applicable advisory Guidelines range, as the court did here, relying upon Ms. Dalton’s offense level and criminal history. See United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, — U.S. —, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). The" }, { "docid": "22643877", "title": "", "text": "Williams’s original sentencing range was displaced by the statutory minimum, thus making him ineligible for the Amendment 706 reduction. See Rl-33. The district court granted Williams’s motion and reduced his sentence to fifty months. See Rl-35. The government timely filed a notice of appeal. See Rl-36. II. DISCUSSION “We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003). However, where the issue presented involves a legal interpretation, our review is de novo. See United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir.2003). As a general rule, district courts may not modify a term of imprisonment once it has been imposed, except in specific circumstances delineated in 18 U.S.C. § 3582(c). One such exception is for a “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In such a case, “the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. Amendment 706 allows a defendant to seek a reduction in his sentence if that sentence was based on the § 2D1.1 offense level for crack cocaine offenses. See U.S.S.G. App. C., Amend. 706. According to the Commission, a court’s decision to reduce a term of imprisonment based on Amendment 706 would be inconsistent with its policy statements if that amendment did “not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B) (Supp. Mar. 3, 2008). Accordingly, we have held that a defendant whose original sentencing range was based on something other than § 2D1.1 is precluded from receiving a sentence reduction, since the amendment would not lower his applicable guidelines range. See United States v. Moore, 541 F.3d 1323, 1327 (11th Cir.2008) (denying reduction for" }, { "docid": "5165311", "title": "", "text": "is not required to, grant a reduction from the amended guidelines range that is comparable to the original reduction. Higgins argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court had the authority to reduce his sentence further in consideration of the § 3553(a) factors because, like all guidelines provisions, the limitations in § 1B1.10 are now advisory. This court addressed a similar argument in United States v. Starks, 551 F.3d 839 (8th Cir.2009), cert. denied, 556 U.S. -, 129 S.Ct. 2746, 174 L.Ed.2d 257 (2009). In Starks, we held that Booker did not invalidate the requirement of § 3582(c) that a sentence reduction must be consistent with applicable policy statements issued by the Sentencing Commission. Id. at 842. We also found that proceedings under § 3582(c) do not constitute a full resen-tencing of the defendant. Id. at 843. Therefore, Starks was not entitled to a further reduction based on the § 3553(a) factors because § lB1.10(b)(2)(A) bars a district court from reducing the sentence of a defendant below the bottom of the amended guidelines range, unless the defendant’s original sentence was below the guidelines range applicable at the time of the original sentencing. Id. The district court originally sentenced Starks within the applicable guidelines range. Id. at 840. Thus, we concluded that Starks was not entitled to either an evidentiary hearing or a further reduction based on the § 3553(a) factors. Id. at 843. Although Starks involved an original sentence within the guidelines range, the reasoning in Starks compels the same result here. As we found in Starks, a district court must follow the applicable policy statements in granting a reduction under § 3582(c)(2). Id. at 842. Section lB1.10(b)(2)(B), the policy statement applicable to Higgins, limits any reduction below the amended guidelines range to an amount that is comparable to the reduction from the original guidelines range. Section lB1.10(b)(2)(B) does not authorize a further reduction based on the factors set out in § 3553(a). Accordingly, the district court lacked authority to grant a further reduction to Higgins based on" }, { "docid": "22042624", "title": "", "text": "If so, vacatur and resentencing is required. Id. at 120. If not, the district court must “place on the record a decision not to resentence, with an appropriate explanation,” id., and we will then review the sentence for reasonableness. United States v. Williams, 475 F.3d 468, 474 (2d Cir.2007). Similarly, when the sentencing of a defendant for a crack cocaine offense oc curred before Kimbrough, we cannot tell whether the district court would have exercised its now clear discretion to mitigate the sentencing range produced by the 100-to-l ratio. If it would have, an affirmance •of the original sentence would “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings,” Quinones, 511 F.3d at 316, because imposition of a sentence that the district court would not have imposed had it fully appreciated the extent of its discretion would, in our view, “seriously undermine the public’s confidence in the judicial process.” United States v. Keigue, 318 F.3d 437, 445 (2d Cir.2003) (discussing district court’s erroneous use of expired version of the Guidelines). “This is especially true given the relative ease of correcting the sentencing error on remand, thus accentuating the potential unfairness of allowing the district court’s error to stand.” United States v. Gordon, 291 F.3d 181, 195 (2d Cir.2002). We therefore adopt the Crosby mechanism and apply it here. Where a defendant has not preserved the argument that the sentencing range for the crack cocaine offense fails to serve the objectives of sentencing under § 3553(a), we will remand to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence knowing that it had discretion to deviate from the Guidelines to serve those objectives. If so, the court should vacate the original sentence and resentence the defendant. If not, the court should state on the record that it is declining to resentence, and it should provide an appropriate explanation for this decision. On appeal, if we have not already done so, we will review the sentence for reasonableness. Crosby recognized that a resen-tencing might yield a higher sentence. That is a remote and" }, { "docid": "10085156", "title": "", "text": "systemic function of the selected Guide lines range will affect the sentence.” Id. at 1346. Hurlburt’s 72-month sentence fell below the original Guidelines range but is above the correctly calculated range once the Johnson error is removed. The same is true of Gillespie’s 84-month sentence. The defendants request full remand for resen-tencing. The government argues for a limited remand akin to the procedure we adopted in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for Booker errors. Paladino fashioned a “limited remand to permit the sentencing judge to determine whether he would (if required to resen-tence) reimpose his original sentence.” Id. at 484. But we’ve generally rejected the Paladino-style limited-remand procedure when the sentencing error involves a miscalculation of the defendant’s Guidelines range. See United States v. Williams, 742 F.3d 304 (7th Cir. 2014). “When a district court incorrectly calculates the [G]uide-line[s] range, we normally presume the improperly calculated [G]uideline[s] range influenced the judge’s choice of sentence, unless he says otherwise.” United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). Neither judge said otherwise here. Accordingly, we Vacate the defendants’ sentences and RemaNd for resentencing. . Another appeal we decide today, United States v. Rollins, No. 13-1731, also raises the same issue and was argued the same day. Because Rollins presents an additional issue unique to that case, we have not consolidated it here. . District Judge J. Phil Gilbert, of the Southern District of Illinois, served on the original panel, sitting by designation. We appreciate his willingness to assist the court. . The Fifth Amendment provides: \"No person shall ... be deprived of life, liberty, or property, without due process of law....” U.S. Const amend. V. . As we’ve noted, the Supreme Court has granted certiorari in a case from the Eleventh Circuit. Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted,U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). The Bedeles panel followed Matchett, the Eleventh Circuit's precedent on this question. HAMILTON, Circuit Judge, joined by POSNER, FLAUM, and EASTERBROOK, Circuit Judges, dissenting. By now the Supreme Court’s decision in Johnson" }, { "docid": "22240196", "title": "", "text": "any resentencing decision. The “policy statement” that has served to cause confusion in this case states as follows: If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate. U.S.S.G. § lB1.10(b)(2)(B). The parties disagree as to how the first and second sentences of this provision should be construed in conjunction with the other. The Government interprets the first sentence of subsection (B) to refer to sentences where a “downward departure” expressly authorized under the Guidelines was granted at the initial sentencing. In making this argument, the Government distinguishes between departures, still made pursuant to the Guidelines themselves, and a variance from the Guidelines under Booker. See United States v. Jordan, 544 F.3d 656, 671 n. 12 (6th Cir.2008), cert. denied, — U.S. --, 129 S.Ct. 1382, 173 L.Ed.2d 635 (2009) (“A sentence outside the Guidelines based on Chapter 5 of the Guidelines is a ‘departure’ or ‘Guideline departure,’ whereas a sentence outside the Guidelines based on the § 3553(a) factors is a ‘variance’ or ‘non-Guideline departure.’ ”), quoted in Appellee’s Brief at 15-16. In this case, Curry received a sentence that was below his original Guideline range based on Booker. The Government therefore argues that Curry’s situation is exactly the type described in the second sentence of § 1B1.10(b)(2)(B) in which a further reduction in sentence would generally not be appropriate. In his reply brief, Curry points out that § 1B1.10(b)(2)(B) itself makes no mention of either departures or variances, and further argues that, post -Booker, there is no longer any substantive legal distinction between variances and departures for sentencing purposes. Cf. United States v. Blue, 557 F.3d 682, 685-86 & n. 2" }, { "docid": "18230497", "title": "", "text": "should apply to yield a sentence reduction “comparably less than the amended guideline range,” U.S.S.G. § lB1.10(b)(2)(B), which in his case is 235 to 293 months applying a CHC of VI. Our analysis starts and ends with the plain and unambiguous language of § lB1.10(b)(2)(A) and (B). Pursuant to § lB1.10(b)(2)(A), a court cannot reduce a defendant’s sentence under “18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1).” U.S.S.G. § 1B1.10(b)(2)(A). The only exception to this rule is found in § 1B1.10(b)(2)(B). Under § lB1.10(b)(2)(B), reductions “comparably less than the amended guideline range” are permitted only in cases where the original term of imprisonment was below the applicable guideline range “pursuant to a government motion to reflect the defendant’s substantial assistance to authorities.” Id. § 1B1.10(b)(2)(B). Every circuit court to have addressed the issue agrees that § 1B1.10(b)(2)(B) bars a district court from lowering a defendant’s below-guideline sentence unless the departure at his original sentencing was based on his substantial assistance to the government. See United States v. Berberena, 694 F.3d 514, 518-19 (3rd Cir.2012); United States v. Anderson, 686 F.3d 585, 588 (8th Cir.2012); United States v. Glover, 686 F.3d 1203, 1207 (11th Cir.2012); accord United States v. Colon, 707 F.3d 1255, 1258 (11th Cir.2013); United States v. Lizalde, 502 Fed.Appx. 655, 657 (9th Cir.2012) (unpublished); Valdez, 492 Fed.Appx. at 898-99; United States v. Beserra, 466 Fed.Appx. 548, 550 (7th Cir.2012) (unpublished). We see no reason to depart from our sister circuits given the plain language of § 1B1.10(b)(2)(A) and (B). In the instant case, Hogan received a below-guideline sentence but it was based on a departure in his CHC, not substantial assistance to the government. So he does not fall within the exception under § 1B1.10(b)(2)(B) to receive a “reduction comparably less than the amended guideline range.” U.S.S.G. § lB1.10(b)(2)(B). To obtain relief under § 3582(c), the guideline amendments at issue must “lower[ ]” a defendant’s applicable guideline range. U.S.S.G. § lB1.10(a)(2)(B) (“A reduction in [a] defendant’s term of imprisonment is" }, { "docid": "22419129", "title": "", "text": "indicated that it had also completed the second page of the form, but had filed it under seal. The Eleventh Circuit again vacated the district court’s order. While noting that the “district court recalculated the applicable guideline range,” the court concluded that it was insufficient for the district court to summarily hold that “the factors in § 3553 weigh strongly against any reduction in [the defendant’s] 360 month sentence.” Id. at 866. This was “insufficient to demonstrate that the district court properly considered the § 3553(a) factors when it denied [the defendant’s] motion.” Id. The district court here did not provide a sufficient explanation of its decision to retain a now above-Guidelines sentence, despite twice sentencing Christie at the bottom of his Guidelines range. See Burrell, 622 F.3d at 965 (vacating resentencing order where defendant’s “amended sentence is at the top of his amended range, but his initial sentence was near the middle of his guidelines range” and noting that this lack of proportionality precludes the “pre-sumfption] that the reasons given ... at his initial sentencing apply with equal force to the amended sentence”). Nothing in this opinion should be taken as implying any view on the merits of Christie’s application for a sentencing reduction. The government raised various objections to such a reduction, which the district court was required to consider. After appropriate consideration of the sentencing factors under 18 U.S.C. § 3553(a), the district court may well identify cogent reasons to deny the request for a reduction. On the present record, however, we lack any understanding of the reasoning underlying the district court’s decision, and accordingly are unable to determine whether that decision was within the bounds of the district court’s discretion. CONCLUSION For the foregoing reasons, the order of the district court is hereby VACATED and REMANDED. . The letter submitted by defense counsel also relied on the specific factual findings in the 2003 Pre-Sentence Report in asserting that the total weight of cocaine base involved in Christie’s offense was 184 grams. . Christie’s counsel submitted a letter to the court on May 9, 2012, explaining that" }, { "docid": "16440565", "title": "", "text": "Minnesota conviction for simple robbery; and a Minnesota conviction for fleeing from an officer. Applying the career offender enhancement, Maxwell’s Sentencing Guidelines range was between 262 and 327 months’ imprisonment. The district court sentenced Maxwell to 144 months’ imprisonment, adjusted to 125 months to account for the 19 months that Maxwell had already served. The district court also imposed five years of supervised release. Maxwell appealed, and this court affirmed his conviction. See United States v. Maxwell, 724 F.3d 724 (7th Cir. 2013). But we found that the Supreme Court’s decision in Dorsey v. United States, — U.S.-, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), held that the Fair Sentencing Act’s lower mandatory mínimums applied to all defendants sentenced after August 3, 2010. Id. at 728. So we ordered “a limited Pala-dino remand so that the district court may inform us whether it wants to resentence the defendant.” Id. at 729. On remand, the district court noted that in light of Dorsey, it might have issued a different sentence; so we ordered a full remand and resen-tencing. See United States v. Maxwell, 527 Fed.Appx. 550, 551 (7th Cir. 2013). On July 30, 2014, the district court re-sentenced Maxwell, noting that in light of the Fair Sentencing Act and Dorsey, Maxwell’s Sentencing Guidelines range was now between 210 and 240 months. The district court sentenced Maxwell to 120 months’ imprisonment and gave the following explanation: Taking into consideration the nature of [Maxwell’s] offense and the correct advisory guidelines; as well as [Maxwell’s] personal history, characteristics and recent steps toward rehabilitation; I find, as to Count 1 of the indictment, that a sentence of 120 months is reasonable and not more than necessary to satisfy the statutory purposes of sentencing set forth at Section 3553(a) of Title 18. The district court again credited Maxwell 19 months for the amount of time he had served in prison prior to his conviction. The district court retained the original terms and conditions of Maxwell’s supervised release. Maxwell appealed again. On February 25, 2015, Maxwell and the government filed a joint motion for summary reversal and" }, { "docid": "11789716", "title": "", "text": "we review de novo. See United States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir.2009). Pursuant to section 3582(c)(2), a district court may reduce a defendant’s sentence if it was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “Under 18 U.S.C. § 3582(c)(2), a defendant may be eligible for a sentence reduction if he is currently serving a sentence for a crack cocaine offense and [Amendment 706] has lowered the guideline range under which he was originally sentenced.” United States v. Curry, 584 F.3d 1102, 1103-04 (8th Cir.2009). However, a reduction is not authorized where Amendment 706 “does not have the effect of lowering the defendant’s applicable guideline range.” United States Sentencing Commission, Guidelines Manual, § lB1.10(a)(2)(B) (Nov.2009). The issue presented in this appeal is the applicability of Amendment 706 to a career offender whose original sentence was based on the drug quantity table, not the career offender-guideline. We addressed this issue in United States v. King, 360 Fed.Appx. 714 (8th Cir.2010) (unpublished per curiam). There, King’s base offense level from the drug quantity table was 38. Id. at 715. King also qualified as a career offender, which yielded an offense level of 37. Id. In calculating King’s advisory Guidelines range, the district court utilized the higher drug-quantity offense level. Id.; see supra note 7. King was originally sentenced to 292 months imprisonment, the bottom of his Guidelines range, but his sentence was later reduced — by approximately 33% — to 195 months, via the district court’s grant of the government’s motion to reduce the sentence. King, 360 Fed.Appx. at 715. King later filed a section 3582(c)(2) motion for a sentence reduction in light of Amendment 706. Id. The district court recognized that Amendment 706 reduced King’s base offense level from 38 to 36 but applied the higher career offender offense level of 37, yielding a new Guidelines range of 262 to 327 months imprisonment. Id. After applying a 33% reduction to the bottom" }, { "docid": "22216100", "title": "", "text": "Our cases applying Clark uniformly have involved proportionality between the initial sentence and the amended sentence. United States v. Paige, 381 Fed.Appx. 639, 640 (8th Cir.2010) (unpublished per curiam); United States v. Mull, 365 