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https://www.courtlistener.com/api/rest/v3/opinions/1054180/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 18, 2006 Session
STATE OF TENNESSEE V. DAVID MICHAEL ANDERSON, JR.
Direct Appeal from the Criminal Court for Putnam County
No. 05-0227 Lillie Ann Sells, Judge
No. M2006-00138-CCA-R3-CD - Filed September 25, 2006
The appellant, David Michael Anderson, Jr., pleaded guilty to driving under the influence, first
offense, and reserved, under Tennessee Rule of Criminal Procedure 37(b)(2)(i), a certified question
of law dispositive of the case. The certified question of law is whether the officer in this case lacked
reasonable suspicion to effect a seizure in stopping appellant and as a result the evidence seized
should have been suppressed. Following our review, we agree with appellant, reverse the judgment
of the trial court and dismiss the charge.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
J.S. DANIEL, SR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and ALAN
E. GLENN , J., joined.
William Arnold Cameron, Cookeville, Tennessee, Attorney for the Appellant, David Michael
Anderson, Jr.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William E. Gibson, District Attorney General; and Marty S. Savage, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
FACTS
On December 12, 2004, shortly after 1:00 a.m., Officer Scott Polston of the Cookeville Police
Department was on routine patrol. He had just completed a shoplifting call at Wal-Mart and was
leaving the parking area traveling southbound on Jefferson Street. Out of his peripheral vision
Officer Polston observed a vehicle in a parking lot across from Long John Silver’s restaurant with
its rear wheels in a ditch. The front of the vehicle was protruding into Scenic Drive. Officer Polston
turned around to check out the vehicle but the vehicle had already pulled into the drive portion of
the roadway. Polston’s explanation for returning to the vehicle was to ensure the vehicle was not
stalled on Scenic Drive and to confirm the vehicle was not associated with the Wal-Mart shoplifting
call he had just completed.
Polston followed appellant onto Jefferson Street where he initiated a stop. Prior to the stop,
Officer Polston noted that the appellant stopped at a stop sign at Scenic and South Jefferson. He
conceded the appellant made a proper turn onto South Jefferson and was not speeding. Appellant
had no malfunctioning operating equipment, such as taillights or head lights. However, Officer
Polston initiated the traffic stop at 1:19 a.m. for reasons set out in the following colloquy:
Q: Okay, what time of night was this?
A: Approximately 1:19.
Q: 1:19 in the morning. Okay. And in other cases you have told
me that basically cars out after midnight, you know, in
Cookeville if you find a reason you’ll pull them over?
A: Trying to find DUI’s, yeah.
Q: Okay. And in this particular situation the two reasons that
you found, the Wal-Mart, misdemeanor theft at Wal-Mart,
shoplifting case was for a misdemeanor that wasn’t
committed in your presence?
A: That is correct.
Q: All right. You just wanted to check him out and see if he
might have had something to do with it?
A: Precisely. Plus the fact that he was stuck in the ditch
partially.
Q: Okay. Well, by the time you turned around he wasn’t stuck
and apparently had never been stuck in the ditch?
A: Well that’s the way it looked to me as I was passing by.
*
*
*
Q: Okay. And as far as any traffic laws whatsoever, he didn’t
violate any of them, that you know of?
A: As far as traffic laws, no.
Upon activating his blue lights and initiating a stop of appellant, Officer Polston approached
appellant’s car and smelled an odor of an intoxicant about Mr. Anderson’s body. Appellant was
ultimately arrested for driving under the influence based on evidence obtained after the stop. In
2
denying the motion to suppress, the trial court concluded that under the totality of the circumstances
the officer’s viewing of appellant’s vehicle in the ditch at that time of the morning, coupled with the
fact there were no adverse road conditions, made it reasonable for the officer to investigate. Viewing
the circumstances in their entirety, the trial court held that the officer had a reasonable suspicion,
supported by specific and articulable facts, to initiate a stop of appellant’s vehicle.
ANALYSIS
At the time of the plea, Tennessee Rule of Criminal Procedure 37 provided that:
An appeal lies . . . from any judgment of conviction . . . upon a plea
of guilty . . . if . . . defendant entered into a plea agreement under
Rule 11 but explicitly reserved with the consent of the state and of the
court the right to appeal a certified question of law that is dispositive
of the case.
Tenn. R. Crim. P. 37(b)(2)(i). In the instant case, the trial court entered such an order certifying the
question of law as follows: “Was the stop of the defendant by Officer Scott Polston on the night of
December 12, 2004 based upon reasonable suspicion supported by specific and articulable facts
sufficient to justify the stop of the defendant and the gathering of evidence against the defendant and
his subsequent arrest for driving under the influence?”
The trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of credibility, the weight and value of the
evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge, and the
court must uphold a trial court’s findings of fact unless the evidence in the record preponderates
against them. Id. at 23, see also Tenn. R. App. P. 13(d). However, application of the law to the facts
is a question that an appellate court reviews de novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn.
1998).
The United States and the Tennessee Constitutions protect against unreasonable search and
seizures. U.S. Const.amend IV; Tenn. Const. art.1 § 7. A search or seizure without a warrant is
presumed unreasonable and thereby requires the state to prove by a preponderance of the evidence
that the search or seizure was conducted pursuant to an exception to the warrant requirement. State
v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). An exception to the warrant requirement exists
when a police officer makes an investigatory stop based upon reasonable suspicion, supported by
specific and articulable facts, that a criminal offense has been or is about to be committed. Terry v.
Ohio, 329 U.S. 1, 20-21, 88 S. Ct. 1868, 1880, 20 L.Ed2d 889 (1968); Binette, 33 S.W.3d at 218.
A law enforcement officer must have probable cause or reasonable suspicion supported by
specific and articulable facts to believe that an offense has been or is about to be committed in order
3
to stop a vehicle. State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002). In determining if the
reasonable suspicion exists, an appellate court must look to the totality of the circumstances and “the
officer of course, must be able to articulate something more than an inchoate and unparticularized
suspicion or hunch.” State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997) (quoting United States
v. Sokolow, 490 U.S.1, 7-8, 109 S. Ct. 1581, 1585 (1989)).
Circumstances relevant to the evaluation of reasonable suspicion and probable cause include
but are not limited to “the officer’s personal objective observations . . . Rational inferences and
deductions that a trained officer may draw from the facts and circumstances known to him” --
inferences and deductions that might well elude an untrained person. Id. State v. Watkins, 827
S.W.2d 293, 294 (Tenn. 1992). The content, quality and quantity of information possessed by the
police must be assessed in determining whether it is sufficiently reliable to support a finding of
reasonable suspicion. Yeargan, 958 S.W.2d at 632.
Unquestionably, appellant was seized when the officer turned on his blue lights and initiated
the traffic stop. See Binette, 33 S.W.3d at 218; State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).
Therefore, the admissibility of the evidence of intoxication which the officer obtained after the
seizure hinges upon the determination of whether the stop was appropriate under the above
statements of law when applied to the present facts.
Our review of this record leads us to conclude that the officer did not have a reasonable
suspicion supported by specific and articulable facts that the defendant had committed a crime when
he initiated the traffic stop. Just prior to the stop of appellant’s vehicle, the officer had observed no
traffic violations and no equipment failures, such as a non-working headlight or taillight. Finally, the
record is devoid of proof that in fact the appellant had been stalled when the officer first observed
him for the purpose of inquiry and even if he had been stalled, that problem had been resolved when
the officer picked up his pursuit of appellant.
Therefore, the evidence preponderates against the trial court’s factual finding that the officer
made an investigatory stop based upon reasonable suspicion, supported by specific and articulable
facts, that a criminal offense had been or was about to be committed. The resulting evidence from
the investigation was the product of an unreasonable search and seizure which should have been
suppressed by the trial court. Therefore, we reverse the trial court’s determination on the motion to
suppress. With the exclusion of the evidence, there is no other evidence to support the guilty plea.
We remand the case to the trial court for the entry of an order dismissing the defendant’s conviction.
_________________________________
JUDGE J. S. DANIEL, SENIOR JUDGE
4
5 | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2988991/ | Order filed August 28, 2012
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00422-CR
____________
AMBER VALANTINA AKERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 11-12331
ABATEMENT ORDER
Appellant is represented by appointed counsel, Bruce Cobb. On August 3, 2012,
time to file appellant’s brief expired without a brief and no motion for extension of time
was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on
August 17, 2012, that no brief had been received. No response from appellant has been
received.
Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
252nd District Court shall (1) immediately conduct a hearing, at which appellant,
appellant’s counsel, and state’s counsel shall participate, either in person or by video
teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b)
whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the
appeal or whether appellant has failed to make necessary arrangements for filing a brief;
(d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal,
a date certain when appellant’s brief will be filed; and (2) prepare a record, in the form of
a reporter’s record, of the hearing. If appellant is indigent, the judge shall take such
measures as may be necessary to assure effective representation of counsel, which may
include the appointment of new counsel. The judge shall see that a record of the hearing
is made, shall make findings of fact and conclusions of law, and shall order the trial clerk
to forward a transcribed record of the hearing, a videotape or compact disc, if any,
containing a recording of the video teleconference, and a supplemental clerk’s record
containing the findings and conclusions. Those records shall be filed with the clerk of
this court on or before October 1, 2012.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the trial
court’s findings and recommendations are filed in this Court. The Court will also
consider an appropriate motion to reinstate the appeal filed by either party, or the Court
may reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a hearing in
compliance with this Court’s order. If the parties do not request a hearing, the court
coordinator of the trial court shall set a hearing date and notify the parties of such date.
PER CURIAM
RULE 38. REQUISITES OF BRIEFS
Tex. R. App. P. 38.8. Failure of Appellant to File Brief.
(b) Criminal Cases.
(1) Effect. An appellant=s failure to timely file a brief does not authorize
either dismissal of the appeal or, except as provided in (4), consideration of the appeal
without briefs.
(2) Notice. If the appellant=s brief is not timely filed, the appellate clerk
must notify counsel for the parties and the trial court of that fact. If the appellate court
does not receive a satisfactory response within ten days, the court must order the trial
court to immediately conduct a hearing to determine whether the appellant desires to
prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether
retained counsel has abandoned the appeal, and to make appropriate findings and
recommendations.
(3) Hearing. In accordance with (2), the trial court must conduct any
necessary hearings, make appropriate findings and recommendations, and have a record
of the proceedings prepared, which recordCincluding any order and findingsCmust be
sent to the appellate court.
(4) Appellate Court Action. Based on the trial court=s record, the appellate
court may act appropriately to ensure that the appellant=s rights are protected, including
initiating contempt proceedings against appellant=s counsel. If the trial court has found
that the appellant no longer desires to prosecute the appeal, or that the appellant is not
indigent but has not made the necessary arrangements for filing a brief, the appellate
court may consider the appeal without briefs, as justice may require. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/412302/ | 696 F.2d 988
Baileyv.Ward
82-8108
UNITED STATES COURT OF APPEALS Fourth Circuit
11/23/82
1
W.D.N.C.
CPC DENIED--DISMISSED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1343149/ | 238 Ga. 374 (1977)
233 S.E.2d 353
COX
v.
MILLS et al.
31940.
Supreme Court of Georgia.
Submitted January 21, 1977.
Decided February 14, 1977.
Moore & McLaughlin, James B. McLaughlin, Jr., for appellant.
John M. Hancock Jr., for appellees.
NICHOLS, Chief Justice.
Pamela Davidson Cox filed a habeas corpus action in the Superior Court of Bibb County, seeking to obtain custody of her six-year-old child from her great-grandmother and step great-grandfather, Bertha and Lester Mills. The Mills had obtained custody of the child pursuant to an order of the Juvenile Court of Bibb County dated June 23, 1972, whereby custody was removed from the mother and the parental rights of the father were terminated. This order expired at the end of two years by operation of law. Code § 24A-2701.
The superior court transferred the case to the Bibb County Juvenile Court, which found that the mother had forfeited her right to custody of the child by failing to act more promptly to regain custody following the termination of the 1972 order. The record indicates that the mother has made no significant contribution toward *375 the support of the child since it has been in the custody of the Mills and that up until December, 1975 when she married, she led an extremely unstable, transient existence. Her efforts to regain custody began a few months later, in May, 1976. On these facts, it cannot be said that she voluntarily released her parental rights to the Mills or that she abandoned her child or that she otherwise forfeited her right to custody under Code §§ 74-108, 74-109, and 74-110. See Heath v. Martin, 225 Ga. 181 (1) (167 SE2d 153) (1969); Shaddrix v. Womack, 231 Ga. 628 (4) (203 SE2d 225) (1974).
Nor was a showing made that the mother was unfit to have custody, which is the only other ground upon which custody could be denied her in a contest with nonparents. See White v. Bryan, 236 Ga. 349 (223 SE2d 710) (1976); Childs v. Childs, 237 Ga. 177 (227 SE2d 49) (1976). The trial court did find that the mother had failed to provide a home suitable for the upbringing of the child prior to her marriage in December, 1975. However, there was no evidence indicating that she is presently unfit to have custody. See Heath v. Martin, supra, p. 183; Shaddrix v. Womack, supra, pp. 632-633. Accordingly, the trial court erred in denying custody to the mother.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054168/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 12, 2006
THOMAS STUDDARD v. STATE OF TENNESSEE
Appeal from the Circuit Court for Dyer County
No. C02-61 Lee Moore, Judge
No. W2004-00500-CCA-R3-PC - Filed September 27, 2006
The petitioner, Thomas Studdard, was indicted by the Dyer County Grand Jury on three counts of
rape of a child in 2002. The petitioner subsequently pled guilty to one count of incest and was
sentenced to eight years as a Range II multiple offender. The petitioner sought a reduction of his
sentence in the trial court. The trial court denied the relief sought and the petitioner appealed. On
direct appeal, this Court, without reaching the merits of the petitioner’s sentencing issues, vacated
the judgment of conviction on the grounds that incest was not a lesser-included offense of rape.
Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim.
App., at Jackson, Feb. 27, 2004), perm. app. granted, (Tenn. Sept. 7, 2004). Having granted the
petitioner’s application for permission to appeal, our supreme court concluded that the trial court had
jurisdiction to accept the petitioner’s guilty plea and remanded the case to this Court for
consideration of the sentencing issues. Studdard v. State, 182 S.W.3d 283 (Tenn. 2005). On
remand, this Court determined that the trial court did not err in denying the petitioner’s motion to
reduce his sentence and that the certification requirement of Tennessee Code Annotated section 40-
35-503(c) did not violate the petitioner’s equal protection rights.1 Thomas Poston Studdard v. State,
No. W2005-02707-CCA-RM-PC, 2006 WL 287427 (Tenn. Crim. App., at Jackson, Feb. 6, 2006),
perm. app. denied, (Tenn. May 30, 2006). While the petitioner’s direct appeal was still pending, the
petitioner sought post-conviction relief on the basis of ineffective assistance of counsel2. The post-
conviction court denied the petition and the petitioner sought relief in this Court. After a review of
the record, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR ., and
JOHN EVERETT WILLIAMS, JJ., joined.
1
Tennessee Code Annotated section 40-35-503(c) prohibits the parole of a convicted sex offender unless a
licensed psychiatrist or psychologist certifies that the offender does not pose a likelihood to re-offend.
2
Because the direct appeal was still pending when the petitioner sought post-conviction relief, this Court, on
July 13, 2005, stayed the post-conviction proceedings until the Supreme Court entered a final decision in the petitioner’s
direct appeal.
Clifford K. McGown, Jr., Waverly, Tennessee, on appeal; Jim W. Horner, District Public Defender
and H. Tod Taylor, Assistant Public Defender, at trial, for the appellant, Thomas Studdard.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
On February 11, 2002, the petitioner was indicted on three counts of rape of a child. In
August of 2002, the petitioner entered a best interest plea to one count of incest with an agreed-upon
sentence of eight years as a Range II multiple offender.
Subsequently, the petitioner filed a pro se motion for correction or reduction of sentence,
pursuant to Tennessee Rule of Criminal Procedure 35. The petitioner alleged his plea agreement
failed to stipulate that his parole was contingent upon his completion of a mandatory sexual offender
program and that his trial counsel had misinformed him of the actual time he would be required to
serve by telling him he would be eligible for parole in approximately fourteen months. The
petitioner asserted that the interest of justice required that his sentence be reduced to conform with
his expectation at the time he entered into his plea agreement. The trial court denied the relief sought
and the petitioner appealed.
On direct appeal, this Court vacated the judgment of conviction, determining that incest was
not a lesser-included offense of rape, but did not reach the merits of the petitioner’s sentencing
issues. Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn.
Crim. App., at Jackson, Feb. 27, 2004), perm. app. granted (Tenn. Sept. 7, 2004). Our supreme court
concluded that the trial court had jurisdiction to accept the petitioner’s guilty plea and remanded the
case to this Court for consideration of the sentencing issues. Studdard v. State, 182 S.W.3d 283
(Tenn. 2005). On remand, this Court determined that the trial court did not err in denying the
petitioner’s motion to reduce his sentence and that the certification requirement of Tennessee Code
Annotated section 40-35-503(c) did not violate the petitioner’s equal protection rights. Thomas
Poston Studdard v. State, No. W2005-02707-CCA-RM-PC, 2006 WL 287427 (Tenn. Crim. App.,
at Jackson, Feb. 6, 2006), perm. app. denied (Tenn. May 30, 2006).
On August 21, 2003, while the petitioner’s direct appeal was still pending, the petitioner filed
a pro se petition for post-conviction relief in which he claimed that his guilty plea was unlawfully
induced or involuntarily entered into and that the State breached the plea agreement. The petitioner
filed an amended petition after appointment of counsel in which he reasserted his earlier arguments
and argued that his sentence was “void or voidable because of the abridgment of his constitutional
right to effective assistance of counsel and due process.”
-2-
The post-conviction court held a hearing on the petition on October 31, 2003. At the hearing,
the petitioner testified that trial counsel did not talk to him “about the certification or the counseling
that was involved [with his sentence],” but rather told him that “those programs were offered by the
State.” According to the petitioner, trial counsel first came to him with an offer of fifteen years at
one hundred percent and then worked the offer down to eight years at thirty-five percent, but made
a “big deal” about the percentage. The petitioner understood that once he served thirty-five percent
of the eight years, “that was the time that [he] was led to believe that [he’d] be eligible to be
released.” In the petitioner’s words, he “was not forewarned about anything other than the fact that
[he] was pleading to eight years at thirty-five percent and [he] would have the same opportunity for
parole as anyone else would have.” The petitioner complained that “because of a program that’s
mandatory by the State, [his sentence] was an impossibility then, and is now.” At the time of the
hearing, the petitioner was not enrolled in the required program. The petitioner asked the trial court
to grant “specific performance” of his plea agreement. On cross-examination, however, the
petitioner agreed that he received an eight-year sentence with a thirty-five percent release eligibility.
The petitioner’s trial counsel testified that he had been practicing law for thirty-one years and
that he was retained to represent the petitioner at trial. According to trial counsel, he met with the
petitioner numerous times and employed a psychologist to meet with the victim prior to trial.
According to the mental health expert, the victim was telling the truth. The expert also evaluated
the petitioner prior to trial.
Trial counsel advised the petitioner that he was facing fifteen to twenty-five years at one
hundred percent. Once plea discussions started, trial counsel recalled several offers that were
discussed. The final offer was eight years at thirty-five percent and that was the offer that was
communicated to the petitioner. Trial counsel did not “remember” discussing parole eligibility with
the petitioner. Trial counsel did recall talking with the petitioner about the counseling programs that
would have to be completed in order for the petitioner to be eligible for parole. In fact, trial counsel
testified that he advised the petitioner that he would, in his opinion, “have to do eight years.” Trial
counsel also felt that the petitioner’s prior criminal convictions would prohibit his parole eligibility
after service of thirty-five percent of the eight-year sentence.
The petitioner came back to the stand to rebut trial counsel’s testimony, stating that trial
counsel “absolutely did not” communicate to him that he was going to have to “flatten” the eight
year sentence or that there was a certification requirement prior to his eligibility for parole.
At the conclusion of the hearing, the post-conviction court denied relief. The post-conviction
court then entered an order denying post-conviction relief. The petitioner filed a timely notice of
appeal. On appeal, the petitioner argues that the post-conviction court improperly denied the petition
for post-conviction relief.
-3-
Analysis
Post-Conviction Standard of Review
The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).
Ineffective Assistance of Counsel
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
-4-
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
In the case herein, the petitioner argues that trial counsel was ineffective because he failed
to inform the petitioner of the provisions of Tennessee Code Annotated section 40-35-503(c) prior
to the entry of the guilty plea.
At the conclusion of the hearing, the post-conviction court made the following findings of
fact and conclusions of law:
The proof that we have before us, after considering the testimony today, also
considering the transcript of the guilty plea taken on August 22, 2002, and the
transcript of your hearing on your Rule 35 motion that was conducted on April 11,
2003, it’s clear to the Court that there was no misunderstanding as far as the plea was
concerned. And he was questioned about that, and that is that it was an 8-year
sentence as a Range II offender, which would be at 35 percent, as [the petitioner]
states. He was questioned about any other agreements, and he did not indicate that
there was any other agreement. The proof today is such that the one thing that is
clear is that it was an eight-year sentence as a Range II offender.
Unfortunately, the - - it’s not working out, I suppose, as [the petitioner] would
like, but I agree with [the State], the problem is with the Tennessee Department of
Correction or the Board of Paroles. That does not mean that there’s ineffective
assistance of counsel. [Trial counsel] appears to have met the standard set out in
Baxter v. Rose and the Strickland case. The burden is on the petitioner to show that
counsel’s act of omissions were so serious as to an objective standard of
reasonableness under prevailing professional norms. The Court does not find under
the facts that have been presented that that has in fact occurred.
It’s unfortunate, [petitioner], that you’re dissatisfied as you are, but there’s not
anything at this point that the Court can do. Under the circumstances, you might try
a petition for writ of habeas corpus at the time, you know, that your sentence expires.
But at this point in time, under the law governing ineffective assistance of counsel
or post-conviction relief, the Court must deny your petition.
In order for the petitioner to prevail herein, he must show, by clear and convincing evidence,
that his attorney failed to properly advise him of the possible consequences of his plea and that trial
counsel’s failure to do so resulted in prejudice. Once a guilty plea has been entered, effectiveness
of counsel is relevant only to the extent that it affects the voluntariness of the plea. In this respect,
such claims of ineffective assistance necessarily implicate the principle that guilty pleas be
voluntarily and intelligently made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the
-5-
effectiveness of counsel, the petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936.
Under Strickland v. Washington, 466 U.S. at 687, the petitioner must establish (1) deficient
representation and (2) prejudice resulting from the deficiency. However, in the context of a guilty
plea, to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim.
App. 1997).
The record supports the finding that trial counsel was effective. Implicit in the post-
conviction court’s findings and conclusions is a lack of accreditation of the petitioner’s testimony.
“[Q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odum,
928 S.W.2d 18, 23 (Tenn.1996). Further, this Court has previously determined that defense
counsel’s failure to advise a criminal defendant about the details of his parole eligibility, including
informing the defendant of a sex offender that the program must be completed prior to parole release
eligibility is not ineffective assistance of counsel. See e.g., Wade v. State, 914 S.W.2d 97, 104
(Tenn. Crim. App. 1995); Alan Dale Bailey v. State, No. M2001-01018-CCA-R3-PC, 2020 WL
215657 (Tenn. Crim. App., at Nashville, Feb. 8, 2002), perm. app. granted (Tenn. May 28, 2002),
app. dismissed (Jul. 11, 2002); Rickey Sams v. State, No. 03C01-9511-CC-00368, 1996 WL 663884
(Tenn. Crim. App., at Knoxville, Nov. 14, 1996), perm. app. denied (Tenn. Mar. 3, 1997). Defense
counsel’s failure to inform a sex offender that he must be certified in order to be eligible for parole
is, likewise, not ineffective assistance. Wade, 914 S.W.2d at 104. The petitioner’s herein is unable
to satisfy the prejudice prong of Strickland where the parole certification requirements would have
been applied to the petitioner whether he pled guilty or was convicted by a jury. After a de novo
review, we conclude that the evidence in the record does not preponderate against the post-
conviction court’s decision that trial counsel was effective.
Voluntary and Knowing Guilty Plea
The petitioner also questions the knowing and voluntary nature of his guilty plea. The
petitioner argues that he was “induced” to enter a plea of guilty by the promise of a thirty-five
percent release eligibility.
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” Alford, 400
U.S. at 30. The court reviewing the voluntariness of a guilty plea must look to the totality of the
circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically, a reviewing
court must consider “the relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and had the opportunity to
confer with counsel about the options available to him; the extent of advice from counsel and the
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court concerning the charges against him; and the reasons for his decision to plead guilty, including
a desire to avoid a greater penalty that might result from a jury trial.” Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993).
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Id. at 904. The trial court must determine if the guilty plea is “knowing”
by questioning the defendant to make sure he fully understands the plea and its consequences. State
v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d at 904.
In Boykin v. Alabama, the United States Supreme Court held that an accused’s guilty plea
must be voluntarily, knowingly, and understandingly entered before a conviction resting upon a
guilty plea may comply with due process. 395 U.S. 238 (1969). In Boykin, the Supreme Court
stated that a guilty plea constituted a waiver of various rights and that it would not presume a waiver
of the following federal constitutional rights from a silent record: (1) the privilege against
compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s
accusers. Id. at 242. Thus, Boykin placed a premium on a showing in the record of a sufficient
waiver of these specified rights.
Exercising “its supervisory power to [e]nsure that the courts of this State afford fairness and
justice to defendants in criminal cases,” our Supreme Court developed stricter standards than those
mandated by the Boykin decision in State v. Mackey, 553 S.W.2d 337, 340-41 (Tenn. 1977),
superseded on other grounds by Tenn. R. Crim. P. 37(b) & Tenn. R. App. P. 3(b). Mackey requires
that trial judges accepting pleas of guilty in criminal cases substantially adhere to the following
procedure:
[T]he court must address the defendant personally in open court and inform him of,
and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, and the mandatory
minimum penalty provided by law, if any, and the maximum possible penalty
provided by law; and, if applicable, that a different or additional punishment may
result by reason of his prior convictions or other factors which may be established in
the present action after the entry of his plea; and
(2) If the defendant is not represented by an attorney, that he has a right to be
represented by an attorney at every stage of the proceeding against him, and if
necessary, one will be appointed to represent him; and
(3) That he has a right to plead not guilty or to persist in that plea if it has already
been made, and, that he has the right to be tried by a jury and at that trial has the right
to the assistance of counsel, the right to confront and cross-examine witnesses against
him, and the right not to be compelled to incriminate himself; and
(4) That if he pleads guilty, there will not be a further trial of any kind except to
determine the sentence so that by pleading guilty he waives the right to a trial; and
(5) That if he pleads guilty, the court or the state may ask him questions about the
offense to which he has pleaded, and if he answers these questions under oath, on the
-7-
record, and in the presence of counsel, his answers may later be used against him in
a prosecution for perjury or false statement, and, further, that, upon the sentencing
hearing, evidence of any prior convictions may be presented to the judge or jury for
their consideration in determining punishment.
Id. at 341. The Mackey court also stated:
The court shall not accept a plea of guilty without first, by addressing the defendant
personally in open court, determining that the plea is voluntary and not the result of
force or threats or of promises apart from a plea agreement. The court shall also
inquire as to whether the defendant’s willingness to plead guilty results from prior
discussions between the District Attorney General and the defendant or his attorney.
Id. The Mackey requirements have been adopted into Rule 11 of the Tennessee Rules of Criminal
Procedure.
However, some of the mandated Mackey advice is not required by Boykin, but represents a
supervisory pronouncement of the Court. State v. Prince, 781 S.W.2d 846, 852-53 (Tenn. 1989).
“[A]ny other requirement of Mackey in excess of Boykin is not based upon any constitutional
provision, federal or state. It follows, that any omissions, not required in Boykin may be relied upon
on direct appeal in appropriate cases but such omissions have no validity on the first or any
subsequent post-conviction proceeding.” Id. at 853. Courts of this state have consistently held that
Mackey advice which is not required by Boykin is not constitutionally based and, therefore, is not
cognizable in a petition for post-conviction relief. See, e.g., Johnson v. State, 834 S.W.2d 922, 925
(Tenn. 1992); State v. Neal, 810 S.W.2d 131 (Tenn. 1991), overruled in part on other grounds by
Blankenship, 858 S.W.2d at 902; Prince, 781 S.W.2d at 853; Hicks v. State, 983 S.W.2d 240, 247
n.10 (Tenn. Crim. App. 1998); Sneed v. State, 942 S.W.2d 567, 568-69 (Tenn. Crim. App. 1996);
Bryan v. State, 848 S.W.2d 72, 75 (Tenn. Crim. App. 1992); Teague v. State, 789 S.W.2d 916, 917
(Tenn. Crim. App. 1990).
The colloquy between the petitioner and the trial court at the plea hearing indicates that the
trial court asked the petitioner if the plea was freely and voluntarily made; if he had been informed
of the elements of the crime, burden of proof, and defenses; and if he understood: (1) the nature of
the charges against him; (2) that by pleading guilty he was giving up the right to a trial by jury; (3)
that by pleading guilty he was giving up the right to confront witnesses; and (4) that by pleading
guilty he was giving up the right to self-incrimination. In other words, the trial court satisfied the
requirements of Boykin. Moreover, the Tennessee Supreme Court determined in Jaco v. State, 120
S.W.3d 828 (Tenn. 2003), that a guilty plea was not involuntary where the trial court failed to inform
the defendant of sex offender certification requirements but the defendant was properly informed as
to his release eligibility date because the defendant did not receive inaccurate information as to his
parole eligibility, rather the defendant was not informed of the criteria that guided the determination
of whether he would actually be released upon arriving at his parole release eligibility date. The
petitioner herein was likewise properly informed that he would be eligible for parole after service
-8-
of thirty-five percent of his sentence and testified at the post-conviction hearing that he was armed
with that knowledge prior to the guilty plea. The petitioner complained that his plea agreement
failed to stipulate that his parole eligibility was contingent upon his completion of the mandatory
sexual offender program and certification prior to parole. “Neither the federal or state constitution
requires that [the defendant] be informed of all possible factors that could affect the parole board’s
decision.” Id. at 833. The petitioner was correctly informed as to his release eligibility date.
Consequently, the petitioner has failed to prove that his guilty plea was not knowing or voluntary.
This issue is without merit.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
___________________________________
JERRY L. SMITH, JUDGE
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https://www.courtlistener.com/api/rest/v3/opinions/247029/ | 262 F.2d 668
59-1 USTC P 9191
N. Gordon PHILLIPS and Lauretta M. Phillips, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15890.
United States Court of Appeals Ninth Circuit.
Jan. 2, 1959.
A. L. Burford, Jr., Los Angeles, Cal., for petitioners.
Charles K. Rice, Asst. Atty. Gen., Davis W. Morton, Jr., A. F. Prescott, Lee A. Jackson, Attys., Dept. of Justice, Washington, D.C., for respondent.
Before BARNES, HAMLEY and HAMLIN, Circuit Judges.
BARNES, Circuit Judge.
1
This is a petition for review of a Tax Court decision, decided adversely to petitioners. Int.Rev.Code of 1954, 7482, 26 U.S.C.A. 7482. Petitioner's wife is interested only as a signer of a joint return, and by reason of the California community property laws. The word 'petitioner' herein refers to both husband and wife.
2
The deficiency determined was for the year 1951 and was the sum of $15,525.59. The amount thereof herein contested was and is the sum of $12,056.00. This sum is one-fourth of the proceeds of 320 shares of stock sold by petitioner in 1951, at which time he sold 10,890 additional shares. The proceeds from these additional shares are not here involved. The proceeds of the 320 shares were originally included in petitioner's 1951 return, but, by reason of subsequent events, are now sought to be excluded.
3
The facts are not disputed, but their legal effect is. Because the case was tried on a stipulation of facts, plus the limited testimony of petitioner N. Gordon Phillips, we adopt the Tax Court's summary of the evidence, as a gair statement. It is set forth in the margin.1
4
The Tax Court likewise accurately sets forth the respective positions of the parties hereto. They are:
5
'The deficiencies set forth in the statutory notices are due to the reduction in the basis of the 11,210 shares of Gordon Oil Company stock sold and reported by petitioner. Petitioner does not contest this reduction in basis but contends that he is entitled to reduce the sales proceeds reported in his 1951 return by the amount of money received for the 320 shares of stock, which money he was obliged to refund in 1953, pursuant to the judgment of the California Courts.
6
'Respondent contends that the proceeds were received by petitioner under a claim of right without restriction as to their disposition, and they are taxable to petitioner in 1951, the year they were received and retained even though in a later year, in 1953, the petitioner was obliged to refund them.'
7
It should be noted that in the limited cross-examination of petitioner N. Gordon Phillips the following colloquy, question and answer appear:
8
'Mr. Reed (Counsel for petitioner Phillips): He has already answered that question that he did consider it (the stock involved in the State court action) his own stock. The question has been asked and answered.
9
'The Court: I think if he's already testified that he did hold it, he has a claim of right. I didn't know that he had said it quite that plainly. * * * I mean, how did he hold the stock?
10
'Q. By Mr. Townsend (counsel for Commissioner): Did you hold your stock as your own under a claim at that time?
11
'A. Yes, I did.'
12
We adopt and confirm that portion of the Tax Court's opinion reading as follows:
13
'We agree with the respondent that the portion of the proceeds received from the sale of the 320 shares in 1951 was taxable income to the petitioner for that year even though he was later obliged to return the portion of the proceeds received from such sale. The 'claim of right' doctrine, which supports respondent, has its origin in North American Oil Consolidated v. Burnet, 286 U.S. 417 (52 S. Ct. 613, 615, 76 L. Ed. 1197). The opinion explains the doctrine as follows:
14
"If a taxpayer received earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent. * * *'
15
'There is no need to go into a general discussion of the claim of right doctrine. It has been applied many times. See Healy v. Commissioner, 345 U.S. 278, 73 S. Ct. 671, 97 L. Ed. 1007; Rutkin v. United States, 343 U.S. 130, 72 S. Ct. 571, 96 L. Ed. 833; and Michael Phillips (v. C.I.R.), 25 T.C. 767, aff'd. 238 F.2d 473.
16
'The facts of this case bring it clearly within the claim of right doctrine. Petitioner treated all 11,210 shares of stock which he received from escrow as his own and he sold the stock in 1951 and treated the entire proceeds from such sale as his own. It was not until 1952 that a claim was filed against the portion of these proceeds representing the 320 shares claimed by Raichart's estate. Petitioner continued to claim his right to the proceeds from the sale of these 320 shares of stock. In what petitioner terms a 'hotly contested adversary proceeding' it was ultimately decided that petitioner's claim of right was invalid.
17
'Since petitioner retained the proceeds from the sale of the 320 shares of stock under claim of right without restriction as to the disposition of said proceeds, he is taxable in the year of sale, regardless of any infirmity in his title and despite the fact that he was obliged to refund the proceeds of said sale in 1953.
18
'Petitioner argues that judgments of state courts in matters of title to property must be respected and here the California State Court ruled the 320 shares belonged to Raichart's estate and no income tax can be exacted from petitioner on the proceeds of the sale of that stock. But petitioner realized income from the sale of this stock in 1951, which he claimed as his own and which he retained at the close of the year. The force of the California judgment compelling the pay-back is recognized and petitioner's complying with the mandate of the judgment will give him a deduction from income in the year it is made.
19
' Petitioner's real argument is in effect an equitable appeal. Petitioner's operations were such that in 1953 when he paid the $56,755.73, he had no taxable income, and, he argues, unless he prevails here, he will be without remedy and respondent will be exacting a tax on income which he reported but was not allowed to retain. But a cardinal principle of Federal income taxation requires annual returns and accounting. Burnet v. Sanford & Brooks Co., 282 U.S. 359 (51 S. Ct. 150, 75 L. Ed. 383). This principle requires the determination of income at the close of the taxable year without regard to the effect of subsequent events. One can admit the equities of the situation favor petitioner but this Court must decide the case according to the applicable law for the taxable year.'
20
Estate of Bluestein, 15 T.C. 770, relied on by petitioner is not in point. It was decided on December 4, 1950. It relied on Freuler v. Helvering, 1935, 291 U.S. 35, 54 S. Ct. 308, 78 L. Ed. 634. Subsequently, in United States v. Lewis, 340 U.S. 590, 71 S. Ct. 522, 95 L. Ed. 560, decided March 26, 1951, the Supreme Court specifically held the Freuler case doctrine inapplicable to 'claim of right' cases.2
21
Nor is the constructive trust rationale, urged by petitioner, here applicable, United States v. Lesoine, 9 Cir., 1953, 203 F.2d 123, 126-127; nor any theory of bailment, United States v. Iozia, D.C.S.D.N.Y., 1952, 104 F. Supp. 846.
22
The taxpayer here actually received the money proceeds from the sale of 320 shares of the stock in 1951. There were no restrictions on his claim of right to those proceeds. He treated the money as his in his tax return of that year. He vigorously fought a subsequent lawsuit to the highest court of his state, always claiming his right to such proceeds and the invalidity of the Raichart heirs claim to them. He testified before the Tax Court that he claimed such proceeds as rightfully his in 1951.
23
As was aptly stated in National City Bank v. Helvering, 2 Cir., 1938, 98 F.2d 93, 96:
24
'It would be intolerable that the tax must be assessed against both the putative tortfeasor and the claimant; collection of the revenue cannot be delayed, nor should the Treasury be compelled to decide when a possessor's claims are without legal warrant. If he holds with claim of right, he should be taxable as an owner, regardless of any infirmity of his title * * *.'
25
Cf. also United States v. Lesoine, supra, and Healy v. Commissioner, 1953, 345 U.S. 278, 282-283, 73 S. Ct. 671, 97 L. Ed. 1007.
26
It must be recognized that had there been no claim by the Raichart heirs subsequent to 1951, there never would have been a change in the claim of right which Phillips first exercised in 1951, and reasserted continuously and vigorously thereafter until the final judgment against him in 1953. At that time, if his claim of right was faulty, then upon satisfaction of judgment, he was entitled to claim a loss in 1953. However, any loss to which he may have been entitled in 1953 does not alter or affect in any way the claim of right he had previously made, which was the basis of his 1951 liability.
27
That he cannot profit, taxwise, from his loss in 1953, (because of other previously existing losses) cannot change the legal liability arising from his ill-starred claim of right in 1951.
28
The petition is denied, and the Tax Court is affirmed.
29
We note there are two separate decisions, each in the same amount, one against N. Gordon Phillips and one against Lauretta M. Phillips, his wife. We assume there will not be any attempt on the part of the government to collect the deficiency twice. This point, although touched upon in the briefs, is not listed as a point on which appellants rely. However, we remand the matter to the Tax Court for the entry of one judgment in the total amount of the deficiency, constituting a joint and several liability of each taxpayer.
1
'N. Gordon Phillips and Lauretta M. Phillips, petitioners in these consolidated cases, are husband and wife residing in Beverly Hills, California. They filed a joint income tax return for 1951 with the then collector of internal revenue for the sixth district of California at Los Angeles, California. Petitioner, N. Gordon Phillips, will hereafter sometimes be referred to as petitioner, as Lauretta is only interested in the case by virtue of the community property laws of California and her liability under the joint income tax return for 1951
'Petitioner organized and promoted the Gordon Oil Company, a California corporation organized on January 30, 1949. For his services and for the transfer of certain leasehold interests, he was to receive one-half of the stock of the said company. A permit was issued by the Corporation Commissioner for the State of California in March 1949, authorizing the issuance of 13,000 shares of stock to petitioner and the sale of an additional 13,000 shares at a par value of $10, and providing that all shares should be held in escrow and that petitioner should receive no dividends on his shares until the purchasers of shares for cash had been reimbursed for the full purchase price.
'Petitioner sold 1,790 shares of stock to other parties, and in March of 1949 the Corporation Commissioner consented to the transfer of said 1,790 shares within escrow to the names of such purchasers. In August 1949 a written instrument was executed by petitioner and G. W. Raichart under the terms of which petitioner purportedly agreed to give 'For promotional services rendered', when received by petitioner from escrow, 320 shares of the capital stock of the Gordon Oil Company.
'G. W. Raichart died on December 27, 1950, and shortly thereafter petitioner put through a transaction with a man named Kline wherein the latter agreed to purchase all of the stock of the Gordon Oil Company. On March 21, 1951, petitioner received 11,210 shares out of escrow (13,000 shares less 1,790 shares previously transferred) and on or about the same date sold them to Kline for $1,689,347. In August 1951, the Gordon Oil Company was dissolved, thereby extinguishing all of its outstanding shares.
'Petitioner treated all of the shares of stock and the proceeds received from the sale of stock as his own, reporting the gain from the sale on his 1951 income tax return.
'In February 1952 the widow of G. W. Raichart, as executrix of his will, brought an action in the Superior Court of California against petitioner for breach of contract and for conversion with respect to the 320 shares of stock which was the subject of the aforementioned instrument executed by petitioner and Raichart. Petitioner resisted the claim, asserting that the instrument executed by him and Raichart was never intended to be an agreement and was void; that it was executed without consideration; and in the alternative that the written agreement had been canceled and extinguished by an oral agreement between the parties. In December 1952 the Superior Court rendered a decision and judgment in favor of the plaintiff holding the defendant in that action, petitioner here, was guilty of conversion of 320 shares of the Gordon Oil Company stock. Since the stock had been disposed of a money judgment was awarded the plaintiff in that action. The District Court of Appeals, Fourth District of California, affirmed the judgment and an appeal to the Supreme Court of California was denied. Petitioner paid the judgment, together with interest, in the amount of $56,755.73 in 1953.
'In his 1953 return Phillips did not claim a deduction for the payment of the judgment. In 1953 his operations, without regard to the payment of the judgment, resulted in a loss and he had no taxable net income for that year.'
2
'Nothing in this language permits an exception merely because a taxpayer is 'mistaken' as to the validity of his claim. Nor has the 'claim of right' doctrine been impaired, as the Court of Claims stated, by Freuler v. Helvering, 291 U.S. 35, 54 S. Ct. 308, 78 L. Ed. 634, or Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S. Ct. 546, 90 L. Ed. 752. The Freuler case involved an entirely different section of the Internal Revenue Code, and its holding is inapplicable here.' Id., 340 U.S. at page 591, 71 S.Ct. at page 523 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/7023665/ | JUSTICE HOWERTON delivered the opinion of the court: Defendant, jailed in St. Clair County on murder charges, told the police he did not want to be interviewed and requested an attorney. An attorney entered an appearance on defendant’s behalf. While in jail, defendant set his cell on fire, confessed, was charged with arson, convicted by a jury, sentenced to eight years, and appeals, claiming: (1) that the State failed to prove the corpus delicti of arson; (2) that his confession was introduced into evidence in violation of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; and (3) that the trial court erred in admitting opinion testimony from lay witnesses concerning causation of the fire. We reject all his claims and affirm. Defendant was housed in a single-man, maximum security, steel and concrete jail cell, the only access to which was through two locked doors. During the fire, the key hole to the jail cell’s inner door was found filled with wet toilet tissue, and defendant was found beneath his steel bunk while a jail uniform, mattress, blanket and newspapers, piled in a heap upon the floor, smoldered and smoked. The defendant argues that the State presented no proof of the corpus delicti of arson and that therefore it was error to deny his motion for a directed verdict at the close of the State’s case. Arson’s corpus delicti consists of: (1) a burning, and (2) a fire of incendiary origin. People v. Hannibal (1913), 259 Ill. 512, 102 N.E. 1042; People v. Lueder (1954), 3 Ill. 2d 487, 121 N.E .2d 743. The defendant relies on Lueder for the general rule that a corpus delicti cannot be proved by a confession alone. We do not quarrel with that formulation of the law. This case, however, is distinguishable from Lueder. In Lueder, the sum of the evidence was that a tool shed on cemetery grounds was gutted by fire and that defendant was employed at the cemetery. There was no evidence that the fire was of incendiary origin. Therefore, there was nothing to support defendant’s confession. Under these circumstances, the corpus delicti was proved only by Lueder’s confession in violation of long-standing law that has been formulated to assure the trustworthiness of confessions. See People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E .2d 861. In this case, however, there is strong circumstantial evidence independent of defendant’s confession that tends to show the fire was of incendiary origin. The defendant was the only person in the cell. The cell was a maximum security cell with steel walls and steel door. The only combustibles in the cell were all placed in a pile in the corner. Wet toilet paper had been placed in the key slot of the cell door from the inside in an effort to prevent someone from opening it. These facts strongly imply that defendant deliberately set the fire. This evidence corroborates the confession, demonstrating its trustworthiness. The Illinois Supreme Court in Willingham states: “Although various criteria have been set forth for what is necessary to establish the corpus delicti, we believe the most precise explanation was given in People v. Perfecto (1962), 26 Ill. 2d 228, 229, [186 N.E.2d 258,] where this court stated: ‘The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case.’ ” Willingham, 89 Ill. 2d at 359, 432 N.E.2d at 864. The confession in this case was admissible because the corpus delicti had been proved. Therefore, the circuit court correctly denied the defendant’s motion for directed verdict. A circuit court must determine only whether a reasonable mind could fairly conclude beyond a reasonable doubt that the defendant was guilty, considering the evidence most strongly in the State’s favor. (People v. Withers (1981), 87 Ill. 2d 224, 429 N.E.2d 853.) Considering the circumstantial evidence against defendant, a reasonable person could conclude that the State had proved the corpus delicti. Defendant next contends that it was error to admit into evidence his confession to Sergeant Hendricks. Because defendant had counsel on the murder charge, and Hendricks questioned him without his counsel being present, defendant argues that the questioning by Hendricks violated his fifth amendment right to counsel. Defendant relies on Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, and Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093. His reliance on those cases would be well placed, but for his failure to timely assert his rights secured by these cases. In Edwards v. Arizona, the U.S. Supreme Court held that once a suspect asks for an attorney, the police may not interrogate him further until counsel has been made available. In Arizona v. Roberson, the U.S. Supreme Court refused to carve out an exception to Edwards for situations wherein the police question a defendant about a crime unrelated to the one for which he is under arrest. We believe defendant waived application of these cases by his failure to try to exclude Hendricks’ testimony in a timely way. The Illinois Code of Criminal Procedure requires a motion to suppress to be filed before trial. (Ill. Rev. Stat. 1985, ch. 38, par. 114— 11(g).) Defendant, for whatever reason, and even though he had been alerted through discovery that the State intended to use it, neither filed a motion to suppress nor moved in limine to suppress Hendricks’ testimony as to the confession. At the time Hendricks testified, therefore, defendant had not asked the court to exclude the confession on grounds of the rule stated in Edwards v. Arizona and Arizona v. Roberson.1 Furthermore, defendant allowed Hendricks to prove orally the confession. Hendricks’ testimony and the circumstances surrounding it are critical to our resolution. The testimony was: “Q. Did you tell him you wanted to talk to him about the fire at the jail? A. Yes, I did. I then simply asked him what cell he was in. He tells me Cell 6 in Max E, and knowing the structure of the jail, that’s a one-man cell. Nobody else could have been in there at that particular time. But I then asked him why did he set the fire — did he set the fire. I asked him first did he set the fire. He says yes, he did. And I then asked him why he set it, and he at that time initially told me that he was trying to get some attention, and then I asked him did he want to give me a statement to that effect and he said yes. Q. What was his response? A. He said yes.” Defendant’s confession had just been given orally to the jury, and there was no objection. Shortly thereafter, the State laid the evidentiary foundation for the written, signed confession and offered it into evidence. Only then did defendant object and move to strike Hendricks’ testimony on the grounds that the rule in Edwards v. Arizona had been violated. Had timely objections been made, Edwards v. Arizona would compel reversal. In this case, however, no timely objection was made. Defendant filed no motion to suppress, no motion in limine and made no objection to the oral account of the confession going into evidence against him. Had the State stopped and not introduced the written confession, the circuit court never would have been called upon to make a ruling. But, the State pressed on and introduced the written confession, the contents of which the jury already had heard. Only then did defendant object and move to strike. Had the objection been sustained, but the motion to strike denied, then defendant’s confession still would have" been before the jury through Hendricks’ testimony. Had the objection been sustained and the motion to strike granted, the confession would have been highlighted to the jury, and defendant most likely now would be complaining that the court’s instruction to disregard could not remove the stain of the inadmissible evidence from the jurors’ minds, and defendant, therefore, was deprived of a fair trial. The upshot is this: defendant’s failure to assert a timely objection forced the circuit court to choose between letting the case go forward or sua sponte declaring a mistrial. A mistrial under these circumstances would carry with it the attendant risk of retrial being barred by application of double jeopardy since it would have been declared because of prosecutorial misconduct. (People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496; People v. Reimnitz (1981), 97 Ill. App. 3d 946, 423 N.E.2d 934.) Under these circumstances we find no error; we find the issue waived by defendant’s failure to interpose either a timely motion or a timely objection. Finally, defendant claims it was error for the court to allow three State witnesses to testify that defendant was relaxing and smiling after the fire and that they believed defendant set the fire because he was the only one in the cell. He says this testimony from these lay witnesses violates the opinion rule. People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792. Defendant again claims that the circuit court did a bad job in failing to interject into the trial to save defendant from the consequences of the way he chose to try his case. Defendant elicited these responses during his cross-examination of the witnesses and took the answers without objection. A court is not obligated to exclude improper evidence where a defendant makes no objection, does not move to exclude it, or does not disclaim the answers. (People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389.) Defendant waived any error by failing to object to two of the alleged errors and by failing to include any of the three allegations in his post-trial motion. People v. Kennedy (1986), 150 Ill. App. 3d 319, 501 N.E. 1004. The circuit court is affirmed. Affirmed. HARRISON and GOLDENHERSH, JJ., concur. Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, is not involved in this case. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1583939/ | 427 So.2d 1080 (1983)
Ralph E. PARIS, Appellant,
v.
Linda M. PARIS, Appellee.
No. AK-395.
District Court of Appeal of Florida, First District.
March 11, 1983.
*1081 Bill A. Corbin, Blountstown, for appellant.
Thomas B. Ingles, Lynn Haven, for appellee.
PER CURIAM.
Appellant appeals an order of indirect criminal contempt entered without compliance with Rule 3.840(a)(1), Florida Rules of Criminal Procedure,[1] in that only one of the two motions for contempt filed by appellee was supported by an affidavit and no order to show cause had been issued.
Receipt of a motion for contempt order and notice of hearing rather than the formal pleadings required by Rule 3.840 is insufficient for the purpose of apprising one to be prepared to stand ready to answer a charge of criminal contempt. Pugliese v. Pugliese, 347 So.2d 422, 426 (Fla. 1977). The order to show cause which the trial judge is directed, by virtue of Rule 3.840(a)(1), to issue prior to a hearing on any charge of indirect criminal contempt must be predicated on a sworn affidavit of a person with knowledge of the facts, the verification of a prosecuting attorney based on sworn testimony given to him, or testimony given under oath before the issuing judge. Starchk v. Wittenberg, 411 So.2d 1000 (Fla. 5th DCA 1982); Thomas A. Edison College, Inc. v. State Board of Independent Colleges and Universities, 411 So.2d 257 (Fla. 4th DCA 1982); Deter v. Deter, 353 So.2d 614 (Fla. 4th DCA 1977).
Because the aforementioned procedural due process safeguards were not met, we reverse the order of contempt without prejudice to proceed against appellant following the issuance of a court order to show cause predicated upon a sworn affidavit or testimony of a person with knowledge of the facts in accordance with the requirements of Rule 3.840(a)(1).
BOOTH, WIGGINTON and NIMMONS, JJ., concur.
NOTES
[1] Rule 3.840(a)(1), Fla.R.Crim.P.:
Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4203742/ | 300 Multiple Choices
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The document name you requested (/attorneys/assets/opinions/appellate/unpublished/a4292-15.pdf) could not be found on this server.
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IBM_HTTP_Server at www.judiciary.state.nj.us Port 443 | 01-03-2023 | 09-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3366225/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: MOTION TO DISMISS (#117)
In January of 1989, the plaintiffs commenced a civil suit against the State of Connecticut, Department of Public Safety for injuries to Tania Dimitriou allegedly arising out of an incident that occurred on September 1, 1984. The plaintiffs allege that on that date, plaintiff, Tania Dimitrios was injured at a fair held on the grounds of St. Mary's Church Corp. of Newington when her leg became entrapped in the steel drive cables of the ferris wheel that she was on at the time. The plaintiffs further allege that the State Department of Public CT Page 5282 Safety was responsible for inspecting and certifying as reasonably safe for public use all amusement rides in the State of Connecticut at least once every calendar year. The plaintiffs claim that, although the state did have this ride inspected as required, it negligently caused the plaintiff's injuries because the inspection was negligently performed by an inspector not qualified to conduct such inspections and failed to detect any defects during the inspection or to make any recommendations regarding operation of this ride.
The plaintiffs claim extreme emotional distress from witnessing the alleged injuries to Tania Dimitriou.
The plaintiffs allege that the third-party defendant, Chancey Brothers, Inc. was the owner and operator of the ferris wheel involved in this action.
By motion dated December 6, 1990, the defendant State Department of Public Safety moved to implead Chancey Brothers. Said motion was granted on January 14, 1991 and Chancey Brothers was served on January 31, 1991. The third-party plaintiff claims that if any negligence was involved and the cause of the alleged injuries, it was the negligence of Chancey Brothers, Inc. that caused the plaintiffs injuries.
Chancey Brothers Inc. terminated its corporate existence on September 24, 1986. It published a Notice of Dissolution, as required by General Statutes 33-379 (a), in the Connecticut Law Journal on October 7, 1986 and October 14, 1986. The defendant, Chancey Brothers, argue as the basis for their motion to dismiss that no action can be commenced against a corporation that has been dissolved for more than three years. Chancey Brothers Inc. in their motion state that it, Chancey Brothers, Inc. "is not and at the time of the institution of this and the underlying action was not an existing corporation in the State of Connecticut and was, therefore, not properly served."
General Statutes 33-379 provides, inter alia: "Any action, suit or proceeding against a dissolved corporation . . . liability incurred prior to dissolution shall be barred if not commenced within three years after the last publication of notice provided for in subsection (c) of this section." Notice was last published on October 14, 1986. Therefore, for this action to have been timely commenced, it would have to have been commenced on October 14, 1989. The motion to implead Chancey Brothers was filed December 6, 1990, and Chancey Brothers was served on February 4, 1991. This was after the three year time limitation. CT Page 5283
Accordingly, the motion to dismiss is granted.
BURNS, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3366226/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This is an appeal from the decision of the defendant Plan and Zoning Commission (hereinafter the Commission) which granted a resubdivision application for development of two lots located off West Todd Street and Chatterton Way in the Town of Hamden. The plaintiffs appeal from that decision as abutting landowners.
On October 15, 1991, the Planning Section of the Commission approved the resubdivision application. The plaintiffs claim that the resubdivision application failed to satisfy the applicable requirements of the statutes and the Hamden zoning regulations dealing with soil erosion and sediment control plans and that the evidence presented by the applicant failed to demonstrate that the lots in question can be used for building purposes without danger to the plaintiff's property. CT Page 9394
The plaintiffs own and live in a house at 155 West Todd Street in Hamden bounded on the north by a town road known as Chatterton Way. This property was purchased by the plaintiffs in 1984. Approximately half of the plaintiffs' property is covered by a pond and the plaintiffs' house sits at the very edge of the pond. (See plaintiffs' exhibit B and document 30 of the Record on Appeal.) The pond on the plaintiffs' property is fed by Jepps Brook, which runs across the westerly side of the two lots.
It is clear that the plaintiffs as abutting owners of land are "aggrieved" as a matter of law. Section 8.8(a) of the General Statutes provides that "any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board . . . may . . . take an appeal to the superior court." The plaintiffs have the necessary statutory standing to appeal. Aitken v. Zoning Board of Appeals, 18 Conn. App. 195 (1989); Fuller v. Planning and Zoning Commission, 21 Conn. App. 340 (1990).
On a zoning appeal, the court will not disturb the decision of the Commission if it is reasonably supported by the record. Burnham v. Planning and Zoning Commission, 189 Conn. 261,265 (1983). The courts do not substitute their judgment for that of the local authority. Raybestos-Manhattan, Inc. v. Planning and Zoning Commission, 186 Conn. 466, 468 (1982). The court may grant relief only where the local authority has acted illegally or arbitrarily or has abused its discretion. Id. at 470. Plaintiffs have the burden of proof to demonstrate that the Commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
Section 22a-325 through 22a-329 of the General Statutes sets forth the soil erosion and sediment control act. Section 22a-327(5) of the General Statutes defines a "soil erosion and sediment control plan" and section 22a-329 of the General Statutes, more particularly (2), requires that such a soil erosion and sediment control plan be submitted with any application for development when the disturbed area of such development is more than one half acre as would be the case in this instance. The plaintiffs claim that the plan submitted by the applicant (document 42 of the Record on Appeal) does not satisfy the requirements of the statute.
CT Page 9395 Section 22a-327(5) provides as follows:
"Soil erosion and sediment control plan" means a scheme that minimizes soil erosion and sedimentation and includes, but is not limited to, a map and narrative. The map shall show topography, cleared and graded areas, proposed area alterations and the location of and detailed information concerning erosion and sediment measures and facilities. The narrative shall describe the project, the schedule of major activities on the land, the application of conservation practices, design criteria, construction details and the maintenance program for any erosion and sediment control facilities that are installed;
Section 663 of the Hamden zoning regulations sets forth the requirements for a soil erosion and sediment control plan and provides, in part, as follows:
. . . [A] soil erosion and sediment control plan shall contain proper provisions to adequately control accelerated erosion and sedimentation and reduce danger from storm water runoff on the proposed site based on the best available technology. Such principles, methods and practices necessary for certification are found in the Connecticut Guidelines for Soil Erosion and Sediment Control (1985) as amended.
Said plan shall be submitted in six copies and shall contain, but not be limited to:
a. A narrative describing the development; a schedule for grading and construction activities including start and completion dates, sequence of grading and construction activities, sequence for installation and/or application of soil erosion and sediment control measures; and the sequence for final stabilization of the project site. CT Page 9396
b. The design criteria, construction details, installation and/or application procedures, and operations and maintenance program for proposed soil erosion and sediment control measures and storm water management facilities.
c. A site map showing:
c. 1 The location of the proposed development and adjacent properties;
c. 2 The existing and proposed topography including soil types, wetlands, watercourses and water bodies;
c. 3 The existing and proposed structures on the site;
c. 4 The proposed area alterations including cleared, excavated, filled or graded areas, proposed utilities, roads and, if applicable, new property lines;
c. 5 The location of and design details for all proposed soil erosion and sediment control measures and storm water management facilities;
c. 6 The sequence of grading and construction activities;
c. 7 The sequence for installation and/or application of soil erosion and sediment control measures;
c. 8 The sequence for final stabilization of the development site.
d. Any other information deemed necessary CT Page 9397 and appropriate by the applicant or requested by the Commission or its designated agent. (Sec. 663)
The Commission or its designated agent may certify a Soil Erosion and Sediments Control Plan on a finding that it complies with the following minimum standards:
a. Plans for soil erosion and sediment control shall be developed in accordance with these regulations using the principles as outlined in Chapters 3 and 4 of the Connecticut Guidelines for Soil Erosion and Sediment Control (1985) as amended.
b. The minimum standards for individual measures are those in the Connecticut Guidelines for Soil Erosion and Sediment Control (1985) as amended.
While the defendant Commission approved the application with conditions (document 37, pgs. 4 and 5 of Record on Appeal), these conditions do not satisfy the requirements of section 663 of the Hamden Zoning Regulations and section22a-327(5) of the General Statutes. The plan submitted did not contain provisions "based on the best available technology" to "adequately control accelerated erosion and sedimentation and reduce danger from storm water runoff." It did not contain a "narrative" of the work to be performed. It did not include any provisions "to effectively accommodate the increased runoff by changes in soil and surface conditions" as required by section 4.10, paragraph e of the Hamden Land Subdivision Regulations. It did not show that the land could be used without danger of flooding to abutting owner as provided by section 1.1 of the Hamden Land Subdivision Regulations.
In approving the subdivision application the Commission has failed to consider the requirements of the municipal regulations and the general statutes. The plaintiffs' appeal is sustained.
EDGAR W. BASSICK, III, JUDGE CT Page 9398 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3366227/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The defendant, Cambridge Mutual Fire Insurance Company, moves to strike the second and third counts of the revised complaint of the plaintiff's, John and Eileen Stanley.
The first count of that complaint alleges that the plaintiff's and the defendant entered into a homeowner's insurance contract, that certain damage occurred on the plaintiffs' property which was covered by the insurance policy, and that the defendant refuses to honor the agreement and pay for the loss. The second count reiterates these allegations and further states that the refusal to pay when responsibility to do so is apparent under the policy constitutes a violation of the Connecticut Unfair Insurance Practices Act (CUIPA). The third count incorporates these allegations into a violation of the Connecticut Unfair Trade CT Page 12838 Practices Act (CUTPA).
A motion to strike "admits all the facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings," (Mingachos v CBS Inc., 196 Conn. 91, 108 (1985).
I
The defendant contends that the second count, purporting to plead a CUIPA violation, fails to state a legally cognizable claim because CUIPA does not establish a private cause of action and because no pattern of insurer misbehavior is alleged. The court agrees on both grounds.
CUIPA is found in General Statutes §§ 38a-815 et seq. The Act enumerates a compendium of insurer practices which fall within its ambit. The Act also provides mechanisms for the insurance commissioner to rectify such practices. No authority for private suit is expressed in CUIPA, unlike other regulatory legislation, Baroni v. Western ReserveLife Assurance Co., Superior Court, Middlesex J.D., d.n. CV 99-87965 (September 29, 1999), Gordon, J.
Additionally, the second count alleges that the defendant engaged in unfair settlement activity solely by way of nonpayment of the plaintiffs' claim. Isolated instances of insurer misconduct are exempt from coverage under CUIPA, Lees v. Middlesex Ins. Co., 229 Conn. 842, 849 (1994).
For these reasons, the second count of the revised complaint must be stricken.
II
As to the CUTPA violation claim set forth in the third count, our Supreme Court has also held that the "definition of unacceptable insurer conduct in [CUIPA] reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention,"Mead v. Burns, 199 Conn. 651, 666 (1986). This definition extends to CUTPA as well as CUIPA, Id. Consequently, the CUTPA count must also be stricken.
The motion to strike the second and third counts of the revised complaint is granted.
Sferrazza, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3366229/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This is a motion to dismiss an administrative appeal from the decision of the Willington Planning and Zoning Commission granting a change of zone and approving a site plan concerning certain property located on Ruby Road in Willington. This motion is filed pursuant to Conn. Gen. Stat. Sec. 8-8j and claims as its basis a lack of standing in the plaintiffs to appeal this decision because they have not been aggrieved by the decision.
On November 4, 1991, defendants Ruby Associates General Partnership and Joseph Mihaliak applied to the Willington Planning and Zoning Commission (hereinafter "Commission") for a change of zone from residential (R-80) to industrial (D.I.) pertaining to property on Ruby Road, also known as Route 320. In conjunction therewith they also submitted a preliminary CT Page 4736 site plan for approval. On January 21, 1992, the Commission approved the zone change and a modified version of the preliminary site plan. The Commission's decision was published on January 27, 1992, and on February 8, 1992, the plaintiffs commenced the appeal from that decision under the provisions of Conn. Gen. Stat. Sec. 8-8 (b).
The change in zone will allow, as a proposed use, the property to become a base for a trucking company, as well as other light industrial and commercial type enterprises. The proposed trucking base is anticipated to handle twenty-three hundred truck trips per day.
Plaintiff Craig Brown owns a residence at 8 Center Street in Willington. His residence is six to seven miles south of the subject property. He complains that the proposed use will dramatically increase vehicular traffic on the streets of Willington and will generate air and noise pollution which will affect his property. He acknowledges that the proposed trucking base is not likely to increase traffic on Center Street itself.
Plaintiff Diane Schmidt owns a residence at 24 Eldridge Mills Road in Willington. Her residence is about two miles from the subject property. She asserts complaints similar to Brown's and feels the value of her property may diminish because of the presence of the trucking base in Willington. Plaintiff Wayne Knight is part owner of property on Moose Meadow Road in Willington. This property comprises about one hundred twenty-five acres of woodland, and he asserts his property abuts the subject property.
LAW
Under Conn. Gen. Stat. Sec. 8-8j, once any defendant attacks, by way of a motion to dismiss, a plaintiff's standing to appeal a decision of a planning and zoning commission, the plaintiff has the burden to prove standing. In order to prove standing to appeal the decision of the Commission the plaintiffs must establish they have been aggrieved by that decision. A plaintiff can show either "classical" or "statutory" aggrievement. In this case plaintiffs Brown and Schmidt claim classical aggrievement, and Knight claims both classical and statutory aggrievement.
I
As to plaintiffs Brown and Schmidt, the fundamental test for determining classical aggrievement encompasses a two-fold determination, Rose v. Freedom of Information Commission, 221 Conn. 217
CT Page 4737 (1992), p. 230; and Mystic Marinelife Aquarium v. Gill, 175 Conn. 483 (1978), p. 493. First, the purportedly aggrieved party must "demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Secondly, the party . . . must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision," Ibid.
The Court concludes that these plaintiffs have failed to satisfy either prong of this test. First, their objections to the decision of the Commission do not arise from the subject matter of the decision. Their fears concern the impact of truck traffic off the premises in question, i.e. on the streets of Willington generally. They do not focus on any increase in traffic and pollution at or near the site. Secondly, these parties' fears are indistinguishable from those of the citizens of Willington generally. They claim no special potential injury different from any other resident of Willington or its surrounding towns. The plaintiffs, living seven and two miles from the subject property, do not reside so close to the site of the zone change so that the impact of the increase in vehicular traffic, noise, and air pollution affects them in greater concentrations and to a greater degree than other members of the general public. Thirdly, these plaintiffs do not object to the zone change for this parcel per se, but rather object generally to the permitting of such a use in Willington. In other words, it is not the particular action by the Commission concerning the subject property that offends them, but any action by the Commission to permit such activity anywhere in Willington.
For these reasons, these plaintiffs have failed to meet their burden of establishing that they have a special and personal interest in the decision and that they were specially affected by the decision.
