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https://www.courtlistener.com/api/rest/v3/opinions/234190/ | 213 F.2d 425
HUDSPETH COUNTY CONSERVATION & RECLAMATION DIST. NO. 1 et al.v.ROBBINS et al.
No. 14668.
United States Court of Appeals Fifth Circuit.
May 27, 1954.
W. Morgan Hunter, Austin, Tex., Theodore Andress, El Paso, Tex., Thurmond Arnold, Washington, D. C., Arnold, Fortas & Porter, Washington, D. C., Andress, Lipscomb & Peticolas, El Paso, Tex., Powell, Wirtz & Rauhut, Austin, Tex., of counsel, for appellants.
Eugene T. Edwards, Louis A. Scott, El Paso, Tex., Frederick K. Gray, Regional Counsel, U. S. Bureau of Reclamation, Amarillo, Tex., for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
RIVES, Circuit Judge.
1
Appellant, Hudspeth County Conservation and Reclamation District No. 1, a Texas public corporation, and five individual land owners, as representatives of all of the land owners of the Hudspeth District, as plaintiffs, brought this suit against the Regional Director and Assistant Regional Director of the Bureau of Reclamation, the Project Manager and Assistant Project Manager of the Rio Grande Reclamation Project, thirteen individuals as representatives of all land owners and water users of the Rio Grande Project, El Paso County Water Improvement District No. 1, another Texas public corporation, and the Manager of said corporation, as defendants.1 Plaintiffs sought a declaratory judgment to establish certain water rights of the Hudspeth land owners, and in order to protect such water rights, they sought an injunction against the officials of the Federal Bureau of Reclamation named as defendants, their successors in office, agents and employees. This appeal is by the plaintiffs from a summary judgment rendered by the district court in favor of the defendants and its refusal to render a partial summary judgment for the plaintiffs.
2
While the district court thus ruled with the defendants on the merits, it had overruled their motion to dismiss the action on the ground that the United States, which has not consented to be sued, is an indispensable party defendant. That question, going to the jurisdiction of the district court, confronts us at the outset. We shall therefore briefly outline some of the essential facts and restate the plaintiffs' contentions sufficiently for a consideration of that jurisdictional issue.
3
Elephant Butte Dam and Reservoir and Caballo Dam and Reservoir are integral parts of a reclamation project known as the Rio Grande Project, which was undertaken and constructed by the Government under authority of the Reclamation Act of June 17, 1902, 32 Stat. 389, 43 U.S.C.A. § 371 et seq.2 In 1906 and 1908, the Federal Reclamation Service filed notices of intent to appropriate all the unappropriated waters of the Rio Grande River.3 The dams, reservoirs and irrigation works were completed to a point where, under date of November 19, 1924, Commissioner Mead of the Bureau of Reclamation wrote to the Secretary of Interior in part, as follows:
4
"The Hudspeth County Conservation and Reclamation District No. 1 contains an irrigable area of 20,014 acres located in the State of Texas just below the Rio Grande Federal irrigation project. The terminus of the Tornillo Main Canal of the Government project may be feasibly connected with the district canal to serve water to lands of the district. The United States will have available for disposal at the terminus of this canal certain water developed from the project, which water can be used for the irrigation of district lands. This water would be dumped into the river and lost to the project were it not utilized on lands in the Hudspeth District."
5
Under date of December 1, 1924, a contract was entered into between the United States of America and Hudspeth County Conservation and Reclamation District No. 1, which contract recognized that "the District contains an irrigable area of 20,014 acres located in Texas just below the Rio Grande Federal Irrigation Project." That contract provided in part, as follows:
6
"The United States will deliver to the District at the terminus of the Tornillo Main canal, during the irrigation season of 1925 and thereafter during each irrigation season as established on the Rio Grande project, such water from the project as may be available at said terminus without the use of storage from Elephant Butte reservoir. The Secretary of the Interior shall be at all times the sole judge of the availability of such water. The rental of water hereunder is secondary and inferior to the right to use water for any purpose on the lands of the Rio Grande Federal irrigation project. In consideration of such rental the District hereby relinquishes all right, title, interest, and claim to any and all waters of the Rio Grande, except as herein provided."
7
An amendatory contract was entered into on April 27, 1951, which also contained the provision that "the rental of water hereunder is secondary and inferior to the right to use of water on the Rio Grande Federal Irrigation Project for any purposes." Indeed, some such provision was required by Section 1 of the Warren Act, Act of February 21, 1911, 36 Stat. 925, 43 U.S.C.A. § 523, authorizing carriage of water through reclamation facilities to independently operated irrigation districts "preserving a first right to lands and entrymen under the project".
8
Pursuant to these contracts, the defendant Reclamation officials and their predecessors carried water to the Hudspeth District from 1925 to 1951, and the land owners of the District used the water for irrigation purposes. Beginning in 1951, the defendant Reclamation officials have cut off deliveries of water to Hudspeth District, and some of the water so intercepted has been delivered to some farmers in El Paso and Elephant Butte Districts whose beneficial use of water is subsequent in time to that of the plaintiff Hudspeth farmers.
9
As their first and principal contention, the plaintiffs insist that by lawful, beneficial use of the Rio Grande water on Hudspeth lands appropriative water rights became vested as an appurtenance to such lands which cannot be limited or affected by contract with the Reclamation Bureau. That issue concerns rights to the use of water delivered to the Hudspeth District by the Reclamation officials under the contract executed in 1924 and amended in 1951.
10
A second and subordinate issue concerns seepage waters from lands in the El Paso District. It was necessary to drain lands in the El Paso District to keep them from becoming waterlogged. The drain water was not very desirable because of its saline character, and prior to 1951 the El Paso District made no use of these seepage waters. In 1947 a canal was constructed from the project drain outlet to the Hudspeth main canal system whereby such seepage waters might be carried directly to the Hudspeth system without discharge into the river. These drainage waters did not originally come under the 1924 contract but were included under the provisions of the amendatory contract of 1951, whereby the United States agreed to deliver such water as may be available through the distribution facilities carrying the drain or return flow waters into the Hudspeth District. The seepage waters, as well as the waters delivered to the Hudspeth District by Reclamation officials under the contract executed in 1924, were all developed waters of the Rio Grande Project made possible by that project and never received by the Hudspeth District prior to the construction by the Government of the dams, reservoirs and irrigation works. The right of the United States as storer and carrier was not exhausted when these waters had been once used, but, as recognized in the 1951 contract, that right extended to the recapture and re-use of such waters. State of Nebraska v. State of Wyoming, 325 U.S. 589, 615, 65 S.Ct. 1332, 89 L.Ed. 1815, note 11.
11
As a third issue, the plaintiffs claim that the defendant Reclamation officials unlawfully diverted and used water for generation of hydroelectric power in derogation of the prior and superior water rights of the Hudspeth farmers and that the District Judge should have permitted the plaintiffs to amend their pleadings to pray for injunctive relief against such diversions.4 In connection with the irrigation of lands, the Reclamation Act, 36 Stat. 930, 43 U.S.C.A. § 522, provides for the development and lease of surplus power or power privileges with the proviso "that no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project".
12
The authority of the United States to construct, maintain and operate the dams, reservoirs and irrigation facilities is unquestioned. One of the purposes is to fulfill a treaty obligation to the Republic of Mexico.5 Another purpose is to irrigate certain arid lands in New Mexico and Texas and thus to promote the general welfare.
13
"* * * the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation." United States v. Gerlach Live Stock Co., 339 U.S. 725, 738, 70 S.Ct. 955, 962, 94 L.Ed. 1231.
14
The plaintiffs' position on all three contentions seems to be that the actions of the defendant Reclamation officials are ultra vires their statutory authority and, therefore, may be made the object of injunctive relief. That position is based upon the contention that the Hudspeth land owners had acquired rights to use the water for irrigating their lands which were vested property rights appurtenant to their lands and wholly distinct from the interest of the Government in the irrigation works.
15
It seems clear that the United States, by filing the notices of intent to appropriate and thereafter impounding the water, did not become the owner of the water in its own right. That is recognized in the Reclamation Act itself, Section 8 of which provides, 32 Stat. 390, 43 U.S.C.A. § 372:
16
"Water right as appurtenant to land and extent of right. The right to the use of water acquired under the provisions of the reclamation law shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."
17
A further provision of Section 8 of the Act is brought forward as 43 U.S.C.A. § 383:
18
"Vested rights and State laws unaffected by chapter. Nothing in sections 372, 373, 381, 383, 391, 392, 411, 416, 419, 421, 431, 432, 434, 439, 461, 491 and 498 of this title shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of such sections, shall proceed in conformity with such laws, and nothing in such sections shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof."
19
Accordingly, it was said in Ickes v. Fox, 300 U.S. 82, 94, 95, 57 S.Ct. 412, 416, 417, 81 L.Ed. 525, and quoted in State of Nebraska v. State of Wyoming, 325 U.S. 589, 614, 65 S.Ct. 1332:
20
"Although the government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners; and by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works. Compare Murphy v. Kerr (D.C.) 296 F. 536, 544, 545. The government was and remained simply a carrier and distributor of the water (Id.), with the right to receive the sums stipulated in the contracts as reimbursement for the cost of construction and annual charges for operation and maintenance of the works."
21
Plaintiffs insist that the decision in Ickes v. Fox, supra, is determinative to the effect that the United States is not an indispensable party defendant. There Mr. Ickes, Secretary of the Interior, made the same contention and the Court in answering it said:
22
"The fallacy of the contention is apparent, because the thus-far undenied allegations of the bill, as already appears, demonstrate that respondents have fully discharged all their contractual obligations; that their water rights have become vested; and that ownership is in them and not in the United States. The motion to dismiss concedes the truth of these allegations; but even if they were denied, we should still be obliged to indulge the presumption, in favor of the jurisdiction of the trial court, that respondents might be able to prove them. United States v. Lee, 106 U.S. 196, 218, 219, 1 S.Ct. 240, 27 L.Ed. 171; cf. Tindal v. Wesley, 167 U.S. 204, 213 et seq., 17 S.Ct. 770, 42 L.Ed. 137. * * *
23
"The suits do not seek specific performance of any contract. They are brought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights not only acquired under Congressional acts, state laws and government contracts, but settled and determined by his predecessors in office. That such suits may be maintained without the presence of the United States has been established by many decisions of this court, of which the following are examples: Noble v. Union River Logging R. Co., 147 U.S. 165, 171, 172, 176, 13 S.Ct. 271, 37 L.Ed. 123; Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 32 S.Ct. 340, 344, 56 L.Ed. 570; Goltra v. Weeks, 271 U.S. 536, 544, 46 S.Ct. 613, 615, 616, 70 L.Ed. 1074; Work v. [State of] Louisiana, 269 U.S. 250, 254, 46 S.Ct. 92, 94, 70 L.Ed. 259; Payne v. Central Pacific Ry. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598. These decisions cite other cases to the same effect. The recognized rule is made clear by what is said in the Stimson Case:
24
"`If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. * * * And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. * * *
25
"`The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.'" 300 U.S. at pages 96-97, 57 S.Ct. at page 417.
26
An important distinction, we think, is that the plaintiffs in that case were land owners within the Yakima Reclamation Project and not Warren Act contractors, as here.6 It may be that in the Ickes v. Fox case, supra, the Secretary's acts were so clearly in excess of his statutory authority as to be ultra vires, but that is not true here where the officials are acting under the provisions both of the Warren Act, 43 U.S.C.A. § 523, and of the contracts to preserve a first right to lands under the project. Again in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 702, 69 S.Ct. 1457, 1467, 93 L. Ed. 1628, n. 26, it is noted that the ground for decision in Ickes v. Fox, supra, is not altogether clear:
27
"The ground for decision in Ickes v. Fox is not altogether clear. The argument was made in that case that the Secretary of the Interior had no statutory power to overrule a determination of the rights of the plaintiffs made by his predecessor in office. 300 U.S. at page 86, 57 S.Ct. [412] at pages 413, 417, 81 L.Ed. 525. The tortious injury to the plaintiffs was also argued, in reliance on Goltra v. Weeks, as a basis for avoiding the sovereign's immunity. The Court appears to have relied on both grounds without indicating which was controlling. It said: `The suits * * * are brought to enjoin the Secretary of the Interior from enforcing an order, the wrongful effect of which will be to deprive respondents of vested property rights not only acquired under Congressional acts, state laws and government contracts, but settled and determined by his predecessors in office' (emphasis added). [Id. at pages 96-97, 57 S.Ct. 412]. In support of the conclusion that the suit could be maintained, the Court relied first on Noble v. Union Logging R. Co., 1893, 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123, a decision resting entirely on the officer's lack of statutory power to overrule the decision of his predecessor." In the case at bar, the predecessors in office to the Reclamation officials had in the 1924 contract treated the plaintiffs' rights as secondary and inferior to the rights of the land owners of the Rio Grande Project and that was repeated by the present officeholders in the 1951 contract. The rationale of Goltra v. Weeks, supra, was expressly disapproved in Larson v. Domestic & Foreign Corp., supra, and the Court laid down a contrary doctrine:
28
"We hold that if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious under general law, if they would be regarded as the actions of a private principal under the normal rules of agency. A Government officer is not thereby necessarily immunized from liability, if his action is such that a liability would be imposed by the general law of torts. But the action itself cannot be enjoined or directed, since it is also the action of the sovereign." 337 U.S. at page 695, 69 S.Ct. at page 1464.
29
Applying that test, it seems clear to us that if the dams, reservoirs and irrigation facilities had been owned by a private corporation whose managers and agents had violated the rights of the plaintiffs in the manner contended in this suit, the private corporation could not escape liability for damages on the ground that its employees were acting outside the scope of their authority.
30
Since Larson v. Domestic & Foreign Corp., supra, a very strict test must be applied when the suit is one not for damage but for specific relief, such as injunction either directing or restraining the defendant officers' actions, see 337 U.S. 688, 69 S.Ct. 1457. These dams, reservoirs and all other project facilities are owned by the United States, which operates them through the Bureau of Reclamation. See 43 U.S.C.A. § 498. Their operation depends upon the flow of water. Whatever may be the merits of the plaintiffs' contentions, the court would have no jurisdiction by declaratory judgment, see Lynn v. United States, 5 Cir., 110 F.2d 586, 588, or by injunction against Government officers to substitute itself in any part of the management and operation of the dams, reservoirs and facilities for the agency designated by Congress. In a case involving this same project, the Tenth Circuit arrived at the conclusion that the action was in essence a suit against the United States to which it had not consented and that it, therefore, must fail. State of New Mexico v. Backer, 10 Cir., 199 F.2d 426. We entertain the same opinion here. It results that the summary judgment on the merits for the defendants must be reversed and the cause remanded with directions to dismiss the complaint for want of jurisdiction.
31
Reversed and remanded with directions.
Notes:
1
For convenience the parties will usually be referred to as plaintiffs and defendants
2
An Act of February 25, 1905, 33 Stat. 814, provides as follows:
"That the provisions of the Reclamation Act approved June seventeenth, nineteen hundred and two, shall be extended for the purposes of this Act to the portion of the State of Texas bordering upon the Rio Grande which can be irrigated from a dam to be constructed near Engle, in the Territory of New Mexico, on the Rio Grande, to store the flood waters of that river, and if there shall be ascertained to be sufficient land in New Mexico and in Texas which can be supplied with the stored water at a cost which shall render the project feasible and return to the reclamation fund the cost of the enterprise, then the Secretary of the Interior may proceed with the work of constructing a dam on the Rio Grande as part of the general system of irrigation, should all other conditions as regards feasibility be found satisfactory."
3
As illustrative of both notices, we quote part of the 1908 notice, as follows:
"The United States acting under authority of an Act of Congress, known as the Reclamation Act, approved June 17, 1902, 32 Stat. 388, proposes to construct within the Territory of New Mexico certain irrigation works in connection with the so-called Rio Grande Project. The operation of the works in question contemplates the diversion of the water of the Rio Grande River.
"Section 40 of Chapter 49 of the laws enacted in 1907 by the 37th Legislative Assembly of the Territory of New Mexico, an Act entitled, `An Act to conserve and regulate the use and distribution of the waters of New Mexico; to create the office of Territorial Engineer; to create a Board of Water Commissioners, and for other purposes,' approved March 19, 1907, reads as follows:
"`Whenever the proper officers of the United States authorized by law to construct works for the utilization of waters within the Territory, shall notify the Territorial Engineer that the United States intends to utilize certain specified waters, the waters so described, and unappropriated, and not covered by applications or affidavits duly filed or permits as required by law, at the date of such notice, shall not be subject to a further appropriation under the laws of the Territory for a period of three years from the date of said notice, within which time the proper officer of the United States shall file plans for the proposed work in the office of the Territorial Engineer for his information, and no adverse claim to the use of the water required in connection with such plans, initiated subsequent to the date of such notice, shall be recognized under the laws of the Territory, except as to such amounts of water described in such notice as may be formally released in writing by an officer of the United States thereunto duly authorized; Provided, that in case of failure to file plans of the proposed work within three years, as herein required, the waters specified in the notice given by the United States to the Territorial Engineer shall become public water, subject to general appropriations.'
"In pursuance of the above statute of the territory you are hereby notified that the United States intends to utilize the following described waters, to-wit:
"All the unappropriated water of the Rio Grande and its tributaries, said water to be diverted or stored from the Rio Grande River at a point described as follows:
"Storage dam about nine miles west of Engle, New Mexico, with capacity for two million (2,000,000) acre feet, and diversion dams below the Palomas, Rincon, Mesillas and El Paso Valleys in New Mexico and Texas."
4
This contention is clearly explained in the appellants' brief as follows:
"The diversions for power are brought about in this way. Caballo Dam was completed about 20 miles downstream from Elephant Butte Dam in 1938. At the same time a power house and power generation facilities were constructed at Elephant Butte Dam. The practice of the defendant Reclamation officials is to release water from Elephant Butte Dam, thereby generating hydroelectric power at the Elephant Butte facilities, and catch the waters so released in Caballo Reservoir, whence they are subsequently released for irrigation as needed. But the result of this practice is to spread out over two reservoirs the waters which would otherwise have been confined in only one reservoir.
"The spreading out of impounded waters over the area of two reservoirs causes much greater losses through evaporation and seepage than would result if the water were impounded in only one reservoir."
5
By the Convention of May 21, 1906, between the United States and Mexico, 34 Stat. 2953, the United States is obligated to deliver to Mexico at Juarez 60,000 acre feet of water annually from the Rio Grande, with proportionate diminution of this amount in case of accident or extreme drought
6
The plaintiffs insist that they must be treated on a parity with land owners within the Rio Grande Project because no geographic boundaries to that project were ever defined by any formal order, and the notices of intent to appropriate (see footnote 1, supra) are broad enough to include the Hudspeth lands lying in the El Paso Valley. We think, however, that the notices are not susceptible of the construction that the project includesall the lands in the El Paso Valley, that the notices are expressly filed in connection with the Rio Grande Project, that before the rights claimed by the plaintiffs could have been acquired that Project had been sufficiently identified by contracts of June 15, 1918 with Elephant Butte Irrigation District and of January 17, 1920 with El Paso County Water Improvement District No. 1, and, finally, that the Hudspeth District in its contract of December 1, 1924 recognized that the Hudspeth lands were "located in Texas just below the Rio Grande Federal Irrigation Project." The Act of February 25, 1905, footnote 2, supra, clearly left the boundaries of the Project to be ascertained, and just as clearly the Secretary of Interior had a reasonable discretion to ascertain what lands lay within the Project. See 43 U.S.C.A. § 373. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3368639/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
Application for review of sentence imposed by Superior Court, Judicial District of Fairfield (at Bridgeport) Docket No. 32843.
SENTENCE AFFIRMED
Erskine McIntosh, Esq., Assistant Public Defender, for the Petitioner.
Richard Jacobson, Esq., Assistant State's Attorney, for the State.
BY THE DIVISION: Although there is no record of the petitioner filing his application for sentence review within thirty (30) days of his sentencing (Conn. Gen. Stat. Sec.51-195), the Review Division under the circumstances of this particular case will waive the time requirement. It is noted that the State did not object to the petitioner's request to waive timely filing.
The petitioner was convicted after a trial by jury of the crimes of manslaughter in the second degree with a firearm and carrying a pistol without a permit. He was sentenced to a term of ten (10) years for the manslaughter and five (5) years for the weapons count, consecutively.
The effective sentence was fifteen years, which was the CT Page 2657 maximum for the crimes.
Both crimes occurred on July 1, 1987, when the petitioner got into a drug-related argument with another person. After leaving the scene the petitioner returned with a gun and shot the victim in the chest, causing his death.
Apparently, drug abuse and gun involvement have been a way of life for the petitioner. He reportedly had a $50.00 per day cocaine habit, and has been shot four times in separate incidents.
The sentencing court noted that the petitioner had been incarcerated before, therefore he was not naive about the consequences of criminal activity, that in arming himself with a gun the inference is that he intended to use it in some way, and while the petitioner claimed he acted in self defense that was rejected by the jury.
The Review Division finds that given the nature of the offense (the unnecessary taking of a human life), the criminal record and personal background of the petitioner, the sentence imposed was not excessive or disproportionate. It is affirmed.
PURTILL, JUDGE KLACZAK, JUDGE HENNESSEY, JUDGE
Purtill, J., Klaczak, J. and Hennessey, M., J., participated in this decision. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/232893/ | 208 F.2d 560
99 U.S.P.Q. 362
AMERICAN CHICLE CO.v.TOPPS CHEWING GUM, Inc.
No. 51, Docket 22768.
United States Court of Appeals Second Circuit.
Argued Oct. 16, 1953.Decided Nov. 20, 1953.
George E. Middleton, Pennie, Edmonds, Morton, Barrows & Taylor, New York City, for appellant.
W. Lee Helms, New York City, for appellee.
Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
1
The defendant appeals from a final judgment, permanently enjoining it from infringing the plaintiff's trademark, used in the sale of small nuggets of candy covered chewing gum of various flavors; and dismissing the defendant's counterclaim, for the cancellation of the mark. The registration described the mark as follows: 'The trade-mark consists of an O shaped figure colored red having a parallelogram of light shade, usually white, extending horizontally from the central right portion of such figure, together with parallel bands, over and under such figure and parallelogram, of a dark color contrasting with that of the parallelogram, as shown in the drawing. The lining on the O shaped figure denotes the red color, and the lining on the bands indicates shading only. No claim is made to the representation of a carton apart from the other features of the mark shown on the drawing.' The only issue on the plaintiff's complaint is whether the defendant infringes; the issues on the counterclaim are that the mark is invalid, as it does not serve to distinguish the plaintiff's goods and that the plaintiff has abandoned it. We do not find it necessary to discuss either of these contentions; and the judgment dismissing the counterclaim will be affirmed. The facts were as follows:
2
Since 1939 the plaintiff has used the trade-mark in suit on cardboard boxes (three and five eights inches by one and three quarters), holding ten or twelve nuggets, the nuggets in each box being of a single flavor. There are a number of different flavors, each flavor being in a box of a different color. One box is for peppermint nuggets, and on it the color of the 'parallel bands over and under' the O 'figure and parallelogram' is yellow. The 'O shaped figure colored red' appears at the left on all the boxes, its opening being cut through the cardboard so as to show some of the nuggets within. The 'parallelogram of light shade'- in practice always white- bears the word 'Chiclets,' written in large black letters, and is the most arresting feature of the 'make-up' as a whole. In later boxes the 'parallelogram of light shade' has been extended far enough to the left to break the circle of the 'O shaped figure', and change it into a sort of 'C.' Up to 1949 the defendant had been selling similar chewing gum nuggets of peppermint flavor in packages, each containing about two nuggets, several packages being inclosed in, and sold from, a containing canister. The 'make-up' of these packages was altogether unlike the plaintiff's; but in 1949 it began to market its peppermint nuggets by the dozen in boxes (four inches by two), that have at their left end a broken 'O,' the upper half of which is colored green, the lower half red. From the broken 'O' a white 'parallelogram' extends to the right end of the box, flanked above and below by parallel bands' of yellow, giving the box a predominant tone of the same shade of that color as the plaintiff's. Upon the white 'parallelogram' appears in large letters the word, 'Topps,' in place of 'Chiclets' on the plaintiff's boxes; but there is no other substantial difference between the 'make-up' of the box except for the defendant's break in the 'O' and its upper green half.
3
Although Judge Byers found no evidence of any 'actual confusion on the part of purchasers,' he did find that 'a brief visual observation by a customer might well fail to apprise him of the different sources of manufacture of the nuggets.' Also that 'in the usual retail purchase * * * the similarity in appearance * * * is such as to be likely to cause confusion * * * of an appreciable number of ordinarily prudent purchasers.' Again, that 'the use by the plaintiff of its trade-mark Chiclets * * * does not affect the issues in this case.' These findings were supported by the following testimony. The plaintiff's assistant secretary testified on cross-examination as follows:
4
'Q. Now Mr. Helms has suggested the Chiclets, the word Chiclets, may indicate to some people a candy coated gum. Do you subscribe to that? A. I do.
5
'Q. Is it your opinion that Chiclets is no longer a good trade-mark? A. It is not my opinion.
6
'Q. In other words you think it is a good trade-mark? A. I do.
7
'Q. And you think that to most people it indicates the product of the American Chicle Company, do you not? A. To the majority of people, yes.'
8
The plaintiff's advertising manager testified as follows:
9
'Q. Have you observed any tendency on the part of the public to call various names (makes?) of candy coated gum Chiclets? A. Very definitely.
10
'Q. And that has extended over how many years, if any, to your knowledge? A. It has been a problem for many years to our company.
11
'Q. Have you been in stores or in a store where a customer called for Chiclets? A. Yes.
12
'Q. More than once? A. On many occasions.
13
'Q. What have you observed in those instances? A. On occasions a retailer might question the customer by saying 'What kind of Chiclets do you want? Beechies Chiclets? P.K. Chiclets?"
14
In contradiction of this testimony Davis, a neutral witness called by the defendant, testified that in his experience, when a buyer asked for 'Chiclets', the salesman always gave him the plaintiff's gum; and that he never heard a salesman ask 'Do you want P.K. Chiclets or Beechies Chiclets?' He had never 'observed that there is a tendency on the part of the public to use the term Chiclets for candy coated gum generally.'
15
Upon this dispute we accept the finding that 'the similarity in appearance * * * is likely to cause confusion * * * of an appreciable number of ordinarily prudent purchasers,' in spite of the word 'Topps' replacing 'Chiclets'. The situation is therefore one where, although 'the majority of people' do not suppose that the word 'Chiclets' is generic, there is a 'tendency' to read it so; and it follows that to these buyers, who are numerous enough to become 'a problem for many years to our company,' the word has ceased to denote any definite 'source of origin.' How far this may have affected the validity of the trade-mark, 'Chiclets' (for that too is registered), is not important here. What is important is that to those buyers, who think 'Chiclets' to be a descriptive term, the 'make-up' that accompanies it may well be what assures them that they were getting the 'Chiclets' they have become used to; and the word, 'Topps,' would not in that event tell them of any new 'source of origin.' It is reasonable to believe that the fabulous sum- $11,000,000- that has been spent in 'publicizing' the plaintiff's nuggets as 'Chiclets' has fixed the word in the minds of many buyers as meaning no more than a candy coated gum nugget; and to some degree destroyed it as a trade-mark. That is a peril to which all such advertising is subject; its very success may prove its failure.1
16
We may properly assume, therefore, that, although the defendant's 'make-up' is not 'likely to cause confusion' among attentive buyers, there is a substantial minority, 'likely' to be misled. If we were to read the statute2 literally, such a minority would be enough, for the text does not limit infringement by the number of those who may be misled. However, we do not read this statute as tabula rasa; we construe it in the background of the law as it stood in 1946;3 and that law defined the issue of infringement less literally. On all but the most extreme occasions it involved a balance of two conflicting interests: that of the 'owner' of the mark to prevent the diversion of prospective customers as opposed to that of the putative infringer to be free to compete for them. In the case at bar this becomes a balance between the plaintiff's prospective loss of a not insignificant number of customers- i.e., the more careless ones- and the defendant's interest in continuing the use of a 'make-up' that in itself has no conceivable value. For the defendant has not suggested even the most diaphanous reason for selecting for its peppermint box out of all possible permutations of color and design, just the plaintiff's- or at least almost the plaintiff's- combination, except for the substitution of 'Topps' for 'Chiclets.' It would be absurd to see in this anything but a hope to bring to its own net just those buyers who are on the fringe of the plaintiff's possible customers. In the language of Judge Byer, the imitation 'revealed an apparent purpose to come as close to the plaintiff's package as the law might close its eyes to, so long as Topps is used instead of Chiclets.' What we said in Miles Shoes, Inc., v. R. H. Macy & Co., 2 Cir., 199 F.2d 602, 603, applies to the letter, mutatis mutandis: 'Why it should have chosen a mark that had long been employed by Macy and had become known to the trade instead of adopting some other means to identify its goods is hard to see unless there was a deliberate purpose to obtain some advantage from the trade which Macy had built up.' Indeed, it is generally true that, as soon as we see that a second comer in market has, for no reason that he can assign, plagiarized the 'make-up' of an earlier comer, we need no more; for he at any rate thinks that any differentia he adds will not, or at least may not, prevent the diversion and we are content to accept his forecast that he is 'likely' to succeed. Then we feel bound to compel him to exercise his ingenuity in quarters further afield.
17
The defendant relies upon Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4; and it is true that in that case there was evidence that, in spite of the defendant's name, 'Curtiss,' plainly appearing on its wrapper, there were customers, who bought the defendant's goods, thinking them to be the plaintiff's; moreover, the court, 182 F.2d at page 8, cited a number of decisions to the effect that a new competitor 'is not obligated to protect the negligent and inattentive purchaser from confusion resulting from indifference.' It cannot be denied that courts have at times reasoned as though a second comer were free to divert a first comer's customers, if he confined himself to those who were unduly careless. If the issue were whether such buyers could complain that they did not get what they wanted, it might be an answer in the second comer's mouth that they had themselves to thank for their failure to look more closely at the 'make-up'; though even that is a doubtful answer. Be that as it may, the issue becomes altogether different when it is between a first, and a second comer, for the first comer's careless customers are as valuable to him as any others; and their carelessness can hardly be charged to him. Why they should be deemed more legitimate game for a poacher than his careful buyers, it is hard to see, unless it be on the ground that he should have made his mark so conspicuous that it would serve to hold even the most heedless. Surely that is an inadequate defence. We are not committed to the doctrine in this circuit, and we know of no decision of the Supreme Court that precludes our following our own judgment. We do indeed distinguish the question how far a second comer is to be charged ab initio with the duty of anticipating that there will be careless buyers whom his 'make-up' may divert. That is one thing; we are speaking of a patent effort to catch such buyers, even though the effort be limited to them. The following excerpts from the Restatement of Torts seem to us, at least by implication, to bear us out. Section 729, Comment f: 'But if he' (the second comer) 'adopts his designation with the intent of deriving benefit from the trade-mark or trade name his intent may be sufficient to justify the inference that there is confusing similarity * * * his judgment manifested prior to the controversy is highly persuasive. His denial that his conduct was likely to achieve the result intended by him will ordinarily carry little weight.' Again, Sec. 729, Comment g: 'The buying habits of the purchasers of the particular goods in question are also significant. If the goods are bought by purchasers who exercise considerable attention and inspect fairly closely, the likelihood of confusion is smaller than when the goods are bought by purchasers who make little or no inspection.' We are by no means sure that Life Savers Corp. v. Curtiss Candy Co., supra, 182 F.2d 4, is to the contrary; but, if it must be so construed, with great deference we must leave the last word to the Supreme Court.
18
Judgment affirmed.
1
DuPont Cellophane Co. v. Waxed Products Co., 2 Cir., 85 F.2d 75; Bayer Co. v. United Drug Co., D.C., 272 F.505
2
Sec. 1114(1)(a), Title 15, U.S.C.A
3
S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1054668/ | IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
On-Brief January 6, 2005
SHAWN RUNIONS v. BILL EMERSON, ET AL.
A Direct Appeal from the Chancery Court for Crockett County
No. 8398 The Honorable George R. Ellis, Chancellor
No. W2004-01618-COA-R3-CV - Filed February 14, 2005
Tenured elementary school teacher appeals her termination for alleged incompetence,
inefficiency, insubordination, neglect of duty, and compromising the integrity of the Tennessee
Comprehensive Assessment Program (TCAP) test. The Chancery Court reversed the termination,
finding that the school board’s decision to terminate teacher was arbitrary and capricious and based
on no material evidence. Concluding that the Chancery Court did not err in reversing the termination,
we affirm the judgment of the chancery court.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Charles W. Cagle of Nashville for Appellant, Bells City Schools
Marcella G. Fletcher of Jackson for Appellee, Shawn Runions
OPINION
In April 2003, second-grade teacher Shawn Runions was suspended with pay from her
position in the Bells, Tennessee public school system for allegedly violating the “security agreement”
she signed concerning procedures for administering the Tennessee Comprehensive Assessment
Program (TCAP) test to her second grade class. The alleged violation was the provision of
“unauthorized assistance to students in her class.” After hearings held in June 2003 by the Bells City
Board of Education, she was terminated from her position. On appeal, the Chancery Court of
Crockett County reversed Ms. Runions’ termination, and we affirm the judgment of the chancery
court.
I. PROCEDURAL HISTORY
On April 3, 2003, Appellee Shawn Runions was suspended with pay from her position as a
tenured teacher in the Bells City School System. On May 15, 2003, charges for Ms. Runions’
dismissal as a tenured teacher were presented to the Bells City Board of Education. Ms. Runions
requested a hearing on these charges before the Board of Education. The Board of Education held
hearings on June 27 and June 30, 2003, to determine whether Ms. Runions should be terminated
from her position. After the June 27 and June 30, 2003 hearings, Ms. Runions was terminated from
her position. Ms. Runions timely appealed to the Chancery Court of Crockett County. The case came
before the chancery court on February 17, 2004. On May 25, 2005, the chancery court entered an
order reversing the school board’s decision terminating Ms. Runions.
II. FACTS
Shawn Runions graduated from Union University in Jackson, Tennessee with a 3.87 grade-
point average. After graduation, she obtained a Tennessee teaching license and taught for five years
at Friendship Elementary in the Crockett County School System. After giving birth to her daughter,
Ms. Runions stayed at home for some time. She resumed her teaching career in 1997 when she
accepted a position with the Bells Elementary School, where she taught until the time of her
dismissal.
There is no suggestion in the record that Ms. Runions’ performance as a teacher at Bells City
School was unacceptable in any way. Her performance evaluations, which were admitted into
evidence, were uniformly positive. Her principal acknowledged at the termination hearing that her
evaluation scores were “good.” The narrative evaluations of Ms. Runions’ teaching were also
laudatory: “Shawn demonstrated an understanding of concepts and structures of the disciplines
taught and provided student access to this information through classroom experiences which made
the subject matter understandable and meaningful” (from an evaluation dated May 13, 1999); “Good
classroom management skills” (from an evaluation dated May 20, 2000); “Shawn used her
understanding of both the students and the subject matter of her math curriculum to create a learning
environment that encouraged active engagement in learning, positive intellectual interactions and
student ownership of learning” (from an evaluation dated March 22, 2000).
At the time of the events leading to her dismissal, the principal of Bells Elementary School
was Charles Millard Williams, III, who is also Ms. Runions’ uncle. The record contains evidence
that Principal Williams was a regular member of a coffee klatch that included Ms. Runions’ father
and that Principal Williams took considerable interest in certain family matters involving Ms.
Runions, her husband, and her father. Although the board members and witnesses at the termination
hearing carefully avoided discussing the nature of these family matters, the transcript shows that
these matters were alluded to several times during the hearing. Ms. Runions testified that Principal
Williams’s frequent, browbeating attempts to discuss these matters on school time was a distraction
from her teaching duties, and she ultimately had to ask Principal Williams not to bring up her
personal life at work: “[F]inally, I told him ... if it’s something about my teaching, that’s fine, but
... I don’t want to discuss my personal life with you up here at 8:00 in the morning and it affect[s]
my teaching.”
-2-
The administration of the TCAP test that gave rise to Ms. Runions’ suspension and
subsequent dismissal was held on Thursday, April 3, 2003. She testified that she was absent from
work on the Tuesday and Wednesday just prior to the test due to an ear infection and a burst
eardrum. Prior to the administration of the test, teachers were required to sign a typewritten Test
Security Policy dealing with the handling of test materials, affirming that they would follow “each
and every rule stated.” However, Ms. Runions, due to her absence on the two days prior to the test
administration, did not have the opportunity to sign this agreement prior to the test. The form was
to be signed and dated by both the Testing Coordinator and the teacher. It was uncontested that, at
the behest of school officials, she signed the test security policy only after the incidents that led to
her dismissal.
In light of Ms. Runions’ illness, the school assigned Charlotte White, a licensed teacher1, to
be a proctor in her classroom, so that the TCAP test could proceed if Ms. Runions were forced to
be absent on the day of the test due to her ear infection and burst eardrum.2 However, Ms. Runions
did go to school on the day of the test; she arrived at school at 7:45 a.m. and led her students from
the gym to her classroom. Once in the classroom, Ms. Runions served donuts and orange juice to the
students and Ms. White.3 Ms. Runions then began to administer the test.
Because the basis for Ms. Runions’ dismissal is several breaches of test security that
allegedly occurred during the administration of the test, we will review the testimony concerning
these alleged breaches in detail. Most of the alleged breaches were witnessed solely by her proctor,
Charlotte White, who summed up Ms. Runions’ objectionable behavior by saying, “Ms. Shawn was
giving clues and coaching.”
The first breach of test security alleged by Ms. White had to do with the measurement of a
picture of an alligator in the test booklet for the Reading Sub-Test Part I. A small, paper ruler—one
side marked with inches and the other side marked with centimeters—was provided to the children
with their test booklets, and they were expected to measure the alligator using the ruler. Ms. White
testified that Ms. Runions directed the students, “Turn the ruler to the yellow side and measure from
the tip of his nose to the tip of his tail.” Ms. Runions denied that she had directed the second-graders
which side to use, but testified that she had said only, “Make sure that you use the right side of the
ruler ... Make sure that you use the proper—read your question correctly and make sure you
answer—if it talks about centimeters, use the centimeter side. If it talks about inches, use the inch
side.”
1
Although she had held a Tennessee teacher’s license for 21 years by the time of Ms. Runions’
termination hearing, Ms. W hite did not actually hold a full-time teaching position at the school, but held the position of
“Federal Projects Director.” She also taught Microsoft Excel.
2
According to testimony at the termination hearing, the T CAP test can only be administered by a
licensed teacher.
3
Ms. Runions testified that she bought and served these refreshments because Ms. W hite had made it
clear that breakfast was a perquisite she had come to expect when proctoring tests for other teachers.
-3-
Another security breach alleged by Ms. White was that Ms. Runions told a student, “You had
that one right the first time.” Ms. Runions denied this allegation as well, stating that she only made
a general statement to the whole class, to the effect that “‘When I was a student I can remember one
of my teachers telling me that your first choice is your best choice.’.... I did not actually do it
individually. I talked to the whole class .... I’ve done it every year.”
Yet another security breach alleged by Ms. White was that Ms. Runions attempted to make
a question comprehensible to her students by comparing the people described in a test question to
“the Stupids,” a family featured in a series of popular children’s books, who do ordinary things in
preposterous ways. Ms. Runions testified that she thought the comparison to the Stupids would help
the second grade students understand the question better, saying, “I did not tell any answers to the
question. I just made the statement.”
After witnessing these alleged breaches of the test security policy, Ms. White abruptly left
the classroom and sought out Lydia Crossnoe, a vice principal who served as the testing coordinator
for the school. According to Ms. Crossnoe’s testimony, Ms. White approached her and said, “I will
not go back in there. You cannot make me go back in there. I have plenty of sick days. I’ll take my
days. I will go home. She’s not giving that test right. I can’t stay another minute. I won’t stay another
minute.”4 Ms. Crossnoe, faced with Ms. White’s refusal to return to the classroom, tried to console
Ms. White and then went to Ms. Runions’ classroom herself. Once there, Ms. Crossnoe was asked
by a bewildered Ms. Runions to find Charlotte White. Ms. Crossnoe explained that Charlotte White
was “sick” and would not be returning, and that Ms. Crossnoe would proctor the test in the absence
of Ms. White. Ms. Crossnoe noticed only one possible irregularity in Ms. Runions’ administration
of the test; while reading one of the questions Ms. Runions allegedly said “Mark the one that shows
the states,” which, Ms. Crossnoe testified, “just didn’t sound exactly right.” Later, she checked the
test booklet and found that the question only said, “Mark the one that shows the continent.”
After the students had finished taking the test, Ms. Crossnoe found Ms. White and said, “We
have got to talk to Mr. Williams. We’ve got to tell him what happened.” They related their
observations to Mr. Williams, and Mr. Williams in turn related their story to Bill Emerson, the
Superintendent of the Bells City School. Mr. Emerson then filled out a Breach of Security Report.
Mr. Williams then made a handwritten addition to the Test Security Policy stating, “Only Read
4
It was conceded by school officials that Ms. W hite’s abandonment of her post as a proctor was, in
itself, a violation of TCAP testing protocol, and yet, unlike M s. Runions, she was not terminated. At the termination
hearing, Marcella Fletcher, Ms. Runions’ attorney, took care to bring this apparent disparity of treatment to light.
Accounts of why Ms. W hite left the classroom are not altogether in accord. W hen testifying against Ms. Runions at the
termination hearing, Ms. W hite claimed that she left Ms. Runions’ classroom and was unable to return because she was
“sick.” Asked why she had been sick, Ms. W hite testified, “Because I didn’t know what to do[,] because I was
uncomfortable.” However, Ms. Crossnoe’s account of M s. W hite’s conduct suggests that Ms. W hite’s demeanor would
be more accurately described as a mixture of defiance, physical illness, and psychic distress. Ms. Crossnoe testified that
Ms. W hite had been so upset by what she had seen Ms. Runions do that it was necessary for M s. Crossnoe “to console
her and calm her down and tell her it would be all right.... She wasn’t going back in there whatever I said.”
-4-
Instructions in Book – Do not add or give clues. Do not tell students if answer is right or wrong.”
He then asked every teacher except for Ms. Runions to sign this amended security policy. Mr.
Emerson and Mr. Williams met with Ms. Runions and informed her that she would be suspended
with pay until the end of the testing session. On April 10, Mr. Williams met with Ms. Runions again
and informed her that she would be suspended for the remainder of the school year with pay.
According to Ms. Runions’ testimony, Mr. Williams urged her to resign for medical reasons,
promising that if she were to do so, “we won’t turn this into the State ... then I’ll give you a good
recommendation and we’ll also pay you.”
Ms. Runions refused to resign. Bill Emerson presented charges for her dismissal to the Bells
City Board of Education on May 15, 2003. Ms. Runions requested a hearing on the charges before
the Board of Education. A hearing was held on June 27 and June 30, 2003. At the conclusion of the
hearing, the successful motion to dismiss Ms. Runions was made by the Chairman of the School
Board, Gary Emison. The transcript of the hearing shows that in making this motion, Chairman
Emison explained the necessity for terminating Ms. Runions’ employment as follows:
I think, myself, personally speaking, that because of the evidence presented and
seeing that there probably is and possibly even may be in the future a lot of hard
feelings between Ms. Runions and our school administrators, that I feel that Ms.
Runions’ tenure as a teacher at Bells Elementary has come to an end.
The Board of Education dismissed Ms. Runions on July 2, 2003.
III. ISSUES
Ms. Runions presents the following issues for review:
I. Whether Ms. Runions violated Tennessee Code Annotated Section 49-1-607 by
assisting students during the administration of the Tennessee Comprehensive
Assessment Program.
II. Whether the weight of the evidence preponderates against the Chancery Court’s
determination that the Appellant arbitrarily and capriciously dismissed Ms. Runions
pursuant to the Tennessee Tenured Teacher Act, Tenn. Code Ann. § 49-5-501.
IV. STANDARD OF REVIEW
T.C.A. § 49-5-513 (2002) provides in pertinent part:
49-5-513. Judicial review.
(a) A teacher under "permanent tenure" or "limited tenure" status
who is dismissed or suspended by action of the board may petition for
-5-
a writ of certiorari from the chancery court of the county where the
teacher is employed.
* * *
(g) The cause shall stand for trial and shall be heard and determined
at the earliest practical date, as one having precedence over other
litigation, except suits involving state, county or municipal revenue.
The review of the court shall be limited to the written record of the
hearing before the board and any evidence or exhibits submitted at
such hearing. Additional evidence or testimony shall not be admitted
except as to establish arbitrary or capricious action or violation of
statutory or constitutional rights by the board.
(h) The chancellor shall reduce the chancellor's findings of fact and
conclusions of law to writing and make them parts of the record.
(i) Any party dissatisfied with the decree of the court may appeal as
provided by the Tennessee Rules of Appellate Procedure, where the
cause shall be heard on the transcript of the record from the chancery
court.
This Court, in Winkler v. Tipton County Bd. of Educ., 63 S.W.3d 376, 381 (Tenn.Ct.App.
2001), noted the appropriate standard of review for cases brought under the Teacher Tenure Act:
Judicial review of a teacher dismissal case pursuant to T.C.A. § 49-5-513 requires the
chancery court to review the transcript of the hearing before the board in order to
determine whether there was any material evidence to support the board's decision.
If there is, it is the responsibility of the trial court to affirm. On the question of
whether the Board acted arbitrarily, capriciously or illegally, the trial court may hear
new evidence and must make independent findings in this regard. Our scope of
review on appeal from chancery court is no greater than that court's review of the
Board decision. See Goodwin v. Metropolitan Board of Health, 656 S.W.2d 383,
387 (Tenn.Ct.App.1983).
Id. (quoting Wallace v. Mitchell, No. W1999-01487-COA-R3-CV, 2000 Tenn.App. LEXIS 558,
at *6-7 (Tenn.Ct.App.Aug.16, 2000) (emphasis added).
V. ANALYSIS
A. Whether Ms. Runions violated Tennessee Code Annotated Section 49-1-607 by assisting
students during the administration of the Tennessee Comprehensive Assessment
Program.
-6-
In dismissing Ms. Runions, Appellant relied in part upon Tennessee Code Annotated § 49-1-
607, the statute governing compliance with TCAP security guidelines. The statute reads in its
entirety as follows:
49-1-607. Noncompliance with security guidelines for TCAP or successor test.---
Any person found to have not followed security guidelines for administration of the
TCAP test, or a successor test, including making or distributing unauthorized copies
of the test, altering a grade or answer sheet, providing copies of answers or test
questions, or otherwise compromising the integrity of the testing process shall be
placed on immediate suspension, and such actions will be grounds for dismissal,
including dismissal of tenured employees. Such actions shall be grounds for
revocation of state license.
With respect to the language of T.C.A. 49-1-607, Ms. Runions was not accused of “making or
distributing unauthorized copies of the test,” “altering a grade or answer sheet” or “providing copies
of answers or test questions.” It was asserted that because she failed to follow the security guidelines
for administration of the TCAP test, Ms. Runions “compromised the integrity of the testing process.”
In order to determine whether the Chancery Court erred in concluding that there was no material
evidence to support the charges against Ms. Runions, we must review the school’s Test Security
Policy.
The Test Security Policy was a typewritten document that, as noted in Section II of this
Opinion supra, teachers were required to sign prior to administering the TCAP (but that, as we also
noted supra, Ms. Runions did not have the opportunity to sign prior to the test, due to her absence
on the two days prior to the test with an ear infection and burst eardrum). The Test Security Policy
was entered into evidence at her termination hearing. The Test Security Policy reads, in its entirety,
as follows:
Bells Elementary School
Test Security Policy
Testing Coordinator verifies the quantities of all test materials received at both the
system and school level, which is one and the same. All test materials are also
verified again before they are returned for processing.
The testing coordinator completes the student-identifying information on all
consumable booklets and answer sheets in a secure setting. To ensure test
confidentiality and proper processing, be sure that the student’s name is listed
correctly both on the demographics and on the back of the test booklet on grades K-3.
-7-
Each classroom is supplied with a neutral party adult to proctor during the test
administration. Each proctor is trained to follow standard testing procedures and time
limits.
Test Directions for Teachers remain in a secure setting in the building at all times.
The K-3 Test Directions for Teachers contain secure item information; therefore,
these directions are not handed out to educators until the day of the test.
When test booklets are not in use, they are stored in a locked room that is
inaccessible to unauthorized persons. During the test, if restroom breaks occur during
the testing session--collect all test materials, place in a central area, and LOCK your
classroom door while everyone is out of the room.
Test booklets and materials are not to be handled by anyone who has not been
authorized by the testing coordinator or building principal.
Verify the quantities of all materials before and after each daily test session. This is
done in the office when YOU, the teacher, picks up and returns all materials.
DO NOT photocopy or duplicate any portion of the test booklets. (This includes
rearranging or paraphrasing items.)
Make certain that the classroom in which the test is administered is free of reference
materials, such as maps, instructional posters, or bulletin board materials that contain
information likely to aid students on the test.
Document any test security breaches on the Breach of Testing Security Report form.
I verify that I will abide by all of the above rules and regulations pertaining to the
security of the Achievement Test.
We note that this Test Security Policy deals almost exclusively with the proper procedures for
physically securing, handling, and accounting for all TCAP test materials. Only one sentence of this
agreement can be interpreted as having anything to do with a teacher’s verbal instructions to her
class; that is the sentence stating, “DO NOT photocopy or duplicate any portion of the test booklets.
(This includes rearranging or paraphrasing items.)” However, there is no allegation that Ms. Runions
rearranged or paraphrased any items on the test. We must conclude that two of the accusations—Ms.
White’s claims concerning Ms. Runions’ instructions about the use of the ruler and concerning Ms.
Runions’ reference to The Stupids—did not constitute a violation of the Test Security Policy, for the
reason that no provision in the policy proscribes such statements, and they do not on their face seem
to be anything other than helpful, appropriate suggestions to Ms. Runions’ second-grade students.
(Furthermore, as we explain infra, we do not believe Ms. White to be a credible witness.) The third
allegation by Ms. White, concerning Ms. Runions’ alleged statement to a student that “You had that
-8-
one right the first time,” would, if true, arguably show that Ms. Runions compromised the integrity
of the test (although, strictly speaking, such an action is not explicitly proscribed by any provision
of the Test Security Policy). However, we conclude there is no merit to this third allegation because
we find that Ms. White is not a credible witness. Having considered Ms. White’s implausible
explanations for her own breach of TCAP testing procedure, along with Ms. Crossnoe’s testimony
about Ms. White’s frenetic and excitable behavior at the time these violations were alleged to have
occurred, we conclude that Ms. White was not an objective, reliable witness, and that her testimony
must be discredited.5 To base the termination of highly praised, tenured schoolteacher on the
implausible accusations of a discredited witness such as Ms. White would, upon our review of the
record, constitute manifest error. Therefore, we conclude, as did the chancery court, that there is no
material evidence to support the allegation that Ms. Runions violated the security policy.6
B. Whether the weight of the evidence preponderates against the Chancery Court’s
determination that the Appellant arbitrarily and capriciously dismissed Ms. Runions
pursuant to the Tennessee Tenured Teacher Act, Tenn. Code Ann. § 49-5-501.
Under the Tennessee Teachers’ Tenure Act, § 49-5-501 et seq., there are five permissible
grounds for dismissal of a tenured teacher. The statute states, in relevant part:
(1) No teacher shall be dismissed or suspended except as provided in this part.
(2) The causes for which a teacher may be dismissed are as follows: incompetence,
inefficiency, neglect of duty, unprofessional conduct and insubordination as defined
in § 49-5-501.
T.C.A. § 49-5-511(a). In dismissing Ms. Runions, the Bells City Board of Education cited four of
the five permissible causes for dismissal enumerated in the Tennesee Teachers’ Tenure Act:
incompetence, inefficiency, insubordination, and neglect of duty. Upon Ms. Runions’ appeal, the
chancery court based its conclusion that the dismissal was arbitrary and capricious on its review of
the transcript of the school board hearing and heard no additional evidence. In order to determine
whether the school board acted arbitrarily and capriciously when it dismissed Ms. Runions, we will
review each of the four causes of dismissal separately.
5
School officials apparently believed Ms. W hite’s claim that she was so disturbed by Ms. Runions’
alleged breaches of testing procedures that she was incapacitated by what she had witnessed, and perhaps it is for this
reason that she was not terminated or otherwise punished for her own breach of the testing procedures. Interestingly, Ms.
W hite’s incapacitating condition seems to have been short-lived; evidence brought forth at the termination hearing
showed that M s. W hite remained at school for the rest of the day. At the very least, it reflects an unusually ardent
commitment to the proper observance of test protocol that merely witnessing the infractions she alleged against Ms.
Runions could have rendered Ms. W hite so violently ill.
6
Since we agree with the chancery court’s determination that there is no material evidence that Ms.
Runions breached the Test Security Policy, we do not reach the question of whether it was appropriate to terminate M s.
Runions for violating a Test Security Policy that, through no fault of her own, she had not had the opportunity to read
and sign before she administered the TCAP. W e do note, however, that the school board’s action to terminate M s.
Runions under such circumstances appears to render superfluous the practice of requiring teachers to sign the policy.
-9-
1. Incompetence.
The Tennessee Tenured Teacher Act defines incompetence as follows:
“Incompetence” means being incapable, lacking adequate power, capacity or ability
to carry out the duties and responsibilities of the position. This may apply to physical,
mental, educational, or emotional or other personal conditions. It may include lack
of training or experience; evidence unfitness for service; physical, mental, or
emotional condition making teacher unfit to instruct or associate with children; or
inability to command respect from subordinates or to secure cooperation of those
with whom the teacher must work ....”
It is clear, from the facts brought forth at the termination hearing, and reviewed in Section II supra,
that Ms. Runions was capable of performing the duties and responsibilities of her position. Her
performance evaluations were outstanding, and even the testimony of the school officials who were
seeking her termination indicated that she was a successful and effective teacher. No evidence
adduced in the termination hearing indicated that Ms. Runions was unable to perform the duties and
responsibilities of her position. Therefore, the claim that Ms. Runions was incompetent is without
merit.
2. Inefficiency.
The Tennessee Tenured Teacher Act defines inefficiency as follows:
“Inefficiency” means being below the standards of efficiency maintained by others
currently employed by the board for similar work, or habitually tardy, inaccurate, or
wanting in effective performance of duties.
The evidence brought forth at Ms. Runions’ termination hearing did not indicate that she fell below
the standards of efficiency maintained by others currently employed by the school district who were
doing similar work. Nor did the evidence indicate that Ms. Runions was “habitually tardy,
inaccurate, or wanting in effective performance” of her duties. By all accounts, she was a highly
praised, effective, and valued teacher. For this reason, we conclude that the charge of inefficiency
is without merit.
3. Insubordination.
The Tennessee Teachers’ Tenure Act defines insubordination, in relevant part, as follows:
(A) Refusal or continued failure to obey the school laws of Tennessee, or to comply
with the rules and regulations of the board, or to carry out specific assignments made
by the board, the director of schools or the principal, each acting within its own
-10-
jurisdiction, when such rules, regulations and assignments are reasonable and not
discriminatory;
(B) Failure to participate in an in-service training program as set up by the local
board of education and approved by the state board of education ....
If there were any merit to the allegations that Ms. Runions violated T.C.A. § 49-1-607, such a
violation might constitute insubordination as defined here. However, as we concluded in in our
analysis in section V, part A of this opinion, supra, there was no merit to the charge that Ms.
Runions violated T.C.A. § 49-1-607. Therefore, such violation cannot form a basis for charging Ms.
Runions with insubordination. Nor was any other evidence adduced at the termination hearing that
supported a charge of insubordination. Therefore, the charge of insubordination is without merit.
4. Neglect of duty.
The Tennessee Teachers’ Tenure Act defines “neglect of duty” in relevant part, as follows:
“Neglect of duty” means gross or repeated failure to perform duties and
responsibilities which reasonably can be expected of one in such capacity, or
continued unexcused or unnecessary absence from duty.
Aside from the meritless allegations that she had violated T.C.A. § 49-1-607, no evidence was
brought forth at Ms. Runions’ termination hearing that she had engaged in gross or repeated failure
to perform the responsibilities of her position. In fact, aside from the allegations concerning her
administration of the TCAP test, all evidence indicated that she had performed her duties and
responsibilities admirably. For this reason, we conclude that there is no basis for charging Ms.
Runions with neglect of duty.
Having reviewed the four bases for terminating Ms. Runions under the Tennessee Teachers’
Tenure Act, we conclude that they are without merit. We further note that the comments made by
Gary Emison, chair of the school board, when delivering the decision of the board, are revealing as
to the arbitrary and capricious nature of the board’s decision. Mr. Emison stated as follows:
I think, myself, personally speaking, that because of the evidence presented and
seeing that there probably is and possibly even may be in the future a lot of hard
feelings between Ms. Runions and our school administrators, that I feel that Ms.
Runions’ tenure as a teacher at Bells Elementary has come to an end.
The Tennessee Teachers’ Tenure Act guarantees establishes a right to a school board hearing of the
dismissal or termination of a teacher under permanent or limited tenure, and further guarantees
subsequent judicial review by the chancery court of any school board decision dismissing a teacher.
It is perhaps inevitable that, after a court challenge to a decision dismissing a teacher, there would
be “hard feelings” between the teacher and the administrators who sought to dismiss him or her. For
-11-
the school board to base its decision to terminate Ms. Runions, even partly, on the possibility of hard
feelings between herself and her school administrators, is emblematic of the arbitrary and capricious
nature of the proceeding to terminate Ms. Runions. If such reasoning were accepted as a legitimate
rationale for terminating a teacher, it would eviscerate the guarantee of due process by giving school
boards carte blanche to terminate teachers at will, even in the absence of any substantial basis for
such termination.
For all the foregoing reasons, we conclude, as did the chancery court, that the Bells School
Board’s decision to terminate Ms. Runions under T.C.A. § 49-5-501 et seq. was arbitrary, capricious,
and without legal basis.
VI. CONCLUSION
Accordingly, we affirm the judgment of the chancery court. Costs of this appeal are assessed
to the Appellants, Bill Emerson, Director of Schools for Bells City Schools, and the Board of
Education, Gary Emison, Charlotte Gaines, Mike Simmons, Eddie Spegal, and Dennis Wear, and
their sureties.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
-12- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2481917/ | 942 N.E.2d 461 (2010)
238 Ill. 2d 672
PEOPLE
v.
VILLANUEVA.
No. 110847.
Supreme Court of Illinois.
November 1, 2010.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/232895/ | 208 F.2d 565
UNITED STATES ex rel. THOMPSONv.DYE.
No. 11136.
United States Court of Appeals, Third Circuit.
Argued December 11, 1953.
Decided December 16, 1953.
Zeno Fritz, Louis C. Glasso, Pittsburgh, Pa., for appellant.
Albert A. Fiok, Asst. Dist. Atty. for Allegheny County, Pittsburgh, Pa. (James F. Malone, Jr., Dist. Atty., Pittsburgh, Pa., Frank F. Truscott, Atty. Gen., on the brief), for appellee.
Frank P. Lawley, Jr., Asst. Atty. Gen. of Pennsylvania, for Commonwealth of Pennsylvania.
Before KALODNER, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
1
The appellant is a prisoner under sentence of death imposed by a Pennsylvania court. He appeals to us from a judgment of the District Court for the Western District of Pennsylvania, entered after full hearing, denying him a writ of habeas corpus, 113 F.Supp. 807. Two deficiencies of the present submission, one not correctible here, prevent us from making a decisive disposition of the litigation at this time.
2
First, the principal contention of the petitioner in the District Court was that the state officer who prosecuted him had been informed before trial by William Heagy, one of the two police officers who arrested appellant shortly after the homicide, that appellant when arrested appeared and acted drunk, incoherent and crazed — this statement being diametrically opposed to the state's contention that accused was in full possession of his faculties when arrested, and inferentially at the time of the killing. Yet the prosecution neither called Heagy nor advised the court or the defense that this testimony was available. In this habeas corpus proceeding Officer Heagy testified that he did inform the prosecutor as appellant now charges. The prosecutor denied this. The District Judge made no finding which of these accounts he believed. We think a finding on this issue is essential to a proper disposition of this case on its merits. Apparently, the District Judge thought this finding unnecessary because he was satisfied that the prosecutor acted in good faith believing that the truth of the matter was represented by evidence to the effect that the accused was in full possession of his faculties at the time in question. We, however, think the omitted finding goes to the very essence of the complaint of fundamental unfairness.
3
For the foregoing reason the cause must be remanded. But since it may come here again we also note a second point. Many factual matters about alleged testimony and other occurrences at the original trial and subsequent stages of this litigation were argued on this appeal. A number of them are entirely outside the disclosures of the Appendix filed by appellant as representing all of the record appellant thinks this court need consider. The appellee filed no Appendix whatever although much of his argument was totally outside and beyond the record as reproduced in appellant's Appendix.
4
If any part of the record or other factual information about the state proceedings which is not a matter of judicial notice is relevant to this case it should be introduced in the District Court, and if this case comes here again all essential parts of the record must be reproduced in an Appendix as our Rule 24 plainly directs.
5
The judgment of the District Court will be vacated and the cause remanded for a finding of fact whether the court credited the testimony of the police officer or the prosecutor as to what the former told the latter before trial about the condition of the accused at or about the time of his arrest. The District Court may in its discretion take further testimony or hear further argument, or both, before entering its additional or amended findings and whatever conclusions and judgment may be appropriate thereon. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2103255/ | 309 S.W.3d 872 (2010)
STATE of Missouri, Respondent,
v.
Alcee FOREMAN, III, Appellant.
No. ED 93733.
Missouri Court of Appeals, Eastern District, Division Two.
May 11, 2010.
Lisa M. Stroup, St. Louis, MO, for Appellant.
Christopher A. Koster, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.
*873 Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
ORDER
PER CURIAM.
Alcee Foreman, III ("Movant") appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his motion without an evidentiary hearing because he asserted facts not refuted by the record that he pleaded guilty involuntarily, unknowingly, and unintelligently (1) due to plea counsel's failure to advise Movant that if he proceeded to trial, he would have the right to testify on his own behalf, even if counsel did not want him to, and (2) due to plea counsel's failure to advise Movant that he would have to follow all of the rules of the treatment program or risk being terminated from the program and having to serve his sentences.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court's findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023691/ | PRESIDING JUSTICE LaPORTA delivered the opinion of the court: Plaintiff appeals the judgment of the circuit court which affirmed the decision of the Board of Fire and Police Commissioners for the Village of Palatine (the Board) finding plaintiff guilty of the offense of personally disposing of seized property, finding him guilty of insubordination in refusing an order from his superior to submit to a urinalysis test, and further ordered his dismissal from the police force. Plaintiff raises three issues in this appeal: Whether he was erroneously found guilty of the offense of personally disposing of seized property when he was not specifically charged with this offense; whether he was within his right to refuse to submit a sample for urinalysis; and whether dismissal is an appropriate penalty under the circumstances of this case. On February 26, 1988, plaintiff, a police officer, responded to a nuisance complaint about a party. When he arrived at the address plaintiff saw two young men seated in an automobile and observed movement which caused him to investigate. He approached the car, asked them what they were doing, and when they did not reply, plaintiff ordered them out of the car. He performed a pat-down search of their persons and searched the interior of their car. Behind a window visor, plaintiff found a packet of a white, powder-like substance. The young men told him they had paid $70 to $75 for the packet of cocaine. Plaintiff testified he opened the packet and upon visual inspection concluded that the contents were not cocaine, although he did not run a field test on the contents. Plaintiff made a note of the youths’ names, did not arrest them, and told them to leave. Plaintiff testified that he then returned to his squad car, proceeded down the block, and while doing so flipped the packet out of the window of his vehicle. There were no witnesses. Plaintiff testified that he did not notify anyone of the incident. On April 15, 1988, shortly after he arrived at the station house, the plaintiff was given written notice of three charges filed against him, by the chief of police: (1) that he had come into possession of a controlled substance from the two suspects while on duty as a police officer and failed to turn the seized property in to the Palatine police department; (2) that he had used controlled substances; and (3) a charge unrelated to this appeal, that while he was off duty he learned of and failed to investigate a complaint of a person in a bar improperly in possession of a firearm. Plaintiff was then given the opportunity to obtain or consult with counsel. On the day the charges were filed against him, plaintiffs locker was searched, and a Darvocet-N 100 pill was found. His superior officer requested that plaintiff provide a urine sample for analysis. Plaintiff responded that on advice of counsel he would not comply with the request, whereupon plaintiff was charged with insubordination. Following a hearing before the Board, plaintiff was found not guilty of use of controlled substances and not guilty of failing to investigate a complaint of a person improperly in possession of a firearm. Plaintiff was also found not guilty of having taken possession of property from suspects and of failing to turn the seized property in to the police department, but was found guilty of the offense of personally disposing of seized property and of the charge of insubordination in failing to submit to a urinalysis. The Board ordered plaintiff’s termination from employment as a police officer for the Village of Palatine. He was terminated on July 13, 1988. Plaintiff appealed to the circuit court, which affirmed the Board’s decision. Plaintiff first argues that he was charged only with taking possession of cocaine, a controlled substance, pursuant to section 402(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 5QV2, par. 1402(a)) and failing to turn the controlled substance in to the Palatine police department. Plaintiff concludes that he could not be found guilty of personally disposing of seized property in violation of General Order 82 — 2R. We do not agree. The complaint in an administrative hearing need not be as precisely drawn as those before a trial court (Guzell v. Civil Service Comm’n (1974), 17 Ill. App. 3d 266, 272, 308 N.E.2d 351, 356), although it must be sufficient to allow the defendant to prepare an adequate defense. (Martich v. Ellis (1981), 100 Ill. App. 3d 1098, 1101, 427 N.E.2d 876, 878.) An indictment for one offense serves as an indictment for all lesser included offenses even though they are not specified. (People v. Vasquez (1981), 97 Ill. App. 3d 1142, 1143, 424 N.E.2d 42, 43.) Lesser included offenses are defined as offenses which include less than all of the same elements as, or require a less culpable mental state than, the greater offense so that to commit the greater offense one must commit the lesser. People v. Gulley (1987), 162 Ill. App. 3d 545, 547, 515 N.E.2d 1309, 1310. We find that plaintiff had adequate notice that he might be found guilty of personally disposing of seized material. The charge that he “while on duty as an uniformed Police Officer of the Village of Palatine, Illinois did take possession of cocaine, a controlled substance, pursuant to Illinois Revised Statutes Chapter 56V2, Section 1402(a) from the possession and/or control of [the youths] and did fail to arrest either/both individual(s) and did further fail to turn said controlled substance into [sic] the Palatine Police Department.” The charge was alleged in paragraph 3 of count I of the complaint. Paragraph 4 of count I reads in its entirety: “4. That the aforementioned constitutes a violation of the following: A) The ‘cause’ clause of the Fire and Police Commissioners Ordinance as found in Village of Palatine Code of Ordinances, Chapter 2, Article XX, Section 2 — 375. B) The following provisions of the Rules and Regulations and General Orders of the Palatine Police Department: 310.02 STANDARD OF CONDUCT: Members shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute. Members shall not engage in conduct which constitutes conduct unbecoming an officer or neglect of duty. 305 OBEDIENCE TO LAWS AND REGULATIONS: All members, sworn officers and civilian employees shall observe and obey all laws and ordinances, and all rules, regulations and orders of the Department; specifically, official Misconduct [sic] as found in Illinois Revised Statutes, Chapter 38, Section 33 — 3. 320.28 USE OF DRUGS AND/OR CONTROLLED SUBSTANCES: Possession or use of controlled substance, except with the approval and guidance of a licensed physician of Illinois and with the knowledge of a supervisor, is prohibited. 345.26 ASSISTING CRIMINALS: Members shall not communicate in any manner directly or indirectly any information which might aid any person to escape arrest or punishment or which might enable them to conceal evidence, contraband, stolen property or any illegal activity. General Order 82 — 2R (Evidence Preservation and Property Control) I. Policy A 2. Under no circumstances will property be kept by any employee in their personal possession beyond their tour of duty or disposed or personally by that employee. A 8. The taking of property into custody; handling and processing of property; and, its disposition will be conducted within the legal parameters established by statute and judicial decisions. II. Authority and Responsibility E. Recovering/Investigating Officer 4. Under no circumstances will property be kept by an employee in their personal possession beyond their tour of duty. 5. Under no circumstances will property be disposed of by an employee personally. Only the Property Custodian may dispose of property through the prescribed procedures. General Order 86 — 61 (Evidence Inventory of Narcotics and Drugs) I. Policy — The Palatine Police Department shall maintain strict inventory and control of narcotics and dangerous drugs taken into custody.” While not specified in the charge, personally disposing of seized property is clearly and repeatedly prohibited by the specific rules and regulations and general orders under which plaintiff is charged. Plaintiff erroneously relies on Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 198 N.E.2d 705, where the court made a point-by-point comparison of the charges and findings. (Sudduth, 48 Ill. App. 2d at 203, 198 N.E.2d at 711.) While acknowledging a technical variance between the charge and the Board’s finding, the court held that the lesser offense was clearly encompassed within the scope of the original charge. Sudduth, 48 Ill. App. 2d at 205, 198 N.E.2d at 712. Plaintiff also cites Kupkowski v. Board of Fire & Police Commissioners (1979), 71 Ill. App. 3d 316, 389 N.E.2d 219, where a similar result was reached. The accused officer accidentally ran his squad car off the road and into a retaining wall; he then drove away but the motor died a short distance later. The officer repeatedly denied to his superior officer, who came to investigate, that he had had an accident. The officer was charged with failing to report the accident and lying to his superior officer, both of which actions were found by the hearing officer to be neglect of duty and conduct prejudicial to good order and discipline. The officer was also found guilty of lying to the chief of police and the Board of Fire and Police Commissioners of the Village of Downers Grove, which finding he contended could not stand because he was not charged with lying to the board or the chief of police. (Kupkowski, 71 Ill. App. 3d at 320, 389 N.E.2d at 221-22.) The court there found that while the accused officer could have inferred that he might be found guilty of lying to his superior because he was specifically charged with that offense, he could not infer from the charges against him that he might be found guilty of lying to the board or the chief of police. Kupkowski, 71 Ill. App. 3d at 321, 389 N.E.2d at 223. In our case, the charge of personally disposing of seized property was clearly included within the charge of taking possession of a controlled substance and failing to turn the seized property in to the police department as specified in count I of the complaint. For these reasons, we find that plaintiff was adequately informed of all charges against him, including that of personally disposing of seized property, the charge of which he was found guilty. Plaintiff next argues that he was justified and should not have been sanctioned for his refusal to submit a sample for urinalysis. Plaintiff argues that he was suspended at the time the request was made of him and therefore he had no legal duty to obey such an order, and that he was within his legal right in refusing to submit a sample for urinalysis. Plaintiff offers no authority to support his contention that a suspended officer has no duty to obey an order of the chief of police. The record contains his bald assertions that because he had been suspended at the time of the request, he was not a police officer, and that logic and common sense dictate that he was under no duty or obligation to obey the order of his superior when the urinalysis sample was requested. Black’s Law Dictionary defines suspension as “[a] temporary cutting off or debarring one, as from the privileges of one’s profession.” (Black’s Law Dictionary 1297 (5th ed. 1979).) Suspension clearly does not relieve the suspended person of any duty to obey, but merely relieves him of the power associated with his position. Webster’s Dictionary defines suspension as a “temporary forced withdrawal from the exercise of office, powers, prerogatives, privileges.” (Webster’s Third New. International Dictionary 2303 (1986).) Plaintiff was removed from duty, but prior to a hearing on the charges, he remained a police officer. Plaintiff admitted that he was paid in full for April 15, 1987, the day on which he was accused, suspended, and the urinalysis requested. The facts in Washington v. Civil Service Comm’n (1983), 120 Ill. App. 3d 822, 458 N.E.2d 952, are similar to those of the case at bar. There an officer suspected of sexual assault was ordered to “submit to blood and saliva tests.” (Washington, 120 Ill. App. 3d at 828, 458 N.E.2d at 957.) Although that charge is not drug related, as are the charges in our case, the appellate court in Washington found the charge to be “a serious breach of departmental rules which, if true, would seriously affect [the officer’s] ability to function effectively” (Washington, 120 Ill. App. 3d at 829, 458 N.E.2d at 957) and found that the demand was justified. The court held that the officer “was obligated to obey a direct order which was reasonable under the circumstances.” Washington, 120 Ill. App. 3d at 829, 458 N.E.2d at 957. Here, the charges levelled against plaintiff which were drug related were directed to his possible use of controlled substances and during a search that day Darvocet N-100 was found in his locker. The demand that he provide a sample for urinalysis is reasonable under these circumstances. Plaintiff’s argument that suspension relieved him of the duty to obey the order of his superior officer to submit a urine sample for analysis is invalid and unsupported by legal authority. Plaintiff next argues that section 3.11 of the Uniform Peace Officers’ Disciplinary Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2551 through 2568) statutorily protects him from the demand for a sample for urinalysis. This section of the statute states that “[i]n the course of any interrogation no officer shall be required to submit to a polygraph test, or any other test questioning by means of any chemical substances, except with the officer’s express written consent. Refusal to submit to such tests shall not result in any disciplinary action nor shall such refusal be made part of his or her record.” (Ill. Rev. Stat. 1987, ch. 85, par. 2564.) This holding refers only to questioning done with polygraph or chemical aid, and clearly does not encompass a urinalysis. Additionally, the United States Supreme Court resolved the issue of whether testing bodily fluids is a method of interrogation in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, when it stated that “[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.” (Schmerber, 384 U.S. at 765, 16 L. Ed. 2d at 916-17, 86 S. Ct. at 1832-33.) For this reason, plaintiff’s reliance on section 3.11 of the Uniform Peace Officers’ Disciplinary Act is inappropriate. We find therefore that plaintiff did not have the right to refuse to provide a sample for urinalysis, and his refusal to comply with his superior’s order to do so was insubordination. Plaintiff finally argues that even if the Board’s decision as to his guilt is upheld, dismissal is an unjustly harsh penalty under the facts of this case. In reviewing the decision of an administrative agency, the trial court may not entertain “new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency” and “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The court cannot impose its own penalty, but must determine whether, under the facts and circumstances of the case, the penalty imposed was unreasonable, arbitrary, or unrelated to the action. (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147, 151.) If the evidence sustains the agency’s decision, that decision must be upheld. Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 194, 524 N.E.2d 1172, 1175. Plaintiff relies on several cases to support his claim that his dismissal was improper. He cites Massingale v. Police Board (1986), 140 Ill. App. 3d 378, 488 N.E.2d 1289, where the dismissed police officer had an unblemished seven-year record and her only infraction was being intoxicated while off duty. The court found her dismissal was unwarranted. (Massingale, 140 Ill. App. 3d at 382, 488 N.E.2d at 1292-93.) Similarly, in Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511, the plaintiff was found to have been driving his own, unlicensed car while on duty and lying to his commanding officer about the incident. The Illinois Supreme Court found these actions too far removed from the plaintiff’s duties as a police officer to warrant dismissal. Kreiser, 69 Ill. 2d at 30-31, 370 N.E.2d at 513. However, two other cases are much closer in facts and circumstances to those of our case. In Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501, the plaintiff had arranged a marijuana buy without the knowledge and consent of his superiors, and thereafter arranged to have the purchased material returned to the seller. (Reich, 13 Ill. App. 3d at 1034, 301 N.E.2d at 503.) The court upheld his dismissal. (Reich, 13 Ill. App. 3d 1034, 301 N.E.2d at 503.) In Van Gerreway v. Chicago Police Board (1975), 34 Ill. App. 3d 511, 340 N.E.2d 28, the plaintiff was twice involved in the sale of marijuana to undercover agents, a fact which he failed to report to his superiors. (Van Gerreway, 34 Ill. App. 3d at 511, 340 N.E.2d at 29.) The court, in affirming his dismissal, noted that “a paramount issue in these proceedings is not whether plaintiff is a criminal, but rather [it] is his fitness to retain his office as a patrolman.” Van Gerreway, 34 Ill. App. 3d at 514, 340 N.E.2d at 31. We address the identical question here. “In disciplinary proceedings against a police officer, a single valid finding of a violation of departmental rules will authorize dismissal. [Citations.]” (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 508, 377 N.E.2d 102, 106; see also Van Gerreway, 34 Ill. App. 3d at 514, 340 N.E.2d at 31.) Because plaintiff was found guilty of both personally disposing of seized property and insubordination, dismissal is entirely proper. We find the evidence sufficient to sustain the trial court’s decision and that no error was committed in its affirmance of the Board’s decision. Accordingly, the judgment of the trial court as to all issues is affirmed. Judgment affirmed. McNAMARA and EGAN, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3097637/ | NUMBER 13-12-00075-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE GREYHOUND LINES, INC.
On Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Chief Justice Valdez, Justice Garza, and Justice Vela
Memorandum Opinion Per Curiam1
Relator, Greyhound Lines, Inc., has filed a petition for writ of mandamus in which
it contends that respondent, the Honorable Migdalia Lopez, Presiding Judge of the
197th Judicial District Court of Cameron County, Texas, abused her discretion, leaving
relator without an adequate appellate remedy, by denying relator’s Motion for Protection
and Motion to Reconsider regarding a deposition noticed by real parties in interest.
Real parties in interest are: Motor Coach Industries, Inc.; Motor Coach Industries
1
See TEX. R. APP. P. 52.8(d) (“When denying [mandamus] relief, the court may hand down an
opinion but is not required to do so.”).
Service Parts, Inc.; ArvinMeritor, Inc.; Daniel Campos, individually and as representative
of the estate of Christina Lozano Campos; Maria L. Lozano; Anna B. Schermerhorn;
Adriana L. Pruitt; Amalia F. Heather; and Daniel N. Campos.
Having reviewed and fully considered relator’s petition and responses filed by
real parties in interest, this Court is of the opinion that relator has not shown itself
entitled to the relief requested and that the petition should be denied. See TEX. R. APP.
P. 52.8(a). Accordingly, relator’s petition for writ of mandamus is DENIED.
PER CURIAM
Delivered and filed the
23rd day of February, 2012.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3097644/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Shamrock Management, LLC v. Dune Energy, Inc.
Appellate case number: 01-14-00225-CV
Trial court case number: CV-0059024-A
Trial court: County Court at Law No 1 of Galveston County
On August 29, 2014, the parties to this appeal filed a Joint Motion to Abate. The motion
is GRANTED. This appeal is abated until October 30, 2014. The parties are ORDERED to file
either a joint motion to dismiss the appeal or a mediation status update by that date, should a
settlement not be reached.
Judge’s signature: /s/ Rebeca Huddle
X Acting individually Acting for the Court
Date: September 2, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2154859/ | 963 A.2d 468 (2009)
COM.
v.
GRAVES.
No. 432 WAL (2008).
Supreme Court of Pennsylvania.
January 13, 2009.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1667320/ | 895 So. 2d 40 (2005)
STATE of Louisiana
v.
Grecory SEARLS.
No. 04-KA-790.
Court of Appeal of Louisiana, Fifth Circuit.
January 25, 2005.
*41 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Martin A. Belanger, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS, and CLARENCE E. McMANUS.
SOL GOTHARD, Judge.
Defendant, Grecory Searls, appeals his conviction and sentence on a charge of simple burglary in violation of La.R.S. 14:62. For reasons that follow, we affirm both the conviction and the sentence.
The record shows that defendant was arraigned on July 31, 2002 and pled not guilty. On October 31, 2002, defendant's motion to suppress identification was denied. The case was tried on February 13 and 14, 2003 by a six-person jury which found defendant guilty as charged. On February 24, 2003, defendant's motion for new trial was denied. The trial judge sentenced defendant on February 27, 2003 to imprisonment at hard labor for five years. On that same date, the State filed a multiple bill alleging defendant to be a fourth felony offender. Defendant stipulated to being a third felony offender. The trial judge vacated the original sentence and sentenced defendant to imprisonment at hard labor for twelve years. Defendant's motion to reconsider both sentences was denied, and his motion for appeal was granted.
FACTS
At trial George Lambert testified that, on Saturday, June 8, 2002, at approximately 9:30 a.m., he walked outside of Briggs Equipment, his place of employment, heard something, walked around a service van parked right outside the door, and observed a man, later identified as defendant, rummaging through his vehicle. Lambert also observed what appeared to be a "getaway" vehicle behind his service van which he described as a white Ford Taurus from the mid-80's or early 90's with a Jesuit High School sticker across the rear window.
Lambert explained that there was someone in the front passenger seat of the Ford Taurus, but that he did not get a very good look at that individual. Lambert, who was approximately ten feet from his vehicle at that time, saw defendant inside his vehicle in the back seat leaning over into the front seat with the rear door open. He testified that he got a good look at defendant, that there was bright sunlight, and that he observed the entire side of defendant's face.
Lambert was unsure whether defendant had any weapons, so he went back inside *42 the business and dialed 911. When Lambert realized that a co-worker was there, he hung up the phone and explained to his co-worker what had occurred. Lambert called 911 again and advised the operator he needed a deputy. After he called 911, Lambert went back outside to make sure nobody was still out there.
Lambert checked his vehicle and noticed that a pair of bolt cutters was missing. The deputies arrived and called crime scene technicians. Lambert told Deputy John Venture that defendant was a black male, possibly in his mid-20s to early 30s, that defendant was larger than he was, and that he did not remember what clothing defendant was wearing.
A few weeks later, on July 1, 2002, Lambert saw a white Ford Taurus with a Jesuit sticker on the rear window traveling on River Road less than two blocks from the crime scene. Afterwards, he called the Jefferson Parish Sheriff's Office (JPSO) and told them he saw the vehicle that was at the scene of the burglary on June 8.
Lambert received a call from the JPSO informing him that they would like for him to come and possibly make an identification. Lambert went to Edwards Avenue and Mounes Drive where he identified defendant as the perpetrator. He also positively identified defendant in court. Following Lambert's testimony, the State rested its case.
Deputy John Venture, who was called as a witness by the defense, testified that he wrote the police report in connection with this matter, and that the victim had described the perpetrator as being twenty to thirty years old. He explained that on June 8, the victim was very upset, and that he had to ask the victim to calm down so he could get information from him.
Deputy Venture testified that on July 1, the victim came to the 1000 block of Edwards Avenue and Mounes Drive. He asked the victim if any vehicle at that location may have been involved in the burglary, and the victim pointed out a white Ford Taurus with a Jesuit High School sticker on it. Deputy Venture asked the victim to view the suspect. Deputy Uloth took defendant out of the vehicle, and the victim positively identified defendant as the individual who burglarized his vehicle. Deputy Venture placed defendant under arrest. He denied brutalizing defendant at any point.
Deputy Damon Uloth, who was called as a witness by the defense, testified that, on July 1, 2002, defendant was in the rear of his police vehicle located at Edwards and Mounes. He further testified that the victim had no doubt when he identified defendant that that was the individual who robbed him. Deputy Uloth stated that he did not find Lambert's bolt cutters in defendant's vehicle. He denied using his night club on defendant or beating him up. He did not see anyone else pull a night club on defendant.
LAW
In two assignments of error to this Court, defendant argues that the victim's identification of him is unreliable and therefore, is insufficient to support his conviction of simple burglary.
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.
In the instant case, defendant was convicted of simple burglary which is defined in La.R.S. 14:62 as "the unauthorized entering *43 of any ... vehicle ..., with the intent to commit a felony or any theft therein[.]"
In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So. 2d 65, 69.
The factors to be considered in assessing the reliability of an identification include opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977); State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So. 2d 63, writ denied, 98-0264 (La.6/19/98), 719 So. 2d 481.
As a general rule, one-on-one identifications are not favored. However, under certain circumstances, these identifications are permissible. State v. Jackson, 96-661 (La.App. 5 Cir.4/9/97), 694 So. 2d 440, 447. This is particularly true when the one-on-one identification is closely associated in time with the commission of the crime and where the suspect is returned to the location of the crime for immediate identification. State v. Robinson, 404 So. 2d 907, 909 (La.1981). Such identifications promote fairness by assuring reliability and the prompt release of innocent suspects. State v. Robinson, supra.
In Winfrey, 703 So.2d at 70, defendant argued that the identification procedure was suggestive because he was alone in the backseat of a police car and in handcuffs at the time he was identified by the victim and an eyewitness. Defendant contended that there was a substantial likelihood of misidentification because the witnesses could not have seen the robber's face since the perpetrator wore a ski mask.
This Court stated that, applying the Manson v. Brathwaite factors, even if the identification was suggestive, the identification did not present a substantial likelihood of misidentification. It noted that the victim had ample opportunity to view defendant at the crime scene, that her prior description of defendant and his car were accurate, that the time between the robbery and confrontation was short, and that she positively identified defendant as the robber at the scene. This Court found that the identification was not suggestive nor was there a substantial likelihood of misidentification and, therefore, the trial court did not err in denying defendant's motion to suppress the identification.
In State v. Gibbs, 03-967 (La.App. 5 Cir. 12/30/03), 864 So. 2d 866, 871-874, defendant, who was convicted of simple burglary and aggravated flight from an officer, contended that the evidence was insufficient to prove his identity because the deputy only viewed defendant for one or two seconds in the midday sun as the car sped past him, the only evidence implicating defendant was the deputy's suspect identification, defendant was handcuffed in the back of the police car when he was identified, and defendant was forty-eight years old, over six feet tall and weighed over 200 pounds at the time of the offense but the victim described the suspect as nineteen to twenty-five years old, five feet, ten inches to six feet tall, and 150 to 160 pounds.
This Court found that the State negated the likelihood of misidentification by presenting evidence that the deputy had the opportunity to get a good look at the suspect *44 when the suspect drove past him, the identification occurred only one hour and forty minutes after the deputy first viewed the suspect, and the deputy unequivocally identified the defendant at trial. This Court found that the State's evidence sufficiently satisfied the Manson factors, and that there was not a substantial likelihood of misidentification with regard to the one-on-one identification procedure.
In the instant case, the State negated the likelihood of misidentification by presenting evidence that Lambert got a good look at defendant at the time of the offense; that Lambert observed the entire side of defendant's face; that the offense occurred at approximately 9:30 a.m.; that there was bright sun light when he saw defendant; that he was approximately ten feet away from his vehicle when he saw defendant; and that he remembered what defendant looked like because it "stuck" in his mind.
Additionally, Lambert testified as to the distinctive characteristics of the "getaway" vehicle defendant was driving at the time of the offense, i.e., a white Ford Taurus from the mid 80's or early 90's with a Jesuit High School sticker across the rear window, which defendant later saw less than two miles from where the crime occurred. Lambert positively identified defendant after the police apprehended him and testified that no one coerced him into making the identification.
Deputy Venture testified that the victim was not hesitant in any way when he made the identification, and Deputy Uloth testified that the victim had no doubt when he identified defendant that that was the individual who burglarized his vehicle. Also, Lambert unequivocally identified defendant at trial and testified that there was no doubt in his mind, and that he was one hundred percent certain that defendant was the perpetrator of the offense.
Defendant argues that the victim described the perpetrator as being in his twenties, but that he was in his fifties. However, as was noted in the State's brief, there was no evidence of defendant's actual age produced at trial. Although defendant's date of birth is recorded on the traffic ticket marked as Exhibit D-3, that exhibit was admitted only for record purposes and was not viewed by the jury. The only testimony that could be located in the record regarding defendant's age came from the victim, who testified that defendant did not look twenty-one years old, and Deputy John Venture, who testified that defendant looked a little older than twenty years old.
Although the identification occurred approximately three weeks after the offense, and not shortly after the crime occurred as was the case in Winfrey and Gibbs, we find that the State's evidence sufficiently satisfied the Manson factors, and that there was not a substantial likelihood of misidentification with regard to the one-on-one identification procedure.
Although defendant argues that the evidence was insufficient to support the conviction, the jury heard all the evidence and chose to accept the testimony of the State's witnesses and reject defendant's argument that he did not commit the crime.
The trier of fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So. 2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So. 2d 1035. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Rivers, supra, at 219. It is the fact finder's *45 function to determine the weight of the evidence bearing on defendant's identification. It is not the appellate court's function to reevaluate the credibility choices by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So. 2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So. 2d 400.
Consequently, after viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support the conviction and that defendant was the perpetrator of the crime.
Accordingly, we find no merit in defendant's assignments of error and affirm the conviction and sentence.
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990).
The trial judge told defendant he had "two years to file for postconviction relief." However, this advisal was incomplete, as La.C.Cr.P. art. 930.8 provides that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Therefore, we hereby remand this matter to the district court, and order the court to inform defendant of the provisions of La.C.Cr.P. art. 930.8 by sending appropriate written notice to defendant within ten days of the rendition of the opinion and to file written proof that defendant received the notice in the record of the proceedings. State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So. 2d 973, 975.
AFFIRMED AND REMANDED WITH ORDER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/415520/ | 702 F.2d 572
UNITED STATES of America, Plaintiff-Appellee,v.Herbert Darrell HAY, Defendant-Appellant.
No. 82-2490.
United States Court of Appeals,Fifth Circuit.
April 11, 1983.
Herbert Darrell Hay, Huntsville, Tex., pro se.
James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.
POLITZ, Circuit Judge:
1
Following a nolo plea to a charge of simple assault by written communication, a misdemeanor under 18 U.S.C. Sec. 113, Herbert Darrell Hay was sentenced to three months to run concurrently with a state-imposed life sentence. Hay attacked his conviction on direct appeal contending that the government reneged on one of the provisions of the plea agreement. We initially granted the government's motion to dismiss the appeal on the basis of mootness because the time imposed had elapsed and no meaningful consequence could result from reversal. Upon reconsideration, we were unable to conclude with certainty that the conviction would not have a deleterious effect upon Hay's possible parole on the state charge. Concluding that our dismissal of the appeal was premature, we reinstated the appeal and considered the merits. Upon that review, we found that Hay's complaint about the plea agreement had not been raised in the district court and was premised on matters outside the record. We affirmed the conviction. United States v. Hay, 685 F.2d 919 (5th Cir.1982).
2
Hay then filed a motion to vacate under 28 U.S.C. Sec. 2255 complaining of: (1) a breach of the plea agreement, (2) a defective indictment, (3) a failure to prove the elements of the offense, (4) a conspiracy to secure his conviction, and (5) the inducement of his plea by subjecting him to illegal conditions of confinement at the county jail. Because Hay was no longer in federal custody, or in state custody subject to future federal custody, the district court denied the motion for lack of jurisdiction. Hay moved for reconsideration and for leave to appeal in forma pauperis. The motions were denied, the former on jurisdictional grounds and the latter on the basis of a failure to establish indigency. Pending the ruling on the Sec. 2255 motion, Hay filed a motion for correction or reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure. This motion was denied as moot.
3
Hay then submitted an amended in forma pauperis declaration and leave to appeal was granted. Examining the filings in light of the fact that they were made pro se, and being guided by the relief sought, we find before us motions for post-conviction relief and for appointment of counsel.
Post-conviction Relief
4
Because Hay has completed his sentence, relief is unavailable under 28 U.S.C. Sec. 2255. Puente v. United States, 676 F.2d 141 (5th Cir.1982). Nor is relief available under Rule 35 which with one exception not applicable here, normally does not permit "reexam[ination] [of] errors occurring at the trial or other proceedings prior to the imposition of sentence." Hill v. United States, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed. 2d 417 (1962). However, Hay launches a post-conviction attack upon his sentence which, although fully served, may still pose adverse effects. Accordingly, Hay is entitled to an opportunity to demonstrate sufficient detrimental collateral consequences to justify relief pursuant to a petition for writ of error coram nobis. 28 U.S.C. Sec. 1651(a); United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954); United States v. Dellinger, 657 F.2d 140 (7th Cir.1981). See Puente v. United States. In so holding we intimate no opinion as to whether Hay has satisfied or may be able to satisfy the requirements of the All Writs Statute.
5
When we reinstated Hay's direct appeal we noted the possibility that his federal sentence, although served, might exert an adverse impact on his eligibility for state parole. The record then before us was insufficient for a determination of that question. In particular, there was nothing in the record to indicate the policies and practices of the state parole authorities.
6
The record presently before us continues unchanged in that critical regard. We are still unable to ascertain the impact, if any, of the federal conviction on Hay's eligibility for parole in Texas. No pertinent facts have been adduced and no findings have been made. We cannot assume as a matter of law that all of the harmful effects of Hay's federal sentence dissipated upon completion of the sentence. See Malloy v. Purvis, 681 F.2d 736, 740 (11th Cir.1982) (Wisdom, J., sitting by designation, specially concurring); Harrison v. Indiana, 597 F.2d 115 (7th Cir.1979). On direct appeal we declined to speculate as to any adverse effect; we decline to do so now. However, we do conclude that the dismissal for want of subject matter jurisdiction was inappropriate and that further proceedings are warranted.
7
Because of our disposition we need not address Hay's motion for appointment of counsel on this appeal.
8
The appeal is ordered docketed and the case is taken under submission. We now REVERSE and REMAND to the district court for further proceedings consistent herewith. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/560773/ | 932 F.2d 961
U.S.v.Pearson (Wilbur)
NO. 90-1645
United States Court of Appeals,Third Circuit.
APR 08, 1991
1
Appeal From: E.D.Pa.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2694448/ | [Cite as Mountaineer Invests., L.L.C. v. Performance Home Buyers, L.L.C., 2011-Ohio-3614.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
MOUNTAINEER INVESTMENTS, LLC :
Plaintiff-Appellee : C.A. CASE NO. 24173
v. : T.C. NO. 07CV4319
PERFORMANCE HOME BUYERS, LLC, : (Civil appeal from
et al. Common Pleas Court)
Defendants-Appellants :
:
..........
OPINION
Rendered on the 22nd day of July , 2011.
..........
JEFFREY S. ROUTH, Atty. Reg. No. 0042140, 407 Vine Street, Suite 184, Cincinnati, Ohio
45202
Attorney for Plaintiff-Appellee
EDWARD and JEWELL JONES, 1439 Shaftesbury Road, Dayton, Ohio 45406
Defendants-Appellants
..........
FROELICH, J.
{¶ 1} Edward and Jewell Jones, pro se, appeal from an order of the Montgomery
County Court of Common Pleas, which denied their motion to vacate the court’s
confirmation of the sale of their residence and writs of restitution. For the following
2
reasons, the Joneses’ appeal from the denial of their motion to vacate the confirmation of
sale is dismissed for lack of a final appealable order. Their appeal from the denial of their
motion to vacate the writs of restitution is dismissed as moot.
I
{¶ 2} Mountaineer Investments, LLC (“Mountaineer”) is the owner of more than 30
notes and mortgages relating to properties owned by Performance Home Buyers, LLC
(“Performance”). Performance defaulted, prompting Mountaineer to file an action for
judgment on the notes. Mountaineer Invest., LLC v. Performance Home Buyers, LLC,
Montgomery C.P. No. 2007 CV 2317. In March 2007, Mountaineer received a judgment in
its favor on the notes. Two months later, in May 2007, Mountaineer filed this action against
Performance, seeking foreclosure of the mortgages and the sale of 18 properties for which it
had received a monetary judgment.
{¶ 3} One of the properties at issue in Mountaineer’s actions against Performance
was 4905 Porterfield Drive, the residence of Edward and Jewell Jones. The Joneses were
not parties to the actions on the notes or for foreclosure. The Joneses believed, however,
that they had a valid land installment contract with Performance to purchase the Porterfield
property.
{¶ 4} After the trial court granted a judgment and decree of foreclosure to
Mountaineer, ordered the property sold, and confirmed the sale of the property, the court
issued a writ of restitution, and the Joneses were served with eviction papers. The Joneses
were also subject to a writ of restitution granted by the Montgomery County Municipal
Court in a separate forcible entry and detainer action filed by Mountaineer against the
3
Joneses. The Joneses counterclaimed in the Municipal Court action, the case was
transferred to Common Pleas Court, and the foreclosure action and the forcible entry and
detainer action were consolidated.
{¶ 5} Thereafter, the Joneses filed a motion to vacate the sale of the property and
the writs of restitution, arguing that they were purchasing the property under a land
installment contract and were not renters of the property. After a hearing on May 21, 2010,
the trial court, pursuant to Civ.R. 60(B), denied the motion to vacate the court’s orders and
ordered the Joneses to vacate the premises immediately. The court noted that “Defendants
have a counter claim currently pending in this Court that is not addressed herein.” The
Joneses appealed from the trial court’s denial of their motion.
{¶ 6} On November 23, 2010, Mountaineer moved to dismiss this appeal on three
grounds, including that the trial court’s July 22, 2010 decision denying the motion to vacate
was not a final appealable order. We denied the motion to dismiss on January 6, 2011,
stating that a writ of restitution is a final appealable order and that the denial of a Civ.R.
60(B) motion is itself a final appealable order. However, on June 8, 2011, we remanded to
the trial court the portion of this appeal concerning the denial of the motion to vacate the
confirmation of sale. We stated that this portion of the trial court’s decision was not a final
appealable order due to unresolved counterclaims. We granted the trial court until June 30,
2011, to file a Civ.R. 54(B) certification, if that was the trial court’s intention; to date, no
Civ.R. 54(B) certification has been filed. We further noted that the portion of the trial
court’s decision regarding the writs of restitution was final and appealable and would be
addressed separately.
4
II
{¶ 7} The Joneses raise three assignments of error on appeal, which are somewhat
difficult to follow. In essence, they claim that the trial court erred in denying their motion
to vacate the confirmation of sale and the writs of restitution, because they had a meritorious
defense to the foreclosure action. They assert that they have rights to the Porterfield
property “independent from any contract in the underlying proceedings.” The Joneses
further claim that the trial court should not have “effectively clos[ed] the proceedings”
against them without first resolving their counterclaim. They assert that the court’s failure
to address their counterclaim constituted a denial of due process.
{¶ 8} We cannot address the Joneses’ arguments concerning the confirmation of the
sale of the Porterfield property. The confirmation of sale did not include Civ.R. 54(B)
certification and, as we stated previously, claims remained pending in the trial court when
the Joneses sought to vacate the confirmation of sale and the court ruled on that motion. As
such, the Joneses’ motion was, in essence, a motion to reconsider the confirmation of sale,
and the denial of that motion was interlocutory. The trial court’s denial of the Joneses’
motion to vacate the confirmation of sale was not a final appealable order, and we lack
jurisdiction to address it. Accordingly, the Joneses’ appeal of the trial court’s denial of their
motion to vacate the confirmation of sale is dismissed for lack of a final appealable order.
{¶ 9} As for the Joneses’ appeal from the trial court’s denial of their motion to
vacate the writs of restitution, we conclude that this issue is moot.
{¶ 10} “A forcible entry and detainer action decides the right to immediate
possession of property and ‘nothing else.’” Goldstein v. Patel, Lorain App. Nos.
5
02CA8183, 02CA8199, 2003-Ohio-4386, ¶4, quoting Seventh Urban Inc. v. Univ. Circle
Prop. Dev. Inc. (1981), 67 Ohio St.2d 19, 25, n.11. “[O]nce the tenant has vacated the
premises and the landlord has again taken possession, the merits of such action are rendered
moot because no further type of relief can be granted in favor of the landlord.” Fast Prop.
Solutions, Inc. v. Jurczenko, Lake App. No. 2010-L-024, 2010-Ohio-5933, ¶3.
{¶ 11} “It is well settled that we may take judicial notice of post-appeal matters to
resolve questions of mootness. Townsend v. Antioch Univ., Greene App. No. 2008 CA 103,
2009-Ohio-2552, ¶8; see, also, Hagerman v. City of Dayton (1947), 147 Ohio St. 313,
paragraph one of the syllabus (‘When it has been brought to the attention of an appellate
court that pending the appeal an event has occurred which renders moot one of the questions
in the case pending before it, such appellate court need proceed no further with that part of
the case which has become moot.’). To address an issue of mootness, an appellate court,
acting sua sponte, ‘may take judicial notice of facts generally known within its territorial
jurisdiction or facts capable of accurate and ready determination by resort to sources whose
accuracy reasonably cannot be questioned.’ Townsend at ¶8.” Ussher v. Ussher,
Champaign App. No. 2009-CA-49, 2011-Ohio-1440, ¶7, fn.3. According to the trial
court’s docket, on August 5, 2010, the Joneses moved for a stay of the writ of restitution
pending appeal of the denial of their motion to vacate. On August 11, 2010, the trial court
granted the Joneses a temporary stay until August 17, 2010, indicating that it would “grant a
stay pending appeal ONLY if the Jones[es] post a bond with the Clerk of Courts in the
amount of $18,000.00 on or before August 17, 2010.” (Capitals in original.) The trial court
noted that the Joneses had not made any payments on the property for more than one year,
6
and their affidavit of indigency had indicated that they had been unemployed since January
2010. The court concluded: “If Edward or Jewell Jones does not post the $18,000.00 bond
with the Clerk by August 17, 2010, the Court instructs the Montgomery County Sheriff’s
Office to forcibly remove them and their belongings beginning 8:00 a.m. Wednesday,
August 18, 2010. No extensions will be granted.”
{¶ 12} No bond was posted. On August 19, 2010, a return of writ was filed in the
trial court. It therefore appears that the Joneses have vacated the property. Because the
Joneses failed to obtain a stay of execution and were ejected pursuant to a writ of restitution,
we find that their appeal from the writs of restitution is moot. See, e.g., Valente v. Johnson,
Athens App. Nos. 06CA31, 06CA38, 2007-Ohio-2664 (finding appeal of forcible entry and
detainer action moot where appellant failed to post the required bond to obtain a stay of the
writ of restitution and was ousted from the premises).
III
{¶ 13} The Joneses’ appeal from the denial of their motion to vacate the sale of the
Porterfield property will be dismissed for lack of a final appealable order.
{¶ 14} The Joneses’ appeal from the denial of their motion to vacate the writs of
restitution will be dismissed as moot.
..........
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Jeffrey S. Routh
Edward and Jewell Jones
Hon. Barbara P. Gorman, Administrative Judge
(trial judge - Hon. Michael T. Hall)
7 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/835571/ | 137 P.3d 1282 (2006)
341 Or. 128
SCHNITZER INVESTMENT CORP., Petitioner on Review,
v.
CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON and Certain London Market Insurance Companies, The Insurance Company of the State of Pennsylvania, Transportation Insurance Company; Continental Casualty Company; Insurance Company of North America; and Phoenix Insurance Company, Respondents on Review.
(CC 9902-02004; CA A116662; SC S52422).
Supreme Court of Oregon, En Banc.
Argued and Submitted March 10, 2006.
Decided June 30, 2006.
*1283 Charles F. Hinkle, Stoel Rives, LLP, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief was Joan P. Snyder.
I. Franklin Hunsaker, Portland, argued the cause and filed the briefs for respondent on review Certain Underwriters at Lloyd's of London and Certain London Market Insurance Company. With him on the briefs were Paul J. Killion and Bruce J. Rome, Duane Morris LLP, San Francisco.
Peter J. Mintzer, Cozen O'Connor, Seattle, filed the response and brief for respondent on review The Insurance Company of the State of Pennsylvania. With him on the brief were Thomas M. Jones and Helen A. Boyer.
David E. Prange, Abbott & Prange, PC, Portland, filed the response and brief for respondents on review Transportation Insurance Company and Continental Casualty Company. With him on the brief was Nicholas A. Nardi.
Peter R. Chamberlain, Bodyfelt, Mount, Stroup & Chamberlain, Portland, filed the response for respondent on review Insurance Company of North America. With him on the response was R. Lind Stapley, Soha & Lang, P.S., Seattle.
Timothy R. Volpert, Davis Wright Tremaine, LLP, Portland, filed the response for respondent on review The Phoenix Insurance Company. With him on the response was Everett W. Jack, Jr.
William H. Walters, Miller Nash, LLP, Portland, filed the brief for amici curiae Northwest Natural Gas Company, ZRZ Realty Company, Zidell Remediation Funding Trust, Zidell Marine Corporation, and Tube Forgings of America, Inc. With him on the brief was Gayle Patterson, attorney for Northwest Natural Gas Company.
KISTLER, J.
Plaintiff owns property in Portland near the Willamette River. After the Oregon Department of Environmental Quality (DEQ) ordered plaintiff to clean up environmental contamination on its property, plaintiff brought this action seeking, among other things, indemnification from defendants for the costs that it had incurred in complying with DEQ's orders. The trial court granted defendants' summary judgment motion and entered judgment in their favor. Although the Court of Appeals disagreed with some aspects of the trial court's judgment, it upheld the trial court's ruling that defendants had no duty, under the terms of certain insurance policies that they had issued, to indemnify plaintiff. Schnitzer Investment Corp. v. Certain Underwriters, 197 Or.App. 147, 104 P.3d 1162 (2005). We allowed plaintiff's petition for review to consider that issue and now affirm the Court of Appeals decision.
Plaintiff's property is environmentally contaminated as a result of industrial and chemical *1284 manufacturing. Most of the contaminants are in the soil, but the groundwater also contains some contamination above background levels.[1] Beginning in 1988, plaintiff and DEQ started investigating the extent of the contamination and the appropriate means to remedy it.
After notice, DEQ included plaintiff's property on a list of sites that needed further investigation or cleanup. DEQ divided the property into three parts, Units A, B, and C. In 1993 and 1995, DEQ issued Records of Decision directing plaintiff to remedy environmental contamination on Units A and C. DEQ determined that no remedial measures were necessary for Unit B.
Over the years, defendants have issued various comprehensive general liability policies to plaintiff. Some of those polices provided primary coverage; others were excess or umbrella policies. All the policies, however, contain essentially the same provision, which gives rise to this litigation. Defendants agreed to pay all sums "which the insured shall become legally obligated to pay as damages because of * * * property damage." The policies defined "property damage" as:
"(1) physical injury to or destruction of tangible property which occurs during the policy period including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period[.]"[2]
Finally, the policies contained a number of exclusions from coverage, including an exclusion for property damage to "property owned or occupied by or rented to the insured[.]"
The terms of defendants' policies frame the issue in this case. Under the terms of those policies, defendants had no duty to indemnify plaintiff for the costs that it incurred because of contamination to its own property. That much follows from the "owned property" exclusion. Groundwater, however, is the property of the state. See ORS 537.110 (recognizing state ownership of water). Defendants do have a duty to indemnify plaintiff for the costs that plaintiff became "legally obligated to pay because of property damage" to the groundwater.
It follows from the terms of defendants' policies that this case presents two issues. The first issue is whether there was "property damage" to the groundwater i.e., whether physical damage (environmental contamination) had occurred to the groundwater during the policy period. The second issue is whether plaintiff was legally obligated to incur clean-up costs because of existing contamination to the groundwater. If it were, then defendants' policies required them to indemnify plaintiff for those costs.
On the first issue, defendants do not dispute, for the purposes of summary judgment, that the environmental contaminants on plaintiff's property resulted in some contamination, above background levels, to the groundwater during the policy period; that is, defendants assume that some "property damage" occurred to the groundwater during the policy period. The issue that this case turns on is the second onewhether plaintiff was "legally obligated" to incur certain costs because of property damage to the groundwater. On that issue, the 1993 and 1995 Records of Decision that DEQ issued define the scope of plaintiff's legal obligation.
Unless an ambiguity exists, we determine the meaning of those Records of Decisions as a matter of law, based on those decisions only and without reference to extrinsic evidence. See State v. Swain/Goldsmith, 267 Or. 527, 530, 517 P.2d 684 (1974) (signed order, rather than judge's statements, controls). If the decision is ambiguous, we may look to the record before DEQ to help determine the decision's meaning. *1285 See Bennett v. Bennett, 208 Or. 524, 529, 302 P.2d 1019 (1956) (stating proposition). We begin with the terms of the 1995 Record of Decision directing plaintiff to remedy the contamination to Unit A of its property.[3]
The 1995 Record of Decision sets out the following findings. Unit A is approximately 3.4 acres. Except for the northeast corner, Unit A lies approximately 200 feet from the Willamette River and is not subject to seasonal flooding. Previous owners of that part of the property had manufactured pesticides and agricultural chemicals on it. They also had used it for a plate and structural steel warehouse.
As a result of those activities, the soil in Unit A contained various metals, organic chemicals, and pesticides that exceeded background levels. The metals, semi-volatile organic chemicals, and pesticides were concentrated in specific locations or "hot spots" around the property (primarily around the former pesticide plant and what had been a surface impoundment pond). Concentrations of volatile organic chemicals were "relatively low" but were not restricted "to a particular subsurface unit or location within Unit A."
In assessing the degree to which those pollutants were subject to migration, DEQ found that the "organic contaminants present, particularly the chlorinated pesticides and [carcinogenic polycyclic aromatic hydrocarbon] compounds[,] generally have low solubilities in water and absorb to soil." Consistently with that finding, DEQ determined that "[l]eaching of contaminants from the soil into the dissolved phase via infiltrating precipitation is not a significant contaminant transport mechanism * * *."
DEQ also determined that "[r]elatively low metals concentrations (both total and dissolved) were found in groundwater samples." None of the dissolved metal concentrations exceeded current federal maximum contaminant levels for safe drinking water. The same conclusion was true for volatile organic compounds. DEQ found low concentrations of those compounds and one chlorinated herbicide, all of which were below the current maximum contaminant levels. Finally, DEQ noted that concentrations of hydrogen sulfide gas exceeding 10 parts per million were measured at two well heads but that the "concentrations of sulfur species in groundwater have not been quantified."
Based on those findings, DEQ found that "Unit A poses no significant risk of adverse impact on the environment" i.e., DEQ did not find a significant risk of adverse impact on the groundwater. Rather, DEQ found that the environmental contamination posed risks to human health; specifically, it found that the risk to human health derived from "long-term direct contact with near-surface soil" to which the contaminants had bound. DEQ observed that "[t]he routes of exposure included soil ingestion, dermal contact, and inhalation of particulates." Applying certain risk factors, DEQ concluded that "Unit A soils pose a potential chronic risk from surficial contamination for children under an uncontrolled residential site usage scenario because of possible ingestion, inhalation and dermal absorption of soil contaminants."[4] It also found that certain levels of carcinogenic risk may occur from "surficial exposure to pesticides and [carcinogenic polycyclic aromatic hydrocarbon compounds] * * * resulting from ingestion, dermal contact, and inhalation of soil."
Finally, DEQ noted that it had not considered whether hydrogen sulfide was migrating to the surface by way of the groundwater. It found that "[g]roundwater monitoring will be conducted as part of the selected remedy to evaluate the potential presence of hydrogen sulfide or other sulfur species."
In directing plaintiff to remedy the environmental contamination on Unit A, DEQ sought to determine the most cost-effective remedy in light of the magnitude of the risks *1286 that the contaminants on Unit A posed. After considering several possible remedies, DEQ directed plaintiff (1) to excavate the top four feet of any soil that contains specified levels of six chemical compounds; (2) to remove certain sludge, crushed drums, and an underground storage tank; (3) to use a soil cap[5] to prevent direct exposure to any residually contaminated soil and to prevent erosion and runoff of contaminated soil; and (4) to monitor hydrogen sulfide gas to ensure that "the objectives of long term [hydrogen sulfide] gas management are maintained." Finally, DEQ required plaintiff to monitor the groundwater for at least five years. DEQ suggested that, "[i]f groundwater quality has not been degraded [during that period]," no additional monitoring would be necessary.
In explaining why the remedial measures that it selected would protect human health and the environment, DEQ reasoned that excavation and removal of the soil "will significantly reduce the threat of exposure from ingestion, dermal contact, and inhalation of contaminants adhered to soil particulates." It also explained that
"[c]apping will significantly reduce the potential for reasonable exposures to contaminated soil by eliminating direct exposure pathways, preventing erosion and runoff, and limiting infiltrations of water, thereby reducing the potential of contaminants to leach to groundwater."
Having considered the terms of the 1995 Record of Decision, we agree with both the trial court and the Court of Appeals that DEQ's decision did not require plaintiff to clean up existing contamination in the groundwater; DEQ found that the contamination on plaintiff's property did not pose a significant adverse risk to the environment. Rather, the decision required plaintiff to remove and cap the soil to prevent the health risks resulting from contact with environmental contamination in the soilingestion, inhalation, and dermal contact with the soil. That conclusion follows both from the specific risks that DEQ identified and from the measures that it required plaintiff to take to remedy those risks.
Plaintiff argues, however, that removing and capping the soil will benefit the groundwater. It points to DEQ's statement that capping the soil will "reduc[e] the potential of contaminants to leach [into the] groundwater" and also DEQ's requirement to monitor the groundwater to ensure that the groundwater quality does not worsen. The difficulty with plaintiff's argument is that, at most, those remarks reflect a concern about future harm to groundwater. As the Court of Appeals correctly recognized, however, the terms of defendants' policies require defendants to indemnify plaintiff only if DEQ's Records of Decision legally obligated plaintiff to remedy "property damage" to the groundwater, and defendants' policies define "property damage" as an injury that occurs during the policy period, not an injury that may occur in the future. Under the terms of the policies, defendants had no obligation to indemnify plaintiff for the costs that it incurred in complying with DEQ's orders.
On review, plaintiff advances essentially three contrary arguments. The first two are factual. Plaintiff notes that, when DEQ initially proposed listing plaintiff's property, and also at other points during the investigative stage, it directed plaintiff to determine whether it was necessary to clean up existing contamination to the groundwater. Plaintiff reasons from that premise that DEQ's final order required it to clean up existing contamination to the groundwater. In investigating that issue, however, plaintiff's consultant, CH2M Hill, found that the groundwater contained low levels of volatile organic compounds, no semi-volatile compounds, and a trace amount of a herbicide. A later investigation revealed that none of those contaminants exceeded maximum contaminant levels. The fact that DEQ required plaintiff to investigate whether plaintiff needed to remedy existing groundwater contamination does not mean that DEQ later directed plaintiff to do so.