Fed.Appx. 723, 725 (8th Cir.2010) (unpublished per curiam), cert. denied, 561 U.S. -, 130 S.Ct. 3483, — L.Ed.2d-(June 21, 2010); United States v. Phillips, 361 Fed.Appx. 702, 703 (8th Cir.2010) (unpublished per curiam); United States v. Geralds, 338 Fed.Appx. 557, 558 (8th Cir.2009) (unpublished per curiam), cert. denied, 561 U.S. -, 130 S.Ct. 3465, — L.Ed.2d - (June 21, 2010); United States v. Wiley, 334 Fed.Appx. 782, 783 (8th Cir.2009) (unpublished per curiam). That proportionality is missing here. Burrell’s amended sentence is at the top of his amended guidelines range, but his initial sentence was near the middle of his guidelines range. Because Burrell’s initial and amended sentences are not proportional, we cannot presume that the reasons given for imposing a sentence near the middle of the guidelines range at his initial sentencing apply with equal force to the amended sentence at the top of the amended guidelines range. Furthermore, we note that the district court’s order in Clark contained the following sentence explaining its decision: “The amended sentence imposed is at the high end of the guideline range, commensurate with the sentence at the high end of the guideline range imposed at the initial sentencing hearing.” United States v. Clark, No. 3:02-cr-34, Dkt. No. 358, Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2) (S.D. Iowa June 6, 2008). The district court here did not explain why it decided to impose an amended sentence at the top of the amended guidelines range when it originally imposed a sentence near the middle of the initial guidelines range. Therefore, the Government’s reliance on Clark is misplaced. The dissent would apply only plain error review because Burrell failed to challenge the inadequate explanation of his sentence before the district court. Indeed, an argument that a district court failed to explain a sentence must be reviewed for plain error if it was not raised to the" }, { "docid": "22419128", "title": "", "text": "did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion.” Id. at 477-78 (emphasis in original). Accordingly, the court concluded that “[s]ome minimal explanation is required.” Id. at 478. See also United States v. Ray, 420 Fed.Appx. 497, 499 (6th Cir.2011) (unpublished) (vacating and remanding a district court’s form order denying defendant’s motion for a reduced sentence, where “the court merely checked the ‘denied’ box [and] filled in [the defendant’s] original sentencing information”). The Eleventh Circuit recently confronted a challenge to the use of the same form order that the district court employed here: the November 2011 version of AO 247. See United States v. Frazier, 502 Fed.Appx. 863 (11th Cir.2012) (unpublished per curiam). In Frazier, the district court had denied a motion for resen-tencing using AO 247, but, as in the instant case, only the first page was included in the record on appeal. Id. at 864-65. Remand was ordered by the Eleventh Circuit, and the district court then indicated that it had also completed the second page of the form, but had filed it under seal. The Eleventh Circuit again vacated the district court’s order. While noting that the “district court recalculated the applicable guideline range,” the court concluded that it was insufficient for the district court to summarily hold that “the factors in § 3553 weigh strongly against any reduction in [the defendant’s] 360 month sentence.” Id. at 866. This was “insufficient to demonstrate that the district court properly considered the § 3553(a) factors when it denied [the defendant’s] motion.” Id. The district court here did not provide a sufficient explanation of its decision to retain a now above-Guidelines sentence, despite twice sentencing Christie at the bottom of his Guidelines range. See Burrell, 622 F.3d at 965 (vacating resentencing order where defendant’s “amended sentence is at the top of his amended range, but his initial sentence was near the middle of his guidelines range” and noting that this lack of proportionality precludes the “pre-sumfption] that the reasons given ... at his initial" }, { "docid": "16440566", "title": "", "text": "and resen-tencing. See United States v. Maxwell, 527 Fed.Appx. 550, 551 (7th Cir. 2013). On July 30, 2014, the district court re-sentenced Maxwell, noting that in light of the Fair Sentencing Act and Dorsey, Maxwell’s Sentencing Guidelines range was now between 210 and 240 months. The district court sentenced Maxwell to 120 months’ imprisonment and gave the following explanation: Taking into consideration the nature of [Maxwell’s] offense and the correct advisory guidelines; as well as [Maxwell’s] personal history, characteristics and recent steps toward rehabilitation; I find, as to Count 1 of the indictment, that a sentence of 120 months is reasonable and not more than necessary to satisfy the statutory purposes of sentencing set forth at Section 3553(a) of Title 18. The district court again credited Maxwell 19 months for the amount of time he had served in prison prior to his conviction. The district court retained the original terms and conditions of Maxwell’s supervised release. Maxwell appealed again. On February 25, 2015, Maxwell and the government filed a joint motion for summary reversal and remand for resentencing in regards to certain conditions of Maxwell’s supervised release, in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). We granted the motion on April 30, 2015, vacating the sentence and remanding for a second resentencing. The district court held Maxwell’s second resentencing hearing on August 11, 2015. Maxwell argued, and the government conceded, that in light of Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Maxwell’s prior Minnesota conviction for fleeing from an officer no longer constituted a “crime of violence” under the Sentencing Guidelines for purposes of the career offender enhancement. Maxwell also argued that his prior Minnesota conviction for simple robbery was not a crime of violence, and thus he was not a career offender. The district court responded: [I]f I didn’t make it clear: in my last resentencing, as well as really the first one, I didn’t feel bound by the career offender guideline. I arrived at a sentence based on the factors of Section 3553(a) of Title 18 and" }, { "docid": "22240195", "title": "", "text": "argues that the second sentence of § lB1.10(b)(2)(B) establishes a presumption that a further reduction “would not [have been] appropriate” in this case because Curry had already received a “non-guidelines sentence [determined] pursuant to § 3553(a) and Booker.” (Appellee’s Brief at 14.) Thus, the issue presented here is whether and to what extent the second sentence of § lB1.10(b)(2)(B) may limit a sentencing court’s discretion to re-sentence a defendant. In that regard, as previously indicated, resentencing is authorized under 18 U.S.C. § 3582(c)(2) only if the defendant was originally sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” If that hurdle is met, and the amendment has been made retroactive, the district court has the discretion to reduce a prison term “after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Sentencing Guideline § 1B1.10 incorporates policy statements that are to be considered in any resentencing decision. The “policy statement” that has served to cause confusion in this case states as follows: If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate. U.S.S.G. § lB1.10(b)(2)(B). The parties disagree as to how the first and second sentences of this provision should be construed in conjunction with the other. The Government interprets the first sentence of subsection (B) to refer to sentences where a “downward departure” expressly authorized under the Guidelines was granted at the initial sentencing. In making this argument, the Government distinguishes between departures, still made pursuant to the Guidelines themselves, and" }, { "docid": "12652242", "title": "", "text": "because of the operation of ... a statutory mandatory minimum.” U.S.S.G. § 1B1.10 app. n. 1. Golden claims that U.S.S.G. application note 3 provides additional support for the sentence reduction he seeks. U.S.S.G. § 1B1.10 app. n. 3. That note permits a sentence below the guideline minimum when a defendant has rendered substantial assistance, and clarifies that in such circumstances a subsequent amendment lowering the minimum term of imprisonment also permits a proportional reduction to the offender’s sentence. Id. This is what permitted Golden’s 2008 sentence reduction: after the bottom of Golden’s guideline range changed from 262 months to 240 months, the district court applied the same 39% departure to the new minimum and resentenced him to 146 months. Note 3 does not apply in this case, however, since Golden’s guideline range was not changed by the 2010 amendment. Golden points out that two other circuit courts have decided that a sentence reduction was authorized where an offender’s initial guideline range was higher than the mandatory minimum and a subsequent guideline amendment lowered the bottom of the applicable range below this statutory minimum. See United States v. Wren, 706 F.3d 861 (7th Cir.2013); United States v. Liberse, 688 F.3d 1198 (11th Cir.2012). In Liberse, the offender’s original guideline range was 121 to 151 months and the mandatory minimum was 120 months. A subsequent amendment reduced the bottom of his guideline range to the statutory minimum of 120 months, and thus Liberse was eligible for resentencing. Liberse, 688 F.3d at 1202. This is the same situation Golden faced in 2008, when a guideline amendment lowered the bottom of his guideline range to the mandatory minimum. The situation changed for Golden in 2010, however, because his mandatory minimum was not affected by the new amendment. The factual situation in Wren was somewhat similar in that two offenders had initial guideline ranges of 121 to 151 months and a mandatory minimum of 120 months applied. A subsequent amendment lowered the bottom of their guideline ranges below this statutory minimum, however. 