II
As to plaintiff Knight, the Court first considers his claim of statutory aggrievement under Section 8-8(a)(1) because the Court finds this issue determinative on standing to appeal. That subsection defines an "aggrieved person" to include "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
This plaintiff introduced a copy of a Class D survey entitled "Zone Change Plan From R-80 Zone to D.I. Zone CT Page 4738 Proposed For Ruby Associates." (Plaintiff's Exhibit B). This survey depicts the subject property and was submitted by the applicants for the zone change to the Commission. The survey indicates that the subject property is located on Ruby Road and abuts property, now or formerly, of William Parizek and Marlin and Edith Knight. This plaintiff also introduced a deed, dated October 20, 1987, in which Edith H. Knight quit claimed to him her interest in certain property in Willington, which property abutted land of Willian B. Ruby. (Plaintiff's Exhibit A). This plaintiff also testified that he is familiar with the property quit claimed to him and that it is the same parcel depicted as abutting the subject property in the survey.
The defendants contend that Knight's testimony is insufficient to identify the property in which he has an ownership interest as the one denoted as an abutter on the survey and that a Class D survey is not accurate enough to establish whose property abuts the subject property. The Court disagrees with both contentions.
An owner is presumed to know the boundaries of his own land, Connecticut Light and Power Co. v. Fleetwood, 124 Conn. 386
(1938), p. 390; and Dawson v. Davis, 125 Conn. 330
(1939), p. 333. The Court finds Knight's testimony in this regard to be credible and to be the product of his knowledge of his own land. Therefore, the Court also finds that the parcel denoted as now or formerly of Parizek and Knight is the same property a partial interest in which was conveyed to this plaintiff by the deed from Edith H. Knight.
As to the second contention, it should be noted that the survey is the same one submitted by defendants Ruby Associates General Partnership and Mihaliak to the Commission and, presumably relied upon by that agency in its decision in their favor. The survey purports to be prepared by a professional land surveying business, Gardner and Peterson Associates, and uses a scale of one inch equals four hundred feet. Using this scale, the Court calculates that the boundary shared by the subject property and the parcel owned by Parizek and the Knights is approximately twenty-three hundred feet long.
If this survey presented a geographic close call as to whether this plaintiff's land was within one hundred feet of the subject property, the defendants' contention might be persuasive. But the Court finds that the magnitude of error necessary to call into question whether the subject property abuts this plaintiff's property for twenty-three hundred feet or not at all is so great as to render the existence of such CT Page 4739 abuts this plaintiff's property, and, therefore, he is sufficiently accurate to establish that the subject property statutorily aggrieved under Section 8-8 (a)(1) and has standing to appeal.
The defendant's motion to dismiss is granted as to Brown and Schmidt and denied as to Knight.
BY THE COURT,
HON. SAMUEL SFERRAZZA SUPERIOR COURT JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/412342/ | 696 F.2d 989
Crosbyv.Greyhound Bus Lines, Inc.
82-6526
UNITED STATES COURT OF APPEALS Fourth Circuit
11/22/82
1
D.Md.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3075533/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00194-CR
Brandon Williams § From the 371st District Court
§ of Tarrant County (1327831D)
v. § December 23, 2014
§ Opinion by Justice Gabriel
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Lee Gabriel
Justice Lee Gabriel | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1008994/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7043
KENNETH BOND,
Petitioner - Appellant,
versus
RONALD ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-01-1277-AM)
Submitted: September 27, 2002 Decided: November 7, 2002
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kenneth Bond, Appellant Pro Se. Michael Thomas Judge, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth Bond seeks to appeal the district court’s judgment
denying his motion filed under 28 U.S.C. § 2254 (2000). We have
reviewed the record and the district court’s memorandum opinion and
conclude on the reasoning of the district court that Bond has not
made a substantial showing of the denial of a constitutional right.
See Bond v. Angelone, No. CA-01-1277-AM (E.D. Va. filed June 17,
2002; entered June 18, 2002). Accordingly, we deny leave to proceed
in forma pauperis, deny a certificate of appealability and dismiss
the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3359971/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff appears to be attempting to allege three causes of action as against the defendant, all of which are CT Page 995 set forth in a single count. The first paragraph, 19 "respondent superior", is a proper pleading of the legal effect of the relationships between the defendants.
As to the second paragraph, General Statutes § 52-183 sets forth an evidentiary presumption. It is unclear whether the plaintiff claims that General Statutes § 52-183 sets forth a cause of action in and of itself, unrelated to its evidentiary use for the purpose of proving agency. If so, it should be set forth as a separate count. If not, it would be duplicative, redundant, and neither a pleading of fact nor an operative legal conclusion giving rise to a remedy.
As to the third paragraph, 21, the plaintiff appears to claim that "permissive use" gives rise to a separate cause of action, a separate legal conclusion, apparently under some legal theory of liability arising out of bailment or the like. If so, this should be set out as a separate cause of action. If not, it is redundant and unnecessary, as the factual claim is already set out in the incorporated paragraph 4 of the first count.
The request to revise seeks to expunge the operative paragraphs of the second count — 19, 20, 21. As so requested the motion cannot be granted. The second count should be clarified by a further request to revise by requesting to separate claimed causes of action into separate counts, (PB 147(3)) and/or to delete repetitious and immaterial allegations (PB 147(1)).
The request to revise, in the format presented to the court, cannot be granted.
L. Paul Sullivan, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2782591/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOHN ROBERTS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3844
DORTHEANNE ROBERTS,
Respondent.
______________________________/
Opinion filed February 10, 2015.
Petition for Writ of Prohibition – Original Jurisdiction.
Valarie Linnen, Atlantic Beach, for Petitioner.
Jessica M. Rose, Bay City, for Respondent.
PER CURIAM.
DENIED.
PADOVANO, CLARK, and MARSTILLER, JJ., CONCUR. | 01-03-2023 | 02-26-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4038949/ | ACCEPTED
06-14-00086-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/6/2015 3:41:55 PM
DEBBIE AUTREY
CLERK
No. 06-14-00086-CV
In The FILED IN
6th COURT OF APPEALS
Sixth Court of Appeals TEXARKANA, TEXAS
1/6/2015 3:41:55 PM
Texarkana, Texas DEBBIE AUTREY
Clerk
Faye Comte & Laura Severt,
Appellants,
v.
Smith County Commissioner’s Court,
Joel Baker, Cary Nix, Jeff Warr,
Joann Hampton & Terry Phillips
Appellees.
On Appeal from the 241st District Court
of Smith County, Texas
Trial Cause No. 13-2492-C
COUNSEL FOR APPELLANTS’ MOTION TO
WITHDRAW AND TO SUBSTITUTE COUNSEL
Brandon Beck
State Bar No. 24082671
Starr Schoenbrun Comte
McGuire PLLC
110 N. College Ave., Suite 1700
Tyler, TX 75702
Appellate Counsel
TO THE SIXTH COURT OF APPEALS:
Now comes Brandon Beck and, pursuant to Texas Rule of Appellate Procedure 6.5(d),
files this Motion to Withdraw and to Substitute Counsel. There is good cause for this Court to
grant the Motion to Withdraw because Brandon Beck is departing from his firm and moving to
1
Lubbock, Texas, where he has accepted a position that prohibits him from engaging in the
private practice of law. Laura Severt will be substituted as lead counsel for Appellants. Her
information is as follows:
Laura Severt
Texas Bar No. 24051886
J. Bennett White, P.C.
1011 Pruitt Place
Tyler, TX 75703
903.597.4300
903.597.4330 (fax)
lsevert@jbwlawfirm.com
Both Appellants approve the withdrawal and substitution, which are not being done to
delay this case.
PRAYER
For these reasons, Brandon Beck asks this Court to grant his Motion to Withdraw and
substitute Laura Severt as lead counsel for Appellants.
Respectfully submitted,
Starr Schoenbrun Comte McGuire, PLLC
110 N. College Ave., Suite 1700
Tyler, Texas 75701
Telephone: 903-534-0200
Fax: 903-534-0511
/s/ Brandon Beck
Brandon Beck
State Bar No: 24082671
Attorney for Appellants
Agreed: /s/ Laura Severt
Laura Severt
Appellant and Substitute Counsel
Agreed: /s/ Faye Comte
Faye Comte
Appellant
2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded on January 6, 2014, to all interested parties, as set forth below:
Robert Davis By Fax
Flowers Davis, PLLC
1021 ESE Loop 323, Suite 200
Tyler, Texas 75701
(903) 534-8063
(903) 534-1650 (fax)
Attorney for Appellees
Laura Severt By Mail
Texas Bar No. 24082655
J. Bennett White, P.C.
1011 Pruitt Place
Tyler, TX 75703
903.597.4300
903.597.4330 (fax)
Appellant and Substitute Counsel
Faye Comte By Hand Delivery
Starr Schoenbrun Comte McGuire, PLLC
110 N. College Ave., Suite 1700
Tyler, Texas 75701
Telephone: 903-534-0200
Fax: 903-534-0511
Appellant
/s/ Brandon Beck
Brandon Beck
3 | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/412480/ | 696 F.2d 997
Denisv.Krell
82-1044, 82-1140
UNITED STATES COURT OF APPEALS Seventh Circuit
11/22/82
1
E.D.Wis.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1009030/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1309
NICK DRAGOVICH,
Plaintiff - Appellee,
versus
JOSEPH M. BUICE, a/k/a ModChipUSA, a/k/a A&M
Enterprises; ANDRE WALLIMAN,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-00-418)
Submitted: November 14, 2002 Decided: November 15, 2002
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph M. Buice, Andre Walliman, Appellants Pro Se. Douglas Wayne
Kenyon, Keri C. Prince, Laurie J. Bremer, HUNTON & WILLIAMS,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph M. Buice and Andre Walliman appeal the district court’s
order entering default judgment against them in this copyright
infringement and breach of contract action. We have reviewed the
record and find no reversible error. Accordingly, we affirm for
the reasons stated by the district court. See Dragovich v. Buice,
No. CA-00-418 (E.D.N.C. June 7, 2000). Additionally, we deny the
Appellants’ motions for a stay of discovery in Dragovich’s
collection proceeding in the Eastern District of Virginia and to
expedite consideration of the motion. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060634/ | FILED
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE March 30, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
NAPOLEON MOMON, ) FOR PUBLICATION
)
Appellant, )
)
v. ) HAMILTON CRIMINAL
)
STATE OF TENNESSEE, ) HON. STEPHEN M. BEVIL,
) JUDGE
Appellee. )
) No. E1996-00007-SC-R11-PC
)
) (Post Conviction)
For the Appellant: For the Appellee:
Stephen M. Goldstein Paul G. Summers
Chattanooga, Tennessee Attorney General & Reporter
For Amicus Curiae Michael E. Moore
Tennessee Association of Criminal Solicitor General
Defense Lawyers
Paula R. Voss Daryl J. Brand
Knoxville, Tennessee Associate Solicitor General
Nashville, Tennessee
David M. Siegel
Associate Professor William H. Cox, III
New England School of Law District Attorney General
Boston, Massachusetts 11th Judicial District
Rodney C. Strong
Assistant District Attorney
Chattanooga, Tennessee
OPIN ION O N PE TITION TO REHE AR
The appellant, Napoleon Momon, and Amicus Curiae, Tennessee
Association of Criminal Defense Lawyers, (“TACDL”), have filed petitions to rehear
the opinion of this Court issued on November 15, 1999. The appellant asserts in
his petition that the Court erred in finding that the harmless error doctrine may be
applied to a violation of the fundamental right to testify. TACDL challenges the
voir dire procedure adopted in the opinion and argues that a defendant should
also be permitted to execute a written waiver of the right to testify in place of the
on-the-record voir dire waiver. In its response, the State asserts that the Court
could modify its decision to allow the defendant to make an on-the-record
statement acknowledging that he or she has been advised that
(1) the defendant has the right not to testify, and if the defendant
does not testify, then the jury (or court) may not draw any inferences
from the defendant’s failure to testify;
(2) the defendant has the right to testify and that if the defendant
wishes to exercise that right, no one can prevent the defendant from
testifying;
(3) the defendant has consulted with his or her counsel in making
the decision whether or not to testify; that the defendant has been
advised of the advantages and disadvantages of testifying; and that
the defendant has voluntarily and personally waived the right to
testify.
According to the State, this on-the-record statement approach is preferable to a
written waiver and also protects the attorney-client privilege. However, in the
event the Court agrees with TACDL and permits a written waiver, the State
asserts that the waiver should not be executed until after the presentation of the
prosecution’s case-in-chief.
After due consideration, we conclude that the appellant’s petition to rehear
challenging the Court’s application of the harmless error doctrine to a violation of
the right to testify should be and hereby is DENIED. The members of this Court
continue to adhere to their original opinions on this issue.
-2-
However, the petition to rehear filed by TACDL is well-taken and is
GRANTED. We hereby hold that defendants may waive the right to testify either
by signing a written waiver or by engaging in the voir dire procedure set out in the
initial decision of this Court. Cf. Tenn. R. Crim. P. 23 (allowing a written waiver of
trial by jury); State v. Muse, 967 S.W.2d 764, 768 (Tenn. 1998) (stating that right
to be present at voir dire of the jury may be personally waived by the defendant
either in writing or on-the-record in open court.”) If a written waiver is executed,
the written form must show at a minimum that the defendant knew and understood
items 1-3 above. In addition, we agree with the State that the written waiver
should not be executed before the close of the prosecution’s case-in-chief.
Costs of this petition to rehear is taxed against the State for which
execution may issue if necessary.
PER CURIAM
-3- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3039697/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2524
___________
James Edward Phillips, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jasper County Jail; Cabalero; * Western District of Missouri.
Eby; Garza; Kelly; Forsythe; *
Riley; Moback; Sanchez; Sewell; *
Lietz; Lyman; Carr; John Freitas; *
Marney, *
*
Appellees. *
___________
Submitted: November 17, 2005
Filed: February 14, 2006 (Corrected: 2/28/06)
___________
Before ARNOLD, BEAM, and RILEY, Circuit Judges.
___________
ARNOLD, Circuit Judge.
After James Phillips fell from the top bunk in his cell at the Jasper County,
Missouri, jail, he filed a lawsuit under 42 U.S.C. § 1983, accusing various jail
employees and the jail's doctor of violating his constitutional rights. The district court
denied Mr. Phillips's requests for appointed counsel. Later in the proceeding, the
court granted the defendants' motions for summary judgment, determining that
Mr. Phillips had failed to present sufficient evidence to create a genuine issue of
material fact as to whether the defendants were deliberately indifferent to a medical
condition that caused him to have seizures.
Mr. Phillips contends that the district court erred by denying him appointed
counsel, by granting summary judgment to Dr. John Freitas, and by granting summary
judgment to the jail employees. Although we find no merit in the first two arguments,
we agree with Mr. Phillips that a genuine issue of material fact exists with respect to
his claims against the jail employees.
I.
Mr. Phillips has intermittently taken anti-seizure medication following a head
injury that he sustained some time ago. When he was first booked into the Jasper
County Jail four years ago, he was prescribed 1000 milligrams per day of the drug
Tegretol to control his seizures. That dosage remained the same when Mr. Phillips
was moved to the Missouri State Penitentiary. Before the state prison discharged him,
however, Mr. Phillips stopped taking the medication. Several days after his release
from the state penitentiary, Mr. Phillips was again booked into the Jasper County Jail.
Dr. Freitas, who was under contract to provide medical services to the inmates at the
jail, reviewed Mr. Phillips's case and prescribed twice-daily 250-milligram doses of
Depakote, another anti-seizure medication. Mr. Phillips also requested that he be
assigned to a bottom bunk because of his seizures.
A few months after being re-admitted to the jail, Mr. Phillips was sleeping on
the top bunk in his cell. During the night, he fell from the bunk and suffered injuries
to his head, neck, and spine. Mr. Phillips then filed this lawsuit, alleging that the
doctor and the named jail employees were deliberately indifferent to his medical
condition, in violation of the eighth and fourteenth amendments.
As the case progressed, Mr. Phillips filed a motion requesting that the district
court appoint an attorney to represent him. The district court denied the motion
-2-
without prejudice, because the record had not been developed sufficiently to
determine whether appointment of counsel was justified. Five days later, Mr. Phillips
filed a second motion for counsel, which the district court denied for the same reason.
Mr. Phillips's court filings continued to contain statements in which he questioned his
ability to litigate the matter himself, although he did not make any other specific
motions for counsel to be appointed. Dr. Freitas and the employees then moved for
summary judgment asserting that Mr. Phillips's claims failed as a matter of law.
The district court granted the summary judgment motions. With respect to
Dr. Freitas, the court determined that Mr. Phillips's allegations, at most, made out a
claim for malpractice, not a constitutional claim, which requires a showing of
deliberate indifference. As for the jail employees, the district court determined that
the record established that they did not ignore Mr. Phillips's medical condition and
that they had, in fact, assigned him to a bottom bunk at the time that he fell and
injured himself.
II.
We first address Mr. Phillips's contention that the district court erred when it
denied his motions for appointed counsel. There is no constitutional or statutory right
to appointed counsel in civil cases. Edgington v. Missouri Dep't of Corr., 52 F.3d
777, 780 (8th Cir. 1995), abrogated on other grounds, Doe v. Cassel, 403 F.3d 986,
989 (8th Cir. 2005). Rather, when an indigent prisoner has pleaded a nonfrivolous
cause of action, a court "may" appoint counsel. See 28 U.S.C. § 1915(e) (emphasis
added); Edgington, 52 F.3d at 780. We will reverse a court's denial of appointed
counsel only if it constitutes an abuse of discretion. Williams v. Carter, 10 F.3d 563,
566 (8th Cir. 1993).
The relevant criteria for determining whether counsel should be appointed
include the factual complexity of the issues, the ability of the indigent person to
investigate the facts, the existence of conflicting testimony, the ability of the indigent
-3-
person to present the claims, and the complexity of the legal arguments. Edgington,
52 F.3d at 780. The district court denied Mr. Phillips's motions because it believed
that the record was insufficient to determine, one way or the other, whether it would
be appropriate to appoint counsel.
Upon review of the record, we find no error in the court's denial of
Mr. Phillips's motions. Discovery had just begun at the time that he requested
counsel, so there was no conflicting testimony. Nor was there any indication in the
record that Mr. Phillips was unable to investigate or present his case. To the contrary,
he correctly identified the applicable legal standard governing his claims and
successfully amended his complaint to include essential information. Finally,
Mr. Phillips's claims involved information that was readily available to him. The
success of his claims depended upon the information that Mr. Phillips gave Dr. Freitas
and the prison staff about his condition, the consistency with which the prison made
Mr. Phillips's anti-seizure medication available to him, Mr. Phillips's bunk
assignment, and the events that transpired the night that Mr. Phillips fell from his
bunk.
Mr. Phillips contends that even if the court properly denied his motions when
they were filed, the court should have appointed counsel later in the case, when
Mr. Phillips's difficulties in obtaining discovery from the defendants became clear.
Mr. Phillips draws our attention to our statement in Williams, 10 F.3d at 567, that
"[w]hen a court has denied a motion for appointment of counsel, it should continue
to be alert to the possibility that, because of procedural complexities or other reasons,
later developments in the case may show either that counsel should be appointed, or
that strict procedural requirements should, in fairness, be relaxed to some degree." In
Williams, the district court prevented an indigent plaintiff from calling witnesses with
relevant information at trial because the plaintiff's witness list was not filed in
compliance with the court's pre-trial procedures. Id. at 566-67. Under those
circumstances, we determined that the case should be remanded for further
-4-
consideration by the district court as to whether counsel should have been appointed.
Id. at 567.
This case, however, does not involve the application of strict procedural
requirements that prejudiced Mr. Phillips's case. The record reveals that the court was
patient with Mr. Phillips and gave him considerable leeway in accepting and
interpreting his pleadings. We note that Mr. Phillips was able to avoid procedural
default and that his complaint was sufficient to survive the first motion for summary
judgment filed by the prison employees. And although Mr. Phillips routinely
complained about his access to legal materials and paper, he was able to file more than
thirty documents with the court, which strongly suggests that he was able to overcome
any obstacles that he may have encountered. Because Mr. Phillips had a fair
opportunity to present his claims and did so, we find no abuse of discretion in the
court's failure to appoint counsel.
III.
Mr. Phillips also contends that the district court erred when it granted
Dr. Freitas's motion for summary judgment. He contends that Dr. Freitas violated his
constitutional rights by failing to prescribe the proper medication and failing to
monitor his prescription prior to his seizure. The failure to provide proper medical
treatment to a prisoner violates the eighth amendment when the medical provider is
deliberately indifferent to the prisoner's serious medical needs. Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000). Deliberate indifference requires a showing that
the medical provider knew of and disregarded a serious medical need. Id. A medical
need is serious when it has been diagnosed by a physician as requiring treatment, or
is so obvious that even a layperson would easily recognize the necessity for a doctor's
attention. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).
Applying these legal principles to Mr. Phillips's complaint against Dr. Freitas,
we have little trouble affirming the district court's judgment. At most, and as he
-5-
conceded at his deposition, Mr. Phillip's complaint makes out a case for malpractice.
Even viewing the record most favorably for Mr. Phillips, we cannot find any evidence
that Dr. Freitas knew that prescribing Depakote instead of Tegretol would present a
danger to Mr. Phillips. Nor does the record suggest that Dr. Freitas knew that he was
prescribing less Depakote than was required. The fact that Mr. Phillips disagreed with
Dr. Freitas as to the proper anti-seizure drug and the need for a blood test does not
establish deliberate indifference. "The prisoner must show more than negligence,
more even than gross negligence, and mere disagreement with treatment decisions
does not rise to the level of a constitutional violation." Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir.1995).
Mr. Phillips also contends that Dr. Freitas was deliberately indifferent for
failing to administer his prescribed medication. Mr. Phillips, however, has not
produced any evidence that Dr. Freitas was responsible for administering
Mr. Phillips's daily dose of medication. Cf. Johnson v. Hay, 931 F.2d 456, 458-61
(8th Cir. 1991); Gil v. Reed, 381 F.3d 649, 661-64 (7th Cir. 2004). Indeed,
Mr. Phillips's allegations in his pleadings and statements at his deposition establish
that it was the jail employees, not Dr. Freitas, who were responsible for administering
his medication. We therefore affirm the district court's entry of summary judgment
in favor of Dr. Freitas.
IV.
Finally, Mr. Phillips contends that a genuine issue of material fact exists
regarding his claims against the jail employees. Mr. Phillips alleged that the jail
employees violated the eighth amendment by failing to administer his anti-seizure
medication properly and by assigning him to a top bunk despite his known seizure
disorder. We review the record to determine whether Mr. Phillips raised a genuine
issue of fact regarding the jail employees' deliberate indifference to his condition. See
Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997).
-6-
The district court's discussion of Mr. Phillips's claims against the jail employees
does not address his allegations regarding the inconsistent administration of
medication; the court merely notes that jail employees ensured that Mr. Phillips saw
Dr. Freitas and was prescribed anti-seizure medication. Though this is true, the
knowing failure to administer prescribed medicine can itself constitute deliberate
indifference. See Johnson, 931 F.2d at 461. Mr. Phillips testified at his deposition
that both before and after his seizure he was not given the prescribed amount of anti-
seizure medication. He also testified that he filed grievances regarding this failure,
but to no effect. We find Mr. Phillips's statements are sufficient to create a genuine
issue of material fact on the question of whether the jail employees were deliberately
indifferent. See Cummings v. Dunn, 630 F.2d 649, 651 (8th Cir. 1980) (per curiam).
The jail employees contend that Mr. Phillips nonetheless cannot prevail because
he failed to produce any evidence that he actually had a seizure. But the record, when
viewed in a light most favorable to Mr. Phillips, supports a reasonable inference that
he did. He testified at his deposition that he suffered a number of seizures after his
injury in the late 1990s. He testified that although he had no recollection of falling
from his bunk, a lack of memory was consistent with his past seizures. He also
testified that his tongue was bleeding after his fall, which resulted from biting his
tongue during a seizure. Following the incident, Dr. Freitas increased the dosage of
the anti-seizure medication that he had given to Mr. Phillips. This evidence is
sufficient to create a genuine issue of fact on the question of whether Mr. Phillips
suffered a seizure.
The district court also concluded that Mr. Phillips had not presented sufficient
evidence to raise a genuine issue of material fact regarding his bunk assignment. We
disagree again. Mr. Phillips testified that he was assigned a top bunk despite his
repeated requests to several different jail employees that he be placed in a lower bunk.
There is no question that Mr. Phillips was, in fact, in the top bunk on the night that he
fell. The jail employees supported their motion with an affidavit from a corrections
-7-
officer stating that the jail's record indicated that Mr. Phillips was assigned to a bottom
bunk when he was booked into the jail. This evidence appears, on its face, to be
inadmissible pursuant to Fed. R. Evid. 1002, which requires the production of an
original writing to prove that writing's contents. Affidavits that contain evidence not
admissible at trial should not be relied upon in a summary judgment motion. Brooks
v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005); see also
Fed. R. Civ. P. 56(e). But even if we assume that the statement in the affidavit would
be admissible at trial, it is contradicted by Mr. Phillips's repeated statements in his
deposition that he was, in fact, assigned to a top bunk against his wishes. This is
enough to create a genuine issue of material fact. See Cummings, 630 F.2d at 651.
V.
We affirm the entry of summary judgment entered in favor of Dr. Freitas.
Because a genuine issue of material fact exists as to whether the jail employees were
deliberately indifferent by failing properly to administer Mr. Phillips's prescriptions
and by assigning him to a top bunk, we reverse the district court's entry of summary
judgment in favor of the jail employees, and we remand the case to the district court
for further proceedings consistent with this opinion.
______________________________
-8- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/476999/ | 802 F.2d 442
Thornleyv.Several Unknown Federal Employees of U.S. Dept. of Justice
86-1144, 86-1145
United States Court of Appeals,First Circuit.
9/29/86
1
D.R.I.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4109084/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1778
WILLIAM C. BOND,
Plaintiff - Appellant,
v.
JOHNNY L. HUGHES, United States Marshal; UNKNOWN NAMED
MARYLAND U.S. JUDGES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. David A. Faber, Senior District Judge.
(1:15-cv-00199-DAF)
Submitted: December 12, 2016 Decided: December 20, 2016
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William C. Bond, Appellant Pro Se. Matthew Paul Phelps, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William C. Bond appeals from the district court’s
November 24, 2015, order dismissing his civil action and the
court’s April 8, 2016, order denying his Fed. R. Civ. P. 59(e)
motion to alter or amend judgment, confining his appeal to the
court’s dismissal of count II of his complaint, which sought qui
tam relief on behalf of the Government under the False Claims
Act (FCA). We affirm.
Count II of Bond’s complaint was subject to dismissal
because a pro se litigant may not pursue a qui tam action on
behalf of the Government under the FCA. See Gunn v. Credit
Suisse Grp. AG, 610 F. App’x 155, 157 (3d Cir. 2015); Nasuti v.
Savage Farms Inc., No. 14–1362, 2015 WL 9598315, at *1 (1st Cir.
Mar. 12, 2015); Jones v. Jindal, 409 F. App’x 356 (D.C. Cir.
2011); United States ex rel. Mergent Servs. v. Flaherty,
540 F.3d 89, 93 (2d Cir. 2008); Timson v. Sampson, 518 F.3d 870,
873-74 (11th Cir. 2008) (per curiam); Stoner v. Santa Clara Cty.
Office of Educ., 502 F.3d 1116, 1126-28 (9th Cir. 2007); United
States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir. 2004),
abrogated on other grounds by United States ex. rel
Eisenstein v. City of New York, 556 U.S. 928 (2009); United
States v. Onan, 190 F.2d 1, 6-7 (8th Cir. 1951). We also find
no reversible error in the district court’s denial of Bond’s
Rule 59(e) motion. See Mayfield v. Nat’l Ass’n for Stock Car
2
Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (stating
standard of review and circumstances under which Rule 59(e)
motion may be granted). Accordingly, we affirm the district
court’s orders. Bond v. Hughes, No. 1:15-cv-00199-DAF (D. Md.
Nov. 24, 2015 & Apr. 8, 2016).
We deny Bond’s motions to recuse all Fourth Circuit judges
and transfer and to appoint counsel and expedite decision.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 12-20-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1227923/ | 134 Ga. App. 470 (1975)
214 S.E.2d 721
McFARLAND et al.
v.
STATE OF GEORGIA.
WALKER
v.
STATE OF GEORGIA.
LEE
v.
STATE OF GEORGIA.
McCONNEHEAD
v.
STATE OF GEORGIA.
50197, 50198, 50199, 50200.
Court of Appeals of Georgia.
Argued February 3, 1975.
Decided April 7, 1975.
Herbert Shafer, for appellants.
H. Lamar Cole, District Attorney, for appellee.
BELL, Chief Judge.
The State of Georgia filed petitions under Code Ann. § 26-2710 seeking condemnation of the defendants' automobiles allegedly used for transporting gambling devices and equipment. Defendants answered and the cases were specially set for trial on October 2, 1974. The cases were called for trial that date. Plaintiff announced "ready" but no appearance was made by any of the defendants or their attorney and the court struck the *471 defensive pleadings and granted plaintiff an order authorizing the sale of the vehicles. Held:
1. The defendants' brief contains factual matter which does not appear in the record. We cannot consider it. Coweta Bonding Co. v. Carter, 230 Ga. 585 (1) (198 SE2d 281); Stephens v. Big Apple, 130 Ga. App. 841 (1) (204 SE2d 805).
2. The court struck the defensive pleadings under the authority of the superior court rule found in Code Ann. § 24-3341 which states: "When a case is sounded for trial, the parties shall immediately announce ready, or move to continue; if three minutes should elapse before the announcement or motion to continue, the plaintiff's case will be dismissed, or the defendant's answer stricken." The effect of striking the answers placed each case in default at a time more than thirty days from the date of filing the petitions. Code Ann. § 26-2710 provides: "If no defense shall be filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, ..."
Judgments affirmed. Webb and Marshall, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354243/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION FOR STAY
The plaintiff appeals to this court for a stay of a decision of the State of Connecticut Dental Commission pending a decision on his appeal. The Commission conducted two days of hearing on charges plaintiff violated C.G.S. § 20-114 (10) (abuse or excessive use of drugs). It issued a decision placing plaintiff's license to practice dentistry on probation for one year with certain conditions: Plaintiff to undergo monthly urine tests for drugs, to take a pharmacology course, and to be monitored in his practice for seven months by another competent dentist. Plaintiff's license was not suspended or revoked.
After reading the parties' briefs and hearing oral argument, the court finds that the plaintiff has failed to make a "strong showing" (Waterbury Hospital v. Commission on Hospitals andCT Page 3483Health Care, 30 Conn. Sup. 352, 354-55 (1974)) that he will prevail on the merits of this appeal, that pending the appeal, he will be irreparably harmed by the implementation of the Commission's orders and that the public interest in protecting plaintiff's patients from plaintiff's excessive use of a controlled drug will not be jeopardized.
The application for stay is denied.
Robert Satter Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3354245/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The defendants move to strike damage claims in Counts One and Two of the complaint. The plaintiff alleges in Count One that the defendants intentionally cut down certain trees on the plaintiff's property and in Count Two that the defendants negligently cut down trees on its property. The defendants move to strike the claim for general damages in each of those counts on the grounds that Conn. Gen. Stat. § 52-560
restricts the damages to which the plaintiff may be entitled when his trees are cut down on his property to those stated in the statute.
Conn. Gen. Stat. § 52-560 provides:
"Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.
The defendants argue that that statute states the sole damages that the plaintiff can recover, and that plaintiff is not entitled to any other damages. In support of that assertion the defendants rely upon Koennickv. Maiorano, 43 Conn. App. 1 (1996). In that case the Appellate Court precluded the plaintiff from recovering damages in a tree cutting CT Page 1023 situation arising out of criminal trespass, but did not say that Section 52-560 was the exclusive remedy for the plaintiff.
A provision in Section 52-560 providing for treble damages for cutting down trees has been in our law at least prior to 1916. In the case ofAvery v. Spicer, 90 Conn. 576 (1916), the court observed that such a statute did not give a new and independent right of action and that its sole purpose was to prescribe the measure of damages in cases where compensatory damages would, in the absence of the statute be recoverable (Id. 583).
Under the common law, the proper measure of damages where trees have been cut on plaintiff's land is "either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the plaintiff's real property caused by the cutting." Maldonado v.Connecticut Light Power Co., 31 Conn. Sup. 536, 538 (1974). See also Gallant v. Housatonic Lumber Company, No. CV 01-074167, Judicial District of Ansonia/Milford at Milford, February 13, 2002 (Holden, J.).
Thus, the Court concludes that Section 52-560 is not the sole measure of damages to which the plaintiff may be entitled. As a consequence plaintiff's claim for general damages is allowable.
Defendants' Motion to Strike is denied.
BY THE COURT ___________________ Robert Satter Judge Trial Referee CT Page 1024 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1030961/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUVELL MOZART EVERETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00001-REP-1; 3:08-cv-00245-REP)
Submitted: December 15, 2009 Decided: December 18, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Duvell Mozart Everett, Appellant Pro Se. John Donley Adams,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duvell Mozart Everett seeks to appeal the district
court’s order denying Everett’s 28 U.S.C.A. § 2255 (West Supp.
2009) motion. On appeal, we confine our review to the issues
raised in the Appellant’s brief. See 4th Cir. Rule 34(b).
Everett’s brief fails to challenge the district court’s
dispositive conclusion that he failed to demonstrate ineffective
assistance of counsel. Accordingly, we deny a certificate of
appealability, deny Everett’s motion to appoint counsel, and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid in the
decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2507851/ | 718 S.E.2d 738 (2011)
WYNTER
v.
COUNTY OF WAKE.
No. COA10-1176.
Court of Appeals of North Carolina.
Filed June 21, 2011.
Case Reported Without Published Opinion Affirmed in Part and Reversed and Remanded in Part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2560277/ | 22 A.3d 1056 (2010)
COM.
v.
ENGLERT.
No. 414 MDA 2010.
Superior Court of Pennsylvania.
November 4, 2010.
Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560725/ | 932 F.2d 959
Hart (Robert Lamb), Patkus (Gregory B.)v.E.E. Austin and Sons, Inc.; Hart (Robert Lamb), Patkus(Gregory B.), Bonistalli (Joseph J.)
NO. 90-3617
United States Court of Appeals,Third Circuit.
APR 18, 1991
1
Appeal From: W.D.Pa.
2
VACATED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2543643/ | 54 So.3d 967 (2009)
SHARON MELISSA VIA
v.
BRANCH BANKING TRUST CO., ET AL.
No. 1080295.
Supreme Court of Alabama.
May 8, 2009.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543648/ | 54 So.3d 965 (2009)
AMERICAN HOME ASSURANCE CO., AS SUBROGEE FOR THOMAS J. WETHERELL
v.
RENEA R. GAYLOR, AS PERS. REPRESENTATIVE OF THE ESTATE OF CHARLES HORTON HILLMAN, DECEASED.
No. 1050965.
Supreme Court of Alabama.
June 12, 2009.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/413567/ | 698 F.2d 1217
Bethlehem Steel Corp.v.Jos. Bucheit & Sons Co.
80-3201
UNITED STATES COURT OF APPEALS Sixth Circuit
1/13/82
N.D.Ohio
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2548022/ | 94 P.3d 80 (2004)
2004 OK 52
Shawn M. HORVAT, Appellant,
v.
STATE of Oklahoma, ex rel. the DEPARTMENT OF CORRECTIONS, and State of Oklahoma, ex rel. the Merit Protection Commission, Appellees.
No. 99,976.
Supreme Court of Oklahoma.
June 21, 2004.
Certiorari Denied June 21, 2004.
ORDER DENYING CERTIORARI AND APPROVING COURT OF CIVIL APPEALS OPINION FOR PUBLICATION
PART I
¶ 1 Now before the Court is the Petition for Writ of Certiorari of Appellees. After review thereof the Petition is denied.
PART II
¶ 2 The opinion of the Court of Civil Appeals, Division (II), by Colbert, C.J., rendered on April 13, 2004, 2004 OK CIV APP 59, 95 P.3d 190, 2004 WL 1588035, pursuant to 20 O.S.2001, § 30.5, is approved for publication in the official reporter and therefore accorded precedential value.
¶ 3 ALL JUSTICES CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023666/ | PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court: Defendant, Phil Marshall, was found guilty of five counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(d)) following a bench trial in the circuit court of Du Page County. He was sentenced to five 15-year terms of imprisonment for the aggravated criminal sexual assaults and a five-year term of imprisonment for the aggravated criminal sexual abuse, all of which were ordered to be served concurrently. Defendant appeals from these convictions. Defendant raises one issue, contending that “where the defendant was arrested in a hotel room in front of two operational video cameras, the decision of the police to stop the recording at the commencement of the arrest, together with the prosecutor’s failure to offer testimony from all of the police officers present inside the room at the arrest and the defendant’s later assertions of physical and mental abuse, rendered the lower court’s finding of compliance with the ‘material witness’ rule against the manifest weight of the evidence.” We find insufficient merit in his argument to warrant reversal and a remand. It is unnecessary, in view of the issue raised, to discuss at length the evidence adduced at trial. The offenses of which defendant was convicted involved a 12-year-old male complainant. Two of the offenses, on October 8 and 29, 1986, were acts of fellatio involving defendant and the complainant during which defendant threatened the complainant with a gun. The remaining four offenses, on October 11, 17, 21, and 23, 1986, were acts of fellatio involving defendant and the complainant during which no weapon was used. The evidence of these offenses came primarily from the testimony of the complainant and statements made by defendant to police officers, with some supplementation by corroborative testimony from other witnesses. The evidence surrounding defendant’s arrest and interrogation, which was adduced at a pretrial suppression hearing, is of more importance with respect to the issue raised. There is little dispute regarding the events preceding defendant’s arrest, which the police videotaped. Defendant was directed to a room, which was part of a suite, in the Oak Brook Marriott Hotel the evening of November 19, 1986, on the pretense that he and the complainant, who accompanied him, were to make a pornographic film. Undercover officer James Turner introduced defendant to Officer Robert Thomas, who played the part of the producer of the film. Special agent Arthur Sebek acted as the cameraman for the film. To make their story more believable, the police had set up a video camera and a video recorder loaded with tape, which were ready to record but were never turned on. Unknown to defendant, in an adjoining room of the suite, there was another loaded video recorder and a video camera trained on defendant and Thomas through a one-way mirror. After defendant and the complainant arrived, Thomas spoke to defendant, and the hidden camera recorded the conversation. Defendant described sexual acts he and the complainant had performed and the sexual acts they planned to perform for the film. Turner took the complainant into the hallway. Defendant stripped to his underpants and lay facedown on a bed out of range of the hidden camera preparatory to the start of filming. After defendant was so positioned, at least six officers including at least one with a drawn gun rushed him and placed defendant under arrest. Right after the police rushed defendant, the hidden camera was turned off, and with respect to what occurred after the camera was turned off, the testimony of the witnesses was divergent. At the suppression hearing, defendant testified in his own behalf; and in addition to Thomas, Turner and Sebek, Lieutenant Daniel Mc-Devitt, Supervisor John Meduga, Officer Ralph Billingslea, and acting Elmhurst police chief John Milner testified for the State. Defendant testified that, when he was lying facedown on the bed dressed only in his undershorts, someone suddenly put hands on his shoulder, pulled him over, and stuck a gun in his face. McDevitt then came over and stuck a gun in defendant’s face and said, “If you move, [obscenity], I’ll blow your head off.” None of the State’s witnesses recalled any officer making this statement, although they did testify that defendant was told not to move and that McDevitt told defendant to put his “[obscenity] hands” on his head. Defendant testified that there were several police officers pointing guns at him when he was turned over. The State’s witnesses testified only to McDevitt’s gun being drawn, and that gun was reholstered after defendant was handcuffed. Moreover, according to the State’s witnesses, McDevitt had announced his office before turning defendant over, while defendant did not recall hearing anyone identify them as police. Defendant testified he was handcuffed in the back so tightly he had scars that took six months to heal and he was so frightened that he did not complain at the time, but he later received some ointment for them from a nurse at the jail. The State’s witnesses denied that defendant was handcuffed any more tightly than usual. According to defendant, he was pulled up to a standing position by his arms, which were handcuffed behind him. The police took pictures of him, laughed at him, and made insulting statements, calling him a “geek,” “faggot,” and “eutie pie.” Someone said to shoot him if he moved. There were 15 to 20 people in the room, including a woman defendant recognized as a Bensenville police officer. The State’s witnesses denied the police taking pictures of defendant, or verbally abusing him. They also testified that many fewer people, around six, were in the room, and none recalled a woman police officer being present. Defendant testified that the police eventually uncuffed him and allowed him to dress, after which he was recuffed in front and seated at a table. Thomas pulled out a form (which was a waiver of Miranda rights form) and told defendant they wanted him to sign it. Defendant refused. Thomas gave defendant a pen, pressed his finger into defendant’s collar bone, and told defendant they wanted him to sign the form. Defendant complied without reading it. Turner’s and Bellingslea’s signatures as witnesses were already on the form when defendant signed. According to the State’s witnesses, Miranda warnings were properly given, the police did not in way any compel defendant to sign the waiver, and Turner’s and Bellingslea’s signatures as witnesses were not placed on the form until after defendant signed it. Defendant testified that Thomas asked him about dealers and manufacturers of pornography. Defendant denied involvement in pornography, and Thomas called him a liar and offered to “cut a deal.” According to the State’s witnesses, the police only asked defendant for personal background information at the hotel and did not substantively question him until later at the police station. According to defendant, a black man found a wallet in defendant’s gym bag, saw a photograph of defendant’s son, and accused defendant of playing with little boys. They found defendant’s keys, had defendant select the one for his car, and the man ran out the door with the keys. Billingslea, testifying for the State, denied going through defendant’s wallet, taking defendant’s keys, or seeing anyone else do so. Defendant testified that the police took about 10 Polaroid photographs of defendant against a wall in the hotel room. At one point, a man in a white shirt came up to him, struck him in the chest, and said, “If you’d have done this to my kid, I’d have killed you.” Defendant later learned his rib was injured. The State’s witnesses denied seeing any of the police take any Polaroid photographs of defendant in the hotel room. Thomas specifically testified that he was with defendant for the entire period in the hotel room after his arrest and never heard any officer tell defendant, “If you would have done this to my son, I’d have killed you.” Defendant and the State’s witnesses also disagreed with respect to occurrences while defendant was being transported to the police station and during his interrogation at the police station. At the station, after he was further questioned, defendant made the statements he later challenged as involuntary. Also, defendant testified, without contradiction, that he told a nurse at Du Page County jail that his wrists and chest hurt when he arrived at the jail at 1:22 a.m. A doctor at the jail examined his rib. He was later taken to Central Du Page Hospital, where his chest was examined. No X rays were taken, and the medical records from the jail which were admitted at the hearing did not mention any trauma to the ribs but did note a heart condition called mitral stenosis. The basic thrust of defendant’s argument is that the trial court erred in denying his motion to suppress because the State failed to produce, or explain the absence of, all material witnesses to defendant’s confession. We disagree. The law governing the burden of proof at a motion to suppress a confession on the ground that it was involuntary is well settled. “In determining whether a statement is involuntary, it must be ascertained whether the defendant’s will was overcome at the time he confessed or whether the admission was made freely, without compulsion of any sort. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The State has the burden of showing that a statement was made without compulsion of any sort. This does not mean that only statements induced by physical coercion or promises of leniency or immunity are involuntary. Consideration is to be given to the details of the interrogation and the characteristics of the accused.” (People v. Siekley (1983), 114 Ill. App. 3d 167, 171-72.) Only by producing all material witnesses to a confession, or satisfactorily explaining their absence, can the State discharge its burden of proving the confession voluntary. (E.g., People v. Armstrong (1972), 51 Ill. 2d 471, 475-76; People v. Wright (1962), 24 Ill. 2d 88, 92-93.) If the State fails to produce all of the available material witnesses, the trial court must exclude the confession. People v. Sammons (1959), 17 Ill. 2d 316, 319. As our supreme court stated in People v. Sims: “[T]he persons who must be called as witnesses or whose absence must be explained are those persons whose testimony would be material on the issue of the voluntary nature of the confession.” People v. Sims (1961), 21 Ill. 2d 425, 432. Defendant contends: “[A] number of police witnesses were not called by the prosecution: two of the audio-video technicians, including the supervisor, as well as the other officers depicted on the videotape itself.” The State does not dispute their absence or claim that their absence was adequately explained; rather, the State contends that these persons were not material witnesses. Defendant claimed that, beginning immediately after his arrest, several guns were pointed at him; he was threatened with death on multiple occasions, including once at gunpoint at the time he was arrested; he was verbally and physically abused; and he was photographed on several occasions, all while in the hotel room. Anybody who witnessed any of these occurrences, or was in a position to witness them if they in fact occurred, is a material witness with respect to the voluntariness of the later confession. With regard to the video technicians., the State argues: “The video technicians were in a hotel room adjoining that in which the defendant was arrested. *** As stated in defendant’s brief, the video equipment was turned off at the moment of arrest. Since the video equipment was turned off when the alleged violations of defendant’s rights occurred, there is nothing to indicate that these video technicians were witnesses to anything. The fact that the video technicians may have been in and out of the room when removing the video equipment does not make them material witnesses. *** The video technicians in this case had no occasion to witness anything which might have been material on the voluntary nature of the defendant’s confession.” The State also argues that these police officers were not material witnesses because “there is absolutely no indication that any statements were made in the presence of these officers.” The State argues: “As far as defendant’s contentions that guns were thrust in his face, that death threats were made, and that his handcuffs were tight, there is nothing to indicate that the officers allegedly present during this time would have testified differently from officer McDermitt [sic], who was present during these alleged occurrences. Both Officer McDermitt [sic] and the defendant presented evidence as to what occurred at the time of defendant’s arrest. Thus, the absence of these other officers’ testimony did not impede the trial court’s determination of voluntariness.” We reject the defendant’s contentions since all of the material witnesses on the issue of whether the statements made to the police after his arrest were the result of physical and mental intimidation were present and testified on the motion to suppress these statements. In the case at hand, the State did produce all of those police officers who were present during the alleged misconduct related to the voluntariness of the statement he signed. The only witnesses the State must call are those whose testimony would be material on the issue of the voluntary nature of the confession. People v. Armstrong (1972), 51 Ill. 2d 471, 475. The recent case of People v. Gaytan (1989), 186 Ill. App. 3d 919, 928, provides that, where a defendant fails to claim that his confession was the product of coercion or was involuntary, it is unnecessary for the State to produce all of the witnesses to the confession. This court in Gaytan points out that, where the defendant claims that the police used excessive force in arresting him but failed to establish, either in his motion to suppress or in his testimony at the suppression hearing, any relationship between the alleged use of force and his subsequent confession such that the use of force resulted in a coerced or involuntary confession, the State need not produce all the witnesses present during the alleged misconduct. In his motion to suppress, the defendant alleged he was arrested at gunpoint; two policemen pointed guns at his face and a third uttered an obscenity at him. He was pulled out of bed and handcuffed in such a manner that it cut off circulation to his hands. He was ordered to stand, was photographed in his underwear and told that if he moved, he would be shot. He was allowed to dress, after which, he alleges, an officer said to him, “If you’d have done this to my son, I’d have killed you.” He alleges the officer struck him in the chest area. Thereafter, his motion indicates, he was transported to the police station. On the way there, he alleges, the police parked by the side of the road, causing a 10-minute delay which put him in fear for his safety. When at the police station, he alleges he was not allowed to see an attorney, the officers insisted he give a statement, and they ridiculed and directed vulgar epithets at him. In reviewing the defendant’s testimony at the motion to suppress, we are unable to discern any testimony by him which would show that the alleged use of force resulted in his being coerced into an involuntary confession. We note the defendant’s brief does not direct our attention to any record reference in this regard. Therefore, it was not error for the State to have failed to present the testimony of the other officers present at the Marriott Hotel at the time of the defendant’s arrest. For these reasons, the judgment and sentence of the circuit court of Du Page County are affirmed. Affirmed. INGLIS and REINHARD, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2782602/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JAWORSKI SIMMONS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4248
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed February 19, 2015.
An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.
Jaworski Simmons, pro se, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant
Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
RAY, MAKAR, and BILBREY, JJ., CONCUR. | 01-03-2023 | 02-26-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/748490/ | 129 F.3d 1256
Corinda Santangelo (Larsen), C. Ickesv.Brad Cober, Bob Will, David Mankamyer, Somerset Sounty Commissioners
NO. 97-3046
United States Court of Appeals,Third Circuit.
Sept 09, 1997
Appeal From: W.D.Pa. ,No.97cv00013j ,
Smith, J.
1
Affirmed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/405930/ | 681 F.2d 1053
3 Employee Benefits Ca 2178
E. D. HAYDEN, Plaintiff-Appellee,v.TEXAS-U.S. CHEMICAL COMPANY, Defendant-Appellant.
No. 81-2248.
United States Court of Appeals,Fifth Circuit.
Aug. 6, 1982.
Baker & Botts, Houston, Tex., Joseph R. Weeks, for defendant-appellant.
Benckenstein, McNicholas, Oxford, Radford & Johnson, Guy N. Goodson, Beaumont, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before DYER,* JOHNSON and WILLIAMS, Circuit Judges.
JOHNSON, Circuit Judge:
1
Texas-U.S. Chemical Company seeks a reversal of the judgment entered in favor of its former employee, E.D. Hayden, on his claim for benefits under the company's permanent and total disability benefit plan. The judgment must be vacated, but for reasons other than those pressed by the company: it is not possible to discern the basis for the judgment in the findings of fact and conclusions of law set forth by the district court. We remand for reopening of proceedings and reconsideration of Hayden's claim.
I.
2
In September 1967 Hayden took a job as a laborer in Texas-U.S. Chemical's Port Neches, Texas rubber manufacturing plant. Hayden was hired over the objections of company physicians: his pre-employment physical examination disclosed an abnormality in the vertebral structure of his lower back which created a predisposition to serious injury from the strains associated with hard manual labor. Hayden sustained several such injuries in the course of his employment with Texas-U.S. Chemical; because of those injuries, his condition worsened into lumbar disk syndrome aggravated by secondary arthritis. He refused, however, to undergo the surgery recommended by company and private physicians, out of a fear that unsuccessful surgery would leave him disabled.
3
Hayden was laid off in January 1975 as a result of a general reduction in force. In May 1975, he underwent the first of what would become a series of corrective operations. Notice to Texas-U.S. Chemical of his surgery resulted in a change of his employment status from "laid off" to "medical leave of absence." Hayden remained in that status until he was terminated for medical reasons in June 1978.
4
In the fall of 1978, Hayden applied for benefits under the company's Permanent and Total Disability Plan (the Plan).1 Hayden's claim for benefits was denied on the grounds that because his disability occurred while he was in layoff, rather than active, status, and because he had in any case failed to show his disability to be permanent, he had failed to satisfy the eligibility requirements set out in the Plan.
5
Hayden subsequently initiated legal action charging Texas-U.S. Chemical with breach of contract through a denial of benefits, in contravention of the terms of the collective bargaining agreement. The suit proceeded as one governed wholly by Texas law2 until the day of trial, when Hayden first raised his claim to relief under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. The company strenuously objected to Hayden's interjection of a federal ground for relief, and for sound reason: its defense rested in large measure on the deference accorded private employment agreements under Texas law.
6
Texas-U.S. Chemical's first line of defense was drawn from Art. V P 3 of the Plan, which states that
7
This Plan is entirely voluntary on the part of the Company. An employee acquires neither a vested nor a contractual right hereunder ....
8
Joint Exhibit at DF-7. The company interpreted this provision to mean that its payment of benefits under the Plan was wholly discretionary, and pointed to Texas cases holding that "benevolent claims" could not be made legally enforceable in the face of contract provisions expressly denying contractual liability therefore. Parrott v. Brotherhood of Railroad Trainmen, 85 S.W.2d 306 (Tex.Civ.App.-Texarkana 1935, writ ref'd n.r.e.); Rieden v. Brotherhood of Railroad Trainmen, 184 S.W. 689 (Tex.Civ.App.-San Antonio 1916, writ ref'd n.r.e.).
9
The company's fall-back argument also relied on the limited degree of regulation imposed by Texas law on employee benefit plans. Art. II PP 1 and 33 and Art. V P 14 of the Plan placed authority to determine eligibility for benefits in Texas-U.S. Chemical alone; Art. III P 1(b) disallowed benefits to covered employees whose disabilities occurred while laid off.5 Under Texas law, determinations of benefit eligibility made under such provisions are "not subject to attack in the courts in the absence of a showing of fraud or bad faith," Long v. Southwestern Bell Telephone Co., 442 S.W.2d 462, 464 (Tex.Civ.App.-San Antonio 1969, writ ref'd n.r.e.); accord, Marsh v. Greyhound Lines, Inc., 488 F.2d 278, 280 (5th Cir. 1974) (applying Texas law). The company claimed that the abundance of evidence in support of its decision conclusively eliminated the possibility that its refusal to pay Hayden's claim was motivated by either fraud or bad faith.6
10
The case was tried without a jury. Hayden's post-trial brief more clearly set out his theories of the company's liability under ERISA; the company continued to claim that Texas law alone could be applied. The district court failed to resolve this dispute in rendering judgment. Although it concluded as a matter of law that
11
The Permanent and Total Disability Plan of Defendant is a welfare benefit plan as defined in the Employee Retirement Income Security Act of 1974 (ERISA), Section 1002. As a welfare benefit plan, the plan administrators and fiduciaries are subject to the reporting and disclosure requirements, the fiduciary responsibilities and the plan administration and enforcement obligations provided for by ERISA.
12
Record Vol. I at 179, and based its award of attorneys' fees to Hayden in part on ERISA's provision for such an award, ERISA § 502(g), 29 U.S.C. § 1132(g), it made no finding that Texas-U.S. Chemical's denial of benefits to Hayden violated any provision of ERISA. Judgment rested instead on an unsupported, conclusory factual finding that, though the Plan could be terminated unilaterally by the company, and though it specifically denied the existence of contractual claims to benefits, a "right to benefits under the plan did accrue (to Hayden) while an employee of (Texas-U.S. Chemical)," id. at 177, and the denial of benefits was in bad faith, id. at 178. Hayden was awarded damages and attorneys fees in excess of $30,000.
13
Texas-U.S. Chemical appeals, contending the district court's decision that Hayden had an enforceable claim to benefits to be without basis in law, and the conclusion that the refusal to pay was in bad faith to be without basis in fact. Hayden argues that the award should be upheld by identification of an ERISA-granted right to those benefits and a finding that that right was abridged.
14
This Court can do neither. The district court's failure to resolve the dispute over applicable law was fatal. The case must be reconsidered.
II.
15
Rule 52(a), Fed.R.Civ.P., requires that "(i)n all actions tried upon the facts without a jury ..., the court shall find the facts specially and state separately its conclusions of law thereon...." Clear and adequate factual findings and complete legal analysis in the district court lay the foundation essential to sound appellate review. Without them this Court cannot know whether the district court's reasoning was correct. They are absent here.
16
The paucity of legal analysis and the absence of specific, supporting factual determinations leaves this Court unable to identify, let alone evaluate, the basis for the district court's decision. Nor may this Court, as Texas-U.S. Chemical urges, assume it to be in Texas law. Hayden's claim to relief under ERISA does not state merely an alternative theoretical formulation of his cause which may fairly be disallowed if late presented, cf. Bettes v. Stonewall Insurance Co., 480 F.2d 92 (5th Cir. 1973). Rather, ERISA, if applicable, displaces the otherwise governing state law. Alessi 101 S.Ct. at 1906; Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 969-74 (5th Cir. 1981); see Delta Airlines v. Kramarsky, 666 F.2d 21, 24-25 (2d Cir. 1981), modifying 2nd Cir. 650 F.2d 1287, prob. juris. noted --- U.S. ----, 102 S.Ct. 1968, 72 L.Ed.2d 439 (1982); Murphy v. Heppenstall Co., 635 F.2d 233, 237 (3d Cir. 1980), cert. denied, --- U.S. ----, 102 S.Ct. 999, 71 L.Ed.2d 293 (1982); Kapuscinski v. Plan Administrator, etc., 658 F.2d 427, 430 (6th Cir. 1981); Dependahl v. Falstaff Brewing Co., 653 F.2d 1208, 1215 (8th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 512, 72 L.Ed.2d 384 (1981); Standard Oil Co. of California v. Agsalud, 633 F.2d 760, 763, 765 (9th Cir. 1980), affirmed, --- U.S. ----, 102 S.Ct. 79, 70 L.Ed.2d 75 (1981). The Congress has stated, by a preemptive provision at the heart of ERISA, its intention to clear the field of employee benefit plan regulation for federal control, ERISA § 514(a), 29 U.S.C. § 1144(a);7 Alessi 101 S.Ct. at 1906; Woodfork at 970; Delta, 666 F.2d at 24-25; Dependahl at 1215; it has, by this clear expression, authorized the federal courts to formulate a federal common law of substantive rights filling the interstices of ERISA's statutory provisions. Woodfork at 973; Paris v. Profit Sharing Plan, 637 F.2d 357, 361 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981); Murphy at 237; Dependahl at 1216; compare Delta Airlines v. Kramarsky, 650 F.2d at 1304. It is essential that the question of ERISA's application be determined. The case cannot proceed without resolution of this threshold issue. Compare Woodfork at 969-74.
17
It will be necessary, then, for the district court to consider and expressly to decide whether Hayden's claim is governed by ERISA. As an initial matter, it must determine whether the plan falls within any exemption to ERISA's supercedure provision, see, e.g., Alessi 101 S.Ct. at 1906-07; Delta, 666 F.2d at 24-26; Kapuscinsky at 429-30; Standard Oil at 764-65,8 or whether Hayden's cause of action arose or is occasioned by acts or omissions occurring before the January 1, 1975 effective date of that provision.9 See Woodfork at 970-74; Paris at 360-61. If those matters are resolved in favor of ERISA coverage, it will be necessary to construe the plan provisions on which Texas-U.S. Chemical relies in light of ERISA's substantive provisions; if no statutory provisions are found directly to govern, the district court must acquit its obligation to develop and apply federal common law consonant with the objectives established by that comprehensive scheme. Woodfork at 973 n.8; Murphy at 237-39; Dependahl at 1217. Specifically, the district court must address the construction to be given under ERISA to the plan's denomination as "voluntary," see, e.g., Trustees, Atlanta Ironworkers Pension Fund v. Southern Stress Wire Corp., 509 F.Supp. 1097 (N.D.Ga.1981); Calhoun v. Falstaff Brewing Co., 478 F.Supp. 357 (E.D.Mo.1979), and the force to be allowed its disclaimer of creation of contractual rights, see ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); Woodfork at 972. If the company's decision is found to be susceptible to legal challenge, that decision must be reviewed for arbitrariness or capriciousness. Paris at 362; Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97, 99, 100 n.3 (5th Cir. 1979).
18
If the district court determines that ERISA does not govern Hayden's claim, its decision must be rendered under Texas law. A decision in favor of Hayden under Texas law must be accompanied by, inter alia, a reasoned interpretation of Texas law demonstrating that, notwithstanding Plan provisions to the contrary, a legally enforceable right to benefits did accrue to Hayden.
19
The questions remaining are many. It will be necessary to reopen proceedings for the advice and assistance of counsel on the issues we have identified, and on any other issues relevant to resolution of Hayden's claim believed pertinent by the parties. We leave, however, to the discretion of the trial court whether a fuller development of the factual basis for a decision requires acceptance of additional evidence.10
III.
20
The judgment is vacated and the case remanded for further proceedings consistent with this opinion.
21
VACATED AND REMANDED WITH INSTRUCTIONS.
*
Circuit Judge of the Eleventh Circuit, sitting by designation
1
The Plan, in existence throughout the course of Hayden's employment with Texas-U.S. Chemical, was at the time of his application for benefits a part of the collective bargaining agreement governing labor relations between Hayden's union, the Chemical and Atomic Workers International, and Texas-U.S. Chemical
2
In Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978), a plurality of the Supreme Court held that by express provision in § 10 of the Welfare and Pension Plans Disclosure Act of 1958, 29 U.S.C. § 309 (repealed as of January 1, 1975 by the Employee Retirement Income Security Act of 1974, Pub.L. 93-406, Title I, § 111(a)(1), 88 Stat. 851), the Congress recognized and preserved a state role in the regulation of employee welfare and pension benefit plans obtaining even in the case of plans integrated with otherwise federally-governed collective bargaining agreements. The diffusion of regulatory authority sanctioned by the Disclosure Act was sharply curtailed by the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1001 et seq. (West 1975), see Alessi v. Raybestos-Manhatten, Inc., 451 U.S. 504, 101 S.Ct. 1895, 1907 n.23, 68 L.Ed.2d 402 (1981); part II, infra
3
Art. II P 1 states, in pertinent part
An employee of the Company who, in the Company's judgment, becomes permanently and totally disabled in accordance with the regulations of the Plan ... is eligible to receive benefits....
Joint Exhibit 1 at DF-2. Art. II P 3 provides
The Company alone shall determine what constitutes Permanent and Total Disability, when the same commenced, and may at any time reverse or alter any such determination.
Id.
4
Art. V P 1 provides, in pertinent part
Any action taken or any decision, determination, or election made by the Board of Directors, or by any such person or persons designated as provided above, with respect to any question which may arise in connection with the interpretation or administration of this Plan shall be final, conclusive and binding on all employees and all others in any manner concerned.
Joint Exhibit 1 at DF-7.
5
Art. III P 1(b) states, in pertinent part
No benefits shall be allowed or paid under this Plan ... if (the employee's) disability commenced while he was engaged in military or naval service in time of war or while absent from work due to layoff....
Joint Exhibit 1 at DF-5.
6
Texas-U.S. Chemical argued that the integrity of its decision should be evaluated in view of the information put before its designated Plan administrator at the time of his decision. The administrator testified that he rejected Hayden's claim because he knew Hayden to have worked until laid off, and because the physician's certification of disability accompanying Hayden's claim stated that Hayden's disability had begun in March 1975, while Hayden was on layoff, and was of "indeterminate," rather than permanent, duration. Hayden argued there to be ample evidence in Texas-U.S. Chemical's files of his worsening condition, of company physicians' conclusions that he was unfit for continued employment, and of those physicians' recommendations of surgery. He construed those records as proof of the origin of his disability in injuries sustained in the course of his work for Texas-U.S. Chemical, and characterized Texas-U.S. Chemical's disregard of the information in its files as evidence of bad faith
7
That section states:
Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.
Subsection (c) defines its sweep in broad terms:
For purposes of this section:
(1) The term "State law" includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State. A law of the United States applicable only to the District of Columbia shall be treated as a State law rather than a law of the United States.
(2) The term "State" includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.
ERISA § 514(c), 29 U.S.C. § 1144(c).
8
ERISA § 4(b), 29 U.S.C. § 1003(b), exempts from ERISA's coverage
any employee benefit plan if-
(1) such plan is a governmental plan (as defined in section 1002(32) of this title);
(2) such plan is a church plan (as defined in section 1002(33) of this title) with respect to which no election has been made under section 410(d) of Title 26;
(3) such plan is maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws;
(4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or
(5) such plan is an excess benefit plan (as defined in section 1002(36) of this title) and is unfunded.
A plan's failure to qualify for that exemption renders inapplicable as well the more significant of the plan exemptions listed in § 514(b), 29 U.S.C. § 1144(b):
(2)(A) Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.
(B) Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.
9
ERISA § 514(b)(1), 29 U.S.C. § 1144(b)(1), provides that:
This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975.
10
In light of our disposition on this appeal, we find it unnecessary to reach the other issues raised by the parties. Those issues, to the extent they survive vacation of judgment, are open on remand | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/500248/ | 837 F.2d 479
Kuhlmeyer (Daniel A.)v.U.S.
NO. 87-1271
United States Court of Appeals,Eighth Circuit.
DEC 01, 1987
1
Appeal From: E.D.Mo.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2154199/ | 963 A.2d 771 (2008)
WORDSWORTH
v.
M & T.
No. 07-AA-1064.
District of Columbia Court of Appeals.
December 29, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3363355/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: PREJUDGMENT REMEDY
This case came to this court as an application for prejudgment remedy. The parties appeared, evidence was presented, arguments were made and exhibits were presented.
In approximately February of 1994 the plaintiff began working for the defendant, John Lynch in the executive placement business. The plaintiff had come from earning fees on a contingent basis. The defendant operated on a retainer basis. She had difficulty working this new concept. There was much discussion back and forth between the parties and communications, some of which are ambiguous in nature. The court is satisfied to the standard of probable cause that the defendant knew that she was seeking work on a contingent basis. Exhibits E, F, G, H, I, J, K, L, and M shows that she was seeking non-retainer business.
It is clear to this court that she entered into a lease agreement with the defendant and Arch Street Executive Offices to obtain larger space. She has not paid that amount since she left. She left in the beginning of June of 1995. CT Page 10761
The court finds the following facts to have been established to the standard of probable cause:
1. Exhibit #3 as amended in Exhibit #4 sets forth the amounts due Candace Garthwaite. Except for the arithmetical error in computation, the amount due as set forth on Exhibits #3 and #4 is $30,452.52. The court finds that the penciled notations on Exhibit #3 lend credibility to the plaintiff's claim that she was due those amounts.
2. The defendant knew that she was seeking work other than on a retainer basis.
3. She entered into a lease agreement beginning March 1, 1995 and ending February 29, 1996 as shown on Exhibit #C.
4. She has made no payments since April of 1995. She owes as of today, May, June, July, August and September of 1995 for a total of 5 months. The rental is $1,800.00 per month plus a service charge of $100.00 which is a total of $1,900.00. She owes $950.00 times 5 months — or $4,750.00.
5. Exhibit O confirms the amounts set forth in Exhibit #3. The check (Plaintiff's Exhibit #1), confirms the fee agreement set forth in Exhibit O. That fee agreement was substantially that a person who brought in the client relationship would take 10% of the total fee. The remaining 90% would be split 70% to the person responsible for bringing in the business and 30% to the supporting partner payable when the fee is collected.
6. The court finds that the fees referred to in Exhibit #3 and #4 were collected.
Accordingly, the prejudgment remedy in the sum of $30,452.52 is granted less a credit for the unpaid rent of $4,750.00 making a total prejudgment remedy granted of $25,702.52.
KARAZIN, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2543650/ | 54 So.3d 968 (2009)
EX PARTE WALTER COUNCIL.
Nos. 1080663, (CR-07-2002).
Supreme Court of Alabama.
May 8, 2009.
DECISION WITHOUT PUBLISHED OPINION
Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/245613/ | 257 F.2d 188
Claude R. ALLEN, Appellant,v.UNITED STATES of America, Appellee.
No. 14221.
United States Court of Appeals District of Columbia Circuit.
Argued January 23, 1958.