Plaintiff's other factual argument is based on an affidavit that the DEQ project manager, *1287 Gilles, provided plaintiff as part of this litigation. In that affidavit, Gilles explained that DEQ had ordered plaintiff to remove and cap the soil to prevent environmental contaminants from leaching into the groundwater. Not only does the affidavit focus on future harm to the groundwater, but plaintiff's reliance on Gilles's affidavit suffers from a more fundamental problem. The relevant document to determine whether DEQ required plaintiff to clean up the contamination on its property because of existing contamination to the groundwater is the DEQ decision and, if that decision is ambiguous, the record leading up to it. See Swain/Goldsmith, 267 Or. at 530, 517 P.2d 684; Bennett, 208 Or. at 529, 302 P.2d 1019 (stating those propositions). Gilles's post-hoc explanation of what DEQ's decision meant is no more relevant to that determination than a legislator's subsequent statement concerning the meaning of a law. Cf. DeFazio v. WPPSS, 296 Or. 550, 561, 679 P.2d 1316 (1984) (later legislature's understanding not relevant to meaning of earlier enacted law).
Indeed, Gilles executed an earlier affidavit for one of defendants that is at odds with the affidavit that he executed for plaintiff.[6] The conflict between those two after-the-fact explanations illustrates why neither affidavit provides a reliable basis for understanding what DEQ required in its 1993 and 1995 Records of Decision. Rather, the terms of those decisions control.
Plaintiff's third argument is a legal one. Plaintiff relies on dictum in Wyoming Sawmills v. Transportation Ins. Co., 282 Or. 401, 407, 578 P.2d 1253 (1978), to argue that defendants' policies provide coverage. The dictum in that case assumed that the insured was legally obligated to incur costs because of property damage to a third person's property. Id. Given that assumption, this court suggested (but did not hold) that the insurer would have a duty to indemnify the insured both for the cost of repairing the damage to the third person's property and also for the cost of replacing the insured's property, which the policy otherwise would not have covered. Id. The assumption that underlies the dictum in Wyoming Sawmills is absent here. As we have explained, DEQ's records of decision did not "legally obligat[e]" plaintiff to clean up property damage to the groundwater. Accordingly, this case does not require us to decide whether we would follow the dictum in Wyoming Sawmills.
Plaintiff also cites cases from other jurisdictions in which an insured was legally obligated, as a result of pollution emanating from the insured's property, to remedy environmental contamination to a third person's property. See, e.g., Bankers Trust Co. v. Hartford Acc. & Indem., 518 F.Supp. 371, vacated on other grounds, 621 F.Supp. 685 (S.D.N.Y.1981). In those cases, the courts required the insurer, despite the owned-property exclusion, to pay both for the cost of cleaning up the third person's property and for at least some part of the cost of cleaning up the source of the pollution on the insured's property. Id. Plaintiff's reliance on those cases suffers from the same problem that its reliance on Wyoming Sawmills does. The premise underlying all those casesthat the insured was legally obligated to clean up existing contamination to a third person's propertyis absent here.[7] We agree with *1288 both the trial court and the Court of Appeals that defendants had no obligation under the terms of their policies to indemnify plaintiff for the costs of complying with DEQ's 1993 and 1995 Records of Decision.
Plaintiff advances a second, separate argument. It contends that, because the Court of Appeals held that defendants have a duty to pay plaintiff's defense costs, the Court of Appeals should have addressed an issue concerning certain "lost policies"policies that plaintiff claims existed but that neither plaintiff nor defendants can find. Defendants respond that the question of which defendant pays plaintiff's defense costs presents only a question of contribution among defendants and is of no concern to plaintiff. Without some showing that the existing policies are insufficient to cover plaintiff's defense costs, a showing that plaintiff has not made, we agree with defendants that the issue is one for only them to raise. Because they did not do so, there was no need for the Court of Appeals to address that issue. The Court of Appeals correctly resolved the two issues that plaintiff pursues on review.
The decision of the Court of Appeals is affirmed.
NOTES
[1] Because the chemical components of soil and groundwater vary, DEQ first determines the level of chemicals that occur naturally in the soil or groundwater (the background levels) and then measures whether chemicals or other contaminants exceed those background levels.
[2] The policies define "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in * * * property damage neither expected nor intended from the standpoint of the insured."
[3] That decision is more favorable to plaintiff than the 1993 Record of Decision regarding Unit C. If, as the Court of Appeals held, the 1995 Record of Decision does not require defendants to indemnify plaintiff, then neither does the 1993 Record of Decision.
[4] When DEQ issued its 1995 Record of Decision, plaintiff's property was unoccupied. Plaintiff, however, intended to develop it, and DEQ determined the risk of contamination to both persons and the environment based on plaintiff's intended use of the property.
[5] DEQ recognized that plaintiff proposed to develop the property. The proposed structures and parking lots would result in an "asphalt cap" over some residually contaminated soil.
[6] In the affidavit that he filed for one of defendants, Gilles averred:
"As project manager, I did not consider groundwater to be contaminated by hazardous substances at levels posing significant risk to human health or the environment. The risk assessments completed for Units A and C eliminated the groundwater pathway as one of potential concern. If the DEQ ever had significant concern for groundwater, we would have required cleanup alternatives for groundwater to be developed in the Feasibility Study. The removal of soil contamination at Units A and C, site grading, placement of a soil cap on the Site, and installation of a diversion and collection system were designed to clean up soil contamination and to minimize direct exposure of contaminants to humans."
[7] Plaintiff also cites a few cases that have required insurers, on the basis of public policy rather than the terms of the insurance policy, to pay the cost of cleaning up environmental contamination on the insured's property to prevent the imminent contamination of neighboring properties. That is so even though no contamination of the neighboring properties had occurred. To the extent that plaintiff relies on those cases, they are inconsistent with the definition of "property damage" in defendants' policies. That definition requires, at a minimum, existing damage to a third person's property and defines the obligation that defendants owe plaintiff. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/25071/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20237
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO GUZMAN-JIMENEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-568-1
--------------------
August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Rogelio Guzman-Jimenez (“Guzman”) appeals his conviction and
the 96-month sentence imposed following his plea of guilty to a
charge of being found in the United States after deportation, a
violation of 8 U.S.C. § 1326. Guzman contends that the felony
conviction that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
charged in the indictment. Guzman acknowledges that his argument
is foreclosed by the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998), but he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-20237
-2-
seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Guzman’s
argument is foreclosed.
Guzman next challenges his indictment because it did not
allege general intent as an element of the offense. We review
Guzman’s indictment under a de novo standard of review. See
United States v. Berrios-Centeno, 250 F.3d 294, 296 (5th Cir.
2001). Section 1326, 18 U.S.C., is a general intent offense.
United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th Cir.
2000), cert. denied, 121 S. Ct. 2600 (2001). General intent to
re-enter the United States “may be inferred by the fact that a
defendant was previously deported and subsequently found in the
United States without consent.” Berrios-Centeno, 250 F.3d at 299
(citations, internal quotations, footnotes, and ellipsis
omitted).
Guzman’s indictment sufficiently alleged the general intent
mens rea required of 18 U.S.C. § 1326 offenses because the
indictment alleged that he was deported, removed, and
subsequently present without consent of the Attorney General.
See Berrios-Centeno, 250 F.3d at 299-300. The judgment of the
district court is AFFIRMED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/25091/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21043
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO GALVAN-AGUILAR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-337-ALL
--------------------
August 15, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Fernando Galvan-Aguilar was convicted of illegal reentry
into the United States following deportation in violation of 8
U.S.C. § 1326. Galvan appeals his conviction and sentence on
several grounds.
Galvan challenges a sixteen-level increase to his base
offense level pursuant to U.S.S.G. § 2L1.2. Galvan’s argument
that mere possession of cocaine does not qualify as an
“aggravated felony” for purposes of § 2L1.2 is foreclosed by our
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-21043
-2-
decision in United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997).
Galvan acknowledges that his appellate argument is at least
partially foreclosed by Hinojosa-Lopez but argues that a
determination that he committed a drug-trafficking offense when
he merely possessed cocaine violates the rule of lenity. “The
rule of lenity . . . applies only when, after consulting
traditional canons of statutory construction, [a court is] left
with an ambiguous statute.” United States v. Shabani, 513 U.S.
10, 17 (1994) (emphasis added). The term “aggravated felony” was
not so ambiguous as to require an application of the rule of
lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.
Galvan’s due process argument also is unconvincing. Galvan
is challenging a sentencing guideline, not a criminal statute.
“Due process does not mandate . . . notice, advice, or a probable
prediction of where, within the statutory range, the guideline
sentence will fall.” United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1990).
Galvan also challenges the district court’s denial of his
motion to suppress a 1998 removal order. He contends that the
expedited removal under 8 U.S.C. § 1228(b) was obtained in
violation of his due process rights. “In order successfully to
collaterally attack a deportation order in a § 1326 prosecution,
the alien must show the 1) the hearing was fundamentally unfair,
2) that the hearing effectively eliminated the right of the alien
to challenge the hearing by means of judicial review of the
deportation, and 3) the procedural deficiencies caused him actual
No. 00-21043
-3-
prejudice.” United States v. Benitez-Villafuerte, 186 F.3d 651,
658 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000).
Because Galvan was an alien who was also an aggravated felon, it
cannot be said that his “removal through expedited administrative
proceedings constitutes a denial of justice or was otherwise
unfair.” United States v. Hernandez-Avalos, 251 F.3d 505, 508
(internal quotation omitted). Accordingly this challenge must
fail. Benitez-Villafuerte, 186 F.3d at 658.
Finally, Galvan contends that the felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)
was an element of the offense that should have been charged in
the indictment. Galvan acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 46 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 488; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Galvan’s
argument is foreclosed.
Galvan’s conviction and sentence are AFFIRMED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2787681/ | PEL‘M}
MARQE E9, 2%} S
in the Office of the Cierk ot‘€oart
WA State Court of Appeais, Division til.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
YVONNE AK. JOHNSON, ) No. 318374-111
Appellant, %
V. 3 PUBLISHED OPINION
J AMES P. RYAN, %
Respondent. 3
LAWRENCE-BERREY, J. —— James Ryan engaged in vitriolic Internet blogging
against Yvonne Johnson. Johnson sued Ryan for defamation and tortious interference
with business expectancy. Ryan defended the suit, in part, by asserting the anti-SLAP?
statute.’ As permitted by that statute, Ryan filed a prediscovery motion to strike. He
argued that Johnson’s claims should be dismissed because his speech was protected
speech in that his attacks against Johnson were matters of public concern. The trial court
agreed and dismissed Johnson’s claims. We hold that Ryan’s blogging was primarily for
personal concern, not public concern, and reverse the dismissal of Johnson’s claims.
1 Strategic Lawsuit Against Public Participation. RCW 4.24.510.
No. 318374-111
Johnson v. Ryan
FACTS
As discussed later, we accept the facts and all reasonable inferences in the light
most favorable to Yvonne Johnson, the party resisting the motion to strike.
The Spokane Civic Theatre (the Theatre) is a not-«fonprofit, performing arts theatre
iocated in Spokane. The Theatre is a private foundation receiving support from private
donors and operating with an endowment. On a donation web page, the Theatre notes:
Revenue from programming covers only 50 percent of our operating costs.
We depend on the support and commitment of our community to make up
the essential difference.
Clerk’s Papers (CF) at 29.
In 2005. the Theatre hired plaintiff Yvonne Johnson as its executive artistic
director. Johnson is a highly acclaimed theatre veteran who was selected from scores of
applicants. At the time of her hiring, the Theatre was on the cusp of financial ruin. By
2010, despite the economic recession, Johnson had doubled revenue for the Theatre. This
economic feat was accomplished through a significant increase in ticket sales, expansion
of the Theatre’s training camp for chiidren, and numerous fundraising endeavors.
Johnson’s financial acumen and ingenuity allowed the Theatre to expand its full-time
staff by several positions, including a full-time music director.
On August 19, 2010, Johnson hired defendant James Ryan as full-time music
No. 31837-l-III
Johnson 12. Ryan
“PUBLIC PARTICIPATION” UNDER ANTI-SLAP]? STATUTE
RCW 4.24.525(2) identifies the communications protected by the statute.
Subsections (a) through (c) involve communications to government. Subsections (d)
and (e) involve speech in other contexts. RCW 4.24.525 reads, in relevant part:
(2) This section applies to any claim, however characterized, that is
based on an action involving public participation and petition. As used in
this section, an “action involving public participation and petition” includes:
(d) Any oral statement made, or written statement or other document
submitted, in a place open to the public or a public forum in connection
with an issue of public concern; or
(e) Any other lawful conduct in furtherance of the exercise of the
constitutional right of free speech in connection with an issue of public
concern.
(Emphasis added). Because this case concerns “written statements” instead of
“other anful conduct,” our review of the lower court’s dismissal is iimited to
RCW 4.24.525(2)(d). We, therefore, next examine the “public forum” and “public
concern” requirements of RCW 4.24.525(2)(d).
Pubiic Forum. Courts have readiiy found that the Internet is a public forum.
ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 113 Cai. Rptr. 2d 625 (200i).
Hatch v. Superior Court, 80 Cai. App. 4th 170, 201, 94 Cal. Rptr. 2d 453 (2000) noted
that Internet communications are “classicai forum communications.”
11.
No. 31837-1411
Johnson v. Ryan
Public Concern. Because the California anti—SLAP? statute serves as a model for
the Washington Act, some authorities have applied the borrowed statute rule to interpret
the Washington Act. SeeAlosko Structures, Inc. v. Headland, 180 Wash. App. 591, 599, 323
P.3d 1082 (2014); Fielder v. Sterling Par/c Homeowners Ass’n, 914 F. Supp. 2d 1222,
1231 11.4 (WI). Wa. 2012); Aronson v. Dog Eat Dog Films, Inc, 738 F. Supp. 2d 1104,
1110 (WI). Wa. 2010). “Under the borrowed statute rule, courts find that when the
legislature borrows a statute from another jurisdiction, it itnpltcitiy adopts that
jurisdiction’s judicial interpretations of the statute.” Wyrwich, supra, at 690. However,
Caiifornia’s statute uses the phrase, “public interest,” whereas Washington’s statute uses
‘ the phrase, “public concern.” “‘[there the legislature modifies or ignores a provision of
the borrowed statute, it implicitly rejects that provision and its corresponding case law.”
Id. “The Washington State Supreme Court has found that when the legislature deviates
from a model act, it is “bound to conclude” that the deviation ‘was purposefui’ and
evidenced an intent to reject those aspects ofthe model act.” Id. (citing State 12. Jackson,
137 Wash. 2d 712, 723, 976 P.2d 1229 (1999)). We also note that both Washington and
federal authorities have defined “public concern” in the context of defamation law.
Accordingly, when determining whether speech or conduct is of “public concern,”
Washington courts should focus on well—developed Washington and federal decisional
12
No. 31837-1-111
Johnson v. Ryan
law rather than California decisions.2
Speech is of public concern when it can “ ‘ be fairiy considered as relating to any
matter of political, sociai, or other concern to the community.” ” Davis, 180 Wn. App. at
531 (quoting Snyder 12. Phelps, 562 US. 443, 1.31 S. Ct. 1207, 1216, 179 L. Ed. 2d 172
(2011)). For purposes of analyzing federal authorities, Alaska Structures quotes
Weinberg i2. Fet‘sel, 110 Cal. App. 4th 1122, 1132, 2 Ca1.Rptr 3d 385 (2003):
First, “public interest” does not equate with mere curiosity. (Time,
Inc. v. Firestone, [424 US. 448, 454-55, 96 S. Ct. 958, 47 L. Ed. 2d
154 (1976)]; Briscoe v. Reader 19 Digest Association Inc, (1971) 4
Ca1.3d 529, 537 [93 Cal.Rptr. 866, 483 P.2d 34].) Second, a matter
ofpublic interest should be something of concern to a substantial
number of people. (Dun & Bradstreet v. Greenmoss Builders, [472
US. 749, 762, 105 S. Ct. 2939, 86 L. Ed .2d 593 (1985)].) Thus, a
matter of concern to the speaker and a relatively smalt, specific
audience is not a matter of public interest. (tau; Hutchinson v.
Proxmz‘re (1979) 443 US. 111, 135 [61 L.Ed.2d 41}, 431, 99 S.Ct.
2675].) Third, there should be some degree of closeness between the
challenged statements and the asserted public interest. (Connie/c v.
Myers(1983) 461 US. 138, l48~149 [75 L.Ed.2d 708, 720421., .103
S.Ct. 1684]); the assertion of a broad and amorphous public interest
is not sufficient. (Hutchinson v. Proxmire, supra, 443 US. at p. 135
[61 L.Ed.2d at p. 431]). Fourth, the focus of the speaker’s conduct
shouid be the public interest rather than a mere effort “to gather
2 In a very recent decision interpreting RCW 4.24.525, our Supreme Court stated
that the Washington and California statutes had similarities but also “significant
differences,” the legislative purpose of the Washington and Catifornia statutes is
different, and “[o]ur legislature thus phrased its findings more narrowly than
Catifornia’s.” Henne v. City ona/u'mu, 341 P.3d 284, 289 (2015).
13
No. 31837—1—Hl
Johnson v. Ryan
53
ammunition for another round of [private] controversy . . . .
(Connick v. Myers, supra, 46} U.S. at p. 148 [75 L.Ed.2d at p. 72lj.)
Finally, “those charged with defamation cannot, by their own
conduct, create their own defense by making the claimant a public
figure.” (Hutchinson v. Proxmire, supra, 443 US. at p. £35 [61
L.Ed.2d at p. 431].)
Alaska Structures, lSO Wn. App. at 602—03.
Our own courts have discussed the meaning of “public concern” in the context of
free speech rights. in White v. State, l31 Wn.2d l, 929 P.2d 396 (1997), the court held
that the challenged speech was a matter of public concern. There, Judy White was a
secretary/ clerk typist at a state-run nursing home. Id. at 4-5. After being so employed for
several years, the nursing home hired Evelyn Blanchard to be the director of nursing
services. Id. at 5. The working relationship was often strained between White and
Blanchard. In 1988, a resident of the home became very disruptive and behaved in a way
that might harm himself and others. Id. Eventually, Blanchard directed that the resident
be placed in a restraint jacket. Id. The jacket was in place for a couple hours until the
home’s medical director refused to sign an order permitting its use. Ultimately, White
fried an incident report alleging that Blanchard committed patient abuse in authorizing the
use of the jacket. Id. at 6; After an outside investigation, the allegation was dismissed.
Soon after, White was transferred to a different facility. Unbeknownst to her, the transfer
had been contemplated months before the incident report. White sued for wrongful
i4
No. 31837~1~Hl
Johnson v. Ryan
transfer. The trial court granted the home’s summary judgment motion. On appeal, our
high court affirmed the dismissal on causation grounds. Prior to reaching causation,
however, the court held:
Whether an employee’s speech addresses a matter of public concern
is determined by the content, form and context of the statement, as revealed
by the whole record. Connick, 461 US. at 14748. Content is the most
important factor.
The content of White’s speechmsuspected abuse of a nursing home
patientminvoives an issue of public concern. The public concern over
proper care of vulnerable nursing home patients is reflected in RCW
70.124, a statute which requires nursing home employees to report alleged
abuse or mistreatment of nursing home patients. The fact that an
investigation finds the report of suspected abuse to be without merit does
not affect the importance of the content to the public,
The record shows that White and Blanchard did not get along and
that White criticized Blanchard on a number of occasions. . . . The fact that
White may have had a personal interest in reporting the incident does not
diminish the concern the public would have in this matter.
Id. at i l—i3 (citations omitted).
in Alpine Industries Computers, Inc. v. Cowles Publishing Co, 1 14 Wash. App. 371,
57 P.3d l 1.78 (2002), this court held that the challenged speech was a matter of public
concern. There, a reporter for the SpokesnraitwReview wrote a story about a recent federai
court decision favoring Microsoft over a local company, Alpine industries Computers,
inc. The facts from the story came from the federal. court file and primarily was based
upon the judge’s memorandum opinion. Id. at 376. The gist of the story was that
15
No. 31837-1411
Johnson 12. Ryan
Microsoft obtained a large judgment against Alpine for selling pirated software and that
Alpine°s owner had acknowledged that he had wrongfully sold counterfeit software. Id.
at 374-75. The company brought suit against the newspaper’s owner for defamation. In
determining whether the story was of “public concern,” we wrote:
Whether an allegedly defamatory statement pertains to a matter of
pubtic concern depends on the content, form, and context of the statement
as shown by the entire record. Dan (it Bradstreet, 472 U.S. at 761. Here,
the challenged story reiates to a court decision resolving an intellectual
property dispute between a major software manufacturer and a locai retailer.
Viewed narrowly, the story pertains to a private dispute between two
business entities. In a broader context, however, the dispute touches on a
matter of public importance, software piracy. The pubiic concern is
heightened by the fact that Alpine apparently sold counterfeit software to
the general consumer. In an age where the use of personal computers is
widespread, the retail distribution of pirated software is a matter of acute
importance to general consumers. This is a matter where the First
Amendment piays a role in ensuring the free flOW of information to the
public. Accordingly, the Dan & Bradstreet factors indicate the Aipine case
was a matter of pubiic concern deserving of heightened protection.
1d. at 39394 (citation omitted). Other cases where we held that the challenged speech
involved a matter of public concern include Davis, 180 Wn. App. at 530 (Because
nonviolent boycotts are protected by the First Amendment, because the boycott was a
form of protest of Americas role in resolving the Middie East conflict, and because the
plaintiff sought the remedy of injunctive relief, the speech was protected under
RCW 4.24.525); and Sprain v. Taft, 180 Wash. App. 620, 632, 324 P.3d 707 (2014) (Former
l6
No. 31837-l-lil
Johnson v. Ryan
supervisor’s alleged defamatory statements against coworker were public concern
because the statements, made in connection with his political campaign, could fairly be
considered as relating to a matter of political, social, or other concern to the community).
In contrast, in Tyner v. Department of Social and Health Services (DSHS), I37
Wn. App. 545, i54 P.3d 920 (2007), we held that the challenged speech did not involve a
matter of public concern. There, Paula Tyner was an administrator for a DSHS facility
that cared for adults with developmental disabilities. Id. at 552. In the course of her
employment, Tyner investigated an employee’s sexual harassment complaint. Id. at 552»
53. Later, human resources directed that the complaint be investigated further by a
person a step above Tyner’s rank. Id. at 553. T yner commented that the complaint
should not be forwarded to her supervisor, Jody Piiarski, because Tyner believed Pilarski
would not do a thorough job. Id. Human resources disagreed and assigned the
investigation to Pilarski. Id. During the course of this investigation, Pilarski received
numerous complaints that Tyner had created a hostile work environment. Id. at 553-54.
As a result of these complaints, Tyner was reassigned to region 5 headquarters in
Tacoma. 1d. at 5 54. Due to budget cuts, Tyner’s position was eliminated and she was
given different job duties at a different facility. Tyner sued. in her suit, Tyner claimed
that she was retaliated against for exercising free speech; specifically, her comment that
i7
No. 31837-I-HI
Johnson v. Ryan
her supervisor should not be allowed to investigate the employee complaint. 1d. at 555.
She asserted that her comment addressed a matter of public concern because it involved a
sexual harassment issue. Id. at 5 5 7. in rejecting her argument, we stated:
In determining whether an einpioyee[’s speech is of public concern],
we examine several factors, including the content, form, and centext of the
speech in light of the entire record. Cannz‘ckL 461. U.S. at 147-48]. The
speaker ’s intent is also a factorw‘iw] as the employee acting as an
aggrieved employee, attempting to rectify problems in the employee’s
working environment, or was he or she acting as a concerned citizen
bringing a wrong to light?” Edwards [12. Dep ’t' 0fTransp., 66 Wash. App.
552, 560, 832 P.2d 1332 (1992)].
. . . Tyner’s request that Pilarski not investigate [the sexual
harassment] allegations . . . based on Tyner’s opinion that Pilarski did not
do a thorough job . . . expressed only her personal dissatisfaction.
if Tyner’s comment were construed as a matter of public concern,
any speech even tangentially related to a public issue could satisfy the
public concern requirement for First Amendment protection. This wouid
allow even routine criticism of supervisors, internai office decisions, and
policies to be categorized as matters of public interest, a scenario we
cautioned against in Wilson [12. State, 84 Wash. App. 332, 342, 929 P.2d 448
(1996)].
Id. at 557-59 (emphasis added) (some aiterations in originai).
In. Dillon, we find further support for the proposition that speech that only
tangentially implicates a public issue is not a matter of public concern:
18
No. 318374le
Johnson 12. Ryan
[W]hen the allegations referring to arguably protected activity are
only incidental to a cause of action based essentially on nonprotected
activity, collateral allusions to protected activity should not subject
the cause of action to the anti-SLAPP statute.
Dillon, 179 Wn. App. at 72 (quoting Martinez v. Metabolryia Int’l, Inc, 1 13 Cal. App. 4th
18}, i88, 6 Cal. Rptr. 3d 494 (2003)).
in this case, we must construe all evidence and inferences in the light most
favorable to Johnson, the party resisting the summary dismissal of her defamation ciairn.
In doing so, we must determine whether the content, form, and context of the speech are
primarily of a private or primarily of a public concern. As noted in Tyner, we may also
examine the speaker’s intent or motive. By examining the primary content, form, and.
context, we better achieve the legislative purpose of balancing the rights of both iitigants
so that the expedited summary process weeds out only those defamation claims brought
for the abusive primary purpose of chiiiing valid free public speech. Conversely, were we
to align ourselves with the dissent’s California approach and examine whether the speech
had merely a “connection” to a matter of public concern, we would be ignoring this stated
legislative purpose.
Here, the primary content of Ryan’s speech is a lengthy and tedious chronology of
a private dispute between himself and Johnson, his former boss. The primary intent ot‘the
speech is not some lofty public good, but merely establishing that his employer was
19
No. 31837-l-HI
Johnson v. Ryan
wrong in firing him. The form of the speech is a blog, usefui for conveying either private
or public concerns. The context of the speech arises out of a private empioyment dispute.
Ryan primarily complains about how he was wrongfully terminated, what he has endured
through various agency and court actions, and his desire for “serious money.” The mere
fact that these dominant themes are occasionally interspersed with collateral issues of
protected public speechmwwe.g., the executive director of a theatre that depends on public
participation and donations has a tyrannical management styleeeis not enough. to
transform a private dispute into a matter of public concern. In short, the content and
context of Ryan’s speech is primarily a matter of his own private concern and, therefore,
is not protected public speech under RCW 4.24.525.
ATTORNEY FEES AND COSTS
Johnson seeks an award of reasonabie attorney fees, litigation costs, and. special
damages of$l0,000 under RCW 4.24.525(6)(a). RCW 4.24.525(6)(b) permits such an
award if the court finds that a special motion to strike is frivolous or brought solely to
cause unnecessary delay. Although we disagree with Ryan’s claim of public concern, we
do not find that his motion was frivolous nor do we find it was brought to cause
unnecessary delay. We therefore reject J ohnson’s request.
20
No.31837—1—HI
Johnson v. Ryan
director for the Theatre. Ryan moved with his famin from another state to Spokane. He
understood the job had a three—year term.
Two months after the hiring, Johnson terminated Ryan’s employment at the
direction of the Theatre”s board. Prior to Ryan’s termination, the Theatre received an
anonymous e—mail disclosing the nonmonogamons nature of Ryan’s marriage, as well as
Ryan’s use of graphically nude photographs and texts While engaging in oniine sex
solicitations. The Theatre also discovered that Ryan noted that he was employed by the
Theatre and used his Theatre employee photograph in advertising for sex. According to
Johnson, the Theatre learned that Ryan initiated some of his sexual solicitations white
backstage on Theatre premises.
Johnson wrote a lengthy termination letter to Ryan. in summary, the letter noted
that he was being terminated not because of his swinger lifestyle but because his coupling
of his lifestyle with his employment at the Theatre had the potential for offending parts of
the local community and thus reducing the Theatre’s donations, Mr. Ryan admits that he
posted a discreet listing on Craigslist for sex, although he denies that it included any
information that identified his name or his empioyer. Rather, he contends that aii
identifying information was forwarded to the Theatre by an anonymous e~mailer, who in
turn had received it from someone Mr. Ryan had met through Craigsiist.
No. 3i837-1-IH
Johnson v. Ryan
In conclusion, we reverse the trial court’s order striking Ms. Johnson’s claims. We
reinstate her claims and remand this case for further proceedings consistent with this
opinion.
[Awrfinofi "' )
Lawrence-Berrey, J.
I CONCUR:
%
Siddoway, CJ.
21
No. 318374-111
SIDDOWAY= C.J. (concurring) —-— “[T]he individual’s right to the protection of his
good name ‘refleets no more than our basic concept of the essentiai dignity and worth of
every human being—a concept at the root of any decent system of ordered liberty.’ ”
Gert: 12. Robert Welch, Inc, 418 US. 323, 341, 94 S. Ct. 2997. 41 L. Ed. 2d 789 (1974)
(quoting Rosenblaz‘t v. Boer, 383 U.S. 75, 92, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1.966)
(Stewart, J ., concurring)).
Had James Ryan responded to Yvonne Johnson’s perceived wrongs against him
by throwing a rock through her window or breaking her nose, she would have had a right
to complete redress. instead—if the allegations of her complaint are provedemhe found a
more brutally effective form of retribution: destroying her professional reputation.
Every defamation ease presents an opportunity for us to reaffirm the importance of
free speech to a democratic society. Here, a plaintiff claiming aetuai harm caused by
culpable falsehood has had her complaint dismissed at the inception of her case. It is
incumbent on us to consider the important interests she has at stake as well.
No. 318374411 ~ concurring
Johnson v. Ryan
I agree with most of the majority opinion. I write separately to emphasize two
matters that are important in construing the ZOEO amendments to the anti~SLAPP statute]
The first is that there is nothing in the statute or the legislature’s findings that
evinces a legislative intent to make substantive changes to the law of defamation. When
it comes to defamation claims, the iegislature’s preamble to the 2010 legislation tells us
that its intent was to enable defendants to extricate themselves at the earliest possible
stage from a claim that is doomed from its inception, not to alter a plaintiff’s right to
redress for defamatory falsehoods—ma right that arguably enjoys protection under articie 1,
section 5 of the Washington Constitution.
Second, and more particulariy, construing “public concern” as broadly as
California’s “public interest” standard will change our defamation law in a way that is
inconsistent with the legislature’s intent to “[s]trii376 U.S. 254, 267, 84 S. Ct. 7l0, 11
L. Ed. 2d 686 (1964), once a plaintiff alleged statements constituting “libel per se” that
were of and concerning her, a defendant’s only defense was to prove that his statements
were true. General damages would be presumed. in New York Times, the United States
Supreme Court concluded that applying the common law in favor of a public official
suing for defamation was akin to punishing seditious libel, in violation of the speaker’s
First Amendment rights. it held that a public official could not recover damages for a
defamatory falsehood relating to his official conduct “unless he proves that the statement
was made with “actual malice’~wthat is, with. knowledge that it was false or with reckless
disregard of whether it was false or not.” 376 US. at 279—80. It also required that actual
malice be demonstrated with convincing clarity. Id. at 28 5-86.
In Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964),
which the Supreme Court decided later in 1964, the Court held that even though truth was
not a defense to criminal libel at common law (since a purpose of criminal libel was to
avert the possibility that even a truthfully maligned victim wouid breach the peace), true
No. 3i837~i-1Hm concurring
Johnson v. Ryan
statements could not constitutionaliy be the subject of either civil or criminai sanctions
where “discussion of public affairs” was concerned.
In Curtis Publishing Company v. Butts, 388 U.S. 130, 155, 87 S. Ct. 1975, 18 L.
Ed. 2d 1094 (1967), the Supreme Court extended the actual malice standard to plaintiffs
who were “public figures” under ordinary tort rules. It characterized public figures as
“command[ing] sufficient continuing public interest and . . . sufficient access to the
means of counterargument to be able ‘to expose through discussion the falsehood and
fallacies’ of defamatory statements,” either based on the public figure’s “position alone”
or. by “purposeful activity amounting to a thrusting of [one’s] personality into the ‘vortcx’
of an important public controversy.” Id. at 155 (quoting Whitney v. Cal, 274 US. 357,
377, 47 S. Ct. 641, 71 L. Ed. 1095 (i927) (Brandeis, J., dissenting)).
ln Gertz, the Court retooled an earlier approach2 and held that the proper
accommodation between the law of defamation and the freedoms protected by the First
Amendment required differentiating between public officials and public figures, on the
one hand, and private individuals, on the other. It held that the New York Times standard
“defines the level of constitutional protection appropriate to the context of defamation of
2 Gerrz abrogated Ro._senb[oom v. Metromedz’a, Inc, 403 Us. 29, 44—45, 91 S. Ct.
181 l, 29 L. Ed. 2d 296 (1971), in which a plurality had concluded that “the time has
come forthrightly to announce that the determinant whether the First Amendment applies
to state libel actions is whether the utterance involved concerns an issue ofpn-blic or
general concern, albeit leaving the delineation of the reach of that term to future cases.”
(Emphasis added).
No. 3 1 837—1-HI w concurring
Johnson 12. Ryan
a pubiic person.” Gertz, 418 US. at 342. But speaking of a private individual, the Court
said:
He has relinquished no part of his interest in the protection of his own good
name, and consequently he has a more compelling caii on the courts for
redress of injury inflicted by defamatory falsehood. Thus, private
individuals are not oniy more vuinerabie to injury than public officiais and
public figures; they are also more deserving of recovery.
Id. at 345. Gertz held that “so long as they do not impose iiabiiity without fault, the
States may define for themselves the appropriate standard of liability for a pubiisher or
broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. It also
heid that the plaintiff in Gertzwwa public figure—could not recover presumed damages
nor recover punitive damages unless the publication was made with actuai maiice, Id. at
349-50.
in Cox Broadcasting Corp. v. Conn, 420 US. 469, 491, 95 S. Ct. 1029, 43 L. Ed.
2d 328 (1975), the Supreme Court held that a state could not impose sanctions for the
accurate pubiication of the name of a rape victim obtained from judicial records
maintained in connection with a public prosecution and which themselves were open to
public inspection.
In 1981, our own Supreme Court went beyond the United States Supreme Court,
holding that for “policy reasons, rooted in the First Amendment,” an “eariy testing of
piaintiff‘ s evidence by a convincing clarity burden” was appropriate in all defamation
cases, as to all elements—even in cases involving private plaintiffs, if the offending
No. 31837~1~ifl ~ concurring
Johnson v. Ryan
publication addressed a matter of pubiic concern. Mark V. Senate Times, 96 Wash. 2d 473,
487, 635 P.2d 1081 (£981). The viability ofthat holding is questionable in light oflater
cases. See Herron v. Tribune Publ’g Co, 108 Wash. 2d 162, 170—71, 736 P.2d 249 (1987)
(appearing to tie summary judgment standard to the standard of proof at trial); Hauerer v.
Cowles Publ’g Co, 61 Wash. App. 572, 582, 811 P.2d 231 (i991) (concluding that
“[n]either the common law nor the First Amendment . . . requires proof ofany element of
a defamation action, other than actual malice, by evidence of convincing clarity”);
Richmond 12. Thompson, 130 Wash. 2d 368, 385~86, 922 P.2d 1343 (1996) (rejecting the
position that the First Amendment demands the application of a higher evidentiary ‘
standard at the summary judgment stage); Mom“ 12. Grant, 153 Wash. 2d 812, 822 & nn. 7-8,
108 P.3d 768 (2005) (stating that “[c]ase law is unclear as to Whether a private plaintiff
facing a defense motion for summary judgment must make a prima facie showing of ail
of the elements of defamation with convincing ciarity or by a preponderance of the
evidence,” and deferring clarification “for another day”); Molar, 153 Wn.2d at 833
(Chambers, 1., dissenting) (citing Mark’s conclusion that a private plaintiff resisting a
defense motion for summary judgment must establish a prima facie case by convincing
clarity as “the concession defamation law makes to the First Amendment”).
Returning to United States Supreme Court precedent, in a 1984 defamation action
brought by the Bose Corporation, the Court recognized. a heightened standard for
appellate review in favor of defamation defendants, holding that “in cases raising First
No. 31837~i—111~ concurring
Johnson 12. Ryan
Amendment issues . . . an appeiiate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that “the judgment does not
constitute a forbidden intrusion on the fieid of free expression.” Bose Corp. v.
Consumers Union ofUnited States, Inc, 466 US. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d
502 (1984) (quoting New York Times, 376 US. at 284-86).
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc, 472 US. 749, 751, 105 S.
Ct. 2939, 86 L. Ed. 2d 593 (1985), a majority ofjustices reasoned that the plaintiff in
Gerrz had been iimited in the damages he could recover because the speech at issue had
invoived a matter of public concern. It held that where a defendant’s speech concerned a
- private individual and a matter of private concern, states could allow plaintiffs to recover
presumed and punitive damages even absent a showing of actual malice. 1d. at 761.
in Anderson 12. Liberty Lobby, Inc, 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986), the Supreme Court heid that when ruling on a summary judgment in any
civii case in which the “ciear and convincing” standard applies, the trial court must bear
in mind “the actual quantum and quality of proof necessary to support iiability.” Because
Liberty Lobby was an action for defamation by a public figure, the actual maiice standard
applied. Accordingly, the Court held that to survive summary judgment, the evidence
presented by the plaintiff must be “of []sufficient caliber or quantity to aiiow a rational
finder of fact to find actual malice by clear and convincing evidence.” Id. Liberty
No. 31837—1411 ~ concurring
Johnson v. Ryan
Lobby’s construction ofFederai Rules of Civil Procedure 56 was applied to CR 56 by our
state Supreme Court in Herron, 108 Wn.2d at 170.
in Philadelphia Newspapers, Inc. v. Hepps, 475 US. 767, 777, 106 S. Ct. 1558, 89
L. Ed. 2d 783 (1986), the Court hetd that the common law presumption that defamatory
speech is false “cannot stand” even for a private party plaintiff, if he or she “seeks
damages against a media defendant for speech of public concern.” “in other words, the
Court fashioned 6a constitutional requirement that the plaintiff bear the burden of
showing falsity, as well. as fault, before recovering damages.’ ” Milkovich v. Lorain
Journal Co, 497 US. 1, 16, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (quoting Hepps, 475
US. at 776).
in Milkovich, the Court held that a statement on matters of public concern “must
be provable as false before there can be any liability under state defamation law,”
meaning that “a statement of opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full constitutionai protection.”
497 U.S. at 19—20 (emphasis added).
All of these important limitations on defamation claims flow from our “profound
national commitment,” reflected in the First Amendment, “to the principle that debate on
public issues should be uninhibited, robust, and wide-open.” New York Times, 376 US.
at 270 (emphasis added). But in construing RCW 4.24525 to carry out the legislature’s
stated obiective of striking a balance that recognizes “the rights of persons to file lawsuits
No. 31837—1—111— concurring
Johnson 12. Ryan
and to trial by jury,”3 we must remember that the constitutionalization of defamation law
under the First Amendment has already altered the common law balance, making it more
difficult for defained plaintiffs to obtain redress: it has in many cases shifted the burden
of proving falsity to the plaintiff; it has eliminated liability for a defendant’s statements
that do not have a provably false connotation; it has eliminated liability for true reports of
matters reflected in judicial records of public prosecutions; it has required public officials
and public figures to prove actual malice by clear and convincing evidence;4 for private
figure plaintiffs, it has imposed the same burden of proof if they seek to recover
presumed or punitive damages flowing from speech on a matter of public concern; and it
has imposed heightened appellate review that focuses on the rights of defamation
defendants.
T he legislature ’s statement of purpose evinces the intent to
accelerate the dismissal of doomed claims, not to impose
additional burdens on a plaintiff is right to sue for defamation
The legislature’s 2010 amendment to the anti-SLAPP statute cannot reasonably be
read as intended to create an additional substantive hurdle for defamation plaintiffs. No
concern is expressed in the preamble about existing elements or standards of proof. The
3 LAWS or 2010, ch. 118, § I(2)(a).
4 The Supreme Court observed in Gertz that “[p]lainly many deserving plaintiffs,
including some intentionally subjected to injury, will be unable to surmount the barrier of
the New York Times test.” 418 U.S. at 342.
No. 31837—1411
Johnson v. Ryan
Being without a job, Ryan had time to obsess over his firing from the Theatre. On
October 18, 20l0, Ryan began a public campaign to discredit Johnson for terminating his
employment. According to Johnson, the campaign began when Ryan sent an e—mail to
her and posted the message on Facebook, although the e—maiI is not part of the record.
On October 24, 2010, Ryan began posting negative statements about Yvonne Johnson on
the Internet via a blog entitled “thetyrannyofyvonne.” Clerk’s Papers (CP) at 99.
Ryan obtained the domain names of “spokanecivietheater.org” and
"spokanecivictheatre.org.” CP at 99. The Theatre’s domain address was
"spokanecivictheatre.corn.” The similarity in domain names caused confusion for those
wishing to locate the Theatre’s website. Anyone who mistakenly searched for the
Theatre’s website by utilizing one of his created addresses was immediately routed by
Ryan’s design to his sites. On April 29, 2011, Ryan began posting negative statements
about Johnson on his two sites. In general, these biogs provide a iengthy chr0nology of
Ryan’s ongoing post~employment dispute with Johnson through various tribunals. This
tedious chronology is set forth in some detail by the dissent. Within this tedious
chronoiogy is an isolated and vague reference that the Theatre board must be publicly
held to account for failing to exercise its duties. This vague reference liker was to a
wrongful discharge lawsuit that Ryan tiled soon afterward against the Theatre.
No. 31837—1—111 ~—~ concurring
Johnson v. Ryan
purpose for the motion to strike procedure is explained as accelerating the dismissal of
claims that are preordained to fail and sanctioning the plaintiffs who bring them.
The act’s preamble contains multiple textual indications that the legislature was
not concerned about plaintiffs who had viable defamation claims under existing law. lts
findings state that its concern is with lawsuits that are “brought primarily to chill the
valid exercise of. . . constitutional rights.” LAWS OF 2010, Ch. 118, § l(1)(a) (emphasis
added). They state that problematic lawsuits “are typicaily dismissed as groundless or
unconstituti.onal”mthe problem being that such cases are not dismissed early enough.
Id. at § l(l)(b). The findings state that the citizens about whom the legislature is
concerned are those who would “fear . . . reprisal through abuse of the judicial process.”
Id. at § i(l)(d) (emphasis added). They state that the act’s purpose is to “[s]trii98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978)).
The concept that some speech is entitled to heightened First Amendment
protection has been recognized for at least 75 years. It was discussed in Thorn/till v.
5 Constitutional challenges to the discrepancy between the standard on which the
trial court is required to strike a claim and the standard that would apply at trial were
raised and rejected in a decision by Division One of our court, and are presently before
our Supreme Court for review. Davis v. Cox, 180 Wash. App. 514, 546—48, 325 P.3d 255
(2014),_review granted, No. 902330 (Wash. Oct. 9, 2014). Constitutional challenges
were not raised in this appeal.
12
No. 31837—1~IH — concurring
Johnson v. Ryan
Alabama, 310 US. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940), in which the Court reviewed
the conviction of a striking onion member arrested white picketing a mill, pursuant to an
Aiabama statute that outlawed tottering or picketng a business. in reversing the union
member’s conviction, the Court said,
The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly and
truthfully all matters ofpublic concern without previous restraint or fear of
subsequent punishment. The exigencies of the coionial period and the
efforts to secure freedom from oppressive administration developed a
broadened conception of these iiberties as adequate to supply the public
need for information and education with respect to the significant issues of
the times. . . . Freedom ofdiscassion, if it would fulfill its historic function
in this nation, mast embrace all issues about which information is needed
or appropriate to enable the members ofsociety to cope with the exigencies
of their period.
Id. at 101-02 (footnotes omitted) (emphasis added).
Matters of public interest, public concern, and public affairs continued to be
recognized as worthy ofspeciai protection in the United States Supreme Court’s First
Amendment jurisprudence in the 1960s, even if the basis for imposing the actual matice
standard in a defamation case was a plaintiff” 3 status as a public officiai or a pubiic
figure. E. g, Garrison, 379 US. at 74 (providing heightened protection. for “discussion of
public affairs”); Pickering v. Bd, ofEduc. ofTwp. High Sch. Dist. 205, 391 US. 563,
573, 88 S. Ct. 173 i, 20 L. Ed. 2d 811 (1968) (discussing the great “public interest in
having free and unhindered debate on matters of public importancemthe core value of
the Free Speech Clause of the First Amendment”).
1.3
No. 31837~l~111- concurring
Johnson v. Ryan
P or several years in the eariy 19705, a plurality of the United States Supreme
Court even held that the fact that a publication dealt with an issue of “public concern”
should be the basis for applying the First Amendment’s actual malice standard. and the
requirement of proof by convincing clarity. Rosenbloom v. Metromedz‘a, Inc., 403 US.
29, 44—45, 91 S. Ct. 181 i, 29 L. Ed. 2d 296 (197i), abrogated by Gertz, 418 US. at
343-44. While the Court’s 1974 decision in Gertz returned the defamation plaintiff’s
status as a public official, public figure, or private figure to primary importance, the fact
that a publication did or did not deai with an issue of public concern continued to be
relevant in many cases to its protected status, including public employment cases that
have further developed factors to be considered in determining Whether a communication
“faii[s] under the rubric of matters of ‘pubiic concern.’ ” Conniek v. Myers, 461 US.
138, £48, £03 S. Ct. 1684, 75 L. Ed. 2d 708 (1.983);6 aeeordDun & Bradstreet, 472 U.S.
at 756 (distinguishing Gerrz as involving expression on a matter of “undoubted public
concern” .
In explaining why “speech on “matters of public concern” . . . is “at the heart of the
First Amendment’s protection,” ” the Supreme Court in Dun & Bradstreet shed tight on
What it meant by speech on matters of public concern. 472 US at 7 58-59 (internal
6 The content of the speech is generaiiy the most important. Karl v. City of
Moanrlake Terrace, 678 F.3d i062, 1069 (9th Cir. 20i2). The relevance ofmotive is in
understanding the context of a remark and is considered in relation to the content of the
speech itself. .Kokkim's v. [vkovr’eh, 185 F.3d 840, 848 (7th Cir. 1999).
14
No. 31837—1411 — concurring
Johnson v. Ryan
quotation marks omitted) (quoting Bellorri, 435 U.S. at 776. it spoke of the First
Amendment having been ‘“ fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people.” ” Dim &
Bradstreet, 472 US. at 759 (internal quotation marks omitted) (quoting Roth v. United
States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1L. Ed. 2d 1498) (1957)). It characterized
such speech as “‘ [s]peech concerning public affairs” that is “‘ more than self—
expression; it is the essence of self—government.’ ” Id. (quoting Garrison, 379 U.S. at 74-
75). In deciding whether the speech at issue involved a matter of public concern, the
factors that it chose to apply were those identified in its 1983 decision in Connick, which
it described as arising “[i]n a related context.” Dun & Bradstreet, 472 US. at 761.
In Connick, the Court observed that the Constitution’s “special concern with
threats to the right of citizens to participate in political affairs is no mystery.” 461 US. at
145. In addition. to quoting Garrison’s characterization of speech concerning public
affairs as “ ‘ more that self-expression’ ” and “‘the essence of self—government,” ” id.
(quoting Garrison, 379 US. at 74~7 5) and Roth’s observation that the First Amendment
“ ‘Was fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes,“ ” id. (quoting Roth, 354 U.S. at 484), it stated that the Court
had “frequently reaffirmed that speech on pubiic issues occupies the ‘highest rung of the
hierarchy of First Amendment values,” and is entitled to speciai protection.” Id. (quoting
Not 7 Ass ’nfor Advancement of Colored People v. Claiborne Hardware Co, 458 US.
15
No. 31837—l-lll — concurring
Johnson 1:. Ryan
886, 9l3, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982); Carey v. Brown, 447 US. 455, 467,
1.00 S. Ct. 2286, 65 L. Ed. 2d 263 (l980)).
To be sure, neither the United States Supreme Court nor our own Supreme Court
has siavishly used the term “public concern” in discussing speech entitled to heightened
protection. Both. have spoken of “public interest” and “public affairs” somewhat
interchangeably. But the clearly predominant label that federal courts and our own have
applied in identifying that speech whose character warrants special protection under the
First Amendment is speech on. issues or matters of “public concern.”
As the majority explains, our legislature’s notable substitution of the “public
concern” for the California statute’s reference to “public interest” reflects an implicit
rejection of the California term and the case law construing it. Majority at 12-13.
Moreover, “‘ if the legislature uses a term well known to the common law, it is presumed
that the legislature intended to mean what it was understood to mean at common law.” ”
Ralph v. Dep ’t ofNatan Res, No. 88115—4, 2014 WL 7445555 at *2 (Wash. Dec. 31,
2014) (quoting NY. Life Ins. Co. v. Jones, 86 Wash. 2d 44, 47, 541 P.2d 989 (i975)). The
legislature’s rejection of “public interest” in favor of “public concern” is a clear
indication that the well—known First Amendment concept was intended. There is no need
to resort to dictionary definitions.
The rubric “public concern” imparts a meaning very different from the meaning
that California courts have ascribed to “public interest” as used in that state’s anti—SLAP?
i6
No. 31837—l—lll w concurring
Johnson 1). Ryan
statute. 7 “Public interest” has been construed as untethered to any value of speech under
the First Amendment. California courts have construed it to mean “any issue in which
the public is interested.” Nygam’, Inc. v. Unsi—Kerrl‘ula, 159 Cal. App. 4th 1027, 1042, 72
Cal. Rptr. 3d 210 (2008). In describing the exceptionally broad construction of “public
interest” by California courts, the Ninth Circuit Court of Appeals has observed that the
California Supreme Court
has “explicitly rejected the assertion that the only activities qualifying for
statutory protection are those which meet the lofty standard of pertaining to
the heart of self~government.” Navellz'er [M Steffen, 29 Cal. App. 4th 82, 52
P.3d 703, 710, 124 Cal. Rptr. 2d 530 (2002)] (internal quotation marks
omitted). Thus, the activity of the defendant need not involve questions of
civic concern; social or even low-brow topics may suffice.
Hilton v. Hallmark Cards, 599 F.3d 894, 905 (9th Cir. 20t0). Washington commentators
have agreed that California’s is “one of the broadest anti-SLAPl3 statutes in the United
States.” Johnson & Duran, supra, at 523.
The decision in Tam/cm v. CBS Broadcasting Inc, 193- Cal. App. 4th 133, 122
Cal. Rptr. 3d 264 (2011) illustrates just how far removed from a First Amendment value—
driven concept of “public concern” California’s non-First Amendment value-driven
concept of “public interest" can be. In that case, a casting synopsis was prepared. for two
7 On this score, I disagree not only with the dissent but also with the view
expressed in Alaska Structures, Inc. v. Hedlund, l80 Wn. App. 591, 599, 323 P.3d 1082
(2014) that there Was “no discernible difference” in the terms “public interest” and
“public concern.”
17
No. 31837—1-111— concurring
Johnson v. Ryan
characters, “Scott Tanikin” and “Melinda Tarnkin” who would play parts in an upcoming
episode of the teievision program CS]: Crime Scene Investigation. Scott and Melinda
Tamkin were the names of a reai—iife married couple, both real estate agents. A writer for
the CS] series met the Tamkins when she made an offer on a home that she iater
exercised her right to cancel.
The writer used the Tanikins’ names as placeholders in drafting a script for an
episode of CS] about a troubled fictional married couple who were both real estate
professionals. The writer intended to substitute other names in the final script. The
casting synopses were inadvertently released using the names “Scott Tainkin” and
“Melinda Tamkin” and described the characters in defamatory ways bearing no relation
to the real Mr. and Mrs. Tainkin. When Mr. Tamkin discovered the synopses on the
internet, he and his wife brought suit.
An anti—SLAP? motion to strike the Tanikins’ complaint was granted and affirmed
on appeal. The facts that the Tamkins were private figures, that they did nothing to cause
their names to be included in a CS] script, and even that the script and casting'synopses
were admitted fiction, proved irrelevant to the appellate court’s “public interest” analysis.
instead, it was enough that there was public interest “in the creative process underlying
the production of the fiim” and that the defendants “showed that there was a public
interest in the writing, casting, and broadcasting of CS] episode 913.” ]d. at 144. The
pubiic interest in CS] episode 913 was shown “by the posting of the casting synopses on
i8
No. 3 i 837-l—lll A“ concurring
Johnson v. Ryan
various Web sites and the ratings for the episode.” Id. at E43. in California, then, not
only debatable fantasy but admitted fantasy (and about private plaintiffs) is a matter of
“public interest,” as long as it is interesting.
Such a broad meaning of “public concern” would introduce dissonance into
RCW 4.24.525(2). Under the principle of noscitur a soccis, “ ‘ the meaning of words may
be indicated or controlled by those with which they are associated.’ ” State 12. Jackson,
i37 Wn.2d 712, 729, 976 P.2d 1229 (1999) (quoting Ball v. Stokely Foods, Inc, 37
_Wn.2d 79, 87‘488, 221 P.2d 832 (1950); accord State v. Budik, 173 Wash. 2d 727, 735, 272
P.3d 816 (20i2) (construing six criminal means deiineated by statute as having
common qualities, rather than as including an outlier). RCW 4.24.525(2)’s first three
examples of actions “involving public participation and petition” are all statements in, in
connection with, or encouraging or enlisting participation in a governmentai proceeding.
RCW 4.24.525(2)(a)—(c). Its fourth and fifth examples are statements made in a public
forum or otherwise in connection with an issue of public concern. RCW 4.24.525(2)(d)-
(e). if “public concern” is understood to mean the type of speech given heightened
protection in First Amendment juriSprudence, then. all five examples of actions
“involving public participation and petition” are communications relevant to self-
government or political and social change. On the other hand, if “public concern” is
construed as having the same meaning given “public interest” by California courts, then
RCW 4.24.5 25 identifies three related examples of political participation and two
1.9
No. 3l837—l—Ill
Johnson 12. Ryan
Johnson aiieges that Ryan sought to prevent her from gaining empioyment in the
theater world. She cites a November 14, 2011 blog Ryan wrote:
As i was writing this, it occurred to me that Civic is iocked in a self—
imposed catch-22. T he longer the board faiis to seek a resolution [to my
employment dispute], the longer Civic is likely to be stuck with Yvonne
AK. Johnson. People have been talking for a year now about her desire to
find a bigger, better job and move on from here—a scenario that has been
fantasized about with no small amount of glee. If it is true that Ms. Johnson
has been job hunting, one has to imagine that prospective ernpioyers have
probably taken the time to Googie Civic and her name. They are not likely
to skip past the second search result, which is this site. (They might even
just enter http://www.spokanecivictheatre.org, assuming that that would be
the correct domain.) A few minutes spent reading this . . . is likely to
induce a sense that Ms. Johnson would bring more drama and divisiveness
than any respectable institution would care to have. So any fantasies you
may have that Civic will soon be free of Ms. Johnson of her own accord are
probably a hit unrealistic.
C? at 108.
[n a similar vein, Ryan wrote in red letters at the beginning of a blog on February
8, 20i3:
If you have arrived at this page because you are considering Yvonne A.K.
Johnson [for a job] please feel free to contact me. i would be happy to put
you in contact with individuals [of] status within the community [who]
would tend supporting testimony to what you will read [here I can be]
reached at civicdoodyspol72 S. Ct. 725, 96 L. Ed. 919 (1952), Justice Jackson, having surveyed
state constitutions, identified more than 40 (including Washington”s) that, “While
extending broad protections to speech and press, reserve a responsibility for their abuse
and impiicitly or explicitly recognize validity of criminal libel laws.” Constitutionai
protections of speech of this sort have been referred to as “liberty and responsibility”
clauses. Ex Parie Tueei, 859 S.W.2d 1, 22—23 (Tex. l993) (Phillips, J., concurring); Am.
Bush v. City ofSonih Salt Lake, 2006 UT 40, 140 P.3d 1235, 1.241.. “Historical evidence
indicates that the phrase imposing responsibility for the ‘abuse’ of the right was inserted
to preserve civil liability for defamation.” 1 Jennifer Friesen, STATE CONSTITUTIONAL
20
No. 318374411 A concurring
Johnson v. Ryan
LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSBS § 5.02[3][e] at 5-10 (4th
ed. 2006); accord Wheeler v. Green, 286 Or. 99, 118, 593 P.2d 777 (1979) (holding that
defamatory statements are recognized as an abuse of the right of free expression for
which a person is to be held responsible under article 1, section 8 of the Oregon
Constitution); Tamer v. KTRK Television, Inc, 38 S.W.3d 103, 117 (Tex. 2000) (holding
that “the Texas Constitution expressiy guarantees the right to bring reputational torts”);
Telnz’koflv. Matusevitch, 347 Md. 561, 614, 702 A.2d 230 (1997) (Chasanow, .l.,
dissenting) (characterizing article 40 of the Maryland Declaration of Rights as containing
“a safeguard against defamation” not found in the United States Constitution); Am. Bush,
E40 P.3d at 1244 (characterizing it as “undoubtedly true” that the phrase “responsible for
the abuse” in Utah’s iiberty and responsibility clause was intended to preserve liability
for defamation). But of Werner v. S. Cal. Associated Newspapers, 35 Cal. 2d 121, 124-
25, 216 P.2d 825 (1950) (construing the abuse language as merely making clear that the
right of free speech does not guarantee immunity from liability).
Of course, we avoid deciding constitutional questions where a case may be fairly
resolved on other grounds. Cmty. Telecable ofSearrle, Inc. v. City of Seattle, Dep ’t of
Exec. Admin, 164 Wash. 2d 35, 41, 186 P.3d 1032 (2008). A narrow, First Amendment—
based meaning of “public concern” is most likely to avoid a constitutional challenge
under article i, section 5 of the Washington Constitution. Nevertheless, because 1 agree
with the majority that there are ample nonconstitutional reasons why “public concern”
21
No. 31837—1411 W concurring
Johnson 12. Ryan
should be understood £0 have its well-settled meaning, it is premature to analyze the
meaning of the “responsible for the abuse” language in that section of our constitution.
W" Siddoway, CJ.
U
22
NO. 31837—1411
FEARING, J . (dissenting) m—
lN’I‘RODUCTlON
This appeal asks this court to interpret the expression “public concern” found in
the 2010 Washington. anti-SLAP}? (Strategic Lawsuit Against Public Participation)
statute, RCW 4.24.525. We need not announce a comprehensive definition for the
statutory phrase, but only determine whether. vitriolic blogging of James Ryan targeting
Spokane Civic Theatre Executive Artistic Director Yvonne Johnson fits within the term.
The majority holds that James Ryan’s “blogging was primarily for personal
concern, not public concern.” Majority at l. l do not know if the majority rules that
Ryan’s blogging is of no public concern or is of public concern, but motivated more by
personal concern. Regardless, l dissent, because the blogging contained elements of
public concern. More importantly, the anti—SLAPP statute does not authorize this court
or the trial court to weigh. the motivation of James Ryan. Personal gain or vengeance is
not relevant in determining whether speech is of public concern. Since Ryan’s comments
about Yvonne Johnson were of public concern and since Johnson fails to present a prima
facie case of liability, I dissent.
FACTS
I try not to repeat all facts outlined by the majority, but repeat some for emphasis.
The Spokane Civic Theatre is a not—fonprofit, performing arts theatre located in Spokane.
The Civic Theatre is a private foundation receiving support from private donors and
operating with an endowmentmthe Spokane Civic Theatre Endowment Fund. A
INo. 31837~i-lll — dissent
Johnson 1). Ryan
Wikipedia entry described the Civic Theatre as “one of the oldest community theatres in
the country . . . [and] a point of pride for the city [of Spokanel.” Clerk’s Papers (CP) at
55.
The Spokane Civic Theatre’s website deciares that “the tradition of public
education has continued throughout our history.” CP at 27. As such. the theatre seIVes
as an educationai resource for local high school and college drama departments. At least
one thousand volunteers assist the Civic Theatre. The Theatre’s website further reads:
“in addition to volunteering their time, the Spokane Community has given incredible
amounts in the form of donations that support us in our mission to provide and support
theatre excellence.” C? at 27.
In 2005, the Spokane Civic Theatre hired plaintiff Yvonne Johnson as its
executive artistic director. On January 27, 2005, the Spokesman—Review, Spolrane’s
major newspaper, published an article introducing Johnson to the community.
On August 29, 2010, the Spokesman-Review published. an article praising Yvonne
Johnson for helping the Spokane Civic Theatre thrive despite the brutal economy. The
article quoted one local director and performer: “‘i think she’s been a gift to the
community. She has helped the Spokane Civic Theatre regain its standards as a glorious
and retiable theater?” CP at 51.
Yvonne Johnson maintained her own website, wwwyvonneakjohnsoncom. The
website promoted her career. The website described, in part, her duties as executive
artistic director at the Spokane Civic Theatre. The duties included assisting the Theatre’s
No. 3i837—i—IH - dissent
Johnson v. Ryan
business manager and director of development on obtaining grants, cultivating donor
relations, administering personnei policies, ensuring compliance with state and federal
regulations, representing the Theatre to the community, and maintaining contact with
state and nationai arts organizations.
As the executive artistic director, Yvonne Johnson supervised and evaluated Civic
Theatre employees and administered grievance and termination procedures. On
August 19, 2010, Johnson hired defendant James Ryan as music director for the Theatre.
Ryan desired employment with a community theatre iike the Spokane Civic Theatre, as
opposed to a professional theatre where talent moves from place to place to further
careers. Ryan believed that working for the Spokane Civic Theatre would allow his
family a better connection to its home community.
Two months after the hiring, Yvonne Johnson terminated James Ryan’s
employment for cause at the direction of the Civic Theatre’s board. Yvonne Johnson
wrote a termination letter to Ryan. Because Ryan ciairns the letter confirms the “public”
nature of the Civic Theatre, 1 quote much of the letter here:
As we discussed Sunday, October l7, 2010, your employment with
the Theatre is terminated effective October 17, 2010. . . .
YOUR FIRE—TERMINATION CONDUCT ,
The Theatre decided to terminate your employment because you
exercised extremely poor judgment by placing into the public domain
sexually graphic text and pictures of you and Lynette [Ryan’s wife]
combined with information that permitted an association to the Theatre.
There are three gross offenses here.
First, there is the public nature of your indiscretions due to using
www.Craigslist.org to solicit sex. For most peoplewsexual conduct is a
No. 318374—111 — dissent
Johnson v. Ryan
personal matter, not something to be shared with the community at large or
imported into the workplace.
Second, you would have been fine had you exercised even a
modicum of judgment and maintained professional anonymity. Instead you
chose to publicly associate your sexual activities with the Theatre by
referencing your workplace in e-mails, sending sexually explicit e—«mails
from work while backstage, and using your photo that is on the Theatre’s
website to solicit sexual activity. . . .
Third, as the Music Director, you were in a leadership position and
miserably failed to uphold yourself to the high public standards charged to
representatives of the Theatre. (See our handbook). On Friday, October 15,
2010, you first disclosed your personal sexual activities to me. As i told
you then and as I believe in my heart now, the Theatre neither judges nor
cares about what employees do in their personal lives. . . .
However, the very moment that the Theatre became implicated is the
moment that serious business concerns arose. What was once wholly
personal quickly transformed into a matter regarding professional judgment
and leadership competence.
. . . However, our personal sensitivities are not the proper measure
for the appropriate boundaries of public decorum for representatives of the
Theatre. In gauging our public actions, we must think of the diverse
community we serve and the potential for its offense. We serve mature
audiences and youth audiences. We serve audiences both conservative and
liberal, both modest and flagrant. Given the range of diversity, the Theatre
must take a high road and hold itself and its representatives to the highest
of ethical standards, lest we offend even afiraction of our supporters none
ofwhom we can afford to alienate. The potential to oflend the local
community is the appropriate measure to guide our judgment. As a
director and leader of the Theatre, you, of all people, should have known
better, Jim.
You know how dependent we are upon the good will of the local
community in the greater Spokane metropolitan area. The Theatre exists
and thrives only because of local support. Local ticket sales, local
donations, and local volunteers are the lifeblood for our not-for—protit and
growing civic theatre. Furthermore, we are not the only game in town. The
competition for local charity is fierce and dollars and resources are scarcer
clue to the degraded state of the economy. Before associating the Theatre
with your graphically nude pictures and public domain solicitations for sex,
did you even once think beyond your personal gratification and consider
the potential negative impact on the Theatre’s patron, donor and/or
No. 3 i 837—1411 - dissent
Johnson v. Ryan
volunteer support? The Theatre could have and still can go down in
financial flames because of what you have done. All of our hard work
could be lost to public scandal and the Theatre could dwindle into
obscurity. . . .
POSTnTERMlNATlON CONDUCT
To worsen matters, you horribly mismanaged. your response to the
Theatre’s reaction. On Sunday, October 17, 2010, i contacted you to have
an in—person meeting with the Board so that we could professionally
discuss options. instead, you refused, became belligerent, and engaged in a
smear campaign to discredit me and the Theatre by falsely spreading
rumors that your termination was due to disclosing your status as a
“swinger.” As you may recall, you disclosed that information to me on
Friday, October l5, 2010. It was no big deal then and remains innocuous to
this day. The concerns arose later that afternoon while reviewing the
photographs and text and realizing the public nature of the association of
your sexual solicitations with the Theatre. Even then, the reinstatement of
you and Lynette to the Theatre’s employ and rehabilitation of the Theatre’s
image might have been possible. it appears that dissemination of the
information may have been limited. Maybe we could have hired a publicist
to help us address potential image damage.
In light of the above, the Board does not view its termination actions
as unfair, unduly harsh or artistically stifling in direct contravention of the
Theatre’s mission. The decision was made after careful and compassionate
deliberation. Of course, as vanguara’s of the dramatic arts, the Theatre is
cognizant of its role in challenging the community ’5 intellect and in
pushing the boundaries of creativity and artistic expression. However,
your public sexual endeavors are exclusively prurient in nature and deserve
no safe harbor.
We are truly sorry for the co-victims of your indiscretion and poor
judgment, namely Lynette and your son. Because Lynette was an
employee and her sexual activities were publicly associated with the
Theatre (albeit through your actions), termination was unavoidable. The
end result and the potential for the Theatre’s financial ruin is just as great.
You are fortunate you are on good terms with her for she likely has a legal.
claim. against you if the disclosures were made without her consent.
It is unfortunate we find ourselves in this position. We wish that you
would have maintained anonymity and kept your private life out of the
workplace. We also wish that you would have responded more amicably
and responsibly instead of making matters more public and enlarging the
potential harm. New, in addition to the potentially adverse financial
No. 31837-1411 - dissent
Johnson v. Ryan
repercussions, the Theatre is losing two contributing and talented
empioyees.
We wish you the best of luck and goodwill in your future endeavors
and hope that you now better understand the reasons for our actions .-
Hopefully, the better human being in you will forego any vengeful and
maiicious actions to injure the Theatre and the community through costly
litigation. Only the art and the community will sufler. We know that is not
your wish and that you are not selfish people.
CP at 83n85 (underlining in original) (emphasis added).
On October 24, 2010, James Ryan began posting negative statements about
Yvonne Johnson on the Internet Via a blog entitled “thetyrannyofyvonne.” CP at 99.
On Aprii'29, 201 1, Ryan began publishing adverse comments about Yvonne Johnson on
the Internet via the domain names of “spokanecivictheater.org” and
“spokanccivictheatre.org.” C? at 99. James Ryan operated the blog “civicdoodycorn.”
CP at 80. The blog could also be found at “thetyrannyofyvonne.blogspotcom.” CP at
80. “Spokanecivictheater.org” and “spokanecivictheatre.org” redirected to
“civicdoodycom.” C? at 81.
The Spokane Civic Theatre filed a claim, with an Internet domain organization,
against James Ryan, for use of his confusing website addresses. Ryan prevailed and kept
his domain names.
Because we must determine if J amcs Ryan’s speech on. his Internet blogs impiicate
a public concern, I quote much of the language from the postings. On July 5, 20E i, Ryan
posted the following blog that announced his prevailing in his claim for unemployment
compensation and accused Yvonne J ohnson of providing the Empioyment Security
No. 31837-l-Ill - dissent
Johnson v. Ryan
Department with false information:
TUESDAY, JULY 5, 2011
A Moral Victory
[PLEASE NOTE: This is obviously NOT the official site of Spokane
Civic Theatre. That can be found at WWW.spokanecivictheatre.com. This
site is here for the purpose of commentary and criticism. . . .
After a six-week investigation, the State of Washington has found
that Spokane Civic Theatre did not have sufficient cause to terminate my
employment on the basis of misconduct of any kind. While this does
nothing to improve my family’s general situation, it is clearly a moral
victory.
Yvonne AK Johnson was unable to document any of her
allegations, as they were blatantly false to begin with. Moreover, she never
conducted even a cursory investigation of the facts. Rather, she
immediately capitulated to the outrageous demands of a criminal
blackmailer on the basis of an anonymous email and proceeded to justify
her actions after the fact. My official separation letter should be expunged
from the record now that Ms. Johnson’s lies and distortions have been
revealed as such. Her handling of this situation has done irreparable harm
to Spokane Civic Theatre and to her own ability to lead. She should resign
her position. immediately.
If even one of Ms. J ohnson’s shocking and salacious allegations had
been true, the Washington State Department of Unemployment would
surely have found that my behavior showed “wanton disregard of the
employer” or “disregard of standards of behavior which the employer has a
right to expect.” This is all very hard to square with the tone of my official
separation letter, which says:
The Theatre could have and still can go down in
financial flames because of what you have done. All of our
hard work could be lost to public scandal and the Theatre
could dwindle into obscurity. That is what you have done.
That is the magnitude of the potential harm.
Whether you are an actor, a staff member, a musician, a patron, or a
board member, you now know that all of this could have been easily
avoided by an honest and interpersonally competent executive. All of the
drama, all of the negativity, all of the personal information you would
rather have never learned—none of it had to become your problem. Ms.
Johnson made it your problem.
No. 31837-1411
Johnson v. Ryan
Johnson aiso alleges that Ryan’s biog attacks sought to coerce a financial
settlement with the Theatre. In the same February biog, Ryan discussed a summary
judgment ruling against him in the wrongful discharge iawsuit he filed against the
Theatre. According to Ryan, prior to the dismissal of his lawsuit he offered to settle his
case for one year’s salary and moving expenses but now that his lawsuit was dismissed,
the Theatre would be required to pay “serious money” to “end this thing.” CP at 10. He
aiso blogged that public ridicule is the only remedy for actions that fall into this category
and this was their best chance to end this thing with a reasonable settlement and a
nondisclosure.
PROCEDURE
On April 5 , 2013, Yvonne Johnson filed suit against James Ryan for intentionai
interference with business expectancy and defamation. Johnson sought damages and
injunctive relief. In his amended answer, James Ryan sought dismissal of Johnson’s
complaint under RCW 424.525, the anti-SLAP}3 statute, together with an award of
statutory damages and reasonable attorney fees.
On May 31, 2013, Ryan brought a motion to strike, pursuant to RCW 4.24.525.
Ryan argued that his online postings simpiy provided a public forum for discussion and
dissemination of commentary, complaints, and general information related to the Theatre.
No.31837m1—111— dissent
Johnson v. Ryan
The sad irony is that Yvonne AK. Johnson couid have avoided
granting us this victory if her extraordinary inteliigence had not been
overwhelmed by her extreme maiiciousness. This ruiing is the resuit of her
decision to tight my Washington State unempioyment claim, which I filed
in May, when my Pennsyivania benefits ran out. Washington found that 1
was eiigibie for about $3378, paid out at the rate of $198 per week, for as
long as 1 remained unemployed, eiigibie for work, and actively seeking
work.
it Ms. Johnson had been acting in the best interest of Spokane Civic
Theatre, she would not have contested this claim. (If my calculations and
understandings of the system are correct, the absoiute most my claim will
cost Civic is $202.68. That’s 6% ofthe amount 1 am eligible for.) In the
course of fighting my claim, Ms. Johnson submitted false statements to the
Unemployment Security Department, in the form of my official separation
ietter. She had not previously provided this document to anyone other than
myseif. She has now opened the theatre to further charges of defamation,
as well as to charges of making demonstrably false statements to a
government agency, should Washington State wish to pursue that. She
actually went out of her way to request additional time from the
adjudicator, an indication that can only mean she put aii of her best efforts
into contesting my claim.
If Ms. Johnson had not been blinded by her determination to justify
her mistakes, she would not have contested this claim, as in doing so she
aiiowed for an adjudication of the circumstances surrounding my
termination. T hat adjudication has shown, beyond a shadow of a doubt,
that she has been in the wrong all along.
1 can only assume that Johnson wili drag this out further by
appealing this ruling. If she does, a hearing will take place, creating further
opportunity for her to make false statements on the record, opening Civic to
further liability. 1 hope she will, as 1 have no doubt as to what the outcome
of that process would be and 1 welcome the opportunity to vindicate myself
again. Iwili wait until her window of opportunity to appeai has passed
before 1 forward a version of this letter to local media outlets.
Finally, when board members fail to exercise the duties they accept
when they agree to sit on boards, they must be publicly heid to account.
This is Civic’s Board of Directors:
An update will be posted here in the coming days regarding the
status of our search for the attacker. Sadly, the one thing we’ve iearned is
that our best chance at catching and prosecuting him would have been for
the theatre to have pressed blackmaii charges immediately. As the theater
No. 31837~l~111~ dissent
Johnson 1). Ryan
was too busy firing and defaming us, that obviously did not happen. We
are stilt working on it though.
CP at 106-07.
In reaction to the July 5, 2011 post, Yvonne Johnson protested that she made no
false statements to the Employment Security Department and that James Ryan knew she
made no false statements. Spokane Civic Theatre Managing Director James Humes, not
Yvonne Johnson, signed the Theatre’s response to Ryan’s application for unemployment
benefits. Nevertheless, Johnson’s termination letter was attached to the Theatre’s
response and represented as the reason for Ryan’s tiring.
In a declaration in opposition to James Ryan’s anti-SLAPP motion, Yvonne
Johnson testified that character, integrity and reputation are of the utmost importance to
her position as executive artistic director of the Spokane Civic Theatre. The
characteristics dictate her length of employment with the Civic Theatre and whether she
can obtain similar employment elsewhere. Johnson expects to always work in the theater
field.
Yvonne Johnson believes James Ryan seeks to prevent her from gaining
employment in the theater world. In a November 14, 2011 blog Ryan wrote:
MONDAY, NOVEMBER 14, 2011
A Couple Things You Should Know
If you are an employee of Spokane Civic Theatre, there are a couple
of things you should knowwa couple of things I haven’t mentioned yet on
this site:
Firstiy, you should know that in addition to the outright lies
submitted. to the State of Washington by Civic in my official separation
No. 3i837—l—lll - dissent
Johnson v. Ryan
letter, there was also a standard questionnaire on which Civic checked a
box indicating that I had been discharged for “deliberate acts that are
illegal, provoke violence or violations of the laws.” Throughout all of
this, no one has ever indicated that I did anything illegal. Hell, the State of
Washington found that I didn’t even do anything negligent, let alone illegal.
So I think it is important for you to know that your employer is brazen
enough to cast such slanderous aspersions about their former emplbyees—
on official documents. They might even call you a criminal! This could
obviously impact your future job prospects in undesirable ways.
As i was writing this, it occurred to me that Civic is locked in a self-
imposed catch~22. The longer the board fails to seek a resolution to this
matter, the longer Civic is likely to be stuck with Yvonne AK. Johnson.
People have been. talking for a year now about her desire to find a bigger,
better j ob and move on from herewa scenario that has been fantasized
about with no small amount of glee. If it is true that Ms. Johnson has been
job hunting, one has to imagine that prospective employers have probably
taken the time to Google Civic and her name. They are not likely to skip
past the second search result, which is this site. (They might even just enter
http://www.spokanecivictheatre.org, assuming that would be the correct
domain.) A few minutes spent reading this and possibly clicking through to
the recent U DRP [Uniform Domain Name Dispute Resolution] decision
against Civic is likely to induce a sense that Ms. Johnson would bring more
drama and divisiveness than any respectable institution would care to have.
So any fantasies you may have that Civic will soon be free of Ms. Johnson
of her own accord are probably a bit unrealistic.
Finally, I’d like to brag just a little by pointing out that of the 85
most recent UDRP decisions, the reSpondent prevailed in only SIX
instances. That means that complainants win 93% of the time. That’s how
weak Civic’s $3 000 case against me was.
C? at 108 (bold and underlining in original) (emphasis added).
Yvonne Johnson characterizes James Ryan’s blog attacks as a means to coerce a
payment from the Spokane Civic Theatre. in the same February 8, 20l3 blog, Ryan
discussed a summary judgment ruling against him in a lawsuit he brought against the
Civic Theatre for wrongful discharge from employment. Ryan wrote:
10
No. 318374411 ~ dissent
Johnson 12. Ryan
Ironically, this is likely a huge disappointment for Yvonne AK.
Johnson and Civic’s Board of Directors. This was their best chance to
make this go away without spending money. it was handled by their
insurance company and had the potential to end this all with a settlement
and a non—disclosure agreement. If 1 had to guess, Ms. Johnson praying
against hope that they would write me a check and shut me up for good. So
this has a silver lining.
CP at 100.
The biog also stated:
I must also mention that it has come to my attention that Yvonne
AK. Johnson used information obtained during the discovery phase of my
suit to intimidate individuals cited in the documents I was legally obliged to
provide.
CP at 500.
Yvonne Johnson denied intimidating witnesses, so James Ryan filed a declaration
in this suit identifying the source of his information about intimidation. Before posting
the February 8, 2013 biog, Troy Nickerson, a Spokane theater director, informed Ryan
that Michelle Holland claimed she had been intimidated by Johnson. Ryan had identified
Hoiland as a witness in his iawsuit against the Civic Theatre for wrongful discharge.
Michelle Holland, a former employee of the Spokane Civic Theatre, signed a
deciaration in support of James Ryan’s anti-SLiltPi.J motion. Holland knew that parties
exchanged information in discovery in Ryan’s lawsuit against the Theatre and that Ryan
identified her as a witness in discovery, Yvonne Johnson approached Holland after this
exchange of witnesses. Aithough Holland could not recall J ohnson’s statements
verbatim, Johnson told Holland something aiong the lines of “ “I don’t know why you
11
No. 31837~I~III - dissent
Johnson v. Ryan '
don’t like me. I know several personal things about you that i do not go around telling
people.’ ” C}? at l30. Johnson then proceeded to list private personal things about
Holland. Holland concluded that Johnson meant to intimidate her.
In a March 20, 2013, blog on Civic Doody, James Ryan wrote:
Something Stinketh at Spokane Civic Theatre
WEDNESDAY, MARCH 20, 2013
So Sue Me!
I’m torn. The truth is that I would love nothing more than for Ms.
Johnson to file suit against me. I would absolutely love to see her flush a
bunch of her own cash down the toilet only to be right back where she
started once her frivolous claims are shut down by ajudge or a jury. I
would love to see her continue to deal with the consequences of her actions
on a daily basis, as I do. I would love for her to remain as preternaturally
fixated on my doings as I am on obtaining justice for what she did to us.
But itjust seems absurd. . .
Yvonne AK. Johnson and Civic have yet to initiate a successful
action against me. They fought my Washington State unemployment claim
and lost when the state found that no misconduct had occurred on my part.
She and her “board of directors” threatened to sue me for trademark
infringement and. defamation but apparently didn’t have anything to back
up those claims because they never tiled suit. They instead filed a UDRP
complaint against me with the World Intellectual Property Forum (at a cost
ofseveral thousand dollar's)mand they lost. Now Ms. Johnson is
reiterating her absurd claim of defamationwwhich is really just another
way of saying “i don’t like the mean things you’re saying about me!”w
along with a new claim of tortious interference, this time through her
personal attorney. If the goal has been to draw this out for as long as
possible and garner lots of negative attention for the theatre, Ms. Johnson
and her “board” have succeeded spectacularly.
All doubt about the wrongness of Civic’s actions was erased long
ago. All anyone needs to know is this: Every other major theatre in the
region has hired me since Civic fired me. Interplayers, Lake City
Playhouse, Coeur d’Alene Summer Theatre, Gonzaga University, and
others. All of these institutions saw no problem with the “offense” that was
so terrible that Civic had to fire me two months after my family and I
moved across the country and bought a house here. You’d think I’d be an
untouchable after that, wouldn’t you? I would be, if I had actually done
12
No. 31837-l—lll - dissent
Johnson 12. Ryan
anything wrong. (Unfortunately, the combined wages from all of these
short-term gigs has not come close to providing a wage that is comparable
even to the meager salary I moved here for.)
So we can continue this saga for as long as Civic wants. I have
tremendous patience. Occasionally, some weilnmeaning person will
suggest that I’m “never going to get anything out of them,” and that I
should move on for my own well—being. I appreciate and understand the
sentiment, but the truth is this: It has never oncewnot oncewoccurred to
me that I will not get thejustice I seek. ltjust hasn’t. And so whiie I am
grateful for the concern that motivates those suggestions, I cannot get past
one simple, fundamental counter-argument: Why would I? i am
objectively right. They are demonstrably wrong.
I was given ten days to cease and desist. T hat deadline passed last
week, as l have no intention of doing any such thing. So sue me. . .
CP at 7.
According to James Ryan, he learned, after his termination from empioyment from
the Spokane Civic Theatre, of a great breadth and depth of continuing frustration with
Eeadership of the Theatre. He learned of widespread opinion that Yvonne J ohnson’s
autocratic leadership styie harmed both the volunteers at the Civic Theatre and the
Spokane community as a whole.
James Ryan claims continuing involvement with Spokane area arts and
entertainment. Since his termination from the Civic Theatre, Ryan has worked at all
similar theaters in the region and has donated his services for fundraisers.
James Ryan insists that he only publishes, on his biogs, facts that he witnessed or
confirmed through investigation and research. Ryan claims he does not publish rumors.
He believes all factual statements on his biog to be true. ‘As of May 24, 2013, James I
Ryan’s biog had received over 36,000 hits.
13
No. 3i837—i-III - dissent
Johnson 12. Ryan
PROCEDURE
Yvonne Johnson filed suit against James Ryan for intentional interference with
business expectancy and defamation. Johnson sought damages and injunctive relief.
James Ryan brought a motion, pursuant to RCW 4.24.5 25, the anti-SLAPP statute,
asking that the court strike Yvonne Johnson’s complaint, award him $10,000 in damages
under the statute, and award him reasonable attorney fees and costs. In his anti—SLAPP
motion, Ryan argued that his online postings intended to provide a public forum for
discussion and dissemination of commentary, complaints, and information related to the
Spokane Civic Theatre. He asserted that his online cyber—conduct addressed matters of
public concern as evidenced by the amount of Internet traffic to his blogs.
The Spokane County Superior Court granted James Ryan’s anti—SLAPP motion
after concluding that Ryan’s onlin'e biogging activity addressed a matter of pubiic
concern. The trial court aiso concluded that Yvonne Johnson did not show a probabiiity
that she would prevail on either her tortious interference with business expectancy or
defamation claims.
On appeal, Yvonne Johnson contends the trial court erroneously classified Ryan’s
statements as statements ot‘“public concern” for purposes of the anti~SLAPP statute.
Johnson characterizes Ryan’s attacks on her as a “wholly private” employment dispute
between a disgruntled ex-empioyee and his supervisor. In so arguing, Johnson
14
No. 31837~i~HI ~ dissent
Johnson v. Ryan
emphasizes blogs, in which Ryan discusses his goal to obtain vengeance and money from
the Spokane Civic Theatre.
LAW AND ANALYSIS
Washington Ant‘i~SLAPP Statute
The majority has outlined the provisions of and background to the 2010 Act
Limiting Strategic Lawsuits Against Public Participation. LAWS OF 2010, ch. 118, § 4.
The legislature directed the courts to liberally interpret the Act. A/rrz'e v. Gram, 178 Wn.
App. 506, 315 P.3d 567 (2013), review granted, 180 Wn.2d £008, 325 P.3d 913 (2014).
“This act shall be appiied and construed liberally to effectuate its general purpose of
protecting participants in public controversies from an abusive use of the courts.”
LAWS or 2010, ch. 118, § 3.
Because of its length, RCW 4.24.525, the anti-SLAPP statute, requires a scorecard
to review. in order to understand the substance of the statute, one must refer to
definitions of words found at the statute’s beginning. RCW 4.24.525(4)(a) aiiows a party
to bring a special motion to strike a claim that is based on an “action involving public
participation and petition.” Section 2 identifies the communications protected by the
statute, most of which communications are directed to the government. Nevertheless, the
statute also protects free speech in other contexts. The statute reads, in relevant part:
(2) This section applies to any claim, however characterized, that is
based on an action involving public participation and petition. As used in
this section, an “action. involving public participation and petition”
includes:
15
No. 31837~i—HI — dissent
Johnson v. Ryan
(d) Any oral statement made, or written statement or other
document submitted, in a place open to the public or a public forum in
connection with an issue ofpubiic concern; or
(c) Any other lawful conduct in furtherance of the exercise oftne
constitutional right of free speech in connection with an issue of public
concern.
RCW 4.24.525 (emphasis added).
Note that the statute uses “in connection with an issue of public concern” in two
settings: (1) when the defendant renders a statement on an issue of public concern in a
piace open to the public or in a pubiic forum, (subsection ((1)), and; (2) when the
defendant engages in conduct in connection with an issue ofpubiic concern white
exercising his constitutional right offree speech, (subsection (e)). The majority and I
focus on subsection (d).
The majority concedes that James Ryan wrote the subject statements on the
internet and that the Internet is a public forum. ComputerXpress, Inc. 12. Jackson, 93 Cal.
App. 4th 993, 113 Cal. Rptr. 2d 625 (2001). The crux of the appeal therefore becomes
whether Ryan uttered a statement “in connection with an issue of pubiic concern.” This
court must wrestle with the amorphous clause “in connection with an issue ofpubiic
concern” and decide whether James Ryan’s computerngenerated fulminating fails within
the scope of the fluid phrase. Because of the flexibility of the critical term, I extensiveiy
explore definitions, Washington case iaw, and foreign law to seek an answer.
“The court’s duty in statutory interpretation is to discern and implement the
legislature’s intent.” Lowy v. PeaceHeaith, 174 Wash. 2d 769, 779, 280 P.3d 1078 (2012).
16
No. 3 l837-i-lll - dissent
Johnson v. Ryan
To determine iegislative intent, this court looks first to the ianguage of the statute. Lacey
Nursing Ctr.,1nc. v. Dep ’t‘ ofRevenue, 128 Wash. 2d 40, 53, 905 P.2d 338 (1995). Both the
majority and I find no help in the language alone of the statute to solve this appeal. Thus,
I look to the liberal construction ruie, dictionary definitions, and prior case law in
resolving the question on appeal.
No case addresses Whether portions of a defendant’s targeted. statement or
statements involve a public concern, while other portions of the statements do not. In
other words,courts do not separate the chaff from the wheat. Winning and losing is an
all or nothing proposition.
In Connection With
All anti-SLAP? decisions omit analyzing the prepositional phrase “in connection
with” that precedes the expression “issue ot‘public concern” in RCW 4.24.525.
[triernt‘arnw Webster ’3 Third New International Dictionary variously defines the idiomatic
phrase as the act of connecting, a casual or logical relation or sequence, contextual
relationship, or association. Use of the phrase may suggest that speech protected by the
anti—SLAPP statute need not directly be of pubiic concern, as long as there is some
relevant connection between the speech and a subject of public concern.
One California decision mentions that shielded speech need only have “some
attributes” of“public interest.” Weinberg v. Feisel, 110 Cal. App. 4th 1122, l 132,
2 Cal. Rptr. 3d 385 (2003). The United States Supreme Court and our court, in First
Amendment cases, have noted that even the slightest tinge of “public concern” is
17
No. 31837~1~£H
Johnson 12. Ryan
He asserted that his online cyber-conduct addressed matters of public concern, evidenced
by Internet traffic the biog purportedly received. Ms. Johnson countered that the postings
were merely a private concern and not protected by the statute.
The trial court granted Ryan’s motion after concluding that Ryan’s online blogging
activity addressed speech on a matter of public concern. The trial court awarded Ryan
$10,000 in statutory damages and $8,358.40 in reasonable attorney fees and costs.
Johnson appealed.
LAW AND ANALYSIS
In 1989, Washington adopted the nation’s first anti~SLAPP law, still codified
under RCW 4.24.500 to .520. The iaw, known as the BrendaI-Iill Bill, provides immunity
from civil liability for claims based on good-faith communication with the government
regarding any matter of pnbiic concern. Toni Wyrwich, A Curefor a “Public Concern
Washington ’3 New Anti—SLAPP Law, 86 WASH. L. REV. 663, 669 (201 l). The Brenda
Hill Biil was not without defect, since it did not provide a method for eariy dismissal. Id.
With courts unable to dismiss SLAPPS before discovery, defendants had no means of
escaping the significant legal expenses SLAPPS purposefully inflicted. Id. at 669—70.
in March 2010, the Washington Legisiature passed its Act Limiting Strategic
Lawsuits Against Pubiic Participation. LAWS OF 20i0, ch. 1 18, § 4. The Washington Act
No. 31837—1-lli - dissent
Johnson v. Ryan
sufficient to satisfy the element of“pu‘olic concern.” Connich v. Myers, 461 U.S. 138,
147-49, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Binlcley v. City ofTacoma, 114 Wash. 2d
373, 383 n.8, 787 P.2d 1366 (1990).
This court’s majority contradicts the precedents of Connich and Binkley when
writing: “in Dillon [1». Seattle Deposition Reporters, DEC, 179 Wash. App. 41, 316 P.3d
1119, review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014)], we find further support for
the proposition that speech that only tangentially implicates a public issue is not a matter
of public concern.” Majority at 18. Our recent decision in Dillon does not support this
proposition. The majority cites the Dillon passage: “‘ [I]t is the principal thrust or
gravamen of the plaintiffs cause of action that determines whether the anti—SLAPP
statute applies and when the allegations referring to arguably protected activity are only
incidental to a cause of action based essentially on nonprotected activity, collateral
allusions to protected activity should not subject the cause of action to the anti-SLAPP
statute.’ ” Dillon, E79 Wn. App. at 72 (quoting Martinez v. Metabolife lni’l, Inc, 113
Cal. App. 4th 181, 188, 6 Cal. Rptr. 3d 494 (2003)). The majority fails to note that
Dillon borrowed this quote from the California decision Martinez. More importantly, the
“gravamen” to which this passage refers is the gist of the legal claims, allegations, and
causes of action of the plaintiff, not the gist of the speech for which the defendant is sued.
in. Dillon, the gravamen of the plaintiff” s complaint was the defendants’ recording of a
conversation without plaintiff’s permission rather than the content of speech.
18
No. 318374-111" dissent
Johnson v. Ryan
Dictionary Definitions of Public Concern
The antimSLAPP statute does not define what constitutes an “issue of public
concern.” Undefined statutory terms must be given their usual and ordinary meaning.
Dominick v. Christensen, 87 Wash. 2d 25, 27, 548 P.2d 541 (1976); Nationwide Ins. v.
Williams, 71 Wash. App. 336, 342, 858 P.2d Std (1993).
Black’s Law Dictionary does not define either “public concern” or “concern.”
Black’s defines “public interest,” in relevant part, as: “Something in which the public as a
whole has a stake.” BLACK’s LAW DICTIONARY 1425 (10th ed. 2014). The same
dictionary defines “interest,” in part as “[t]he object of any human desire.” BLACKS,
supra, at 934. A lay dictionary defines concern, in part, as a marked interest or regard
and a matter for consideration.
These dictionary definitions provide little assistance in answering our question
other than to suggest that the public as a Whole must be interested in the subject matter. I
assume not every member of the public need be interested in a subject of public concern,
since no topic captures the attention or concern of every person. The interest of a
significant number of citizens is sufficient. The definitions do not distinguish between
the public holding a legitimate interest in the issue or if a prurient or sensational interest
suffices for protection.
I include in the list of dictionary definitions the phrase “public interest.” The
dictionary definitions suggest that the phrases “public concern” and “public interest” are
synonymous. I Will analyze this implication later.
19
No. 31837-1411 — dissent
Johnson 1», Ryan
Washington Case Law on Public Concern
Division One of this court, in several current decisions, has boldly gone before us
in addressing the meaning of “public concern” under Washington’s anti—SLAP? statute.
The prior decisions give both a broad definition and then explore factors to conSider
when deciding whether speech contains matters of public concern. Under the broad
definition, speech deals with matters of “public concern” when it can “‘be fairly
considered as relating to any matter ofpolitical, social, or other concern to the
community.m Spi‘all v. Toff, 180 Wash. App. 620, 632, 324 P.3d 707 (2014);Davis v. Cox,
180 Wash. App. 514, 531, 325 P.3d 255 (2014) (quoting Snyder v. Phelps, 562 US. 443,
131 S. Ct. 1207, 1216, 179 L. Ed. 2d 172 (2011)). Use offactors may arise from the
difficulty in forming a comprehensive and workable definition of “public concern.” The
term “public concern” does not lend itseif to a precise, all-encompassing definition.
Alaska. Structures, Inc. v. Hedlund, 180 Wash. App. 591, 599, 323 P.3d 1082 (20 i4)
(quoting No. 2:13—CV—001 16, 2013 WL 4853333, at *5, 2013 US. Dist. LEXIS 129204,
at *16 (ED. Cal. Sept. 10, 20i3)). “The boundaries of the public concern test are not
well defined.” Snyder, 131 S. Ct. at 1216 (quoting City ofSarz Diego 1). Roe, 543 US.
77, 83, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004)). Because the legislature’s intent in
adopting RCW 4.24.525 was to address lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition. for the redress of
grievances, this court looks to First Amendment cases to aid in its interpretation. Davis,
180 Wn. App. at 530', City ofSeartle v. Egan, 1.79 Wn. App. 333, 338, 317 P.3d 568
20
No. 3 i 83 7-l—lil a dissent
Johnson v. Ryan
(2014) (quoting LAWS OF 2010, ch. 118, § l(l)(a)).
Alaska Structures v. Hedlund, 180 Wash. App. 591 (2014) presents the fullest
analysis of the phrase “public concern.” The Hedlund court employed the California
decision, Rivero v. American Federation ofState. County, and Municipal Employees,
AFLHCIO, 105 Cal. App. 4th 913, 9245 130 Cal. Rptr. 2d 8% (2003), for outlining a series
of categories for determining whether a statement impiicates an issue of public interest
and fails Within the protection of the anti-SLAP}? statute. Hedlund, 180 Wn. App. at
599—600. The first category comprises instances when the statement was of “a person or
entity in the public eye.” The second category comprises circumstances when the
statement “involved conduct that could affect a large number of peopie beyond the direct
participants.” A third category comprises situations when the statement entailed “a topic
of Widespread, public interest.”
The Hedluno’ court also quoted from Weinberg v. Feisel, 110 Cal. App. 4th 1122,
1132, 2 Cal. Rptr. 3d 385 (2003), when sketching relevant factors for determining an
issue of public concern or public interest. Public interest does not equate with mere
curiosity. A matter of public interest should be something of concern to a substantial
number ot‘peopic. A matter of concern to the speaker and a relatively small, specific
audience is not a matter of public interest. There should be some degree of closeness
between the challenged statements and the asserted public interest. The assertion ofa
broad and amorphous public interest is not sufficient. The focus of the speaker’s conduct
should be the public interest rather than a more effort to gather ammunition for another
21
No. 318374411 - dissent
Johnson v. Ryan
round of private controversy. Those charged with defamation cannot make their target
into a public figure. Alaska Structures, Inc. v. Hedlund, 180 Wn. App. at 602-03.
In a defamation case, this court explored the meaning of “public concern” in the
context of a news story about a iawsuit brought by Microsoft for software piracy.
Whether an allegedly defamatory statement pertains to a matter of
public concern depends on the content, form, and context of the statement
as shown by the entire record. Here, the challenged story relates to a court
decision resolving an inteilectual property dispute between a major
software manufacturer and a local retailer. Viewed narrowly, the story
pertains to a private dispute between two business entities. In a broader
context, however, the dispute touches on a matter of public importance,
software piracy. The public concern is heightened by the fact that Alpine
apparently sold counterfeit software to the general consumer. In an age
where the use ofpersonal computers is widespread, the retail distribution of
pirated software is a matter of acute importance to general consumers. This
is a matter where the First Amendment plays a role in ensuring the free
flow of information to the public. Accordingly, the Dan & BradstreerL Inc.
v. Greenmoss Builders, Inc, 472 US. 749, 105 S. Ct. 2939, 86 L. Ed. 2d
593 (1985)] factors indicate the Alpine case was a matter of public concern
deserving of heightened protection.
Alpine Ina’us. Computers, Inc. v. Cowles Pabl’g C0,, 114 Wash. App. 371, 393-94, 57 P.3d
i 178 (2002) (citation omitted). The decision illustrates that a private dispute and a
lawsuit may be of public concern.
The majority relies on Tyner v. Department ofSocz'aZ & Health Services (DSHS),
137 Wash. App. 545, 354 P.3d 920 (2007) for concluding that James Ryan’s speech was
not in connection with an issue of public concern. DSHS discharged Paula Tyner as part
of a reduction in force, but subsequently reassigned her to a different position. She sued
claiming DSHS reassigned her in retaliation for her exercising free speech rights. Tyner
22
No. 31837—1411 - dissent
Johnson v. Ryan
lacks a correlation to anti-SLAP}3 iaw, because of the unique test employed when
determining whether the government violates an employee’s free speech rights when
discharging or demoting a government employee after the employee criticizes the
employer. The court baiances the employee’s interest with the interest of the government
in promoting the efficiency of the public services. The government has legitimate
interests in regulating the speech of its employees that differ significantly from its interest
in regulating the speech ofpcople generally. Binkley v. City ofTacoma, 1 l4 Wn.2d 373,
381—82, 787 P.2d 1366 (1990).
More importantly, the Tyner court noted that speech on the job generally is not a
matter of public concern because the speech is not disseminated to the public. Paula
Tyner’s eninmnnication occurred in the work setting. The court held that “a comment
addressed solely to an internal audience without any intent to bring it to the pnblic’s
attention does not constitute a matter of public concern.” 13'? Wn. App. at 558. Our
majority ignores this holding. James Ryan wrote his hlog after being discharged from
employment and he disseminated his comments to the Spokane public, ifnot the
universal public. According to Ryan’s unchallenged testimony his blogs received over
36,000 hits. James Ryan was no longer employed when he posted his biogs.
The majority discusses at length White v. State, 131 Wn.2d l, 929 P.2d 396
(1997). Judy White, an employee at a state nursing home, alleged the State transferred
her to a new position, in violation of her First Amendment rights, in retaliation for
reporting patient abuse. The court held: “T he fact that White may have had a personal
23
No. 31837—1411" dissent
Johnson 12. Ryan
interest in reporting the incident does not diminish the concern the public would have in
this matter.” 131 Wn.2d at £3. The court held White’s speech to be a matter of public
concern. The court dismissed the suit, however, because White failed to establish a
causal connection between her transfer and her protected speech. The White decision
supports a ruling in favor of James Ryan.
We should apply the anti»SLAPP statute liberally and provide protection to a
speaker if his speech has the slightest shade of public concern. Even ignoring these two
guidelines, the factors and categories outiined in Hedlund compel a conclusion that James
Ryan’s speech, for which Yvonne Johnson sues, embraces an issue of public concern.
When ruling that James Ryan’s writings lie outside the protection of Washington’s
anti-SLAPP statute, the majority cherry picks a few sentences ot‘Ryan’s prose, omits a
review of the compiete blogs, and ignores the backgrounds of the Spokane Civic Theatre
and Yvonne Johnson. Spokane’s leading newspaper quoted Johnson as a gift to the
community, who enabled the Spokane Civic Theatre to regain its standards as a glorious
and reiiable area theater. Johnson was the Civic Theatre’s face to the Spokane public and
other arts organizations. The Civic Theatre fired Ryan because he did not fulfill “high
public standards charged to representatives of the Theatre.” CP at 84. According to
Yvonne Johnson, Ryan’s actions were “public actions” that must satisfy the Theatre’s
diverse community. Because the Spokane Civic Theatre depends on the goodwiii of the
greater Spokane metropolitan. area, Ryan’s conduct exposed. the Theatre to “public
scandai” and oblivion. According to Johnson, the Civic Theatre is a vanguard of the
24
No. 31837~l~lll ~ dissent
Johnson v. Ryan
dramatic arts in Spokane that must push the boundaries of creativity and expression for
the betterment of the community. Art is considered a matter of public concern. United
States v. Alvarez,
U.S.M,132 S. Ct. 2537, 2564,183 L. Ed. 2d 574 (2012); State v.
Crowley, 819 N.W.2d 94, 124 (Minn. 2012).
biogs:
The following is a paraphrased list of comments uttered by James Ryan in his
Yvonne J ohnsoncapitulated to an extortionist but took no steps to
learn the identity of the extortionist.
The Spokane Civic Theatre, through Yvonne Johnson, wrongly
challenged my application for unemployment compensation.
Yvonne Johnson tiled false allegations with the Department of
Employment Security.
Yvonne Johnson falsely accused me of exposing the Spokane Civic
Theatre to public scandal and obscurity.
The Spokane Civic Theatre uttered lies before the Department of
Employment Security.
The Spokane Civic Theatre falsely accused me, in the Employment
Security proceeding of deliberate illegal acts and provoking violence.
The Spokane Civic Theatre cast slanderous aspersions against a
former employee in a government proceeding.
I prevailed in my unemployment compensation claim.
Yvonne Johnson is not an honest and interpersonally competent
executive.
Yvonne Johnson caused undue drama in the drama department.
Yvonne Johnson is malicious.
Yvonne Johnson does not act in the best interest of the Spokane
Civic Theatre.
Yvonne Johnson. exposed the Spokane Civic Theatre to a defamation
claim.
Johnson caused irreparable harm to the Spokane Civic Theatre.
Yvonne Johnson and. the Board of the Spokane Civic Theatre are
bringing negative attention to the Theatre.
Johnson should resign as Executive Artistic Director of the Spokane
Civic Theatre.
Yvonne Johnson and the Board of Directors of the Spokane Civic
25
No. 31837wiwlii — dissent
Johnson v. Ryan
Theatre should be publicly held accountable.
Yvonne Johnson seeks to leave the Spokane Civic Theatre to find a
better and bigger job.
Yvonne Johnson wiii bring drama and divisiveness to any new
employer.
Potential empioyers of Yvonne Johnson should contact me.
Few defendants win in claims brought, in front of a Uniform
Domain Name Dispute Resolution Policy panel, for violating a right to a
domain name, but i won on a claim brought by the Spokane Civic Theatre.
Yvonne Johnson and the Board of the Spokane Civic Theatre wasted
several thousand doiiars of Theatre money by suing me for domain name
infringement.
I iost my wrongful discharge suit against the Spokane Civic Theatre,
which is a disappointment to Yvonne Johnson since my winning the suit
wouid have satisfied my desire for payment.
Because of the dismissal of the wrongfiii discharge case, the
Spokane Civic Theatre must pay serious money to settle my claims.
Yvonne Johnson. intimidated a witness in my wrongqu discharge
suit.
Yvonne Johnson threatens to sue me for defamation and tortious
interference.
The deadline imposed by Yvonne Johnson for suing has passed
without my responding.
Yvonne Johnson can sue me.
All other major theatres in the Inland Empire have hired me since
my tiring from the Spokane Civic Theatre.
Well meaning people tell me that I will receive no money from the
Spokane Civic Theatre.
I am right and the Spokane Civic Theatre is wrong.
I wiil receive justice.
I wiii not end my campaign to hold Yvonne Johnson accountable.
In one or two paragraphs ofhis several blogs, James Ryan discusses his desire to
receive vindication and compensation. The overwhelming discussion, however, is of the
mismanagement of the Spokane Civic Theatre by Yvonne Johnson and its board of
directors. The management of the Theatre impacts many Inland Empirites, not only
26
No. 31837—1—Hl- dissent
Johnson 12. Ryan
James Ryan and Yvonne Johnson. At least one thousand volunteers and donors assist the
Civic Theatre. More attend Theatre productions.
The public should know if Yvonne Johnson mismanages the Spokane Civic
Theatre. The pubiic should aiso know if Johnson is wasting money on litigation, lying to
government entities, and intimidating a witness. James Ryan is engaged in a controversy '
with Yvonne Johnson, but his blogs have not sought ammunition to assist in the
litigation. Johnson and the Spokane Civic Theatre were already in the public eye before
they fired James Ryan.
A consideration of the reiief sought by the party asserting the cause of action can
be a determinative factor when resolving the question of whether speech is of a public
concern for purposes of the anti-SLAP}? statute. Davis v. Cox, 180 Wash. App. 514, 523,
325 P.3d 255 (201.4). A prayer for injunctive relief to preclude the defendant from
speaking is a factor favoring granting an anti-SLAPP motion to strike. Davis, 180 Wn.
App. at 523. Yvonne Johnson seeks injunctive relief against James Ryan for continuing
to post blogs. She seeks a prior restraint on James Ryan’s First Amendment rights.
California Case Law on Public Concern
Washington decisions alone compel a ruling in favor of James Ryan.
Nevertheless, I beiieve California anti~SLAPP decisions bolster the conclusion that Ryan
uttered speech in connection with an issue of pubiic concern. Therefore, I address
whether a Washington court may reiy on California decisions.
27
N0. 3 i 837~ 1 ~11}
Johnson v. Ryan
protects the free expression of Washington citizens by shielding them from meritless
iawsuits designed only to incur costs and chill future expression. Wyrwich, supra, at 663.
The 2010 Washington Act contains a declaration of purpose:
(1) The legislature finds and declares that:
(a) It is concerned about lawsuits brought primarily to chill the vaiid
exercise of the constitutional rights of freedom of speech and petition for
the redress of grievances;
(b) Such lawsuits, called “Strategic Lawsuits Against Pubiic
Participation” or “SLAPPS,” are typically dismissed as groundless or
unconstitutional, but often not before the defendants are put to great
expense, harassment, and interruption of their productive activities;
(0) The costs associated with defending such suits can deter
individuals and entities from fully exercising their constitutional rights to
petition the government and to speak out on public issues;
(d) It is in the public interest for citizens to participate in matters of
pubtic concern and provide information to public entities and other citizens
on public issues that affect them without fear of reprisal through abuse of
the judicial process; and
(e) An expedited judicial review would avoid the potential for abuse
in these cases.
(2) The purposes of this act are to:
(a) Strike a balance between the rights of persons to file lawsuits
and to trial by jury and the rights ofpersons to participate in matters of
public concern;
(b) Establish an efficient, uniform, and comprehensive method for
speedy adjudication of strategic lawsuits against pubiic participation; and
(c) Provide for attorneys’ fees, costs, and additionai relief where
appropriate.
LAWS or 2010, ch. 118, § 1.
NO. 31837—l—lll ~ dissent
Johnson v. Ryan
The majority emphasizes that the California anti-SLAP}.J statute uses the phrase
“public interest,” whereas the Washington statute employs the term “public concern.” in
turn, the majority applies the principle of statutory construction that, if our legislature
modifies a provision of the borrowed statute, the legislature rejects the case law decided
under the contrary language in the borrowed statute. The majority, however, fails to
explain the difference between “public concern” and “public interest.” The majority
withholds enlightenment as to the practical implications between distinguishing between
a subject of public interest and a topic of public concern. The majority provides no
example as to a different outcome depending which phrase is used, nor does it address
whether there would be a different outcome in this appeal under the California statute.
The majority, upon noting the difference in the wording between the Washington
and California statutes, implies that Washington courts should not rely on California
decisions because the California statutory language covers more subjects and affords the
speaker greater protection than Washington’s statutory language. Nevertheless, we do
not know Why the Washington Legislature changed the statutory language from “public
interest” to “public concern.” The Act’s legislative history reveals nothing to explain this
deviation from the California statute. Torn Wyrwich, A Curefor a “Public Concern
Washington ’3 New Anti—SLAPP Law, 86 WASH. L. REV. 663, 684455 (20} 1). We do not
know if the Washington Legislature concluded that the California anti—SLAP? statute
was too broad. For all we know, the opposite is true—that the Washington Legislature
thought “public concern” covered more subjects and provided the speaker greater
28
No. 31837-l-lll - dissent
Johnson 12. Ryan
protection. than Caiifornia’s phrase of “public interest.” If this is true, California
decisions, to the extent they protect the defendants’ speech, are helpful because the
Washington statute covers at ieast the subjects covered by the California statute. Since
the Washington Legisiature wanted the Washington anti—SLl-ttli’lD statute applied iiberally,
we should conclude that the Washington statute provides the same protectionsa if not
more protection: than the Caiifornia statute.
A possible explanation for the difference between the California and Washington
statutes is the Washington Legisiature’s desire for courts to employ First Amendment
decisions when construing the anti-SLAPP statute because First Amendment decisions
use the expression “public concern.” Wyrwich, supra, at 685. This expianation falis
short, however, since California cases also look to First Amendment cases when applying
its antinLAPP statute. Weinberg V. Faisal, 110 Cal. App. 4th 1122, 1132, 2_ Cal. Rptr. 36
385 (2003).
Contrary to the majority’s position, Washington courts look to California
decisions in answering questions posed. by the anti-SLAPP statute. Sprain v. Tofi, 180
Wash. App. 620, 630-31, 324 P.3d 707 (2014); Alaska Structures, Inc. v. Hedlund, 180 Wn.
App. 59i, 6024B, 323 P.3d 1082 (2014). Washington courts have never heid that
California decisions addressing the nature of “public interest” are inapposite when
addressing the nature of “public concern.” To the contrary, the Hedlund court cited and
used. fifteen California cases when exploring the extent of “an issue ofpubiic concern.”
Alaska Structures, Inc. v. Hedlund, 180 Wn. App. at 599-603. Our majority even
29
No. 31837—l-Hl - dissent
Johnson 12. Ryan
includes a quote from the California decision 01“ Weinberg in construing the meaning of
“public concern,” despite earlier proclaiming to disown California case law. Majority at
1344.
The majority also uses California law when it erroneously claims that speech that
only tangentially implicates a public issue is not a matter of public concern. Majority at
18. The majority cites Dillon v. Seattle Deposition Reporters, 179 Wn. App. at 72 (2014)
for the misplaced proposition, but the Dillon language comes from Martinez 12.
Metabolife International, Inc, 113 Cal. App. 4th 181, 188, 6 Cal. Rptr. 3d 494 (2003).
The majority cites California decisions when California law suits its purposes.
in another setting, the Washington Supreme Court used the terms public “interest”
and “concern” interchangeably. See Taskett V. KING Broadcasting C0,, 86 Wash. 2d 439,
440, 442, 444, 546 P.2d 81 (1976), In her briefing, Yvonne Johnson relies on California
cases when arguing what constitutes an issue of “public concern.” In short, we should
look to California decisions when deciding if a defendant”s statements deserve protection
under the Washington anti—SLAPP statute. Although the Washington statute and case
law is sufficient to hold James Ryan’s speech of public concern, California cases bolster
this conclusion.
Based on the three categories found in Rivera v. American Federation of State,
County, and Municipal Employees, AFL—CIO, 105 Cal. App. 4th 913, 130 Cal. Rptr. 2d
81 (2003), California cases hold that consumer information posted on web sites concern
issues ofpublic interest. Malcaeflv. Trump Univ., LLC, 715 F.3d 254, 262 (9th Cir.
30
No. 318374-111- dissent
Johnson 1). Ryan
2013) (applying California law); Wong v. TaiJing, 189 Cal. App. 4th 1354, 117 Cal.
Rptr. 3d 747 (2010); Gilbert v. Sykes, 147 Cal. App. 4th 13, 23, 53 Cal. Rptr. 3d 752
(2007). In Gilbert, the court held a patients-statements about a plastic surgeon were of
public interest because the information provided was material to potential consumers
“contemplating plastic surgery.” In Wong, a review on Yelp.com criticizing dental
services and discussing the use of silver amalgam, raised issues of public interest. The
Ninth Circuit Court of Appeals, in Makaefl, held that statements warning consumers of
fraudulent or deceptive business practices constitute a topic of widespread public interest,
so long as they are provided in the context of information helpful to consumers.
Although theatergoers may not be characterized as consumers, they are customers
or patrons of the arts. Providing them information on the management of the Spokane
Civic Theatre should be a matter of public concern.
Other California decisions stand for additional propositions. Even purely private
speech may be covered by an'anti-SLAPP statute if it concerns a public issue. Averill v.
Superior Court, 42 Cal. App. 4th 1170, ll74, 50 Cal. Rptr. 2d 62 (1996). The creative
process underlying the production of arts and entertainment is a matter of public concern.
Tamkirz v. CBS Broadcasting, Inc, 193 Cal. App. 4th 133, 14344, 122 Cal. Rptr. 3d 264
(2011). Unilattering speech by a former employee about working conditions at a private
company is an issue of public interest when the company and its founder spent a great
deal of money and effort to promote the business. Nygard, Inc. 12. Time Uusi-Kerrrula,
159 Cal. App. 4th 1027, 1033, 1042, 72 Cal. Rptr. 3d 210 (2008). Untiattering speech on
31
No. 31837—1411 n dissent
Johnson v. Ryan
a “Rants and Raves” website by a former employee about a private bank’s management
decisions was a public issue when the bank actively promoted itself as a “community
partner” and its chief executive officer had been the subject of media attention. Summit
Bank v Rogers, 206 Cal. App. 4th 669, 694, 142 Cal. Rptr. 3d 40 (2012). Under the
California antimSLAPP statute, statements held to involve issues ot‘pnblic interest include
criticism of the management of a publicly traded company. ComputerXpress, Inc. 12.