706 F.3d at 862. Even though this minimum would have become the bottom" }, { "docid": "22419126", "title": "", "text": "reaching its determination that the pre-existing 151 month term was the appropriate sentence for Christie. The basis for the district court’s decision is especially unclear because Christie’s sentence of 151 months in fact was above his now-applicable Guidelines range of 120-150 months. In 2004, the district court imposed Christie’s original sentence of 168 months, which represented the low end of his initial 168-210 month Guidelines range, and in April 2010, the district court granted Christie’s first § 8582(c) motion to impose a sentence of 151 months, which again was at the bottom of his then-applicable Guidelines range of 151-188 months. There is no indication in the record as to why an above-Guidelines sentence is now called for, or why a comparable within-Guidelines sentence would now be inappropriate. Our conclusion that at least some minimal statement of reasons for a court’s action on a § 3582(c)(2) motion is required accords with the view of every other Circuit to have addressed the issue. In United States v. Burrell, for example, the Eighth Circuit vacated and remanded a resentencing decision where “the record [did] not allow [the court] to discern how the district court exercised its discretion.” 622 F.3d 961, 964 (8th Cir.2010). The court found no “indication that the district court adopted the reasoning in the Government’s response to [the defendant’s] § 3582 motion,” and while there was little “doubt that the [district] court read and considered [the defendant’s] motion and the Government’s response,” the Eighth Circuit nonetheless found “no explanation as to what the court relied on to make its decision.” Id. Similarly, the Seventh Circuit vacated the district court’s denial of a motion for resentencing and remanded the case on the ground that it was insufficient to provide a one-sentence explanation stating that “a sentence reduction is not appropriate.” United States v. Marion, 590 F.3d 475, 476 (7th Cir.2009). The court reasoned that it was not inherently problematic to use a form order or even to provide “only a one-sentence explanation”; rather “[t]he problem arises from the fact that it is impossible for us to ensure that the district court" }, { "docid": "5165310", "title": "", "text": "authority to reduce Higgins’s sentence further. Higgins appeals. Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” (Emphasis added.) The Sentencing Commission issued § 1B1.10, entitled “Reduction in Term of Imprisonment as a Result of Amended Guideline Range,” as the applicable policy statement. Section lB1.10(b)(2)(A) provides that in granting a reduction, a court may not reduce the defendant’s term of imprisonment below the bottom of the amended guidelines range, except as provided in § lB1.10(b)(2)(B). In turn, § lB1.10(b)(2)(B) provides that if the defendant’s original term of imprisonment was below the guidelines range applicable at the time of the original sentencing, the district court may, but is not required to, grant a reduction from the amended guidelines range that is comparable to the original reduction. Higgins argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court had the authority to reduce his sentence further in consideration of the § 3553(a) factors because, like all guidelines provisions, the limitations in § 1B1.10 are now advisory. This court addressed a similar argument in United States v. Starks, 551 F.3d 839 (8th Cir.2009), cert. denied, 556 U.S. -, 129 S.Ct. 2746, 174 L.Ed.2d 257 (2009). In Starks, we held that Booker did not invalidate the requirement of § 3582(c) that a sentence reduction must be consistent with applicable policy statements issued by the Sentencing Commission. Id. at 842. We also found that proceedings under § 3582(c) do not constitute a full resen-tencing of the defendant. Id. at 843. Therefore, Starks was not entitled to a further reduction based on the § 3553(a) factors because § lB1.10(b)(2)(A) bars a district court from reducing the sentence" } ]

[ { "docid": "12683779", "title": "", "text": "in the lease as the 6,796 square feet shown on the site plan, which clearly indicated that the leased premises were limited to the interior of the store and did not include the exterior walls, the roof, or the surrounding land. (Lease § 1.01) Common areas, including the parking lots, roadways, and pedestrian sidewalks, were provided by Minges Creek “for the convenience and use of the tenants of the Shopping Center, and their respective subtenants, agents, employees, customers, invitees, and any other licensees of Landlord.” (Lease § 7.03) The lease also set forth the Card Shop’s insurance obligations as a tenant: Tenant shall, during the entire term hereof, keep in full force and effect a policy of public liability and property damage insurance with respect to the leased premises, and the business operated by Tenant and any subtenants of Tenant in the leased premises .... The policy shall name Landlord, any other parties in interest designated by Landlord, and Tenant as insured .... (Lease § 10.01) (Emphasis added.) Pursuant to the Card Shop’s lease obligation, Royal issued a general liability policy to the Card Shop to cover its Minges Brook Mall store and several other Card Shop locations. An addendum to Royal’s policy with the Card Shop defined additional insureds as follows: The following is added to SECTION II-WHO IS AN INSURED: 5. a. Any person or organization you are required by a written contract, agreement or permit to name as an insured is an insured but only with respect to liability arising out of: 2. Premises owned or used by you. (Royal Ins. Policy “Enhancement Endorsement” § 12). The Card Shop, along with all of the other tenants of the Minges Brook Mall, was also required by the lease to pay a proportionate share of Minges Creek’s cost of maintaining and insuring the common areas of the mall. Minges Creek’s insurance policy covering the common areas was issued by Chubb. The underlying accident that gave rise to the insurance dispute in this case occurred in March of 1999 when Peggy Lam-pert, a customer of the Card Shop, slipped and" } ]

[ { "docid": "22917181", "title": "", "text": "general contractor’s work was taking place. The court held that the subcontractor’s employee’s “presence at the worksite, and the ensuing accident, was sufficiently connected to [the general contractor’s] ‘work’ for the County to constitute a ‘substantial nexus’ between the contract and the contractor’s ‘work’ requiring [the insurer] to cover the loss.” Id. See also, e.g., Franklin Mut. Ins. Co. v. Security Indem. Ins. Co., 275 N.J.Super. 335, 646 A.2d 443, 446 (1994) (upholding grant of summary judgment for insurer of office building owner for defense and indemnity costs where office building owner was “additional insured” under insurance policy of restaurant in office building; and holding that a slip and fall accident on the steps of the restaurant was an event for which there was “a substantial nexus between the occurrence and the use of the leased premises”); Harrah’s Atlantic City, Inc. v. Harleysville Ins. Co., 288 N.J.Su per. 152, 671 A.2d 1122, 1125 (1996) (reversing trial court’s judgment and holding that where store’s insurance policy listed landlord, Harrah’s Casino, as “additional insured,” landlord came within the policy’s coverage where injured parties were hit by automobile driven by Harrah’s parking valet, since the injured individuals had “parked in Harrah’s garage primarily to shop at [the store],” and “[w]hen they completed their shopping, they went directly toward the garage to retrieve the ear and were injured in that process. Thus, Har-rah’s liability arose out of the risk generated by [the store’s] business on the premises.”). Here, where the resident’s underlying complaints alleged problems with the fire and smoke alarm systems, the work performed by T & R was squarely at issue in the complaints, and so Freddie Mac fell within the coverage of the Scottsdale policy- Scottsdale argues that New Jersey case law mandates “a fact-sensitive approach ... to determine whether there is coverage.” Scottsdale Br. at 26. In this case, Scottsdale asserts, “The underwriting is on the basis of liability for the work of T & R, not on FHLMC’s [ (Freddie Mac’s) ] exposure for claims when a fire occurs on its premises. Surely not every fire at FHLMC would" }, { "docid": "12683786", "title": "", "text": "Unambiguous terms “must be enforced as written,” and insurers are not liable for risks that they do not assume. Id. In the present case, the district court held Royal liable for both the expense of litigating Lampert’s suit and the ultimate settlement cost. It thus held that Royal had both a duty to defend and a duty to indemnify Minges Creek, a named insured under Royal’s policy with the Card Shop. According to the Michigan Supreme Court, “the duty to defend is broader than the duty to indemnify and is properly invoked when claims are even arguably within coverage.” Polkow v. Citizens Ins. Co., 438 Mich. 174, 476 N.W.2d 382, 384 (1991) (quotation marks omitted). Although all doubts regarding whether the duty to defend applies are resolved in favor of the insured, id., “if coverage is not possible, then the insurer is not obliged to provide a defense.” Mario Beauty Supply, Inc. v. Farmers