Decided April 24, 1958.
Mr. Sidney A. Cohen, Washington, D. C. (appointed by the District Court) for appellant.
Mr. John W. Warner, Jr., Asst. U. S. Atty., for appellee. Messrs. Oliver Gasch, U. S. Atty., Joseph Hannon and Lewis Carroll, Asst. U. S. Attys., were on the brief for appellee.
Before WASHINGTON, DANAHER and BURGER, Circuit Judges.
PER CURIAM.
1
Three men, including appellant, were charged with unauthorized use of an auto, D.C.Code § 22-2204 (1951). When the police came upon the scene at 4:00 a. m. December 21, 1956, they saw one defendant at the wheel of the car whose motor was running, another defendant 50 feet ahead siphoning gas from a parked truck, and appellant first standing beside and then walking away from the car. As the police later discovered, the left front car window had been broken, the title card to the car was in an envelope in the street near the three defendants. The car had been moved from another part of town the preceding day where it had been left with the ignition unlocked, and it had a quarter of a tank more gas in it than before it had been taken. The evidence was that the three defendants were acquainted and had been together at some point earlier in the evening. Prior acquaintance was confirmed by the fact that defendant Butler had the day before painted the home of appellant's mother.
2
Upon seeing the police, the driver attempted to drive off, but the car stalled. As appellant started to walk away, he was called back by the officers. He offered no plausible explanation to the officers of his presence at that place in these circumstances.1 Appellant did not take the stand at trial. The jury was instructed as to unauthorized use and aiding and abetting, and returned a general verdict of guilty.
3
Appellant argues that he could not have been found guilty of unauthorized use, because there was no evidence that, to use the statutory terms, he did "take, use, operate, or remove, or cause to be taken, used, operated, or removed," the car. He claims that possession by him of the stolen car was essential to prove guilt2 and here the possession was not made out, and the most that could be said is that he was standing near the car. We need not decide this question, for the facts warranted a jury in finding that appellant aided and abetted the unauthorized use, which, of course, puts appellant in the shoes of the principal offender.3 The instructions as to aiding and abetting were adequate,4 and the conviction must be
4
Affirmed.
Notes:
1
He and defendant Dorman had the same story to tell the arresting officers,viz., that they just happened to meet while walking at 4:00 a. m. of a winter morning; they walked together for one block (which brought them to the scene of the crime), except that Dorman walked 50 feet behind because he had a "bad foot." Hence, when the police arrived, Dorman was 50 feet away from appellant siphoning gas from a truck, although by his story he was simply out walking and thus had no pressing need to steal gas; appellant was standing at the side of a stolen car, unaware, as he claimed, that the third defendant was in the car. The third defendant's story corroborated the others'. He stated he had got into the car because he was cold and wanted a place to sleep, and that the explanation for the car lurching forward was that his foot must have hit the starter while he was asleep. These facts are derived from the testimony of the arresting officers; appellant did not testify.
2
Cf. Gilbert v. United States, 1954, 94 U.S.App.D.C. 321, 215 F.2d 334, which holds that unexplained possession of recently stolen property is prima facie evidence of guilt
3
D.C.Code, § 22-105 (1951) makes aiders and abettors chargeable as principals. Cf. Lanham v. United States, 1950, 87 U.S.App.D.C. 357, 185 F.2d 435; Williams v. United States, 1954, 94 U.S.App. D.C. 219, 215 F.2d 35
4
The court said,"if you find beyond a reasonable doubt that any particular Defendant did not aid or abet a principal offender in the said crime, of unauthorized use of a motor vehicle, with which Defendants are charged in this case, then and in that event, this instruction on aiding and abetting would not be applicable to that particular Defendant. * * *" (Emphasis added.) Thus it might appear that the burden was put upon the wrong side. But no fewer than seven times immediately preceding the charge quoted above, the court spoke of the reasonable doubt test and the fact that the Government had to sustain this burden. Taken in context of what is an eminently fair charge, we are satisfied that no prejudice resulted.
5
WASHINGTON, Circuit Judge, dissenting.
6
I am constrained to dissent from affirmance of this conviction. I do not consider that there was sufficient evidence introduced by the Government to allow a jury to find appellant guilty beyond a reasonable doubt of aiding and abetting the principal's (Butler's) unauthorized use of a motor vehicle.
7
As to the appellant Allen, the testimony most favorable to the Government shows:
8
Sometime during the early evening of December 20, 1956, Allen was with his co-defendants Dorman and Butler. Butler had spent that afternoon painting Allen's mother's house. According to Allen's and Dorman's separate statements to Officer Kunmann at the time of arrest — to which the officer testified at trial — Allen and Dorman had separated earlier from each other and from Butler, and had not met each other again until shortly before the arrest. At 4:00 A.M. on December 21, 1956, just before the arrest, Allen was seen by police officers standing near1 a Buick car. Defendant Butler was found by the police in the driver's seat of the Buick. Defendant Dorman was some 40 feet away. When the police officers came upon the scene Allen "turned from the car and started walking north * * *. Just walking, very casually walking." Dorman did likewise. Officer Shelton testified that there was no sudden flight from the scene by Allen: "He was walking. Made no attempt to run." No weapons were found when the three defendants were "patted down" at the time of arrest, and no fingerprints were taken from the car. Officer Kunmann testified that Dorman stated to him at the time of the arrest that he was lagging behind Allen because of a sore foot. Kunmann also testified that both Allen and Dorman stated to him after the arrest that neither knew Butler was in the car. There was testimony that none of the defendants had been authorized by the owner to use the car, which was later reported as missing. This was the Government's case against appellant Allen — with whom we are solely concerned on this appeal.2
9
To convict an accused of aiding and abetting the commission of a criminal offense, under District of Columbia Code § 22-105 (1951), mere presence at the scene of the crime is not sufficient.3 Something more is required. This "something more" must be such that from it — and the defendant's presence, actual or constructive — a jury might be able to find guilt beyond a reasonable doubt.4 The "something more" must be probative of knowledge by the defendant that a crime was being committed and of some conscious effort to assist or protect the criminal conduct of the principal offender. The principle was well stated in Johnson v. United States, supra note 3, 195 F.2d at pages 675-676:
10
"The question for determination is whether there was substantial evidence from which the jury might have found beyond a reasonable doubt that defendant aided and abetted in the commission of the crime charged. To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. Thus, one who gives aid and comfort, or who commands, advises, instigates or encourages another to commit a crime may be said to be an aider and abetter. Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term `aiding and abetting' implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient. Morei v. United States, 6 Cir., 127 F.2d 827; United States v. Dellaro, 2 Cir., 99 F.2d 781. In fact, it has been held that the mere fact that one is present at the scene of a crime, even though he may be in sympathy with the person committing it, will not render him an aider and abetter." (Emphasis added.)
State and Federal cases are in agreement.5
11
In my view the prior acquaintance of Allen with his co-defendants, plus his presence at the scene of the arrest and his abortive attempt to leave it, do not supply the missing probanda. I would reverse and direct the entry of a judgment of acquittal.
Notes:
1
"[A]longside of the centerpost of," or "near the right rear fender of" the car
2
The co-defendants did not appeal. We need not discuss or attempt to evaluate the evidence against them
3
See Hicks v. United States, 1893, 150 U.S. 442, 449-450, 14 S. Ct. 144, 37 L. Ed. 1137; United States v. Williams, 1951, 341 U.S. 58, 64 note 4, 71 S. Ct. 595, 95 L. Ed. 747; Johnson v. United States, 8 Cir., 1952, 195 F.2d 673, 675-676
4
Compare the additional evidence introduced against the defendants in Williams v. United States, 1954, 94 U.S.App.D.C. 219, 215 F.2d 35; Gilbert v. United States, 1954, 94 U.S.App.D.C. 321, 215 F.2d 334; Epps v. United States, 1946, 81 U.S.App.D.C. 244, 157 F.2d 11, with that in Johnson v. United States, 8 Cir., 1952, 195 F.2d 673. See also Barfield v. United States, 5 Cir., 1956, 229 F.2d 936.
5
See, e. g., United States v. Di Vito, 7 Cir., 1952, 198 F.2d 3; United States v. Peoni, 2 Cir., 1938, 100 F.2d 401; cases cited supra note 2; People v. Hill, 1946, 77 Cal. App. 2d 287, 175 P.2d 45; Jones v. State, 1941, 64 Ga.App. 308, 13 S.E.2d 91; People v. Barnes, 1924, 311 Ill. 559, 143 N.E. 445; Sumpter v. Commonwealth, Ky.1952, 251 S.W.2d 852; Cochran v. State, 1941, 191 Miss. 273, 2 So. 2d 822; Smith v. State, 1939, 66 Okla. Crim. 408, 92 P.2d 582; Hamilton v. Commonwealth, 1941, 177 Va. 896, 15 S.E.2d 94 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/7023668/ | JUSTICE LUND delivered the opinion of the court: Following a jury trial in the circuit court of Sangamon County, defendant Timothy Carter was convicted of attempt (murder), aggravated battery, and reckless conduct (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9 — 1(a), 12 — 4(a), 12 — 5(a)). The court sentenced defendant to a term of 15 years’ imprisonment on the offense of attempt (murder) only. Defendant now appeals. We reverse and remand. On May 6, 1988, defendant was charged by information with attempt (murder). The information alleged that on May 5, 1988, defendant knowingly shot J.G. in the stomach with the intent to commit the offense of first degree murder. The case proceeded to trial, where the following facts were established. Defendant lived with his girlfriend, Ceenola Dunkirk, and her two children for three years until the couple separated in October 1987. Dunkirk has two minor children, a daughter approximately 14 years old at the time of the trial, and a son approximately 13 years old. Months before the incident that gave rise to this case, defendant learned of rumors circulating in the community that he had abused Dunkirk’s 14-year-old daughter. Defendant suspected that these rumors were started by Janet Hutchins, a woman defendant knew as a neighbor of Dunkirk at the John Hay Homes in Springfield. Defendant was also acquainted with the victim, J.G., who, although married to another woman, was known as Hutchins’ boyfriend and the father of two of her three children. During the spring of 1988, defendant learned that someone reported him to the Department of Children and Family Services (DCFS). He suspected that Hutchins was responsible for this report. On May 5, 1988, defendant came into contact with Hutchins and J.G. on four separate occasions. During the first meeting, which occurred that morning, Hutchins, J.G. and the defendant met in her apartment. Hutchins told defendant that Ceenola Dunkirk was the source of the rumors and advised the defendant to settle the matter with her. Early that afternoon, defendant again encountered Hut-chins and J.G. During this meeting, defendant told J.G. that he did not believe Hutchins and directed threats toward the couple, the preelse nature of which was disputed at trial. J.G., who had a cast on his right arm from the palm to the forearm, told defendant he could settle the matter with him in four weeks when the cast would be removed. Defendant then drove away, promising J.G. that he would see him in four weeks. Later that afternoon, Hutchins and J.G. returned home and encountered the defendant outside their apartment helping Callie Jones, a neighbor, move furniture. Defendant and J.G. exchanged a few words and then J.G. and Hutchins went into Hut-chins’ apartment. A short time later, J.G. went outside to speak with Ceenola Dunkirk, who was sitting in the alley behind her apartment. Hutchins went outside and asked J.G. to return to the apartment. A loud argument ensued between Dunkirk and Hutchins. Defendant viewed this scene from the end of the alley where he was standing, drinking gin and talking to a friend. A crowd began to gather. As defendant approached Hutchins and Dunkirk, he exchanged words with J.G. Hutchins, J.G. and Callie Jones testified that defendant told Hutchins and J.G. he was going to shoot one of them. Defendant testified that he did not recall making such threats. J.G.’s response to defendant’s statements was undisputed. J.G. told defendant that if he was going to shoot someone, to shoot him rather than Hutchins because Hutchins had to raise his children. As J.G. turned toward Hutchins and told her to take the children and return to the apartment, defendant pulled a .22-caliber magnum revolver from his trousers and shot J.G. once through the abdomen. Defendant then handed his gun to a bystander and left the scene. The following day, defendant turned himself in to the Springfield police department. No witness, including the defendant, testified that J.G. had directed any threatening gestures or remarks toward the defendant on the day of the shooting. Callie Jones suggested that J.G. was attempting to calm the defendant up until the moment he was shot. The defendant testified that he and J.G. were friends and he knew J.G. to carry a gun because he had seen it several times over the course of their friendship. The defendant additionally stated that J.G. had advised him to carry a gun in the past. In his account of events which took place on the day of the shooting, defendant stated that as he approached the scene of the argument between Dunkirk and Hutchins and attempted to separate them, J.G. jumped in front of him. Defendant added, “when [J.G.] told me if I wanted to shoot somebody, shoot him, [J.G.] turned like he was trying to pull a gun because *** he turned this side to me like this and I snatched mine and shot him. I wasn’t trying to kill him but I was trying to keep him from shooting me.” Defendant did not state that he actually saw a weapon in J.G.’s possession. Jeremy Dunkirk, Ceenola Dunkirk’s 13-year-old son, testified that he arrived home just after the shooting and saw Hutchins take a black revolver from behind J.G.’s back as he lay on the ground and hand it to a man named Mel. Hutchins denied recovering a weapon at the scene. Hugh Bullock, also known as “Mel,” denied that he was handed a gun at the scene of the shooting. Bullock additionally stated that on the morning of the shooting defendant said that he ought to shoot either J.G. or Hutchins because they were spreading rumors. During the instruction conference held following the presentation of the evidence, defendant tendered the following self-defense instruction: “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” See Illinois Pattern Jury Instructions, Criminal, No. 24—25.06, at 554 (2d ed. 1981) (IPI Criminal 2d). Upon the State’s objection, the court refused this instruction. The State then tendered its instruction on attempt (murder). Defendant objected, contending that the instructions should also include language relating to the included offenses of aggravated battery and reckless conduct. The trial court refused the State’s instruction on attempt (murder) and later accepted defendant’s instructions on aggravated battery, recklessness, and attempt (murder) over the State’s objection. The trial court then instructed the jury on the offenses of attempt (murder), aggravated battery and reckless conduct. Neither the defendant nor the State tendered an instruction on inconsistent verdicts, and none was given to the jury. After brief deliberation, the jury returned its verdict, finding defendant guilty of all three offenses. The trial court accepted the verdicts without objection from either party and excused the jury. After denying defendant’s motion for a new trial, the court sentenced defendant to a term of 15 years’ imprisonment on the offense of attempt (murder) only. Defendant raises two issues on appeal. Defendant first contends that the trial court erred in refusing to instruct the jury on self defense. We agree. Illinois courts have consistently held that “[a] defendant is entitled to have a jury consider his claim of the justifiable use of force where that defense has some foundation in the evidence. This is true even where the evidence concerning that theory is very slight, inconsistent, or of doubtful credibility.” (Emphasis in original.) (People v. Dailey (1989), 188 Ill. App. 3d 683, 688, 544 N.E.2d 449, 453, citing People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) In this case, defendant testified that he knew J.G. to carry a gun and stated that he shot him because J.G. appeared to be reaching for a gun. J.G.’s testimony supported the defendant’s contention that he was turning his body as he was shot. Additionally, the testimony of Jeremy Dunkirk suggested that J.G. was armed at the time of the shooting. Admittedly, this evidence comes primarily from the defendant and his girlfriend’s son, a boy who stated that he loved the defendant and wanted to help him. However, the credibility of witnesses can only be resolved by the jury and not by the trial court. (People v. Brooks (1985), 130 Ill. App. 3d 747, 751, 474 N.E.2d 1287, 1290.) In sum, although the evidence in this case supporting a self-defense instruction is slight and of questionable credibility, it was sufficient to warrant giving the instruction tendered by defendant. To assist the trial court in the event of a retrial, we will address the defendant’s second asserted error. Defendant contends that the verdicts finding him guilty of attempt (murder), aggravated battery, and reckless conduct are legally inconsistent and therefore cannot stand. The core of defendant’s argument is that the defendant could not act intentionally or knowingly and at the same time act recklessly. Accordingly, defendant argues, all convictions must be reversed and the cause must be remanded for a new trial. People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, provides conclusive support for defendant’s contentions. In Spears the Illinois Supreme Court explained that legally inconsistent verdicts arise when, as in this case, a defendant is convicted of two or more crimes having mutually inconsistent mental states. The Spears court held that “where inconsistent guilty verdicts are returned, the defendant is entitled to a reversal of the judgment and a remand of the cause for a new trial on all counts.” Spears, 112 Ill. 2d at 407, 493 N.E.2d at 1035. The State contends that because defendant failed to request an instruction on inconsistent verdicts at trial and made no objection when the verdicts were returned, he should not now be allowed to obtain reversal based upon his own failure to act. Although it is generally the parties’ rather than the trial court’s duty to prepare and amend instructions (People v. Grant (1978), 71 Ill. 2d 551, 557, 377 N.E.2d 4, 7) and to object to improper verdicts at the time they are returned (People v. Neither (1988), 166 Ill. App. 3d 896, 902, 520 N.E.2d 1247, 1250), Spears places these duties squarely on the shoulders of the trial court when the potential for legally inconsistent verdicts arises: “In the case at bar, the instructions on the reckless conduct counts were tendered, at the defendant’s request, to provide the jury with an alternative which would exonerate the defendant of the greater charges. As such, the trial judge had a duty to apprise the jury that it could find the defendant guilty of the lesser or greater offenses, but not both. When the jury returned with inconsistent guilty verdicts, the trial judge had a duty to send the jury back for further deliberations consistent with new instructions to resolve the inconsistency.” Spears, 112 Ill. 2d at 410, 493 N.E.2d at 1036. As the foregoing language indicates, in the absence of such action by the defendant, it is the trial court’s duty to take the necessary steps to prevent or cure legally inconsistent verdicts. Reversed and remanded. KNECHT, P.J., and GREEN, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/748495/ | 129 F.3d 1256
U.S.v.Monroe Bullock
NO. 96-1639
United States Court of Appeals,Third Circuit.
Sept 18, 1997
Appeal From: E.D.Pa. ,No.95002962 ,
Kelly, J.
1
Affirmed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2548040/ | 84 So. 3d 557 (2012)
BASELINE CONSTRUCTION & RESTORATION OF LOUISIANA, L.L.C.
v.
FAVROT REALTY PARTNERSHIP, et al.
No. 2012-CC-0017.
Supreme Court of Louisiana.
March 12, 2012.
Granted. The case is remanded to the court of appeal, which is instructed to allow *558 relator to supplement its application with the appropriate documentation, and to consider the application, as supplemented, on the merits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4038952/ | ACCEPTED
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/13/2015 4:07:39 PM
CATHY LUSK
CLERK
NO. ____________
FILED IN
12th COURT OF APPEALS
In the Court of Appeals TYLER, TEXAS
1/13/2015 4:07:39 PM
Twelfth Judicial District CATHY S. LUSK
Tyler, Texas Clerk
IN RE COUNSEL FOR GOUGHNOUR, Relators
EMERGENCY MOTION FOR TEMPORARY RELIEF
(Filed contemporaneously with a Petition for Writ of Mandamus)
From the 241st District Court of Smith County, Texas
I. SUMMARY OF MOTION
Simultaneously with this motion, Relators are filing a Petition for Writ of
Mandamus seeking review of a sanctions order signed by Respondent; the
underlying case is pending in the 241st District Court of Smith County under Cause
No. 11-2216-C. Relators’ petition shows that the sanctions order was an abuse of
Respondent’s discretion and that they are entitled to mandamus relief. Relators
request that the Court of Appeals stay the sanctions order (and any attempt to enforce
the sanctions order) while it considers the merits of their petition and challenges to
the sanctions order.
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 1 OF 6
II. BACKGROUND
Relators are attorneys representing Deborah Patterson (Howard) Goughnour,
remainder beneficiary of the Deborah Patterson Howard Trust, in the matter styled
In re the Deborah Patterson Howard Trust, Cause No. 11-2216-C pending before
the 241st District Court of Smith County, Texas, a suit involving claims that the real
party in interest, Robert H. Patterson, Jr., breached his fiduciary duty as trustee of
the Deborah Patterson Howard Trust. On April 22, 2014, Respondent, the Hon. Jack
Skeen, Jr., presiding judge of the 241st District Court, ordered that Relators pay
$14,000 in attorneys’ fees to the Deborah Patterson Howard Trust as a monetary
sanction under Texas Rule of Civil Procedure 215.3 and held each of Relators jointly
and severally liable for such payment (the “Sanctions Order”). Relators seek relief
from this Sanctions Order.
As discussed in their Petition for Writ of Mandamus, Relators are entitled to
mandamus relief because (a) Respondent abused his discretion (i) by sanctioning
Relators for conduct that is not a violation of any discovery rule or order, (ii) by
sanctioning Relators (who are not “parties”) under a rule which only permits
sanctions against “parties,” (iii) by sanctioning all five Relators jointly and severally
when there was no relationship between the sanctioned conduct and four of the five
Relators, (iv) by awarding attorney’s fees without the necessary evidence required
by the Texas Supreme Court in Long v. Griffin and El Apple I, Ltd. v. Olivas, (v) by
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 2 OF 6
failing to consider the availability of less stringent sanctions as required by the Texas
Supreme Court in TransAmerican Natural Gas Corp. v. Powell and American Flood
Research, Inc. v. Jones, and (vi) by disregarding Texas Rule of Civil Procedure
191.2 and the Smith County Local Rules, and because (b) Relators have no adequate
appellate remedy.
III. EMERGENCY
On September 17, 2014, the real party in interest moved for an order holding
Relators in contempt for failing to comply with the Sanctions Order. On December
5, 2014, Respondent signed a show cause order requiring Relators to appear in the
courtroom of the 241st District Court of Smith County, Texas on January 21, 2015
at 9:00 a.m. “to then and there show cause why [Relators] have not complied with
the [Sanctions Order].” If the Court of Appeals does not stay the Sanctions Order,
Relators may be held in contempt for failing to comply with a void order and
subjected to loss of property and/or liberty while this extraordinary proceeding is
pending.
IV. PRAYER
WHEREFORE, premises considered, Relators respectfully request that the
Court of Appeals stay the Sanctions Order until the Court of Appeals issues its ruling
in this extraordinary proceeding, and Relators respectfully request such other and
further relief to which they are justly or equitably entitled.
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 3 OF 6
Respectfully submitted,
BEARD & HARRIS, P.C.
& CANTEY HANGER, LLP
By: /s/ Jim E. Bullock
Ty Beard
State Bar No. 00796181
Donald Harris
State Bar No. 00796709
Craig Daugherty
State Bar No. 05404300
BEARD & HARRIS, P.C.
100 Independence Place,
Suite 101
Tyler, Texas 75703
Telephone: (903) 509-4900
Facsimile: (903) 509-4908
ty@beardandharris.com
don@beardandharris.com
craig@beardandharris.com
Jim E. Bullock
Texas Bar No. 00795271
Brian Casper
State Bar No. 24075563
CANTEY HANGER, LLP
1999 Bryan St.
Suite 3300
Dallas, Texas 75201
Telephone: (214) 978-4100
Facsimile: (214) 978-4150
jbullock@canteyhanger.com
bcasper@canteyhanger.com
Attorneys for Relators
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 4 OF 6
CERTIFICATE OF COMPLIANCE
On January 12, 2015, pursuant to Texas Rule of Appellate Procedure 52.10, I
notified Respondent, the Real Party in Interest, and the other parties who appeared
in the underlying matter, that this motion was being filed. At the same time, as a
convenience for the Court of Appeals and a courtesy to the parties, I also inquired
whether there was any opposition to the relief sought by this motion; neither
Respondent nor the Real Party in Interest (nor any of the other parties who appeared
in the underlying matter) replied.
Dated: January 13, 2015 /s/ Jim E. Bullock
Attorney Certifying
CERTIFICATE OF SERVICE
The undersigned certifies that, on this day, a copy of the foregoing was served
in accordance with Texas Rules of Appellate Procedure 6.3 and 9.5, as follows:
(a) on Respondent by and through Denise Langston, Civil Court
Coordinator for the 241st District Court, via e-mail to dlangston@smith-
county.com and via certified mail;
(b) on Robert H. Patterson, Jr., the real party in interest, by and
through his counsel of record in the underlying action, Mary C.
Burdette (via e-mail to mburdette@cnbwlaw.com) and Brandy Baxter-
Thompson (via e-mail to bbthompson@cnbwlaw.com) of CALLOWAY,
NORRIS, BURDETTE & WEBER, PLLC, and Richard H. Lottmann (via e-
mail to Richard@allenlottmann.com) and Gregory T. Kimmel (via e-
mail to Greg@allenlottmann.com) of ALLENLOTTMANNKIMMEL,
P.C., as well as via certified mail sent to CALLOWAY, NORRIS,
BURDETTE & WEBER, PLLC, Attn: Mary C. Burdette, 3811 Turtle
Creek Blvd., Suite 400, Dallas, Texas 75219, and to
ALLENLOTTMANNKIMMEL, P.C., Attn: Richard Lottmann, 3805 Old
Bullard Road, Tyler, Texas 75701;
and that courtesy copies were served on the other parties who have appeared in the
underlying matter as follows:
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 5 OF 6
(c) on Nina Ruth Patterson Harris by and through her counsel of
record in the underlying action, Deron R. Dacus (via e-mail to
DDacus@dacusfirm.com) of THE DACUS FIRM, P.C.; and
(d) on Dean Bailey by and through his counsel of record in the
underlying action, David M. Pruessner (via e-mail to
DPruessner@higierallen.com) of HIGIER ALLEN & LAUTIN, P.C.
Dated: January 13, 2015 /s/ Jim E. Bullock
Attorney Certifying
EMERGENCY MOTION FOR TEMPORARY RELIEF PAGE 6 OF 6 | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4203743/ | 300 Multiple Choices
Multiple Choices
The document name you requested (/attorneys/assets/opinions/appellate/unpublished/a5162-14.pdf) could not be found on this server.
However, we found documents with names similar to the one you requested.Available documents:
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/attorneys/assets/opinions/appellate/unpublished/a2162-14.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a5132-14.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a5762-14.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a5168-14.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a5562-14.pdf (mistyped character)
IBM_HTTP_Server at www.judiciary.state.nj.us Port 443 | 01-03-2023 | 09-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/560734/ | 932 F.2d 959
Corley (Roger H.)v.Keohane (P.W.)
NO. 90-5611
United States Court of Appeals,Third Circuit.
APR 19, 1991
Appeal From: M.D.Pa.,
McClure, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/745374/ | 123 F.3d 665
75 Fair Empl. Prac. Cas. (BNA) 1052, 120 Ed. LawRep. 995
Robert O'CONNOR, Plaintiff-Appellant,v.DePAUL UNIVERSITY, Defendant-Appellee.
No. 94-2683.
United States Court of Appeals,Seventh Circuit.
Argued March 31, 1997.Decided Sept. 2, 1997.Rehearing Denied Oct. 6, 1997.
Robert O'Connor, Chicago, IL, pro se.
Joan E. Gale, Staci A. Stobart (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.
Wayne W. Whalen (argued), Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Amicus Curiae.
Before FLAUM, KANNE and ROVNER, Circuit Judges.
ILANA DIAMOND ROVNER, Circuit Judge.
1
Robert O'Connor was employed as a carpenter by DePaul University from 1986 until he was discharged in June of 1993. Alleging that he was terminated unlawfully on the basis of his age, O'Connor sued DePaul under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The district court granted summary judgment in favor of DePaul, and O'Connor appeals. Because O'Connor has failed to raise a factual question as to DePaul's discriminatory intent, we affirm.
I.
2
The events leading up to O'Connor's termination in June of 1993 took place during the winter and spring of that year and involved several employees in the physical plant department at DePaul's Lincoln Park Campus in Chicago. O'Connor's direct supervisor was head carpenter Thomas Hojnacki, who in turn reported to Robert Riggs, the "Physical Plant Manager for Trade Services." O'Connor's discharge (at least as explained by DePaul) arose out of his relationship with Jill Fritchen, who in June of 1993 was the "Physical Plant Manager of Custodial Services" at DePaul. Although the record does not say so, the titles suggest that Fritchen and Riggs were peers at the level of manager. Both reported to Mark Nuter, the "Director of Physical Plant" for the Lincoln Park Campus. Acquainted since Fritchen became the office manager for the physical plant department in 1987, Fritchen and O'Connor had no social relationship or other contact outside of their employment at DePaul.
3
In February 1993, O'Connor began writing letters to Fritchen, who was then approximately six months pregnant with her first child. O'Connor explained that his initial letter was intended to offer "motivation and support" to Fritchen, which he believed she might need "[b]ecause of all the rumors that were going around campus" relating to her being pregnant and not married. (O'Connor Dep. at 54.) He stated in the letter that he had thought she was "cold and unfeeling and only interested in her job until [he] realized she was going to keep her baby." (Id.) Fritchen telephoned O'Connor after receiving the letter. Although she sobbed in the course of this conversation, O'Connor did not perceive that his letter had upset her. On March 19, O'Connor attended a baby shower thrown for Fritchen by her colleagues. He gave her a diaper bag, bottles and several other small items for the baby. Fritchen thanked O'Connor for the gift in a short note, which also expressed gratitude for "your words here and there of support and 'fatherly advice,' and all the encouragement you've shown me." (O'Connor 12(n) Ex. 6.) On April 16, O'Connor left a bag on Fritchen's desk that contained two books and a poem about motherhood, along with two personal letters that he had written to her.
4
Three days later, on April 19, Fritchen met with Riggs to complain about the letters and gifts she had received from O'Connor. Riggs offered to intervene, but Fritchen said that she wished to handle the matter herself, and she did so by talking to O'Connor later that day. As O'Connor recalls this meeting, however, Fritchen did not express displeasure with his gestures, but rather thanked him effusively for his support. O'Connor does remember that Fritchen asked whether he "[w]ould be upset if [she] asked [him] not to write." He asked why she wanted him to stop, and she responded by saying "I don't even really know you." (O'Connor Dep. 46-48.)
5
Notwithstanding this discussion, O'Connor left Fritchen a card and some cash after she got married on April 30, and Fritchen again responded with a note of thanks. Fritchen subsequently gave birth to her child and took a six-week leave of absence from DePaul. She returned to work on June 28 and received another package from O'Connor the very next day. This one contained four letters that O'Connor had written to Fritchen during her leave, three books, a card, and some money. One of the letters, dated May 26, merits partial quotation here because it belies O'Connor's asserted unawareness that his actions bothered Fritchen or that she wanted him to stop:
6
I know I said I wouldn't send you any more letters and I did intend to honor your request, but I couldn't let your wedding, Mothers Day and the birth of your baby pass without sending along a couple words of recognition and support. I think they are noteworthy events that deserve comment and I hope you accept my words within the positive framework in which they were written.
7
Please don't be angry or upset with me for these latest "installments." I know what I promised. I had the need to communicate these thoughts, to get them out, and I didn't see any other outlet.
8
* * *
9
I ask for your indulgence, your forbearance and your understanding in this matter, this one time. I offer my apology if anything I have ever said or done has hurt your feelings, caused you embarrassment or offended you in any way. I guess even the best of intentions can become irksome.
10
Once again, I ask you not to be too severe with me. I don't think I would like to incur your wrath or earn your animosity. I am promising you (Have your heard that before?) now, that these will be the end of the letters--honest!
11
* * *
12
Another reason I won't write anymore is that you asked me not to, and I really do want to honor your request. Honestly, though, I am a little hurt that they could make you feel uncomfortable or uneasy. I, myself, don't think they contained anything improper or inappropriate.... The fact that you prefer not to have them, however, for whatever reason, is sufficient enough for me to desist.
13
* * *
14
Well, Jill, I thank you for being a good sport to endure "these things" even though I know you feel skeptical about them, or me or both. Just read them and throw them away. Hopefully, you will come away with a kind thought for me, instead of biting my head off for the broken promise.
15
(O'Connor Dep. Ex. 1.) Another of the letters included in the June 29 package, this one dated May 18, discussed the concern that O'Connor had experienced during Fritchen's pregnancy. He wrote:
16
I am happy for you that the waiting is over and both of you are healthy. I am relieved for myself, for now I no longer have to worry about the status of mother and child.... Really, Jill, the anxiety was beginning to get to me a bit.
17
* * *
18
I had a nightmare of you falling on the ice, which left me a bit unsettled. That may help to explain my obsessive concern about your welfare.
19
(O'Connor 12(n) para. 23.)
20
Upon receiving the June 29 package, Fritchen again complained, this time to both Riggs and Nuter. At their request, she prepared a memorandum addressed to Riggs that detailed the situation. She told of the first letters and of her meeting with O'Connor, stating that she "told him that I wanted this correspondence to stop because it was uncomfortable for me and, I felt, totally inappropriate." She continued:
21
This morning when I arrived at my office, there was a bag of books and letters along with a card that were addressed to me from Bob O'Connor. At this point, I have no choice but to come to you, his manager. Apparently, my request that he cease and desist from acting in this manner has fallen on deaf ears. I stand by my belief that this is very inappropriate behavior in the workplace, particularly given the personal nature of his letters, when we have no personal relationship between us. Please address this issue as you see fit. Apparently, I cannot resolve it myself.
22
(DePaul Ex. 2.) Later that day, O'Connor was summoned to a meeting with Nuter, Riggs and Hojnacki. The three confronted O'Connor about his gifts and letters to Fritchen, who they said had been upset by his behavior. O'Connor acknowledged that he had left the items but claimed to be unaware that his conduct was unwanted or inappropriate. O'Connor asked that Fritchen join the meeting, but Riggs told him that Fritchen was afraid of him. Riggs also noted a previous instance in which O'Connor had written a series of apparently unwanted letters to another DePaul employee, Denise Omerick.
23
After O'Connor refused to resign, Riggs told him that he was being terminated for "sexual harassment." Riggs confirmed the discharge in two subsequent letters. Both letters were dated June 29 and both were addressed to O'Connor, but each justified the dismissal in slightly different terms. The letter that was given to O'Connor stated that "[b]ecause of insubordinate activities on your part which you were previously advised to cease, and clearly did not, you are hereby terminated from employment...." (O'Connor 12(n) Ex. 8.) The other letter, which was placed in O'Connor's personnel file, stated that O'Connor had been fired "due to the continued harassment of an employee of the Lincoln Park Campus Physical Plant management staff, after you were advised to cease and desist by this employee." (O'Connor 12(n) Ex. 9.) Shortly after O'Connor, then 43, was terminated, DePaul hired 32-year-old John Korenic to replace him. In December 1993, O'Connor filed this suit in federal district court alleging that his discharge was based on age and constituted unlawful discrimination in violation of the ADEA.1
II.
24
We review the district court's grant of summary judgment de novo, and in so doing we construe the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmovant, here O'Connor. Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.1997). We will affirm the grant of summary judgment only if the evidence reveals "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
25
The ADEA prohibits discrimination in employment against individuals who are forty or more years of age. 29 U.S.C. §§ 621(b), 631(a). A plaintiff seeking relief under the Act must show that "she would not have been treated adversely by her employer 'but for' the employer's motive to discriminate against her because of her age." Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 680 (7th Cir.1996); see also Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir.1996). When, as here, there is no direct evidence of discrimination, the employee may attempt to show discrimination by way of the burden-shifting approach first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Kaniff v. Allstate Insurance Co., 121 F.3d 258, 265 (7th Cir.1997); Weisbrot, 79 F.3d at 680-81.
26
The parties do not dispute that O'Connor has made out a prima facie case of discrimination. He was 43 years old at the time of his termination, he was performing his job satisfactorily, he was discharged from employment, and he was replaced by a younger employee.2 Nor is there any question that DePaul has articulated a non-discriminatory reason for the discharge. DePaul maintains that O'Connor was dismissed because of his behavior toward Fritchen and his refusal to desist after she had asked him to do so. As is often the case, then, the dispute comes down to the final step in the McDonnell Douglas analysis, when the burden shifts back to O'Connor to show that the reason proffered by DePaul was actually a pretext for discrimination. As we explained in Denisi, 99 F.3d at 865, an employee may survive a motion for summary judgment that rests on the issue of pretext by
27
"produc[ing] evidence from which a rational factfinder could infer that the company lied about its proffered reasons for his dismissal," Courtney v. Biosound, Inc., 42 F.3d 414, 424 (7th Cir.1994), or that the company's proffered reasons do not represent the truth, Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir.1995).
28
See also Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.1995) (Defendant must show "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the discharge, or (3) that they [the reasons] were insufficient to motivate [the] discharge." (citations and internal quotations omitted)). If the employee succeeds in casting doubt on the proffered reason for the dismissal, the ultimate question of whether the employer discriminated against the employee must be left for a jury to consider. Weisbrot, 79 F.3d at 682 (citing Courtney v. Biosound, Inc., 42 F.3d 414, 424 n. 4 (7th Cir.1994)).
29
O'Connor and the amicus argue that the inference of pretext is supported in several different ways, but we are not persuaded. First, O'Connor argues that pretext is suggested by evidence that calls into question the factual accuracy of Riggs' explanation for the discharge--that O'Connor "harassed" Fritchen and refused to desist after being asked to do so. As evidence in support of this theory, however, O'Connor identifies only his own deposition testimony indicating he did not know that his behavior bothered Fritchen or that she wanted him to stop. That testimony, of course, is undermined by the above-quoted letter that O'Connor wrote to Fritchen, which clearly reflects his awareness that Fritchen wished for him to leave her alone and that she found the letters and gifts to be disturbing and inappropriate. But even if the evidence did support an inference that O'Connor was unaware of Fritchen's perspective, it still would not save him from summary judgment. The relevant question for that purpose is whether Riggs and Nuter honestly believed that they were firing O'Connor because of the situation with Fritchen. See Collier, 66 F.3d at 893; Sample v. Aldi Inc., 61 F.3d 544, 549 (7th Cir.1995). In order to cast doubt on the veracity of this justification, O'Connor needs evidence suggesting either that Riggs and Nuter did not believe the events occurred or that this belief did not underlie their decision. The honesty of their belief could be called into question by evidence suggesting that the events did not actually happen (see, e.g., Collier, 66 F.3d at 893), such as that O'Connor did not give Fritchen the items or that she did not complain to Riggs and Nuter. But O'Connor's subjective impression, uncorroborated by any objective evidence and unknown to Riggs and Nuter, does not do the trick. Even construed in the light most favorable to O'Connor, the uncontroverted evidence reveals that Fritchen twice complained of the conduct to Riggs, that she told Riggs she was disturbed by it, and that she told him she had asked O'Connor to stop. In receipt of Fritchen's memo detailing her account, Riggs and Nuter confronted O'Connor about the conduct and decided to fire him. O'Connor's subjective impression of the situation does not support a contrary factual inference.
30
DePaul's response to O'Connor's conduct may well have been extreme or unwarranted, and according to O'Connor, it may even have violated DePaul's own personnel guidelines. But none of that is determinative here. For purposes of the ADEA, we may not be concerned with whether the decision was right or wrong, fair or unfair, well-considered or precipitous. We must look only at whether the reason was discriminatory or, in the pretext analysis, whether it actually did underlie the plaintiff's termination. Giannopoulos, 109 F.3d at 410-11. As we stated in Kralman v. Illinois Dep't of Veterans' Affairs, " '[n]o matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [the ADEA does] not interfere.' " 23 F.3d 150, 156 (7th Cir.1994), cert. denied, 513 U.S. 948, 115 S. Ct. 359, 130 L. Ed. 2d 313 (1994) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988)); see also Timm v. Mead Corp., 32 F.3d 273, 275 (7th Cir.1994) (the proffered reason "need not be a good or sympathetic justification for what the employer did; it need only be nondiscriminatory and, if true, (even if shortsighted or ultimately a product of poor business judgment) merely explain why the challenged action was taken.") (quoting McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373-74 (7th Cir.1992)). On the issue of pretext, our only concern is the honesty of the employer's explanation, and O'Connor has offered no evidence calling that into question here.
31
O'Connor and the amicus also argue that the inference of pretext is supported by the fact that Riggs explained O'Connor's discharge in several different ways over the course of June 29, O'Connor's final day at DePaul. Although Riggs initially attributed the discharge to O'Connor's "sexual harassment" of Fritchen, he described the problem in his two subsequent letters as "harassment" and "insubordination." This flux in terminology, however, does not support the inference of pretext. First, the usage appears less inconsistent when the terms are read in context. One letter attributed the dismissal to "insubordinate activities on your part which you were previously advised to cease and clearly did not," and the other "to the continued harassment of an employee of the ... management staff after you were advised to cease and desist by this employee." The fact that "harassment" may refer to the gestures and "insubordination" to continuing them after manager Fritchen had asked him to stop does not support an inference that the overall conduct was not the real reason for O'Connor's discharge. Although the two letters and even the initial oral explanation may have focused on different aspects of O'Connor's behavior, we have no doubt that all refer to the same conduct, and O'Connor has offered no evidence to suggest otherwise. The versions are not "contradictory" as O'Connor contends, but clearly refer to a singular justification for his dismissal. Pretext is not suggested. See Little v. Cox's Supermarkets, 71 F.3d 637, 643 (7th Cir.1995); Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir.1994); Timm, 32 F.3d at 276.
32
The amicus has argued that the variation in terms may reflect an ex post facto attempt by Riggs to comply with the rules set out in DePaul's employee handbook, which prohibits dismissal for sexual harassment based on just a single complaint. The switch from "sexual harassment" or "harassment" to "insubordination" was necessary, under this theory, because insubordination is the only one of the three charges that justify summary termination under the handbook. But even if the dismissal was not proper under the employee handbook and even if the managers changed their formal reason in an attempt to comply with the handbook, both reasons are supported by the record, and O'Connor has not shown them to be pretextual. Indeed, this alternative explanation for the inconsistency undermines any inference that the switch reflects an effort to hide discriminatory motives. Because O'Connor has not sued under any theory to which DePaul's compliance with its own personnel manual is relevant, we need not explore this issue further.
33
Finally, O'Connor and the amicus argue that several comments made by Riggs and Nuter reveal their age bias and support the inference that the reasons they gave for O'Connor's dismissal were pretextual. Michael Francis O'Connor, an engineer who worked at DePaul under the employ of an independent contractor, testified that in December 1991 Riggs had asked him to fire another of the contractor's employees, Al Rasmussen, who, according to Michael, Riggs referred to as a "worthless old fucker." Seventy-year-old Rasmussen corroborated Michael's account, testifying that Riggs usually greeted him as "old bastard," made frequent age-related comments, and often asked Rasmussen when he was going to retire. Michael O'Connor also testified that Nuter referred to another of the contractor's employees, Art Holmes, as a "miserable old fucker." But, although allegedly made by Riggs and Nuter, these comments do not support the inference that Robert O'Connor was terminated because of his age. O'Connor is correct in noting that "stray remarks" --made by the decisionmaker but not related to the disputed employment action--may be relevant to the question of pretext under the McDonnell Douglas burden-shifting approach, even though they do not constitute direct evidence of discriminatory intent. Huff v. UARCO Inc., 122 F.3d 374, 385 (7th Cir.1997); Fuka v. Thomson Consumer Electronics, 82 F.3d 1397, 1406 (7th Cir.1996); Futrell v. J.I. Case, 38 F.3d 342, 347 (7th Cir.1994). Still, even under the indirect approach, stray remarks must be considered in the context of all the evidence, and may not overcome summary judgment if they stand alone as evidence that might support an inference of pretext. Huff, 122 F.3d at 385; Fuka, 82 F.3d at 1406. Here, Riggs' and Nuter's remarks about Rasmussen and Holmes, unaided by any additional evidence of pretext, cannot protect O'Connor from summary judgment.
III.
34
O'Connor has produced no direct evidence of discrimination and no evidence from which a rational jury might infer that Riggs lied about the reasons for his actions. Although termination may have been a harsh response to O'Connor's conduct and may even have contravened DePaul's own personnel guidelines, O'Connor has failed to establish that it violated the ADEA. The grant of summary judgment in favor of DePaul is therefore A FFIRMED.
1
After his attorney withdrew from the case, O'Connor elected to proceed pro se before this court. An amicus curiae was appointed to address the questions raised by O'Connor's appeal. The court is grateful for counsel's very helpful assistance
2
Under the Supreme Court's decision in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878, ----, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996), the plaintiff need not show that the employee who replaced him does not belong to the protected class, although 32-year-old Korenic met that condition. See also Leffel v. Valley Financial Services, 113 F.3d 787, 792-94 (7th Cir.1997); Denisi, 99 F.3d at 864 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3013971/ | Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-20-2004
Botts v. NY Times Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4009
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Botts v. NY Times Co" (2004). 2004 Decisions. Paper 481.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/481
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case. No: 03-4009
LAWRENCE BOTTS, JR.; LAWRENCE BOTTS, III;
CHRISTINE S. BOTTS,
Appellants,
v.
THE NEW YORK TIMES COMPANY; YOUNG & RUBICAM,
INC. a/k/a YOUNG & RUBICAM, NEW YORK; UNITED NEGRO
COLLEGE FUND; JOHN DOE, AND RICHARD ROE, NAMES
BEING FICTITIOUS AND UNKNOWN, THE ABC CORP.
NUMBERS 1-10, NAMES BEING FICTITIOUS AND UNKNOWN.
____________________
On Appeal from the United States District Court
for the District of New Jersey, Trenton
(D.C. No. 03-CV-1582 (MLC))
District Judge: The Honorable Mary L. Cooper
______________________
Submitted Pursuant to Third Circuit LAR 34.1
June 18, 2004
Before: ALITO, SMITH, and WALLACE, Circuit Judges*
(Filed: July 20, 2004)
__________________
OPINION OF THE COURT
___________________
__________________
*The Honorable J. Clifford Wallace, Senior Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting by designation.
WALLACE, Senior Circuit Judge.
Plaintiffs Lawrence Botts, Jr., Lawrence Botts III, and Christina Botts
appeal from the district court’s order dismissing their complaint with prejudice
against defendants Young & Rubican, Inc., the New York Times Company, and
the United Negro College Fund (UNCF). The district court had diversity
jurisdiction over this state-law action for libel, false light, misappropriation of
identity, and intentional infliction of emotional distress pursuant to 28 U.S.C. §§
1332 & 1441. We exercise jurisdiction over the plaintiffs’ timely filed appeal
pursuant to 28 U.S.C. § 1291, and we affirm the district court’s dismissal of the
complaint.
The defendants contend that the district court properly dismissed the
complaint because (1) the plaintiffs failed to file their complaint within New
Jersey’s applicable statutes of limitations, and (2) the complaint does not state a
valid claim as required by Federal Rule of Civil Procedure 12(b)(6). Because we
agree that the complaint does not state a valid claim under New Jersey law, we
need not reach the defendants’ timeliness challenges.
To state a valid claim for libel, a plaintiff must allege, inter alia, “that the
defendant made a defamatory statement of fact [in print] . . ..” Taj Mahal Travel,
Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir. 1998). “A defamatory
2
statement is one that is false and injurious to the reputation of another or exposes
another person to hatred, contempt or ridicule or subjects another person to a loss
of the good will and confidence of others.” Id. (internal quotation marks and
citations omitted).
The advertisement is not libelous as a matter of state law because it cannot
reasonably be construed as communicating a false message concerning the
plaintiffs. The advertisement, which was affixed to the plaintiffs’ complaint,
depicts a fictional African-American male who turned to alcohol and “wasted” his
mind because he could not afford a college education. The plaintiffs, who are
Caucasian, do not claim that readers of the Times could reasonably draw the
conclusion that they are African-Americans in need of a UNCF college
scholarship. The district court properly dismissed their libel claim.
Plaintiffs contend that the advertisement places them in a false light as
“alcoholics” and “derelicts.” “The interest protected by the duty not to place
another in a false light is that of the individual’s peace of mind, i.e., his or her
interest in not being made to appear before the public in an objectionable false
light or false position, or in other words, otherwise than as he is.” Romaine v.
Kallinger, 537 A.2d 284, 294 (N.J. 1988) (internal quotation marks and citation
omitted). The plaintiffs stretch the advertisement’s message beyond its rational
3
limits. No reasonable person could confuse the advertisement’s fictional “Larry
Botts” for any of the three plaintiffs in this case.
Plaintiffs’ “misappropriation of identity” claim also fails under New Jersey
law. In this case, the defendants arguably used the name “Larry Botts” for a
commercial purpose (i.e., fundraising), but they clearly did not misappropriate the
plaintiffs’ identity. The name “Larry Botts” merely functions as “John Doe” or
“Jane Roe,” i.e., as a generic placeholder for the prototypical underprivileged
African-American youth. Indeed, the advertisement’s effectiveness as a
fundraising tool would be significantly compromised if readers actually associated
the name “Larry Botts” with plaintiff Lawrence Botts III—a college-educated
Caucasian. As such, we affirm the district court holding that the plaintiffs fail to
state a valid misappropriation of identity claim. See Palmer v. Schonhorn
Enterprises, Inc., 232 A.2d 458, 460 (N.J. Super. Ct. 1967).
Finally, plaintiffs seek compensation for intentional infliction of emotional
distress. Plaintiffs’ tort claim fails for two reasons. First, the defendants’ use of
the name “Larry Botts” in the UNCF advertisement was not sufficiently
“outrageous” to support a valid claim under New Jersey law. See Buckley v.
Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988); Taylor v. Metzger,
706 A.2d 685, 694 (N.J. 1988). Second, the defendants’ alleged tortious conduct
4
was not sufficiently egregious “that no reasonable man could be expected to
endure it.” Buckley, 544 A.2d at 863, quoting RESTATEMENT (SECOND) OF TORTS
§ 6, cmt. j (1977).
AFFIRMED.
1 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7023670/ | JUSTICE CAMPBELL delivered the opinion of the court: This action involves a complaint filed on December 18, 1984, in which plaintiff alleged that in October 1983, he and defendant entered into an oral contract in Illinois whereby, if plaintiff were to obtain an acceptable party to provide financing for defendant’s business project, defendant would pay plaintiff 4% of the amount of financing provided. Plaintiff further alleged that he was instrumental in procuring an individual who made a loan of approximately $300,000 to defendant’s project and arranged for an additional loan of approximately $4 million, thus entitling him to a fee of 4% of all monies obtained for defendant’s business project by and through this individual. On October 3, 1988, this cause was assigned for trial to Judge E.C. Johnson, but defendant’s attorney was unaware that trial was to commence on that date, and the matter was continued to October 19, 1988. On that date defendant filed a motion for a continuance. The trial court granted defendant’s motion and continued the trial date until November 7, 1988. On October 31, 1988, defendant filed a motion for summary judgment and a motion for leave to file an affirmative defense; a hearing on these motions was set for November 4, 1988. On November 4, 1988, defendant was prepared to argue his motion for summary judgment, but plaintiff objected, stating that he had not received notice of the motion. Plaintiff then offered a written motion for change of venue based on his fear of judicial prejudice. When asked to explain why he waited to file the motion until the trial date had been set, plaintiff stated that several days earlier defendant’s counsel told him that he had made a telephone call to Judge Johnson and intended to present a motion for summary judgment on November 4, 1988. The court set a hearing on plaintiff’s motion for November 7, 1988. On November 7, 1988, the trial court expressed concern that the motion, filed so shortly before trial, was not genuinely based upon a belief that a fair trial was uncertain but was advanced for the purpose of delay. The court also noted that plaintiff had failed to provide defendant with any notice or any other communication to inform the opposing party that the motion for change of venue was to be presented. The trial court then denied plaintiff’s motion as untimely because it was not presented until the day before trial, although there had been ample opportunity to present it earlier, and it was presented without notice to the opposing party. When plaintiff, however, persisted in his motion for change of venue and would not participate in a trial, the trial court dismissed the action for failure to prosecute. Plaintiff now contends that the trial court erred in denying his petition for change of venue where the petition was timely filed and complied with statutory requirements. Plaintiff also argues that the dismissal for want of prosecution was a void order in that it followed an improper denial of a petition for change of venue. Defendant counters that plaintiff’s petition was not timely filed and that plaintiff failed to comply with the statutory requirement that reasonable notice of the petition be given to the adverse party. Section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1001(a)(2), (c), (e)) provides, in pertinent part, that a change of venue in a civil action may be had: “Where any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him or her ***. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the parties. * * * (c) Every application for a change of venue by a party or his or her attorney shall be by petition *** [and] *** shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case ***. *** (e) The application may be made to the court in which the case is pending, reasonable notice thereof having been given to the adverse party or his or her attorney.” Provisions of section 2 — 1001 are to be liberally construed in favor of granting a change of venue, particularly where judicial prejudice is charged. (Oberman v. Byrne (1982), 104 Ill. App. 3d 1046, 433 N.E.2d 1024.) Generally, a litigant has an absolute right to a change of venue where his motion alleging prejudice of the trial court meets statutory requirements. Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84; Roherty v. Green (1965), 57 Ill. App. 2d 362, 206 N.E.2d 756. However, it is well settled that a trial court may deny a motion for a change of venue if reasonable notice has not been given to the adverse party, and what constitutes reasonable notice depends on the circumstances in each case. (Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129.) Furthermore, the determination of whether reasonable notice has been given is left to the discretion of the trial court, and absent an abuse of that discretion, the trial court’s ruling on the sufficiency of notice will not be disturbed on appeal. Intini v. Schwartz, 78 Ill. App. 3d at 575. In Buckingham Corp. v. Modern Liquors, Inc. (1973), 16 Ill. App. 3d 534, 306 N.E.2d 655, defendant’s attorney delivered a notice of motion and a petition for a change of venue to the plaintiff’s attorney on the day before trial was scheduled. At 10 a.m. the following day, the defendants presented the petition to the trial court, and the court denied the petition. On appeal, defendants argued that the trial court had erred in denying the petition because a party has an absolute right to a change of venue where his petition is duly made, verified and filed in accordance with statute. This court affirmed the trial court, finding that its determination that the notice was unreasonable was not an abuse of discretion. We noted that our supreme court reached a similar result in Hutson v. Wood (1914), 263 Ill. 376, 105 N.E. 343, where a plaintiff notified the defendant’s attorney at 4:20 p.m. on the day before the petition for a change of venue was presented to the trial court. See also Miller v. Pence (1890), 132 Ill. 149, 23 N.E. 1030 (denial of a petition for a change of venue was affirmed where no notice was given to the adverse party although the moving party knew of the alleged prejudice at least one day before presenting the petition). In the instant case, plaintiff supposedly learned of the alleged prejudice several days prior to his application for a change of venue, yet no notice whatsoever was provided to defendant. Accordingly, we find that under the circumstances of this case the trial court’s denial of plaintiff’s petition for a change of venue was not an abuse of discretion. In light of our decision, we need not address plaintiffs remaining contention. Judgment affirmed. O’CONNOR, J., concurs. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4520553/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01578-CV
NMF PARTNERSHIP, Appellant
V.
DALLAS COUNTY, ET AL., Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-02335
ORDER
Before the Court is appellees’ March 24, 2020 motion requesting a sixty-day
extension of time to file their brief on the merits. We GRANT the motion and
extend the time to May 26, 2020.
/s/ ERIN A. NOWELL
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/560732/ | 932 F.2d 959
Egan (Leo)v.Sullivan (Louis W., M.D.)
NO. 90-3761
United States Court of Appeals,Third Circuit.
APR 11, 1991
1
Appeal From: W.D.Pa.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2153990/ | 131 Cal.App.3d 860 (1982)
CONTRA COSTA THEATRE, INC., Plaintiff and Appellant,
v.
REDEVELOPMENT AGENCY OF THE CITY OF CONCORD et al., Defendants and Respondents.
Docket No. 48474.
Court of Appeals of California, First District, Division One.
May 19, 1982.
*862 COUNSEL
Samuel L. Holmes and Angell, Holmes & Lea for Plaintiff and Appellant.
Lee C. Rosenthal, Barry R. Lipman, Steven H. Goldfarb and Goldfarb & Owens for Defendants and Respondents.
OPINION
NEWSOM, J.
The present appeal arises in the following circumstances.
Appellant was the lessee of a parcel of property in the City of Concord on which it operated an outdoor motion picture theatre.
Respondent Redevelopment Agency of the City of Concord (hereafter the Agency), a public body, entered into an agreement with Delta Bingham Joint Venture (hereafter Delta) on January 16, 1978, which provided that the Agency would acquire appellant's leasehold interest and convey it to Delta for redevelopment. The leasehold, at the time, was being condemned in an action brought by the Agency. Prior to the agreement, Delta acquired the right to purchase the fee interest in the property from its owner. The Agency's acquisition of the leasehold interest and resale to Delta would thus allow redevelopment of the property.
*863 To accomplish the acquisition of the leasehold interest, prior to the execution of the agreement, the Agency as required by law published a notice of public hearing in a newspaper of general circulation between December 30, 1977, and January 6, 1978, which included a statement that information concerning appellant's leasehold interest, its proposed purchase by the Agency and resale to Delta was available for public inspection and copying.
This summary, prepared by the Agency, stated that both the estimated value and purchase price of the leasehold interest were "currently unknown." Since the resale price for the property to be paid by Delta was tied to its cost to the Agency, no precise sale price was stated. However, the summary disclosed that Delta would reimburse the Agency for all costs of acquisition pursuant to the agreement and based upon a formula stated therein.
The single issue before us is whether the notice and disclosure summary prepared by the respondent condemner satisfied the requirements of Health and Safety Code section 33433. Holding that it did, the trial court granted respondents' summary judgment motion and entered judgment against appellant.
Section 33433 of the Health and Safety Code directs redevelopment agencies to post for public inspection and reproduction a copy of the proposed sale or lease and a "summary" of its terms, including: the cost of the acquisition to the agency; the value of the property interest acquired; the resale price to be paid for the property by the developer; and an explanation for the difference, if any, between the fair market value and the resale price of the property.
Appellant's sole contention is that the Agency's summary fails to specify, in fixed terms, the cost of respondents' leasehold interest, its value and sale price, and an explanation for the difference between the sale price and the fair market value of the interest, as required by section 33433. The defective summary, appellant submits, renders the agreement invalid and the expenditure of tax increment funds for the acquisition of respondents' leasehold interest unlawful.
The Agency responds that the summary and attached agreement state a "formula" from which the tax cost to the Agency for the property interest can be determined, and suffices under section 33433 without stating precise figures.
*864 The challenged "formula" specifies that Delta was to immediately pay all acquisition costs incurred by the Agency, including attorney fees and condemnation judgments, up to $250,000 and over $500,000. Any costs between $250,000 and $500,000 were to be paid by Delta on a deferred basis, in part from increases in property taxes which would result from Delta's development of the property.
When the agreement was executed and the summary was prepared, respondents' leasehold interest had not yet been acquired by the Agency, nor had the precise cost of acquisition yet been determined. Consequently, respondents insist, recitation of a "formula" instead of precise figures was dictated by the nature of the acquisition, and under the circumstances here presented complies with the disclosure requirements of Health and Safety Code section 33433.
Resolution of the issue is in large part a question of statutory interpretation, for which we receive guidance from well-established interpretive rules.
(1) A primary goal of statutory construction is ascertainment of the legislative intent so that the purpose of the law may be effectuated. (People v. Shirokow (1980) 26 Cal.3d 301, 306-307 [162 Cal. Rptr. 30, 605 P.2d 859].) Statutes should be given a reasonable interpretation which comports with the apparent purpose and intent of the Legislature. (In re Ruben M. (1979) 96 Cal. App.3d 690, 697 [158 Cal. Rptr. 197]; Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal. App.3d 1022, 1025 [157 Cal. Rptr. 612]; Cory v. Golden State Bank (1979) 95 Cal. App.3d 360, 367 [157 Cal. Rptr. 538].) Statutory language must be read in context, keeping in mind the nature and purpose of the enactment, and must be given such interpretation as will promote rather than defeat the objective of the law. (Pennisi v. Department of Fish & Game (1979) 97 Cal. App.3d 268, 272 [158 Cal. Rptr. 683]; Steilberg v. Lackner (1977) 69 Cal. App.3d 780, 785 [138 Cal. Rptr. 378].) In fact, as noted in People v. Davis (1978) 85 Cal. App.3d 916, 924 [149 Cal. Rptr. 777]: "... a persuasive and basic principle of statutory construction provides that legislative intent should prevail over a literal or plain-meaning construction." (2) And, as expressed in English v. County of Alameda (1977) 70 Cal. App.3d 226, 233-234 [138 Cal. Rptr. 634]: "The legislative intent may be ascertained not only by considering the words used, but also taking into account other matters as well, such as the objects in view, the evils to be remedied, the legislative history, public policy and contemporaneous administrative construction."
*865 (3) The primary objective of section 33433 is clearly that of promoting public awareness of redevelopment acquisitions. The essential terms of such acquisitions are to be disclosed prior to the public hearing upon which approval of the redevelopment project is preconditioned. Redevelopment agencies thereby remain accountable to the public, and tax increment monies will be spent only after informed public involvement.
Prior to 1976, section 33433 prohibited resale of property purchased with tax increment funds at less than fair market value. Now, however, section 33433 permits a less-than-market value resale following disclosure of essential terms. The obvious focus of the law is upon affording interested persons adequate notice, information and a hearing prior to the sale of any property interest acquired with tax increment funds. Section 33433 particularly reveals a legislative intent to ensure disclosure of the comparison between the acquisition cost of fair market value of the property interest and its resale price, so that expenditure of tax funds can be monitored and fraud or corruption avoided. The statute very clearly permits less-than-market-value transactions provided full disclosure is made.
(4) We are of the opinion that the summary prepared by the respondent Agency here comports with the requirements of section 33433 by providing ample information for those interested in assessing the fairness and the tax cost of the transaction.
While no figures are stated, the summary discloses both the "cost of the agreement" to the Agency and the "estimated value of the interest to be conveyed." No actual "purchase price" is stated, but a comparison between the acquisition cost and resale price is reflected in the terms as stated in the agreement and summary, and from the terms of the summary, interested persons are given general access to all pertinent information.
And finally, the disclosures provided in the summary are all that are practically possible, since the Agency had not yet acquired the property interest and could thus not precisely state a fixed price. Nothing in section 33433 indicates a legislative intent to prevent redevelopment agencies from contracting to sell property to be acquired in the future, as impliedly argued by appellant.
*866 Appellant also argues that the summary violates the letter and spirit of section 33433 in its failure to account for (1) the possibility that the Agency's acquisition costs will be so great that the developer will fail or refuse to perform its contractual obligations, and (2) that goodwill damages might be assessed as condemnation costs. The statute, however, does not contemplate disclosure of either of these contingencies, both of which are as likely to occur where a fixed price summary is prepared as in cases like the one at issue. And, in fact, the summary at issue here is more likely to account for goodwill damages or other unforeseen costs than a fixed-price summary, since it leaves the essential terms open but states that all costs are to be paid by the developer.
We accordingly find that the type of "formula" disclosure prepared by the respondent Agency here substantially complies with the relevant statutory requirements. (Card v. Community Redevelopment Agency (1976) 61 Cal. App.3d 570, 579 [131 Cal. Rptr. 153]; Sanguinetti v. City Council (1965) 231 Cal. App.2d 813, 818-820 [42 Cal. Rptr. 268].)[1] The order of the trial court granting summary judgment in favor of respondents was correct.
The judgment is affirmed.
Elkington, Acting P.J., and Levins, J.,[*] concurred.
NOTES
[1] In both cited cases, the substantial compliance rule was applied to analogous provisions of the Community Redevelopment Law.
[*] Assigned by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/748501/ | 129 F.3d 1257
U.S.v.Eric Carlisle Martinson
NO. 97-1085
United States Court of Appeals,Third Circuit.
Sept 09, 1997
Appeal From: E.D.Pa. ,No.92002281
1
Affirmed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3063494/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12336 ELEVENTH CIRCUIT
APRIL 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00157-CR-RDP-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIERRE ERNEST FALGOUT, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM:
Pierre Ernest Falgout, III, appeals his convictions and 11,520-month
sentence for 32 counts of producing child pornography, in violation of 18 U.S.C.
§ 2251(a).
I
On appeal, Falgout argues that his indictment charged him with duplicative
counts because most of the counts in the indictment charged him with essentially
the same offense. However, a knowing and voluntary guilty plea waives an
argument that the indictment was duplicitous. United States v. Fairchild, 803 F.2d
1121, 1124 (11th Cir. 1986). Therefore, Falgout waived his duplicitousness
argument by pleading guilty to the counts in the indictment.
II
Falgout next argues that his 11,520-month sentence was unreasonable
because, during sentencing, the district court considered evidence that was not a
proper part of the record, and did not give sufficient weight to the mitigating
evidence that Falgout presented. He also argues that it was unreasonable for the
district court to impose his sentences consecutively and not concurrently. We
evaluate the instant sentence as effectively imposing a life sentence. See U.S.S.G.
§ 5G1.2(d), discussed infra at 6-7; see also infra at 9 n.1. We conclude that
Falgout’s challenge to the sentence must fail.
We review a sentence for unreasonableness under a “deferential abuse-of-
2
discretion standard.” Gall v. United States, 552 U.S. ___,128 S.Ct. 586, 591
(2007). If a defendant fails to object to facts that are contained in the pre-sentence
investigation report (“PSI”), he is deemed to have admitted those facts. United
States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the guidelines, treated the guidelines as
mandatory, failed to consider the 18 U.S.C § 3553(a) factors, selected a sentence
based on clearly erroneous facts, or failed adequately to explain the chosen
sentence. Gall, 522 U.S. at , 128 S.Ct. at 597. A sentence is substantively
unreasonable “if it does not achieve the purposes of sentencing stated in §
3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The
burden of establishing that the sentence is unreasonable in light of the record and
the § 3553(a) factors lies with the party challenging the sentence. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Section 3553(a) provides that district courts must consider, inter alia, (1) the
applicable guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (5) the need for adequate deterrence to
3
criminal conduct; (6) protection of the public from further crimes of the defendant;
and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (quotations and alterations omitted).
An example of the application of all these factors to a child pornography
defendant can be seen in Pugh, where the defendant was convicted of having child
pornography, and the district court gave him a significant downward variance
during sentencing. 515 F.3d at 1183, 1187. The district court relied on a number
of mitigating factors, including: (1) the defendant’s lack of a criminal history;
(2) the fact that he did not specifically seek out child pornography; and (3) the
testimony of an expert witness, who stated that the defendant primarily was
addicted to adult pornography and had a low risk of recidivism. Id. at 1184-87.
We concluded that the significant downward variance was substantively
unreasonable, in part, because the final sentence did not afford adequate deterrence
to criminal conduct, which “is particularly compelling in the child pornography
context.” Id. at 1194. In addition, we found that the downward variance did not
reflect the seriousness of the offense, the guideline sentencing range, and the need
4
to protect the public from further crimes by the defendant. Id. at 1195, 1200-01.