Jackson, 93 Cal. App. 4th 993, 1007-08, 113 Cal. Rptr. 2d 625 (2001); Global Telemeclla
Int’l, Inc. v. Doe, 132 F. Supp. 2d 1261 (CD. Cal. 2001). Examples ot‘matters ofpublic
interest may include activities of private entities that may impact the lives of many
individuals. Church ofScienlology v. Wellershelm, 42 Cal. App. 4th 628, 650, 49 Cal.
Rptr. 2d 620 (1996).
A California court also held criticism of the manager ofa homeowners association
to be a matter ofpnblic interest. Damon 12. Ocean Hills Journalism Club, 85 Cal. App.
4th 468, 479, 102 Cal. Rptr. 2d 205 (2000). In the latter case, the management and
welfare of a large residential community was a matter ofpublic interest. The Damon
court noted the mandate to broadly construe the anti-SLAPI3 statute. The anti-SLAPP
statute applies regardless of whether the “primary purpose” of the lawsuit is to vindicate
the damage done to plaintiff’s reputation and not to interfere with the defendant’s
exercise of his free speech rights.
Another case helpful to James Ryan is Averill v. Superior Court, 42 Cal. App. 4th
li70, 50 Cal. Rptr. 2d 62 (1996). A charitable organization sued Averill after she made
No. 31837~1~III~ dissent -
Johnson v. Ryan
allegedly slanderous remarks about the organization to her employer. The einpioyer was
supporting the organization’s home for battered women, which Averill publicly opposed.
Even though Averill’s remarks were made in a private setting, the court held the suit
subject to the anti-SLAPP statute. The court stressed the fact that, while the remarks
were private, the subject of the remarks—the home for battered womenwwas a topic of
considerable public controversy.
Yvonne Johnson emphasizes that the Spokane Civic Theatre is not a government
entity and she argues that she is not a public figure. Johnson ignores, however, that the
Theatre operates by the help of one thousand volunteers and with. donations from
throughout the Spokane community. Thus, thousands of Spokanites hold. concern about
the operation of the Spokane Civic Theatre. Averill stands for the proposition that a
nonprofit organization can be a matter of public interest and criticism of the organization
can be protected by an anti—SLAP? statute.
Motivation of James Ryan
Yvonne Johnson characterizes James Ryan’s comments as an attempt to coerce,
through slander, a monetary settlement from the Spokane Civic Theatre or herself. Based
on this characterization, Johnson argues that the antiuSLAPP statute does not apply
because Ryan seeks to further only personal, financial interests. She contends a
defendant in an ordinary private dispute cannot take advantage of the anti~SLAPP statute
simply because the complaint contains some references to speech or petitioning activity
by the defendant, citing Dillon 12. Seattle Deposition Reporters, LLC, 179 Wash. App. 41,
33
No. 31837-1—111 — dissent
Johnson v. Ryan
71, 316 P.3d 1319, review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014).
The majority accepts Yvonne J ohnson’s portrayal of James Ryan’s speech. The
majority summarizes James Ryan’s speech as: Johnson wrongfully terminated me; she
caused me financial damages and embarrassment; I will cause her financiai damages and
embarrassment. The majority characterizes these thoughts as the “dominant themes” of
Ryan’s writings. 1 am. nonplused as to how the majority assesses the “dominant theme”
ofJames Ryan’s cyber chatter. A readin of the blogs as a Whole shows one of the
dominant themes to be the mismanagement of the Spokane Civic Theatre. The statute
requires a “connection” to pubiic concern not that this concern be the primary motive.
Ryan’s repeated discussion of the Theatre’s mismanagement provides this connection.
1 recognize portions of James Ryan’s biogs indirectly seek a financial settlement.
I agree with the majority that James Ryan is obsessed with vengeance. I concede that
Ryan’s attacks on Johnson are unfair. For these reasons, J ames Ryan is not a sympathetic
defendant, but an undesirable defendant needs the protection afforded by the anti-SLAP?
statute more than does an attractive defendant.
Even if coercion and vengeance were the prime motivation of James Ryan, the
antiuSLAPP statute does not exclude speech from its protection if the speaker seeks to
gain money, as ion g as the content of the speech is a matter of public concern. A fixation
with revenge does not automatically close the door to a determination that the writing is
of public concern. N0 language in RCW 4.24.525 excludes, from the statute’s shieid,
speech motivated by greed or revenge. No case iaw supports such a contention.
34
No. 31837-l-lll - dissent
Johnson v. Ryan
Some of the world’s finest literature addressing a tOpic of public and grave
concern was written. in a spiteful spirit. A prime example is Ida Tarbell’s History of the
Standard Oil Company, which depicts John D. Rockefeller, Sn, as a crabbed, iniseriy,
greedy monopolist. Tarbell penned the book from enmity and vengeance resulting from
Rocket‘eller‘s ruthless tactics that put her father out of the oil business. New York
University listed the book as number five on a 1999 list of the top 100 works of twentieth
century journalism.
Yvonne Johnson was in the public eye as a result of her leading position with a
cherished community theater and newspaper articies praising her performance. One in
the public eye soon learns that unfair attacks often follow public praise. The remedy for
verbal abuse, however, is not found in a lawsuit. Johnson should find some consolation
that many readers find James Ryan’s blogs obsessive, boorish, and foolish. Also, a
court‘s ruling or this dissenter’s vote for protection of speech does not denote approval of
the speech. Whether hyperbolic or sensational, the speech at issue in this case bears a
connection to an issue of public concern: Spokane’s Civic Theatre and its management.
Probability ofJonnson Prevailing on Claims
The antiuSLAPP motion procedure statute dictates that, after the moving
party has shown that the claims at issue seek to impose liability for statements “in
connection with an issue of public concern,” “the burden shifts to the responding party to
establish by clear and convincing evidence a probability of prevailing on the claim.”
RCW 4.24.525(2)(d), (4)(b). The majority does not address whether Yvonne Johnson
35
No. 31837~1—JH ~ dissent
Johnson 12. Ryan
meets this burden, since the majority rules that James Ryan has not shown his speech
invoived a matter of public concern. In the public interest of brevity and being motivated
by public concern, i win aiso refrain from anaiyzing this question in detail. I agree with
the trial court that Johnson did not meet her burden.
Concurring Opinion
Although the concurring opinion does not seek to base the majority” s decision on
the Washington Constitution, the opinion mentions articie L section 5 of the Washington
Constitution that demands that a speaker be responsible for the abuse of the right to freely
speak and write. Yvonne Johnson has not asserted this internally inconsistent
constitutionai provision as a basis for relief. Johnson quoted the provision in the
introduction to her reply brief, but did not discuss its application to her claims. Under
RAP £2.1(a), this reviewing court decides a case only on the basis of issues forwarded by
the parties in their briefs.
CONCLUSION
The 2010 anti-SLAPP statute, RCW 4.24.525, immunizes James Ryan from the
tort claims of Yvonne J ohnson. The trial court’s dismissal of Johnson’s complaint should
be affirmed.
if '
,\ gag/mag "'
x
Fearing, J.
36
No. 318374-111
Johnson v. Ryan
This declaration of purpose evidences the legislative goals of balancing the rights
of both plaintiffs and defendants, yet allowing expedited judicial review and dismissal of
those defamation claims brought abusiver for the primary purpose of chilling protected
public speech. The iegislature directed courts to apply and construe the Act “liberally to
effectuate its general purpose of protecting participants in public controversies from an
abusive use of the courts.” LAWS OF 2010, ch. 118, § 3.
The new addition to Washington’s anti—SLAP]? laws is codified at RCW 4.24.525.
RCW 4.24.525(4)(a) allows a party to bring a special motion to strike any claim that is
based on an “action involving public participation and petition.” Section 4 of the statute
outiines the procedure to foliow to respond to a SLAPP suit. The section provides:
(4)(a) A party may bring a speciai motion to strike any claim that is
based on an action involving public participation and petition, as defined in
subsection (2) of this section.
(b) A moving party bringing a special motiou to strike a ciaim under
this subsection has the initial burden of showing by a preponderance of the
evidence that the claim is based on an action involving public participation
and petition. If the moving party meets this burden, the burden shifts to the
responding party to establish by clear and convincing evidence a probabiiity
of prevaiiing on the claim. If the responding party meets this burden, the
court shall deny the motion.
(c) In making a determination under (b) of this subsection, the court
shall consider pleadings and supporting and opposing affidavits stating the
facts upon which the liabiiity or defense is based.
RCW 4.24.525.
No. 31837~1~111
Johnson v. Ryan
in deciding an anti-SLAP? motion, a court must follow a two step
process. A party moving to strike a claim has the initial burden of
showing by a preponderance of the evidence that the claim targets
activity “involving pubiic participation and petition,” as defined in
RCW 4.24.515(2). US. Mission Corp. v. KIRO TV, Inc, 172 Wn.
App. 767, 782-83, 292 P.3d 137, review denied, 177 Wash. 2d 1014,
302 P.3d 181 (2013). lfthe moving party meets this burden, the
burden shifts to the responding party “to establish by clear and
convincing evidence a probability of prevailing on the claim.”
RCW 4.24.525(4)(b). 1f the responding party fails to meet its
burden, the court must grant the motion, dismiss the offending claim,
and award. the moving party statutory damages of $10,000 in
addition to attorney fees and costs. RCW 4.24.525(6)(a)(i), (ii).
Davis v. Cox, 180 Wash. App. 514, 528, 325 P.3d 255 (2014) (quoting Dillon 12.
Seattle Deposition Reporters, LLC, 179 Wash. App. 41, 67—68, 316 P.3d 1119,
review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014)).
Because RCW 4.24.525 provides an expedited summary judgment procedure,
courts apply summary judgment standards when ruling upon RCW 4.24.525 motions to
strike: “‘ [T]he triai court may not find facts, but rather must view the facts and all
reasonable inferences in the light most favorabie to the plaintif .’ ” Davis, 180 Wn. App.
at 528 (quoting Dillon, 179 Wn. App. at 90). In addition, we review the grant or denial of
an anti-SLAP? motion de novo. Dillon, 179 Wn. App. at 70; City ofLongview v. Wallin,
.174 Wn. App. 763, 776, 301 P.3d 45, review denied, 178 Wn.2ct 1020, 312 P.3d. 650
(2013).
10 | 01-03-2023 | 03-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/225215/ | 182 F.2d 624
50-1 USTC P 9341
BODDEN,v.COMMISSIONER OF INTERNAL REVENUE.
No. 13039.
United States Court of Appeals Fifth Circuit.
June 9, 1950.
Scott P. Crampton, Geo. E. H. Goodner, Washington, D.C., for petitioner.
Francis W. Sams, Ellis N. Slack, Melva M. Graney, Sp. Assts. to Atty. Gen., Theron Lamar Caudle, Asst. Atty. Gen., Charles Oliphant, Chief Counsel, Bureau of Internal Revenue, John M. Morawski, Sp. Atty., Bureau of Internal Revenue, Washington, D.C., for respondent.
Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges.
PER CURIAM.
1
When this case was submitted to, and decided by the Tax Court, the case of Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659, had not been decided, and the questions arising in this case were decided and the facts determined by the Tax Court without the benefit of that decision.
2
We are of the opinion that before considering the petition for review of the Tax Court's decision in this case, we should have the benefit of its re-examination of the questions and its re-determination of the facts in the light of the opinion in the Culbertson case.
3
We, therefore, order a remand of this cause to the Tax Court for further proceedings in conformity with the opinion of the Supreme Court in the Culbertson case with the right in either of the parties to offer such further or additional evidence and take such further or additional positions as may be appropriate in the light of that opinion. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1009569/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7364
JAMES ALVIN BOULWARE,
Plaintiff - Appellant,
versus
B. EZELL; CHARLES MCQUEEN; RICHARD TROMBLEY;
SAURE ROBINSON; DANIELL SHAW,
Defendants - Appellees,
and
TOM SMITH; JASON ELLIS; BONNIE HAYS; DAVID
MITCHELL,
Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Chief
District Judge. (CA-99-226-1-MU)
Submitted: January 16, 2003 Decided: January 23, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Alvin Boulware, Appellant Pro Se. Monica Foust Speight,
Jonathan A. Berkelhammer, SMITH MOORE, L.L.P., Greensboro, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Alvin Boulware appeals the district court’s orders
dismissing his due process claim alleging that he was denied access
to certain legal materials; and granting summary judgment to the
Defendants and denying relief on his 42 U.S.C. § 1983 (2000)
complaint. We have reviewed the record and find no reversible
error. Accordingly, we affirm on the reasoning of the district
court. See Boulware v. Ezell, No. CA-99-226-1-MU (W.D.N.C. filed
May 30, 2000 & entered May 31, 2000; filed Aug. 30, 2002 & entered
Sept. 3, 2002). We deny Boulware’s motion for appointment of
counsel. 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/1058367/ | 672 S.E.2d 862 (2009)
STATE OF MAINE
v.
Richard L. ADAMS, Jr.
Record No. 080987.
Supreme Court of Virginia.
February 27, 2009.
*863 Thomas A. Knowlton, Assistant Attorney General for the State of Maine (Christopher M. Day, on briefs), for appellant.
Robert K. Richardson (Odin, Feldman & Pittleman, on brief), Fairfax, for appellee.
Present: All the Justices.
OPINION BY Justice BARBARA MILANO KEENAN.
This appeal concerns an action to quiet title to a copy of the Declaration of Independence (the Declaration) that was printed in July 1776. We consider whether the circuit court erred in holding that a Virginia resident *864 who purchased this document had superior title than that claimed by the State of Maine, which contended that the document was a public record owned by the Town of Wiscasset, Maine.
In July 1776, after the Second Continental Congress approved the Declaration of Independence, each of the colonial delegations was charged with informing its residents about the colonies' decision to separate from England. The Massachusetts Executive Council (the Executive Council), an entity that shared governing responsibility with the Massachusetts legislature, issued an order directing that copies of the Declaration be printed and delivered to the ministers of all churches in Massachusetts so that the document could be read to the ministers' congregations.[1]
The Executive Council commissioned E. Russell, a private printer in Salem, Massachusetts, to print these copies of the Declaration. Such copies of documents intended for widespread distribution were commonly referred to as "broadsides."
The broadsides that Russell printed contained the Declaration's text and the Executive Council's order directing distribution and promulgation of that document. The broadsides also included the Executive Council's additional order requiring that the ministers, after reading aloud the Declaration, deliver the broadsides to the town clerks. The order directed the town clerks to record the Declaration's text in their respective town record books "to remain as a perpetual Memorial thereof." Neither the Executive Council's order nor any other law directed the town clerks regarding the proper disposition of the broadsides after their contents were transcribed in the town record books.
The broadside at issue in this case (the print) bears a handwritten notation on its reverse side stating that the print was delivered to the Reverend Thomas Moore in the Town of Pownalborough and read to his congregation. An additional notation indicates that the Reverend Moore later delivered the print to the Reverend John Murray, pastor of a church in Booth Bay, Massachusetts, about 11 miles from Pownalborough.
Also appearing in handwritten text on the reverse side of the print is the following notation:
To [Pownalborough] Town Clerk according to the with in [sic] Authority having read the within Proclamation. I return it to you to be Recorded as ye law directs. Thos. Moore. Pownalborough October 19th, 1776.
On November 10, 1776, Edmund Bridge, the town clerk of Pownalborough, transcribed the text of the Declaration into the official town book in accordance with the Executive Council's order.
There is no direct evidence regarding the location of the print in the years immediately after Bridge recorded the text of the Declaration. However, certain handwritten entries on the reverse side of the print state: "from 1776 to 1784 Warrants [etc.]," "Town Warrants [etc.]," "Pownalborough," "Declaration of Independence, July 1776," and "Loose Papers no Taxes."
The location of the print remained unknown until 1995, when Harold Moore, an auctioneer hired by the estate of Anna Holbrook Plumstead (Anna), discovered the print in the attic of Anna's home in Wiscasset, Maine. The print was folded in a box containing minutes from a Pownalborough town meeting held in 1795, personal family receipts, and other papers unrelated to town business. Wiscasset, Maine (the town) was formerly known as Pownalborough, Massachusetts. The town's name was changed from Pownalborough to Wiscasset in 1802, and Maine became a state in 1820.
Anna was the daughter of Solomon Holbrook, who served as the town clerk from 1885 until his death in 1929. Pownalborough and Wiscasset have had a total of 41 town clerks during the period between 1760 and the date of trial, and Holbrook was the 28th clerk in order of service to hold that position. Although Holbrook once owned Anna's house *865 where the print was found, Holbrook never lived in that house.
After Harold Moore discovered the print in Anna's house in 1995, Seth Kaller of Kaller Historical Documents, Inc. purchased the print at auction for $77,000. In 2001, Kaller sold the print to Simon Finch, a rare book dealer in London, England, for $390,000. In 2002, Richard L. Adams, a Virginia resident, purchased the print from Finch for $475,000.
In 2005, the State of Maine (Maine), on behalf of the town, sought to recover the print from Adams based on Maine's assertion that the print was a public record owned by the town. Adams filed an action in the circuit court to quiet title to the print contending that he was its lawful owner. The case proceeded to a bench trial.
The evidence at trial showed that until 1967, the Pownalborough and Wiscasset town clerks performed the duties of their part-time position from their homes. In 1967, the town began conducting its business from a public town office. The current town clerk testified that although a library was built in the town in 1805, it is unknown when the library began storing certain town records that now are housed there.
Jonathan S. Kiffer, Senior Vice President of Sotheby's, testified as an expert on the subject of rare documents created around the time the print was made. Kiffer stated that broadsides like the print in question were printed as news releases or bulletins and were in the category of documents referred to as "ephemera," or items produced to serve only a brief purpose. According to Kiffer, once the news contained in a broadside was disseminated, the broadside had fulfilled its purpose and could be discarded.
Maine presented the expert testimony of Albert H. Whitaker, Jr., a former Massachusetts State Archivist who was familiar with colonial records. Whitaker stated that in his opinion, the standard practice for a town clerk in 1776 would have been to retain the print as a town record. Whitaker testified that he based his opinion on the fact that the print was directed to the town clerk's attention and the town clerk actually received the print.
Whitaker also testified that a town generally would retain a document whose contents were recorded in a town book because the original document was considered a superior form of written instrument. However, Whitaker stated that this particular town's record keeping was inconsistent regarding documents other than those relating to births, deaths, marriages, real property, elections, and town meetings.
In his testimony, Whitaker also discussed the handwritten entries appearing on the reverse side of the print. As set forth above, those entries stated: "from 1776 to 1784 Warrants [etc.]," "Town Warrants [etc.]," "Pownalborough," "Declaration of Independence, July 1776," and "Loose Papers no Taxes." According to Whitaker, these entries indicated that the print continued to "reside" with the town's clerks for "at least a short period of time" after 1776. However, Seth Kaller, the dealer in rare documents who purchased the print at auction in 1995, testified that these particular entries suggested "endless possibilities" regarding who made these entries and when they were made.
After considering the evidence, the circuit court issued a letter opinion explaining its ruling in favor of Adams. Addressing Maine's argument that the print was a "public record" under Maine statutory law, the circuit court held that the 1973 statutory definition of that term was inapplicable because it did not have retroactive effect.[2] However, the circuit court also addressed the merits of Maine's statutory argument, ruling that even if that statutory definition did have retroactive effect, Maine failed to establish that the town "maintained" the print as required by that statutory definition.
In addition, the circuit court determined that the print did not meet the common law definition of a "public record" because a public officer did not create the print. The circuit court also found that Maine failed to prove that the town "kept" the print as a town record.
Finally, the circuit court concluded that Maine failed to prove that even if the town *866 clerk had once possessed the print, the print later was converted. The circuit court found that Maine presented no evidence that the print was wrongfully removed or converted. The circuit court stated that any conclusion regarding when and how the print left the town's possession would be conjecture.
Based on these findings, the circuit court held that because Maine failed to establish ownership of the print, Adams had superior title to the print as a bona fide purchaser and the party in possession of the print. The circuit court entered a final judgment order incorporating its letter opinion. Maine appeals.
Maine argues that the circuit court erred in ruling that Adams established superior title to the print. Maine begins its analysis by arguing that the circuit court erred in failing to apply a preponderance of the evidence standard and in assigning Maine the burden of proving "conclusively" that the print was kept or maintained by the town. Maine contends that, to the extent that it had a burden of proof, Maine proved that the town is the true owner of the print because the print meets the definition of a "public record" under Maine statutory law.
In the alternative, Maine asserts that the print qualifies as a public record under the common law. Maine contends that the evidence demonstrated that the town kept the print for a sufficient period of time, after its delivery to the town clerk in 1776, so as to render the print a public record. Maine contends that the evidence showed that town records were kept by town clerks at their homes in the 18th, 19th, and 20th centuries, and that this evidence explains the location of the print in the home of a daughter of a former town clerk.
Maine additionally asserts that the circuit court erred in ruling that the common law requires that a public record be created by a public official. Maine contends that the print qualified as a public record under the common law because although Russell was a private printer, he created the broadsides at the direction of the Executive Council.
In response, Adams argues that the circuit court correctly decided that Adams established superior title to the print. With respect to Maine's common law argument, Adams contends that Maine failed to prove that the town owned the print under the common law definition of "public record" because the print was not a written memorial made by a public officer. Adams maintains that under the common law definition, the copy of the Declaration that the town clerk transcribed into the town book is the only public record established by the evidence.
Adams also argues that Maine was unable to show that the town "kept" the print, within the meaning of the common law. Adams contends that the evidence regarding Holbrook's connection to the print is speculative, because the evidence failed to show that the print had been transferred from town clerks to their successors, or that Holbrook ever had possession of the print.
Addressing Maine's statutory argument, Adams asserts that Maine's position is defaulted on procedural grounds. Adams argues that Maine failed to assign error to the circuit court's holding that Maine statutory law defining a "public record" does not have retroactive effect. According to Adams, Maine's failure to assign error to that holding bars this Court from considering whether the circuit court correctly decided that matter.
In resolving these issues, we first observe that an action to quiet title is based on the premise that a person with good title to certain real or personal property should not be subjected to various future claims against that title. Neff v. Ryman, 100 Va. 521, 524, 42 S.E. 314, 315 (1902); John L. Costello, Virginia Remedies § 20.07 at 20-38, 20-39 (3d ed. 2005). Thus, in a quiet title action, a plaintiff asks the court to declare that he has good title to the property in question and compels any adverse claimant to prove a competing ownership claim or forever be barred from asserting it. Black's Law Dictionary 32 (8th ed. 2004); see City of Staunton v. The Augusta Corp., 169 Va. 424, 429-32, 193 S.E. 695, 696-97 (1937) (city failed to carry burden to show it owned certain real property); Costello, Virginia Remedies § 20.07 at 20-38, 20-39.
At trial, each party asserted that it had superior title to the print. Accordingly, each party bore the burden of proving those facts necessary for the court to rule in its favor. *867 See Sachs v. Horan, 252 Va. 247, 250, 475 S.E.2d 276, 278 (1996); United Dentists, Inc. v. Commonwealth, 162 Va. 347, 355, 173 S.E. 508, 511 (1934); 9 John H. Wigmore, Evidence in Trials at Common Law § 2485, 283-86 (Chadbourn rev. 1981).
The common law provides that possession of property constitutes prima facie evidence of ownership until a better title is proven. Smith v. Bailey, 141 Va. 757, 776, 127 S.E. 89, 95 (1925); see Tate v. Tate, 85 Va. 205, 214, 7 S.E. 352, 356 (1888); Willcox v. Stroup, 467 F.3d 409, 412-13 (4th Cir. 2006). We have explained that possession of personal property is presumptive proof of ownership because individuals generally own the personal property that they possess. Saunders v. Greever, 85 Va. 252, 289, 7 S.E. 391, 410 (1888); see Willcox, 467 F.3d at 412.
This common law presumption of ownership based on possession requires that the party not in possession of the disputed personal property produce evidence of superior title. If the party not in possession is able to produce such evidence of superior title, the presumption of ownership in the possessor is defeated. Willcox, 467 F.3d at 413; see Brunswick Land Corp. v. Perkinson, 146 Va. 695, 708, 132 S.E. 853, 857 (1926). However, if the party not in possession fails to establish superior title to the property, the presumption of ownership based on possession prevails and relieves a court from having to preside over "a historical goose chase." Willcox, 467 F.3d at 413.
Maine seeks to establish superior title to the print on the basis that the print is a "public record" kept and maintained by the town. In making this assertion, Maine relies both on the common law definition of "public record" and on Maine's own statutory definition of that term.
We first examine the common law component of Maine's claim. The parties agree that both Maine and Virginia recognize the same definition of a "public record" under the common law. This definition, adopted in many jurisdictions, provides that a "public record" is
`a written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said or done.' It must be `a written memorial,' must be made by `a public officer,' and that officer must be `authorized by law' (not required) to make it. [The public official] must have authority to make it; but that authority need not be derived from express statutory enactment. Whenever a written record of the transactions of a public officer in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that memorial, whether expressly required to do so or not.
Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865, 881 (1874)(emphasis and citation omitted); see White v. United States, 164 U.S. 100, 103, 17 S. Ct. 38, 41 L. Ed. 365 (1896); Treat v. McDonough, 148 Colo. 603, 367 P.2d 587, 589 (1961); Branch v. State, 76 Fla. 558, 80 So. 482, 485 (1918); People v. The Dime Savings Bank, 350 Ill. 503, 183 N.E. 604, 607 (1932); Robison v. Fishback, 175 Ind. 132, 93 N.E. 666, 668-69 (1911); State v. Hanlin, 134 Iowa 493, 110 N.W. 162, 164 (1907); State v. Chase, 330 A.2d 909, 911-12 (Me.1975); State v. Donovan, 10 N.D. 203, 86 N.W. 709, 711 (1901); State v. Kelly, 149 W.Va. 766, 143 S.E.2d 136, 139 (1965).
In the present case, the evidence showed that Russell was not a public officer, but was a private printer who printed between 200 and 300 broadsides at the direction of the Executive Council. The fact that the Executive Council authorized Russell to print the broadsides did not transform his employment status from that of a private printer to one of a public officer. Russell was not executing the duties of public office at the time he printed the broadsides.
The duty that the common law assigns public officers to make a written record of governmental action reflects the importance of public records in providing accurate and transparent accounts of governmental acts. The serious nature of this responsibility is such that the duty may be required under the sanction of official oath. See Coleman, 66 Va. at 882. Public officers are charged with the duty to keep written records of governmental action affecting the citizens of their jurisdictions, and the record entries made by those public officers serve as *868 the "public record" on which the citizens can rely.
In the present case, the duty of the town's clerk to create a public record of the Declaration emanated from the Executive Council's order directing that the clerks of the various towns record the text of the Declaration in their town books "there to remain as a perpetual Memorial thereof." This order of the Executive Council reflected the importance of the clerks' acts of transcription and the fact that the written entries they created were to be the perpetual record of the Declaration in the various town books.
In addition, one of the handwritten notations on the reverse side of the print provided evidence that the print was not intended to be a public record of the town. According to that notation, after the print was sent to Reverend Moore in Pownalborough, the print was delivered to Reverend Murray in Booth Bay before it was received by the town clerk in Pownalborough.
The evidence before us shows that Edmund Bridge, the town clerk of Pownalborough in 1776, created a public record of the Declaration for Pownalborough when he transcribed the words of the Declaration into the official town book. The fact that the print was critical to Bridge's transcription of the text of the Declaration did not render the print a public record. Instead, the only public record of the Declaration under the common law was the actual transcription that Bridge entered in the town book in accordance with the Executive Council's order.
We do not reach the common law issue whether the print was "kept" by the clerks of the town after the Declaration's text was transcribed into the town book. The fact that the print was not made by an authorized public officer and was not intended to be the official memorial of the Declaration precluded the print from qualifying as a "public record" under the common law, irrespective whether the print later was "kept" by the town's clerks. Coleman, 66 Va. at 881; see White, 164 U.S. at 103, 17 S. Ct. 38; Treat, 367 P.2d at 589; Branch, 80 So. at 485; Dime Savings Bank, 183 N.E. at 607; Robison, 93 N.E. at 668-69; Hanlin, 110 N.W. at 164; Chase, 330 A.2d at 911-12; Donovan, 86 N.W. at 711; Kelly, 143 S.E.2d at 139. Thus, we hold that the print was not a public record of the town under the common law.[3]See Coleman, 66 Va. at 881; White, 164 U.S. at 103, 17 S. Ct. 38; Treat, 367 P.2d at 589; Branch, 80 So. at 485; Dime Savings Bank, 183 N.E. at 607; Robison, 93 N.E. at 668-69; Hanlin, 110 N.W. at 164; Chase, 330 A.2d at 911-12; Donovan, 86 N.W. at 711; Kelly, 143 S.E.2d at 139.
Maine argues, nevertheless, that the print is a "public record" as defined under Maine statutory law. The circuit court rejected that argument holding, among other things, that the print "pre-dates Maine's 1973 definition of `public records,' and Maine did not produce evidence that Maine's legislators intended for this definition to apply retroactively to all of the documents that ever entered the state of Maine. Therefore, the 1973 definition of `public record' does not apply to this case."
We are unable to consider the merits of Maine's statutory argument. A party who asks this Court to consider whether a circuit court's holding was erroneous is required to assign error to the challenged holding so that it may be identified properly for our consideration. Rule 5:17(c); Friedline v. Commonwealth, 265 Va. 273, 278-79, 576 S.E.2d 491, 494 (2003); Kirby v. Commonwealth, 264 Va. 440, 444-45, 570 S.E.2d 832, 834 (2002); Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 556 n. 2, 554 S.E.2d *869 55, 57 n. 2 (2001). Thus, when a party fails to assign error to a particular holding by the circuit court, that holding becomes the law of the case and is binding on appeal. See Little v. Cooke, 274 Va. 697, 722, 652 S.E.2d 129, 144 (2007); Chesapeake Hosp. Auth., 262 Va. at 565, 554 S.E.2d at 62; Trustees v. Taylor & Parrish, Inc., 249 Va. 144, 154, 452 S.E.2d 847, 852 (1995).
Maine did not assign error to the circuit court's holding that Maine's 1973 statutory definition of public "record" was not intended to have retroactive application to documents such as the print.[4] Therefore, we hold that the circuit court's determination that Maine's statutory definition of public "record" was not intended to have retroactive effect has become the law of this case. See Little, 274 Va. at 722, 652 S.E.2d at 144; Chesapeake Hosp. Auth., 262 Va. at 565, 554 S.E.2d at 62; Trustees, 249 Va. at 154, 452 S.E.2d at 852.
Our decision that Maine's statutory definition of "public record" is procedurally barred from review also removes from our consideration Maine's various arguments based on that statutory definition. Thus, we do not consider those issues, including whether the circuit court erroneously employed a "conclusive" standard of proof regarding whether the print was "maintained" by the town within the meaning of the statutory definition. Finally, we find no merit in Maine's argument that regardless whether the print met the definition of a "public record" under the common law or statutory law, the circuit court erred in holding that Wiscasset did not own the print. Maine bases this argument on its contention that because the print was delivered to the town clerk in 1776, the print immediately became the property of the town. Maine asserts that Solomon Holbrook's family wrongfully converted the print, and that Maine as the true owner of the print may recover it from Adams irrespective whether he was a bona fide purchaser for value.
Even if we assume, without deciding, that the town owned the print by virtue of having had the print in its possession more than 200 years ago, the record does not establish that the print was converted. "Conversion is the wrongful assumption or exercise of the right of ownership over goods or chattels belonging to another in denial of or inconsistent with the owner's rights." Economopoulos v. Kolaitis, 259 Va. 806, 814, 528 S.E.2d 714, 719 (2000); see Universal C.I.T. Credit Corp. v. Kaplan, 198 Va. 67, 75-76, 92 S.E.2d 359, 365 (1956); accord Withers v. Hackett, 714 A.2d 798, 800 (Me.1998); Leighton v. Fleet Bank of Maine, 634 A.2d 453, 457 (Me.1993).
Maine produced no evidence supporting its theory of conversion but merely asks us to speculate that because the print was found in Holbrook's daughter's attic, Holbrook or a member of his family converted the print. We will not engage in such speculation and conclude as a matter of law that Maine did not prove by a preponderance of the evidence that the print was converted by Holbrook or his family.
Accordingly, we conclude that the circuit court did not err in holding that Adams established superior title to the print. In reaching this conclusion, we need not consider whether Adams was a bona fide purchaser of the print because after Adams established prima facie title to the print, Maine failed to prove under any theory that Maine owned the print or had superior title. See Smith, 141 Va. at 776, 127 S.E. at 95; Tate, 85 Va. at 214, 7 S.E. at 356; Willcox, 467 F.3d at 412-13.
For these reasons, we will affirm the circuit court's judgment and enter final judgment declaring that Richard L. Adams, Jr. has good title to the print.
Affirmed.
NOTES
[1] In 1776, Massachusetts encompassed an area of land that today includes both Massachusetts and Maine.
[2] See ME.REV.STAT. ANN. tit. 30, § 2212(3) (1973).
[3] Based on this holding, we do not address Maine's other arguments concerning whether the documents were kept by the town clerk, including the circuit court's allocation of the burden of proof regarding how and when the print left the town's possession, the circuit court's statement that Maine had the burden to prove "conclusively" that the print was kept by the town, the circuit court's consideration whether other towns currently maintain broadside prints, the circuit court's ruling that no law required the town to keep the print after it was transcribed into the town book, and the circuit court's consideration whether a library was built in Wiscasset in 1805 to store town records. As stated above, Maine's failure to prove that the print was a written memorial made by an authorized public officer precludes the print from qualifying as a "public record" under common law, irrespective whether Maine produced any evidence that the town clerks kept the print.
[4] See ME.REV.STAT. ANN. tit. 30, § 2212(3) (1973). We also observe that Maine agreed during oral argument of this case that the current statutory definition of the term public "record," found in Title 5, Section 92-A(5) of the Maine Revised Statutes Annotated, is substantially the same as the 1973 version addressed by the circuit court. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023692/ | JUSTICE MURRAY delivered the opinion of the court: The State appeals from the trial court’s granting of defendants’, Max Polk and Leola Hobson’s, pretrial motion to suppress evidence after they had been charged with possession of a controlled substance (cocaine) with intent to deliver. The following facts are relevant to this appeal. At the hearing on the motion, Polk testified that after defendants had paid cash for airplane tickets from Fort Lauderdale, Florida, to Chicago, they had to sit one seat apart from each other because of the crowded plane. Upon reaching Midway Airport, Hobson left the plane first and waited for Polk and then the two defendants walked to the terminal area together. Polk went to the luggage carousel area while Hobson went to make a phone call. Polk was carrying a folded-over suitbag and a white purse. After the phone call, Hobson left the suitbag on the floor by Polk while she went outside to see if their ride had arrived. Hobson returned to where Polk was standing, picked up the suitbag and went back outside. After Polk retrieved his suitcase from the carousel, he joined Hobson outside the terminal doors. Defendants were then approached by a plainclothesman (Detective Richard Crowley) who showed them a badge. Without identifying himself, Crowley asked to see Polk’s luggage and was refused. Crowley did not tell Polk that the officer could have dogs brought in to sniff the luggage or that a search warrant could be obtained if appropriate. Polk had his plane ticket in his hand (apparently for a luggage sticker), which Crowley grabbed. Crowley then took Hobson’s ticket from her hand. The officer then searched Polk’s suitcase without Polk’s consent. Afterwards, Crowley grabbed Hobson’s purse, which was slung over her shoulder. Polk grabbed its strap, and the two men struggled over the purse, causing the strap to break. Crowley retained the purse and Polk ran away. After a block and a half, Polk stopped and was arrested by a uniformed police officer (A1 Murphy) assigned to airport duty. Polk also testified that neither the purse nor its contents belonged to him. Hobson’s testimony was substantially the same as Polk’s but differed in the following respects. She testified that Polk, not she, held her airline ticket and that Crowley snatched both of them from him. Polk stated that Crowley took his suitcase from him and placed it on the ground for the search; Hobson said that the case was on wheels and Polk never let go of its strap during Crowley’s search. Hobson also said that Crowley left marks on her arm where he held her while struggling for her purse. Detective Crowley’s testimony is considerably different from that of the defendants. Crowley claimed that he and Detective Richard Boyle were watching the unboarding of defendants’ flight as part of a routine drug surveillance at the airport. They had no information regarding any drug activity but were watching passengers arriving from drug source cities who might fall within an, apparently, amorphous drug courier profile. Crowley saw Hobson get off among the first 10 passengers and she aroused no suspicions. Polk was one of the last few passengers to deplane and was carrying a folded-over suitbag. After the detective saw Polk look over his shoulder several times (the only passenger to do so) as he was walking alone, the officers decided to watch him. They noticed that as he walked past the security area for boarding passengers, he walked as far away as possible from the security personnel, hugging the wall. Polk made eye contact with Hobson, who was about 15 feet away in the terminal, and the defendants then nodded at each other. Polk went to the luggage carousel. Hob-son went outside the terminal, then came back in and stood silently next to Polk, and then went back outside. Hobson came in again, talked to Polk and took the suitbag as she returned to the outside. She came into the terminal once again as Polk retrieved his suitcase whereupon they both left the terminal to stand on the sidewalk near a cab stand. Both detectives then approached defendants, with Crowley identifying himself and asking them if he could speak with them, although they didn’t have to speak. Detective Boyle left the area after this initial encounter. Crowley asked Polk for his name and identification and requested his flight ticket, which Polk gave to him. Crowley then asked Polk’s consent to search his luggage and told him that he was free to go and was not under arrest. Polk then exclaimed that he was tired of being harassed every time he came into Midway and became very nervous and angry. The detective then told Polk that there was probable cause to detain his luggage and call the canine unit for a sniffer dog. Polk swore and threw his bag down, telling Crowley to go ahead and search it. During the search, Crowley noticed Hobson walking away with the suitbag and asked Polk if she was carrying his suitbag. Polk said she was and gave his consent to a search of it. Polk called Hobson back. She returned, placing the suitbag on the sidewalk and started to run back into the terminal. Crowley followed her to the entry doors, and when he reached her, she threw her purse over the detective’s head into the street. Polk grabbed the purse and ran down the street until he ran into another passenger, Frank Zimmerman. A struggle ensued, causing the purse to drop and spill open. Three packages wrapped in duct tape fell out. Polk ran away but was caught about a block away by Officer Murphy. The State did not call Zimmerman to testify. Officer Murphy testified that he saw Crowley search Polk’s suitcase by himself, but that Polk pulled clothes out of the folded suitbag and threw them onto the sidewalk. Murphy also observed Hobson throw her purse over Crowley’s head into the street. Two police reports were made on the incident: a four-page case report for the Chicago police department (police report) and a five-page report for the Federal Drug Enforcement Agency (DEA report). Although Detective Crowley testified that he puts matters he considers to be important in his reports, the two reports were dissimilar in many respects. Many important facts were not put in the police report, which omissions were explained by Crowley on the basis that DEA reports were the more detailed reports. The police report did not mention that Polk stopped and looked around after deplaning; no gestures between defendants were mentioned nor were any of the airport meetings between defendants in the report. Both reports state that Hobson exited and reentered the airport twice; Crowley testified that it was three times. Much of the alleged initial conversations with defendants, e.g., questions regarding drug activity, requests for identification and flight tickets, was not in the police report. No mention of advising Polk of his rights regarding a search or Polk’s angry response of throwing his clothes onto the sidewalk was made in the police report. The police report noted that when Hobson started to run, she threw her purse to Polk, who caught it and then ran into another passenger. A struggle over the purse ensued whereupon the purse’s contents fell onto the ground. The DEA report states that as Hobson was running, she threw her purse into the street. After oral arguments, the trial court sustained defendants’ motion to suppress, stating that it did not believe the testimony of the State’s witnesses. It found that, under these circumstances, the stop, search and seizure, and arrest were unconstitutional. The State now appeals, claiming that the motion should not have been granted because Polk had no standing to object to admission of the evidence (purse’s contents); the stop and questioning were agreed to by defendants; and the search was consensual. We must affirm the trial court for the following reasons. A defendant has standing to seek suppression of evidence only if his own fourth amendment rights have been violated. (United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) In other words, one must have a proprietary or possessory interest in the item sought to be suppressed. (See Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) Thus, a defendant must demonstrate a subjective expectation of privacy in the searched place that society accepts as objectively reasonable in order to claim protection of the fourth amendment. California v. Greenwood (1988), 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625. The State argues that because defendant Polk denied owning the purse or its contents and demonstrated no reasonable expectation of privacy in the purse, he had no standing to object to introduction into evidence of the drugs found in Hobson’s purse. This argument is fallacious because it rests upon the premise that Hobson threw her purse into the street, after which it was picked up by Polk, who then ran away with it. It is clear from the record that the trial court did not believe this version of the events. Instead, the court emphasized its disbelief of the State’s witnesses. It is axiomatic that a reviewing court will not overturn a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153.) At a hearing on such a motion, the trial court’s function is to determine the credibility of witnesses, the weight to be assigned to their testimony, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296.) Based on this record, we cannot overturn the trial court’s determination on some theory that the court was erroneous in believing the defendants’ testimony. Even in print, the testimony of the State’s witnesses, coupled with the inadequate and sometimes-conflicting police and DEA reports, is incredible. If one believes the defendants’ testimony that Crowley and Polk struggled over Hobson’s purse, as obviously did the trial court, then Polk had standing to object to introduction of the purse’s contents. He had a possessory interest in the personal luggage of his companion when he went to her aid in an attempt to keep Crowley from grabbing her purse off of her shoulder. It was in Polk’s possession when Crowley seized it. Property ownership may be a factor in determining whether a party has standing to test the constitutionality of a search and seizure, but it is not dispositive. Other relevant factors include a reasonable expectation of privacy, whether a defendant was legitimately present in the area searched, defendant’s possessory interest in the area or property seized, his ability to control or exclude others’ use of the property, and a subjective expectation of privacy in the property. (People v. Johnson (1986), 114 Ill. 2d 170.) Although Polk disclaimed ownership of the purse, the evidence indicated that he had possession of, and a reasonable right to exclude others from, seizure of his companion’s property. Therefore, Polk had standing to assert suppression of the purse’s contents. The State’s other contentions must fail also on the basis of the trial court’s credibility assessments. Once again, the State assumes we must overturn these assessments and believe Crowley’s testimony. The trial court found no probable cause for an investigatory stop and the subsequent seizure of defendants. To make an initial stop, there must be an articulable suspicion, based on objective facts, that a defendant is involved in criminal activity. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, a consensual inquiry is permissible if it does not escalate into a detention amounting to a seizure in violation of a constitutionally protected interest. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319. Based on these principles, our appellate court has condoned police intrusion at airports upon persons deplaning from flights originating in Florida “drug source cities” who make eye contact with and nod affirmatively to other passengers. (People v. Forrest (1988), 172 Ill. App. 3d 385.) It has done so, however, where the evidence indicated passenger consent to the initial intrusion. Consent to a search is a question of fact to be determined from the totality of all the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) In the present case, the trial court did not believe that the appropriate eye contact or affirmative nod occurred, or that defendants gave consent to either the initial questioning or subsequent searches. We can find nothing in the record to disturb such a determination. Once again, the credibility determinations are crucial to the outcome of this case. The trial court made a succinct summation while commenting on the testimony of the State’s witnesses: “I don’t believe that is what occurred, I think there were no articulable facts taken from the activities of the defendant, there would be no rational inferences drawn therefrom that would reasonably warrant the intrusion and investigatory stop.” The record does not indicate that these assessments were manifestly erroneous but, rather, supports the trial court’s conclusion. Accordingly, because there was no warrant, no probable cause or exigent circumstances, no consent to an investigatory stop or search, the granting of defendants’ motion to suppress must be affirmed. Affirmed. COCCIA, P.J., and LORENZ, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3775410/ | This cause is submitted on motion *Page 491
of the plaintiff, appellee herein, to dismiss the appeal and remand the case to the Court of Common Pleas, on the ground that the defendants, appellants herein, have not complied with the order of the Court of Common Pleas fixing the appeal bond.
The action was one in forcible entry and detainer filed in the Municipal Court of Dayton, wherein judgment was rendered for the plaintiff. An appeal on questions of law was taken to the Court of Common Pleas, which court affirmed the judgment of the trial court.
The appeal to this court is "on questions of law, and on questions of law and fact." Without determining the question whether this appeal can stand as an appeal on questions of "law and fact," the court proceeds to determine the motion on the state of the record. The pertinent part of the entry of the Court of Common Pleas fixing the appeal bond is as follows:
"It being further made to appear to the court that said defendants-appellants are desirous of appealing from the action of this court to the Court of Appeals of Montgomery county, Ohio, and upon motion of said defendants-appellants to fix an appeal bond, the court upon consideration finds that a bond in the sum of $150 is sufficient as an appeal bond."
The court further makes an order as follows:
"It is further ordered by the court that defendants-appellants post bond in the sum of $150 with good and sufficient surety and that upon compliance with this order all further proceedings are stayed in the court until further order."
In the same entry the court makes a further order as follows:
"The court further orders defendants-appellants to pay monthly, the sum of $18 on or about the 25th day of each month beginning with the month of December, *Page 492
1946, said sum into the office of clerk of courts to be applied on the monthly installments of rent for the premises in question until further order of court."
The plaintiff contends that the defendants have not paid $18 each month to the clerk of courts as provided by the court order. It is urged that the order requiring the defendants to pay the $18 per month to the clerk of courts was a condition of the appeal bond; that since that order has not been complied with the appeal should be dismissed. It is true that under the provisions of Sections 12223-6, 12223-9 and 12223-14, General Code, the court fixing the bond may also stipulate the conditions thereof. However, the record in this case does not disclose that the Court of Common Pleas, in fixing the appeal bond, made the payment of $18 per month a condition of the bond. It will be observed the court found that a bond in the sum of $150 was "sufficient as an appeal bond." The court further ordered the posting of an appeal bond in the sum of $150 and ordered that "upon compliance with this order all further proceedings are stayed in the court until further order."
It not appearing that the payment of $18 per month was a condition of the appeal bond, the failure of the defendants to make the payment as ordered does not operate as a breach of the conditions of the appeal bond.
The motion to dismiss will be overruled.
Motion overruled.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur. *Page 493 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1054676/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2006
SHON MAURICE PIERCE v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Dyer County
No. C03-262 Lee Moore, Judge
No. W2005-01493-CCA-R3-PC - Filed March 16, 2006
The petitioner, Shon Maurice Pierce, appeals the Dyer County Circuit Court’s denial of his petition
for post-conviction relief for second degree murder and resulting twenty-year sentence. He contends
that he received the ineffective assistance of counsel because his trial attorney allowed him to plead
guilty before the trial court held a hearing on his motion to suppress his confession. Upon review
of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON , J., joined.
Timothy Boxx, Dyersburg, Tennessee, for the appellant, Shon Maurice Pierce.
Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On June 20, 2003, the petitioner’s wife was found dead in their motel room in Dyersburg.
The victim’s hands and feet were bound. Thereafter, the Dyer County Grand Jury indicted the
petitioner for first degree premeditated murder and felony murder. The trial court appointed counsel
to represent the petitioner, and counsel filed a motion to suppress the petitioner’s confession to
police. Before the trial court held a hearing on the motion, the petitioner pled guilty to one count of
second degree murder and received a twenty-year sentence as a violent offender. Subsequently, the
petitioner filed a petition for post-conviction relief, alleging that he received the ineffective
assistance of counsel because his trial attorney allowed him to plead guilty before the suppression
hearing. In his pro se petition, the petitioner claimed that the police failed to advise him of his
Miranda rights and that he invoked his right to counsel.
At the evidentiary hearing, the petitioner’s trial attorney testified that he was appointed to
represent the petitioner and that he listened to the petitioner’s audiotaped confession and read the
police investigation reports. According to the reports, the petitioner and his wife had been staying
at the Dyersburg motel. A motel employee found the victim dead in the couple’s room and
discovered that the petitioner was missing. Prior to the victim’s death, the petitioner had been
charged with domestic assault against her. In that case, the petitioner had bound the victim. The
victim in the present case had been bound in a similar manner.
Counsel testified that during the petitioner’s confession to police, he said, “I think my
family’s gonna hire me a lawyer” and “I think I might need to talk to a lawyer before I answer any
more of y’alls questions.” Based upon those statements, counsel filed a motion to suppress the
confession. Counsel researched the law and concluded that the motion to suppress “could go either
way.” He told the petitioner that the defense had a good argument for suppressing the confession,
but he could not promise that the trial court would grant the motion. He also told the petitioner that
even if the trial court granted the motion, the State had strong circumstantial evidence against him.
The petitioner wanted to negotiate a plea with the State “right off the bat” and wanted to plead guilty
to second degree murder. Before the trial court held a hearing on the motion to suppress, counsel
approached the prosecutor about a plea agreement. The prosecutor told counsel that he would
discuss a second degree murder plea with the victim’s family but that the State would not agree to
a plea if the petitioner proceeded with his motion to suppress. Based on the prosecutor’s warning,
counsel postponed the suppression hearing, hoping that the State would make a plea offer. The State
finally offered to let the petitioner plead guilty to second degree murder. Counsel approached the
petitioner with the offer and gave him a couple of days to think about it. The petitioner told counsel
that he opened his Bible, read a verse that mentioned twenty years, and decided it was a sign to
accept the State’s offer.
Counsel testified that if the case had proceeded to trial, he would have argued that the
petitioner was using drugs and did not premeditate the killing. He said that the petitioner’s flight
from the motel soon after the killing and a letter that the petitioner wrote to the prosecutor without
counsel’s consent weighed against the petitioner’s defense. In the letter, the petitioner stated that
he did not mean to hurt the victim, that they had been using drugs, and that he wanted to plead guilty
to second degree murder in return for a fifteen-year sentence. Counsel believed that the victim’s
being bound and gagged favored the State’s theory of premeditation. Despite strong evidence of first
degree murder, counsel hoped that a jury would convict the petitioner of second degree murder or
voluntary manslaughter. Counsel stated that the petitioner had signed a waiver of rights form when
he confessed to police.
On cross-examination, counsel testified that he had been licensed to practice law since 1976
and that he had been a prosecutor or assistant public defender since 1988. Counsel said that the
petitioner was evaluated at Middle Tennessee Mental Health Institute, and the results of the
evaluation did not support an insanity or diminished capacity defense. The petitioner was very
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intelligent and articulate, and counsel never got the impression that the petitioner did not understand
anything. He advised the petitioner that the petitioner was facing a life sentence if convicted of first
degree murder. He also told the petitioner that even if the jury convicted him of second degree
murder, the presumptive sentence for the Class A felony was twenty years, and the trial court could
use the petitioner’s prior convictions to enhance the sentence.
The petitioner testified that counsel should have proceeded with the suppression hearing
because the police did not read him his Miranda rights and because he requested a lawyer. He said
that counsel told him the suppression hearing “could go any way” but that he told counsel he still
wanted the hearing. He stated that near the end of his confession, the police read him his Miranda
rights and he signed a waiver of rights form. He acknowledged that he wrote a letter to the
prosecutor in which he asked to plead guilty to second degree murder and receive a fifteen-year
sentence. Counsel told him that he could be convicted of felony murder, and the petitioner “didn’t
want to take my chances [with] that.” Nevertheless, he testified that he did not want to plead guilty.
The petitioner testified that he wanted to take responsibility for killing the victim, that he did not
stuff a towel in the victim’s mouth in order to kill her, and that he did not commit first or second
degree murder. He contended that voluntary manslaughter would have been a more appropriate plea.
The petitioner acknowledged that an eyewitness saw him at the motel with the victim and that
counsel discussed premeditation with him. Counsel also told him that the petitioner’s leaving the
motel after the killing could be “a big part in the case” but that the victim’s autopsy report would
favor the defense. The petitioner testified that he wanted to go to trial and that he was planning to
testify. He said that he did not want to accept the State’s plea offer and that he told counsel the State
was trying to “scare me away from having my motion [hearing].” He acknowledged that he told the
trial court at the guilty plea hearing that he was pleading guilty of his own free will. He also
acknowledged that when the trial court asked him if he was satisfied with his attorney, he said yes.
He explained that he said yes because he did not want to cause a commotion in court and because
he did not want to go to trial with his attorney representing him. He said that based upon a passage
in the Bible, he decided to accept the State’s plea offer.
On cross-examination, the petitioner acknowledged that attorneys should not give their
clients false hope. He also acknowledged that he sent a letter to counsel shortly after his arrest in
which he wanted to know if the State would agree to a plea of second degree murder and that he
wrote a letter to the prosecutor in which he asked to plead guilty to second degree murder in return
for a fifteen-year sentence. Counsel filed a motion to suppress, a motion hearing was scheduled
several times, and the hearing was postponed each time. He acknowledged that counsel told him the
prosecutor would not agree to a second degree murder plea if the petitioner proceeded with the
suppression hearing. He also acknowledged that he was in court many times regarding his case and
that he never told the trial court he had a problem with counsel’s representation. He acknowledged
that as a result of his plea, two additional charges against him were dismissed and that one of the
charges was for possessing contraband in a penal institution, which requires consecutive sentencing
if convicted.
-3-
The post-conviction court concluded that the petitioner “got just exactly what you wanted
as far as the plea was concerned.” The court determined that counsel discussed the situation
regarding the plea with the petitioner, that the petitioner fully understood what he was doing, and that
the petitioner’s decision not to pursue a hearing on the motion to suppress was the petitioner’s and
counsel’s strategy. Thus, the trial court concluded that counsel did not render deficient performance.
The post-conviction court also noted that it had reviewed the guilty plea hearing transcript.
According to the transcript, the trial court advised the petitioner of his rights, the petitioner had the
opportunity to voice any problems with his plea, and the petitioner stated he was pleading guilty
voluntarily. The petitioner also told the trial court that he was satisfied with his attorney’s
representation and that his attorney had done everything the petitioner had requested. The court
ruled that the petitioner’s guilty plea had been knowing and voluntary and denied post-conviction
relief.
II. Analysis
To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the evidence
in the record preponderates against those findings. Id. at 578.
A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id. “To establish ineffective assistance of counsel, the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this
burden, this court must determine whether counsel’s performance was within the range of
competence required of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). “[F]ailure to prove either deficiency or prejudice provides a sufficient basis to deny relief on
the ineffective assistance claim.” Goad, 938 S.W.2d at 370.
In this case, the post-conviction court concluded that counsel did not render deficient
performance. We agree. Counsel testified that the petitioner was anxious to negotiate a plea with
the State. Specifically, the petitioner wanted to plead guilty to second degree murder in exchange
-4-
for a fifteen-year sentence. The State introduced into evidence letters that the petitioner had written
to counsel and the prosecutor. The letters support counsel’s testimony, demonstrating that the
petitioner wanted to plead guilty to second degree murder in return for a fifteen-year sentence. The
State offered to let the petitioner plead guilty to that offense and receive a twenty-year sentence on
the condition that the petitioner abandon his motion to suppress. The petitioner thought about the
offer and decided to accept it. Although the petitioner testified at the post-conviction hearing that
he did not want to accept the offer, he also testified that he was facing a first degree murder
conviction and that he “didn’t want to take my chances [with] that.” Counsel and the petitioner
decided to forego the motion hearing in return for the plea. Thus, we agree with the post-conviction
court that they made a strategic decision and that counsel did not render deficient performance. See
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (stating that on appeal, this court will not second
guess the strategic decisions of defense counsel). The petitioner has failed to show that he received
the ineffective assistance of counsel, and the trial court properly denied post-conviction relief.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.
___________________________________
NORMA McGEE OGLE, JUDGE
-5- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590119/ | 1 N.Y.2d 708 (1956)
In the Matter of Stephen Don et al., Respondents,
v.
Lazarus Joseph, as Comptroller of the City of New York, Appellant.
Court of Appeals of the State of New York.
Argued February 6, 1956.
Decided March 23, 1956.
Peter Campbell Brown, Corporation Counsel (Alfred Weinstein and Seymour B. Quel of counsel), for appellant.
Benjamin Heller and Bernard A. Abrashkin for respondents.
Concur: CONWAY, Ch. J., DESMOND, DYE and FULD, JJ. VAN VOORHIS, J., dissents in the following opinion. Taking no part: FROESSEL and BURKE, JJ.
Order affirmed, with costs. The classification of petitioners by the municipal civil service commission in Part 38 of the competitive class in a salary grade "at the prevailing rate of wages * * * as determined by law" entitled them to prevailing wages in this proceeding under section 220 of the Labor Law. (Matter of Golden v. Joseph, 307 N.Y. 62, 68.)
VAN VOORHIS, J. (dissenting).
The order appealed from remits this proceeding to the comptroller of the City of New York for fixation of petitioners' wages according to the prevailing rate under section 220 of the Labor Law. In my view, the comptroller should first be required to determine whether petitioners come within the purview of that section. The law is settled that in order to be covered by section 220, municipal employees must perform services in connection with the construction, replacement, maintenance or repair of buildings or other public works (Matter of Pinkwater v. Joseph, 300 N.Y. 729). The comptroller has declined to fix their compensation at the prevailing wage under section 220 upon the ground that the municipal civil service commission's description of their jobs does not indicate that their duties pertain to public works. This job description is as follows: "To remove, repair and replace auto seats, cushions, back rests, panels and trim of passenger cars, trucks and special equipment; make special seats and curtains as required; repair and reupholster leather furniture; make and repair side curtains; make canvas covers to measurements from sketches; lay out, cut and sew the work; select proper grades of ticking, leather, cloth and other materials; the duties include sewing both by hand and on machine; perform related work."
This description leaves open the possibility that these employees may do upholstery work upon fixtures that are attached to and constitute part of public buildings. Matter of Golden v. Joseph (307 N.Y. 62) requires remission of the matter to the comptroller to ascertain whether this is the fact, and, if it is the fact, to determine the amount of the prevailing wage which in that event they would receive.
The ground on which the Appellate Division held that petitioners are entitled to be paid the prevailing wage is not that *711 these employees do perform work on public buildings, but that the municipal civil service commission has recited in Part 38 of its rules for the competitive class that their compensation "is fixed at the prevailing rate of wages * * * as determined by law." Notwithstanding that the civil service description of the duties of these carriage upholsterers contains no statement which of itself would bring them within section 220 of the Labor Law, and the board of estimate has not directed that they be paid at that rate, the Appellate Division by a divided court has held that this recital by the municipal civil service commission of a conclusion of law that employees in Part 38 are entitled to the prevailing rate of wages is conclusive, and that while it stands the courts cannot look behind it. This language in the commission's rules that these employees are compensated at the prevailing rate "as determined by law" does not place them in any salary grade, or indicate that they have been placed in any salary grade by the appointing power, but is merely an expression of opinion by the commission that they are covered by section 220. Such an expression of opinion by the commission does not establish that these petitioners are covered by section 220 even prima facie. The civil service commission does not have the power to fix their compensation, but that power is lodged in the board of estimate unless section 220 controls. Whether they are entitled to be paid at the prevailing rate depends upon whether the nature of their work brings them within section 220. In the language of the civil service commission's description of their jobs there is no reference to anything necessarily pertaining to the construction, maintenance or repair of public works, and the work which they are scheduled to perform would therefore not entitle them to the prevailing wage rate under section 220 unless it were proved before the comptroller that they are actually engaged in such work. Whether they are entitled to the prevailing wage does not depend upon whether the commission thinks that their duties bring them within the protection of section 220. It may be that the description given by the civil service commission to the duties to be performed by these carriage upholsterers is not conclusive. The difficulty with the Appellate Division's decision is that it has apparently held that the civil service commission's determination (unless vacated in a separate proceeding to which it is a party) is final on the bare question of law, viz.: whether petitioners are entitled *712 to the prevailing rate of wages regardless of whether they do any work on public buildings in other words, that the civil service commission has power to hold that section 220 applies to these employees regardless of whether by its language it has any application to the duties of the position.
The order appealed from should be modified so as to remit the proceeding to the city comptroller for the purpose of determining whether petitioners come within the coverage of section 220 of the Labor Law and, if he finds that they do, to determine the prevailing rate of wages for petitioners.
Order affirmed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1515126/ | 615 F.Supp. 1226 (1985)
Robert LATZER, Petitioner,
v.
Robert ABRAMS, Attorney General of the State of New York, Respondent.
No. 84 Civ. 3693.
United States District Court, E.D. New York.
August 16, 1985.
Patrick M. Wall, New York City, for petitioner.
Anthony J. Girese, Bruce E. Whitney, Asst. Dist. Attys., Nassau County, Mineola, N.Y., for respondent.
GLASSER, District Judge:
On February 21, 1985, I conditionally granted a writ of habeas corpus in this matter. Latzer v. Abrams, 602 F.Supp. *1227 1314 (E.D.N.Y.1985). That order was based on a determination that petitioner's rights under the Sixth and Fourteenth Amendments of the United States Constitution were violated at his trial on a charge of committing sodomy in the second degree. I concluded that petitioner's conviction on that charge must be set aside. Petitioner now moves for a final unconditional order granting the petition for a writ of habeas corpus and precluding his re-trial on the charge described in the petition.
Background
The facts underlying this action are set forth in my earlier Memorandum and Order, 602 F.Supp. at 1314-17. That Memorandum and Order, dated February 21, 1985, provides that the "petition for a writ of habeas corpus is granted unless the state affords petitioner a new trial within sixty (60) days of the issuance of the order herein." Id. at 1321. On March 20, 1985, respondent filed a notice of appeal to the Second Circuit, but subsequently withdrew the appeal. Thereafter, on consent of respondent, I revoked an earlier order requiring petitioner to post bail as a condition of his release pending the final determination of this petition.
On April 9, 1985, a Nassau County grand jury heard evidence against petitioner, including evidence pertaining to the crime involved in this petition. On April 11, 1985, the grand jury returned a six-count indictment against him. The second count of that indictment charged petitioner with committing the same crime which was the subject of this petition. Petitioner was arraigned on the new indictment on April 22, 1985, exactly sixty days after the issuance of my initial order granting the conditional writ. He entered a plea of not guilty to all counts.
Discussion
This motion presents two related issues. First, whether the order granting the conditional writ required that petitioner actually be re-tried within the sixty day period to avoid issuance of the final writ, or whether it was sufficient that petitioner was only arraigned within the prescribed period. Second, whether the final writ should include an order precluding the re-trial of petitioner on the charge addressed in the petition (i.e., the second count of the new indictment).
1. The Sixty Day Period
In issuing a writ of habeas corpus, a federal court has the power to "dispose of the matter as law and justice require." 28 U.S.C. § 2243; Irvin v. Dowd, 366 U.S. 717, 729, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751 (1961). There is no absolute requirement that the court delay issuance of a final writ until after the state has been afforded a specific period of time in which to re-try the petitioner. The Supreme Court has indicated, however, that the state should be allowed a "reasonable time" for conducting a re-trial. Irvin, 366 U.S. at 729, 81 S.Ct. at 1646. Accordingly, most courts allow some time between thirty and sixty days for re-trial, P. Sokol, Federal Habeas Corpus, § 15.1, at 132 (1969), though longer periods are occasionally permitted. See, e.g., Tifford v. Wainwright, 588 F.2d 954, 957 (5th Cir.1979) (ninety days); Baily v. Henslee, 309 F.2d 840, 842 (8th Cir.1962) (en banc) (nine months).
With these considerations in mind, I conditioned the issuance of the writ in the present case on the event that petitioner was not "afford[ed]" a new trial within sixty days. Respondent now argues that the arraignment of petitioner on the sixtieth day was sufficient to "afford" petitioner a new trial within the prescribed period. While the order may not have been the epitome of clarity, respondent's interpretation flies in the face of the order's intent to insure that petitioner was either promptly retried or relieved of the strictures imposed by his constitutionally flawed conviction. The order was intended to mean that petitioner should be brought to trial within sixty days, and will be so applied by the Court.
If respondent had any doubts as to the meaning of the order, he could have sought clarification from the Court, or avoided any potential problems by bringing petitioner to trial before the expiration of the sixty day period. Alternatively, respondent could have applied for an extension of the time *1228 for re-trial. Instead, respondent chose to file a notice of appeal, withdraw the appeal, and then seek the indictment of petitioner on five new counts, as well as re-indictment on the count in question. In light of the failure to bring petitioner to trial within the prescribed period and respondent's election not to pursue the options discussed above, I am constrained to conclude that the final writ of habeas corpus must be granted.
2. The Remedy
The far more difficult question is what relief, if any, should be granted to petitioner at the present time. Historically, the writ of habeas corpus was viewed as lying to
enforce the right of personal liberty, when that right is denied and a person is confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner.
Fay v. Noia, 372 U.S. 391, 430-31, 83 S.Ct. 822, 844-45, 9 L.Ed.2d 837 (1963).
When a court grants a writ of habeas corpus and orders a petitioner released from custody, the petitioner is ordinarily "still subject to custody under the indictment and may be re-tried on this or another indictment." Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). See also United States ex rel. Leeson v. Damon, 496 F.2d 718, 722 (2d Cir.), cert. denied 419 U.S. 954, 95 S.Ct. 215, 42 L.Ed.2d 172 (1974) (writ granted to permit petitioner to withdraw improper guilty plea, but the state could presumably still try petitioner on the offense charged). Perhaps the most extreme example of this concept is presented in United States ex rel. Craig v. Myers, 329 F.2d 856, (3d Cir. 1964). In Craig, the Third Circuit, acting in 1964, affirmed the grant of a writ of habeas corpus that freed the petitioner from custody on a 1931 indictment and conviction. The court explained that the 1931 indictment was not invalidated by the grant of the writ: "[granting the writ] does not preclude a new arraignment and trial, or the taking of proper steps to hold the defendant in custody or under bail pending trial." Id. at 860.
These principles have been applied in a case that is closely analogous to this one. In United States ex rel. Lowry v. Case, 283 F.Supp. 744 (E.D.Pa.1968), the court originally granted a conditional writ which stayed issuance of the final writ for 60 days to permit re-trial or appeal. An appeal was not taken and the petitioner was not re-tried within sixty days. The court then issued the final writ, ordering release of the petitioner. Upon release, the petitioner was immediately re-arrested on the original indictment and confined pending his re-trial. The court denied the petitioner's subsequent application seeking release from custody on the grounds that he was not re-tried within sixty days. The court stated that the only effect of granting the writ was to release the petitioner "from custody springing from a constitutionally unfair trial.... This release, however, did not impede the Commonwealth's right to re-arrest, re-arraign and re-try defendant on the [original] indictment." 283 F.Supp. at 744.
In the present case, petitioner's bail obligations in federal court have been discharged, and the state court indictment underlying the petition was dismissed by operation of law when petitioner was arraigned on the new indictment. N.Y.Crim.Proc. Law § 200.80 (McKinney 1982). As a result, petitioner is no longer in "custody" in any sense due to the constitutionally infirm conviction. The question of release is, therefore, moot.[1]See Mizell v. Attorney General of the State of New York, 586 F.2d 942, 947-48 (2d Cir.1978). Petitioner, nonetheless, seeks further relief from this Court in the form of an order precluding the state from re-trying him on the charges which ultimately gave rise to this petition.
*1229 Petitioner is correct when he argues that under the federal habeas corpus statute, 28 U.S.C. §§ 2241-2254, as amended in 1966, 80 Stat. 1104, federal courts have the power to grant relief other than immediate release from custody. The Supreme Court has observed that the federal habeas corpus statute
does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. It provides that "[t]he court shall ... dispose of the matter as law and justice require." 28 U.S.C. § 2243. The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody. At one point, the new § 2244(b) (1964 ed., Supp. II) speaks in terms of "release from custody or other remedy."
Carafas v. LaVallee, 391 U.S. 234, 239, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (citations omitted). A court may, for example, grant relief to a petitioner who has been released from custody after fully serving a sentence on an illegal conviction. E.g., Carafas, 391 U.S. at 237-40, 88 S.Ct. at 1559-61; Mizell, 586 F.2d at 948. Under such circumstances, the remedy may include a declaration that the conviction is void and an order directing the state prosecutor to seek a state court order vacating the conviction and expunging all references to it in the records. Mizell, 586 F.2d at 948. Likewise, a federal court may review the legality of a conviction under which the petitioner will not be detained until some time in the future. Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968) (prisoner incarcerated under consecutive sentences can challenge a sentence that he is scheduled to serve in the future).
In the present case, however, the issue is not simply whether this court can grant any relief to petitioner. Rather, the question is whether this Court should impose the extraordinary remedy of barring further state court criminal proceedings because of the state's failure to comply with the time limits set by this Court in the exercise of its discretion. After carefully reviewing the cases cited in petitioner's memorandum, and conducting my own research, I cannot find any authority for such a broad order. To the contrary, the closest authority on the issue expressly declined to grant such relief. See Gardner v. Pitchess, 731 F.2d 637 (9th Cir.1984).
In Gardner, the district court ordered the petitioner's release from custody and dismissal of all pending state charges against the petitioner after the state had failed to comply with the court's earlier conditional order that a writ of habeas corpus would issue if the petitioner's state court appeal was not reinstated within 120 days. The Ninth Circuit affirmed as to the grant of the writ and the petitioner's release, but held that the district court's order was "overly broad" insofar as it directed dismissal of the underlying charges with prejudice:
Federal habeas relief usually accomplishes its purpose by ordering the petitioner's release from state custody. Some authorities suggest federal courts lack power to revise the underlying state judgment directly. See Fay v. Noia, 372 U.S. 391, 431, 83 S.Ct. 822, 844, 9 L.Ed.2d 837 (1963) (dicta); Ex parte Medley, 134 U.S. 160, 173, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890). But see Palmer v. Judge and District Attorney General, 411 F.Supp. 1029, 1035 (W.D.Tenn.1976) (quashing sixteen-year-old state indictment on grounds of denial of speedy trial). We need not decide whether, in an appropriate case, a district court might order dismissal of state charges, because we find no circumstances justifying dismissal here.
731 F.2d at 640.
I question this Court's authority, in a case such as this, to bar petitioner's re-indictment and re-trial.[2] In any event, I find *1230 it unnecessary to determine the precise limits of the Court's power because here, as in Gardner, there are no circumstances that could justify an order barring re-trial. This is not a case where the very act of re-trying petitioner would infringe upon his constitutional rights, such as where re-trial would subject him to double jeopardy, Mizell, 586 F.2d at 945,[3] or where the petitioner has been denied the right to a speedy trial. Palmer v. Judge and District Attorney General of the Thirteenth Judicial District of Tennessee, 411 F.Supp. 1029 (W.D.Tenn.1976). The illegality in petitioner's first trial, the improper restrictions on cross-examination, was peculiar to that trial and can be fully remedied on re-trial. Nor has petitioner articulated any prejudice flowing from the state's failure to re-try him within sixty days. The sixty day order was intended to prevent the unnecessary prolongation of petitioner's detention on the basis of an unconstitutional conviction. The potential for such harm was eliminated when the original indictment was dismissed. Consequently, I can see no reason to preclude the retrial of petitioner, upon the new indictment within a reasonable time, in accordance, of course, with the constraints imposed by the state's statute of limitations and speedy trial law, and the overriding Sixth Amendment guarantee of a speedy trial.[4]
The cases cited by petitioner are not inconsistent with this conclusion. Those cases essentially fall into three groups. The first group, discussed and distinguished earlier, consists of cases where the very act of retrial would impair the petitioner's constitutional rights. See Mizell, 586 F.2d at 945; Palmer, 411 F.Supp. at 1035.
The largest group of cases merely stand for the undeniable proposition that a federal court may order that a state release a petitioner from custody when the petitioner has not been re-tried within the period of time prescribed by the court.[5] Contrary to petitioner's contention, none of those cases expressly precluded re-trial after release from custody.
The third group includes two cases where the petitioners had served extended and potentially unjustifiable periods of incarceration before the writ was granted. One case involved a series of events that were so shocking and abhorrent that the Second Circuit analogized the petitioner's plight to the story revealed in Solzhenitsen's The Gulag Archipelago. United States ex rel. Shuster v. Vincent, 524 F.2d 153, 154 (2d Cir.1975).[6] Without belaboring this opinion with a description of the complex facts of that case, it should suffice to note that the issues addressed in Shuster are not even remotely analogous to those presented here.
In the final case, Alim v. Smith, 474 F.Supp. 54 (W.D.N.Y.1979), the court concluded that a writ of habeas corpus should be granted in light of several substantial errors in the petitioner's state court trial, including improper joint representation by counsel and prosecutorial misconduct in summation. The district court noted that at the time of its order, only five months *1231 remained on the petitioner's maximum sentence of seven years. The court ordered that "unless further proceedings on the original indictment are initiated within 20 days of the filing of this order, the indictment is ordered dismissed with prejudice, and petitioner is ordered released from custody." 474 F.Supp. at 54. That case is plainly distinguishable in that the petitioner, Alim, had already served almost the maximum period to which he could have been sentenced if convicted on re-trial. By contrast, the petitioner here, Latzer, has not served any time in prison on the challenged conviction. In any event, the court in Alim, did not refer to any authority for its order and, as discussed above, it is highly questionable whether a federal court can or should so interfere with state court proceedings.
For all of these reasons, I conclude that petitioner is not entitled to an order precluding his re-trial on the charges that gave rise to this petition. Furthermore, while it would be appropriate to grant a final writ of habeas corpus in light of respondent's failure to re-try petitioner within the prescribed period, the question of release from custody is moot. Petitioner's motion, is therefore, denied.
SO ORDERED.
NOTES
[1] Petitioner has presumably been released on bail under the new indictment, but the Court has not been apprised as to his precise bail status. In any event, even if he is presently in "custody" by virtue of such bail restrictions, those restrictions would be the result of the new indictment, not the improper conviction. Consequently, those restrictions should not be discharged by the present writ.
[2] At the very least, there is a serious question as to whether such an order would violate the principles of federal-state comity set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Pitchess v. Davis, 421 U.S. 482, 485 n. 2, 95 S.Ct. 1748, 1751 n. 2, 44 L.Ed.2d 317 (1975); Sparks v. Garrison, 446 F.Supp. 649 (M.D.N.C.1978), aff'd mem., 612 F.2d 1310 (4th Cir.1979).
[3] Re-trying a successful habeas corpus petitioner will not ordinarily subject him to double jeopardy. Shear v. Boles, 263 F.Supp. 855, 859 (N.D.W.Va.1967), rev'd on other grds 391 F.2d 609 (4th Cir.1967); R. Sokol, Federal Habeas Corpus § 15.1 at 133 (1969). See also Graham v. Smith, 602 F.2d 1078, 1082 (2d Cir.1979) (dictum), cert. denied 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979).
[4] If the delay will in some other way preclude a fair trial, that issue should be raised at the time of re-trial. Gardner, 731 F.2d at 640. Cf. Pitchess, 421 U.S. at 490, 95 S.Ct. at 1753 (petitioner's claim of unfairness in re-trial due to the unavailability of evidence should have been first raised and exhausted in the state courts).
[5] Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979); United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3d Cir.1972); Bailey v. Henslee, 309 F.2d 840 (8th Cir.1962) (en banc); Tyler v. Croom, 288 F.Supp. 870 (E.D.N.C.1968); Homan v. Sigler, 283 F.Supp. 404 (D.Neb.1968).
[6] Citing A. Solzhenitsen, The Gulag Archipelago (1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/24847/ | 259 F.3d 410 (5th Cir. 2001)
J.L. HOLLIS, Plaintiff-Appellant-Cross-Appellee,v.PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee-Cross-Appellant,andPAUL REVERE INSURANCE GROUP, Defendant-Appellee.
No. 99-60877
UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
August 8, 2001
Charles M. Merkel (argued), Jack Robinson Dodson, Jr., Merkel & Cocke, Clarksdale, MS, for Hollis.
Clifford K. Bailer, III (argued), Richard D. Gamblin, Wise Carter, Child & Caraway, Jackson, MS, for Provident Life & Acc. Ins. Co, and Paul Revere Ins. Group.
Appeals from the United States District Court for the Southern District of Mississippi
Before REYNALDO G. GARZA, DAVIS and JONES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
1
This case involves claims for denial of benefits under two disability insurance policies. Appellant-cross-appellee Larry Hollis ("Hollis") began work with R.M. Hendrick Graduate Supply House, Inc. ("Graduate Supply") as a salesman in 1970. Graduate Supply sells class rings, diplomas, regalia, graduation invitations, yearbooks, and other similar items to high schools and colleges.
2
As a Graduate Supply sales representative, Hollis was assigned a territory and was responsible for servicing the schools within that territory. Hollis would load his car with Graduate Supply products, deliver them to the schools, make a sales presentation to the students, and then reload his car. In addition, Hollis serviced some of Graduate Supply's commercial accounts.
3
Prior to August 1, 1981, Graduate Supply treated Hollis as an employee, but, on August 1, 1981, Hollis and Graduate Supply signed an agreement that made Hollis an independent contractor. Under the agreement, Hollis was required to pay his own travel expenses, provide his own vehicle, and pay his own employment and income taxes. Hollis determined when he would visit his assigned schools, and he was solely responsible for maintaining Graduate Supply's contracts with those schools. In return, Graduate Supply paid Hollis a commission on the items he sold. However, Graduate Supply was Hollis's primary source of income, he had the same duties as employee-sales representatives, and he shared in year-end bonuses like Graduate Supply's employees.
4
Additionally, Graduate Supply had a program to provide life, medical, and disability insurance for its employees in which Hollis participated. Pursuant to this program, Hollis procured a disability insurance policy from Provident Life and Accident Insurance Company ("Provident"). Graduate Supply's employee-sales representatives obtained disability policies from a company called Lincoln Life. On his own, Hollis obtained a second disability policy from Paul Revere Insurance Company ("Paul Revere").
5
Graduate Supply paid $600.00 per year, or $50.00 per month, of the premium of each salesman's policy procured pursuant to its benefit program. If a salesman purchased a policy that cost more than $600.00 per year, Graduate Supply would pay the excess as it became due and then deduct it from the salesperson's monthly compensation. The premiums on Hollis's Provident policy were paid in this fashion.
6
The Provident policy would pay a monthly benefit of $4,100.00 in case of disability at a cost of $2,020.00 per year. The Paul Revere policy would pay a monthly benefit of $2,100.00 in case of disability. Both policies provide benefits in case of "total disability," but each policy defines that term in a slightly different way. Under the Provident policy, "total disability" means that "due to injury or sickness" the insured is "not able to perform the substantial and material duties of [his] occupation." Under the Paul Revere policy, "total disability" means that "because of injury or sickness," the insured is "unable to perform the important duties of [his] occupation."
7
Beginning in 1980, Hollis experienced occasional lower back pain and muscle spasms. Between 1980 and 1995, Hollis visited physicians several times for diagnosis and treatment of his back pain. The physicians told him that he did not have a ruptured disk or any other surgical problems. They advised Hollis to stay off his feet for a few days and take pain medication. In May of 1995, Hollis experienced severe back pain and spasms while unloading boxes of merchandise from his vehicle. He again visited a physician, Dr. Lynn Stringer, who performed an MRI on him and diagnosed him with advanced degenerative disc disease. His physician told him that excessive driving, bending, lifting and stooping was the reason for his back pain. Hollis attempted to continue working, but on August 17, 1995 he resigned from Graduate Supply due to his back problems.
8
On August 23, 1995, Hollis submitted his claim forms to Provident and Paul Revere. Dr. Stringer completed the Attending Physician Statement portion of the form. She reported the diagnosis as advanced degenerative disc disease and explained that the condition was permanent. She advised Hollis to either change his work habits or stop working. Within six months of the filing of the claim, both Provident and Paul Revere began paying benefits to Hollis.
9
In early 1997, Provident acquired Paul Revere and transferred Hollis's file to a different claim representative, Sally Moore. Moore contacted Hollis and told him that the typed attending physician's statements he had been submitting must be handwritten. In a telephone conversation, Hollis informed her, "very aggressively" according to Provident and Paul Revere, that he would continue to submit typed forms to save his physician time. Approximately one and half hours after this telephone conversation, Moore reopened the investigation into Hollis's claim and ordered additional physician statements and surveillance of Hollis's daily activities. Both Provident and Paul Revere terminated his benefits in early 1998 on the ground that he did not have a "total disability" as that term is defined under the policies.
10
In April of 1998, Hollis filed suit against Provident and Paul Revere in Mississippi state court for breach of contract and bad faith denial of disability insurance benefits. The case was removed to federal district court on May 5, 1998. In the federal district court, Provident moved for summary judgment on Hollis's state law claims on the ground that they were preempted by the federal Employee Retirement Income Security Act ("ERISA"). The district court denied its motion. The case was tried to a jury on May 28, 1998. As to Provident, the jury found that Hollis was totally disabled as defined by the Provident policy and that Provident acted in bad faith in denying Hollis's claim. As to Paul Revere, the jury found that Hollis was not totally disabled under its policy.
11
In addition to policy benefits, the jury awarded $100,000 in damages for mental anguish and emotional distress to Hollis for Provident's bad faith denial of disability benefits. Hollis moved the district court to award attorney's fees and costs, but the district court denied the award.
12
On appeal, Hollis raises two points of error. First, he claims that the district court erred by failing to award attorney's fees and costs. Second, he claims that the jury's answer that he was not totally disabled under the Paul Revere policy must be set aside because: it cannot be reconciled with the jury's answer that he was totally disabled under the Provident policy, the jury arrived at this answer by impermissibly considering evidence regarding Hollis's preexisting condition, and it is against the great weight of the evidence. Provident raises three points of error by way of cross appeal. First, Provident contends that Hollis's state law claims are preempted by ERISA. Alternatively, Provident argues: 1) there was insufficient evidence to support an award of damages for emotional distress and 2) Hollis's expert witness was not qualified to testify as to whether Provident denied his benefits in bad faith.
I.
13
The first issue we must decide is whether ERISA preempts Hollis's state law claims against Provident. Provident moved for summary judgment on the ground that ERISA preempts Hollis's state law claims, but the district court denied the motion. We reverse the decision of the district court.
14
ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . ." 29 U.S.C. § 1144(a) (1994). More specifically, Section 1144(a) bars state law causes of action when two elements are present: 1) the state law claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and 2) the claims directly affect the relationship between the traditional ERISA entities-the employer, the plan and its fiduciaries, and the participants and beneficiaries. See Weaver v. Employers Underwriters, Inc., 13 F.3d 172, 176 (5th Cir. 1994); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir. 1990). Hollis's state law claims concern the right to receive benefits under an ERISA plan, and his claims directly affect the relationship between traditional ERISA entities. Therefore, ERISA preempts his state law claims against Provident.
A. ERISA Plan
15
The first element of preemption-whether the state law claims address areas of exclusive federal concern, such as the right to receive benefits under an ERISA plan-is met. Clearly, Hollis claims a right to receive benefits under the disability insurance policy Provident issued. However, this fact alone is insufficient to meet the first element of preemption. He must claim a right to receive benefits under an ERISA plan for preemption to occur. See Weaver, 13 F.3d at 176. Hollis concedes that Graduate Supply established and maintained an ERISA plan1. The issue, therefore, is whether Hollis's disability insurance policy with Provident constitutes part of Graduate Supply's ERISA plan.
16
As mentioned above, under the terms of the Graduate Supply plan, a salesman would choose a disability insurance policy, and Graduate Supply would pay $600 per year in premiums on that policy. Hollis chose a disability policy from Provident, and Graduate Supply paid $600 per year in premiums on that policy. Holis argues that his Provident Policy was not part of Graduate Supply's ERISA plan because he selected Provident as his insurance company, while all the other salesmen selected Lincoln Life. The terms of the Graduate supply plan, however, provided that Graduate Supply would pay $600 regardless of which insurance company was selected. With respect to disability insurance, Graduate Supply treated Hollis the same as it treated any other salesman. Thus, Hollis's Provident policy was part of Graduate Supply's ERISA plan.
17
B. "Participant" or "Beneficiary"
18
Although the existence of an ERISA plan is a necessary requirement for preemption, its existence does not necessitate preemption. See Weaver, 13 F.3d at 176. For preemption to occur, the claims must "directly affect the relationship between traditional ERISA entities-the employer, the plan and its fiduciaries, and the participants and beneficiaries." See 29 C.F.R. § 2510.3-3(b) (2001); Memorial Hosp. Sys., 904 F.2d at 245. Because Hollis's claims directly affect the relationship between traditional ERISA entities, the second element of preemption is met.
19
Claims of breach of duty of good faith, breach of contract, and denial of benefits, like Hollis's claim against Provident, certainly can be preempted by ERISA. See Weaver, 13 F.3d at 177. However, the rule that the claims must "directly affect the relationship between traditional ERISA entities" has a standing component as well. See id. Claims, such as those referenced above, are preempted only when the claimant is a plan "participant" or "beneficiary." See id. Thus, for preemption to occur, Hollis must be either a participant or beneficiary as ERISA defines those terms. Provident does not assert that Hollis is a participant.
20
Thus, ERISA preempts his claims only if he is a beneficiary. ERISA defines beneficiary as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." 29 U.S.C. § 1002(8). Clearly, Hollis is a person who, by the terms of the Provident policy, a part of Graduate Supply's ERISA plan, "is or may become entitled to a benefit thereunder." Id. He was the beneficiary of the disability insurance policy, he was entitled to receive benefits under that policy in the event of total disability, and he did, in fact, receive benefits from Provident for several months. Therefore, under the definition's plain language, Hollis is a beneficiary.
21
In spite of the definition, Hollis gives two separate and independent reasons why he is not a beneficiary. First, he argues that independent contractors, such as himself, cannot be ERISA beneficiaries. Second, he argues that the definition of beneficiary does not include a person whose services resulted in the accrual of the benefit. We are not persuaded by either argument.
22
Relying on our decision in Weaver, the district court concluded that an independent contractor can not be an ERISA beneficiary. In that case, Weaver, an independent contractor, sued his employer and the insurance carrier obligated to pay benefits under the ERISA benefit plan. See Weaver, 13 F.3d at 173-74. We decided that ERISA did not preempt state law in that case because Weaver was neither a participant nor a beneficiary. See id. at 176. We said that Weaver was not a participant precisely because he was an independent contractor. After all, ERISA defines a participant as "any employee . . . who is or may become entitled to a benefit." 29 U.S.C. § 1002(8). However, we gave an entirely different reason why Weaver was not a beneficiary. See id. at 177. Weaver was not a beneficiary because the benefit plan did not designate him as a beneficiary. See id. In other words, Weaver was not a person who could ever become entitled to benefits; thus, he did not meet the definition of beneficiary.
23
For this particular issue, what we did not say in Weaver is more important than what we said. We did not say that his status as an independent contractor had anything to do with him not being a beneficiary. In fact, implicit in our holding in Weaver is that an independent contractor can be a beneficiary so long as he is a person "who is or may become entitled to a benefit" under the plan. Therefore, Hollis's independent contractor status does not preclude him from being a beneficiary.
24
Similarly, Weaver's claim that his own services accrued a benefit had nothing to do with our holding that he was not a beneficiary. However, citing a footnote from an opinion of the Fourth Circuit, Hollis argues that a beneficiary under ERISA includes only "a person other than one whose service resulted in the accrual of the benefits, but who is designated as the recipient of benefits accrued through the service of another." Darden v. Nationwide Mutual Ins. Co., 796 F.2d 701, 704 n.3 (4th Cir. 1986)(emphasis added). In other words, Hollis argues that a beneficiary is limited to people such as the worker's spouse and children. Until now, we have not squarely decided this issue. However, the other courts of appeals faced with this issue have decided that beneficiary includes those persons whose services accrued the benefit. We agree with our sister courts.
25
In Peterson v. American Life and Health Ins. Co., the Ninth Circuit, relying on the plain language of ERISA's definition of beneficiary, held that an ERISA beneficiary includes "any person designated to receive benefits from a policy that is part of an ERISA plan." 48 F.3d 404, 409 (9th Cir. 1995). The Peterson court reasoned that "to hold otherwise would create the anomaly of requiring some insureds to pursue benefit claims under state law while requiring others covered by the identical policy to proceed under ERISA." Id. The Peterson court noted that "such a scenario would frustrate Congress's intent of achieving uniformity in the law governing employment benefits." Id.
26
Other circuits have found the Ninth Circuit's reasoning as persuasive as we do. In Prudential Ins. Co. of America v. Doe, the Eighth Circuit held that the controlling shareholder in a law firm was an ERISA beneficiary because he was "designated to receive benefits under the terms of the "employee benefit policy." 76 F.3d 206, 208 (8th Cir. 1996). In Wolk v. Unum Life Ins. of America, the Third Circuit held that a partner in a law firm was an ERISA beneficiary because she was designated to receive benefits under an employee welfare benefit plan. 186 F.3d 352, 356 (3d Cir. 1999). Finally, in Engelhardt v. Paul Revere Life Ins. Co., the Eleventh Circuit held that a physician-shareholder of a professional corporation was an ERISA beneficiary because he was a beneficiary under the group disability insurance plan. 186 F.3d 352, 356 (11th Cir. 1999).
27
At the end of this analysis, we reach the unremarkable conclusion that ERISA's definition of beneficiary means precisely what it says. A beneficiary is "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." 29 U.S.C. § 1002(8). Because Hollis was a person designated by the terms of the plan who could become entitled to benefits thereunder, he is an ERISA beneficiary.
28
Both elements of preemption are satisfied in this case. Hollis's state law claims address areas of exclusive federal concern because he is claiming a right to receive benefits under the terms of an ERISA plan. Because Hollis is an ERISA beneficiary, his claims directly affect the relationship between traditional ERISA entities. Therefore, ERISA preempts Hollis's state law claims against Provident for bad-faith denial of disability benefits.
29
The judgment against Provident is vacated and the case is remanded to the district court so Hollis's claims against Provident can be concluded as appropriate under ERISA. We leave it to the district court to determine whether Hollis has exhausted his administrative claims against Provident. If not, the district court should remand Hollis's claims against Provident to the plan administrator. If the claims have been administratively exhausted, then the district court should consider whether to allow Hollis to amend his suit to seek review of the administrative findings under the appropriate standard of review.2
II.
30
In addition to preemption, Provident raises two more issues by way of cross appeal. Provident argues that there was insufficient evidence to support the award of emotional distress and mental anguish damages and that Hollis's expert was unqualified to testify as to whether Provident denied benefits in bad faith. Since we hold that ERISA preempts Hollis's state law claims against Provident, both of these issues are moot.
III.
31
Hollis challenges the judgment rendered on the take nothing verdict in favor of Paul Revere. He argues first that the verdict in favor of Paul Revere can not be reconciled with the verdict against Provident. As indicated above, the district court erred in allowing Hollis's claims against Provident to go to the jury, so the jury's verdict on those claims is essentially a nullity. Thus, we are only left with the take nothing verdict in favor of Paul Revere.
32
Hollis also argues that the jury improperly considered evidence that he had a preexisting condition at the time he applied for the Paul Revere policy. During deliberations, the jury sent a note to Judge Barbour which asked: "Are we allowed to consider good-faith/bad-faith in determining our decision in regards to the written application for a policy." According to Hollis, the note shows that the jury found in favor of Paul Revere because it believed he applied for the policy in bad faith.
33
Judge Barbour sent a note back to the jury room instructing them that they should not consider evidence of bad faith/good faith in the application process to determine whether Hollis was totally disabled. Juries are presumed to follow the instructions of the court. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). Therefore, we must presume that the jury followed Judge Barbour's instructions and ignored the evidence of bad faith in the application process.
34
Hollis next argues that we should grant a new trial in his action against Paul Revere because the verdict is against the great weight of the evidence. After reviewing the record, we are not persuaded that the verdict in favor of Paul Revere was against the great weight of the evidence.
35
Hollis claims the district court erred by failing to award him attorney's fees in his action against Provident. Because Hollis's state law claims against Provident are preempted by ERISA, the issue is moot.
IV.
36
We VACATE the judgment rendered against Provident and REMAND Hollis's action against Provident so it can be handled as an ERISA action. We AFFIRM the take nothing judgment rendered in favor of Paul Revere.
NOTES:
1
Hollis states in his brief that "[t]he 'plan' did exist as to the employees of Graduate Supply, and Hollis could only have been a plan participant if he had been designated a beneficiary by one of the employees of the plan or by a provision of the plan itself." At oral argument, Hollis's attorney was asked, "[do] you agree it's an ERISA plan?" He responded by stating "I don't disagree with the district court's finding of fact to that effect."
2
"This court requires that claimants seeking benefits from an ERISA plan must first exhaust available administrative remedies under the plan before brining suit to recover benefits." Bourgeois v. Pension Plan for Employees of Santa Fe Int'l Corps., 215 F.3d 475, 479 (5th Cir. 2000) (citing Denton v. First Nat'l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985)). | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2474237/ | 731 F.Supp.2d 328 (2010)
Clair DOLLMAN and Trevor Dollman, Plaintiffs,
v.
MAST INDUSTRIES, INC., Victoria's Secret Direct, LLC, and Limited Brands, Inc., Defendants.
No. 08 Civ. 10184(WHP).
United States District Court, S.D. New York.
August 17, 2010.
*331 Preston Avram Leschins, Esq., Anzalone & Leschins, New York, NY, for Plaintiffs.
Andrew Christian Smith, Esq., Vorys, Sater, Seymour & Pease, LLP, Columbus, OH, Angela Kathleen Dorn, Esq., Gonzalez Saggio & Harlan, New York, NY, for Defendants.
MEMORANDUM & ORDER
WILLIAM H. PAULEY III, District Judge:
Plaintiffs Clair Dollman ("Dollman") and Trevor Dollman bring this action against Defendants Mast Industries, Inc. ("Mast"), Victoria's Secret Direct, LLC ("Victoria's Secret"), and Limited Brands Inc. ("Limited") claiming employment discrimination, hostile work environment, and wrongful termination on the basis of national origin or pregnancy in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), *332 and New York State and City Human Rights Laws. Defendants move for summary judgment on all of Plaintiffs' claims. For the following reasons, Defendants' motion is granted in part and denied in part.
BACKGROUND
In May 2004, Victoria's Secret hired Dollman, a British citizen from the county of Essex, England, to work as a Knit Fabric Manager in its New York office. (Defendants' Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 dated Nov. 20, 2009 ("Defs. 56.1 Stmt.") ¶ 5; Affidavit of Clair Dollman in Opposition to Defendant's Motion for Summary Judgment dated Jan. 12, 2010 ("Dollman Aff.") ¶ 8.) Limited is a holding company for a number of subsidiary clothing and fabric businesses. (Defs. 56.1 Stmt. ¶ 1.) Victoria's Secret is a Limited subsidiary that sells women's clothing nationwide. (Defs. 56.1 Stmt. ¶ 2.) Mast, also a subsidiary of Limited, develops fabric for Victoria's Secret garments. (Defs. 56.1 Stmt. ¶ 3.)
As a Knit Fabric Manager, Dollman was responsible for the sourcing and technical development of fabrics used to produce goods sold in the Victoria's Secret catalog. (Defs. 56.1 Stmt. ¶ 5.) From May 2004 to November 2005, Dollman was supervised by and reported directly to Jaclyn Noble ("Noble"). (Defs. 56.1 Stmt. ¶ 7; Affidavit of Benjamin A. Shepler dated Nov. 20, 2009 ("Shepler Aff.") Ex. F: Affidavit of Jaclyn Noble dated Nov. 19, 2010 ("Noble Aff.") ¶ 3.) In November 2005, Noble was promoted and Alison Tranter ("Tranter") became Dollman's direct supervisor. (Noble Aff. ¶ 4.) Tranter, who is from Birmingham in West Midlands county, England, was Dollman's direct supervisor from November 2005 until Dollman's termination in February 2008. (Defs. 56.1 Stmt. ¶¶ 7-8, 14-15, 29-31.) Shortly after this change in supervision, Dollman was transferred from Victoria's Secret to a division of Mast known as "Victoria's Secret Direct Production," where she retained her position as Knit Fabric Manager. (Defs. 56.1 Stmt. ¶ 9.) In February 2007, she was transferred laterally from Knit Fabric Manager to Fabric Manager for Sleepwear/Swimwear/Color. (Defs. 56.1 Stmt. ¶ 10.)
Dollman concedes she was treated fairly while Noble was her direct supervisor. However, the parties offer sharply conflicting accounts about Dollman's performance under Tranter's management and about her relationship with Tranter. For her part, Dollman asserts that she maintained an exemplary performance record and submits numerous letters of commendation and several internal company awards she received between 2004 and 2007. (Dollman Aff. Ex. B: Awards and Commendation Letters Bates Nos. 100-124, 584.)
Defendants submit that Dollman had a record of poor managerial and interpersonal skills. On May 18, 2006, Tranter gave Dollman a performance review. It included "several instances of non-positive feedback" under a category called "Rules of Engagement," which measured "respect," "positive intent," and the ability to "resolve conflict." (Noble Aff. Ex. A: Performance Review of Clair Warrick dated May 18, 2006 ("2006 Performance Review") at 5.) However, the evaluation concluded by indicating that Dollman met or exceeded expectations in every category. (2006 Performance Review at 6.) In August 2006, Noble and Tranter met with Dollman to discuss some ongoing performance issues, specifically her management skills and response to problems within her group. (Noble Aff. Ex. B: Meeting Notes dated Aug. 9, 2006.)
On April 13, 2007, Tranter gave Dollman another performance review which again indicated that she met or exceeded expectations in all categories. (Shepler Aff. Ex. *333 A: Deposition of Clair Dollman dated June 25, 2009 ("Dollman Dep.") Ex. 16: Performance Review of Clair Warrick dated Apr. 13, 2007 ("2007 Performance Review") at 6-7.) Tranter noted on the review form that "Clair needs to partner with her peers & resolve conflict in a collaborative manner to avoid unnecessary tension escalating." (2007 Performance Review at 7.) In an October 2007 mid-year review, Tranter gave Dollman high marks for her technical work but also noted that she "blames others" and frequently "adopts a `victim mentality.'" (Dollman Dep. Ex. 17: Mid Year Touchbase Review of Clair Dollman undated at 1-3.)
Dollman proffers that Tranter intensified her scrutiny by requiring her to attend weekly meetings when Noble had held only bi-weekly ones. (Dollman Aff. ¶ 9.) Tranter also instructed Dollman to refrain from using English jargon, such as "bonkers," or English humor with her colleagues. (Dollman Aff. ¶¶ 10, 12.) Dollman further sensed a "change in attitude" by Tranter, which she attributed to the fact that Tranter came from a different region of England than she did. (Dollman Aff. ¶¶ 8, 10, 12.)
On October 28, 2007, Dollman learned she was pregnant and scheduled an obstetrics appointment. (Dollman Aff. ¶ 13.) The next day, Dollman sent an email to Tranter requesting additional time off for another appointment, which Tranter approved with the proviso that Dollman try to schedule her appointments at the beginning or end of the day. (Defs. 56.1 Stmt. ¶ 33; Dollman Dep. Ex. 21: Series of Emails between Alison Tranter and Clair Dollman dated Oct. 29, 2007 ("Tranter-Dollman Emails").) After receiving Tranter's email, Dollman attempted to forward it to her husband, Trevor Dollman, but accidentally hit the "Reply" button and sent the following message to Tranter: "Look at thislittle does she know! Ha Ha." (Tranter-Dollman Emails.) When Tranter inquired about this message, Dollman explained to Tranter and a human resources employee Melissa Jones ("Jones") that it was meant for her husband and was in reference to her pregnancy. (Dollman Dep. at 220-24.)
In November 2007, Tranter's mother visited the Mast office, approached Dollman to congratulate her on the pregnancy, and hugged her. (Dollman Dep. at 224-25.) Dollman believes that this was Tranter's attempt to embarrass her in front of her colleagues. (Dollman Dep. at 225.)
According to Defendants, in November 2007, a "business decision" was made to transfer certain sleepwear department responsibilities from Victoria's Secret Direct Production to another division of Mast. (Defs. 56.1 Stmt. ¶ 16; Shepler Aff. Ex. E: Affidavit of Mary Ellen Prentis dated Nov. 19, 2009 ("Prentis Aff.") ¶¶ 5-6.) This restructuring of Dollman's division resulted in the termination of two sleepwear associates. (Prentis Aff. ¶ 6.) Thereafter, Mary Ellen Prentis ("Prentis"), an Executive Vice President at Victoria's Secret, concluded that Victoria's Secret Direct Production no longer needed three Fabric Managers. (Prentis Aff. ¶¶ 8-9.) Prentis then assessed all three Fabric Managers "across a number of categories." (Prentis Aff. ¶ 10.) Based on this assessment, Prentis decided to terminate Dollman because "she was [sic] weakest by a considerable margin in the areas of customer service and leadership/managerial skills." (Prentis Aff. ¶ 11.)
On January 29, 2008, Mast informed Dollman of its decision, offered her a severance package, and allowed her to remain in her position until March 31, 2008. (Defs. 56.1 Stmt. ¶ 21.) The next day, Dollman informed Tranter that she would not come to work. (Defs. 56.1 Stmt. ¶ 22.) Without giving notice, she was also absent *334 on January 31. (Defs. 56.1 Stmt. ¶ 22.) The next week, Dollman scheduled three appointments in three days-two with attorneys and one with a dentist. (Defs. 56.1 Stmt. ¶ 23.)
On February 6 and 7, 2008, Don Hosea ("Hosea"), the human resources manager for the Mast New York office, attempted to meet with Dollman to discuss her absences. (Defs. 56.1 Stmt. ¶ 26.) Dollman refused to meet with him. (Defs. 56.1 Stmt. ¶ 26.) On February 6, 2008, Dollman's attorney sent a letter to Hosea indicating that the severance package was unacceptable and raising questions about Dollman's termination with respect to her pregnancy and immigration status. (Dollman Aff. Ex. F: Email from Preston A. Leschins to Don Hosea dated Feb. 6, 2008.) On February 8, 2008, Prentis decided to make Dollman's termination effective immediately. (Defs. 56.1 Stmt. ¶¶ 27-28.) Prentis avers that she was not aware of the letter from Dollman's attorney when she made that decision. (Defs. 56.1 Stmt. ¶¶ 27-28.)
After her termination, Dollman visited several internet job-posting websites and discovered that Mast was advertising for a Fabric and Trim Development Manager in its New York office. (Dollman Aff. Ex. D: Job Website Printouts dated Feb. 8, 2008 ("Job Postings") at Bates Nos. 0000156-0000167.) Dollman also found a listing for a Senior Material Research Designer, a Textile Technologist, and a Fabric Research Manager for Mast's New York office. (Job Postings at Bates Nos. 0000168-0000174.) On February 13, 2008, she filed a complaint with the New York State Division of Human Rights (the "SDHR"). (Complaint dated Oct. 23, 2008 ("Compl.") Ex. 1: N.Y. State Dept. of Human Rights Final Investigation Report and Basis of Determination in Case No. 10123650-08-E-SON-E dated Aug. 14, 2008 ("SDHR Report").)
In August 2008, the SDHR completed its investigation. According to the SDHR report, Dollman "was the only one of more than sixty employees in [] Victoria's Secret Direct Production" to be terminated as a result of the sleepwear restructuring. (Report at 6.) Further, the SDHR report noted that Mast hired a woman named Jennifer Lee to work as a Senior Technical Designer "a few weeks after [Dollman's] termination." (Report at 6-7.)
On November 24, 2008, Dollman and her husband commenced this action asserting claims for (1) national origin discrimination; (2) pregnancy discrimination; (3) retaliation; and (4) negligent infliction of emotional distress.
DISCUSSION
I. Legal Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Davis v. Blige, 505 F.3d 90, 97 (2d Cir.2007). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has made an initial showing that there is no genuine issue of material fact, the non-moving party cannot rely on the "mere existence of a scintilla of evidence" to defeat summary judgment but must set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original); Niagara Mohawk Power Corp. v. Jones *335 Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (citation omitted). "A dispute about a `genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the nonmovant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)). On the other hand, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348). The Court resolves all factual ambiguities and draws all inferences in favor of the nonmoving party. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir.2005).
II. National Origin Discrimination
Title VII prohibits employment discrimination on the basis of national origin "with respect to [an employee's] compensation, terms, conditions, or privileges of employment."[1] 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "The term `national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). This case requires a threshold inquiry as to whether a "national origin" claim can arise from intra-country, regional discriminationas applied here, where the alleged discriminator from Birmingham in west-central England targets a victim because she is from the county of Essex, northeast of London.
The text of Title VII does not address whether "regional" discrimination is within the ambit of "national origin" discrimination. The Equal Employment Opportunity Commission has issued guidelines "broadly" interpreting national origin to include ancestry, place of origin, and the cultural and linguistic characteristics of a national origin group. 29 C.F.R. § 1606. Further, courts have extended national origin protection to persons born in countries which no longer exist, Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673-74 (9th Cir. 1988), and persons with non-sovereign ancestries (e.g. Acadians or "Cajuns"), Roach v. Dresser, 494 F.Supp. 215, 217 (W.D.La. 1980) ("Distinctions between citizens solely because of their ancestors are odious to a free people whose institutions are founded upon the doctrine of equality, and we decline to accept the argument that litigation of this sort should be governed by the principles of sovereignty."); see also Janko v. Ill. State Toll Highway Auth., 704 F.Supp. 1531, 1532 (N.D.Ill.1989) ("This would include discrimination today by members of the majority against those among us who are considered Gypsies.").
Despite this inclusiveness, discrimination on the basis of a person's regional heritage has typically been excluded from the coverage of "national origin." Some federal courts have not recognized such discrimination, in and of itself, as a violation of the Civil Rights Act. See Bronson v. Bd. of *336 Educ. of the City Sch. Dist. of Cincinnati, 550 F.Supp. 941, 959 (W.D.Ohio 1982) ("There is no indication that `national origin' was intended to include Appalachians or to include groups such as Appalachians who do not possess a national origin distinguishable from that of other citizens of the United States."); see also De Volld v. Bailar, 568 F.2d 1162, 1164-65 (5th Cir.1978) ("Put another way, whatever motives the Commission may have had in choosing between two people of the same ethnic origin, discrimination cannot have been among them."). But see Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 763-64 (3d Cir.2004) (declining to consider whether a "Confederate Southern-American" was protected for purposes of national origin discrimination).
Aside from the patchwork of caselaw declining to recognize or consider regional discrimination claims, several other factors counsel against granting victims of regional discrimination the same protection afforded those who suffer race or gender bias. Notably, the legislative history of Title VII suggests that Congress drew a line which excluded regional discrimination from national origin protection. As the Supreme Court noted in Espinoza, "[t]he only direct definition given the phrase `national origin' is the following remark made on the floor of the House of Representatives by Congressman Roosevelt, Chairman of the House Subcommittee which reported the bill: `It means the country from which you or your forebears came.... You may come from Poland, Czechoslovakia, England, France, or any other country.'" Espinoza, 414 U.S. at 89, 94 S.Ct. 334 (citing 110 Cong. Rec. 2549 (1964)). Moreover, there is no clear history of discriminatory animus, comparable to that faced by blacks or women or Italians because of one's county (not country) of origin. See Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ("The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."). Indeed, attempting to ferret out such discrimination would pose a near-impossible task for a court or jury. Unlike the more easily identifiable traits of race or sex, full appreciation of the subtle nuances of regional identitya prerequisite to deciding a claim of regional discriminationrequires an ethnographic immersion that could not be attained by simply reviewing court filings, exhibits, expert testimony, or the like. Indeed, it is the nuance of regional discrimination that sets it apart from the more detestable forms prohibited by law, which arise from the reversion to superficial distinctions well understood as irrelevant to a person's character.
Finally, the infirmity of Dollman's legal claim is illuminated by her inability to muster facts showing discrimination by Defendants on the basis of her regional or national origin. The alleged discriminatory acts only amount to passive instructions to refrain from using the word "bonkers" and opaque English humor. See Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.2009) ("Specifically, a plaintiff must show that the misconduct was `severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive."). These statements are so scattershot and meek that they do not create a hostile environment. See Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir.2002) ("As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."). Moreover, they are unconnected to any *337 particular region of England because Tranter's admonitions would apply equally to persons from Essex or Birmingham.
Accordingly, because neither the undisputed facts nor the law support Dollman's claims for national origin discrimination, those claims are dismissed.
III. Pregnancy Discrimination
Title VII was amended in 1978 by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), which provides that discrimination "on the basis of sex include[s]... [discrimination] `on the basis of pregnancy'... [and] a woman affected by pregnancy shall be treated the same for all employment-related purposes." Title VII creates causes of action for pregnancy discrimination for both a hostile work environment and wrongful termination. See Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir.2001); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995).
A. Hostile Work Environment
For hostile workplace harassment on account of one's pregnancy to be actionable, "it must be sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment." Leibovitz, 252 F.3d at 188 (citations omitted). "The sufficiency of a hostile work environment claim is subject to both subjective and objective measurement: the plaintiff must demonstrate that she personally considered the environment hostile, and that the environment rose to some objective level of hostility." Leibovitz, 252 F.3d at 188 (citing Harris, 510 U.S. at 21, 114 S.Ct. 367).
Although Dollman apparently felt she was subject to hostility in the work-place, she fails to advance facts that would lead a reasonable jury to reach the same conclusion. Harris, 510 U.S. at 21, 114 S.Ct. 367 ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environmentan environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview."). Notably, she asserts only that Tranter's mother congratulated and hugged her and that she was not given time off for one of her many appointments. These two isolated occurrences lack both the "quantity and quality" of abuse that would lead a fact-finder to conclude that her workplace was polluted with hostility. See Torres v. Pisano, 116 F.3d 625, 631-32 (2d Cir.1997) (noting that a reasonable person would find her working conditions altered when the supervisor repeatedly uses vulgarities towards her, uses crude sexual humor, ridicules one's pregnancy, or make comments on anatomy). Accordingly, Dollman's hostile environment claims premised on pregnancy discrimination are dismissed.
B. Wrongful Termination
Dollman's wrongful termination claim is subject to the well-established burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
"First, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination." Quaratino, 71 F.3d at 64. A plaintiff must show that (1) she was a member of the protected class (i.e. pregnant); (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position remained open and was ultimately filled by a non-pregnant individual or that the circumstances of her discharge give rise to an inference of unlawful discrimination. See *338 Quaratino, 71 F.3d at 64 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817); see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 104 (2d Cir. 1989) ("In short, we decline to apply the McDonnell Douglas standard inflexibly.... [A] discharged employee ... need not show that he was replaced ... it is sufficient that the discharge occur in circumstances giving rise to an inference of age discrimination.").
Second, where a plaintiff makes out a prima facie case, the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason for discharging the employee. Quaratino, 71 F.3d at 64 (citing Gallo v. Prudential Res. Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994)).
Finally, if the defendant articulates a non-discriminatory reason for its behavior, "the burden shifts back to the plaintiff to prove that discrimination was the real reason for the employment action." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000) (citations omitted). At this stage, all presumptions drop from the analysis and the fact-finder simply decides "whether [by a preponderance of the evidence] the defendant intentionally discriminated" against the plaintiff on the basis of pregnancy. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); see also Hicks, 509 U.S. at 510-12, 113 S.Ct. 2742 ("If, on the other hand, the defendant has succeeded in carrying its burden of production, the McDonnell Douglas frameworkwith its presumptions and burdensis no longer relevant."). Thus, burden shifting is not "intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Aikens, 460 U.S. at 715, 103 S.Ct. 1478 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).
1. Dollman's Prima Facie Case
"The Supreme Court has used the adjective `minimal' to describe the burden of establishing a prima facie case of discrimination... and [the Court of Appeals has] likewise held that the plaintiff's burden of establishing a prima facie [Title VII] case is de minimis." Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir.2009) (citing Hicks, 509 U.S. at 509, 113 S.Ct. 2742). Because it is undisputed that Dollman was pregnant and terminated, she need only show that she satisfactorily performed her job and that the circumstances of her termination create an inference of discrimination.
With regard to her job performance, although each of Dollman's reviews listed areas for improvement, her consistent scores of "meets expectations" or "exceeds expectations" show that she was a technically sound and successful manager. Notably, Tranter repeatedly lauded her for excellent technical skills. Dollman's strong marks demonstrate that she was objectively performing well and satisfying Mast's internal subjective measures. Compare Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.2001) (employing objective test that "the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he `possesses the basic skills necessary for performance of [the] job'") with Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 30 (2d Cir.1997) (requiring subjective demonstration of "satisfactory job performance, in accordance with the particular employer's criteria").
*339 Although Dollman does not specifically identify a non-pregnant replacement who filled her position, the circumstances of her termination raise an inference of unlawful discrimination. Principally, Dollman shows that Mast continued to advertise for her position after November 2007, when the decision to terminate her was made. Those advertisements continued even after her termination in January 2008. Although Defendants submit they had other motives to post these advertisements, the publication of them gives rise to an inference that "restructuring" was not the real or entire reason for Dollman's termination. Indeed, according to the SDHR investigation, Mast's "restructuring" resulted in the termination of Dollman and two others. Further, Dollman submitted Hosea's work calendar for the weeks following her termination. An entry on February 21, 2008 shows Hosea scheduled a meeting titled "Updated: Exploratory Interview with Elaine Stewart Fabric Mgr Talent (1740 BroadwayYour Office)." Cumulatively, these facts establish a prima facie case.
2. Defendants' Non-Discriminatory Justifications
"To dispel the inference of discrimination arising from the establishment of a prima facie case, [a defendant] is required to articulatebut not provea legitimate, nondiscriminatory reason for the discharge." Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1115 (2d Cir.1988) (citations omitted). Thus, a defendant's burden of production "is not a demanding one." Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir.1999). Moreover, "although the burden of production shifts to the defendant, the ultimate burden of persuasion remains always with the plaintiff." Bickerstaff, 196 F.3d at 446 (citing Hicks, 509 U.S. at 507, 113 S.Ct. 2742).
Defendants proffer that the restructuring of the division in which Dollman worked caused her termination. When faced with the need to downsize from three Fabric Managers to two, Prentis endeavored to select the two best performers for continued employment. Prentis conducted a review of each manager and determined that Dollman had the least desirable qualities, especially with regard to her interpersonal skills. This finding was supported in Dollman's prior performance reviews, which cited managerial skills as her primary deficiency. Because the "inability to cooperate with colleagues constitute[s] [a] legitimate, non discriminatory reasons for discharge," Bynog v. SL Green Realty Corp., No. 05 Civ. 305(WHP), 2007 WL 831740, at *6 (S.D.N.Y. Mar. 20, 2007) (citing Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.1985)), Defendants set forth a legitimate non-discriminatory justification.