Ins. Group, 227 Mich.App. 309, 575 N.W.2d 324, 327 (1998) (construing an ambiguous policy against the insurer). We must therefore first determine whether Lampert’s suit against Minges Creek was covered by Royal’s insurance policy. C. The insurance contract 1. Was Minges Creek a named insured? Because the lease agreement between Minges Creek and the Card Shop required the Card Shop to name Minges Creek as an additional insured, the district court held that Royal was obligated to defend and indemnify Minges Creek. Royal contends, however, that Minges Creek was an additional insured under the Card Shop’s policy only with respect to incidents occurring inside of the Card Shop. This is because the “written contract, agreement or permit” requiring the Card Shop to name Minges Creek as an additional insured, as stated in Royal’s Insurance Policy “Enhancement Endorsement” § 12, obligated the Card Shop to insure only the “leased premises.” ( Lease § 10.01) Royal issued a certificate of liability insurance to Minges Creek, stating that “the certificate holder is listed as an additional insured-Landlord with respect to the property located at [Minges Brook Mall].” Minges Creek therefore qualified as an additional insured under Royal’s policy. The" }, { "docid": "14048315", "title": "", "text": "the nature of the enterprise or activity conducted therein. Put another way, an OLT policy does not cover liability arising from the type of business activity which the insured conducts in the building. Id. at 962 (citation omitted). Similarly, in American Empire Surplus Lines Ins. Co. v. Bay Area Cab Lease, Inc., 756 F.Supp. 1287 (N.D.Cal.1991), the court said that: The policy issued to Cab. Co. is a Landlord's Owner’s & Tenant’s policy, and is limited by its terms to “accidents” occurring “on the premises.” The type of policy issued to Cab Co. is intended \"simply to protect against liability arising from the condition or use of the building as a building [and] must be distinguished from insurance against liability arising from the nature of the enterprise or activity conducted therein.” Id. at 1289 (quoting 11 Couch on Insurance § d 44:379, at 551-552 (Rev. ed.1982 and supp.1989)). . In the second category are cases such as Walthers v. Travelers Casualty and Surety Co., 1999 WL 793939 (D.Or.1999), where the court held that the word \"incidental” makes the OL & T provision extremely inclusive and that such a policy covers a corporation's negligence in hiring and supervision of a dentist and the making of dental appointments where the actions occurred on the insured premises. See id. at *5. See also Hartford Fire Ins. Co. v. Annapolis Bay Charters, Inc., 69 F.Supp.2d 756, 761 (D.Md.1999) (holding that an OL & T policy which stated that the relevant premises were the \"offices-general” and \"hardware-retail” areas of a certain building offered some coverage for business operations related to general office or hardware-retail activities, but the specialized business operation of chartering watercraft to be used off-site, even though the chartering occurred on the insured premises, did not qualify as a \"use ... of the premises”). .In the third category of cases, courts have held that, in certain circumstances, off-premises accidents can be covered under OL & T policies. In Servants of the Paraclete, Inc. v. Great American Insurance Co., 857 F.Supp. 822 (D.N.M.1994), the court said: if Great American intended its insured to understand" }, { "docid": "12683793", "title": "", "text": "Because we conclude that the term premises is restricted to the inside of the Card Shop, Lampert’s accident outside of the Card Shop is not covered by Royal’s policy. We therefore do not have to analyze the definition of the term “used,” but wish to reiterate that even Minges Creek looked to the lease to define that term. Moreover, we note that an absurd result would occur if the terms “premises” and “used” were both interpreted according to Minges Creek’s definition of premises (the Card Shop and the sidewalk around it) and its expansive definition of used (in which all tenants use the common areas). Under its interpretation, Minges Creek could seek indemnity under Royal’s policy even if a patron of another store fell on the common sidewalk. In fact, it could presumably seek coverage as the named insured from every tenant in the shopping center whose policy contained language similar to Royal’s. This interpretation is all the more unreasonable in light of Ming-es Creek having procured a separate in surance policy through Chubb that explicitly covered the common areas. Minges Creek has clearly not advanced a reasonable interpretation of “[p]remises owned or used” by the Card Shop. For the reasons stated above, we also hold that Royal had no duty to defend against Lampert’s claims. Even accepting all of Lampert’s allegations as true, Royal’s policy does not cover her accident. Royal therefore was not required to defend Minges Creek against the lawsuit by Lampert. See Mario Beauty Supply, 227 Mich.App. 309, 575 N.W.2d 324 at 327 (holding that “if coverage is not possible, then the insurer is not obliged to provide a defense”). At bottom, this case appears to involve an effort by one insurance company (Chubb, the insurer of the common areas) to obtain reimbursement from another insurance company (Royal, the insurer of the Card Shop’s leased premises). The' only reasonable reading of the documents controlling the relationship between the parties,'however, convinces us that Chubb was the proper insurance company to defend and indemnify Minges Creek for Lam-pert’s accident that occurred in the common areas. III. CONCLUSION For" }, { "docid": "12683789", "title": "", "text": "more appropriately classified as a “term of art,” however, reference to a specialized dictionary is appropriate. Black’s Law Dictionary 1180-81 (6th ed.1997), is such a specialized dictionary, and it defines premises as follows: Land with its appurtenances and structures thereon. Premises is an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is to be determined by its context and is dependent upon circumstances in which used, and may mean a room, shop, building, or any definite area. Black’s Law Dictionary thus recognizes that the term premises has an elastic and context-specific definition. The district court focused on the first sentence of the definition and concluded that Black’s supports Minges Creek’s claim that the accident is covered by Royal’s policy. But the court failed to consider the definition beyond the first sentence, specifically the part stating that the meaning of the term premises “is to be determined by its context and is dependent upon circumstances in which used ....” Id. Royal persuasively argues that, throughout the insurance policy, “an intent is clearly shown to rely on the written contract [i.e. the lease] to define the obligation to add the landlord as a named insured, and to define the scope of the obligation owed to that party.” It contends that the term premises in the insurance policy is unambiguous because the lease’s definition of the term “leased premises” should be deemed to control the meaning of the term premises as used in the policy. A term in a contract is unambiguous if there is only one way to reasonably interpret the term. See Wilkie, 664 N.W.2d at 786-87 (defining an ambiguous term in a contract as one where there is more than one reasonable interpretation). Royal argues that because its policy specifically refers to the “written contract, agreement or permit” in its “additional insured” section, the only reasonable interpretation of the term premises is one based on the lease. We agree that the lease and Royal’s policy are inextricably intertwined and should be interpreted in context with each other. Although Minges Creek argues against" }, { "docid": "12683790", "title": "", "text": "“an intent is clearly shown to rely on the written contract [i.e. the lease] to define the obligation to add the landlord as a named insured, and to define the scope of the obligation owed to that party.” It contends that the term premises in the insurance policy is unambiguous because the lease’s definition of the term “leased premises” should be deemed to control the meaning of the term premises as used in the policy. A term in a contract is unambiguous if there is only one way to reasonably interpret the term. See Wilkie, 664 N.W.2d at 786-87 (defining an ambiguous term in a contract as one where there is more than one reasonable interpretation). Royal argues that because its policy specifically refers to the “written contract, agreement or permit” in its “additional insured” section, the only reasonable interpretation of the term premises is one based on the lease. We agree that the lease and Royal’s policy are inextricably intertwined and should be interpreted in context with each other. Although Minges Creek argues against referring to the lease in order to define the term premises in the policy, Minges Creek’s conclusion that the Card Shop used the area where Lampert fell is based on the provision of the lease (Lease § 7.03) designating the common areas for use by all of the tenants of the shopping center. Minges Creek cannot have it both ways. The plain language of Royal’s policy links it to the lease, and therefore the only reasonable interpretation of “[premises owned or used by” the Card Shop is one that is informed by the lease. Given the lease’s provision obligating the Card Shop to insure only the inside of its store, we conclude that the only reasonable interpretation of the term premises comports with the lease’s definition of the term “leased premises.” The lease defines the leased premises as the 6,796 square feet inside the Card Shop, and does not include the sidewalk where Lampert fell. And the lease obligated the Card Shop to name Minges Creek as an insured only with respect to the “leased" }, { "docid": "2179124", "title": "", "text": "packaged food items and such other items as may be typically sold in an Odd Lot Trading, Inc. store.” (b) The order which approves the assumption of the Lease by TSW Nanuet and its assignment to Odd Lot shall contain a provision restraining the Landlord from in any way interfering with the operations of Odd Lot and its use of the Premises, provided that Odd Lot fulfills the terms and provision's of the Lease as may be modified by the order approving the assumption and assignment of the Lease. See Debtor’s Application for Assumption and Assignment at 3 (emphasis added). 