Falgout's sentence was neither procedurally nor substantively unreasonable
because the district court considered multiple § 3553(a) factors and determined that
a downward variance was not warranted due to the extremely egregious nature of
Falgout’s offenses. With regard to procedural unreasonableness, Falgout does not
argue that the district court improperly calculated his guideline range, treated the
guidelines as mandatory, or failed to explain the chosen sentence. Turning to the
remaining procedural reasonableness factors, the district court explicitly
considered a number of § 3553(a) factors when it was determining Falgout’s
sentence: (1) the nature and circumstances of the offenses; (2) Falgout’s history
and characteristics; (3) the seriousness of the offenses; and (4) the need to protect
the public from further crimes committed by Falgout. Therefore, the district court
did not fail to consider the § 3553(a) factors. With regard to whether the district
court sentenced Falgout using clearly erroneous facts, the facts that the district
court used to sentence him came from the PSI and the accompanying images and
video, none of which were objected to by Falgout. Because Falgout’s failure to
object to the PSI resulted in him admitting the facts that the PSI set forth, and
because he does not argue that the inferences that the district court drew from the
pictures and video were clearly erroneous, the district court did not sentence him
5
using clearly erroneous facts. See Bennett, 472 F.3d at 833-34. Therefore,
Falgout’s sentence is procedurally reasonable.
Turning to the issue of substantive reasonableness, the instant situation is
similar to the one that this Court addressed in Pugh. Just like the expert witness in
Pugh, who testified that the defendant in that case had a low risk of recidivism, Dr.
Preston, in the instant case, testified that there was a possibility that Falgout could
be rehabilitated. See Pugh, 515 F.3d at 1184-87. In addition, similar to the
defendant in Pugh, who had no prior criminal history, Falgout was a law-abiding
citizen for most of his life, and his criminal history category was I. See 515 F.3d at
1184-87. However, in Pugh, this Court found that these mitigating factors were
not sufficient to justify a significant downward variance. See 515 F.3d at 1194. In
the instant case, Falgout’s criminal conduct was far more egregious than the
conduct of the defendant in Pugh, and, therefore, like Pugh, the mitigating factors
in the instant case do not justify a downward variance. See id. Accordingly,
Falgout’s sentence was substantively reasonable, and the district court did not
abuse its discretion in denying him a downward variance.
Section 5G1.2(d) provides for the imposition of consecutive sentences
under the circumstances in this case. That section states, “If the sentence imposed
on the count carrying the highest statutory maximum is less than the total
6
punishment, then the sentence imposed on one or more of the other counts shall
run consecutively, but only to the extent necessary to produce a combined sentence
equal to the total punishment.” U.S.S.G. § 5G1.2(d). Here, the “total punishment”
under the Sentencing Guidelines called for life imprisonment, and yet the statutory
maximum for the count with the highest maximum was 30 years. Thus, the district
court properly followed § 5G1.2 by imposing the sentences for multiple counts
consecutively in these circumstances. United States v. Davis, 329 F.3d 1250,
1253-54 (11th Cir. 2003) (upholding the imposition of consecutive sentences under
§ 5G1.2(d) of the Sentencing Guidelines).
III
Falgout finally argues that his sentence violates the Eighth Amendment's ban
on cruel and unusual punishment because it is grossly disproportionate to the
offenses that he committed.
If a sentencing issue is raised for the first time on appeal, we will review that
issue only for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th
Cir. 2000). Under plain error review, there must be (1) an error, (2) that is plain,
and (3) that affects substantial rights. Id. When these three factors are met, we
may then exercise our discretion and correct the error if it seriously affects the
7
fairness, integrity, or public reputation of the judicial proceedings. United States v.
Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993). Review for plain error
requires an error to be clear or obvious. United States v. Straub, 508 F.3d 1003,
1008 (11th Cir. 2007).
In a non-capital case, “the Eighth Amendment encompasses, at most, only a
narrow proportionality principle,” and, therefore “successful challenges to the
proportionality of sentences are exceedingly rare.” United States v. Raad, 406 F.3d
1322, 1323 (11th Cir. 2005) (emphasis in the original). To determine whether a
sentence violates the Eighth Amendment:
a reviewing court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed
and, if it is grossly disproportionate, the court must then consider the
sentences imposed on others convicted in the same jurisdiction and
the sentences imposed for commission of the same crime in other
jurisdictions.
Id. at 1324.
In the instant case, Falgout committed a number of extremely serious
offenses against very young children that the district court found to be some of the
worst offenses that it had ever seen. Falgout states in a very conclusory manner
that his sentence was disproportionate to his crime and to other similar convictions
in the district but provides no support. Because it is not obvious that Falgout's
sentence is disproportionate to his offenses, this sentence does not constitute a
8
plain error violation of the Eighth Amendment's bar to cruel and unusual
punishment. Accordingly, we affirm the district court’s decision.
AFFIRMED.1
1
We decline to address whether an 11,520 month sentence is more than is
“sufficient but not greater than necessary” as provided for in 18 U.S.C. § 3553(a). We decline to
address that because Falgout’s brief fails to make that argument with sufficient clarity, and also
for the following reason. We readily hold in this case that a sentence that will guarantee that
Falgout remains in prison for life is a reasonable sentence. Thus, the argument that we decline to
address could not possibly benefit Falgout.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3039664/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2251
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Elias Zamarripa, *
also known as Homeboy, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: February 7, 2006
Filed: February 16, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Elias Zamarripa pleaded guilty to conspiring to distribute and possess with
intent to distribute 500 grams or more of methamphetamine mixture, in violation of
21 U.S.C. § 846. The district court1 sentenced him to 188 months in prison and 5
years of supervised release. On appeal, Zamarripa’s counsel has moved to withdraw
and filed a brief under Anders v. California, 386 U.S. 738 (1967).
1
The Richard G. Kopf, United States District Judge for the District of Nebraska.
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we conclude that there are no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court and grant counsel’s motion
to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2608479/ | 102 Ariz. 432 (1967)
432 P.2d 444
STATE of Arizona, Appellee,
v.
Raul Leon GOMEZ, Appellant.
No. 1770.
Supreme Court of Arizona, In Banc.
October 18, 1967.
*433 Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Podret & Thikoll, Tucson, for appellant.
LOCKWOOD, Justice.
Appellant Gomez was tried and found guilty of robbery. He brings this appeal contending that there was insufficient evidence to support the verdict, that the verdict was based upon the uncorroborated testimony of an accomplice, and that the jury should have been instructed as to specific intent to deprive a person of his property. We do not agree.
The facts are as follows: At 11:00 P.M. on November 5, 1964, Mr. Fletcher, an employee of Circle K markets began his shift at the grocery store located at the inter-section of South Sixth Avenue and Ajo Way in Tucson, Arizona. During the next hour to an hour and a half, Mr. Fletcher waited upon various customers and observed three young men loitering in front of the store. The last customer Fletcher waited upon before the robbery was a regular customer by the name of Payton. Payton arrived shortly after midnight to purchase some beer. He also noticed the three young men and was able to describe them and had seen them before on numerous occasions. Payton purchased his beer and left while the three men remained outside. Fletcher was the only employee on duty and now was the only person in the store. Two of the men entered the store, and then the third man joined them. They produced a gun and demanded the money in the cash registers. Fletcher, being fearful, opened the cash registers and the men took the money and fled.
During the trial, Fletcher described the three men. The description of one of the participants fit Gomez. Payton also testified as to the description of the men and testified that Gomez was one of the men he saw outside the store. One of the participants by the name of Felix, also testified that Gomez took part in the robbery and that Gomez held a gun on the victim causing him to give up the money. Gomez did not testify.
Appellant argues that the testimony of Fletcher and Payton only tends to prove that he was outside the store shortly before the robbery, and not that he was one of the robbers. He argues that since one's presence at the scene of a crime is not sufficient to prove guilt, the conviction must have been based entirely upon the uncorroborated testimony of the accomplice in contravention of A.R.S. § 13-136:
"A conviction shall not be had on the testimony of an accomplice unless the accomplice is corroborated by other evidence which, in itself and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (Emphasis supplied.)
We agree with appellant that mere presence at the scene of the crime does not prove guilt and that a conviction cannot be based entirely upon the uncorroborated testimony of an accomplice. But we do not agree that the testimony of Felix *434 was uncorroborated. We have held that the evidence required to corroborate testimony of an accomplice need not be sufficient to establish the defendant's guilt. State v. Goldthorpe, 96 Ariz. 350, 395 P.2d 708 (1964). It need only "tend to connect the defendant with the commission of the offense". There was testimony presented other than the accomplice's which tended to connect appellant with the offense.
Appellant further contends that the trial court committed reversible error in not giving an instruction on the need for specific intent to permanently deprive a person of his property in the crime of robbery. Again we do not agree.
Defendant's cited cases do not support the proposition that an instruction on specific intent must be given in the case before us. They involve (1) cases in which the intent of the defendant was in issue because the defendant stated that he was taking the property with the consent of the owner or some similar reason, or (2) cases in which the court held that even though the lack of an instruction on specific intent was error, when considered with the evidence it did not warrant a reversal. In the case before us now, there is no issue as to intent. The appellant claims that he was not the gunman and/or accomplice. He does not claim that he took the property without having the specific intent to deprive the owner of it permanently, or that he took the property with the uncoerced consent of the victim.
The trial court properly instructed the jury concerning the legal requirement of intent, and how it might be inferred by the evidence, quoting from § 13-131 A.R.S. (1956). The instruction correctly stated the law and was complete in light of the evidence presented.
Further, the appellant made no request for the instruction he claims should have been given. It has been repeatedly held that error cannot be predicated on the failure to give instructions not requested. State v. Randolph, 99 Ariz. 253, 408 P.2d 397 (1965); Cohen v. United States, 366 F.2d 363 (C.A.9 1966).
Affirmed.
BERNSTEIN, C.J., McFARLAND, V.C.J., and STRUCKMEYER and UDALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060690/ | 1 S.W.3d 643 (1999)
STATE of Tennessee, Appellee,
v.
Jeffrey D. HUNTER, Appellant.
Supreme Court of Tennessee, at Nashville.
September 7, 1999.
*644 John S. Colley, III, Columbia, Tennessee, for appellant.
John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, Nashville, Tennessee, for appellee.
OPINION
BARKER, Justice.
We granted this appeal by Jeffrey D. Hunter, the appellant, in order to address issues pertinent to a trial court's authority during probation revocation proceedings. For the reasons provided herein, we hold that when a trial court has determined that a probation violation has occurred, it possesses the authority to: (1) order incarceration; (2) order the original probationary period to commence anew; or (3) extend the remaining period of probation for as much as an additional two years. We further conclude that a defendant is not entitled to credit on his or her sentence of incarceration for any time served on probation prior to probation revocation and reinstatement of the original sentence. The judgment of the Court of Criminal Appeals is affirmed.
BACKGROUND
On September 3, 1991, the appellant pled guilty to reckless driving, failure to appear, and two counts of possession of marijuana with the intent to sell. A sentencing hearing was held on November 13, 1991, at which time the trial court imposed consecutive two-year sentences for each marijuana conviction and then immediately granted consecutive two-year probationary periods for each conviction. The trial court also ordered the appellant to serve a consecutive one-year probationary sentence for the failure to appear conviction and a concurrent six-month probationary sentence for the reckless driving conviction. Thus, the total effective sentence for all four convictions was five (5) years to be served on probation.
Approximately one week later, on November 21, 1991, a probation violation warrant was issued against the appellant charging him with marijuana use. Following a hearing on January 13, 1992, the appellant's probation was revoked but then reinstated.
Less than two years later, on February 18, 1993, a second probation violation warrant was issued against the appellant based on charges filed against him for aggravated assault. The appellant subsequently pled guilty to aggravated assault and received a suspended eight-year sentence to be served consecutively to his *645 previous five-year sentence. Again, the trial court revoked the appellant's previous probation and then immediately reinstated the original probationary sentences. The trial court also ordered the appellant incarcerated for seventy-five (75) days before being placed back on probation. The appellant's total effective sentence was, therefore, increased to thirteen (13) years.
A third probation violation warrant was issued against the appellant on June 21, 1994, based on allegations of marijuana use and his arrest for driving under the influence. As a result, on December 15, 1994, the trial court again revoked the appellant's probation and reinstated his original probation sentences. However, the trial court ordered him to serve ninety (90) days in jail before placing him back on probation.
On April 1, 1996, a final probation violation warrant was issued against the appellant. The warrant was based upon the appellant's use of alcohol, which was specifically prohibited by the probationary rules, and his erratic behavior and threats made to his family. Following yet another probation revocation hearing, on May 30, 1996, the trial court again revoked the appellant's probation on all of his sentences and ordered him to serve the following consecutive sentences: two (2) years for the first drug conviction, two (2) years for the second drug conviction, one (1) year for the failure to appear conviction, and eight (8) years for the aggravated assault conviction. Therefore, the total effective sentence was thirteen (13) years to be served in the Department of Correction.[1]
On June 12, 1996, the appellant filed a motion to correct the sentence alleging that he was incapable of understanding his actions at the time he violated his probation and that two of his four probationary sentences had expired prior to the institution of final probation revocation proceedings. The trial court denied the motion and the Court of Criminal Appeals affirmed, concluding that the trial court possessed the authority to revoke the appellant's probation and to reinstate his original sentence. In so doing the Court of Criminal Appeals held that the appellant was not entitled to receive credit on his probationary sentence for time previously served on probation.[2] The appellant now requests this Court to reverse the lower courts.
ANALYSIS
The appellant first and primarily contends that he successfully completed the two (2) consecutive two-year probation sentences for the felony drug convictions prior to the institution of final revocation proceedings in 1996. He specifically argues that the thirteen-year sentence imposed upon him following his final revocation hearing should be reduced to a nine-year sentence to account for the completion of these sentences. Based on the reasons outlined below, we affirm the judgment of the Court of Criminal Appeals and the appellant's thirteen-year sentence in the Department of Correction.
*646 Tennessee Code Annotated §§ 40-35-310 (1990) and 40-35-311 (1990) govern the procedure for revocation of probation. If a trial court determines that a defendant has violated the conditions of probation, it has the authority to revoke the defendant's probation and cause execution of the original judgment. Tenn.Code Ann. § 40-35-311. Tennessee Code Annotated § 40-35-310 provides:
The trial judge shall possess the power, at any time within the maximum time which was directed and ordered by the court for such suspension, after proceeding as provided in § 40-35-311, to revoke and annul such suspension, and in such cases the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension, and shall be executed accordingly.
We agree with the appellant's argument that if a defendant successfully completes a probationary sentence, the trial court is without authority to revoke probation and order service of the original sentence. Tenn.Code Ann. § 40-35-310 (1990). However, in this case, the appellant failed to successfully complete his first two-year probationary period prior to any of his probation revocations. Approximately one week after the appellant was initially placed on probation, a violation warrant was issued against him. Then, in February of 1993, a second probation violation warrant was issued against the appellant. He was placed back on probation after the trial court first revoked his probation. Probation was revoked again in November of 1994. The second revocation was less than two years after the court had reinstated his probation. Following reinstatement in December of 1994, the appellant's probation was revoked again on April 1, 1996, sixteen months following the previous reinstatement. At the final revocation hearing in May 30, 1996, the trial court revoked the appellant's probation and imposed an effective thirteen-year sentence in the Department of Correction.
The record clearly shows that the appellant failed to completely serve an entire probationary period prior to any of his probation revocations. Before the appellant could successfully complete his initial two-year probationary term, he repeatedly violated the conditions of his probation. Each time when the trial court revoked the appellant's probation and then reinstated it, the appellant began serving his original sentence anew. The trial court had the authority to revoke probation and order service of the original sentence because he had failed to complete an entire probationary period at the time the violation occurred. Tenn.Code Ann. § 40-35-310 (1990).
The appellant contends, however, that when probation is revoked and reinstated, Tenn.Code Ann. § 40-35-308(c) sets a limit on a trial court's authority to order additional time to be served on probation. The appellant argues that the language of section 40-35-308(c) reveals a legislative intent to prohibit a trial court from imposing a probation sentence greater than two years. We disagree.
Tennessee Code Annotated § 40-35-308(c) provides the trial court with the power to modify, remove, or release a condition of a defendant's probation. The statute in question provides:
Notwithstanding the actual sentence imposed, at the conclusion of a probation revocation hearing, the court shall have the authority to extend the defendant's period of probation supervision for any period not in excess of two (2) years.
Tenn.Code Ann. § 40-35-308(c). Under the statute, the trial court has the option to extend the existing probationary period up to two additional years instead of imposing the original sentence. The Sentencing Commission Comments suggest that section 40-35-308(c) was designed to address situations where a defendant violates probation near the end of the probation term and reinstatement of the defendant's original sentence would produce too *647 harsh a result. The Sentencing Commission Comments provide:
Subsection (c) addresses situations where a defendant violates his or her probation near the end of the term, and instead of ordering complete incarceration, a trial court might desire to extend the defendant's period of probation supervision. This subsection permits such an extension for a period up to two years.
Tenn.Code Ann. § 40-35-308(Sentencing Commission Comments).
The appellant contends that section 40-35-308(c) was designed to prevent trial courts from repeatedly revoking and reinstating a defendant's original probation. We disagree. Nothing in the text of section 40-35-308(c) prohibits a trial court from causing execution of a defendant's original sentence. Had the legislature intended for the statute to limit a trial court's authority in probation revocation proceedings, it could have so provided in the text of the statute. It did not. Furthermore, the appellant's interpretation of section 40-35-308(c) overlooks the language in sections 40-35-310 and 40-35-311 stating that upon revocation a trial court has the authority to impose a defendant's original sentence. See Tenn.Code Ann. §§ 40-35-310,-311.
To summarize, upon revocation, section 40-35-308(c) provides a trial court with an alternative to ordering incarceration or reinstating a defendant's full original sentence. Tenn.Code Ann. § 40-35-308(c); State v. Bowling, 958 S.W.2d 362, 363 (Tenn.Crim.App.1997). However, the trial court also continues to possess the authority to cause execution of the original judgment as it was originally entered. See Tenn.Code Ann. § 40-35-310. Upon a finding that a defendant has violated the conditions of probation, a trial court has the authority to cause execution of the defendant's original judgment as it was originally entered, Tenn.Code Ann. §§ 40-35-310,-311, or to extend probation for a period up to an additional two years on the remaining period of the original probation. Tenn.Code Ann. § 40-35-308(c); Bowling, 958 S.W.2d at 363.
Finally, we address whether the appellant is entitled to credit on his probationary sentence for time spent on probation prior to the revocation. The appellant asserts that he should receive credit for a total of three (3) years, eleven (11) months and eighty-seven (87) days served on various probationary periods between revocation and reinstatements.[3] According to his argument, his thirteen-year sentence should be reduced by that amount. We disagree.
The crux of the appellant's argument is that reinstating the original probationary term every time probation is revoked produces a result which is too harsh for some defendants. He contends that a sentence to be served on probation should be credited in the same manner in which sentences of incarceration are credited for time served in confinement.[4] Otherwise, according to the appellant, all defendants could face potential lifetimes on probation regardless of the time actually served on probation.
*648 This Court recently held that the time a defendant serves on probation is not counted toward the completion of his or her sentence unless a defendant successfully completes the entire term of probation. State v. Taylor, 992 S.W.2d 941 (Tenn.1999); see also Young v. State, 539 S.W.2d 850, 855 (Tenn.Crim.App.1976). To hold otherwise would allow a defendant to serve his or her probation sentence in increments of time chosen at the defendant's convenience. Furthermore, a probation sentence should not be credited in the same manner as a sentence of incarceration because it is not the equivalent of an incarceration sentence. Probation is a significantly less severe restraint of liberty than incarceration. A defendant should not be rewarded with a reduction on his or her sentence for abusing the opportunity to serve the sentence without being subjected to total confinement. We therefore hold that the appellant is not entitled to credit on his sentence for time served on probation prior to the revocation.
CONCLUSION
To summarize, we hold that at the conclusion of a probation revocation hearing, a trial court can: (1) order incarceration; (2) cause execution of the judgment as it was originally entered; or (3) extend the remaining probationary period for a period not to exceed two years. We also hold that a defendant is not entitled to credit on his or her sentence for time served on probation unless the defendant successfully completes the entire probation term. The judgment of the Court of Criminal Appeals is affirmed.
Costs are to be assessed to the State of Tennessee.
ANDERSON, C.J., DROWOTA, BIRCH and HOLDER, J.J., concur.
NOTES
[1] The record indicates that during the final revocation proceedings, the appellant was sent to the Vanderbilt Medical Center for an evaluation. The evaluation revealed that the appellant had a history of manic-depressive disorder from which he had suffered a relapse due to the death of his wife, who apparently died from a drug overdose. Following the evaluation, the appellant was then transferred to the Department of Correction's Special Needs Facility pursuant to Tenn.Code Ann. § 40-35-314(e).
[2] In the appeal below, the intermediate court also addressed issues regarding the appellant's sanity at the time of his probation violations and his competency to stand trial at the time of his final revocation hearing. The Court of Criminal Appeals held that the trial court met its obligation by considering the appellant's mental condition as mitigating evidence at the revocation hearing. The intermediate court further concluded that the evidence did not preponderate against the trial court's finding that the appellant was competent to stand trial. Those issues were not raised in this appeal.
[3] The appellant seeks credit for one year, five months and twenty-nine days for the period of October 28, 1991, to April 26, 1993, when his probation was revoked. He argues that he is entitled to credit for one year, three months and forty-two days for the period from July 10, 1993, when probation was reinstated, to November 21, 1994, when probation was revoked. The appellant also contends that he is entitled to credit of one year, three months and sixteen days for the period from December 15, 1994, when his probation was reinstated, through April 1, 1996, when the final probation revocation was issued.
[4] The record indicates that he was incarcerated seventy-five days when his probation was revoked in 1993 and ninety days when his probation was revoked in 1994. The Court of Criminal Appeals credited the appellant's sentence to reflect the time he served in confinement. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/748503/ | 129 F.3d 1257
U.S.v.Birrel Smith
NO. 96-5773
United States Court of Appeals,Third Circuit.
Sept 17, 1997
Appeal From: D.N.J. ,No.96318 ,
Lechner, J.
1
Affirmed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3124757/ | NUMBER
13-10-00169-CV
COURT
OF APPEALS
THIRTEENTH
DISTRICT OF TEXAS
CORPUS
CHRISTI - EDINBURG
____________________________________________________________
BLUE FISH WORX, L.P.,
Appellant,
v.
AMERICAN EXPRESS
TRAVEL RELATED
SERVICES COMPANY,
INC., Appellee.
____________________________________________________________
On
appeal from the 9th District Court
of
Montgomery County, Texas.
____________________________________________________________
MEMORANDUM
OPINION
Before
Justices Yañez, Rodriguez, and Garza
Memorandum Opinion
Per Curiam
Appellant,
Blue Fish Worx, L.P., perfected an appeal from a judgment entered by the 9th
District Court of Montgomery County, Texas, in cause number 09-07-07149-CV.
The parties have filed an agreed motion to dismiss the appeal on grounds the
parties have entered into a settlement. The parties request that this Court
dismiss the appeal.
The
Court, having considered the documents on file and the agreed motion to
dismiss, is of the opinion that the motion should be granted. See Tex. R. App. P. 42.1(a). The agreed motion
to dismiss is granted, and the appeal is hereby DISMISSED. Costs will be taxed
against appellant. See Tex. R.
App. P. 42.1(d) ("Absent agreement of the parties, the court will
tax costs against the appellant."). Having dismissed the appeal at the
parties= request, no motion for rehearing will
be entertained, and our mandate will issue forthwith.
PER
CURIAM
Delivered and filed the
27th day of May, 2010. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3369651/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION TO RE-OPEN AND SET ASIDE JUDGMENT
In its Memorandum of Decision on this tax appeal, the Court sustained the appeal, citing four areas of the defendant's appraisal as being flawed.
This motion is directed at one of those areas, viz., "The use of 16 Holly Park Road as a comparable when that property was apparently not sold in an arm's length transaction."
The defendant has produced the owner of that property and as a result of his testimony, the Court is satisfied that the use of this comparable was proper as it was an arm's length transaction.
However, the remaining three grounds for the Court's conclusions remain viable and in the course of this hearing, evidence was adduced which more than outweighs the elimination of the grounds referred to above.
The present owner confirmed the testimony of the plaintiff's appraiser concerning the third floor area of the comparable in dispute. This very desirable master bedroom suite with a view of Long Island Sound was apparently not ascribed a value by the defendant's appraiser. Consideration of this feature would seem to enhance its value.
Further, at trial, the defendant, suggested this same comparable was not so greatly more valuable than the plaintiff's property because of a serious defect with the chimney. In the course of this hearing, the owner indicated there was no problem with that chimney.
The defendant has not met its burden with respect to this motion and it is therefore denied.
Anthony V. DeMayo State Trial Referee CT Page 12482 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1009101/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1544
MICHAEL D. WILKINS,
Debtor - Appellant,
versus
BENCHMARK COMMUNITY BANK,
Creditor - Appellee,
KEITH PHILLIPS, Trustee,
Trustee - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-02-154-3, BK-99-34315)
Submitted: September 25, 2002 Decided: November 20, 2002
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Wilkins, Appellant Pro Se. James Joseph Burns, LAW
OFFICE OF JAMES J. BURNS, P.L.C., Richmond, Virginia; David Richard
Ruby, MCSWEENEY & CRUMP, P.C., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael D. Wilkins appeals from the district court’s orders
dismissing his appeal from the bankruptcy court’s order approving
the sale of certain real estate in the underlying bankruptcy
proceeding. Our review of the record and the district court’s
opinions discloses no reversible error. Accordingly, we affirm the
district court. See Wilkins v. Benchmark Community Bank, Nos. CA-
02-154-3; BK-99-34315 (E.D. Va. filed & entered Apr. 24, 2002;
filed May 13, 2002 & entered May 14, 2002). We deny Wilkins’
motion for reconsideration of this court’s prior order denying his
motions to expedite and for a stay. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560743/ | 932 F.2d 960
New (Deonne R.)v.Derwinski (Edward)
NO. 90-1922
United States Court of Appeals,Third Circuit.
APR 17, 1991
Appeal From: E.D.Pa.,
Hutton, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/225867/ | 184 F.2d 840
LOVE,v.SNYDER et al.
No. 11113.
United States Court of Appeals Sixth Circuit.
Oct. 19, 1950.
Harold R. Love; in pro per.
Ray J. O'Donnell and Frank J. Richter, Cincinnati, Ohio, for appellees.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
PER CURIAM.
1
This case came on to be heard on the record and briefs and argument on behalf of the appellees, appellant not appearing.
2
And it appearing from the undisputed facts of the record that the alleged defamatory statements were published by officials acting within the scope of their authority and in the performance of duties imposed upon then by law, Gibson v. Reynolds, 8 Cir., 172 F.2d 95, 97-99, during an investigation duly authorized in connection with appeal proceedings instituted before a quasijudicial body, namely, the United States Civil Service Commission;
3
It is ordered that the judgment of the District Court be, and it hereby is affirmed for the reasons stated in its findings of fact and conclusions of law filed December 6, 1949. Dodez v. Weygandt, 6 Cir., 173 F.2d 965; Sacks v. Stecker, 2 Cir., 60 F.2d 73: Bleecker v. Drury, 2 Cir., 149 F.2d 770. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3039818/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3053
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Pedro Salgado-Campos, *
*
Defendant - Appellant. *
___________
Submitted: January 9, 2006
Filed: March 31, 2006
___________
Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Pedro Salgado-Campos pled guilty and was convicted of possessing with intent
to distribute between 100 and 1,000 kilograms of marijuana and possession of a
firearm in furtherance of a drug trafficking offense. On appeal he argues that the
district court1 abused its discretion by denying his request to extend the time for filing
pretrial motions. Finding no such abuse, we affirm.
1
The Hon. Joseph F. Bataillon, United States District Judge for the District of
Nebraska.
On November 20, 2003, a federal grand jury indicted Salgado-Campos for
possession with intent to distribute between 100 and 1,000 kilograms of marijuana
in violation of 21 U.S.C. § 841(a)(1) and (b)(1) and with possession of a firearm in
furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). On
December 1, 2003, he appeared with appointed counsel before a magistrate judge and
pled not guilty to both counts. The magistrate set December 22, 2003 as the deadline
for filing pretrial motions.
After the deadline had expired and appointed counsel had filed no pretrial
motions, Salgado-Campos retained private counsel. His newly-retained counsel
entered an appearance on January 25, 2004. Shortly thereafter, on February 4, 2004
counsel filed a motion requesting a continuance, which the magistrate judge granted.
On March 2, 2004, he requested a second continuance, which the magistrate judge
also granted, setting the case for trial on April 12, 2004.
On March 21, 2004, counsel for Salgado-Campos filed a motion requesting an
extension of time in which to file pretrial motions. Counsel cited his recent retention
and his desire to file a motion to suppress certain incriminating evidence as grounds
for the motion. The magistrate judge denied the motion, concluding that Salgado-
Campos had failed to show good cause to justify an extension. Salgado-Campos
appealed the denial to the district court. See Fed. R. Civ. P. 72(a).
At a hearing on the appeal before the district court, counsel argued that an
extension was warranted because by the time he had been retained, had an
opportunity to review the police reports in the case, and realized that there was "a
very serious question" regarding the seizure of the incriminating evidence, the
deadline for filing pretrial motions had already passed. The district court rejected this
argument and affirmed the magistrate judge's order.
2
Shortly thereafter, Salgado-Campos entered into a plea agreement with the
government and pled guilty to both counts of the indictment. The district court
sentenced him to 60 months' imprisonment on each count to run consecutively and
ordered him to pay a special assessment. This appeal followed.
Under Rule 12(c) of the Federal Rules of Criminal Procedure, a court may set
a deadline for the filing of pretrial motions. If a party fails to file a pretrial motion
before that deadline, the party waives that issue. See Fed. R. Crim. P. 12(e).
However, the district court has the discretion to excuse the waiver upon a showing
of good cause for the delay. Id. We will reverse a decision declining to consider an
untimely pretrial motion only for an abuse of that discretion. United States v.
Casares-Cardenas, 14 F.3d 1283, 1285-86 (8th Cir.1994) (citing United States v.
Garrett, 961 F.2d 743, 748 (8th Cir. 1992)).
There is no doubt that the motion to suppress that Salgado-Campos wished to
file was untimely. The deadline for filing pretrial motions was December 22, 2003.
Substitute counsel made his request for an extension of time in which to file pretrial
motions nearly three months after this deadline had expired and nearly two months
after he entered his initial appearance. Thus, under Rule 12(e), he had waived the
suppression issue.
Salgado-Campos's only explanation for this untimeliness is that counsel's
request for an extension came "as soon as he might have been expected to have been
apprised of the substantial issues for suppression in the case." For legal support he
relies upon United States v. Chavez, 902 F.2d 259 (4th Cir. 1990). There, the Fourth
Circuit concluded that the denial of an untimely suppression motion may constitute
an abuse of discretion where the delay was the result of the government's failure to
disclose information pertinent to the motion until after the pretrial motion deadline
had expired. Id. at 262-64.
3
Salgado-Campos's reliance on Chavez is misplaced. Unlike the defendant in
Chavez, Salgado-Campos makes no showing that the government failed to disclose
pertinent information until after the deadline had already passed. Indeed, Salgado-
Campos fails to identify any discovery materials that were not made available to
substitute counsel either at the time he entered his initial appearance or in the months
that followed. In short, unlike the defendant in Chavez, Salgado-Campos fails to
demonstrate that his tardiness was not due to "negligence, oversight, or laziness." See
id. at 263-64.
Because Salgado-Campos fails to show good cause justifying his delay, the
district court was well within its discretion to deny his request for an extension of
time in which to file pretrial motions. See Garrett, 961 F.2d at 748. The judgment
of the district court is affirmed.
______________________________
4 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/412812/ | 697 F.2d 289
Ecclestonv.Henderson
81-2348
UNITED STATES COURT OF APPEALS Second Circuit
4/19/82
E.D.N.Y., 534 F.Supp. 813
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/412660/ | 696 F.2d 1176
30 Fair Empl. Prac. Cas. (BNA) 1177,30 Empl. Prac. Dec. P 33,268Thomas P. BLACKWELL, Jr., Plaintiff-Appellee,v.SUN ELECTRIC CORPORATION, Defendant-Appellant.
No. 81-5517.
United States Court of Appeals,Sixth Circuit.
Argued June 23, 1982.Decided Jan. 10, 1983.
Cecil W. Laws, Gillenwater & Laws, Samuel W. Rutherford, Bristol, Tenn., Jeffrey K. Ross (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellant.
David S. Haynes (argued), Bristol, Tenn., for plaintiff-appellee.
Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
KEITH, Circuit Judge.
1
This appeal raises the question of whether the district court's jury instructions setting forth the applicable law under the Age Discrimination in Employment Act. ("ADEA") 29 U.S.C. Secs. 621 et seq., (1967)1 were misleading or improper. Because we find that the charge to the jury, taken as a whole, accurately stated the controlling law, we affirm the judgment of District Judge Robert Taylor.
I.
2
In 1975 Sun Electric Corporation ("Sun") hired plaintiff-appellee Thomas P. Blackwell ("Plaintiff") as a sales representative in its Memphis, Tennessee, regional office. His responsibilities included selling and instructing customers on the use of electronic diagnosis equipment used to test automotive vehicles.
3
During his three-year tenure at the Memphis office, Plaintiff was in the top 15% of Sun's national salesmen, and twice received a sales award for "being in the top $100,000 sales volume." In August 1978, Plaintiff voluntarily took a leave of absence from Sun. In January 1979 he returned and was transferred to the Knoxville, Tennessee regional office.
4
In November 1979 Mike Eberhardt became regional manager for Sun's Knoxville office. In February, 1980, he warned Plaintiff that he would have to increase his sales. Between March and July 1980 plaintiff did improve his monthly gross sales volume. But on July 3, 1980, Eberhardt discharged Plaintiff, allegedly for his failure to meet the minimum net sales volume for his sales territory. According to Eberhardt, Plaintiff's net sales were far below the $8,000 monthly net sales needed to offset Sun's expenses in the territory.2
5
However, Plaintiff maintained that Eberhardt fired him because of his age. He cited the fact that other older workers had also been fired, and that Eberhardt seemed to spend a lot of time socializing with the younger employees. He cited a comment made by Eberhardt to one of the other older employees, "Your get up and go has got up and gone." Finally, he noted that Eberhardt expanded the sales territory for the plaintiff's successor while refusing to expand the territory when the plaintiff asked him to do so.
6
On February 21, 1981, Plaintiff filed suit in the United States District Court for the Eastern District of Tennessee. He alleged that Sun had discharged him because he was sixty-four years old, in contravention of the ADEA. On June 11, 1981 the case was tried before a jury. The jury rendered a general verdict, finding Sun liable for age discrimination and awarding Plaintiff fifty-thousand dollars ($50,000) in damages. Sun appeals.
II.
7
Sun argues that the district court erred by not instructing the jury on the essential elements of a prima facie case in an age discrimination suit. Specifically, Sun maintains that the jury should have been instructed that its proffered reason for Plaintiff's discharge was sufficient to dispel any inference of discrimination unless they found the reason to be a mere pretext. We disagree.
8
In the seminal case of Laugesen v. Anaconda, 510 F.2d 307, 312 (6th Cir.1975), we stated: "While it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v. Green [411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) ]3 can be applied in age discrimination jury cases, we believe it would be inappropriate to simply borrow and apply them automatically." The Laugesen court concluded that the strict evidentiary approach used in racial discrimination cases should not be blindly applied in an age discrimination case. See Laugesen, 510 F.2d at 312-13 n. 4. The court reasoned that while racial discrimination is most often based upon a desire to disadvantage a particular racial minority, employment decisions involving age may reflect the result of the universal progression of aging. The ADEA was designed to protect the older worker from arbitrary classifications on the basis of age, not to restrict the employer's right to make bona fide business decisions. Thus, in order to avoid interfering with legitimate business decisions, we opted for a case-by-case approach.
9
In subsequent cases, we have continued to eschew a rigid application of the McDonnell Douglas formula. In fact, in Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.1980), an employee was terminated during an economic cutback and a younger person was retained in a position the plaintiff was capable of performing and willing to relocate to perform. Nevertheless, the court held that the plaintiff had failed to establish a prima facie case of age discrimination. In Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982), the court reaffirmed the case-by-case approach. Judge Phillips, speaking for the Court, noted:
10
A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant. In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists.
11
Id. at 70. See also Locke v. Commercial Union Insurance, 676 F.2d 205 (6th Cir.1982).
12
The defendant relies upon opinions from several circuit courts which follow the McDonnell Douglas guidelines and order of proof in age discrimination cases. We interpret those opinions as allowing the use of the McDonnell Douglas guidelines, but not making them the exclusive criteria for establishing a prima facie case. Indeed, in several of those cases, the courts expressly disavowed any intent to preclude other methods of proving unlawful age discrimination. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1018 (1st Cir.1979); Stanojev v. Ebasco Services, 643 F.2d 914, 920-22 (2d Cir.1981); Hedrick v. Hercules, 658 F.2d 1088, 1093 (5th Cir.1981). To the extent the cases cited by the defendant permit the McDonnell Douglas guidelines to be used to prove age discrimination, they are in full accord with the case-by-case approach of this court. We hold that it was not error for the court to refuse to instruct the jury on the prima facie elements of a discrimination case as set forth in McDonnell Douglas.4 Moreover, we hold that the record reflects that the plaintiff introduced enough evidence to present a prima facie case of age discrimination.
13
The ultimate issue in this age discrimination suit is whether age was a determining factor in the employer's decision to fire the plaintiff. Ackerman, 670 F.2d at 70. Laugesen, 510 F.2d at 317. The plaintiff can establish a prima facie case of age discrimination by using the McDonnell Douglas criteria. The plaintiff can also establish a prima facie case using statistical information, direct evidence of discrimination, and circumstantial evidence other than that which is used in the McDonnell Douglas criteria. See Stanojev v. Ebasco Services, 643 F.2d at 920-21. Once a prima facie case is established through either of these methods, the burden shifts to the employer to produce a legitimate non-discriminatory reason for his decision. The ultimate burden of proving discrimination also remains with the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
14
The district court's charge adequately instructed the jury on the respective burdens and requisite elements of a prima facie case of age discrimination. Though the court did not adopt the language of McDonnell Douglas as modified for age discrimination cases, it simply and directly stated the issue for the jury. We agree with the First Circuit's reasoning in Loeb v. Textron:
15
The court should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues; rather it should use its best judgment as to the proper organization of the evidence and the charge. In cases of this type, the best jury instruction may simply be one that emphasizes that plaintiff must prove by a preponderance of the evidence that he was discharged because of his age--with adequate explanation of the meaning of the age statute, the determinative role age must have played, etc.
16
600 F.2d at 1018. The district court's instructions included all of the relevant factors and provided sufficient guidance to the jury from which it could make an informed decision on the controlling issue.5
17
We also disagree with defendant's assertion that the plaintiff failed to establish a prima facie case. Even if we were to strictly apply the McDonnell Douglas criteria, Plaintiff provided evidence that 1) he was a member of the protected class, 2) he was discharged, 3) he was qualified for the job, and 4) he was replaced by a younger worker outside the protected class.6 We do not agree that the plaintiff failed to prove that he was qualified for the job. He had performed the job satisfactorily for several years. Moreover, if we were to hold that a plaintiff's prima facie case fails if his qualifications are challenged by the defendant, we would effectively preclude age discrimination suits of this kind. Then, a defendant would always be able to challenge the plaintiff's qualifications for the job, and the issue would be taken away from the jury. But it is the defendant's burden to produce enough evidence to convince the trier of fact that the plaintiff was fired because he was incapable of performing his job. The plaintiff in this case certainly presented enough evidence to raise an inference of age discrimination until such inference was dispelled by an explanation from the defendant.
18
Even if the plaintiff had not met the McDonnell Douglas criteria, we would still hold that he had presented a prima facie case. There was conflicting testimony as to why Eberhardt refused to expand the territory for the plaintiff, and yet expanded the territory for the younger salesman who replaced him. One of the witnesses testified that Eberhardt had stated to him that he could always find a reason for firing somebody. There was evidence that Eberhardt, the young supervisor, "buddied with" younger salesmen. There was also disputed testimony regarding the reasons for the discharge of several other older salesmen. Certainly the combination of these factors was sufficient to raise an inference of discrimination, and thus require the defendant to explain its actions.
III.
19
The defendant further contends that the district court erred because it failed to instruct the jury that the ADEA was violated only if age was a determining factor in the defendant's decision to discharge Plaintiff. We disagree that the jury instructions on this issue constituted reversible error.
20
It is well settled that age must be a "determining factor" in an employment decision in order to impose liability upon the employer. In Laugesen, this Court articulated guidelines for instructing a jury in an ADEA case. The Court stated:
21
However expressed, we believe it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge him, and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged.
22
Id. at 317. See also Ackerman at 70 ("... ultimate issue is whether age was a factor in a decision of an employer to terminate an ADEA claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged."); Sahadi at 1117 ("... age would not have to be the sole reason, but only a contributing factor in connection with the discharge.").
23
In evaluating the adequacy of jury instructions, they must be taken as a whole. Haislah v. Walton, 676 F.2d 208, 212 (6th Cir.1982); Laugesen, 510 F.2d at 315; Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir.), cert. denied 389 U.S. 1014, 88 S. Ct. 589, 19 L. Ed. 2d 659 (1967). Thus, the defendant cannot complain about the specific wording of the instructions if they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its determination. The district court's instructions in this case performed these functions.7
24
We are fully aware that at certain points in the instructions the district court was less than precise when it tried to use language the jurors could understand. The better practice would have been to use the "determining factor" language rather than the "entered into" language used several times over the course of the trial.8 Despite the imprecision of the district court's language, we find the instructions more than adequate when viewed in their entirety.
25
The instructions state that the plaintiff has the ultimate burden of proving discrimination. They also correctly inform the jury that though there may be more than one reason for the employer's decision, the jury must decide whether at least one of the reasons was the plaintiff's age. Moreover, they charge the jury that if there were bona fide business or economic reasons for the discharge, and age was not a factor, then the employer is not liable to the plaintiff. Thus all of the factors set forth in the guidelines in Laugesen are present.
26
The Second Circuit recently addressed a similar issue in an age discrimination case. In Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied 451 U.S. 945, 101 S. Ct. 2028, 68 L. Ed. 2d 332 (1981), the court upheld a jury verdict for the plaintiff even though the district court refused to amend a special interrogatory which asked whether a scheme which was discriminatory on its face was "one reason" for the plaintiff's discharge. The defendant requested that the interrogatory be amended to read "one reason that made a difference." In upholding the refusal to amend, the circuit court opined that if the interrogatory had been the only guidance given to the jury, the defendants might have been entitled to a new trial since age can be one reason but not a determinative reason for discharge. But once the interrogatory was viewed in the context of other instructions, its meaning became clear.
27
Similarly, the district court's instructions in this case adequately apprised the jury of its task. The court's reference to "a factor", when viewed beside the court's other instructions, obviously refers to "a factor in the termination of the plaintiff." The court instructs the jury several times that it must find that the plaintiff would not have been discharged except for his age.
28
Sun contends that the court's response to counsel's exception to the jury instructions betrays a misunderstanding of the law.9 We disagree. The court's response reflected no more than a misunderstanding of counsel's request. We note that the instruction, even as characterized by defendant's counsel, is accurate. As stated earlier, it is not reversible error if the court refuses to use the exact language counsel requests.
IV.
A.
29
The district court charged the jury that the defendant was guilty of willful discrimination if it fired the plaintiff because of his age and knew or had reason to know that its actions were governed by the Act.10 The defendant challenges this instruction as unsupported by the Act and opinions from other courts of appeals. We note that this is an issue of first impression for this court.
30
The ADEA provides that liquidated damages are payable only in cases of willful violations of the Act. 29 U.S.C. Sec. 626(b).11 The Act itself provides no definition or guidance as to how the term "willful" is to be defined. The courts of appeals have adopted various approaches for distinguishing cases in which violations of the Act will support liquidated damages from those that will not.
31
In Loeb v. Textron, 600 F.2d at 1020 n. 27, the court appeared to adopt the position that "an act is done willfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids." The Third Circuit rejected the specific intent standard of Loeb in Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir.1980). The Wehr court concluded that Congress did not intend to restrict liquidated damages to those cases in which the defendant consciously violated the Act. It held:
32
It is sufficient to prove that the company discharged the employee because of age and that the discharge was voluntary and not accidental, mistaken, or inadvertent. In our view, it would also be sufficient to prove that the discharge was precipitated in reckless disregard of consequences.
33
Id. Cf. Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981).
34
The Ninth Circuit has indicated agreement with the Third Circuit's holding that a finding of recklessness will support liquidated damages. In Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981), the court held that the ADEA does not require a specific intent to violate the Act or require that an employer have "knowledge of implications under the Act." It reasoned that to allow an employer to avoid liability because he lacked an intimate familiarity with the Act could frustrate the congressional purpose. It would have "the anomalous effect of encouraging employers to know as little as possible about the ADEA so they would not be liable for liquidated damages." Id. at 980.
35
In Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d 149 (7th Cir.1981), the Seventh Circuit held that the plaintiff must prove that the defendant's actions were knowing and voluntary, and that he knew or reasonably should have known that those actions were violative of the ADEA. Id. at 156. The Syvock court explained that this standard implied: "(1) that the employer knew or reasonably should have known what the requirements of the ADEA are; and (2) that the employer knew or reasonably should have known that his actions towards the plaintiff were inconsistent with those requirements." Id.
36
It appears that Congress, in adopting the liquidated damages provision, sought to distinguish cases in which there is intentional discrimination from those where the employer's discrimination is not intentional. This interpretation is buttressed by the fact that Congress evidently intended that a plaintiff be able to prove age discrimination without proving intent to discriminate. Thus, the plaintiff must meet a higher burden of proof in order to receive liquidated damages. See Kelly, 640 F.2d at 980; Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d at 154.
37
However, every showing of intentional discrimination does not entitle the plaintiff to liquidated damages. The fact that Congress did not incorporate the liquidated damages provisions of the Fair Labor Standards Act (FLSA) into the ADEA evinces a congressional intent to make a meaningful distinction between willful violations of the Act and violations that are not willful. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S. Ct. 866, 870, 55 L. Ed. 2d 40 (1978). See also Goodman v. Heublein, 645 F.2d at 129 n. 2.
38
We hold that in order to show willfulness, an ADEA plaintiff must show that the employer's actions were voluntary and intentional. The employer is not necessarily shielded from liability because he is unaware of the "implications of his actions under the Act." Alternatively, the plaintiff may receive liquidated damages if he shows that the employer was reckless in not knowing that his actions were governed by the ADEA or that the employer acted in reckless disregard of whether his actions were covered by the ADEA.12
39
We also agree with the Third Circuit's holding in Wehr that it is not necessary for the plaintiff to show that the employer acted with a specific intent to violate the Act. Wehr, 619 F.2d at 279 n. 5. See also Kelly at 980. Moreover, though a finding of good faith would preclude a finding of willfulness, it is not necessary that the trier of fact make express findings of fact on the good faith issue. Loeb, 600 F.2d at 1020; Wehr, 619 F.2d at 279 n. 5. Rather, in a jury trial the court's instructions to the jury should focus on whether the employer deliberately, intentionally and knowingly discharged the employee because of his age.
B.
40
We now consider the jury instructions on the willfulness issue in light of the foregoing principles. Viewing the instructions as a whole, see supra, we hold that the district court adequately formulated the relevant considerations for the jury. Though our Court had not yet spoken on the issue of willfulness, we think the district court's instructions accurately focused the question for the jury: whether the employer had acted deliberately, intentionally and knowingly in firing the plaintiff because of his age.
41
In the context of this case, we read the court's "in the picture" language to describe a threshold situation in which an employer discriminates against an employee because of age without knowledge that any specific provision of the ADEA is applicable. Furthermore, we think that the court's instructions do not preclude a consideration of the defendant's good faith. Rather, they correctly state that the good faith belief of the employer in the legality of his actions does not necessarily shield him from liability for liquidated damages. The court's imprecision in expressing some of these points does not fatally undermine their essential accuracy. Hence, we find no reversible error.
C.
42
Finally, Sun challenges the jury's damage award of $50,000. Sun argues that there is no showing on the record to support such a damage assessment. We agree.
43
Plaintiff earned approximately $8,600 in the six months preceding his discharge. After his discharge, the territory was expanded and Sun introduced a greater discount policy in order to attract customers. Plaintiff testified that he could have earned two to three times as much in the expanded territory. This testimony is too speculative to support a damage award. However, there is nothing in the record which indicates that the plaintiff would have been compensated at a lower rate than in the preceding six months. Eleven months passed between the time of the plaintiff's discharge and the date of trial. Thus, Plaintiff is entitled to approximately $15,770 as lost wages.
44
The record supports a finding of willfulness, and the post-trial hearing indicated that the district court and the attorneys for both parties thought that the jury had made such a finding.13 Since we have upheld the district court's instructions on the willfulness issue, we think the plaintiff is entitled to an amount equal to his lost wages as liquidated damages.14
45
The ADEA allows the court to grant equitable remedies to persons aggrieved by a violation of its provisions. Plaintiff contends that under Sec. 626(b) he is entitled to $6,000 in pension benefits which have been posted to his pension plan and $715 in health benefits which he would have received in the eleven months after his discharge. We agree that Plaintiff is entitled to the health benefits, but he is not entitled to any pension benefits.
46
At the time of Plaintiff's discharge, he had no vested rights in the pension benefits. No such rights would have vested until he had worked for the company for five more years. Moreover, all of the funds in the plan were invested by Sun. Plaintiff would have received no pension benefits or vested rights in pension benefits in the eleven months after his discharge. It would be too speculative to grant benefits that would not vest until such a distant time in the future.15
47
However, Plaintiff is entitled to the health benefits he would have received in the eleven months between his discharge and the trial. He has shown that he would have received $715 in health insurance if Sun had not illegally discharged him. He also is entitled to recover $400 for the equipment that he returned to the company when he left. He presented evidence that the company almost always reimbursed an employee for such equipment when the employee returned it when leaving the company.
48
There is no other proof of damages on the record. Thus we see no basis for the jury's award of $50,000. Rather, Plaintiff is entitled to his lost wages for the eleven months between his discharge and trial, an equal amount as liquidated damages, health benefits for eleven months, and reimbursement for equipment returned to Sun when he left. Therefore, the damage award should be reduced to $32,655.
49
Accordingly, we remand this case to the district court for entry of judgment consistent with this opinion.
50
KRUPANSKY, Circuit Judge, dissenting.
51
This is an appeal from a jury verdict of $50,000 returned in favor of appellant Thomas Blackwell (Blackwell) after a six-hour trial on a charge that he was discharged from his employment by Sun Electric Corp. (Sun) in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. Because the jury instructions below were misleading and confusing on the basic issues defining an actionable ADEA claim, and the term "willful", as applied in an ADEA claim to support liquidated damages, I must respectfully dissent.
52
* The operative facts of the underlying suit are not complex. In 1975, Blackwell was hired by Sun, an automotive electronic parts supplier, as a sales representative in Memphis. Blackwell was 59 years old and his insurance business had recently failed. His job required that he travel in a sales "zone" contacting potential customers and holding "schools" to teach garage owners and service mechanics how to use Sun equipment. Moreover, each zone had a minimum net sales quota.
53
In 1979, Blackwell and Sun agreed to a transfer in which Blackwell relocated in a zone in the Knoxville region which was more geographically compact but incorporated a greater number of potential customers. The regional manager in Knoxville, Blackwell's immediate superior, set a quota of $8,000 per month as the "break even" figure for each salesman in the zone. Despite conflicting testimony as to the interpretation placed upon this language by Sun and Blackwell, i.e. gross or net sales, it is clearly established that Blackwell was advised in writing in February, 1980 to "correct [his] low sales volume". It is further established that at the time Blackwell was terminated on July 3, 1980 at age 64 his sales had increased but remained below the quota when computed on a net basis.
54
There was additional evidence presented to the jury that two other salesmen over age 50 had been discharged at approximately the same time as Blackwell and replaced by younger men. The company presented testimony in rebuttal that the other terminated salesmen had violated a policy against switching new and used equipment or had alcohol problems.
55
The evidence which allegedly supported the $50,000 damage award, which will be more thoroughly related infra, essentially consisted of a projection of Blackwell's prior average monthly earnings to the date of trial ($10,083); the plaintiff's unsupported conjecture that he could have fully tripled or doubled this figure in the reconstructed sales area assigned to his replacement ($26,166); and the wholly fantastic assertion by plaintiff's counsel that the jury, without receiving an instruction, thereupon doubled the damage award in conformity with the statute. The only foundation for an award of $50,000 is that Blackwell demanded $50,000 in his complaint and that demand was repeated to the jury by the court in the closing portion of the charge.
II.
56
The most thoroughly contested issue on appeal is that which addresses the elements of an actionable violation of the ADEA. The issue may be suitably bifurcated into separate, though related, areas of inquiry concerning the components of a prima facie case, and the causal weight to be attributed to an employer's consideration of age where other, non-discriminatory, factors are also present ("mixed motive analysis"). These subjects are here discussed sequentially.
A.
57
While nine other circuits have concluded that the standards for a prima facie Title VII action promulgated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) are applicable to ADEA actions, see Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Stanojev v. Ebasco Services, Inc., 643 F.2d 914 (2d Cir.1981); Smithers v. Bailar, 629 F.2d 892 (3rd Cir.1980); Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.1980); Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir.1979); Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 (1981); Cova v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir.1978); Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir.1981); Kentroti v. Frontier Airlines, Inc., 585 F.2d 967 (10th Cir.1978), this Circuit has declined to "borrow and apply * * * automatically," the prima facie case guidelines of McDonnell Douglas to ADEA suits. Laugesen v. Anaconda Co., 510 F.2d 307, 312 (6th Cir.1975). Instead, this Court has stated a preference for asserting the sufficiency of an ADEA plaintiff's claim "on a case-by-case basis, rather than adopting formalistic approaches * * *." Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 n. 3 (6th Cir.1980) (per curiam ). As noted by the Court in Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir.1982):
58
A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant. In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists.
59
The result of this approach has given rise to conclusions such as that offered recently by Judge Jones in Locke v. Commercial Union Ins. Co., 676 F.2d 205 (6th Cir.1982) (per curiam) Jones, dissenting:
60
This Circuit has not articulated what a plaintiff must prove to establish a prima facie case that his discharge violated the ADEA.
61
What can be stated with certainty is that a prima facie ADEA claim must contain more than the plaintiff's mere conclusion that he was terminated because of his age. The Locke, supra majority formulated the principle as follows:
62
The plaintiff did nothing more than state his conclusion that he was terminated because of his age. To permit this single statement to constitute a prima facie case would place on employers a burden which Congress never intended. There is no automatic presumption that every termination of an employee between the ages of 40 and 70 results in a violation of the Age Discrimination in Employment Act. Yet to permit a plaintiff to shift the burden to the defendant of justifying a termination on such a conclusory statement would have this effect. See Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 (6th Cir.1980); Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982).
63
676 F.2d at 206. Further, this Court has concluded that a prima facie case is not established when a plaintiff simply proves that he is a member of the 40 to 70 age group protected by the ADEA, that he was discharged, and that he was replaced by a younger person. Such a fact situation ignores the reality that "discharged workers will more often than not be replaced by those younger than they". Sahadi v. Reynolds Chemical, supra at 1118.
64
In fact, a careful reading of Sixth Circuit authority discloses a basic framework for ADEA analysis. The Laugesen court propounded this rubric:
65
[The] burden [is] initially upon the plaintiff to prove his claim that he was discharged because of his age. Absent an admission by the defendant or a state of facts so clear that no reasonable person would disagree, the issue remain[s] one for the jury and the burden of proof remain[s] with the plaintiff.
66
* * * This is not a case in which the defense admits the discrimination but seeks to justify it as a bona fide occupational disqualification necessary to the normal operation of business.
67
510 F.2d at 313 (emphasis added).
68
Stated differently, the burden of proof remains with the plaintiff until discrimination "because of" age is shown or conceded, and only then must the employer prove that its action was otherwise necessary as a bona fide occupational qualification apart from age. See also Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir., 1982). Indeed, it is settled that the ADEA "was not intended for judicial review of business decisions." Kephart v. Institute of Gas Technology, supra, quoted in Ackerman, supra at 70. Accordingly, at a minimum, a prima facie ADEA case in this Circuit requires a plaintiff to prove that the action complained of was taken "because of" his age, and an employer is under no burden to prove the soundness of its decision ab initio.
B.
69
It is at this juncture that the second prong of the discussion on the elements of an actionable ADEA claim becomes relevant. Accordingly, it is essential that a jury be instructed as to the manner by which a plaintiff must meet the burden of proving that an action was taken "because of" a plaintiff's age. Once again, the genesis of this Circuit's analysis is Laugesen, supra:
70
However expressed, we believe that it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge [the plaintiff] and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged. * * * It is because the instructions did not convey this necessary concept of the law to the jury that we are compelled to reverse and remand for a new trial.
71
510 F.2d at 317 (emphasis added). Accord, Ackerman, supra at 70.
72
This standard clearly involves two steps: first, the plaintiff must prove that one factor in the decision to terminate employment actually was the claimant's age; and two, that "the age of the claimant made a difference in determining whether he was to be retained or discharged." Ackerman, 670 F.2d at 70.
73
The Second Circuit, which approved the "factor that made a difference" test of Laugesen, in Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir.1980), has recently noted that it could not approve "an instruction that stated only that the jury must find age to be a 'determining factor' without clarifying that term." Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 12 (2d Cir.1981). The Bentley court suggested that the jury be told "a plaintiff must prove that age was 'a determining factor' in his discharge in the sense that 'but for' his employer's motive to discriminate against him, he would not have been discharged." Id. quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979).
74
Wherefore, the case authority of this Circuit seems to mandate that a trial judge instruct an ADEA jury on at least three essential points: first, that the plaintiff has the burden of proving that regardless of the soundness of the employer's stated reasons for discharge, the actual reason was the claimant's age; second, that the burden is met when the plaintiff establishes that one factor in the decision was the claimant's age, and further that the age factor "made a difference", and third, that the age of the claimant made a difference if, when taken together with even compelling non-discriminatory reasons, the plaintiff would not have been discharged "but for" his age.
III
75
In the case at bar, the trial court's instructions appear to reflect the confusion engendered by this Circuit's "case-by-case" approach to the ADEA. Portions of the brief (10-page) charge track Laugesen closely; immediately contiguous passages appear contradictory. At the commencement of voir dire, the district judge stated the case thusly:
76
THE COURT: This suit is by Thomas P. Blackwell, Jr., who is the plaintiff, and the Sun Electric Corporation, who is the defendant.
77
Mr. Blackwell says that his employer, Sun Electric Corporation, terminated his services because of his age.
78
Now, the defendant denies that.
79
If age entered into the termination, then, plaintiff would be entitled to recover. But, if the defendant terminated his services because of his--for business reasons or for other legitimate reasons, the defendant would not be liable. (Emphasis added).
80
At the conclusion of the case, the jury was formally charged, in relevant part, as follows:
81
The plaintiff in this case has the burden of showing by a preponderance of the evidence that the defendant discharged him because of his age. The defendant contends that it discharged him because of bona fide business or economic reasons unconnected with age.
82
In this connection, the Court charges you that plaintiff need not show that age was the sole or exclusive factor in the defendant's discharge of plaintiff. There could be more than one factor in the decision to discharge plaintiff. The plaintiff is nevertheless entitled to recover if one such factor was his age, and if that factor made a difference in determining whether the plaintiff was discharged. The ultimate question is not whether the defendant's decision to discharge plaintiff reflected an accurate or wise judgment of the plaintiff's abilities. The question is whether the decision was unlawfully motivated by the factor of his age.
83
If you find that the defendant's discharge of plaintiff was for the reasons asserted by it, then, you must find in favor of the defendant.
84
On the other hand, if you find by a preponderance of the evidence that plaintiff's age made a difference in defendant's decision to discharge plaintiff, then the defendant would be liable to the plaintiff, and you must proceed to determine the damages due him.
85
Now, in this case, as previously indicated, the burden of proof is upon the plaintiff. Before the plaintiff can recover, plaintiff must show that age entered into the determination. If age entered into the termination of his employment, then, there would be liability. On the other hand, if age did not enter into the decision of the defendant to terminate his employment, there could be no liability.
86
As previously noted, Sun immediately objected to the district court's frequent instruction that ADEA liability may be premised simply upon a finding that Blackwell's age somehow "entered into" Sun's decision. The employer requested that the jury be instructed that age must do more than "enter into" the decision; it must be the factor that, "but for" its presence, the discharge would not have occurred. The trial judge professed not to understand the meaning of Sun's proposed language and told counsel that age need only be "a consideration". (Emphasis added).
87
Recognizing that an appellate court is required to "judge the charge as a whole and to affirm the jury verdict if, taken as a whole, [the charge] fairly presents the law as it applies to the case at hand." Haislah v. Walton, et al., 676 F.2d 208 (6th Cir.1982), the charge presently on review confuses and misstates the law as to the principal issue of the case.
88
Specifically, the jury was repeatedly told that Blackwell could recover if age "entered into" Sun's decision; a test which is obviously not extracted from the language of the controlling authorities. Standing alone, as it does at the commencement of voir dire and at the conclusion of the relevant section of the charge, the trial court's formulation of the law leaves the clear impression that it is sufficient for liability to attach if age was one otherwise insignificant factor without further requiring, pursuant to Laugesen, that the age factor be found to have "made a difference" in the decision of termination. The casual approach of the trial court could result in finding ADEA violations any time an employer considering a potential discharge simply became aware of the employee's age, for then age would have surely "entered into" the decision process.
89
Accordingly, the district court's jury charge should be deemed insufficient and improper as a matter of law, and the case be retried.
IV
90
The second issue joined on appeal is the propriety of the trial court's charge concerning "willful" violations of the ADEA, for which the Act provides that liquidated damages, in addition to back pay and benefits, may be awarded. 29 U.S.C. Sec. 626(b); Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). The district court, as heretofore noted, instructed the jury on the meaning of the word "willful" in pertinent part as follows:
91
[T]he Court charges you that an employer acts willfully if he knows or has reason to know that his acts are governed by the Act. * * *
92
Neither a good faith belief in the lawfulness of his actions, nor ignorance of their illegality, shields the employer if he violates the Act. The test is, did the employer know the Act was in the picture? (Emphasis added).
93
This Circuit has not promulgated a definition of "willfulness" specifically applicable to the ADEA. The limited case authority on point is divergent. One approach has been to define "willful" as requiring a specific intent to violate the Act. Such an approach is clearly developed by the First Circuit in Loeb, supra.
94
"An act is done 'wilfully' if done voluntarily and intentionally, and with the specific intent to do something the law forbids: that is to say, with bad purpose either to disobey or to disregard the law." E. Devitt & C. Blackmar. Federal Jury Practice and Instructions Sec. 14.06 at 384 (3d ed. 1977).
95
600 F.2d at 1020, n. 27. See also Coates v. National Cash Register Co., 433 F. Supp. 655 (D.W.Va.1977); Hodgson v. Hyatt, 318 F. Supp. 390 (N.D.Fla.1970).
96
A majority of circuits considering the issue have concurred with Loeb insofar as it requires that the employer's act be intentional and knowing. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir.1981); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980). However, the Second and Third Circuits have added that willfulness could be established by merely "reckless" conduct. 645 F.2d at 131; 619 F.2d at 283. Further, the Ninth Circuit has concluded that both the "specific intent" and "reckless" additions to the basic knowing and intentional standard are improper. 640 F.2d at 980.
97
The Seventh Circuit in Syvock, supra, appears to have harmonized this group of cases and synthesized the following test as the product of this line of authority:
98
The standard for willfulness therefore should focus on the defendant's state of mind at the time the allegedly discriminatory acts occurred. It must distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious. This distinction is just as necessary in disparate treatment cases as it is when the plaintiff sues on a discriminatory impact theory. We think that a finding of willfulness should lie only if there is some showing as to the defendant's knowledge of the illegality of his actions. We hold that, in order to prove willfulness under 29 U.S.C. Sec. 626(b) (1976), a plaintiff must show the defendant's actions were knowing and voluntary and that he knew or reasonably should have known that those actions violated the ADEA.
99
655 F.2d at 155-156.
100
In this regard, the Syvock test, which emphasizes the defendant's "consciousness of the illegality of his action", and Loeb, which actually requires "specific intent", are not in conflict. Indeed, it appears obvious that one who voluntarily commits an act while conscious of its illegality has "acted with the specific intent to do something that the law forbids". Under either Syvock or Loeb, the purpose of defining willfulness for the jury is to illuminate Congress' clear intent to "distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious." Syvock, supra at 155. Plainly, the charge on review requires the jury to disregard evidence of "good faith" or "ignorance" which, under appropriate circumstances, may well result in a finding that, while a violation has occurred, it was not willful and accordingly could not support the added penalty of liquidated damages. The instruction in the matter at bar requires the jury to disregard the distinction between a good faith conclusion that the Act is inapplicable and a specific intent to act in disregard of the law.
101
Moreover, as is frequently the case throughout these proceedings, the trial judge has allowed himself to employ colloquial phrases to define the fundamental issues of the law. Subjecting the defendant to excess damages permitted only in instances of a specific finding of "willful" discrimination, upon the charge that the jury should determine if "the employer [knew] the Act was in the picture", is at best vague and of little real value to the factfinder, and at worst destructive of Congress' specific choice of a legal "term of art" with certain precise and well-understood consequences.
102
For all the above-stated reasons, the instruction below defining the term "willful" violations is fatally flawed and cannot support a verdict. This Circuit should further clearly formulate the definition of "willful" conduct applicable to the ADEA as that delineated by the Seventh Circuit in Syvock.
V
103
Sun further contests the award of $50,000 in damages to Blackwell as being in excess of that permitted under the ADEA.
104
Under the ADEA, a successful litigant may be awarded back pay and benefits from the date of discharge to the date of trial, reinstatement, attorney fees and costs. Where a willful violation is found, an ADEA claimant may also receive liquidated damages in the amount "equal to the pecuniary loss [to] compensate the aggrieved party for non-pecuniary losses". U.S.Code Cong. and Admin.News (1978) p. 535. As was noted in the landmark ADEA case of Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 340-41 (3rd Cir.1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978):
105
Congress saw fit to restrict the penalty provisions of the Act to doubling the amount of lost earnings. To allow psychic distress awards in addition would in very real sense thwart the limitation Congress thought advisable to impose.