3. Evidence of Pretext
At the final McDonnell Douglas stage, the inquiry turns to whether the plaintiff could show, by a preponderance of the evidence, that the defendant intentionally discriminated against her. See Hicks, 509 U.S at 511, 113 S.Ct. 2742; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996). This inquiry is often framed as whether a plaintiff could present evidence sufficient to show the defendant's proffered reason for the termination was pretextual. See LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir.1995).
Dollman elicits several facts which could lead a reasonable jury to conclude that her firing was pretextual. Primarily, a jury could reject Defendants' proffered restructuring justification. This finding would not be unwarranted, given the small number of employees Mast terminated and the ongoing advertising for Dollman's position. Given Dollman's consistently positive job evaluations, there are significant questions of fact about why Dollman was *340 selected for termination over the two Fabric Managers who remained. Although Defendants argue that Plaintiff is misinterpreting the advertisements placed online, that fact issue, along with the other inconsistent evidence about the circumstances of Dollman's termination, are appropriately resolved by a jury.
Accordingly, Defendants' motion for summary judgment on Dollman's pregnancy discrimination claim with respect to her termination is denied.
IV. Retaliation
Dollman asserts a retaliation claim based on Mast's decision to accelerate her termination. Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Because retaliation claims are subject to the McDonnell Douglas framework, Dollman must first make a prima facie showing that she engaged in protected activity and that there was a causal connection between the protected activity and the adverse employment action. See Mack v. Otis Elevator Co., 326 F.3d 116,129 (2d Cir.2003); Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988).
Dollman fails to establish a prima facie case of retaliation in several respects. First, Dollman only engaged in protected activityby consulting an attorneyafter she had been given notice of her termination. Thus, there is no causal relationship between her objection to Mast's behavior and Mast's decision to terminate herthe deed had been done. Moreover, because "[t]he anti-retaliation law `protects an individual not from all retaliation, but from retaliation that produces an injury or harm,'" Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 721 (2d Cir.2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)), the decision to accelerate Dollman's termination, while offering the same severance package, does not constitute an adverse employment action. Finally, even if the acceleration of her termination could constitute an adverse employment action, Dollman elicited no evidence showing that Prentis, who was responsible for the termination, knew Dollman had sought the advice of counsel. Rather, Prentis's decision was based on Dollman's frequent absences from work in the first week of February 2008a fact Dollman fails to rebut. Accordingly, Dollman's retaliation claims are dismissed.
V. Emotional Distress Claims
Dollman and her husband Trevor Dollman also bring state law claims for negligent infliction of emotional distress arising from Dollman's termination and subsequent loss of a United States work visa. Under New York law, a claim for negligent infliction of emotional distress may arise under either (1) the "bystander theory" or (2) the "direct duty theory." Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir.2000). But these theories depend on a plaintiff's proximity to and observation of "serious physical injury or death inflicted... on a member of the plaintiff's immediate family" or the endangerment of a plaintiffs physical safety. Baker, 239 F.3d at 421. Neither applies here. "However, New York also recognizes a cause of action in cases where there is "an especial likelihood of genuine and serious mental distress, arising from ... special circumstances, which serves as a guarantee that the claim is not spurious." Baker, 239 *341 F.3d at 421 (quoting Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (1975)). Courts have therefore recognized causes of action when a plaintiff is mistakenly informed about the death of a family member or told that he has a serious illness when he, in fact, does not. See Baker, 239 F.3d at 421-22 (citations omitted).
Such special circumstances of serious distress are not present here. Learning that you or your spouse was terminated by an employera common occurrence in this economyis not sufficient to support a claim for negligent infliction of emotional distress. See Kelly v. Chase Manhattan Bank, 717 F.Supp. 227, 235 (S.D.N.Y.1989) (dismissing claim by discharged bank employee and noting while "termination of an employee is likely to give rise to bad feelings and anxiety ... [t]his cannot mean that every adverse employment decision may give rise to a claim of negligent infliction of emotional distress"). Accordingly, Plaintiffs' claims for negligent infliction of emotional distress are dismissed.
VI. Proper Defendants
Finally, Defendants challenge the propriety of the Dollmans' suit against three different entitiesLimited, Mast, and Victoria's Secret. Defendants assert that Mast, the company that employed Dollman, is the only appropriate defendant. Limited is a holding company with no employees. While Dollman was hired originally by Victoria's Secret, the gravamen of her case concerns only her employment at Mast. Dollman's tax returns also that Mast, and not any other Defendant, was her employer. Because there is no obvious need to pierce the corporate veil and Dollman's allegations concern Mast exclusively, Defendants Limited and Victoria's Secret are dismissed as Defendants from this action.
CONCLUSION
For the foregoing reasons, Defendants Limited Brands, Inc. and Victoria's Secret Direct, LLC are dismissed from this action. All claims by Plaintiff Trevor Dollman are also dismissed. Defendant Mast Industries, Inc.'s motion for summary judgment on Plaintiff Clair Dollman's claim for wrongful termination based on pregnancy discrimination is denied. Defendant Mast Industry Inc.'s motion for summary judgment on all remaining claims is granted. The Clerk of Court is directed to terminate all pending motions.
SO ORDERED:
NOTES
[1] Each of Dollman's federal claims are coupled with identical allegations under the New York Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Because the Court of Appeals "has determined that a plaintiff's discrimination claims under both the NYSHRL and the NYCHRL are subject to the burden-shifting analysis applied to discrimination claims under Title VII," Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.2010), and this case implicates none of the unique remedial provisions of the NYCHRL, the analysis of federal, state, and municipal law is combined. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2103270/ | 309 S.W.3d 880 (2010)
STATE ex rel. Christopher A. KOSTER, Respondent,
v.
Robyn L. BONSTELL, Appellant.
No. WD 71635.
Missouri Court of Appeals, Western District.
May 18, 2010.
Robyn Bonstell, Cameron, MO appellant Acting pro se.
Megan K. Fewell, Jefferson City, MO, for Respondent.
Before THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.
ORDER
PER CURIAM:
Mr. Robyn L. Bonstell appeals a judgment denying a motion to set aside the judgment awarding reimbursement to the State for Mr. Bonstell's incarceration.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2481403/ | 938 N.E.2d 525 (2010)
237 Ill.2d 569
PEOPLE
v.
DUNLAP.
No. 110509.
Supreme Court of Illinois.
September 1, 2010.
Disposition of petition for leave to appeal denied.[*]
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3153192/ | Slip Op. 15-
UNITED STATES COURT OF INTERNATIONAL TRADE
DESIGN INTERNATIONAL GROUP,
INC.,
Plaintiff, Before: Nicholas Tsoucalas,
Senior Judge
v.
Court No. 14-00119
UNITED STATES,
Defendant.
OPINION
[Defendant’s motion to dismiss for lack of subject matter
jurisdiction is granted.]
Dated: /PWFNCFS
John N. Politis, Politis & Politis, of Pasadena, CA for Plaintiff.
St. Lutheran Tillman, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York,
New York, for Defendant. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Amy M. Rubin,
Assistant Director. Of counsel on the action was Beth C. Brotman,
Office of the Assistant Chief Counsel, International Trade
Litigation, United States Customs and Border Protection, of New
York, NY.
Tsoucalas, Senior Judge: This case is before the court
on Defendant’s motion to dismiss for lack of subject matter
jurisdiction. See Def.’s Mem. in Supp. of its Mot. To Dismiss,
ECF No. 9 (July 17, 2015)(“Def.’s Br.”); see also Reply Mem. in
Supp. of Def.’s Mot. To Dismiss, ECF No. 13 (Sept. 3, 2015).
Plaintiff, Design International Group, Inc. (“Design” or
Court No. 14-00119 Page 2
“Plaintiff”), opposes Defendant’s motion. See Pl.’s Mem. in Opp.
Def.’s Mot. To Dismiss, ECF No. 10 (Aug. 10, 2015)(“Pl.’s Br.”).
BACKGROUND
This action concerns two entries of pencils, Entry Nos.
BKC 0138174-9 and BKC 0138213-5, made at the Port of Los
Angeles/Long Beach. Compl. at ¶¶ 14-18. Plaintiff is the importer
of record for these entries. Id. at ¶ 1. On June 7, 2013, U.S.
Customs and Border Protection (“Customs”) liquidated both entries.
Id. at ¶ 2. On July 9, 2013, Design’s customs broker filed Protest
Nos. 2704-13-101337 and 2704-13-101339, challenging Customs’
calculation of the number of pencils included in each entry and
the resulting assessment of duties. Id. at ¶ 14. On August 15,
2013, Customs denied both protests. Id.
On October 10, 2013, Design’s counsel filed a third
protest, Protest No. 2704-13-102066. Id. at ¶ 2. This protest
also challenged Customs’ calculation of the number of pencils
covered by Entry Nos. BKC 0138174-9 and BKC 0138213-5. See id. at
¶ 25. On November 19, 2013, Customs denied Plaintiff’s protest as
untimely. Id. at ¶ 4, 5.
After the denial of Design’s October 10, 2013 protest,
Design insisted that it timely filed its protest, and that Customs
should withdraw its denial. Id. at ¶ 6. However, denial of the
Court No. 14-00119 Page 3
protest was not withdrawn. Id. at ¶ 7. Instead, Customs placed
Design on the sanction list for failing to pay the increased duties
on the subject entries. Id. at ¶ 7. Customs required Design to
file “live” entries, which delayed release and increased costs of
shipments. Id. at ¶ 8. Design informed Customs that this
situation was a mistake, and Customs responded that they would
change the status of Design’s protest from “decided” to “open” in
order to remove Design from the sanctions list. Id. at ¶ 9.
On March 10, 2014, Customs denied Design’s October 10,
2013 protest again, changing the reason for denial from “Untimely
filed” to “Rejected as non-protestable.” Id. at ¶ 10. In the
denial, Customs explained that “[w]e have no [j]urisdiction over
this [p]rotest, since a denial of a protest is not a protestable
action.” Id. at ¶ 10.
On May 16, 2014, Design filed an action in this Court
challenging the denial of Protest No. 2704-13-102066. Id. at ¶ 4.
STANDARD OF REVIEW
“Plaintiffs carry the burden of demonstrating that
jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16
CIT 420, 422, 795 F. Supp. 428, 432 (1992) (citing McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In deciding a
Rule 12(b)(1) motion to dismiss that does not challenge the factual
Court No. 14-00119 Page 4
basis for the complainant’s allegations, the court assumes “all
factual allegations to be true and draws all reasonable inferences
in plaintiff's favor.” Henke v. United States, 60 F.3d 795, 797
(Fed. Cir. 1995).
DISCUSSION
In order to invoke the Court’s jurisdiction under
§ 1581(a), a civil action must be based on the denial of a valid
protest filed in accordance with 19 U.S.C. § 1514 (2012). See
Koike Aronson, Inc. v. United States, 165 F.3d 906, 908–09 (Fed.
Cir. 1999). Customs contends that the Court lacks subject matter
jurisdiction under § 1581(a) because Design’s third protest filed
on October 10, 2013, Protest No. 2704-13-102066, was not a valid
protest. See Def.’s Br. at 3-5. In response, Plaintiff asserts
that the action was “timely commenced within 180 days of denial of
protest number 2704-13-102066 in accordance with 28 U.S.C.
§ 1581(a) and 28 U.S.C. § 2636(a).” See Pl.’s Br. at 2.
The issue in the instant action is whether Design’s
protest is valid in light of the “one entry, one protest” rule
outlined in 19 U.S.C. § 1514(c)(1)(D). See 19 U.S.C. § 1514(c)
(“Only one protest may be filed for each entry of
merchandise . . . .”). Section 1514(c)(1) generally prohibits
multiple protests from being filed for the same entry of
Court No. 14-00119 Page 5
merchandise. Accordingly, “[w]here a plaintiff has invalidly
filed a second protest, the court lacks jurisdiction to entertain
plaintiff’s claims.” Mitel, Inc. v. United States, 16 CIT 4, 9,
782 F. Supp. 1567, 1571 (1992).
Plaintiff argues that a third protest was permitted
because 19 U.S.C. § 1514(c) provides exceptions to the one protest
rule, stating that “separate protests filed by different
authorized persons with respect to any one category of merchandise
. . . that is the subject of a protest are deemed to be part of a
single protest.” Pl.’s Br. at 3 (citing 19 U.S.C. § 1514).
Specifically, Plaintiff asserts that its broker and its counsel
are “different authorized persons,” and thus, insists that Customs
violated the exceptions outlined in § 1514(c) when it failed to
consolidate the third protest filed by its counsel (Protest No.
2704-13-102066), with the two previous protests filed by its broker
(Protest Nos. 2704-13-101337 and 2704-13-101339). Id. at 3-4.
The court disagrees with Plaintiff’s assertions. The
exception articulated in 19 U.S.C. § 1514(c)(1) does not permit a
party to file an additional protest after a previous protest has
already been denied, even when one is filed by a different
authorized person: “only the first protest received by Customs for
filing may practicably be treated as valid.” Alcan Aluminum Corp.
Court No. 14-00119 Page 6
v. United States, 28 CIT 2067, 2068 n.2, 353 F. Supp. 2d 1374,
1375 n.2 (2004); see also id. (“Because 19 U.S.C. § 1514(c)(1)
precludes the filing of two protests relating to the same entries
and same category of merchandise [. . .] only the first protest
received by Customs for filing may practicably be treated as
valid.” (citing Russ Togs, Inc. v United States, 79 Cust. Ct. 119,
122 (1977)(emphasis in original))). Furthermore, allowing an
additional protest contesting an entry that was already subject to
the denial of a previous protest would “allow [a] plaintiff to
file an unending series of protests each protesting the previous
protest denial.” Wally Packaging, Inc. v. United States, 7 CIT 19,
22–23, 578 F. Supp. 1408, 1412 (1984) (“[S]ection 1514 does not
permit a party to protest the denial of a protest . . . such a
procedure would allow plaintiff to file an unending series of
protests each protesting the previous protest denial.”).
Additionally, § 1514(c)(1) provides that “[n]ew grounds in support
of objections raised by a valid protest or amendment thereto may
be presented for consideration in connection with the review of
such protest pursuant to section 1515 of this title at any time
prior to the disposition of the protest in accordance with that
section.” 19 U.S.C. § 1514(c)(1) (emphasis added).
Court No. 14-00119 Page 7
Here, Customs denied Protest Nos. 2704-13-101337 and
2704-13-101339 on August 15, 2013. Design’s October 10, 2013
protest, Protest No. 2704-13-102066, effectively contested
Customs’ denial of its first two protests. As a result, Design’s
October 10, 2013 protest is invalid. See Alcan Aluminum Corp, 28
CIT at 2068 n.2, 353 F. Supp. 2d at 1375 n.2 (citing Russ Togs,
Inc., 79 Cust. Ct. at 122 (1977)); see also Wally Packaging, Inc.,
7 CIT at 22–23, 578 F. Supp. at 1412. The court therefore lacks
jurisdiction to entertain Plaintiff’s claims. See Mitel, Inc., 16
CIT at 9, 782 F. Supp. at 1571.
CONCLUSION
For the reasons stated, Defendant’s motion to dismiss
for lack of subject matter jurisdiction is GRANTED. Judgment will
be entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: /PWFNCFS
New York, New York | 01-03-2023 | 11-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/237383/ | 225 F.2d 205
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968,International Brotherhood of Teamsters, Chauffeurs,Warehousemen and Helpers of America, AFL, and M. W. Miller,Trustee, General Drivers, Warehousemen and Helpers, Local968 Respondents.
No. 15305.
United States Court of Appeals Fifth Circuit.
Aug. 2, 1955.
Miss Rosanna A. Blake, Atty., N.L.R.B., Silver Springs, Md., Owsley Vose, Asso, Ch. Enf. Br., David P. Findling, Asso. Gen. Cnsl., Marcel Mallet-Prevost, Asst. Gen., Cnsl., N.L.R.B., Washington, D.C., Samuel M. Singer, Attorneys, N.L.R.B., Washington, D.C., for petitioner.
Chris Dixie, Houston, Tex., Mullinax & Wells, Dallas, Tex., Dixie, Ryan & Schulman, Houston, Tex., for respondents.
Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District judges.
RIVES, Circuit Judge.
1
The Board petitions for enforcement of its order issued against respondents on July 22, 1954, based on findings that respondent union and its trustee individually had violated Section 8(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A), through inducing the employees of certain neutral employers, by means of picketing certain construction projects, to strike in order to force those neutral employers to cease doing business with the Otis Massey Company, the charging party and primary employer with whom the union's dispute arose. The Board's decision and order are reported at 109 N.L.R.B. 61.
2
The material facts found by the Board1 reveal that the Otis Massey Company is a co-partnership engaged at Houston, Texas, in the distribution and installation of insulation and other building materials; that in January, 1954, it was acting as subcontractor in the installation of certain materials at St. Luke's Hospital, the University of Texas Dental Clinic and Battlestein's Service Center, which three buildings were then undergoing construction at various locations in Houston; that at the first two building locations aforementioned, Otis Massey was a subcontractor of C. Wallace Plumbing Co., which company was in turn a subcontractor of the general contractors, Tellepsen Construction Company and Manhattan Construction Company, and at the last mentioned construction site, Otis Massey was acting as subcontractor for the general contractor, O'Rourke Construction Company; that Massey employed at all three locations various craftsmen, among which were asbestos workers, carpenters and flooring men, all of which were represented in collective bargaining with Otis Massey by their particular craft unions, and none of which were represented by the respondent union.
3
It was further found that Otis Massey also operates a warehouse located several miles from each of the above construction projects, where it employs four truck drivers and warehousemen for whom the respondent union is the certified bargaining representative; that these four employees occasionally deliver building materials to the construction projects, but otherwise have no duties at the building locations; that in January, 1954, a dispute arose between Otis Massey and the respondent union concerning the terms of a bargaining contract applicable only to the four truck drivers and warehousemen, as a result of which the respondent union called a strike on January 13 and commenced picketing the warehouse; that no dispute existed between Otis Massey and respondent or any other union with respect to the various craftsmen employed by it at the three construction projects, but the union nevertheless commenced picketing the construction projects at the same time it began picketing the warehouse;2 that, except in one or two instances, none of the truck drivers or warehousemen here involved were making deliveries at the construction sites when the picketing occurred, though the various other craftsmen were present and engaged in construction duties on every occasion; that the picketing continued until February 11, 1954, when it ceased as a result of the injunction proceeding mentioned above (footnote 1, supra), and on January 27th and 29th, the various craftsmen working for the neutral contractors, as well as those employed by Otis Massey, engaged in a concerted walk-out from the dental clinic and hospital construction jobs as a result of the picketing; that on January 27 a number of electricians also left the dental clinic job but subsequently returned after the Otis Massey insulators left, and on that same day a work stoppage at the hospital construction site occurred when all craftsmen except the cement finishers quit work.
4
It is undisputed, however, that the pickets at the construction projects carried signs reading: 'General Drivers, Local 968, AFL, On Strike Against Otis Massey'; that on February 11, the day before the hearing in the aforementioned district court injunction proceeding (footnote 1, supra), a notation to 'See our pamphlet' was added to the picket signs, and the pamphlet or handbill referred to, which was distributed by the pickets, expressly advised any interested parties that the respondent union's dispute was with Otis Massey only, and not with any other employer engaged in construction work at the projects, and that the picket line should be considered as directed only toward those locations within the projects where the Otis Massey craftsmen were working.3
5
The Board concluded from the above summarized facts that the union's activity in picketing the construction projects violated Section 8(b)(4)(A) of the Act, because it was conducted, 'at least in part,' to force the secondary and neutral employers 'to cease doing business with Otis Massey, by inducing and encouraging the employees of said employers to engage in a strike.' That ultimate conclusion was predicated mainly upon findings, vigorously attacked here, that the drivers and warehousemen involved were employed 'not at the construction projects but at the Otis Massey warehouse,' so that the warehouse location was the sole 'situs of the union's dispute,' and the place where it could 'adequately publicize' its private controversy with Massey without disrupting work of the other neutral employers. In reaching its ultimate conclusion that the union's activity was secondary and unlawful, rather than primary and lawful under the Act, the Board relied strongly on the union's supposed failure to justify its picketing at the common premises as 'harboring the situs of a dispute between a union and a primary employer' under its Moore Dry Dock Co. case, 92 N.L.R.B. 547.4
6
Respondents insist the Board's findings, that the warehouse was the sole situs of the dispute and that the picketing was for an unlawful object, are not supported by that substantial evidence on the record considered as a whole here required for enforcement of its order;5 that the Board is without authority, statutory or otherwise, arbitrarily to make such findings in disregard of contrary, undisputed testimony that the construction sites were among several locations at which Otis Massey conducted its normal business activities, and that the picketing of those sites was justifiably directed solely against that company as the primary employer; and, finally, that the Board's order, under the facts proven, violates respondents' right of free speech, contrary to the First Amendment and is especially unjustified insofar as it purports to hold the individual respondent, Trustee Miller, personally responsible for the alleged 8(b)(4)(A) violation.
7
Section 8(b)(4)(A) of the Act, insofar as here material, makes it an unfair labor practice for a labor union or its agents to induce or encourage a strike by neutral employees 'where an object thereof' is to force or require any neutral employer 'to cease doing business with any other person'. That section was enacted to outlaw secondary boycotts, and has been construed as proscribing secondary, concerted activity at the common premises of neutral employers and an employer with whom a union has a labor dispute,6 though it does not prohibit a union from taking appropriate concerted action against a primary employer whose employees it represents for collective bargaining purposes.7 As the Board recognized, the crucial problem in these cases, where both the primary and neutral employers occupy a common work site, is in distinguishing between 'permissible primary action and proscribed secondary action.' See N.L.R.B. v. Local Union No. 55, etc., 10 Cir., 218 F.2d 226, 231. In a commendable effort to balance 'the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own',8 the Board, in its Moore Dry Dock Company case, supra, has devised certain evidentiary tests to aid in determining the ultimate issue of whether common-situs picketing is primary and lawful or secondary and unlawful.9 Cf. Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 741, 69 S. Ct. 1210, 93 L. Ed. 1659. And while four circuits have approved the criteria evolved by the Board in its Moore Dry Dock case, supra,10 we think such approval was necessarily based upon substantial evidence that the unlawful objective denounced by the statute actually existed, rather than upon the inferentially suggested theory that this ultimate and controlling statutory inquiry may be effectually supplanted merely by Board findings that the real 'situs' of a labor dispute exists at a location other than that determined by the conduct of the parties, at which place alone it may be 'adequately' publicized with impunity under the Act, and thereby inferring from such findings, as here, that the unlawful objective exists.11 Indeed, such a theory would, we think, elevate the Board formulated 'criteria' by judicial fiat to a vantage point from which it could, in effect, circumvent the statute, for in this type instance it would substitute Board inferences as to the lawfulness or unlawfulness of an objective, based purely on its own judgment as to the propriety and adequacy of the means employed in a labor dispute, for the sole statutory test of unlawfulness of the end or objective sought, contrary to the Supreme Court's pronouncements that it is "the objective of the unions' secondary activities * * * and not the quality of the means employed to accomplish that objective, which was the dominant factor motivating Congress in enacting that provision." International Brotherhood of Electrical Workers, Local 501, v. N.L.R.B., 341 U.S. 694, 704, 71 S. Ct. 954, 959, 95 L. Ed. 1299; N.L.R.B. v. International Rice Milling Co., supra, 341 U.S. at page 672, 71 S.Ct. at page 964. While our view does not compel rejection of all of the Moore Dry Dock criteria, as such, when properly applied, it does expressly limit the applicability of that decision as controlling under the facts of this case, for we conclude that no warrant exists either in the language of the statute or the authorities cited which would justify the adoption and approval of its 'situs' theory to an extent inconsistent with other provisions of the Act,12 or for empowering the Board, under guise of fact-finding, to fix the 'situs' of a dispute at only one of a primary employer's numerous business activities,13 thereby isolating other employees of that same primary employer from exercising their statutory right under Section 7, 29 U.S.C.A. § 157, to engage in mutual aid and protection and make common cause with their co-workers. See Carter Carburetor Corp. v. N.L.R.B., 8 Cir., 140 F.2d 714, 718; N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 130 F.2d 503, 505; N.L.R.B. v. J.I. Case Co., etc., 8 Cir., 198 F.2d 919, 922. Unless the truck drivers and warehousemen, only four in number, could persuade the other employees of Otis Massey to decline to do their employer's installation work until the strike was settled, it is obvious that the strike was foredoomed to failure from its inception, for picketing only at the warehouse 'situs' where such other employees almost never came was but a useless and futile gesture.
8
Irrespective of the Board formulated 'situs' theory, however, we think such peaceful picketing upon common premises, directed solely against the primary employer with whom a labor dispute exists, is still lawful under the Act, and that any adverse effect upon secondary, neutral employers must necessarily be viewed as incidental to the lawful exercise of that statutory right. N.L.R.B. v. International Rice Milling Co., supra; cf. N.L.R.B. v. Chauffeurs, Teamsters, etc., supra; N.L.R.B. v. Local Union No. 55, supra. That the picketing here enjoined was aimed only at the primary employer, Otis Massey, and wholly without the proscribed secondary object, could hardly be disputed under this record. It is significantly devoid of any probative proof in support of the allegations in the complaint14 that respondent by 'picketing, * * * orders, instructions, directions, appeals and other means' induced and encouraged employees of the neutral employers to strike with unlawful secondary object, except for the peaceful picketing heretofore mentioned, and even under the Board's own evidence that concerted activity was solely for the lawful object of picketing only Otis Massey 'right at the sites of the dispute and as close to the actual operations of Otis Massey * * * as possible,' as evidenced by the letter and notice heretofore quoted, footnotes (2) and (3), supra. In fact, the Superintendent of the Texas Dental Clinic construction job, Louis Gamache, clearly showed his understanding from the Union business agent, Word, that the picketing was aimed solely at the Otis Massey craftsmen, as revealed by his testimony herewith quoted in the margin.15 The work stoppages by the employees of neutral employers here complained of occurred only on January 27th and 29th, whereupon the union admittedly took the precaution of adding the 'See our pamphlet' notation to its picket signs, which pamphlet expressly limited the picketing to Massey, and after which only the Otis Massey employees honored the picket lines. Furthermore, it is practically without dispute that the pickets appeared after the men had begun work, and located themselves as close as possible to the place where the Otis Massey craftsmen were engaged in the normal business of that company. See Moore Dry Dock Co. case, supra. Under such circumstances, we conclude that the Board's order, based on the finding that such activity had an unlawful secondary object proscribed by the statute, is unenforceable as unsupported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456. While the drawing of appropriate inferences as to the unlawfulness of objective and motive in a labor dispute is primarily the province of the Board, there still must be some substantial basis for inferring a wrongful rather than a legitimate motive, which we think does not exist here. N.L.R.B. v. Houston Chronicle Pub. Co., 5 Cir., 211 F.2d 848, 854.
9
Enforcement denied.
1
The parties by stipulation, with Board approval, waived the right to a hearing before a trial examiner, and agreed for the Board to render its decision based upon certain stipulated facts, the pleadings, and the testimony and exhibits in an injunction proceeding which had previously been brought on February 8, 1954, by the Regional Director under Sec. 10(l) of the Act, 29 U.S.C.A. § 160(l), in the United States District Court at Houston, Texas. That proceeding resulted in an injunction barring respondent union from engaging in the picketing activities hereinafter described pending final determination by the Board of its legality. See Elliott v. General Drivers, etc., D.C., 123 F. Supp. 125, 130
2
Respondent union had previously requested permission from the general contractors at the hospital and dental clinic jobs to picket the premises nearest the location where the Otis Massey workers were stationed, but this permission was refused on the theory that the contractors did not own the property and were, therefore, in no position to grant the privilege. The union's letter requesting such permission at the dental clinic construction site (Respondent's Exhibit 1) reads as follows:
'Gentlemen:
'Otis Massey Company, Ltd., has been engaged in its normal business at the Texas Dental College job, for which you are general contractor, for some period of time and is presently engaged in doing some insulation work.
'The area where Otis Massey Company Ltd. is now engaged in this work is within premises controlled by your company, and it is our desire to picket right at the sites of the dispute and as close to the actual operations of Otis Massey, Ltd. as possible.
'As is clearly stated on our picket signs, the dispute is with Otis Massey Company, Ltd. and with no one else.
'We, therefore, request that you permit our pickets to come within the premises generally controlled by you and picket directly adjacent to the place where Otis Massey Company, Ltd. employees are now working.
'Yours truly, 'R. G. Miller, Secy-Treas. 'Local Union No. 968'
3
Specifically, this pamphlet or handbill (Respondent's Exhibit 2) reads as follows:
'Notice
'General Drivers Local Union 968, is on strike against Otis Massey Company, Ltd.
'The Union asked permission to place pickets within these premises and adjacent to the place where Massey employees are now working, but we have not been permitted to do so. If we are permitted to do so, we will move these pickets and place them right at the actual operations of Otis Massey within these premises. In the meantime, please consider this picket line as if it were only around the limited area where Otis Massey is engaged in these premises.
'Our dispute is with Otis Massey Company, Ltd. and not with any other employer working within this building site or area.'
4
The Board, in its cease and desist order, enjoined both the union and the individual respondent, its trustee M. W. Miller, from further unlawful secondary activity of the nature found
5
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456
6
N.L.R.B. v. Denver Building & Const. Trades Council, 341 U.S. 675, 686, 71 S. Ct. 943, 95 L. Ed. 1284
7
N.L.R.B. v. International Rice Milling Co., Inc., 341 U.S. 665, 671, 71 S. Ct. 961, 95 L. Ed. 1277
8
N.L.R.B.- v. Denver Building & Const. Trades Council, supra, note 6, 341 U.S. at page 692, 71 S.Ct. at page 953
9
In that decision, the Board held that common-situs picketing, in order to qualify as primary and lawful, must meet all four of the following conditions:
'(a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises;
'(b) at the time of the picketing the primary employer is engaged in its normal business at the situs;
'(c) the picketing is limited to places reasonably close to the location of the situs; and
'(d) the picketing discloses clearly that the dispute is with the primary employer.' 92 N.L.R.B. 547, 549.
10
N.L.R.B. v. Service Trade Chauffeurs, etc., 2 Cir., 191 F.2d 65, 68; Piezonki v. N.L.R.B., 4 Cir., 219 F.2d 879, 883; N.L.R.B. v. Chauffeurs, Teamsters, etc., 7 Cir., 212 F.2d 216, 219; N.L.R.B. v. Local Union No. 55, 10 Cir., 218 F.2d 226, 231
11
That this statement fairly summarizes the Board's position is evidenced by the following argument taken from its brief:
'Since, as we have seen, the warehouse and not the construction projects was the situs of the dispute and since the Union could adequately publicize its dispute by picketing the warehouse, the Board properly inferred that at least one of the objects of the picketing at the projects was to force the various neutral contractors to cease doing business with Otis Massey by inducing or encouraging their employees to go on strike.' (Emphasis ours.)
12
A recently enacted Section 13 of the Act provides that:
'Nothing in this (Act), except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' 29 U.S.C.A. § 163.
Moreover, in its Rice Milling Co. case, supra, the Supreme Court construed Section 13 as follows:
'By § 13, Congress has made it clear that § 8(b)(4), and all other parts of the Act which otherwise might be read so as to interfere with, impede or diminish the union's traditional right to strike, may be so read only if such interference, impediment or diminution is 'specifically provided for' in the Act. No such specific provision in § 8(b)(4) reaches the incident here. The material legislative history supports this view.' 341 U.S. 665, at page 673, 71 S. Ct. 961, at page 965.
13
If this factual issue be viewed as controlling, it should be noted that one of the Otis Massey business partners, J. V. Castle, conceded in his testimony that 'probably seventy per cent or better' of the Company's business activities consisted of 'job site work', rather than warehouse operations, and the record shows that the truck driver-warehousemen, during the period here material, did make a number of deliveries to the Otis Massey job sites, as evidenced by the Government's concession as follows:
'The Court: You are simply trying to prove from time to time during the course of this work these truck drivers and warehousemen make deliveries out there for the Massey Company? I am sure the Government doesn't dispute that.
'Mr. Henderson: No, sir. We will certainly concede that.'
14
Of some further significance is the fact that this complaint was brought at the instance of the primary employer and charging party, Otis Massey, rather than on behalf of any adversely affected secondary, and neutral employers
15
'Q. What was your conversation with Mr. Word? How did it start? A. I went over and asked Mr. Word if the men would be involved on account of the picket line. He said no, it was strictly against Otis Massey and wouldn't involve the men
'Q. When you say 'the men', what do you mean? A. All workmen on the job.
'Q. Did you ask him anything else? A. I said if the insulators went home and quit the job, would he quit picketing the job, and he said he would.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3362932/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
This matter comes before the court on defendant, ITT Hartford Group's, Motion to Strike counts one through five of the CT Page 658 plaintiff's substituted complaint and the defendant, Health Direct, Inc.'s Motion to strike counts six through ten of the substituted complaint. Both defendants assert that plaintiff's claims are barred by the exclusivity provision of the Workers' Compensation Act.
On September 14, 1998, June Spencer (hereinafter the "plaintiff") filed a substituted complaint (#129) against Health Direct, Inc., and ITT Hartford Group, Inc. (hereinafter the "defendants") alleging damages for the wrongful delay and discontinuation of payment of workers' compensation benefits.
According to the allegations in her substituted complaint, on August 17, 1993, the plaintiff suffered injuries arising out of and in the course of her employment. The plaintiff further alleges: (1) the defendant ITT Hartford Group, Inc., provided workers' compensation insurance for the plaintiff's employer, and the defendant Health Direct, Inc., managed ITT Hartford Group's policies; (2) the plaintiff filed a claim for workers' compensation, which was not contested in a timely manner. The plaintiff also states that, in accordance with the Workers' Compensation Act (hereinafter the "WCA"), the plaintiff was entitled to workers' compensation benefits under her employer's policy with the defendants, and the defendants were obligated to pay her benefits. Further, the Worker's Compensation Commission (hereinafter the "commissioner") accepted the compensability of the plaintiff's claim and ordered the defendants to pay compensation benefits to the plaintiff and on April 10, 1996, the commissioner approved a voluntary agreement entered into between the parties which accepted the compensability of the plaintiff's claim and the payment of benefits in accordance with General Statutes § 31-296. The plaintiff continues that the defendants have, since the date of the plaintiff's injury: (i) repeatedly refused and delayed authorization for the plaintiff's medical treatment; (ii) authorized consultations and treatment for the plaintiff with unauthorized contract physicians; and (iii) failed to reimburse the plaintiff's costs for treatment with non-group contract physicians.
The plaintiff further claims to have suffered physical, emotional and economic damages, and asserts five counts as to each defendant in her substituted complaint for violations of the Connecticut Unfair Trade Practices Act (CUTPA), the Connecticut Unfair Insurance Practices Act (CUIPA), recklessly indifferent or intentional and wanton behavior as applied to CUTPA, and CT Page 659 intentional and negligent infliction of emotional distress.
On October 20 and 21, 1998, the defendants each filed a motion to strike all five counts asserted against them respectively, and adopted each other's arguments. The plaintiff filed an objection to the defendants' motions on November 10, 1998. On November 13, 1998, the defendant ITT Hartford Group, Inc., filed a reply memorandum. The court heard oral argument at short calendar on November 16, 1998.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted . . ." (Citation omitted; internal quotation marks omitted.) Peter-Michael, Inc.v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "A motion to strike admits all facts well pleaded." Parsons v.United Technologies Corp. , 243 Conn. 66, 68, 700 A.2d 655 (1997). "[The motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachosv. CBS Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); see alsoNovametrix Medical Systems, Inc. v. BOC Group, Inc.,224 Conn. 210, 215, 618 A.2d 25 (1992).
"The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. MiddlesexMutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Pamela B. v. Ment,244 Conn. 296, 308, 709 A.2d 1089 (1998). "It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them." (Internal quotation marks omitted.) Zeller v. Mark, 14 Conn. App. 651, 654,542 A.2d 752 (1988).
As to all counts in the substituted complaint, the defendants assert three grounds for granting the motion to strike. The first ground is that the WCA provides the plaintiff's exclusive remedy for her claims. The second ground is that the plaintiff failed to exhaust all available administrative remedies. The third ground asserts that the plaintiff failed to allege that the defendants CT Page 660 failed to pay for treatment or medications after the commissioner ordered that they were obligated to do so. As alternative grounds, the defendants argue that the plaintiff's allegations for each count fail to state a claim upon which relief can be granted. Since the first ground is dispositive of all other grounds, the court concludes that it need only address whether the plaintiff's claims are barred by the exclusivity provision of the WCA.
The defendants argue that claims against workers' compensation carriers, and their agents, for their alleged unreasonable delay and discontinuation of payment of compensation benefits are exclusively governed by provisions of the WCA. That is, the plaintiff's claims for consequential damages resulting from the defendants' alleged intentional and wrongful conduct in the payment of compensation benefits, the defendants argue, are exclusively compensable through the WCA. The defendants correctly point out that the appellate courts have not spoken on this issue, but note that there is a split of authority among the superior courts.
Recognizing a split among the superior courts, the plaintiff argues that the majority of the superior courts have recognized and allowed claims against workers' compensation carriers for their intentional and wrongful delay in handling claims. The plaintiff also points to the plain statutory language of §31-284(a), which states that only employers are immune from personal injury lawsuits, not insurers for their mishandling of the claim.1
Most courts that have addressed this issue have recognized a cause of action against a workers' compensation carrier for their intentional and wrongful mishandling of a claim for compensation benefits which results in consequential damages to the plaintiff. See Hornyak v. Northbrook Property, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 133334 (June 30, 1997, Gill, J.) (19 CONN. L. RPTR. 655); Rotz v. Middlesex Mut.Assurance Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 307488 (January 27, 1995) (Hauser, J.) (13 CONN. L. RPTR. 324); Sansone v. Esis Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 327409 (January 4, 1993, Maiocco, J.) (8 CONN. L. RPTR. 171,8 CSCR 248);Viviani v. Powell, Superior Court, judicial district of New Haven at New Haven, Docket No. 384941 (July 15, 1996, Freedman, J.) (17 CONN. L. RPTR. 372); Massa v. American Mut. Ins. Co., Superior Court, CT Page 661 judicial district of Hartford-New Britain at Hartford, Docket No. 308820 (July 1, 1986) (Byrne, J.) (12 C.L.T. No. 32); Us v. ITTHartford Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 318814 (June 14, 1995) (Maiocco, J.) (14 CONN. L. RPTR. 333); Carpentino v. Transport Ins. Co., 609 F. Sup. 556,562 (D. Conn. 1985); Hickman v. U.S. Fire Ins. Co., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 427557 (October 20, 1987) (Spada, J.) (13 C.L.T. 49);Maroon v. Aetna Casualty Surety, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 310291 (October 19, 1987) (Satter, J.) (13 C.L.T. 49). These courts reason that the plain language of § 31-284(a), the "exclusivity" provision, applies only to "employers," and never mentions the word "insurer." See, e.g., Sansone v. Esis, Inc., supra, 8 CONN. L. RPTR. 171, 8 Conn. Super. Ct. 249. In addition, these courts note that claims against the compensation carrier for their alleged mishandling of the claim do not arise out of and in the course of employment. That is, the plaintiff's injuries from the carrier's alleged conduct did not occur during a period of employment, at a place of employment, or while the plaintiff was engaged in her duties of employment. See, e.g., Viviani v. Powell, supra, 17 CONN. L. RPTR. 372; Us v. ITT Hartford, supra, 14 CONN. L. RPTR. 333; Rotzv. Middlesex Mut. Assurance Co., supra, 13 CONN. L. RPTR. 324. Moreover, these courts note that § 31-300, the provision which assesses a civil penalty and an award of interest and attorneys fees against an employer or its insurer for any unreasonable delay in the handling or payment of a claim, is simply an inadequate remedy.2 See, e.g., Massa v. Amer. Mut.Ins. Co. of Boston, supra, 12 C.L.T. No. 32.
Several other trial courts that have addressed this issue, however, refuse to recognize such a cause of action. See Brosnanv. Sacred Heart University, Superior Court, judicial district of Fairfield at Fairfield, Docket No. 333544 (October 21, 1997) (Levin, J.); Stabile v. Southern Conn. Hospital Systems, Superior Court, judicial district of Fairfield and Fairfield, Docket No. 326120 (October 31, 1996) (Levin, J.) (18 CONN. L. RPTR. 157);Ciarleglio v. Fireman's Fund Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 276028 (May 4, 1992) (McGrath, J.). The basis for the opinion of these courts is perhaps best expressed through Judge Levin's detailed and well-reasoned opinion in Brosnan v. Sacred Heart University, supra: "Where the liability and the remedy are created by statute, especially under the comprehensive nature of the Workers' Compensation Act, the remedy provided is exclusive of all CT Page 662 others." Asserting that the remedies available to a plaintiff for an insurer's unreasonable or wrongful handling a claim are not necessarily inadequate under §§ 31-295(c), 31-296, 31-300 and31-303, Judge Levin ruled that the amount of remedies and penalties available to a plaintiff under the WCA is a legislative, not a judicial, decision.
This court feels compelled to adopt Judge Levin's reasoning in Brosnan, supra, because it comports with the legislative intent of the WCA. Section 31-300 of the WCA provides the plaintiff with an exclusive and adequate remedy for the alleged wrongs committed by the defendants. Indeed, "[i]t would be anomalous for the legislature to have vested such discretion in the commissioner [in determining whether insurer unduly and unreasonably delayed compensation payments under § 31-300
while, at the same time, intending that a judge or jury could reach a contrary, inconsistent determination in an action in tort." Brosnan, supra, Superior Court, Docket No. 333544.
Accordingly, this court concludes that the plaintiff, in the present case, has failed to state a cause of action because her claims are barred by the exclusivity provision of the WCA.
The defendants' motion to strike is granted.
Mihalakos, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2517172/ | 595 F. Supp. 2d 1111 (2009)
David HERNANDEZ, Petitioner,
v.
Joseph McGRATH, Respondent.
No. CIV S-04-0280-GEB-GGH-P.
United States District Court, E.D. California.
January 21, 2009.
*1120 Matthew Dale Alger, Alger and Alger, Clovis, CA, for Petitioner.
Daniel B. Bernstein, Attorney General's Office for the State of California, Sacramento, CA, for Respondent.
ORDER
GARLAND E. BURRELL, JR., District Judge.
Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On November 20, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner and respondent have filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed November 20, 2008, are adopted in full; and
2. Petitioner's application for a writ of habeas corpus is granted in part on the Confrontation Clause issue. The case shall be sent back to state court for resentencing only on attempted murder without a finding of premeditation.
FINDINGS & RECOMMENDATIONS
GREGORY G. HOLLOWS, United States Magistrate Judge.
I. Introduction
Petitioner is a state prisoner represented by counsel, proceeding on an amended petition for writ of habeas corpus. Petitioner challenges his 2000 conviction for four counts of assault with a semi-automatic firearm (countl, 2, 7 & 8 Cal.Penal Code § 245(b)), shooting at an occupied motor vehicle (count 3, Cal.Penal Code § 246), attempted murder (count 4, Cal.Penal Code § 664 and § 187(a)), shooting a firearm from a motor vehicle (count 5, Cal.Penal Code § 12034) and street terrorism (count 6, Cal.Penal Code § 186.22(a)). Petitioner is serving a sentence of life in prison plus a consecutive term of 25 years to life and a determinate consecutive term of 12 years, eight months.
Petitioner raises the following claims in his challenge: 1) discovery violations; 2) improper hearsay testimony of a gang expert; 3) preclusion of a dying declaration; 4) severe defense discovery sanctions; 5) ineffective assistance of counsel; 6) Brady violations; 7) replacement of a juror without proper instructions; 8) improper jury *1121 instructions; 9) prosecution misconduct; 10) improper sentencing. Amended Petition (AP) at 8-12.
After carefully considering the record, the court recommends that the petition be granted in part.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), citing Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of that law. Id. at 405, 117 S. Ct. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law.... [A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or *1122 rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003).
III. Background
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
Around 4:00 or 5:00 p.m. on October 12, 1999, a man on a bicycle approached a car stopped at the intersection of Myrtle and E Streets in Stockton. The bicyclist stared menacingly at the car's passenger, Babaline Lopez. When the driver of the car, Richie Chavez, turned to look at him, the bicyclist raised three fingers and said, "Sur Trece." Chavez replied, "It's all about Norteno." The bicyclist then pulled out a gun and fired at least five shots in the direction of the car, while Chavez drove in reverse.
The verbal exchange between the bicyclist and Chavez contained references to two Hispanic gangs in Stocktonthe Nortenos, who are from Northern California and identify themselves with the number 14, and the Surenos, who are from Southern California and use the number 13. The Nortenos and the Surenos are bitter rivals who have killed or assaulted opposing gang members numerous times.
In a photo lineup and at trial, Lopez identified defendant as the bicyclist who shot at Chavez and Lopez. Chavez denied that defendant was the perpetrator, but testified he saw the bicyclist riding in a pickup truck later on the day of the shooting. When Chavez was shown a photo lineup prior to trial, he refused to look at it because he did not want to be labeled a "snitch," especially if he ended up in prison. At the time of trial, Chavez was in prison.
After escaping from defendant, Chavez dropped Lopez off nearby at his house and went to see his friend, Samuel Vasquez. Some time later, Lopez saw Chavez drive past the house with Vasquez and other friends in his car. She also saw a pickup truck drive by with defendant in the passenger seat. Lopez thought that the occupants of the pickup truck observed Chavez's car and that a chase may have ensued. About 20 minutes later, while Lopez was returning from a trip to the store, she saw defendant in the passenger seat of a Suburban driven by the same man who had been driving the pickup truck. One of the men in the Suburban called out to Lopez, "Hey, what's up, girl?" Subsequently, Lopez saw the same two men again in the pickup truck. Thereafter, she heard a series of about five gunshots.
At approximately 7:00 p.m. that evening, Vasquez, his sister, Chonnel, and a friend, Lourdes Vizcarra, were walking to a grocery store at the corner of Washington and E Streets in Stockton, which was about two blocks from where Chavez and Lopez were assaulted two hours earlier. The pickup truck, in which Lopez had seen defendant riding as a passenger, drove up to the pedestrians, and the passenger called out, "What's up, ese?" Vasquez replied, "I'm not a[n] ese. I'm a[n] ene." The question, *1123 "what's up, ese?" is a friendly greeting when spoken by one Sureno to another, but when directed at a Norteno, the question can be an insult or challenge.
After Vasquez responded, the passenger pulled out a gun and fired several shots at him, one of which struck him in the back. Vasquez collapsed, but the gunman continued firing while Vasquez rolled around on the ground in an attempt to avoid being hit again. Vasquez was later taken to the hospital where he was treated for a gunshot wound.
The pickup truck involved in the driveby shooting had been stolen from a parking lot after 5:00 p.m. but before 6:00 p.m. on the day of the shootings. On November 1, 1999, Ramiro Montanez, pled guilty to a charge of receiving stolen property with respect to the pickup truck. When defendant was arrested six days later, he was seated in the front passenger seat of a blue Suburban driven by Montanez.
The stolen pickup truck was recovered on the date of the shootings. Defendant's right palm print was found on the vertical frame behind the driver's door of the pickup truck, while part of his left palm print and his left thumbprint were on the driver's-side exterior mirror. Six other fingerprints were lifted from the pickup truck, but they did not match defendant's fingerprints.
The police recovered five bullet casings near the intersection of Myrtle and E Streets, where Chavez and Lopez were fired upon, and found another six casings near the intersection of Washington and E Streets, where Vasquez was shot. All eleven casings were Winchester .380 caliber shells. A ballistics expert opined that all six of the cartridges recovered near Washington Street, and at least one of the five cartridges found near Myrtle Street, were fired from the same semiautomatic gun. The other four cartridges were probably fired from the same gun but the witness could not say so "to a scientific certainty." Initially, Chonnel did not identify defendant as the gunman in a photo lineup shortly after the shooting. But she identified him at the preliminary hearing and at trial, and explained that she had recognized him in the photo lineup but did not point him out because she feared retaliation. She also testified that she had seen defendant on a bicycle earlier on the day of the shooting.
Vizcarra "almost right away" selected defendant from a photo lineup and stated she was "100 percent sure" he was the shooter. And at the preliminary hearing, she identified defendant as the gunman. At trial, however, she recanted her prior identifications of defendant. When asked to scan the courtroom to see whether she recognized the gunman, Vizcarra initially refused to even look at defendant. After being told that she would not be allowed to leave until she looked at defendant, Vizcarra finally did so. When asked whether he was the person who shot Vasquez, she replied, "Doesn't look like him." Vizcarra then claimed that "everybody" in court, including the judge, had pressured her into identifying defendant during the preliminary hearing.
Vasquez initially gave police a detailed description of the gunman and stated that he had had run-ins with the gunman on other occasions. When Vasquez was shown a photo lineup that included a picture of defendant, he told police he recognized the gunman but would not point him out because "[h]e was going to take care of it himself." In another police interview a few weeks later, Vasquez identified defendant as the man who shot him. At trial, Vasquez claimed that he could not recall having provided police details about the gunman or the *1124 shooting incident, or having identified defendant. Vasquez was in prison at the time of trial, and he admitted that it was "bad to be a snitch in prison."
Detective Nicholas Garcia, a gang expert for the Stockton Police Department, testified defendant is a documented member of the Vickystown gang, which is a Sureno gang in Stockton. Garcia's testimony was supported by another police officer who testified defendant told him in January 1999 that defendant had been a member of the Vickystown gang for eight years. A San Joaquin County Sheriffs official stated that defendant said he was a member of the Vickystown gang when he was booked into jail. In addition, defendant has a tattoo of three dots on the fingers on his left hand, another sign of membership in a Sureno gang.
According to Garcia, Chavez and Vasquez are documented members of a Norteno gang, while Montanez, who pled guilty to possessing the stolen pickup truck, is a Vickystown gang member. Based on the circumstances of the crimes and the fact the male victims and defendant were in rival gangs, Garcia opined that the shootings were gangrelated. He also believed that the shooting of Vasquez was in retaliation for the unsolved murder of a Vickystown gang member, who was nicknamed "Toaster." Garcia had information from a Vickystown gang member that Vasquez had shot at defendant a few weeks before the present shootings, and that Vasquez told defendant he was going to shoot him "like he killed Toaster."
Garcia testified that gang members will retaliate against someone who has victimized them, but they are reluctant to report the matter to the police or cooperate with a police investigation for fear of being labeled a "snitch." Being viewed as a "snitch" can result in physical harm. Garcia also stated that it was common for gang members to attempt to intimidate witnesses testifying in trials involving charges against fellow gang members.
Defense
Defendant presented an alibi defense, claiming that he was-at a birthday party at his girlfriend's house most of the evening of October 12, 1999.
Defendant's girlfriend, Claudia Manriquez, testified that defendant arrived at her house with his son at around 9:30 or 10:00 a.m. He remained there until around 5:00 or 5:30 p.m., when they left to go get a cake for Claudia's sister, Yasenia, who was celebrating her sixteenth birthday. Claudia recalled the time because they were leaving as her father returned home from work, and he usually arrived home around 5:30 p.m. After they returned with the cake, defendant left briefly to take his son home around 10:00 p.m., and then came back to the house.
On cross-examination, Claudia stated that, before entering the store to get the cake, defendant walked over and talked to Montanez, who was sitting in a large truck in the store's parking lot. When asked if she saw defendant touch the truck, she replied she could not remember, but defendant "probably could have leaned on it ... he probably could have touched it." When Claudia was shown a copy of her employment records showing that she worked on October 12, she insisted the records were wrong. She claimed to be on a leave of absence during that period of time even though her employment records showed she had worked the day of the shooting and the day before.
Claudia's cousin, Nora Galaviz, testified that she was at the house during Yasenia's birthday party and that she went with Claudia and defendant to get the *1125 cake around 5:00 or 6:00 p.m. Before defendant went into the store, she observed him talking to Montanez in a truck "for a few seconds."
Yasenia Manriquez testified that defendant and Claudia returned with the birthday cake around 5:30 p.m., and defendant was still at the house when Yasenia left around 8:00 or 8:30 p.m. Yasenia's brother, Victor Manriquez, testified that defendant was at the house at 2:00 p.m. on October 12, when Victor came home during a work break. Victor admitted having belonged to a Sureno gang, but denied current membership. Rachel Asuncion, who was Victor's girlfriend at the time, stated that defendant left to get the cake around 5:00 or 5:30 p.m. and was gone for about 20 to 30 minutes.
Defendant testified that he arrived at his girlfriend's house with his son on the morning of October 12, and he went with Claudia and Nora to get a cake for Claudia's sister. When they arrived at the store, defendant saw Montanez in a pickup truck with some other people, and he stopped to talk to him for about five minutes. Defendant remembered touching the exterior of the pickup truck around the driver's door. But he could not recall touching the driver's mirror. When the prosecutor pointed out that defendant's prints were on the mirror in a position indicating that he had been sitting in the driver's seat and adjusted the mirror, defendant stated he may have leaned on the mirror.
Defendant asserted he did not own or have access to a bicycle, and he claimed he never had a fight with Vasquez. Acknowledging that "Toaster" was a friend of his girlfriend's, defendant admitted going to Toaster's funeral but denied having heard that Vasquez shot Toaster or that Vasquez had threatened to kill defendant. Defendant denied shooting at Chavez, Lopez, Vasquez, Chonnel, or Vizcarra.
California Court of Appeal Opinion (Opinion) at 2-9. See also 2002 WL 1904408.
IV. Argument & Analysis
A. Claim 1Discovery Violation
Petitioner contends that the prosecution's delay in providing contact information for a witness with potentially exculpatory evidence, who was then unavailable at trial, violated petitioner's Fifth, Sixth and Fourteenth Amendment rights to a fair trial. Petitioner's State Appellate Brief at 13.
Legal Standard
As is well known, the due process clause of the Fourteenth Amendment to the United States Constitution creates a duty in the prosecution to disclose certain evidence to a defendant. See United States v. Bagley, 473 U.S. 667, 674-677, 105 S. Ct. 3375, 3379-3381, 87 L. Ed. 2d 481 (1985). The evidence, however, must be both "favorable" to the defendant and "`material'" to either guilt or penalty. Id. at 674, 105 S. Ct. at 3379. Favorable evidence is evidence that the defense could use either to impeach the state's witnesses or to exculpate the accused. Id. at 676, 105 S. Ct. at 3380. "Bagley held that ... favorable evidence is material, and constitutional error results from its suppression..., `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles v. Whitley, 514 U.S. 419, 433-134, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). A "reasonable probability" is one sufficient to "undermine[ ] confidence in the outcome." Bagley, 473 U.S. at 678, 105 S. Ct. at 3381.
Following the shootings, Detective John Reyes interviewed fourteen year-old Edgar H., regarding what he observed. Edgar *1126 stated that he was in a car with family members when he observed victim Richie Chavez standing on the street speaking to someone in another vehicle. Chavez approached Edgar's car and said that someone had been shooting at him earlier and then Chavez pointed towards a truck and indicated that is whom shot at him. Reporter's Transcript (RT) at 634. Edgar stated that he observed the truck and got a good look at the two people in the truck and could identify them. RT at 635-636. Edgar was able to identify the truck and after observing a photo array identified Ramiro Montanez as the driver, but did not pick petitioner's photo from the array. RT at 635. Detective Reyes prepared a report with Edgar's statement but did not place Edgar's contact information in the report. Petitioner's counsel stated that he attempted to get Edgar's contact information starting in December 1999.
Detective Reyes attempted to serve Edgar with a subpoena in May 2000 but learned that Edgar and his mother had moved to Mexico. RT at 81, 93. While Edgar's mother had mentioned moving to Mexico, she provided no date and did not say a move was certain. RT at 93-94. Detective Reyes was unaware they had moved. Id. On May 25, 2000, the trial court ordered the prosecution to provide petitioner with Edgar's contact information and the prosecution complied after Detective Reyes learned Edgar's new phone number. Clerk's Transcript (CT) at 213. A defense investigator contacted Edgar several times and Edgar stated he would not return to testify. Id.
Petitioner argued to the trial court that Edgar's testimony was exculpatory and the delay providing Edgar's contact information allowed Edgar to leave the country and prevent him from testifying at trial. The trial court held that Edgar's statement was not exculpatory and that Detective Reyes withheld the contact information in good faith.[1] RT at 128. The court also stated that Detective Reyes did not have specific knowledge that Edgar was moving to Mexico and the move was not caused or assisted by the prosecution. Id. The trial court held there was no violation of petitioner's constitutional rights, but the prosecution violated the spirit of the discovery laws. RT at 131-132. As a sanction, the trial court allowed Edgar's statements to Detective Reyes to be admitted through the detective's trial testimony.[2] RT at 133-134.
The Court of Appeal upheld the trial court's rulings and found no violation of petitioner's constitutional rights. Petitioner now seeks habeas relief for alleged violations of his due process rights due to the prosecutions failure to provide the witness' contact information in a timely manner.
Petitioner has failed to show the prosecution's failure to provide Edgar's contact information deprived petitioner of favorable or material evidence as outlined in Bagley. Petitioner was provided with Edgar's contact information four months prior to the start of trial and in that time petitioner's investigator contacted and spoke with. Edgar on multiple occasions. Yet, petitioner has provided no evidence on how Edgar's testimony would have been any better than his statements that Detective Reyes testified to. The trial court and Court of Appeal correctly noted that Edgar's testimony was not exculpatory. Edgar was not present at either of the shootings *1127 and could only testify that he did not see the petitioner in the car following the Chavez shooting.[3]
Petitioner has also failed to show how knowledge of Edgar's location any earlier would have enabled petitioner to insure Edgar's appearance. Petitioner maintains that he could have served a subpoena on the witness, yet there is no showing that this would have prevented Edgar's family from moving him to Mexico. Petitioner merely speculates that Edgar's testimony would have aided his defense.
Petitioner's speculation falls short in demonstrating that this testimony would have undermined confidence in the verdict. Kyles, 514 U.S. 419, 433-134, 115 S. Ct. 1555. Nor has petitioner shown that the evidence was either favorable or material. Bagley, at 672, 105 S. Ct. at 3379. Thus, petitioner's claim should be denied.
B. Claim 2Erroneous Admission of Hearsay Testimony
Petitioner correctly contends that his right to confront adverse witnesses under the Sixth Amendment was violated when the trial court admitted testimony from the prosecution's expert that relied on hearsay from a gang member who was unavailable and was not proper expert testimony. AP at 25.
Legal Standard
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." U.S. Const. Amend. VI. This right, extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S. Ct. 1714, 1717, 95 L. Ed. 2d 162 (1987). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Lilly v. Virginia, 527 U.S. 116, 124,119 S. Ct. 1887, 1894,144 L.Ed.2d 117 (1999). See also Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974) (a primary interest secured by the Confrontation Clause is the right of cross-examination). The right to confront witnesses, guaranteed by the Sixth and Fourteenth Amendments, includes the right to cross-examine adverse witnesses to attack their general credibility or show their possible bias or self-interest in testifying. Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986); Davis, 415 U.S. at 316, 94 S. Ct. at 1110. "The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." VanArsdall, 475 U.S. at 679,106 S.Ct. at 1435.
At trial, Detective Nicholas Garcia, a gang expert, testified about the violent conflict between the Sureno and Norteno gangs and the motive for petitioner to commit the crime. RT at 776-777. He stated there had been several homicides between the two gangs in Stockton and that petitioner was in the Vickystown gang affiliated with the Surenos, while the two victims, Richie Chavez and Samuel Vasquez, were members of the Norteno gang. Id. Detective Garcia explained that it is common for a Sureno to attack a Norteno, solely due to gang affiliation. RT at 779-780. Drive-by shootings using stolen cars are also typical of the violence between these two gangs. Id.
*1128 Detective Garcia provided his opinion on why Vasquez was shot. He stated that he had information from a Vickystown gang member that Vasquez had shot at petitioner a few weeks before and Vasquez had said that he was going to shoot petitioner like Vasquez had killed Toaster.[4] RT at 786. Toaster was a nickname for a Vickystown gang member, the same gang as the petitioner, and had been killed the previous month. RT at 786-787. Detective Garcia went further and said that in his expert opinion, petitioner had shot Vasquez as gang retaliation for Toaster's murder and for being shot at by Vasquez. RT at 787.
Detective Garcia obtained this information from a Vickystown gang member, Ramiro Montanez.[5] Montanez stated that petitioner had told him about Vasquez killing Toaster and shooting at him.[6] RT at 504-505. Detective Garcia learned this information during an interrogation of Montanez regarding the instant shooting. Montanez did not directly implicate himself or petitioner in the instant shooting.
Petitioner's counsel objected on the grounds that Detective Garcia's expert testimony was based on hearsay and Montanez' unavailability, by asserting his Fifth Amendment rights, prevented counsel from conducting a proper cross examination. The trial court overruled these objections and allowed Detective Garcia to testify that a gang member provided him with the information, but precluded him from identifying Montanez as the source or that petitioner had originally stated the information.[7] RT at 718-719, 733-744.
Petitioner argues that the trial court's ruling deprived him of his Sixth and Fourteenth Amendment rights to confrontation and a fair trial. The Court of Appeal found that the trial court erred in allowing Detective Garcia to testify about petitioner's personal motive for shooting Vasquez. The Court of Appeal did not address the Confrontation Clause claim, instead finding that the admission of the expert testimony violated the California Evidence Code, stating:
A person may qualify as an expert witness if the person has "special knowledge, skill, experience, training, or education" in a particular field. (Evid.Code, § 720.) An expert witness may give testimony in the form of an opinion, but expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) The subject matter of the culture and habits of criminal street gangs meets this criterion. (People v. Gardeley (1996) 14 Cal. 4th 605, 617, 59 Cal. Rptr. 2d 356, 927 P.2d 713.)
Evidence Code section 801, subdivision (b), limits expert opinion testimony to an opinion that is "[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] *1129 at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates...." Any material that forms the basis of the expert's opinion must be reliable, but so long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible-such as hearsay-can form the proper basis for an expert's opinion testimony. (People v. Gardeley, supra, 14 Cal.4th at p. 618, 59 Cal. Rptr. 2d 356, 927 P.2d 713.) "And because Evidence Code section 802 allows an expert witness to `state on direct examination the reasons for his opinion and the matter ... upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion...." (Ibid., citations omitted.)
Thus, the court properly permitted Garcia to testify about the behavior of the Sureno and Norteno gangs in Stockton and to opine that the shootings were gang-related based upon his experience and information he had gathered from other officers and gang members, even if this information was hearsay. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-618, 59 Cal. Rptr. 2d 356, 927 P.2d 713; People v. Olguin (1994) 31 Cal. App. 4th 1355, 1370, 37 Cal. Rptr. 2d 596; People v. Gamez (1991) 235 Cal. App. 3d 957, 965-966, 286 Cal. Rptr. 894.)
But in admitting Garcia's opinion testimony about defendant's personal motive for shooting Vasquez based on hearsay statements about specific prior incidents, the court erred because this was not the proper subject of expert testimony. The conclusion that a person has a motive to retaliate against another individual for attacking him and for killing his friend is not a matter outside the realm of common experience such that the testimony of an expert is necessary to assist the jury.
Opinion at 38-40.
However, the Court of Appeal held that the admission of the expert testimony was harmless error. Opinion at 40. The Court of Appeal cited the longstanding violence between the Surenos and Nortenos and the evidence that petitioner, a Sureno, had a motive to shoot Vasquez, simply for his Norteno affiliation. Looking at the evidence as a whole, the Court of Appeal concluded that it was not reasonably probable that petitioner would have obtained a favorable jury verdict had the trial court excluded the opinion testimony. Opinion at 41.
This court agrees that Detective Reyes improperly testified about petitioner's personal motive for shooting Vasquez, yet finds that the error was not harmless. Ordinarily in a review under the AEDPA, the federal court looks through unexplained decisions to the last reasoned decision as the basis for the state court's judgment. Gill v. Ayers, 342 F.3d 911, 917 n. 5 (9th Cir.2003). In the instant case, there is no reasoned state court decision addressing petitioner's Confrontation Clause claim. As such, an independent review of the record is used to decide whether the state court's decision was an objectively unreasonable application of Supreme Court precedent. Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir.2002).
An unavailable witness's outof-court statement may be admitted against a criminal defendant and not run afoul of the Confrontation Clause so long as it bears adequate indicia of reliability i.e., falls within a "firmly rooted hearsay exception" or otherwise bears "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statement's *1130 reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); Lilly, 527 U.S. at 124-25, 119 S. Ct. 1887. Whether a statement bears "particularized guarantees of trustworthiness" must be shown from the totality of the circumstances surrounding the making of the statement, not from the trial evidence as a whole. Idaho v. Wright, 497 U.S. 805, 819, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). Petitioner's Confrontation Clause claim is governed by these standards.[8] The Supreme Court held in Lilly, that a nontestifying accomplice's confession to police violated the defendant's right to confrontation even though the confession implicated the accomplice because it did not contain guarantees of trustworthiness. Lilly, 527 U.S. at 139,119 S.Ct. at 1901.
The California Court of Appeal found that the expert had testified to improper hearsay; thus, it stands to reason that the testified-to-hearsay was not firmly rooted in any hearsay exception. Although experts can sometimes rely on hearsay to form their opinions, the opinion itself was improper in that it was not based on an issue which the jury required expert testimony, and the hearsay itself was critical (as shown below) to an important issue in the case. Thus, the admission of the hearsay can find no justification in clearly established law.
Detective Garcia's testimony about general gang violence and the history between the Surenos and Norenos was proper. Yet, as stated by the Court of Appeal, Detective Garcia's testimony about petitioner's motive was not expert testimony, simply his opinion procured from just one source, Montanez. Essentially, Detective Garcia repeated to the jury what Montanez stated in the interrogation. Montanez' statements were not based on his own observations, rather hearsay statements spoken by the petitioner. These statements were admitted for the truth of the matter to the jury, in the guise of expert testimony.
Montanez was arrested and investigated in connection with this crime and was identified as the driver of the stolen car involved in the shooting. While Montanez did not incriminate petitioner as being involved in the shooting, Montanez described a violent history between petitioner and the victim. Montanez did not incriminate himself in statements to police, he only provided the police with a motive as to why petitioner would shoot Vasquez. Montanez' statements had no guarantee of trustworthiness and pursuant to Supreme Court authority they were not admissible. Lilly, 527 U.S. at 139, 119 S. Ct. at 1901.
Confrontation Clause violations are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Thus, this court must now consider whether admission of Detective Garcia's *1131 testimony "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). See also Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 2328, 168 L. Ed. 2d 16 (2007); Moses v. Payne, 543 F.3d 1090, 1100 (9th Cir.2008) (Confrontation Clause); Jackson v. Brown, 513 F.3d 1057, 1084 (9th Cir.2008) (Confrontation Clause).[9]
The Court of Appeal found the above error to be harmless, holding:
Although the court erred in admitting the evidence, the error was harmless. Garcia testified about the longstanding animosity between the Surenos and Nortenos, which led to the commission of numerous violent attacks between the gangs. He stated it was not uncommon for a Sureno to attack a Norteno stranger simply because of his gang affiliation and that gang members achieve status and respect from such attacks. Garcia also opined, based upon the circumstances of the shootings, that they were gang-related. Thus, there was ample evidence that defendant, who was a Sureno, had a motive to shoot Vasquez simply for being a Norteno.
Opinion at 40-41.
The Court of Appeal relied on the expert testimony concerning gang violence to hold there was sufficient evidence for the jury to find petitioner had a motive to shoot Vasquez. While this evidence does illustrate a motive for the shooting, it could not, standing alone, have led the jury to find that petitioner committed the shooting with deliberation and premeditation. The prosecution's only evidence to support attempted premeditated murder were Montanez' statements describing petitioner's motive for revenge.[10]
The jury found petitioner guilty on count 4, attempted murder, Cal.Penal Code § 664 and § 187(a).[11] CT at 384. Attempted murder is not a crime of degrees in California, instead a penalty provision is provided for the jury to increase the sentence if the actions were deliberate and premeditated. CT at 384. The trial court instructed the jury that,
"Deliberately" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.
"Premeditated" means considered beforehand. If you find that the attempted murder was preceded by a clear, deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful deliberate and premeditated murder.
RT at 1315.
The jury made a finding that petitioner's commission of the offense was deliberate *1132 and premeditated. CT at 384. A review of the trial record reveals no other evidence that illustrated petitioner's premeditation. Without Montanez' statements, a reasonable jury could not find petitioner guilt of attempted premeditated murder. With respect to the issue of premeditation, the Court of Appeals focused on the wrong issuethe gang inclination for senseless violence as opposed to premeditated violence. Evidence in the case was rife with illustrations of the senseless motive for gang-on-gang violence. Make the wrong response to a gang "greeting" or hand signal, and prestoyou're an enemy to be blown away. Clearly this motive to generally respond in violence says nothing about premeditation concerning the specific violent incident, or at absolute best, is equally indicative of an unpremeditated, reflexive scenario as opposed to a premeditated one. It is classically and senselessly unpremeditated; it arises on the spot. Here, however, the evidence that a relatively longstanding motive for the crime existed retaliation for the Toaster killingbespeaks the state of mind of petitioner to search out the victim and kill him, i.e. a premeditated retaliation. The harmless error analysis of the Court of Appeal was unreasonable with respect to the premeditation issue.
The undersigned finds that admission of Detective Garcia's opinion testimony did have a substantial and injurious effect on the verdict as it was the only evidence the jury considered in reaching its decision as to count 4. Petitioner was found guilty of attempted premeditated murder and sentenced to life in prison pursuant to Cal.Penal Code § 664(a), which provides that if an attempted crime is "willful, deliberate, and premeditated murder ... the person guilty of that attempt shall be punished by imprisonment in the state prison for life without the possibility of parole." Penal Code section 664(a).
However, the above unreasonableness extends only to the jury finding on premeditation. With respect to attempted murder per se, the reasoning of the Court of Appeal is more than reasonable. As set forth previously, even excising the expert's reliance on hearsay, there was plenty of evidence that petitioner attempted to murder the victim. The petition should be granted only as to the jury finding of premeditation.
C. Claim 3Denial of Dying Declaration
Petitioner argues that the trial court's exclusion of a dying declaration violated his Fourteenth Amendment right of due process and Sixth Amendment right to present evidence in his own defense. AP at. 35.
Legal Standard
A district court may not review collaterally a state court's evidentiary ruling unless it violates federal law, either by violating a specific constitutional provision or by infringing upon the due process right to a fair trial. Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). The erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense. See DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)).
The exclusion of hearsay statements that are critical to the defense and that bear "persuasive assurances of trustworthiness" may rise to the level of a due process violation. See Chambers, 410 U.S. 284, 302, 93 S. Ct. 1038 (1973); see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir.2004). A court must ensure that the defendant has a full opportunity to defend *1133 himself against the state's accusations. Chambers, 410 U.S. at 294, 93 S. Ct. at 1045; Chia, 360 F.3d at 1003. That opportunity must not be frustrated by a mechanical application of state evidentiary law. Chambers, 410 U.S. at 302, 93 S. Ct. at 1049; Chia, 360 F.3d at 1006. The state appellate court's decision must be measured against these clearly established principles of federal law.
In deciding whether the exclusion of the hearsay statements violates due process under Chambers and its progeny, the Ninth Circuit balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia, 360 F.3d at 1004. The court must also give due weight to the state interests underlying the state evidentiary rules on which the exclusion was based. Chia, 360 F.3d at 1006.
But even if exclusion of the evidence amounts to constitutional error, in order to justify federal habeas relief the erroneous exclusion must have had "a substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
As previously mentioned, the prosecution introduced evidence of motive that prior to the shooting of Samuel Vasquez, Vasquez told petitioner he was going to shoot him like he killed Toaster. RT at 786. To rebut this evidence, petitioner attempted to admit evidence that Toaster made a dying declaration that a black man shot him.[12] As Vasquez is not black, but Hispanic, petitioner contends that Vasquez could not have shot him and this would prove that petitioner had no motive to shoot Vasquez. Petitioner contends the evidence was admissible as third party culpability evidence and the courts preclusion of the evidence was not harmless beyond a reasonable doubt. The Court of Appeal agreed with the trial court's decision in denying the admission of the dying declaration, stating:
In any event, despite defendant's assertion to the contrary, the evidence was not evidence of third-party culpability because it did not tend to prove that someone other than defendant shot Vaquez. It is immaterial whether Vasquez shot Toaster. The relevant issue is whether defendant believed that Vasquez killed Toaster, which gave defendant a motive to shoot Vasquez in retaliation. Defendant's offer of proof did not include any evidence that he was aware of Toaster's dying declaration saying a black man shot him and that, for this reason, defendant did not believe Vasquez when he claimed he had shot Toaster. Accordingly, the court did not abuse its discretion in excluding the evidence pursuant to Evidence Code section 352.
Opinion at 42-43.
The Court of Appeal also noted the trial court has discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." People v. Minifie (1996) 13 Cal. 4th 1055, 1070, 56 Cal. Rptr. 2d 133, 920 P.2d 1337. The Court of *1134 Appeal held that the trial court did not abuse its discretion.
Viewing petitioner's claim under the factors outlined in Chia establishes that the Court of Appeal's decision was not an unreasonable application of Supreme Court precedent. See Chia, 360 F.3d at 1004. While the dying declaration may have been capable of evaluation by the jury, the statement did not have significant probative value in petitioner's favor. The dying declaration involved an incident collateral to petitioner's case and was not material to petitioner's defense. Regardless of who shot Toaster, the important issue is what petitioner knew. The killing of Toaster was not the sole evidence of petitioner's motive for the shootings. Petitioner had motive to shoot Vasquez simply due to his gang affiliation.
The trial court had a significant interest in excluding the dying declaration. Chia, 360 F.3d at 1006. The trial court could reasonably conclude that the probative value of the evidence was substantially outweighed by the probability that its admission would confuse the issues or mislead the jury. Cal. Evidence Code section 352. It cannot be said that the Court of Appeal's decision was an "objectively unreasonable" application of clearly established federal law. See Williams (Terry) v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000). Thus, there is no merit to this claim.
D. Claim 4Discovery Sanction
Petitioner contends that his right to a fair trial was violated due to a discovery sanction where the trial court instructed the jury that a false fact was true and the Court of Appeals unreasonably applied established United States Supreme Court precedent. AP at 45.
Legal Standard
The right to present testimony as part of a defense is not without limitation and "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973). In pursuit of the right to present a defense, "the accused, as is required by the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302, 93 S. Ct. at 1049. Trial courts therefore may require that trial witnesses be disclosed before trial and may impose sanctions on defendants (including evidence preclusion) in appropriate circumstances when those requirements are violated. See Taylor v. Illinois, 484 U.S. 400, 410-16, 108 S. Ct. 646, 653-656, 98 L. Ed. 2d 798 (1988) (exclusion of proposed defense witness not timely disclosed); United States v. Nobles, 422 U.S. 225, 241, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975) (evidence preclusion sanction based on defense failure to comply with pretrial discovery rule to disclose proposed witness' investigative report did not violate Sixth Amendment).
Habeas relief is usually warranted only if the alleged constitutional errors had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1712, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). See also Fry v. Pliler, supra ("[t]he opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all § 2254 cases").
On direct examination by petitioners's counsel, petitioner's girlfriend, Claudia Manriquez, testified that petitioner was at her house on the day of the shootings. RT at 940-942. Manriquez stated that she, petitioner and a friend, Nora Galaviz, left *1135 the house at around 5:30 pm to go to the store to pick up a birthday cake and then returned home. RT at 941. Petitioner's counsel did not ask Manriquez any details about the trip to the store or petitioner's meeting with Ramiro Montanez in the parking lot. According to the at Court of Appeal:
On cross-examination, the prosecutor asked Claudia a series of questions about defendant's whereabouts during the trip. Claudia revealed that, when they arrived at the store, defendant stopped to talk to Montanez, who was sitting in the driver's seat of a large pickup truck in the store's parking lot. She indicated she and Galaviz entered the store while defendant remained in the parking lot talking to Montanez. When the prosecutor asked her if she saw defendant touch the driver's mirror on the truck, she replied: "He probably could have leaned on it ... he probably could have touched it." Claudia asserted she told Stewart, defendant's investigator, about defendant having seen Montanez, but conceded that she did not tell him that defendant went over to the truck.
Later in the proceedings, the prosecutor told the court that he wished to call investigator Stewart as a rebuttal witness to ask whether Claudia had told him previously about seeing defendant with Montanez. According to the prosecutor, there was no reference to Montanez or the pickup truck in the discovery materials he received regarding Stewart's interview with Claudia on December 13,1999.
At this point, defense counsel revealed that, during her interview by Stewart on December 22, 1999, Claudia had mentioned defendant's encounter with Montanez.
Calling the omission a "huge problem," the court stated it intended to sanction the discovery violation by preventing Stewart from testifying that Claudia had told him of the encounter.
At the request of defense counsel, the court held an in camera hearing to learn of counsel's reasons for not turning over Stewart's [complete] report to the prosecution. At the hearing, counsel explained that he did not think he had to disclose to the prosecutor this portion of her statement to Stewart because he never intended to have Claudia testify about her observations of Montanez in the truck. He redacted this information from Stewart's report before giving it to the prosecutor because he believed the evidence was inculpatory in that it showed defendant had a relationship with Montanez.
Following the hearing, the court stated that defense counsel had explained his tactics, and that his decision not to disclose Claudia's statement to Stewart about defendant speaking with Montanez at the grocery store was made in good faith. Nonetheless, the court concluded counsel had violated the reciprocal discovery provisions ... by not disclosing the entirety of the statement made by a witness counsel intended to call at trial. In effect, counsel had "sandbagged" the prosecution, which warranted the sanction of precluding Stewart from testifying that Claudia had timely revealed the information about Montanez to him. In addition, the court stated that it would advise the jurors that Claudia did not mention Montanez and the pickup truck when Stewart interviewed her. The court reasoned that the sanction in effect allowed the prosecutor to impeach Claudia with a prior inconsistent statement, while not forcing counsel to reveal his theory of the case by disclosing the unredacted contents of Stewart's report.
In accordance with its ruling, the court advised the jurors that they were to *1136 consider as conclusively proved the following: "On December 22, 1999, Wilson Stewart interviewed Claudia Manriquez regarding the birthday party and the trip to the store to pick up the cake. She did not tell him of the pickup truck in the parking lot, nor of defendant discussingtalking to the man in the pickup truck."
Opinion at 25-27.
The Court of Appeal held that petitioner's attorney violated his discovery obligations and that sanctions were warranted, but the sanctions imposed by the trial court were excessive. Opinion at 29, 31. The undersigned agrees. The Court of Appeal further stated that the error was harmless beyond a reasonable doubt. Id. at 32. Petitioner argues that the Court of Appeal unreasonably applied Supreme Court precedent when finding that the trial court's error was harmless. AP at 57.
Manriquez' testimony concerning petitioner's interaction with Montanez and the truck was important, but as seen below, not dispositive to the defense. Manriquez provided a plausible reason why petitioner's fingerprints were on the truck, a key piece of evidence linking petitioner to the crimes. The prosecution's fingerprint witness testified that petitioner's fingerprints were on driver's side mirror and the driver's side door. RT at 452-453. The trial court's sanction, by undermining Manriquez' credibility, hampered petitioner's defense. The undersigned will assume, for the purpose of argument, that petitioner's right to put on a defense was violated by the excessive sanctions of the trial court.
However, even if the sanctions were excessive, as noted by the Court of Appeal, the trial court's sanction was harmless error and the undersigned finds that it did not have a, "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S. Ct. at 1712. Petitioner presented other alibi witnesses, including Nora Galaviz who testified about petitioner's meeting with Montanez in the store parking lot. RT at 970-971. While Manriquez' credibility was hurt by the sanctions she had already been impeached by her employment records. The employment records showed that Manriquez worked approximately five hours on the day of the shootings which meant she could not have been with petitioner all day as she stated. RT at 947-949. It was demonstrated that Galaviz and the other alibi witnesses were either friends or relatives of Manriquez which undermined their credibility.
Petitioner testified in his own defense and attempted to explain why his fingerprints were on the car, even though he claimed to never have been inside it. RT 1019-1020. However, petitioner's testimony was not credible when he attempted to explain why his fingerprints were on the mirror portion of the driver's side mirror. The prosecution alleged that petitioner was inside the drivers side of the car and adjusted the mirror. RT at 1019. Petitioner stated that he could have walked up to the driver's side of the car and then leaned on the car, his hand upside down against the mirror while he spoke with Montanez. Id. Petitioner's explanation has little persuasive value.
It should also be noted that the disputed testimony can be seen to incriminate petitioner as it puts him with Montanez and the car, the primary reason petitioner's attorney redacted the information. Any error by the trial court was harmless and petitioner has failed to show any violation that would necessitate habeas relief under Brecht.
E. Claim 5Ineffective Assistance of Counsel.
Petitioner argues that if defense counsel's conduct in redacting the investigator's *1137 report was improper and resulted in the trial court's sanction, then petitioner received ineffective assistance of counsel. AP at 59.
This claim was denied without a reasoned opinion by any state court. If a state court denies constitutional claims without a reasoned decision, a federal court reviewing a habeas corpus application pursuant to § 2254(a) "ha[s] no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context." Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). "While Supreme Court precedent is the only authority that is controlling under AEDPA, we look to Ninth Circuit case law as `persuasive authority for purposes of determining whether a particular state court decision is an "unreasonable application" of Supreme Court law.'" Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002). Thus, pursuant to Delgado, the Court must conduct an independent review of the record to determine whether the state court's decision was objectively unreasonable. In Delgado, the Ninth Circuit held that, "Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." 223 F.3d at 982; see also Luna, 306 F.3d at 954 (quoting Fisher v. Roe, 263 F.3d 906, 915 (9th Cir.2001) (internal citation omitted) ("We reverse only if `a careful review of the record and the applicable case law leaves us with the "firm conviction" that the state court was wrong.'")).
The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To this end, petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S. Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
If petitioner fails to show the challenged action by counsel was prejudicial in that it affected the reliability of the trial process, the claim of ineffective assistance of counsel may be rejected without deciding if counsel's conduct was deficient. Strickland, 466 U.S. at 697, at 104 S. Ct. at 2069. As previously stated, an independent review of the record shows that the petitioner was not prejudiced by the trial court's sanction.
F. Claim 6Brady Violation
Petitioner also contends that his right to a fair trial was violated by the prosecution's failure to disclose information of other potential suspects from the California *1138 gangs (CAL-GANGS) database. AP at 66.
Legal Standard
The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A so-called "Brady" claim contains three essential elements or components: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272, 157 L. Ed. 2d 1166 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-282, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999)).
The prosecution violates the constitutional duty of disclosure if his omission is sufficiently significant to result in the denial of the defendant's right to a fair trial. Agurs, 427 U.S. at 106-107, 96 S. Ct. at 2399. The duty exists regardless of whether a specific request has been made by the defense, or whether the suppression was intentional or inadvertent. Id. at 110, 96 S. Ct. at 2400.
Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 682, 105 S. Ct. at 3383. A mere reasonable possibility is insufficient to establish prejudice. Strickler, 527 U.S. at 291, 119 S. Ct. at 1953.
If the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an In Camera inspection and evaluation. Agurs, 427 U.S. at 106, 96 S. Ct. at 2399.
The Court of Appeal noted the following facts:
On October 15, 1999, officers interviewed Ramiro Montanez, who had been seen driving the pickup truck involved in the Vasquez shooting approximately one or two hours before the incident. Montanez stated that he observed an individual known to him as "Killer" or "Matone" near the pickup truck in the location where it was found abandoned after the shooting. Montanez knew Matone's first name as "Velasquez" and he was 26 years of age. Montanez also said that Matone was from Long Beach and had not been in Stockton very long. He had a "VST" tattoo on his neck, another one inside his mouth, a "1" tattooed under one eye, and a "3" under the other.
In March 2000, defense counsel informally requested discovery of information counsel believed would lead to Matone's identity. The prosecution provided counsel with a memorandum summarizing information from a law-enforcement computer program referred to as "CALGANGS," concerning 16 gang members whose characteristics most closely matched those of Matone. But none of the 16 had all of the characteristics described by Montanez.
Defendant moved to compel the prosecution to provide him with photographs and fingerprints of the 16 gang members. Initially, the court ordered the prosecution to provide a photograph and fingerprints of one person on the list, as well as the names of the other gang members and pertinent law enforcement *1139 agencies for defense counsel to contact. However, the prosecutor moved for reconsideration of the court's order on the ground that direct discovery of the CAL-GANGS information was inappropriate because it violated an agreement between the database provider and the Stockton Police Department. Following an in camera hearing, the court stayed the order.
At the in camera hearing, an administrator of the CAL-GANGS database told the court CAL-GANGS is a confidential intelligence system that is required to be shielded from public access. This is so since releasing the names of those in the database could make it harder for police to track gang activities because, once gang members learn of the confidential system and discover they are in it, they probably would change their identifying characteristics. Furthermore, disclosure of the information to a gang member's attorney could lead to violence if the information was about a rival gang and was leaked to the accused.
The administrator stated that his search revealed there were only 12 gang members who had "VST" tattoos on their necks and, of those, only 6 belonged to the Vickystown gang. None of those six had a first, middle, or last name of Velasquez. Four were between the ages of 21 and 30, but none of the four had a nickname of "Killer" or "Matone," or were from Stockton. No one had a tattoo inside his mouth. Of the Vickystown gang members between the ages of 21 and 30 with a "VST" tattoo, one was from Long Beach and had three dots under his eye. However, he was 24 years old and had a moniker of "Criminal."
The court ruled that defense counsel was not entitled to the information "as a statutory matter" and, as for defendant's constitutional claim, the information was not material in part due to the many dissimilarities between the person described by Montanez and those referenced in the CAL-GANGS database. Defendant renewed his motion for discovery after the original complaint was dismissed and the case was refiled, but the court denied the motion again.
Opinion at 19-21.
Petitioner maintains that if he had access to the CAL-GANGS database, he may have been able to discover the identity of Matone, who may have had access to the truck and this information may have provided reasonable doubt. The Court of Appeal rejected petitioner's argument stating:
Defendant's arguments "are speculative and fail to point out, as required by Bagley, how production of these materials would have created a reasonable probability of a different result." (Downs v. Hoyt (9th Cir.2000) 232 F.3d 1031, 1037.) Given the speculative value of the requested evidence, and the government's legitimate interest in protecting confidential information in the CAGANGS system, the trial court did not abuse its discretion in denying defendant's request for discovery. (People v. Superior Court (Barrett), supra, 80 Cal. App.4th [1305] at p. 1316, 96 Cal. Rptr. 2d 264 [trial court has broad discretion to protect against the disclosure of information that might violate a legitimate governmental interest].)
Opinion at 24.
In this case, the prosecution properly submitted to the trial court for In Camera evaluation the information from the CAGANGS database. The trial court was in the best position to decide if the information in CAL-GANGS should be disclosed to petitioner. See United States v. Gardner, 611 F.2d 770, 774 (9th Cir.1980). The CAL-GANGS administrator stated several legitimate reasons why the information in *1140 the database needed to remain confidential yet still provided the trial court with the CAL-GANGS information relevant to petitioner's case.
Petitioner's argument relies on a great deal of speculation that fails to rise to a due process violation. Petitioner has not shown that the evidence would even have been favorable to his defense much less that prejudice ensued. Banks, 540 U.S. 668, 124 S. Ct. 1256. Assuming that petitioner could prove that this other gang member, Matone, was in the truck, it does not aid in petitioner's defense. Petitioner was identified by several witnesses as the shooter and his fingerprints were in the truck. Showing that Matone was also in the truck would open the possibility of another accomplice but does not exonerate petitioner. Accordingly, the state court's determination of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
G. Claim 7Juror Replaced Without Instruction
Petitioner contends that his right to due process was violated when an alternate juror was substituted during deliberations and the trial court failed to instruct the jury to begin its deliberations anew. Petitioner's State Appellate Brief at 57.
Legal Standard
A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir.1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Estelle v. McGuire, 502 U.S. at 68, 112 S. Ct. at 480. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73, 112 S. Ct. at 482. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id. at 73, 112 S. Ct. at 482.
Shortly after the jury retired for deliberations it requested a read back of certain testimony but when the jury assembled in the courtroom one of the jurors was excused for child care reasons. RT at 1333-1337, 1348-1349. Before excusing the juror, the trial court advised the jury: "If I have to substitute somebody in, I will instruct you that you must discard any tentative conclusions you have reached and start over again from square one." RT at 1348. The trial court stated to the jury again: "I will be telling you to disregard any tentative conclusions you've made but perhaps there's some things that you can work on and at least be thinking about until we can seat the alternate." RT at 1349. However, when the alternate juror was seated, the trial court neglected to tell the jury to disregard their previous conclusions and begin anew.[13] RT at 1352.
*1141 Petitioner argues that he did not receive his constitutionally guaranteed right to a trial with all twelve jurors engaged in all of the jury's deliberations. Petitioner relies largely on California cases that discuss the replacement of jurors, but the Court of Appeals rejected this argument:
As we have noted, 11 of the jurors were told they would need to disregard their prior conclusions and begin their deliberations anew when the 12th juror was replaced with the alternate juror. Not privy to this advisement, the alternate juror was instructed with the rest of the jurors as follows: "The People and defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision." (See CALJIC No. 17.40.) Under the circumstances, reasonable jurors would have interpreted this instruction to compel them to commence deliberation anew when the alternate was seated.
The record reflects that the jurors deliberated for no more than six hours before they began deliberations with the alternate juror, and that none of the testimony was read back until the alternate was seated. Thereafter, the jury spent approximately 11 hours reviewing testimony and deliberating before it reached its verdict. In other words, after the alternate was seated, the jury spent almost twice as much time together than before the substitution. This implies that the jury did begin its deliberations anew when the alternate was seated.
Opinion at 45-46.
The Ninth Circuit has held that Cal.Penal Code § 1089 does not violate constitutional rights and the statute "preserve[s] the `essential feature' of the jury required by the Sixth and Fourteenth Amendments." Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.1985). Failure to give an instruction which might be proper as a matter of state law does not amount to a federal constitutional violation. Id. at 993. However, petitioner has cited no case nor has this court found Supreme Court authority requiring that a specific instruction be given to the jury after an alternate has been substituted for a deliberating juror. In Claudio v. Snyder, 68 F.3d 1573, 1577 (3rd Cir.1995), the Third Circuit suggested that such an instruction is not constitutionally compelled. See also Peek v. Kemp, 784 F.2d 1479, 1484-85 (11th Cir. 1986); U.S. v. Evans, 635, F.2d 1124, 1128 (4th Cir.1980).
The Court of Appeal considered if the trial court's failure to give such an instruction prejudiced the petitioner and found it to be harmless error as, "it is not reasonably probable that defendant would have obtained a more favorable result if the court had given the required instruction." Opinion at 47. The record shows that the trial court gave the proper instruction several times during the course of the trial and the jury deliberated nearly twice as long after the new juror was added. In light of Miller and the lack of Supreme Court authority on the issue, the Court of Appeal's ruling is not an unreasonable application of federal law.
H. Claim 8Prosecutorial Misconduct
Petitioner maintains that he was deprived of a fair trial when in closing arguments *1142 the prosecution made a reference to petitioner's previous criminal activity in violation of the trial court's ruling that precluded such references. AP at 72-73.
Legal Standard
Success on a claim of prosecutorial misconduct requires a showing that the conduct infected the trial with unfairness so as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 3109, 97 L. Ed. 2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct, 1868, 1871, 40 L. Ed. 2d 431 (1974)). The conduct must be examined to determine "whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990).
The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974)). According to the Supreme Court, "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 947, 71 L. Ed. 2d 78 (1982). Thus, the federal habeas court must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct... amounting] to a denial of constitutional due process." Id. at 218-20, 102 S. Ct. at 947. Improper prosecutorial argument violates rights under the federal constitution if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)). It "is not enough that the prosecutor[']s[ ] remarks were undesirable or even universally condemned." Id. (internal quotation marks omitted). Allen v. Woodford, 395 F.3d 979, 997-998 (9th Cir.2005).
Petitioner contends that his due process rights were violated during closing arguments when the prosecution referred to petitioner's criminal activity in violation of the state trial court's ruling precluding the prosecution from presenting such evidence. Petitioner maintains this was reversible error. The statement by the prosecutor at issue comes in the context of defense counsel's closing arguments. Petitioner's counsel suggested that simply because there was evidence petitioner associated with gang members did not mean that petitioner was involved in criminal activity. RT at 1231. The prosecution objected and asked to approach the bench. RT at 1231. The trial court overruled the objection and denied the request to approach the bench. Id. The trial court told the prosecutor that he would "have a chance to respond." Id. The specific statement at issue occurred when the prosecutor responded, "I can't, [be]cause you've kept it out." Id. The prosecutor made this statement in the presence of the jury and the trial court instructed the jury to ignore the comment. RT at 1232. The jury left the court room at which time the trial court admonished the prosecutor for his misconduct. Id.
Petitioner argues that the prosecutor's remark suggested to the jury that the petitioner was involved in past criminal activity but the prosecutor was prevented from presenting this evidence. AP at 75. Petitioner believes that the implied suggestion that the petitioner was involved in criminal activity influenced the jury's verdict and was a deprivation of due process.
*1143 Petitioner's claim has no merit. The prosecutor made a single comment. The prosecutor did not refer to any specific incident or criminal activity, rather he stated that he could not properly respond to defense counsel's closing argument. There was no indication that the jury understood what the statement referred to and the trial court immediately instructed the jury to disregard the comment. The prosecutor's isolated misstatement did not deprive petitioner of a fair trial. See Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir.1995) (petitioner not entitled to habeas relief based on a single improper comment by prosecutor).
Regardless of the prosecutor's statement, the prosecution was permitted to introduce evidence of petitioner's gang involvement. Police officers testified at trial that petitioner had acknowledged his gang affiliation and another officer testified petitioner was present when an associate of the petitioner shot a rival gang member in 1996 and petitioner was later found in possession of the firearm. RT at 575. There was strong evidence that the two shootings of the instant case were gang related and petitioner had gang tattoos. Looking in the context of the entire trial, the prosecutor's comment was not the only mention of gang or criminal activity. With all this evidence a reasonable juror would clearly realize there was a gang component to this crime and petitioner was involved in gang activity to some extent.
Any error resulting from the prosecutor's statement was harmless and not so egregious to cause a denial of constitutional due process. Smith, 455 U.S. at 219, 102 S. Ct. at 947. The one statement by the prosecutor did not have such an effect and therefore, this claim should be denied.
I. Claim 9Jury Instructions
Petitioner contends that the trial court gave improper jury instructions and should have instructed the jury that it could find petitioner guilty of a lesser degree of attempted unpremeditated murder. AP at 61.
Legal Standard
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 481-482,116 L. Ed. 2d 385 (1991). Nor does the fact that a jury instruction was inadequate by Ninth Circuit direct appeal standards mean that a petitioner who relies on such an inadequacy will be entitled to habeas corpus relief from a state court conviction. See Duckett v. Godinez, 67 F.3d 734, 744 (9th Cir.1995) (citing Estelle, 502 U.S. at 71-72, 112 S.Ct at 482).
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72, 112 S. Ct. at 482; Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'").
Petitioner was charged with the attempted premeditated murder of Samuel Vasquez pursuant to California Penal Code section 664(a).[14] CT at 25. The trial court *1144 instructed the jury with California Jury InstructionsCriminal (CALJIC) No. 8.66 on the elements of attempted murder.[15] RT at 1314. The trial court also used CALJIC No. 8.67 to instruct the jury to find if the crime was willful, deliberate and premeditated.[16] The jury was also instructed on the lesser offense of attempted voluntary manslaughter. RT at 1319-1323. The jury found petitioner guilty of attempted murder and made a finding that the offense was deliberate and premeditated.
Petitioner argues that the jury should have been instructed with a modified version of CALJIC No. 8.71 to address attempted murder.[17] However, the crime of attempted murder is not divided by degrees in California. Instead Penal Code section 664(a) uses a penalty provision when the jury finds special circumstances have been met. Petitioner argues that attempted murder should be divided in degrees and the failure to do so is in violation of established federal law, namely Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court held in Apprendi that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi 530 U.S. 466 at 490, 120 S. Ct. at 2362-2363.
The Court of Appeal held that there was no error in failing to instruct the jury as petitioner claimed was required, as the issuing of CALJIC 8.66 and 8.67 adequately eliminated any prejudice to petitioner. Opinion at 48. The Court of Appeal stated that the jury instructions were compatible with Apprendi:
Consequently, the instructions advised the jurors that they first had to determine whether defendant committed attempted murder. Only if they found defendant guilty of attempted murder did the jurors have to decide whether that attempted murder was premeditated. And if they were unable to find beyond a reasonable doubt that the crime was premeditated, the jurors were directed to find the premeditation allegation untrue.
Opinion at 49.
With respect to petitioner's argument that California Penal Code section *1145 664(a) should be separated into degrees, it is well-established that it is left to state legislatures and courts, rather than the federal courts, to define the scope and nature of state law crimes. See Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 2322, 53 L. Ed. 2d 281 (1977) ("It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government [cit. om.], and that we should not construe the Constitution so as to intrude upon the administration of justice by the individual States"); Martin v. Ohio, 480 U.S. 228, 232, 107 S. Ct. 1098, 1101, 94 L. Ed. 2d 267 (1987) (citing Patterson and reiterating "the reluctance of the Court to disturb a State's decision with respect to the definition of criminal conduct"). Hence, "it is the sole responsibility of the States to define the elements of their criminal offenses." Jeffries v. Blodgett, 5 F.3d 1180, 1194 (9th Cir.1993) (citing Martin, supra). The Court of Appeal ruled there was no error in the jury instructions under state law and petitioner has failed to show that the jury instruction was so egregious as to violate due process or be in violation of federal law.
Petitioner argues that the jury should have had the opportunity to decide between varying degrees of attempted premeditated murder. California law already allows for this with CALJIC No. 8.67, which gives the jury the option of finding that attempted murder was premeditated or not. Petitioner does not state how his proposed jury instruction is any different then current California law. Consequently, the state court's determination of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
J. Claim 10Sentencing Errors
Finally, petitioner contends that the imposition of consecutive sentences based upon factual findings made by the trial court by a preponderance of the evidence violates Apprendi and Blakely. AP at 80-81.
Legal Standard
This claim was denied without a reasoned opinion by any state court, so pursuant to Delgado, this Court must conduct an independent review of the record to determine whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). In Apprendi 530 U.S. at 490, 120 S. Ct. at 2362-2363, the Supreme Court held that, "to]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Blakely v. Washington, 542 U.S. 296, 303-304, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004), the Supreme Court held that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."
In Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 868, 166 L. Ed. 2d 856 (2007), the Supreme Court struck down California's sentencing plan on the basis that it violated Apprendi's "bright-line rule," i.e., that "[e]xcept for a prior conviction, 'any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" The Supreme Court found that the middle term described in the California statutes constituted the relevant statutory maximum, and that because aggravating circumstances were found by a judge and not a jury, and need only be established by a preponderance of the evidence, the sentencing scheme violated Apprendi. Cunningham, 549 U.S. 270, 127 S.Ct. at 873. In 2005, the Ninth Circuit held in Schardt v. *1146 Payne, 414 F.3d 1025 (9th Cir.2005), that Blakely, "does not apply retroactively to a conviction that was final before that decision was announced." Schardt, 414 F.3d at 1038.
Petitioner's claim arises out of the determinate sentences set by the trial court. The trial court sentenced petitioner to 13 years and four months that was imposed consecutively to a 10 year determinate term and an indeterminate life term with the possibility of parole.[18] AP at 80. The trial court imposed consecutive terms after finding that the shootings were separate incidents in time and place from each other, the victims were particularly vulnerable and petitioner felt no threat from three of the victims.[19] RT at 1431. Petitioner argues that the imposition of the consecutive sentences were based on the trial court's findings and not by a jury beyond a reasonable doubt. AP at 80.
Petitioner was sentenced on January 29, 2001 and the Court of Appeal affirmed petitioner's conviction on August 20, 2002. Petitioner's conviction and sentence became final on January 28, 2003, ninety days after the California Supreme Court denied petitioner's petition for review on October 30, 2002. Beard v. Banks, 542 U.S. 406, 411, 124 S. Ct. 2504, 2510, 159 L. Ed. 2d 494 (2004) ("State convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.").
The Supreme Court decided Blakely on June 24, 2004, nearly a year and a half after petitioner's case become final and pursuant to Schardt, Blakely cannot be applied retroactively. The Ninth Circuit also held that Cunningham did not announce a new rule of constitutional law. Butler v. Curry, 528 F.3d 624, 639 (9th Cir.2008). Instead, Cunningham applied Blakely to the specific California sentencing plan. Id. Thus, Blakely cannot be applied to petitioner's case.
Furthermore, the Supreme Court's decisions in Apprendi, Blakely, and Cunningham did not indicate that the Supreme Court's holdings would even apply to a state judge's authority to impose consecutive sentences.[20] Whether or not Blakely applies to a state's consecutive sentencing scheme is an unresolved question. See, e.g., State v. Ice, 343 Or. 248,170 P.3d 1049 (2007) (holding it does apply); State v. Kahapea, 111 Hawai'i 267, 278-80, 141 P.3d 440 (2006) (holding it does not). In addition, several circuits have held that a judge may impose consecutive sentences based on facts not found by the jury. See United States v. Hicks, 389 F.3d 514, 531-32 (5th Cir.2004); United States v. Pressley, 345 F.3d 1205, 1213 (11th Cir.2003); *1147 United States v. Lott, 310 F.3d 1231, 1242-43 (10th Cir.2002); United States v. Hollingsworth, 298 F.3d 700, 702 (8th Cir. 2002); United States v. Noble, 299 F.3d 907, 909-10 (7th Cir.2002); United States v. White, 240 F.3d 127, 135 (2d Cir.2001). In sum, there is no established Supreme Court authority on the subject of Blakely's et al, application to consecutive sentences under state law.
It is true that in United States v. Fifield, 432 F.3d 1056 (9th Cir.2005), the Ninth Circuit considered a Blakely challenge to consecutive sentencing under the federal guidelines. The Ninth Circuit denied the claim but did not hold Blakely inapplicable in that context. The Fifield court considered how the federal sentencing guidelines actually functioned. "Because... a district court need not find any particular fact to impose consecutive sentences," the court concluded, "the imposition of consecutive sentences does not violate the Sixth Amendment." Id. at 1067. However, this federal guidelines case does not mandate a conclusion that state sentencing schemes which permit a judge to impose consecutive sentences for multiple charges is violative of Apprendi et al. Apprendi's focus is on the maximum penalty for a given chargesingular. The Supreme Court has never held that in determining the cumulative penalty for separate charges involving separate incidents, which could theoretically be brought separately, one has a Sixth Amendment right to concurrent sentencing absent the jury finding the basis for consecutive sentencing. Such a rule would amount to making ministerial the duties of a judge at sentencing, and takes Apprendi beyond its logical basis.
Accordingly, IT IS HEREBY RECOMENDED that petitioner's application for a writ of habeas corpus be granted in part on the Confrontation Clause issue. The case should be sent back to state court for resentencing only on attempted murder without a finding of premeditation.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).
Dated: November 20, 2008.
NOTES
[1] Detective Reyes testified that Edgar's mother was concerned about gang retaliation and he may have kept the contact information secret for the safety of the witness but he could not remember. RT at 91-93.
[2] Detective Reyes testified at trial that Edgar identified Montanez as the driver but was unable to identify the passenger from several photo arrays. RT at 635.
[3] Edgar was a intended to be a prosecution witness had he been available.
[4] Toaster's real name was Juan Martinez.
[5] Ramiro Montanez was the driver of the pick up truck petitioner rode in immediately following the shooting and the person petitioner was with on the date of his arrest several weeks after the shooting. Montanez pled guilty to receiving stolen property with respect to the pick up truck.
[6] Petitioner testified that he knew of Toaster, but had never been told that Samuel Vasquez had killed Toaster. Petitioner also testified that he did not know Samuel Vasquez until the trial began. RT at 990-991.
[7] The trial court ruled that revealing Montanez' identity would be too prejudicial to petitioner but allowed the prosecution to elicit that Detective Garcia's source was a gang member. RT at 738.
[8] In 2004, the United States Supreme Court held that the Confrontation Clause bars the state from introducing into evidence out-ofcourt statements which are testimonial in nature unless the witness is unavailable and the defendant had a prior opportunity to crossexamine the witness, regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). However, for purposes of the AEDPA, this court must look to federal law as it existed at the time of the final state court decision on direct review (here October 30, 2002) in determining whether the petition should be granted. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). The holding in Crawford is not retroactive to cases on collateral review. Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 1184, 167 L. Ed. 2d 1 (2007). Therefore, the decision in Crawford does not apply because it was decided after petitioner's trial and appeal. Winter v. Hall, 494 F.3d 1192, 1194 (9th Cir.2007).
[9] A recent case, Slovik v. Yates, 545 F.3d 1181 (9th Cir.2008) without analyzing the post-AEDPA cases on the subject of harmless error, utilized the Chapman "beyond a reasonable doubt" standard for its Confrontation Clause harmless error analysis. This case clearly is contrary to Supreme Court and Ninth Circuit post-AEDPA and post-Fry case law with respect to the correct harmless error standard.
[10] Samuel Vasquez testified at trial as a prosecution witness but was uncooperative. He acknowledged that he was shot but said he did not remember any details of the shooting, he did not remember any of the information he told police and he did not remember anything he said at the preliminary hearing. Vasquez also denied knowing or shooting at petitioner or being assaulted by petitioner.
[11] Murder is the unlawful killing of a human being with malice aforethought. RT at 664.
[12] Petitioner attempted to admit a police report containing a statement from a police officer who was with Toaster after he was shot. Toaster provided his name and address and said a black man shot him before he lost consciousness.
[13] California Penal Code § 1089 states in part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
[14] The section provides that if an attempted crime is "willful, deliberate, and premeditated murder ... the person guilty of that attempt shall be punished by imprisonment in the state prison for life without the possibility of parole." Penal Code section 664(a).
[15] The jury was instructed: "In order to prove attempted murder, each of the following elements must be proved: Number one, a direct but ineffectual act was done by one person towards killing another human being; And, number two, the person committing the act harbored express malice aforethought, namely a specific intent to kill unlawfully another human being." RT at 1314.
[16] The jury was instructed: "If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder ... [¶] To constitute willful, deliberate and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being ... [¶] You will include a special finding on that question in your verdict using a form that will be supplied fro that purpose." RT at 1315-1316.
[17] Petitioner wants to create a jury charge that instructs, "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of attempted murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the attempted murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree."
[18] The Response from the Attorney General calculated the determinate sentence to equal 12 years and eight months. Attorney General's Response at 63.
[19] California sentencing rules allow consecutive sentences if the crimes are committed at different times or different places rather than just one single period of criminal behavior. Cal. Rules of Court 4.425(a)(3). In addition, any other circumstance in aggravation or mitigation can be used to decide to impose consecutive terms. Id.
[20] On March 17, 2008, the Supreme Court granted a petition for a certiorari to address the question, "Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant." See Oregon v. Ice, ___ U.S. ___, 128 S. Ct. 1657, 170 L. Ed. 2d 353 (2008). A ruling is still pending, but oral arguments were heard on October 14, 2008. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3362933/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
The plaintiffs filed a complaint on August 25, 1994 against the defendants, Chrysler Corporation, Disch Motor Group, Frank S. Marcucci, and the law firm of Cohen and Acampora,1 alleging damages that it sustained as a result of a one vehicle accident. The vehicle, a 1988 Dodge Ram pickup truck, was owned by Plaintiff Rose Fontanella. Plaintiff Michael Fontanella was operating the vehicle on December 18, 1991, when it "went out of control, struck a post and cable guardrail . . . and then struck a tree." Plaintiff Michael Fontanella alleges that upon impact, the portion of the seat belt retraining him tore or broke, causing him to be thrust into the steering wheel and windshield of the truck. Plaintiff Michael Fontanella alleges that as a result of the seat belt failure, he sustained serious physical injury, post-traumatic stress disorder, and overanxious disorder.2 Plaintiff further alleges that some of his injuries are likely to be permanent.
The claims against the defendants Chrysler (the alleged CT Page 11234 manufacturer) and Disch Motor Group (the alleged seller) sound in product liability and go to the alleged seat belt failure at the time of the accident. The claims against the defendant Marcucci and the law firm of Cohen and Acampora sound in legal malpractice and are the subject of the present motion to dismiss.
Plaintiff Rose Fontanella alleges that she retained the law firm of Cohen and Acampora to investigate and pursue the products liability action against the manufacturer and seller. Plaintiff alleges that pursuant to Defendant Marcucci's instruction, it assigned title to the Dodge truck to its insurer, Defendant Liberty Mutual Insurance Company. Plaintiff further alleges that Defendant Marcucci and the law firm had an agreement with Defendant Liberty Mutual to preserve the Dodge truck, but; as a result of Defendant Marcucci's negligence, the Dodge truck and seat belt mechanism were destroyed, thus preventing evaluation and confirmation of its alleged defect by an expert. Plaintiffs allege that as a result of the negligence of Defendant Marcucci and the law firm, its right of action against Defendants Chrysler and Disch have been substantially and irrevocably impaired.
On July 22, 1997, Defendant Marcucci and the law firm of Cohen and Acampora filed a motion to dismiss Plaintiffs' malpractice claim on the ground that its prematurity made it non-justiciable, thus depriving the court of subject matter jurisdiction.
Pursuant to Practice Book § 143, the defendants have filed a memorandum in support of its motion to dismiss, and the plaintiffs have filed a memorandum in opposition.
The motion to dismiss "attack[s] the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in the original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544,590 A.2d 914 (1991). "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits, it must be justiciable." Mayer v.Biafore, Florek O'Neill, 45 Conn. App. 554, 556, ___ A.2d ___ (1997). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . .; (2) that the interests of the parties be adverse . . .; (3) that the matter controversy be capable of being adjudicated by judicial power . . .; and (4) that the termination of the CT Page 11235 controversy will result in practical relief to the complainant."Nelson v. State, 230 Conn. 1, 6, 670 A.2d 1288 (1996). "In the absence of a justiciable controversy, the courts have no jurisdiction"; Kleinman v. Marshall, 192 Conn. 479, 484,472 A.2d 772 (1984); as "justiciability . . . implicates the subject matter of the court." Windham Taxpayers Association v. Board ofSelectmen of the Town of Windham, Superior Court, Docket No. 498075, judicial district of Windham, at Windham (March 13, 1995,Foley, J.) (14 Conn. L. Rptr. 115, 118). Thus, "the motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ."; Sadlosk v. Manchester, 235 Conn. 637, 645-46 n. 13,668 A.2d 1314 (1994); based on the lack of a justiciable claim.
"The justiciability of a claim is related to its ripeness."Cumberland Farms, Inc. v. Town of Groton, 45 Conn. App. 514, 517, ___ A.2d ___ (1997); Lake Carriers Ass'n v. MacMullan,406 U.S. 498, 506, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1971). "The ripeness doctrine is the constitutional mandate of case or controversy, U.S. Const. Art. III, [which] requires an appellate court to consider whether a case has matured or ripened into a controversy worthy of adjudication before it will determine the same." Neylanv. Pinsky, Superior Court, Docket No. 347072, judicial district of New Haven (December 6, 1993, Zoarski, J.) (___ CSCR ___). "It's basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements . . . ." Id. (Emphasis added.)
In Mayer v. Biafore, 45 Conn. App. 554, 556, ___ A.2d ___ (1997), cert. granted, Sup. Ct. 15772 (September 18, 1997),3
the Appellate Court affirmed the trial court's granting of a motion to dismiss for lack of subject matter jurisdiction on the ground that the plaintiff's legal malpractice action was premature and therefore not yet ripe for adjudication. The personal injury action giving rise to the malpractice action involved a motor vehicle accident in which the plaintiff suffered damages in excess of $10,000. Id., 555. The defendant law firm settled the personal injury action for $10,000, but neglected, according to the plaintiff, to pursue an underinsured motorist claim against the plaintiff's insurer, Aetna, within the time set by law and the insurance contract. Id. The plaintiff sought damages from the defendants for legal malpractice arising out of the defendants' failure to pursue the underinsured motorist claim. Id., 556.
In affirming the trial court's dismissal of the legal CT Page 11236 malpractice action, the Appellate Court reasoned that the plaintiff could not establish two of the elements of legal negligence: duty and its breach. Failure to establish these elements meant essentially that the parties were not adverse, that there was no justiciable controversy. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . here, the plaintiff claims that he lost his underinsured motorist claim against Aetna as a result of the defendants' negligent failure to file a timely action. Because the question of whether the plaintiff's claim against Aetna is time barred has yet to be adjudicated in an action between the plaintiff and Aetna, the issue of whether the defendants breached a duty owed to the plaintiff, assuming a duty existed, cannot be determined . . . [O]nly [if Aetna prevails against the plaintiff] can the plaintiff pursue an action against the defendants for legal malpractice." Id.; see also Neylan v. Pinsky, supra, Superior Court, Docket No. 347072 ("A legal malpractice claim is premature if an alternate and viable remedy is available to the plaintiff on the underlying suit, regardless of the defendant attorney's alleged negligence . . . [for] while defendant's alleged negligence may result in a future loss to the plaintiffs on the underlying personal injury claim, the plaintiffs have suffered no present loss as the underlying claim is still pending");Cumberland Farms, Inc. v. Town of Groton, 46 Conn. App. 514, 518-19, ___ A.2d ___ (1997) (dismissal upheld on plaintiffs' claim of inverse condemnation of its real property as premature, for its application for a zoning variance was still pending; "the extent of any damages sustained by plaintiff cannot be determined until resolution of its [zoning application]").