12. The Rockland Shopping Center contains approximately 250,000 square feet. Having previously lost the largest anchor store, Korvettes, Inc., the present landlord divided the space between two smaller stores, Pathmark, a food store, and Service Merchandise, a catalogue store selling general merchandise by catalogue. Other tenants in the shopping center are the debtor (toy store), Save-A-Lot (general merchandise close-outs), Channel Lumber (home improvements), Hair Affair Hair Cutters (unisex haircutting), Coriano’s (women’s beauty salon), Household Finance Co. (money lending), Jack LaLanne Health Spa (health spa), McDonald’s (fast food), Appliance City (major appliances), Hess (gas station) and a dry cleaners. 13. Additionally, the landlord has leased space at the shopping center to the following new tenants: Kids-R-Us (children’s clothing), Pickwick Village (card shop), Save-on-Sneaks (running shoe store), Factory Warehouse Clothing Store (men’s, women’s and children’s clothing), a bank, an Italian restaurant, a Chinese restaurant and a photo processing store. 14. The leases with the tenants in the Rockland Shopping Center contain affirmative and negative covenants with the intention of protecting the tenants from competing with one another in their primary lines of business, although there may be an overlapping of certain products. Thus, in addition to the debtor, toys might be purchased at Pathmark, Save-A-Lot and Service Merchandise. Household items might be purchased at Pathmark, Channel Lumber and Save-A-Lot. 15. Odd Lot admittedly would not assume the debtor’s lease as it now reads. For Odd-Lot to be willing to assume the lease, it would require a modification of the restrictive use clause" }, { "docid": "8363919", "title": "", "text": "1079-80 (1st Cir.1987) (holding that the Puerto Rico Rules of evidence exclude extrinsic evidence concerning the terms of an agreement only when the agreement is clear and unambiguous). “The only terms which can be considered to be “clear” are those which in themselves are sufficiently lucid to be understood in one sense alone, without leaving any room for doubt, controversies or difference of interpretation, and without requiring for their understanding any reasoning or illustration susceptible to challenge.” Id. (citing Sucn. Ramirez v. Tribunal Superior, 81 P.R. Dec. 357, 351 (1959)). A. Obligation to Open a PACE Warehouse Store. Plaintiff alleges that all throughout negotiations both defendants understood and agreed to the PACE Warehouse Store’s role as anchor tenant in the shopping center Plaza del Caribe Mall II, that according to industry-wide norms anchor tenants are vital to the development and financing of a shopping centér, and that the contract imposed an obligation to open and operate a PACE Warehouse Store. Defendants eonténd that the Lease Agreement does not include a “store opening clause” that specifically obligates them to open a PACE Membership Warehouse Store by a particular date. Defendants further argue that the “clear” terms of the lease do not impose an obligation to open a store in the demised premises and that if the parties would have intended such a requirement they would have included a date by which the store must have been opened. Defendants also propose that several provisions of the lease agreement support their interpretation that there is no obligation to open a store on the demised premises. Specifically, defendants contend that article 41 of the Lease Agreement grants PACE an unlimited right to cease business operations in the demised premises subject only to a notification requirement, and that articles 10 and 20, setting up the “date of occupancy” and the conditions of “use” respectively, contemplate the possibility that the lease may take effect even if PACE did not open the store. Based on these provisions, defendants contend that PACE was under no obligation to open a store in the premises. Plaintiff counters that article 41" }, { "docid": "12683780", "title": "", "text": "Royal issued a general liability policy to the Card Shop to cover its Minges Brook Mall store and several other Card Shop locations. An addendum to Royal’s policy with the Card Shop defined additional insureds as follows: The following is added to SECTION II-WHO IS AN INSURED: 5. a. Any person or organization you are required by a written contract, agreement or permit to name as an insured is an insured but only with respect to liability arising out of: 2. Premises owned or used by you. (Royal Ins. Policy “Enhancement Endorsement” § 12). The Card Shop, along with all of the other tenants of the Minges Brook Mall, was also required by the lease to pay a proportionate share of Minges Creek’s cost of maintaining and insuring the common areas of the mall. Minges Creek’s insurance policy covering the common areas was issued by Chubb. The underlying accident that gave rise to the insurance dispute in this case occurred in March of 1999 when Peggy Lam-pert, a customer of the Card Shop, slipped and fell on ice while walking to her car from the store. Lampert sued Minges Creek, the Card Shop, and a snow removal contractor in Michigan state court. Her complaint alleged as follows: The accident occurred when Plaintiff Peggy Lampert, as a customer of the 1/2 Off Card Shop, Inc., began walking toward her car which was located in Defendant Minges Creek LLC’s parking lot, and while in the process of leaving the store, slipped and fell on ice, causing her to sustain very serious personal injuries and damages. The state trial court dismissed the Card Shop from Lampert’s suit because the Card Shop did not “legally possess! ] the sidewalk area where the fall occurred.” Minges Creek was found to have “exclusive dominion and control over maintaining the entire parking area including the sidewalks in front of the 1/2 Off Card Shop.” Following the Card Shop’s dismissal, Minges Creek settled the lawsuit with Lampert for $210,000. Chubb, as Minges Creek’s insurer, covered this cost as well as the expense of defending against Lam-pert’s claim. Minges" }, { "docid": "12683794", "title": "", "text": "explicitly covered the common areas. Minges Creek has clearly not advanced a reasonable interpretation of “[p]remises owned or used” by the Card Shop. For the reasons stated above, we also hold that Royal had no duty to defend against Lampert’s claims. Even accepting all of Lampert’s allegations as true, Royal’s policy does not cover her accident. Royal therefore was not required to defend Minges Creek against the lawsuit by Lampert. See Mario Beauty Supply, 227 Mich.App. 309, 575 N.W.2d 324 at 327 (holding that “if coverage is not possible, then the insurer is not obliged to provide a defense”). At bottom, this case appears to involve an effort by one insurance company (Chubb, the insurer of the common areas) to obtain reimbursement from another insurance company (Royal, the insurer of the Card Shop’s leased premises). The' only reasonable reading of the documents controlling the relationship between the parties,'however, convinces us that Chubb was the proper insurance company to defend and indemnify Minges Creek for Lam-pert’s accident that occurred in the common areas. III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case with instructions to dismiss the complaint with prejudice." }, { "docid": "16481839", "title": "", "text": "portion of the leased premises, “the landlord is charged with the duty of ordinary care in maintaining the portion retained so as to not damage the tenant.” Id. at 303. Frontier Theaters was found to be in control of the upper portion of the theater and, after the court ruled that Frontier had been negligent in maintaining that portion of the theater, it held Frontier liable for damages to the tenant’s property in the lower portion of the theater. Enterplast confuses responsibility for the premises with responsibility for property stored on the premises. Contrary to Enterplast’s argument, Frontier Theatres only relates to a lessor’s duty with regard to the portion of the leased premises it retained. If a lessor does not fulfill its duty of care with respect to the premises it controls and thereby causes damage to the lessee’s property, regardless of whether the property is stored on the retained premises or unre-tained premises, the lessor may be held hable for the property damage. But a lessor’s liability for damaged property stored on the premises arises only out of its responsibility to maintain the lessor’s retained part of the premises with due care; it does not ensue from a responsibility to maintain with due care the property stored by others inside the premises. Only a bailee, not a lessor, assumes this latter responsibility. Finally, Muehlstein’s and Enterplast’s argument that Lockwood was responsible for their property is barred by the exculpatory clause contained in the master lease and incorporated into the sublease agreement between Lockwood and