106
* * *
107
* * *
108
The Act provides for determination of the amount of damages by an objective test--the amount of lost earnings. While the exact computation may be the subject of disagreement, that type of dispute is familiar to administrative proceedings and generally not difficult to resolve.
109
Accord: Naton v. Bank of California, 649 F.2d 691 (9th Cir.1981); Walker v. Pettit Construction Co., 605 F.2d 128 (4th Cir.1979); Vasquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir.1978); Dean v. American Security Insurance Co., 559 F.2d 1036 (5th Cir.1977), cert. denied, 434 U.S. 1066, 98 S. Ct. 1243, 55 L. Ed. 2d 767 (1978).
110
In the case at bar, Blackwell's complaint requested "$50,000 compensatory damages, treble and attorney's fees". Plaintiff did not pray for reinstatement. The $50,000 figure was read to the jury at the close of the charge; the jury found damages of that amount; which were thereupon awarded. By its motion for a new trial, Sun argued that no legal or evidentiary foundation was laid for such an award.
111
The record of the hearing on the question of damages reveals clearly impermissible "bootstrapping" by the plaintiff and apparent unfamiliarity by the judge with the basic law that liquidated damages are to be calculated as an amount equal to the amount of actual lost earnings, thus having the effect of "doubling the amount of lost earnings". Rogers v. Exxon Research & Engineering Corp., supra. In relevant part, the record reads as follows:
112
PLAINTIFF'S ATTORNEY HAYNES: Now, there is substantial evidence that my client did earn for six months next preceding the firing at least enough so that if you projected it for the nine months just before leading up to the date of trial it would have been a total of $10,083.00.
113
There was substantial evidence from men who knew the territory. And you will recall that the company expanded the territory for the young employee that they put in my man's place.
114
And there was evidence he could have tripled and at least doubled his commissions had they expanded that territory for my client.
115
Now, if, in fact, you project his 11 months loss of commissions that he actually earned projected for the 11 months, and if you believe that he could have doubled those, then, that gets him well up to twenty-six-thousand--$26,166.00.
116
Now, he lost his pension rights of $6,000.00. There is substantial evidence in the record that he lost that. That gets him to $26,166.00. And therefore, either in lieu of reinstating him or by reason of the willfulness, that actual loss is doubled, that is $52,320.00. And it becomes apparent I didn't sue for enough.
117
THE COURT: Where did you get the double part?
118
MR. HAYNES: Where there is a finding of willfulness there can, under the case law to compensate as liquidated damages the pecuniary loss can be doubled.
119
THE COURT: Who said that except Haynes?
120
MR. HAYNES: Oh, Your Honor, the cases construing this Age Discrimination Law have said that. And in certain instances additional equal amount in liquidated damages. That is the same as doubling.
121
(Emphasis added).
122
Essentially in this post-trial rationalization, plaintiff attempted to (1) compute the average monthly income of Blackwell for the six months prior to his termination and arrive at a "lost earnings" figure for the year between termination and trial of $10,083; (2) calculate such actual lost earnings and then double that amount on plaintiff's mere conjecture at trial that he could have so increased his volume in the new sales territory covered by his replacement; (3) thereafter increase the award by adding $6,000 in unvested pension funds and (4) conclude that the jury, without ever being so instructed, thereupon doubled that artfully accumulated figure to arrive at $50,000.
123
This Court has long recognized that the purpose of a back pay award in employment matters is "to restore the employee to the status quo he would have enjoyed if the discriminatory discharge had not taken place". NLRB v. McCann Steel Co., 570 F.2d 652, 656 (6th Cir.1978). Back pay must be limited to actual damages and proved with reasonable certainty. EEOC v. Detroit Edison Co., 515 F.2d 301, 314-316 (6th Cir.1975). Although the factfinder has the discretion to ascertain damages in cases where certain elements of damages are not susceptible of precise calculation, such discretion must be exercised "reasonably and within the range of proofs in the case". Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 366 (6th Cir.1978). The rule is that once the existence of damage is shown with reasonable certainty, difficulty in calculating the amount with mathematical precision will not defeat recovery. Perma Research and Development v. Singer Co., 542 F.2d 111 (2d Cir.), cert. denied, 429 U.S. 987, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976).
124
In the case at bar, the jury received absolutely no instruction as to this rule. Further, the only evidence of a potential "doubling" in Blackwell's income during the period between termination and trial was his own speculation about his sales ability in a new area. This is clearly contrary to a finding of "certain" damage. See Loubrido v. Hull Dobbs Company of Puerto Rico, Inc., 526 F. Supp. 1055 (D.P.R.1981); Buchholz v. Symons Manufacturing Co., 445 F. Supp. 706 (E.D.Wisc.1978). [Award of commissions in ADEA damages is permissible only when they can be predicted with reasonable certainty.]
125
Moreover, the jury was never charged that if it did specifically find a willful violation, it should thereupon double what it found to be the actual damages. The wider accepted practice would dictate that the jury should have only been instructed to enter a finding as to the factual issue of willfulness. The liquidated damages should thereafter be computed and assessed by the trial court. Mistretta v. Sandia Corp., 639 F.2d 588 (10th Cir.1980). This is analogous to the proper procedure in treble damage anti-trust actions.
126
Assuming arguendo that the jury instructions in the case at bar were not by themselves sufficient to warrant a reversal herein, the absence of basic instructions in the area of damages clearly resulted in an award which cannot be supported on review. Chiefly, the jury must know that each claimed element of back pay such as commissions, bonuses, etc. must be shown to exist with reasonable certainty before proceeding to consider the amounts thereof; and further, the jury should not be instructed or presumed to return more than an amount of actual damages.
127
For the reasons stated hereinabove, I respectfully dissent and would reverse the verdict and remand for a retrial.
1
29 U.S.C. Sec. 623(a)(1) makes it unlawful to "fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; ..."
2
Sun facilitates the nationwide selling of its equipment by using regional offices. It further divides the regions into zones. Each zone has a sales quota which each of its sales representatives is expected to attain. A representative's performance appraisal and commission is based upon a net sales figure. This figure is obtained by subtracting the amount of repossessions and other returned equipment from the amount of gross sales for the applicable period
3
The McDonnell Douglas guidelines require that the plaintiff show the following in order to establish a prima facie case: (1) that he is a member of the protected class, (2) that he applied for a job and was rejected, (3) that he was qualified for the job, and (4) that after he was rejected, the employer continued to seek applicants for the particular job
4
As modified to fit age discrimination cases, the McDonnell Douglas test for making out a prima facie case of discrimination requires that a plaintiff demonstrate that (1) he was a member of the protected class; (2) he was discharged; (3) he was qualified for the position; and (4) he was replaced by a younger person
Ackerman v. Diamond Shamrock, 670 F.2d 66, 69 (6th Cir.1982) (citing Marshall v. Goodyear Tire and Rubber Co., 554 F.2d 730, 735 (5th Cir.1977) ).
5
The court stated the issue for the jury in the following manner:
Plaintiff bases his lawsuit on the Age Discrimination in Employment Act as amended, 29 U.S.C. Section 623, et seq. That Act provides in pertinent part as follows: "It shall be unlawful for an employer to discharge any individual because of such individual's age."
The prohibitions contained in the Act are limited to individuals who are at least 40 years of age but less than 70 years of age.
Thus, the Act makes it unlawful for an employer to discharge an individual between the ages of 40 and 70 because of his age.
Not every such discharge is unlawful under the Act, however. The Act further provides:
It shall not be unlawful for an employer to take any action otherwise prohibited where such action is based on reasonable factors other than age.
If the discharge of plaintiff was based on bona fide business or economic reasons in which age was not a factor, there could be no violation of the law, and the defendant's discharge of plaintiff would be lawful. And plaintiff would not be entitled to recover.
The plaintiff in this case has the burden of showing by a preponderance of the evidence that the defendant discharged him because of his age. The defendant contends that it discharged him because of bona fide business or economic reasons unconnected with age.
6
Several courts have held that an ADEA plaintiff need not prove that he or she was replaced by a younger employee in order to establish a prima facie case. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1013 (1st Cir.1979); Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981). They reason that such an employer might hire an older worker in order to thwart an age discrimination suit if this were a requirement. Since the plaintiff in this case was replaced by an employee outside the protected class, we need not consider this issue
7
The court's instructions pertinent to this point stated:
In this connection, the Court charges you that plaintiff need not show that age was the sole or exclusive factor in the defendant's discharge of plaintiff. There could be more than one factor in the decision to discharge plaintiff. The plaintiff is nevertheless entitled to recover if one such factor was his age, and if that factor made a difference in determining whether the plaintiff was discharged. The ultimate question is not whether the defendant's decision to discharge plaintiff reflected an accurate or wise judgment of the plaintiff's abilities. The question is whether the decision was unlawfully motivated by the factor of his age.
If you find that the defendant's discharge of plaintiff was for the reasons asserted by it, then, you must find in favor of the defendant.
On the other hand, if you find by a preponderance of the evidence that plaintiff's age made a difference in defendant's decision to discharge plaintiff, then the defendant would be liable to the plaintiff, and you must proceed to determine the damages due him.
Now, in this case, as previously indicated, the burden of proof is upon the plaintiff. Before plaintiff can recover, plaintiff must show that age entered into the determination. If age entered into the termination of his employment, then there would be liability. On the other hand, if age did not enter into the decision of the defendant to terminate his employment, there could be no liability.
8
Our discussion of the adequacy of the jury is equally applicable to other comments made by the court to the jury during the course of the trial
9
MR. LAWS [Defendant's Counsel]: I believe his Honor's charge on the age as being the--a reason if it was one of the considerations, and I believe the law would state that that should be the reason for the discharge, and that would be my exception to the charge. I would ask that the Court charge them but for the age consideration he would not have been discharged
THE COURT: Did you understand that?
MR. HAYNES [Plaintiff's Counsel]: I don't understand that being the law.
THE COURT: I don't understand what he means by it.
MR. LAWS: You are saying--your charge, as I understood it to the jury, if they should find that--
THE COURT: That age--
MR. LAWS: --age was a consideration--
THE COURT: That's right, and that is the law.
MR. LAWS: And I am objecting to the charge.
THE COURT: All right, sir. The objection is overruled.
10
The entire instruction on the willfulness issue charged:
In that connection the Court charges you that an employer acts willfully if he knows or has reason to know that his acts are governed by the Act. That is this Act that has been referred to in this Charge, which is familiarly known in common language as the Age Discrimination Act.
Neither a good faith belief in the lawfulness of his actions, nor ignorance of their illegality shields the employer if he violates the Act. The test is, did the employer know the Act was in the picture?
11
29 U.S.C. Sec. 626(b) states in relevant part:
Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.
12
We concur with the reasoning of the Seventh Circuit in Syvock:
The showing must clearly be greater than that necessary for the initial finding of ADEA liability. The showing must be sufficient to indicate that the defendant's discrimination was not unconscious. In a disparate treatment case, a finding of willfulness will generally require some direct evidence of discriminatory intent toward the plaintiff or a showing that, at the time of the alleged discriminatory action, the employer was motivated to discriminate or engaged in a pattern of discriminating against older employees.
665 F.2d 149, 156 n. 10 (7th Cir.1981).
13
The district court allowed the jury to return a general verdict. This, in and of itself, is not a ground for reversal. It would be a preferable practice, however, to submit the willfulness issue to the jury by special interrogatory. This would provide a clearer basis for examining the jury's factual findings and facilitate review on appeal
14
The enforcement provision of the ADEA, 29 U.S.C. Sec. 626(b) specifically adopts most of the remedies enumerated in Sections 16 and 17 of the Fair Labor Standards Act, (FLSA), 29 U.S.C. Secs. 216 and 217. Section 16(b) of the FLSA provides in relevant part:
Any employer who violates ... shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
Though liquidated damages are not automatic in age discrimination cases, the measure of liquidated damages is adopted from the FLSA provisions.
15
It should be noted that Plaintiff never requested reinstatement to his former position. If he had requested and the district court had granted reinstatement, this court would be presented with a different question. Perhaps, under those circumstances, an equitable solution would be to provide that Sun post to the plaintiff's pension plan the amount that would have been contributed in the period between the unlawful discharge and reinstatement | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2496422/ | 64 So.3d 1269 (2011)
DEUTSCHE BANK NAT. TRUST CO.
v.
LICOURT.
No. 2D11-2611.
District Court of Appeal of Florida, Second District.
July 26, 2011.
DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023671/ | JUSTICE BUCKLEY, dissenting: I respectfully dissent. When determining whether a litigant has complied with the statutory requirements which would entitle the litigant to an absolute right to change in venue without inquiry into the propriety of his petition asserting prejudice, the statutory requirements are to be liberally construed in order to effect rather than defeat a change of venue, particularly where judicial prejudice is charged. (Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259.) Defendant here has not disputed plaintiffs compliance with statutory requirements as to the form of the petition, and it is evident that plaintiff has also satisfied the statute’s timeliness requirement by filing the petition before the trial court had ruled on any “substantial issue” in the case.1 (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(c).) The majority holds that the trial court here properly denied plaintiff’s petition under the statutory requirement of reasonable notice to the adverse party. See Ill. Rev. Stat. 1987, ch. 110, par. 2-1001(e). While the determination of a party’s compliance with the reasonable notice requirement is dependent upon the circumstances in each particular case and should not be disturbed absent an abuse of discretion (Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84; Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129), the instant circumstances indicate that the trial court abused its discretion in failing to liberally construe the notice provision to effect a change of venue. Unlike the cases cited by the majority, where notice was given within hours of the petition and scheduled hearing date (see Buckingham, 16 Ill. App. 3d 534, 306 N.E.2d 655; Hutson v. Wood (1914), 263 Ill. 376, 105 N.E. 343), plaintiff presented the motion to the trial court and to defendant’s counsel three days prior to the scheduled hearing date, having learned of the basis for the petition, the ex parte communication with the trial court, only a few days before presenting the petition. Furthermore, the record discloses that prior to filing his petition, plaintiff appeared ready for trial on two prior scheduled trial dates in which defendant failed to appear on one occasion and requested a continuance on the other. In my judgment, the trial court abused its discretion in finding under these circumstances that plaintiff had not satisfied the statutory notice requirement and therefore erred in denying plaintiff’s absolute right to a change of venue. Because any order entered subsequent to an improper denial of a change of venue is void (Wheaton National Bank v. Aarvold (1973), 16 Ill. App. 3d 193, 305 N.E.2d 541), I would reverse the orders of the circuit court denying the petition for change of venue and dismissing the case for want of prosecution and would remand the cause for further proceedings. The trial court had entered only two rulings prior to the petition for change of venue, a denial of plaintiff’s motion for a default judgment and an allowance of defendant’s motion for a continuance as to the scheduled trial date. Neither of these rulings renders the motion untimely under the statute, as neither relates to issues concerning the merits of the case or afforded plaintiff an opportunity to form an opinion that the court might treat his cause unfavorably. See Stroller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5; In re Custody of Peterson (1984), 129 Ill. App. 3d 887, 473 N.E.2d 412, rev’d on other grounds (1986), 112 Ill. 2d 48, 491 N.E.2d 1150. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3366101/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: SECOND MOTION FOR ARTICULATION
The plaintiff has filed a motion for further articulation of the court's memorandum of decision with respect to the first motion of articulation filed by the defendant. The plaintiff is questioning the allowance made by the court for expenses which the defendant may deduct from his royalties before determining the plaintiff's 50 per cent share thereof.
The court originally ordered that the defendant might deduct those expenses listed on his affidavit which included three items: office and unreimbursed travel expenses, IRS taxes and FICA (Social Security). The parties have agreed that FICA may be deducted and that the IRS taxes may not because the plaintiff is taxed on the share she receives as alimony.
The dispute, therefore, is over the figure for office expenses and unreimbursed travel. The original figure was $59.62 which amounts to slightly less than $3,000.00 a year. The defendant now has expanded that figure to include rent, lawn care, health insurance as well as telephone, utilities, legal expenses and dues and publications. These total $9,820.00. Not only were these not included in the deductions on his affidavit from his royalty expense but, in fact, some of them were included as deductions from his teacher's salary: health insurance and part of his income tax obligation. CT Page 2822
The court also notes that in the brief filed by the defendant at the end of the trial he listed his actual expenses of $5,000.00 for his writing income of $70,000.00. Thus, it seems that the defendant's figures on expenses expand the more time there is to consider them.
Since the court must consider only the evidence as produced in the trial and the affidavits as filed by the parties as well as the exhibits, the two income tax returns, it appears to the court that there is no reason for changing the original decision except to make it clear that the expenses which are to be deducted from the royalties are just those listed in his affidavit excluding his income taxes totalling just short of $3,000.00 plus his FICA taxes.
To the extent that the prior memorandum requires this articulation, it is hereby clarified.
The motion for articulation is, therefore, granted to the extent indicated.
So ordered.
MARGARET C. DRISCOLL, STATE TRIAL REFEREE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2514258/ | 172 U.S. 434 (____)
CAPITAL NATIONAL BANK OF LINCOLN
v.
COLDWATER NATIONAL BANK.
CAPITAL NATIONAL BANK OF LINCOLN
v.
COLDWATER NATIONAL BANK.
McDONALD
v.
SAMUEL CUPPLES WOODEN WARE COMPANY.
McDONALD
v.
GENESEE FRUIT COMPANY.
Nos. 73, 74, 75, 76.
Supreme Court of United States.
THE CHIEF JUSTICE:
For the reasons given in the opinion in Capital National Bank v. First National Bank of Cadiz, just decided, ante, 425, the writs of error in these cases are severally
Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/565106/ | 939 F.2d 784
STATE OF IDAHO; Idaho Public Utilities Commission (IPUC), Petitioners,Union Pacific Railroad Company, Intervenor,v.INTERSTATE COMMERCE COMMISSION, Respondent.STATE OF IDAHO, et al., Petitioners,v.INTERSTATE COMMERCE COMMISSION, Respondent.
Nos. 90-70178, 90-70281.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 11, 1991.Decided July 24, 1991.As Amended Aug. 22, 1991.
Marsha H. Smith, Deputy Atty. Gen., Idaho Public Utilities Com'n, Boise, Idaho, and Harold E. Spencer, Belnap, Spencer, McFarland, Emrich & Herman, Chicago, Ill., for petitioners.
Charles Alan Stark, Interstate Commerce Com'n, Washington, D.C., for respondent.
Joseph D. Anthofer, Omaha, Neb., for intervenor.
Petition to Review a Decision of the Interstate Commerce Commission.
Before BROWNING, CANBY and TROTT, Circuit Judges.
CANBY, Circuit Judge:
1
The State of Idaho (Idaho) appeals the Interstate Commerce Commission's March 1990 decision authorizing Union Pacific Railroad (UP) to abandon thirty-one miles of track. Idaho claims that the Commission's voting procedures were invalid and that the Commission improperly reopened an earlier final decision. In addition, Idaho appeals from the Commission's April 1990 decision affirming the procedural validity of the March decision and denying Idaho's petition to reopen the March decision.
2
We conclude that the Commission's voting procedures are valid and affirm the Commission's March 1990 decision. We further conclude that we lack jurisdiction to review the Commission's April 1990 decision.
FACTS
3
In January of 1989, UP applied to the Commission to abandon thirty-one miles of track in Idaho. On July 13, 1989, an Administrative Law Judge (ALJ) denied UP's application. The ALJ found that UP had deliberately downgraded service on the line to facilitate abandonment, that the forecast year traffic volume was a minimum of 460 carloads, that the forecast year operating profit was $125,3841, that operation of the branch would not impose a financial burden on UP, that feasible alternative transportation was lacking, and that abandonment would have a serious adverse impact on rural and community development. UP appealed.
4
On November 6, 1989, the Commission affirmed the ALJ's decision to deny UP's abandonment petition, but for different reasons. The Commission found that the evidence did not indicate that UP had deliberately downgraded its service. In addition, the Commission noted that the ALJ erred in his forecast year data, but the Commission did not arrive at a new carload forecast because it found that even using UP's minimal forecast, UP would earn an operating profit of $21,118. Further, the Commission found that alternative transportation was viable but agreed with the ALJ that there would be substantial adverse impact on community development.
5
Voting in favor of affirming the ALJ's decision were Commissioners Simmons and Lamboley, with Commissioner Andre concurring in the result. Commissioners Gradison and Phillips dissented. UP filed a petition to reopen the Commission's November 6th decision.
6
The Commission granted the petition, reviewed its November 6, 1989, decision and found material error. The Commission reversed its prior decision and authorized the abandonment because "the burdens that abandonment may impose on shippers and the community are outweighed by the burden on UP and interstate commerce resulting from continued operation of a line that at best is earning a marginal operating profit and suffering a significant opportunity cost burden." In reaching this conclusion, the Commission found that the forecast year traffic level was 292 carloads and stated that any other figure would be inconsistent with its finding that UP did not deliberately downgrade. The Commission found several errors in its earlier calculations of forecast year operating profits and accordingly reduced the forecast to $8,914. Similarly, the Commission adjusted its figure for opportunity costs upward to $111,432. The Commission found opportunity costs to be a significant factor in analyzing an abandonment application, especially where, as here, the opportunity costs were substantial and the line was only marginally profitable. The Commission also held that the lack of shipper opposition indicated availability of transportation alternatives.
7
Commissioners Emmett (Andre's replacement), Gradison, and Phillips voted to authorize the abandonment. Commissioners Simmons and Lamboley voted against authorization. The Commissioners used a notational voting method under which the Commissioners note their votes seriatim on a circulating draft decision. Commissioner Gradison was the first Commissioner to vote, casting her vote on February 8th, the day the draft of the proposed decision was circulated. Commissioner Phillips cast the last, and the deciding vote on February 22nd. By that time, Commissioner Gradison, whose vote was counted, had been replaced by Commissioner Philbin on February 12th.
8
Idaho filed with the Commission a petition for a stay pending judicial review and a petition for reopening the March order. In addition, Idaho filed with this Court a petition for a stay and for review of the Commission's March 12th order. On April 11, we denied Idaho's petition for a stay of the abandonment authorization. On April 13, the Commission denied both of Idaho's petitions. Idaho then filed with this Court a petition for review of the Commission's April 13th order denying its petitions. In this consolidated case, we address the Commission's March 12th and April 13th orders.
DISCUSSION
I.
March 12, 1990 Decision
A. Notational Voting Procedure
9
Idaho does not challenge the Commission's ability to employ notational voting,2 but rather argues that the Commission erred in counting a departing Commissioner's notational vote. Specifically, Idaho contends that former Chairman Gradison's vote should not have been counted because she had been replaced on the Commission when the last necessary vote was cast--the time when, according to Idaho, the case was "decided." Without Gradison's vote, the other Commissioners were evenly split on whether to reopen the Commission's earlier decision and whether to reverse that decision if revisited. This tie vote would have left the earlier decision intact, and UP would not be authorized to abandon the branch.
10
Idaho relies on the quorum requirement, 49 U.S.C. Sec. 10306(a), to establish that the Commission may not count the vote of departing Commissioners. This reliance is misplaced. Section 10306(a) states that a majority of Commissioners is a quorum for the transaction of business. 49 U.S.C. Sec. 10306(a). But this statute is silent as to what point in time, or over what period of time, the quorum requirement may be satisfied. Moreover, Idaho's argument that 49 U.S.C. Sec. 10322(h), which states that a final decision is effective on the date served on the parties, does not help us in our analysis of the issue before us today. Counting the vote of a departing Commissioner does not affect the time in which a decision is final. We find no statutory prohibition against the Commission's procedure of counting the vote of a departing Commissioner.
11
In the absence of Congress' explicit direction, the Commission is empowered to prescribe regulations and procedures to carry out the Interstate Commerce Act. See 49 U.S.C. Sec. 10321(a).3 We need only satisfy ourselves that the Commission set forth a rational basis for its notational vote counting policy.4 The Commission in its April 13th decision reviewed its policy of counting the votes of departing Commissioners. The decision explains the reasons the Commission has adopted this policy and outlines the limitations on the policy. The decision states: "As long as all Commissioners have voted on the same decision and a consensus is reached, our practice has been to count the vote of the departing Commissioner as a matter of administrative efficiency, practicality and fairness to the decisional process." United Pac. R.R. Co.--Abandonment in Fremont and Teton Counties, Idaho, 6 I.C.C.2d 641, 644 (1990).
12
In fact, the Commission has employed the procedure of counting departing Commissioners' votes consistently. See Antitrust and Competitive Factors in Motor Carrier Finance Cases, 127 M.C.C. 657 (Decided Jan. 11, 1980) (Former Chairman O'Neal shown as voting on a case bearing a January 11, 1980, decision date even though his term expired on December 31, 1979); Regulation Governing Minimum Amounts of Cargo Insurance, 132 M.C.C. 711 (Decided August 5, 1981) (Commissioner Trantum's term expired July 31, 1981); Lease & Interchange of Vehicles, 132 M.C.C. 822 (Decided June 22, 1982) (Commissioner Gresham's term expired on June 18, 1982); Annual Volume Rates on Coal--Wyoming To Flint Creek, Ark., 364 I.C.C. 753 (Decided February 2, 1981). This is not a case where an agency has altered its normal procedures to reach a desired result. The Commission has consistently applied the same policy. Moreover, it was within the sound discretion of the Commission to adopt that policy. We decline to substitute our judgment for that of the Commission.
B. Reopening for Material Error
13
Idaho further contends that the Commission abused its discretion in reopening its November decision, which denied UP's petition to abandon the branch. We disagree. It is well settled that the decision whether to reopen is committed to the Commission's discretion and that decision should not be overturned "except in the most extraordinary circumstances," Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 296, 95 S.Ct. 438, 447, 42 L.Ed.2d 447 (1974), upon a "showing of the clearest abuse of discretion." United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 535, 66 S.Ct. 687, 697, 90 L.Ed. 821 (1946).
14
Section 10327(g)(1) provides that "[t]he Commission may, at any time on its own initiative because of material error, new evidence, or substantially changed circumstances (A) reopen a proceeding ... and (C) change an action of the Commission." 49 U.S.C. Sec. 10327(g)(1). Both Idaho and the Commission agree that the Commission's actions rest on the "material error" clause. Idaho contends, however, that the Commission did not explicitly find and identify a material error in its November decision. Idaho argues that the only reason the Commission reviewed and set aside its November decision was that a new Commissioner disagreed with the vote of his predecessor. But the Commission's March decision did find a number of material errors and discussed each of these in some detail.5 Therefore, we find no abuse of discretion in reopening the case because of material error in the earlier decision.
C. Evidence Supported the Decision
15
Having found the procedures employed in this case to be adequate, we now turn to Idaho's attacks on the Commission's decision as arbitrary, capricious, unsupported by substantial evidence, and contrary to the evidence. Our review of the Commission's decision on a petition to abandon is very narrow. Southern Pac. Transp. Co. v. I.C.C., 871 F.2d 838, 841 (9th Cir.1989) (citing Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-20, 101 S.Ct. 1124, 1131-32, 67 L.Ed.2d 258 (1981).
16
Idaho contends that the March 12th decision was arbitrary and capricious in two of its findings. First, Idaho argues that the carload projection of 292 was not based on substantial evidence. Although the Commission's determination of carload projection may not be the only one obtainable from the evidence, its determination should stand if supported by substantial evidence. Consolo v. F.M.C., 383 U.S. 607, 620-21, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966). The Commission fully explained its reasoning in arriving at the 292 figure and explained how any other figure would be inconsistent with its finding of no deliberate downgrading. Substantial evidence supports the Commission's reasoning. This court will not undertake the task of determining the traffic level which will move over a line in the forecast year; this type of determination is best left to the Commission, which has expertise and broad authority in the abandonment area. See e.g., Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-23, 101 S.Ct. 1124, 1131-33, 67 L.Ed.2d 258 (1981).
17
Idaho's second claim of arbitrary and capricious actions by the Commission focuses on the weight the Commission chose to give to the testimony of the farmers potentially affected by the abandonment. The Commission did not totally ignore the impact on the farmers, as Idaho suggests, but found that the impact was outweighed by the burden on UP of keeping the branch open. Thus, the Commission complied with 49 U.S.C. Sec. 10903(a), which directs it to consider whether abandonment will have a serious adverse impact on rural and community development. Idaho argues that the Commission must afford the farmers' testimony the same weight it afforded that of the grain elevator operator. But the weight to be accorded various items of evidence as well as the inferences to be drawn therefrom are not for us to reweigh. Illinois Cent. R.R. Co. v. Norfolk & W. Ry. Co., 385 U.S. 57, 69, 87 S.Ct. 255, 262, 17 L.Ed.2d 162 (1966).
18
The Commission's findings concerning the adverse effect on the community are supported by substantial evidence. We affirm the Commission's abandonment decision.
II.
April 13, 1990 Decision
19
The Commission asserts that this court lacks jurisdiction to review its March 12th decision because it was not the Commission's final decision. The Commission takes the position that the April 13th decision denying the petition to reopen was the Commission's final decision and is the only decision reviewable by this Court. The Commission relies on I.C.C. v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), to support this contention.
20
The rule announced in BLE, however, leads to exactly the opposite result in the circumstances of this case: we have jurisdiction to review the March 12th decision but not the April 13th decision. See also Friends of Sierra R.R., Inc. v. I.C.C., 881 F.2d 663, 666 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1166, 107 L.Ed.2d 1069 (1990). The court of appeals in BLE was asked to review the Commission's denial of a petition to reopen where that petition alleged material error. The Supreme Court concluded that "where a party petitions an agency for reconsideration on the ground of 'material error,' i.e., on the same record that was before the agency when it rendered its original decision, 'an order which merely denies rehearing of ... [the prior] order is not itself reviewable.' " Id. 482 U.S. at 280, 107 S.Ct. at 2366 (citations omitted).6 The Court explained that the appeal from the denial places before the reviewing court the same substance that would be before it on an appeal from the original proceeding. Id. Moreover, the Court noted that it is irrelevant that the order refusing reconsideration discussed the merits, id., as did the April 13th order in this case. Accordingly, we dismiss the petition for review of the April 13th decision.
21
NO. 90-70178 AFFIRMED.
22
NO. 90-70281 DISMISSED.
1
This number was derived by subtracting the forecast year total avoidable costs of $781,409 from the forecast year total revenue of $906,793 (derived from the 460 carload forecast)
2
Notational voting is a procedure which allows several members of a multi-member agency or commission to vote individually and separately, as opposed to voting at a meeting of the members of the agency. Railroad Comm'n of Tex. v. United States, 765 F.2d 221, 230 (D.C.Cir.1985). The Commission's notational voting procedure has been judicially affirmed. T.S.C. Motor Freight Lines, Inc. v. United States, 186 F.Supp. 777, 785-86 (S.D.Tex.1960) (3 judge court) (The requirement of a quorum does not require members to be physically present in view of the Commission's authority to "conduct its proceedings ... in such manner as will best conduce to the proper dispatch of business"), aff'd per curiam sub nom. Herrin Transp. Co. v. United States, 366 U.S. 419, 81 S.Ct. 1356, 6 L.Ed.2d 387 (1961); Railroad Comm'n of Tex. v. United States, 765 F.2d 221, 230 (D.C.Cir.1985) ("Congress intended to permit agencies to consider and act on agency business by circulating written proposals for sequential approval by individual agency members without formal meetings.") See also Braniff Airways, Inc. v. C.A.B., 379 F.2d 453, 460 (D.C.Cir.1967) (Quorum acting on a matter need not be physically present at any one particular time to ponder the evidence where the CAB is authorized "to conduct its proceedings in such manner as will be conducive to the proper dispatch of business and to the ends of justice.")
3
Former section 17(3) (1976 ed) also supports this view. Section 17(3) provided that "the Commission shall conduct its proceedings ... in such manner as will best conduce to the proper dispatch of business to the ends of justice." Congress recodified the Interstate Commerce Act in 1978 and deleted this portion of section 17(3) as surplus. See 49 U.S.C. Sec. 10306 (historical note). However, section 3(a) of the Recodification Act provides that no substantive change is to be inferred from the recodification. Pub.L.No. 95-473, 92 Stat. 1337 (Oct. 17, 1978). Accordingly, both the old and new versions of the Interstate Commerce Act may be relied upon in interpreting the statute's present meaning. Southern Motor Carriers Rate Conference v. United States, 773 F.2d 1561, 1568 (11th Cir.1985); Atchison, T. & S.F. Ry. Co. v. United States, 617 F.2d 485, 490-91 (7th Cir.1980); Trailer Marine Transp. Corp. v. F.M.C., 602 F.2d 379, 383 n. 18 (D.C.Cir.1979)
4
The Supreme Court has cautioned courts reviewing agency procedures "against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 525, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). For example, even though this court, which employs a notational voting system, does not count the vote of a departing judge, we cannot say that the Commission must use the same procedures we have chosen for our court. In fact, other federal appellate courts have not always adhered to the policy used now in the Ninth Circuit. See Association of Nat'l. Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980) (Judge Leventhal supplied the swing vote notwithstanding his death a month prior to the decision date)
5
For example, the Commission found as material error the earlier figure for minimum number of carloads used in calculating expected profit. The error was apparent in light of the fact that the Commission at the same time had determined that there was no deliberate downgrading
6
The Court noted that the reviewing court has jurisdiction to review a denial to reopen for new evidence or changed circumstances. BLE, 482 U.S. at 279, 107 S.Ct. at 2366 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3000804/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2802
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ADEWUNMI ARE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 708—James B. Moran, Judge.
____________
ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 9, 2007
____________
Before KANNE, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. The sole issue in this appeal is
the timeliness of an indictment for the crime of being
“found in” the United States after deportation. See 8
U.S.C. § 1326(a)(2). Adewunmi Are, a Nigerian national,
was convicted in 1995 of drug smuggling and in 1996
was deported. He attempted an illegal reentry in May 1998
but was caught at the airport and immediately sent
back to Nigeria. He tried again in September 1998 and
this time succeeded. Because he slipped into the country
undetected, however, immigration authorities did not
discover his presence until sometime after his 2003 arrest
by Chicago police on an unrelated offense. Although he
gave a false name at the time of his arrest and immedi-
2 No. 06-2802
ately posted bail, fingerprint processing and further
investigation eventually confirmed his true identity and
location, and in June 2005 he was arrested on the immi-
gration violation.
The crime of illegal reentry under 8 U.S.C. § 1326(a)(2)
is committed when a previously deported, removed, or
excluded alien “enters, attempts to enter, or is at any time
found in, the United States” without the Attorney Gen-
eral’s permission. On September 1, 2005, Are was indicted
for committing the “found in” version of this offense.
Applying the five-year limitations period imposed by
18 U.S.C. § 3282(a), the district court dismissed the
indictment as untimely.
The court held the government should have known of
Are’s illegal presence in 1998 or 1999 because immigration
authorities had opened an investigative file in October
1998 based on Are’s unsuccessful reentry attempt earlier
that year; the authorities also had a tip from a confiden-
tial informant that Are was living in Chicago. This estab-
lished constructive knowledge of Are’s illegal presence,
the court held, and that was enough to start the running
of the statute of limitations. The judge believed the
government should have investigated more diligently. The
government appealed, arguing that only actual—not con-
structive—discovery by immigration authorities starts
the running of the limitations period.
We reverse. The “found in” variation of the § 1326(a)(2)
crime is a continuing offense; the statute of limitations
generally does not begin to run for continuing offenses
until the illegal conduct is terminated. The statute makes
it a crime to be “at any time found in” the United States
following deportation, permitting prosecution of deportees
who evade detection at the border and remain present here
undetected, even for long periods of time. A “constructive
knowledge” interpretation—one that starts the statute of
No. 06-2802 3
limitations clock when the government “should have
found” the deportee—is inconsistent with the straight-
forward text and obvious purpose of the statute. Immigra-
tion authorities did not actually discover Are’s presence,
identity, and status as a prior deportee until sometime
in late 2003 or 2004, and his illegal presence continued
until his arrest in June 2005. Whether measured from the
date of his actual “discovery” by immigration authorities
or the date of his arrest, the September 1, 2005 indict-
ment was timely.
I. Background
The former Immigration and Naturalization Service
(“INS”) deported Are to his native Nigeria in 1996 follow-
ing his conviction for conspiracy to import heroin in the
United States District Court for the Eastern District of
New York. Are tried to reenter the United States at New
York’s Kennedy Airport on May 9, 1998, but was detained
by immigration authorities and removed to Nigeria the
next day. On September 4, 1998, however, he slipped
into the United States by stealth. He moved in with his
wife in Chicago under an assumed name and remained
undetected by immigration authorities until sometime in
late 2003 or 2004, when fingerprints taken during his
September 23, 2003 arrest by Chicago police betrayed his
presence to the Department of Homeland Security
(“DHS”), the successor agency to the INS. On December
10, 2004, a Deputy United States Marshal completed
a report that traced Are to an address in the Chicago
suburbs; he was arrested on June 20, 2005. On
September 1, 2005, a grand jury indicted him for the
offense of being “found in” the United States after his
1996 deportation in violation of 8 U.S.C. § 1326(a)(2).
The district court dismissed the indictment as untimely
under the five-year limitations period imposed by 18
4 No. 06-2802
U.S.C. § 3282. Citing this court’s opinion in United States
v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999), the
court applied a “constructive knowledge standard” to
determine when the statute of limitations began to run.
Although the indictment came less than two years after
DHS learned from the fingerprint evidence that Are was
in Chicago, the court concluded that DHS had construc-
tive knowledge of Are’s illegal presence in this country
prior to September 1, 2000 (five years before the date of
the indictment). The judge believed immigration authori-
ties should have known of Are’s presence well before that
date based in part on an investigative file the INS opened
on October 15, 1998.
It is not entirely clear what prompted the opening of
this investigation; the file contains only a cryptic “Investi-
gation Preliminary Worksheet” listing Are’s name, a
location of “CHI,” and a checked box indicating the case
was being “placed in progress.” There is a separate docu-
ment in the record indicating that on September 25, 1997,
the INS received a tip from a confidential informant
that Are was living in Chicago with his wife, Vivian
Adelagun. In the district court, the government suggested
the October 1998 investigative file was opened in response
to the 1997 tip; in its brief in this court, however, the
government maintains the file was opened in response
to Are’s failed reentry attempt in May 1998.
The district court also relied on two documents filed in
1998 in Are’s drug case in the Eastern District of New
York. On December 21, 1998, the probation office for the
Eastern District of New York filed a Violation of Super-
vised Release form in Are’s case. On December 29, 1998,
an arrest warrant for the supervised release violation
was issued. The violation report and warrant list a last
known address for Are on Sheridan Road in Chicago (the
same address listed in his presentence report in the
underlying drug case), but there is no detail about the
No. 06-2802 5
nature of the violation; the government suggests the
report and warrant were generated in response to Are’s
May 1998 failed reentry attempt.
Although the district court specifically declined to
identify “a concrete discovery date,” the court concluded
that the foregoing evidence established that at some point
prior to September 1, 2000, “the government had construc-
tive knowledge of defendant’s physical presence, identity
as an illegal alien, and status as having a prior deporta-
tion.” The court held that “[b]ecause a reasonable investi-
gation would have discovered defendant prior to Septem-
ber 1, 2000, the indictment was filed five years after the
section 1326 offense was committed, and the prosecution
is therefore time-barred.”
II. Discussion
The statute of limitations for noncapital offenses pro-
vides that “no person shall be prosecuted, tried, or pun-
ished for any offense . . . unless the indictment is found . . .
within five years next after such offense shall have been
committed.” 18 U.S.C. 3282(a) (2000). Ordinarily, an
offense is committed when it is completed, that is, when
each element has occurred. Toussie v. United States, 397
U.S. 112, 115 (1970); United States v. Yashar, 166 F.3d
873, 875 (7th Cir. 1999). The issue before us in this appeal
is whether Are’s charged offense—being “found in” the
United States in violation of 8 U.S.C. § 1326(a)(2)—was
committed within five years of September 1, 2005, the
date of the indictment.
Both sides agree DHS did not actually discover Are in
Chicago until late 2003 or 2004, well within the limitations
period. But Are believes the limitations period was trig-
gered in late 1998 because DHS should have discovered
his illegal presence at that time. The government
6 No. 06-2802
counters that it had insufficient information to know Are
was in Chicago in late 1998. Alternatively, the govern-
ment contends that for the purposes of starting the
limitations period, the offense of being “found in” the
United States is completed only upon actual discovery of
the deportee’s physical presence by DHS. Constructive
knowledge—the date on which the government “should
have known” of the deportee’s presence here—should not
start the five-year clock.1 We review de novo whether the
limitations period has run, giving deference to necessary
factual determinations by the district court. United States
v. Barnes, 230 F.3d 311, 314 (7th Cir. 2000).
This circuit has yet to squarely address the issue of
when the statute of limitations for a § 1326(a)(2) “found in”
offense begins to run. See United States v. Rodriguez-
Rodriguez, 453 F.3d 458, 461 (7th Cir. 2006) (declining to
consider whether a “one clock” rule should govern the
running of the limitations period in “found in” cases). We
1
The government believes it failed to raise this argument below
and asks us to review the district court’s application of a con-
structive knowledge standard for plain error. FED. R. CRIM. P.
52(b). The government concedes too much. Before the district
court, the government took issue with Are’s argument that it
“should have known” of Are’s illegal presence despite having
no direct contact with him. In its response to Are’s motion to
dismiss, the government explained that “absent official contact
with the government, however, there is simply no basis from
which to establish that the government had knowledge of an
alien’s illegal entry.” This preserved the issue for appeal be-
cause it alerted the district court and Are of the government’s
position that the immigration agency’s actual knowledge—not
constructive knowledge—of an alien’s illegal presence is re-
quired to start the limitations period. Accordingly, our review of
the district court’s application of the constructive knowledge
standard is plenary. See United States v. Schlifer, 403 F.3d 849,
853-54 (7th Cir. 2005).
No. 06-2802 7
have, however, characterized the “found in” offense under
§ 1326(a)(2) as a continuing offense, and this necessarily
defeats Are’s argument (adopted by the district court) that
the limitations period begins to run when the government
“should have found” him. In United States v. Lopez-Flores,
275 F.3d 661, 663 (7th Cir. 2001), we held that “in the case
of surreptitious reentry . . . the ‘found in’ offense is first
committed at the time of the reentry and continues to the
time when [the defendant] is arrested for the offense.”
Treating the “found in” version of § 1326(a)(2) as a contin-
uing offense “is a logical consequence of its language,”
which punishes any deportee who “enters, attempts to
enter, or is at any time found in, the United States.”
Rodriguez-Rodriguez, 453 F.3d at 460 (emphasis added).
“The point of using a word such as ‘found’ in § 1326(a)(2)
is to avoid any need to prove where and when the alien
entered; the offense follows the alien.” Id.
Thus, we have held that for purposes of liability and
venue, the “found in” crime does not occur “only at the
instant of its detection.” Id. “The crime is being in the
United States and is not limited to the instant at which a
federal agent lays hands on the person and a light bulb
in the agent’s head illuminates the mental sign ‘This guy’s
an illegal alien.’ ” Id. Lopez-Flores held that the phrase
“ ‘found in’ must have the force of ‘present in’ rather than
‘discovered by the INS to be in.’ ” 275 F.3d at 663. Under-
stood as a continuing offense, the date on which immigra-
tion authorities discover the violation “has no significance
so far as culpability is concerned.” Id.
We reached the same conclusion on the question of venue
in § 1326 prosecutions in Rodriguez-Rodriguez. The
applicable venue statute states that a prosecution may be
brought “at any place in the United States at which the
violation may occur or at which the person charged . . .
may be apprehended.” 8 U.S.C. § 1329. We said in
8 No. 06-2802
Rodriguez-Rodriguez that § 1329 “contemplates multiple
lawful venues,” and nothing in § 1329 or in § 1326 itself
either “states or implies that an alien may be ‘found’ just
once.” 453 F.3d at 460. The defendant in Rodriguez-
Rodriguez was a deportee who had been arrested in Texas
for speeding and extradited to Wisconsin for failing to
register as a sex offender following his release from a
state sentence. Id. at 459. He was then indicted in the
Western District of Wisconsin for being “found in” the
United States after removal. He moved to dismiss, arguing
improper venue. Conceding that immigration authorities
did not actually know of his presence in this country until
he reached Wisconsin, he contended they should have
discovered his violation of § 1326(a)(2) when he was
arrested in Texas. Id.
We rejected this argument, and in doing so substan-
tially qualified certain language in Herrera-Ordones, on
which the district court relied in this case. Id. at 461. In
Herrera-Ordones, also a venue case, the defendant was
arrested and convicted of battery in state court in Elkhart
County, in the Northern District of Indiana, using the
alias “Jose Rendon.” 190 F.3d at 506. After sentencing, the
Indiana Department of Corrections took custody of the
defendant and transferred him to a prison reception center
located in the Southern District of Indiana. Id. at 506-09.
A few weeks later he was interviewed by an INS agent
and admitted he had previously been deported; the INS
then confirmed his true identity through fingerprint
analysis. Id. at 509. He was indicted in the Southern
District of Indiana for being found in the United States
after deportation in violation of § 1326(a)(2). Id. at 507-08.
He argued improper venue, taking the position that the
INS should have known of his identity and status as a
previously deported alien when he was in the Elkhart
County Jail, in the Northern District of Indiana, because
No. 06-2802 9
the police knew that he used many aliases, including
some formulations of “Herrera-Ordones.” Id. at 510.
This court held in Herrera-Ordones that “an alien is
‘found’ within the meaning of § 1326 when the INS both
discovers his presence in the United States and knows
that, because of his identity and status, his presence here
is illegal.” Id. We rejected the defendant’s constructive
knowledge argument as a factual matter, holding that “the
record demonstrates that the INS agents investigated
Mr. Herrera-Ordones’ identity and status with appropri-
ate methodological diligence after learning of his presence
in the Elkhart County Jail.” Id. at 511. We also rejected
the defendant’s argument that venue was improper
because he was in the Southern District involuntarily, by
prison transfer; “whether an alien was in a particular
location by choice has no relevance in venue determina-
tions. Venue is proper anywhere in the United States,
wherever the previously deported and reentered alien
is ‘found’ ” Id.
Herrera-Ordones must be read in light of our later
opinions in Lopez-Flores and Rodriguez-Rodriguez constru-
ing the “found in” version of the § 1326(a)(2) offense as
a continuing offense. As such, whether the immigration
authorities exercised “appropriate diligence” in discover-
ing the deportee’s presence has no bearing on venue.
Rodriguez-Rodriguez limited the holding of Herrera-
Ordones as follows:
Herrera-Ordones establishes that, when an alien
frustrates earlier discovery of his identity and status,
he is ‘found’ and may be prosecuted when federal
agents at last stumble upon him in state prison; it
does not hold (nor could it hold) that only when earlier
discovery was impossible does actual discovery of an
alien in state prison permit prosecution there. We now
hold that venue may be laid wherever the alien is
10 No. 06-2802
located in fact, and as often as he is located, whether
or not better coordination and diligence would have
alerted federal officials to his presence and status
earlier and elsewhere.
453 F.3d at 461 (emphasis in original). Similarly, Lopez-
Flores established that because the “found in” offense is
a continuing one, the precise date on which immigra-
tion authorities discover the deportee’s illegal presence
in this country is irrelevant to liability, although the
opinion acknowledged that “it may bear on the running
of the statute of limitations.” 275 F.3d at 663.
Thus limited in light of these later developments in our
case law, Herrera-Ordones does not support Are’s argu-
ment (and the district court’s assumption) that construc-
tive knowledge—the date on which immigration authori-
ties should have discovered the § 1326(a)(2) violation—
triggers the statute of limitations. To be “found in” the
United States without permission after deportation means
to be “present in” the United States without permission
after deportation; the immigration agency’s “discovery”
of the alien (whether actual or constructive) is not an
element of the offense. We have held open the possibility
that the date of actual discovery might have a bearing on
the running of the statute of limitations. Lopez-Flores, 275
F.3d at 663. But because the “found in” version of
§ 1326(a)(2) is a continuing offense, the date on which
the immigration agency “should have discovered” the
alien is simply irrelevent.2
2
Other circuits have adopted a variety of approaches to analyz-
ing statute of limitations questions in “found in” cases under
8 U.S.C. § 1326(a)(2). The Second Circuit has held that the
“found in” offense is not a continuing offense but adopted a
“constructive discovery” rule for cases in which the deportee
(continued...)
No. 06-2802 11
This only makes sense given the straightforward lan-
guage and manifest purpose of the statute. As we noted
in Rodriguez-Rodriguez, a deportee who has reentered
surreptitiously prolongs his illegal presence in the United
States each day he goes undetected. 453 F.3d at 460. The
limitations clock does not run during this period because
the deportee’s crime continues; he remains illegally
“present in” the United States.
For other continuing offenses—conspiracy, escape, and
failure to report to prison, for example—the limitations
period does not begin to run until some affirmative event
puts an end to the defendant’s continuing criminal con-
2
(...continued)
reenters by surreptitious border crossing or using fake docu-
ments at the border. United States v. Rivera-Ventura, 72 F.3d
277, 281-82 (2d Cir. 1995) (the “found in” offense is not a
continuing offense but where deportee reenters by stealth the
crime “is not complete until the authorities know, or with the
exercise of diligence typical of law enforcement authorities
could have discovered, the illegality of his presence”). The Third
Circuit has held that the “found in” offense is not a continuing
offense but adopted an “actual discovery” rule for cases in which
there is no record of when the deportee reentered. United States
v. DiSantillo, 615 F.2d 128, 137 (3d Cir. 1980) (if “the entry
was surreptitious and not through an official port of entry, the
alien is ‘found’ when his presence is first noted by the immigra-
tion authorities”). The Fifth, Eighth, and Eleventh Circuits,
without addressing whether the offense is a continuing one, have
held that “a previously deported alien is ‘found in’ the United
States when his physical presence is discovered and noted by
the immigration authorities, and the knowledge of the illegality
of his presence, through the exercise of diligence typical of law
enforcement authorities, can reasonably be attributed to the
immigration authorities.” United States v. Santana-Castellano,
74 F.3d 593, 598 (5th Cir. 1996); see also United States v. Clarke,
312 F.3d 1343, 1347-48 (11th Cir. 2002); United States v. Gomez,
38 F.3d 1031, 1037 (8th Cir. 1994).
12 No. 06-2802
duct. See United States v. Elliott, 467 F.3d 688, 690 (7th
Cir. 2006). In conspiracies this is the date the defendant
withdraws or is captured, and for escape and failure to
report, it is the date the defendant turns himself in or is
caught. Id. Applying a similar statute of limitations trigger
to the § 1326(a)(2) “found in” offense would start the
limitations period when the alien surrenders or is ar-
rested. The government argues, however, for the earlier
date of “actual discovery,” that is, the date when im-
migration authorities acquire actual knowledge of the
alien’s physical presence, identity, and status as a prior
deportee. We need not make a choice here, as both dates
are well within the five-year statute of limitations.3
Immigration authorities learned of Are’s presence in
Chicago and ascertained his identity and status as a prior
deportee sometime in late 2003 or 2004. Are’s illegal
presence in the United States continued until his arrest on
June 20, 2005. The September 1, 2005 indictment was
timely whether the limitations period commenced when
immigration authorities actually “discovered” Are’s
presence, identity, and status or when they arrested him,
interrupting his illegal conduct. Accordingly, we REVERSE
the district court’s order dismissing the indictment and
REMAND the case for further proceedings.
3
Other events, such as flight from justice, may toll the statute
of limitations. See 18 U.S.C. § 3290.
No. 06-2802 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-07 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2154117/ | 963 A.2d 167 (2008)
UMOREN
v.
McDONALDS.
No. 07-CV-1206.
District of Columbia Court of Appeals.
November 19, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342933/ | 212 F. Supp. 2d 1217 (2002)
CENTER FOR BIOLOGICAL DIVERSITY and California Native Plant Society, Plaintiffs,
v.
Gale NORTON, et al., Defendants.
Building Industry Legal Defense Foundation, a California non-profit corporation, Plaintiffs,
v.
Gale Norton, et al., Defendants.
Nos. 01 CV 2101 IEG(LAB), 01-CV-2145 IEG(LAB).
United States District Court, S.D. California.
July 1, 2002.
*1218 Geoff Hickcox, Kenna and Hickcox, Durango, Co, Brendan R Cummings, Center for Biological Diversity, Idyllwild, CA, William E Halle, Hewitt and McGuire, Irvine, CA, for plaintiffs.
Mary Whittle, U.S. Department of Justice, Environment and Natural Resources Div, Washington, DC, U.S. Attorney CV, U.S. Attorneys Office Southern District of California, Civil Division, San Diego, CA, for defendants.
ORDER SETTING TIMELINE ON REMAND
GONZALEZ, District Judge.
Pursuant to the May 9, 2002 joint stipulation for consolidation and remand, the parties to these consolidated cases briefed the Court on the appropriate timeline for new critical habitat determinations for the Peirson's milk-vetch, Lane Mountain milk-vetch, Fish Slough milk-vetch, San Jacinto crownscale, Spreading Navarretia, Munz's Onion, Coachella Valley milk-vetch, and Thread-leaved brodiaea. Plaintiff Center *1219 for Biological Diversity and California Native Plant Society's proposed timeline would provide the Service one to two years to complete new critical habitat determinations for all eight species. In contrast, defendants, as well as plaintiff Building Industry Defense Foundation and Intervenors, urge the Court to impose a deadline that would provide the Service three to four years to issue new and proposed rules on remand. For the reasons stated below, the Court rejects both proposed timelines as unreasonable and imposes its own.
BACKGROUND
On November 15, 2001 Plaintiffs Center for Biological Diversity and California Native Plant Society (collectively, "CBD") filed suit against Gale Norton, Secretary of the Interior, and the United States Fish and Wildlife Service ("FWS" or the "Service") in this Court alleging that the defendants violated the Endangered Species Act ("EPA") and the Administrative Procedure Act ("APA") by determining that designating critical habitat for eight plant species listed as endangered or threatened is not prudent. Shortly thereafter, on November 21, 2001, plaintiff Building Industry Legal Defense Fund ("BILD") filed suit against the Secretary and the FWS alleging the same substantive claims. Both complaints seek a declaratory judgment that the Secretary failed to perform a mandatory, non-discretionary duty under the ESA and acted in a manner that was arbitary, capricious and otherwise not in accordance with law when she failed to designate critical habitat concurrent with the listing of the eight named species as either threatened or endangered. The complaints also seek an injunction ordering the Secretary to withdraw the not prudent determinations and issue new critical habitat designations for each of the eight plant species.
The Court convened an Early Neutral Evaluation Conference on March 19, 2002 before Magistrate Judge Larry Burns in which parties from both actions participated. At the conference, the parties agreed that (1) the critical habitat determinations for the eight plant species at issue in the cases would be remanded to the Service for reconsideration of its previous "not prudent" determinations; and (2) that the two cases should be consolidated into a single case. The only issue upon which the parties could not agree concerned the appropriate timeline for the issuance of new proposed and final critical habitat determinations on remand. However, the parties did agree to brief the Court regarding the appropriate schedule for reconsideration and to be bound by the Court's determination. Accordingly, Judge Burns ordered the parties to submit a joint stipulation for consolidation and remand, as well as briefs regarding the timeline.
Following the conference, on April 8, 2002, the Court granted a motion to intervene filed by the American Sand Association, California Off-Road Vehicle Association, American Motorcycle Association, Inc. District 37, the San Diego Off-Road Coalition, and the Off-Road Business Association (collectively, "intervenors"). Intervenors, non-profit organizations that promote "multiple use" principles of public lands, contest CBD allegations with respect to one of the species at issue in this case, namely, the Peirson's milk-vetch (PMV), which is concentrated in the Imperial Sand Dunes of Imperial County, California. The Court accordingly limited intervenors' participation to the resolution of an appropriate timeline for reconsideration of the critical habitat determination for the PMV.
Pursuant to Judge Burns's order, defendants submitted a brief proposing a deadline for reconsideration of the critical habitat determinations on May 6, 2002. Plaintiffs CBD and BILD filed separate responses to defendants' brief on May 20, 2002. In its response brief, CBD contends *1220 that defendants' proposed timeline is unreasonably long and proposes an alternative timeline for the Court's consideration. By contrast, in its response BILD urges the Court to adopt defendants' proposed timeline. On June 3, 2002, CBD and BILD filed reply briefs, which addresses many of the arguments raised by each plaintiff in their respective May 20, 2002 response briefs. Defendants filed a reply brief on June 2, 2002. Finally, on June, 6, 2002, intervenors submitted a response brief, arguing in support of defendants' proposed timeline.
DISCUSSION
A. Legal Standard
As an initial matter, this Court must determine the degree of discretion it possesses in setting a deadline for the defendants. CBD argues that the Court's discretion to set a deadline is quite limited. In support of this argument, CBD cites a number of cases in which the court, after finding a violation of the ESA, concluded that its traditional discretion in deciding whether or not to issue an injunction is circumscribed by Congress. See Biodiversity Legal Foundation et al. v. Badgley et. al., 284 F.3d 1046, 1047 (9th Cir.2002) ("The exercise of discretion is foreclosed when statutorily imposed deadlines are not met."); Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir.1999) (holding that in the context of the ESA, "Congress, through 5 U.S.C. § 706, has explicitly removed from courts the traditional equity balancing that ordinarily attends decisions whether to issue injunctions"); National Wildlife Fed. v. Burlington R.R. Inc., 23 F.3d 1508 (9th Cir.1994) ("In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests."). However, all of the cases cited by CBD are distinguishable in that they involved violations of the ESA's mandatory, non-discretionary deadlines. By contrast, in this case, the parties stipulated to a voluntary remand of the FWS's "not prudent" determinations without reaching the merits of the plaintiffs' complaints. FWS entered the stipulation, as did all the parties to this action, without making any admissions of fact or law.
Nevertheless, CBD maintains that the FWS's acceptance of a remand does not restore this Court's equitable discretion in setting a timeline for reconsideration. In particular, CBD contends that this Court lacks the discretion to set a timeline for reconsideration that exceeds two years. CBD derives the two-year term from the mandatory timeline provisions of the ESA governing the promulgation of critical habitat designations following receipt of a petition for listing a species as endangered or threatened. (CBD reply brf. at 3). The Court finds this argument unpersuasive. Title 16 U.S.C. § 1533(b)(6)(C) provides that a "final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination that such species is endangered or threatened," unless such a designation is not determinable or would not be prudent. CBD correctly notes that, given this deadline, the FWS will have at most two years from receipt of a petition to list a species as endangered or threatened to designate critical habitat, absent a "not prudent" or "not determinable" exception. However, in this case, the FWS already met its statutory deadline by making its "not prudent" determinations for all eight species at issue concurrent with listing them as either endangered or threatened. See 63 Fed.Reg. 53596 (Oct. 6, 1998); 63 Red.Reg. 54975 (Oct. 13, 1998).
While CBD disputes legality of those "not prudent" determinations, given the *1221 joint stipulation, the Court is not in a position to review the validity of the original determinations. CBD asserts that such a conclusion creates "an overly permissive standard," allowing the Service to circumvent ESA's mandatory deadlines by issuing unfounded "not prudent" determinations concurrent with listing a species and then arguing for a lengthy timeline on remand when challenged in court. (CBD reply at 4). According to CBD, given the Service's history of routinely making "not prudent" determinations, "in the absence of litigation the illegal findings would likely never be corrected and the species in need of habitat protection would never receive it." Id. This argument may provide a practical reason for not granting the Service a generous timeline on remand, but it does not support CBD's legal contention, namely, that the Court lacks any discretion to give defendants more than two years on remand.
Defendants, relying on Environmental Defense Center v. Babbitt[1], contend that in setting a timeline for reconsideration, the Court should follow a standard of reasonableness. (Df. brf at 10). In Environmental Defense Center, the Ninth Circuit vacated a district court order compelling the FWS to take final action on the California red-legged frog because compliance with the order would conflict with a Congressional spending moratorium on all listing activities. The Ninth Circuit remanded the case to the district court with instructions to "modify its order and judgment to provide that compliance with the requirement that the Secretary make a final determination as to the endangered status of the California red-legged frog is delayed until a reasonable time after appropriate funds are made available, the time to be specified by the district court." Id. at 872. Defendants' reading of Environmental Defense Center is in accord with that of other district courts in the this Circuit. See. e.g., Conservation Council for Hawai`i v. Babbitt, 24 F. Supp. 2d 1074, 1076 (D.Haw.1998) ("In setting a timeline for agency action, the Ninth Circuit has instructed courts to follow a standard of reasonableness.").[2] The Court will therefore set a reasonable timeline for defendants to complete the critical habitat determinations. In setting this timeline, the Court will exercise its discretion to consider the Service's budgetary shortfalls, workload constraints and other relevant factors when setting the timeline. See Center for Biological Diversity v. Norton, 2001 WL 1602696 (N.D.Cal.2001) (holding that a court, in issuing an injunction pursuant to 16 U.S.C. § 1540(g)(1)(C) may "use its equitable discretion to account for certain practical realities such as existing court-ordered obligations and budgetary shortfalls").[3]
*1222 B. The Parties' Proposals
Under defendants' proposed timeline, the Service would not begin its reconsideration of critical habitat for any of the eight species until FY 2004. Defendants' proposed timeline is as follows:
----------------------------------------------------------
Proposed Final
Rule Rule
----------------------------------------------------------
Person's milk-vetch 7/28/04 7/28/05
----------------------------------------------------------
Lane Mountain milk-vetch 9/15/04 9/15/05
----------------------------------------------------------
Fish Slough milk-vetch 11/15/04 11/15/05
----------------------------------------------------------
San Jacinto Valley crownscale 1/30/05 1/30/06
----------------------------------------------------------
Spreading Navarretia 1/30/05 1/30/06
----------------------------------------------------------
Munz's Onion 5/30/05 5/30/06
----------------------------------------------------------
Coachella Valley milk-vetch 11/30/05 11/30/06
----------------------------------------------------------
Thread-leaved Brodiaea 11/30/05 11/30/06
----------------------------------------------------------
CBD offers as an alternative the following schedule:
----------------------------------------------------------
Proposed Final
Rule Rule
----------------------------------------------------------
Peirson's milk-vetch 10/02/02 7/02/03
----------------------------------------------------------
Lane Mountain milk-vetch 10/02/02 7/02/03
----------------------------------------------------------
Spreading navarretia 01/15/03 10/15/03
----------------------------------------------------------
San Jacinto crownscale 01/15/03 10/15/03
----------------------------------------------------------
Munz's onion 03/17/03 12/15/03
----------------------------------------------------------
Thread-leaved brodiaea 03/17/03 12/15/03
----------------------------------------------------------
Fish Slough milk-vetch 5/15/03 2/16/04
----------------------------------------------------------
Coachella Valley milk-vetch 5/15/03 2/16/04
----------------------------------------------------------
C. The Parties' Arguments
Defendants contend that FWS lacks the resources to begin reconsidering its "not prudent" determinations before FY 2004. (Df. brf. at 9). Congress placed a $9 million cap on FWS listing activities for FY 2002, along with a sub-cap of $6 million for critical habitat determinations for already-listed species. FWS anticipates that it will spend the entire $6 million critical habitat sub-cap to comply with pending court orders and settlement agreements. (Frazer dec. ¶¶ 8-9). During FY 2003 FWS estimates that it will need at least $4.69 million of the President's requested $5 million cap for critical habitat activities for FY 2003 in order to comply with pending court orders and settlement agreements[4]. (Frazer dec. ¶ 17). While FWS concedes that under its estimates about 10 percent of the FY 2003 budget remains available for critical habitat actions, it notes that its current estimates are only preliminary and likely contain some underestimates. FWS prefers to keep these remaining funds on reserve to ensure compliance with its existing obligations. Therefore, FWS maintains that, similar to FY 2002, it does not have the resources to begin reconsidering its "not prudent" determinations in FY 2003. According to FWS, were this Court to order it to begin reconsidering its "not prudent" determinations before FY 2004, FWS would be forced either to violate preexisting court orders or the Anti-Deficiency Act.[5]
In response, CBD argues that the Service has consistently failed to request adequate funding from Congress. CBD notes that every year following the FY 1995-96 funding moratorium, with the exception of FY 2002, the Service requested less for the listing program than Congress had approved in the year preceding the moratorium. *1223 (CBD resp., p. 6 n. 3). The Court notes, however, that over this period Congress generally provided the Service with less funding than it requested, so it isn't clear what FWS could have accomplished by requesting more funding during this period (See Trezise decl. ¶ 3). Further, CBD asserts that the Service requested the very spending caps on critical habitat actions which it now claims restrict its ability to begin new determinations until FY 2004. CBD also cites to several cases in which the court discounted the Service's purported budgetary difficulties when setting a timeline for critical habitat determinations. See, e.g., Conservation Council for Hawai`i, 24 F.Supp.2d at 1078 ("`To the extent the [agency] feels aggrieved by Congress' failure to allocate proper resources in which to comply with [its] statutory duty, Congress, not the courts, is the proper governmental body to provide ... relief.") (quoting Southwest Ctr. for Biological Diversity v. Babbitt, No. 96-1874, slip. op. at 7 (D.Ariz.1997)). Finally, CBD argues that because Congress has not yet enacted the FY 2003 budget, the Court should not accept FWS's contention that FY 2003 funds are unavailable.
The FWS also maintains that, even absent the limitations on its budget, the staff at the offices responsible for conducting critical habit determinations are already under such a heavy burden dealing with existing court orders and court approved settlement agreements that initiating reconsideration of the "not prudent" findings before FY 2004 would be infeasible. (Frazer decl. ¶ 4). For example, the Carlsbad Fish and Wildlife Office (CFWO) is the lead field office for six of the species at issue in this case. Currently this office employs one biologist working full time on listing activities, though it plans to hire and train additional biologists at the beginning of FY 2003. Defendants anticipate that during FY 2003 CFWO will be required to work on as many as ten listing or critical habitat actions stemming from litigation. The Ventura Field Fish and Wildlife Office (VFWO), which has primary responsibility for the other two species, must conduct several litigation driven listing and critical habitat actions as well during FY 2002 and FY 2003. Defendants also outline the considerable listing and critical habitat responsibilities facing the Region 1 Office and the Service's Washington Office. For example, in FY 2002, the Region 1 Office must work on critical habitat determinations for approximately 290 species to comply with court orders and court approved settlements.
Apart from the workload associated with listing and critical habitat actions, defendants contend that staff at all the relevant offices in this case will be required to devote substantial time to litigation support. (Frazer decl. ¶¶ 37-9). Defendants note that as of April 29, 2002, the Service is involved in 46 active lawsuits concerning 57 species and is complying with 24 court orders stemming from lawsuits involving 330 species. Moreover, within the last year the Service has received 18 Notices of Intent to Sue (NOIs). (Frazer decl. ¶ 38).