In Fiaschetti v. Vannucci, Superior Court, Docket No. 281533, judicial district of Fairfield, at Bridgeport (September 15, 1994, McGrath) (___ CSCR ___) the court stayed4 plaintiff's legal malpractice claim as premature for plaintiff had "an alternative state remedy . . . pending in the Stamford Superior Court." The plaintiff claimed that the defendant law firm's failure to file opposing documents on its behalf caused it to lose its federal remedy. The court reasoned that the malpractice action was premature as the possibility of a state court remedy meant that "plaintiffs [could not] prove the damage element in the legal malpractice action . . . The alternative remedy . . . [meant that] plaintiff ha[d] suffered no present loss." SeeHeritage Square Assocs. v. Blum, Superior Court, Docket No. 347072, judicial district of Stamford-Norwalk, at Stamford (July CT Page 11237 21, 1992, Nigro, J.) (7 Conn. Super. Ct. 992, 993)("A cause of action law, as opposed to a cause in equity, must be complete before it can be put in suit . . . an action cannot be sustained where the injury is only anticipated as a result of a future act.").
The defendants argue in their memorandum in support of their motion to dismiss that its situation is "substantively identical" to the situation in Mayer v. Biafore as the plaintiffs still have a claim against Chrysler and Disch Motors and therefore the present "malpractice action [should] not lie until the underlying products liability action against [Chrysler and Disch Motors] is resolved, because until then, "no actual controversy exists between the parties in the dispute." Mayer v. Biafore, supra,45 Conn. App. 557.
The plaintiffs argue in their memorandum in opposition that the factual situation in Mayer v. Biafore is distinguishable. They argue that, unlike Mayer, the breach in its case does not have to be adjudicated as it is obvious: "there is no dispute[; ] the evidence has been destroyed." It argues that its damages consist not in the "action [being] wholly unprovable, although it may be, but [in] the degree to which reliance on evidence other than the thing itself has deprived the plaintiffs of the ability to prove their case." The plaintiffs' articulation of injury does not comport with case law, as it fails to recognize that the elements of negligence work in synergy: "Because the question of whether the plaintiff's claim against Aetna is time barred has not been adjudicated . . . the issue of whether plaintiff's breached a duty can not be determined . . ."; Mayer, supra,45 Conn. App. 556; "while the defendant's alleged negligence may result in a future loss . . . the plaintiffs have suffered no present loss as the underlying claim is still pending"; Neylan v.Pinsky, supra, Superior Court, Docket No. 347072; "the extent of any damages sustained by plaintiff cannot be determined until resolution of its [underlying action]"; Cumberland Farms, Inc. v.Town of Groton, supra, 46 Conn. App. 518-19.
The plaintiff's articulation of its damages is likewise confused; it seems to argue that the court would need to measure what it might have been awarded had the subject vehicle lot been destroyed versus what it will be awarded because it will be forced to rely on other evidence — "the issue is . . . the degree to which reliance on evidence other than the thing itself as deprived the plaintiffs of the ability to prove the case." Even were this a reasonable articulation of its damage, the court CT Page 11238 would still need to await the award on their products liability claim.
Therefore the defendants', Marcucci and the law firm of Cohen and Acampora, motion to dismiss the plaintiffs' malpractice claim is granted, as an alternative remedy exists in its products liability claim, making the malpractice claim premature, and therefore non-justiciable. The court is deprived of subject matter jurisdiction and the claim is dismissed.
Zoarski, J. Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/237350/ | 225 F.2d 31
96 U.S.App.D.C. 192
Grayce GOLDING, Appellant,v.Sinclair WEEKS, Secretary of Commerce, Appellee.
No. 12493.
United States Court of Appeals District Of Columbia Circuit.
Argued May 18, 1955.Decided June 30, 1955.
[96 U.S.App.D.C. 193] Mr. Homer Brooks, Washington, D.C., with whom Mr. Edmund Hill, Jr., Washington, D.C, was on the brief, for appellant.
Mr. Samuel J. L'Hommedieu, Jr., Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., Lewis Carroll and Joseph M. F. Ryan, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before PRETTYMAN, WASHINGTON and DANAHER, Circuit Judges.
PER CURIAM.
1
Plaintiff-appellant was a probationary employee in the Department of Commerce, subject to dismissal during the probationary term of one year. 5 C.F.R. § 2.113, § 9.103. About four weeks before the end of that year, she received a statement of reasons for separation and notice of dismissal, effective two weeks before the year's end. Plaintiff says that she reported to work each day after the date of separation specified in the notice, that she was given work to do, that she was paid therefor, and that she did not leave her work station until she was physically ejected therefrom a day or two after the end of the probationary year. Later, she brought suit for restoration in the District Court. The court dismissed the complaint, on the ground that it failed to state a claim upon which relief may be granted. We agree. Plaintiff received a proper notice of dismissal and statement of reasons for separation, as specified in the regulation applicable to probationers. 5 C.F.R. § 9.103. She did not lose her status as a probationer, and gain a more permanent status, by her conduct in continuing to report to work. Nor did the Government lose its right to discharge her because someone continued to give her work to do for a short time, and caused her to be paid for it.
2
Plaintiff argues that she was entitled to a 'ninety-day warning notice' under 5 U.S.C.A. § 2005. Compare Jones v. Hobby, 96 U.S.App.D.C. , 223 F.2d 345 (decided May 26, 1955). But this section does not operate to extend the tenure of probationers. Plaintiff also alleges that the charges against her were amended on the dismissal date, and that this required that she be given a new notice of dismissal. It appears, however, that the second statement of reasons for separation was substantially similar to the one first given her, and that the effective date of the dismissal was not changed. Under the circumstances, her argument must fail.
3
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/237352/ | 225 F.2d 37
96 U.S.App.D.C. 198
David POSNICK, Bonat's Cafe, Incorporated, Appellants,v.Ethel POSNICK, Appellee.Ethel POSNICK, Appellant,v.David POSNICK, Bonat's Cafe, Incorporated, Appellees.
Nos. 12296, 12297.
United States Court of Appeals District of Columbia Circuit.
Argued May 6, 1955.Decided July 7, 1955.
[96 U.S.App.D.C. 199] Mr. Jean M. Boardman, Washington, D.C., with whom Mr. James E. Faust, Washington, D.C., was on the brief, for appellants in No. 12,296 and appellees in No. 12,297.
Mr. W. Cameron Burton, Washington, D.C., for appellee in No. 12,296 and appellant in No. 12,297.
Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit judges.
PER CURIAM.
1
Mrs. Posnick brought suit in the District Court against her husband, seeking an allowance for maintenance and the payment of sums alleged to be due her. Mr. Posnick resisted both prayers. As to the latter demand, he urged that his wife's claims arose out of a business partnership between them, which had been wound up and terminated by agreement. The District Court heard the case without a jury, and found for the wife. In No. 12,296, the husband appeals.1 We think there was no error affecting substantial rights. The settlement on which the husband relies was made at a time when the wife was seeking to preserve the marriage relationship, and before the husband had left her. We think the entire transaction as revealed in the record was vitiated by coercion and by non-disclosure amounting to deceit. The District Court had jurisdiction to set aside the settlement and determine the extent of the wife's property rights. Wheeler v. Wheeler, 1951, 88 U.S.App.D.C. 193, 188 F.2d 31; Reilly v. Reilly, 86 U.S.App.D.C. 345, 182 F.2d 108, certiorari denied, 1950, 340 U.S. 865, 71 S.Ct. 90, 95 L.Ed. 632. We think its disposition of the matter was justified on the record before it.
2
In No. 12,297, the wife appeals from Paragraph 4 of the judgment, which provided that upon payment by the husband of the amounts found to be due the wife, the allowance for maintenance made elsewhere in the judgment should terminate. We think this provision was erroneous and should be eliminated. The wife's claim for amounts owing to her is separate from her claim to maintenance. To what extent and at what time she will be able to collect the amounts due her under the judgment, and what her need for maintenance may then be, are matters about which we cannot speculate. Changed circumstances, of course, would entitle the party adversely affected to apply for relief in the District Court with regard to the amount of maintenance. See Bartlett v. Bartlett, 1954, 94 U.S.App.D.C. 190, 221 F.2d 508, and cases cited at footnote 18. The District Court should be free to decide such an application, if and when one is made, in the light of all the circumstances then existing. Keezer, Marriage and Divorce § 657 (3d ed. 1946); Bernsdorff v. Bernsdorff, 1906, 26 App.D.C. 520.
The judgment should be
3
Modified by striking Paragraph 4 thereof, and as so modified, affirmed.
1
A corporation controlled by the husband, which was made a defendant as to the wife's property claims, joins in the appeal | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/237370/ | 225 F.2d 100
Teresa JUAREZ, Rufina M. Villalobos, Lucille G. Holguin, Gloria A. Trujillo, Andrea Llamas, Mary Lou Escoto, Epifania Ontiveroz, Estella C. Ortiz, Beatrice M. Ortega, Guadalupe G. Martinez, Consuelo A. Valerio, Adelita L. Montoya, Carolina Rodriguez, Teresa Marrujo, Hilaria S. Escoto, Maria A. Costales, Natividad H. Barraza, Emilia C. Arzola, Maisie P. Gonzales, Bessie A. Gibbs, Dolores O. Esqueda, Josefa T. Guadiana, Cecila Olivas, Carmen M. Ortega, Juana Orosco, Lucretia Macias, Robert Medina Alvarado, Manuel Morales, Horacio Grijalva, Josephine Campbell, Genoveva D. Reyes, David O. Carrasco, Librado C. Morena, Maria M. Aguirre, Clementa Morales, Elouise M. Gonzales, Elvira M. Gonzales, Eva Martinez, Mary Martinez, Lorenza Legarda, Anita V. Flores, Ida A. Pacheco, Eduvigen L. Costales, Genevive L. Aguilar, Consuelo Martinez, and Teodora G. Martinez, Appellants,v.KENNECOTT COPPER CORPORATION, a corporation, Appellee.
No. 5047.
United States Court of Appeals Tenth Circuit.
July 26, 1955.
Kenneth N. Kripke, Denver, Colo. (Robert E. McLean, Denver, Colo., on the brief), for appellants.
Ben Shantz, Silver City, N. M. (William A. Ziegler, Jr., New York City, on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
HUXMAN, Circuit Judge.
1
This is an action under the Fair Labor Standards Act of 1938, as amended,1 to recover unpaid minimum wages, unpaid overtime compensation, liquidated damages, attorneys' fees and costs from the Kennecott Copper Corporation, herein referred to as Kennecott. Trial was had to the court. It made detailed findings of fact, conclusions of law, and rendered judgment based thereon for the defendant.
2
At the outset, we wish to commend the attorneys for both parties for the briefs they have filed in this case. The briefs are concise, yet clear and exhaustive. They cite, marshal and analyze all pertinent authorities in a readily understandable manner, yet appellants' brief covers only 37 pages and appellee's brief only 27 pages.
3
There is no disputed issue of fact. The sole question is the permissible legal inferences that flow therefrom. The facts may briefly be summarized as follows: Kennecott is engaged in commerce in the mining and processing of copper ore from an open pit copper mine at Santa Rita, New Mexico. It also operates a smelter and refinery at Hurley, New Mexico, which combined operation is known as its Chino Mines Division.
4
In connection with this operation at Santa Rita, New Mexico, it has for many years maintained a company-owned and operated hospital located at the rim of its open pit at Santa Rita. All the plaintiffs, the appellants herein, are presently, or have been in the two years prior to the bringing of this action, employed in various capacities in connection with the operation of the hospital. None of them has been paid the minimum wage required by the Act for employees covered thereby. The amounts of under-payment and the amounts due them in the event the Act applies to their activities were stipulated and are not in dispute.
5
The trial court found that the maintenance of the hospital was a semi-public operation; that caring for patients consisting of the general public and members of mining company employees' families constituted approximately eighty per cent of its operation and that only twenty per cent of its operation consisted in caring for employees; that the operation of the hospital was not an integral part of Kennecott's mining business; that all other mining companies operated in the same area as defendant without maintaining hospitals; that Kennecott for some years has planned to discontinue the operation of its hospital and at the present time has definite plans to discontinue such operation in the near future; that there were ample hospital facilities in the area to care for defendant's employees and the general public, without the maintenance of its hospital at Santa Rita; that there was no interchange of employees between the operation of the hospital and the operation of the mine, mill and smelter; that the chief surgeon and the other doctors on the staff of the hospital are paid a salary by defendant but also engage in independent practice of their profession; that the employment of the plaintiffs at the hospital was employment in a retail or service establishment; that the services rendered at the hospital were rendered entirely within the State of New Mexico and to the ultimate consumer and not for resale; and that less than five per cent of the patients cared for in the hospital came from outside the State of New Mexico.
6
Based upon these findings, the court concluded as a matter of law that the employees, the plaintiffs and each of them, were not engaged in commerce or in the production of goods for commerce and were thus not covered by the Fair Labor Standards Act; that such employees were employed in a retail or service establishment and such employment was exempt from the provisions of the Fair Labor Standards Act; that the failure of Kennecott to pay plaintiffs minimum wages and overtime compensation under the Fair Labor Standards Act was in good faith. Based upon these findings and conclusions, the court rendered its judgment that plaintiffs take nothing and that Kennecott have and recover its costs.
7
It is clear that appellants are not directly engaged in commerce or in work for the production, processing or sale of goods in commerce. It is contended, however, that their work is so closely related to the production of goods for commerce and so essential thereto as to place them in a "closely related process or occupation directly essential to the production" of goods for commerce.
8
As pointed out by Mr. Justice Frankfurter in the early case of 10 East 40th Street Building, Inc., v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 1228, 89 L.Ed. 1806, no hard or fast rule can be laid down to determine what constitutes engaging in commerce or the production of goods for commerce, and that in the application of the Act it would be necessary to draw lines from case to case and "inevitably nice lines." Because each case must stand upon its own facts, decided cases are seldom determinative and are of value only by analogy when the facts are somewhat similar. No definite lines can be drawn. We finally come to a place where, considering the objectiveness of the Act, we must say, "This case falls within the Act but this case is beyond the scope thereof."
9
The official interpretations of the Administrator of the Wage and Hour Act clearly show that exact standards and definitions are not possible. Thus 29 C.F.R. § 776.18(a) contains illustrations of facts falling within and without the Act. It is there stated that employees engaged in a restaurant "to provide a convenient means of meeting personal needs of his employees" are not within the Act and that such employees are not engaged in work closely related and directly essential to the production of goods for commerce; and "Similarly, employees of the producer or of an independent employer who are engaged only in maintaining company facilities for entertaining the employer's customers, or in providing food, refreshments, or recreational facilities, including restaurants, cafeterias and snack bars, for the producer's employees in a factory * * * would not be doing work `directly essential' to the production of goods for commerce."
10
Apparently no case involving employees of a company owned hospital has come before the courts. The cases nearest in point are those involving restaurant employees and cooks employed in feeding employees engaged in commerce or the production of goods for commerce. Appellants cite a number of cases in which such employees were held to be covered by the Act.2 Most of these cases arose prior to the amendment of Section 203(j) of the Act in 1949. By that amendment the word "necessary" was dropped from the Act and the words "in any closely related process" were added, making the section read "or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." We think it is clear from the legislative history that this amendment was to restrict coverage with respect to such employees. The conference report, H.R. Rep.No.1453, 81st Cong., 1st Sess., Oct. 17, 1949, W.H.M. 6:607, states, "The courts have also held the act applicable to employees engaged in maintaining and repairing private homes and dwellings where such homes and dwellings are being leased by interstate producers to their employees. Coverage of the Act has also been extended to employees of an individually owned and operated restaurant located in a factory. McComb v. Factory Stores [Co.] D.C.N.D.Ohio 1948, 81 F.Supp. 403."
11
"Under the bill as agreed to in conference an employee will not be covered unless he is shown to have a closer and more direct relationship to the producing, manufacturing, etc., activity than was true in the above-cited cases."
12
Clearly this amendment was intended to eliminate marginal employees who under the decisions of the courts had heretofore been included. But even under the Act prior to its amendment in 1949, we think the decision of the trial court was correct. In all the cases in which the courts have held that employees, such as restaurant employees or employees engaged in maintaining housing facilities for employees engaged in commerce or the production of goods for commerce were under the Act, there were present unusual conditions which caused the courts to conclude that the Act applied. The services furnished could not be obtained unless the employer furnished them and without them the work of the employees engaged in commerce could not have been carried on.
13
Such was not the situation with respect to hospital facilities for Kennecott employees. Other mining companies in the vicinity did not maintain such facilities and were able to conduct their interstate commerce activities unimpaired. The operation of this hospital is a semi-public business. It cares for patients from the general public and for member patients of the employees' families. The doctors staffing the hospital devote only part of their time to the hospital and on the side engage generally in the practice of their profession. In fact, only twenty per cent of the hospital's patients were employees and eighty per cent were either members of employees' families or patients from the general public. It is also without dispute that there are available in the near vicinity adequate hospital facilities where employees may receive medical and hospital care. Under these circumstances, there is no such pressing need that the company furnish these services in order to carry on its operations in commerce as will bring these employees within the ambit of the Act, and that we think was so even under the Act before its amendment in 1949.
14
We think the court correctly concluded that these employees were not covered by the Act. This conclusion fully disposes of the case and makes unnecessary a consideration of the remaining assignments of error.
15
Affirmed.
Notes:
1
29 U.S.C.A. § 201 et seq
2
Hawkins v. E. I. DuPont de Nemours & Co., 4 Cir., 192 F.2d 294; Ikola v. Snoqualmie Falls Lumber Co., 1 WH Cases 1073 (1941); McComb v. Factory Stores Co. of Cleveland, D.C., 81 F.Supp. 403 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/7023693/ | PRESIDING JUSTICE BUCKLEY delivered the opinion of the court: The mayor’s License Commission of the City of Chicago (the Commission) suspended the hotel/motel license of the licensee, Hyo K. Cha (petitioner), for the premises located at 5440 North Sheridan Road in Chicago, Illinois, known as the Lakeside Motel (Lakeside). The 15-day suspension order as to transient guests was based upon the Commission’s finding that petitioner knowingly permitted Lakeside to be used for purposes of prostitution, violative of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 17(a)). Petitioner subsequently filed a petition for writ of certiorari in the circuit court of Cook County, alleging that the Commission’s final order was against the manifest weight of the evidence. The circuit court affirmed the Commission’s finding, and thereafter petitioner filed the instant appeal. We affirm. The following testimony was adduced at the Commission’s hearing, despite petitioner’s numerous hearsay objections throughout the proceedings: Chicago police officer Arthur Smith testified that he was approached by Rachelle Plummer to engage in a sexual act with her for $35. Smith agreed to the $35 fee, and Plummer suggested they proceed to Lakeside, where she had an “arrangement.” Smith testified that upon their arrival at the motel, he observed petitioner in the office and informed petitioner that he was carrying a large sum of money and that he was “paying a prostitute $35.” He asked petitioner “if this whore was safe to be with.” Petitioner responded that she was okay, and that he had never had any trouble with her before. Petitioner also told him that he would have to come up with an additional $31.50 for the next day’s rent for Plummer. After Smith tendered petitioner $31.50, Plummer objected, stating, “That’s not our deal. Our deal is that I pay you after I turn a trick like I always have.” Smith further testified that once he and Plummer entered the motel room, Plummer telephoned the front desk, at which time she told Smith that she was calling an individual for some “smoke.” Upon reaching petitioner, she gave petitioner the telephone number to dial because the only means by which a motel guest at Lakeside could obtain an outside telephone line was through the motel’s switchboard. Approximately five minutes later, the telephone rang, and Plummer answered it and turned to Smith and stated, “[I]t’s him at the front desk. He’s saying there is a policeman in front and we cannot leave the room.” After hanging up the telephone and five minutes later, Plum-mer telephoned the front desk and inquired into whether the delivery of marijuana had arrived. She then asked that petitioner dial the drug dealer’s telephone number again. Smith was able to hear the conversation because Plummer, who was standing three feet away from him, turned the receiver towards Smith, but he did not recognize the voice on the other end of the telephone. The voice on the other end of the telephone asked Plummer, “[D]id you make sure that no one was following you?” to which Plummer replied that “I did exactly as you told me.” The voice also asked her whether “the policemen [could] have followed [her].” She informed Smith that “it’s just [petitioner] *** being worried that the police are going to get the both of us.” The telephone rang again, and Plummer told Smith that “it’s the gentleman from the front office.” Petitioner instructed her not to leave the room because the police officer was parked directly in front of the motel. Smith suggested to Plummer that, since the marijuana had not yet arrived, perhaps he and Plummer should go directly to the drug dealer. As Smith and Plummer exited the motel room, petitioner was motioning to Plummer to go back into the room. Smith then identified himself as a police officer and arrested Plummer and petitioner. Plummer testified that she is a prostitute and has an “arrangement” with petitioner which permits her and some 20 other prostitutes to work at Lakeside. If a prostitute does not have money to pay for a motel room, petitioner gives her a room at the motel. When the prostitutes bring their “dates” to the motel, the date must pay the petitioner the motel room rental fee. Plummer never personally gave petitioner money for a room because he charges the “guys” the rental fee up front before he rents them a room. This business relationship with petitioner began in January 1987, and since that time Plummer has brought 25 or 30 dates to the motel. Plummer testified to the events that occurred in the motel room on April 16, 1987, consistent with Smith’s testimony set forth above. On cross-examination, she testified that she approached Smith at Winona Avenue, approximately three blocks from Lakeside, and offered to have sex with him for $35, and Smith gave her $100. Smith did not arrest her at that time. She identified and acknowledged her signature on a registration “sign-in” card for Lakeside, which states “I HEREBY CERTIFY THAT I HAVE NOT RENTED THIS ROOM FOR ANY ILLEGAL PURPOSE: GAMBLING, PROSTITUTION OR SOLICITATION OF OTHERS.” Petitioner testified that he was unaware that Plummer was a prostitute when he rented her the motel room. He further testified that he rented the room to Plummer for the period from April 13, 1987, to April 16, 1987, but later testified that Plummer had remained in her room for three weeks and that he thought she was very sick. Petitioner testified as follows to the April 16, 1987, events: Plum-mer arrived on April 16, 1987, with Smith and attempted to proceed to her motel room without paying. Smith paid for the motel room, and Plummer and Smith left together. He did not observe them proceed to the room, but he telephoned Plummer’s motel room and informed her that since the registration card was solely in her name, two people could not occupy the motel room. He telephoned Plummer twice more to notify her of this policy prior to her arrest. In considering petitioner’s contentions on appeal, we are mindful of the well-established principles of administrative review that the agency’s findings and conclusions are prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3—110; see also Russell v. License Appeal Comm’n (1971), 133 Ill. App. 2d 594, 598, 273 N.E.2d 650, 653) and that a reviewing court is limited to ascertaining whether the findings and decisions of the agency are against the manifest weight of the evidence (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745; Kessell v. Illinois Liquor Comm’n (1978), 56 Ill. App. 3d 485, 371 N.E.2d 1210; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814 (and cases cited therein); see also Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44; Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110). A finding is against the manifest weight of the evidence if an opposite conclusion is clearly evident (Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351; Meyers v. Illinois Department of Public Aid (1983), 114 Ill. App. 3d 288, 448 N.E.2d 1176; Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366), and, if the issue is merely one of conflicting testimony and credibility of witnesses, the agency’s determination should be sustained. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190; Schoenbeck v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 366, 387 N.E.2d 738. Initially, petitioner asserts that the Commission’s finding of suspension failed to set forth a specific basis for suspending his license. A review of the record leads us to the conclusion that a sufficient basis was given for suspending petitioner’s license. The Commission clearly set forth section 11 — 17(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 17(a)) as a basis for suspending petitioner’s license in its “Order of Suspension.” The order states the following, in pertinent part: “1. That on April 16, 1987, the Licensee, Hyo Kil Cha, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for purposes of prostitution, contrary to Chap. 38, §11 — 17(a), I.R.S. (1983).” We believe that petitioner’s assertion is not well-grounded in fact, as the record dictates to the contrary. Petitioner also argues that the record is devoid of any evidence supporting the charge that he knowingly arranged or offered to arrange a meeting of persons for purposes of prostitution, violative of section 11 — 15(a)(2) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 11— 15(a)(2)). No mention is made of section 11 — 15(a)(2) in the “Order of Suspension.” Hence, we need not address this argument, as section 11 — 15(a)(2) was not the basis for the suspension here. Petitioner next contends that the Commission’s finding cannot stand because it was based upon inadmissible hearsay testimony. He argues that the Commission improperly admitted portions of Officer Smith’s testimony, wherein Smith testified to conversations he had with Plummer, which was the only evidence supportive of the Commission’s decision to suspend petitioner’s license. While we acknowledge that hearsay testimony is inadmissible in an administrative hearing (Russell v. License Appeal Comm’n (1971), 133 Ill. App. 2d 594, 598, 273 N.E.2d 650, 653), this does not prevent a finding to be based upon other sufficient competent evidence (La Grange State Bank No. 1713 v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 481, 398 N.E.2d 992, 998; Schwartz v. Civil Service Comm’n (1954), 1 Ill. App. 2d 522, 527, 117 N.E.2d 874, 876). We find it unnecessary to address whether the testimony referred to by petitioner was improperly admitted here because the record demonstrates that even without this testimony, sufficient competent evidence was presented to support the Commission’s finding that petitioner knowingly permitted the licensed premises to be utilized for purposes of prostitution. The unchallenged evidence indicated that Plummer was a prostitute and offered to have sex with Smith for $35. She had a business “arrangement” with petitioner, which entitled her and other prostitutes to “work out of [petitioner’s] motel.” Smith informed petitioner that he was paying Plummer $35 to have sex with him. He tendered $31.50 to petitioner for the motel room, and petitioner accepted the money. Petitioner, however, argues that the registration “sign-in” card demonstrates Plummer’s intent not to use the motel premises for acts of prostitution because it shows that petitioner did not knowingly permit Lakeside to be utilized for purposes of prostitution. In light of the above evidence, we find this piece of evidence unpersuasive. Plum-mer’s signature was a mere formality to her obtaining the motel room and presumably petitioner’s maintenance of proper business records. Plummer’s and petitioner’s real intent is more properly extracted from the testimony given at the hearing. Moreover, it is wholly within the Commission’s authority to assess the credibility of the witnesses, weigh the evidence, and to reconcile conflicting evidence (Kessell, 56 Ill. App. 3d at 491, 371 N.E.2d at 1214; see also Nechi v. Daley (1963), 40 Ill. App. 2d 326, 188 N.E.2d 243), and we will not substitute our judgment for that of the Commission (see Stringer v. Rowe (1980), 91 Ill. App. 3d 134, 414 N.E.2d 466; Canady v. Northern Illinois Gas Co. (1963), 43 Ill. App. 2d 112, 193 N.E.2d 48). Accordingly, we find that the circuit court of Cook County correctly determined that the finding of the Commission to suspend petitioner’s license for a 150-day period as to transient guests was not against the manifest weight of the evidence, as an opposite conclusion is not plainly evident. Affirmed. O’CONNOR and MANNING, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1291123/ | 698 N.W.2d 397 (2005)
472 Mich. 899-924
PEOPLE
v.
REED.
No. 127520.
Supreme Court of Michigan.
June 28, 2005.
SC: 127520, COA: 249571.
On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2103275/ | 309 S.W.3d 872 (2010)
John KENNETT, Appellant,
v.
GRAHAM PACKAGING COMPANY and
Division of Employment Security, Respondents.
No. ED 93842.
Missouri Court of Appeals, Eastern District, Division Three.
May 11, 2010.
John J. Ammann, Jason B. Going, Saint Louis University Law Clinic, Saint Louis, MO, for Appellant.
Ninion S. Riley, Jefferson City, MO, for Respondent Division of Employment Security.
Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
ORDER
PER CURIAM.
John Kennett ("Claimant") appeals the decision of the Labor and Industrial Relations Commission affirming and adopting the decision of the Appeals Tribunal denying Claimant unemployment benefits. We find that the Commission did not err in affirming and adopting the decision of the Appeals Tribunal. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The decision is affirmed under Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/415951/ | 703 F.2d 563
Langfordv.Anderson
81-1384
UNITED STATES COURT OF APPEALS Sixth Circuit
5/4/82
1
E.D.Mich.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/817987/ | 752 F.Supp.2d 1353 (2011)
PEER BEARING COMPANY-CHANGSHAN, Plaintiff,
v.
UNITED STATES, Defendant, and
The Timken Company, Defendant-Intervenor.
Slip Op. 11-11. Court No. 09-00052.
United States Court of International Trade.
January 28, 2011.
*1356 Arent Fox LLP, Washington, DC (John M. Gurley, Diana Dimitriuc Quaia, and Matthew L. Kanna) for plaintiff.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (L. Misha Preheim); Joanna V. Theiss, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.
Stewart and Stewart, Washington, DC (Terence P. Stewart, William A. Fennell, Nazakhtar Nikakhtar, and Geert M. De Prest) for defendant-intervenor.
OPINION AND ORDER
STANCEU, Judge.
Plaintiff Peer Bearing Company-Changshan ("CPZ") contests a final determination ("Final Results") of the International Trade Administration, United States Department of Commerce ("Commerce" or the "Department"), in the twentieth periodic administrative review of an antidumping duty order on tapered roller bearings and parts thereof ("subject merchandise") from the People's Republic of China ("PRC" or "China"). Compl. ¶ 1; Tapered Roller Bearings & Parts Thereof, Finished & Unfinished, From the People's Republic of China: Final Results of Antidumping Duty Admin. Review, 74 Fed.Reg. 3,987 (Jan. 22, 2009) ("Final Results").[1] Commerce *1357 assigned CPZ a 92.84% dumping margin in the Final Results, based on U.S. prices for subject merchandise made by CPZ that Commerce, in the absence of record data on sales transactions between CPZ and an unaffiliated importer in the United States, determined according to "facts otherwise available." Final Results, 74 Fed.Reg. at 3,989; Issues & Decisions Mem., A-570-601, ARP 1-09, at 2 (Jan. 13, 2009) (Admin.R.Doc. No. 5486), available at http://ia.ita.doc.gov/frn/summary/PRC/E 9-1219-1.pdf ("Decision Mem."). CPZ challenges this margin, arguing, inter alia, that Commerce unlawfully determined the U.S. prices according to facts otherwise available instead of opening the record to gather data to determine actual export prices or using data already on the record to determine CPZ's margin based on constructed export prices. Compl. ¶¶ 29-31; Pl.'s Mem. of Points & Authorities in Supp. of its Mot. for J. on the Agency R. 10-27 ("Pl.'s Mem.").
The issue of whether the U.S. prices should have been determined on an export price ("EP") basis or a constructed export price ("CEP") basis arose because CPZ sold subject merchandise to an unaffiliated U.S. importer that sold the merchandise to CPZ's U.S. affiliate, Peer Bearing Company ("Peer"), which sold to unaffiliated U.S. customers. Compl. ¶¶ 14, 30. The record contained almost no data on CPZ's sales to the U.S. importer because Commerce, contrary to the position taken by defendant-intervenor The Timken Company ("Timken") during the review, declined to make a request for these data during the review. CPZ seeks a remand instructing Commerce to "recalculate Plaintiff's antidumping duty margin using the constructed export price methodology...." Pl.'s Rule 56.2 Mot. for J. upon the Agency R. 2 ("Pl.'s Mot.").
CPZ also challenges several of the surrogate values that Commerce chose when determining the normal value of CPZ's merchandise according to the methodology Commerce applies when the subject merchandise is produced in a non-market economy country such as the PRC. Compl. ¶¶ 33-37. CPZ seeks a remand instructing Commerce to recalculate the surrogate value for "steel wire input using a non-aberrational import value," for "the steel bar input in order to remove aberrational import values," and for the "steel scrap inputs consistent with Commerce's practice in previous administrative review[s] and in the preliminary results of the review under appeal." Pl.'s Mot. 2.
Before the court is plaintiff's motion, made under USCIT Rule 56.2, for judgment upon the agency record, which is opposed by defendant and Timken, the petitioner in the investigation resulting in the antidumping duty order. The court concludes that Commerce, in assigning CPZ a dumping margin in the Final Results, based its U.S. price determinations on CEP starting prices, adjusted those starting prices according to a method the antidumping statute does not authorize, and incorrectly concluded that it had determined U.S. prices on an EP basis. The court further concludes that the surrogate values for steel wire rod, steel bar, and steel scrap from the production of cages were not determined according to law. The court orders a remand for correction of these errors.
*1358 I. BACKGROUND
Commerce issued the antidumping duty order on tapered roller bearings and parts thereof from China in 1987. Antidumping Duty Order; Tapered Roller Bearings & Parts Thereof, Finished or Unfinished, From the People's Republic of China, 52 Fed.Reg. 22,667 (June 15, 1987). On June 1, 2007, Commerce invited parties to request an administrative review of the entries of subject merchandise made during the period June 1, 2006 to May 31, 2007 (the "period of review" or "POR"). Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Admin. Review, 72 Fed.Reg. 30,542, 30,543 (June 1, 2007). On June 29, 2007, plaintiff requested that Commerce review entries of its subject merchandise. Letter from CPZ to Asst. Sec'y for Import Admin. (June 29, 2007) (Admin.R.Doc. No. 5323). On July 26, 2007, Commerce initiated the review at issue in this case. Initiation of Antidumping & Countervailing Duty Admin. Reviews & Request for Revocation in Part, 72 Fed.Reg. 41,057, 41,058 (July 26, 2007).
In the preliminary results of the review ("Preliminary Results"), Commerce assigned CPZ a preliminary margin of 59.41% using a constructed export price methodology. Tapered Roller Bearings & Parts Thereof, Finished & Unfinished, from the People's Republic of China: Prelim. Results of Antidumping Duty Admin. Review, 73 Fed.Reg. 41,033, 41,037, 41,039 (July 17, 2008) ("Prelim.Results"). In the Final Results, Commerce changed its position on the determination of U.S. prices of CPZ's subject merchandise, choosing instead to calculate dumping margins on an "export price basis" that relied on "facts otherwise available." Decision Mem. 2. The Final Results assigned CPZ a margin of 92.84%. Final Results, 74 Fed.Reg. at 3,989.
A. Commerce's Calculation of CPZ's Dumping Margin Using Facts Otherwise Available
CPZ's response to Commerce's antidumping questionnaire stated that Peer "sold the subject merchandise to the first unaffiliated U.S. customers and thus the constructed export price ('CEP') methodology should be used for reporting CPZ's U.S. sales." Pl.'s Mem. 5. CPZ reported to Commerce the prices paid by unaffiliated customers to Peer but not the prices paid by the unaffiliated U.S. importer to CPZ. Compl. ¶¶ 14, 30. Commerce did not inform CPZ that CPZ's submission was deficient.
On April 2, 2008, Commerce issued supplemental questionnaires, to which CPZ filed responses on April 29, 2008. Prelim. Results, 73 Fed.Reg. at 41,033. CPZ responded to Commerce's request for evidence of price negotiations between CPZ and its importer by stating that "Peer issues a purchase order to [the unaffiliated importer] and copies CPZ." Def.'s Opp'n to Pl.'s Mot. for J. upon the Agency R. 4 ("Def.'s Opp'n"). This purchase order, according to CPZ, contained the "agreed upon price between CPZ and the importer of record...." Id. In commenting on CPZ's questionnaire responses, Timken advocated that Commerce require CPZ to report data on its sales to the importer so that Commerce could calculate CPZ's margin on an export price basis. Letter from Timken to the Sec'y of Commerce 2-3 (Nov. 15, 2007) (Admin.R.Doc. No. 5354). Despite the supplemental questionnaire responses, and rejecting the request of Timken, Commerce declined to request that CPZ submit data on the transactions between CPZ and its unaffiliated importer.
In the Preliminary Results, Commerce stated that it "calculated CEP for CPZ based on delivered prices to unaffiliated purchasers in the United States." Prelim. *1359 Results, 73 Fed.Reg. at 41,037 ("In accordance with Section 772(b) of the Act, we used CEP for CPZ's sales where CPZ sold subject merchandise to its affiliated company in the United States, which in turn sold subject merchandise to unaffiliated U.S. customers."). On January 22, 2009, Commerce published the Final Results, which stated that "[w]e have treated CPZ's sale to the importer as the relevant sale for calculating dumping margins, and have calculated the margins on an export price basis." Final Results, 74 Fed.Reg. at 3,988. In an issues and decisions memorandum ("Decision Memorandum") incorporated by reference in the Final Results, Commerce stated a finding that "sales prices from CPZ to its importer for all transactions during the POR are not on the record of this review" and announced its decision, pursuant to section 776(a) of the Tariff Act of 1930 ("Tariff Act" or the "Act"), 19 U.S.C. § 1677e(a) (2006), to use facts otherwise available to calculate the U.S. prices. Decision Mem. 2; Final Results, 74 Fed.Reg. at 3,988. Noting the confidential nature of the matter, the Decision Memorandum referred to more detailed discussion in an internal memorandum to the file, to which Commerce referred as the "Analysis Memo." Decision Mem. 2 n. 1 (citing Mem. from Int'l Trade Compliance Analyst, AD/CVD Operations Office 8, to the file (Jan. 13, 2009) (Admin.R.Doc. No. 5482) ("Analysis Mem.")).
The record contained a small number of sample purchase orders pertaining to sales transactions between CPZ and the unaffiliated importer. See Analysis Mem. 2. The sales data in the purchase orders accounted for fewer than 1% of the sales transactions between CPZ and the unaffiliated importer and only a small fraction of CPZ's models of subject merchandise. See id. attachment 2; Pl.'s Mem. 25-26. The Analysis Memo stated that Commerce, to estimate CPZ's export prices for all other transactions, would modify the price that CPZ reported for transactions between Peer and the ultimate customer using a factor derived from the relationship between the purchase order data and the sales data for the corresponding models contained in CPZ's responses to Commerce's questionnaires. Id. at 7. The Analysis Memo, the Decision Memorandum, and the signed, pre-publication version of the Final Results are dated the same day, January 13, 2009. As shown by the record documentation, that date is the date on which the administrative review was concluded.
B. Commerce's Choices of Surrogate Values for Steel Wire Rod, Steel Bar, and Steel Scrap
On July 17, 2008, Commerce announced in the Preliminary Results that it would apply the non-market economy factors of production method to calculate the normal value of CPZ's subject merchandise.[2]Prelim. Results, 73 Fed.Reg. at 41,033-34. Commerce identified several potential surrogate countries it determined to be at a similar level of economic development to that of China and chose India as the surrogate country. Id. at 41,034. In the Preliminary Results and Final Results, Commerce used average entered values in import data for India to value bearing-quality alloy steel wire rod, bearing-quality alloy steel bar, scrap from production of rollers and rings, and scrap from production of cages.[3]See Mem. from Case Analyst *1360 to the file 3 (June 30, 2008) (Admin.R.Doc. No. 5408) ("Prelim. Factor Valuation Mem."); Mem. from Case Analysts to file attachment 1 (Jan. 13, 2009) (Admin.R.Doc. No. 5484) ("Final Factor Valuation Mem."). The source of Commerce's Indian import data was the online World Trade Atlas ("WTA"), a source that uses data provided by national governments. Prelim. Results, 73 Fed.Reg. at 41,037-38.
Plaintiff initiated this action on February 4, 2009. Summons; Compl. On July 13, 2009, CPZ moved for judgment upon the agency record pursuant to USCIT Rule 56.2. Pl.'s Mot. Defendant and defendant-intervenor oppose this motion. Def.'s Opp'n; Def.-Intervenor The Timken Co.'s Opp'n to Mot. for J. on the Agency R. of Pl. Peer Bearing Co.-Changshan ("Def.Intervenor's Opp'n"). The court held oral argument on March 4, 2010.
II. DISCUSSION
The court exercises subject matter jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006). Under the applicable standard of review, the court must hold unlawful any determination, finding, or conclusion found to be unsupported by substantial evidence on the record or otherwise not in accordance with law. Tariff Act, § 516A(b)(1)(B)(i), 19 U.S.C. § 1516a(b)(1)(B)(i).
A. Commerce's Determination of U.S. Prices Was Contrary to Law
CPZ claims that Commerce's determination of CPZ's dumping margin without using constructed export prices was unlawful. Pl.'s Mem. 10-27. According to CPZ, Commerce, having chosen to calculate the U.S. prices of CPZ's subject merchandise on an export price basis, "was obligated to solicit additional information from CPZ to supplement/correct the record" instead of using facts otherwise available. Id. at 11. CPZ argues that "the adjusted prices that Commerce used as a proxy for CPZ's U.S. sales prices were based on an arbitrary methodology, for which Commerce offered no explanation." Id. at 27.
Commerce stated in the Final Results that "[w]e have treated CPZ's sale to the importer as the relevant sale for calculating dumping margins, and have calculated the margins on an export price basis." Final Results, 74 Fed.Reg. at 3,988. The Final Results do not contain further discussion on the Department's calculation of U.S. prices. In a single paragraph directed to the issue, the Decision Memorandum describes two findings, the first of which appears to be both a finding and a conclusion: "[w]e agree with Timken, and find that the relevant U.S. sales prices for purposes of calculating CPZ's dumping margin are CPZ's sales to the importer, rather than the sales prices from CPZ's U.S. affiliate to unaffiliated customers." Decision Mem. 2. Commerce then states as a finding that "[t]hough Timken in its case brief requested that the Department collect the necessary sales data, the sales prices from CPZ to its importer for all transactions during the POR are not on the record of this review." Id. The latter finding is correct and is, in fact, an understatement: due to the Department's having rejected Timken's comment that Commerce should request export price data from CPZ, the record contained price data on fewer than 1% of the sales transactions between CPZ *1361 and the unaffiliated importer, covering only a small fraction of CPZ's models of subject merchandise. See Analysis Mem. attachment 2; Pl.'s Mem. 25-26.
Invoking the "facts otherwise available" authority provided in section 776(a)(1) of the Tariff Act, 19 U.S.C. § 1677e(a)(1), the paragraph in the Decision Memorandum then sets forth the determination at issue here: "[a]s facts available, in order to calculate CPZ's U.S. prices on an EP basis, rather than a constructed export price basis, we will derive a ratio, based on the sales documentation on the record demonstrating the prices between parties, to apply to CPZ's reported U.S. sales." Decision Mem. 2-3 (emphasis added) (footnote omitted). The court concludes that this determination is contrary to law. The calculation of CPZ's U.S. prices was not, as Commerce characterized it in the Final Results and Decision Memorandum, performed on an export price basis. See id. at 2. Commerce calculated U.S. prices using the CEP starting prices (the prices by which the merchandise was sold by Peer to the unaffiliated customers), rather than EP starting prices (which, with very few exceptions, it did not have), and proceeded to apply its own method of adjusting the CEP starting prices, a method at variance with the method of adjusting CEP starting prices that the Act requires. Commerce thereby determined the U.S. prices by a method conforming neither to the statutory requirements for determining export price nor to those for determining constructed export price. That method also failed to fulfill the statutory purpose of the review, which was to determine whether, and to what extent, the U.S. prices at which the subject merchandise was sold were below normal value. Because Commerce chose its "facts otherwise available" on the erroneous premise that in applying those facts it was determining U.S. prices on an export price basis, and because the U.S. "prices" Commerce determined had no meaningful relationship to the prices at which the subject merchandise actually was sold, the determination of U.S. prices in the review must be set aside as contrary to law. The court addresses these points in further detail below.
1. Contrary to its Characterization in the Final Results and in the Decision Memorandum, Commerce Did Not Determine U.S. Prices on an "Export Price Basis"
Commerce, until the conclusion of the review, analyzed the U.S. sales of CPZ's merchandise according to a constructed export price methodology and collected questionnaire data accordingly. See Prelim. Results, 73 Fed.Reg. at 41,037. The record shows that the Department decided to change its method of determining the U.S. prices at or near the end of the review (apparently on the last day of the review). Final Results, 74 Fed.Reg. at 3,989; Decision Mem. 2. Commerce then sought to determine U.S. prices on an export price basis, using "facts otherwise available," and concluded, contrary to law, that it had done so. Decision Mem. 2.
Commerce's method of adjusting the CEP starting prices in pursuit of an EP methodology is shown in an attachment to the Analysis Memo. Analysis Mem. attachment 2. Commerce adjusted all of the CEP starting prices in the review by a percentage that substantially reduced those prices. It derived that percentage by taking a simple average of two other percentages. Commerce derived each of those other percentages from a small number of sales of a single product code, i.e., an individual bearing part number. For each of the two part numbers, Commerce divided the price for that part number, as shown on an invoice in the sale from CPZ to the unaffiliated importer, by a simple average of the prices for the same part *1362 number that are shown on an invoice in the sale from Peer to the unaffiliated customer. Id. at 7. Commerce explained that "[b]ecause we are no longer calculating U.S. net price on a CEP basis, we will not deduct the selling expenses related to activity incurred in the United States." Id. at 6.
Even though Commerce's method of adjusting the CEP starting prices bore some mathematical relationship to a handful of prices in transactions between CPZ and the unaffiliated importer, the numerical results of Commerce's resort to what it termed "facts otherwise available" in no way qualify as "export prices." Had it actually determined U.S. price on an export price basis, Commerce would have been required by section 772(a) of the Act to use as Court No. 09-00052 Page 12 the "starting price,"[4]i.e., the price of the subject merchandise prior to the Department's making the required adjustments, "the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States. . . ." Tariff Act, § 772(a), 19 U.S.C. § 1677a(a) (emphasis added). Commerce could not do so because, except for an extremely small number of transactions, the prices at which CPZ sold the subject merchandise to the unaffiliated importer were not on the record. The absence of data necessary for determining U.S. prices on an export price basis for the vast majority of U.S. sales was the consequence of the Department's earlier decision, made contrary to the comments of Timken, not to request from CPZ the information underlying CPZ's sales to the unaffiliated importer. In the absence of those price data, Commerce, for almost all sales transactions in the review, determined the U.S. prices by making adjustments, of its own design, to the prices at which Peer sold the subject merchandise to unaffiliated customers in the United States. See Analysis Mem. 7 & attachment 2. These are the same prices that Commerce would have been required to use in determining constructed export prices in the Final Results had it adhered to a constructed export price methodology in the review. See 19 U.S.C. § 1677a(b). Because Commerce based its determinations of U.S. price on the CEP starting price and not the EP starting price, it was erroneous for Commerce to characterize its basis for determining the U.S. prices, and CPZ's margin, as an "export price" basis.
2. Commerce Determined the U.S. Prices of CPZ's Subject Merchandise According to a Method that the Act Does Not Authorize
Section 751(a)(2)(A) of the Tariff Act directs generally that the dumping margins for each entry of subject merchandise in the review be determined according to the "export price" or the "constructed export price," 19 U.S.C. § 1675(a)(2)(A), and provides, in section 772 of the Act, statutory definitions for these terms, 19 U.S.C. § 1677a. In those definitions, the statute specifies a different starting price for the export price determination than it does for the constructed export price determination and thereby prohibits Commerce from determining export *1363 price from the CEP starting price. See id. § 1677a(a) (identifying as the EP starting price the price at which the subject merchandise is first sold "outside of the United States" to an unaffiliated purchaser), § 1677a(b) (identifying as the CEP starting price the price at which the merchandise is first sold "in the United States" to an unaffiliated purchaser). The statute also prohibits Commerce from determining constructed export price according to a method that uses adjustments different from the ones the statute prescribes for the determination of CEP. See id. § 1677a(d) (providing for the deduction of selling expenses incurred and profit realized on the sale of the subject merchandise in the United States). Commerce, therefore, determined the U.S. prices by a method that did not conform to the statute.
3. Commerce Chose "Facts Otherwise Available" that Were Impermissible under the Act
The Department's U.S. price calculations were not only inconsistent with any method of determining U.S. price authorized by the Act, they were also decidedly inferior to U.S. prices determined according to CEP. If the court were to assume, arguendo, that it was permissible for the Department to invoke its authority to use facts otherwise available in this case (an issue addressed later in this Opinion and Order), it still would conclude that the Department's choice of facts otherwise available in this case was impermissible. Commerce's conclusion, made at or near the completion of the review, that it must determine U.S. prices on an EP basis required it, in effect, to do the impossible: base its U.S. price determinations on starting prices that, with a few insignificant exceptions, it did not have. In this case, the only statutorily permissible "facts otherwise available" on the record that may be used to determine U.S. prices are the CEP starting prices, adjusted by the method the statute requires.
As the name implies, "constructed export price" is the method the statute uses to "construct," i.e., approximate as closely as possible, an export price when an affiliation between the buyer and foreign seller precludes the use, as an EP starting price, of the price in the transaction by which the subject merchandise was sold outside of the United States, prior to importation. The Statement of Administrative Action ("SAA") accompanying passage of the Uruguay Round Agreements Act confirms this essential point. The SAA explains that profit is deducted from the CEP starting price "consistent with the language of the Agreement," i.e., the Uruguay Round's Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 U.N.T.S. 201 (1994), "which reflects that constructed export price is now calculated to be, as closely as possible, a price corresponding to an export price between non-affiliated exporters and importers." Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, Vol. 1, at 823 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4163 ("SAA") (emphasis added). In essence, Commerce attempted to construct an export price using, as facts otherwise available, the same starting price as, but a different method of adjustment than, the method the statute requires for determining CEP. In contrast to the statutory CEP adjustments, Commerce's adjustments to the CEP starting prices, even if they might be characterized as based on "facts otherwise available," were not made based on information pertaining to the actual sales of subject merchandise that Peer made to the unaffiliated customers. Nor did these adjustments succeed in converting *1364 the CEP starting prices to anything resembling actual export prices. Commerce's adjustment method was based on a simple average of two resale markup percentages (each of which occurred through a series of two resale transactions) that were so different as to refute any inference that a standard markup percentage applied across all of CPZ's products in the review. As a result, the "U.S. prices" that emerged from the Department's calculation were the CEP starting prices in a form that was significantly distorted by the adjustment method Commerce chose. These calculations yielded a price that no longer bore any meaningful relationship to the price at which any specific roller bearings or parts were actually sold. The resulting price was not, in the words of the SAA, "as closely as possible, a price corresponding to an export price between non-affiliated exporters and importers." Id.
Commerce's choice of facts otherwise available does not fulfill the statutory purpose of remedying dumping, which is found to exist when the price at which subject merchandise is sold in the United States is less than normal value. See 19 U.S.C. §§ 1675(a)(2)(A), 1677(35)(A). Where, as here, Commerce attempts to conduct a periodic administrative review of calculated "export prices" that are not actual prices, and no adverse inference is appropriate because there was no failure of the respondent to cooperate, Commerce has failed to conduct a review that satisfies the basic requirement of the Act. See id. (requiring that dumping margins in a review be based on a comparison of export prices or constructed export prices with normal value). Commerce has considerable discretion in selecting "facts otherwise available," but the discretion 19 U.S.C. § 1677e(a) provides is not so broad as to allow Commerce to choose its arbitrary, and unauthorized, method of adjusting the CEP starting prices rather than the adjustment method the Act prescribes in 19 U.S.C. § 1677a(c)-(d) and thereby reach a result that fails to satisfy § 1675(a)(2)(A). Although the court accords to Commerce's constructions of the Act the deference required by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the court concludes in this case that Congress, in the plain language of the statute as well as the SAA, "has directly spoken to the precise question at issue," id. at 842, 104 S.Ct. 2778, in establishing the requirements by which Commerce must conduct an administrative review of an antidumping duty order. In summary, because Commerce based CPZ's margin on unlawfully-determined U.S. "prices" that were not prices at which subject merchandise was actually sold, the court must remand the Final Results and order that Commerce correct this fundamental error.
In support of its argument that Commerce acted lawfully in determining the U.S. prices, defendant relies in part on AK Steel Corp. v. United States, 226 F.3d 1361 (Fed.Cir.2000). Def.'s Opp'n 13-14. This reliance is misplaced. As discussed infra, AK Steel holds that "the plain language of the EP definition precludes classification of a sale between two U.S. entities (i.e., a U.S. affiliate of the producer and a U.S. purchaser) as an EP sale." AK Steel Corp., 226 F.3d at 1370. The case does not hold that Commerce may base U.S. prices on CEP starting prices that are adjusted by a method that does not conform to the provisions in the statute governing CEP.
4. On Remand, Commerce Will Not Be Confined to Determining the U.S. Prices on a CEP Basis if it Reopens the Record to Obtain Export Price Information
Plaintiff argues that the court should order Commerce on remand to determine *1365 the U.S. prices on a CEP basis, contending that this is required by 19 U.S.C. § 1677a(b) and Commerce's administrative practice.[5] Pl.'s Mot. 2, Proposed Order 1; Pl.'s Mem. 24-25. The court disagrees. Due to the importance of ensuring that U.S. price is determined by an appropriate method, the court concludes that Commerce, in the circumstances of this case, should not be precluded from reopening the record to obtain information that might allow it to determine the U.S. prices on an EP basis.
In support of its argument that the statute, in 19 U.S.C. § 1677a(b), requires that the CEP basis be used, plaintiff contests various findings of fact, as stated in the Analysis Memo, on which the Department concluded that an EP basis was appropriate.[6] Pl.'s Mem. 13-18. CPZ contends that the "sales process in this case is between two affiliated parties, CPZ and Peer, who set the terms of the sale" and that the sale made by CPZ to the unaffiliated importer "is not the relevant first sale to an unaffiliated party" because the merchandise in that sale was subsequently resold to Peer and CPZ had knowledge of that fact. Id. at 19. According to CPZ, "[a]ll the material terms of sale: price, quantity, specifications were established by Peer," which issued simultaneous purchase orders to CPZ and the importer. Id. at 15. CPZ argues that "[b]ecause a U.S. seller affiliated with the producer is involved in the U.S. sale process, the sales cannot be reported as EP sales." Id. at 19. It also argues that Commerce failed "to consider the fact that CPZ had knowledge of the final destination of the sales, the extent of Peer's involvement in the sales process and the fact that both CPZ and Peer treated these sales as affiliated party sales in their normal books and records." Id. at 18. Collectively, these arguments are essentially a contention that the "sales" between CPZ and the unaffiliated importer were not "sales" for purposes of determining U.S. prices, and that the real sales should be deemed to have occurred between CPZ and Peer.
Although CPZ points to some record evidence in support of its characterization of the "sales process," the current record *1366 evidence is not such that Commerce would be compelled to reach findings of fact in agreement with that characterization. The record also contains evidence that CPZ actually did sell the subject merchandise to the unaffiliated importer. Based in part on CPZ's own questionnaire response, Commerce found in the Analysis Memo that "[i]n this case, based upon the facts on the record, the subject merchandise is first sold before the date of importation by CPZ to an unaffiliated purchaser . . . in the United States." Analysis Mem. 3. Commerce observed in the Analysis Memo that CPZ stated in its questionnaire response that it sold the subject merchandise to an unaffiliated company in the United States and that Peer then resold the subject merchandise to the ultimate customer. Id. at 3-4. In its brief to the court, CPZ admits that "[d]uring the period of review CPZ made sales of TRBs [i.e., tapered roller bearings]" to the United States through the unaffiliated importer, who then sold to Peer. Pl.'s Mem. 17.
Under the applicable standard of review, it is, of course, possible that the same record could be found to contain substantial evidence for two opposite findings. In ordering a remand in this case, the court does not hold or imply that Commerce is bound by the factual findings it previously made in the Analysis Memo pertaining to the U.S. price issue. In addition to reopening the record to admit additional evidence, Commerce, on remand, also has the discretion to reconsider the record evidence, and its previous findings, bearing on the issue of an appropriate determination of U.S. prices. The current state of the record, upon which the Department reached factual conclusions on the nature of the sales between the various entities, is missing a large amount of information pertaining to the sales between CPZ and the unaffiliated importer.
If on remand Commerce reopens the record to collect export price information and decides that U.S. price cannot or should not be determined on a CEP basis, then it must include an explanation of its reasoning. In the context of this case, the reasoning would need to include specific findings of fact and relevant conclusions of law. The Final Results and Decision Memorandum do not include an adequate explanation on the question of the determination of U.S. prices, and the Analysis Memo, even if presumed to be incorporated by reference into the Decision Memorandum, also is wanting. In it, Commerce appears to have decided that it must determine the U.S. prices of CPZ's subject merchandise on an EP basis, rather than a CEP basis, because the first sale of the subject merchandise to an unaffiliated purchaser occurred outside of the United States, before the date of importation, when CPZ sold the merchandise to the unaffiliated importer. See Analysis Mem. 4 ("The record does not sufficiently support a conclusion that the first sale to an unaffiliated purchaser took place after the date of importation or inside the United States."). The court cannot conclude for certain that Commerce reasoned in this way, however, because other discussion in the Analysis Memo explains Commerce's reasoning for its decision in the context of "classifying" sales as EP sales. As Commerce stated, "we find that the sales must be classified as EP sales because the record does not sufficiently support CPZ's assertion that [the unaffiliated importer] is not the first unaffiliated purchaser under the standard set forth in AK Steel." Analysis Mem. 5 (citing AK Steel Corp., 226 F.3d at 1372). In the Analysis Memo, Commerce concluded that the United States Court of Appeals for the Federal Circuit ("Court of Appeals") in AK Steel Corp. "held that section 772 of the Act is unambiguous: the critical factors for *1367 whether a sale should be classified as EP or CEP are the location of the sale and whether the parties to the sale are affiliated or unaffiliated." Id. at 4-5 (citing AK Steel Corp., 226 F.3d at 1369-70).
The Analysis Memo does not base its decision to pursue an EP basis on a construction of the Act, nor do the Final Results or Decision Memorandum. From the Analysis Memo, it appears that the Department's conclusion may have been based, at least in part, on the holding in AK Steel Corp. If that was the Department's reasoning, it was not correct. The holding in AK Steel Corp. does not require Commerce to determine the U.S. prices on an export price basis in this case. The question in AK Steel Corp. was "whether a sale to a U.S. purchaser can be properly classified as a sale by the producer/exporter, and thus an EP sale, even if the sales contract is between the U.S. purchaser and a U.S. affiliate of the producer/exporter and is executed in the United States." AK Steel Corp., 226 F.3d at 1368. Even though the sales in question were made between a U.S. affiliate of the producer/exporter and an unaffiliated U.S. customer, Commerce decided the sales were export price sales, considering the role of the U.S. affiliate to be too minor to satisfy the "PQ Test" that it applied to determine whether a particular sale is an EP sale or a CEP sale.[7]Id. Based on the plain meaning of the export price definition in section 772(a) of the Act, 19 U.S.C. § 1677a(a), the Court of Appeals concluded that the sales transactions at issue in the appeal could not qualify as export price sales, reasoning that "[a] transaction, such as those here, in which both parties are located in the United States and the contract is executed in the United States cannot be said to be `outside the United States.'" AK Steel Corp., 226 F.3d at 1370. The court held that "the plain language of the EP definition precludes classification of a sale between two U.S. entities (i.e., a U.S. affiliate of the producer and a U.S. purchaser) as an EP sale." Id. In summary, AK Steel Corp. presented the question of whether a particular sale was properly classified as the starting price for a determination of U.S. price on an EP basis or the starting price for determining U.S. price according to a CEP basis, a question to be resolved, in large part, by determining where the sale at issue took place.
On the findings of fact Commerce made, this case presents a different factual circumstance than did AK Steel Corp., which involved a Korean steel producer who sold subject steel to an affiliated Korean exporter, who then sold the merchandise to a U.S. affiliate, who in turn sold the merchandise to an unaffiliated U.S. purchaser. Id. at 1365. This case, viewed according to Commerce's findings, presents a circumstance in which the foreign producer and its U.S. affiliate each make a sale of the subject merchandise to an unaffiliated U.S. purchaser (but not the same purchaser) and in which the sale by the foreign producer, made outside of the United States, occurs first. The issue of "classification" that was involved in AK Steel Corp. does *1368 not arise on the facts of this case, as found by Commerce. On those facts, the sale by CPZ to the importer cannot be the starting price for a CEP sale, and the sale by Peer to the unaffiliated customer cannot be a EP sale. The issue presented instead is whether the statute contains a requirement for the determination of U.S. price on an EP basis on facts such as those found by Commerce, under which the sale by CPZ to the importer occurred before the sale by Peer to the unaffiliated customers. Commerce apparently concluded that there is such a requirement, but in doing so it relied, at least in part, on its interpretation of the holding in AK Steel Corp.[8]
The plain language of subsections 772(a) and (b) of the Act does not specify that Commerce must determine U.S. price on an export price basis on the facts it found. See 19 U.S.C. § 1677a(a) (referring to the first sale to an unaffiliated purchaser that occurs outside of the United States), § 1677a(b) (referring to the first sale to an unaffiliated purchaser that occurs in the United States, by the producer or exporter or a seller affiliated with the producer or exporter). The statute directs Commerce to determine the "export price (or constructed export price) of each entry of the subject merchandise." Id. § 1675(a)(2)(A)(i) (emphasis added). Commerce determines "the dumping margin for each such entry," id. § 1675(a)(2)(A)(ii), but "dumping margin" is "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise," id. § 1677(35)(A) (emphasis added).
Although the statute is silent on the narrow question presented, the SAA appears to speak to that question. Under the subheading "Identification of the Starting Price," the SAA provides, in pertinent part, that "[i]f the first sale to an unaffiliated purchaser in the United States . . . is made by the producer or exporter in the home market prior to the date of importation, then Commerce will base its calculation on export price." SAA at 822, reprinted in 1994 U.S.C.C.A.N. at 4163 (emphasis added). The SAA provides, further, that "[i]f . . . the first sale to an unaffiliated person is made by (or for the account of) the producer or exporter or by a seller in the United States who is affiliated with the producer or exporter, then Commerce will base its calculation on constructed export price." Id. (emphasis added). Thus, the SAA might be read as an indication that where the first sale to an unaffiliated purchaser occurs prior to importation and outside of the United States, the statute requires that the price in that sale be used as the starting price in an EP determination, even if the price in a subsequent resale of the subject merchandise conforms to the definition of the CEP starting price set forth in 19 U.S.C. § 1677a(b). The court does not hold, however, that Commerce could not reach a different interpretation of the SAA language. Because Commerce did not discuss a construction of the statute in choosing an EP basis, and because of the principles of delegation by Congress to an agency and deference to the agency's statutory constructions by the courts that the Supreme Court discussed in Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778, the court refrains from opining on a hypothetical statutory construction that Commerce has not made in this case.
*1369 The court also refrains from opining on whether Commerce, if it chooses not to reopen the record, still might conclude, based on any such statutory construction that Commerce might make on remand, that the missing export price information is "necessary information" for which Commerce must substitute facts otherwise available.[9] On the record in its current state, however, there is no alternative to the Department's determining U.S. prices on a CEP basis, for the reasons discussed previously: only CEP starting prices are on the record (with insignificant exceptions), and those prices, adjusted by the method required by the Act, are the only record information the statute will permit to be used in place of the missing EP information as facts otherwise available. Therefore, the court will order Commerce, on remand, to determine the U.S. prices on a CEP basis unless it decides to reopen the record to obtain additional information, including, specifically, prices that qualify as the starting prices for an EP determination under 19 U.S.C. § 1677a(a).
B. Commerce's Choice of Data to Value Alloy Steel Wire Rod Was Not Supported by Substantial Evidence on the Record
Plaintiff claims that substantial evidence did not support Commerce's finding that Indian import data, which showed an average price of $3,877 per metric ton, were the "best available information" for valuing CPZ's input of bearing-quality alloy steel wire rod.[10] Pl.'s Mem. 33-35. Plaintiff advocates that Commerce instead should have used record import data from Indonesia ($1,184 per metric ton) or the Philippines ($1,327 per metric ton), arguing, inter alia, that the Indian import data do not reliably indicate the price CPZ would have had to pay in a market economy because they indicate prices "almost 400% higher than benchmark prices available on the record." Id. at 33. Plaintiff points to U.S. import data under a ten-digit tariff subheading specific to bearing-quality steel, which lists an average value of $1,391 per metric ton, as corroboration of the price reflected by the Indonesian and Filipino data. Id. at 34.[11]
*1370 When Commerce determines the normal value of subject merchandise of a producer in a non-market economy country, "the valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority." 19 U.S.C. § 1677b(c). Commerce "normally will value all factors in a single surrogate country" and "normally will use publicly available information to value factors." 19 C.F.R. § 351.408(c)(1)-(2) (2007). Commerce identified its criteria for "best available information" by stating that its "preference is to use, where possible, a range of publicly available, non-export, tax-exclusive, and product-specific prices for the POR . . . with preference to data from a single surrogate country." Decision Mem. 12. Commerce's practice is to reject "aberrational" data that does not reliably indicate the price a producer would have paid for the input. See Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,366 (May 19, 1997) ("Preamble").
Commerce's findings on what constitutes the best available information for valuing a factor of production must be supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Commerce has considerable discretion in choosing the surrogate values that most accurately reflect the price that the non-market economy producer would have paid had it purchased the factor of production from a market economy country. Nation Ford Chemical Co. v. United States, 166 F.3d 1373, 1377 (Fed.Cir.1999). However, the court "cannot evaluate the substantiality of evidence supporting" Commerce's conclusion "`merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence. . . .'" Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 95 L.Ed. 456 (1951)).
Commerce obtained its value of $3,877 per metric ton for CPZ's alloy steel wire rod from the average entered value of imports shown in subheading 7228.50.90 of the Harmonized Tariff Schedule of the Republic of India ("Indian HTS"). Decision Mem. 14; see Final Factor Valuation Mem. attachment 1.[12] Filipino import data showed a value of $1,327 per metric ton, and the value in Indonesian import data was $1,184 per metric ton. Letter from CPZ to the Sec'y of Commerce exhibit 2 (Aug. 7, 2008) (Admin.R.Doc. No. 5420) ("CPZ's Surrogate Value Letter"). The record evidence does not indicate a reason for this striking difference in price, which exists despite certain similarities in the import data from the three countries. The Indonesian and Filipino data, like the Indian data, are from the World Trade Atlas and cover the same time period as the Indian data. Compare id. with Final Factor Valuation Mem. attachment 1. Like India, Indonesia and the Philippines are countries Commerce considered to be at levels of economic development comparable to that of China. Prelim. Results, 73 Fed.Reg. at 41,034. The Indonesian and Filipino import data, like the Indian import data, pertained to information collected *1371 under the internationally-harmonized six-digit subheading 7228.50, which pertains to the article description "Other bars and rods of other alloy steel; angles, shapes and sections, of other alloy steel; hollow drill bars and rods, of alloy or non-alloy steel: Other bars and rods, not further worked than cold-formed or cold-finished." Pl.'s Mem. 33-34; see World Customs Org., Harmonized Commodity Description and Coding System Explanatory Notes 72.28, at 1097-1098 (2d ed. 1996) ("Explanatory Notes"). No party disputes that this subheading describes CPZ's input.
The record evidence shows one difference existing among the import data sets, but it does not explain the great disparity in price, nor does it constitute substantial evidence that the Indian data were superior to the other two data sets. The Indian data that Commerce used pertained to an eight-digit India-specific subheading that applies to goods classified in the six-digit subheading 7228.50, except that it excludes goods classified as "Of engine valves and cold heading steel." Indian HTS 7228.50.10, 90, available at http:// compendium.iift.ac.in/index.asp (last visited Jan. 28, 2011). In the Decision Memorandum, Commerce concluded that the additional specificity to the input being valued that was provided by the eight-digit breakout subheading supported the choice of the Indian tariff data over the tariff data from Indonesia and the Philippines. Decision Mem. 14. However, the eight-digit subheading, even after the two items are excluded, still includes a very broad variety of different products. Data on the record support this point. CPZ's Surrogate Value Letter exhibit 7. The additional specificity provided by the exclusion of the two items, when viewed in the context of the record as a whole, does not support a finding that the Indian data are the best available information. The same record demonstrates that the values obtained from the Indonesian and Filipino import data corroborate each other and are further corroborated by the U.S. import data. The record also reveals that all three of these values are greatly at variance with the value drawn from the Indian data. Finally, although the Department, as stated in its regulations, 19 C.F.R. § 351.408(c)(2), normally values all factors of production in a single country, this preference is not a reason by which the court may sustain a finding that a particular data set constitutes the "best available information" for purposes of 19 U.S.C. § 1677b(c), where, as here, substantial evidence did not support that choice.
Defendant and defendant-intervenor argue that the Indian import data were not aberrational because "[h]igh values alone do not support a comparison of import data and a subsequent rejection of import data-not without specific evidence that the import data are aberrational." See Def.'s Opp'n 29; Def.-Intervenor's Opp'n 32-33. The general principle they advance is of dubious merit when applied in this circumstance, which is the enormous disparity between the value shown in the Indian data and the data from the other two countries. Absent record evidence to explain it, a disparity of this size calls into serious question a finding that the Indian data were the best available information on the record with which to value the factor of production. Because nothing on the record resolves that serious question, the court is unable to conclude that Commerce's choice was based on substantial evidence.
Defendant argues, further, that the Indian data were the best available information because it "is possible that a comparison of a larger set of appropriate data sources . . . would lead to the opposite conclusion, that the Indian data are not so different from other sources." Def.'s *1372 Opp'n 32. This argument lacks merit. The absence of evidence corroborating the price reflected by the Indian import data is evidence that detracts from, rather than supports, a finding that this price is based on the best available information.
Finally, both defendant and defendant-intervenor argue that import data pertaining to the United States do not bear on whether the Indian import data were the best available information because China and the United States are not at comparable levels of economic development. Def.'s Opp'n 33; Def.-Intervenor's Opp'n 33-35. This argument misreads the statute, which directs Commerce to value factors of production using the best available information from countries at a level of economic development comparable to that of China. See 19 U.S.C. § 1677b(c)(1), (4). The statute does not prohibit Commerce from considering, for corroboration purposes, record evidence consisting of prices for a commodity in a market economy country when determining which information from countries at a level of economic development comparable to China is the best available information.
In summary, the enormous disparity between the value for alloy steel wire rod shown in the Indian import data and the values shown in all the other information on the record calls into serious question a finding that the Indian data were the best available information with which to value the factor of production. Nothing on the record resolves that serious question. The two competing data sets yield values that corroborate each other and are further corroborated by the U.S. data. The court, therefore, is unable to conclude that Commerce's choice was based on substantial evidence.
C. In Valuing Alloy Steel Bar, Commerce Failed to Compare the Indian Import Data with the Import Data from Indonesia and the Philippines and Did Not Provide a Rational Explanation
Plaintiff claims that substantial evidence did not support Commerce's finding that WTA Indian import data pertaining to Indian tariff subheading 7228.30.29,[13] reflecting a value of $1,607 per metric ton, were the best available information to value CPZ's input of bearing-quality alloy steel bar. Pl.'s Mem. 35-37; Final Factor Valuation Mem. attachment 1. According to CPZ, the Indian data were aberrational as used to value this input because they indicate prices "more than 60% higher than the benchmark prices. . . ." Pl.'s Mem. 35. The benchmarks to which CPZ refers include import data from the United States, Indonesia, and the Philippines.[14]Id. at 36.
From its examination of the record and its consideration of the reasoning stated in the Decision Memorandum, the court concludes that Commerce's choice of the Indian HTS import data is not accompanied by a rational explanation of why those data are the best available information on the record, which also contained import data from Indonesia and the Philippines. Here, as elsewhere, Commerce must provide a rational explanation for its choice. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut., 463 U.S. 29, 43, 103 S.Ct. *1373 2856, 77 L.Ed.2d 443 (1983) (an agency must "articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'") (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).
As one of the stated reasons for its choice of the Indian import data, Commerce cites the aforementioned regulatory preference for valuing factors of production using data from a single surrogate country. Decision Mem. 15-16. That preference, according to 19 C.F.R. § 351.408(c)(2), plainly is a factor in the Department's decision to choose one data set over another. However, because the statute requires Commerce to compare the chosen data set with other data sets on the record and thereby determine what is the best available information, the regulatory preference cannot suffice as adequate reasoning if it is the only factor that Commerce considers. Cf. 19 C.F.R. § 351.408(c)(2) (providing that "the Secretary normally will value all factors in a single surrogate country") (emphasis added); 19 U.S.C. § 1677b(c)(1) (requiring Commerce to identify the "best available information" regarding the value of a factor of production in a market economy country or countries considered to be appropriate by the administering authority). The preference for using data from a single country might support a choice between data sets that, upon a fair comparison, are otherwise seen to be fairly equal, but the Decision Memorandum contains no indication that Commerce actually made a comparison of the Indian data with the Indonesian and the Filipino data.
Despite the absence of any mention of an actual comparison of the three sets of import data, Commerce states in the Decision Memorandum that "because the WTA India data are contemporaneous with the POR, are publicly available, and represent a broad market average, we find that they represent the best available information for purposes of valuing the steel bar input." Decision Mem. 16. It would appear from the record that the Indonesian and Filipino import data are also contemporaneous with the POR, are also publicly available, and also represent a broad market average. CPZ's Surrogate Value Letter exhibit 1. Additionally, a fair comparison of the three import data sets necessarily would have given due consideration to the record evidence showing that the Indonesian and Filipino data sets present values that corroborate each other rather closely and are at considerable variance with the value obtained from the Indian import data. The record information consisting of Indonesian and Filipino import data pertaining to the internationally-harmonized subheading 7228.30 revealed average values of $964 per metric ton and $1,088 per metric ton, respectively. Id. The Indonesian value and Filipino value are further corroborated by data on U.S. imports of bearing-quality alloy steel bar, which, unlike the other import data on the record, pertained specifically to bearing-quality alloy steel bar and reflected an average value of $1,040 per metric ton.[15]
As another reason offered in connection with its choice of the Indian data, Commerce states that "the existence of higher *1374 prices alone does not necessarily indicate that price data is distorted or misrepresented, and, thus, the existence of a higher price is not sufficient to exclude a particular surrogate value, absent specific evidence the value is otherwise aberrational" and that "[o]ther than pointing out that the Indian import data reflect a high value, we find that CPZ has not demonstrated that the WTA Indian data are unreliable." Decision Mem. 15. This explanation fails to offer a reason why Commerce considered the Indian data to be better information than the Indonesian or Filipino data. It is, instead, merely the reason Commerce offered for rejecting CPZ's objection that the value obtained from the Indian data is aberrational. Moreover, Commerce characterized that value as the "existence of higher prices," but a fair characterization would recognize it as a substantially higher price that is not corroborated by the other evidence on the record.
In summary, the record evidence demonstrating that the Indonesian and Filipino values corroborate each other rather closely, particularly when viewed together with the additional corroboration provided by the U.S. import data, and the record evidence showing that the Indian value is substantially higher than the corroborated value, casts doubt on whether substantial evidence supported the choice of the Indian import data as the best available information on the record before the Department. Based on that record as a whole, and even considering the preference established in 19 C.F.R. § 351.408(c)(2), the court is unable to sustain the choice of the Indian data on the reasoning Commerce has put forth, from which a fair comparison of the three import data sets is lacking. On remand, Commerce must review and reconsider its choice of the Indian data to value the bearing-quality alloy steel bar and must reach a determination that is supported by substantial record evidence and an adequate explanation.
D. Plaintiff's Claim Contesting Commerce's Valuation of Steel Scrap Resulting from Production of Rollers and Rings Must Be Rejected
Plaintiff contests as unlawful, or inadequately explained, Commerce's choice of import data with which to value the scrap resulting from CPZ's production of rollers and rings. Pl.'s Mem. 37-39. The court finds no merit in this claim.
In the Final Results, Commerce used Indian import data under subheading 7204.29.90 of the Indian HTS, which pertains to scrap of non-stainless alloy steel, to value scrap generated from CPZ's roller and ring production. Decision Mem. 8. This was a change in position from the Preliminary Results. See Prelim. Factor Valuation Mem. 3. In the Preliminary Results, Commerce valued the roller and ring scrap according to Indian HTS import data under subheading 7204.41, id., which subheading, according to the internationally-harmonized article description, pertains to ferrous waste and scrap other than waste and scrap of cast iron, alloy steel, or tinned iron or steel, Explanatory Notes 72.04, at 1075. CPZ argues that this change in position was in error and that Commerce's explanation for changing the surrogate value "is either insufficient or incorrect as a matter of law." Pl.'s Mem. 39. Plaintiff's argument fails to confront the essential point that in the Final Results, Commerce based its choice of subheading 7204.29.90 on a finding of fact that the steel CPZ used in its roller and ring production was alloy steel. See Decision Mem. 8. Nowhere in its submissions does CPZ contest that finding of fact, based on which the scrap resulting from roller and ring product is properly classified under the Indian HTS steel scrap subheading that encompasses scrap of alloy steel, subheading 7204.29.90, and not under subheading *1375 7204.41, from which scrap of alloy steel is specifically excluded.
E. Commerce's Choice of Data for the Valuation of Steel Scrap Resulting from Production of Cages Lacks Essential Findings of Fact and Appears to Be Based on a Misclassification
In the Final Results, Commerce valued the scrap resulting from CPZ's cage production according to data in Indian HTS subheading 7204.49, changing its position from the Preliminary Results, in which Commerce valued the scrap according to import data in Indian HTS subheading 7204.41. Decision Mem. 8; Prelim. Factor Valuation Mem. 3. Commerce changed its position after considering a comment by Timken, in which Timken argued that the value derived from import data under subheading 7204.41 was aberrational in that the value determined for the scrap, illogically, would be higher than the value shown by the Indian HTS import data for the steel product used in making the cages. Decision Mem. 8. The Department explained that its decision to change its position based on its finding of an aberrational value was consistent with a similar decision it made in a previous final determination involving the same two Indian HTS subheadings, Nails from the PRC. Id. at 9 ("Given the nearly identical facts here, in which the surrogate value for cage steel scrap exceeds the surrogate value for the direct material input, and in keeping with Department precedent, we have revalued the steel scrap generated from CPZ's cage production using Indian HTS 7204.49.00 for the Final Results.") (citing Certain Steel Nails from the People's Republic of China: Final Determination of Sales at Less Than Fair Value & Partial Affirmative Determination of Critical Circumstances, 73 Fed.Reg. 33,977 (June 16, 2008); Issues & Decision Mem., A-570-909, ARP 6-08, at 38 (June 6, 2008), available at http://ia.ita.doc.gov/frn/summary/PRC/E8-13474-1.pdf).
Indian HTS subheadings 7204.41 and 7204.49 are six-digit subheadings, and therefore the associated article descriptions are internationally harmonized. See Explanatory Notes 72.04, at 1075. According to the relevant internationally-harmonized article description, subheading 7204.41 pertains to ferrous waste and scrap (other than waste and scrap of cast iron, alloy steel, or tinned iron or steel) in the form of "[t]urnings, shavings, chips, milling waste, sawdust, filings, trimmings and stampings, whether or not in bundles." Id. Subheading 7204.49 is a "basket" subheading ("Other") that pertains to other forms of such scrap, including "[a]rticles of iron or steel, definitely not usable as such because of breakage, cutting-up, wear or other reasons. . . ." Id.; see also Note 8(a) to Section XV, Harmonized Commodity Description and Coding System. Only goods failing to satisfy the article description for subheading 7204.41 are classifiable in subheading 7204.49. See Explanatory Notes 72.04, at 1075.
The Decision Memorandum contains no findings of fact under which it could be concluded that the scrap resulting from CPZ's cage production would be excluded from Indian HTS subheading 7204.41 and therefore be classifiable under subheading 7204.49. Nor is the court able to identify record evidence from which any such findings could be made. To the contrary, one CPZ questionnaire response suggests that this scrap would satisfy the article description for subheading 7204.41 because this scrap was "the result of the machining of raw materials." Letter from CPZ to the Sec'y of Commerce 3 (Aug. 11, 2008) (Admin.R.Doc. No. 5422). The court is unable to sustain the Department's choice of data pertaining to Indian HTS subheading 7204.49 without appropriate findings of fact, supported by substantial evidence on the record, that identify the physical nature of this scrap for purposes of tariff *1376 classification. The Decision Memorandum not only fails to include such findings of fact but vaguely suggests, in its discussion of the Department's previous decision in Nails from the PRC, that the Department considered it acceptable to determine a value based on a tariff classification other than the one that pertained to the good being valued. See Decision Mem. 9 ("The Department concluded that, although the relevance of the HTS description is an important factor in the selection of a surrogate value, it is not the sole consideration, and cannot be relied upon when it produces unreasonable results."). If that was the Department's reasoning (and the point is not entirely clear), then the court would disagree that Commerce, in the circumstances of this case, could base its valuation of the scrap on an incorrect tariff classification.
In summary, the Department's choice of data from Indian HTS subheading 7204.49 is unsupported by findings of fact essential to the correct tariff classification of the scrap being valued. As a result, the court is unable to sustain a finding that this choice constituted the best available information on the record.
III. CONCLUSION AND ORDER
For the reasons discussed in the foregoing, and after consideration of all submissions made in this action, the court concludes that Commerce did not act in accordance with law when it calculated CPZ's dumping margin. Commerce acted contrary to law in determining the U.S. price of CPZ's subject merchandise and in determining surrogate values for alloy steel wire rod, alloy steel bar, and steel scrap from production of cages. The court, therefore, will remand the Final Results to Commerce for redetermination consistent with this Opinion and Order.
ORDER
Upon review of the Final Results and all papers and proceedings herein, it is hereby
ORDERED that plaintiff's Rule 56.2 Motion for Judgment upon the Agency Record be, and hereby is, GRANTED in part and DENIED in part; it is further
ORDERED that Commerce shall issue upon remand a redetermination ("Remand Redetermination") that complies in all respects with this Opinion and Order, is based on determinations that are supported by substantial record evidence, and is in all respects in accordance with law; it is further
ORDERED that Commerce, in preparing the Remand Redetermination in accordance with this Opinion and Order, shall redetermine the margin for Peer Bearing Company-Changshan ("CPZ") based on redetermined U.S. prices of CPZ's subject merchandise that are calculated according to a method that complies with law; it is further
ORDERED that Commerce may reopen the record to obtain additional information in preparation for issuing the Remand Redetermination, but if it does not do so and does not obtain price information qualifying for use as starting prices for a determination of export prices according to 19 U.S.C. § 1677a(a), then, as required by law, it must determine the U.S. prices on a constructed export price basis, whether or not it relies on its authority to use facts otherwise available under 19 U.S.C. § 1677e(a); it is further
ORDERED that Commerce, if it reopens the record and collects the information described above and decides to determine U.S. prices on an export price basis, shall provide a reasoned explanation for its decision to do so, stating the relevant findings of fact and conclusions of law; it is further
*1377 ORDERED that Commerce, in preparing the Remand Redetermination in accordance with this Opinion and Order, shall review, reconsider, and redetermine the surrogate values for alloy steel wire rod, alloy steel bar, and scrap from the production of cages; it is further
ORDERED that Commerce shall file the Remand Redetermination no later than ninety (90) days from the date of this Opinion and Order; it is further
ORDERED that plaintiff shall be allowed thirty (30) days from defendant's filing of the Remand Redetermination to file any comments thereon; and it is further
ORDERED that defendant shall be allowed fifteen (15) days from the filing of plaintiff's comments in which to file any rebuttal to such comments.
NOTES
[1] The merchandise subject to the order is "tapered roller bearings and parts thereof, finished and unfinished, from the PRC; flange, take up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use." Tapered Roller Bearings & Parts Thereof, Finished & Unfinished, From the People's Republic of China: Final Results of Antidumping Duty Admin. Review, 74 Fed.Reg. 3,987, 3,988 (Jan. 22, 2009) ("Final Results").
[2] This method is described in section 773(c) of the Tariff Act of 1930 ("Tariff Act" or the "Act"), 19 U.S.C. 1677b(c) (2006) ("[T]he administering authority shall determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise and to which shall be added an amount for general expenses and profit plus the cost of containers, coverings, and other expenses.").
[3] The International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") reduces the constructed value by the amount a producer recovers from the sale of by-products or scrap. Issues & Decisions Mem., A-570-601, ARP 1-09, at 3-4 (Jan. 13, 2009) (Admin.R.Doc. No. 5486), available at http://ia.ita.doc.gov/frn/summary/ PRC/E9-1219-1.pdf ("Decision Mem."). In its final determination, Commerce granted an offset for Peer Bearing Company-Changshan's ("CPZ") sales of steel scrap from production of cages, rollers, and rings. Final Results, 74 Fed.Reg. at 3,988.
[4] With respect to both export price and constructed export price, Commerce uses the term "starting price" to refer to the unadjusted price at which subject merchandise is sold to the unaffiliated purchaser. 19 C.F.R. § 351.402(a) (2007) ("In order to establish export price, constructed export price, and normal value, the Secretary must make certain adjustments to the price to the unaffiliated purchaser (often called the `starting price') in both the United States and foreign markets.").
[5] During the review, and again before the court, CPZ argued that Commerce should follow the practice it followed in Certain Cut-to-Length Carbon Steel Plate from Romania: Preliminary Results of Admin. Review & Notice of Intent To Rescind in Part, 69 Fed.Reg. 54,108, 54,115 (Sept. 7, 2004), and subsequent preliminary phases of the same proceeding. Pl.'s Mem. of Points & Authorities in Supp. of its Mot. for J. on the Agency R. 22-23 ("Pl.'s Mem."). Before the court, CPZ cited various other administrative proceedings which it claims show that Commerce departed from a practice in reaching the decision to pursue an export price ("EP") basis in the review at issue. Pl.'s Mem. 20-23. The court does not reach the issue of whether Commerce departed from a practice in the final results of this administrative review ("Final Results"), or gave adequate reasons for doing so, having concluded that the determination of U.S. prices in the Final Results was otherwise contrary to law.
[6] In addition to contesting the Department's specific factual findings, CPZ also argues that using constructed export price ("CEP") is consistent with the purpose of the antidumping law because CPZ, after the sale to Peer, "continues to have the opportunity to control or participate in pricing decisions in the U.S. market through its U.S. affiliate." Pl.'s Mem. 24. This argument impliedly presumes that Commerce would not have been required by law to determine U.S. price on an EP basis had the record permitted it to do so. Because the court concludes that Commerce has discretion as to whether to reopen the record to obtain export price information and that, if Commerce does so, Commerce must address the issue of whether it was required by law to determine U.S. price on an EP basis, the court, in ordering a remand, does not reach the question raised by this argument.
[7] As the Court of Appeals for the Federal Circuit ("Court of Appeals") explained in AK Steel Corp. v. United States, 226 F.3d 1361, 1365 (Fed.Cir.2000):
Using the PQ Test, Commerce classifies sales made by U.S. affiliates as EP sales if the following criteria are met:
(1) the subject merchandise was shipped directly from the manufacturer to the unrelated buyer, without being introduced into the inventory of the related shipping agent;
(2) direct shipment from the manufacturer to the unrelated buyer was the customary channel for sales of this merchandise between the parties involved; and
(3) the related selling agent in the United States acted only as a processor of sales-related documentation and a communication link with the unrelated U.S. buyer.
[8] In its opinion in AK Steel Corp., the Court of Appeals recognized that Commerce, in choosing between an EP basis and a CEP basis, identified the first sale to an unaffiliated purchaser, but the discussion is not part of the holding of the case. 226 F.3d at 1367 ("To isolate an arm's length transaction under the current statute, Commerce looks to the first sale to a purchaser that is not affiliated with the producer or exporter.").
[9] Section 776(a) of the Tariff Act provides, in pertinent part, that if "necessary information is not available on the record . . . the administering authority . . . shall . . . use the facts otherwise available in reaching the applicable determination under this subtitle." 19 U.S.C. § 1677e(a) (emphasis added). Relevant to identifying the "applicable determination" are subparagraphs (i) and (ii) of section 751(a)(2)(A) of the Act, under which Commerce is to make, respectively, the following two determinations in a periodic administrative review: "(i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry." Id. The Act, in section 771(35)(A), defines "dumping margin" as "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise." Id. § 1677(35)(A).
[10] Commerce failed to state explicitly that its chosen surrogate value for steel wire rod was based on the best available information. Instead, it found that "CPZ has failed to prove the inadequacy of the Indian data or to demonstrate another value to be more appropriate." Decision Mem. 12. The court construes Commerce's choice of the surrogate value for steel wire rod as an implicit finding that the Indian import data were the best available information on the record.
[11] Subheading 7228.50.10.10, Harmonized Tariff Schedule of the United States (2007) ("HTSUS"), pertains to: "Other bars and rods of other alloy steel; angles, shapes and sections, of other alloy steel; hollow drill bars and rods, of alloy or non-alloy steel: Other bars and rods, not further worked than cold-formed or cold-finished: Of tool steel (other than high-speed steel): Of ball-bearing steel." In reaching its conclusion, the court does not consider CPZ's modified value of $1,367 per metric ton. See Case Br. of Peer Bearing Co.-Changshan & Peering Bearing Co. 8 (Aug. 26, 2008) (Admin.R.Doc. No. 5431) ("CPZ's Case Br.") (explaining that $1,367 per metric ton excludes what CPZ defines as "aberrationally high monthly data").
[12] This source shows values in Indian rupees. For ease of comparison, the court discusses values in U.S. dollars, as did the parties.
[13] Commerce's findings incorrectly referred to "Indian HTS 7288.3029." Decision Mem. 16. Commerce used import data pertaining to subheading 7228.30.29. Mem. from Program Manager to file attachment 1 (Jan. 13, 2009) (Admin.R.Doc. No. 5484).
[14] CPZ also put evidence on the record of several of its own purchases from an economically developed market economy country, as well as data pertaining to exports from Japan to the United States and Japan to India. Letter from CPZ to the Sec'y of Commerce exhibit 4 (Aug. 7, 2008) (Admin.R.Doc. No. 5420) ("CPZ's Surrogate Value Letter").
[15] For its brief, CPZ removed the "aberrationally high" prices before calculating an average of $966 per metric ton. Pl.'s Mem. 36; CPZ's Case Br. 11-12. $1,040 USD/MT is the average value including all transactions. CPZ's Surrogate Value Letter exhibit 1. HTSUS subheading 7228.30.20 includes "Other bars and rods of other alloy steel; angles, shapes and sections, of other alloy steel; hollow drill bars and rods, of alloy or non-alloy steel: Other bars and rods, not further worked than hot-rolled, hot-drawn or extruded: Of ball-bearing steel." | 01-03-2023 | 02-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041962/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1823
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Cesar Raul Jara, also known as *
Jose Luis Jara, *
*
Appellant. *
___________
Submitted: November 14, 2006
Filed: February 1, 2007
___________
Before RILEY, BEAM, and SMITH, Circuit Judges.
___________
BEAM, Circuit Judge.
Following a jury trial, Cesar Raul Jara was convicted of one count of possession
with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851. Jara appeals, alleging insufficiency of
the evidence. He also contends that the district court1 erred by refusing to instruct the
jury on mere presence, admitting evidence of prior cooperation with law enforcement,
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
and judicially finding that Jara had a previous conviction for sentencing purposes.
Finding no error, we affirm.
I. BACKGROUND
On February 10, 2004, Officers Brooks and Talbert, commercial vehicle
officers with the Missouri State Highway Patrol, were sitting in a vehicle off Interstate
44, watching traffic, when Brooks noticed a truck drive by with no front license plate
and an unfamiliar trucking company name on its side. Brooks stopped the vehicle and
the driver handed him a driver's license and medical certificate with the name Jose
Luis Jara.
When Brooks inquired, Jara said he had met a man named Mr. Miranda two
days earlier at a truck terminal in El Paso. The following day, Mr. Miranda picked up
Jara in downtown El Paso, took him to dinner at a truck stop, gave him $1,000.00 cash
for expenses, and handed him the keys to the truck and trailer. Jara told Brooks that
he thought that he was driving with an empty trailer, which Brooks thought was odd,
since most drivers know the contents of their load and few trucks travel empty. When
asked where he was going, Jara told Brooks that he was traveling to Jewel, in Illinois,
to pick up a load of rejected candy. Brooks also thought it odd that Mr. Miranda
reportedly did not conduct a driving test or an inquiry into Jara's work history, both
of which are standard practices for trucking companies.
Brooks contacted Corporal Donnell of the Missouri State Highway Patrol.
Donnell opened the trailer and noticed metal shavings on the floor. The outside corner
of the trailer was dented inward significantly, but no corresponding damage was
evident inside the trailer. Donnell also measured the interior and exterior of the trailer
and found a two-foot discrepancy in their lengths. In addition, a canine handler and
canine arrived, and the canine immediately alerted to the presence of an illegal
substance in the front of the trailer. The boards at the front of the trailer were hiding
-2-
a false compartment, which contained 394 bundles of marijuana, weighing over 3,000
pounds, which could be smelled even though wrapped in plastic. Donnell later asked
Jara about the marijuana, and Jara expressed surprise at the amount of marijuana
present, saying he thought there was only one hundred pounds.
Sergeant Banasik, of the Missouri State Highway Patrol, interviewed Jara as
part of his assignment to the federal Drug Enforcement Administration (DEA). Jara's
amended account–that he was en route to an unspecified location in Chicago and was
expected to use a Nextel walkie-talkie to establish the exact location of
delivery–seemed consistent with drug deliveries. Jara also told Banasik that Mr.
Miranda had wanted to know if Jara had a problem delivering marijuana and had said
there was one hundred pounds of marijuana in the trailer.
Jara agreed to assist with a controlled delivery. Jara indicated that Mr. Miranda
had already contacted him once, while Jara was in Oklahoma City, to ask if Jara had
been stopped by police, which Banasik thought indicative of Mr. Miranda tracking
Jara's progress. Toward the end of the interview, the Nextel walkie-talkie activated
but the call failed. Jara called Mr. Miranda and Mr. Miranda asked Jara his location
and Jara once more reported that he had not been stopped by the police. Jara was
taken to Chicago, where he again admitted to DEA Agent Mokhoff that he thought he
had marijuana in the trailer. The next day, officers determined that Jara had falsely
identified himself, because the fingerprints submitted belonged to Cesar Jara, not Jose
Luis Jara. Jara explanation was that since his license had been suspended in 2000, he
was carrying his brother's driver license, which depicted a person easily mistaken for
Jara. With Jara correctly identified, the officers determined that Jara had acted in
cooperation with law enforcement previously. The officers ultimately decided not to
pursue the controlled delivery, in part because the officers were unsure of Jara's
trustworthiness.
-3-
Jara was tried before a jury and found guilty of possession with intent to
distribute 1,000 kilograms or more of a mixture or substance containing a detectable
amount of marijuana. The district court sentenced him to 240 months' imprisonment.
Jara appeals his conviction and sentence.
II. DISCUSSION
A. Sufficiency of the Evidence
We employ a very strict standard in reviewing the sufficiency of the evidence
on appeal. We view the evidence in the light most favorable to the government,
resolving evidentiary conflicts in favor of the government, accepting all reasonable
inferences drawn from the evidence that support the jury's verdict, and reversing only
if no reasonable jury could have found the accused guilty. United States v. Sanders,
341 F.3d 809, 815 (8th Cir. 2003).
"In order to establish a violation of 21 U.S.C. § 841(a)(1), the government had
to prove beyond a reasonable doubt that [Jara] knowingly possessed and intended to
distribute the marijuana found in the tractor trailer." United States v. Sanchez, 252
F.3d 968, 972 (8th Cir. 2001). Jara argues that the government did not produce
sufficient evidence that he knew that the marijuana was present in the trailer, asserting
that his inculpatory statements stand alone and were insufficient to convict him of
possession.
Though Jara urges us to apply United States v. Crenshaw, 359 F.3d 977 (8th
Cir. 2004), Crenshaw recognized only that uncorroborated, unsworn confessions may
not be admissible through accomplice testimony, id. at 990. Jara did not contest the
admissibility of the inculpatory statements at trial or on appeal. Indeed, Jara's multiple
admissions that he knew about the marijuana were introduced through law
enforcement officers', not accomplices', testimony. And, Jara's admission to
-4-
knowledge of a smaller amount of marijuana than was actually present is consistent
with a pattern known to law enforcement of suspects attempting to minimize their
involvement.
Jara's knowledge of the marijuana is corroborated by Jara having sole control
over the vehicle, the physical characteristics of the truck, and the jury's rejection of
Jara's explanation of the trip. The physical characteristics of the truck belie his
assertion of lack of knowledge. The marijuana could be smelled even through its
plastic wrapping. There were metal shavings in the trailer. The inside of the trailer
did not correspond with a dent visible from the outside of the trailer, indicating the
presence of a false compartment. In addition, the inside of the trailer was two feet
shorter than the overall trailer length. Finally, the jury found Jara's explanation of his
trip incredible, including his claims that he received a truck, $1,000.00 and a walkie-
talkie from a man he only met once and that he was on a supremely unprofitable trip,
driving an empty truck to pick up a rejected load of candy. The physical evidence and
Jara's admissions are sufficient to sustain a reasonable jury's finding that Jara
possessed the marijuana found in the trailer.
B. Jury Instructions
Jara asserts that the district court erred by refusing to instruct the jury on mere
presence.
A criminal defendant is entitled to a theory-of-defense instruction that is
timely requested, correctly states the law, and is supported by the
evidence. "The district court has considerable discretion in framing the
instructions and it is sufficient if the instruction actually given by the
trial court adequately and correctly covers the substance of the requested
instruction. We determine the adequacy of instructions by looking at the
instructions as a whole and in the context of the trial."
-5-
United States v. Serrano-Lopez, 366 F.3d 628, 636-37 (8th Cir. 2004) (citation
omitted) (quoting United States v. Claxton, 276 F.3d 420, 423-24 (8th Cir. 2002)).
In Serrano-Lopez, a conspiracy case in which a mere-presence instruction was
requested, the theory of defense, as here, was that the government had failed to prove
knowledge. 366 F.3d at 637. We determined that "the giving of the mere-presence
instruction in this case would have duplicated the instructions outlining the elements
of the offense, the definition of possession, and the burden of proof." Id. Since the
jury in Jara's trial was, likewise, properly instructed on the elements of the offense, the
definition of possession, and the burden of proof, the district court did not abuse its
discretion in refusing to give the requested mere-presence instruction.
C. 404(b) Evidence
We review the admission of evidence for an abuse of discretion. Even if the
admission is in error, we do not reverse if the error was harmless. United States v.
Walker, 393 F.3d 842, 848 (8th Cir.), cert. denied, 126 S. Ct. 463 (2005). Federal
Rule of Evidence 404(b) allows the admission of evidence to show knowledge, if the
evidence is "(1) relevant to a material issue; (2) proved by a preponderance of the
evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in
kind and close in time to the crime charged." United States v. Vieth, 397 F.3d 615,
617-18 (8th Cir.), cert. denied, 545 U.S. 1110 (2005) (quotation omitted).
Jara contends that the district court erred in admitting evidence about his
previous informant activities. At trial, Mokhoff testified that Jara was involved in
making a controlled delivery of marijuana from El Paso to Chicago which involved
Omar Gardusco, in 1997. Mokhoff testified that Gardusco had recently been involved
in selling the trailer to Mr. Miranda, which tended to link Jara to Mr. Miranda prior
to the instant trip. Mokhoff explained that Jara had likely given a false identity in this
instance because he would not have been used in the present controlled delivery if law
-6-
enforcement agents knew that he had previously worked as a cooperating source.
Since Jara had put the element of knowledge at issue, the testimony about his previous
cooperation was relevant to prove that Jara knew that he was transporting marijuana.
Accordingly, the district court did not abuse its discretion.
D. Sentencing
As Jara concedes that this panel cannot rule that judicial fact-finding of the
existence of a predicate conviction for statutory enhancement of his sentence is
unconstitutional, see United States v. Booker, 543 U.S. 220, 244 (2005), we reject the
argument, but acknowledge that this issue has been preserved.
III. CONCLUSION
Having carefully reviewed the record and the briefs, we find no error and
accordingly affirm the district court.
______________________________
-7- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3161425/ | FILED
UNITED STATES DISTRICT COURT DEC - 9 2015
FOR THE DISTRICT OF COLUMBIA (Jerk, u.s_ District and
) Bankruptcy Courts
MICHAEL SHENEMAN, )
Plaintiff, i
V. i Civil Action No. 15-1785 (UNA)
UNITED STATES OF AMERICA, )
Defendants. i
)
MEMORANDUM OPINION
This matter is before the Court on the plaintiff 5 application to proceed in forma pauperis
and his pro se complaint. The Court will grant the application and dismiss the complaint.
The plaintiff alleges that he has been “wrongfully convicted . . . for alleged wire fraud by
means of selling homes,” Compl. at 1, in the United States District Court for the Northern
District of Indiana, see id. at 4, due to the prosecutor’s misconduct and violations of 18 U.S.C.
§§ 1001, 1512, 1513 and 1519, see generally id. at 2-3. In this way, plaintiff asserts, the
government violated his constitutional right to a fair trial, causing him to “los[e] his home,
business, liberty and freedom.” Id. at 3. He brings this action under the Federal Tort Claims Act
(“FTCA”), see id. at 1, and demands damages of $10 million, id. at 4.
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 US. 206,
212 (1983). “Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” FDIC v. Meyer, 510 US. 471, 475 (1994). The FTCA is one example of an
express waiver of sovereign immunity, allowing the United States to be held liable “in the same
manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. §
1346(b)(1), but the FTCA does not expose the United States to liability for the commission of all
torts, see, e. g., Richards v. United States, 369 U.S. 1, 6 (1962). And here, the Court lacks subject
matter jurisdiction over the plaintiff s tort claims because “the United States simply has not
rendered itself liable under [the FTCA] for constitutional tort claims.” Meyer, 510 US. at 478.
Insofar as the plaintiff brings this action as an attack on his criminal conviction and
sentence, this is not a subject over which the Court has jurisdiction. See, e. g., Burnell v. Oflice of
the Attorney General oftlze United States, No. 1:14-cv-02206, 2014 WL 7411036, at *l (D.D.C.
Dec. 30, 2014) (dismissing plaintiff’ s “challenge to his criminal sentence in the guise of a civil
rights complaint”), appeal filed, No. 15-5027 (DC. Cir. Jan. 29, 2015). To the extent a remedy
is available to the plaintiff, his claim must be addressed to the sentencing court in a motion under
28 U.S.C. § 2255. See Taylor v. US. Bd. ofParole, 194 F.2d 882, 883 (DC. Cir. 1952) (stating
that a motion to vacate under 28 U.S.C. § 2255 is the proper vehicle for challenging the
constitutionality of a statute under which a defendant is convicted); Ojo v. Immigration &
Naturalization Serv., 106 F.3d 680, 683 (5th Cir. 1997) (explaining that the sentencing court is
the only court with jurisdiction to hear a defendant’s complaint regarding errors that occurred
before or during sentencing).
Lastly, because there is no private right of action under 18 U.S.C. §§ 1001, 1512, 1513
and 1519, these claims, see Compl. at 2-3, too, will be dismissed. See Peavey v. Holder, 657 F.
Supp. 2d 180, 190-91 (D.D.C. 2009), aff’d, No. 09-5389, 2010 WL 3155823, at *1 (DC. Cir.
Aug 9, 2010) (per curiam).
The complaint will be dismissed, and an Order is issued separately.
DATE: M arr] w/S’
Uni ed States District Judge | 01-03-2023 | 12-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1054667/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 24, 2006 Session
STATE OF TENNESSEE v. STEVE ALLEN CLICK
Direct Appeal from the Circuit Court for Blount County
No. C-14572 D. Kelly Thomas, Jr., Judge
No. E2004-02655-CCA-R3-CD - Filed March 21, 2006
The defendant, Steve Allen Click, was convicted of three counts of aggravated rape and one count
of evading arrest. The trial court imposed consecutive sentences of forty years for each aggravated
rape and a concurrent sentence of eleven months and twenty-nine days for evading arrest. The
effective sentence is, therefore, 120 years. In this appeal, the defendant asserts (1) that the trial court
erred by failing to merge two of the aggravated rape convictions; (2) that the evidence is insufficient
to support the convictions for aggravated rape; (3) that the prosecutor's closing argument was
improper; and (4) that the trial court erred by imposing consecutive sentences. The judgments of the
trial court are affirmed.
Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.
Kristi M. Davis, Knoxville, Tennessee (on appeal) and Mack Garner, District Public Defender (at
trial), for the appellant, Steve Allen Click.
Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Robert Headrick, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
At approximately 8:30 p.m. on March 25, 2003, the victim, Barbara Plaut, was attacked and
raped while walking her dog on the greenway near her residence in Maryville. At trial, the victim
testified that as she walked along a trail, she noticed a man, whom she later identified as the
defendant, walking toward her. She remembered that she had seen the man on the greenway on an
earlier occasion and that his appearance had frightened her. She recalled that the defendant, who was
dressed in dark clothing, suddenly "lunged" at her and sprayed her face with mace. According to the
victim, the defendant "grabbed at [her]," causing her to fall, and then "yanked" her to her feet,
sprayed her with mace again, and directed her into a nearby wooded area. She remembered that
when they got into the wooded area, the defendant said, "I just hate bitches like you," as he struck
her with what she believed to be a pipe. The victim described the blow as so hard that she saw "blue
sparkles," fell to the ground, and then saw the silhouette of the defendant holding what appeared to
be a pipe in his raised hand. According to the victim, the defendant stated his intention to rape her
and ordered her to remove her clothes. She remembered that she took off her shirt and pants and the
defendant cut her bra with a knife.
The victim testified that as she lay on her back, the defendant placed a cloth over her face,
partially blocking her view, before penetrating her vagina with his penis. She described the initial
penetration as "some thrusting . . . three, four, five, six times. And then he pulled out." The
defendant then ordered the victim onto her hands and knees and used graphic terminology in
expressing his intent to penetrate her anally. She recalled that when the defendant was not successful
in this effort, he chose to penetrate her vagina a second time. She stated that the defendant again
"thrusted" several times without ejaculating. According to the victim, the defendant then directed
her to rise to her knees and forced his penis into her mouth. She testified that the defendant placed
his hand on the back of her head, "thrusted" several times, and then withdrew without ejaculating.
As he pulled up his pants, he ordered the victim not to move.
The victim testified that after the defendant had walked "a good distance" away, she put on
her clothes, waited several more minutes, and then ran to a house and asked the female occupant to
call the police. The victim stated that she then ran to another house, where a couple waited with her
on their front porch until the police arrived. The victim described her assailant as a white male in
his late twenties or early thirties, wearing dark clothing and a cap with a pattern on it. She recalled
that when an ambulance arrived, she was treated briefly before the police drove her to the location
of the rape. There, she saw the defendant standing in a nearby parking lot. The victim testified that
she identified the defendant as her assailant and was then taken to Blount Memorial Hospital, where
a forensic examination was performed. She stated that photographs were taken of her and that a
"rape kit" was collected. The victim suffered a scalp laceration, a concussion, and numerous cuts
and bruises, including some to her vagina.
During cross-examination, the victim explained that she did not fight the defendant because
she feared for her life. She described the defendant as "extremely enraged" during the offenses. The
victim conceded that she did not get a good look at the weapon, having seen it only in silhouette, but
described it as "a cylinder," approximately shoulder width in length and not as wide as her wrist.
Gina Korczynski testified that at approximately 9:00 p.m. on the evening of the offenses, a
blood-covered woman came to her house, "banging on the door, begging to come in. . . . Her clothes
hanging from her, belt hanging. Stating she had been raped and beaten on the greenbelt." Ms.
Korczynski, who explained that she and her husband did not invite the victim inside because they
did not want to wake their children, stated that they waited on the front porch with her until police
arrived.
-2-
John Foley of the Maryville Police Department, who was on patrol when he received a call
to be on the look out in the greenbelt area for a white male wearing black clothing and a ball cap,
testified that he observed a man who matched the description of the suspect walking toward a four-
door, green Saturn parked near the woods. The officer stated that when he blocked the suspect's path
to the Saturn and directed him to stop, the suspect, who was later identified as the defendant, ran
several hundred yards before he was apprehended. The officer discovered the victim's glasses in the
defendant's pocket.
At trial, Stephanie Montgomery, an optician at University Eye Surgeons, identified the
glasses found in the defendant's pocket. She confirmed that they had been dispensed to the victim
in December 2004.
Maryville Police Department Detective Carlos Hess, Jr., who was in charge of the
investigation, testified that officers arrived on the scene within five minutes of the 911 call and had
the defendant in custody within twelve minutes. He recalled that the victim's shirt and her bra, which
had been cut and had blood on it, were found in the area where the rape occurred. He stated that
officers found a can of mace nearby but the pipe described by the victim was never located.
Detective Hess testified that he swabbed some small, reddish-brown stains on the defendant's hands
and sent the swabs to the Tennessee Bureau of Investigation (TBI).
Marissa Younger, a registered nurse at Blount Memorial Hospital, testified that she
conducted a forensic examination of the victim after the rape. She stated that she took photographs,
collected clothing, performed a pelvic examination, and treated the victim for possible exposure to
sexually transmitted diseases. Ms. Younger testified that the bruises and lacerations to the victim's
head, back, and legs were consistent with blunt force trauma. She stated that the injury to the
victim's back was six inches long and one inch wide and was consistent with the victim's having
been struck by a metal pole.
Margaret Bash, a forensic scientist with the DNA unit of the TBI crime lab, testified that she
performed a DNA analysis of the swabs taken from the blood stains on the defendant's hands. She
confirmed that both of the swabs contained DNA of the defendant and the victim. Ms. Bash stated
that the swab from the left hand indicated that the victim was the major contributor and the one from
the right hand indicated the defendant was the major contributor. Swabs taken from the victim's
mouth and vagina were negative for the presence of the defendant's sperm.
I
The defendant first asserts that the trial court erred by failing to merge the two convictions
for aggravated vaginal rape into a single conviction. Citing State v. Phillips, 924 S.W.2d 662 (Tenn.
1996), he contends that because the two instances of vaginal penetration were separated by only a
few seconds, they were part of the same offense and, as such, should have been merged. The state
submits that because the two instances of vaginal penetration were separated by the defendant's
failed attempt at anal penetration, separate convictions do not offend double jeopardy principles.
-3-
The double jeopardy clause of the United States Constitution provides that no person shall
"be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V.
Similarly, article 1, section 10 of the Tennessee Constitution provides that "no person shall, for the
same offense, be twice put in jeopardy of life or limb." Tenn. Const. art. 1, § 10. Our supreme court
has noted that "three fundamental principles underlie double jeopardy: (1) protection against a
second prosecution after an acquittal; (2) protection against a second prosecution after conviction;
and (3) protection against multiple punishments for the same offense." State v. Denton, 938 S.W.2d
373, 378 (Tenn. 1996) (citations omitted). Our high court observed that "whether two offenses are
the 'same' for double jeopardy purposes depends upon a 'close and careful analysis of the offenses
involved, the statutory definitions of the crimes, the legislative intent and the particular facts and
circumstances.'" Id. (quoting State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975)). Finally, our
supreme court noted that while appellate review must be guided by the test announced in
Blockburger v. United States, 284 U.S. 299, 304 (1932), that test is not conclusive of legislative
intent and the reviewing court must also examine (1) whether there were multiple victims involved;
(2) whether several discrete acts were involved; and (3) whether the evil at which each offense is
directed is the same or different. Denton, 938 S.W.2d at 378-79.
Multiplicity concerns the division of conduct into discrete offenses, creating several offenses
out of a single offense. Several general principles determine whether offenses are "stacked" so as
to be multiplicitous:
1. A single offense may not be divided into separate parts; generally, a single
wrongful act may not furnish the basis for more than one criminal prosecution;
2. If each offense charged requires proof of a fact not required in proving the other,
the offenses are not multiplicitous; and
3. Where time and location separate and distinguish the commission of the offenses,
the offenses cannot be said to have arisen out of a single wrongful act.
Phillips, 924 S.W.2d at 665 (footnotes omitted).
In State v. Barney, 986 S.W.2d 545 (Tenn. 1999), our supreme court clarified the ruling in
Phillips while considering the issue of when separate acts of illegal sexual conduct can support
separate convictions. Citing People v. Madera, 282 Cal. Rptr. 674 (Ct. App. 1991), our high court
ruled that the "critical consideration" was the intent of the defendant. Barney, 986 S.W.2d at 548-49.
The relevant factors to be considered were identified as follows:
1. temporal proximity -- the greater the interval between the acts, the more likely the
acts are separate;
2. spatial proximity -- movement or re-positioning tends to suggest separate acts;
3. occurrence of an intervening event -- an interruption tends to suggest separate
acts;
4. sequence of the acts -- serial penetration of different orifices as distinguished from
repeated penetrations of the same orifice tends to suggest separate offenses; and
-4-
5. the defendant's intent as evidenced by conduct and statements.
Id.
In this case, the first factor, temporal proximity, weighs against separate convictions because
only moments separated the two vaginal penetrations. It was established at trial that the entire attack
took less than half an hour. The second factor, spatial proximity, weighs in favor of separate
convictions. The defendant first penetrated the victim's vagina as she lay on the ground and then
ordered her onto her hands and knees in a futile effort to rape her anally. He then penetrated her
vagina a second time. The third factor, the occurrence of an intervening event, also weighs in favor
of separate convictions. As indicated, the vaginal rape of the victim was interrupted by the
defendant's failed attempt at anal penetration. The fourth factor, the sequence of the acts, weighs
slightly against separate convictions because the challenged rapes involve the penetration of the same
orifice. Finally, the fifth factor, the defendant's intent, weighs in favor of separate convictions. The
defendant not only attempted anal penetration but also stated his intent to do so before ordering the
victim onto her hands and knees. The second vaginal penetration occurred only after the defendant
had unsuccessfully attempted to penetrate the victim anally. Under these circumstances, it is our
view that the separate convictions for aggravated vaginal rape are not multiplicitous. The defendant
is not entitled to relief on this issue.