Ultra, as well as between Lockwood and Shippers. The exculpatory clause provides that the lessor is not hable for any damage to the lessee’s property, to the extent that the property damage is or could have been insured. Under Texas law, exculpatory clauses will ordinarily be enforced, if they are between private persons who bargain from positions of equal strength. Crowell v. Housing Authority, 495 S.W.2d 887, 889 (Tex.1973). The parties do not contend that the exculpatory clause is void as a matter of pubhc policy; instead, they contend that, although the clause may" }, { "docid": "23372636", "title": "", "text": "from the breach of a lease provision occurring while the léase was still in effect, then the right has its inception in contract. Id. On the other hand, if the right is “based upon a civil wrong such as possession of property by a trespasser ab initio, or by a holdover tenant as a resulting trespasser, or by an encroacher then the right ... has its inception in tortious conduct.” Id. Because the right to possession emanated from the breach of a lease while the lease was still in effect, the court held that the underlying lawsuit was based in contract and that the insurance policy did not give rise to a duty to defend. Id. 255 Cal.Rptr. at 117. The relevant language of the policies in the present ease is identical to that in Fragome-no. Thus, under Fragomeno, a claim for personal injury arising out of “wrongful entry or eviction, or other invasion of the right of private occupancy” is covered only if it sounds in tort. As previously stated, liability in the underlying lawsuits is premised on the existence of the purchase agreements. The underlying lawsuits therefore sound in contract, as opposed to tort, and are not covered under the policy. Stanford claims that reliance on Fragome-no is misplaced because that case neither addressed, nor resolved, the ambiguity issue. We disagree. The parties’ agreement in Fragomeno that the policy covered only tort as opposed to contract liability is not significant because, as the court noted, it was well established in California that the policy’s “legally obligated to pay” language limited coverage to tort liability. 255 Cal.Rptr. at 114. Furthermore, whén a policy’s insuring agreement provides coverage only for those sums the insured becomes “legally obligated to pay,” the solid line of California authority restricts coverage to tort liability without reference to the individual policy language in dispute. See Haralambos, 241 Cal.Rptr. at 430; Turlock, 216 Cal.Rptr. at 800; Devonshire, 155 Cal.Rptr. at 875; Chamberlain, 931 F.2d at 1365. Stanford’s reliance on Martin Marietta Corp. v. Insurance Co. of North America, 40 Cal.App.4th 1113, 47 Cal.Rptr.2d 670 (1995) is" }, { "docid": "12683788", "title": "", "text": "scope of Royal’s liability to Minges Creek as a named insured, however, must be determined by the “premises owned or used” language in Royal’s policy. 2. Did the accident occur on premises “owned or used by” the Card Shop? In order for Royal to be obligated to defend and indemnify Minges Creek, Lampert’s accident had to have occurred on “[p]remises owned or used by” the Card Shop. The parties dispute the proper definitions of both the term “premises” and the term “used.” Royal first argues that the term premises refers only to the inside of the Card Shop, whereas Minges Creek asserts that the term premises means the Card Shop plus the common areas surrounding the store. The district court, in following Michigan precedent that instructs courts to generally apply the commonly understood meaning of terms, see Twichel, 676 N.W.2d at 622, referenced the dictionary definition of the term premises. Premises is defined by Merriam Webster’s Collegiate Dictionary 920 (10th ed.1997), as “a tract of land with the buildings thereon.” If the term premises is more appropriately classified as a “term of art,” however, reference to a specialized dictionary is appropriate. Black’s Law Dictionary 1180-81 (6th ed.1997), is such a specialized dictionary, and it defines premises as follows: Land with its appurtenances and structures thereon. Premises is an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is to be determined by its context and is dependent upon circumstances in which used, and may mean a room, shop, building, or any definite area. Black’s Law Dictionary thus recognizes that the term premises has an elastic and context-specific definition. The district court focused on the first sentence of the definition and concluded that Black’s supports Minges Creek’s claim that the accident is covered by Royal’s policy. But the court failed to consider the definition beyond the first sentence, specifically the part stating that the meaning of the term premises “is to be determined by its context and is dependent upon circumstances in which used ....” Id. Royal persuasively argues that, throughout the insurance policy," }, { "docid": "12683792", "title": "", "text": "premises.” Defining the term premises in the insurance policy to include the common areas that the Card Shop was not required to insure strikes us as unreasonable. The case of Zurich Insurance Co. v. CCR & Co., 226 Mich.App. 599, 576 N.W.2d 392 (1997), supports the proposition that terms that might be ambiguous in some contexts can have highly specific and unambiguous meanings in others. Zurich posits an example where A contracts with B to pay $X for eagles. Id. at 397 n. 4. Depending on the context, eagles can unambiguously mean coins if the parties are numismatists, birds if the parties are animal dealers, or scores in an athletic competition if the parties are golfers. Id. In the present case, the context that defines the otherwise ambiguous term premises is not extrinsic evidence, but the plain language of the lease, which is specifically referenced in Royal’s insurance policy. This context requires that the definition of premises in the policy be coextensive with the Card Shop’s obligation to name Minges Creek as an additional insured. Because we conclude that the term premises is restricted to the inside of the Card Shop, Lampert’s accident outside of the Card Shop is not covered by Royal’s policy. We therefore do not have to analyze the definition of the term “used,” but wish to reiterate that even Minges Creek looked to the lease to define that term. Moreover, we note that an absurd result would occur if the terms “premises” and “used” were both interpreted according to Minges Creek’s definition of premises (the Card Shop and the sidewalk around it) and its expansive definition of used (in which all tenants use the common areas). Under its interpretation, Minges Creek could seek indemnity under Royal’s policy even if a patron of another store fell on the common sidewalk. In fact, it could presumably seek coverage as the named insured from every tenant in the shopping center whose policy contained language similar to Royal’s. This interpretation is all the more unreasonable in light of Ming-es Creek having procured a separate in surance policy through Chubb that" }, { "docid": "12683782", "title": "", "text": "Creek then filed suit against Royal, the Card Shop’s insurer. The suit was removed to federal court based on diversity of citizenship. Alleging that it was an additional insured under the Card Shop’s policy, Minges Creek sought reimbursement for the $210,000 settlement cost and approximately $26,700 in expenses that were incurred in defending against Lampert’s claims. Royal’s insurance contract promised to pay all insureds “those sums that the insured becomes legally obligated to pay ... [and] defend the insured against any ‘suit’ seeking [bodily injury or property] damages.” After both parties moved for summary judgment, the district court granted judgment in favor of Minges Creek. It held that Minges Creek was an additional insured under the Card Shop’s insurance policy issued by Royal and that the accident occurred on premises used by the Card Shop. Thus, even though the Card Shop did not control the common area where the accident occurred, and even though it was dismissed from Lampert’s lawsuit, the Card Shop’s insurance policy was deemed to cover the claim. According to the district court, this obligated Royal to defend and indemnify Minges Creek. The district court therefore ordered Royal to reimburse Minges Creek for the settlement cost and the litigation expenses for the underlying litigation with Lampert. Royal now appeals. II. ANALYSIS A. Standard of review The district court’s grant of summary judgment is reviewed de novo. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “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.” Anderson v. Liberty Lobby, Inc.," }, { "docid": "12683781", "title": "", "text": "fell on ice while walking to her car from the store. Lampert sued Minges Creek, the Card Shop, and a snow removal contractor in Michigan state court. Her complaint alleged as follows: The accident occurred when Plaintiff Peggy Lampert, as a customer of the 1/2 Off Card Shop, Inc., began walking toward her car which was located in Defendant Minges Creek LLC’s parking lot, and while in the process of leaving the store, slipped and fell on ice, causing her to sustain very serious personal injuries and damages. The state trial court dismissed the Card Shop from Lampert’s suit because the Card Shop did not “legally possess! ] the sidewalk area where the fall occurred.” Minges Creek was found to have “exclusive dominion and control over maintaining the entire parking area including the sidewalks in front of the 1/2 Off Card Shop.” Following the Card Shop’s dismissal, Minges Creek settled the lawsuit with Lampert for $210,000. Chubb, as Minges Creek’s insurer, covered this cost as well as the expense of defending against Lam-pert’s claim. Minges Creek then filed suit against Royal, the Card Shop’s insurer. The suit was removed to federal court based on diversity of citizenship. Alleging that it was an additional insured under the Card Shop’s policy, Minges Creek sought reimbursement for the $210,000 settlement cost and approximately $26,700 in expenses that were incurred in defending against Lampert’s claims. Royal’s insurance contract promised to pay all insureds “those sums that the insured becomes legally obligated to pay ... [and] defend the insured against any ‘suit’ seeking [bodily injury or property] damages.” After both parties moved for summary judgment, the district court granted judgment in favor of Minges Creek. It held that Minges Creek was an additional insured under the Card Shop’s insurance policy issued by Royal and that the accident occurred on premises used by the Card Shop. Thus, even though the Card Shop did not control the common area where the accident occurred, and even though it was dismissed from Lampert’s lawsuit, the Card Shop’s insurance policy was deemed to cover the claim. According to the district" }, { "docid": "12683787", "title": "", "text": "determine whether Lampert’s suit against Minges Creek was covered by Royal’s insurance policy. C. The insurance contract 1. Was Minges Creek a named insured? Because the lease agreement between Minges Creek and the Card Shop required the Card Shop to name Minges Creek as an additional insured, the district court held that Royal was obligated to defend and indemnify Minges Creek. Royal contends, however, that Minges Creek was an additional insured under the Card Shop’s policy only with respect to incidents occurring inside of the Card Shop. This is because the “written contract, agreement or permit” requiring the Card Shop to name Minges Creek as an additional insured, as stated in Royal’s Insurance Policy “Enhancement Endorsement” § 12, obligated the Card Shop to insure only the “leased premises.” ( Lease § 10.01) Royal issued a certificate of liability insurance to Minges Creek, stating that “the certificate holder is listed as an additional insured-Landlord with respect to the property located at [Minges Brook Mall].” Minges Creek therefore qualified as an additional insured under Royal’s policy. The scope of Royal’s liability to Minges Creek as a named insured, however, must be determined by the “premises owned or used” language in Royal’s policy. 2. Did the accident occur on premises “owned or used by” the Card Shop? In order for Royal to be obligated to defend and indemnify Minges Creek, Lampert’s accident had to have occurred on “[p]remises owned or used by” the Card Shop. The parties dispute the proper definitions of both the term “premises” and the term “used.” Royal first argues that the term premises refers only to the inside of the Card Shop, whereas Minges Creek asserts that the term premises means the Card Shop plus the common areas surrounding the store. The district court, in following Michigan precedent that instructs courts to generally apply the commonly understood meaning of terms, see Twichel, 676 N.W.2d at 622, referenced the dictionary definition of the term premises. Premises is defined by Merriam Webster’s Collegiate Dictionary 920 (10th ed.1997), as “a tract of land with the buildings thereon.” If the term premises is" }, { "docid": "12683791", "title": "", "text": "referring to the lease in order to define the term premises in the policy, Minges Creek’s conclusion that the Card Shop used the area where Lampert fell is based on the provision of the lease (Lease § 7.03) designating the common areas for use by all of the tenants of the shopping center. Minges Creek cannot have it both ways. The plain language of Royal’s policy links it to the lease, and therefore the only reasonable interpretation of “[premises owned or used by” the Card Shop is one that is informed by the lease. Given the lease’s provision obligating the Card Shop to insure only the inside of its store, we conclude that the only reasonable interpretation of the term premises comports with the lease’s definition of the term “leased premises.” The lease defines the leased premises as the 6,796 square feet inside the Card Shop, and does not include the sidewalk where Lampert fell. And the lease obligated the Card Shop to name Minges Creek as an insured only with respect to the “leased premises.” Defining the term premises in the insurance policy to include the common areas that the Card Shop was not required to insure strikes us as unreasonable. The case of Zurich Insurance Co. v. CCR & Co., 226 Mich.App. 599, 576 N.W.2d 392 (1997), supports the proposition that terms that might be ambiguous in some contexts can have highly specific and unambiguous meanings in others. Zurich posits an example where A contracts with B to pay $X for eagles. Id. at 397 n. 4. Depending on the context, eagles can unambiguously mean coins if the parties are numismatists, birds if the parties are animal dealers, or scores in an athletic competition if the parties are golfers. Id. In the present case, the context that defines the otherwise ambiguous term premises is not extrinsic evidence, but the plain language of the lease, which is specifically referenced in Royal’s insurance policy. This context requires that the definition of premises in the policy be coextensive with the Card Shop’s obligation to name Minges Creek as an additional insured." }, { "docid": "6812077", "title": "", "text": "mart acquired a leasehold interest in commercial property located in a shopping center in Rotterdam, New York. K mart operated a retail store in the leased space. The provisions of the lease critical to this litigation are found in paragraphs 21 and 22. Paragraph 21 provides, in pertinent part: Use, Assignment and Subletting 21. The premises hereby demised may be used for any lawful purpose, not inconsistent with the purposes and appearance of a retail shopping center, and subject to the provisions of Article 17 hereof. Tenant shall not be obligated to conduct or to remain open for the conduct of any business in the Demised Premises.... Tenant may assign this Lease or sublet the whole or any part of the Demised Premises, but if it does so, it shall remain liable and responsible under this Lease. In the event Tenant discontinues the operation of its store, it shall use reasonable efforts to seek an assignee of this Lease or a subtenant either of which shall be of reasonable financial standing and (because of the small size of the Shopping Center) shall not be a competing use with uses already in the Shopping Center. Paragraph 22 provides: Landlord’s Option to Terminate 22. Should Tenant at any time elect to discontinue the operation of its store, Tenant shall give to Landlord notice in writing of its intention so to do and in such event Landlord shall have one option, to be exercised by notice in writing given to Tenant within six (6) months after the date of mailing of the Tenant’s aforesaid notice to the Landlord, to cancel and terminate this Lease. If the Landlord exercises its said option, this [Ljease shall cancel and terminate on the last day of the month next following the end of said ninety (90) [sic] day period and the Tenant shall be released from any further liability under this [L]ease. In 1987, Three Center conveyed its interests in the shopping center to Curry Road. On August 19, 1988, K mart entered into an agreement with the Golub Corporation (Golub) subleasing the leased space to Go-lub." }, { "docid": "6812076", "title": "", "text": "MESKILL, Circuit Judge: This appeal requires us to determine whether the district court erred in ordering summary judgment after concluding that certain lease provisions concerning subleasing and termination were unambiguous. Defendant K mart Corporation (K mart) appeals from a judgment entered in the United States District Court for the Northern District of New York, Cholakis, J. The matter was originally filed by plaintiff-ap-pellee Curry Road Ltd. (Curry Road) in the Supreme Court of the State of New York, but was removed to the district court by defendant-appellant K mart on the basis of diversity of citizenship. Curry Road’s complaint sought a declaratory judgment that its termination of its lease with K mart was proper under the terms of the lease. The district court granted summary judgment in favor of Curry Road pursuant to Fed.R. Civ.P. 56. The parties agree that New York law governs the case. BACKGROUND Most of the facts giving rise to this matter are undisputed. In 1977, K mart entered into an agreement with Three Center (OLROHO) Associates (Three Center) whereby K mart acquired a leasehold interest in commercial property located in a shopping center in Rotterdam, New York. K mart operated a retail store in the leased space. The provisions of the lease critical to this litigation are found in paragraphs 21 and 22. Paragraph 21 provides, in pertinent part: Use, Assignment and Subletting 21. The premises hereby demised may be used for any lawful purpose, not inconsistent with the purposes and appearance of a retail shopping center, and subject to the provisions of Article 17 hereof. Tenant shall not be obligated to conduct or to remain open for the conduct of any business in the Demised Premises.... Tenant may assign this Lease or sublet the whole or any part of the Demised Premises, but if it does so, it shall remain liable and responsible under this Lease. In the event Tenant discontinues the operation of its store, it shall use reasonable efforts to seek an assignee of this Lease or a subtenant either of which shall be of reasonable financial standing and (because of the" } ]