In its response, CBD disputes defendants' assertions regarding the workload burden imposed on the Service's Washington, Regional, and field offices in the form of litigation support. Specifically, CBD asserts that much of the litigation support activity cited by defendants consist of preexisting obligations, "boilerplate" declarations, and other minor administrative tasks. Consequently, CBD argues that defendants' purported litigation support workload do not justify its proposed timeline. (CBD resp. p. 9-10). Apart from litigation support, CBD does not address defendants' assertions concerning CFWO's and VFWO's heavy workload burdens.
In addition to contesting defendants' assertion that they cannot begin new critical *1224 habitat determinations until FY 2004, CBD argues that the length of time requested by FWS to conduct such determinations, once it begins the process, is unreasonably long. Specifically, CBD asserts that the multiple layers of internal review described by defendants in their brief are not mandated by statute and simply result in months of unnecessary delay. (CBD brf. p. 6). Under the CBD's proposed timeline, FWS would have less than eleven months to issue proposed critical habitat designations for all but two of the species. Defendants, in response, maintain that these multiple layers of internal review are necessary given the complexity of drafting proposed and final critical habitat designations. (Def. reply p. 8 ("Designating critical habitat requires substantial internal agency review and approval because no one individual has the expertise to draft a document as complicated as a rule designating critical habitat without assistance.")).
Apart from these allegedly unnecessary layers of internal review, CBD argues FWS unreasonably delays the critical habitat designation process by preparing a draft economic analysis concurrent with preparing the proposed rule. CBD notes that nothing in either the ESA or its implementing regulations requires the Service to formulate a draft economic analysis or to have such an analysis available for public comment. (CBD resp. p. 7). Rather, the ESA only requires that FWS conduct an economic analysis following the issuance of a proposed rule, and there is no requirement for public comment. See 50 C.F.R. § 424.19. CBD also cites Conservation Council of Hawai`i in which the court concluded that a non-statutorily mandated economic analysis "should not be used as a justification for contravening the deadlines specified by the statute." 24 F. Supp. 2d at 1078. Defendants, though conceding that a draft economic analysis is not statutorily mandated, argue that FWS would be subjected to "even more litigation if this process were dispensed with." (Df. reply p. 8).
On a related point, CBD asserts that FWS introduces unnecessary delay by contracting all of its economic analyses with a single third party economist who then subcontracts the work. According to FWS, it contracts all of its economic analysis with one third party economist in order to promote consistency. Moreover, the FWS contends that any delay in this process is a product of limitations on the FWS's ability to supervise the economic analyses produced, rather than the ability of the third party economist to handle multiple assignments at one time. (Df. reply p. 8 ("noting that 46 economic analyses for critical habitat designations are [currently] underway")).
CBD also argues that FWS unreasonably delays the critical habitat designation process by providing more time for public comment on the proposed rule than is statutorily required. (CBD brf. p. 7). Under the ESA's implementing regulations, following publication of a proposed critical habitat designation, the Service must provide at least 60 days for public comment. See 50 C.F.R. 424.16(c)(2). FWS anticipates that it will provide four months of public comment following publication of proposed rules for each species, approximately twice the minimum required by the regulations. (Frazer decl. ¶ 27). According to FWS, critical habitat designations generally elicit considerable public comment, including requests for extension by either commentors or members of Congress. Given the importance of public participation in the conservation process, FWS argues that its anticipated public comment period, though approximately twice the statutory minimum, is reasonable. (Df. reply p. 8; Frazer decl. ¶ 26).
*1225 Following publication of a proposed rule designating critical habitat, ESA provides that a final rule must be published within one year. See 16 U.S.C. § 1533(b)(6)(A)(ii)(I). Under defendants' timeline, FWS would have the maximum one year period between issuance of the proposed rule and the issuance of the final rule for each of the species, assuming it finds a designation prudent. In contrast, CBD argues FWS should have no more than nine months, noting that the ESA contemplates that a final rule could be issued as early as 90 days after the promulgation of the proposed rule. See 16 U.S.C. § 1533(b)(5)(A).
Finally, CBD notes that its proposed timeline is relatively generous when compared with the deadlines imposed by other courts on the Service for completing new critical habitat determinations. CBD cites several cases in which courts imposed shorter timelines on FWS to issue critical habitat rules than those proposed by CBD in this case. See, e.g., Forest Guardians v. Babbitt, 174 F.3d 1178, 1193 (10th Cir. 1999) (discussing cases); Center for Biological Diversity v. Babbitt, No. C-99-3202 SC (N.D.Cal. Aug. 30, 2000) (CBD Ex. G) (ordering Service to publish proposed critical habitat rules for four listed species within 60 days and final rules within 120 days); National Resources Defense Council v. Department of Interior, No. 99-CV 5246 SVW (Ctx) (C.D.Cal. Aug. 4, 1999) (CBD Ex. E) (noting that district courts often allow between 5 and 120 days to publish proposed rules). Defendants respond by asserting that they have been forced to request extensions to comply with many of these court imposed deadlines.[6] Moreover, both defendants and BILD argue that critical habitat designations prepared in accordance with unreasonably short court-imposed timelines are vulnerable to legal challenge. (Df. reply p. 10 ("FWS's new critical habitat determinations on remand must be accomplished in a manner that will ultimately withstand judicial scrutiny."); BILD brf. p. 13 (citing cases)). By contrast, CBD contends that the Service's critical habitat designations have been overturned only because of its use of an invalid "baseline approach" to economic analysis,[7] not because of compressed court ordered deadlines.[8] (CBD reply p. 7).
*1226 D. TIMELINE FOR RECONSIDERATION ON REMAND
After carefully considering the arguments outlined above, the Court concludes that CBD's proposed timeline is unreasonable. CBD's timeline would require the Service to begin working on the reconsideration in FY 2002, although the Service has already allocated all of the $6 million in funding for critical habitat designations for already-listed species to comply with existing court orders and settlement agreements. Rather than explain how the Service can fund new critical habitat determinations in FY 2002, CBD blames the Service for its current budgetary problems and argues that insufficient appropriations are properly a matter for Congress, not the courts. CBD also contends that the Court should adopt its proposed timeline, in part, because the Service failed to "carry its burden" of showing that such compliance would be impossible. (CBD brf. at 21). Defendants, however, do not have the burden to prove that compliance with CBD's timeline would be impossible. Defendants have demonstrated to the Court's satisfaction that compliance with CBD's proposed timeline would force the Service to either violate existing court orders and settlement agreements or the Anti-Deficiency Act. This, the Court concludes, would be unreasonable.
The Court also concludes that defendants' proposed timeline is unreasonable. In particular, the Court is not persuaded that the Service cannot begin reconsidering any of its "not prudent" determinations until FY 2004. While defendants claim that all critical habitat funds for FY 2003 are already committed to existing court orders and settlement agreements, Congress has yet to pass the FY 2003 budget. Defendants' argument that the entire FY 2003 budget for critical habitat actions is already committed is therefore premature, particularly given the fact that Congress appropriated considerably more funding for listing actions in FY 2002 than the Service requested. While the Court also sympathizes with the workload facing the Service's field offices, the Court notes that CFWO, the field office with lead responsibility for most of the species, plans to hire additional biologists at the beginning of FY 2003. VFWO, the field office with lead responsibility for the other species, has two biologists working full time on the listing program and, in FY 2003, must work on only one critical habitat rule and assist another field office with designating critical habitat for the Vernal pool complex. (Frazer decl. ¶ 34). In addition, the Court notes that for some, if not all of the species, the Service may once again determine that designating critical habitat is "not prudent" pursuant to 50 C.F.R. § 424.12, thereby avoiding much of the work associated with designating critical habitat. The Court is not convinced that the workload facing these offices, though substantial, precludes any work on new critical habitat determinations until FY 2004. Finally, while some of the procedures described by defendants may not be statutorily mandated, the Court concludes that the timeline proposed by defendants, once the Service begins its reconsiderations, is reasonable. Accordingly, the Court finds the following to be a reasonable timeline:
----------------------------------------------------------
Proposed Final
Rule Rule
----------------------------------------------------------
Person's milk-vetch 7/28/03 7/28/04
----------------------------------------------------------
Lane Mountain milk-vetch 9/15/03 9/15/04
----------------------------------------------------------
Fish Slough milk-vetch 11/15/03 11/15/04
----------------------------------------------------------
*1227
San Jacinto Valley crownscale 1/30/04 1/30/05
----------------------------------------------------------
Spreading Navarretia 1/30/04 1/30/05
----------------------------------------------------------
Munz's Onion 5/30/04 5/30/05
----------------------------------------------------------
Coachella Valley milk-vetch 11/30/04 11/30/05
----------------------------------------------------------
Thread-leaved Brodiaea 11/30/04 11/30/05
----------------------------------------------------------
CONCLUSION
For the reasons stated above, the Court ORDERS the FWS to publish a proposed critical habitat designation or non-designation for the Peirson's milk-vetch by July 28, 2003; for the Lane Mountain milk-vetch by September 15, 2003; for the Fish Slough milk-vetch by November 15, 2003; for the San Jacinto crownscale by January 30, 2004; for the Spreading navarretia by January 30, 2004; for the Munz's onion by May 30, 2004; for the Coachella Valley milk-vetch by November 30, 2004; and for the Thread-leaved brodiaea by November 30, 2004. The Court further ORDERS that within one year of the publication of each proposed designation or nondesignation, the FWS publish a final rule in the Federal Register regarding critical habitat designation or nondesignation for that species.
NOTES
[1] 73 F.3d 867 (9th Cir.1995).
[2] In Conservation Council for Hawai`i, the court held that the Service had acted arbitrarily, capriciously, and contrary to law then it made "not prudent" determinations for 245 endangered of threatened plant species. The court set a timeline for reconsideration of the determinations on remand that gave the Service more than three years to issue new proposed rules for 145 of the species at issue in the case. Id. at 1079. CBD discusses the facts of this case in its opening brief, but it never reconciles the holding of the case with its later assertion that "the law is clear that FWS should have no more than two years to propose and finalize critical habitat...." (CBD reply brf. at 3).
[3] The Court rejects CBD's contention that Center for Biological Diversity v. Norton, 2001 WL 1602696 was "implicity" overruled by the Ninth Circuit's recent opinion in Biodiversity Legal Foundation v. Badgley, 284 F.3d 1046 (9th Cir.2002). In Badgley, the Ninth Circuit held that an injunction must issue where the Service fails to comply with a mandatory deadline contained in Section 4 of the ESA. Id. at 1057 ("The Service's failure to complete the listing determinations within the mandated time frame compelled the court to grant injunctive relief."). That is, the issue in Badgley was whether a court has discretion to decide whether or not to issue an injunction in the face of a violation of a Section 4 deadline. This is distinct from the question of a court's discretion in setting a timeline for agency reconsideration on remand of a "not prudent" determination, particularly where there has been no finding of a statutory violation.
[4] The $5 million requested for FY 2003 represents a $1 million reduction in funding for critical habitat actions, reflecting the FWS view that listing activities should be given a higher priority than critical habitat actions. (Frazer dec. ¶ 15).
[5] 31 U.S.C. 1341 (1994).
[6] In support of this assertion, defendants reference a chart listing its requests for extensions to complete critical habitat designations and listing rules. See Df. reply (Ex. A).
[7] In New Mexico Cattle Growers Association v. United States Fish and Wildlife Service, 248 F.3d 1277, the 10th Circuit held that the Service's incremental baseline approach to economic analysis "is not in accord with the language or intent of the ESA." Id. at 1285. Under the baseline approach, "unless an economic impact would not result but for the CHD, that impact is attributable to different cause (typically listing) and is not an `economic impact ... of specifying any particular area as critical habitat'" Id. at 1283 (quoting 16 U.S.C. § 1533(b)(2)).
[8] BILD, in its opening brief, cites several court opinions which it claims "demonstrate the Service is not properly designating critical habitat under the pressure it faces" (BILD brf. p. 13). These cases, along with other documents, are attached as exhibits to BILD's request for judicial notice, pursuant to Rule 201(b)(2) of the Federal Rules of Evidence on June 3, 2002. The Court grants this motion. In one of the attached cases, National Association of Home Builders v. Norton, No. CIV-00-903-PHX-SRB, 2001 WL 1876349 (D.Ariz. Sept. 21, 2001), the court invalidated the Service's CH designation for the cactus ferruginous pygmy-owl after the Service conceded that its economic analysis was flawed. While the Service agreed to a limited remand to reconsider the economic analysis used in the first designation, the court concluded that a "broader reconsideration of the critical habitat designation is necessary." Id. at *4. In particular, the court cited the Service's failure to conduct systematic pygmy owl surveys over all the species's habitat in Arizona. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3062807/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2010
No. 09-15529 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60317-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YVETTE SCOTT PATTERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2010)
Before BIRCH, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Randee J. Golder, appointed counsel for Yvette Scott Patterson in this direct
criminal appeal, moves to withdraw from further representation of Patterson.
Golder has filed a brief arguing that the appeal lacks merit, in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Patterson also filed a
brief with this Court asking for a reduction in sentence. After independent review
of the entire record, we agree with Golder that the appeal lacks merit.
Patterson pleaded guilty to Counts 1 and 23 of the 47 counts charged in the
indictment in exchange for dismissal of the remaining counts. During the plea
colloquy, the district court questioned Patterson to ensure that the plea was entered
knowingly and voluntarily, in compliance with Federal Rule of Criminal Procedure
11(b)(1). Although there were some technical defects in the colloquy, the “core
concerns” that Patterson was choosing to plead voluntarily, that she understood the
nature of the charges, and that she understood the consequences of her plea, were
adequately addressed. See United States v. Monroe, 353 F.3d 1346, 1354 (11th
Cir. 2003). We conclude that Patterson knowingly and voluntarily entered into the
plea agreement.
The plea agreement contained a provision waiving Patterson’s right to
appeal her sentence. The district court specifically questioned Patterson about the
waiver, and we are satisfied that Patterson understood the significance of the right
2
she was waiving and that she waived it voluntarily. We conclude that the waiver is
enforceable. See United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir.
1993).
Although Patterson waived her right to appeal her sentence, we mention that
the district court followed the government’s recommendation and sentenced her
below the United States Sentencing Guidelines range for her offenses. The
guidelines range for Count 1, combined with the mandatory, consecutive term for
Count 23, placed Patterson’s recommended imprisonment range at 94 to 108
months. She received a sentence of 70 months imprisonment.
Our independent review of the record reveals no arguable issues of merit.
Golder’s motion to withdraw is GRANTED, and Patterson’s conviction and
sentence are AFFIRMED.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3369653/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
PRETRIAL ORDER
1.) On or before February 16, 1994, the defendant shall inspect all baseball cards in the plaintiff's possession at the plaintiff's place of business and shall make a demand for the value of his one half interest therein on or before said date.
2.) On or before February 16, 1994, the defendant shall complete his search and shall produce the results of the search for inspection by the plaintiff, all summaries and day sheets, monthly, quarterly and annual summaries and all credit card statements.
MOTTOLESE, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/96102/ | 194 U.S. 401 (1904)
HY-YU-TSE-MIL-KIN
v.
SMITH.
No. 209.
Supreme Court of United States.
Submitted April 12, 1904.
Decided May 16, 1904.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*405 Mr. Samuel Herrick and Mr. John C. Gittings for appellant.
Mr. R.J. Slater and Mr. T.J. Hinkle for appellee.
*407 MR. JUSTICE PECKHAM, after making the above statement of facts, delivered the opinion of the court.
The first objection made by counsel for the appellant is that the act of Congress of August 15, 1894, 28 Stat. 286, 305, under which the complainant instituted this suit, is not applicable to this case, and, therefore, the court has no jurisdiction of the subject matter. The objection made by the appellant is, that to make the act applicable to the appellee would be to give it a retrospective effect, while its purpose is plainly prospective. The objection is untenable.
The appellee claims that under the act of 1885 she was entitled to an allotment of land in the Umatilla reservation, and that it was improperly refused her. The act provides (p. 305): "That all persons who are in whole or in part of Indian blood or descent, who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment act or under any grant made by *408 Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any act of Congress, may commence and prosecute or defend any action, suit or proceeding in relation to their right thereto in the proper Circuit Court of the United States."
That this act embraces the case of a person situated, as was the appellee at the commencement of this suit, seems to us so plain as to require no further argument. It is not in any way a retrospective operation which is thus given to the act, except as it applies, by its language, to any one who was then (at the time of the passage of the act of 1894) entitled to an allotment. She claims that she was so entitled to an allotment of the land in question, and that it had been improperly allotted to defendant (appellant), and that the act permits her to assert her claim in the Circuit Court, as against the appellant, and to have it adjudged between them. We have no doubt she has that right.
The next objection is that the complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege the residence of the complainant (appellee) on the reservation at the time of the passage of the allotment act (1885), and shows upon its face that her claim for this allotment was decided against her by the Secretary of the Interior in 1891, long prior to the passage of the act of 1894, under which she is now suing, and when the sole authority for settling disputes concerning allotments resided with the Secretary of the Interior.
We are of opinion that it was not necessary to allege or prove the residence of the appellee on the reservation at the time of the passage of the act of 1885, called the "Allotment Act." That act had reference, as its preamble states, to the "Confederated bands of Cayuse, Walla Walla and Umatilla Indians, residing upon the Umatilla reservation, in the State of Oregon."
It related to the residence of the bands as bands and not as individual Indians, many of whom were residing off the particular *409 reservation and yet within the country theretofore ceded to the United States by the treaty of 1855. Under the act mentioned a commission was appointed by the President, the members of which were to go upon the reservation and ascertain as near as might be the number of Indians who would remain on that reservation and who should be entitled to take lands in severally thereon, and the amount of land required to make the allotment, and the commission was then to determine and set apart so much of their reservation as should be necessary to supply agricultural lands for allotments in severalty. The commission was to report to the Secretary of the Interior the number and classes of persons entitled to allotment as near as they might be able to do so, and if the report were approved by the Secretary of the Interior the tracts selected should thereafter constitute the reservations for those Indians, and within which the allotments provided for in the act should be made.
Under this act a report had been made to the Secretary of the Interior by the commission some time after the conclusion of their labors in the Indian countries in 1891, and an opinion was asked by the Department of the Interior from the Assistant Attorney General regarding the rights of the appellee, among others, to an allotment under that act which had been refused by the commission. An opinion was delivered on July 1, 1893, by one of the Assistant Attorneys General, in which he held that the appellee was not entitled to an allotment, but upon reviewing that opinion, on June 28, 1895, he held that she was entitled thereto. In his latter opinion he thought that while it was agreed in the treaty of 1855, already mentioned in the statement of facts, that the Indians should remove within one year to the permanent reservation (which in this case was the Umatilla reservation), yet there was no penalty affixed to its violation, and the failure of the Indians to so remove and reside would not work a forfeiture of their tribal rights, and that while the appellee was not residing upon this reservation at the time that the act of 1885 became operative, she was, *410 so far as that fact was concerned, in the same position as a majority of the Indians belonging to the confederated tribes mentioned in the act; that the record showed that when the agents of the Government went on this reservation they found but few Indians actually residing there, and it was only after weeks of sending out runners and using all the means at their disposal that the commissioners succeeded in securing the attendance of a majority of the male adults of these tribes. The Assistant Attorney General gave the opinion that that was itself a recognition by the department that residence upon the reservation was not essential to tribal recognition.
It is plain that the agreement in the treaty of 1855, by which the tribes and bands agreed to remove to and settle upon the reservation within one year after the ratification of this treaty, had not been lived up to so far as actual residence upon the reservation of individual Indians was concerned. Thirty years after that time, when the act of 1885 was passed, it is seen that a majority of the Indians were not even then actually residing, in the strict sense of the term, upon this reservation. There existed under the treaty an exclusive right among the Indians of taking fish from the streams running through and bordering upon the reservation, and at all other usual and accustomed stations, in common with the citizens of the United States, and the privilege of erecting suitable buildings for curing such fish, and also the right of pasturing their stock on unclaimed lands in common with the citizens of the United States was secured to them. The right to roam over so much of the territory as was ceded by them to the Government as they had been accustomed to do and such as were not settled upon or claimed for individual use by citizens of the United States seems to have been recognized, or to have been expected by the Government, although the residence of the tribe or band as such was to be within the reservation mentioned in the treaty. It was also said in the opinion regarding the facts in this case:
"The trouble with these claimants seems to have arisen out *411 of their failure to be upon the reservation when the census roll of the tribe was made up. They arrived at said reservation in reply to the communication sent to them by one of the Indians the day after the census takers had left the reservation, to wit, on the 7th day of June, 1887, or rather Mrs. Morisette arrived upon that day and Mrs. Smith shortly afterwards. They were recognized by Homily, chief of the Walla Wallas, and various other head men and members of the confederated tribes, and the Indian agent then in charge assigned each one of them to a parcel of land, after selection, and they have made valuable improvements on and have continued to reside thereon, as far as this record shows, ever since, the value of their improvements amounting to a considerable sum. They began residence upon the land about the middle of June, and their reasons for not having arrived sooner being that they lived some two hundred miles away and were without money to make the trip."
Pursuant to this opinion of the Assistant Attorney General, the Department of the Interior reconsidered its former decision, and held that the appellee was entitled to an allotment under the act of 1885. We concur with the latter opinion of the Assistant Attorney General, and hold that it was not necessary that the individual Indian of the tribes mentioned in the act of 1885 should be actually residing on the reservation at the time of the passage of that act. If the individual were a member of the tribe or band, recognized as such by his chiefs, it was not necessary that such person should be an actual resident of the reservation when the act was passed. The fact found is that the appellee herein is a full-blooded Indian woman, and was at all the times mentioned a member of the Walla Walla band or tribe of Indians, and at the time of the original allotment resided upon the reservation in the State of Oregon. When such a large percentage of allottees upon this reservation resided as did the appellee, elsewhere than actually upon the reservation at the date of the passage of the act of 1885, it cannot be that the act passed was intended *412 to limit the right to an allotment to those actually residing on the reservation to the exclusion of a majority of the members of the different bands or tribes. The fact of such non-residence is presumed to have been known by Congress, and the act should be construed with reference to that knowledge.
The purpose of the treaty and of the act evidently was to induce the Indians and encourage them so far as possible to break up the tribal relations and adopt the habits of an agricultural people, and it would seem that those persons who were Indians and members of one or the other bands or tribes of Indians mentioned in the treaty and in the act and recognized by the chief of the tribe, should have the right to an allotment, especially if recognized by the Land Department as entitled thereto.
The purpose of the act would fall very far short of accomplishment were the allotments confined exclusively to those actually residing within the limits of the reservation, while those who were absent therefrom, but still within the old limits of the land, and were members of the band, recognized as such, should be held not entitled to the allotments under the act, simply because of residence outside of the described limits of the reservation.
The appellant further contends that the weight of the evidence shows the appellee is not a member of the Walla Walla tribe of Indians. We are not disposed to review that question of fact, which has been determined by the special examiner and adopted by the Circuit Court and the Circuit Court of Appeals. There is evidence upon which the fact as found may be based, and it is not so plainly erroneous as to call upon this court to vary from its usual rule not to review the unanimous finding upon questions of fact of two courts, unless such finding is plainly erroneous. Stuart v. Hayden, 169 U.S. 1, 14; Baker v. Cummings, 169 U.S. 189, 198; The Carib Prince, 170 U.S. 655; Towson v. Moore, 173 U.S. 17; Smith v. Burnett, 173 U.S. 430, 436; Brainard v. Buck, 184 U.S. 99.
Another objection is made that the United States is a necessary *413 party defendant, and, not being before the court, no binding decree can be entered herein.
The contest here is between two Indians, each claiming the same land under an allotment which was made last to the appellant herein. The United States has no interest in the result. Both parties are Indians claiming under the act of 1885.
In our opinion the claim that the United States must be made a party is without foundation. Under the act of 1894 (supra) the Circuit Courts are given jurisdiction to try and determine any action of this nature, involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty, "and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him. . . . Provided, That the right of appeal shall be allowed to either party as in other cases." The case at bar was commenced prior to the amendment of the statute of 1894 by the act of February 6, 1901, 31 Stat. 760, wherein it is provided that the United States shall be a party defendant, and the case must be decided without regard to the amendment.
Under this statute there is no provision rendering it necessary, in a private litigation between two claimants for an allotment, to make the United States a party. The statute itself provides that the judgment or decree of the court, upon being properly certified to the Secretary of the Interior, is to have the same effect as if the allotment had been allowed and approved by the Secretary. This provision assumes that an action may be maintained without the Government being made a party, and provides for the filing of a certificate of the judgment and its effect, and the Government thereby in substance and effect consents to be bound by the judgment and to issue a patent in accordance therewith. The first section of the act of 1885 (supra) provides that an allotment made by *414 or under the direction of the Secretary of the Interior entitles the allottee to a patent for the land allotted to him. And the filing of the certificate of the judgment decreeing an allotment is to have the same effect with the Secretary as if the allotment had been made by him. This is sufficient.
Upon the facts herein found we are also of opinion that the appellee selected the lands in controversy within the meaning of the statute long prior to the selection made by the appellant, and that she is not concluded by the selection she afterwards made of another tract of land. The act of 1885 provided that the selection of land for allotment should be made by heads of families. The appellee was such and was so recognized by the Land Department. By section 6 of the act the Secretary of the Interior had power to determine all disputes between Indians respecting the allotments. If more than one person claimed the same land, it is, as we think clear, that the dispute should be decided and the allotment made in favor of the one whose priority of selection and residence and whose improvements on the land equitably entitled such person to the land. The Government has proceeded upon such principle heretofore, Shepley v. Cowan, 91 U.S. 330, and it is a right and eminently just principle. The defendant knew of the prior possession of the appellee, at the time he made his selection, and knew of her improvements upon the land, for they were open and visible, while he had made none, and had obtained possession by direction of the Land Office, only because of the mistake in law which denied the right of allotment to appellee on account of her absence when the census was taken. Defendant with all this knowledge selected the land and never offered to pay a dollar for the improvements and never has paid anything therefor, nor does he allege in his answer, and there is no proof that he has since made any improvements on the land or expended anything thereon. When the Land Department corrected its mistake of law the appellee had the right to insist upon her original selection. Her selection of other land, after the department had reconsidered her case, *415 does not prevent her from claiming this land from defendant. She selected the other land only after advising with the Indian officer and upon his statement that it would not affect her claim for the land she had previously selected and from which she had been ordered by the officers of the Government. She has never received any patent from the Government for this other land, and nothing further need be done by her in order to authorize the Government to cancel the allotment for this other land at the time when patent issues for the original selection.
We find no error in the judgment, and it is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2101793/ | 233 S.W.3d 766 (2007)
STATE of Missouri, Respondent,
v.
Donald HENNINGFELD, Appellant.
No. ED 88846.
Missouri Court of Appeals, Eastern District, Division Three.
September 25, 2007.
*767 Jessica Hathaway, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jaime Wilson Corman, Jefferson City, MO, for respondent.
Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
ORDER
PER CURIAM.
Donald Henningfeld ("Defendant") appeals from the judgment entered after a jury convicted him of forcible sodomy ("Count I"), assault in the second degree ("Count V"), kidnapping ("Count VII"), two counts of armed criminal action ("Count VI" and "Count VIII"), and two counts of attempted forcible sodomy ("Count IX" and "Count XI"). The trial court sentenced Defendant to life imprisonment for Count I; twenty years' imprisonment for Count V and twenty years' imprisonment for Count VI, to run concurrently with each other, but consecutively to all other counts; thirty years' imprisonment for Count VII and thirty years' imprisonment for Count VIII, to run concurrently with each other but consecutively to all other sentences; twenty years' imprisonment for Count IX and twenty years' imprisonment for Count XI, to run concurrently to each other but consecutively to all other sentences. Defendant contends that the trial court erred in excluding evidence of a motive for the victim to lie and also in permitting improper impeachment evidence against a witness. Defendant further asserts that the verdict for Count V was defective, and that the trial court made an ambiguous verbal pronouncement of sentence.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance with Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2101805/ | 233 S.W.3d 779 (2007)
Arthur WHITE, Claimant/Appellant,
v.
SPECTAGUARD ACQUISITION, L.L.C., Employer/Respondent, and
Division of Employment Security, Respondent.
No. ED 88983.
Missouri Court of Appeals, Eastern District, Division Two.
September 25, 2007.
Richard Cameron Homire, Valley Park, MO, for appellant.
Marilyn Gail Green, Jefferson City, MO, for Division of Employment Security.
Spectaguard Acquisition, L.L.C., Garden City, NY, pro se.
Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW, J., NANETTE A. BAKER, J.
ORDER
PER CURIAM.
Appellant Arthur White ("Employee") appeals the decision of the Labor and Relations Commission (the "Commission"), upholding the decision of the Appeals Tribunal of the Division of Employment Security, finding that White was discharged from Spectaguard Acquisition, L.L.C. (the "Employer") due to misconduct and therefore, was disqualified from receiving unemployment benefits. We affirm.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054244/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2006
STATE OF TENNESSEE v. JUDGE BROOKS
Direct Appeal from the Criminal Court for Shelby County
No. 03-08238 Joseph B. Dailey, Judge
No. W2004-02834-CCA-R3-CD - Filed August 31, 2006
A Shelby County Criminal Court jury convicted the appellant, Judge Brooks, of first degree
premeditated murder, and the trial court sentenced him to life imprisonment. In this appeal, the
appellant claims (1) that the trial court improperly admitted the victim’s prior statements into
evidence under the hearsay rule’s forfeiture by wrongdoing exception, Tennessee Rule of Evidence
804(b)(6), and in violation of the Confrontation Clause; (2) that the trial court erred by admitting
evidence of the appellant’s prior assault on the victim pursuant to Tennessee Rule of Evidence 404(b);
and (3) that the evidence is insufficient to support the conviction. While we conclude that the trial
court improperly admitted hearsay into evidence, we conclude that the error was harmless and affirm
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
JOSEPH M. TIPTON , J., filed a concurring and dissenting opinion.
Garland Erguden and Robert Wilson Jones (on appeal) and Tim Albers and Donna Armstard (at trial),
Memphis, Tennessee, for the appellant, Judge Brooks.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant beat his girlfriend, Deborah Chance, to death on July 20 or 21, 2003. Harlie
E. Smith, the victim’s uncle, testified that he lived in Springfield, Tennessee and that the victim
telephoned him from Memphis on Saturday, July 19, 2003. The victim told Smith that she and the
appellant were having a lot of problems and that she did not know how to get out of the relationship
or what to do. She said that the appellant had been accusing her of “running around with other men,”
and Smith told her to leave the appellant and come to Springfield. About 6:00 p.m. the next day, the
victim telephoned Smith again. She sounded upset and told Smith that the appellant had been beating
her all day, that she was afraid of him, and that she wanted to get away. Smith offered to drive to
Memphis to pick up the victim, but the victim said she was going to try to sneak away and come to
Springfield. Smith heard a man’s voice in the background. The man said that the victim was not
going anywhere, that she was his bitch and his whore, and that he was going to kill her. Smith had
never met the appellant before, but the victim told Smith that the man was the appellant. The
appellant wanted to speak with Smith, but Smith refused to talk to him. Smith said that in May 2003,
the victim had telephoned him and told him that she was coming to Springfield because the appellant
had beaten her. He said that when the victim arrived at his home, her eyes were bruised, the side of
her head was swollen, she had bruises all over her arms, and some of her hair had been pulled out.
The victim told Smith that the appellant had caused her injuries.
On cross-examination, Smith testified that while the victim visited him in May 2003, she
drank beer but was not drunk. The victim had a good job in Memphis and wanted to return to it.
During Smith’s July 19 telephone conversation with the victim, the victim did not sound drunk and
said that she loved the appellant but needed to get away from him. During Smith’s July 20 telephone
conversation with the victim, the victim asked him to telephone the police and send them to Texas
Street. The victim told Smith that she would “try to have [the appellant] there because she had a
warrant on him.” Smith did not call the police but telephoned the victim’s ex-boyfriend, who was
familiar with the Memphis area, and asked him to call the police.
Officer Jeremy Wells of the Memphis Police Department testified that he was on patrol on
July 21, 2003, and was dispatched to an apartment at 1290 Texas Street about 3:00 a.m. When he
arrived, the appellant flagged him down and said that he had telephoned the police. The appellant
was hysterical and told Officer Wells that his girlfriend was inside and might be dead. The appellant
told the officer, “We got to fighting earlier, and I think I might have killed her.” When backup
officers arrived, Officer Wells patted down the appellant, handcuffed him, and put him in a patrol car.
Officer Wells and some other officers went into the apartment, and Officer Wells saw a large amount
of blood on the living room floor and walls. The appellant had told the officers that the victim was
in the bathtub, and the officers found her dead there. Officer Wells noticed pieces of glass all over
the apartment and called for an ambulance. On cross-examination, he testified that the appellant fully
cooperated with him and was anxious for him to go into the apartment. He did not remember if he
smelled alcohol on the appellant.
Memphis Police Officer David Galloway testified that he was dispatched to the scene. He saw
blood spatter on the walls and blood on the living room floor, and the victim was lying face-down in
the bathtub. He did not remember water being in the tub or the victim being wet. Officer Galloway
photographed the scene and took measurements. He saw broken glass on the living room floor, a
bloody pillow near the bedroom doorway, a bloody pillow in the kitchen doorway, a broken lamp in
the kitchen trash can, and a bloody t-shirt on the living room couch. On cross-examination, Officer
Galloway did not recall if beer bottles were in the trash can.
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Melissa Horner of the Shelby County Criminal Court Clerk’s Office testified that on May 16,
2003, the appellant had been charged with assaulting the victim. According to the victim’s affidavit
of complaint, the appellant hit the victim’s face with his fist on May 10, 2003. He also stomped on
her face and chest. The appellant’s niece witnessed the assault and told the appellant to move away
from the victim. Upon seeing a police car, the appellant fled the scene. In the affidavit, the victim
stated that she received black eyes, a “busted” lip, knots to her face and head, and bruises on her body.
The victim stated, “Due to this incident and prior attacks of violence, I [desire] to have no further
contact with him.”
Shereka Wright, an investigator with the Shelby County District Attorney’s Domestic
Violence Unit, testified that she took pictures of the victim on May 15, 2003. The victim was
nervous, scared, and looked like she was about to cry.
Latisa Bridges, the appellant’s niece, testified that the appellant was the victim’s boyfriend
and that the appellant and the victim lived together. One night in May 2003, the victim drove to
Bridges’ home. Bridges and the victim were going to a nightclub, but the victim told Bridges that she
needed to give the appellant some keys. The victim and Bridges drove to Texas Street, and the
appellant was standing outside in the rain. The victim got out of the car and gave him the keys, and
the appellant walked away. The victim walked up behind the appellant and hit him on the back of
the head. The appellant turned around and hit the victim with his open hand. The victim fought back
and spit blood on him. The appellant hit the victim with an open hand again, and the victim scratched
and fought him. The appellant kept telling the victim to leave, but the victim “proceeded to . . . edge
it on more.” The appellant hit the victim with his fist, knocked her down, and kicked her. Bridges
got out of the car, grabbed the appellant, and said, “Don’t do that.” The appellant said, “Well get her
and go. Tell her to leave me alone.” Bridges put the victim in the car. She stated that a neighbor
must have telephoned the police because the police arrived at the scene. However, the appellant had
gone into the apartment and would not answer the door. Bridges stated that the victim had a “busted”
lip, black eyes, and a knot over her right eye.
On cross-examination, Bridges testified that when the victim arrived at Bridges’ home, the
victim appeared fine but was drunk. After the victim gave the appellant the keys, the victim hit the
appellant first, and the appellant smacked the victim’s face. The appellant never threatened Bridges.
When the police arrived at the Texas Street apartment, the victim told them that she did not want to
press charges against the appellant because she loved him. About one or two months before the May
2003 assault, the appellant had left the victim and moved in with Bridges. During that time, the
victim called the appellant’s cellular telephone and Bridges’ home constantly.
Dr. O.C. Smith, the Shelby County Medical Examiner at the time of the victim’s death,
performed the victim’s autopsy. He testified that the victim had bruises of varying ages on her arms
and legs and recent bruises on her forehead, neck, and right wrist. Older bruises were mainly on the
victim’s arms and legs, and some of the bruises were more than forty-eight hours old. The victim also
had patterned scrapes on her skin. One of the scrapes was under her left eyebrow, and another scrape
was on the left side of her neck. Smith believed that an instrument, such as a knife with a serrated
-3-
edge, could have caused the scrapes. The victim had lacerations, which could have been caused by
a fist, on the bridge of her nose and on either side of her nostrils. The victim’s cheek and lip were
bruised, the inside of her lip was bruised, and the inside of her mouth was torn. The victim’s eyes
were black, which could have resulted from blood pooling around the eyes and did not necessarily
indicate that her eyes had been injured. The victim had a superficial “flick,” which is a small wound
made by the tip of a knife, below her left ear and a laceration behind that ear. Blood had collected
under the victim’s scalp, and she had bleeding to the surfaces of her brain. The victim died of brain
swelling, and the pattern of injuries to the back of the victim’s head indicated that she may have been
struck multiple times with a shoe.
Dr. Smith testified that the victim was five feet, four inches tall and weighed one hundred
fifty-six pounds. She had a blood alcohol content (BAC) of .244, and a person becomes under the
influence of alcohol with a BAC of .05. The victim’s clothes and head were wet, and water in her
stomach indicated that she may have been underwater for some time. The victim suffered blunt
trauma to the head, which injured the brain, and Dr. Smith concluded that a fall into the bathtub
probably did not cause her head injuries or death.
On cross-examination, Dr. Smith testified that the chest, arms, hands, and legs are areas that
a person commonly bruises during daily living. He said that some of the victim’s bruises could have
resulted from her falling down and that falling on a knife could have caused the scrapes and flick on
her body. Dr. Smith classified the victim’s BAC as “high,” impairing her coordination and causing
her to fall down. He said that the victim had cirrhosis of the liver and that people with liver damage
are more likely to bleed and bruise. On redirect examination, Dr. Smith stated that the patterns of the
victim’s head injuries were consistent with an assault.
Jessie Mae Anderson testified for the appellant that she worked at the J&J Lounge in
Memphis. The appellant and a woman came into the bar about 4:00 p.m. on Sunday, July 20, 2003.
The appellant and the woman each drank a beer, but they were not drunk. The woman did not seem
to have a problem with the appellant, and they did not fight. The couple left the bar between 7:00 and
9:00 p.m. On cross-examination, the State showed Anderson a photograph of the victim, and
Anderson testified that the victim looked like the woman in the bar.
Mike Triplett of the general sessions criminal court clerk’s office testified that the victim
signed a petition for order of protection against the appellant on May 15, 2003. In the petition, the
victim alleged that on May 10, 2003, the appellant hit her face with his fist and stomped on her face
and chest. As a result of the petition, an order of protection was issued. However, the order of
protection was dismissed on June 2, 2003, because the victim failed to appear in court and prosecute
the case. On cross-examination, Triplett testified that on May 16, 2003, a warrant was issued for the
appellant for assaulting the victim. According to the warrant, it was executed on July 22, 2003.
The appellant chose not to testify. Betty Zabt, the victim’s aunt, testified on rebuttal that she
had met the appellant previously, had talked with him, and would recognize his voice. In May 2003,
the victim visited Zabt for a few days in Springfield, Tennessee. Clumps of the victim’s hair were
-4-
missing, the victim’s eyes were black, and she was bruised. Zabt heard the victim talk on the
telephone with the appellant and heard the appellant say, “You bitch, I will kill you.” On cross-
examination, Zabt acknowledged that the appellant’s threat frightened her and that she asked the
victim not to return to Memphis. She told the victim that the appellant was going to kill her, but the
victim wanted to return to Memphis because she did not want to lose her job. The jury convicted the
appellant of first degree premeditated murder.
II. Analysis
A. Victim’s Prior Statements
The appellant claims that the trial court improperly admitted into evidence statements the
victim made to Harlie Smith in May 2003 about the source of her injuries and the victim’s July 20
and 21 telephone conversations with Smith; the victim’s May 2003 affidavit of complaint; and Latisa
Bridges’ testimony about the appellant’s assaulting the victim in May 2003. He contends that all of
the evidence was hearsay and inadmissible under the forfeiture by wrongdoing exception to the
hearsay rule, Tennessee Rule of Evidence 804(b)(6). He also contends, without any discussion or
analysis, that the evidence violated his constitutional right to confrontation. The State claims that,
given the May 2003 assault case pending against the appellant at the time of the victim’s death, the
proof established that the appellant acted to procure the victim’s unavailability as a witness against
him and, therefore, that the victim’s statements were admissible under the exception to the hearsay
rule. The State also contends that the appellant has waived his claim regarding a Confrontation
Clause violation because he murdered the victim. We agree with the appellant that the forfeiture by
wrongdoing exception to the hearsay rule does not apply in this case. However, we conclude that the
trial court’s error in admitting the hearsay evidence was harmless. As to the appellant’s claim that
his confrontation rights were violated, we agree with the State that the appellant has waived this issue
because he procured the victim’s unavailability.
1. Hearsay
Before the State called its first witness, it told the trial court that the victim’s uncle, Harlie
Smith, would testify regarding his July 20 and 21 telephone conversations with the victim. Later, in
a jury-out hearing, Smith testified about the conversations, and the defense argued that much of
Smith’s testimony was inadmissible hearsay. The State claimed that the evidence was admissible
under the forfeiture by wrongdoing exception to the hearsay rule. The defense argued that the
exception did not apply in this case because the State failed to present any proof that the appellant
killed the victim in order to prevent her from testifying against him in the assault case. The trial court
agreed with the State, stating that
it would seem to be to me totally illogical, from a public-policy
standpoint, to allow someone who procures the death of a witness to
then benefit from the absence of that witness’s testimony and whether
one was able to demonstrate that that was the specific reason for
-5-
causing the death or not. And I just can’t - and there’s nothing of that
sort that’s mentioned in the commission comments at all. It simply
says Rule 804(b)(6) adds a new hearsay exception.
Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Generally, hearsay statements are inadmissible unless they fall under one of the recognized
exceptions to the hearsay rule. Tenn. R. Evid. 802. The “forfeiture by wrongdoing” exception allows
the admission of a hearsay statement “against a party that has engaged in wrongdoing that was
intended to and did procure the unavailability of the declarant as a witness.” Tenn. R. Evid. 804(b)(6)
(emphasis added). “Even intentional misconduct, such as killing a witness, does not qualify unless
done for the purpose of procuring the witness’s unavailability.” Neil P. Cohen, et al., Tennessee Law
of Evidence § 8.39[2][c] (5th ed. 2005). In determining whether hearsay is admissible under the rule,
the trial court must conduct a jury-out hearing and “find that a preponderance of the evidence
establishes 1) that the defendant was involved in or responsible for procuring the unavailability of the
declarant; and 2) that a defendant’s actions were intended, at least in part, to procure the absence of
the declarant.” State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006).
First, we must determine whether the statements at issue were hearsay. Smith’s testimony
about what the victim told him during their telephone conversations, the victim’s statements to him
about the May assault, and the victim’s statements in her affidavit of complaint were hearsay pursuant
to Tennessee Rule of Evidence 801(c). The pertinent part of Latisa Bridges’ testimony, however, was
not hearsay. Bridges’ testimony focused on the May 2003 fight she witnessed between the victim and
the appellant. She did not testify as to any statements made by the victim to the appellant during the
altercation.
Next, we must determine whether any of the hearsay evidence was admissible under the
forfeiture by wrongdoing exception. Our supreme court’s recent analysis in Ivy is helpful. Like the
appellant in the present case, David Ivy was frequently violent toward his girlfriend, LaKisha Thomas.
In May 2001, Thomas called the police to her apartment and told the responding officer that Ivy had
threatened to kill her because she wanted to end their relationship. Id. at 139. On June 6, 2001,
another officer responded to a call and found the victim with a cut on her head, bruises on her chest,
and a black eye. Id. Thomas told the officer that Ivy had attacked her and had threatened to kill her.
Id. After the second incident, Thomas’ cousins drove her to the police department, where she swore
out a warrant against Ivy for assault. Id. En route to and from the criminal justice center, Thomas
and her cousins saw Ivy following them. Id. at 140. After swearing out the warrant and leaving the
justice center, Thomas and her cousins stopped at a liquor store, where Ivy approached Thomas and
threatened to kill her if she “‘put the police in his business.’” Id. Two days later, Ivy shot Thomas
to death. Id. At trial, both of the officers who had responded to Thomas’ calls testified that Thomas
told them Ivy had threatened to kill her, and one of the officers testified about Thomas’ physical
injuries. Id. at 139. Thomas’ relatives also testified that they saw Ivy pull Thomas’ hair, that Thomas
told them Ivy had kicked in her door and had broken her furniture, and that Thomas told them Ivy
would allow her to leave her apartment for only one hour each day. Id. The trial court allowed the
-6-
hearsay testimony under Rule 804(b)(6). Id. at 146. The jury convicted Ivy of first degree
premeditated murder and sentenced him to death.
On appeal, this court held that the proof did not establish by a preponderance of the evidence
that Ivy acted with the intent to procure Thomas’ unavailability as a witness. See State v. David Ivy,
No. W2003-00786-CCA-R3-DD, 2004 Tenn. Crim. App. LEXIS 1154, at *40 (Jackson, Dec. 30,
2004). In reaching this conclusion, our court noted that the warrant for Ivy’s arrest was not executed
until after Thomas’ death and that there was no evidence Ivy was even aware that a warrant had been
issued. Id. Our supreme court, however, agreed with the trial court, stating,
The preponderance of the evidence supported the trial court’s finding
that Ivy killed Thomas to prevent her from contacting police about his
aggravated assault on June 6, 2001. Ivy followed Thomas as she drove
to and from the Criminal Justice Center in Memphis, Tennessee, to
swear out a warrant against him that was never served. He killed her
only two days later. Given these facts, we disagree with the Court of
Criminals Appeals’ view that Rule 804(b)(6) required that Ivy had to
know about the issuance of an arrest warrant for the aggravated
assault; moreover, there was no requirement that Ivy’s sole intention
had to be preventing Thomas from testifying against him in a
proceeding based on the aggravated assault.
Ivy, 188 S.W.3d at 147.
Turning to the instant case, we conclude that the preponderance of the evidence does not
support a finding that the appellant killed the victim for the purpose of procuring her unavailability
as a witness. The facts in the present case are significantly different from those in Ivy. Ivy followed
Thomas to and from the police department and threatened to kill her if she “put the police in his
business.” The evidence in the present case, however, does not show that the appellant knew the
victim had filed an affidavit of complaint or that a warrant had been issued against him. Although
the police arrived at the appellant’s apartment soon after the May 2003 assault, the victim told the
officers that she did not want to press charges against him. Moreover, although the warrant was
issued on May 16, 2003, it was not executed until July 22, 2003, one day after the victim’s death.
Finally, while Ivy killed the victim two days after Thomas swore out the warrant, the appellant and
the victim in the present case continued to live together, and the appellant killed the victim more than
two months after the warrant was issued. Given the facts of this case, we conclude that the victim’s
statements to her uncle and in her affidavit were not admissible under the forfeiture by wrongdoing
exception.
Nevertheless, we hold that the trial court’s error in admitting the hearsay evidence was
harmless. Latisa Bridges testified as an eyewitness about the appellant’s May 2003 assault on the
victim, and Betty Zabt testified that she heard the appellant threaten to kill the victim. Although
Zabt’s testimony was hearsay, it was admissible pursuant to Tennessee Rule of Evidence 803(1.2) as
-7-
an admission by a party-opponent.1 Given the testimony of these two witnesses, Dr. Smith’s
testimony about the victim’s injuries, the photographs depicting the victim’s extensive injuries, and
the appellant’s admitting to Officer Wells that he fought with and possibly killed the victim, we
conclude that the trial court’s error did not affect the outcome of this case. See Tenn. R. Crim. P.
52(a); Tenn. R. App. P. 36(b).
2. Confrontation Clause
The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Likewise, Article I, Section 9 of the Tennessee Constitution provides that “in all criminal
prosecutions, the accused hath the right to . . . meet the witnesses face to face.” In Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme Court examined the right to
confrontation. The court summarized the factual basis of the case by saying, “Petitioner . . . stabbed
a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia’s
tape-recorded statement to the police describing the stabbing, even though he had no opportunity for
cross-examination.” 541 U.S. at 38, 124 S. Ct. at 1356-57. The court held that “[w]here testimonial
evidence is at issue, . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68, 127 S. Ct. at 1374.
In addition to this holding, the Supreme Court noted in Crawford that “[t]he rule of forfeiture
by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable
grounds.” Id. at 62, 127 S. Ct. at 1370. In other words, “if a witness is absent by [the defendant’s]
own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place
of that which he has kept away. . . . The rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong.” Reynolds v. United States, 98 U.S. 145, 158-59
(1879). Arguably, the rule of forfeiture by wrongdoing should require a showing that the defendant
killed the witness with the specific intent to prevent the witness from testifying, just as the forfeiture
by wrongdoing exception to the hearsay rule requires. However, the rule of forfeiture by wrongdoing
with respect to the Confrontation Clause must be distinguished from the forfeiture by wrongdoing
exception to the hearsay rule discussed previously.
The Sixth Circuit Court of Appeals made this distinction in United States v. Garcia-Meza, 403
F.3d 364 (6th Cir. 2005). In that case, the defendant became angry and killed his wife after she
danced with another man at a party. Id. at 366-67. Five months before her death, police officers had
responded to an assault call and had found the victim beaten, frightened, and panicked. Id. at 367.
The victim told the officers that the defendant had punched her repeatedly and had threatened to kill
her. Id. Evidence about the prior assault was admitted at trial, and, on appeal, the defendant argued
that although the victim’s statements about the assault were excited utterances, the statements were
1
W e note that although the appellant’s telephone threat occurred two months before the killing, “remoteness
affects only the weight, not the admissibility of the evidence.” State v. Smith, 868 S.W .2d 561, 575 (Tenn. 1993).
-8-
testimonial and violated his right to confrontation under Crawford. However, the Sixth Circuit held
that the appellant was not entitled to relief under the Confrontation Clause, stating,
We need not decide today . . . whether a victim’s excited utterance
made to an investigating police officer is testimonial, for the
Defendant has forfeited his right to confront [the victim] because his
wrongdoing is responsible for her unavailability. As noted above, in
this case, defendant admitted that he killed [the victim], thereby
procuring her unavailability to testify. The dispute at trial concerned
not whether he was the one to stab her, but whether he acted with
premeditation to support a conviction of first degree murder. Under
these circumstances, there is no doubt that the Defendant is
responsible for [the victim’s] unavailability. Accordingly, he has
forfeited his right to confront her.
Id. at 370 (citations omitted). Moreover, the Sixth Circuit specifically rejected the defendant’s claim
that the rule of forfeiture by wrongdoing required a showing that the defendant killed the victim with
the specific intent to prevent her from testifying. As the Sixth Circuit explained,
Though the Federal Rules of Evidence may contain such a
requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth
Amendment does not depend on, in the recent words of the Supreme
Court, “the vagaries of the Rules of Evidence.” Crawford, 124 S. Ct.
at 1370. The Supreme Court’s recent affirmation of the “essentially
equitable grounds” for the rule of forfeiture strongly suggests that the
rule’s applicability does not hinge on the wrongdoer’s motive. The
Defendant, regardless of whether he intended to prevent the witness
from testifying against him or not, would benefit through his own
wrongdoing if such a witness’s statements could not be used against
him, which the rule of forfeiture, based on principles of equity, does
not permit.
Id. at 370-71. Other courts have also concluded that the forfeiture by wrongdoing exception to the
Confrontation Clause does not require a showing that the defendant procured the witness’s
unavailability for the purpose of preventing the witness from testifying. People v. Bauder, 712
N.W.2d 506, 514-15 (Mich. App. 2005); see United States v. Mayhew, 380 F. Supp. 2d 961, 966-97
(S.D. Ohio 2004); People v. Moore, 117 P.3d 1, 5 (Colo. Ct. App. 2004); State v. Meeks, 88 P.3d
789, 794 (Kan. 2004); Commonwealth v. Mustafa Salaam, No. CR03-4624, 2004 Va. Cir. LEXIS
289, at **17-20 (Aug. 25, 2005).
Turning to the instant case, we initially note that most of the statements at issue are
nontestimonial because the victim made them informally to family members. See State v. Maclin,
183 S.W.3d 335, 347 n.13 (Tenn. 2005). Therefore, they are not subject to the Confrontation Clause.
-9-
See Davis v. Washington, ___ U.S. ___, ___, 126 S. Ct. 2266, 2273-76 (2006). However, the
victim’s affidavit of complaint, which she made under oath before a judicial commissioner in general
sessions court, is testimonial. Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364. Nevertheless, we are
persuaded by the Sixth Circuit’s reasoning in Garcia-Meza and conclude that, unlike the forfeiture
by wrongdoing exception to the hearsay rule, a defendant’s intent is irrelevant with respect to the
forfeiture by wrongdoing exception to the Confrontation Clause when the defendant does not dispute
that he procured the victim’s unavailability. As this court has stated, “[t]he right of confrontation is
not absolute and must occasionally give way to considerations of public policy and necessities of the
case.” State v. Kennedy, 7 S.W.3d 58, 65 (Tenn. Crim. App. 1999); see also Bourjaily v. United
States, 483 U.S. 171, 182, 107 S. Ct. 2775, 2782 (1987) (stating that “[w]hile a literal interpretation
of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is
unavailable, this Court has rejected that view as ‘unintended and too extreme’” (quoting Ohio v.
Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537 (1980))). We believe that the unique circumstances
of this case require such considerations and conclude that the appellant has forfeited any
Confrontation Clause claim regarding the victim’s affidavit.
B. 404(b) Evidence
The appellant also claims that evidence of his May 2003 assault on the victim was
inadmissible pursuant to Tennessee Rule of Evidence 404(b) and that the probative value of the
evidence was outweighed by the danger of unfair prejudice. The State claims that evidence about the
appellant’s prior assault on the victim was admissible to show the appellant’s intent to harm the
victim and to rebut any claim that the appellant accidentally killed her. We conclude that the trial
court properly admitted the evidence.
In a jury-out hearing, the State argued that evidence of the appellant’s May 2003 assault on
the victim was admissible to show the appellant’s intent and motive to hurt her on July 20.
Specifically, the State argued that it should be allowed to present evidence of the prior assault through
Latisa Bridges’ testimony and the victim’s affidavit of complaint. The appellant argued that the
prejudicial effect of the evidence outweighed its probative value. The trial court agreed with the
State, concluding that the evidence was admissible “to rebut any suggestion of mistake or accident
or intent.” The trial court also held that the evidence was “highly probative.” During jury
instructions, the trial court explained that the jury could consider evidence of the appellant’s prior bad
act only for the limited purpose of determining his identity, motive, or intent.
Tennessee Rule of Evidence 404 provides,
(b) 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 with the character trait. It may,
however, be admissible for other purposes. The conditions which
must be satisfied before allowing such evidence are:
-10-
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon request
state on the record the material issue, the ruling, and the reasons for
admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
See also State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). A trial court’s decision regarding the
admission of Rule 404(b) evidence will be reviewed under an abuse of discretion standard; however,
“the decision of the trial court should be afforded no deference unless there has been substantial
compliance with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997). Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused’s character. Such exceptional cases include identity, intent,
motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867 S.W.2d 736, 740
(Tenn. Crim. App. 1992). In making its decision regarding the admissibility of the testimony, the trial
court must first determine if the offered testimony is relevant to prove something other than the
appellant’s character. If the evidence is relevant, then, upon request, the court will proceed to a Rule
404(b) hearing.
In Smith, 868 S.W.2d at 574, our supreme court held that prior acts of violence and prior
threats against a victim “are admissible under Rule 404(b) because the evidence is relevant to show
the defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim.”
See also State v. Turnbill, 640 S.W.2d 40, 47 (Tenn. Crim. App. 1982) (providing that the “prior
relations between the victim and the appellant were relevant matters for the jury’s consideration on
the question of the appellant’s intent”). In the instant case, the State had to prove that the appellant
intended to kill the victim. See Tenn. Code Ann. § 39-13-202(a)(1). The trial court determined that
the appellant’s prior assault was relevant to establish his intent to kill her and properly instructed the
jurors as to how they should consider this evidence. The trial court also determined that the evidence
was “highly probative,” demonstrating that it believed the probative value of the evidence was not
outweighed by the danger of unfair prejudice. We conclude that the trial court did not abuse its
discretion by allowing Bridges to testify about the appellant’s prior assault on the victim. Although
we concluded previously that the victim’s affidavit of complaint was inadmissible hearsay, it was
cumulative evidence, and any error in admitting the affidavit was harmless.
-11-
C. Sufficiency of the Evidence
Finally, the appellant claims that the evidence is insufficient to support the conviction, arguing
that there is no evidence of premeditation. In support of his argument, he notes that the victim was
“falling down drunk,” that she was found fully clothed in a bathtub, that a witness testified the victim
and the appellant were not quarreling on the afternoon before her death, and that the bruises on her
body “were of a pattern commonly seen in chronic alcoholics.” The State contends that the evidence
is sufficient for a rational jury to conclude that the appellant premeditated killing the victim. We
agree with the State.
When an appellant challenges the sufficiency of the convicting evidence, the standard for
review is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). On
appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Questions concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the jury as trier of fact.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the
evidence. Id. Because a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
The appellant was convicted of premeditated first degree murder, which is defined as “the
premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Tennessee
Code Annotated section 39-13-202(d) defines “premeditation” as
an act done after the exercise of reflection and judgment.
“Premeditation” means that the intent to kill must have been formed
prior to the act itself. It is not necessary that the purpose to kill
pre-exist in the mind of the accused for any definite period of time.
The mental state of the accused at the time the accused allegedly
decided to kill must be carefully considered in order to determine
whether the accused was sufficiently free from excitement and passion
as to be capable of premeditation.
The element of premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d
600, 614 (Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Specifically,
the following factors have been used to support a jury’s inference of premeditation: (1) the appellant’s
prior relationship to the victim which might suggest a motive for the killing; (2) the appellant’s
declarations of intent to kill; (3) the appellant’s planning activities before the killing; (4) the manner
-12-
of the killing, including the appellant’s using a deadly weapon upon an unarmed victim, killing the
victim while the victim is retreating or attempting escape, or killing the victim in a particularly cruel
manner; and (5) the appellant’s demeanor before and after the killing, including a calm demeanor
immediately after the killing. See State v. Pike, 978 S.W.2d 904, 914-15 (Tenn. 1998). Additionally,
this court has suggested that facts concerning the prior relationship between the appellant and the
victim from which motive could be inferred is indicative of premeditation. See State v. Gentry, 881
S.W.2d 1, 5 (Tenn. Crim. App. 1993).
Viewed in the light most favorable to the State, the evidence establishes that the appellant and
the victim had a volatile relationship. Although a witness testified that the appellant and the victim
were in a bar on the night before the victim’s death and were not fighting, the victim’s uncle testified
that he talked with her about 6:00 p.m. and that she sounded upset. The victim told her uncle that she
was planning to leave the appellant, a possible motive for the killing. About nine hours later, the
appellant flagged down a police officer, told the officer that he and the victim had been fighting, that
he thought the victim was dead, and that he may have killed her. The autopsy photographs show that
the appellant brutally beat the victim. Her forehead, cheeks, and lips were badly bruised, the skin on
her nose and behind her ear was torn, her eyes were black, and she had bruises on her arms and legs.
Dr. Smith testified that the victim’s brain swelled due to bleeding on its surface and that the victim’s
injuries showed she had been assaulted. Dr. Smith also testified that a serrated knife may have caused
some of the victim’s injuries, indicating that the appellant used a weapon in his attack against her, and
there is no evidence that the victim was armed. Betty Zabt testified that she heard the appellant say
over the telephone that he was going to kill the victim. We conclude that a rational juror could have
found that the appellant acted with premeditation. Thus, the evidence supports the appellant’s
conviction for first degree premeditated murder.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.
___________________________________
NORMA McGEE OGLE, JUDGE
-13- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4089260/ | [Cite as Disciplinary Counsel v. Cummings, ___ Ohio St.3d ___, 2016-Ohio-7294.]
DISCIPLINARY COUNSEL v. CUMMINGS.
[Cite as Disciplinary Counsel v. Cummings, ___ Ohio St.3d ___,
2016-Ohio-7294.]
(No. 2016-1340—Submitted September 9, 2016—Decided October 13, 2016.)
ON CERTIFIED ORDER of the Supreme Court of Georgia, case Nos. S12Y1443 and
S12Y1461
____________________
{¶ 1} This cause is pending before the Supreme Court of Ohio in
accordance with the reciprocal-discipline provisions of Gov.Bar R. V(20).
{¶ 2} On September 9, 2016, relator, disciplinary counsel, filed with this
court a certified copy of an order of the Supreme Court of Georgia entered
October 1, 2012, in In the Matter of Lisa M. Cummings, case Nos. S12Y1443 and
S12Y1461, in which respondent was disbarred from the practice of law. On
September 13, 2016, this court ordered respondent to show cause why identical or
comparable discipline should not be imposed in this state. No objections to said
final report were filed, and this cause was considered by the court.
{¶ 3} On consideration thereof, it is ordered and adjudged by this court
that, pursuant to Gov.Bar R. V(20)(B), respondent, Lisa Mechelle Cummings,
Attorney Registration No. 0064435, last known business address in Dayton, Ohio,
is indefinitely suspended from the practice of law and respondent will not be
reinstated to the practice of law in Ohio until such time as respondent is reinstated
to the practice of law in the state of Georgia.
{¶ 4} It is further ordered that respondent immediately cease and desist
from the practice of law in any form and is forbidden to appear on behalf of
another before any court, judge, commission, board, administrative agency, or
other public authority.
SUPREME COURT OF OHIO
{¶ 5} It is further ordered that respondent is forbidden to counsel, advise,
or prepare legal instruments for others or in any manner perform legal services for
others.
{¶ 6} It is further ordered that respondent is divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.
{¶ 7} It is further ordered that before entering into an employment,
contractual, or consulting relationship with any attorney or law firm, respondent
shall verify that the attorney or law firm has complied with the registration
requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R.
V(23), respondent shall refrain from direct client contact except as provided in
Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling
any client trust funds or property.
{¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent
shall complete one credit hour of continuing legal education for each month, or
portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(13), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the
suspension.
{¶ 9} It is further ordered by the court that within 90 days of the date of
this order, respondent shall reimburse any amounts that have been awarded
against respondent by the Lawyers’ Fund for Client Protection pursuant to
Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of
this order, the Lawyers’ Fund for Client Protection awards any amount against
respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that
amount to the Lawyers’ Fund for Client Protection within 90 days of the notice of
that award.
2
January Term, 2016
{¶ 10} It is further ordered that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with the Supreme Court Rules for the
Government of the Bar of Ohio, (3) respondent files evidence with the clerk of
this court and with disciplinary counsel demonstrating her reinstatement to the
practice of law in Georgia, (4) respondent complies with this and all other orders
issued by this court, and (5) this court orders respondent reinstated.
{¶ 11} It is further ordered that on or before 30 days from the date of this
order, respondent shall do the following:
{¶ 12} 1. Notify all clients being represented in pending matters and any
co-counsel of respondent’s suspension and consequent disqualification to act as
an attorney after the effective date of this order and, in the absence of co-counsel,
also notify the clients to seek legal service elsewhere, calling attention to any
urgency in seeking the substitution of another attorney in respondent’s place;
{¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients
being represented in pending matters any papers or other property pertaining to
the client or notify the clients or co-counsel, if any, of a suitable time and place
where the papers or other property may be obtained, calling attention to any
urgency for obtaining such papers or other property;
{¶ 14} 3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid, and account for any trust money or property in the
possession or control of respondent;
{¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the
adverse parties in pending litigation of respondent’s disqualification to act as an
attorney after the effective date of this order and file a notice of disqualification of
respondent with the court or agency before which the litigation is pending for
inclusion in the respective file or files;
3
SUPREME COURT OF OHIO
{¶ 16} 5. Send all notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;
{¶ 17} 6. File with the clerk of this court and the disciplinary counsel of
the Supreme Court an affidavit showing compliance with this order, showing
proof of service of notices required herein, and setting forth the address where the
affiant may receive communications; and
{¶ 18} 7. Retain and maintain a record of the various steps taken by
respondent pursuant to this order.
{¶ 19} It is further ordered that on or before 30 days from the date of this
order, respondent surrender the attorney-registration card for the 2015/2017
biennium. It is further ordered that until such time as respondent fully complies
with this order, respondent shall keep the clerk and disciplinary counsel advised
of any change of address where respondent may receive communications.
{¶ 20} It is further ordered that all documents filed with this court in this
case shall meet the filing requirements set forth in the Rules of Practice of the
Supreme Court of Ohio, including requirements as to form, number, and
timeliness of filings. All case documents are subject to Sup.R. 44 through 47,
which govern access to court records.
{¶ 21} It is further ordered that service shall be deemed made on
respondent by sending this order, and all other orders in this case, to respondent’s
last known address.
{¶ 22} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be
made as provided for in Gov.Bar R. V(17)(D)(2).
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
________________________
4 | 01-03-2023 | 10-13-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3168295/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ERIC L. BULLOCK, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1543 (RDM)
)
MEGAN BRENNAN, )
POSTMASTER GENERAL, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Eric L. Bullock is a former United States Postal Service mail carrier. As
relevant here, Plaintiff’s pro se complaint, construed liberally, alleges discrimination and
retaliation claims against the Postmaster General 1 under Section 501 of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., which prohibits federal employers from discriminating on the
basis of disability or retaliating against employees who engage in protected conduct. Plaintiff
alleges that after he broke his left ankle in 2000, he was “targeted for removal” and ultimately
fired in 2010 because he “could no longer deliver [his] route in the timely manner that was
expected of [him].” Dkt. 1 at 3. He also alleges that he was terminated in retaliation for having
filed numerous Equal Employment Opportunity (“EEO”) complaints against various Postal
Service supervisors over the years. Id. at 3–4. Defendant responds that she fired Plaintiff
because he was incarcerated for 45 days and “tried to cover it up” by submitting “two fraudulent
1
Current Postmaster General Megan Brennan is substituted for former Postmaster General
Patrick R. Donohoe pursuant to Fed. R. Civ. P. 25(d).
1
medical notes to cover his absence,” and that Plaintiff’s termination was not based on disability
or prior EEO activity. Dkt. 33 at 18.