II
The defendant also asserts that the evidence is insufficient to support the aggravated rape
convictions. He contends that because no weapon was found, the state failed to prove that he used
a deadly weapon to commit the offenses. The state submits that the victim's testimony and the
injuries she suffered were sufficient to establish that the defendant used a deadly weapon.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 286
S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the presumption
of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden
of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992).
Aggravated rape is defined as "unlawful sexual penetration of a victim by the defendant . .
. [where] [f]orce or coercion is used to accomplish the act and the defendant is armed with a weapon
-5-
or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a
weapon." Tenn. Code Ann. § 39-13-502(a)(1) (2003).
In this case, the victim testified that the defendant struck her with what she believed to be a
pipe. While conceding that she did not get a good look at the object, she described it as "a cylinder"
that was less than two feet long with a circumference the size of the courtroom microphone. She
insisted that the object was not a stick. A nurse confirmed that the injuries to the victim were
consistent with blunt force trauma from a "metal pole." Photographs indicating that the victim
suffered a severe scalp laceration and a long bruise to her back are facts from which the jury could
reasonably have inferred the use of a weapon. Under these circumstances, it is our view that the
circumstantial evidence was sufficient to establish that the defendant used a deadly weapon to
commit the rapes.
III
The defendant next contends that the prosecutor made an improper remark during his closing
argument. The state submits that the defendant waived any challenge to the closing argument by
failing to lodge a contemporaneous objection.
Initially, the state correctly points out that the defendant did not object during the prosecutor's
closing argument. Appellate relief is generally not available when a party has "failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of any error."
Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error."); see State v. Killebrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a contemporaneous
objection); see also State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v.
Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). Whether properly assigned or not,
however, this court may consider plain error upon the record under Rule 52(b) of the Tennessee
Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984).
Before an error may be so recognized, it must be "plain" and must affect a "substantial right"
of the accused. The word "plain" is synonymous with "clear" or equivalently "obvious." United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but
especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v.
Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined "substantial right" as
a right of "fundamental proportions in the indictment process, a right to the proof of every element
of the offense and . . . constitutional in nature." In that case, this court established five factors to be
applied in determining whether an error is plain:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
-6-
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be "necessary to do substantial justice."
Id. at 641-42 (footnotes omitted). Our supreme court characterized the Adkisson test as a "clear and
meaningful standard" and emphasized that each of the five factors must be present before an error
qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).
Trial courts have substantial discretionary authority in determining the propriety of final
argument. Although counsel is generally given wide latitude, courts must restrict any improper
argument. Sparks v. State, 563 S.W.2d 564, 569-70 (Tenn. Crim. App. 1978). Generally speaking,
closing argument "must be temperate, must be predicated on evidence introduced during the trial of
the case, and must be pertinent to the issues being tried." State v. Sutton, 562 S.W.2d 820, 823
(Tenn. 1978). To merit a new trial, however, the argument must be so inflammatory or improper as
to affect the verdict. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In Judge v. State, 539
S.W.2d 340 (Tenn. Crim. App. 1976), this court articulated the factors to be considered in making
that determination:
(1) The conduct complained of viewed in the context and in light of the facts and
circumstances of the case[;]
(2) [t]he curative measures undertaken by the court and the prosecution[;]
(3) [t]he intent of the prosecutor in making the improper statements[;]
(4) [t]he cumulative effect of the improper conduct and any other errors in the record[; and]
(5) [t]he relative strength or weakness of the case.
539 S.W.2d at 344.
Most restrictions during final argument are placed upon the state. That is based in great
measure upon the role of the prosecutor in the criminal justice system:
[The prosecutor] is the representative not of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold aim of which is
that guilt shall not escape or innocence suffer. He may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence
that these obligations, which so plainly rest upon the prosecuting attorney, will be
faithfully observed. Consequently, improper suggestions, insinuations and,
-7-
especially, assertions of personal knowledge are apt to carry much weight against the
accused when they should properly carry none.
Berger v. United States, 295 U.S. 78, 88 (1935); see also Judge, 539 S.W.2d at 344-45. Thus, the
state must refrain from argument designed to inflame the jury and should restrict its commentary to
matters in evidence or issues at trial. The prosecutor must not express a personal belief or opinion,
but whether that qualifies as misconduct often depends upon the specific terminology used. For
example, argument predicated by the words "I think" or "I submit" does not necessarily indicate an
expression of personal opinion. United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978). The
prosecution is not permitted to reflect unfavorably upon defense counsel or the trial tactics employed
during the course of the trial. See Dupree v. State, 410 S.W.2d 890, 892 (Tenn. 1967); Moore v.
State, 17 S.W. 30, 35 (Tenn. 1929); Watkins v. State, 203 S.W. 344, 346 (Tenn. 1918); McCracken
v. State, 489 S.W.2d 48, 50 (Tenn. Crim. App. 1972). Although there may be no commentary on
the consequences of an acquittal, the prosecution may point out the gravity of a particular crime and
emphasize the importance of law enforcement. See State v. Dakin, 614 S.W.2d 812, 815 (Tenn.
Crim. App. 1980); Bowling v. State, 458 S.W.2d 639, 641 (Tenn. Crim. App. 1970).
This court has observed that there are five generally recognized areas of prosecutorial
misconduct related to closing argument:
1. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his personal
belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of
the defendant.
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury.
4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader than the
guilt or innocence of the accused under the controlling law, or by making predictions
of the consequences of the jury's verdict.
5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).
During his rebuttal argument, the prosecutor made the following comment:
[Defendant's attorney] has asked you to put your anger and/ or revulsion aside. I say
don't you dare. That is part and parcel of your common sense; that is part and parcel
of what the Judge will instruct you that you are to utilize, that being your common
sense, in sitting and evaluating this case.
-8-
In this case, the defendant conceded at trial that he was the assailant and simply argued that
he should be convicted of a lesser offense than aggravated rape. The proof of his guilt as to the
charged offenses was practically uncontroverted. Under these circumstances, it is our view that the
prosecutor's isolated remark did not affect the verdict of the jury. See Tenn. R. App. P. 36(b); Tenn.
R. Crim. P. 52(a). In consequence, the error would not rise to the level of plain error.
IV
Finally, the defendant asserts that the trial court erred by ordering consecutive sentencing.
The state submits that consecutive sentencing was appropriate because the defendant has an
extensive record of criminal activity.
When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is
"conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Tenn. Code Ann. § 40-35-401, Sentencing Comm'n Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210
(2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited
classifications for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d
391, 393 (Tenn. 1976). In that case, our supreme court ruled that aggravating circumstances must
be present before placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d
227 (Tenn. 1987), our high court established an additional category for those defendants convicted
of two or more statutory offenses involving sexual abuse of minors. There were, however, additional
words of caution:
[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate
maximum of consecutive terms must be reasonably related to the severity of the
offenses involved.
739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language.
Tenn. Code Ann. § 40-35-115, Sentencing Comm'n Comments. The 1989 Act is, in essence, the
-9-
codification of the holdings in Gray and Taylor; consecutive sentences may be imposed in the
discretion of the trial court only upon a determination that one or more of the following criteria1
exist:
(1) The defendant is a professional criminal who has knowingly devoted himself to
criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has been characterized by a pattern
of repetitive or compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or no
regard for human life, and no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving sexual
abuse of a minor with consideration of the aggravating circumstances arising from
the relationship between the defendant and victim or victims, the time span of
defendant's undetected sexual activity, the nature and scope of the sexual acts and the
extent of the residual, physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b) (2003).
The length of the sentence, when consecutive in nature, must be "justly deserved in relation
to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).
The trial court ordered consecutive sentences on the following grounds:
The issue of whether these sentences should be served at the same time or
consecutively to each other, the law provides that the [c]ourt may order sentences to
run consecutively if the [c]ourt finds by a preponderance of the evidence that the
[d]efendant is an offender whose record of criminal activity is extensive. And for a
person who was born in 1979, and is 25 years old, to have the felony and
misdemeanor convictions that I have recited earlier, that is an extensive criminal
record.
....
1
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Comm'n Comments.
-10-
. . . [T]here very well may be situations that one would consider more severe
than this, serial rapists who attack many victims on different days and times, that very
well is, I would say. But the law merely sets a standard that has to be met to justify
a maximum sentence and a standard that has to be met to justify consecutive
sentencing. And that does not mean that only one type of offense can meet both
those standards and everything else has to be something less. And it's clear to me
from these facts that this case meets both of those standards, sadly enough.
The record establishes that the defendant had fifteen prior convictions as an adult and five
prior juvenile adjudications. Ten of the adult convictions, including four convictions for aggravated
burglary and four convictions for theft over $1000, were for felony offenses. Under these
circumstances, the record supports the trial court's determination that the defendant is an offender
whose record of criminal activity is extensive. In our view, the trial court did not err by imposing
consecutive sentences.
Accordingly, the judgments of the trial court are affirmed.
___________________________________
GARY R. WADE, PRESIDING JUDGE
-11- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/416012/ | 703 F.2d 566
Reganv.Secretary of Health and Human Services
81-1454
UNITED STATES COURT OF APPEALS Sixth Circuit
7/7/82
1
W.D.Mich.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/7023694/ | PRESIDING JUSTICE BUCKLEY delivered the opinion of the court: Following Bessie Strong’s (decedent’s) death on July 17, 1986, Ethel McCoy filed a "Petition for Letters of Administration” in the circuit court of Cook County, alleging that her sister died intestate. In response, Arthur Greenlaw (petitioner), decedent’s nephew, filed a “Petition for Probate of Missing Will and for Letters Testamentary,” attaching thereto a purported copy of decedent’s will. Following a hearing, pursuant to section 6 — 4 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 110x/2, par. 6 — 4), the circuit court entered an order admitting a copy of decedent’s will to probate and denying McCoy’s “Petition for Letters of Administration.” In so doing, the circuit court concluded that petitioner offered sufficient competent evidence to overcome the presumption of revocation. Decedent’s brothers, nephew, and other heirs at law (respondents) appeal from the judgment admitting the will to probate as decedent’s last will and testament, contending that the evidence was insufficient to rebut the presumption of revocation. For the reasons set forth below, we affirm. Decedent’s estate consisted of her home and a nine-unit apartment building, both of which were valued at $75,000, $2,000 in personal property and $10,000 in annual income from the rental building. The will offered by petitioner devised and bequeathed all of decedent’s property to petitioner and designated him as executor. The following testimony was adduced at the hearing on the admission of the missing will to probate. Louise Marchman, who had been involved in the management of decedent’s rental building since 1955, testified as follows: She had contact with decedent one or two times each month up until her husband’s death in “1980 or 1981,” and up until decedent’s death in 1986 spoke to decedent one to two times each week and would visit her at least once each month. Decedent sought Marchman’s opinion regarding both financial and personal matters and telephoned Marchman whenever she was lonely. Decedent would mention petitioner during their conversations and would say “nice things about him,” such as “the only one that cares *** about me is Arthur” and that “Arthur’s the closest thing I have to a son.” Decedent relied upon petitioner up until the time of her death. On one occasion decedent informed Marchman that her “business” was in order, and that “[petitioner] knew all her business.” Marchman further testified that throughout her 34-year relationship with decedent, decedent did not discuss family members other than petitioner. Marchman was aware that decedent had brothers, but not that she also had sisters. The first time Marchman met decedent’s brothers was during the week preceding decedent’s death. Marchman testified that she visited decedent on the Wednesday prior to her death at decedent’s request. Marchman stated that Ear-sie Greenlaw, decedent’s brother, followed her into the bedroom where the decedent was lying down on the bed and created a tense atmosphere. She was never left alone with decedent. Marchman further testified that she was permitted to read a copy of decedent’s unsigned will. Decedent’s attorney, Robert Snow, testified that subsequent to William Strong’s death, decedent expressed a desire to place her real estate in joint tenancy with petitioner. He advised against a joint tenancy arrangement and instead recommended that she dispose of her property by will or a land trust with a remainder beneficiary. He informed decedent that if she died intestate her relatives would inherit her estate. Robert Snow and Martin Snow, his father, testified that they prepared a will naming decedent’s nephew, Arthur Greenlaw, as sole beneficiary. Robert testified that her decision to name petitioner as sole beneficiary was based upon the fact that she had estranged relatives whom she did not even know and other relatives that she saw only minimally over long periods of years. Attorney Martin Snow testified that decedent told him that her brothers were no help to her and that her sisters did not come and visit her. Martin and Robert also testified to the events surrounding the execution of the will on February 4, 1982. The will was executed in Robert’s, Martin’s and their secretary’s presence. They observed decedent sign the will. Both Robert and Martin signed as witnesses to her signature in the presence of one another, decedent, and their secretary. Robert offered to retain the executed will in a safe deposit box, but decedent opted to take the -will home with her. Martin and Robert testified to the authenticity of a copy of the will attached to petitioner’s petition to admit the will to probate as a copy of the will drafted for decedent. Robert further testified that the copy of the will at the hearing was the same will executed by decedent. Martin stated that decedent requested that he send a copy of the will to Marchman, but that he sent a draft copy directly to decedent due to ethical considerations relating to client confidentiality. Robert and Martin testified that decedent never contacted them again regarding the February 4, 1982, will or any other will. Petitioner testified to the following: He visited decedent two to four times each month, on Christmas, and six to seven other holidays each year. He had driven decedent’s brothers, Otis, Earsie and Timothy Greenlaw, back and forth from their home in Gary, Indiana, to decedent’s home in Chicago, Illinois, on numerous occasions. When decedent was hospitalized at Jackson Park Hospital in 1982, he visited her regularly. He further testified that in 1984, he visited decedent four times during her four-day admission to South Community Hospital. He also transported decedent’s brothers Earsie and Timothy Greenlaw to the hospital, and in 1985 or 1986, he picked up Ear-sie on three occasions when he again visited decedent in South Community Hospital. He frequently took decedent to visit his father, Sir Carter Greenlaw, who lived in Gary, Indiana. Petitioner further testified that he signed all necessary documents for the decedent’s funeral arrangements and that the day after decedent’s death he searched for a sewing basket in decedent’s bedroom because this is where decedent told him she had left her will. Although he had seen the sewing basket approximately two weeks prior to decedent’s death, he was now unable to locate the sewing basket or the will. The sewing basket reappeared in the closet after decedent’s funeral, absent any will or a copy of a will. Petitioner testified that various household items, including linen, a telephone with a radio, and a small television set were missing from decedent’s home. Decedent’s rings, diamond watch and mink coat were also missing. Jennifer McWilliams, decedent’s next-door neighbor for 12 years, provided the following testimony: Decedent introduced petitioner to McWilliams, but never introduced or mentioned any other relatives. She conversed with decedent on a daily basis. She testified that decedent told her that the petitioner was always there for her and that she could count on him. Decedent always had a smile on her face when she talked about petitioner. She also had the opportunity to observe petitioner and decedent, and noticed them talking and laughing in the yard. She was aware that petitioner cut decedent’s grass and shoveled her snow. She believed decedent loved petitioner and that there was never a change in these feelings. Yolanda Greenlaw, petitioner’s ex-wife, testified that decedent indicated to her that petitioner was a “very good person.” She further testified that decedent relied upon petitioner in numerous matters. Bessie Challón Greenlaw (Challón), decedent’s niece, testified that she lived with decedent for approximately 18 months beginning in February 1983. Decedent told her that petitioner, at one time, refused to make a household repair at decedent’s home and that decedent on one occasion told petitioner not to cry over his father’s death because “he had did his father so dirty” when he was living. She did not notice a will while residing with decedent, and decedent never mentioned a will. Challon’s testimony also disclosed that a Mr. Coleman cut “the grass *** and fixjed] things around the house.” Katie Mosley, decedent’s former co-worker, testified that she first became acquainted with decedent in 1965. She moved into decedent’s house approximately two to three weeks after Challón moved in and remained there for nine months. She never became aware of decedent’s business papers or a will and was not familiar with McWil-liams, decedent’s next-door neighbor. She was very good friends with Earsie Greenlaw, decedent’s brother. Subsequent to her moving from decedent’s house, she visited decedent on a daily basis. Decedent told her that she wished to change her will and was going to call her lawyer regarding the change. Mosley first testified that the conversation initiated in 1987. After the circuit court noted for the record that decedent died in 1986, Mosley contradicted her testimony on three occasions by testifying that the conversation took place in 1988, 1985 and 1986. Mosley stated that no one else lived with decedent. Decedent informed her that petitioner was not going to “get her property and stuff,” and that decedent “thought [petitioner] was trying to do something slick.” Decedent never had a nice thing to say about petitioner, although petitioner talked with decedent everyday and visited decedent more than any other family member. She further testified that decedent had telephoned petitioner, and on several occasions, petitioner had hung up on her. Mosley’s testimony further provided that decedent owned a mink coat, a television, two rings and a watch. She testified that these items were missing subsequent to decedent's death, but she never inquired as to their whereabouts. Monique Greenlaw, petitioner’s daughter, testified that decedent informed her in 1985 that she kept her will in a wicker sewing basket located in the middle bedroom of her home. She went to decedent’s home after the funeral to locate the decedent’s will and found a copy of the will in the sewing basket and in a drawer in the dining room. She further testified that she accompanied Earsie and Timothy Greenlaw, Ethel McCoy and her daughter, Tobiatha, and Katie Mosley to area banks following decedent’s death to determine their interest in the four or five bank books that were said to exist. She testified that one account containing $4,000 named petitioner and decedent as joint tenants. Two accounts in the amounts of $37,000 and $26,000 named Earsie and Timothy Greenlaw, along with decedent, as joint tenants. Another account containing $35,000 named Earsie and decedent as joint tenants. They searched for a safety deposit box, but one was not located. Monique testified that she overheard Katie Mosley state that “[she] want[ed] the house.” Monique’s testimony also disclosed that decedent made loans to Timothy Greenlaw and petitioner and these loans were never repaid. Ethel McCoy testified that three days prior to decedent being admitted to the hospital, she was the only person living with decedent. She further testified, in contradiction of earlier deposition testimony wherein she stated that she received decedent’s bank books while the decedent was lying in bed, that decedent handed her some door keys and bank books while decedent was being carried out on the stretcher to the ambulance. Thereafter, McCoy testified that decedent gave her the bank book and keys inside the house. Earsie Greenlaw, decedent’s brother, testified that he was frequently in decedent’s home prior to her death. He also testified that he resided in decedent’s house subsequent to her death, and that petitioner, Timothy Greenlaw and Katie Mosley all had keys to decedent’s house. He testified that he never took anything from decedent’s home. Initially, we address petitioner’s first procedural contention that respondents have not invoked the jurisdiction of this court under Supreme Court Rule 304(b)(1).(107 Ill. 2d R. 304(b)(1)). Rule 304(b)(1) provides: “Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable ***: (1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” (107 Ill. 2d R. 304(b)(1).) Committee Comments on Rule 304(b)(1) provide: “Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate ***.” (107 Ill. 2d R. 304, Committee Comments, at 399.) We believe that our jurisdiction has been properly invoked here under Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)). Under Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)), orders admitting wills to probate subsequent to a section 6 — 4 hearing under the Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 6 — 4) are appealable. See In re Estate of Millsap (1979), 75 Ill. 2d 247, 388 N.E.2d 374; In re Estate of Marcucci (1973), 54 Ill. 2d 266, 296 N.E.2d 849; In re Estate of Lynch (1982), 103 Ill. App. 3d 506, 431 N.E.2d 734. Petitioner next argues that Larguster Jones, decedent’s nephew, lacks standing to bring this appeal on the grounds that he was not a party to the action in the circuit court. We disagree. The fact that Jones was not a party to the action in the circuit court does not prevent his joining in this appeal. Supreme Court Rule 301 (107 Ill. 2d R. 301) provides that “[a]ll rights that could have been asserted by appeal or writ of error may be asserted by appeal.” A nonparty has standing to appeal if he has a direct, immediate and substantial interest in the subject matter, which would be prejudiced by the judgment or benefited by its reversal. In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 387, 359 N.E.2d 109, 111; Flanagan v. Hulman (1970), 121 Ill. App. 2d 382, 387, 257 N.E.2d 599, 601. Jones’ interest in this litigation is sufficient to meet the above test. If the order admitting decedent’s will to probate is reversed, Jones may inherit a portion of decedent’s estate under the rules of intestate succession. Since Jones has a direct, immediate and substantial interest in the subject matter, which would be prejudiced by the circuit court’s order or benefited by its reversal, he is a proper party to the instant appeal. We now turn to respondents’ contention on appeal that the circuit court erred in its finding that the presumption of revocation, arising from nonproduction of the original February 1982 will, was overcome by the evidence presented by petitioner. We find that the circuit court’s conclusion was amply supported by the evidence. The law is well established regarding lost or missing wills. It is established: “Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. [Citations.] The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator’s death.” (In re Estate of Moos (1953), 414 Ill. 54, 57, 110 N.E.2d 194, 195, noted in In re Estate of Millsap (1979), 75 Ill. 2d 247, 250, 388 N.E.2d 374, 376-77.) (See also In re Estate of Weir (1983), 120 Ill. App. 3d 18, 20, 458 N.E.2d 134, 136; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58, 378 N.E.2d 800, 802.) Factors to be considered in addressing the rebuttal of the presumption include evidence as to statements from the testator that he did not intend to revoke the will, evidence that he entertained a kind and loving attitude toward the proposed beneficiary under the will up to the time of death, and evidence of other individuals’ access to the will prior to death. (See Moos, 414 Ill. 54, 110 N.E.2d 194; In re Estate of Morgan (1945), 389 Ill. 484, 59 N.E.2d 800; Holler v. Holler (1921), 298 Ill. 418, 131 N.E. 663; In re Estate of Deskins (1984), 128 Ill. App. 3d 942, 471 N.E.2d 1018; Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 268 N.E.2d 62.) In cases where the issue is raised whether some person has unlawfully destroyed a missing will, however, it will not be presumed that a missing will has been destroyed by any other person, without the knowledge of or authority of the testator, although such person may have had the motive and the opportunity, as that would be presuming a crime. Moos, 414 Ill. at 60, 110 N.E.2d at 197; Holler, 298 Ill. at 432, 131 N.E. at 669; St. Mary’s Home for Children v. Dodge (1913), 257 Ill. 518, 526, 101 N.E. 46, 49. Our supreme court has noted that because the evidence with respect to any rebuttal will vary from case to case, other cases “constitute little assistance in [making] the determination” whether the presumption has been overcome. (Morgan, 389 Ill. at 487, 59 N.E.2d at 801; see also Moos, 414 Ill. at 60-61, 110 N.E.2d at 197.) We therefore determine the instant case on its own facts, in light of the above rules. Based on a review of the evidence, we find that petitioner presented sufficient evidence to overcome the presumption of revocation. The record indicates that decedent directed the preparation of the February 4, 1982, will, and the will was executed and attested to on that date. The original of decedent’s will, along with unexecuted copies of the will, was retained by decedent and placed in a wicker sewing basket at her residence. Both petitioner and his daughter were informed of the will’s location. Before decedent’s death, petitioner searched decedent’s house for the will, but was unable to locate the will. After decedent’s funeral he returned to decedent’s home and found the wicker sewing basket, absent any will or a copy of a will. Subsequent to decedent’s death, Monique Greenlaw, petitioner’s daughter, located a copy of the will in the sewing basket and an additional copy in a drawer in decedent’s dining room. The original will was never found. Testimony disclosed that decedent expressed a strong desire to make a will for fear that her estranged relatives would inherit under the laws of intestate succession. She informed her attorneys that she did not want relatives whom she barely knew, others she did not know, brothers that were of no help to her and sisters who never visited her, to receive any portion of her estate. Decedent not only intended the petitioner to be the sole beneficiary under the will, but also named him as joint tenant on a $4,000 bank account. Decedent never removed petitioner’s name from the bank account, nor was there any evidence offered to show that she was dissatisfied with the joint tenancy arrangement. Decedent never contacted her attorneys regarding any modification to the February 1982 will and never expressed to her attorneys any displeasure with the will’s provisions. Her attorneys both testified that she was aware of the effect of the will and that she understood it to be her “last will and testament.” Marchman testified that she read the February 1982 will and that at no time did decedent indicate an intent to change this will. She spoke to decedent in the hospital just prior to her death, and decedent informed her that “everything [was] in order,” and that petitioner was aware of her business. We find it significant that decedent never informed Marchman, her close friend and business advisor, of any revocatory intention. Decedent’s next-door neighbor described a loving relationship between decedent and petitioner. She testified that petitioner aided decedent with housework and other chores. Decedent relied on petitioner for transportation, and decedent viewed petitioner as if he were the son she never had. Additional testimony disclosed that decedent characterized petitioner as a “very nice person.” Petitioner visited decedent frequently, both at home and during her many hospital admissions and transported decedent’s relatives to and from the hospitals where decedent was admitted. He provided comfort and cheer to decedent’s life. Lastly, we note the evidence that many individuals had unrestricted access to decedent’s home and that several items of personalty were missing after decedent’s death. While none of the above evidence taken alone would be sufficient to rebut the presumption of revocation, taken together, in its entirety, we believe the evidence sufficiently establishes decedent’s continuing unchanged attitude of love and affection toward petitioner and the disposition of the property in her February 4, 1982, will. Given the harmonious relations between decedent and petitioner,. supplemented by the evidence that decedent wished to disinherit her relatives, it is unlikely that decedent revoked her will here. See Moos, 414 Ill. 54, 110 N.E.2d 194; Deskins, 128 Ill. App. 3d 942, 471 N.E.2d 1018; In re Estate of Babcock (1983), 119 Ill. App. 3d 482, 456 N.E.2d 671. While we are cognizant of the contradicting testimony that decedent intended to change her will and did not want petitioner to “get her property and stuff,” it is within the province of the circuit court to determine questions of credibility and the weight to be given evidence, and its findings will not be disturbed unless contrary to the manifest weight of the evidence, (Weir, 120 Ill. App. 3d at 21, 458 N.E.2d at 136-37; Netherton, 62 Ill. App. 3d at 57, 378 N.E.2d at 802.) We find no basis to substitute our judgment for that of the circuit court. For the reasons stated, we affirm the order of the circuit court of Cook County admitting decedent’s will to probate. Affirmed. CAMPBELL and MANNING, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2609209/ | 384 P.2d 267 (1963)
Petition of James Carlos PIGG for leave to Proceed In Forma Pauperis for Writ of Error and Application for Appointment of Counsel.
No. 20832.
Supreme Court of Colorado. En Banc.
June 24, 1963.
James Carlos Pigg, pro se.
PRINGLE, Justice.
On May 31, 1963 James Carlos Pigg, a prisoner in the state penitentiary, filed in this Court a motion or petition seeking to prosecute, in forma pauperis, a writ of error to a judgment of the district court of the City and County of Denver denying a writ of habeas corpus. Included in the motion was a request that this Court assign counsel to him for the purpose of prosecuting a writ of error to such judgment.
The leave to proceed in forma pauperis in this Court is granted and the writ of error is ordered issued. The petitioner's request to have this Court assign counsel to him for the purpose of prosecuting such writ of error is denied. The proper forum for appointment of counsel on behalf of an *268 indigent defendant to prosecute a writ of error following conviction of a crime in the trial court, or an adverse judgment in a habeas corpus matter testing the propriety of the confinement of the applicant arising from a criminal proceeding, is the trial court. If on application to the trial court, counsel for the purpose of review is denied the applicant, the proper methods to review such action in this Court are available to the applicant.
The rule we have stated applies whether or not a writ of error has already been issued by this Court. See In the Matter of the Petition of Alexander Griffin, Colo., 382 P.2d 202, opinion by Mr. Justice Moore announced May 20, 1963. See also Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4520564/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01213-CV
CHRISTOPHER WREH, Appellant
V.
ALEX GIANOTOS, BOSTEN GOLDSCHMIED, & BG INCORPORATED,
Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-19-05068-D
ORDER
Before the Court is appellant’s March 23, 2020 emergency motion for
extension of time to file his corrected brief. Appellant explains the extension is
necessary because a “malware/ransomware program” installed itself in his
computer where he had the revised brief.
We GRANT the motion and EXTEND THE TIME to April 22, 2020.
/s/ KEN MOLBERG
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3161969/ | Slip Op. 15 -
UNITED STATES COURT OF INTERNATIONAL TRADE
SOLARWORLD AMERICAS, INC.,
Plaintiff,
Before: Donald C. Pogue,
v. Senior Judge
UNITED STATES, Court No. 13-000071
Defendant.
OPINION
[affirming the Department of Commerce’s final determination in
countervailing duty investigation]
Dated: December 11, 2015
Timothy C. Brightbill and Laura El-Sabaawi, Wiley Rein
LLP, of Washington, DC, for the Plaintiff.
Melissa M. Devine, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. Also on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Lisa Wang, Attorney, Office
of the Chief Counsel for Trade Enforcement & Compliance, U.S.
Department of Commerce.
Pogue, Senior Judge: In this case, Plaintiff
SolarWorld Americas Incorporated (“SolarWorld”) challenges the
United States Department of Commerce’s (“Commerce”)
1 This case was previously consolidated into
Consol. Ct. No. 13-00009, Order, June 12, 2013, ECF No. 37,
at ¶ 3, but was subsequently severed therefrom, Order,
Aug. 4, 2015, ECF No. 38; Order, Aug. 20, 2015, ECF No. 40.
Court No. 13-00007 Page 2
determination, during the countervailing duty (“CVD”)
investigation of crystalline silicon photovoltaic cells (“solar
cells”) from the People’s Republic of China (“PRC” or “China”),
to defer examination of two subsidy allegations until a
subsequent administrative review.2
The court has jurisdiction pursuant to
Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1516a(a)(2)(B)(i) (2012),3 and 28 U.S.C.
§ 1581(c) (2012).
As explained below, because the challenged agency
determinations are based on a reasonable reading of the record
evidence and free of error of law or judgment, and are therefore
not an abuse of the agency’s discretion, Commerce’s Final
2 See SolarWorld’s Mot. for J. on the Agency R.,
Consol. Ct. No. 13-00009, ECF Nos. 78 (conf. version) & 79
(pub. version) (“Pl.’s Br.”); [Solar Cells], Whether or Not
Assembled into Modules, from [China], 77 Fed. Reg. 63,788
(Dep’t Commerce Oct. 17, 2012) (final affirmative countervailing
duty determination and final affirmative critical circumstances
determination) (“Final Determination”) and accompanying Issues
& Decision Mem., C-570-980, Investigation (Oct. 9, 2012)
(“I&D Mem.”) cmt. 10 at 36-38. The period of investigation
(POI”) was January 1, 2010, through December 31, 2010. [Solar
Cells], Whether or Not Assembled into Modules, from [China],
76 Fed. Reg. 70,966, 70,966 (Dep’t Commerce Nov. 16, 2011)
(initiation of countervailing duty investigation) (“Initiation
Notice”).
3 Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
2012 edition.
Court No. 13-00007 Page 3
Determination in this CVD investigation is sustained.
BACKGROUND
“A countervailing duty investigation shall be
initiated whenever [Commerce] determines, from information
available to it, that a formal investigation is warranted into
the question of whether the elements necessary for the
imposition of a duty under [19 U.S.C. § 1671(a)] exist.”4 In
this case, Commerce initiated a CVD proceeding based on
SolarWorld’s petition, which initially covered twenty-seven
separate Chinese government programs that SolarWorld alleged
provided countervailable subsidies to the respondents during the
POI.5 Thereafter, SolarWorld submitted additional allegations
regarding the aluminum extrusions and glass used to assemble
solar cells into solar panels or modules. These latter two
allegations are the subject of this dispute. Relevant
background with respect to each of these allegations is
presented below.
I. Aluminum Extrusions
SolarWorld’s initial petition included an allegation
4 19 U.S.C. § 1671a(a).
5 Initiation Notice, 76 Fed. Reg. at 70,968-69; see 19 U.S.C.
§ 1671(a) (providing for the imposition of duties “equal to the
amount of the net countervailable subsidy”).
Court No. 13-00007 Page 4
that the Chinese government was providing primary aluminum to
producers of subject merchandise for less than adequate
remuneration.6 Responding to Commerce’s inquiries regarding this
allegation, however, both mandatory respondents in Commerce’s
investigation7 stated that they purchased and used extruded
aluminum, rather than primary aluminum, in producing the subject
merchandise during the POI.8 SolarWorld then, on February 14,
6 See [SolarWorld’s] Pet. for the Imposition of Antidumping
& Countervailing Duties Pursuant to Sections 701 & 731 of the
Tariff Act of 1930, As Amended, Vol. III (Information Relating
to the People’s Republic of China – Countervailing Duties)
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Oct. 19, 2011),
reproduced in Def.’s App., ECF No. 44-1 at Tab 1 (“SolarWorld’s
Initial CVD Petition”), at 39-42 (alleging governmental
provision of “primary aluminum” for less than adequate
remuneration); Initiation Notice, 76 Fed. Reg. at 70,969
(initiating investigation into “Government Provision of Aluminum
for [Less Than Adequate Remuneration]”).
7 Commerce determined that resource constraint enabled the agency
to individually examine no more than two producers/exporters,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], 77 Fed. Reg. 17,439, 17,439 (Dep’t Commerce Mar. 26,
2012) (preliminary affirmative countervailing duty
determination) (“Prelim. Determination”), and selected Changzhou
Trina Solar Energy Co., Ltd. (“Trina Solar”) and Wuxi Suntech
Power Co., Ltd. (“Wuxi Suntech”) – the “two largest producers/
exporters of subject merchandise, based on aggregate value, to
the United States” – as the two “mandatory respondents.” Id.
(citation omitted).
8 CVD Questionnaire Resp. of [Trina Solar], Vol. 1, [Solar
Cells], Whether or Not Assembled into Modules, from [China],
C-570-980, Investigation (Jan. 31, 2012), reproduced in Def.’s
App., ECF No. 44-5 at Tab 11, at III-49 (“Trina Solar only
purchased aluminum frames, a kind of aluminum extrusion. It did
not purchase primary aluminum. Moreover, Trina Solar did not
(footnote continued)
Court No. 13-00007 Page 5
2012 (Commerce’s extended deadline for new subsidy allegations9),
submitted a new subsidy allegation, claiming that the Chinese
government was providing aluminum extrusions to respondents for
less than adequate remuneration during the POI.10 Finding no
support on the record for an alleged price differential or other
information indicating that aluminum extrusions were being sold
to respondents at less than adequate prices, however,11 Commerce
purchase such frames from producers of primary aluminum.”);
Countervailing Duty Questionnaire Resp. of [Wuxi Suntech],
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Jan. 31, 2012),
reproduced in Def.’s App., ECF No. 44-5 at Tab 10, at 35 (“Wuxi
Suntech did not purchase virgin aluminum during the POI, it just
purchased aluminum extrusion[s] during the POI.”).
9 New subsidy allegations were initially due no later than
40 days before the scheduled date of the agency’s preliminary
determination. 19 C.F.R. § 351.301(d)(4)(i)(A) (2011). In this
case, the scheduled date for the preliminary determination was
originally January 12, 2012, see Prelim. Results, 77 Fed. Reg.
at 17,440, although that date was ultimately extended to
March 26, 2012, id. at 17,439 (effective date). Upon
SolarWorld’s request, Commerce extended the deadline for
submission of additional subsidy allegations until February 14,
2012. Id. at 17,440.
10[SolarWorld’s] New Subsidy Allegations, [Solar Cells], Whether
or Not Assembled into Modules, from [China], C-570-980,
Investigation (Feb. 15, 2012) (public version),
reproduced in Def.’s App., ECF No. 44-5 at Tab 13, at 32-44
(“SolarWorld’s 2d Aluminum Allegation”); see Prelim.
Determination, 77 Fed Reg. at 17,440 (noting that SolarWorld
initially submitted these new subsidy allegations on February
14, 2012).
11Analysis of Feb. 14, 2012 New Subsidy Allegations, [Solar
Cells], Whether or Not Assembled into Modules, from [China],
C-570-980, Investigation (May 11, 2012), reproduced in Def.’s
App., ECF No. 44-6 at Tab 21 (“Determ. Not To Initiate Aluminum
(footnote continued)
Court No. 13-00007 Page 6
determined that SolarWorld’s allegation failed to satisfy the
statutory requirements for initiation of a petition-based
investigation pursuant to 19 U.S.C. § 1671a(b).12 Accordingly,
Commerce determined not to initiate an investigation of this
alleged subsidy.13
In response, on May 15, 2012, SolarWorld submitted new
Extrusions”), at 9; see also id. (“[T]here is no other
information on the record regarding possible benchmark prices
for aluminum extrusions that could possibly be used to
demonstrate a potential benefit.”); see 19 U.S.C. § 1671(a)
(providing for the imposition of CVD duties “equal to the amount
of the net countervailable subsidy”); id. at § 1677(5)(B)
(defining “countervailable subsidy” as requiring, inter alia,
that “a benefit is thereby conferred”); id. at § 1677(5)(E)(iv)
(defining “benefit conferred,” “in the case where goods or
services are provided,” as where “such goods or services are
provided for less than adequate remuneration,” and providing
that “the adequacy of remuneration shall be determined in
relation to prevailing market conditions for the good or service
being provided,” where the prevailing market conditions are
defined to “include price, quality, availability, marketability,
transportation, and other conditions of purchase or sale”).
12See Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; 19 U.S.C. § 1671a(b)(1) (requiring petitions
for initiating CVD investigations to allege all “elements
necessary for the imposition of the duty imposed by [19 U.S.C.
§] 1671(a)” and to be “accompanied by information reasonably
available to the petitioner supporting those allegations”).
13Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; see also Post-Prelim. Analysis, [Solar Cells],
Whether or Not Assembled into Modules, from [China], C-570-980,
Investigation (June 22, 2012), reproduced in Def.’s App.,
ECF No. 44-6 at Tab 23 (“Post-Prelim. Determination”), at 15
(explaining that Commerce “rejected [SolarWorld’s 2d Aluminum
Allegation] because it did not document prices Petitioner
claimed were being paid inside and outside the PRC for aluminum
extrusions”) (citation omitted).
Court No. 13-00007 Page 7
factual information regarding aluminum extrusion prices, to
support its February 14, 2012, allegation.14 Commerce, however,
determined that, at this point in the proceeding, insufficient
time remained to complete the investigation of aluminum
extrusions, and as such declined to initiate this additional
investigation,15 noting that the decision not to initiate was “in
no way a comment on the merits of [the] allegation[], which
[SolarWorld] may resubmit at the outset of any administrative
review, if an order is issued in this proceeding.”16 SolarWorld
now challenges Commerce’s decision not to initiate an
investigation into SolarWorld’s aluminum extrusions subsidy
allegation, and instead to defer consideration of this
allegation until the next administrative review.17
II. Glass
Meanwhile, on December 5, 2011, SolarWorld also
submitted an additional subsidy allegation claiming that the
14[SolarWorld’s] Comments on the Dep’t’s Analysis of Provision
of Aluminum Extrusions for Less than Adequate Remuneration
Allegation, [Solar Cells], Whether or Not Assembled into
Modules, from [China], C-570-980, Investigation (May 15, 2012),
reproduced in Def.’s App., ECF No. 44-6 at Tab 22 (“SolarWorld’s
3d Aluminum Allegation”), at 4 & Ex. 1.
15 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15-16.
16 Id. at 16.
17Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-29.
Court No. 13-00007 Page 8
Chinese government provided glass to Chinese solar cell
producers for less than adequate remuneration during the POI.18
Commerce, however, determined not to initiate an investigation
of this additional allegation, finding the allegation deficient
because (1) it did not provide any information regarding the
specific type of glass used in the production of subject
merchandise, or explain why such information was not available;
(2) it was not accompanied by documentation necessary to support
the claim that several Chinese glass producers are state-owned
enterprises; (3) it was not accompanied by actual source
documentation supporting the allegation of benefit; and (4) the
allegation of specificity19 was unsupported and unexplained.20
SolarWorld then re-submitted its subsidy allegation
regarding the governmental provision of glass for less than
18[SolarWorld’s] Additional Subsidy Allegation, [Solar Cells],
Whether or Not Assembled into Modules, from [China], C-570-980,
Investigation (Dec. 5, 2011), reproduced in Def.’s App.,
ECF No. 44-1 at Tab 2 (“SolarWorld’s 1st Glass Allegation”).
19See 19 U.S.C. § 1677(5)(A) (providing that a countervailable
subsidy must be “specific as described in [19 U.S.C.
§ 1677](5A)”); id. at § 1677(5A) (defining relevant
specificity).
20Initiation Analysis of Dec. 5, 2011 New Subsidy Allegation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Dec. 22, 2011), reproduced in
Def.’s App., ECF No. 44-1 at Tab 3 (“Rejection of SolarWorld’s
1st Glass Allegation”), at 2-3.
Court No. 13-00007 Page 9
adequate remuneration.21 In this new submission, SolarWorld
alleged that the type of glass used in the production of subject
merchandise “is a type of flat glass called ‘float glass,’”22
which is “made through the ‘float process,’ in which glass is
formed on a bath of molten tin.”23 To support its allegation
that respondents received a benefit24 from the governmental
provision of glass, SolarWorld argued that “Chinese [solar cell]
producers purchase float glass from [state-owned enterprises] at
below-market prices,”25 and supported its claim with pricing data
exclusively specific to float glass.26
Based on this re-submitted glass subsidy allegation,
21[SolarWorld’s] Re-Submission of Additional Subsidy Allegation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Jan. 23, 2012),
reproduced in [Conf. & Pub.] App. to SolarWorld’s Mot. for J. on
the Agency R., Ct. No. 13-00009, ECF Nos. 80-3 (conf. version)
& 81-3 (pub. version) (“Pl.’s App.”) at Tab 22 (“SolarWorld’s 2d
Glass Allegation”).
22 Id. at 2 (emphasis added).
23 Id. (citation omitted).
24See 19 U.S.C. § 1677(5)(B) (providing that a “countervailable
subsidy” requires that “a benefit” is conferred); id.
at § 1677(5)(E)(iv) (providing that a benefit is conferred,
inter alia, when “goods or services are provided for less than
adequate remuneration”).
25SolarWorld’s 2d Glass Allegation, ECF Nos. 80-3 & 81-3
at Tab 22, at 6.
26Id. (relying on id. at Ex. 2 (U.S. Exports of Float Glass:
2010 Monthly Prices) & Ex. 3 (Float Glass in China: 2010 Monthly
Prices)).
Court No. 13-00007 Page 10
Commerce determined to initiate “an investigation of the
allegation with respect to the [Government of China]’s provision
of float glass for [less than adequate remuneration].”27
Responding to the agency’s questionnaires, however, both
mandatory respondents reported that “rolled glass,” as distinct
from float glass, was the major input used in their solar
modules.28 In reply, SolarWorld then sought to amend the scope
of the investigation, “to cover all glass used by Chinese
respondents in their production of subject merchandise,”29
arguing that Commerce’s limitation of the investigation to float
glass was “not fully reflective of Petitioner’s allegation,”30
27Initiation of New Subsidy Allegation on the Provision of Glass
for Less Than Adequate Remuneration, [Solar Cells], Whether or
Not Assembled into Modules, from [China], C-570-980,
Investigation (Mar. 8, 2012), reproduced in Def.’s App.,
ECF No. 44-5 at Tab 14 (“Float Glass Initiation”), at 3
(emphasis added).
28See Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12
(“While Suntech and Trina Solar each reported small purchases of
‘float glass,’ both respondents reported that ‘rolled glass’ is
the major glass input used in their solar modules, not float
glass.”) (emphasis added).
29[SolarWorld’s] Comments on the Provision of Glass for Less
than Adequate Remuneration Subsidy Allegation & Initiation,
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (May 2, 2012), reproduced in
Def.’s App., ECF No. 44-5 at Tab 19 (“SolarWorld’s 3d Glass
Allegation”), at 3 (emphasis added); see also id. at 4
(requesting that Commerce “amend its notice of initiation to
include the provision of all glass used in the production of
subject merchandise”).
30 Id. at 4.
Court No. 13-00007 Page 11
or, in the alternative, requesting permission to submit an
additional allegation specific to rolled glass.31
Commerce rejected SolarWorld’s contention that the
subsidy allegation on which Commerce based its initiation was
sufficient to cover types of glass beyond float glass,
emphasizing that the “initiation memorandum stated clearly that
the investigation was limited to float glass”32 because “[t]he
information provided by [SolarWorld] pertained solely to float
glass, which is clearly distinct from rolled glass,”33 and as
such “there was no basis to expand the allegation to cover
rolled glass.”34
31 See id. at 5.
32 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15.
33I&D Mem. cmt. 10 at 38; see [Suppl. Resp. of Wuxi Suntech],
[Solar Cells], Whether or Not Assembled into Modules, from
[China], C-570-980, Investigation (Apr. 10, 2012), reproduced in
Def.’s App., ECF No. 44-5 at Tab 18, at 2-3 (“During the POI,
Wuxi Suntech used both float glass and rolled glass in its
module operations. Rolled glass is fundamentally different from
float [g]lass . . . . Specifically, the molding process is
entirely different for the two types of glasses. Rolled glass
is produced by pouring molten glass onto two rollers to achieve
an even thickness, which process also makes polishing easier.
The end-product is used to produce patterned and wired glass.
In contrast, float glass is produced by pouring molten glass
onto a bed of molten tin and drawing off in continuous ribbon,
which process gives high quality flat glass a fire polish finish
besides even thickness. As such, rolled glass and float glass
are two entirely different products, and thus cannot be treated
as one of the same.”).
34 I&D Mem. cmt. 10 at 38.
Court No. 13-00007 Page 12
In addition, Commerce also denied SolarWorld
permission to submit additional glass subsidy allegations,
explaining that investigations into whether an input is being
provided for less than adequate remuneration “require gathering
detailed information concerning the ownership and management of
numerous producers supplying the input, evaluating extensive
purchase information, and conducting extensive analysis of the
input market and research into possible benchmarks,”35 and as
such “are particularly time consuming and would be difficult to
complete at such a late stage in an investigation.”36
Acknowledging that the agency may examine practices
that appear to be countervailable subsidies discovered at any
time during the course of an investigation, Commerce explained
that it has the authority in such circumstances to “defer
examination of any such practice if there is insufficient time
remaining before the final determination,”37 and noted that the
agency’s “rejection of [SolarWorld]’s arguments is in no way a
comment on the merits of those allegations, which [SolarWorld]
may resubmit at the outset of any administrative review, if an
35 Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16.
36 Id.
37 Id. (citing 19 C.F.R. § 351.311(c)).
Court No. 13-00007 Page 13
order is issued in this proceeding.”38
Because the value of each respondent’s total purchases
of float glass during the POI was less than 0.005 percent of
their respective total sales, Commerce found that “any benefit
from this program would have no impact on the overall subsidy
rate.”39 Commerce therefore determined not to include the
governmental provision of float glass within the agency’s net
subsidy calculations in this investigation.40
SolarWorld now claims that “Commerce’s interpretation
of SolarWorld’s allegation as solely pertaining to float glass,
which respondents largely did not use, was unreasonable, and its
failure to investigate the Chinese government’s provision for
[less than adequate remuneration] of the glass used by
respondents . . . was unlawful.”41
Following a brief statement of the relevant standards
of review, SolarWorld’s claims are addressed below.
STANDARD OF REVIEW
The court will sustain Commerce’s countervailing duty
38 Id.
39Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12
(citations omitted).
40 Id. at 13.
41 Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 32.
Court No. 13-00007 Page 14
determinations if they are supported by substantial evidence and
are otherwise in accordance with law.42 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,”43 and the substantial evidence
standard of review “can be translated roughly to mean ‘is [the
determination] unreasonable?’”44
Where the statute and regulations leave the agency
with some freedom to use its judgment, the court reviews such
decisions for abuse of discretion.45 “An abuse of discretion
occurs where the decision is based on an erroneous
interpretation of the law, on factual findings that are not
supported by substantial evidence, or represent an unreasonable
judgment in weighing relevant factors.”46
DISCUSSION
When an interested party like SolarWorld47 files a
42 See 19 U.S.C. § 1516a(b)(1)(B)(i).
43 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
44Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351
(Fed. Cir. 2006) (citation omitted, alteration in the original).
45See, e.g., Wuhu Fenglian Co. v. United States, 36 CIT __,
836 F. Supp. 2d 1398, 1403 (2012).
46WelCom Prods., Inc. v. United States, 36 CIT __,
865 F. Supp. 2d 1340, 1344 (2012) (citing Star Fruits S.N.C.
v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005)).
47 See 19 U.S.C. § 1677(9)(C) (defining “interested party” as,
(footnote continued)
Court No. 13-00007 Page 15
timely48 petition that (1) alleges all elements necessary for the
imposition of a countervailing duty pursuant to 19 U.S.C.
§ 1671(a); and (2) “is accompanied by information reasonably
available to the petitioner supporting those allegations,”49
Commerce must initiate an investigation into “whether the
elements necessary for the imposition of a duty under [19 U.S.C.
§ 1671(a)] exist.”50 Where this is not the case, but Commerce
nevertheless “discovers [in the course of a CVD proceeding] a
practice which appears to be a countervailable subsidy [with
respect to the merchandise which is the subject of the
proceeding],”51 then Commerce “shall include the practice,
subsidy, or subsidy program in the proceeding,”52 as long as
Commerce “concludes that sufficient time remains before the
inter alia, “a manufacturer, producer, or wholesaler in the
United States of a domestic like product”); Compl., ECF No. 8,
at ¶ 3 (stating that SolarWorld “is a manufacturer of the
domestic like product in the United States”).
48See 19 U.S.C. § 1671a(b)(1) (providing that “[t]he petition
may be amended at such time, and upon such conditions, as
[Commerce] may permit”).
49 Id.
50Id. at §§ 1671a(a)-(b)(1) (providing that “[a] countervailing
duty proceeding shall be initiated” under such circumstances)
(emphasis added).
51 19 U.S.C. § 1677d.
52 Id. at § 1677d(1).
Court No. 13-00007 Page 16
scheduled date for the final determination.”53 If Commerce
concludes that insufficient time remains, however, then the
agency may defer its examination until a subsequent
administrative review, if any.54
Here, SolarWorld argues that Commerce unreasonably
decided to defer until the next administrative review its
investigations into the Chinese government’s alleged provision
of aluminum extrusions and rolled glass to producers of subject
merchandise for less than adequate remuneration.55 Specifically,
SolarWorld argues, first, that its latest timely aluminum
extrusions and glass allegations both satisfied the requirements
of 19 U.S.C. §§ 1671a(b)(1) and 1671(a), such that Commerce was
required to initiate investigations into these allegations
5319 C.F.R. § 351.311(b). The validity of this regulation is
uncontested here. See Pl.’s Br., Consol. Ct. No. 13-00009,
ECF Nos. 78 & 79, at 24 (relying on this regulation);
cf., e.g., Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978) (“Absent constitutional
constraints or extremely compelling circumstances the
administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.”)
(quotation marks and citation omitted).
54 19 C.F.R. § 351.311(c).
55See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-39; cf. Post-Prelim. Determination, ECF No. 44-6
at Tab 23, at 15-16 (unchanged in the Final Determination,
77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38).
Court No. 13-00007 Page 17
during this CVD proceeding;56 or, in the alternative, that even
if these allegations were deficient under 19 U.S.C.
§ 1671a(b)(1), Commerce unreasonably determined that
insufficient time remained to permit SolarWorld to file
additional allegations, or to examine these allegations as
discovered practices that appear to be countervailable
subsidies, pursuant to 19 U.S.C. § 1677d.57 Each argument is
addressed in turn below.
I. Petition-Based Initiation Under 19 U.S.C. § 1671a(b):
Deficiencies in SolarWorld’s Timely Glass and Aluminum
Extrusions Allegations
First, SolarWorld challenges Commerce’s determinations
that SolarWorld’s latest timely subsidy allegations regarding
56See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 15-17 (arguing that Commerce improperly determined that
SolarWorld’s timely aluminum extrusions allegation was
deficient); id. at 29-32 (arguing that Commerce improperly
determined that SolarWorld’s timely glass allegation was limited
to float glass, which the respondents purchased only in
negligible quantities, rather than all glass used by the
respondents).
57See id. at 17-23 (arguing that Commerce unreasonably denied
SolarWorld permission to file additional information regarding
its aluminum extrusions allegation); id. at 23-29 (arguing that
Commerce improperly failed to initiate an examination of
apparent aluminum extrusions subsidies pursuant to 19 U.S.C.
§ 1677d); id. at 32-34 (arguing that Commerce unreasonably
denied SolarWorld permission to file additional information
regarding its glass allegation); id. at 34-39 (arguing that
Commerce improperly failed to initiate an examination of
apparent rolled/patterned glass subsidies pursuant to 19 U.S.C.
§ 1677d).
Court No. 13-00007 Page 18
aluminum extrusions and non-float glass did not sufficiently
allege and document all elements necessary for the imposition of
countervailing duties.58 Specifically, with regard to
SolarWorld’s latest timely aluminum extrusions allegation,
Commerce found that the element of ‘benefit conferred’ was
improperly alleged because it lacked supporting documentation.59
With regard to glass, Commerce found that the type of glass with
respect to which SolarWorld alleged and documented sufficient
information to initiate an investigation was purchased in such
negligible quantities by the mandatory respondents that any
benefit therefrom would not affect the overall subsidy rate, and
the allegation did not sufficiently allege and document all
necessary elements with respect to any other type of glass.60
SolarWorld challenges each of these determinations.
58See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 15-17, 29-32.
59Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; Post-Prelim. Determination, ECF No. 44-6
at Tab 23, at 15 (explaining that Commerce “rejected
[SolarWorld’s Feb. 14, 2012 aluminum extrusions] allegation
because it did not document prices Petitioner claimed were being
paid inside and outside the PRC for aluminum extrusions”)
(citation omitted) (unchanged in the Final Determination,
77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38); see supra
Background Section I.
60Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 12-13;
I&D Mem. cmt. 10 at 38; see supra Background Section II.
Court No. 13-00007 Page 19
A. Aluminum Extrusions
SolarWorld claims that Commerce improperly declined to
initiate a petition-based investigation under 19 U.S.C.
§ 1671a(b) into whether aluminum extrusions were being provided
to respondents for less than adequate remuneration during the
POI.61 But as Commerce explained, SolarWorld’s timely allegation
regarding the provision of aluminum extrusions failed to satisfy
the requirements for initiation under 19 U.S.C. § 1671a(b),
because it did not provide any support for its pricing
assertions.62 Section 1671a(b)(1) requires Commerce to initiate
CVD investigations when an interested party alleges all of “the
elements necessary for the imposition of the duty” pursuant to
19 U.S.C. § 1671(a), and provides evidentiary support for each
of those allegations.63 One of these necessary elements requires
an allegation, supported with evidence, that “a benefit is . . .
conferred” by the governmental provision of aluminum
extrusions.64 Such a benefit may be demonstrated by price
61Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 13-17.
62See Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9; Post-Prelim. Determination, ECF No. 44-6 at Tab
23, at 15.
63 19 U.S.C. § 1671a(b)(1).
64See 19 U.S.C. § 1677(5)(B) (defining “countervailable subsidy”
as requiring that, inter alia, “a benefit is thereby
conferred”).
Court No. 13-00007 Page 20
comparisons showing that the prices paid by respondents to the
Chinese government constitute “less than adequate
remuneration.”65
Here, Commerce determined that SolarWorld failed to
satisfy the requirements for initiation pursuant to 19 U.S.C.
§ 1671a(b)(1) because there was no “supporting documentation on
the record for the alleged price differential,”66 nor any other
record evidence “which indicates that aluminum extrusions are
being sold at low prices in the PRC.”67 SolarWorld argues that
this determination was unreasonable because SolarWorld alleged
actual prices in the narrative portion of its allegation,
“demonstrating the significant benefit received by Chinese solar
producers during the POI.”68 But accepting this argument would
undermine the statutory requirement that not only must the
Petitioner allege all of the necessary elements, but the
allegations must also be accompanied with reasonably available
65Id. at § 1677(5)(E)(iv) (defining “benefit conferred,” “in the
case where goods or services are provided,” as where “such goods
or services are provided for less than adequate remuneration”).
66Determ. Not To Initiate Aluminum Extrusions, ECF No. 44-6
at Tab 21, at 9.
67 Id.
68See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 16 (citing SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 42).
Court No. 13-00007 Page 21
evidentiary support.69 SolarWorld’s allegation provided no
sources for either the average U.S. export price or the average
Chinese import price alleged.70 As such, SolarWorld did not
“support[] those allegations.”71
Next, SolarWorld argues that Commerce unreasonably
found no support for the benefit element in SolarWorld’s timely
aluminum extrusions allegation, because the allegation “included
significant, documented information on the Chinese government’s
ownership of China’s aluminum industry and on the policies
69 19 U.S.C. § 1671a(b)(1).
70SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5 at Tab 13,
at 42 & nn. 106-107 (providing no source for the Chinese import
prices which SolarWorld claimed to be using “as a proxy for
domestic Chinese prices,” and citing to “ITC Report” for the
U.S. export prices that SolarWorld claimed to be using “as a
proxy for world price”); Ex. 19 to SolarWorld’s 2d Aluminum
Allegation, ECF No. 44-5 at Tab 13 (the sole report from the
International Trade Commission (“ITC”) that was appended to
SolarWorld’s submission, making no mention of prices for
aluminum extrusions); see Determ. Not To Initiate Aluminum
Extrusions, ECF No. 44-6 at Tab 21, at 9 & n.13 (“[SolarWorld]
cites to an ITC report attached to its allegation to support its
world export price[;] however, this report does not address
aluminum, and contains no price data. We were unable to locate
this price anywhere else in the submission or in previous
submissions . . ., and there is no other information on the
record regarding possible benchmark prices for aluminum
extrusions that could possibly be used to demonstrate a
potential benefit.”) (noting that although SolarWorld also “did
not provide a citation for the figure it relied on for the PRC
domestic price,” Commerce “was able to locate this figure as the
POI average unit value of imported aluminum extrusions reported
by the [Government of China] in [a prior submission]”).
71 19 U.S.C. § 1671a(b)(1).
Court No. 13-00007 Page 22
instituted by the Chinese government to manage aluminum
prices,”72 which SolarWorld argues “provided further support for
the pricing data included in the allegation.”73 But the sources
provided in this portion of the allegation give no specific
information regarding aluminum extrusion pricing during the
POI.74 And while the allegation asserts that the Chinese
government “manages basic supply and demand in electrolytic
aluminum (i.e., primary aluminum),”75 and that “low prices are
passed on from the primary aluminum producers through the
aluminum extrusion producers to other downstream users,”76 the
allegation provides no evidence of actual pricing during the
72Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 16
(citing SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 34-42).
73 Id.
74See SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5
at Tab 13, at 34-35 (relying on Ex. III-69 (“Notice of
Guidelines on Accelerating the Adjustment of Aluminum Industry
Structure,” Fa Gai Yun Xing No. 589 (2006)) to SolarWorld’s
Initial CVD Petition, ECF No. 44-1 at Tab 1 Ex. III-69 (“Notice
of Guidelines”) (omitted from Pl.’s App., Consol. Ct.
No. 13-00009, ECF Nos. 80 & 81 at Tab 3) (providing no
information regarding aluminum extrusion prices during the
POI)); id. at 36-42 (providing no additional sources for
aluminum extrusion prices during the POI).
75Id. at 34 (citing Notice of Guidelines, ECF No. 44-1 at Tab 1
Ex. III-69, without providing a pinpoint citation).
76Id. (providing no citation for this proposition, but citing
Notice of Guidelines, ECF No. 44-1 at Tab 1 Ex. III-69, without
providing a pinpoint citation, for the assertion that “[t]he
plan specifically addresses aluminum extrusions,” id. at 34-35).
Court No. 13-00007 Page 23
relevant time period.77
Finally, SolarWorld argues that Commerce itself should
have filled in the evidentiary gap, either by extrapolating from
the agency’s findings in an entirely separate proceeding (where
Commerce found that the Chinese aluminum extrusions industry was
benefitting from certain countervailable subsidies during the
year prior to the POI here),78 or by “obtain[ing] the pricing
data from the International Trade Commission’s publicly
available and easily accessible DataWeb service.”79 But
Commerce’s previous finding, on the record of a separate
77 See id. at 34-43.
78Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 16
(citing Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30,653
(Dep’t Commerce May 26, 2011) (countervailing duty order));
see SolarWorld’s 2d Aluminum Allegation, ECF No. 44-5 at Tab 13,
at 35-36 (arguing that because Commerce “has recently found the
provision of primary aluminum for less than adequate
remuneration to be a countervailable subsidy in Aluminum
Extrusions from China,” Commerce “should find the provision of
aluminum extrusions for less than adequate remuneration to
provide a countervailable subsidy in this investigation”)
(citing Issues & Decision Mem., Aluminum Extrusions from the
[PRC], C-570-968, Investigation (Mar. 28, 2011) (adopted in
76 Fed. Reg. 18,521 (Dep’t Commerce Apr. 4, 2011) (final
affirmative countervailing duty determination) (“Aluminum
Extrusions from China Final CVD Determination”)) at 32-36;
compare Aluminum Extrusions from China Final CVD Determination,
76 Fed. Reg. at 18,521 (providing the POI in the aluminum
extrusions case to have been January 1, 2009, through December
31, 2009), with Notice of Initiation, 76 Fed. Reg. at 70,966
(providing the POI in the CVD proceeding here to have been
January 1, 2010, through December 31, 2010).
79See Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 17 (citation omitted).
Court No. 13-00007 Page 24
proceeding, that some Chinese aluminum extrusions producers were
benefitting from certain governmental subsidies does not in
itself constitute evidence that the Chinese solar panel industry
is therefore benefitting from the governmental provision of
aluminum extrusions for less than adequate remuneration. In
addition, accepting SolarWorld’s argument that Commerce should
have independently researched the publicly available pricing
data would distort the burden of production placed on
SolarWorld, as the interested party petitioning Commerce to
investigate its subsidy allegation, to allege all necessary
elements for the imposition of a countervailing duty, including
the element of benefit conferred, and to support each element
with reasonably available evidence.80 Under Section 1671a(b)(1),
it is not for Commerce to seek out evidence supporting the
interested party’s petition; rather, it is the interested
party’s burden to state and provide reasonably available
evidentiary support for each legal element of the alleged
countervailable subsidy to be investigated.81 Requiring that
Commerce itself should have researched the International Trade
Commission’s available price data to establish the evidentiary
support for SolarWorld’s allegation has the untenable effect of
80 See 19 U.S.C. §§ 1671a(b)(1), 1677(5)(B).
81 See 19 U.S.C. § 1671a(b)(1).
Court No. 13-00007 Page 25
negating the statutory requirement that petitioners themselves
supply the reasonably available evidence when petitioning for
the initiation of specific subsidy investigations pursuant to
Section 1671a(b)(1).82
Accordingly, because the record here supports
Commerce’s conclusion that SolarWorld’s Section 1671a(b)(1)
petition to investigate the alleged governmental provision of
aluminum extrusions to respondents for less than adequate
remuneration did not satisfy the requirements for initiation
(because the allegation of benefit conferred was devoid of any
evidentiary support), Commerce’s determination not to initiate
the investigation pursuant to 19 U.S.C. § 1671a(b)(1), on the
basis of SolarWorld’s incomplete allegation, is not
unreasonable, and is therefore sustained.
B. Glass
SolarWorld also claims that Commerce improperly
construed its latest timely glass subsidy allegation to cover
solely float glass, rather than rolled or patterned glass.83 But
this argument is belied by the facts. SolarWorld’s latest
timely glass subsidy allegation was a renewed allegation that
82 See id.
83Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 29-32.
Court No. 13-00007 Page 26
specifically addressed the deficiencies identified by Commerce
in SolarWorld’s initial glass allegation, among which was
Commerce’s concern that SolarWorld had failed to specify “the
type of glass used” in the production of subject merchandise
that was allegedly being subsidized by the Chinese government.84
Responding to this specific concern, SolarWorld’s renewed
allegation unambiguously stated that “[t]he glass used in the
production of [subject merchandise] is a type of flat glass
called ‘float glass.’”85 Moreover, this allegation explicitly
distinguished float glass from rolled glass, asserting that the
type of glass used to produce the subject merchandise is
specifically float glass.86 Finally, all of the pricing
information with which SolarWorld supported its allegation that
respondents were receiving a benefit from the alleged subsidy
was specific to float glass.87 Accordingly, Commerce found that
84Rejection of SolarWorld’s 1st Glass Allegation, ECF No. 44-1
at Tab 3, at 2 (emphasis added).
85SolarWorld’s 2d Glass Allegation, Consol. Ct. No. 13-00009,
ECF Nos. 80-3 & 81-3 at Tab 22, at 2 (emphasis added).
86Id. (“Depending on the manufacturing process used, flat glass
comes either as float glass, sheet glass or rolled glass. The
glass typically used in [the subject merchandise] is float
glass, made through the ‘float process,’ in which glass is
formed on a bath of molten tin.”) (emphasis added, quotation
marks and citations omitted).
87Id. at 6 (relying on id. at Exs. 2 & 3 to support pricing
allegations); id. at Ex. 2 (providing 2010 monthly prices for
“U.S. exports of float glass” (emphasis added)); id. at Ex. 3
(footnote continued)
Court No. 13-00007 Page 27
SolarWorld had adequately alleged the elements necessary for the
imposition of a countervailing duty pursuant to 19 U.S.C.
§ 1671(a) solely with respect to float glass.88 On this record,
Commerce’s determination that SolarWorld’s allegations satisfied
the requirements for initiation pursuant to 19 U.S.C. § 1671a(b)
solely with respect to float glass was not unreasonable.
Because this determination comports with a reasonable reading of
the record evidence, and is therefore supported by substantial
evidence,89 it is sustained.
II. Commerce Did Not Abuse Its Discretion in Determining to
Defer the Investigations.
In the alternative, SolarWorld argues that even if
Commerce correctly concluded that its timely aluminum extrusions
and glass subsidy allegations did not meet the requirements for
initiation pursuant to 19 U.S.C. § 1671a(b), Commerce should
have either permitted SolarWorld to correct and re-submit its
deficient allegations, or else self-initiated the investigations
(providing 2010 monthly prices for “float glass in China,”
sourced from the “China Glass Network, average of prices for
4mm thickness float glass” (emphasis added)).
88Float Glass Initiation, ECF No. 44-5 at Tab 14, at 3
(“[SolarWorld] has provided information that indicates that
float glass is provided through [state-owned enterprises] for
[less than adequate remuneration].”) (emphasis added).
89 See Nippon Steel, 458 F.3d at 1351.
Court No. 13-00007 Page 28
pursuant to 19 U.S.C. § 1677d.90
A. Commerce Did Not Abuse Its Discretion in Determining
That Insufficient Time Remained to Permit SolarWorld
to Re-Submit Its Deficient Allegations.
The statute vests Commerce with the discretion to
determine when and upon which conditions petitioners may amend
their subsidy allegations in CVD proceedings.91 Here, by the
time that Commerce’s extended deadline for new subsidy
allegations expired,92 SolarWorld had presented Commerce with at
least thirty-four separate subsidy allegations, including five
new allegations submitted on the day of the deadline,93 with less
90Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 17-29, 32-39.
9119 U.S.C. § 1671a(b)(1) (providing that petitions to initiate
investigations of specific subsidy allegations “may be amended
at such time, and upon such conditions, as [Commerce] may
permit”).
92See supra note 9 (providing relevant background and
citations); Def.’s Resp. in Opp’n to Pl.’s Mot. for J. Upon the
Admin. R., ECF No. 43 (“Def.’s Br.”) at 4 (providing more
detailed information in this regard, with relevant citations to
the record).
93See Initiation Notice, 76 Fed. Reg. at 70,968-69 (listing
twenty-seven separate subsidy allegations at initiation on
November 16, 2011); SolarWorld’s 1st Glass Allegation,
ECF No. 44-1 at Tab 2 (additional allegation submitted on
December 5, 2011; SolarWorld’s 2d Glass Allegation, Consol. Ct.
No. 13-00009, ECF Nos. 80-3 & 81-3 at Tab 22 (additional
allegation submitted on January 23, 2012); Prelim.
Determination, 77 Fed. Reg. at 17,440 (“Based on [a] request
from [SolarWorld], [Commerce] extended the deadline until
February 14, 2012, for submitting additional subsidy
allegations. . . . On February 14, 2012, [SolarWorld]
(footnote continued)
Court No. 13-00007 Page 29
than a month remaining until the agency was then scheduled to
present its preliminary results for the parties’ review,94 and
therefore approximately three months remaining until the
submitted five additional new subsidy allegations.”). The
twenty-seven initial allegations, plus the December 5, 2011,
glass allegation, plus the January 31, 2012, additional glass
allegation, plus the five additional February 14, 2012,
allegations add up to a total of thirty-four.
94See Prelim. Determination, 77 Fed. Reg. at 17,440 (noting that
the extended the deadline for submission of additional subsidy
allegations was February 14, 2012); [Solar Cells], Whether or
Not Assembled into Modules, from [China], 77 Fed. Reg. 4764,
4765 (Dep’t Commerce Jan. 31, 2012) (second postponement of
preliminary determination in the countervailing duty
investigation) (“2d Postponement”) (announcing the latest
postponement as of the February 14, 2012, new subsidy deadline;
postponing the preliminary determination, at SolarWorld’s second
request, until March 2, 2012). Subsequently, the preliminary
determination was postponed again because, “[d]ue to the number
of companies and the complexity of the alleged countervailable
subsidy practices being investigated,” this CVD investigation
was deemed “extraordinarily complicated.” [Solar Cells], Whether
or Not Assembled into Modules, from [China], 77 Fed. Reg.
10,478, 10,478 (Dep’t Commerce Feb. 22, 2012) (postponement of
preliminary determination in the countervailing duty
investigation) (“3d Postponement”) (postponing the preliminary
determination until March 19, 2012); but see Prelim.
Determination, 77 Fed. Reg. at 17,439 (providing an effective
date of March 26, 2012). When Commerce issued its preliminary
determination, the agency had not yet reached a determination as
to the five new subsidy allegations submitted by SolarWorld on
the day of the final extended new subsidy deadline, Prelim.
Determination, 77 Fed. Reg. at 17,440, but had already
determined that, even without these timely new allegations, “the
investigation [was] extraordinarily complicated.” 3d
Postponement, 77 Fed. Reg. at 10,478 (citing 19 U.S.C.
§ 1671b(c)(1)(B)(i) (permitting postponement of preliminary
determination if Commerce determines, inter alia, that “the case
is extraordinarily complicated”)).
Court No. 13-00007 Page 30
then-scheduled final determination.95 By the time that
SolarWorld sought to amend its deficient aluminum extrusions and
rolled glass allegations – May 15, 2012, and May 2, 2012,
respectively96 – the re-scheduled deadline for the final
determination was less than three months away.97 And although
the deadline for the final determination (newly aligned with the
95See 19 U.S.C. § 1671d(a)(1) (requiring Commerce to issue its
final determination within 75 days of the preliminary
determination); 2d Postponement, 77 Fed. Reg. at 4765 (setting
the date for the preliminary determination, effective at the
time of the latest extended deadline for new subsidy
submissions, as March 2, 2012); cf. 19 C.F.R. § 351.311(c)
(permitting deferral of self-initiated examination under
19 U.S.C. § 1677d if “insufficient time remains before the
scheduled date for the final determination”) (emphasis added).
On April 30, 2012, however, Commerce granted SolarWorld’s timely
request to align the deadline for the final CVD determination
with the deadline for the final determination in the companion
antidumping investigation of the subject merchandise. [Solar
Cells], Whether or Not Assembled into Modules, from [China],
77 Fed. Reg. 25,400, 25,400 (Dep’t Commerce Apr. 30, 2012)
(alignment of final countervailing duty determination with final
antidumping duty determination) (“Notice of Alignment”) (“The
final CVD determination will be issued on the same date as the
final [antidumping] determination, which is currently scheduled
to be issued no later than July 30, 2012, unless postponed.”)
(relying on 19 U.S.C. § 1671d(a)(1) (“[W]hen [a CVD]
investigation . . . is initiated simultaneously with an
[antidumping] investigation . . ., which involves imports of the
same class or kind of merchandise from the same or other
countries, [Commerce], if requested by the petitioner, shall
extend the date of the final [CVD] determination . . . to the
date of the final [antidumping] determination . . . .”) and
19 C.F.R. § 351.210(b)(4)(i) (providing for same)).
96SolarWorld’s 3d Aluminum Allegation, ECF No. 44-6 at Tab 22,
at 4 & Ex. 1; SolarWorld’s 3d Glass Initiation, ECF No. 44-5
at Tab 19, at 5.
97 Notice of Alignment, 77 Fed. Reg. at 25,400.
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deadline for the final determination in the companion
antidumping investigation) was subsequently postponed, only
three and a half months remained by the time of Commerce’s
decision that insufficient time remained to permit SolarWorld to
re-file or to self-initiate pursuant to 19 U.S.C. § 1677d.98
Having found SolarWorld’s latest timely aluminum extrusions and
non-float glass subsidy allegations to fall short of the
requirements for initiation under 19 U.S.C. § 1671a(b),99
Commerce determined that “there was simply not enough time to
allow [SolarWorld] to re-file its allegations and collect and
analyze the information necessary,”100 which typically “amounts
to several hundred pages of documents that must be analyzed once
all questionnaires have been answered,”101 in a proceeding that,
even without these additional allegations, was already
98Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 15-16
(issuing the decision that insufficient time remained on
June 22, 2012); see [Solar Cells], Whether or Not Assembled into
Modules, from [China], 77 Fed. Reg. 31,309, 31,324 (Dep’t
Commerce May 25, 2012) (preliminary determination of sales at
less than fair value, postponement of final determination and
affirmative preliminary determination of critical circumstances)
(postponing the final determination “until no later than
135 days after the publication of this notice in the Federal
Register”).
99See supra Discussion Section I (affirming Commerce’s
determinations in this regard).
100 I&D Mem. cmt. 10 at 37 (footnote omitted).
101 Id. at 38.
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“extraordinarily complicated.”102
SolarWorld argues that Commerce unreasonably
determined that insufficient time remained to initiate the
investigations after finding SolarWorld’s latest timely aluminum
extrusions and glass allegations to be deficient.103 But
“agencies with statutory enforcement responsibilities enjoy
broad discretion in allocating investigative and enforcement
resources,”104 and here Commerce was already occupied with
investigating, within strict statutory deadlines,105 dozens of
SolarWorld’s additional subsidy allegations.106 Because
Commerce’s conclusion that insufficient time remained to permit
102 See 3d Postponement, 77 Fed. Reg. at 10,478.
103Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 21-23; 33-34.
104Torrington Co. v. United States, 68 F.3d 1347, 1351
(Fed. Cir. 1995) (citing Heckler v. Chaney, 470 U.S. 821, 831
(1985)); see also Longkou Haimeng Mach. Co. v. United States,
32 CIT 1142, 1151, 581 F. Supp. 2d 1344, 1353 (2008) (“[A]ny
assessment of Commerce’s operational capabilities or deadline
rendering must be made by the agency itself.”) (relying on
Torrington, 68 F.3d at 1351).
105Cf., e.g., Maui Pineapple Co. v. United States, 27 CIT 580,
595, 264 F. Supp. 2d 1244, 1257 (2003) (“[D]ue to deadlines and
limited resources, it is vital that accurate information be
provided promptly to allow the agency sufficient time for
review[,] [and] Commerce . . . has broad discretion to fashion
its own rules of administrative procedure, including the
authority to establish and enforce time limits concerning the
submission of written information and data.”) (quotation marks
and citations omitted).
106 See supra note 93 (providing relevant citations).
Court No. 13-00007 Page 33
SolarWorld to re-file its subsidy allegations after the latter
were found to be deficient was not demonstrably “an unreasonable
judgment in weighing [the] relevant factors,”107 Commerce did not
abuse its discretion in so concluding.108 And while SolarWorld
argues that Commerce acted arbitrarily, because the agency
permitted certain respondents to cure deficiencies in their
questionnaire responses,109 Commerce did not “treat[] similar
107See WelCom Prods., 36 CIT at __, 865 F. Supp. 2d at 1344 (“An
abuse of discretion occurs where the decision is based on an
erroneous interpretation of the law, on factual findings that
are not supported by substantial evidence, or represent an
unreasonable judgment in weighing relevant factors.”) (citing
Star Fruits, 393 F.3d at 1281). Here, Commerce properly
interpreted the law to grant the agency discretion,
see 19 U.S.C. § 1671a(b)(1) (providing that new subsidy
allegations “may be amended at such time, and upon such
conditions, as [Commerce] may permit”), and the agency’s factual
findings regarding the deficiencies in SolarWorld’s latest
timely Section 1671a(b)(1) petitions for investigation of its
aluminum extrusions and glass allegations were supported by
substantial evidence. See supra Discussion Section I (affirming
Commerce’s determinations in this regard).
108See Vt. Yankee Nuclear Power Corp., 435 U.S. at 543 (“Absent
constitutional constraints or extremely compelling circumstances
the administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.”)
(quotation marks and citation omitted).
109Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 18-20; 32-33 (arguing that Commerce acted arbitrarily in
deciding that insufficient time remained for SolarWorld to
re-file its deficient allegations, because the agency had
provided respondents with opportunities to correct deficiencies
in their questionnaire responses) (quoting SKF USA, Inc.
v. United States, 263 F.3d 1369, 1382 (Fed. Cir. 2001) (quoting
Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir.
(footnote continued)
Court No. 13-00007 Page 34
situations differently,”110 because the agency had in fact also
permitted SolarWorld to cure the deficiencies in both its
initial aluminum and glass allegations, and had extended the
deadlines to permit SolarWorld to do so.111
B. Commerce Did Not Abuse Its Discretion in Determining
That Insufficient Time Remained to Self-Initiate
Under 19 U.S.C. § 1677d.
Next, SolarWorld argues that Commerce should have
nevertheless initiated investigations into whether the Chinese
government provided aluminum extrusions and rolled glass to
respondents for less than adequate remuneration, pursuant to the
1996) (“[A]n agency action is arbitrary when the agency offer[s]
insufficient reasons for treating similar situations
differently.”))).
110See SKF USA, 263 F.3d at 1382 (quotation marks and citation
omitted).
111See supra Background Section I & nn.6, 8-10 (providing
background and relevant citations regarding permitted amendments
to SolarWorld’s initial aluminum allegation); supra Background
Section II & nn. 18, 20-21 (providing background and relevant
citations regarding permitted amendments to SolarWorld’s initial
glass allegation); supra note 93 (detailing the relevant time
extensions granted at SolarWorld’s request); see also Def.’s
Br., ECF No. 43, at 20 (“[T]hroughout the proceeding, and in
recognition of the extraordinary complexity of the
investigation, Commerce granted several extensions of time to
both SolarWorld and the respondents.”) (emphasis in original);
cf. Royal Thai Gov’t v. United States, 28 CIT 1218, 1226,
341 F. Supp. 2d 1315, 1323 (2004) (“[Petitioner] overlooks the
fact that there should not have been any ‘evidentiary
deficiencies’ to correct.”) (citation omitted), aff’d in part
& rev’d in part on other grounds, 436 F.3d 1330 (Fed. Cir.
2006).
Court No. 13-00007 Page 35
agency’s authority under 19 U.S.C. § 1677d, arguing that
Commerce had more than enough time in which to self-initiate and
complete these additional investigations in this proceeding.112
Commerce acknowledged its “authority to examine
practices that appear to be countervailable subsidies discovered
at any time during the course of an investigation,”113 but
referenced the agency’s regulations in explaining that Commerce
may “defer examination of any such practice if there is
insufficient time remaining before the final determination.”114
Finding that insufficient time remained in this proceeding to
initiate these investigations, notwithstanding the evidentiary
deficiencies in SolarWorld’s allegations, Commerce specifically
112Pl.’s Br., Consol. Ct. No. 13-00009, ECF Nos. 78 & 79,
at 23-27; 34-38.
113Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16;
see 19 U.S.C. § 1677d. While SolarWorld argues that Commerce
failed to undertake the inquiry as to whether self-initiation
was warranted pursuant to 19 U.S.C. § 1677d, see Pl.’s Br.,
Consol. Ct. No. 13-00009, ECF Nos. 78 & 79, at 28 (quoting
Allegheny Ludlum Corp. v. United States, 25 CIT 816, 821 (2001)
(not reported in the Federal Supplement) (“Since the plain
language of [19 U.S.C. § 1677d] and [19 C.F.R. § 351.311] only
require Commerce to investigate where there is a practice that
‘appears to be’ or ‘appears to provide’ a countervailable
subsidy, it follows that Commerce must first determine whether
that threshold is met.”) (SolarWorld’s alteration omitted)),
Commerce in fact acknowledged this possibility, Post-Prelim.
Determination, ECF No. 44-6 at Tab 23, at 16, but found that
insufficient time remained in this complex proceeding to act on
it, see id.
114Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16
(citing 19 C.F.R. § 351.311(c)).
Court No. 13-00007 Page 36
stated that the agency’s “rejection of [SolarWorld]’s arguments
is in no way a comment on the merits of those allegations, which
[SolarWorld] may resubmit at the outset of any administrative
review.”115 And in fact Commerce went on to investigate (and
ultimately countervail for) both of these subsidy allegations in
the subsequent first administrative review.116
115Id.; see 19 C.F.R. § 351.311(c)(2) (“If [Commerce] concludes
that insufficient time remains before the scheduled date for the
final determination . . . to examine the practice, subsidy, or
subsidy program [described by 19 U.S.C. § 1677d and 19 C.F.R.
§ 351.311(b)], [Commerce] will . . . defer consideration of the
newly discovered practice, subsidy, or subsidy program until a
subsequent administrative review, if any.”).
116See Def.’s Br., ECF No. 43, at 22, 39 (citing Issues
& Decision Mem., [Solar Cells], Whether or Not Assembled into
Modules, from [China], C-570-980, ARP 3/12-12/12 (July 7, 2015)
(adopted in 80 Fed. Reg. 41,003, 41,004 (Dep’t Commerce July 14,
2015) (final results of countervailing duty administrative
review; 2012)) at 21-23 (determining the provision of aluminum
extrusions for less than adequate remuneration to be
countervailable), 23-25 (determining the provision of “solar
glass” for less than adequate remuneration to be
countervailable)). Responding to the court’s inquiry as to
whether, given retroactive duty assessment, Commerce’s
determinations to investigate and countervail for these
subsidies in the subsequent administrative review mooted the
issues presented here, see Order, Sept. 25, 2015, ECF No. 45,
the parties explained that the controversy presented is not
mooted because, “in the first administrative review, in which
review requests for various companies were rescinded, the
rescinded companies were assessed the rate calculated in the
investigation.” Def.’s Suppl. Br., ECF No. 51, at 2 (citing
[Solar Cells], Whether or Not Assembled into Modules, from
[China], 80 Fed. Reg. 8597 (Dep’t Commerce Feb. 18, 2015)
(notice of correction to preliminary results of countervailing
duty administrative review; 2012 and partial rescission of
countervailing duty administrative review));
see also Pl. [SolarWorld]’s Suppl. Br., ECF No. 52, at 2
(footnote continued)
Court No. 13-00007 Page 37
As discussed above, Commerce’s determinations that
SolarWorld’s latest timely aluminum extrusions and rolled glass
allegations failed to satisfy the requirements for petition-
based initiation are supported by substantial evidence, and the
agency did not abuse its discretion in concluding that
insufficient time remained in this proceeding to permit
SolarWorld to re-file the allegations.117 The agency is not
mandated to unreasonably over-extend itself when faced with
limited resources. It follows that Commerce also did not abuse
its discretion in concluding that insufficient time remained in
this proceeding to self-initiate the investigations.118 As this
Court has previously explained, “a petitioner who does not
timely make a [legally complete and sufficient] subsidy
allegation, even though it could, risks having Commerce defer
its investigation to a subsequent administrative review.”119
(listing specific respondents for whom this is the case).
117 Supra Discussion Sections I & II.A.
118See Post-Prelim. Determination, ECF No. 44-6 at Tab 23, at 16
(relying on 19 C.F.R. § 351.311(c)) (unchanged in the Final
Determination, 77 Fed. Reg. 63,788; I&D Mem. cmt. 10 at 36-38).
119Allegheny Ludlum Corp. v. United States, 24 CIT 452, 461
n. 12, 112 F. Supp. 2d 1141, 1151 n. 12 (2000) (explaining that
19 C.F.R. § 251.311(c)(2) “allow[s] Commerce to ‘defer
consideration of the newly discovered practice, subsidy, or
subsidy program until a subsequent administrative review’ if
Commerce ‘concludes that insufficient time remains before the
scheduled date for the final determination’” (quoting 19 C.F.R.
§ 251.311(c)(2))); see also Bethlehem Steel Corp. v. United
(footnote continued)
Court No. 13-00007 Page 38
That is exactly what happened here.
Accordingly, because Commerce’s decisions to defer
consideration of SolarWorld’s untimely aluminum extrusions and
rolled glass subsidy allegations until the next administrative
review were based on factual findings that are supported by
substantial evidence, were not an abuse of the agency’s
discretion, and were otherwise free of any legal error, these
determinations are sustained.
CONCLUSION
For all of the foregoing reasons, Commerce’s Final
Determination is affirmed. Judgment will issue accordingly.
/s/ Donald C. Pogue______
Donald C. Pogue, Senior Judge
Dated: December 11, 2015
New York, NY
States, 25 CIT 307, 313, 140 F. Supp. 2d 1354, 1361 (2001)
(recognizing that “when Commerce is faced with . . .
extraordinarily complex subsidy allegations it may lack the
resources or the time necessary to investigate the new
allegations”) (quotation marks omitted); 3d Postponement,
77 Fed. Reg. at 10,478 (determining that “the investigation
[was] extraordinarily complicated,” even without taking into
account the five new subsidy allegations SolarWorld submitted on
the day of the last extended deadline for new subsidy
submissions, or its subsequent attempts to re-file the aluminum
extrusions and glass allegations). | 01-03-2023 | 12-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/24842/ | 260 F.3d 357 (5th Cir. 2001)
MARK ERIC WRIGHT, Plaintiff-Appellant,v.GAYLE HOLLINGSWORTH, ETC., ET AL, Defendants,GAYLE HOLLINGSWORTH, Registered Nurse at Telford, Individually and in official capacity, Defendant-Appellee.
No. 99-40063
UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
July 24, 2001
Justin M. Waggoner, Smyer Kaplan & Veselka, Houston, TX, for Plaintiff-Appellant.
Charles Kenneth Eldred, Sharon Felfe, Asst. Atty. Gen., Austin, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Texas
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This case returns to us for rehearing and renews the question whether the district court properly dismissed, for failure to exhaust prison grievance remedies, the appellant's § 1983 claim against a prison nurse.
In Booth v. Churner, 531 U.S. 956, 121 S. Ct. 1819 (2001), the Supreme Court held that Congress intended a prisoner to invoke "such administrative remedies as are available" in the prison, without regard to whether the grievance procedure affords money damage relief, before he may file suit contesting prison conditions in federal court. 42 U.S.C. § 1997e(a) (West Supp. 1999). Before Booth was decided, the instant case had been voted en banc to reconsider such of our decision as Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), that did not mandate exhaustion. After Booth, this case was remanded from en banc court to the original panel because the Supreme Court's decision effectively overruled Whitley.
Quibbles about the nature of a prisoner's complaint, the type of remedy sought, and the sufficiency or breadth of prison grievance procedures were laid to rest in Booth. Justice Souter summed up the Court's conclusion in a footnote:
1
Here, we hold only that Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative sources.
2
121 S.Ct. at 1825, n.6. The major issue raised by Wright, that he need not exhaust if money damages were unavailable through the grievance procedure of the Texas Department of Criminal Justice, is thus resolved.
3
Wright asserts other issues, however, in light of Booth and in response to this panel's request for supplemental letter briefs on remand. First, Wright contends that "in contrast to Booth", his complaint seeks redress for his injury (a ruptured eardrum) and pain and suffering, harms that can only be relieved by money damages. This is but another way of narrowly parsing the "available" "remedies" language in § 1997e(a); it legally and factually mischaracterizes Booth, where only money damages were sought when the case got to court; and it is unconvincing.
4
Second, Wright alleges that he substantially complied with the TDCJ administrative procedures by filing a Step One grievance, which put the prison on notice of his complaint and offered the authorities an opportunity to mediate the dispute. But he did not pursue the grievance remedy to conclusion. Nothing in the Prison Litigation Reform Act,1 however, prescribes appropriate grievance procedures or enables judges, by creative interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems. TDCJ has promulgated a detailed, complex and carefully thought-out program to facilitate the filing of grievances and assure their prompt, dispassionate investigation. The PLRA required Wright to exhaust "available" "remedies", whatever they may be. His failure to do so prevents him from pursuing a federal lawsuit at this time.2
5
Third, Wright criticizes Hollingsworth, the remaining defendant, for not timely raising her exhaustion defense in the district court. Even if we allow that the procedural development of this case has been erratic, it is too late for Wright's waiver claim, newly raised after three years of litigation and after remand from the Supreme Court.
6
Wright's final points request, if all else fails, dismissal without prejudice and equitable tolling of the Texas statute of limitations during the pendency of this action and any additional state administrative proceedings. These modifications of the judgment are appropriate. See Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) (dismissal without prejudice); Harris v. Hegman, 198 F.3d 153, 157-59 (5th Cir. 1999) (under PLRA exhaustion requirement, limitations on a prisoner's § 1983 claims is tolled during administrative proceedings).
7
For the foregoing reasons, the judgment of the district court is AFFIRMED as MODIFIED, i.e., Wright's case is dismissed without prejudice pending exhaustion of TDCJ grievance procedures and limitations will be tolled pending exhaustion.
8
AFFIRMED as MODIFIED.
NOTES:
1
Pub. L. No. 104-34, Title I, § 101(a), 110 Stat. 1321-71 (1996).
2
The 42 U.S.C. § 1997e exhaustion requirement is not jurisdictional and may be subject to certain defenses such as waiver, estoppel or equitable tolling. Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998). | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/24845/ | 256 F.3d 264 (5th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.GUILLERMO DELGADO, also known as Enrique Hank Cervantes; BARRY WAYNE ALBURTIS, Defendants-Appellants.
No. 99-50635
UNITED STATES COURT OF APPEALSFor the Fifth Circuit
June 26, 2001REVISED JULY 17, 2001
[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeals from the United States District Court for the Western District of Texas
Before JONES and DeMOSS, Circuit Judges, and BARZILAY,* District Judge.
DeMOSS, Circuit Judge:
1
Defendants-Appellants Guillermo Delgado and Barry Wayne Alburtis appeal their convictions and sentences for various charges including conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. For the following reasons, we affirm both Delgado's and Alburtis' convictions and sentences.
I. BACKGROUND
2
On June 17, 1998, a grand jury indictment was returned against Delgado and Alburtis (cause number SA98-CR-233). Delgado and Alburtis were both charged with conspiracy to distribute and possession with intent to distribute in excess of 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) between January 1994 and February 1995 [Count One]. Moreover, Alburtis was charged with aiding and abetting others with possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or about December 21, 1994 [Count Two]; conspiracy to launder money in violation of 18 U.S.C. § 1956(H) beginning on or about January 1995 and continuing for approximately six months thereafter [Count Three]; and substantive money laundering in violation of 18 U.S.C. § 1956(a)(1)(A) [Counts Four, Five and Six].
3
Both Delgado and Alburtis were found guilty on each of their respective counts after jury trials. Delgado received 235 months imprisonment, five years of supervised release, and a $50 special assessment. Alburtis was sentenced to a term of 365 months for both Counts One and Two, and 60 months each for Counts Three through Six. All the terms were to run concurrently and were to be followed by five years of supervised release.
4
At the time of his prosecution, Delgado was serving a sentence of 78 to 97 months in federal prison for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (cause number EP-97-CR-312-DB). That sentence related to a 1997 offense, while Delgado's second prosecution, which is the subject of his appeal, related to a conspiracy between 1994 and 1995. Thus, his earlier conviction for which he was serving time actually related to a later offense. The sentence for the second prosecution is to run concurrent with the 78 to 97 month term for the prior prosecution.
5
Similarly, Alburtis was in jail when the multiple-count indictment was levied against him. At the time of his second prosecution, which is the subject of his appeal, Alburtis had been serving a 120-month term for conspiracy to distribute and to possess with intent to distribute more than 1000 kilograms of marijuana and for a substantive money laundering violation (cause number SA-93-CR-285). He had been indicted in September 1993 for those two counts (and others) and had plead guilty to those two counts in September 1994. Because he was on bond pending designation, he did not go to prison for the first prosecution until February 1995. The 365-month term for the second prosecution is to run consecutive to his first sentence of 120 months.
II. DISCUSSION
6
On appeal, both defendants raise a number of issues. We review each defendant's issues separately and in turn.
A. Delgado's Appeal
7
In his brief, Delgado essentially raises two issues. First, Delgado maintains that the conspiracy alleged in cause number SA-98-CR-233 and the one that was alleged in cause number EP-97-CR-312-DB (for which he was serving time) are part of one long-term and extended conspiracy. Hence, he complains that his conviction and sentence for the conspiracy alleged in cause number SA-98-CR-233 violate the Double Jeopardy Clause of the Fifth Amendment because he has already been convicted and sentenced for his role in the drug conspiracy. Second, Delgado contends that the government failed to produce material exculpatory information in violation of Brady v. Maryland, 83 S. Ct. 1194 (1963), and the district court's pretrial order.
8
We first note that whether a prosecution violates the Double Jeopardy Clause of the Fifth Amendment is a question of law and is reviewed de novo. United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992). We will accept the factual findings of the district court unless they are clearly erroneous. Id. If a defendant comes forward with a prima facie nonfrivolous double jeopardy claim, then the burden of establishing that the indictments charge separate crimes is on the government. United States v. Nichols, 741 F.2d 767, 770-71 (5th Cir. 1984) (quoting United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir. 1979)). "The defendant can establish a prima facie non-frivolous double jeopardy claim through indictments or other documentation to establish the earlier charges, or even through his own testimony." United States v. Ellender, 947 F.2d 748, 759 (5th Cir. 1991) (citing Stricklin, 591 F.2d at 118).
9
The government maintains that Delgado has failed to make out a prima facie case. It observes that Delgado did not file a special plea raising the double jeopardy issue, but raised the issue only at sentencing. In addition, the government asserts that Delgado has not tendered a copy of his indictment in the prior conviction, that the indictment is not in the record, and that he has not presented any evidence connecting the 1997 conviction with the instant case.
10
Reviewing the record, we agree with the government that Delgado has failed to establish his prima facie case. Although Delgado suggested that the conspiracy alleged in cause number SA-98-CR-233 and the one that was alleged in cause number EP-97-CR-312-DB were the same during the trial, he never directly raised a double jeopardy claim before the district court. Even his objection to the pre-sentence report, which apparently forms the basis for his preservation of error, merely argued that the prior 1997 conviction should be defined as a related case and that, therefore, three criminal history category points should not be assigned for that conviction. Consistent with that approach, Delgado did not proffer a prima facie case for shifting the burden to the government on the double jeopardy issue. A limited amount of evidence, such as the judgment of conviction, supported the fact that Delgado had been convicted in 1997 of a conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, but Delgado failed to proffer the indictment for the 1997 conviction or to testify with respect to that conviction.1 Without the 1997 conviction's indictment or testimony about that indictment, we are unduly hampered in determining whether the government in cause number SA-98-233 sought to prosecute Delgado for the same offense as that stated in the 1997 indictment or to obtain multiple punishments for the 1997 offense. By not presenting the specific circumstances surrounding his 1997 conspiracy charge and the facts supporting it, we conclude that Delgado has not satisfied his burden and, consequently, find his double jeopardy claim unavailing.
11
Delgado's second point of error concerns the government's alleged Brady violation and failure to comply with the district court's discovery order. He maintains that the government had information from the debriefing of certain individuals that would have demonstrated that the conspiracy charged in cause number SA-98-233 and the conspiracy for which he was charged and convicted in 1997 were the same thing. Specifically, the debriefing information indicated that some of the witnesses who testified about the conspiracy alleged in SA-98-233 may have been involved in the 1997 conspiracy for which Delgado was previously convicted.
12
According to the government, Delgado never raised this issue before the trial court. Furthermore, the government argues that nothing in the record contradicts its pre-trial representation that discoverable evidence and Brady material were provided to Delgado. Even if the information were not divulged, the government believes that nothing prejudicial occurred. It asserts that the result would not have been different because the debriefing statements about some of the witnesses only showed that those witnesses were still involved in the drug business in 1997, not that the drug conspiracy in 1997 was somehow the same as the one charged in cause number 98-SA-233.
13
Under Brady v. Maryland, exculpatory evidence is discoverable by the defendant where it is material to guilt or punishment. Information is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different. See United States v. Maloof, 205 F.3d 819, 827 (5th Cir.), cert. denied, 121 S. Ct. 176 (2000). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ellender, 947 F.2d at 756 (quoting United States v. Bagley, 105 S. Ct. 3375, 3383 (1985)) (internal quotation marks omitted).
14
Here, even if the government did not provide the debriefing statements to Delgado, we do not believe that those statements were material. Delgado's apparent basis for asserting his Brady claim is his belief that knowledge that some of the witnesses to the conspiracy in cause number SA-98-233 were possibly involved in the 1997 conspiracy would have induced the jury to acquit him based on double jeopardy. A double jeopardy claim, however, is a question of law that is properly the province of the district court, not the jury.2 Thus, we reject the argument that the debriefing statements were Brady material, which should have been provided to Delgado. Accordingly, Delgado's conviction and sentence are affirmed.
B. Alburtis' Appeal
15
Like his co-defendant, Alburtis initially challenges his conviction in cause number SA-98-CR-233 for conspiracy to distribute and possession with intent to distribute in excess of 1000 kilograms of marijuana, insisting that it violates the Double Jeopardy Clause of the Fifth Amendment. He contends that the 1998 indictment in cause number SA-98-CR-233 and the 1993 indictment, for which he was already convicted and serving time, pertain to the same conspiracy. Second, Alburtis contests the sufficiency of the evidence to support his convictions for aiding and abetting others with possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or about December 21, 1994 [Count Two]; and substantive money laundering in violation of 18 U.S.C. § 1956(a)(1)(A) [Counts Four, Five and Six]. Third, he avers that the government constructively amended Counts Three through Six of the indictment. Fourth, Alburtis asserts that the district court failed to afford him the right of allocution secured by Federal Rule of Criminal Procedure 32(c)(3)(C) prior to imposing his sentence. Fifth, he charges that the government violated 18 U.S.C. § 201(c)(2), the federal gratuity statute. Finally, Alburtis raises in a supplemental brief an error predicated on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).3 We review Alburtis' issues in turn.4
1. Double Jeopardy
16
In contrast to Delgado, Alburtis specifically raised his double jeopardy claim in a pretrial motion before the district court, and the particulars of the conspiracy charge alleged in the 1993 indictment and the basis for that charge were presented to that court. Consequently, the government does not contend that Alburtis did not establish his prima facie case, and we may proceed to whether the government has satisfied its burden of establishing by a preponderance of the evidence that the 1993 and the 1998 indictments charge separate crimes. See Deshaw, 974 F.2d at 670.
17
In Blockburger v. United States, 52 S. Ct. 180 (1932), the Supreme Court laid out the general test for resolving issues of double jeopardy. Under Blockburger, double jeopardy concerns are not raised if each crime requires an element of proof not required by the other crimes charged. United States v. Sharpe, 193 F.3d 852, 863 (5th Cir. 1999), cert. denied, 120 S. Ct. 1202 (2000). In other words, Blockburger bars the conspiracy count alleged in the 1998 indictment unless the government can prove by a preponderance of the evidence that the 1998 conspiracy count and the 1993 conspiracy count are factually distinct. Deshaw, 974 F.2d at 673. That is colored by the fact that "[t]he essential issue in the double jeopardy analysis respecting conspiracy is whether one, or more than one, agreement existed." Id. To determine whether the alleged conspirators entered into more than one agreement, we evaluate five factors: 1) time; 2) persons acting as co-conspirators; 3) the statutory offenses charged in the indictments; 4) the overt acts charged by the government or any other description of the offense charged that indicates the nature and scope of the activity that the government sought to punish in each case; and 5) places where the events alleged as part of the conspiracy took place. Id. at 673-74 (citing United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978)5). "No one factor of the Marable analysis is determinative; rather all five factors must be considered in combination." United States v. Cihak, 137 F.3d at 252, 258 (5th Cir. 1998).
18
Applying the Marable factors, we conclude that the government has satisfied its burden of establishing that the 1993 and the 1998 indictments charge separate crimes. The two indictments address different time periods. The 1993 indictment concerned a conspiracy that ranged from 1985 to 1993, while the 1998 indictment involved a conspiracy from January 1994 to February 1995. In fact, the 1998 indictment concentrated on a conspiracy that Alburtis partook in after he was arrested under the 1993 indictment and released on bond pending further proceedings.6 Furthermore, other than Alburtis, there was no overlap between the individuals in the 1993 and the 1998 indictments. None of the individuals indicted with Alburtis in the 1998 indictment were charged in the 1993 indictment, and vice versa. Although, as Alburtis suggests, the affidavits in support of the search warrants in both SA-93-CR-285 and SA-98-CR-233 identified some of the same individuals as possible conspirators, the vast majority of the individuals, including many of the key conspirators, were named in only one of the affidavits. And the evidence does not reveal that the sources of marijuana for the 1985 to 1993 conspiracy were the same as the ones for the 1994 to 1995 conspiracy. Admittedly, the statutory offenses charged in the two indictments both related to conspiracy to distribute and possess with intent to distribute more than 1000 kilograms of marijuana, but the two conspiracy charges specifically targeted two different time periods and had dissimilar recitations of where the conspiratorial activities occurred. For example, the 1993 indictment specifically mentioned the Western District of Texas, the Northern District of Texas, the District of New Mexico, the Middle District of Pennsylvania, and "divers[e] other places." The 1998 indictment was less specific, only stating the Western District of Texas and "divers[e] other places." The differences with respect to the regions noted in the indictments may be due to the fact that the scope of the activities and the locations concerning the two conspiracies do not generally overlap. The 1993 indictment concerned large-scale marijuana smuggling from Mexico into El Paso, with subsequent distribution to various locations, mostly in Texas. The 1998 indictment also involved marijuana smuggling into El Paso, but the ultimate destinations and the individuals transporting and distributing, and quite possibly providing, the drugs were different. Contrary to Texas locations, the 1998 indictment concerned conspiratorial activity in Phoenix and Oklahoma City. Accordingly, the combination of Marable factors leads us to believe that the 1993 and 1998 indictments charged separate crimes and that there was no double jeopardy violation.
2. Sufficiency of the Evidence
19
Alburtis makes two sufficiency of the evidence challenges. We review a district court's denial of a motion for judgment of acquittal de novo. United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997). The jury's verdict will be affirmed if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt. Id. In assessing the sufficiency of the evidence, we do not evaluate the weight of the evidence or the credibility of the witnesses, but view the evidence in the light most favorable to the verdict, drawing all reasonable inferences to support the verdict. Id. at 78-79.
20
In the present case, however, the government argues that Alburtis failed to renew his motion after he presented his evidence. "Where a defendant fails to renew his motion at the close of all the evidence, after defense evidence has been presented, he waives his objection to the earlier denial of his motion." United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992). Although Alburtis indicates that he made his Rule 29 motion after the government closed its case and after the close of all the evidence, the part of the record that Alburtis refers to as preserving his objection actually concerns Delgado's renewed motion for judgment of acquittal. Because Alburtis himself failed to renew his motion and, thus, waived any objection to the sufficiency of the evidence, our review is "limited to determining whether there was a manifest miscarriage of justice, that is, whether the record is 'devoid of evidence pointing to guilt.'" Id. (quoting United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989)).
21
Alburtis first contests the sufficiency of the evidence to support his conviction for aiding and abetting others with possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or about December 21, 1994 [Count Two]. Count Two of Alburtis' 1998 indictment alleges:
22
That on or about December 21, 1994, in the Western District of Texas, Defendants
23
BARRY WAYNE ALBURTIS, AND ROBERT BARRAGAN,
24
aided and abetted others known and unknown to the Grand Jury to unlawfully, knowingly and intentionally possess in excess of 100 kilograms of marijuana, a Schedule I Controlled Substance, with the intent to distribute the same, in violation of Title 21, United States Code, Sections 841(a)(1) and Title 18, United States Code, Section 2.
25
Both the government and Alburtis agree that this count refers to the transportation of marijuana from El Paso to Oklahoma City, i.e., the Oklahoma City load. Alburtis argues that there is insufficient evidence to support Count Two because there is insufficient evidence to show that he directed either Ronald Levrier, the purchaser of the marijuana, or Bob Barragan, the representative of the source of the marijuana, Ruben Cervantes. Alburtis contends that the evidence, at most, indicates that he may have facilitated the overall scheme when he introduced Barragan to Ronald Levrier months before any business occurred.
26
The essential elements of possession with the intent to distribute controlled substances in violation of 21 U.S.C. § 841 are 1) knowledge, 2) possession, and 3) intent to distribute the controlled substances. United States v. Thomas, 120 F.3d 564, 569 (5th Cir. 1997). If a defendant is convicted for aiding and abetting, actual physical possession is not necessary. United States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1991). Instead, the government must establish that the defendant became associated with, participated in, and in some way acted to further the possession and distribution of the drugs. Id. "[T]o aid and abet, a defendant must share in the intent to commit the offense as well as play an active role in its commission." United States v. Lombardi, 138 F.3d 559, 561 (5th Cir. 1998). Often, the evidence that supports a conspiracy conviction alsosupports an aiding and abetting conviction. United States v. Drones, 218 F.3d 496, 505 (5th Cir. 2000), cert. denied, 121 S. Ct. 1095 (2001).
27
Reviewing what was presented at trial with full knowledge of the applicable law pertaining to possession with intent to distribute and aiding and abetting, we do not believe that the trial was devoid of evidence pointing to guilt. Undoubtedly, Alburtis helped introduce Levrier to the source of the Oklahoma City load. Moreover, Alburtis was to receive a commission on that transaction. Although Alburtis insists that he did not introduce Levrier to the others specifically to do the Oklahoma City load and that the commission for that load was merely a continuation of the general commission system established for all drug transactions, and not just the Oklahoma City load, the evidence showed that when problems arose regarding the Oklahoma City load, Alburtis attended a meeting with the parties involved to smooth things out.7 Combining that fact with Alburtis' role in introducing the Oklahoma City load parties to each other and with his large financial stake in that drug transaction, we see no manifest miscarriage of justice in concluding that Alburtis associated with, participated in, and in some way acted to further the possession and distribution of marijuana on December 21, 1994, in the Western District of Texas.
28
Alburtis' other sufficiency of the evidence challenge relates to his convictions for substantive money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) [Counts Four, Five and Six].8 Count Four of the 1998 indictment alleges that on or about February 8, 1995, Alburtis "aided and abetted by others, did knowingly and willfully attempt to conduct a financial transaction affecting interstate and foreign commerce, to-wit: the attempted transfer and delivery of $432,000.00 in United States currency from another individual, which involved the proceeds of a specified unlawful activity." Count Five is a similar charge but pertains to the transfer and delivery of $250,000 on or about March 2, 1995. Likewise, Count Six is another substantive money laundering charge concerning the transfer and delivery of approximately $50,000 to Barragan sometime in the spring of 1995. To prove money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), the government must establish that the defendant 1) conducted or attempted to conduct a financial transaction, 2) which the defendant then knew involved the proceeds of unlawful activity, 3) with the intent to promote or further unlawful activity. United States v. Puig-Infante, 19 F.3d 929, 937 (5th Cir. 1994).
29
The $432,000 noted in Count Four resulted from the sale in the Northeast of the Oklahoma City load. Levrier assigned that money to Ed Moran to have him transport it to Texas. Ultimately, the police stopped Moran and seized the money. Alburtis contends that the government did not adduce any evidence that he ever handled, transported, or in any other way attempted to dispose of the $432,000, in violation of § 1956(a)(1)(A)(i).
30
We disagree. The evidence revealed that the $432,000 was the product of the Oklahoma City load and that it was being transported to Texas to pay off debts arising from that drug transaction. According to Levrier, the money was to go to Cervantes, the drug source, in El Paso. At a meeting to discuss some problems associated with the drugs from the Oklahoma City load, Alburtis had previously assured Cervantes of payment. Johnny Guy Aaron also testified that Levrier, who was going to rendezvous with Moran and the money in San Antonio, intended to meet with Alburtis concerning the money. Indeed, Alburtis had some interest in the $432,000 because it was a part of the Oklahoma City load, from which he was ultimately supposed to receive a commission. And Alburtis was with Levrier at the Church's Chicken restaurant the day after the money's seizure when Aaron met up with Levrier to discuss the circumstances surrounding the seizure. According to Aaron, Alburtis told Levrier that there was a snitch amongst them. All of those facts support an inference that Alburtis knew about the illegal nature of the proceeds and that he understood that the proceeds were to pay off debts from the Oklahoma City load, particularly the source of the drugs with whom the parties sought to maintain a relationship. Moreover, Alburtis' scheduled meeting with Levrier in San Antonio about the money, his involvement with the individuals associated with the money's transportation subsequent to its seizure, his own interest in the funds, and his assurance to Cervantes that Cervantes would be paid support an inference that Alburtis knowingly and willfully attempted to conduct a financial transaction in violation of § 1956(a)(1)(A)(i) and preclude a determination that the record is devoid of evidence pointing to guilt.
31
With respect to Count Five, Alburtis was in jail at the time of the transaction. Count Five pertained to commissions that Alburtis was expecting from the drug transactions. Alburtis had instructed Levrier to give his commissions to Mark Harris, who was to hold those commissions for the benefit of Alburtis and his wife. Alburtis told Harris to provide monthly payments to his wife. Ultimately, Levrier delivered about $250,000 to Harris in March 1995. Over the next few months, Harris paid Alburtis' wife some of the money through money orders and cash.
32
Alburtis contends that all of the aforementioned facts are insufficient to convict him of Count Five, even for aiding and abetting. He asserts that the government's evidence merely shows that he created the circumstances that permitted the money laundering to occur on March 2, 1995, but that the evidence does not show that he affirmatively or consciously assisted in the crime.
33
"To prove that a defendant aided and abetted money laundering, the government must show that the defendant 'associated himself with the unlawful financial manipulations, that he participated in them as something he wished to bring about, and that he sought, by his actions, to make the effort succeed.'" United States v. Willey, 57 F.3d 1374, 1383 (5th Cir. 1995) (quoting United States v. Termini, 992 F.2d 879, 881 (8th Cir. 1993)). A defendant associates himself with the unlawful financial manipulations if he shares in the criminal intent of the principal. United States v. Sorrells, 145 F.3d 744, 753 (5th Cir. 1998). And he participates in those manipulations if he engages in some affirmative conduct designed to aid the conduct. Id.
34
Contrary to Alburtis' assertions, he did not merely create the circumstances for the money laundering to occur. Alburtis knew that he would soon receive proceeds from illegal activity. Because he could not receive them while he was in prison, Alburtis affirmatively directed Levrier to deposit any sums with Harris and instructed Harris to pay his wife in monthly installments. The lack of knowledge regarding the specific amount of money and the specific date of the transaction does not alter the fact that Alburtis' affirmative instructions facilitated the money laundering and caused the transaction to occur. Therefore, we see no manifest miscarriage of justice requiring reversal.
35
Finally, Count Six alleges that in the spring of 1995, Alburtis and Barragan conducted a financial transaction in the amount of $50,000, in the form of a delivery from an individual, i.e., Harris, to Barragan, which were the proceeds of an unlawful activity, in violation of § 1956(a)(1)(A)(i) and § 2. The evidence indicates that the money constituted some of the $250,000 Harris received on behalf of Alburtis and his wife. Before going to jail, Alburtis introduced Harris to Barragan to provide a method of paying Cervantes, the drug source, while Alburtis was in jail. As previously noted, Barragan represented Cervantes. Alburtis had a keen interest in making sure that Cervantes received his money because Alburtis wanted to maintain his reputation among his Mexican drug sources.
36
Similar to his challenge to Count Five, Alburtis argues that apart from evidence indicating that he introduced Harris to Barragan, the government has not shown that he was aware of the $50,000 transfer or that he committed any affirmative act related to this crime. And as with Count Five, we do not find the record devoid of evidence pointing to guilt. Alburtis took the affirmative step of arranging the meeting between Harris and Barragan to ensure that future transfers of money would take place. Alburtis knew that the money Harris received was from illegal proceeds and that it was to go to Cervantes to further the drug enterprise. Without Alburtis' instructions, the delivery from Harris to Barragan would not have occurred. Accordingly, there was no manifest miscarriage of justice, and Alburtis' Count Six conviction is affirmed.
3. Constructive Amendment
37
In his third issue, Alburtis' maintains that the government constructively amended Counts Three through Six of the indictment. Counts Three through Six of the 1998 indictment allege that Alburtis conspired to, and did commit, money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), the "promotion" prong of the statute. That statutory provision reads:
38
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity -
39
(A)(i) with the intent to promote the carrying on of specified unlawful activity . . . shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.
40
Although the government charged Alburtis under this promotion prong, Alburtis contends that the government adduced substantial evidence at trial indicating that he violated the money laundering statute by structuring transactions to avoid a reporting requirement, contrary to 18 U.S.C. § 1956(a)(1)(B)(ii).9 For example, the postal inspector testified about post office procedures with respect to reporting obligations and money orders. Harris testified about how Alburtis told him to provide funds to Alburtis' wife via money orders purchased from the post office. Moreover, Harris stated that Alburtis told him to structure the transaction in such a way that no reporting would have to be done. Finally, the prosecutor made certain comments that Alburtis insists was an attempt to convict Alburtis for money laundering under the reporting requirement prong as opposed to the promotion prong that was stated in the indictment.10
41
"'The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment.'" United States v. Threadgill, 172 F.3d 357, 370 (5th Cir. 1999) (quoting United States v. Arlen, 947 F.2d 139, 144 (5th Cir.1991)), cert. denied, 120 S. Ct. 172 (1999). After an indictment is returned, the charges may not be amended or broadened except by the grand jury. Stirone v. United States, 80 S. Ct. 270, 272-74 (1960). "'[A] constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged . . . .'" United States v. Parkhill, 775 F.2d 612, 615 (5th Cir. 1985) (quoting United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984)). If a trial court constructively amends an indictment, that is reversible error. Stirone, 80 S. Ct. at 274. Here, however, Alburtis raises constructive amendment for the first time on appeal. As a result, we review that claim for plain error. "Under that doctrine, a defendant must show (1) the existence of actual error; (2) that the error was plain; and (3) that it affects substantial rights." Threadgill, 172 F.3d at 370.