The matter is currently before the Court on Defendant’s Motion to Dismiss and for
Summary Judgment. Dkt. 33. Defendant seeks: (1) dismissal based on Plaintiff’s conduct
during discovery, Dkt. 33 at 12; (2) dismissal of the complaint as untimely, id. at 7–8; and (3)
summary judgment on the merits, id. at 12–24. For the reasons explained below, Defendant’s
motion to dismiss is DENIED, and her motion for summary judgment is GRANTED.
I. BACKGROUND
A. Disability and Prior EEO Activity
Plaintiff was employed as a letter carrier from February 1985 until his termination in July
2010. Dkt. 33-21 at 7. Most recently, he worked at the Postal Service’s Ward Place Station in
the District of Columbia. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 3). It is undisputed that Plaintiff
injured his ankle on the job in 2000, but the supervisors at Ward Place who were directly
involved in the events leading to his termination—his immediate supervisor, Todd Dickens, and
his second-level supervisors, Acting Customer Services Manager Bryant Hubbard and Customer
Services Manager Ricky Rucker—all aver that they lacked any knowledge that this injury
continued to affect Plaintiff in 2009 and 2010 or that there were any medical restrictions on his
work during that period. Dkt. 33-19 at 3 (Dickens Decl. I ¶¶ 7–8); Dkt. 33-18 at 2 (Hubbard
Decl. ¶¶ 2–4); Dkt. 33-20 at 1–2 (Rucker Decl. I ¶¶ 2, 7). Plaintiff responds with unsworn
assertions that at least some supervisors were aware of his medical problems. Dkt. 35 at 17, 22–
25.
From 2003 to 2009, prior to the removal decision at issue in this case, Plaintiff filed
eleven EEO complaints. Dkt. 33-3. The record lacks information about the substance of those
complaints, but it does reflect that Hubbard was aware that Plaintiff had filed complaints against
2
him, including naming Hubbard as a responsible official in an EEO complaint as recently as
February 2009. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 5). Dickens and Rucker, however, aver that
until the filing of the complaint in this case, they were unaware of Plaintiff’s prior EEO activity.
Dkt. 33-19 at 3 (Dickens Decl. I ¶ 9); Dkt. 33-20 at 2 (Rucker Decl. I ¶ 6). There is no evidence
in the record, moreover, that Plaintiff filed an EEO complaint at any time in the year and a half
between February 2009, e.g., Dkt. 33-18 at 2 (Hubbard Decl. ¶ 5), and May 10, 2010, when he
was issued a notice of removal, Dkt. 33-3 at 1; Dkt. 33-6 at 1.
B. Incarceration and Purported Medical Excuse
In 2008, Plaintiff was convicted of driving under the influence (“DUI”) and sentenced by
the Circuit Court of Maryland for Baltimore City to a one-year suspended sentence and eighteen
months’ probation. Dkt. 33-4 at 21. On July 3, 2009, Plaintiff was charged with possession of
marijuana, Dkt. 33-4 at 22, and although Plaintiff states that he was ultimately found not guilty
of that charge, Dkt. 33-9 at 2, the Circuit Court revoked his probation on October 23, 2009, and
sentenced him to 90 days’ incarceration for the DUI conviction, beginning immediately. Dkt.
33-4 at 24.
On October 23, 2009, Plaintiff informed a supervisor at the Ward Place Station that he
would be absent for the next month. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 7). The same day, “[t]he
Ward Place Station received a faxed medical document stating that [Plaintiff] would not return to
work until November 23, 2009, because he had reinjured his ankle.” Id. The medical excuse
was sent by “Dr. G.K. Bharati, M.D., P.A.,” and listed an address in Essex, Maryland. Dk. 33-4
at 10. Dr. Bharati reported that Plaintiff “was seen in my office today,” that Plaintiff had “re-
injured his left ankle and will be out of work from October 23 through November 23, 2009,” and
that a “follow-up appointment [was] scheduled for November.” Id. Hence, “plaintiff’s absences
3
were marked as sick leave, and he was expected to return on November 23, 2009.” Dkt. 33-18 at
3 (Hubbard Decl. ¶ 8).
Plaintiff did not return to work on November 23. In late November or early December
2009, Plaintiff and Hubbard spoke on the telephone. According to Plaintiff, the conversation
occurred just before Thanksgiving, and Plaintiff called work from another inmate’s illegal cell
phone and informed Hubbard that he was incarcerated and that he would be released on
December 12, 2009. Dkt. 1 at 3; Dkt. 35 at 100. In Plaintiff’s telling, Hubbard responded that
he “would deal with [Plaintiff] when [he] came back to work.” Dkt. 1 at 3; Dkt. 35 at 100.
According to Hubbard, however, the conversation occurred on or about December 2, 2009, and
Plaintiff did not mention being incarcerated. Dkt. 33-18 at 3–4 (Hubbard Decl. ¶¶ 11–13).
Rather, Plaintiff told Hubbard that he would return to work on December 14 and agreed to
provide documentation supporting his absence. Id. Hubbard nonetheless “suspect[ed]” that
Plaintiff was incarcerated “based on the combination of (1) the commotion in the background
during [their] phone conversation and (2) [Plaintiff’s] previous comments about [being on]
probation.” Id. (Hubbard Decl. ¶ 12). Hubbard e-mailed the Postal Service’s Office of Inspector
General (“OIG”) on December 2, 2009, and asked Special Agent Joyce Younce to investigate
Plaintiff’s whereabouts. Id. at 4 (Hubbard Decl. ¶ 14).
On December 3, 2009, the Ward Place Station received another medical excuse by fax,
purportedly sent by Dr. Bharati from Johns Hopkins University. Dkt. 33-4 at 11; Dkt. 33-18 at 4
(Hubbard Decl. ¶ 15). In that letter, which was dated November 23, 2009, Dr. Bharati reported
that Plaintiff “was seen in my office today for a follow-up appointment” and was advised “to
continue physical therapy and return to work December 14, 2009 with no restrictions.” Dkt. 33-
4 at 11. Around December 14, 2009, Plaintiff returned to work. Dkt. 33-18 at 4 (Hubbard Decl.
¶ 17).
4
C. OIG Investigation
The OIG investigated from December 8, 2009 to January 29, 2010. Dkt. 33-4 at 1. In a
report issued on February 9, 2010, it confirmed that Plaintiff was in fact incarcerated from
October 23, 2009 to December 10, 2009. Id. at 3. The report also recounts the OIG’s
unsuccessful attempts to locate Dr. Bharati. Special Agent Younce searched the Postal Service’s
address locator for the address listed on the faxed medical excuses, but found no such address in
Essex, Maryland. Id. at 4. Younce then drove to locations in Baltimore and Middle River,
Maryland with the same street name and house number as the listed address, but did not find a
doctor’s office. Id. OIG staff also tried, unsuccessfully, to locate Dr. Bharati via Google, the
doctors’ directory at Johns Hopkins Medical Center, the American Medical Association, and a
telephone number database, www.anywho.com. Id.
A memorandum prepared by another OIG investigator states that in an interview
conducted on January 27, 2010, Plaintiff maintained that he was “out sick October 23 to
December 10, 2009.” Dkt. 33-4 at 31. According to the memorandum, Plaintiff declined to
discuss any specifics about his “medical problems” in the interview, but stated that since 2000 he
had an ongoing problem with his ankle and that he had reinjured it by twisting it on the job. Id.
at 31. The memorandum also explains that although Plaintiff “was uncooperative,” he agreed to
have his doctor contact Hubbard and to provide the doctor’s name, telephone number, and
address by January 29, 2010. Id. at 32.
In February 2010, Hubbard informed OIG that he had not received any information from
Plaintiff about Dr. Bharati. Dkt. 33-18 at 4 (Hubbard Decl. ¶ 18). Hubbard “was waiting for
further news from the OIG before initiating any disciplinary action” against Plaintiff, but
Hubbard was reassigned to a different postal station around March 2010. Id. at 4–5 (Hubbard
Decl. ¶¶ 19–20). Consequently, Hubbard “played no role in issuing discipline to” Plaintiff, but
5
he later “learned that the OIG confirmed [his] suspicion that [Plaintiff] was incarcerated.” Id. at
5 (Hubbard Decl. ¶¶ 21-22).
D. Pre-Termination Proceedings
Supervisor Dickens received a copy of the OIG report in February 2010. Dkt. 33-19 at 4
(Dickens Decl. I ¶ 12). Dickens viewed Plaintiff’s conduct described in the report as
“egregious” and initiated disciplinary proceedings. Id. (Dickens Decl. I ¶ 16). In accordance
with the collective bargaining agreement, Dickens conducted a “pre-disciplinary interview” on
April 21, 2010, at which he asked Plaintiff “about his whereabouts between October 23 and
December 10, 2009, and . . . provided an opportunity [for him] to explain his absence.” Id. at 5
(Dickens Decl. I ¶¶ 17–19). According to Dickens, Plaintiff “stated that he [had] provided
doctor’s notes stating he had reinjured his ankle,” and “never mentioned that he was
incarcerated.” Id. (Dickens Decl. I ¶¶ 21, 23). Plaintiff “then stated that [Dickens] had no need
to ask him anything about his absence,” and he “refused to provide [Dickens] any additional
information.” Id. (Dickens Decl. I ¶ 22). For Dickens, the “interview confirmed that [Plaintiff]
had submitted fraudulent medical documentation, and his absence was unexcused.” Id. (Dickens
Decl. I ¶ 24). Dickens therefore decided to issue a notice of removal to Plaintiff. Id. at 6
(Dickens Decl. I ¶ 25).
After reviewing the OIG report, Plaintiff’s second-line supervisor, Rucker, concurred
with Dickens’ decision to remove Plaintiff. Dkt. 33-20 at 2–3 (Rucker Decl. I ¶¶ 8–10.)
According to Rucker, “[w]hile any one of [Plaintiff’s] actions ([Absent Without Leave
(“AWOL”)], fraudulent medical documentation, or incarceration) would have been sufficient for
removal, the combination of all three made my decision to concur with the removal simple.” Id.
at 3 (Rucker Decl. I ¶ 10).
6
On May 10, 2010, the Postal Service issued a Notice of Removal charging Plaintiff with
(1) “Unacceptable Conduct” and (2) “Unacceptable Attendance/AWOL.” Dkt. 33-6 at 1. The
first charge was based on Plaintiff’s failure to notify management about his arrest and
incarceration from October 23, 2009 through December 10, 2009, and his submission of
“fraudulent medical documentation” to support his absence. Id. The second charge stated that
Plaintiff had failed to provide an acceptable reason for missing work in light of the results of the
OIG’s investigation and his pre-disciplinary interview. Id. at 2. Plaintiff was found to have
violated several sections of the Employee and Labor Relations Manual, including those
proscribing unacceptable, unscheduled absences and “criminal, dishonest, notoriously
disgraceful, immoral, or other conduct prejudicial to the Postal Service.” Id. The latter section
states that “[c]onviction for a violation of any criminal statute may be grounds for disciplinary
action . . . , including removal of the employee, in addition to any other penalty imposed.” Id.
In a written response to the removal notice, Plaintiff asserted that he had told Hubbard
and others at the post office that he was on probation, that he had to go to court on October 23,
2009, and that he might get incarcerated at that time. Dkt. 33-9 at 2–3. According to Plaintiff,
he notified his supervisor and station manager “every time [he] had a legal problem,” including
“when [he] was arrested,” they were “aware of [his] situation,” and he “did not try to hide
anything.” Id. at 3. In addition, Plaintiff stated that he twisted his left ankle on October 22,
2009, after he returned from delivering mail. Id. Notwithstanding his scheduled court
appearance the next day, Plaintiff expected to return to work the following Monday and, thus,
“was going to get a doctor’s excuse that would cover [him] until 10/26/09.” Id. According to
Plaintiff, a friend told him that he could call Dr. Bharati if he needed a doctor’s excuse in a
hurry. Id. at 4. Although “unsure about using a doctor” that he had “never met,” Plaintiff knew
that his two regular doctors “would have insisted that [he] come to see them before giv[ing]
7
[him] an [ex]cuse,” but with Dr. Bharati, [Plaintiff] did not have to make an appointment.” Id.
Plaintiff claimed that that he was initially marked down as on sick leave because “Supervisor
Dickens said he had to write something down,” and that Plaintiff later told Hubbard that he was
in fact incarcerated. Dkt. 33-9 at 5–6.
The National Association of Letter Carriers (“NALC”) pursued a grievance on Plaintiff’s
behalf. On July 12, 2010, the Dispute Resolution Team issued a decision “concur[ring] that
Management did have Just Cause to remove [Plaintiff] from the USPS.” Dkt. 33-7 at 3. The
Team found that “Management has provided convincing evidence that the [Plaintiff] acted as
charged in submitting fraudulent medical documentation” and that “[t]his action justifies the
severity of the discipline issued.” Id. As a result, the Plaintiff was “removed from the USPS
effective the date of this decision.” Id. at 1.
Rucker received a copy of the Team’s decision on July 22, 2010. Dkt. 33-20 at 3
(Rucker Decl. I ¶ 13). He then escorted Plaintiff off the premises. Id. at 4 (Rucker Decl. I ¶ 15).
E. Subsequent Proceedings
Plaintiff pursued an administrative complaint alleging that he had been terminated on the
basis of disability and in reprisal for prior EEO activity. Dkt. 33-10 at 1. The Equal
Employment Opportunity Commission (“EEOC”) rendered a final decision on May 9, 2013, in
which it affirmed the holding of an EEOC Administrative Judge that (1) the Postal Service
articulated legitimate, nondiscriminatory reasons for Plaintiff’s termination and (2) Plaintiff
failed to show that his termination was motivated by discrimination. Id. at 3.
The parties hotly dispute the date on which the instant action commenced. Plaintiff
mailed the Court a letter on July 29, 2013, which Defendant contends improperly failed to
contain the word “Complaint” in any caption. Dkt. 33 at 47; Dkt. 33-11 at 9–16; Dkt. 33-22 at 8.
On August 29, 2013, the Clerk of the District Court for the District of Columbia received a
8
“complaint” listing the caption of the case and an application to proceed in forma pauperis. Dkt.
1 at 200–201. On September 9, 2013, Plaintiff was notified that his documents were being
returned as non-compliant with the Federal Rules of Civil Procedure and the Local Rules of this
Court. Id. at 199. On September 20, 2013, the Clerk of Court received a complete complaint
from Plaintiff, which included a caption and the allegations. Dkt. 1. The case was formally filed
and docketed on October 8, 2013, upon the granting of Plaintiff’s in forma pauperis application,
which was dated September 19, 2013. Dkts. 1–2.
On October 14, 2014, the Court dismissed as untimely any potential claim brought under
Section 301 of the Labor Management Relations Act. See Bullock v. Donohoe, 71 F. Supp. 3d
31, 34 (D.D.C. 2014). At the same time, the Court denied Defendant’s motion for dismissal of
Plaintiff’s Rehabilitation Act claims on timeliness grounds and ordered limited discovery on
whether the claims were timely. Id. The Court now addresses Defendant’s Motion to Dismiss
and for Summary Judgment on the Rehabilitation Act claims. Dkt. 33.
II. DISCUSSION
A. Motion to Dismiss
Defendant first contends that Plaintiff’s claims should be dismissed because he failed
properly to file a complaint (as distinguished from the letter sent to the Court on July 29, 2013)
within 90 days of receiving a right-to-sue notice from the EEOC. Dkt. 33 at 7–11. The 90-day
time limit is not a jurisdictional requirement, and thus the Court need not address whether
Plaintiff has complied with it before turning to the substance of his claims. See Colbert v. Potter,
471 F.3d 158, 167 (D.C. Cir. 2006) (explaining that the 90-day limit imposed by Title VII, 42
U.S.C. § 2000e-16(c), is not jurisdictional); 29 U.S.C. § 794a(a)(1) (applying Title VII remedies,
procedures, and rights, including the provisions of 42 U.S.C. § 2000e-16, to claims under § 501
9
of the Rehabilitation Act). 2 In light of the factual dispute between the parties regarding the filing
of the complaint, and because the Court concludes that, in any event, Defendant is entitled to
summary judgment on the merits of Plaintiff’s claims, see infra Section II.B., the Court declines
to reach the timeliness issue.
Second, Defendant contends that the Court should dismiss this action as a discovery
sanction. Dkt. 33 at 11–12. “[T]he extreme sanction of dismissal is warranted only when (1) the
other party has been so prejudiced by the misconduct that it would be unfair to require [the party]
to proceed further in the case, (2) the party’s misconduct has put an intolerable burden on the
court by requiring the court to modify its own docket and operations in order to accommodate
the delay, or (3) the court finds it necessary to sanction conduct that is disrespectful to the court
and to deter similar misconduct in the future.” Davis v. D.C. Child & Family Servs. Agency, 304
F.R.D. 51, 61 (D.D.C. 2014) (alterations in original) (internal quotation marks omitted); see also
Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998). Defendant points to Plaintiff’s
delay in responding to a supplemental interrogatory, his “repeated refusal to provide timely
discovery,” and his alleged “penchant for prevarication” as grounds for dismissal, Dkt. 33 at 11–
12, 3 but the Court concludes that even if Plaintiff engaged in such conduct, it is insufficient to
warrant such an extreme measure. Defendant has not asserted that Plaintiff’s conduct resulted in
any prejudice to it, nor did Plaintiff’s conduct result in significant delay or “an intolerable burden
2
By contrast, administrative exhaustion is a jurisdictional prerequisite to a Rehabilitation Act
claim. See Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). Here, there is no dispute that
that requirement is met—that there has been a “‘final disposition of [an administrative]
complaint.’ 29 U.S.C. § 794a(a)(1).” Id. (alteration in original).
3
Plaintiff, for example, denied during his deposition that he had consumed alcohol “prior to
coming here,” Dkt. 33-21 at 38, but later acknowledged that “did drink a little beer earlier that
day,” Dkt. 33-15 at 5.
10
on the court.” Davis, 304 F.R.D. at 62. Consistent with the “judicial system’s strong
presumption in favor of adjudications on the merits,” Shepherd v. Am. Broad. Cos., Inc., 62 F.3d
1469, 1475 (D.C. Cir. 1995), the Court declines to dismiss this case as a sanction for Plaintiff’s
conduct during discovery.
B. Motion for Summary Judgment
Turning to the merits, Defendant contends that she is entitled to summary judgment
because “Plaintiff cannot establish a prima facie case of retaliation,” Dkt. 33 at 16, and because
Plaintiff has failed to put forth any evidence rebutting Defendant’s legitimate, nondiscriminatory
explanation for Plaintiff’s termination, Dkt. 33 at 18. Summary judgment is appropriate when
“the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986). “A fact is material if it ‘might affect the outcome of the suit
under the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535
F.3d 689, 692 (D.C. Cir. 2008) (quoting Liberty Lobby, 477 U.S. at 248). “[W]hile summary
judgment must be approached with special caution in discrimination cases, a plaintiff is not
relieved of [the] obligation to support [his] allegations by affidavits or other competent evidence
showing that there is a genuine issue for trial.” Stewart v. White, 61 F. Supp. 3d 118, 128
(D.D.C. 2014) (internal quotation marks omitted) (second alteration in original).
“Rehabilitation Act section 501 prohibits federal agencies from engaging in employment
discrimination against disabled individuals” and “instructs courts to use the same standards
employed in cases arising under the Americans with Disabilities Act [(“ADA”)]” to adjudicate
such claims. Adams v. Rice, 531 F.3d 936, 942–43 (D.C. Cir. 2008). The Rehabilitation Act
also “provides a cause of action for retaliation pursuant to its incorporation of § 12203(a) of the
11
ADA, 42 U.S.C. § 12203(a), which prohibits employers from retaliating against an employee
because he or she has opposed an unlawful employment practice or made a charge or
participated in an EEO investigation or proceeding.” Marshall v. Potter, 634 F. Supp. 2d 66, 73
(D.D.C. 2009). “Where, as here, a claim of discrimination or retaliation is based upon
circumstantial evidence, we analyze the claim under the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).” Kersey v. Washington
Metro. Area Transit Auth., 586 F.3d 13, 16 (D.C. Cir. 2009); see also Woodruff v. Peters, 482
F.3d 521, 528–29 (D.C. Cir. 2007) (“[W]e apply Title VII’s McDonnell Douglas burden-shifting
framework to retaliation claims under the Rehabilitation Act when employers assert non-
retaliatory grounds for adverse employment actions.”); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.
Cir. 1993) (explaining that McDonnell Douglas framework applies to claims under § 501 of the
Rehabilitation Act where the “employing agency asserts that it . . . discharged [the employee] for
reasons unrelated to the person’s handicap”). Under that framework,
[I]t is the plaintiff’s burden to establish a prima facie case of discrimination by a
preponderance of the evidence. If the plaintiff establishes a prima facie case, the
employer must then articulate a legitimate, nondiscriminatory reason for its
actions. The plaintiff must then demonstrate that the employer’s stated reason
was pretextual and that the true reason was discriminatory.
Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002) (internal citations omitted).
In cases, like this one, where the defendant comes forward with a legitimate, non-
discriminatory or non-retaliatory reason for the adverse employment action, consideration of the
prima facie case is pretermitted. See Morales v. Gotbaum, 42 F. Supp. 3d 175, 187 (D.D.C.
2014). As the D.C. Circuit has admonished in the analogous context of Title VII disparate-
treatment litigation, where “an employer has asserted a legitimate, non-discriminatory reason for
[its] decision, the district court need not—and should not—decide whether the plaintiff actually
made out a prima facie case under McDonnell Douglas.” Brady v. Office of the Sergeant at
12
Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Rather, the Court considers
only whether Plaintiff has “produced evidence sufficient for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the actual reason and that the employer
intentionally discriminated against [him] on a prohibited basis,” such as disability or retaliatory
motive. Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); see also Jones
v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (“[T]hese principles apply equally to retaliation
claims . . . .”). The Court considers “all the evidence, which includes not only the prima facie
case but also the evidence the plaintiff offers ‘to attack the employer’s proffered explanation for
its action.’” Jones, 557 F.3d at 677 (quoting Carter v. George Wash. Univ., 387 F.3d 872, 878
(D.C. Cir. 2004)).
Here, Defendant has asserted a legitimate, non-discriminatory and non-retaliatory reason
for her termination of Plaintiff’s employment. Indeed, she has asserted two reasons, either of
which alone would have been sufficient to support Plaintiff’s discharge under the Postal
Service’s Employee and Labor Relations Manual: (1) Plaintiff engaged in “unacceptable
conduct” by failing “to notify management of [his] arrest and incarceration on October 23, 2009
through December 10, 2009,” and by submitting “fraudulent medical documentation to [his]
supervisor for this time period”; and (2) Plaintiff had an “unacceptable” absence during the
period of time he was incarcerated. Dkt. 33-6 at 1 (Notice of Removal). The Notice of Removal
also notes that the Employee and Labor Relations Manual provides that “[c]onviction for a
violation of any criminal statute may be grounds for . . . removal”; that employees “must not
engage in . . . dishonest . . . or other conduct prejudicial to the Postal Service”; “that [e]mployees
are expected to maintain their assigned schedule,” and “must provide acceptable evidence for
absences when required”; that “[f]ailure to be regular in attendance may result in . . . removal”;
and that “employees who fail to report on scheduled days . . . are considered absent without leave
13
except in cases where actual emergencies prevent them from obtaining permission in advance”
and that “evidence of the emergency must be furnished later.” Id. at 2–3. In considering these
asserted justifications, the central “question is not whether the underlying [misconduct]
occurred,” but rather “whether the employer honestly and reasonably believed that the
underlying [misconduct] occurred.” Brady, 520 F.3d at 496 (emphasis in original).
Defendant has martialed a wealth of supporting evidence that Plaintiff’s termination was
in fact based on the honest and reasonable belief of the deciding officials that Plaintiff committed
egregious violations of Postal Service policies regarding standards of conduct and unexcused
absences. She has submitted, inter alia, declarations from the two supervisors who were
involved in the termination decision (Dickens and Rucker), a declaration from Plaintiff’s prior
supervisor (Hubbard), the state court records of Plaintiff’s incarceration, the medical excuses
submitted by Dr. Bharati during the time of Plaintiff’s incarceration, records pertaining to OIG’s
investigation of Plaintiff’s absence and its failed attempts to locate Dr. Bharati, and the pertinent
provisions of its Employee and Labor Relations Manual. Plaintiff, by contrast, has not produced
any competent evidence that could lead a reasonable jury to disbelieve the Defendant’s
legitimate, nondiscriminatory reasons for firing Plaintiff.
Plaintiff’s memorandum in opposition to Defendant’s motion for summary judgment
makes three arguments that this case should proceed to trial, none of which establishes a genuine
issue of material fact. First, Plaintiff asserts that Hubbard was aware that Plaintiff had filed EEO
complaints against him in the past and that he had also previously filed an EEO complaint
against someone named Jackie Cooks, who was Rucker’s girlfriend at the time. Dkt. 35 at 14–
16. The prior EEO activity against Hubbard is immaterial. Although Hubbard acknowledges in
his declaration that he was aware of Plaintiff’s prior complaints against him, Hubbard was, at
most, indirectly involved in the termination of Plaintiff’s employment because he left the Ward
14
Place Station shortly after the OIG finished its report but before Plaintiff’s pre-disciplinary
interview. Dkt. 33-18 at 2–5 (Hubbard Decl. ¶¶ 5, 18–20). Hubbard’s uncontroverted
declaration, moreover, states in categorical terms that he “played no role in issuing discipline to
Mr. Bullock.” Id. at 5 (Hubbard Decl. ¶ 22). That assertion is unrebutted.
As for the EEO activity against Cooks, no reasonable jury could find for Plaintiff on the
retaliation claim based solely on the speculative assertion that this EEO complaint somehow
affected the decision to fire Plaintiff. Defendant offers uncontroverted evidence that any EEO
activity involving Cooks would have occurred no later than 2005 when Plaintiff last worked
under her supervision (five years before Plaintiff was fired), Dkt. 38-3 at 2 (Cooks Decl. ¶¶ 6-7);
that Rucker’s personal relationship with Cooks ended in 2006 (four years before Plaintiff was
fired); and that, prior to this litigation, Rucker was unaware of any EEO complaints filed against
Cooks (or indeed, of any of Plaintiff’s prior EEO activity), Dkt. 38-1 at 2–3 (Rucker Decl. II
¶¶ 3–10). Moreover, Rucker’s role in the decision to terminate Plaintiff’s employment was
limited to concurring in Dickens’s decision to issue a notice of removal, a decision that was also
later ratified by Plaintiff’s union. Dkt. 33-20 at 2–3 (Rucker Decl. I ¶¶ 8–9); Dkt. 33-7 at 1. And
Cooks herself played no role at all. Dkt. 38-3 at 2 (Cooks Decl. ¶ 6). If such a remote
connection between the filing of an EEO complaint and a subsequent termination decision were
alone sufficient to create a material dispute of fact, it is difficult to conceive of any case in which
the mere filing of an EEO complaint would not permit a plaintiff alleging retaliation
“automatically [to] obtain a jury trial.” Brady, 520 F.3d at 496 (emphasis in original).
Next, Plaintiff claims that he did not personally submit the fraudulent medical
documentation or fail to inform his employer about his incarceration, contrary to statements in
the notice of removal. Dkt. 35 at 17; Dkt. 33-6 at 1. Plaintiff concedes, however, that he was
incarcerated from October 23, 2009 to December 14, 2009, and that he did not visit Dr. Bharati.
15
Dkt. 25 at 27. Plaintiff blames the fraudulent medical submissions on an unidentified friend
whose “intentions were [honorable],” Dkt. 35 at 73, and explains: “Yes I was going to get a
doctor slip from Dr. Bharati, who I thought was a real certified doctor[,] . . . for only two days.
When a friend found out that I was incarcerated, the friend took upon himself to fax the two
doctors’ notes to my job without my knowledge,” id. at 27. Plaintiff also states that he notified
Hubbard that he was incarcerated in November. Dkt. 35 at 20–21.
These arguments miss the point. The question is not whether Petitioner actually engaged
in the asserted misconduct, but whether those who made the decision to fire him “honestly and
reasonably believe that” he did. Brady, 520 F.3d at 496. As to that controlling question, the
record is uncontroverted. Todd Dickens, Plaintiff’s direct supervisor, has offered uncontroverted
testimony that he issued the Notice of Removal based on “Plaintiff’s incarceration and fraudulent
medical documentation” and his “extended absence without leave.” Dkt. 33-19 at 6 (Dickens
Decl. I ¶ 27). He has further explained that “[a]ny one of the Plaintiff’s actions (the 45 days of
AWOL, submission of fraudulent medical documentation, or the incarceration) would have
constituted sufficient grounds for his removal,” id. (Dickens Decl. I ¶ 28), and that, “[b]ecause of
the severe nature of Plaintiff’s misconduct, [he] felt that removal was the only reasonable
penalty,” id. at 7 (Dickens Decl. I ¶ 33). And, he provided uncontroverted testimony that he
“had no reason to believe that Mr. Bullock was not responsible for submitting the medical
documentation.” Id. (Dickens Decl. I ¶ 32). Ricky Rucker, Plaintiff’s second-line supervisor,
concurred in Dickens’ decision to fire Plaintiff. As he explained in his declaration, although any
one of the charges against Plaintiff would have been sufficient, “the combination of all three
made [his] decision to concur with removal simple.” Dkt. 33-20 at 3 (Rucker Decl. I ¶ 10).
Accordingly, even assuming that Plaintiff disclosed his incarceration to Hubbard and that
Plaintiff did not personally submit or solicit the submission of the fraudulent medical excuses—
16
assertions that are without competent evidentiary support—this would not constitute a basis on
which a jury could reasonably conclude that Defendant had a discriminatory or retaliatory
motive for firing Plaintiff. Plaintiff has failed to identify any basis to doubt that Dickens and
Rucker honestly and with good reason believed that Plaintiff engaged in criminal misconduct,
was absent from work without leave, and submitted fraudulent medical documentation relating to
his absence. Indeed, in responding to Defendant’s assertion of undisputed fact that “the Postal
Service decision makers believed that Plaintiff had caused the October 23, 2009 note purporting
to come from Dr. Bharati to be submitted to the Postal Service on his behalf,” Dkt. 33 at 38
(SUMF ¶ 70) (emphasis added), Plaintiff candidly acknowledges that “I cannot dispute what the
Postal Service decision makers believed,” Dkt. 35 at 73 (Response to SUMF ¶ 70) (emphasis
added). It is that belief, however, that matters, and it is not the role of the Court to “‘second-
guess an employer’s personnel decision absent demonstrably discriminatory [or retaliatory]
motive.’” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting
Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)). “[T]he issue is not the correctness or
desirability of the reasons offered [by the employer] . . . but whether the employer honestly
believes in the reasons it offers.” Id. (internal quotation marks and brackets omitted). Thus,
regardless of whether Plaintiff actually engaged in the asserted misconduct, he has not provided
any evidence that even remotely suggests that Defendant’s stated reasons for firing him were
pretextual.
Finally, Plaintiff contends that “there were three others who worked at Ward [Place]
Station who were incarcerated . . . at one time or another” who were not terminated. Dkt. 35 at
26. Plaintiff has not, however, produced any evidence to show that those individuals were
similarly situated. In contrast, Dickens and Rucker, both long-term Postal Service supervisors,
aver that they were aware of no other employee who had missed 45 days of work due to
17
incarceration and submitted fraudulent medical excuses to conceal his or her whereabouts. Dkt.
33-19 at 6 (Dickens Decl. I ¶ 30); Dkt. 33-20 at 3 (Rucker Decl. I ¶ 9). Ruckers and Dickens
also aver that during their tenures as supervisors at Ward Place Station, the three employees
specifically named by Plaintiff never missed over a month of work without permission, never
submitted false medical documentation, and, as far as they know, were never incarcerated. Dkt.
38-1 at 1 (Rucker Decl. II ¶ 2); Dkt. 38-2 at 1–2 (Dickens Decl. II ¶¶ 1–10).
In sum, the Court concludes that Plaintiff has produced nothing to rebut the
overwhelming evidence that Defendant had a legitimate, non-pretextual reason to fire Plaintiff.
CONCLUSION
For the foregoing reasons, the Court concludes that Defendant is entitled to judgment as a
matter law. A separate order accompanies this Memorandum Opinion.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 8, 2016
18 | 01-03-2023 | 01-08-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2509108/ | 712 S.E.2d 885 (2011)
DOBSON
v.
SUBSTITUTE TRUSTEE SERVICES, INC., et al.
No. 260A11-1.
Supreme Court of North Carolina.
August 10, 2011.
John A. Mandulak, Fayetteville, for Wells Fargo Bank Minnesota, N.A., et al.
*886 Celia Pistolis, Raleigh, for Dobson, Linda G.
John C. Lloyd, Raleigh, for Dobson, Linda G.
Anne Jordan Randall, for Dobson, Linda G.
Steven Virgil, Winston-Salem, for N.C. Association of Community Development Corporations.
Carlene M. Mcnulty, for NC Justice Center, et al.
The following order has been entered on the motion filed on the 5th of August 2011 by N.C. Association of Community for leave to file Amicus Curiae Brief:
"Motion Allowed by order of the Court in conference, this the 10th of August 2011."
Unless already submitted, the Amicus Brief shall be submitted to the court within the times allowed and in the manner provided by Appellate Rule 28(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154140/ | 963 A.2d 468 (2009)
COM.
v.
HERNANDEZ.
No. 831 MAL (2007).
Supreme Court of Pennsylvania.
January 6, 2009.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4520554/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01327-CV
JOSEPH COBB, Appellant
V.
RONALD HANSEN AND LISA HANSEN, Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-06461
ORDER
Before the Court is appellant’s March 23, 2020 unopposed motion for leave to
file his amended opening brief. We GRANT appellant’s motion and ORDER
appellant’s amended opening brief received March 23, 2020 filed as of the date of
this order.
Additionally before the Court is appellees’ March 23, 2020 unopposed motion
for extension of time to file their responsive brief. We GRANT appellees’ motion
and ORDER their responsive brief to be filed no later than May 1, 2020.
/s/ BILL WHITEHILL
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2490846/ | 69 So.3d 284 (2011)
IN RE L.L.;
G.P.
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES.
No. 2D11-2267.
District Court of Appeal of Florida, Second District.
September 16, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2490855/ | 67 So.3d 219 (2011)
LIMBURG
v.
STATE.
No. 4D09-4121.
District Court of Appeal of Florida, Fourth District.
August 24, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/500281/ | 837 F.2d 480
Jordan (Reginald)v.Purkett (James)
NO. 87-1408
United States Court of Appeals,Eighth Circuit.
DEC 03, 1987
1
Appeal From: W.D.Mo.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/468275/ | 788 F.2d 2
U.S.v.Fama
85-1301, 85-1306, 85-1307, 85-1308
United States Court of Appeals,Second Circuit.
12/20/85
1
E.D.N.Y.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1502604/ | 366 F. Supp. 1152 (1973)
William BUCKTON et al.
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al.
Civ. A. No. 73-3475-T.
United States District Court, D. Massachusetts.
November 27, 1973.
*1153 Gordon A. Martin, Jr., Martin, Morse & Wylie, Boston, Mass., for plaintiffs.
John G. Fabiano, Harold Hestnes, Hale & Dorr, Boston, Mass., for Trustees of Boston University.
George R. Bisacca, Fairfield, Conn., John C. Wyman, Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., for other defendants.
OPINION
TAURO, District Judge.
This action was originally brought by two Boston University (B.U.) ice hockey players, both Canadian nationals residing in Boston, against the Eastern College Athletic Conference (E.C.A.C.) and the National Collegiate Athletic Association (N.C.A.A.) seeking to enjoin them from declaring the plaintiffs ineligible for intercollegiate sports or imposing any sanctions against B.U. for allowing the plaintiffs to play ice hockey.
In response to its requests to the E.C. A.C. and N.C.A.A. for advisory opinions as to plaintiffs' athletic eligibility, B.U. was advised that plaintiffs had been determined to be ineligible by said Associations because certain circumstances under which they played Canadian Junior hockey prior to matriculation at B.U. were allegedly in violation of their amateur standards. B.U. subsequently advised plaintiffs that they had been declared ineligible and would not be permitted to play for the University hockey team.
The Complaint sets forth three causes of action with respect to the defendant Associations. Count I states a diversity claim alleging tortious interference with contractual relations. Count II is a civil rights claim alleging a denial of equal protection pursuant to 42 U.S.C. งง 1981, 1983 and 28 U.S.C. ง 1343(3), (4). Count III is an antitrust claim under Section 4 of the Clayton Act, 15 U.S.C. ง 15, and Sections 1 and 2 of the Sherman Act, 15 U.S.C. งง 1, 2.
Plaintiffs' request for a temporary restraining order was denied on October 17, 1973 by Judge Garrity sitting as emergency judge. In accordance with his procedural order, the parties filed affidavits and offered testimony with respect to issuance of a preliminary injunction.
Prior to the hearing on the proposed preliminary injunction, the Trustees of *1154 Boston University (B.U.) moved to intervene. The court allowed the motion and designated B.U. as a defendant. The plaintiffs and B.U. were granted leave to file pleadings, including cross-claims, by December 7, 1973. Thereafter, the plaintiffs moved to enjoin B.U. from prohibiting them to participate as members of the University hockey team on the basis of the aforementioned determination of ineligibility by the defendant Associations.
During the hearing on issuance of a preliminary injunction, plaintiffs moved to add as parties certain officers of the defendant Associations as well as B.U.'s Athletic Director, which motions were allowed. Counsel for B.U. stipulated that he had accepted service on behalf of the Athletic Director and that he would rest on the existing record with respect to issuance of a preliminary injunction. The defendant N.C.A.A. did not so stipulate with respect to its officers named in the amended complaint.
For purposes of convenience and clarity, we shall refer during the course of the opinion to the defendants by their institutional designation, i. e., N.C.A.A., E.C.A.C., B.U.
Motions to dismiss made by N.C.A.A. and E.C.A.C. under Fed.R.Civ.P. 12 were denied.
Presently before the court is the issue as to whether the existing record supports plaintiffs' request for preliminary relief. On the basis of the following findings of fact and conclusions of law, we determine that preliminary relief should be granted.
Plaintiffs, Canadian nationals residing in Boston, are members of the Class of 1976 at B.U. and are students in good standing. They are skilled hockey players with sufficient athletic and academic potential for careers in teaching, coaching and professional hockey. A college hockey career would be of valuable assistance to them in achieving any of these goals. Plaintiffs receive financial aid from B.U. which is based solely upon need and which meets standards of the College Scholarship Service, a branch of the College Entrance Examination Board, Princeton, New Jersey.
On November 19, 1973 plaintiffs were advised by B.U. that they would not be permitted to participate as members of the University's hockey team because they were ineligible under the rules and regulations of the N.C.A.A. and E.C.A. C. The ruling of ineligibility was based upon the following circumstances involved with respect to plaintiffs' participation in Canadian Junior amateur hockey leagues prior to attending B.U.
In the Fall of 1970, plaintiff Buckton left his home, transferred to a new school and played for the Oshawa Generals Major Junior A team. During the 1970 season, the rooming house at which he stayed during the school year received $24.00 a week directly from the Generals for his room and board. Buckton also received from the team an additional $10.00 per week for expenses and a total of $4.82 for school books. He received comparable aid during September and October of the 1971 season.
Plaintiff Marzo played for the Kitchener Rangers Major Junior A team for the 1970-71 season. He, too, lived away from home and changed schools during the hockey season. The Rangers paid $24.00 a week directly to his landlord for his room and board, as well as $10.00 a week for expenses and a total of $51.47 for school books. In contrast to Buckton, Marzo returned home after the hockey season ended in mid-March. He received a lump sum of $300.00 to cover commuting expenses so that he could continue to attend the same school for the remainder of the academic year. Room, board and expense payments ceased, however, when he moved home.
The position of the defendant Associations is that the above described aid received by plaintiffs violates their rules with respect to amateur standing.
It is to be noted that prior to 1971 neither defendant Association specified that playing for a Major Junior A hockey team would be grounds for ineligibility. *1155 As of the 1971-72 season, however, such play was covered by the following regulation:
Any student-athlete who has participated as a member of the Canadian Amateur Hockey Association's major junior A hockey classification shall not be eligible for intercollegiate athletics.
N.C.A.A. Const., Art. 3, ง 1, O.I.5. (1973-74); E.C.A.C. Bylaws, Art. 3, ง 1, O.I.5. (1972).
Prior to the 1971-72 hockey season both plaintiffs withdrew from Major Junior A teams and accepted classification at levels of competition lower than Major Junior A, thereby meeting the terms of the aforementioned regulation.
During the 1971-72 hockey season Buckton played one exhibition game and two early season contests for the Oshawa Generals Major Junior A team, but he maintained his classification as a Junior B player. Ontario Hockey Association regulations permit a limited amount of interclassification play. Buckton's play was within these limits. Nonetheless, defendant Associations cite such play as a factor in their determination of Buckton's ineligibility.
The court determines, however, that plaintiff has a substantial likelihood of establishing that such play did not violate defendants' rules since even his minimal participation was not "as a member of the Canadian Amateur Hockey Association's major junior A hockey classification." O.I.5.
Marzo played the entire 1971-72 season with a Junior A team, a lower classification than Major Junior A. This particular regulation, therefore, is not an issue with respect to his case.
The E.C.A.C. is an unincorporated association of approximately 212 four year colleges and universities. It conducts the annual E.C.A.C. Division I hockey tournament. The E.C.A.C. conducts its affairs in close cooperation with the N. C.A.A. Its regulations pertinent to the areas involved in this litigation are identical to those of the N.C.A.A.
The N.C.A.A. is an unincorporated association of approximately 664 colleges and universities, half of which are state institutions. It conducts the annual N. C.A.A. hockey tournament for the championship of college hockey in the United States. The two finalists of the E.C.A. C. tournament are eligible to compete in the N.C.A.A. tournament. The E.C.A.C. and N.C.A.A. tournaments are restricted to members of the respective Associations.
B.U. is a member of both the E.C.A.C. and the N.C.A.A. No comparable associations or conferences are available to B.U. Should B.U. permit plaintiffs to play hockey in the face of a determination of ineligibility by the defendant Associations, it would run the risk of a variety of sanctions, including forfeiture of those games in which plaintiffs participated.
Since commencement of this action, both defendant Associations have agreed to review their determinations with respect to plaintiffs' eligibility.
Assuming this Court preliminarily enjoins B.U. from prohibiting plaintiffs from participating with its hockey team because of the aforementioned alleged violations, the defendant E.C.A.C. has stipulated it will not impose any sanctions against B.U., should such order be subsequently vacated after a determination by this court of the merits. The N.C.A.A., however, reserves any rights it may have to sanction B.U. should such preliminary order be subsequently vacated.
To succeed on their ง 1983 claim (Count II), plaintiffs have the burden of establishing that the N.C.A.A., E.C. A.C. and B.U., acting under color of state law, deprived plaintiffs of federally protected rights. Beaumont v. Morgan, 427 F.2d 667, 670-671 (1st Cir. 1970), cert. den. 400 U.S. 882, 91 S. Ct. 120, 27 L. Ed. 2d 121. The Court finds that there is a substantial probability that plaintiffs will succeed in meeting this burden. It is unnecessary, therefore, to *1156 deal with plaintiffs' theories under Counts I and III.
State Action
"Conduct that is formally `private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299, 86 S. Ct. 486, 488, 15 L. Ed. 2d 373 (1966).
B.U., though a private institution, clearly performs functions governmental in nature, such as providing higher education to and exercising substantial dominion over its students. It may be constrained, therefore, by the requirements of the Constitution. See Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968) (private shopping center); Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) (company town); Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th Cir. 1966); Simkins v. Moses H. Cone Memorial Hosp'l, 323 F.2d 959, 968 (4th Cir. 1963), cert. den., 376 U.S. 938, 84 S. Ct. 793, 11 L. Ed. 2d 659.
The N.C.A.A. in supervising and policing the majority of intercollegiate athletics and athletes nationwide performs a public function, sovereign in nature, that subjects it to constitutional scrutiny. Curtis v. N.C.A.A., C-71 2088 ACW (N.D.Cal. Feb. 1, 1972) (unreported).
Moreover, state support to these defendants "through any arrangement, management, funds, or property" would inject state action into their conduct. Cooper v. Aaron, 358 U.S. 1, 19, 78 S. Ct. 1401, 1410, 3 L. Ed. 2d 5 (1958). See also Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). Government financial support has been held to bring a private beneficiary within the strictures of the 14th Amendment. See Simkins v. Moses H. Cone Memorial Hosp'l, 323 F.2d 959 (4th Cir. 1963), cert. den. 376 U.S. 938, 84 S. Ct. 793, 11 L. Ed. 2d 659. The Fifth Circuit has held that where the establishment of a private university was largely made possible by the use of a surplus city building and other city land leased for university purposes, the city's involvement constituted sufficient state action to bring the 14th Amendment into play. Hammond v. University of Tampa, 344 F.2d 951 (5th Cir. 1965). See also Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. den. 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (tax-supported college); Ryan v. Hofstra University, 67 Misc. 2d 651, 324 N.Y.S.2d 964 (1971) (private university).
The conduct of a private athletic association has been held to constitute state action where 85% of its members were state public schools; funds for support of the association came partly from membership dues from these schools and from gate receipts from games usually played in state-owned and state-supplied facilities; and the association exercised wide control over scheduling, participation in and conduct of athletic events. Louisiana High School Athletic Ass'n v. St. Augustine High School, 396 F.2d 224 (5th Cir. 1968). Accord Oklahoma High School Athletic Ass'n v. Bray, 321 F.2d 269 (10th Cir. 1963); Kelley v. Metropolitan County Board of Education, 293 F. Supp. 485 (M.D.Tenn.1968). The Fifth Circuit found that "[t]he power of the Association reaches not only to the stadiums, the gymnasiums and the locker rooms but into the public classrooms, the public principals' offices and the public pocketbook." 396 F.2d, at 227.
"Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961). For present purposes, it is sufficient to note that the verified complaint, the affidavits, and the testimony heard by the court indicate *1157 that state universities make up one-half the membership of the N.C.A. A.; that these public institutions pay dues to the N.C.A.A.; and that state involvement in the N.C.A.A. includes the support, control and regulation of member institutions as well as the provision of state facilities for N.C.A.A. contests.
B.U. is an academic institution incorporated by the Commonwealth of Massachusetts. During the 1973 fiscal year B.U. received $55,290.00 from the Commonwealth and $18,133,688.00 from the federal government. Such funding continues during the current fiscal year. As stated, B.U. is a member of both the E.C.A.C. and the N.C.A.A. and sponsors a hockey team in intercollegiate competition. B.U. utilizes state-owned facilities on occasion for its athletic events.
On the basis of the existing record, the court finds a substantial likelihood that the requisite state action is present in the conduct of B.U. and the N.C.A.A. towards plaintiffs.
Equal Protection Claim
In addition, the court finds substantial likelihood that defendants are depriving plaintiffs of their right to the equal protection of the laws, U.S.Const., Amend. XIV, a right guaranteed to resident aliens as well as American citizens. In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973); Truax v. Raich, 239 U.S. 33, 39, 36 S. Ct. 7, 60 L. Ed. 131 (1915).
Plaintiffs have been declared ineligible to play hockey at B.U. (and as a practical matter at any other member institution of the N.C.A.A. and E.C.A. C.) because of certain regulations[1] promulgated by the N.C.A.A. and E.C.A.C. which, for all practical purposes, are binding on B.U. As has been pointed out, the pertinent regulations of both associations are identical.
These regulations constitute and impose disparate eligibility standards, one for student-athletes who have played hockey in the United States, and another for those who have played in Canada. Because the regulations in effect classify plaintiffs, who are resident aliens, differently than their American counterparts, they are inherently suspect and this court is required to subject such classification to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 376, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971); Sugarman v. Dougall, supra; In re Griffiths, supra. This is true whether or not a fundamental right is impaired by the classification. Graham, 403 U.S. at 376, 91 S. Ct. 1848. Defendants thus bear the heavy burden of demonstrating that the classification is justified by a compelling interest. Id., at 375, 91 S. Ct. 1848.
Defendants assert that the challenged regulations are designed to maintain the principle of "amateurism" in intercollegiate sports.
Principle of Amateurism and Student Participation. An amateur student-athlete is one who engages in *1158 athletics for the educational, physical, mental and social benefits he derives therefrom, and to whom athletics is an avocation.
N.C.A.A.Const. Art. 3, ง 1 (1973-74); E.C.A.C. Bylaws, Art. 3, ง 1 (1972). The court is not persuaded, however, that the subject regulations, as applied to plaintiffs, are reasonably related to defendants' stated purpose.
Crucial to an understanding of the plaintiffs' case is an awareness as to the differences between the American and Canadian athletic systems as indicated by the existing record in this case. Canada is a relatively rural country. Unlike their counterparts in the United States, Canadian secondary schools do not participate in an organized interscholastic hockey program. Rather, the Canadian hockey program comparable to that undertaken by American secondary schools is organized largely by recreational departments and other civic groups, usually in more metropolitan areas.
A Canadian boy who wants to play hockey at a pace more challenging than at a pick-up level must join one of these teams. Often, this requires a boy to transfer his residence and schooling to the metropolitan area where the team is located. When he does, it is customary for him to receive room, board and limited educational expenses from his team, as did the plaintiffs in this case.
In Canada, it is the team and not the school that is the available source for such aid. When the Canadian boy accepts this aid, which is an open and legitimate practice in Canada, he runs the risk of being declared ineligible for intercollegiate play in the United States because of the N.C.A.A. and E.C.A.C. rules regarding play in a foreign country. N.C.A.A.Const. Art. 3, ง 1, O.I.4, 5 (1973-74); E.C.A.C. Bylaws, Art. 3, ง 1, O.I.4, 5 (1972).
An American boy, on the other hand, can leave his home town to attend a prep school for the same dual purposes of playing hockey while receiving an education. When he does, he may receive financial aid from his school to meet his room, board and educational expenses. Such aid may have even a greater dollar value than the aid received by plaintiffs in this case, and yet the American boy need not fear any sanction by the defendant Associations.
As stated, the aid received by the American and Canadian student-athletes may be precisely the same, both as to character and dollar value, but the defendant Associations would brand the Canadian a professional while accepting his American counterpart as an amateur. This clearly amounts to a disparity in treatment, a classic example of classification which is subject to judicial review.
According to the testimony of Warren Brown, the assistant executive director of the N.C.A.A., this disparity is justified because, although the character of aid may be identical, its source differs, thereby making suspect the motivation behind the aid. For at least two reasons, such a position falls far short of demonstrating a reasonable, let alone a compelling, justification for the disparity in treatment fostered by defendants' regulations.
Although defendants' regulations detail what is permissible aid for a school to grant a student-athlete, they do not even pretend to establish any requirement of need as being a basis for such aid. Indeed, Mr. Brown testified that the N.C.A.A. imposes no such requirement. It would, therefore, be naive to maintain, or even presume that because the source of aid happens to be a school, the motivation behind that aid is not, at least sometimes, an effort to induce a good athlete to attend a particular school in order to be of assistance to its athletic program. Even the most casual reader of our sports pages is aware that such inducements are an everyday fact of life in American amateur athletics. This fact of life underscores the frivolity, if not more, of holding student athletes responsible for the motives of their benefactors, whether they be American *1159 athletic directors or Canadian team managers.
Moreover, Mr. Brown's position ignores the fact that the only available source of such aid to the Canadian boy is his team and not his school. The Canadian boy has no options, unless the option of staying home and not playing hockey can somehow be dignified as a genuine one.
Canada is a rural country. Most towns cannot support their own hockey teams. Talented hockey players, therefore, are often required to leave their home towns and move to metropolitan areas in order to play organized hockey and at the same time attend school. Simply stated, they must go where the opportunity to play hockey while attending school is available. When they do, they often receive, as was true with plaintiffs, their room, board and other incidental educational expenses, the same aid which is available at American prep schools and colleges and which is permitted by the defendant Associations.
It is interesting to note in this regard that one Canadian received more money in a single academic year in Deerfield Academy, Mass. than he had in two years of play with his Canadian team. The former did not affect his eligibility. The latter destroyed it. Affidavit of Eugene Kinasewich, (who also testified before the court) p. 3.
According to defendants' own standards of amateurism, an undergraduate student-athlete may receive financial aid, including a grant-in-aid which carries with it a partial work requirement. Such aid may encompass "commonly accepted educational expenses" including tuition and fees, room and board, required course-related supplies and books, and incidental expenses not in excess of $15.00 per month. N.C.A.A.Const. Art. 3, ง 1(f) (1973-74).
The ultimate purpose of the defendant Associations is to ensure that those who participate in intermural athletics do so as an avocation and not as a vocation. The Associations recognize that the receipt of the limited aid which they permit cannot be deemed to transform student-athletes into professionals. With this principle, the court is in agreement. The defendants, however, go further. They ascribe a corrupting character, and therefore prohibit, this very same aid when its source is other than a school. While this may be a valid restriction on Americans, to whom school aid is available, it becomes an arbitrary and discriminatory classification when imposed upon those, such as the plaintiffs, who do not have school aid available to them. It sets up a standard and specification which Canadian boys cannot reasonably be expected to meet, and which has no reasonable relationship to defendants' principle of amateurism.
By making the source rather than the character of the aid received the determining factor in plaintiffs' case, defendants have allowed form to prevail over substance. This, the court will not permit.
Serious and irreparable harm would accrue to plaintiffs if forced to suffer ineligibility prior to a determination of this case on the merits. Even the most blas้ and hardened campus observer would recognize the obvious stigma that attaches to a declaration of athletic ineligibility, particularly when such ineligibility is based on alleged professionalism, as opposed to more routine academic insufficiency. A reasonable if not necessary implication would be that plaintiffs lacked moral fiber because they took money under improper circumstances. Such an implication would scar their reputations, not only on their own campus but in athletic circles throughout the country, in a way that no subsequent finding of eligibility would ever fully erase.
A second, but perhaps not as vital, element of irreparable harm is that plaintiffs would probably lose almost an entire season of eligibility before there could be a final determination as to the merits of this case. They will have only one sophomore year in college and a later finding in their favor could not restore *1160 the precious months that would have been lost to them.
The overall effect that these two factors might have on their future teaching and professional hockey careers is difficult to determine with any precision. Nonetheless, such effect clearly would be negative, not positive, and, therefore, adds further weight to the scale balancing in favor of preliminary injunctive relief.
On the other hand the potential harm to the defendants if preliminary relief is granted would be insubstantial and far from irreparable.
B.U. would not only be unharmed, it in fact stands to gain if an injunction issues against it. Two players will be available to contribute to the University's hockey team who would otherwise be unavailable. In addition, B.U. need not be concerned with any disciplinary action by the defendant athletic associations because it followed the order of this court. The E.C.A.C. has agreed on the record that it will not impose any sanctions against B.U. even though there be a subsequent determination of plaintiffs' ineligibility. The position which the E.C.A.C. assumed voluntarily is imposed as part of the accompanying order upon the defendant N.C.A.A. Boston University's interests, therefore, are fully protected.
Any potential harm to the defendant N.C.A.A. would be remote at worst. It certainly suffers no harm to its reputation or authority by not punishing a member institution for obeying a court order. It is inconceivable that any of the N.C.A.A.'s member institutions would want or expect less from the N.C. A.A. if they found themselves in similar circumstances. Moreover, this order need not be more than of academic concern to the N.C.A.A. unless and until B.U. becomes a finalist in the E.C.A.C. tournament, thereby becoming eligible for the N.C.A.A. tournament. It is sufficient to note that there are many hockey games to be played, and many victories to be earned, before that possibility becomes an eventuality.
The court is willing to presume at this stage of the proceedings the good faith of defendants in their treatment of plaintiffs. But such good faith is of no consolation to one denied the equal protection of our laws, and cannot be regarded as a matter of absolution by the defendants. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
The defendant Associations, as part of their noble and commendable effort to keep professionalism out of college sports, have established a classification system that seems to irrationally discriminate against Canadian players who are resident aliens. The defendant B.U. has seen fit to implement such classification. The court, therefore, grants to plaintiffs preliminary injunctive relief as indicated by the accompanying Order.
ORDER
The above-captioned matter is before this Court on plaintiffs' motion for preliminary injunction against the defendants, National Collegiate Athletic Association, The Trustees of Boston University, and Warren H. P. Schmakel.
Upon consideration of affidavits and memoranda filed, as well as supplementary testimony offered during the hearings held on this matter, it is ordered until further order of this Court that
1) The Trustees of Boston University and the University's Athletic Director, Warren H. P. Schmakel, are restrained from declaring the plaintiffs ineligible from participating in intercollegiate athletics on account of their alleged violations of the rules of the National Collegiate Athletic Association and the Eastern College Athletic Conference which are the subject of plaintiffs' complaint and which are more fully described in the record presently before the Court.
2) The National Collegiate Athletic Association is restrained from imposing any sanctions against Boston University, its Trustees or Athletic Director on account of *1161 their compliance with paragraph one hereof, either during its pendency or retroactively should such order be later vacated following a determination as to the merits of this case.
NOTES
[1] A student-athlete may have played ice hockey on a team in a foreign country prior to his matriculation at a member institution, provided that any student-athlete who has been a member of any ice hockey team in a foreign country shall be ineligible if he has received, directly or indirectly, from a hockey team any salary, division or split of surplus, educational expenses, or has received payment for any expenses in excess of actual and necessary travel expenses on team trips, a reasonable allowance for one meal for each practice and home game and actual and necessary travel expenses to practice and home games. No student-athlete shall represent his institution in ice hockey unless there is on file in the office of the director of athletics an affidavit in form prescribed by this Association signed by the student-athlete stating his compliance with this provision. (The prescribed affidavit form is printed on pages 29-30.)
N.A.C.A.Const. Art. 3, ง 1, O.I.4 (1973-74); E.C.A.C. Bylaws Art. 3, ง 1, O.I.4 (1972). Any student-athlete who has participated as a member of the Canadian Amateur Hockey Association's major junior A hockey classification shall not be eligible for intercollegiate athletics.
N.C.A.A.Const. Art. 3, ง 1, O.I.5 (1973-74); E.C.A.C. Bylaws, Art. 3, ง 1, O.I.5 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1769296/ | 720 F. Supp. 305 (1989)
Morton LEVINE, suing individually and on behalf of all other shareholders of NL Industries, Inc. similarly situated, Plaintiff,
v.
NL INDUSTRIES, INC., Defendant.
No. 86 Civ. 7453 (MGC).
United States District Court, S.D. New York.
August 28, 1989.
Rabin & Sirota by Howard B. Sirota, Rachell Sirota, New York City, and Gene Mesh & Associates by Gene Mesh, Cincinnati, Ohio, for plaintiff.
Dorsey & Whitney by Richard L. Bond, Stephen B. Camhi, Stewart D. Aaron, Robert G. Manson, New York City, for defendant.
OPINION AND ORDER
CEDARBAUM, District Judge.
This is a class action brought by plaintiff Morton Levine on behalf of all persons who purchased the common stock of NL Industries, Inc. ("NL") between January 27, 1982 and December 10, 1984 (the "class period"). The complaint alleges that NL violated section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, with respect to two entirely separate operations. All pre-trial discovery has been completed in this case. NL has moved for summary judgment dismissing the complaint. In addition, NL has moved to amend its answer to assert a statute of limitations defense.
In an earlier opinion, I granted defendant's motion for summary judgment on *306 plaintiff's claim of fraudulent omission with respect to NLO, Inc. ("NLO"). 717 F. Supp. 252. In this opinion, I address plaintiff's remaining claim which focuses on NL's petroleum services business. Plaintiff claims that NL issued nine material misrepresentations concerning the performance of its petroleum services business. According to plaintiff, all the purchasers of common stock of NL during the class period paid an inflated price for the stock because in the public pronouncements concerning its petroleum services business, NL painted a brighter picture of the business' financial picture than was in fact the case. For the reasons discussed below, partial summary judgment dismissing this claim is granted.
BACKGROUND
Familiarity with the Court's earlier opinion in this case is assumed, and only those facts necessary to the determination of this motion will be set forth here.
Defendant NL is a New Jersey corporation with its principal place of business in Houston, Texas. It is a publicly-held corporation whose stock was listed and traded on the New York Stock Exchange throughout the class period. In March of 1982, plaintiff Levine purchased 100 shares of NL common stock at a price of $22 per share. In April of 1982, Levine sold these shares at a price per share of $26 7/8 . In June of 1982, Levine purchased 100 shares of NL common stock at $22 1/8 per share.
Petroleum services is one of NL's principal lines of business. In 1982, NL's petroleum services business accounted for 78.5% of NL's total sales; in 1983, 66%; in 1984, 65.3%. During the class period, the petroleum services group consisted of a variety of divisions, the largest of which was NL Baroid. NL Baroid mined and delivered to well-sites drilling fluids sometimes referred to as "muds."
NL's petroleum services business focused on the deeper drilling segment of the market. According to NL, it usually takes a number of years to drill a deep oil or gas well, so deep drilling generally is not affected by short-term market factors. During approximately the first four months of any year, petroleum services companies typically experience a decline in revenues because of a cyclical decline in drilling activity caused by seasonal weather-related factors. According to NL, it cannot be determined until May or June of any year when weather-related impediments to drilling activity have abated whether winter revenues declined for reasons other than the weather.
During the energy crisis of the 1970's, oil and gas drilling activity increased. As a result, petroleum services companies were highly profitable through 1981. NL had its most successful year in 1981, and that year marked NL's fourth consecutive year of record earnings performance. NL continued to report record results during the first quarter of 1982. However, during portions of the class period, NL, along with virtually all other petroleum services companies, experienced a decline in revenue and income. This decline was the result of a variety of factors which had an adverse impact upon the oil and oil field services industries, including the uncertainty which surrounded the production and pricing policies of OPEC, diminished demand for petroleum products in the United States and abroad, conservation efforts by consumers and severe weather in certain areas.
Plaintiff alleges that "NL made public statements minimizing [these] problems and predicting future favorable results when it internally knew that NL was experiencing deterioration in its business which it internally projected would continue in the future." Plaintiff's 3(g) Statement at 6. Plaintiff asserts that NL's internal documents reveal that NL knew that "its petroleum service operations were experiencing a downward trend far in excess of any seasonal pattern," and that it knew that "deep drilling was being adversely impacted and would experience a continuing difficulty." Plaintiff's 3(g) Statement at 5. Nevertheless, according to plaintiff, NL publicly predicted record results.
As part of its normal business operations, NL compiled several types of internal documents. NL prepared an operating *307 plan for each fiscal year, which was based upon estimates of future business activity, income and expenses. In addition, each division of the petroleum services group prepared an annual business plan which established budgetary guidelines for the division for the fiscal year. The annual business plans prepared by each division generally were created in the fall of the preceding year for use in each fiscal year. Furthermore, NL's corporate planning department ("the Department") produced projections of future business activity which were used in NL's financial and business planning. The Department's projections were based upon a variety of information, including economic data relating to the incentive to drill, projections by NL's customers, projections by NL's competitors in the petroleum services industry, industry analysts' reports and market information. Finally, as part of the business planning process, each division of NL prepared contingency plans. Contingency plans were prepared every year, including the record earnings years of 1980 and 1981. The contingency plans were based upon potential changes in conditions which could increase or decrease the division's earnings.
DISCUSSION
Fed.R.Civ.P. 56 provides that a court shall grant a motion for summary judgment if it determines that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). In assessing the record, "all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady, 863 F.2d at 210; see also Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). However, if after discovery a nonmoving party fails to make a showing sufficient to establish the existence of an element essential to one of the claims, and on which that party will bear the burden of proof at trial, summary judgment may be granted on that claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In such a situation, there can be no "genuine issue as to any material fact" because a failure of proof on an essential element of a claim of a nonmoving party "necessarily renders all other facts immaterial" as to that claim. Id. at 323, 106 S.Ct. at 2552. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Here, plaintiff has failed to make a showing sufficient to establish the existence of all the elements essential to his claim under section 10(b) and Rule 10b-5. Rule 10b-5 provides in pertinent part that it "shall be unlawful ... [t]o make any untrue statement of a material fact." Plaintiff alleges that NL made the following nine material misrepresentations:
1. On January 27, 1982 the Wall Street Journal and Dow Jones News Wire ("DJ") reported that Ray C. Adam, Chairman of NL said that each quarter of 1982 will show improvement in its financial position of 1982. Adam stated that NL expected further improvement in its financial position in 1982.
2. As reported by DJ on March 24, 1982, Ray C. Adam said NL expects to report record earnings for the first quarter of 1982 and that the second quarter of 1982 would show significant improvement over 1981. With reference to NL Petroleum Services Operations, Adam said NL was not heavily involved in the more oversupplied categories such as drill rigs or standard tubular goods. He said NL's products and services were used primarily in deeper, more complex wells where demand continues to be relatively strong. Adam stated that "the basic outlook for our Petroleum Service Product Lines remains strong throughout 1982 and the decade of the 1980's."
3. As reported by DJ on April 26, 1982, NL said it expects earnings for the remainder of 1982 to show improvement over 1981's results, but at a smaller rate of increase.
4. As reported by DJ on April 30, 1982, Theodore C. Rogers, NL's newly elected *308 Chief Executive Officer, said that NL's revenues came from services and equipment for deep wells where activity has not been slowed as much as shallower wells. He said that "NL's future isn't tied to the rig count. It's tied to the type of wells drilled." Rogers recklessly predicted that NL would have record earnings for 1982.
5. On July 28, 1982, NL said it expected its income in the second half of 1982 to be below its 1981 levels and 1982 results most likely will be below those of the previous record year.
6. As reported by DJ on October 27, 1982, NL reported reduced U.S. drilling activity. The company said that similar conditions were expected to prevail during early 1983, but that drilling activity should increase gradually during the balance of 1983.
7. As reported in the Wall Street Journal on November 29, 1982, an Executive Vice-President of NL said "we've probably seen the bottom" of the decline in U.S. drilling activity.
8. In a letter to the shareholders dated March 1, 1983 and published in NL's 1982 Annual Report, Adam and Rogers stated that they "continue to believe that the fundamental, long range opportunity for our petroleum service business remains substantially unchanged."
9. As reported by DJ on January 25, 1984, NL said that it expects drilling activity to increase during the second half of 1984 and that 1984 should be a profitable year.
The last five of these representations were made after Levine had purchased his stock. Thus, these representations are not actionable under section 10(b) and Rule 10b-5 by a class represented by Levine. See Denny v. Barber, 576 F.2d 465, 468-69 (2d Cir.1978); Schwartz v. Novo Industri A/S, 658 F. Supp. 795, 799-800 (S.D.N.Y.1987).
The remaining four representations are in the nature of predictions concerning NL's financial condition. To recover on the ground that these predictions were false, plaintiff must establish that NL knew or was reckless in failing to know that NL's financial future would not eventuate as forecast. See Denny, 576 F.2d at 470; see also Goldman v. Belden, 754 F.2d 1059, 1068-69 (2d Cir.1985); Lazzaro v. Manber, 701 F. Supp. 353, 363-64 (E.D.N.Y.1988). To withstand a motion for summary judgment, plaintiff must proffer evidence which creates a genuine dispute as to whether the predictions were "honestly held view[s] based on [NL's] considered judgment given the information before it." Schwartz, 658 F.Supp. at 799. Plaintiff cannot simply allege "fraud by hindsight." Denny, 576 F.2d at 470.
Plaintiff argues that he has created a genuine issue of fact as to whether NL knew or was reckless in failing to know that the representations painted a rosier picture of the petroleum services business' financial picture than was in fact the case. His argument is based on internal documents that were in existence at the time the statements were made. Plaintiff alleges that those documents reveal that NL was uncertain about the future performance of its petroleum services business. However, an examination of those internal documents as well as the context in which the representations appear reveals that the public statements accurately reflected NL's internal forecasts at the time.
First, plaintiff challenges statements made by Ray C. Adam, Chairman of NL, as contained in a NL news release of January 27, 1982. Defendant's Exhibit 6. In particular, plaintiff argues that Adam's statements that "[t]he company expects each quarter in 1982 will show improvement over 1981" and that "NL expects further improvement in its financial position in 1982" were not supported by NL's internal documents. However, the only internal document that plaintiff has offered that was in existence at the time is NL's 1982 Annual Operating Plan dated January 27, 1982. Defendant's Exhibit 143. The projections in the Plan, which was prepared by the Department, were entirely consistent with Adam's statements. In the Plan, the Department took an optimistic view of NL's 1982 business prospects. The Department *309 indicated that it was "convinced that substantial growth remains for the industry," and that "for 1982, business has [a] solid market foundation." The Department assumed a 16% increase in the market for petroleum services, an 18% growth rate in its petroleum services operation and a 4% growth in its chemical operations. Finally, the Department concluded that "in 1982, growth to be broadly based. All major units planning substantial sales and income growth."
Despite ample support for his prediction that NL's financial position in 1982 would improve, Adam tempered his optimism. The same news release also reported that "[t]he NL chairman noted recent unfavorable investor reaction from the current oil oversupply and a corresponding drop in the wholesale prices of oil." Defendant's Exhibit 6. Thus, there is no evidence to support plaintiff's claim that this public announcement painted a rosier picture of NL's financial condition in 1982 than was projected in NL's internal documents.
The second series of statements made by Adam that plaintiff challenges are contained in a NL news release of March 24, 1982. Plaintiff's Exhibit I. In particular, plaintiff argues that the following five statements were not supported by NL's internal documents: 1) NL "expects to report record income in the first quarter of 1982"; 2) NL "expects the second quarter [of 1982 will] show a significant improvement over 1981's results"; 3) NL's petroleum services business "is not heavily involved in the more oversupplied categories such as drill rigs or standard tubular goods"; 4) NL's petroleum services business' "products and services were used primarily in deeper, more complex wells where demand continues to be relatively strong"; and 5) "The basic outlook for our petroleum services product lines remains strong throughout 1982 and the decade of the 1980's."
Plaintiff argues that these statements are inconsistent with several of NL's internal documents. First, plaintiff points to a summary of NL's operations that was presented to the Board of Directors on February 24, 1982. Plaintiff's Exhibit X. Plaintiff notes that the summary indicated that "[c]hemical results were well below plan at U.S. operations," and that the petroleum services business reported an overall shortfall. Second, plaintiff points to a Discussion Draft of NL's Strategic Planning Guide: Five Years 1982-1987. Plaintiff's Exhibit Z. The guide is dated March 3, 1982, and was prepared by the Department. The Department wrote that "the rate of increase [in drilling activity in the U.S.] is expected to slow in 1982 and further through 1987," and that "the outlook for Petroleum Services has a considerable degree of uncertainty." Third, plaintiff points to an Exploration and Production ("E & P") Survey dated March 15, 1982. The Survey was prepared by J.E. Hannsz, Director of Strategic Planning in the Department, for Theodore C. Rogers, NL's president. Plaintiff's Exhibit AA. Hannsz stated that "[c]ontingency plans are currently being developed among most of the major producers." He noted further that if OPEC did not defend the current price of crude oil, the most likely downside scenario is that "drilling programs might be delayed and that 1982-83 drilling activity could be flat or down slightly." (emphasis in original). Fourth, plaintiff points to the World Drilling and Rig Construction Forecast: 1982-1987. Plaintiff's Exhibit BB. The Forecast is dated March 23, 1982, and was prepared by the Department. In particular, plaintiff draws attention to the statement that "[t]here is much uncertainty about 1982," and the Department's request that units of NL prepare a contingency plan for 1982. Finally, plaintiff points to Rogers' report to the Board of Directors on March 24, 1982. Plaintiff's Exhibit 19. Rogers reported that "February results show a weakness in some areas," and that contingency plans had been prepared for each unit "in the event of a petroleum over-supply situation."
By quoting selectively from these documents, plaintiff has created a misleading impression. When viewed in their entirety, the documents are not inconsistent with the optimistic representations made by Adam.
*310 Adam's first two statements, in which he predicted record earnings for the first two quarters of 1982, are amply supported by the same documents on which plaintiff relies. While the summary of NL's operations that was presented to the Board on February 24 did mention unfavorable results in certain operations, the bottom line was that "January income from continuing operations totalled $.39 per common share and was $.03 per common share better than plan ..." Plaintiff's Exhibit X. In addition, Rogers reported to the Board that while there were some problems in certain divisions of the petroleum services group, "all are expected to be on plan as the year progresses." Plaintiff's Exhibit 7. Similarly, despite the fact that the Department in its Draft Strategic Planning Guide believed that growth in drilling activity in the U.S. would slow in 1982, it still predicted a 16% increase in drilling activity over 1981. Plaintiff's Exhibit Z. Since NL experienced a record amount of drilling activity in 1981, the increase in 1982 would produce another record year.
In addition, in citing Hannsz's E & P Survey, plaintiff focuses on Hannsz's downside scenario even though Hannsz considered it unlikely that this scenario would materialize. Plaintiff's Exhibit AA. Hannsz noted that "most major producers believe that OPEC will defend the current price of crude, and that any temporary weakness in the spot market is not significant to E & P expenditures as the government windfall profits tax is as much as 70 percent of the marginal dollar." He stated further that "[t]here is a general belief among the producers that OPEC's problem may be relatively short term, as demand is expected to increase with economic recovery in the second half of 1982." Furthermore, while the Department's World Drilling and Rig Construction Forecast said that there is much uncertainty about 1982, it still predicted an 11% increase in rig activity in the United States over 1981. Plaintiff's Exhibit BB. Finally, while Rogers reported to the Board on March 24 that February results showed a weakness in some areas, he also indicated that "management continues to believe that drilling will continue at levels sufficient to justify continued reliance on original forecasts." Plaintiff's Exhibit 19. The original forecasts, as set out in NL's 1982 Annual Operating Plan, predicted record earnings in 1982. See Defendant's Exhibit 143. Thus, Adam's predictions regarding NL's performance in 1982 were consistent with NL's internal documents.
Plaintiff has not pointed to anything in NL's internal documents that casts doubt on Adam's three statements concerning NL's petroleum services business. Plaintiff does not dispute that the petroleum services business focused on the deeper drilling segment of the market. In the World Drilling and Rig Construction Forecast, the Department indicated that "deeper drilling ...is expected to grow more rapidly than shallow drilling." Plaintiff's Exhibit BB. As for the long term prospects of this business, the forecast said that "long term growth in drilling activity seems assured." Similarly, the Department's Draft Strategic Planning Guide predicted that while the tremendous growth in drilling activity in the U.S. in 1981-82 would slow in 1982-87, it would still increase at a rate of 7% per year. Plaintiff's Exhibit Z. Plaintiff has not pointed to anything that contradicts this evidence. Thus, he has failed to create a genuine dispute as to whether Adam's predictions on March 24 were anything but "honestly held view[s] based on [his] considered judgment given the information before [him]." Schwartz, 658 F.Supp. at 799.
The third public announcement that plaintiff claims contained a material misrepresentation occurred on April 26, 1982. In a News Release, NL said that "it expects earnings for the remainder of 1982 to show improvement over 1981's results, but at a smaller rate of increase." Plaintiff's Exhibit 27. Plaintiff relies on the same documents noted above in arguing that this statement was overly optimistic in light of information available to NL at the time. In fact, based on the previous examination of NL's internal documents, it is clear that this statement closely tracks the Department's projections. Moreover, in the same *311 news release NL acknowledged the "weakening world oil prices"; that "[a]ll operations, particularly the U.S., were affected by depressed economic conditions"; that "[e]arnings for the company's 50 percent owned subsidiary ... were slightly below the comparable 1981 quarter"; and that "NL Baroid's line of drilling fluids ... experienced some softness in certain areas." In short, NL did not present a completely rosy picture of the company's financial condition, and there is no evidence to suggest that its prediction of the company's earnings for the remainder of 1982 was not well-grounded.
The final series of statements that plaintiff challenges were made by Theodore C. Rogers, President of NL, at the company's annual meeting on April 30, 1982. Defendant's Exhibit 5. Plaintiff argues that the following statements are insupportable: (1) "Finally, NL serves the deeper drilling segment of the market. By this, we mean wells 10,000 feet and deeper which have been and will continue to grow at a more rapid pace than drilling in general. In fact, 60% of NL's petroleum service revenues are derived from such wells." (2) "NL's future is not tied to rig count, but to the type of wells being drilled." (3) "We, therefore, expect to achieve another record year in 1982."
Plaintiff points to the above-mentioned documents as well as to the minutes of the Board of Directors' meeting of April 30, 1982, to support his claim. Plaintiff's Exhibit W. Plaintiff notes that Rogers reported to the Board that there was a "reduction in the receipt of orders at some units," and that the company was making "changes in capital spending plans which would be employed to offset any market softness."
Neither this document nor any other document that plaintiff has proffered suffices to raise an issue of fact as to whether Rogers knew or was reckless in failing to know that NL's true financial picture was not so bright in some respects as he had painted it to be in his representations. NL's documents reflect Roger's statement that NL's future is tied most closely to the number of deep wells drilled, and that the deep drilling segment of the market was predicted to grow at a faster rate than the drilling market in general. See Plaintiff's Exhibit BB. As to Roger's prediction of a record year in 1982, he clearly had support. The prior year was a record year for NL, and all internal documents predicted an increase in growth for NL in 1982. Finally, Rogers tempered his optimism with several caveats. He stated: "Yes, there is a great deal of concern today about the future of the oil service industry. This concern centers on the fact that spot oil prices have been dropping. Due to the worldwide recession and the results of concerted conservation efforts on the part of consumers, the demand for oil has declined." Defendant's Exhibit 5. He also noted that it "would be unrealistic to assume [30%] growth rates [in U.S. drilling activity] would continue." Id. Once again, Roger's statements followed those of the Department in its internal documents.
In summary, the four sets of representations that plaintiff has challenged reflected the internal information that was available to NL at the time. Thus, plaintiff's argument that based on internal documents he has created a genuine issue of fact as to whether NL knew or was reckless in failing to know that the representations painted a rosier picture of the petroleum services business' financial picture than was in fact the case has to fail. Accordingly, summary judgment in favor of NL is appropriate.
CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment on plaintiff's claim that it issued nine material misrepresentations with respect to its petroleum services business is granted, and that claim is dismissed. Since I have previously granted defendant's motion for summary judgment on plaintiff's only other claim, the complaint is dismissed in its en- *312 tirety.[1]
SO ORDERED.
NOTES
[1] There is no need for me to reach defendant's motion to amend its answer to assert a statute of limitations defense, or defendant's argument that plaintiff has failed to present any evidence that he has been injured, and therefore I do not do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3045944/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-17-2009
Hector Huertas v. City of Camden
Precedential or Non-Precedential: Non-Precedential
Docket No. 09-1050
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Hector Huertas v. City of Camden" (2009). 2009 Decisions. Paper 1520.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1520
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DLD-143 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1050
IN RE: HECTOR L. HUERTAS,
Petitioner
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 06-cv-04676)
Submitted Pursuant to Rule 21, Fed. R. App. P.
March 26, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: April 17, 2009)
OPINION
PER CURIAM
Hector Huertas, proceeding pro se, has filed a petition for a writ of mandamus
seeking to compel the United States District Court for the District of New Jersey to
decide several motions in his action against the City of Camden, the City of Camden
Police Department, Officer Warren Brown, and Juan Andino (the “Defendants”). We
will deny the mandamus petition.
Huertas filed a complaint in District Court against the Defendants alleging that
they had prevented him from visiting his mother. Andino, who lives with Huertas’s
mother, allegedly called the police when Huertas arrived at the house to visit her, and
Officer Brown directed Huertas to leave. Huertas sought a temporary restraining order
and injunctive relief.
In June 2008, Huertas filed a motion and an amended motion for default judgment
against the municipal defendants based on their alleged failure to abide by a court
scheduling order and other alleged discovery violations. Huertas also filed a motion for
leave to file a second amended motion for default judgment. In November 2008, Huertas
wrote the District Court, requesting a ruling on his motions. In January 2009, Huertas
filed the present petition for a writ of mandamus, seeking an order compelling the District
Court to decide his motions.
Shortly after the filing of Huertas’s mandamus petition, the Magistrate Judge
dismissed without prejudice Huertas’s motion and amended motion for default judgment,
and granted Huertas’s motion for leave to file a second amended motion for default
judgment to the extent that he sought leave to file a second amended motion. In light of
the Magistrate Judge’s order, Huertas’s petition for a writ of mandamus seeking to
compel the District Court to rule upon these motions is now moot. Huertas’s additional
requests that we vacate a scheduled pre-trial conference and stay the trial pending the
disposition of his motions are also moot.
2
Accordingly, we will deny the petition for a writ of mandamus.1
1
Huertas subsequently filed a second amended motion for default judgment, which the
District Court denied. Pre-trial proceedings are continuing.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2482856/ | 936 N.E.2d 1224 (2007)
371 Ill. App.3d 1197
KARAS
v.
OTTO.
No. 1-04-1623.
Appellate Court of Illinois, First District.
March 30, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2101834/ | 622 N.E.2d 461 (1993)
INDIANA DEPARTMENT OF PUBLIC WELFARE, Appellant (Defendant below),
v.
Hazen PAYNE, Appellee (Plaintiff below).
No. 49S02-9310-CV-1112.
Supreme Court of Indiana.
October 18, 1993.
Rehearing Denied February 1, 1994.
*463 Pamela Carter, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellant.
Scott R. Severns, Severns Associates, Indianapolis, for appellee.
ON PETITION TO TRANSFER
DICKSON, Justice.
Seeking clarification of certain state and federal Medicaid eligibility requirements, the Defendant-Appellant Indiana Department of Public Welfare ("the Department") petitions for transfer following the Court of Appeals' partial affirmance of the entry of summary judgment against it in favor of Plaintiff-Appellee Hazen Payne. Indiana Dep't of Pub. Welfare v. Payne (1992), Ind. App., 592 N.E.2d 714, reh'g denied (1992), 598 N.E.2d 608.
In resolving this dispute, we are confronted with two questions. The first, a state law issue, is whether a financially ineligible Indiana Medicaid applicant, in order to establish eligibility, may spend down[1] that portion of his resources exceeding a state-established standard resource allowance. The second question asks whether an Indiana Medicaid applicant must first meet all threshold federal eligibility requirements before utilizing a less restrictive state provision to qualify for medical assistance.
In July, 1988, Payne was diagnosed as having leukemia and was hospitalized for most of the next five months, during which time he underwent chemotherapy. A divorced construction laborer, Payne had no health insurance, and his hospital and medical expenses totalled $149,968.36. In October, 1988, Payne applied for Medicaid assistance through the Monroe County Welfare Department which recognized his eligibility effective December 1, 1988, but denied benefits for the preceding five months, citing Payne's resources in excess of the applicable standard allowance on the eligibility determination day of these months.
Payne's appeal to an administrative law judge was denied on April 28, 1989, as was his final administrative appeal to the State Board of Public Welfare on July 10, 1989. Payne sought judicial review, and on February 5, 1991, the Marion County Superior Court reversed the administrative determination and remanded the case to the Department for further proceedings. Subsequently, the Department sought relief from our Court of Appeals which affirmed, in relevant part, that Payne should have been allowed to spend down his excess resources to meet Medicaid eligibility requirements. Payne, 592 N.E.2d at 714. On rehearing, our Court of Appeals further determined that federal law allows Indiana to employ methods of determining income and resource eligibility for Medicaid that are more liberal than those used by states adopting the corresponding federal means for determining eligibility. Payne, 598 N.E.2d at 608. It is from these decisions that the Department seeks further review. We grant transfer.
*464 Applicable Federal and State Medicaid Law
Our analysis first necessitates an overview of the intricate interrelationship between the relevant federal statutes and state provisions governing Medicaid.[2] In 1965, the United States Congress amended the Social Security Act by adding Grants to States for Medical Assistance Programs, 42 U.S.C. § 1396 et seq. (Supp. 1965-68) as a cooperative program between the federal government and states to provide medical assistance to individuals who were receiving benefits under any one of four welfare programs established elsewhere in the Social Security Act. In 1972, Congress restructured Medicaid by replacing three of these four programs with a new federal program entitled Supplemental Security Income for the Aged, Blind, and Disabled ("SSI"), 42 U.S.C. § 1381 et seq. (Supp. 1974). For many states, SSI greatly increased the number of potentially eligible Medicaid recipients. Congress, concerned that some states might discontinue participation in Medicaid if required to bear the increased costs of providing benefits to everyone eligible for SSI, offered states the option of providing Medicaid assistance only to those individuals who would have been eligible under the state's Medicaid plan in effect on January 1, 1972. 42 U.S.C. § 1396a(f) (Supp. 1974) (commonly known as the "Section 209(b) option"[3]). Under Section 209(b) a state could retain its 1972 Medicaid eligibility requirements but could not implement requirements more restrictive than its 1972 provisions or more liberal than the SSI requirements.[4] Indiana elected to continue participation in Medicaid under Section 209(b). Ind. Code § 12-15-2-6.
State Law Question
Indiana's resource spend-down provision in effect in 1972 provides in part:
(c) Possession of intangible personal property with an available liquid cash value in excess of the standard resource allowance shall render an applicant ineligible for assistance, and utilization of some of the resources down to the amount of the standard resource allowance is necessary before the applicant can be found eligible.
(d) Possession of intangible personal property with an available cash value which has increased to be in excess of the standard resource allowance shall not make a recipient ineligible for assistance providing the recipient is willing to make the necessary adjustments and taken immediate steps to do so.
Burns' Ind. Admin. Rules and Regulations, Rule (52-1206)-2 (Supp. 1975) ("the 1972 Rule").
*465 The Department argues that Indiana's 1972 spend-down provision is ambiguous and thus should be subject to administrative rather than judicial interpretation unless plainly erroneous or inconsistent with the rule itself. The Department urges that the trial court's de novo review of Indiana's Medicaid provisions effective on January 1, 1972, was improper because the issue is one of fact rather than law.
The Department further argues that the 1972 Rule's language "utilization of some of the resources down to the limit of the standard resource allowance" was too broadly construed by the Court of Appeals. The Department contends that a state Medicaid regulation issued in 1984, in effect in 1988 at the time of Payne's application for assistance, limits the interpretation of the 1972 Rule. This regulation states in pertinent part:
(a) An applicant or recipient is ineligible for medical assistance for any month in which the total equity value of all non-exempt resources exceeds the applicable limitation, set forth below, on the first day of the month:
(1) $1,500 for the applicant or recipient, including the amount determined in (b) below, if applicable; or
(2) $2,250 for the applicant or recipient and his spouse.
Ind. Admin. Code tit. 470, r. 9.1-3-17 (1988) ("the 1988 Rule") (current version at Ind. Admin. Code tit. 405, r. 2-3-15 (1992)).
Specifically, the Department argues that the Court of Appeals improperly interpreted "utilization of some of the resources down to the limit of the standard resource allowance" to permit the application of incurred medical expenses as an offset to excess resources. The Department, applying the 1988 rule, posits that the term "utilization" means liquidating resources and actually making payment toward medical expenses to reduce resources to the maximum eligibility level by the first day of the month in order to qualify for Medicaid assistance for that month. The Department urges that under this interpretation, Payne, who did not liquidate resources or actually pay toward medical expenses by the first day of the months at issue, is therefore ineligible for Medicaid assistance for those months.
Payne responds that resource spend-down was permitted under the 1972 Rule, and that, as a result, the Department may not now, through application of the 1988 Rule, disallow resource spend-down because such a prohibition, under Section 209(b), would be impermissibly more restrictive of his Medicaid eligibility than Indiana's 1972 provisions. Accordingly, he urges that he should be allowed to apply his incurred but unpaid medical expenses as an offset to his resources in determining his eligibility for Medicaid assistance. Payne in effect calculates that each dollar of his resources above the standard allowance should be figuratively "erased" by applying a corresponding dollar from his medical expenses (reducing his otherwise eligible medical expenses by a like amount) until his resources "diminish" to the resource limitation level. Payne contends that the trial court's judgment on this issue in his favor was properly entered as a matter of law.
A determination of the status of Indiana legislation in 1972 is a question of law, one properly subject to de novo analysis upon judicial review. Stockton v. Department of Pub. Welfare (1988), Ind. App., 533 N.E.2d 148, 151. Moreover, while a reviewing court owes some deference to an administrative agency's conclusions of fact, no such deference need be accorded an agency determination of a matter of law. Board of Trustees of Pub. Employees' Retirement Fund of Ind. v. Miller (1988), Ind., 519 N.E.2d 732, 733.
Resolution of the state law question requires that we first interpret the 1972 Rule. In interpreting an administrative regulation, the rules applicable to construction of a statute apply to construction of the regulation. Empire Gas of Rochester, Inc. v. State (1985), Ind. App., 486 N.E.2d 1036, 1044; Indiana State Dep't of Welfare, Medicaid Div. v. Stagner (1980), Ind. App., 410 N.E.2d 1348, 1352. Therefore, just as a statute susceptible to more *466 than one interpretation is ambiguous and open to construction, P.B. v. T.D. (1990), Ind., 561 N.E.2d 749, 750, an administrative regulation subject to multiple interpretations is likewise ambiguous and open to construction. The language of the 1972 Rule pertaining to "utilization of some of the resources down to the amount of the resource allowance" is ambiguous, thus warranting our construction.
The 1972 Rule establishes that possession of intangible personal property in excess of the standard resource allowance renders a Medicaid applicant ineligible for assistance. However, the rule also provides that "utilization of some of the resources down to the amount of the standard resource allowance is necessary before the applicant can be found eligible." Burns' Ind. Admin. Rules and Regulations, Rule (52-1206)-2(c) (Supp. 1975).
We find that this regulation permits a Medicaid applicant, under circumstances discussed infra, to spend down resources exceeding Indiana's standard resource allowance to establish eligibility for Medicaid assistance. This provision essentially affords an applicant, ineligible because of excess resources, a potential means to "cure" the disqualification which otherwise would preclude the availability of Medicaid assistance. There is nothing in the language of the 1972 Rule which either by express terms or unmistakable implication constrains us to interpret "utilization of some of the resources down to the amount of the standard resource allowance" as requiring a Medicaid applicant to liquidate resources and make a payment toward medical expenses before Medicaid eligibility can be established. We agree with the Court of Appeals that an applicant's failure to liquidate resources and make medical payments "does not suggest that an applicant would be denied medical assistance for the month requested and that the applicant would have to reapply after the excess resources were spent down... ." Payne, 592 N.E.2d at 722.
Moreover, we note that, prior to the administrative hearing, the Department, when requested to admit that the resource spend-down provision had been a part of the state's Medicaid program as of January 1, 1972, did not deny this request but merely produced copies of applicable regulations in effect in 1972. We also observe that the Department's Medicaid Manual, in effect until its 1984 appeal, recognized resource spend-down. Ind. Admin. Code tit. 470, r. 9-3-2(22.2), 9-4-3(12) (1979).
We next address the Department's contention that the 1988 Rule limits construction of the 1972 Rule by requiring a Medicaid applicant to meet the standard resource allowance.
In construing a statutory provision, a statute must be considered as a whole, each part examined not in isolation but with reference to all the other companion provisions. Hinshaw v. Board of Comm'rs of Jay County (1993), Ind., 611 N.E.2d 637, 639; Walgreen Co. v. Gross Income Tax Div. (1947), 225 Ind. 418, 421, 75 N.E.2d 784, 785. This Court will construe an individual provision so as to harmonize it with other sections of the enactment. Hinshaw, 611 N.E.2d at 639; Indiana Dep't of State Revenue v. Indianapolis Pub. Transp. Corp. (1990), Ind., 550 N.E.2d 1277, 1278.
While state participation in Medicaid is voluntary, a state choosing to participate must nevertheless conform to the relevant provisions of federal legislation pursuant to the Social Security Act. Harris v. McRae (1980), 448 U.S. 297, 301, 100 S. Ct. 2671, 2679, 65 L. Ed. 2d 784, 794. See also Schweiker v. Gray Panthers (1981), 453 U.S. 34, 101 S. Ct. 2633, 69 L. Ed. 2d 460. A legislative enactment of the U.S. Congress and a state administrative regulation are not fellow components of one provision. Yet, in the present case, because the enabling legislation of the Social Security Act, the Congressional mandate of Section 209(b), and Indiana's 1972 Rule are concurrently applicable, the 1972 Rule must be read in conjunction with and as subject to Section 209(b) provisions. Section 209(b) requires that a state opting to participate in the Medicaid program under its provisions may not establish Medicaid eligibility *467 more restrictively than the state's eligibility requirements in effect on January 1, 1972.
Applying the 1988 Rule's liquidation and payment limitation to the 1972 Rule to determine Medicaid eligibility in Indiana is plainly more restrictive than applying only the 1972 eligibility requirements. As such, because it fails to conform to the relevant, explicit provisions of Section 209(b), the 1988 Rule may not properly be applied to construe the 1972 Rule.
Therefore, because Indiana's Medicaid program in effect in 1972 potentially could have allowed Payne to utilize incurred medical expenses as an offset against his excess resources to establish Medicaid eligibility, the Department's 1988 Rule absolutely precluding his eligibility for Medicaid assistance for any month when the total value of his non-exempt resources exceeded the standard resource allowance is impermissibly more restrictive under Section 209(b) than the 1972 Rule. Unless otherwise ineligible for Medicaid assistance, Payne is entitled to spend down his resources to establish his Medicaid eligibility for the months of July through November of 1988.[5]
Federal Law Question
The Department contends that a state's Medicaid plan must comply with all requirements established by the U.S. Congress and is subject to approval by the Secretary of Health and Human Services. The Department correctly points out that failure to substantially conform to such requirements could result in a Secretary of Health and Human Services determination that the federal government's contribution to the state's Medicaid administration costs as well as payments to providers of medical assistance be limited or withheld.
The Department directs our attention to Roloff v. Sullivan (7th Cir.1992), 975 F.2d 333, a decision rendered shortly after the Court of Appeals published its opinion on rehearing in Payne, 598 N.E.2d 608. In Roloff, plaintiffs raised concerns about Indiana's determination of Medicaid eligibility with respect to an applicant's resources. Urging Roloff as authority, the Department argues that Section 209(b) operates merely as a limited exception within the controlling threshold SSI eligibility requirements rather than providing a state not adopting the SSI guidelines an alternative, independent basis for establishing Medicaid eligibility. The Department asserts that Roloff correctly recognizes that the Section 209(b) exemption from SSI eligibility requirements confers Medicaid eligibility only when an applicant meets both the current SSI requirements and the Medicaid requirements under the state's January 1, 1972 regulations.
In addition, the Department contends that to permit the 1972 Rule, in combination with Section 209(b), to override primary SSI eligibility requirements would be to inappropriately expand the availability of Medicaid benefits, resulting in additional costs that would become unduly burdensome to the State. The Department further argues that Indiana courts are bound by the federal courts' interpretation of federal legislation, and that to enter a finding inconsistent with Roloff would signal Indiana's unwillingness to observe intersovereign deference.
Payne counters, in effect, that Section 209(b) is more than a mere Medicaid administrative exception within the threshold eligibility framework of SSI. Referring to our Court of Appeals' decision on rehearing in Payne, at 598 N.E.2d 608, he observes that the Second District properly considered 42 U.S.C. § 1396a(r)(2)[6], construing *468 this retroactive measure enacted in 1988 to permit Section 209(b) states to implement more liberal income and resource methodologies than those used by SSI states. Payne also criticizes the Department's reliance upon Roloff, asserting that the Seventh Circuit was notably cautious in its analysis and that decisions of lower federal courts are not binding upon or, in the present case, persuasive authority for state courts. He further points to other jurisdictions where resource spend-down has been permitted and suggests that adoption of the rationale in Roloff would subject needy applicants to tedious parsing of complex SSI regulations.
Although U.S. Supreme Court decisions pertaining to federal questions are binding on state courts, lower federal court decisions may be persuasive but have nonbinding authority on state courts. Pennsylvania R.R. Co. v. F.E. Mathias Lumber Co. (1943), 113 Ind. App. 133, 136, 47 N.E.2d 158, 159. Decisions of the Seventh Circuit are entitled to our respectful consideration; yet, any holding consistent with Roloff is the product of substantive agreement on the merits rather than perfunctory deference to the Seventh Circuit.
We endorse the Seventh Circuit's conclusion in Roloff that SSI eligibility is a threshold requirement to participation in Indiana's Medicaid program. Roloff, 975 F.2d at 340-41. In Section 209(b) states such as Indiana, after an applicant has met this threshold eligibility requirement, the inquiry then focuses upon whether the applicant would have been entitled to benefits under Medicaid regulations existent on January 1, 1972. Id.; Savage v. Toan (8th Cir.1986), 795 F.2d 643; Morris v. Morrow (4th Cir.1986), 783 F.2d 454. Thus, once an applicant has demonstrated SSI eligibility, he is then entitled to utilize Indiana's resource spend-down provision to, in turn, meet Indiana's standard resource allowance which is more restrictive than its federal counterpart.
As noted by our Court of Appeals, 42 U.S.C. § 1396a(r)(2) does permit Section 209(b) states to use more liberal methodologies in determining income and resource standards than those used by SSI states in evaluating Medicaid eligibility. Payne, 598 N.E.2d 608. Required resource spend-down is one such more liberal methodology which may be employed by Indiana since SSI permits but does not require resource spend-down. Roloff, 975 F.2d at 342. However, we conclude that Indiana did not intend to extend Medicaid eligibility to those who would not even qualify for benefits under SSI's more liberal requirements, because it did not endorse the more restrictive eligibility requirements by opting for participation in Medicaid under Section 209(b). Thus, the resource spend-down component of eligibility employed by Indiana in 1972 applies only after SSI eligibility requirements have been met. To hold otherwise would be to ignore the apparent intent manifested by Indiana's choice to participate in Medicaid as a Section 209(b) state.
We agree with the Court of Appeals' initial opinion, before rehearing, that in 1972 Indiana permitted a spend-down of excess resources to meet Medicaid eligibility and that this provision is potentially available to Payne in the present case. However, in accord with the Seventh Circuit opinion in Roloff, we vacate the Court of Appeals opinion on rehearing and instead find that meeting Supplemental Security Income eligibility requirements is a prerequisite for utilization of resource spend-down. We direct the trial court to remand this cause to the Department of Public Welfare for further determinations consistent with this opinion. In all other respects we affirm the judgment of our *469 Court of Appeals pursuant to Ind. Appellate Rule 11(B)(3).
SHEPARD, C.J., and DeBRULER, GIVAN and KRAHULIK, JJ., concur.
NOTES
[1] "Resource spend-down," if available, favors a Medicaid applicant whose assets exceed the maximum allowable resource level (the standard allowance) for determination of Medicaid eligibility. In general, an applicant exercising resource spend-down would apply his incurred medical expenses as a setoff against his excess resources for the relevant period.
[2] A more detailed presentation of the statutory background of the Medicaid program may be found in Indiana Dep't of Pub. Welfare v. Payne (1992), Ind. App., 592 N.E.2d 714, reh'g denied (1992), 598 N.E.2d 608, and Roloff v. Sullivan (7th Cir.1992), 975 F.2d 333.
[3] The "Section 209(b)" label comes from the Code's predecessor, Law of Oct. 30, 1972, Pub.L. No. 92-603, § 209(b), 86 Stat. 1329, 1381-82.
[4] Section 209(b)'s prohibition of state enforcement of Medicaid eligibility requirements more restrictive than those in effect on January 1, 1972, is derived from the following provisions:
Section 209(b) ... permits States to limit Medicaid eligibility for the aged, the blind, or the disabled to individuals who meet eligibility requirements more restrictive than those under SSI... .
42 C.F.R. § 435.1(d)(3) (1992).
The [State] agency may use Medicaid eligibility requirements for the aged, blind, or disabled that are more restrictive than the eligibility requirements for SSI... .
42 C.F.R. § 435.121(a) (1992).
If a[] [State] agency uses more restrictive requirements under this section
(1) Each requirement may be no more restrictive than that in effect under the State's Medicaid plan on January 1, 1972, and no more liberal than that applied under SSI... .
42 C.F.R. § 435.121(c)(1) (1992).
[N]o State not eligible to participate in the State plan program established under subchapter XVI ... shall be required to provide medical assistance to any aged, blind, or disabled individual (within the meaning of subchapter XVI of this chapter) for any month unless such State would be (or would have been) required to provide medical assistance to such individual for such month had its plan for medical assistance approved under this subchapter and in effect on January 1, 1972, been in effect in such month... .
42 U.S.C. § 1396a(f) (Supp. 1974).
[5] We note that while Roloff v. Sullivan (7th Cir.1992), 975 F.2d 333, concluded that Indiana is not required to implement a resource spend-down policy, Roloff expressly declined to decide the legal question as to the status of Indiana's law in 1972 with respect to resource spend-down.
[6] 42 U.S.C. § 1396a(r)(2) (Supp. 1974) sets forth, in pertinent part:
(A) The methodology to be employed in determining income and resource eligibility for individuals under [Section 209(b)] of this section or under section 1396d(p) of this title may be less restrictive, and shall be no more restrictive than the methodology
(i) in the case of groups consisting of aged, blind, or disabled individuals, under the supplemental security income program under subchapter XVI of this chapter, or
(ii) in the case of other groups, under the State plan most closely categorically related.
(B) For purposes of this subsection and subsection (a)(10) of this section, methodology is considered to be "no more restrictive" if, using the methodology, additional individuals may be eligible for medical assistance and no individuals who are otherwise eligible are made ineligible for such assistance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2814258/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANN JUANITA BRISCOE, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1204 (EGS)
)
JOHN KERRY, Secretary, )
Department of State, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Ann Briscoe brings this action against John Kerry,
in his capacity as Secretary of State, alleging that she
suffered discrimination on the basis of her age, race, and
disability, and that she suffered retaliation for engaging in
protected activity, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
621, et seq.; and the Rehabilitation Act, 29 U.S.C. § 794, et
seq. Pending before the Court is defendant’s motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. Upon consideration of the motion, the
response and reply thereto, the applicable law, and the entire
record, the Court GRANTS defendant’s motion.
I. Background
Ms. Briscoe—an African-American woman who was born in April
1956, Report of EEO Investigation, ECF No. 7-1 at 1—was employed
with the Media Resource Unit of the State Department’s Bureau of
Public Affairs. See Def.’s Statement of Material Facts (“Def.’s
SMF”), ECF No. 7-8 ¶ 1; Pl.’s Statement of Material Facts
(“Pl.’s SMF”), ECF No. 11 at 7 ¶ 1. She has a physical
disability that limits her “ability to reach, stand or push.”
Compl., ECF No. 1 at 2. This disability is mentioned in her
State Department personnel file, and has been known to the State
Department since 2001. See id.; Def.’s SMF ¶ 8; Pl.’s SMF ¶ 3.
A. Ms. Briscoe’s Experience in the Rapid Response Unit.
The Media Resource Unit was abolished in 2006, and Ms. Briscoe
was forced to find a job in the newly formed Rapid Response
Unit. See Def.’s SMF ¶ 1; Pl.’s SMF ¶ 1. The State Department
“did not offer her assistance walking to Department offices in
search of alternative employment.” Def.’s SMF ¶ 8; Pl.’s SMF ¶
3. The Rapid Response Unit was then led by Duncan McAnnis, who
supervised Ms. Briscoe from January 2006 through June 2007. See
Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3. Prior to Ms. Briscoe’s transfer
to the Rapid Response Unit, Mr. McAnnis said “out with the old
in with the new,” a statement that Ms. Briscoe did not hear, but
“another employee told her about the comment.” Def.’s SMF ¶¶ 5–
6; Pl.’s SMF ¶ 3. At this time, Mr. McAnnis also hired and
2
treated more favorably younger employees. See Def.’s SMF ¶ 7;
Pl.’s SMF ¶ 3.
“[D]uring an unspecified period of time[, Ms. Briscoe] was
tasked with helping new staffers sign-in in the building’s
lobby, located two floors beneath her own office,” which was
difficult due to her disability. See Def.’s SMF ¶ 9; Pl.’s SMF ¶
3. Ms. Briscoe was also “the only African American in [the Rapid
Response Unit] and felt segregated and singled out.” Def.’s SMF
¶ 11; Pl.’s SMF ¶ 3. Ms. Briscoe, however, “has not observed any
employee at [the Rapid Response Unit] make a derogatory
statement about race” or about her disability. Def.’s SMF ¶ 12,
29–30; Pl.’s SMF ¶ 3, 10–11. In 2006 and 2007, Ms. Briscoe
received neither a performance rating nor an annual review,
making her ineligible for promotion. See Def.’s SMF ¶ 13; Pl.’s
SMF ¶ 3.
Beginning in September or October 2007, Jennifer Barnes became
Ms. Briscoe’s supervisor. See Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3.
Upon Ms. Barnes’s arrival, she “met individually with all [Rapid
Response Unit] staff except for Plaintiff and inquired as to
Plaintiff’s status in the [Rapid Response Unit] but not that of
other employees.” Def.’s SMF ¶ 14; Pl.’s SMF ¶ 3. Ms. Briscoe
was also isolated from the staff during their daily morning
meetings. See Def.’s SMF ¶ 15; Pl.’s SMF ¶ 3. Nonetheless,
“[p]laintiff received an outstanding rating for 2008 and an
3
exceeding expectations rating in 2009.” Def.’s SMF ¶ 13; Pl.’s
SMF ¶ 3.
B. Ms. Briscoe Pursues Administrative Proceedings Regarding
Her Discrimination Claims.
On February 25, 2009, Ms. Briscoe contacted an EEO Counselor
for the first time. See Def.’s SMF ¶ 16; Pl.’s SMF ¶ 3; EEO
Counselor’s Report, ECF No. 7-3 at 1. Her formal discrimination
complaint was filed on March 25, 2009. See Def.’s SMF ¶ 17;
Pl.’s SMF ¶ 4; Formal Complaint of Discrimination, ECF No. 7-2.
That complaint alleged discrimination on the basis of race, age,
and physical disability, and the creation of a hostile work
environment. Id. at 2, 3.
Before this complaint was filed, Ms. Briscoe worked the night
shift alone; after the complaint was filed, another employee
began sharing the shift with her some nights and monitoring her
work. See Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. On March 26, 2009, Ms.
Barnes informed Ms. Briscoe that she would have her first-ever
annual review the following day. See Def.’s SMF ¶ 19; Pl.’s SMF
¶ 5. During the review, Ms. Barnes referred repeatedly to Ms.
Briscoe’s EEO complaint and asked Ms. Briscoe to take on
additional tasks. See Def.’s SMF ¶ 20; Pl.’s SMF ¶ 5. Following
the review, Ms. Barnes “reached to grab hold” of Ms. Briscoe.
Def.’s SMF ¶ 21; Pl.’s SMF ¶ 5.
4
Ms. Briscoe’s initial discrimination-related complaint was
assigned the administrative case number DOS-F-055-09. See Def.’s
SMF ¶ 17; Pl.’s SMF ¶ 4. The State Department moved for summary
judgment in the case on May 20, 2010. See Def.’s SMF ¶ 24; Pl.’s
SMF ¶ 7. Ms. Briscoe’s case was subsequently assigned to a new
Judge in July 2010, and Ms. Briscoe alleges that her opposition
to the motion for summary judgment was received. See Pl.’s SMF ¶
8; Notice of Reassignment, Ex. 5B to Opp., ECF No. 11-1 at 31.
On December 29, 2010, in part because of a finding that Ms.
Briscoe did not file an opposition to the State Department’s
motion for summary judgment, the motion was granted. See Def.’s
SMF ¶ 26; Pl.’s SMF ¶ 9; Decision, ECF No. 7-4 at 2–11. That
decision did not address any retaliation claim. See Decision,
ECF No. 7-4 at 2–11. Ms. Briscoe appealed this Order and, on
November 14, 2012, the EEOC affirmed, finding, among other
things, that even if Ms. Briscoe had filed an opposition to the
motion for summary judgment, judgment in favor of the State
Department was nonetheless appropriate. See EEOC Appeal
Decision, ECF No. 7-5; Def.’s SMF ¶ 27; Pl.’s SMF ¶ 10. Ms.
Briscoe’s motion for reconsideration of that decision was denied
on May 8, 2013. See Def.’s SMF ¶ 28; Pl.’s SMF ¶ 10. These
decisions, too, did not address retaliation.
5
C. Ms. Briscoe Simultaneously Pursues Administrative
Proceedings Regarding Her Retaliation Claims.
On March 30, 2009, Ms. Briscoe filed an addendum to her
preexisting EEO complaint, alleging retaliation based upon Ms.
Barnes’s behavior on March 27, 2009. See Def.’s SMF ¶ 22; Pl.’s
SMF ¶ 6. A formal complaint was filed the following day. See
Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6; Formal Retaliation Complaint,
Ex. 3 to Pl.’s Opp., ECF No. 11 at 70–71.
On April 8, 2011—after the EEOC had granted the State
Department’s motion for summary judgment in Ms. Briscoe’s
discrimination case—Ms. Briscoe received notice that the
retaliation claim would proceed under case number DOS-F-047-11.
See Letter, Ex. 3A to Pl.’s Opp., ECF No. 11 at 73–75; Pl.’s SMF
¶ 6. Ms. Briscoe responded on April 17, 2011 to contest the
assignment of a new case number on the ground that the
retaliation claim “is included in the current case”—i.e. the
case involving her discrimination claims. See Letter, Ex. 3B to
Pl.’s Opp., ECF No. 11 at 76–77. At that point, however, summary
judgment had already been granted to the State Department in
that case, in a decision that made no mention of any retaliation
claim. See Decision, ECF No. 7-4 at 2–11.
Ms. Briscoe’s retaliation case was dismissed in a final
decision issued on February 9, 2012. See Final Decision, ECF No.
7-6. The decision found that she had failed to respond to
6
requests for interview by the individual investigating her claim
and “did not provide testimony and/or otherwise provide any
information to the Investigator regarding her allegation.” Id.
at 4. This led to the claim being “dismissed for failure to
cooperate.” Id. Ms. Briscoe was simultaneously informed of her
right to appeal to the EEOC within thirty days of receiving the
decision. See id. at 1. No appeal was filed.
D. Procedural History of This Lawsuit.
Ms. Briscoe filed this action pro se on August 5, 2013. See
Compl., ECF No. 1. She seeks as relief $45,000,000 in damages,
and an assurance “that there will be no harm brought to me or
further threats against me by the State Department.” Id. at 7.
The State Department subsequently moved to dismiss or, in the
alternative, for summary judgment. See Mot. to Dismiss or for
Summ. J. (“Mot.”), ECF No. 7. Ms. Briscoe filed an opposition to
that motion. See Opp. to Mot. (“Opp.”), ECF No. 11. The State
Department has filed a reply in further support of its motion.
See Reply in Supp. of Mot. (“Reply”), ECF No. 14. The motion is
ripe for resolution by the Court.
II. Standard of Review
Summary judgment is appropriate when the moving party shows
that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
7
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). A material fact is one that is capable of affecting the
outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine issue exists where the “evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. A court considering a motion for summary
judgment must draw all “justifiable inferences” from the
evidence in favor of the nonmovant. Id. at 255.
To survive a motion for summary judgment, however, the
requester “must do more than simply show that there is some
metaphysical doubt as to the material facts”; instead, the
nonmoving party must come forward with “‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)
(quoting Fed. R. Civ. P. 56(e)). Moreover, “although summary
judgment must be approached with special caution in
discrimination cases, a plaintiff is not relieved of his
obligation to support his allegations by affidavits or other
competent evidence showing that there is a genuine issue for
trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010)
(quotation marks and alterations omitted).1 “Where, as here, a
1 When a party moves for summary judgment, especially at an early
stage of proceedings, Federal Rule of Civil Procedure 56(d)
permits the opposing party to “show[] by affidavit or
8
plaintiff is proceeding pro se, ‘the Court must take particular
care to construe the plaintiff’s filings liberally, for such
[filings] are held to less stringent standards than formal
pleadings drafted by lawyers.’” Nguyen v. Mabus, 895 F. Supp. 2d
158, 171 (D.D.C. 2012) (quoting Cheeks v. Fort Myer Const. Co.,
722 F. Supp. 2d 93, 107 (D.D.C. 2010)).
III. Analysis
The State Department argues that it is entitled to judgment on
nearly all of Ms. Briscoe’s claims due to her failure to exhaust
administrative remedies. The State Department also asserts that
Ms. Briscoe’s claims all fail on the merits. The Court agrees
that Ms. Briscoe’s disability-discrimination claims, her
retaliation claims, and one of her discrete-act race-
discrimination claims must be dismissed for failure to exhaust.
The Court also finds that the State Department is entitled to
judgment on the merits of the remaining claims.
A. Applicable Law
1. Administrative Exhaustion Under Title VII, the ADEA,
and the Rehabilitation Act.
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition,” in which case the Court
may deny the motion without prejudice, defer ruling on it, or
permit additional time to take discovery. Ms. Briscoe has not
filed such an affidavit or otherwise indicated a desire to
conduct further discovery before responding to the defendant’s
motion for summary judgment. Accordingly, the Court will address
the motion as one for summary judgment and consider all of the
materials submitted by the parties.
9
Before bringing any lawsuit under Title VII, the ADEA, or the
Rehabilitation Act, an aggrieved party must timely exhaust her
administrative remedies. See, e.g., Hamilton v. Geithner, 666
F.3d 1344, 1349 (D.C. Cir. 2012) (Title VII); Spinelli v. Goss,
446 F.3d 159, 162 (D.C. Cir. 2006) (Rehabilitation Act); Rann v.
Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (ADEA). This is
necessary because “strict adherence to the procedural
requirements specified by the legislature is the best guarantee
of evenhanded administration of the law.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 108 (2002) (quotation marks
omitted).
Under Title VII and the ADEA, “[a]dministrative exhaustion . .
. is an affirmative defense that defendant has the burden to
plead and prove.” Carty v. District of Columbia, 699 F. Supp. 2d
1, 2 (D.D.C. 2010). Under Title VII, a lawsuit must be filed
“‘[w]ithin 90 days of receipt of notice’ of the defendant
agency’s [Final Agency Decision].” Woodruff v. Peters, 482 F.3d
521, 525 (D.C. Cir. 2007) (quoting 42 U.S.C. § 2000e-16(c)). The
ADEA similarly permits a plaintiff to “invoke the EEOC’s
administrative process, and then sue if dissatisfied with the
results.” Rann, 346 F.3d at 195 (citing 29 U.S.C. § 633a(b)-
(d)).
The Rehabilitation Act, “limits judicial review to employees
‘aggrieved by the final disposition’ of their administrative
10
‘complaint.’” Spinelli, 446 F.3d at 162 (quoting 29 U.S.C. §
794a(a)(1)). In so doing, the Rehabilitation Act makes “failure
to exhaust administrative remedies . . . a jurisdictional
defect, requiring dismissal for lack of subject-matter
jurisdiction,” so “the plaintiff has the burden to plead and
prove it.” Ellison v. Napolitano, 901 F. Supp. 2d 118, 124
(D.D.C. 2012) (quotation marks omitted).
These distinctions aside, “[t]he procedures governing
administrative processing of discrimination complaints brought
by employees of the federal government under the ADEA, Title
VII, and the Rehabilitation Act are set forth in 29 C.F.R. Part
1614.” Id. First, the employee must initiate contact with an EEO
counselor “within forty-five days of the date of the matter
alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).
Second, if the matter is not resolved informally, the employee
may file a formal complaint of discrimination with the agency.
Id. §§ 1614.105(d), 1614.106(a). Third, “[a] complainant who
receives an adverse final decision from the agency may appeal
that decision to the EEOC within 30 days, or may file a civil
action within 90 days.” Ellison, 901 F. Supp. 2d at 125; 29
C.F.R. § 1614.407. “These deadlines for filing suit on EEO
claims are strictly enforced.” Horsey v. Harris, 953 F. Supp. 2d
203, 210 (D.D.C. 2013). For Title VII and the ADEA, however,
“these time limits are subject to equitable tolling, estoppel,
11
and waiver.” Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997). Such doctrines are “not applicable to jurisdictional
deadlines such as those imposed by the Rehabilitation Act’s
exhaustion requirements.” Chavers v. Shinseki, 667 F. Supp. 2d
116, 128 (D.D.C. 2009).
Administrative remedies must generally be timely exhausted in
accordance with these requirements before a case may proceed in
federal court. See, e.g., Bowden, 106 F.3d at 437. “[D]iscrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore, must be filed
within the [applicable] time period after the discrete
discriminatory act occurred.” Morgan, 536 U.S. at 113. “Courts
in this district disagree, however, about whether plaintiffs
must exhaust allegations of discrimination and retaliation that
are related to prior administrative charges.” Hicklin v.
McDonald, No. 14-1569, 2015 WL 3544449, at *2 (D.D.C. June 8,
2015). One side of the debate holds that this is not possible,
and that each discrete act must be separately exhausted. See id.
Another side finds that claims “must arise from the
administrative investigation that can reasonably be expected to
follow the charge of discrimination.” Park v. Howard Univ., 71
F.3d 904, 907 (D.C. Cir. 1995). At a minimum, however, claims
12
must be administratively exhausted “unless they were (1) related
to the claims in the initial administrative complaint, and (2)
specified in that complaint to be of an ongoing and continuous
nature.” Nguyen, 895 F. Supp. 2d at 184.
2. Prima Facie Case Under Title VII and the ADEA.
Where, as here, a plaintiff offers no direct evidence of
discrimination, “to survive summary judgment and earn the right
to present her case to a jury, she must resort to the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973).” Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.
Cir. 2006). Under this framework, Ms. Briscoe must show “that:
‘(1) [s]he is a member of a protected class; (2) [s]he suffered
an adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.’” Burley v. Nat'l
Passenger Rail Corp., 33 F. Supp. 3d 61, 68 (D.D.C. 2014)
(quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)).
An adverse employment action is not limited to “‘hirings,
firings, promotions, or other discrete incidents.” Doe v. Gates,
828 F. Supp. 2d 266, 270 (D.D.C. 2011) (quoting Holcomb v.
Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). That said, “‘a
plaintiff must show materially adverse consequences affecting
the terms, conditions, or privileges of employment or future
employment such that a trier of fact could find objectively
13
tangible harm.’” Id. (quoting Nurriddin v. Bolden, 674 F. Supp.
2d 64, 89–90 (D.D.C. 2009)).
B. Ms. Briscoe’s Age-Discrimination Claims
Ms. Briscoe’s age-discrimination claims relate to two actions
of Mr. McAnnis: (1) his statement “out with the old in with the
new”; and (2) his hiring of and giving more favorable treatment
to younger staffers. See Compl., ECF No. 1 at 2.
1. Ms. Briscoe Did Not Exhaust Her Age-Discrimination
Claims, But May Obtain Equitable Tolling.
Administrative documents make clear that both actions occurred
in the process of the reorganization of the Media Resource Unit
and the creation of the Rapid Response Unit in 2005 and 2006.
See Formal Complaint of Discrimination, ECF No. 7-2 at 4. It is
undisputed, however, that Ms. Briscoe first contacted her EEO
counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s SMF ¶
3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly, any
discrete acts of discrimination arising in 2005 or 2006 occurred
far more than forty-five days earlier than this date and were
not timely exhausted.
Ms. Briscoe appeared to plead in her opposition brief an
argument that may support equitable tolling of this requirement.
“[W]ith respect to ADEA claims, this Circuit has noted that ‘the
timeliness and exhaustion requirements of [the ADEA] are subject
to equitable defenses and are in that sense non-
14
jurisdictional.’” Williams-Jones v. LaHood, 656 F. Supp. 2d 63,
66 (D.D.C. 2009) (quoting Rann, 346 F.3d at 194–95) (alteration
in original). EEOC regulations permit such tolling “when the
individual shows that he or she was not notified of the time
limits and was not otherwise aware of them.” 29 C.F.R. §
1614.105(a)(2). Ms. Briscoe cited this legal provision and
appeared to argue that she “had no knowledge of the time limits”
under the ADEA. Opp. at 12 (citing Summary of Meeting with EEO
Counselor, Ex. 2A to Opp., ECF No. 11 at 40). Because
administrative exhaustion under the ADEA is the defendant’s
burden to plead and prove, Carty, 699 F. Supp. 2d at 2, this
argument is sufficient to raise the issue. On the current
record, moreover, the Court finds that there is a dispute of
fact as to whether Ms. Briscoe knew of the deadline, so the
Court finds that a genuine dispute of fact exists on this point.
See Harris v. Gonzales, 488 F.3d 442, 444-46 (D.C. Cir. 2007).
2. Ms. Briscoe Has Failed to State a Prima Facie Case for
Discrimination Under the ADEA.
In any event, Ms. Briscoe’s age-discrimination claims must be
dismissed because she has failed to make out a prima facie case.
It is undisputed that she falls within the ADEA’s protected
class of individuals over forty years of age. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); Report of
EEO Investigation, ECF No. 7-1 at 1. Ms. Briscoe, however, does
15
not allege any adverse employment action in connection with
these claims. Mr. McAnnis alleged statement “out with the old in
with the new”—even assuming that it is not two layers of
hearsay—is unconnected to any adverse action taken against Ms.
Briscoe. Her allegation that Mr. McAnnis hired and treated more
favorably younger staffers is far too vague to support an
inference that Ms. Briscoe suffered any adverse employment
action by Mr. McAnnis at this time—Ms. Briscoe, after all, was
also hired into the Rapid Response Unit. Ms. Briscoe must
instead show that Mr. McAnnis caused “materially adverse
consequences affecting the terms, conditions, or privileges of
employment or future employment such that a trier of fact could
find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.
The record contains nothing to explain how the alleged favorable
treatment of younger individuals impacted Ms. Briscoe, so
judgment must be granted to the defendant on Ms. Briscoe’s age-
discrimination claims.2
2 To the extent that Ms. Briscoe seeks to bring a claim for age-
related hostile work environment, such a claim fails because the
statement by Mr. McAnnis and the vague allegation that he hired
and treated favorably younger individuals do not nearly
establish that “the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.” Outlaw v. Johnson, 49 F.
Supp. 3d 88, 91 (D.D.C. 2014) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).
16
C. Ms. Briscoe’s Disability-Discrimination Claims
Ms. Briscoe’s claims regarding disability discrimination
relate to the following actions: (1) the abolition of her job,
after which she “was ordered to find my own job in six weeks
which involved walking the lengthy halls which included going to
other Annex buildings”; and (2) being “asked over a period of
time to go to [a] lobby located two flights down and sign in new
staffers who did not have a security clearance.” Compl., ECF No.
1 at 2. The abolition of her job relates to the time period in
2005 and 2006 when the Media Resource Unit was disbanded. See
Formal Complaint of Discrimination, ECF No. 7-2 at 4. Ms.
Briscoe has provided no indication of when the second event took
place.
Again, it is undisputed that Ms. Briscoe first contacted her
EEO counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s
SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly,
the 2005 and 2006 time period when she was allegedly forced to
walk the hallways of the State Department to secure a new
position is well outside the counseling timeframe. As for the
requirement that Ms. Briscoe walk down two flights of stairs to
sign in other staffers, the record contains no information from
which the Court could determine whether those discrete acts were
timely raised in counseling. For that reason, and because the
plaintiff bears the burden of pleading and proving
17
jurisdictional exhaustion under the Rehabilitation Act, Ellison,
901 F. Supp. 2d at 124, this event was not properly exhausted.
Nor could Ms. Briscoe avail herself of any equitable tolling
under the exhaustion requirements applicable to claims under the
Rehabilitation Act, for such a doctrine is “not applicable to
jurisdictional deadlines such as those imposed by the
Rehabilitation Act’s exhaustion requirements.” Chavers, 667 F.
Supp. 2d at 128.3 Accordingly, judgment must be granted to the
defendant on Ms. Briscoe’s disability-discrimination claims.
D. Ms. Briscoe’s Race-Discrimination Claims
Ms. Briscoe’s claims regarding race discrimination relate to a
handful of events, as best the Court can discern: (1) while Mr.
McAnnis was still Ms. Briscoe’s supervisor, he failed to provide
her a review or performance rating for two years, thereby
preventing her from being promoted; (2) Ms. Briscoe was the only
African-American in the Rapid Response Unit and felt singled out
and segregated; (3) Ms. Barnes questioned other employees about
3 For the same reasons, to the extent that Ms. Briscoe sought to
raise a hostile-work-environment claim under the Rehabilitation
Act, judgment must be granted to the defendant because Ms.
Briscoe has failed to allege any act that occurred within the
forty-five-day window and, therefore, no hostile-work-
environment claim has been properly exhausted. See Morgan, 536
U.S. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the
purposes of determining liability.”).
18
Ms. Briscoe’s duties in the Rapid Response Unit, but did not do
so regarding the duties of other employees; (4) Ms. Barnes met
individually with other employees but not with Ms. Briscoe; and
(5) Ms. Barnes made Ms. Briscoe sit away from other staff during
morning meetings. See Compl., ECF No. 1 at 2–3.4
1. The 2006–2007 Events Were Not Properly Exhausted.
Ms. Briscoe’s first allegation—that Mr. McAnnis failed to
provide her a performance review for two years—relates to events
in 2006 and 2007. As the Court has noted, Ms. Briscoe’s
administrative contact began on February 25, 2009. See Def.’s
SMF ¶ 16; Pl.’s SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at
1. Because this far exceeds the forty-five-day counseling
period, Ms. Briscoe did not properly exhaust this claim. Nor did
she appear to argue that equitable tolling should apply.
Accordingly, judgment is granted for the defendant on this
portion of the claim.5
4 In her opposition brief, Ms. Briscoe appeared to add an
additional race-discrimination allegation: That the Media
Resource Unit was abolished for discriminatory reasons. See Opp.
at 14. To the extent Ms. Briscoe sought to bring this as a
discrete-act claim for race discrimination, it was not properly
exhausted for the same reasons discussed in Part III.D.1. Nor
did Ms. Briscoe provide the Court with any evidence from which a
jury could infer that the Media Resource Unit was abolished for
discriminatory reasons.
5 Even if the deadlines could be tolled regarding this action,
Ms. Briscoe failed to provide any evidence from which a jury
could infer that the failure to provide a review was connected
to race. See Burkes v. Holder, 953 F. Supp. 2d 167, 173 (D.D.C.
19
2. Ms. Briscoe Failed to Make Out a Prima Facie Case of
Race Discrimination.
The remainder of Ms. Briscoe’s race-discrimination claim
cannot survive because she failed to plead or provide evidence
of having suffered any adverse employment action in connection
with these events. “When asserting a race discrimination claim
under Title VII, the plaintiff must allege two essential
elements: 1) that the plaintiff suffered an adverse employment
action, and 2) that the adverse employment action was the result
of plaintiff’s race.” Burkes, 953 F. Supp. 2d at 973 (citing
Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)). Ms.
Briscoe cannot satisfy the first element because the events she
alleges, at most, relate to the general working environment, not
any “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.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2003). Even recognizing that an adverse employment action
need not be as formal as termination or demotion, none of the
events described by Ms. Briscoe relate to “materially adverse
consequences affecting the terms, conditions, or privileges of
2013) (plaintiff must supply evidence “that the adverse
employment action was the result of plaintiff’s race”). Indeed,
Ms. Briscoe conceded that she “has not observed any employee at
[the Rapid Response Unit] make a derogatory statement about
race.” Def.’s SMF ¶ 12; Pl.’s SMF ¶ 3.
20
employment or future employment such that a trier of fact could
find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.
Accordingly, judgment must be granted to the State Department on
Ms. Briscoe’s race discrimination claim.6
E. Ms. Briscoe’s Retaliation Claims
Ms. Briscoe’s retaliation claims relate to events that
occurred in the immediate aftermath of her filing of an EEO
complaint alleging discrimination in March 2009. The allegations
are as follows: First, after the EEO complaint was filed,
another employee was assigned to work the night shift along with
Ms. Briscoe and that employee appeared to be monitoring her. See
Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. Second, during a March 27, 2009
meeting with Ms. Barnes, Ms. Barnes allegedly held an unexpected
annual review, referred repeatedly to Ms. Briscoe’s EEO
complaint, asked Ms. Briscoe to take on additional tasks, and
6 Assuming, for argument’s sake, that Ms. Briscoe properly
exhausted her administrative remedies such that she may stitch
together all of these different events in an effort to make out
a claim for race-based hostile work environment, such a claim
must fail because her allegations are not sufficient for a jury
to find that “‘the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.’” Outlaw, 49 F. Supp. 3d
at 91 (quoting Harris, 510 U.S. at 21). Indeed, Ms. Briscoe
admitted that she “has not observed any employee at [the Rapid
Response Unit] make a derogatory statement about race.” Def.’s
SMF ¶ 12; Pl.’s SMF ¶ 3.
21
“reached to grab hold” of Ms. Briscoe in a manner that
frightened her. See Def.’s SMF ¶¶ 19–21; Pl.’s SMF ¶ 5.
Unlike for many of her discrimination claims, Ms. Briscoe
timely contacted an EEO counselor regarding these incidents. See
Formal Retaliation Complaint, Ex. 3 to Pl.’s Opp., ECF No. 11 at
70–71; Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6. The problem arose, for
administrative exhaustion purposes, after she received the final
agency decision in her retaliation case, which was issued on
February 9, 2012. See Final Decision, ECF No. 7-6. Upon receipt
of that decision, Ms. Briscoe had ninety days to file a civil
action. See 29 C.F.R. § 1614.407(a). This deadline is “strictly
enforced” and “[c]ourts . . . will dismiss a suit for missing
the deadline by even one day,” including in situations in which
a litigant is proceeding pro se. Horsey, 953 F. Supp. 2d at 210.
Courts also presume that a final decision which was mailed to an
individual was “received . . . within five days from the date[
it was] mailed.” Id. Ms. Briscoe, however, did not file suit
until August 8, 2013—approximately eighteen months after the
decision had issued.
Nor can Ms. Briscoe’s retaliation claims—which were subject to
a separate administrative process-be piggybacked onto the timely
filed civil action contesting the administrative decision on her
discrimination claims. For one, allowing such a circumventing of
administrative deadlines where the retaliation claims were
22
actually brought in a separate administrative process would
undermine the purposes of those deadlines. Even if the
retaliation claims had never been brought in any administrative
proceeding, it is not clear in this District that such an
unexhausted claim could ever be piggybacked onto a properly
exhausted one to which it was “related.” Hicklin, 2015 WL
3544449, at *2. Assuming, arguendo, that such a doctrine is
viable, Ms. Briscoe’s retaliation claims are not sufficiently
related to her earlier discrimination claims. That doctrine
requires that claims of each retaliatory act be administratively
exhausted “unless they were (1) related to the claims in the
initial administrative complaint, and (2) specified in that
complaint to be of an ongoing and continuous nature.” Nguyen,
895 F. Supp. 2d at 184. Courts have rejected attempts to use
this doctrine to add allegations of subsequent retaliation to
EEO complaints that raised only discrimination. See, e.g.,
Hicklin, 2015 WL 3544449, at *4 (“[C]laims of the ideologically
distinct categories of discrimination and retaliation are not
related simply because they arise out of the same incident.”)
(quotation marks and alterations omitted); Scott v. Dist. Hosp.
Partners, LP, 60 F. Supp. 3d 156, 162–63 (D.D.C. 2014)
(declining to find relatedness where initial charge did not
mention disability-discrimination and retaliation theories);
Marcelus v. Corrections Corp. of Am., 540 F. Supp. 2d 231, 234
23
(D.D.C. 2008) (finding, where “[t]he only theories mentioned in
[the plaintiff’s] EEOC Charge . . . were age and national
origin,” that “[a]bsent an indication of this theory,
plaintiff’s retaliation claim here is not like or reasonably
related to the allegations in his EEOC Charge”) (quotation marks
omitted). Accordingly, Ms. Briscoe’s retaliation claims were not
properly exhausted, so judgment must be entered in favor of the
defendant.
F. Ms. Briscoe’s Claims Regarding the Administrative
Process.
In her opposition brief, Ms. Briscoe appeared to raise various
claims regarding deficiencies in the administrative processing
of her various claims. See Opp. at 3–5. To the extent that these
claims sought to raise separate allegations of retaliation—that
is, that the defendant retaliated against her for filing EEO
complaints by delaying and undermining the investigation of her
complaint—such claims have been found to be improper. See, e.g.,
Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010) (“[T]here
is no cause of action for federal employees to bring retaliation
or discrimination claims based on complaints of delay or
interference in the investigative process.”) (quotation marks
omitted). To the extent that she seeks to raise an independent
claim regarding this administrative processing, the D.C. Circuit
has held “that Congress has not authorized, either expressly or
24
impliedly, a cause of action against the EEOC for the EEOC’s
alleged negligence or other malfeasance in processing an
employment discrimination charge.” Smith v. Casellas, 119 F.3d
33, 34 (D.C. Cir. 1997); see also Jordan v. Summers, 205 F.3d
337, 342 (7th Cir. 2000) (same for claim against federal-agency
employer regarding administrative processing of an EEO
complaint). Accordingly, any independent legal claim regarding
the administrative process would be improper and judgment is
granted to the defendant on any such claim.
IV. Conclusion
For the foregoing reasons, the Court addresses defendant’s
motion as one for summary judgment and GRANTS that motion. An
appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
July 2, 2015
25 | 01-03-2023 | 07-02-2015 |
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