42
Reviewing the record, we see no plain error requiring reversal. At trial, there was substantial evidence supporting the convictions for Counts Three through Six, and the instructions delivered to the jury specifically charged violations of § 1956(a)(1)(A)(i), not § 1956(a)(1)(B)(ii). Admittedly, the prosecutor's closing argument, and a very small part of the testimony, discussed the structuring of money orders. But a thorough review of the prosecutor's closing remarks shows that the basis for the prosecutor's statements was to demonstrate that Alburtis was involved with the money laundering counts, even though he was in prison. The prosecutor never prodded the jury to return a money laundering conviction predicated on the reporting requirement theory. Accordingly, we do not believe that the jury was permitted to convict Alburtis upon a factual basis that effectively modified an essential element of the offenses charged in the indictment.
4. Right to Allocute
43
Alburtis' fourth issue refers to the district court's alleged failure to afford him the opportunity to allocute prior to imposing sentence. Federal Rule of Criminal Procedure 32(c)(3)(C) secures a defendant's right to allocute. Under that rule, before imposing sentence, the court must "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." Failure to afford a defendant his allocution rights necessitates remand and is not reviewed for harmless error. United States v. Myers, 150 F.3d 459, 463 (5th Cir. 1998).
44
Here, we confront a unique set of circumstances. At a morning sentencing hearing, the district court orally pronounced sentence without addressing Alburtis to determine whether he wanted to make a statement. Thereafter, the parties realized their mistake, and in the afternoon, Alburtis was again brought before the district court to be afforded his right to allocute under Rule 32(c)(3)(C). The district court then reimposed the same sentence that was meted out in the morning.
45
Under this circuit's case law, if the district court had failed to do the resentencing, then Alburtis' sentence would have had to have been vacated and remanded back to the district court. See Myers, 150 F.3d at 463. But in the instant case, a resentencing occurred, and it provided Alburtis his right to allocute. Thus, the determinative issue is whether that resentencing was proper.
46
A district court's ability to resentence a defendant is generally limited and available only in discrete circumstances. Federal Rule of Criminal Procedure 35(c), however, allows a court, acting within 7 days after imposition of sentence, to "correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Although Rule 35(c) does not explicitly state so, a Rule 35(c) correction may occur sua sponte. See Fed. R. Crim. P. 35 advisory comm. notes ("The subdivision does not provide for any formalized method of bringing the error to the attention of the court and recognizes that the court could sua sponte make the correction."); see also United States v. Colace, 126 F.3d 1229, 1231 (9th Cir. 1997); United States v. Morillo, 8 F.3d 864, 868 n.5 (1st Cir. 1993). The record is not clear as to whether the district court resentenced sua sponte or if it even relied on Rule 35. But Rule 35(c) was the most appropriate authority under which the district could resentence Alburtis and correct the clear error of failing to afford him his right to allocute. And whether the district court's decision to resentence was done sua sponte or after conference with the parties, who may have orally moved for correction, is not determinative. See Morillo, 8 F.3d at 868 n.5 (holding that Rule 35(c) corrections may occur sua sponte or in response to post-judgment motions). Thus, we find that the district court properly resentenced Alburtis to afford him his right to allocu0te and conclude that Alburtis' fourth issue is without merit.
5. 18 U.S.C. § 201(c)(2)
47
Alburtis' fifth issue concerns whether the government violated 18 U.S.C. § 201(c)(2), the federal gratuity statute. Most of the accomplice-witnesses who testified against Alburtis received leniency in exchange for their testimony. They were first provided a downward departure under U.S.S.G. § 5K2.1 and then through a motion for further reduction under Federal Rule of Criminal Procedure 35. Referring to United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc, 165 F.3d 1297 (10th Cir. 1999), Alburtis asserts that such leniency for testimony violated the anti-gratuity provisions of 18 U.S.C. § 201(c)(2).
48
The Tenth Circuit, however, reversed Singleton in an en banc session. Notwithstanding that reversal, Alburtis attempts to distinguish his case from the en banc decision by arguing that Singleton did not address whether the government violates § 201(c)(2) when it files a Rule 35 motion for reduction in exchange for a defendant's testimony. Whether the leniency is provided pursuant to Rule 35 or § 5K2.1 is a distinction without merit. We have repeatedly rejected the argument that the government violates the anti-gratuity provisions of 18 U.S.C. § 201(c)(2) by offering leniency to co-defendants in exchange for testimony. United States v. Smith, 203 F.3d 884, 894 (5th Cir. 2000); United States v. Haese, 162 F.3d 359, 366-67 (5th Cir. 1998). Accordingly, Alburtis' challenge predicated on the anti-gratuity provisions of 18 U.S.C. § 201(c)(2) is unavailing.
6. Apprendi Error
49
In his supplemental brief, Alburtis contends that we should vacate his sentences for Counts One and Two and remand his case for a new sentencing hearing in light of Apprendi v. New Jersey. Apprendi held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. Apprendi, 120 S. Ct. at 2363-64. Alburtis asserts, and the government concedes, that his 365-month sentences for Counts One and Two, which are to run concurrently, exceeded the statutory maximum penalty for a marijuana offense under 21 U.S.C. § 841(b)(1)(C) and (D). Because those sentences exceeded the statutory maximums, he maintains that the issue of drug quantity with respect to those counts should have been submitted to the jury.
50
"[I]f the government seeks enhanced penalties based on the amount of the drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). Here, the indictment charged the amount of marijuana involved, but the jury instructions failed to include the issue of quantity. Nonetheless, because Alburtis failed to object to the district court as to the absence of drug quantity in the jury instructions, we review for plain error. United States v. Slaughter, 238 F.3d 580, 583 (5th Cir. 2001). "Moreover, even assuming such error were otherwise plain, the Supreme Court has expressly held that a jury instruction that omits an element of the offense is subject to harmless error analysis." Id. That analysis for measuring harmlessness centers around "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." Id. at 584 (quoting Neder v. United States, 119 S. Ct. 1827, 1839 (1999)).11
51
Having reviewed the record, we are convinced that it contains no evidence that could rationally lead the jury to a conclusion contrary to the quantities of drugs stated in the indictment. And as was the case in Slaughter, the jury had with it during deliberations a copy of the indictment setting forth the specific quantities of drugs that could support the sentences imposed by the district court. See id.; United States v. Green, 246 F.3d 433, 437 (5th Cir. 2001). Accordingly, the district court's failure to instruct was harmless, and we affirm Alburtis' sentences.
III. CONCLUSION
52
For the foregoing reasons, Alburtis' motion to file a supplemental brief is GRANTED, and both Delgado's and Alburtis' convictions and sentences are AFFIRMED.
NOTES:
*
Judge, U.S. Court of International Trade, sitting by designation.
1
At trial, Delgado rested without presenting any testimony.
2
As previously noted, we do not believe that Delgado has established a prima facie case that the two conspiracies were the same.
3
Alburtis moved for leave to file the supplemental brief, which is hereby granted.
4
Alburtis also maintains in a separate section of his brief that the district court clearly erred in determining his sentence. The argument presented is nothing more than a challenge aimed to preserve his objections to the sentence calculation if any of his convictions are reversed. Thus, there is no need to separately address those issues.
5
Although a panel of this Court questioned the vitality of the evidence-based standard for measuring double jeopardy claims in United States v. Fisher, 106 F.3d 622, 633 n.11 (5th Cir. 1997), abrogated on other grounds, Ohler v. United States, 120 S. Ct. 1851, 1853 (2000), the five-factor test for determining whether separate conspiracies were involved remains a viable part of the analysis with respect to double jeopardy claims involving conspiracies. See United States v. Cihak, 137 F.3d 252, 258 (5th Cir. 1998). Even United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc), overruled on other grounds, United States v. Michelena-Orovio, 719 F.2d 738, 757 (5th Cir. 1983) (en banc), the case that Fisher relied upon to challenge the Marable test, was a limited holding and did not directly overrule Marable. See Rodriguez, 612 F.2d at 919.
6
The government maintains that, because of Alburtis' arrest under the 1993 indictment, even if the 1998 indictment pertained to the continuation of the earlier conspiracy outlined in the 1993 indictment, "further operation of the old conspiracy after being charged with that crime becomes a new offense for purposes of a double jeopardy claim." United States v. Stricklin, 591 F.2d 1112, 1121 n.2 (5th Cir. 1979). That statement from Stricklin is dicta, and we do not address the merits of that statement in the present case.
7
Additionally, when the police took $432,000 of the money that Levrier was to pay Cervantes, Levrier notified Alburtis about the loss.
8
Counts Five and Six also refer to the aiding and abetting statute, 18 U.S.C. § 2.
9
Section 1956(a)(1)(B)(ii) provides:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity -
(B) knowing that the transaction is designed in whole or in part-
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.
10
The prosecutor charged:
Look at the money orders. Look how they're structured. And I say structured. You heard the testimony of the postal inspector. He said you can buy up to so many on a certain day at any one post office and if you do more than that, the IRS is going to find out about it. So you gotta go to different post offices and structure these. You gotta do it in different places so you don't cause the filing of that transaction report because if you're dealing in proceeds of marihuana, if you're dealing in currency, you don't want the Government to know about it or you're going to wind up in a federal courtroom just like these two defendants.
. . . .
. . . .
Look at this exhibit, 342 or 341, whatever it is. Compare this writing. Compare it. That's Barry Alburtis that's putting his wife's name on those [postal money orders] before he goes to prison. That's Barry Alburtis that's completing those money orders that he taught Mark Harris how to structure. That's money laundering. That's a part of the money laundering conspiracy that Barry Alburtis was - is charged with. It's the same money laundering conspiracy that Mark Harris was convicted of up in Austin.
11
Alburtis contends that the Neder harmless error standard, which Slaughter applied, should not be utilized in the instant case because Slaughter involved an attempt to reverse a defendant's convictions while he merely seeks to vacate his sentence. This is a meaningless distinction and is foreclosed by our recent decision in United States v. Green, 246 F.3d 433 (5th Cir. 2001), which applied the Neder standard for harmless error to a defendant's Apprendi claim to vacate his sentence. Furthermore, we note that Slaughter itself applied the Neder standard in affirming the defendant's convictions and sentences. Slaughter, 238 F.3d at 584. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2509969/ | 714 S.E.2d 209 (2011)
JOHNSON
v.
JOHNSON.
No. COA11-41.
Court of Appeals of North Carolina.
Filed July 5, 2011.
Case Reported Without Published Opinion Affirmed in part; vacated in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543806/ | 54 So.3d 979 (2011)
COUNCIL
v.
STATE.
No. 2D10-2025.
District Court of Appeal of Florida, Second District.
February 18, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/735077/ | 106 F.3d 416
U.S.v.Spear
NO. 95-3236
United States Court of Appeals,Eleventh Circuit.
Jan 10, 1997
Appeal From: N.D.Fla. , No. 95-04023-WS
1
AFFIRMED IN PART, REVERSED IN PART. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/740332/ | 112 F.3d 1172
Dewitt Apparelv.FDIC**
NO. 96-6660
United States Court of Appeals,Eleventh Circuit.
Apr 03, 1997
Appeal From: S.D.Ala. ,No.9401009CVAHM
1
Affirmed.
**
Local Rule 36 case | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/24852/ | UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-11188
Summary Calendar
JOSE MAIZ; ALFONSO ALDAPE LOPEZ; MARGARET GRIFFITHS DE ALDAPE;
ALFONSO ALDAPE GRIFFITHS; ALEJANDRA ALDAPE GRIFFITHS; ET AL,
Plaintiffs-Appellees,
VERSUS
AMIR VIRANI; ET AL,
Defendants.
IGNACIO SANTOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas, Dallas
(3:00-MC-1-H)
July 19, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ignacio Santos appeals the order of the district court that
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-11188
-2-
requires Santos to turn over to a receiver certain assets pursuant
to TEX. CIV. PRACT. & REM. CODE § 31.002, the Texas “Turnover” Statute.
He also appeals the district court’s denial of his motion to
transfer venue.
“A trial court’s judgment as to whether issuance of a turnover
order was justified is reviewed under an abuse of discretion
standard and may be reversed only if the court has acted in an
unreasonable or arbitrary manner. A turnover order, even if
‘predicated on an erroneous conclusion of law, will not be reversed
for abuse of discretion if the judgment is sustainable for any
reason.’” Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239 (5th
Cir. 1997) (citations omitted).
The statute provides, “The court may order the judgment debtor
to turn over nonexempt property that is in the debtor's possession
or is subject to the debtor's control . . .” Santos’s argument
that the district court improperly adjudicated the substantive
rights of third parties fails because “the trial court [made] a
factual finding that the property on which execution is sought is
subject to the possession or control of the judgment debtor, even
if retained by a third party.” Plaza Court, Ltd. v. West, 879
S.W.2d 271, 277 (Tex. App.–Houston, 1994).
We also find that the language of the implementing order was
appropriate. See Campbell v. Wood, 811 S.W.2d 753, 156 (Tex.
App.–Houston 1991) (“[T]he second court [may] not take any action
No. 00-11188
-3-
to disturb the possession, control, or management of the property
by the receiver, or that would conflict with any order of the
appointing court about its control of the receivership property.”).
Because this case had such strong ties to Texas, the district
court did not abuse its discretion in denying the motion to
transfer. See Harris County, Texas v. Carmax Auto Superstores,
Inc., 177 F.3d 306, 319 (5th Cir. 1999).
Thus, we AFFIRM the judgment of the district court.
Finally, we DENY the motions of the appellees to dismiss the
appeal and to supplement the record.
AFFIRMED; MOTIONS DENIED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/415986/ | 703 F.2d 565
Nesbyv.Rose
81-5719
UNITED STATES COURT OF APPEALS Sixth Circuit
6/29/82
1
M.D.Tenn.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/560776/ | 932 F.2d 961
Shell Oil Companyv.Jasco Realty Corporation
NO. 90-5832
United States Court of Appeals,Third Circuit.
APR 11, 1991
Appeal From: D.N.J.,
Thompson, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/416075/ | 703 F.2d 568
U. S.v.Thompson
81-1358
UNITED STATES COURT OF APPEALS Sixth Circuit
7/13/82
1
E.D.Mich.
REVERSED AND REMANDED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/740335/ | 112 F.3d 1172
U.S.v.Corvo*
NO. 96-4351
United States Court of Appeals,Eleventh Circuit.
Apr 01, 1997
Appeal From: S.D.Fla. ,No.9500697CRKMM
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2487916/ | 74 So. 3d 592 (2011)
Adam S. RUSHETSKY, Appellant,
v.
Valerie J. RUSHETSKY, Appellee.
No. 4D10-2167.
District Court of Appeal of Florida, Fourth District.
November 23, 2011.
Keith A. Fousek of Law Office of Keith A. Fousek, P.A., North Lauderdale, for appellant.
William L. Gardiner III of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.
PER CURIAM.
The husband appeals a final judgment of dissolution of marriage. The failure to provide a transcript or proper substitute requires affirmance except where there is clear error on the face of the judgment. Matteis v. Matteis, ___ So.3d ___, 2011 WL 4056288 (Fla. 4th DCA 2011); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979). The wife concedes error in the $24 a month credit for noncovered medical expenses, as the child support guidelines worksheet also requires the husband to be 41% responsible for any noncovered medical expenses. As such, we reverse and remand for recalculation of child support without this credit. As to the other issues, we find no clear error on the face of the judgment and thus affirm.
*593 Affirmed in part, reversed in part, and remanded with instructions.
TAYLOR, HAZOURI and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/817948/ | 779 F.Supp.2d 1361 (2011)
KYD, INC., Plaintiff,
v.
UNITED STATES, Defendant, and
Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant-Intervenors.
Slip Op. 11-49. Court No. 09-00034.
United States Court of International Trade.
April 28, 2011.
*1364 Riggle & Craven (David J. Craven) for Plaintiff KYD, Inc.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Carrie A. Dunsmore and Stephen C. Tosini); and Scott D. McBride, U.S. Department of Commerce, Of Counsel, for Defendant United States.
King & Spalding LLP (Stephen A. Jones and Daniel L. Schneiderman) for Defendant-Intervenors Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation.
OPINION
WALLACH, Judge.
I
INTRODUCTION
As a U.S. importer of polyethylene retail carrier bags ("PRCBs") from Thailand, Plaintiff KYD, Inc. ("KYD") continues its challenge to determinations made by the U.S. Department of Commerce ("Commerce") in the 2006-07 administrative review of the antidumping duty order covering *1365 these bags. This challenge is limited to entries of the subject merchandise that were imported by KYD from King Pac Industrial Co., Ltd. ("King Pac") and Master Packaging Co., Ltd. ("Master Packaging") and are covered by this third administrative review ("the entries at issue"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c).
In May 2010, the court remanded the instant action to Commerce. See KYD, Inc. v. United States, 704 F.Supp.2d 1323 (CIT 2010) ("KYD II"). Familiarity with KYD II is presumed. In September 2010, Commerce issued its Final Results of Redetermination. See Final Results of Redetermination (Doc. No. 66) ("Redetermination").
Commerce is permitted to select rather than calculate an antidumping duty rate for the entries at issue. Furthermore, it may select a rate that is adverse to KYD. However, that rate must nonetheless be supported by substantial evidence and otherwise in accordance with law. Because the particular rate actually selected122.88 percentdoes not satisfy this standard with respect to the entries at issue, this matter is again REMANDED to Commerce.
II
BACKGROUND
KYD commenced the instant action to challenge the final results of Commerce's 2006-07 administrative review of an antidumping duty order covering certain plastic bags imported from Thailand. See Complaint (Doc. No. 7) at 1; Polyethylene Retail Carrier Bags from Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 Fed.Reg. 2,511, 2,511 (January 15, 2009) ("Final Results"); see generally KYD II, 704 F.Supp.2d at 1323-27 (describing this third administrative review).
Because two exporters that are unaffiliated with KYDKing Pac and Master Packagingimpeded this administrative review, Commerce used what it calls total adverse facts available ("TAFA") to assign each of these exporters an antidumping duty rate of 122.88 percent. KYD II, 704 F.Supp.2d at 1326-27. This TAFA rate had been applied to King Pac in the second administrative review and was the highest transaction-specific rate alleged in the 2003 petition. See id.
In contrast to King Pac and Master Packaging, KYD actively participated in the third administrative review by providing information about its purchases from these exporters. See id. at 1325-26. Indeed, the record strongly suggests that Master Packaging would not have received any form of adverse facts available ("AFA") rate but for the information volunteered by KYD. See id.[1] Nonetheless, *1366 Commerce selected 122.88 percent as the assessment rate for KYD's relevant entries. See id. at 1326.
In KYD II, the court held that substantial evidence did not support Commerce's implicit decision to disregard KYD's price information. See id. at 1324. Commerce had determined the assessment rate for KYD's entries "without regard to the information submitted by KYD even though it made no finding under 19 U.S.C. § 1677e(b) that KYD had failed to cooperate and no finding under 19 U.S.C. § 1677m(e) that it could decline to consider KYD's information." Id. The court therefore remanded the matter to Commerce to "either consider this information in determining an assessment rate for KYD's entries or explain why it can decline to do so pursuant to 19 U.S.C. § 1677m(e)." Id. at 1334.
The court did not resolve KYD's arguments "that the total adverse facts available dumping rate that Commerce selected for King Pac and Master Packaging was improperly corroborated and impermissibly punitive." Id. at 1328 n. 6. Although the court had "previously rejected similar arguments" when it upheld application of the same rate to King Pac in the second administrative review, it acknowledged that "[r]eassessment of these arguments may be appropriate in light of" Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed.Cir.2010) (vacating and remanding Gallant Ocean (Thailand) Co. v. United States, 602 F.Supp.2d 1337 (Wallach, J.)). Id. Three weeks after KYD II, the Federal Circuit affirmed the court's decision concerning that second administrative review. See KYD, Inc. v. United States, 607 F.3d 760 (Fed.Cir.2010) (affirming KYD, Inc. v. United States, 613 F.Supp.2d 1371 (CIT 2009)) (collectively "KYD I"); see also infra Part IV.D.
On remand, Commerce explained why it declined to use KYD's information to calculate dumping margins, see Redetermination at 4-9, and took issue with the court's statement of relevant antidumping law, see id. at 3, 9-10, 15-16, 18, 20-21, 22, 23-24. In particular, Commerce reiterated its position that "the antidumping duty statute does not require, or even contemplate, the Department calculating separate dumping margins for individual importers." Id. at 3; see also infra Parts IV.A-B.
III
STANDARD OF REVIEW
The court will hold unlawful a determination by Commerce resulting from an administrative review of an antidumping duty order if that determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii).
A determination is supported by substantial evidence if the record contains *1367 "evidence that a reasonable mind might accept as adequate to support a conclusion." Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed.Cir.2007) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Such evidence must be "more than a mere scintilla." Ad Hoc Shrimp Trade Action Comm. v. United States, 618 F.3d 1316, 1321 (Fed.Cir.2010) (quoting Ningbo Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1253 (Fed.Cir.2009)). The "court reviews the record as a whole, including any evidence that `fairly detracts from the substantiality of the evidence,' in determining whether substantial evidence exists." Gallant, 602 F.3d at 1323 (quoting Micron Tech., Inc. v. United States, 117 F.3d 1386, 1393 (Fed.Cir.1997)).
To determine whether Commerce's interpretation and application of an antidumping statute at issue is otherwise "in accordance with law," the court must conduct the two-step analysis articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001) ("[S]tatutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron.").
Under the first step of the Chevron analysis, the court must ascertain "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed.Cir.2007) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). Of particular importance to the instant action is the "strong presumption that `Congress expresses its intent through the language it chooses' and that the choice of words in a statute is therefore deliberate and reflective," Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, 1347 (Fed.Cir.2004) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 433 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Without more, "[i]t is not for [the court] to try to avoid the conclusion that Congress did not mean what it said." Miles v. United States, 61 Cust. Ct. 245, 248, 61 Cust.Ct. 245, 290 F.Supp. 395 (1968) (quoting Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64, 73 S.Ct. 580, 97 L.Ed. 821 (1953)); see also Wheatland Tube, 495 F.3d at 1359.
The court reaches the second step of the Chevron analysis only "if the statute is silent or ambiguous with respect to the specific issue." Wheatland Tube, 495 F.3d at 1359 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Under this step, the court must evaluate whether Commerce's interpretation "is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The agency's construction need not be the only reasonable interpretation or even the most reasonable interpretation. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978). The court must defer to Commerce's reasonable interpretation of a statute even if it might have adopted another interpretation had the question first arisen in a judicial proceeding. Id.
IV
DISCUSSION
This action is properly limited to entries of the subject merchandise that were imported by KYD from King Pac and Master Packaging and are covered by the third administrative review. See infra Parts IV.A-B. Because King Pac and Master Packaging were uncooperative, Commerce *1368 is required to use the facts otherwise available to determine the amount of dumping for each of these entries. See KYD II, 704 F.Supp.2d at 1326; 19 U.S.C. § 1677e(a). Furthermore, Commerce may select rather than calculate an antidumping duty rate for these entries. See infra Part IV.C. Finally, precedent permits Commerce to use adverse inferences in selecting that rate. See KYD I, 607 F.3d at 762 (citing 19 U.S.C. § 1677e(b)), 768. In short, nothing in the instant decision precludes Commerce from ultimately instructing Customs to liquidate these entries at some TAFA rate.
The remaining question in this case is whether the particular rate that Commerce selected for these entries122.88 percentis supported by substantial evidence and otherwise in accordance with law. It is not. In particular, Commerce did not sufficiently corroborate this rate with respect to entries imported by KYD from either Master Packaging, see infra Part IV.D.1, or King Pac, see infra Part IV.D.2. Moreover, substantial evidence on the recordincluding, inter alia, the information submitted by KYDdoes not support application of a 122.88 percent rate to the entries at issue. See infra Part IV.E.
The court's analysis proceeds in five parts. The statute governing administrative reviews focuses on individual entries, see infra Part IV.A, and Commerce's interpretation of that statute is not well reasoned, see infra Part IV.B. Although Commerce may base its determinations on an antidumping duty rate that it selects, see infra Part IV.C, the rate actually selected was improperly corroborated, see infra Part IV.D, and is not supported by substantial evidence, see infra Part IV.E.
A
The Statute Governing Administrative Reviews Focuses On Individual Entries
"Unlike the systems of some other countries, the United States uses a `retrospective' assessment system under which final liability for antidumping and countervailing duties is determined after merchandise is imported. Generally, the amount of duties to be assessed is determined in a review of the order covering a discrete period of time." 19 C.F.R. § 351.212(a); see also SKF USA, Inc. v. United States, 537 F.3d 1373, 1381 (Fed.Cir.2008); Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 (1994) ("SAA") at 815, reprinted in 1994 U.S.C.C.A.N. 4040, 4157.[2]
The statute governing an administrative review of an antidumping duty order requires Commerce to "determine(i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry." 19 U.S.C. § 1675(a)(2)(A) (emphasis added); see also Consol. Bearings Co. v. United States, 348 F.3d 997, 1005 (Fed.Cir.2003); KYD II, 704 F.Supp.2d at 1329.[3] "The term `dumping margin' means the amount by which the normal value exceeds the export price *1369 or constructed export price of the subject merchandise." 19 U.S.C. § 1677(35)(A) (emphasis added); see KYD II, 704 F.Supp.2d at 1326 n. 5; infra note 8.[4] To calculate these dumping margins, Commerce uses sales as a proxy for entries. See Koyo Seiko Co. v. United States, 258 F.3d 1340, 1342-43 (Fed.Cir.2001).[5]
The resulting determination "shall be the basis for the assessment of . . . antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties." 19 U.S.C. § 1675(a)(2)(C). In this sense, an administrative review serves two distinct functions, one retrospective and the other prospective.[6]
The retrospective function of such a review is to determine the actual antidumping duty to be assessed on each entry of subject merchandise imported during the period of review from each exporter or producer (collectively "exporter") examined in the review. Although Commerce historically prepared a "master list" that specified this duty for each individual entry, it now calculates a single assessment rate for each unaffiliated importer of entries covered by the review. See Antidumping Duties; Countervailing Duties, 62 Fed.Reg. 27,296, 27,314-15 (May 19, 1997); Antidumping Duties; Countervailing Duties, 61 Fed.Reg. 7,308, 7,316-17 (February 27, 1996).[7] The rate may be either a *1370 percentage or a per-unit amount. E.g., Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed.Reg. 53,661, 53,663 (September 1, 2010). Commerce calculates a percentage by "divid[ing] the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer" and calculates a per-unit amount by "divid[ing] the total dumping margins . . . for each exporter's importer or customer by the total number of units the exporter sold to that importer or customer." E.g., id.; see also Final Results, 74 Fed.Reg. at 2,512; 19 C.F.R. § 351.212(b)(1); Koyo, 258 F.3d at 1342-43. Because importers are responsible for the antidumping duties imposed on their entries, see 19 U.S.C. § 1673g(b)(4), the entry-specific and importer-specific methods result in equivalent liabilities for each importer to the extent that reviewed entries correspond to reviewed sales. Commerce includes these assessment rates in its liquidation instructions to Customs but not in its published results. E.g., 75 Fed. Reg. at 53,663; Final Results, 74 Fed.Reg. at 2,512.
In contrast, the prospective function of a review is to determine the cash deposit to be collected on each future entry of subject merchandise imported from each exporter examined in that review. This estimated duty is equal to the "weighted average dumping margin," e.g., 75 Fed.Reg. at 53,663; Final Results, 74 Fed.Reg. at 2,512, which is calculated "by dividing the aggregate dumping margins determined for a specific exporter or producer by the aggregate export prices and constructed export prices of such exporter or producer," 19 U.S.C. § 1677(35)(B). See Koyo, 258 F.3d at 1342-43.[8] Commerce includes these weighted average dumping margins in its instructions to Customs as well as in its published results. E.g., 75 Fed.Reg. at 53,663; Final Results, 74 Fed.Reg. at 2,512.
The table below summarizes the key differences between these two functions of an administrative review of an antidumping duty order.
Actual Estimated
Antidumping Antidumping
Duty Duty
Application Assessment Collection of
of Duties Cash Deposits
Orientation Retrospective Prospective
(Past Entries) (Future Entries)
Specificity Importer (or Exporter
Importer/
Exporter)
Dumping Margin
for
Each Importer
_________________
Entered Value for Dumping Margin
Each Importer for
Each Exporter
Formula for _________________
Export Price and
Dumping Margin Constructed
for Export Price for
Each Importer Each Exporter
_____________
Number of Units
for
Each Importer
Published in No Yes
Final Results
Included in No Yes
Instructions to
Customs
*1371 In short, Commerce determines estimated duties based on dumping margins calculated for exporters and determines actual duties based on dumping margins calculated for importers. See, e.g., Koyo, 258 F.3d at 1342-43. This is because "an exporter/producer may have dumped at different rates to different unaffiliated importers." Department of Commerce, Antidumping Manual (October 13, 2009), Chap. 6.
In making these determinations, Commerce sometimes faces information that is incomplete or unreliable. "[I]f an interested party withholds or fails to provide requested information, Commerce shall `use the facts otherwise available in reaching the applicable determination.'" KYD I, 607 F.3d at 762 (quoting 19 U.S.C. § 1677e(a)(2)). "In the case of an uncooperative respondent, Commerce `may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.'" Id. (quoting 19 U.S.C. § 1677e(b)). However, "when Commerce `relies on secondary information rather than on information obtained in the course of' the administrative review, it `shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.'" KYD II, 704 F.Supp.2d at 1330 (quoting 19 U.S.C. § 1677e(c)).
It is significant that these three provisions of 19 U.S.C. § 1677e facilitate rather than supersede the actual and estimated antidumping duty determinations required under 19 U.S.C. § 1675(a). See 19 U.S.C. § 1677e(a)(2) (". . . in reaching the applicable determination . . ."); KYD II, 704 F.Supp.2d at 1333 (discussing Valley Fresh Seafood, Inc. v. United States, 31 CIT 1989, 1997-98 (2007)); cf. F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir.2000) ("[T]he purpose of [19 U.S.C. § 1677e(b)] is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, or uncorroborated margins."); Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed.Cir.1990) ("[T]he basic purpose of the [antidumping] statute [is] determining current margins as accurately as possible.").[9] Even if a party is uncooperative, Commerce is still constrained by "commercial reality." Gallant, 602 F.3d at 1323.
The instant action challenges only Commerce's selection and corroboration of the 122.88 percent actual antidumping duty rate for the entries at issue. See KYD II, 704 F.Supp.2d at 1334 n. 17; KYD's Memorandum in Support of Motion for Judgment on the Agency Record (Doc. No. 42) ("KYD's Memo") at 12; Plaintiff's Reply [in support of its motion for summary judgment] (Doc. No. 50) at 7; February 9, 2011 Oral Argument at 11:54:57-11:55:16 ("We're not challenging the prospective rate. That's really not an issue here. We're looking solely on the retrospective. . . . We don't care about the cash deposit rate. . . . We're only challenging the duty assessment rate. . . ."). Accordingly, the court need not review Commerce's selection and corroboration of the 122.88 percent rate for any entries not *1372 imported by KYD or for any future entries whatsoever.
The entries actually at issue comprise all of KYD's imports of the subject merchandise from King Pac and Master Packaging during the period of review. See Summons (Doc. No. 1); February 18, 2009 Order (Doc. No. 26). Unlike in the previous administrative review, KYD provided information about these entries. See KYD II, 704 F.Supp.2d at 1331 n. 10. This information, while incomplete, nonetheless facilitates the determinations required under 19 U.S.C. § 1675(a). In combination with other record evidence, it permits Commerce to more closely assess whether a rate of 122.88 percent describes with reasonable accuracy the dumping behavior of each of King Pac and Master Packaging toward KYD, "albeit with some built-in increase intended as a deterrent to non-compliance." Gallant, 602 F.3d at 1323 (quoting and emphasizing De Cecco, 216 F.3d at 1032); see infra Parts IV.D-E.
This conclusion is narrow. It does not apply if an importer provides no information. See KYD I, 607 F.3d at 767. Nor does it apply if an interested party supplies only some of its data in a potentially selective manner. See Steel Auth. of India, Ltd. v. United States, 25 CIT 482, 487, 149 F.Supp.2d 921 (2001) ("SAIL"). KYD, however, stated that it submitted all relevant information in its possession regarding the universe of pertinent transactions, see Redetermination at 19, and the record shows that Commerce has not asked for more, see, e.g., id. at 1-10, 19-21. Accordingly, an examination of the record with respect to the entries at issue gives effect to the Federal Circuit's invitation to importers to "produce[] current information showing the margin to be less," KYD I, 607 F.3d at 766-67 (quoting Rhone, 899 F.2d at 1190); see infra Part IV.D.2, and, ultimately, to the statutory structure for an administrative review, see 19 U.S.C. § 1675(a).
B
Commerce's Interpretation Of 19 U.S.C. § 1675(a) Is Not Well Reasoned
In its Redetermination, Commerce "find[s] that the statute does not require us to calculate an importer-specific dumping margin because the statute states explicitly that dumping margins are calculated for producers and exporters." Redetermination at 15. Commerce is correct that 19 U.S.C. § 1675(a) does not require the calculation of importer-specific dumping margins. Instead, this provision requires the determination of entry-specific dumping margins. See 19 U.S.C. § 1675(a); see generally supra Part IV.A. As the Federal Circuit explained:
Section 1675 sets forth the framework for an administrative review of antidumping duties. This section clearly places the focus of the administrative review on the entry of merchandise. For example, section 1675(a)(2)(A) requires Commerce to "determine . . . the normal value and export price (or constructed export price) of each entry of subject merchandise, and . . . the dumping margin for each such entry." 19 U.S.C. § 1675(a)(2)(A) (emphases added).
Consol. Bearings Co. v. United States, 348 F.3d 997, 1004-05 (Fed.Cir.2003). Commerce, not Congress or this court, decided to determine importer-specific dumping margins as an alternate method for correctly attributing the antidumping duties that would result from determining entry-specific dumping margins. See 19 C.F.R. § 351.212(b)(1); 62 Fed.Reg. at 27,314-15 (justifying Commerce's prior shift from an entry-specific assessment method to an importer-specific assessment method); 61 Fed.Reg. at 7,316-17 ("To the extent possible, *1373 these assessment rates will be specific to each importer, because the amount of duties assessed should correspond to the degree of dumping reflected in the price paid by each importer.").
Accordingly, where Commerce has the necessary information to distinguish among unaffiliated importers, it is required by 19 U.S.C. § 1675(a) to do so. As the Federal Circuit observed:
[A]ntidumping duties ensure that each import reflects correct market values. Once the review sets the market value of the merchandise, the focus shifts to importation of the merchandise, not the character of the merchandise itself. Accordingly, importers of the same merchandise can have different antidumping duties, just as the final results in this case established various importer-specific rates for those who participated in the review. The character of the merchandise does not control the assessment of duties, but the market forces in play at the time of each separate import transaction. The simple fact that one importer imports the same merchandise as another importer does not necessarily lead to the conclusion that they are subject to the same antidumping duties. Because sales prices vary from exporter to exporter and from time to time, separate entries of the same good may have different duties.
Consol. Bearings, 348 F.3d at 1005.
Moreover, in originally remanding the instant matter, this court already considered and rejected Commerce's position as "at odds with the plain meaning of 19 U.S.C. § 1675(a)(2)(A)." KYD II, 704 F.Supp.2d at 1332. As the court stated, Commerce "is directed by Congress to determine the normal value and export price ofand the dumping margin for`each entry of the subject merchandise.'" Id. (quoting and emphasizing 19 U.S.C. § 1675(a)(2)(A)).
Because "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Wheatland Tube, 495 F.3d at 1359 (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778); see supra Part III. Although Commerce's interpretation of antidumping duty law is entitled to great respect, see De Cecco, 216 F.3d at 1032, Congress's unambiguous statement of that law is entitled to even more deference, see Wheatland Tube, 495 F.3d at 1359.
Nonetheless, because of Commerce's special role in administering antidumping duty law, see De Cecco, 216 F.3d at 1032, further discussion of its arguments is appropriate. Commerce relies primarily on two statutory provisions (19 U.S.C. § 1673d(c)(1) and 19 U.S.C. § 1673g(b)(4)), see infra Parts IV.B.1-2, and on its reading of the Federal Circuit's decision in KYD I, 607 F.3d at 768, see infra Part IV.B.3. As discussed below, the court finds these arguments unpersuasive.
1
19 U.S.C. § 1673d Does Not Govern The Calculation Of Actual Antidumping Duties In An Administrative Review
Commerce argues that "the statute" compels a conclusion contrary to that reached by this court in KYD II, 704 F.Supp.2d at 1329:
As the Department explained in the Final Results and as the Department argued in its brief to the Court, the antidumping duty statute does not require, or even contemplate, the Department calculating separate dumping margins for individual importers. [19 U.S.C. § 1673d(c)(1)(B)(i)(I) and (III)] specifically direct that the Department shall "determine the estimated weighted average dumping margin for each exporter *1374 and producer individually investigated" and "order the posting of a cash deposit, bond or other security" "based on the estimated weighted average dumping margin . . ." (emphasis added).
Redetermination at 3-4, 15.
Commerce's citation of 19 U.S.C. § 1673d is unpersuasive for three reasons. First, Commerce erroneously conflates antidumping duty investigations and administrative reviews. 19 U.S.C. § 1673d governs investigations rather than reviews. See 19 U.S.C. § 1673d. Whereas investigations determine only estimated duties, reviews determine both estimated duties and actual duties. Compare 19 U.S.C. §§ 1673b, 1673d with 19 U.S.C. § 1675(a).[10] As Commerce's own Antidumping Manual states:
In an investigation, we calculate a single weighted-average dumping margin for an exporter/producer which will be used for bonding or cash deposit purposes until there is an administrative review. For an administrative review, a weighted-average margin is also established for each producer/exporter, and an assessment rate is established for each U.S. importer because an exporter/producer may have dumped at different rates to different unaffiliated importers.
Department of Commerce, Antidumping Manual (October 13, 2009), Chap. 6.
Second, Commerce erroneously conflates estimated duties and actual duties. Although estimated duties are based on dumping margins calculated for exporters, actual duties are based on dumping margins calculated for importers. See, e.g., Koyo, 258 F.3d at 1342-43. As the Federal Circuit explained:
Commerce has adopted two different calculational approachesone for cash deposits and one for final duties. Commerce requires importers to make cash deposits in an amount based, in pertinent part, on the "estimated weighted average dumping margin" for the merchandise. 19 U.S.C. § 1673b(d)(1)(B). Commerce calculates this "estimated weighted average dumping margin," i.e., estimated duty, by "dividing the aggregate dumping margins determined for a specific exporter or producer . . . by the aggregate export prices or constructed export prices of such exporter or producer." 19 U.S.C. § 1677(35)(B). . . . This rate is then applied to estimated imports. . . .
Commerce has devised a different methodology for use in calculating the final amount of the duties to be imposed on merchandise already imported into the United States. When an antidumping duty is imposed upon imported merchandise, Commerce calculates *1375 an assessment rate for each importer by dividing the dumping margin for the subject merchandise . . . by the entered value of such merchandise for normal Customs purposes. This methodology has been codified in [19 C.F.R. § 351.212(b)(1)]. . . . That rate is then applied to the merchandise imported. . . during [the] review period.
Koyo, 258 F.3d at 1342-43 (internal citations omitted) (emphasis added); see also id. at 1343 n. 4 (defining "the importer-specific assessment rate" as a function of normal value, U.S. price, and entered value).
Third, Commerce erroneously conflates dumping margins and weighted average dumping margins. A dumping margin is "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise." 19 U.S.C. § 1677(35)(A) (emphasis added). In contrast, a "weighted average dumping margin" is a percentage based in part on the dumping margin calculated for an exporter. 19 U.S.C. § 1677(35)(B). That weighted average dumping margin becomes the cash deposit rate used to collect estimated duties on future entries. See, e.g., 75 Fed.Reg. at 53,663. It does not necessarily become the assessment rate used to collect actual duties on reviewed entries. See 19 U.S.C. § 1675(a).
In short, Commerce's argument relies solely on a statutory provision that implicates investigations rather than reviews, estimated duties rather than actual duties, and weighted average dumping margins rather than dumping margins alone. See 19 U.S.C. § 1673d. That argument is not persuasive.
2
19 U.S.C. § 1673g(b)(4) Governs Payment, Not Determination, Of Duties
Commerce repeatedly notes that 19 U.S.C. § 1673g(b)(4) obligates the importer of entries that are subject to an antidumping duty order to pay the antidumping duties assessed on those entries. See Redetermination at 9 ("The CAFC . . . affirm[ed] the ruling of the lower court that. . . under [19 U.S.C. § 1673g(b)(4)] importers have the legal responsibility to pay assessed duties associated with the goods they import."), 15 ("Also, the liability for the resultant antidumping duties rests solely with the importer. See [19 U.S.C. § 1673g(b)(4)]."), 28 ("When unaffiliated importers enter into a commercial agreement with an exporter/producer to import merchandise subject to an antidumping or countervailing duty order, they do so with an understanding that they must pay all duties assessed against that exporter/producer for the subject merchandise pursuant to [19 U.S.C. § 1673g(b)(4)]."), 30 ("Indeed, the CAFC upheld the lawfulness of the 122.88 percent rate in [KYD I] as well as KYD's obligation to pay its allocation of the dumping duties applied to merchandise that KYD purchased from King Pac."), 32 ("During the [period of review], KYD had legal responsibilities to pay dumping liabilities assigned to King Pac and Master Packaging and we do not have the statutory authority to absolve it of those responsibilities through a remand redetermination.").
19 U.S.C. § 1673g(b)(4) does refute the argument that "a cooperative, independent importer should not be required to pay an assessment based on" a lawfully determined rate. KYD I, 607 F.3d at 768; see also KYD I, 613 F.Supp.2d at 1382 ("[I]mporters are responsible to pay the antidumping duties to which they are subject, including any increases over the deposit made upon entry for estimated antidumping duties."); KYD II, 704 F.Supp.2d at 1334 n. 17 ("Remand in this action is limited to KYD's entries of the subject merchandise during the [period of review]entries which have already occurred and *1376 for which KYD alone is required to pay duties pursuant to 19 U.S.C. § 1673g(b)(4).").
However, Commerce's obligation to correctly determine antidumping duties under 19 U.S.C. § 1675(a) is not diminished by an importer's obligation to pay those duties under 19 U.S.C. § 1673g(b)(4). KYD seeks a reasonably accurate assessment rate for its entries. See KYD's Memo at 3 ("If a rate is to be calculated for KYD based on adverse inferences, the selected rate cannot be used as it was not properly corroborated and not supported by substantial evidence and does not reflect the actual experience of KYD plus a reasonable amount for deterrence."), 19-35. Commerce is statutorily required to oblige. See 19 U.S.C. § 1675(a); supra Part IV.A; infra Part IV.D.
3
The Federal Circuit's Holding In KYD I Does Not Preclude Remand
According to Defendant, KYD's "fundamental argument" is that "Commerce must calculate a separate antidumping duty rate for importers who participate in an administrative proceeding, even if the unrelated exporters of the examined merchandise receive adverse facts available, pursuant to [19 U.S.C. § 1677e(b)]." Defendant's Response to Plaintiff's Comments on the Department of Commerce's Redetermination on Remand (Doc. No. 80) at 2. Commerce believes that the Federal Circuit's decision in KYD I, 607 F.3d 760, undermines such an argument:
The Court's remand order in this case is based on the premise that KYD could receive the remedy in this case that it requested in [KYD I]. The CAFC has indicated clearly that this remedy is unavailable to KYD. Accordingly, even if we could use KYD's data in our calculations (and we cannot as described above), we do not believe the results of such an analysis would be applicable in light of the CAFC's ruling in [KYD I].
Redetermination at 10.
The court is aware of the arguments in KYD I, see KYD I, 613 F.Supp.2d 1371 (Wallach, J.), aff'd, KYD I, 607 F.3d 760, as well as the basis for the remand order in KYD II, see KYD II, 704 F.Supp.2d 1323 (Wallach, J.). Commerce is correct that KYD is not exempt from the results of the administrative review. See supra Part IV.B.2. However, to the court, KYD's fundamental argument appears to be that record evidence demonstrates that the assessment rate applied to KYD's entries is unlawfully high. See KYD II, 704 F.Supp.2d at 1324. The remedy sought by KYD is remand for the purpose of determining a more accurate assessment rate. See KYD's Comments on the Department's Remand Determination ("KYD's Comments") at 30. Commerce points to nothing in the Federal Circuit's decision that forecloses this remedy. See generally Redetermination at 9-10, 27-32.[11]
C
Commerce May Base Each Dumping Margin Determination On A Rate That It Selects
Having held that the statute governing administrative reviews focuses on individual entries, the court now turns to Commerce's *1377 determinations in the instant matter. This matter was originally remanded so that Commerce could apply 19 U.S.C. § 1677m(e) to the price information submitted by KYD. KYD II, 704 F.Supp.2d at 1331-32. KYD had argued that Commerce could use that information in combination with additional facts available to calculate dumping margins for the entries at issue. See id. at 1328, 1332. Commerce rejected that argument without evaluating the statutory criteria that govern the use of imperfect information submitted by an interested party. See id. at 1328, 1332 (discussing 19 U.S.C. § 1677m(e)).
KYD and Commerce now advance competing constructions of 19 U.S.C. § 1677m(e) as it relates to 19 U.S.C. §§ 1675(a) and 1677e. Compare KYD's Comments at 4-9 with Redetermination at 4-9. KYD appears to view export price and normal value as relevant "determinations" under 19 U.S.C. § 1675(a). See KYD's Comments at 4-9. On this view, for each relevant entry, Commerce must use KYD's information pursuant to 19 U.S.C. § 1677m(e) to determine export price and use facts available pursuant to 19 U.S.C. § 1677e to determine normal value. From these values, Commerce could then calculate a dumping margin for each entry.[12]
In contrast, Commerce appears to view dumping margin as the only relevant "determination" under 19 U.S.C. § 1675(a). See Redetermination at 4-6. On this view, KYD's information, standing alone, is "so incomplete that it cannot serve as a reliable basis for the applicable determination." 19 U.S.C. § 1677m(e)(3). Pursuant to 19 U.S.C. § 1677e, Commerce could therefore base its dumping margin determination on an antidumping duty rate that it selects rather than on individual calculations of normal value and export price.[13]
The meaning of "determination" is not clear from the relevant statutes. This term could plausibly refer to the antidumping duty determination that Commerce is required to make or to any of the other determinations that such a duty determination normally requires. Because 19 U.S.C. § 1677m(e) is ambiguous on this point and Commerce has now proffered a reasonable interpretation as part of its administrative proceeding, the court must defer to that reasonable interpretation. See supra Part III; see also SAIL, 149 F.Supp.2d 921, 25 CIT 482, cited in Redetermination at 5-6.[14]
Substantial evidence supports Commerce's application of this interpretation to KYD's price information. That information, on its own, permits at most a determination of the export price of KYD's imports from King Pac and Master Packaging. See Redetermination at 7-9; KYD's Comments at 3. Under Commerce's *1378 reasonable interpretation of 19 U.S.C. § 1677m(e), this information is "so incomplete that it cannot serve as a reliable basis for reaching the applicable determination"that is, the calculation of a dumping margin for each of the entries at issue. 19 U.S.C. § 1677m(e)(3).
Accordingly, Commerce is entitled to select an antidumping duty rate from the facts available in order to determine these dumping margins. The question then becomes whether the particular rate selected by Commerce122.88 percentis properly corroborated and supported by substantial evidence with respect to these entries. See infra Parts IV.D-E.
D
Commerce Improperly Relied On The Rhone Presumption To Support The Selected Rate
"[W]hen Commerce `relies on secondary information rather than on information obtained in the course of' the administrative review, it `shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.'" KYD II, 704 F.Supp.2d at 1330 (quoting 19 U.S.C. § 1677e(c)). "Congress intended for this requirement to `prevent the petition rate (or other adverse inference rate), when unreasonable, from prevailing and to block any temptation by Commerce to overreach reality in seeking to maximize deterrence.'" Id. (quoting PAM, S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed.Cir.2009)).
"In order to corroborate secondary information, Commerce must find that `the secondary information to be used has probative value.'" KYD I, 613 F.Supp.2d at 1378 (quoting SAA at 870, 1994 U.S.C.C.A.N. at 4199). "Commerce evaluates whether secondary information has probative value by assessing its reliability and relevance." Id. (citing Mittal Steel Galati S.A. v. United States, 491 F.Supp.2d 1273, 1278 (CIT 2007)); see also KYD I, 607 F.3d at 764.[15]
In some circumstances, "Commerce is permitted to use a `common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.'" KYD I, 607 F.3d at 766-67 (quoting Rhone, 899 F.2d at 1190 and citing Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339 (Fed.Cir.2002)).[16]
The relationship between this "presumption," id. at 767, and 19 U.S.C. § 1677e(c) is not entirely clear. Rhone actually predates the enactment of 19 U.S.C. § 1677e(c). See KYD II, 704 F.Supp.2d at 1329-30 (discussing the "best information available" standard); see also Tianjin Mach. Import & Export Corp. v. United States, 752 F.Supp.2d 1336 (CIT 2011); Fujian Lianfu Forestry Co. v. United *1379 States, 638 F.Supp.2d 1325, 1336-37 (CIT 2009); Gerber Food (Yunnan) Co. v. United States, 31 CIT 921, 947-48, 491 F.Supp.2d 1326 (2007). Its presumption "does not appear in the statute or regulations, but is a product of agency decision making." KYD I, 607 F.3d at 769 (Dyk, J., concurring in part and dissenting in part) (citing Ta Chen, 298 F.3d at 1339). The Federal Circuit appears to have held that Commerce can use this presumption to establish the relevance of a rate for the purpose of corroboration. See KYD I, 607 F.3d at 764, 766.
This Rhone presumption of relevance is nonetheless subject to at least two significant conditions. First, it is limited to previously examined exporters. See infra Part IV.D.1. Second, it is rebuttable. See infra Part IV.D.2. Because of these conditions, the Rhone presumption does not fully apply to KYD's imports from King Pac and Master Packaging. See infra Parts IV.D.1-2. Absent this presumption, substantial evidence does not support Commerce's determination that the 122.88 percent rate is relevant to these imports. See infra Part IV.E.[17]
1
Commerce Improperly Applied The Rhone Presumption To KYD's Imports From Master Packaging
The Rhone presumption is limited to exporters that were examined by Commerce in a previous investigation or administrative review. As the Federal Circuit explained, this limitation distinguishes KYD I from Gallant, 602 F.3d 1319. In Gallant, "Commerce had not previously determined an antidumping duty against the exporter in question, and thus there was no occasion for the court to consider the presumption that an exporter's prior margin continues to be valid if the exporter fails to cooperate in a subsequent proceeding." KYD I, 607 F.3d at 767; see also Gallant, 602 F.3d at 1324.
This "presumption applie[d] in [KYD I]." KYD I, 607 F.3d at 767. In the original antidumping duty investigation, Commerce applied a TAFA rate of 122.88 percent to an exporter called Zippac. See Universal Polybag Co. v. United States, 577 F.Supp.2d 1284, 1300 n. 14 (CIT 2008) (Wallach, J.). In the first administrative review, Commerce formally collapsed Zippac and King Pac pursuant to 19 C.F.R. § 351.401(f) and applied that same rate to the collapsed entity. See id. at 1288, 1300 n. 4. In the second administrative review, Commerce continued to apply that rate to King Pac. See KYD I, 613 F.Supp.2d at 1375. The Federal Circuit agreed that these determinations were within Commerce's discretion. See KYD I, 607 F.3d at 766-67.
In the third administrative review, however, Commerce applied the TAFA rate of 122.88 percent to Master Packaging as well as to King Pac. See KYD II, 704 F.Supp.2d at 1327; Redetermination at 32. Although KYD "provided evidence that King Pac `has apparently arranged for all of its U.S. export business to be supplied by' . . . Master Packaging," Redetermination at 1, the record contains no evidence that Commerce collapsed these two exporters pursuant to 19 C.F.R. § 351.401(f). Rather, Commerce continued to treat them as separate entities. See Polyethylene Retail Carrier Bags from Thailand: Preliminary Results of Antidumping Duty Administrative Review and Intent to Rescind in Part, 73 Fed.Reg. 52,288, 52,289-90 (September 9, 2008) ("Preliminary Results"); Final Results, 74 Fed.Reg. at 2,512; Redetermination at 1-32. Indeed, Commerce explained that it selected Master Packaging as an additional mandatory *1380 respondent because "Master Packaging is the only respondent not selected for individual examination originally and unforeseen developments in other proceedings have freed up additional resources within AD/CVD Enforcement Office 5." Polyethylene Retail Carrier Bags from Thailand: Selection of Master Packaging as a Mandatory Respondent, U.S. Department of Commerce (March 27, 2008), Public Record ("P.R.") 79 ("Master Packaging Selection Memo") at 3; see also Preliminary Results, 73 Fed.Reg. at 52,289; KYD II, 704 F.Supp.2d at 1325-26; supra note 1.
Because Commerce did not previously examine Master Packaging, it cannot simply apply the Rhone presumption to KYD's entries from this exporter. Instead, Commerce must establish the relevance of any secondary information on which it relies through "`independent sources that are reasonably at [its] disposal'" and otherwise ensure that such information "has some grounding in commercial reality." Gallant, 602 F.3d at 1324 (quoting 19 U.S.C. § 1677e(c)); see also Qingdao Taifa Group Co. v. United States, 760 F.Supp.2d 1379, 1382 (CIT 2010); Tianjin Mach., at 1348.
2
Commerce Improperly Applied The Rhone Presumption To KYD's Imports From King Pac
An importer can rebut the Rhone presumption by "produc[ing] current information showing the margin to be less." KYD I, 607 F.3d at 766 (quoting Rhone, 899 F.2d at 1190). "`[S]ince the presumption is rebuttable, it' induces cooperation with Commerce `without sacrificing the basic purpose of the statute: determining current margins as accurately as possible.'" KYD II, 704 F.Supp.2d at 1330 (quoting Rhone, 899 F.2d at 1191).
Commerce's presumption "was not rebutted" in the second administrative review. KYD I, 607 F.3d at 767. "KYD offered no evidence regarding King Pac's activities during the period of review for the second administrative review that would rebut that presumption. For that reason, Commerce correctly determined that the AFA rate remained relevant to King Pac." Id. No further demonstration of relevance was required. Id. at 766-67; see also id. at 769 (Dyk, J., concurring in part and dissenting in part) (disagreeing that the Rhone "presumption can be applied without corroborating data for the period of the second administrative review").
In the third administrative review, however, KYD "produced current information" regarding its purchases from King Pac and Master Packaging, KYD I, 607 F.3d at 766 (quoting Rhone, 899 F.2d at 1190). See KYD II, 704 F.Supp.2d at 1325-26 (describing KYD's participation in the administrative review), 1331 n. 10 (distinguishing KYD I from KYD II on this basis). Commerce reasonably concluded that 19 U.S.C. § 1677m(e) did not require use of KYD's price information to determine the export price of each entry. See supra Part IV.C. Nonetheless, that conclusion does not necessarily permit Commerce to wholly disregard this information when corroborating a TAFA rate.
At a minimum, provision of this information obliges Commerce to engage in a more robust evaluation of the 122.88 percent rate as applied to KYD's entries from King Pac. When relying on "secondary information," Commerce "shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." KYD II, 704 F.Supp.2d at 1330 (quoting 19 U.S.C. § 1677e(c)); see also Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, 70 Fed.Reg. *1381 54,711 (September 16, 2005) ("With respect to the relevance aspect of corroboration, [Commerce] will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant."), cited in KYD I, 613 F.Supp.2d at 1378. In the second administrative review, pertinent information for King Pac was not available, much less reasonably so. See KYD I, 607 F.3d at 767. In the third administrative review, however, KYD provided what it contends, and Commerce does not dispute, to be all pertinent information in its possession. See Redetermination at 2; KYD's Comments at 6, 9.
KYD's information suggests that a lower antidumping duty rate would more accurately reflect dumping margins for KYD's imports from King Pac. See infra Part IV.E. "Commerce's burden is greater where information on the record demonstrates that an alternative rate may be appropriate." Shanghai Taoen Int'l Trading Co. v. United States, 29 CIT 189, 198, 360 F.Supp.2d 1339 (2005) (citations omitted). In light of this information, the Rhone presumption is no longer a "common sense inference," KYD I, 607 F.3d at 766 (quoting Rhone, 899 F.2d at 1190), that sufficiently establishes the relevance of the 122.88 percent rate to these entries.
E
Substantial Evidence Does Not Support A Rate of 122.88 Percent For The Entries At Issue
Commerce's "broad discretion in making antidumping duty determinations. . . is particularly great in the case of uncooperative respondents." Gallant, 602 F.3d at 1323 (citing De Cecco, 216 F.3d at 1032); see also KYD I, 607 F.3d at 765 (citing PAM, 582 F.3d at 1340). That discretion, "however, is not unbounded." Gallant, 602 F.3d at 1323 (citing De Cecco, 216 F.3d at 1032). "The burden imposed by substantial evidence review may not be heavy, but it is not ephemeral. There must be at least enough evidence to allow reasonable minds to differ." PAM, 582 F.3d at 1340 (citations omitted).
"An AFA rate must be `a reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.'" Gallant, 602 F.3d at 1323 (quoting and emphasizing De Cecco, 216 F.3d at 1032). "Congress tempered deterrent value with the corroboration requirement. It could only have done so to prevent the petition rate (or other adverse inference rate), when unreasonable, from prevailing and to block any temptation by Commerce to overreach reality in seeking to maximize deterrence." PAM, 582 F.3d at 1340 (quoting De Cecco, 216 F.3d at 1032).
Binding precedent permits Commerce's determination that the antidumping duty rate applied to the entries at issue is reliable. KYD argues that this TAFA rate of 122.88 percent is unreliable in light of post-investigation rates of 2.26 to 5.35 percent and post-review rates of 8.94 to 32.67 percent. See KYD's Memo at 23-31.[18] This argument closely tracks the Federal Circuit's holding that a TAFA rate of 57.64 percent was unreliable in light of post-investigation rates of 5.91 to 6.82 percent and post-review rates of 2.58 to 10.75 percent. See Gallant, 602 F.3d at 1323-24. Nonetheless, because "[t]he reliability of an AFA rate is assessed by determining whether the rate was reliable when first used," KYD I, 613 F.Supp.2d at 1379 (citing Tianjin Mach. Imp. & Exp. Corp. v. United States, 31 CIT 1416, 1434, 2007 WL 2701368 (2007)), the court is bound by the *1382 Federal Circuit's subsequent holding that "Commerce had a sufficient basis for concluding that" this specific rate was reliable when assigning it "in the first administrative review," KYD I, 607 F.3d at 766.
However, in the absence of the Rhone presumption, see supra Part IV.D, substantial evidence does not supportand indeed underminesthe relevance of this rate to the imports at issue. In other proceedings, Commerce has sought to establish the relevance of its selected AFA rate by identifying individual transactions with dumping rates at or above that AFA rate. See, e.g., PAM, 582 F.3d at 1340 (sales by PAM in the previous period of review); Ta Chen, 298 F.3d at 1339 (a single sale by Ta Chen in the pertinent period of review); Gallant, 602 F.3d at 1324 (sales by exporters other than Gallant in the pertinent period of review). Such transactions sufficed under the facts of PAM and Ta Chen but did not suffice under the facts of Gallant. See PAM, 582 F.3d at 1340; Ta Chen, 298 F.3d at 1339; Gallant, 602 F.3d at 1324. Regardless of their sufficiency, these transactions at least existed on the record of those proceedings. In contrast, the highest transaction-specific rates calculated by Commerce for a cooperative exporter in the instant administrative review are less than 122.88 percent. See Polyethylene Retail Carrier Bags from ThailandTransaction-Specific Company Margins, U.S. Department of Commerce (January 7, 2009), Confidential Record ("C.R.") 76 at 2 (identifying rates equal to 77 and 88 percent of the selected AFA rate).[19]
KYD's information further undermines the relevance of the 122.88 percent rate. The chart below is derived from unadjusted and unverified U.S. sales information provided by or for the four mandatory respondents in the third administrative review.[20] For each transaction, the Y value is the unadjusted U.S. sales price per one thousand bags, and the X value is the approximate volume of material per bag. The chart does not present a complete picture; for example, each X value directly reflects only four of the thirteen variables used by Commerce to describe the merchandise. See, e.g., Administrative Review of the Antidumping Duty Order on Polyethylene Retail Carrier Bags from ThailandPreliminary Results Analysis Memorandum for [Poly Plast], U.S. Department of Commerce (September 2, 2008) ("Poly Plast Memo"), C.R. 67 at 2.[21]
The chart nonetheless suggests a "commercial reality," Gallant, 602 F.3d at 1323, *1383 that is inconsistent with a dumping rate of 122.88 percent. Sales by Poly Plast, which received a "weighted average dumping margin" of 8.94 percent based on "partial adverse facts available," Final Results, 74 Fed.Reg. at 2,511-12, appear to [[compare in a certain way to]] those reported by KYD for Master Packaging and King Pac, which each received a TAFA rate of 122.88 percent, id. This combination of rates and sales prices implies that the normal value of a plastic bag imported by KYD [[compares in a certain way to]] the normal value of a similar bag exported by Poly Plast. In addition, sales by the Naraipak Group, which received a "weighted average dumping margin" of 32.67 percent, id., [[compare in a certain way to]] facially similar sales by Poly Plast, Master Packaging, and King Pac.[22]
[[This chart, which compares U.S. sales data submitted by KYD (for purchases from King Pac and Master Packaging), Poly Plast, and Naraipak Group, has been redacted as confidential.]]
The record evidence necessarily informs the court's review of Commerce's selection of a 122.88 percent antidumping duty rate for the entries at issue. See Gallant, 602 F.3d at 1323 ("[The] court reviews the record as a whole, including any evidence that `fairly detracts from the substantiality of the evidence,' in determining whether substantial evidence exists.") (quoting Micron Tech., 117 F.3d at 1393).[23] The only apparent evidence supporting that rate originates in the 2003 petition. See KYD II, 704 F.Supp.2d at 1326; see also Initiation of Antidumping Duty Investigations: Polyethylene Retail Carrier Bags from The People's Republic of China, Malaysia, and Thailand, 68 Fed.Reg. 42,002, 42,004 (July 16, 2003) ("Based on comparisons of export price to normal value" provided in the 2003 petition, "the estimated dumping [rates] for [subject merchandise] from Thailand range from 34.84 percent to 122.88 percent."). That evidence amounts to no "more than a mere scintilla," Ad Hoc Shrimp, 618 F.3d at 1321. Far from supporting a finding of relevance, the record as a whole strongly suggests that a rate of 122.88 percent has no relationship to the actual entries at issue in this third administrative *1384 review.[24]
V
CONCLUSION
For the reasons stated above, this matter is REMANDED to Commerce for action consistent with this opinion.
NOTES
[1] KYD volunteered information about a relationship between King Pac and Master Packaging, Defendant-Intervenors requested that Commerce examine Master Packaging in light of this information, Commerce added Master Packaging as an additional mandatory respondent, and Commerce applied a TAFA rate to Master Packaging for failure to cooperate in that examination. See KYD II, 704 F.Supp.2d at 1325-26. Commerce has not explicitly stated that it examined Master Packaging because of KYD's information. See infra Part IV.D.1. The closest that Commerce comes is in the Redetermination. See Redetermination at 1-2 ("The petitioners claimed that KYD's submission . . . raised serious new issues that the petitioners did not expect and urged the Department to investigate the relationship between King Pac and Master Packaging. The Department added Master Packaging as an additional respondent that it would examine individually in the review on March 27, 2008.") (internal footnote omitted). At oral argument, counsel for Commerce stated that the selection of Master Packaging was not in response to the request by Defendant-Intervenors. February 9, 2011 Oral Argument at 11:13:59-11:14:55 ("This is a shorthand version of what happened actually. During the context of the review, domestics did bring up to us the fact that Master Packaging had essentially been involved in this. Then it came to the point where we did have time and we did have the ability to review one more company. And it was decided at that point; however, it was not in response to the fact that the parties had [asked us] to look at this. It was more a matter of, the fact is, we did have the time to look at one other one, and Master Packaging was on the list of those that had exported during the period of review and they had significant exports too. So it made sense that since we did have the time, essentially killing two birds with one stone. But it was not because they had requested that, and we had made that very clear. It was on the record, and we made it very clear. We were not doing it because they requested it, but because we had the resources to review them. . . . Whenever we do response selection it's always based on the resources available to the agency, so at that time we determined we did have the resources to review them.").
[2] The Uruguay Round Agreements Act ("URAA") approved the new World Trade Organization Agreement, and the agreements annexed thereto, "resulting from the Uruguay Round of multilateral trade negotiations [conducted] under the auspices of the General Agreement on Tariffs and Trade." 19 U.S.C. § 3511(a)(1). The SAA, which was submitted to and approved by Congress, see 19 U.S.C. § 3511(a)(2), is "an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and [the Uruguay Round Agreements] Act in any judicial proceeding in which a question arises concerning such interpretation or application." 19 U.S.C. § 3512(d).
[3] Commerce "may . . . use averaging and statistically valid samples, if there is a significant volume of sales of the subject merchandise or a significant number or types of products." 19 U.S.C. § 1677f-1; see KYD II, 704 F.Supp.2d. at 1329, 1333-34. In addition, "the preferred methodology in reviews [is] to compare average [normal values] to individual export prices." SAA at 843, 1994 U.S.C.C.A.N. at 4178.
[4] The corresponding pre-URAA provision likewise directed Commerce to "determine(A) the foreign market value and United States price of each entry of merchandise subject to the antidumping duty order and included within that determination, and (B) the amount, if any, by which the foreign market value of each such entry exceeds the United States price of the entry." 19 U.S.C. § 1675(a)(2) (1990).
[5] Although the correspondence between sales and entries during a period of review may be imperfect, particularly in the case of constructed export price sales between an exporter and its affiliated importer, the Federal Circuit has upheld this practice as a reasonable interpretation of 19 U.S.C. § 1675. See Koyo, 258 F.3d at 1342-43.
[6] 19 U.S.C. § 1675(a) also provides for reviews for exporters and producers that did not export subject merchandise during the period of investigation. See 19 U.S.C. § 1675(a)(2)(B). Although this provision governing these new shipper reviews only directs Commerce to determine a "weighted average dumping margin," id., Congress intended these reviews to be retrospective as well as prospective, see SAA at 875, 1994 U.S.C.C.A.N. at 4203. Consistent with this intent, Commerce generally conducts these reviews like it conducts annual reviews. See 19 C.F.R. §§ 351.212(b)(1) (referencing 19 C.F.R. § 351.214); 19 C.F.R. § 351.214(h) (referencing 19 C.F.R. § 351.221). Regardless, the administrative review at issue in this matter is an annual review rather than a new shipper review. See supra Part II; KYD II, 704 F.Supp.2d at 1334.
[7] Commerce alternates between characterizing these rates as specific to each importer and specific to each importer/exporter pair. See, e.g., 75 Fed.Reg. at 53,663; Final Results, 74 Fed.Reg. at 2,512; 19 C.F.R. § 351.212(b)(1). This raises the question of whether Commerce calculates more than one rate for an importer that purchases subject merchandise from more than one examined exporter. Regardless, the duties assessed to such an importer would appear to be the same under both approaches, and this opinion therefore uses the term "importer-specific" to refer to either approach. When calculating such rates, Commerce aggregates importers that are affiliated both with each other and with a single exporter "to prevent [these] affiliates from manipulating individual assessment rates to their advantage." Issues and Decision Memorandum appended to Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed.Reg. 53,661 (September 1, 2010), cmt. 7.
[8] Critically, the term "dumping margin" is statutorily distinct from the term "weighted average dumping margin." Compare 19 U.S.C. § 1677(35)(A) with 19 U.S.C. § 1677(35)(B); see also KYD II, 704 F.Supp.2d at 1332. At oral argument, the court asked each of the parties to define "dumping rate," "dumping margin," "weighted average dumping margin," "estimated weighted average dumping margin," "assessment rate," and "cash deposit rate." February 9, 2011 Oral Argument at 10:55:05-11:04:50. Each party distinguished between "dumping margin" and "weighted average dumping margin." Id. The parties also agreed that there is "a difference between an amount and a percentage." Id. at 11:05:04-11:08:41 (discussing KYD II, 704 F.Supp.2d at 1326 n. 5).
[9] Rhone's reasoning has outlasted the statute that it addressed. See KYD II, 704 F.Supp.2d at 1330 n. 8; infra Part IV.D.
[10] In an investigation that produces an affirmative determination of dumping, Commerce "shall(i) determine an estimated weighted average dumping margin for each exporter and producer individually investigated, and (ii) determine, in accordance with [19 USC § 1673d(c)(5)], an estimated all-others rate for all exporters and producers not individually investigated" and "shall order the posting of a cash deposit, bond, or other security, as [Commerce] deems appropriate, for each entry of the subject merchandise in an amount based on the estimated weighted average dumping margin or the estimated all-others rate, whichever is applicable." 19 U.S.C. § 1673b(d)(1); see also 19 U.S.C. § 1673d(c)(1)(B). In an administrative review, however, Commerce shall "review, and determine . . ., the amount of any antidumping duty" by "determin[ing](i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry" and "shall publish in the Federal Register the results of such review, together with notice of any duty to be assessed [or] estimated duty to be deposited." 19 U.S.C. § 1675(a)(1)-(2). The existing cash deposit rate becomes the assessment rate only if no party requests an administrative review. 19 C.F.R. § 351.212(c).
[11] In holding that Commerce may use adverse inferences to determine assessment rates for unaffiliated importers, the Federal Circuit did state that "KYD does not point to any statute or regulation that would entitle independent importers to a different assessment rate from the rate for importers that are affiliated with the foreign producer/exporters of the good they import." KYD I, 607 F.3d at 768. This statement is best understood in that context as a rejection of KYD's request for a special non-adverse assessment rate. See id.; KYD I, 613 F.Supp.2d at 1381-82; see also supra Part IV.A.
[12] On this view, Commerce would also be required to use facts available to fill certain gaps in KYD's price information. For example, Commerce might use data submitted by other respondents to make commercially reasonable assumptions about resin content, whether or not those assumptions are based on adverse inferences pursuant to 19 U.S.C. § 1677e(b). See Redetermination at 25-27.
[13] Commerce also argues that it cannot use KYD's price information "without undue difficulties" and that even if the applicable determination were export price, KYD's information remains "so incomplete that it cannot serve as a reliable basis for [that] determination." Redetermination at 7-9. The court need not consider these arguments.
[14] In SAIL, which involved the treatment of incomplete responses by an uncooperative exporter, this court deferred to Commerce's interpretation of the term "information" in 19 U.S.C. § 1677m(e). See SAIL, 25 CIT at 482, 485-86, 149 F.Supp.2d 921.
[15] The reliability and relevance analyses appear to overlap somewhat. Compare Gallant, 602 F.3d at 1323-24 with KYD I, 607 F.3d at 766-67.
[16] Commerce states that Rhone "does not apply" because the importer in that case was affiliated with the exporter. Redetermination at 16. The Federal Circuit believes that Rhone applies. See KYD I, 607 F.3d at 766 (quoting Rhone, 899 F.2d at 1190). So does this court. See KYD II, 704 F.Supp.2d at 1329-30 (quoting Rhone, 899 F.2d at 1190, 1191). So too does Commerce. See Preliminary Results, 73 Fed.Reg. at 52,290 (citing Rhone, 899 F.2d at 1190). Ta Chen endorses but does not actually apply the Rhone presumption. See Ta Chen, 298 F.3d at 1339 (citing Rhone, 899 F.2d at 1190); Ta Chen Stainless Steel Pipe, Inc. v. United States, 24 CIT 841, 846 (2000) (explaining that the selected rate was calculated from certain sales made by the exporter during the pertinent period of review).
[17] This conclusion is not a reflection on Commerce, as the courts have also struggled with the corroboration requirement. See infra Part IV.E.
[18] The 8.94 and 32.67 percent rates are the result of the third administrative review. The second administrative review produced rates of 0.80 to 1.87 percent. See KYD I, 607 F.3d at 770 (Dyk, J., concurring in part and dissenting in part).
[19] Because this action is limited to the entries at issue, the court need not determine whether these transaction-specific rates also discredit the use of the 122.88 percent rate to liquidate other entries exported by King Pac or Master Packaging and to collect cash deposits on future exports by these companies. See supra Part IV.A.
[20] The court produced this chart using data from submissions to Commerce on behalf of Naraipak, Poly Plast, and KYD. See Letter from Hunton & Williams LLP to U.S. Department of Commerce, Polyethylene Retail Carrier Bags from Thailand (January 25, 2008) ("Naraipak Submission"), C.R. 9 Ex. 24; Letter from Hunton & Williams LLP to U.S. Department of Commerce, Polyethylene Retail Carrier Bags from Thailand ("Poly Plast Submission") (January 25, 2008), C.R. 10 Ex. 20; and Letter from Riggle & Craven to U.S. Department of Commerce (January 25, 2008) ("KYD Initial Submission"), C.R. 11 Ex. FIS-2. The chart does not distinguish between sales by Master Packaging and sales by King Pac.
[21] The thirteen "characteristics, in order of importance, are: 1) quality, 2) bag type, 3) length, 4) width, 5) gusset, 6) thickness, 7) percentage of high-density polyethylene resin, 8) percentage of low-density polyethylene resin, 9) percentage of low linear-density polyethylene resin, 10) percentage of color concentrate, 11) percentage of ink coverage, 12) number of ink colors, and 13) number of sides printed." Poly Plast Memo, C.R. 67 at 2. The chart directly reflects length, width, gusset, and thickness. Furthermore, Poly Plast and Naraipak reported [[certain product attributes that compare in a certain way]]. See Naraipak Submission, C.R. 9 Ex. 24; Poly Plast Submission, C.R. 10 Ex. 20. The high degree of correlation evident from the chart suggests a strong association between the first six variables and normal value.
[22] Commerce states that "the Court appears to assume that normal value would be constant for all U.S. sales." Redetermination at 22 (discussing KYD II, 704 F.Supp.2d at 1332 n. 13). Commerce's belief is incorrect. The court's observation that "[u]se of total adverse facts available could produce antidumping duties that are highest when the actual margin of dumping is lowest (or nonexistent)" concerns sales at different prices of identical or substantially similar products. See KYD II, 704 F.Supp.2d at 1332 n. 13 (positing "certain merchandise [with] a constant normal value of $10") (emphasis added); see also Poly Plast Memo, C.R. 67 at 2 ("If no identical match was found, we matched the similar merchandise on the basis of the comparison-market model which was closest in terms of the physical characteristics to the model sold in the United States"); Administrative Review of the Antidumping Duty Order on Polyethylene Retail Carrier Bags from ThailandFinal Results Analysis Memorandum for [Poly Plast], U.S. Department of Commerce (January 7, 2009), C.R. 74 at 25 (comparing "identical products" as well as "similar products"); February 9, 2011 Oral Argument at 12:25:25-12:33:04.
[23] Although Commerce is better positioned than the court to analyze KYD's information, see De Cecco, 216 F.3d at 1032, it has so far declined to do so in this matter.
[24] The court need not address KYD's Eighth Amendment claim. See KYD's Comments at 26-29. A statutorily proper AFA rate is remedial rather than punitive, KYD I, 607 F.3d at 767-78, and a "punitive" rate is statutorily improper, Gallant, 602 F.3d at 1323 (quoting De Cecco, 216 F.3d at 1032). | 01-03-2023 | 02-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345832/ | 174 Ga. App. 424 (1985)
330 S.E.2d 165
KELLY
v.
THE STATE.
69649.
Court of Appeals of Georgia.
Decided April 1, 1985.
G. Terry Jackson, for appellant.
*426 Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.
BENHAM, Judge.
Appellant was found guilty of armed robbery and now appeals. In addition to questioning the sufficiency of the evidence and the admission of identification testimony, appellant contends that he did not receive a complete trial transcript and that a portion of the jury charge was erroneous.
1. The victim of the armed robbery positively identified appellant as the shorter of two men who entered his Savannah motel room and threatened him if he did not cooperate. The witness testified that appellant's companion brandished a firearm. Fearing for his life, the victim locked himself in the bathroom. When he emerged, a camera, an electric razor, a pocket calculator, a hair dryer, a watch, and his wallet containing $400 were missing. A detective testified that he presented a photographic display to the victim approximately five to six weeks after the incident, and that the victim, without hesitation, chose appellant's photograph as depicting one of the perpetrators. There was sufficient evidence to enable a rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. OCGA § 16-8-40; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant asserts as error the denial of his pretrial motion to suppress the identification testimony of the victim. "`"(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as *425 to give rise to a very substantial likelihood of irreparable misidentification." [Cits.]'" Newkirk v. State, 155 Ga. App. 470 (2) (270 SE2d 917) (1980). The trial court held a pretrial hearing on the motion and, "[i]n the absence of evidence of record demanding a finding contrary to the judge's determination, we will not reverse the ruling denying the suppression. The evidence was sufficient to show that this [photo spread] was not impermissibly suggestive. [Cit.]" Woods v. State, 165 Ga. App. 39 (1) (299 SE2d 97) (1983).
3. Appellant argues that he was deprived of his state and federal constitutionally guaranteed rights to due process of law because he did not receive a complete transcript. A portion of the voir dire is missing because, according to the court reporter's note, the tape broke. In addition, phrases seem to be missing from several places in the transcript.
"Although [appellant] makes a general assertion that he was prejudiced by the missing portions of [the] transcript, he fails to show how he was harmed or to raise any issue which this Court is unable to adequately review because of skips in the record . .. [Appellant] does not object to the conduct of voir dire, but only to its omission from the record. Such an omission cannot be reversible error absent an allegation of harm resulting from the deletion. [Cit.] This enumeration has no merit." Smith v. State, 251 Ga. 229 (2) (304 SE2d 716) (1983).
4. Appellant next takes exception to the content of a portion of the trial court's instructions to the jury. Before addressing the merits of appellant's enumeration, we must first determine whether or not appellant waived any objection to the trial court's charge. When asked if there were any objections to the charge as given or additional requests to charge, counsel for appellant replied, "Not at this time, Your Honor." "In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), . . . of reserving the right to object on motion for new trial or on appeal." Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). "[T]he mere insertion of the caveat `at this time' is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, [supra]." Butler v. State, 173 Ga. App. 168 (325 SE2d 835) (1984).
In the absence of a reservation in response to a direct inquiry by the trial court, appellant has waived the objection he now makes. Jackson v. State, supra.
Judgment affirmed. Banke, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2508055/ | 203 F.Supp.2d 624 (2002)
Jerry FALWELL, as Pastor of Thomas Road Baptist Church, and the Trustees of Thomas Road Baptist Church, Plaintiffs,
v.
Clinton MILLER, in his official capacity as Chairman of the State Corporation Commission, Defendant.
No. CIV.A. 6:01CV00075.
United States District Court, W.D. Virginia, Lynchburg Division.
April 15, 2002.
*625 Jerry Falwell, Jr., Lynchburg, VA, Mathew D. Staver, Joel L. Oster, Erik W. Stanley, Liberty Counsel, Longwood, FL, for plaintiffs.
Walter C. Erwin, III, Lynchburg, VA, William Henry Hurd, Office of Atty. Gen., Richmond, VA, Alexander Wayne Bell, Mary V. Barney, Law office of Alexander W. Bell, Lynchburg, VA, for, City of Lynchburg, Randolph A. Beales, Jerry W. Kilgore, defendants.
*626 Guy Winston Horsley, Jr., Office of Atty. Gen., Richmond, VA, Philip R. de Haas, State Corp. Com'n Counsel to Com'n, Richmond, VA, for Clinton Miller, defendant.
William F. Etherington, Beale, Balfour, Davidson & Etherington, P.C., for Larry B. Palmer, defendant.
Elaine Scott Moore, Office of Atty. Gen., Richmond, VA, for Honorable M.G. Perrow, defendant.
Edward Meade Macon, Office of Atty. Gen., Richmond, VA, for William Petty, defendant.
Rebecca K. Glenberg, Richmond, VA, for American Civil Liberties Union, amicus.
H. Robert Showers, Greber, Simms & Showers, Leesburg, VA, Stuart J. Lark, Gregory S. Baylor, Christian legal Soc, Annandale, VA, for Southern Baptist Conservatives of Va., Christian Legal Soc., amicus.
OPINION
MOON, District Judge.
I. INTRODUCTION
Plaintiffs Rev. Jerry Falwell and the Trustees of Thomas Road Baptist Church ("Thomas Road" or "the Church") have filed this civil rights and declaratory judgment action against Clinton Miller, in his official capacity as Chairman of the State Corporation Commission ("SCC") of the Commonwealth of Virginia. The Plaintiffs allege that because the SCC refuses to grant a corporate charter to the Church and its Trustees, Chairman Miller and the SCC have deprived them of their civil rights under the First and Fourteenth Amendments to the Constitution of the United States.
Chairman Miller asserts that because Article IV, § 14(20) of the Constitution of Virginia forbids the General Assembly from incorporating any church or religious denomination, the SCC has no discretion but to deny Plaintiffs corporate status. In fact, throughout these proceedings, the Chairman has chosen not to defend the federal constitutional merits of the Virginia provision. Instead, the SCC has argued only that the Plaintiffs have not sustained an injury sufficient to result in a case or controversy under Article III.
Both the Defendants and the Plaintiffs have moved for summary judgment.
Because this Court concludes that Article IV, § 14(20) of the Constitution of the Commonwealth of Virginia violates the Constitution of the United States, Defendant's Motion shall be DENIED and Plaintiffs' Motion shall be GRANTED.
II. PROCEDURAL HISTORY & SUMMARY JUDGMENT STANDARD
In the Amended Verified Complaint which began this case, Plaintiffs filed suit under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02 against six Defendants. In doing so, the Plaintiffs challenged four laws: Article IV, § 14(20) of the Virginia Constitution, §§ 57-12 and 57-15 of the Virginia Code, and § 18-46 of the City Code of Lynchburg. Following a hearing on five of the Defendants' Motions to Dismiss, the Court concluded that the statutory claims pending against the City of Lynchburg, the Attorney General, the Clerk and Chief Judge of the 24th Judicial Circuit, and the Commonwealth Attorney for the City of Lynchburg were either moot or nonjusticiable. See Falwell v. City of Lynchburg, 198 F.Supp.2d 765, ____ (W.D.Va.2002). As a result, Chairman Miller remains the only Defendant in this case and § 14(20) remains the only provision in controversy.
*627 In contrast to his co-Defendants, Chairman Miller has adopted a peculiar procedural position in this case. First, he has chosen not to file an Answer to Plaintiffs' Complaint pursuant to Fed. R. Civ. Proc. 7 or 8. Second, he does not contest the merits of Plaintiffs' legal argument that § 14(20) violates the U.S. Constitution. Third, he has not challenged any of Plaintiffs' factual assertions, most notably their contentions that they have been denied corporate status.
While choosing not to respond to Plaintiffs' contentions, Chairman Miller nevertheless has moved for summary judgment for lack of a Case or Controversy. Plaintiffs, on the other hand, filed their Amended Verified Complaint on December 11, 2001, filed a Renewed Motion for Summary Judgment on January 9, 2002, and have opposed Defendant's Motion. Under the Pretrial Order, the Defendant had until January 23 to respond to Plaintiffs' Motion for Summary Judgment. Since the Defendant has chosen not to reply to Plaintiffs' Motion, the Court deems that Motion to be unopposed.[1]
Generally, summary judgment should be granted only if, in viewing the record as a whole in the light most favorable to the non-moving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Terry's Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985). In considering a motion for summary judgment, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the non-moving party." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citations omitted).
In this case, however, Plaintiffs' Motion for Summary Judgment is unopposed. If a motion for summary judgment is supported by affidavit or a verified complaint and is unopposed, "summary judgment shall be entered ... against the adverse party." Rule 56(c); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (stating that a verified complaint is the equivalent of an opposing affidavit for summary judgment purposes). Based on the Federal Rules, the Court has no choice but to accept Plaintiffs' factual allegations as true, conclude that Chairman Miller may act on behalf of the SCC,[2] and grant summary judgment to the Plaintiff.
III. FACTS
Since 1956, Thomas Road Baptist Church, and its Pastor, Rev. Jerry Falwell, have provided a home for Christian prayer, worship, and education for the people of Lynchburg, Virginia, the nation, and the world. Today, the Trustees of Thomas Road Baptist Church own the Church and its sanctuary, which stands on 28.88 acres in a residentially-zoned area of the City of Lynchburg. Because the Trustees believe *628 the Church to have outgrown its current sanctuary, they have started to construct a new facility on approximately sixty acres elsewhere in the City.[3] The Trustees hold title to the land on which the current sanctuary stands, and seek to take title to the sixty-acre tract on which the new sanctuary will be located.
On March 3, 2002, the Congregation of Thomas Road passed a Resolution in which it concluded, in part, that "due to [a] discriminatory provision in the Virginia Constitution, the Church is ... not permitted to be incorporated." Despite this provision, the Congregation resolved to "incorporate as a Church within the Commonwealth of Virginia."
Two weeks later, on March 18, George McGann, a Thomas Road deacon, executed Articles of Incorporation on behalf of Thomas Road Baptist Church. Deacon McGann then submitted the Articles[4] to the SCC.
On March 26, Charles L. Rogers, an SCC attorney, replied to Deacon McGann. In his letter on behalf of the SCC, Mr. Rogers stated that, "We are returning the articles of incorporation for the following reasons: The last paragraph of Section 14 of Article IV of the Constitution of Virginia prohibits the incorporation of churches and religious denominations in Virginia."
IV. ANALYSIS
Since this Court has already dismissed the challenges to Va.Code Ann. §§ 57-12 and -15 and to Lynchburg City Code § 18-46 for mootness and lack of standing, the only provision relevant to this inquiry is Article IV, § 14(20) of the Constitution of Virginia. The Plaintiffs challenge the second paragraph of this provision, which reads, in relevant part, "The General Assembly shall not grant a charter of incorporation to any church or religious denomination ...." Va. Const. art. IV, § 14(20).
The Plaintiffs have filed suit pursuant to 42 U.S.C. § 1983, which provides that, "Every person who, under color of [state law] subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...." Because the SCC has refused to incorporate Thomas Road Baptist Church,[5] the Plaintiffs allege that the SCC has denied them their constitutional rights under the Free Exercise Clause of the First Amendment to the Constitution of the United States.
*629 A.
The Free Exercise Clause of the First Amendment, applicable to the States via the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." U.S. Const. amend. I; Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).
When adjudicating cases arising under the Free Exercise Clause, the Supreme Court of the United States has held that (1a) non-neutral laws which are (1b) not generally applicable must be (2a) narrowly tailored (2b) to advance a compelling governmental interest. See Lukumi, 508 U.S. at 531-32, 113 S.Ct. 2217. On the other hand, a law "that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Id. at 531, 113 S.Ct. 2217 (citing Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)).
Therefore, the Court first asks whether § 14(20)'s prohibition on church incorporation is "neutral" or of "general applicability."
i. Neutrality
The Court begins, as it must, with the text of the challenged provision. Id. at 533, 113 S.Ct. 2217. If the law lacks facial neutrality by "discriminat[ing] on its face," then the inquiry ends. Id. The Court would then proceed to a strict scrutiny analysis to determine whether the provision is tailored narrowly to achieve a compelling governmental interest. Id. at 531, 113 S.Ct. 2217. "A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context." Id. at 553, 113 S.Ct. 2217.
For example, in Lukumi, the Plaintiffs alleged that certain city ordinances, on their faces, discriminated against their religion. Id. at 527-28, 113 S.Ct. 2217. The Lukumi Plaintiffs practiced the Santeria faith, a religion which dates to the 19th century and blends elements of Roman Catholicism with traditional African religions. Id. at 524, 113 S.Ct. 2217. As part of their rituals, adherents of Santeria sacrifice animals, such as chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. Id. at 525-26, 113 S.Ct. 2217. In 1987, one such Santeria congregation announced plans to construct a church in the City of Hialeah, Florida. Id. In response, the Hialeah city council passed several criminal ordinances prohibiting ritualistic animal sacrifice within the limits of Hialeah. Id. at 527-28, 113 S.Ct. 2217. In a subsequent § 1983 lawsuit against the city, the Lukumi Plaintiffs asserted that the ordinances lacked neutrality because they included words such as "sacrifice" and "ritual." Id. at 533-34, 113 S.Ct. 2217. By using these words, the Plaintiffs argued, the city code facially discriminated against religion. Id. However, the Supreme Court of the United States concluded otherwise. Id. Because "sacrifice" and "ritual" could convey secular meanings in addition to religious ones, the Court reasoned, the challenged laws were not necessarily discriminatory on their faces. Id.
In this case, there is no doubt that Rev. Falwell and the Trustees challenge a provision that, unlike the Hialeah laws, "refers to a religious practice without a secular meaning discernible from the language or context." Id. at 531, 113 S.Ct. 2217. Article IV, § 14(20) of the Virginia Constitution reads, "The General Assembly shall not grant a charter of incorporation to any church or religious denomination...." By *630 its terms, therefore, § 14(20) has no meaning within the secular context; it plainly refers to "a religious practice." Furthermore, given that other statutes allow any organization "with any lawful purpose," see Va.Code Ann. § 13.1-825, to incorporate, Article IV, § 14(20) also distinguishes churches and religious denominations from other groups in the broader context of Virginia law.
Because § 14(20) lacks facial neutrality, the Court concludes that it does not need to divine the legislative intent of the its drafters to discern whether they had a discriminatory purpose. But see Lukumi, 508 U.S. at 534-40, 113 S.Ct. 2217 (inquiring into the legislative purpose of an ordinance, which on its face did not discriminate against religion). In fact, such an inquiry would be a difficult one, given that "it is virtually impossible to determine the singular `motive' of a collective body." Id. at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in the judgment). Indeed, this task would be even more difficult in this case, given that the provision at issue was likely the product of multiple motives. The Constitution of Virginia was drafted by the General Assembly, reviewed by a legislatively-chartered commission, and ratified by a referendum of the Commonwealth. See, e.g., Virginia Commission on Constitutional Revision. The Constitution of Virginia: Report of the Commission on Constitutional Revision. (A.E. Dick Howard, Exec. Dir., Michie, 1969).
As a result, the Court will not conclude, as Plaintiffs have, that Article IV, § 14(20) derives from "a history of religious suppression in Virginia," evidences "extreme hostility to religion," "equates to government censorship of religion and religious ideas," or likens churches to "criminal organizations." Not only are these statements legal conclusions, the validity of which this Court need not accept under Rule 56, they are also implausible.
To the contrary, Thomas Jefferson, the author of the Statute of Virginia for Religious Freedom to which § 14(20) traces its roots, believed freedom of religion to be "`one of the natural rights of mankind.'" Charles B. Sanford, The Religious Life of Thomas Jefferson 30 (University Press of Virginia, 1995) (1984) (citation omitted). See also Peggy Gerstenblith. Associational Structures of Religious Organizations. 1995 B.Y.U. L.Rev. 439, 462. For Mr. Jefferson, any infringement of religious freedom constituted "`an infringement of [a] natural right.'" Id. The more likely explanation for the existence of § 14(20) is that its drafters believed that state incorporation of individual churches was inconsistent with the principles of Mr. Jefferson's act.
In any event, the motivations of those who drafted and ratified § 14(20) are irrelevant to this inquiry. Because this provision lacks facial neutrality, the Court now turns to the second requirement of the Free Exercise Clause, which provides that any law burdening religious practice must be generally applicable. See Lukumi, 508 U.S. at 541, 113 S.Ct. 2217 (citing Smith, 494 U.S. at 879-81, 110 S.Ct. 1595).
ii. General Applicability
Because the concepts of neutrality and general applicability are interrelated, see Lukumi, 508 U.S. at 531, 113 S.Ct. 2217, the inquiries into each principle are similar. In order to be valid, laws which impact religion must be generally applicable; i.e., government may not "impose special disabilities on the basis of religious views or religious status." See Smith, 494 U.S. at 877, 110 S.Ct. 1595 (citing McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); United States v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Fowler v. Rhode Island, *631 345 U.S. 67, 69, 73 S.Ct. 526, 97 L.Ed. 828 (1953)). To that end, the Supreme Court has upheld laws applicable to broad segments of the population, even if they have had the incidental effects of impacting the religious practices of certain individuals. See generally Smith, 494 U.S. at 879-80, 110 S.Ct. 1595 (citing Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (upholding generally applicable child labor laws against a mother for her religiously-motivated demands that her children distribute literature); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (upholding Sunday closing laws against assertion that the laws burdened the religious practices of others whose own religions demanded that they refrain from work on other days); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (upholding the Selective Service System against the allegation that it violated free exercise by conscripting religiously-motivated conscientious objectors)).
Nevertheless, in upholding laws of general applicability, the Supreme Court of the United States has stated that the Free Exercise clause "`protect[s] religious observers against unequal treatment.'" Lukumi, 508 U.S. at 542, 113 S.Ct. 2217 (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 148, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (Stevens, J., concurring in judgment)). For example, in McDaniel, the Supreme Court employed the Free Exercise Clause to invalidate a Tennessee state constitutional provision which prohibited ministers from serving as legislators, 435 U.S. at 621, 98 S.Ct. 1322, in part because the law discriminated against ministers on account of their religious "status, acts, and conduct." 435 U.S. at 627, 98 S.Ct. 1322. As in McDaniel, the Virginia constitutional provision in this case also discriminates on account of religious status. Unlike other groups in Virginia, members of "a church or religious denomination" are unable to incorporate the organization to which they belong.[6] They are therefore denied the benefits of incorporation[7] because of their religious status. As a result, § 14(20) is neither non-neutral, nor generally applicable; it denies incorporation to defined individuals solely on account of their religion.
Having concluded that § 14(20) is neither neutral nor generally applicable, the Court now turns to a strict scrutiny analysis, an exercise which usually sounds the death knell for constitutionally suspect laws.
B.
A law burdening religious practice which is neither neutral nor generally applicable must survive strict judicial scrutiny; i.e., the challenged laws must advance governmental "`interests of the highest order,' and must be narrowly tailored in pursuit of those interests." Lukumi, 508 *632 U.S. at 546, 113 S.Ct. 2217 (quoting McDaniel, 435 U.S. at 628, 98 S.Ct. 1322) (emphasis added). "A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases." Id.
The strict scrutiny inquiry in this case is a short one. Because the Defendant has chosen not to defend the constitutional merits of Article IV, § 14(20), he, as a result, has presented no governmental interest compelling or otherwise to justify the existence of § 14(20). Therefore in this case, the Virginia constitutional provision does not withstand strict scrutiny, and must be invalidated.
C.
Finally, the Court notes, as the Amicus American Civil Liberties Union has done, that § 14(20) by its terms prohibits only the General Assembly from incorporating a church or religious denomination. Nevertheless, the SCC contends that it is bound by this provision, both at the time it denied the Plaintiffs a corporate charter, and throughout the case. Furthermore, Virginia courts have held that if a public agency interprets an ambiguous law in a certain way for many years without the General Assembly having changed the law, the agency's construction controls. See, e.g., South East Public Service Corp. v. Commonwealth of Virginia, 165 Va. 116, 126, 181 S.E. 448, 452 (1935); Nuttall v. Lankford, 186 Va. 532, 543, 43 S.E.2d 37, 44 (1947). Here, the SCC has not only denied a charter to Rev. Falwell and the Trustees in this case, it states that it has had no choice in the matter, "[s]ince its creation nearly one hundred years ago." Therefore, since the SCC is depriving the Plaintiffs' civil rights pursuant to the Constitution of the Virginia, it is doing so "under color of" State law. See 42 U.S.C. § 1983 ("under color of any statute, ordinance, regulation, custom, or usage, of any State....").
V. CONCLUSION
Because Plaintiffs challenge a provision which is neither neutral, nor generally applicable, nor in furtherance of a compelling governmental interest, the Court holds that the portion of § 14(20) of Article IV of the Constitution of Virginia which reads, "The General Assembly shall not grant a charter of incorporation to any church or religious denomination...," violates Plaintiffs' First Amendment rights to the free exercise of their religion made applicable to the States by the Fourteenth Amendment.[8]
An appropriate Order shall issue.
ORDER
For the reasons articulated in the accompanying OPINION, it shall be, and hereby is
ADJUDGED, ORDERED, AND DECREED
that:
1. The portion of § 14(20) of Article IV of the Constitution of Virginia which reads, *633 "The General Assembly shall not grant a charter of incorporation to any church or religious denomination...," violates Plaintiffs' First Amendment rights to the free exercise of their religion made applicable to the States by the Fourteenth Amendment,
2. Plaintiffs' Motion for Summary Judgment shall be GRANTED,
3. Defendant's Motion for Summary Judgment shall be DENIED,
4. The State Corporation Commission of the Commonwealth of Virginia shall issue a corporate charter to Thomas Road Baptist Church in accordance with remaining applicable law, and
5. This case shall be stricken from the docket.
The Clerk of Court is directed to send certified copies of this OPINION and ORDER to all counsel of record.
NOTES
[1] Plaintiffs have not moved for a default judgment against Chairman Miller. Because of this fact, and because the Defendant has appeared to defend against the Complaint at least to some extent, see Rule 55(a), the Court shall decline to enter a default judgment against the Defendant sua sponte.
[2] Although the Commission is composed of three members, see Va. Const. art. IX, § 1, Chairman Miller has never contended that he is not the proper person to be sued on behalf of the Commission. In fact, by arguing that the Commission must act in accordance Virginia law, Chairman Miller effectively has conceded that he may represent the entire SCC in this litigation. Furthermore, by not asserting the defense of sovereign immunity in any of his filings, he has waived that defense as well. Cf. Croatan Books, Inc. v. Commonwealth of Virginia, 574 F.Supp. 880, 884 (E.D.Va.1983).
[3] Entities affiliated with, but not part of, Thomas Road Baptist Church, own the land upon which clearing and construction of the new sanctuary has begun.
[4] The Articles of Incorporation read as follows:
1. The name of the corporation is Thomas Road Baptist Church.
2. The corporation is organized for the purpose of operating a church.
3. The corporation will have one class of voting members. The qualifications and rights of such members shall be determined by the board of deacons.
4. Deacons shall be elected and appointed from time to time by the board of deacons.
5. The address of the corporation's initial registered office is 701 Thomas Road, Lynchburg, Virginia, 24502. The corporation's initial registered office is located in the City of Lynchburg, Virginia.
6. The corporation's initial registered agent is George McGann, an individual who is a resident of the Commonwealth of Virginia and a deacon of the church.
[5] Since the Plaintiffs have been denied a corporate charter, they have sustained an injury sufficient to achieve standing in this case. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As a result, Defendant's Motion for Summary Judgment must be denied.
[6] In contrast, Lukumi invalidated the anti-animal sacrifice ordinances, in part, because the laws prohibited conduct resulting from religious belief, rather than status. Lukumi 508 U.S. at 543, 113 S.Ct. 2217. See also Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (invalidating Maryland constitutional requirement that public office holders declare their belief in God because it violated freedom of religious belief.). Although in this case it is unclear whether the Plaintiffs' desire to incorporate constitutes religiously-motivated conduct, § 14(20)'s incorporation prohibition nevertheless renders them unequal to others on account of their religious status. That disparate treatment constitutes enough to trigger the protections of the Free Exercise Clause.
[7] The benefits of incorporation include limited liability, the ability to sue and be sued as an organization, and the power to enter into contracts. See generally Va.Code Ann. § 13.1.
[8] The Court reaches the same conclusion as the 1969 Virginia Commission on Constitutional Revision, which stated that:
Section 59 [a predecessor to § 14(20)] prohibits the General Assembly from allowing churches to be incorporated. The section singles out religious bodies from the benefits of a general law to which all other bodies are entitled. By so discriminating against churches, the section is probably unconstitutional under the First Amendment to the Federal Constitution, as in infringement of the free exercise of religion.
See Virginia Commission on Constitutional Revision. The Constitution of Virginia: Report of the Commission on Constitutional Revision. 125 (A.E. Dick Howard, Exec. Dir., Michie, 1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1009627/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7667
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID SWIFT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Richard C. Erwin, Senior
District Judge. (CR-89-235-G)
Submitted: January 16, 2003 Decided: January 27, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Swift, Appellant Pro Se. Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Swift seeks to appeal his conviction for possession with
intent to distribute cocaine base. We dismiss the appeal for lack
of jurisdiction, because the notice of appeal was not timely filed.
In criminal cases, the defendant must file his notice of appeal
within ten days of entry of judgment. Fed. R. App. P. 4(b)(1)(A).
This appeal period is “mandatory and jurisdictional.” Browder v.
Director, Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting United
States v. Robinson, 361 U.S. 220, 229 (1960)). Swift’s criminal
judgment was entered on the docket on September 20, 1990. The
notice of appeal was filed on October 20, 2002.* Because Swift
failed to file a timely notice of appeal, we 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 the decisional process.
DISMISSED
*
For purposes of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054712/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 21, 2004 Session
SWEETWATER HOSPITAL ASSOCIATION v. ANITA HOUSER
CARPENTER
Appeal from the Chancery Court for Monroe County
No. 13623 Jerri S. Bryant, Chancellor
No. E2004-00207-COA-R3-CV - FILED FEBRUARY 2, 2005
Sweetwater Hospital Association (“the Hospital”) entered into a contract with its then-employee,
Anita Houser Carpenter (“the defendant”), by the terms of which the Hospital agreed to provide
tuition assistance to enable the defendant to attend school. The contract further provides that if the
defendant works for the Hospital for a period of five years following the completion of her studies,
her loan would be forgiven. At the conclusion of a course of studies to become a nurse anesthetist,
the defendant sought employment elsewhere because it appeared to her that there were no nurse
anesthetist positions available at the Hospital. The Hospital brought this action for breach of
contract, seeking repayment for the monies furnished to the defendant under the contract. The
defendant responded that the Hospital breached the contract by failing to offer her a position as a
nurse anesthetist. Following a bench trial, the trial court entered a judgment for the Hospital. The
defendant appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.
Richard A. Schulman and R. Jonathan Guthrie, Chattanooga, Tennessee, for the appellant, Anita
Houser Carpenter.
Van R. Michael, Sweetwater, Tennessee, for the appellee, Sweetwater Hospital Association.
OPINION
I.
The defendant was employed by the Hospital as a registered nurse beginning in 1994. In
1999, she approached Scott Bowman, the Hospital’s Administrator, and inquired as to whether the
Hospital would be willing to furnish her tuition assistance for a course of study leading to
certification as a nurse anesthetist. Subsequently, the defendant and the Hospital entered into a
contract pursuant to which the Hospital agreed to give the defendant tuition assistance payments in
the form of a monthly cash stipend. The Hospital further agreed to pay the defendant’s health and
dental insurance premiums while she was in school. The defendant agreed that if she failed to rejoin
the Hospital as an active employee following the conclusion of her studies, she would be responsible
for paying the Hospital for the advances plus accrued interest. However, the parties agreed that if
she remained an employee of the Hospital for five years, her loan repayment obligation would be
forgiven. It was the defendant’s understanding, based upon her conversations with Mr. Bowman,
that she would be permitted to rejoin the Hospital as a nurse anesthetist; but she also understood that
the ultimate decision to hire her as a nurse anesthetist would be left to Dr. Kent Chapman, chief of
anesthesia, who apparently would be consulting with Rick Henderson, a nurse anesthetist who also
worked at the Hospital. Mr. Bowman claims to have expressly informed the defendant that if there
was no position available at the time she completed her schooling, she would be responsible for the
balance due under the contract.
The defendant applied to and was accepted by the nurse anesthetist school at the University
of Tennessee – Chattanooga (“UT-C”). She pursued her studies at Erlanger Hospital in Chattanooga.
She started school in May, 1999. The program was scheduled to last for twenty-seven months.
During the time she was in school, she remained an employee of the Hospital, but was shown as
being on educational leave.
In early 2001, as she was nearing graduation, the defendant inquired about possible
employment at the Hospital. She first contacted nurse anesthetist Henderson to discuss whether
there was an available nurse anesthetist position. Mr. Henderson informed her that he had spoken
with Dr. Chapman and that the Hospital did not have enough work to hire another nurse anesthetist
at that time. She subsequently met with Dr. Chapman. He told her that the Hospital was considering
the hiring of another nurse anesthetist, but that a definite position was not available at the time of
their conversation. However, Dr. Chapman never stated that there were no positions of any kind
available at the Hospital. Subsequent to all of this, the defendant made plans to move to
Chattanooga, as Erlanger had offered her a nurse anesthetist position.
Dr. Chapman never shared with Mr. Bowman the conversation he had had with the
defendant. By the same token, the defendant never contacted Mr. Bowman about her employment
status. Mr. Bowman had not authorized anyone to tell the defendant that no positions were available.
In the spring of 2001, Mr. Bowman heard a rumor that the defendant was planning to move to
Chattanooga and did not intend to return to the Hospital. By letter dated May 21, 2001, Mr.
Bowman informed the defendant that he had learned of her decision not to return to the Hospital.
He requested repayment of her obligation under the contract.
-2-
On March 8, 2002, the Hospital filed this action against the defendant seeking the balance
due under the contract.1 The defendant responded by raising, as an affirmative defense, that the
Hospital had breached its contract and therefore was not entitled to recover under the contract. A
one-day bench trial was held on November 24, 2003. At the conclusion of the trial, the court found
that the Hospital satisfied its burden of proof by demonstrating that the defendant breached the
contract. It further found that the defendant presented no evidence of a breach by the Hospital. By
order entered January 15, 2004, the trial court awarded the Hospital $29,879.84 plus interest, the
total of which was $43,396.49. From this order, the defendant appeals.
II.
The defendant contends that the Hospital materially breached the contract when it failed to
offer her a nurse anesthetist position upon completion of her course work. The defendant argues that
the Hospital, as the initial party in breach, cannot now seek to recover under the contract based upon
a subsequently-occurring breach by her. See Roy McAmis Disposal Svc., Inc. v. Hiwassee Systems,
Inc., 613 S.W.2d 226, 228-29 (Tenn. Ct. App. 1979); McClain v. Kimbrough Constr. Co., Inc., 806
S.W.2d 194, 199 (Tenn. Ct. App. 1990). The threshold issue for our determination is clear: Does
the contract, by its language, impose an obligation upon the Hospital to offer the defendant a nurse
anesthetist position upon the successful completion of her course of studies? We conclude that the
language of the contract – the language to which these parties agreed – does not require that the
Hospital tender an offer of employment as a nurse anesthetist to the defendant upon the completion
of her Hospital-aided education in order to maintain its right to pursue an action to recover monies
paid to her by the Hospital pursuant to the terms of the contract.
III.
Our review of this bench trial is de novo upon the record of the proceedings below, but the
record comes to us accompanied by a presumption of correctness as to the trial court’s factual
findings unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d). Our
review of the trial court’s conclusions of law is de novo with no presumption of correctness attaching
to the trial court’s conclusions of law. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
The interpretation of a contract is a question of law. Wills & Wills, L.P. v. Gill, 54 S.W.3d 283, 285
(Tenn. Ct. App. 2001).
The cardinal rule in contract interpretation requires a court to “ascertain the intention of the
parties and to give effect to that intention consistent with legal principles.” Id., at 286. If the
contract is plain and unambiguous, its meaning is a question of law and it is incumbent upon the
court to interpret it as written according to its plain terms. Bradson Mercantile, Inc. v. Crabtree,
1 S.W.3d 648, 652 (Tenn. Ct. App. 1999). Language in a contract must be accorded its “usual,
natural, and ordinary meaning.” Id. Unambiguous language must be interpreted “as written rather
1
The amount sought was $37,460.21. This amount was calculated by adding the amount of $29,879.84, the
amount due under the note, plus the interest rate of one percent per month of the total balance.
-3-
than according to the unexpressed intention of one of the parties.” Id. “Courts cannot make
contracts for parties but can only enforce the contract which the parties themselves have made.” Id.
Consequently, a contract must be enforced as it is written absent fraud or mistake, even if the result
of doing so would appear harsh or unjust. Heyer-Jordan & Assoc., Inc. v. Jordan, 801 S.W.2d 814,
821 (Tenn. Ct. App. 1990).
The contract at issue provides, in relevant part, as follows:
PROMISSORY NOTE2
I, Anita Houser , an employee of the [Hospital], hereinafter
referred to as Maker, promise to pay to the [Hospital] at offices in
Sweetwater, Tennessee, hereinafter referred to as Lender, the sum of
such amounts as may from time to time be advanced to me and
endorsed in the schedule of advances below: $1,000.00 per month for
twenty-four (24) months as approved by the Board of Directors at
their regular meeting on March 23, 1999.
* * *
The Maker further understands and agrees, and it is understood
between the parties that:
This loan is made subject to the approval of the Administrator of the
[Hospital].
Maker expressly agrees that he/she shall not accept any other
financial assistance which carries with it a service obligation from the
program in which he/she is involved.
For calculation of repayment, the loan shall bear interest at the rate of
1% per month of the total balance.
Repayment shall be in annual installments at the commencement of
the repayment period and in no case shall the repayment period be
more than five (5) years of full time service. Repayment for a Maker
who fails to complete his course of study will be upon demand on the
date the recipient ceases his course of study. If a Maker who has
completed his course of study fails to return to the [Hospital] for a
period sufficient to cancel the debt, the remainder of the debt, with
2
The parties sometimes refer to this document as a “note” and sometimes as a “contract.” Because each party
has obligations under the document and since it is signed by both, we believe it is more correctly referred to as a
“contract.”
-4-
accrued interest from the original advance, shall be payable on
demand.
One of the considerations for this loan is that the Maker agrees to
become or remain an employee of the [Hospital] and for each year of
such continuous full time employment with the [Hospital] subsequent
to the date of the completion of the course of study the Maker shall
receive a credit of twenty (20%) of the total balance owed on the loan
...
In the event the Maker fails to complete five (5) years of continuous
full time employment the balance of any principal due together with
interest from the original date of advance shall apply . . . to all
balances remaining due under this loan.
In the event the Maker does not complete his course of study or return
to the [Hospital] upon completion of this course, interest shall accrue
from the date of the first advancement.
DEFINITION
(Course of Study) – That period of time in which a Maker is enrolled
as a student in one of the courses approved by the Administrator of
the [Hospital].
IN WITNESS WHEREOF, the parties have executed this agreement
at [Hospital] on March 25, 1999.
s/ Anita Houser
Maker
ACCEPTED: s/ Scott Bowman
SCOTT BOWMAN, ADMINISTRATOR
Sweetwater Hospital Association
(Numbering in original omitted).
The contract provides that “[o]ne of the considerations for this loan is that the [defendant]
agrees to become or remain an employee of the [Hospital].” (Emphasis added). The contract does
not state in what capacity the defendant is “to become or remain an employee.” There is nothing in
the language of the contract stating that the Hospital has an obligation to offer the defendant a nurse
anesthetist position. The defendant argues that in their discussions concerning the terms of the
contract, Mr. Bowman gave her an oral assurance that the Hospital would provide her a nurse
-5-
anesthetist position. While, according to the defendant, she knew that the decision whether to hire
her as a nurse anesthetist ultimately belonged to Dr. Chapman, she testified that Mr. Bowman did
not believe that it would be a problem. Mr. Bowman, however, contends that he explained to the
defendant that if no position was available at the time she finished school, she would be responsible
for the amount due under the contract. None of this changes the fact that the parties’ agreement –
the “deal” struck by them pertaining to the repayment of the tuition assistance – does not recite an
obligation on the part of the Hospital to offer a nurse anesthetist position to the defendant.
At the conclusion of the bench trial below, the trial court opined as follows:
[i]t’s [the defendant’s] burden of proof in this case that the plaintiff
breached the contract. It’s the [Hospital]’s burden of proof that the
defendant breached the contract. In this case there’s no proof by the
defendant that the [Hospital] breached the contract. There is proof
that the defendant breached her own contract by taking a job
someplace else without specifically getting proof that she was not
going to be offered a job by [the Hospital].
The evidence does not preponderate against the trial court’s determinations. The defendant did not
work at the Hospital after she completed her course of studies at UT-C. There is no evidence that
the Hospital breached any of its contractual obligations that, in turn, prevented the defendant from
working there. While she was not offered a nurse anesthetist job – the job she wanted – there was
no proof she sought another job at the Hospital. As a matter of fact, Mr. Bowman testified that a
position as a registered nurse was available at the Hospital had the defendant sought it. If she had
accepted a job as a registered nurse at the Hospital, she would have then been in a position to “work
out” her repayment obligation to the Hospital. The Hospital did not prevent the defendant from
taking advantage of the debt forgiveness provisions of the parties’ contract. She is the one who
chose to seek employment elsewhere and not take advantage of a job at the Hospital – one which
would have enabled her to avoid repaying the cost of her education. It may not have been the job
she wanted, but it was a job that would have resulted in the forgiveness of her debt.
Since the defendant did not work at the Hospital after graduation, we find that the repayment
provisions were triggered and, consequently, she is required to repay the monies provided to her
pursuant to the terms of the contract plus accrued interest.
IV.
In her brief, the defendant makes a policy argument as to why the trial court’s judgment
should be reversed. She contends that a part of her incentive to enter into this agreement was the
opportunity to receive credit for the tuition advanced under the contract at the rate of 20% per year
for each of the five years alluded to in the contract. Therefore, so the argument goes, public policy
dictates that an employer who fails to allow an employee to work so her tuition assistance may be
forgiven should be barred from recovering the money advanced. In support of her argument, the
-6-
defendant refers us to decisions from other jurisdictions where courts have held that an employer
who fails to allow an employee to satisfy the work requirements necessary to benefit from a loan
forgiveness agreement cannot recover the amount furnished to the employee. See Tripodo v. Chase
Manhattan Bank, N.A., 576 N.Y.S.2d 760 (N.Y. Civ. Ct. 1991); Cambridge v. Telemarketing
Concepts, Inc., 655 N.Y.S.2d 795 (N.Y. Civ. Ct. 1997).
These cases are of no help to the defendant. Her reliance on these authorities is based upon
a false premise: her belief that the contract language imposes an obligation upon the Hospital to
offer her a nurse anesthetist position when she graduated from school. As we have previously held,
the contract imposes no such obligation. The defendant did not present herself for employment at
the Hospital after her graduation. She accepted a position elsewhere. Since she did not become
employed at the Hospital, she is not entitled to rely upon the “forgiveness” provisions of the contract.
She is obligated to repay the Hospital. We find no error in the trial court’s judgment.
V.
The judgment of the trial court is affirmed and this matter is remanded to the trial court for
enforcement of its judgment and for collection of costs assessed below, all pursuant to applicable
law. Costs on appeal are taxed against the appellant, Anita Houser Carpenter.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-7- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/416018/ | 703 F.2d 566
Sakamotov.N. A. B. Trucking Co., Inc.
82-5205, 82-5241
UNITED STATES COURT OF APPEALS Sixth Circuit
5/12/82
1
E.D.Tenn.
APPEALS DISMISSED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2103359/ | 309 S.W.3d 770 (2010)
P. David ROMEI, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 10-09-00062-CR, 10-09-00063-CR.
Court of Appeals of Texas, Waco.
April 7, 2010.
Richard E. Wetzel, Austin, for appellant.
Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
ORDER
PER CURIAM.
The reporter's record in these appeals was originally due over one year ago on March 13, 2009. After substantial effort by this Court, a reporter's record was filed on October 19, 2009. The Court has now been informed by letter dated February 22, 2010 that appellant requested preparation of a "supplemental" reporter's record because appellant discovered that the reporter's *771 record filed on October 19, 2009 was incomplete.
Because the items requested for inclusion in the "supplemental" reporter's record were actually requested in appellant's original request, the request would be better characterized as a request to complete the reporter's record. We will, nevertheless, refer to it as a supplemental record.
To date no supplemental reporter's record has been filed.
It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. TEX.R.APP. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record. Id. Accordingly, the supplemental reporter's record is ORDERED to be filed no later than 7 days from the date of this order.
Failure to file the reporter's record as herein ordered will result in an abatement order for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter's record will be filed.
Further, all briefing schedules are suspended until further order of the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2103361/ | 649 A.2d 808 (1994)
Debro Siddiq ABDUL-AKBAR, Plaintiff Below-Appellant,
v.
Karen WASHINGTON-HALL, Defendant Below-Appellee.
No. 382, 1994.
Supreme Court of Delaware.
Submitted: October 27, 1994.
Decided: November 7, 1994.
Debro Siddiq Abdul-Akbar, pro se.
Richard E. Fairbanks, Jr., Deputy Atty. Gen., Wilmington, defendant.
Before VEASEY, C.J., HOLLAND, and BERGER, JJ.
*809 HOLLAND, Justice:
On August 23, 1994, plaintiff-appellant, Debro Siddiq Abdul-Akbar ("Abdul-Akbar"), filed a motion in the Superior Court for a writ of mandamus and injunctive relief, and a complaint under the State Tort Claims Act. The defendant-appellee, Karen Washington-Hall, is a counselor in a drug treatment and rehabilitation program, called the Key Program, which is sponsored by the Department of Corrections. She is represented in this appeal by the Department of Justice ("the State"). Abdul-Akbar is an incarcerated individual who allegedly was denied admittance into the Key Program.
Abdul-Akbar did not pay the requisite fees upon filing his writs and complaint in the Superior Court, but instead requested to proceed in forma pauperis. On August 29, 1994, the Superior Court denied Abdul-Akbar's application to proceed in forma pauperis because his writs and complaint, on their face, failed to state a claim that would entitle him to the relief he requested. On September 12, 1994, Abdul-Akbar filed a petition for reconsideration of the August 29 Order, which the Superior Court denied on September 28.
Abdul-Akbar now appeals the Superior Court's Order denying his petition for reconsideration. The State has moved to dismiss the appeal, pursuant to Supreme Court Rule 29(b), on the ground that Abdul-Akbar is seeking review of an unappealable interlocutory order. We agree.
The denial of a petition to proceed in forma pauperis is an interlocutory order for which appellate review is available only upon compliance with Supreme Court Rule 42. This Court requires strict compliance with Rule 42 whenever a party seeks review of an interlocutory order in a civil case. Julian v. State, Del.Supr., 440 A.2d 990, 991 (1982). Abdul-Akbar's failure to comply with Rule 42 in any respect requires dismissal of this appeal.
NOW, THEREFORE, IT IS ORDERED pursuant to Supreme Court Rule 29(b) that the within appeal be, and the same hereby is,
DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/565426/ | 940 F.2d 650
U.S.v.Goebel
NO. 91-1035
United States Court of Appeals,Second Circuit.
JUN 05, 1991
1
Appeal From: S.D.N.Y.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3165967/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JADEN MCNEIL, et al., :
:
Plaintiffs, : Civil Action No.: 14-1981 (RC)
:
v. : Re Document Nos.: 11, 12
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART & DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND GRANTING IN PART & DENYING IN PART DEFENDANT’S CROSS MOTION FOR SUMMARY
JUDGMENT
I. INTRODUCTION
In this action, Plaintiffs Jaden McNeil, Patrick Canavan, and Daniel McNeil (collectively
“Plaintiffs”) seek from Defendant the District of Columbia (“the District”) an award of
attorneys’ fees and costs incurred in pursuing an administrative claim under the Individuals with
Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs have moved for
summary judgment on the basis that they were the prevailing parties, and further that the fees
and expenses requested are reasonable. See Pls.’ Mot. Summ. J., ECF No. 11. The District
disputes Plaintiffs’ contentions regarding the reasonableness of the fees and expenses sought in
its opposition and cross motion for summary judgment. See Def.’s Cross Mot. Summ. J., ECF
No. 12; Def.’s Opp’n Mot. Summ. J. (“Def.’s Opp’n”), ECF No. 13. The Court concludes that
part, but not all, of Plaintiffs’ request is reasonable. Accordingly, the Court grants in part and
denies in part the parties’ respective motions.
II. FACTUAL BACKGROUND
In May of 2014, Plaintiffs filed a due process complaint against the District of Columbia
Public Schools (“DCPS”). See Am. Compl. ¶ 24, ECF No. 3; see also Pls.’ Reply to Def.’s
Opp’n to Mot. Summ. J. (“Pls.’ Reply”) Ex. D, ECF No. 15-4. In the due process complaint,
Plaintiffs alleged that the District had failed to provide Plaintiff Jaden McNeil with a free and
appropriate public education, pursuant to his rights as a disabled student entitled to special
education and related services. See Pls.’ Reply Ex. D. In support of this contention, Plaintiffs
alleged three instances during which DCPS failed to uphold its obligations to Jaden under the
IDEA: in 2012, when DCPS failed to amend Jaden’s insufficient individualized education
program (“IEP”) after his enrollment at Hospitality High School Public Charter School
(“Hospitality”); when Hospitality failed to address Jaden’s need for a different IEP or
educational setting; and in 2013, when DCPS began developing an alternative IEP for Jaden, but
took over a year to do so, leaving Plaintiffs Patrick Canavan and Daniel McNeil to fund
alternative education options for Jaden. 1 See id. at 4–6.
After withdrawing Jaden from Hospitality, Plaintiffs sought placement for Jaden at
Legacy Outdoor Adventures (“Legacy”), a wilderness program, which he successfully
completed. See id. at 5. Upon completion of the Legacy program, and after investigation by
Jaden’s parents and notice to both Hospitality and DCPS, Jaden transferred to the F.L.
Chamberlain School (“Chamberlain”) in Massachusetts, a residential school approved by the
1
Specifically, Plaintiffs asserted that Jaden entered Hospitality after failing the eleventh
grade twice while enrolled at a different public charter school. Once at Hospitality, DCPS did
little to alter Jaden’s existing IEP and, as a result, he was continually absent and tardy, failed to
do his homework, and acted out. See Pls.’ Reply. Ex. D at 4–5.
2
State Superintendent of Education for placement of DCPS special education students. 2 See id. at
6. Plaintiffs alleged that, after relocating Jaden to Chamberlain, DCPS agreed to fund a portion
of his enrollment at the school, but never confirmed this with proper documentation. See id.
During Jaden’s enrollment at Chamberlain, Plaintiffs Patrick Canavan and Daniel McNeil were
responsible for funding Jaden’s ongoing education, and Jaden’s IEP remained unfinished. See
id.
The due process complaint was heard on August 1st, 6th, and 14th of 2014. See Am.
Compl. Ex. 1, ECF No. 3-1. At the conclusion of the proceedings, the hearing officer
determined that DCPS failed to provide Jaden a Free and Appropriate Public Education
(“FAPE”), as required by 34 C.F.R. § 300.17 (2011), when it failed to correct Jaden’s
inappropriate IEP during his enrollment at Hospitality, see Am. Compl. Ex. 1 at 14–16. The
hearing officer also determined that Plaintiffs had acted appropriately in their decisions to both
send Jaden to Legacy and, subsequently, to enroll Jaden at Chamberlain. See id. at 16. As a
result, the District was ordered to reimburse Plaintiffs for the tuition, fees, and expenses incurred
in sending Jaden both to Legacy and to Chamberlain. See id. Plaintiffs’ claims regarding
DCPS’s alleged failure to convene an IEP meeting in 2012 and the delay in revising Jaden’s IEP
were denied. See id. at 16–17. The hearing officer also denied Plaintiffs’ claim for
2
As described by the hearing officer in his determination, Jaden’s progress while at
Chamberlain was “dramatic.” See Am. Compl. Ex. 1 at 11, ECF No. 3-1 (Hearing Officer’s
decision). He earned passing grades in each course in which he enrolled, generally progressed
through Chamberlain’s behavior management program, and, at the time of the due process
hearing, was expected to graduate with a high school diploma. See id. at 10; Pls.’ Statement of
Undisputed Material Facts ¶ 39 (“Pls.’ SOF”), ECF No. 11-1; Def.’s Response to Pls.’ Statement
of Material Facts ¶ 39 (“Def.’s SOF”), ECF No. 12-1. Jaden has since graduated from
Chamberlain and enrolled in college. See Pls.’ SOF ¶ 65; Def.’s SOF ¶ 65.
3
compensatory education, as a result of Jaden’s excellent results following his placements at
Legacy and Chamberlain. 3 See id. at 18.
On November 23, 2014, Plaintiffs filed an initial complaint against the District for the
recovery of attorneys’ fees and expenses incurred in connection with the administrative due
process hearing. See Compl., ECF No. 1. In their Amended Complaint, filed on March 20,
2015, Plaintiffs claim to be entitled to an award of legal fees and costs incurred as a result of
their successful litigation for Jaden’s entitlement to a FAPE. See Am. Compl. ¶ 30. Plaintiffs
subsequently filed a Motion for Summary Judgment on June 24, 2015, requesting $60,643 in
legal fees and $2,252.74 in expenses. See Pls.’ Mot. Summ. J. ¶ 3. The District subsequently
filed an Opposition and Cross Motion, asking that Plaintiffs’ Motion be denied in its entirety or,
alternatively, requesting that the amount of fees and expenses awarded be substantially reduced.
See generally Def.’s Cross Mot. Summ. J.; Def.’s Opp’n. Plaintiffs filed a Reply to the District’s
Opposition on August 12, 2015. See Pls.’ Reply. The District subsequently filed its own Reply
on August 24, 2015, reiterating its position that Plaintiffs failed to provide evidence supporting
their hourly rates, and further, that Plaintiffs’ attorney charged an unreasonable number of hours
for the proceedings. See generally Def.’s Reply, ECF No. 18. The District reiterated that any
3
“Compensatory education” may be awarded at the court’s discretion in an IDEA case.
The relief is awarded in the form of “educational services . . . to be provided prospectively to
compensate for a past deficient program.” Reid ex rel. Reid v. District of Columbia, 401 F.3d
516, 522 (D.C. Cir. 2005) (quoting G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295,
308 (4th Cir. 2003) (internal quotation marks omitted). As part of that compensatory education,
Plaintiffs apparently sought reimbursement for four years of supports at the college Jaden would
be attending. The hearing officer found the expert testimony supporting this request
“incredulous,” because that expert, along with the Chamberlain staff and Plaintiffs, had “lauded
[Jaden’s] progress in the wilderness program and at [Chamberlain] and [Jaden’s] anticipated
completion of high [school] is evidence that any denial of a FAPE has been rectified . . . .” Am.
Compl. Ex. 1 at 18.
4
amount awarded to Plaintiffs should be reduced, on the grounds of Plaintiffs’ limited success on
the merits. See id. at 11–17.
III. ANALYSIS
A. Legal Standard for Summary Judgment
A party moving under the IDEA for summary judgment on legal fees must demonstrate
prevailing party status and the reasonableness of the fees requested in terms of the hours spent
and the hourly rate. See McAllister v. District of Columbia, 21 F. Supp. 3d 94, 99 (D.D.C. 2014).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted
if the movant shows 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986) (quoting Fed. R. Civ. P. 56). Summary judgment should be granted against a party
“who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In response to a motion for summary judgment, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. Id. at 324. 4
4
Plaintiffs contend that for those few facts that the District has labeled “disputed,” the
District “has not supported its dispute with references to the record, as required by this Court’s
rules” and, as a result, that the District has effectively conceded Plaintiffs’ statement of material
facts and this Court is “require[d] . . . to accept [Plaintiffs’] statement of material facts as the
basis for its legal rulings.” Pls.’ Reply at 10; see also Local Civ. R. 7(h)(1) (“[T]he court may
assume that facts identified by the moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of genuine issues filed in opposition to the
motion.”). Not so. Even putting aside the fact that, when plaintiffs (like those here) bear the
burden of proof, a moving defendant’s summary judgment burden “may be discharged” merely
by “showing—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case,” Celotex, 477 U.S. at 325, the Local Rule’s language—
may—is discretionary, see Arrington v. United States, 473 F.3d 329, 334–35 (D.C. Cir. 2006).
5
B. Award for Reasonable Attorneys’ Fees
Pursuant to the IDEA, a district court may award “reasonable attorneys’ fees” to a
prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B)(i). In
doing so, the Court follows a two-step inquiry: First, the Court must decide whether the party
seeking attorneys’ fees is the prevailing party; 5 and second, the Court must establish whether the
fees requested are reasonable. See McAllister, 21 F. Supp. 3d at 99; Jackson v. District of
Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). To establish an appropriate fee award the
court must determine the number of hours counsel reasonably expended on the litigation and the
reasonable hourly rate for that work. See Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.
Cir. 2015).6 “[T]he number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” provides “[t]he most useful starting point for determining the amount of
a reasonable fee.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
1. Hourly Rate
The parties dispute whether the rates requested by Plaintiffs are “reasonable” within the
meaning of the IDEA. 20 U.S.C. § 1415(i)(3)(B)(i)(1); see also Pls.’ Mem. Supp. Mot. Summ. J.
at 12–16 (“Pls.’ Mem. Supp.”), ECF No. 11; Def.’s Mem. Supp. Opp’n at 4–10, ECF No. 13. A
plaintiff bears the burden of demonstrating that the requested hourly rate is reasonable. In re
The rule “permits, but does not require” the Court to assume facts that are not controverted in the
defendant’s opposing statement of material facts, and a court acts “within its discretion in
reviewing the entire record.” Id. Accordingly, the Court considers the full record here.
5
Here, the District does not contest that Plaintiffs are the prevailing party within the
meaning of the IDEA.
6
In many cases a court considering a fee award must proceed to a third step: determining
“whether use of a multiplier is warranted.” Eley, 793 F.3d at 100. Congress has prohibited
application of a bonus or multiplier in IDEA cases. Id.; see also 20 U.S.C. § 1415(i)(3)(C) (“No
bonus or multiplier may be used in calculating the fees awarded under this subsection.”).
6
North (Bush Fee Application), 59 F.3d 184, 189 (D.C. Cir. 1995) (per curiam). A plaintiff may
fulfill this burden “by submitting evidence on at least three fronts: ‘the attorneys’ billing
practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the
relevant community.’” McAllister, 21 F. Supp. 3d at 100 (quoting Covington v. District of
Columbia, 57 F.3d 1101, 1103 (D.C. Cir. 1995)). If a plaintiff provides sufficient and
convincing evidence on these matters, the number of hours billed and the attorney’s hourly rates
are deemed reasonable, and the burden then shifts to the defendant to rebut the plaintiff’s
showing. See Blackman v. District of Columbia, 677 F. Supp. 2d 169, 172 (D.D.C. 2010);
Watkins v. Vance, 328 F. Supp. 2d 23, 26 (D.D.C. 2004). If neither party provides adequate
evidence demonstrating that the hourly rates are reasonable, however, “the Court has discretion
to determine the amount of that rate by reference to the Laffey Matrix.” 7 See Brown v. District of
Columbia, 80 F. Supp. 3d 90, 96 (D.D.C. 2015).
a. The Prevailing Market Rate for Ms. Savit’s and Ms. Becker’s Services
Plaintiffs seek attorneys’ fees for the work of Diana Savit, Plaintiffs’ primary counsel,
and Lisa Becker, who performed 3.2 hours of billed work in Ms. Savit’s absence.
Plaintiffs argue that an hourly rate of $415 for Ms. Savit’s legal services is reasonable
and reflects the prevailing market rate. Pls.’ Mem. Supp. Mot. Summ. J. at 12–16. This rate
reflects Ms. Savit’s customary hourly rate as of January 1, 2014, although Plaintiffs were
7
The Laffey Matrix is a fee schedule used by some courts to determine the proper hourly
rates for legal work. The United States Attorney’s Office for the District of Columbia prepares
the matrix for use when a “fee-shifting” statute provides for the recovery of attorneys’ fees. See
Eley, 793 F.3d at 101; see also, e.g., USAO Laffey Matrix—2003-2014, available at
http://www.justice.gov/sites/default/files/usao-dc/legacy/2013/09/09/Laffey_Matrix%202014.pdf
(last visited Dec. 29, 2015). While the Laffey Matrix is adjusted for inflation, generally, a
competing matrix, called the LSI Laffey Matrix, “adjusts for the increases in costs for legal
services only.” Eley, 793 F.3d at 101–02.
7
charged only $390 an hour during the entirety of their representation, as that rate was Ms. Savit’s
existing rate when the representation began. See Pls.’ Statement of Undisputed Material Facts ¶¶
74, 78 (“Pls.’ SOF”), ECF No. 11-1. In its Opposition, however, the District argues that
Plaintiffs’ motion should be denied because they have not provided sufficient evidence of the
relevant market rate, relying only upon an affidavit from their attorney, Ms. Savit, in addition to
previous attorneys’ fee awards. See Def.’s Mem. Supp. Opp’n at 4–5. In the alternative, the
District argues that Ms. Savit’s hourly rate should not exceed 75% of the 2013–2014 Laffey
Matrix rate. See id. at 7–8; see also Def.’s Cross Mot. Summ. J. Ex. 1, ECF No. 12–2 (providing
matrix).
In Eley, the D.C. Circuit recently clarified a plaintiff’s burden when seeking an award of
attorneys’ fees under the IDEA. “[A] fee applicant must ‘produce satisfactory evidence—in
addition to the attorney’s own affidavits—that the requested rates are in line with those
prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Eley, 793 F.3d at 100 (quoting Blum v. Stenson, 465 U.S. 886, 895
n.11 (1984)). One type of evidence that a party can submit which “‘provides a useful starting
point’ in calculating the prevailing market rate” is a fee matrix, the most common of which is the
Laffey Matrix. Id. (brackets omitted) (quoting Covington, 57 F.3d at 1109). Such matrices
remain “‘somewhat crude’” measures of estimating the prevailing market rate, however, and to
meet her burden a party seeking to base her fee request on such measures must provide
“evidence that her ‘requested rates are in line with those prevailing in the community for similar
services,’ i.e., IDEA litigation.” Id. at 101, 104 (quoting Covington, 57 F.3d at 1109). That
evidence may be found in “‘surveys [that] update [the matrices]; affidavits reciting the precise
fees that attorneys with similar qualifications have received from fee-paying clients in
8
comparable cases; and evidence of recent fees awarded by the courts or through settlement to
attorneys with comparable qualifications handling similar cases.’” Id. at 101 (quoting
Covington, 57 F.3d at 1109). At bottom, although the D.C. Circuit declined in Eley “to
categorically determine whether IDEA proceedings constitute the type of litigation that is
‘sufficiently complex’” to warrant application of any version of the Laffey Matrix, the Court did
“make clear that Laffey should not be the default rate for fees awarded pursuant to the IDEA”
and that, if a party seeks an award based on the Laffey Matrix, “it must establish that its rates
reflect what attorneys of comparable skill in the region generally charge for IDEA proceedings.”
Snead v. District of Columbia, --- F. Supp. 3d ----, No. 15-cv-00376, 2015 WL 5921901, at *3
(D.D.C. Oct. 7, 2015).
To support their claim that Ms. Savit’s proposed hourly rate of $415 is reasonable,
Plaintiffs originally submitted an affidavit from Ms. Savit describing her experience, billing
practices, and past history of litigating IDEA cases, including for purposes of obtaining fee
awards. See generally Decl. of Diana M. Savit (“Savit Decl.”), Pls.’ Mot. Summ. J. Ex. B, ECF
No. 11-5. Plaintiffs also cited several cases in this district in which, they claim, courts awarded
fees based on an hourly rate similar to that requested by Ms. Savit here. See Pls.’ Mem. Supp. at
13–14 (citing cases awarding fees based on hourly rates of $348.75 through $625 for attorneys
with 15 to over 20 years of experience, although the D.C. Circuit in Eley has since vacated the
$625 award).
The District contends that Ms. Savit’s affidavit is merely “conclusory” and that Plaintiffs
must proffer additional information in order to establish the prevailing market rate. Def.’s Mem.
Supp. Opp’n at 5. On this score, the District is largely correct. As Eley instructs, a plaintiff must
provide evidence beyond the attorney’s own affidavit to show that the “requested rates are in line
9
with those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” 793 F.3d at 100 (quoting Blum, 465 U.S. at 895 n.11). To the
extent that the District argues that Plaintiffs have failed to carry their burden altogether, however,
the Court finds that Plaintiffs’ citation to other IDEA cases in this district awarding fees within a
wide range encompassing the fees Ms. Savit charged here precludes the Court from concluding
that Plaintiffs have failed to support any fee award.
That said, the Court must determine whether the particular rate Plaintiffs request is out of
step with the prevailing market rate. The Court acknowledges that Plaintiffs place no overt
reliance on the Laffey Matrix in seeking the $415 hourly rate for Ms. Savit’s time, and that Ms.
Savit’s proffered rate is in fact significantly below the 2013–2014 Laffey rate of $510 per hour
for an attorney with her experience. 8 Nevertheless, the District argues that Ms. Savit’s requested
rate remains too high, and that the prevailing market rate in IDEA cases is 75% of the Laffey rate
which, based on the 2013–2014 rate, would result in an hourly rate of $382.50. See Def.’s Mem.
Supp. Opp’n at 7–8.
The District points to a “substantial body of case law” in this district supporting the
proposition that IDEA cases are typically compensated at 75% of the Laffey matrix rate or less.
See id. at 7–8 & n.3 (citing cases). Indeed, courts in this district continue to hold that “[t]he
notion that a rate equivalent to 75% of Laffey rates approximates the prevailing market rate for
IDEA administrative proceedings finds support in the vast number of district court cases
8
One district court recently observed that courts in this jurisdiction have interpreted Eley
“as strongly suggesting that IDEA matters are infrequently comparable to complex federal
litigation, and therefore, full Laffey rates should not be awarded in such cases.” Snead, 2015 WL
5921901, at *3. But see Eley, 793 F.3d at 105 (Kavanaugh, J., concurring) (“I would simply add
that, in my view, the United States Attorney’s Office Laffey matrix is appropriate for IDEA
cases.”).
10
awarding IDEA fees at this rate.” Reed v. District of Columbia, --- F. Supp. 3d ----, No. 14-
1887, 2015 WL 5692871, at *6 (D.D.C. Sept. 28, 2015), appeal docketed, No. 15-7119 (D.C.
Cir.); see also id. at *7 (citing cases); accord Snead, 2015 WL 5921901, at *5.
Plaintiffs attempt to claim otherwise on several grounds. First, Plaintiffs have filed
declarations from Charles Moran and Douglas Tyrka, two District of Columbia special education
practitioners who regularly provide IDEA legal services. See Decl. of Charles Moran (“Moran
Decl.”), Pls.’ Reply Ex. G, ECF No. 15-7; Decl. of Douglas Tyrka (“Tyrka Decl.”), Pls.’ Reply
Ex. H, ECF No. 15-8. Mr. Moran states in his declaration that his firm determines its rates in
reference to the LSI Laffey Matrix, and that his current hourly rate is $779 per hour. See Moran
Decl. ¶¶ 11–12. Mr. Tyrka similarly asserts in his declaration that he typically charges at least
$625 per hour, and further that “most senior lawyers (15 or more years of experience) who
practice in this field charge similar hourly rates . . . . Senior special education lawyers in the
District of Columbia typically charge $500 or more per hour.” Tyrka Decl. ¶ 6. Both Mr. Moran
and Mr. Tyrka further claim that they have read most of this court’s IDEA cases, are familiar
with the market for IDEA legal fees, and attest that Ms. Savit’s hourly rate is lower than that
charged by many lawyers who practice in this area. See Moran Decl. ¶¶ 13, 16–17; Tyrka Decl.
¶¶ 5, 7. Finally, Mr. Moran states that the rates he charges are the necessary result of various
“predatory tactics” imposed by the District of Columbia against special education litigators and
parents, including allegedly conditioning settlement offers on a plaintiff’s waiver of attorneys’
fees or acceptance of nominal sums for “all work performed in the case.” Moran Decl. ¶ 12.
Yet, Mr. Moran and Mr. Tyrka’s anecdotal evidence of their own billing practices and
their conclusory assertions that Ms. Savit’s hourly rate of $425 is within, and perhaps below, the
prevailing market rate ultimately fail to satisfy Plaintiffs’ burden. Cf. Sykes v. District of
11
Columbia, 870 F. Supp. 2d 86, 94 (D.D.C. 2012) (noting that “the mere showing that a high
hourly rate was approved in another case does not in and of itself establish a new market rate or
prove that the new rate is reasonable”). And though they generally claim to have read IDEA fee
cases, neither Tyrka nor Savit cite to a particular case in which a court has determined that the
prevailing market rate is similar to those they charge. In addition, Mr. Moran’s representation
that his rates reflect a tactical effort to thwart certain litigation tactics by the District does not
demonstrate that one practitioner’s choice to build an anticipated failure to recoup full costs into
his fee structure reflects a general increase in the prevailing market rate for IDEA legal services.
See District of Columbia v. Kirksey-Harrington, --- F. Supp. 3d ----, Nos. 14-180, 13-2029, 2015
WL 5014144, at *6 (D.D.C. Aug. 18, 2015) (concluding that Mr. Moran’s affidavit in another
IDEA case alleging similar practices indicates that the parties’ fees were not “based upon any
prevailing market rate analysis but, instead . . . designed to ‘counter’ certain practices by the
District”); accord Snead, 2015 WL 5921901, at *5 (finding that an attorney’s argument that “his
firm was forced to charge the higher LSI Laffey rates by a hailstorm of ‘predatory tactics’ from
the District—namely, conditioning settlement offers on acceptance of nominal fees—is
unpersuasive”).
Second, Ms. Savit’s own declaration argues that the lack of formal discovery, the
informal procedural rules, the largely unpredictable nature of administrative due process
proceedings, and the at times labyrinthine administrative process, present unique practical and
exhaustion-related challenges not posed in Title VII or other types of federal litigation. See Savit
Decl. ¶ 30, 2d Savit Decl. ¶¶ 22–29, Pls.’ Reply Ex. C, ECF No. 15-1. The Court does not doubt
or understate the challenges practitioners face when litigating IDEA cases on behalf of children
with special education needs and their families. Those challenges are undoubtedly different in
12
kind from the circumstances attorneys face when conducting complex federal litigation under
more rigid, and perhaps predictable, discovery rules. “IDEA matters may not be simple—they
may be quite complicated and may even be very labor intensive.” Reed, 2015 WL 5692871, at
*6. But those challenges nevertheless fail to render IDEA matters “‘complex’ federal litigation’
as that term is used in the context of fee awards, and specifically the Laffey matrix.” Id.
The Court further grants that, in unusual cases, an IDEA plaintiff might be able to
“establish the applicability of [the] Laffey [matrix] by proffering evidence that their IDEA
proceeding was unusually complex.” Snead, 2015 WL 5921901, at *4. Here, Plaintiffs do
emphasize, albeit briefly, the fact that the hearing officer in this case awarded reimbursement
both for Jaden’s wilderness program and for interest Plaintiffs had incurred on their home equity
line of credit. See Pls.’ Mem. Supp. at 14–15. The facts indicate that, in doing so, Plaintiffs’
counsel obtained an exceedingly rare result. For that, counsel should be commended, and the
Court takes that result into account when determining whether to reduce the fee award for
Plaintiffs’ degree of success. Yet, beyond citing to the perhaps atypical result of this litigation,
Plaintiffs have not proffered any evidence to indicate that the course or complexity of the
proceedings required to shepherd this case to that conclusion places this case outside the
heartland of a typical IDEA case.
Consequently, and in line with the authority of a substantial number of cases in this
district, the Court agrees with the District that the prevailing market for IDEA litigation is 75%
of the Laffey matrix rates. See, e.g., Reed, 2015 WL 5692871, at *6. Plaintiffs have failed to
13
demonstrate that this case is of sufficient complexity to justify a different rate. As a result, the
Court will award fees for Ms. Savit’s work at a rate of 75% of the Laffey rate: $382.50. 9
For purposes of Ms. Becker’s work, the Court will award fees at the $325 hourly rate
Plaintiffs request. See Pls.’ Mem. Supp. at 12. Plaintiffs have not provided an exact calculation
of the number of years of Ms. Becker’s experience but, as best the Court can discern from the
resume that Plaintiffs attach, as of 2014 Ms. Becker had worked for 18 years as an attorney. See
Pls.’ Mot. Summ. J. Ex. B2, ECF No. 11-7 (listing Ms. Becker’s graduation from law school in
1995 and legal experience beginning in 1996). Although the District, in a single sentence of its
Reply, asks the Court to “award fees at 75% of the Laffey Matrix rate” for Ms. Becker, see Def.’s
Reply at 7–8, the Laffey rate in 2013–2014 for an attorney with eighteen years of experience was
$450, see Def.’s Ex. 1. Awarding Ms. Becker fees of $337.50 (75% of the 2013–2014 Laffey
rate), would in fact overcompensate Plaintiffs. Therefore, the Court will apply the hourly rate
that Plaintiffs were actually charged for Ms. Becker’s services: $325.00
b. The Prevailing Market Rate for Paralegal Services
Plaintiffs also seeks a fee award for certain paralegal services performed by Ms. Savit (at
a much lower rate of $140 per hour), and two legal assistants, Jonathan Levitt (at a rate of $125
per hour), and Mathiu Antezana (at a rate of $75 per hour). See Pls.’ Mem. Supp. at 12; Pls.’
SOF ¶¶ 73, 83. Ms. Savit’s declaration briefly describes Mr. Levitt and Mr. Antezana’s
education and years of experience, see Savit Decl. ¶ 12, but the District claims that her testimony
fails to provide evidence of a prevailing market rate for their services, see Def.’s Mem. Supp.
Opp’n at 6–7.
9
Because this figure is lower than the $390 Ms. Savit actually charged to Plaintiffs, the
Court therefore does not consider whether reimbursing Plaintiffs at a rate higher than the one Ms.
Savit charged (as Plaintiffs’ $425 suggested rate would have) would be appropriate.
14
Fee awards for paralegal or legal assistant services are permissible, so long as they are
appropriately compensated at their market rates. See Role Models Am., Inc. v. Brownlee, 353
F.3d 962, 973 (D.C. Cir. 2004); In re Olson, 884 F.2d 1415, 1426 (D.C. Cir. 1989). However,
“purely clerical or secretarial tasks should not be billed at a paralegal rate regardless of who
performs them.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Here, Plaintiffs
have included a detailed invoice describing the time that each individual, including Mr. Levitt
and Mr. Antezana, spent on the various tasks related to the litigation. See Pls.’ Ex. B3, ECF No.
11-8. The legal assistant tasks for which Plaintiffs seek additional fees include “assembl[ing]
documents for due process complaint,” “[p]repar[ing] transcripts for inclusion with disclosures,”
“[s]can[ning] and number[ing] exhibits,” and “[p]reparing [a] partial exhibit index and binder.” 10
See id. at 35, 43, 44.
While Plaintiffs’ filings do not specifically identify a prevailing market rate for paralegal
services in the D.C. area, the Court notes that the rates sought for Ms. Savit, Mr. Levitt, and Mr.
Antezana all fall below the $145 prevailing market rate under the 2013–2014 Laffey matrix. See
Def.’s Ex. 1. Consistent with the Court’s analysis above, the Court finds that a rate at 75% of the
Laffey rate, $108.75, is the appropriate upper limit for paralegal services in this case.
Accordingly, the Court will reimburse paralegal time for Mr. Antezana at the $75 per hour rate
Plaintiffs request, and Ms. Savit and Mr. Levitt at a rate of $108.75 per hour.
10
These activities appear most akin to providing “assistance with depositions,
interrogatories, and document production” and “compilation of statistical and financial data,”
which are generally reimbursable, Jenkins, 491 U.S. at 288 n.10, and the District has not argued
otherwise. Compare In re Meese, 907 F.2d 1192, 1203 (D.C. Cir. 1990) (describing as “purely
clerical or secretarial” tasks such as “delivering or picking up various documents as well as
photocopying” (internal quotation marks omitted)).
15
2. The Number of Hours Billed by Plaintiffs’ Counsel
The District also argues that any fees awarded to Plaintiffs should be reduced, or
alternatively, that the amounts claimed by Plaintiffs are excessive. The Court addresses each
argument in turn.
a. Reduction in Fees for Limited Success
In its Cross Motion and Opposition, the District argues that any attorneys’ fees awarded
to Plaintiffs should be reduced because of Plaintiffs’ limited success on the merits. See Def.’s
Mem. Supp. Opp’n at 10–11. In their Reply, Plaintiffs assert that they were successful on all
claims for relief other than their claim for compensatory education, and the request for
prospective placement at Chamberlain. Pls.’ Reply at 14–17.
It is within the Court’s discretion to reduce an attorneys’ fee award in order to account for
limited success on the merits. Hensley, 461 U.S. at 433; Lopez v. District of Columbia, 383 F.
Supp. 2d 18, 22–23 (D.D.C. 2005). Indeed, for partially prevailing parties, “the degree of the
plaintiff’s overall success goes to the reasonableness of the award.” Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989). Thus, regardless of whether counsel’s total
number of hours expended on litigation was reasonable, it remains within the court’s discretion
to reduce the overall fee award to reflect the litigant’s degree of success. See Dickens v.
Friendship-Edison P.C.S., 724 F. Supp. 2d 113, 121 (D.D.C. 2010). Where, however, a plaintiff
has obtained excellent results, the attorney should fully recover his fee. See Hensley, 461 U.S. at
435. “In these circumstances, the fee award should not be reduced simply because the plaintiff
failed to prevail on every contention raised in the lawsuit.” Id.
When awarding fees for a partially successful litigant, it is crucial to first determine
whether the claims on which the plaintiff prevailed are related to those claims on which the
16
plaintiff did not succeed. See id. at 434–35. When the claims “involve a common core of facts”
or are based on “related legal theories,” “[m]uch of counsel’s time will be devoted generally to
the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim
basis.” Id. at 435. Consequently, the court should “focus on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id.
In this case, the parties fundamentally disagree over the degree of success achieved by
Plaintiffs. The District argues that Plaintiffs failed to prove two of their three claims during their
appearance before the hearing officer. See Def.’s Mem. Supp. Opp’n at 11. Namely, the District
asserts that Plaintiffs failed to show that DCPS denied Jaden a FAPE by failing to convene an
IEP meeting in December 2012, and failing to complete a revision of Jaden’s IEP in January
2013. See id. As a result, the District argues for a mathematical approach to fee reduction,
suggesting that any fees awarded to Plaintiffs should be reduced by at least fifty percent. See id.
In response, Plaintiffs assert that the District’s arguments for limited success are “overblown”
because Plaintiffs were awarded almost all of the relief that they sought. Pls.’ Reply at 14–15.
In this sense, Plaintiffs argue for a more comprehensive approach to fee reduction, suggesting
that the hours devoted to preparing for the administrative hearing were “directed toward
achieving the result [Plaintiffs] obtained.” Id. at 15.
Here, the District argues for the very mathematical approach that was renounced in
Hensley. Rather than reducing fee awards based on the number of claims achieved by a
prevailing litigant, Hensley advocates for a more holistic assessment of the relief sought. See
461 U.S. at 434 (noting that the appropriate inquiry is: “did the plaintiff achieve a level of
success that makes the hours reasonably expended a satisfactory basis for making a fee award?”).
Indeed, courts in this district have applied Hensley in other cases involving attorneys’ fees. See,
17
e.g., Brown v. District of Columbia, 80 F. Supp. 3d 90 (D.D.C. 2015); McAllister v. District of
Columbia, 21 F. Supp. 3d 94 (D.D.C. 2014); Santamaria v. District of Columbia, 875 F. Supp.
2d 12 (D.D.C. 2012). As this court explained in McAllister, “[w]hen determining how to reduce
fee awards for partially successful plaintiffs, the court must analyze the relationships amongst the
successful and unsuccessful claims.” 21 F. Supp. 3d at 102 (citing Hensley, 461 U.S. at 434–35).
If the claims “involve a common core of facts,” or are based on “related legal theories,” “[m]uch
of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis.” Hensley, 461 U.S. at 435.
In this case, it is undisputed that Plaintiffs received less than all of the relief sought at the
administrative level. See Am. Compl. Ex. 1; see also Pls.’ Reply at 14 (conceding that Plaintiffs
did not prevail on their claim for compensatory education and request for prospective placement
at Chamberlain). In addition, while Plaintiffs prevailed on their claim for IEP denial based on
DCPS’s failure to provide Jaden with an IEP and services within a reasonable time of his start at
Hospitality, they failed to sustain the proper burden of proof with regard to allegations that
DCPS’s failure to convene an IEP meeting following Plaintiffs’ letter in December 2012, and
complete the revision of Jaden’s IEP in January 2013. See Am. Compl. Ex. 1 at 16–17.
Therefore, a reduction in fees in some respect is justified.
After reviewing the record of this case, however, the Court finds that many of the
underlying issues are interrelated and therefore cannot be easily divided by claim. Moreover, the
Court notes that Plaintiffs’ counsel achieved an exceptional result: reimbursement for private
residential placement and a wilderness program, which the District does not dispute is
extraordinary relief. Other than the college support, the District does not identify anything else
that Plaintiffs could have achieved at the high school level. The award of compensation, which
18
resulted in total payments in the amount of $248,114.64 speaks for itself. See Pls.’ SOF ¶ 53;
Def.’s Response to Pls.’ Statement of Material Facts ¶ 53 (“Def.’s SOF”), ECF No. 12-1. As
does Jaden’s subsequent educational achievement, improving dramatically from twice failing
eleventh grade to receiving his high school diploma and attending college.
As a result, the Court will instead reduce the full fee award using a holistic approach that
considers the claims brought and the overall relief received. See Pls.’ Reply at 14–17; see also
McAllister, 21 F. Supp. 3d at 103 (“A certain amount of the work performed in any case is
performed for all claims, and cannot be so easily sub-divided.”). Here, Plaintiffs sought relief
for DCPS’s denial of a FAPE in relation to the following violations: (1) DCPS’s failure to
provide Jaden an appropriate IEP and services within a reasonable time of his entry into
Hospitality at the beginning of the 2012 school year, until December 4; (2) DCPS’s failure to
convene an IEP meeting to revise Jaden’s IEP, even after receiving notification from Plaintiffs
on December 3, 2012 of the inappropriateness of the IEP; and (3) DCPS’s failure to complete
revision of Jaden’s IEP and determine an appropriate placement, even after a year-long
reevaluation and development process which began in January 2013. See Am. Compl. Ex. 1 at 4–
5. Additionally, Plaintiffs sought two types of relief during the hearing process: compensatory
education and reimbursement for the tuition, fees, and transportation expenses incurred in
sending Jaden to both Legacy and Chamberlain. See id. at 18–19.
Here, Plaintiffs received a large proportion of the relief they had originally sought. For
example, although Plaintiffs failed to sustain their burden of proof on two of their denial-of-
FAPE claims, they nevertheless prevailed on their first claim. See id. at 14–16. Because they
prevailed on the first claim, the hearing officer awarded Plaintiffs their requested
reimbursements for the tuition, fees, and expenses associated with sending Jaden to Legacy and
19
Chamberlain. See id. at 18–19. In addition, the hearing officer ordered DCPS to convene an IEP
team meeting within ten days of the administrative decision, in order to review Jaden’s IEP and
make any determinations related to future placement. See id. at 19.
Regarding the District’s assertion that Plaintiffs’ fee award should be reduced by fifty
percent or more, Def.’s Mem. Supp. Opp’n at 11, the Court concludes that the level of success
achieved does not warrant such a drastic reduction in the fee award. Despite the hearing officer’s
finding that Jaden was denied a FAPE on only one of the three issues for which Plaintiffs
requested relief, the claim on which Plaintiffs prevailed nevertheless shares a “common core of
facts” with those underlying the other two claims. Hensley, 461 U.S. at 448. Here, this
“common core” includes the fact that DCPS failed to properly implement Jaden’s FAPE, and
further that Jaden’s placement was inappropriate. See Pls.’ Mem. Supp. at 2–5. For example,
Plaintiffs’ claim that DCPS denied Jaden a FAPE by failing to convene an IEP meeting
stemmed, at least in part, from the fact that DCPS failed to provide Jaden an appropriate IEP and
educational services. Both of these claims, despite one of them being unsuccessful, are related to
the larger claim that Jaden’s initial placement at Hospitality was inappropriate. Accordingly,
because the claims are sufficiently interrelated, the court will not divide the hours on a claim-by-
claim basis, but instead will modestly reduce the award of attorneys’ fees. See Hensley, 461 U.S.
at 436–37 (“The district court may attempt to identify specific hours that should be eliminated, or
it may simply reduce the award to account for the limited success. The court necessarily has
discretion in making this equitable judgment.”); see also McAllister, 21 F. Supp. 3d at 102–04.
The Court further believes it appropriate to reduce the total award by ten percent. While
Plaintiffs were unsuccessful on two of their secondary claims—DCPS’s failure to convene an
IEP meeting and complete a revision of Jaden’s FAPE—they were nevertheless successful on
20
their primary claim for denial of a FAPE. See Am. Compl. Ex. 1 at 14–16 (finding that DCPS
denied Jaden a FAPE by failing to provide him an appropriate IEP and services within a
reasonable time of his entry into Hospitality). In this sense, the claim on which Plaintiffs were
successful resulted in the primary relief sought. See Hensley, 461 U.S. at 436–37 (focusing on
the overall relief obtained by the prevailing party). This Court does recognize that Plaintiffs
received less than all of the relief sought, see, e.g., Dickens, 724 F. Supp. 2d at 121–23 (reducing
the plaintiffs’ fee award because the plaintiffs received only a portion of their requested relief),
but in light of Plaintiffs’ overall degree of success in their administrative claim against the
District, as well as the interconnected nature of the claims, the Court will reduce the attorneys’
fee award by ten percent. 11 Accordingly, Plaintiffs should receive $44,815.7312 in attorneys’
fees.
b. Alleged Overbilling
The Court makes brief note of the District’s contention that Plaintiffs engaged in
overbilling. See Def.’s Men. Supp. Opp’n at 4. Specifically, the District contends that Plaintiffs’
11
The Court also acknowledges Plaintiffs’ claim for an additional award of fees, as
compensation for the time and efforts reasonably expended in seeking their award of attorneys’
fees. See Pls.’ Mem. Supp. at 17–18. However, as Plaintiffs note, the Court will reserve a
decision on this claim for a later date, as the total cost of securing the fees will not be known
until after the pending motions for summary judgment are resolved. See id.; see also Kaseman v.
District of Columbia, 444 F.3d 637, 640–41 (D.C. Cir. 2006) (noting that parties who prevail at
the administrative level can also recover “fees on fees” for time devoted to obtaining attorneys’
fees).
12
This fee amount was calculated as follows: $47,047.50 for Ms. Savit’s legal work (123
billed hours—143 minus the erroneously included 20 hours—at a rate of $382.50 per hour); plus
$156.00 for Ms. Savit’s flat rate initial consultation fee (which the District has not specifically
contested), see Pls.’ SOF ¶ 83; plus $1,040.00 for Ms. Becker’s legal work (3.2 billed hours at a
rate of $325 per hour); plus $1,239.75 for Mr. Levitt’s paralegal work (11.4 billed hours at a rate
of $108.75 per hour); plus $225.00 for Mr. Antezana’s paralegal work (3 billed hours at a rate of
$75.00 per hour); plus $87.00 for Ms. Savit’s paralegal work (0.8 billed hours at a rate of
$108.75 per hour). Those values yielded an initial fee award of $49,795.25. Reduced by ten
percent, Plaintiffs should be awarded $44,815.73.
21
invoice for July 31, 2014 contains entries indicating that Ms. Savit expended 26.1 hours in a
single day, working on the IDEA litigation. See id.; see also Pls.’ Ex. B3 at 46–47. As properly
noted by the District, it is not humanly possible for one individual to work 26.1 hours in a single
day. However, Plaintiffs have conceded that this alleged overbilling was merely a typographical
error, and that one of the entries on that date should have read “two hours” instead of “22” hours.
Pls.’ Reply at 8. Further, Plaintiffs’ counsel notes that she has credited Plaintiffs’ account for the
twenty additional hours, and the reimbursement amount has been amended to reflect the proper
number of hours expended. See id. While the District claims that Plaintiffs’ failure to catch this
billing error is “more significant than Plaintiffs would like to admit,” and that the error indicates
that Plaintiffs are not driven by economic considerations in their pursuit of attorney’s fees, see
Def.’s Reply at 10, the Court has no reason to doubt that the overbilling was anything other than
an oversight and addresses the issue no further.
C. Award for Costs Incurred
Plaintiffs also request reimbursement for expenses associated with the litigation of their
claims. See Pls.’ Mem. Supp. Mot. Summ. J. at 17. Specifically, Plaintiffs assert that they were
charged $2,252.74 in expenses, in addition to the legal fees incurred. See id. “An award of costs
for copying, faxing and postage . . . are customarily included in fees awards.” Kaseman v.
District of Columbia, 329 F. Supp. 2d 20, 28 n.7 (D.D.C. 2004); see also Sexcius v. District of
Columbia, 839 F. Supp. 919, 927 (D.D.C. 1993) (noting that “[r]easonable photocopying,
postage, long distance telephone, messenger, and transportation and parking costs are
customarily considered part of a reasonable ‘attorney’s fee’”); Bailey v. District of Columbia,
839 F. Supp. 888, 891–92 (D.D.C. 1993). Such costs are only shifted to the defendant provided
that they are reasonable. See Bailey, 839 F. Supp. at 892.
22
Attached to their Motion for Summary Judgment, Plaintiffs included detailed invoices of
the charges incurred in relation to the IDEA litigation. Included in these invoices are the various
costs to which Plaintiffs refer. See generally Pls.’ Ex. B3. Specifically, Plaintiffs claim
$1,993.50 in expenses stemming from the production of transcripts, in addition to other costs
associated with photocopying, postage, mileage reimbursement, and use of public transportation.
See Pls.’ SOF ¶ 84. A prevailing party’s request for costs need not be denied simply because the
party has failed to provide supporting documentation, but a lack of detail may affect the amount
of expenses and costs that the prevailing party is permitted to recoup, as in those instances where
detail is lacking the Court is unable to “rely on counsel’s integrity” in determining “whether [the]
expenses were ‘reasonable’ as contemplated by statute.” Harvey v. Mohammed, 951 F. Supp. 2d
47, 70 (D.D.C. 2013).
Here, the District generally states in its Opposition that “Plaintiffs’ bill of costs lacks
sufficient detail,” see Def.’s Mem. Supp. Opp’n at 1, and claims in its statement of facts that
Plaintiffs have failed to provide a “statement itemizing the costs and linking the costs to the
IDEA administrative hearing,” Def.’s SOF ¶ 84. Otherwise, the District does not directly contest
Plaintiffs’ request for costs. As Plaintiffs point out, however, a close review of the invoices they
have submitted provides ample clarity about the purpose of each expense. For example, an entry
dated March 24, 2014 lists expenses in the amount of $1,993.50 for transcripts related to IEP
meetings. See Pls.’ Ex. B3 at 31. A June 2, 2014 entry states that mileage costs stemmed from
“[r]ound-trip mileage to resolution session,” id. at 39, while an entry from July 25, 2014 states
“Metro [t]o student hearing office,” id. at 44. For these expenses, the Court finds that Plaintiffs
are entitled to fully recover their costs for associated transportation, mileage, and transcripts, and
23
the District does not argue that the transcript and transportation costs were unnecessary or
unreasonable.
Plaintiffs’ request for postage and copying expenses are admittedly somewhat more
opaque. Yet, one need only compare the “professional services” entry for the date of the expense
in question to determine the general purpose of the expense. For example, a June 19, 2014
expense for the postage of two letters, see Pls.’ Ex. B3 at 44, was incurred on the same date that
Ms. Savit’s timekeeping records reflect she made edits to a letter to a District of Columbia public
school official, see id. at 38. In addition, the $214.44 requested for photocopying expenses
almost entirely results from a single $212.14 invoice for the copies of due process hearing
exhibits. See id. at 44. And, contrary to the District’s blanket assertion that Plaintiffs have failed
to itemize the other two dollars and change requested for photocopying, each entry was made on
a date for which Plaintiffs have provided a corresponding “professional services” entry
describing the attorney’s legal research, drafting, or other activities. Compare, e.g., id. at 55
(describing Ms. Savit’s preparation of a check to Chamberlain school and drafting a letter
requesting proof of payment), with id. at 56 (listing photocopying expenses for two pages).
Accordingly, the Court will award Plaintiffs the $2,252.74 requested in costs.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment shall be
GRANTED IN PART AND DENIED IN PART, and the District’s Cross-Motion for Summary
Judgment shall be GRANTED IN PART AND DENIED IN PART. An order consistent with
this Memorandum Opinion is separately and contemporaneously issued.
Dated: December 29, 2015 RUDOLPH CONTRERAS
United States District Judge
24 | 01-03-2023 | 12-29-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2500580/ | 274 P.3d 857 (2012)
351 Or. 586
STATE
v.
PIPKIN.
No. (S059769).
Supreme Court of Oregon.
February 9, 2012.
Petition for Review Allowed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3156227/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: Criminal Action No.: 13-0274 (RC)
SHANTIA HASSANSHAHI, :
also known as Shantia Hassan Shahi, :
also known as Shahi, :
also known as Shantia Haas, :
also known as Sean Haas, :
:
and :
:
HASSTON, INC., :
:
Defendants. :
MEMORANDUM & ORDER
DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
I. INTRODUCTION
Defendant Shantia Hassanshahi is charged with one count of conspiracy to violate the
International Economic Emergency Powers Act, 50 U.S.C. § 1705, and the Iranian Transactions
and Sanctions Regulations, 31 C.F.R. §§ 560.203–204, commonly referred to as the United
States’ trade embargo against Iran.
In December 2014, the Court denied a motion by Mr. Hassanshahi to suppress certain
evidence discovered during a forensic examination of his laptop computer, holding, in relevant
part, that discovery of the evidence was sufficiently attenuated from a search of a mysterious
telephony database that the Court assumed, for purposes of its analysis and at the Government’s
suggestion, was unconstitutional. See United States v. Hassanshahi, 75 F. Supp. 3d 101 (D.D.C.
2014). Following the Court’s decision, Mr. Hassanshahi has argued, both orally before the Court
and in rounds of supplemental briefing in response to orders of the Court, that suppression of the
evidence is warranted in light of both additional information concerning the database that the
Government provided after the Court’s ruling and the Second Circuit’s recent decision
concerning a different government database in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015).
The Court construes these arguments as a motion for reconsideration of the Court’s
denial of Mr. Hassanshahi’s motion to suppress. For the reasons that follow, and upon
consideration of the briefs submitted by both Mr. Hassanshahi and the Government, the Court
denies that motion and affirms its ruling on the motion to suppress.
II. BACKGROUND
The Indictment against Mr. Hassanshahi alleges that, beginning in or around March 2009,
Mr. Hassanshahi engaged in a conspiracy to export or cause the exportation of goods and
technology from Canada to Iran, as well as related services from the United States to Iran,
without first having obtained a license from the Office of Foreign Assets Control, in violation of
federal law. See Indictment ¶ 1, ECF No. 7.
At trial, the Government seeks to introduce evidence discovered during a forensic
examination of Mr. Hassanshahi’s laptop computer, which the Government seized from Mr.
Hassanshahi in January 2012 upon his arrival from the United States at the Los Angeles
International Airport (“LAX”). The Government’s search and seizure of that evidence was the
result of an investigation that began at least as early as August 2011. 1 See Hassanshahi, 75 F.
1
The Court described the investigation that led to the search and seizure of Mr.
Hassanshahi’s laptop computer in greater detail than is provided here in its memorandum
opinion denying Mr. Hassanshahi’s prior motion to suppress the evidence. The Court
incorporates that factual background here by reference. See Hassanshahi, 75 F. Supp. 3d at 105–
07.
2
Supp. 3d at 105–07. In August 2011, Homeland Security Investigations (“HSI”) received an
unsolicited e-mail from a source concerning an Iranian individual named “Sheikhi” who was
seeking to procure protection relays for an Iranian power project. See id. at 105. Later the same
month, HSI requested a search of a law enforcement database using a telephone number it knew
to be associated with Sheikhi. That search returned a single telephone record of one call between
the searched telephone number and a California telephone number with an 818 area code that
HSI later determined, through its subsequent investigation, was registered to Mr. Hassanshahi.
See id. at 105–06. Over the course of the next several months, HSI investigated Mr.
Hassanshahi, which ultimately led to the search and seizure of his laptop computer at LAX.
Mr. Hassanshahi moved to suppress the evidence discovered through the forensic
examination of his laptop, asserting, in relevant part, that HSI’s search of the law enforcement
database constituted an unconstitutional search and that the evidence should be excluded under
the fruit of the poisonous tree doctrine. See Def.’s Mot. Suppress at 18–30, ECF No. 28. The
Court denied Mr. Hassanshahi’s motion, holding, in relevant part, that the exclusionary rule did
not require suppressing the evidence as “fruit of the poisonous tree,” because discovery of the
evidence was sufficiently attenuated from the purportedly unlawful search of the database. 2 See
Hassanshahi, 75 F. Supp. 3d at 108–18. The Court reached this holding based on limited
information concerning the database at issue, because, in its opposition to the motion to suppress,
the Government refused to provide details concerning the database and instead asked the Court
to assume arguendo that the database was unconstitutional. See id. at 109. In its analysis, the
2
The Court also rejected Mr. Hassanshahi’s separate argument that the evidence should be
suppressed because the Government lacked reasonable suspicion to conduct the forensic
examination of the laptop computer, holding that the Government had reasonable suspicion and
declining to reach the constitutional issue of whether reasonable suspicion was required. See
Hassanshahi, 75 F. Supp. 3d at 118–26. That holding is not at issue here.
3
Court therefore proceeded on the assumption that the database and HSI’s search of the database
were unconstitutional and nevertheless concluded that the exclusionary rule did not require
suppression. See id. at 108–18. Although the Court was unequivocal in its holding, it also
ordered the Government to provide the Court with more information concerning the database.
See id. at 115 n.6.
The Government complied with the Court’s order by providing a declaration from Robert
Patterson, an Assistant Special Agent in Charge at the United States Drug Enforcement
Administration (“DEA”), which the Government initially filed ex parte and under seal and later
filed publicly in redacted form. See Decl. Robert Patterson (“Patterson Decl.”), ECF No. 49-1
(publicly-filed redacted version). In this declaration, Mr. Patterson explained that the database at
issue “consisted of telecommunications metadata obtained from United States
telecommunications providers pursuant to administrative subpoenas served upon the service
providers under the provisions of 21 U.S.C. § 876.” Id. ¶ 4. The referenced statutory provision
authorizes the Attorney General to issue administrative subpoenas in “any investigation” relating
to his drug enforcement function. See 21 U.S.C. § 876. Mr. Patterson provided further detail
concerning the metadata stored in the database:
This metadata related to international telephone calls originating in
the United States and calling [REDACTED] designated foreign
countries, one of which was Iran, that were determined to have a
demonstrated nexus to international drug trafficking and related
criminal activities. This metadata consisted exclusively of the
initiating telephone number; the receiving telephone number; the
date, time, and duration of the call; and the method by which the call
was billed. No subscriber information or other personal identifying
information was included in this database. No communication
content was included in this database.
Patterson Decl. ¶ 4. Mr. Patterson further stated that the DEA database “could be used to query a
telephone number where federal law enforcement officials had a reasonable articulable suspicion
4
that the telephone number at issue was related to an ongoing federal criminal investigation” and
that the standard had been met with respect to the search that returned Mr. Hassanshahi’s
telephone number. Id. ¶ 5. Mr. Patterson also stated that use of this particular database was
suspended in September 2013 and that “information is no longer being collected in bulk pursuant
to 21 U.S.C. § 876.” Id. ¶ 6.
At a status conference before the Court on January 29, 2015 following the filing of Mr.
Patterson’s redacted declaration, counsel for Mr. Hassanshahi sought permission to renew his
motion to suppress based on the new information concerning the DEA database. The Court
directed the Government to provide briefing concerning two issues: first, whether information
obtained by one law enforcement agency for one purpose may lawfully be shared with another
law enforcement agency for another purpose; and second, whether a remedy of suppression
existed for a non-constitutional violation of law. The Government submitted a brief on these
issues, and Mr. Hassanshahi filed a brief in response, to which the Government filed a reply
brief. See Gov’t’s Response to the Court’s Directive from the Jan. 29, 2015 Status Conference
(“Gov’t’s Feb. 25 Brief”), ECF No. 51; Def.’s Response to Gov’t’s Filing (“Def.’s Apr. 13
Brief”), ECF No. 53; Gov’t’s Reply to Def.’s Response (“Gov’t’s Apr. 29 Brief”), ECF No. 58.
In May 2015, the Second Circuit decided ACLU v. Clapper, holding that a
counterterrorism telephony metadata program maintained by the National Security Agency
(“NSA”), which this Court discussed in its denial of the motion to suppress, exceeded the
program’s statutory authorization. See ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). The
parties have also submitted briefs concerning the effect, if any, that the Second Circuit’s decision
might have on the issues presented in this case. See Def.’s Brief re Effect of ACLU v. Clapper
5
(“Def.’s June 22 Brief”), ECF No. 68; Gov’t’s Response to Def.’s Brief (“Gov’t’s July 10
Brief”), ECF No. 74; Def.’s Reply (“Def.’s July 29 Brief”), ECF No. 77.
III. LEGAL STANDARD
“Although the Federal Rules do not specifically provide for motions for reconsideration
in criminal cases, the Supreme Court has recognized, in dicta, the utility of such motions.”
United States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008); see also United States v.
Dieter, 429 U.S. 6, 8 (1976) (per curiam) (noting “the wisdom of giving district courts the
opportunity to promptly correct their own alleged errors”). Courts in this District have,
therefore, entertained motions for reconsideration in criminal cases by importing the standards of
review applicable in motions for reconsideration in civil cases. See, e.g., United States v.
Trabelsi, Crim. No. 06-89 (RWR), 2015 WL 5175882 at *2 (D.D.C. Sept. 3, 2015); United
States v. Slough, 61 F. Supp. 3d 103, 107 (D.D.C. 2014); United States v. Cabrera, 699 F. Supp.
2d 35, 39 (D.D.C. 2010); United States v. Sunia, 643 F. Supp. 2d 51, 60–61 (D.D.C. 2009);
United States v. Libby, 429 F. Supp. 2d 46, 46–47 (D.D.C. 2006). With respect to motions for
reconsideration of final judgments, courts have adopted the standard of review for motions filed
under Rule 59(e) of the Federal Rules of Civil Procedure. See Slough, 61 F. Supp. 3d at 107 n.1
(citing cases). With respect to interlocutory decisions, courts in this District have also adopted
the standard from civil cases that reconsideration of an interlocutory decision is available “as
justice requires.” See Trabelsi, 2015 WL 5175882 at *2; Slough, 61 F. Supp. 3d at 107; Sunia,
643 F. Supp. 2d at 60–61.
The Court’s denial of Mr. Hassanshahi’s motion to suppress was an interlocutory
decision, and, therefore, the Court follows the lead of other courts in this District and applies the
“as justice requires” standard. “[A]sking ‘what justice requires’ amounts to determining, within
6
the Court’s discretion, whether reconsideration is necessary under the relevant circumstances.”
Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). In making this determination, the
Court considers whether it “patently misunderstood a party, has made a decision outside the
adversarial issues presented to the Court by the parties, has made an error not of reasoning but of
apprehension, or where a controlling or significant change in the law or facts [has occurred]
since the submission of the issue to the Court.” Singh v. George Washington Univ., 383 F. Supp.
2d 99, 101 (D.D.C. 2005) (internal quotation and citation omitted).
The Court is also guided by several generally applicable principles. “‘Motions for
reconsideration are committed to the sound discretion of the trial court.’” Trabelsi, 2015 WL
5175882 at *2 (quoting Judicial Watch, Inc. v. U.S. Dep’t of Energy, 319 F. Supp. 2d 32, 34
(D.D.C. 2004)). Also, “[t]he moving party bears the burden ‘to show that reconsideration is
appropriate and that harm or injustice would result if reconsideration were denied.’” Id. (quoting
United States v. Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C. 2013)). Moreover, a motion for
reconsideration is “not simply an opportunity to reargue facts and theories upon which a court
has already ruled.” New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995); see also
Singh, 383 F. Supp. 2d at 101 (“[W]here litigants have once battled for the court’s decision, they
should neither be required, nor without good reason permitted, to battle for it again.”).
IV. ANALYSIS
Mr. Hassanshahi and the Government advance a variety of arguments in connection with
Mr. Hassanshahi’s motion for reconsideration. These arguments can be grouped in two major
issues for the Court to consider: first, whether Mr. Hassanshahi may seek suppression of the
laptop evidence by challenging the statutory validity of the DEA database, as opposed to its
constitutionality; and second, whether the new information disclosed by the Government
7
concerning the database and the Second Circuit’s decision in Clapper require the Court to
reverse its prior decision and suppress the evidence on constitutional grounds. The Court
addresses these issues below.
A. Mr. Hassanshahi’s Statutory Challenge
In his original motion to suppress the laptop evidence, Mr. Hassanshahi argued that the
evidence should be suppressed on constitutional grounds. See Def.’s Mot. Suppress at 18–30.
After the Court rejected that argument and denied the motion, the Government disclosed that the
DEA obtained the information contained in the database from U.S. telecommunications service
providers pursuant to administrative subpoenas that the Government asserts were authorized by
21 U.S.C. § 876. See Patterson Decl. ¶ 4. In light of this disclosure, Mr. Hassanshahi takes the
position that the evidence should be suppressed not only on constitutional grounds, but also on
statutory grounds, arguing that the DEA’s collection and dissemination of the data violated 21
U.S.C. § 876. The Government takes the position, through several distinct arguments, that Mr.
Hassanshahi is unable, as a matter of law, to challenge the statutory validity of the database and
seek suppression of the evidence as a remedy. The Court addresses the Government’s arguments
in turn.
1. Mr. Hassanshahi’s Ability To Raise A Statutory Challenge
The Government argues that Mr. Hassanshahi cannot challenge the statutory validity of
the DEA database for two reasons. First, the Government argues that Mr. Hassanshahi cannot
challenge the DEA’s collection of the metadata contained in the database from
telecommunications service providers, because he lacks “standing” to challenge administrative
8
subpoenas directed to third parties. 3 Second, the Government argues that Mr. Hassanshahi
cannot challenge the DEA’s dissemination of that information to HSI, because it is a
longstanding rule that one law enforcement agency may share information it has collected for
one purpose with another law enforcement agency for a different purpose.
With respect to the DEA’s collection of the metadata, the Court observes that Mr.
Hassanshahi is not the first criminal defendant to challenge an administrative subpoena issued to
a third party under Section 876. 4 In United States v. Moffett, a case somewhat similar to this one,
a criminal defendant challenged the Attorney General’s authority to issue a subpoena to a third
party under Section 876 purely on statutory grounds and sought to suppress the evidence gained
through its use. See United States v. Moffett, 84 F.3d 1291, 1293 (10th Cir. 1996). The Tenth
3
The Government uses the term “standing” throughout its briefs (occasionally using the
term “prudential standing”), referencing the concept of “statutory standing,” which is distinct
from Article III standing. The Court eschews the terms “standing,” “statutory standing,” or
“prudential standing” here, which the Supreme Court has acknowledged are “misleading.”
Lexmark Int’l v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014). The D.C.
Circuit has since clarified that “[s]tatutory standing is not really about standing at all, in the sense
that it limits a ‘court’s constitutional power to adjudicate the case.’ Instead, statutory standing is
nothing more than an inquiry into whether the statute at issue conferred a ‘cause of action’
encompassing ‘a particular plaintiff’s claim.’” United States v. Emor, 785 F.3d 671, 677 (D.C.
Cir. 2015) (quoting Lexmark, 134 S. Ct. at 1387).
4
The Government also cites and relies upon some cases that addressed a criminal
defendant’s ability to challenge a subpoena directed at a third party on constitutional grounds.
See, e.g., United States v. Miller, 425 U.S. 435, 445 (1976) (“We hold that the District Court
correctly denied respondent’s motion to suppress, since he possessed no Fourth Amendment
interest that could be indicated by a challenge to the subpoenas.”) (emphasis added)); United
States v. Phibbs, 999 F.2d 1053, 1077–78 (6th Cir. 1993) (holding that a defendant “did not have
standing to dispute [the administrative subpoenas’] issuance on Fourth Amendment grounds”)
(emphasis added)). Whether Mr. Hassanshahi may bring a constitutional challenge to the DEA
database is not at issue here, as the Court already assumed he could do so in its denial of the
motion to suppress. The Government does not challenge that assumption. See, e.g., Gov’t’s
Apr. 29 Brief at 2 (“To the extent that a defendant asserts a violation of his own legal rights he
has standing to do so. Hassanshahi did so in his original suppression motion, in which he
claimed a violation of his Fourth Amendment rights. While defendant had standing to make this
motion, it lacked merit, and it was denied.”).
9
Circuit denied the defendant’s attempted challenge, because it found that the defendant did not
come within “the zone of interest the statute is meant to protect.” Id. In its reasoning, the court
observed that Section 876 “is written to give the DEA broad powers to investigate violations of
federal drug laws” and that it “provides no express right to challenge the Attorney General’s
subpoenas issued under it.” Id. The court contrasted another administrative subpoena statute, 26
U.S.C. § 7609, which provides a person whose records are subpoenaed from third parties by the
Internal Revenue Service with a right to intervene and challenge the subpoena. See id. at 1293–
94. The court also acknowledged analogous cases in which courts had similarly denied criminal
defendants’ challenges to the statutory validity of a search without adjudicating the merits of the
claimed violation. See id. at 1294 (citing United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir.
1995)). At least one other circuit has followed Moffett, holding that a criminal defendant did not
possess “statutory standing” to attack an administrative subpoena issued under Section 876 to a
third party. See United States v. Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998), amended and reh’g
denied 161 F.3d 1195 (1998), cert. denied 526 U.S. 1060 (1999).
In his limited response, Mr. Hassanshahi points to Clapper, in which the Second Circuit
held, in relevant part, that targets of orders issued pursuant to Section 215 of the PATRIOT Act
could bring suit against the Government challenging the orders under the Administrative
Procedure Act even though they were not the recipients of the orders. 5 See Clapper, 785 F.3d at
5
Mr. Hassanshahi makes other arguments that are clearly without merit. He claims, for
example, that the Government has “conceded” standing by also “conced[ing] that use of the
database was a constitutional violation.” Def.’s Apr. 13 Brief at 9–10. To be clear, the
Government has never conceded that the DEA database was unconstitutional, nor has this Court
held that it was. Rather, the Government asked the Court to assume, solely for purposes of the
motion to suppress, that it was unconstitutional, which is what the Court did. See Hassanshahi,
75 F. Supp. 3d at 109. Moreover, Mr. Hassanshahi’s argument conflates his standing to bring a
constitutional challenge with his ability to bring a statutory challenge. As discussed, supra note
4, only the latter is at issue here. Mr. Hassanshahi also cites the Second Circuit’s discussion of
10
803–10. Mr. Hassanshahi, however, neither references the Administrative Procedure Act nor
explains how the Second Circuit’s reasoning would apply in this case, in which, as a criminal
defendant, he seeks to challenge the validity of a different program under an administrative
subpoena statute.
With respect to the DEA’s dissemination of the metadata to HSI, the Government argues
that the DEA “acted consistently with the longstanding legal rule that ‘[e]vidence legally
obtained by one police agency may be made available to other such agencies without a warrant,
even for a use different from that for which it was originally taken.’” Gov’t’s Feb. 25 Brief at 4
(quoting Jabara v. Webster, 691 F.2d 272, 277 (6th Cir. 1982)). This rule, however, concerns
only the constitutionality of HSI’s query of the DEA database and does not squarely address the
issue of whether the query violated Section 876. The Government observes that Mr.
Hassanshahi “has not identified any statutory or regulatory provision that would proscribe the
sharing of information between law enforcement agencies as part of a legitimate law
enforcement investigation.” Gov’t’s Feb. 25 Brief at 4–5. Mr. Hassanshahi argues in response
that the Government’s actions violated Section 876 because the Government “must have known
of the unrestricted use of the database while serving the subpoenae (at some point it became
obvious that the database was being used for non-drug investigations, but government continued
gathering the telephony records).” Def.’s Apr. 13 Brief at 6.
Ultimately, the Court need not determine here who may or may not challenge the
statutory validity of the DEA’s collection of the metadata or whether Section 876 imposes any
limitations on the DEA’s ability to share data, because, as discussed, infra, the Court finds that,
Article III standing in Clapper as support. See Def.’s June 22 Brief at 15–16. As discussed,
supra note 3, Article III standing is a separate question not at issue here.
11
even if Mr. Hassanshahi could challenge the statutory validity of the DEA database, suppression
of the evidence would not be an available remedy.
2. Suppression As A Remedy For A Statutory Violation
The Court next turns to the issue of whether, assuming that Mr. Hassanshahi could
successfully challenge the statutory validity of the DEA database, the Court could suppress
evidence discovered as a result of the database, even if suppression would not be appropriate on
constitutional grounds.
The suppression of evidence in a criminal trial is a serious remedy that is ordinarily
reserved for certain circumstances involving violations of the Constitution. The Supreme Court
has stated that the exclusionary rule “is a prudential doctrine created by this Court to compel
respect for the constitutional guaranty.” Davis v. United States, -- U.S. ----, 131 S. Ct. 2419,
2426 (2011) (internal quotations omitted). On occasion, however, Congress has separately
provided a remedy for suppression for statutory violations. See, e.g., United States v. Donovan,
429 U.S. 413, 432 (1977) (discussing the statutory suppression remedy provided by 18 U.S.C. §
2515 for violations of 18 U.S.C. § 2518 concerning requirements for wiretaps). Here, Mr.
Hassanshahi does not dispute that Congress did not provide a suppression remedy for evidence
collected in violation of Section 876. Instead, he argues that the Court should create a
suppression remedy on its own. See Def.’s Apr. 13 Brief at 8.
In considering this issue, the Court is guided by longstanding principles established by
the Supreme Court and followed by the lower courts regarding the exclusionary rule and the
suppression of evidence. In Hudson v. Michigan, the Supreme Court stated that “[s]uppression
of evidence . . . has always been our last resort, not our first impulse.” Hudson v. Michigan, 547
U.S. 586, 591 (2006). The Court explained that the rule “generates substantial social costs,
12
which sometimes include setting the guilty free and the dangerous at large,” and that the Court
has therefore “been cautious about expanding it and [has] repeatedly emphasized that the rule’s
costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those
urging its application.” Id. (internal quotations omitted). The D.C. Circuit has observed that
though the Supreme Court “has applied the exclusionary rule to certain Fourth Amendment
violations,” it “‘has never . . . interpreted’” the rule as “‘proscrib[ing] the introduction of illegally
seized evidence in all proceedings or against all persons.’” United States v. Spencer, 530 F.3d
1003, 1006 (D.C. Cir. 2008) (quoting United States v. Leon, 468 U.S. 897, 906 (1984)).
This is not to say, however, that the Supreme Court has never suppressed evidence for
statutory violations. In Sanchez-Llamas v. Oregon, a case decided in the same month as Hudson,
the Court rejected a petitioner’s argument that suppression was required for a violation of the
Vienna Convention on Consular Relations, which provides that “when a national of one country
is detained by authorities in another, the authorities must notify the consular offices of the
detainee’s home country if the detainee so requests.” Sanchez-Llamas v. Oregon, 548 U.S. 331,
338–39 (2006) (citation omitted). In reaching its holding, the Court first observed that it had
“applied the exclusionary rule primarily to deter constitutional violations.” Id. at 348. The Court
also noted that in “[t]he few cases in which we have suppressed evidence for statutory violations
. . . the excluded evidence arose directly out of statutory violations that implicated important
Fourth and Fifth Amendment concerns.” Id. In its opinion, the Court discussed three such cases.
See id. at 345 (citing McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States,
354 U.S. 449 (1957); Miller v. United States, 357 U.S. 301 (1958)).
The Court agrees with the Government’s observation that each of these cases, decided in
the 1940s and 1950s, “concerned a statute that prophylactically protected Fourth Amendment or
13
Due Process rights at a time when the judiciary had not fully fleshed out those constitutional
protections.” Gov’t’s Feb. 25, 2015 Brief at 7. The Court stated that McNabb, for example,
“involved the suppression of incriminating statements obtained during a prolonged detention of
the defendants, in violation of a statute requiring persons arrested without a warrant to be
promptly presented to a judicial officer.” 6 Sanchez-Llamas, 548 U.S. at 348. As the Court
observed, its decisions in McNabb and Mallory helped later form the foundation for its landmark
Fifth Amendment decision in Miranda. See id. at 348 (citing Miranda v. Arizona, 384 U.S. 436,
463 (1966)). Similarly, in Miller, the Court “required suppression of evidence that was the
product of a search incident to an unlawful arrest.” Id. at 348–49 (citing Miller, 357 U.S. at
305). The D.C. Circuit has recognized that the statute at issue in Miller has since merged with
judicial interpretation of the Fourth Amendment and that Miller is no longer controlling with
respect to the availability of a suppression remedy under that statute. See United States v.
Southerland, 466 F.3d 1083, 1084–86 (D.C. Cir. 2006).
The Court is also guided by decisions of other Circuits holding that suppression is
unavailable as a remedy for violations of other statutes. See, e.g., United States v. Forrester, 512
F.3d 500, 511–13 (9th Cir. 2007) (holding that suppression is not an available remedy for
evidence collected in violation of a pen register statute, in part because “[a]s both the Supreme
Court and this court have emphasized, suppression is a disfavored remedy, imposed only where
its deterrence benefits outweigh its substantial social costs or (outside the constitutional context)
where it is clearly contemplated by the relevant statute); United States v. Thompson, 936 F.2d
1249, 1251–52 (11th Cir. 1991) (holding that suppression is not an available remedy for
6
The Court stated that Mallory was similar to McNabb, except that it concerned violation
of a requirement of a Federal Rule of Criminal Procedure. See Sanchez-Llamas, 548 U.S. at 345.
14
violation of the pen register statute based upon the observation that “several cases indicate that
statutory violations by themselves are insufficient to justify the exclusion of any evidence
obtained in that manner”), cert. denied 502 U.S. 1075 (1992). To the Court’s knowledge, no
court has ever suppressed evidence because it was collected in violation of Section 876 or, for
that matter, in violation of any other administrative subpoena statute that did not explicitly
provide for such a remedy.
Mr. Hassanshahi asserts that, in this case, the statutory violation was “intentional and
systematic” and argues that this case therefore “presents a case of first impression not governed
by Sanchez-Llamas or any other government cases.” Def.’s Apr. 13 Brief at 8. Following
Clapper, he argues that it is now clear that the statutory violation implicates the Fourth
Amendment and that those implications, together with the statutory violation, require
suppression of the evidence. See Def.’s June 22 Brief at 12–13. As his sole support for this
position, he cites the Second Circuit’s discussion of “some of the Fourth Amendment concerns
that [the NSA program] implicates” and its statement that “[t]he seriousness of the constitutional
concerns . . . has some bearing on” its holding. Clapper, 785 F.3d at 821 n.12, 824. He
acknowledges, however, that the Second Circuit explicitly declined to reach the “weighty
constitutional issues” that it found to be implicated. Id. at 824.
The Court disagrees with Mr. Hassanshahi’s position that this is a case of first impression
not governed by any precedent and regards the extensive precedent concerning the application of
the exclusionary rule as instructive. Guided by the Supreme Court’s repeated warnings against
the expansion of the exclusionary rule even with respect to constitutional violations and the deep
aversion of other Circuits to suppress evidence for statutory violations absent a clear indication
of congressional intent, the Court declines to create a suppression remedy for evidence collected
15
in violation of Section 876. The Court is not persuaded by Mr. Hassanshahi’s argument that the
claimed systematic and intentional statutory violations, together with their Fourth Amendment
implications, require suppression. The Court finds that it is unnecessary to expand the
exclusionary rule to address these issues and that the Fourth Amendment’s well-established
exclusionary rule is more than adequate to do so. Cf. Sanchez-Llamas, 548 U.S. at 350 (“[W]e
think it unnecessary to apply the exclusionary rule where other constitutional and statutory
protections—many of them already enforced by the exclusionary rule—safeguard the same
interests Sanchez-Llamas claims are advanced by Article 36.”). Clapper, a decision in a civil
case that concerned a different statute and made no mention of the exclusionary rule, does not
alter the Court’s conclusion.
The Court also notes that even if it were proper to create a suppression remedy for
evidence collected through a “systematic and intentional” statutory violation with Fourth
Amendment implications, it would be inappropriate to effect such an unprecedented expansion in
this case. First, Mr. Hassanshahi seeks to challenge administrative subpoenas directed at third
parties. As discussed, supra, it is far from clear that he even has the ability to do so, let alone the
ability to seek suppression of evidence obtained through a subsequent, separate and
constitutional search as a result of those subpoenas. Cf. Moffett, 84 F.3d 1294 (rejecting the
defendant’s attempt to suppress evidence that he claimed was collected from third parties in
violation of Section 876, stating that the court’s “supervisory power does not authorize us to
order suppression of ‘otherwise admissible evidence on the ground that it was seized unlawfully
from a third party not before the court.’”) (quoting United States v. Payner, 447 U.S. 727, 735
(1980)). Moreover, the Fourth Amendment implications of the DEA database are also unclear.
The Second Circuit observed in Clapper that the question of whether individuals have any
16
privacy rights in records held by third parties that contain metadata relating to their
telecommunications “touches an issue on which the Supreme Court’s jurisprudence is in some
turmoil.” Clapper, 785 F.3d at 821–25. The “turmoil,” however, is somewhat theoretical. As
the Foreign Intelligence Surveillance Court explained following Clapper, the Supreme Court’s
decision in Smith v. Maryland, 442 U.S. 735 (1979), which held that individuals have no
legitimate expectation of privacy in information that they voluntarily convey to a
telecommunications provider when placing a telephone call, remains controlling precedent. See
In re Application of the F.B.I., Misc. No. 15-01, 2015 WL 5637562 at **9–13 (FISA Ct. June 29,
2015). The Second Circuit declined to reach “these weighty constitutional issues” in Clapper,
785 F.3d at 824, and it would be even less appropriate for the Court to do so here, given that the
Court has already assumed the unconstitutionality of the DEA database for purposes of its
constitutional analysis and that it is unclear how the suppression analysis for a statutory violation
would be any different, as even Mr. Hassanshahi appears to concede at one point. See Def.’s
Apr. 13 Brief at 9 (arguing that “the Court need not reach the novel issue” in light of the
assumption of unconstitutionality).
In conclusion, the Court finds that even if Mr. Hassanshahi had the ability to challenge
the statutory validity of the DEA database and could demonstrate that evidence was collected in
violation of Section 876—issues the Court does not decide here 7—suppression of the evidence
would not be an available remedy. Therefore, Mr. Hassanshahi is left with his constitutional
7
To the Court’s knowledge, no court has ever ruled on the statutory validity of the DEA’s
database. The Court also notes that, contrary to Mr. Hassanshahi’s assertion that the Second
Circuit was unaware of the DEA database at the time of its opinion in Clapper and that its
decision provides precedent to suppress the evidence here, see Def.’s June 22 Brief at 13–17, the
Second Circuit in fact explicitly referenced the DEA database in its opinion and declined to
“opine as to whether the language of the statute pursuant to which the metadata were collected
authorized that program.” Clapper, 785 F.3d at 812–13 n.6.
17
challenge to the database as his only avenue for suppressing the evidence recovered from his
laptop computer.
B. Mr. Hassanshahi’s Constitutional Challenge
The Court next considers whether the newly disclosed details concerning the DEA
database and the Second Circuit’s decision in Clapper require the Court to reverse its prior
decision denying Mr. Hassanshahi’s motion to suppress the evidence on constitutional grounds.
In its prior decision, the Court explained that under the fruit of the poisonous tree
doctrine, an illegal search or seizure requires the exclusion at trial of not only the evidence seized
in violation of the Fourth Amendment, but also any evidence obtained as a result of that seizure
if the “seizure is a but-for cause of the discovery of the evidence (a necessary condition), and if
the causal chain has not become ‘too attenuated to justify exclusion,’” United States v. Brodie,
742 F.3d 1058, 1062–63 (D.C. Cir. 2014) (quoting Hudson, 547 U.S. at 592), “or, to put the
same point with another metaphor, if circumstances have not ‘purged [the evidence] of the
primary taint.’” Id. at 1063 (alteration in original) (quoting Wong Sun v. United States, 371 U.S.
471, 488 (1963)). The Court held that the exclusionary rule did not require suppression, because
“the causal chain leading to the discovery of the laptop evidence was too attenuated to justify
exclusion.” Hassanshahi, 75 F. Supp. 3d at 118 (internal quotation omitted).
In order to determine whether reversal of the Court’s decision is required, the Court
reviews each stage of its analysis and assesses whether and to what extent the newly disclosed
facts and Clapper might alter that analysis.
1. Existence Of An Unlawful Search Or Seizure
The Court’s preliminary inquiry was whether an unlawful search or seizure occurred. See
Hassanshahi, 75 F. Supp. 3d at 109. As discussed, the Court assumed that the law enforcement
18
database and HSI’s search of the database were unconstitutional. See id. This assumption was,
of course, favorable to Mr. Hassanshahi, and the Court maintains that assumption for purposes of
its analysis here. The Court need not determine whether the DEA database, as the Court now
understands it, was unconstitutional.
2. But-For Causation
The Court also found that the existence of but-for causation was “quite plain.”
Hassanshahi, 75 F. Supp. 3d at 109. The Court need not revisit that finding here, as it was also
favorable to Mr. Hassanshahi and remains unchallenged.
3. Attenuation and the Exclusionary Rule
As the Court explained in its prior opinion, the Supreme Court has identified three factors
for courts to consider when determining attenuation: (1) the amount of time between the
illegality and the discovery of the evidence (i.e., temporal proximity); (2) the presence of
intervening circumstances; and (3) the purpose and flagrancy of the illegal conduct. See Brodie,
742 F.3d at 1063 (citing Brown v. Illinois, 422 U.S. 590, 603–04 (1975)). The Government
bears the burden of proving attenuation by a preponderance of the evidence. See United States v.
Holmes, 505 F.3d 1288, 1293 (D.C. Cir. 2007); United States v. Wood, 981 F.2d 536, 541 (D.C.
Cir. 1992). The Court reviews its analysis of each of the three factors.
a. Temporal Proximity
The first factor is the temporal proximity between the illegality and the discovery of the
evidence. See Hassanshahi, 75 F. Supp. 3d at 110 (citing Brodie, 742 F.3d at 1063).
The Court observed that the Government’s affidavit showed that “more than four months
passed between the unconstitutional law enforcement database search on August 24, 2011, and
the forensic laptop examination on January 17, 2012.” Id. (citing Akronowitz Aff. ¶¶ 3, 21, ECF
19
No. 37-1). The Court found that “this several month gap—during which the Government
continued to investigate Hassanshahi through unrelated sources, including the use of preexisting
evidence in TECS [a database that the Department of Homeland Security uses in connection with
its border inspection processes] and the issuance of lawful subpoenas to Google—weighs in
favor of not suppressing the laptop evidence.” Id.
Neither the new factual details concerning the database nor the Second Circuit’s decision
in Clapper change the Court’s factual or legal analysis in any way, nor does Mr. Hassanshahi
offer any argument to the contrary. Accordingly, this factor continues to weigh against
suppressing the evidence.
b. Intervening Circumstances
The second factor in the attenuation analysis is “whether there were intervening
circumstances sufficient to break the causal chain and lessen the taint of the initial illegality.”
Hassanshahi, 75 F. Supp. 3d at 110 (citing Brodie, 742 F.3d at 1062–63).
The Court considered two intervening circumstances in its denial of the motion to
suppress. First, the Court found that Mr. Hassanshahi’s voluntary arrival at LAX in January
2012 was a relevant intervening circumstance, but the Court held that it was “uncertain how
much weight to give this event,” given the open constitutional question as to whether reasonable
suspicion was required for the Government’s forensic examination of the laptop. Id. at 111–12.
The Court held that it did not need to resolve the issue, because a second intervening
circumstance, HSI’s investigative steps following its discovery of the California telephone
number, “unambiguously weighs in favor of not suppressing the laptop evidence.” Id. at 112.
In making this determination, the Court looked to the “unlawful lead” principle, stating:
Federal courts have consistently held that the exclusionary rule does
not apply to subsequently discovered evidence when an initial
20
limited piece of information—typically the name of a potential
target for investigation—is obtained through an illegal search or
seizure because substantial investigating steps still are required to
uncover the necessary incriminating evidence.
Id. The Court acknowledged a long line of cases that have “refus[ed] to apply the exclusionary
rule to suppress evidence that was discovered during a later investigation following the initial
unlawful discovery of evidence that merely pointed law enforcement in the defendant’s
direction.” Id. The Court found that “[t]he circumstances here even more strongly compel
finding attenuation than in [those] cases because the law enforcement database revealed only the
slimmest of leads: the 818 number.” Id. at 113.
The Court also observed that, unlike typical “unlawful lead” cases in which the
defendant’s identity is discovered through the unlawful search, in this case, HSI had to take
additional steps to even identify Mr. Hassanshahi. See id. The Court found that HSI acted
lawfully by then subpoenaing Google for information about the owner of the telephone number
and that HSI’s subsequent four-month investigation prior to the forensic examination of the
laptop “primarily involved the use of information in TECS that existed before the initial database
search.” Id. The Court therefore concluded that “the discovery of the laptop evidence occurred
only through substantial and essential intervening events following the ‘unlawful lead’ that was
the 818 number, and this factor therefore weighs strongly in favor of not excluding the
evidence.” Id. This factor was central to the Court’s holding. See id. at 115 n.6 (stating that
“the Court . . . concludes that the attenuation exception applies in large part based on the
‘unlawful lead’ line of cases”).
The newly disclosed details concerning the database do not alter the Court’s conclusion
in any way; they only bolster it. The Patterson Declaration states that “[n]o subscriber
information or other personal identifying information was included in the database” and that it
21
consisted exclusively of the initiating telephone number, the receiving telephone number, the
date, time and location of the call, and the method by which the call was billed. Patterson Decl.
¶ 4. This confirms that, as the Court found in its prior opinion, the DEA database provided HSI
with only “the slimmest of leads” and that HSI had to conduct a further investigation to even
identify Mr. Hassanshahi.
Mr. Hassanshahi challenges the Court’s conclusion, claiming that the Government has
not “come clean even at this stage.” Def.’s Apr. 13 Brief at 6. He relies upon a news report
published by Reuters on August 5, 2013 concerning “[a] secretive U.S. Drug Enforcement
Administration unit” called the Special Operations Division (“SOD”) that the report states “is
funneling information from intelligence intercepts, wiretaps, informants and a massive database
of telephone records to authorities across the nation to help them launch criminal investigations
of Americans.” Id. (quoting Def.’s Apr. 13 Brief Ex. at 1, ECF No. 53-1). The news report
purports to rely on a secret Government document that instructs agents to “omit the SOD’s
involvement from investigative reports, affidavits, discussions with prosecutors and courtroom
testimony” and to “use normal investigative techniques to recreate the information provided by
SOD.” Id. at 6–7 (quoting Def.’s Apr. 13 Brief Ex. at 2). Mr. Hassanshahi suggests that the
Government’s disclosure of its subsequent search of TECS in a supplemental affidavit submitted
in opposition to his motion to suppress may have been “an attempt to ‘recreate’ an investigative
trail that originated with SOD[.]” On this issue, the Government states that “[w]hile it would not
be improper for a law enforcement agency to take steps to protect the confidentiality of a law
enforcement sensitive investigative technique, this case raises no such issue.” Gov’t’s Feb. 25
Brief at 3, n.2.
22
Though the Court does not necessarily share the Government’s view regarding the
propriety of the “recreation” technique, particularly if doing so involves providing false or
misleading information to a criminal defendant or the Court, the Court finds no basis for
concluding that the Government employed that technique here. Most significantly, Mr.
Hassanshahi’s theory is belied by the fact that the Government disclosed the existence of the
database at issue here, albeit with limited detail, from the very beginning of its prosecution. See
Aff. In Support Of Criminal Compl. ¶ 15, ECF No. 1-1 (“Using the business telephone number
associated with ‘Sheikhi’, I searched HSI-accessible law enforcement databases . . . .”). Had the
Government recreated its investigative steps to conceal potentially unlawful actions, it is hard to
believe that the Government would have freely made this disclosure. Moreover, the Court
already addressed Mr. Hassanshahi’s issue with respect to the timing and nature of the
Government’s disclosure regarding the TECS database search in its opinion denying his motion
to suppress, as Mr. Hassanshahi first raised it at oral argument on his motion. See Hassanshahi,
75 F. Supp. 3d at 105 n.1 (finding that “the second affidavit merely provides more information
about the HSI investigation than the first affidavit, which is not surprising given the different
purposes”).
The Court is thus satisfied that the newly disclosed information concerning the database
does not alter its conclusion that the Government’s investigative steps following the discovery of
the California telephone number, a minor lead in the case, constitute an intervening circumstance
that weighs heavily and unambiguously against suppressing the laptop evidence.
c. Purpose And Flagrancy Of The Illegal Conduct
The final factor in the attenuation analysis is the “purpose” and “flagrancy” of the illegal
law enforcement conduct. See Hassanshahi, 75 F. Supp. 3d at 101 (citing Brodie, 742 F.3d at
23
1063). “As a rule, courts generally ‘favor suppression’ only ‘if law enforcement officials
conducted the illegal search with the purpose of extracting evidence against the defendant, or if
they flagrantly broke the law in conducting the search.’” Id. (quoting United States v.
Washington, 387 F.3d 1060, 1075 (9th Cir. 2004)). Though the Court acknowledged that it was
“left slightly in the dark regarding the flagrancy element” given the lack of detail provided by the
Government at the time, the Court nevertheless unequivocally concluded that “HSI did not act
purposefully or in bad faith to violate Hassanshahi’s constitutional rights.” Id. at 114–15. In
making this determination, the Court took several factors into account.
First, the Court “surmise[d] . . . that the law enforcement database operates fairly
similarly to the NSA program, at least insofar as the database appears to include a repository of
aggregated telephone records for calls made into the U.S. from abroad.” Id. at 114. The Court
stated, however, that the “ambiguity” regarding the nature of the database complicated its
analysis. Id. The Court explained that if, for example, it treated the database as “functionally
equivalent to the NSA telephony program,” then the Court would “likely conclude that HSI acted
in good faith,” because courts had generally approved of the program and, at the time of HSI’s
search of the database, no court had deemed the program unconstitutional. Id.
The Court stated, however, that it did not “know with certainty whether the HSI database
actually involves the same public interests, characteristics, and limitations as the NSA program
such that both databases should be regarded similarly under the Fourth Amendment.” Id. In
particular, the Court noted that the NSA database “was specifically limited to being used for
counterterrorism purposes, and it remains unclear if the database that HSI searched imposed a
similar counterterrorism requirement.” Id. The Court speculated broadly that “[i]f the HSI
database did have such a limitation, that might suggest some level of flagrancy by HSI because it
24
was clear that neither Sheikhi nor Hassanshahi was involved in counterterrorism activities.” Id.
The Court nevertheless concluded that “even assuming that the HSI database was misused to
develop the lead into Hassanshahi, HSI’s conduct appears no more flagrant than law enforcement
conduct in other ‘unlawful lead’ cases, which still held that the attenuation exception applied
nonetheless.” Id. at 114–15 (citing United States v. Carter, 573 F.3d 418, 421 (7th Cir. 2009)
(admitting evidence after illegal search of defendant’s residence); United States v. Smith, 155
F.3d 1051, 1059 (9th Cir. 1998) (admitting evidence resulting from an “illegally intercepted wire
communication”); United States v. Friedland, 441 F.2d 855, 856 (2d Cir. 1971) (admitting
evidence after the “FBI unlawfully installed electronic ‘bugs’” in an office)).
The Court stated that it was “more certain, though, that HSI did not search the law
enforcement database for the purpose of ‘extracting evidence against the defendant.’” Id. at 115
(quoting Washington, 387 F.3d at 1075). The Court based this determination on the fact that,
when it searched the database, “HSI had no inclination that Hassanshahi was involved” and that
“the agency used the law enforcement database to cast a wide net for potential U.S.-based
suspects.” Id. Based largely on this determination, the Court found that the “purpose” and
“flagrancy” factor weighed against suppressing the evidence.
Mr. Hassanshahi argues that the newly disclosed information concerning the database
should materially alter the Court’s analysis of this factor. He argues that the newly disclosed
information demonstrates that the Government’s actions were “nothing but purposeful,” because:
the Government “essentially subpoenaed 100% of Americans’ telephony data and metadata for
decades, without any specific investigation pending, all in deliberate violation of the statute”; the
Government made the database “available to any and all comers, in deliberate violation” of the
statute; the Government took steps to conceal the true source of the information; and the
25
Government “did all this deliberately, purposefully and systematically, all while knowing for
certain of the statutory violations and with strong knowledge of the Fourth Amendment
implications if not outright violations.” Def.’s July 29 Brief at 3–4. He principally relies on the
Seventh Circuit’s opinion in United States v. Reed, 349 F.3d 457, 464–65 (7th Cir. 2003)
regarding the importance of the purpose and flagrancy factor and argues that the flagrancy and
purposefulness of the Government’s conduct in this case “far exceeds, in depth and scope, any
one-time violation such as was found flagrant in cases like Reed.” Def.’s July 29 Brief at 3–4.
The Court is not persuaded. As a preliminary matter, nearly all of Mr. Hassanshahi’s
points concern whether the Government purposefully violated Section 876, not the relevant
inquiry of whether it purposefully violated the Constitution. Moreover, Mr. Hassanshahi’s
factual assertions have little, if any, basis in the record. For example, the record does not
indicate that the Government “essentially subpoenaed 100% of Americans’ telephony data and
metadata for decades.” On the contrary, the Patterson Declaration states that the metadata
concerned only calls originating from the United States and calling foreign countries. See
Patterson Decl. ¶ 4. Also, as discussed, supra, there is no indication here that the Government
has taken any steps to conceal the true source of the information, and Mr. Hassanshahi offers no
support for his assertion that the Government “[knew] for certain” that it was violating a statute,
which no court has ever decided. Mr. Hassanshahi’s reliance on Reed is also misplaced. First,
contrary to Mr. Hassanshahi’s assertions, the Seventh Circuit did not hold that the misconduct in
that case required suppression; it remanded the case to the district court to consider whether the
unlawful actions were taken to advance the investigation or “embark on a fishing expedition” as
“relevant” to the suppression analysis. Reed, 349 F.3d at 465–66. Second, in Reed, unlike this
case, the Seventh Circuit upheld the district court’s determination that there were “no intervening
26
circumstances sufficient to purge the taint of the allegedly illegal arrest.” Id. at 464. As
explained, supra, the Court’s finding of intervening circumstances in this case weighs heavily
against suppression and is central to its holding.
Perhaps the most glaring flaw in Mr. Hassanshahi’s briefing on this issue is his failure to
engage with the Court’s prior analysis of the purpose and flagrancy factor and demonstrate what
exactly about the new information should alter the Court’s analysis. For the sake of clarity,
however, the Court will revisit its analysis in light of the new information and Clapper.
Most significantly, the newly disclosed information does not in any way change the
Court’s critical conclusion that HSI did not search the law enforcement database in order to
target Mr. Hassanshahi. Regardless of any other factual developments since the Court’s prior
opinion, it remains clear that when HSI searched the DEA database, it had no indication that Mr.
Hassanshahi had any involvement in the matters it was investigating and that HSI was unable to
even identify Mr. Hassanshahi until after it lawfully obtained information from Google. Given
that the Court concluded on this basis that the purpose and flagrancy factor counseled against
suppression, this is sufficient for the Court to determine that reconsideration of this factor is
unjustified.
Nevertheless, the Court observes that the newly disclosed information resolves some of
the ambiguity described in the Court’s prior opinion concerning whether the Court could treat the
database at issue here as “functionally equivalent” to the NSA’s database and whether HSI
“misused” the database to develop the lead into Mr. Hassanshahi. It is now clearer that the DEA
database was similar in many important respects to the NSA’s database. For instance, the
Patterson Declaration largely confirms the Court’s hypothesis that the DEA database contained
records of international telephone calls, except the Court now understands that the records
27
concerned calls originating in the United States, rather than abroad. See Patterson Decl. ¶ 4. The
Court also now understands that the records were limited to specific types of metadata that did
not include any personal identifying information. These records appear to have actually been
narrower in scope than the records stored in the NSA’s telephony database. See Clapper, 785
F.3d at 793–97 (describing orders under the NSA program calling for “all call-detail records or
‘telephony metadata’” of all domestic and international calls).
The DEA database also appears to have differed in some other ways. Most notably, the
Court now understands that the DEA originally collected the information contained in the
database and that HSI accessed it for a different purpose. 8 See Patterson Decl. ¶ 5. Though the
Court speculated in its prior opinion that if the database was limited to a purpose not relevant
here, it “might suggest some level of flagrancy,” the Court is satisfied, upon consideration of the
supplemental briefing on this issue, that HSI’s subsequent search of the database does not
suggest that the Government purposefully and flagrantly violated the Fourth Amendment, given
well-established precedent that “[e]vidence legally obtained by one police agency may be made
available to other such agencies without a warrant, even for a use different from that for which it
was originally taken.” Jabara, 691 F.2d at 277. See also Johnson v. Quander, 440 F.3d 489,
498–500 (D.C. Cir. 2006) (holding that the Government’s access to a database containing a
defendant’s “genetic fingerprint” lawfully collected while he was on probation after the
defendant’s probation terminated and for a different purpose did not constitute a separate search
for Fourth Amendment purposes). Moreover, as the Court explained in its prior opinion, even
8
Mr. Hassanshahi also observes that the NSA’s program involved oversight by the Foreign
Intelligence Surveillance Court, whereas the DEA’s database was compiled using administrative
subpoenas, yet he does not offer any reason to find that the use of administrative subpoenas—a
well-established and legitimate power authorized by Congress—suggests a flagrant
constitutional violation. See Def.’s June 22 Brief at 6–7.
28
assuming that HSI “misused” the DEA database, its conduct appears no less flagrant than other
“unlawful lead” cases in which courts have applied the attenuation exception. See Hassanshahi,
75 F. Supp. 3d at 114–15.
In its prior opinion, the Court stated that if it treated the database at issue as “functionally
equivalent” to the NSA’s program, then it would likely conclude that HSI acted in good faith,
because courts have generally approved of the NSA’s program and because no court at the time
of the search had disapproved of it. Cases decided since the Court’s opinion do not require any
alteration to that analysis. The Court noted that the one exception at the time of its decision was
Judge Leon’s opinion in Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). The D.C. Circuit
has since vacated that decision on standing grounds. See Obama v. Klayman, 800 F.3d 559
(D.C. Cir. 2015). Nor does the Second Circuit’s decision in Clapper affect the Court’s prior
analysis, as the Second Circuit declined to reach the constitutional issues in that case. Though
there are differences between the two, the Court is now more comfortable viewing the DEA
database and the NSA’s program as “functionally equivalent” for purposes of the Court’s
analysis here, which only bolsters the Court’s earlier conclusion regarding the purpose and
flagrancy factor of the attenuation analysis.
* * * *
In sum, while the newly disclosed information concerning the DEA database provides
helpful clarity, the Court finds that none of the new information, nor Clapper or any other
developments in the legal landscape, alter the Court’s prior conclusion that all three attenuation
factors weigh against suppression and that the new information only confirms the Court’s prior
29
holding that the exclusionary rule does not require suppressing the laptop evidence in this case as
fruit of the poisonous tree. 9
V. CONCLUSION
For the foregoing reasons, Defendant Shantia Hassanshahi’s motion for reconsideration is
DENIED.
SO ORDERED.
Dated: November 19, 2015 RUDOLPH CONTRERAS
United States District Judge
9
The Court also rejects Mr. Hassanshahi’s request, in the alternative, for an evidentiary
hearing to explore “the extent and operation” of the DEA database. Def.’s June 22 Brief at 17.
The Court finds that, for the reasons provided in this opinion and in the Court’s prior opinion,
Mr. Hassanshahi has not identified any unresolved factual issues that could alter the Court’s
conclusion.
30 | 01-03-2023 | 11-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7023695/ | JUSTICE EGAN delivered the opinion of the court: The defendant, Ildyko Elofsson, appeals from an order entered in a forcible entry and detainer action declaring a forfeiture in her lease and ordering her to surrender possession to the plaintiffs. On July 29, 1987, the named plaintiff, “2450 Lake View Trust,” initiated a forcible entry and detainer action against the defendant for possession of her apartment, which is located in a cooperative building at 2450 North Lake View in Chicago. On March 29, 1988, the court granted the plaintiff’s oral motion to amend the complaint by substituting plaintiffs, Joseph Moss, Michael Reiser, Gustave A. Bermudez and Lawrence Levy, as trustees of a 1922 trust indenture for the plaintiff “2450 Lake View Trust.” The complaint sought possession of the defendant’s apartment after a fire occurred in the apartment. The trustees claimed that the defendant had allegedly breached the lease by failing to provide the trustees access following the fire. The complaint further claimed that the defendant failed to remedy her breach within 30 days after receiving a notice of termination of tenancy. After a bench trial, the judge entered judgment in favor of the plaintiffs for possession of the defendant’s unit. The defendant has advanced three grounds for reversal: 1. 2450 Lake View Trust was not a legal entity with capacity to sue, and the complaint was improperly amended to substitute the trustees as plaintiffs; 2. The notice of termination served on the defendant was legally defective on its face; and 3. The evidence failed to establish a breach of the lease on the defendant’s part. Since we have determined that the record supports the defendant’s argument on the third ground advanced, we need not address the first two, although we will discuss the notice of termination and what was done after the defendant received it. 2450 Lake View Avenue is a residential cooperative apartment building consisting of 13 floors and 11 cooperative apartment units. A trust indenture, dated July 1, 1922, governs the ownership of the building and the apartment units within it. Although the residents jointly “own” the building, the terms of the trust indenture provide that four trustees manage the trust and actually hold legal and equitable title to the building. Non-trustee residents own certificates of interest, or shares, which give them a beneficial interest in the building and its proceeds. As in 1922, the trustees and the beneficiaries occupy the building’s eleven cooperative apartment units. The trust indenture authorizes and directs the four trustees to maintain the property, keep the books and records, pay the bills, hire and fire employees and generally run the building. They operate essentially as a board of directors. The trustees employ the management company of Wolin-Levin, Inc., to manage the building’s day-today affairs; Robert Levin supervises the building for Wolin & Levin. The trustees also employ seven other persons, including Philip Boboc (Boboc), the resident engineer who lives on the first floor, Charles Duffy (Duffy), and Mike Dorgan (Dorgan), doormen and elevator operators. In accordance with their explicit power to execute leases, the original trustees executed the initial lease for the ninth floor of the building on May 1, 1924. In 1980 this lease was duly assigned to Mrs. Elofsson, a native of Hungary. Consequently, she is a residential unit owner of the ninth floor. Elofsson’s apartment is extremely valuable. It was suggested in oral argument that the property is worth at least $1 million. Of the 11 cooperative units (excluding the first-floor unit occupied by the building engineer), all but two units occupy an entire floor. The nine single-floor units are located on floors 4 through 12 and measure approximately 8,300 square feet each. The two remaining units are split-levels and are located on floors 2 and 3; they measure approximately 4,300 square feet each. The plaintiffs Moss and Bermudez occupy the smaller split-level units. Elofsson occupied the larger single unit on the ninth floor with her husband, Masud Mazhar; her son, Christian Elofsson; her baby-sitter/housekeeper, Helena, and at various times, her stepson Jamal. The lease obligated Elofsson to “allow the lessors at reasonable hours every access” to the premises. The four trustees are the plaintiffs, Joseph Moss, Michael Keiser, Lawrence Levy and Dr. Gustave Bermudez. Joseph Moss, a non-practicing lawyer, is experienced in real estate. He had lived with his family and a maid on the third floor of the building for five years. Three years before the trial he inspected Elofsson’s apartment with a sales agent; he was interested in purchasing the unit. Because of his real estate experience, the trustees entrusted Moss with supervising the management company and with generally taking care of things concerning the building. Moss would consult with the other trustees when he thought it necessary to do so. Michael Keiser co-owned Recycled Paper Products, a greeting card publishing company located in Chicago. He had lived on the top floor of the building for approximately eight years and had been a trustee for several years. Lawrence Levy was chairman of the Levy Organization, which included real estate, restaurant and newsstand businesses. He had lived on the eighth floor of the building for 10 years and had been a trustee for two years. Dr. Gustave Bermudez was a medical doctor. He had lived with his wife on the third floor of the building for 16 years and had been a trustee since 1975. A fire occurred in Elofsson’s apartment at approximately 9 a.m. on April 30, 1987. The fire originated in a sauna room which was located off the kitchen and which had been a part of the apartment since Elofsson moved into it. Her housekeeper, Helena, had placed a towel over an electrical heater in the sauna, and the towel ignited. Elofsson ran to get the fire extinguisher, then called for the elevator and telephoned the fire department. Helena, the housekeeper, Duffy and Frank, another elevator operator, and Boboc, the maintenance engineer, attempted to help Elofsson. Boboc testified that he could not pinpoint the location of the fire, but he saw flames coming from the wood. He attempted to use the fire extinguisher for only two or three seconds before he had to get out of the sauna. He could not “handle himself” because too much smoke got into his eyes. He “fell almost down to the floor.” He felt in a “bad situation” and went to the window to breathe. The fire department came within minutes. The fire did not spread beyond the sauna. Both Moss and Levin were notified of the fire at approximately 9:15 a.m.; they immediately proceeded to the building. The fire department had already left. When Levin entered the building’s lobby, he smelled smoke, but it was not apparent to him that there had been much smoke damage. Neither Moss nor Levin was able to see any fire damage other than smoke. There was no evidence of any structural damage to the building or to any other apartment in the building. When Moss got to the building he could see smoke in the lobby, and Duffy informed him that the smoke came from the Elofsson apartment. Duffy, Moss and Levin went to the apartment. When the three men exited the elevator on the ninth floor, they found the door from the elevator lobby to Elofsson’s apartment half-open. Duffy called out to Elofsson and announced their arrival. Elofsson informed them that she was not clothed and requested that they wait until she dressed. Duffy waited by the elevator, and Moss and Levin waited to enter further into the apartment. They waited between 5 and 10 minutes. Elofsson went to her bedroom, washed her hands and face, put on a robe and greeted them. Moss told her that he and Levin wanted to inspect the damage from the fire. Moss observed that Elofsson was “properly agitated,” “a little nervous, a little anxious, angry.” Elofsson told the men to follow her; she then walked Moss and Levin back towards the kitchen while Duffy stayed at the elevator door. Moss testified that, as the three approached the kitchen, “Mrs. Elofsson drew her finger across an imaginary line [at the entry to the kitchen] and said, ‘That’s as far as you go, no more.’ ” Moss did not wait; he turned without a word and left without seeing any damage. Although Moss saw and smelled smoke in the unit, he could not see any damage. A week after the fire, Moss told Boboc that he (Boboe) was going to be a witness. Moss “thought” that he had instructed Bo-boc to inspect the apartment the day after the fire. Levin, on the other hand, testified that Elofsson did not give them entry to her apartment beyond the entrance foyer. He could not recall being in the kitchen; he only remembered seeing the foyer of the unit. He believed that after being asked by Elofsson to wait a few minutes, she then asked them to leave. He did not believe that Moss proceeded any further into the apartment than he did. He did not recall walking through the apartment. He was in the apartment for “maybe several minutes.” He also testified that he left the apartment -without seeing any damage from the fire. Moss, however, specifically testified that Levin walked alongside him into the apartment. Elofsson testified that, as she walked into the kitchen, she told her housekeeper, Helena, to put a rug down because the area was extremely dirty and messy from the fire. (The plaintiffs did not dispute the condition of the floor. However, neither Moss nor Levin remembered Elofsson saying anything about wanting to clean up the area.) She also testified that Moss responded, “We haven’t got the whole day to wait.” She said, “[If you don’t wait,] [t]hen that’s how far you go.” At that point, Moss threw his keys into the air and said to Levin, “Let’s go.” Moss and Levin departed immediately without any farther words. Elofsson asked them to “Please call [her] attorney and make an appointment to come in if [they wanted] to see the damage.” Moss could not recall saying that he did not have the time to wait. Levin testified that Elofsson did tell them to call her attorney. Both Moss and Levin admitted that they were in the apartment for only a few minutes. According to Moss only one minute elapsed from the time he walked from the apartment’s foyer to the kitchen until the time he left the apartment. He never attempted to return to the apartment after that date. From April 30, 1987, until the time Duffy served Elofsson with a notice of termination on June 15, 1987, Moss never personally requested that Elofsson permit him into her apartment. He never instructed his managing agent, Wolin-Levin, Inc., to gain permission to enter her apartment. Similarly, Levin never personally demanded to see Elofsson’s unit after April 30, and he did not think that any of his agents demanded to do so. Levin was never asked to return to the unit, and he never did go back. When Elofsson called for the elevator around noon on the day of the fire, Duffy asked her how bad the fire damage was. She invited him in, and they walked to the sauna together. He looked at the sauna and expressed his regrets to her. She testified that she told Duffy, “[I]f anybody else would like to see it, just bring the people up [whether] I am home or not.” Duffy was called in rebuttal and denied that either Elofsson or her husband ever told him that Moss or any of the trustees could inspect the apartment. (His denial does not specifically rebut Elofsson’s testimony.) Duffy admitted that he was in the apartment after the fire; but he said he never personally saw the damage to the sauna. He did not explain why he was in the apartment after the fire. Elofsson’s 14-year-old son, Christian, returned from school at approximately 4 p.m. on the day of the fire. Dorgan, another doorman and elevator operator, met him in the lobby and told him about the fire. Dorgan took Christian up in the elevator and asked him to ask his mother whether he could see the fire damage. Dorgan was invited into the apartment, and Elofsson, Christian and Dorgan went into the kitchen and sauna areas. Dorgan looked at the sauna for about “thirty seconds or so,” expressed his regrets and then left. Mrs. Elofsson’s testimony corroborated that of her son. Dorgan was not called to rebut the testimony of Christian Elofsson or that of his mother. Elofsson left the country the first weekend of May and returned June 8. She received the notice of termination on June 15. When she received the notice of termination she called her attorney, Edward LeVine, and read him the notice, which informed her as follows: “YOU HAVE defaulted in the terms of your Proprietary Lease for the above accommodations [2450 North Lake View, Unit 9, Chicago] as follows: YOU HAVE failed to allow the Lessors reasonable access to the aforesaid premises in violation of Article First, Paragraph 5 of the Proprietary Lease. YOU ARE FURTHER NOTIFIED that as a result of the aforesaid defaults, your Proprietary Lease and your Right to Occupy said premises thereunder, will expire and terminate within thirty (30) days of the date of service of this notice. UNLESS you promptly comply with the above, suit will be instituted for possession together with the costs of such proceeding.” On LeVine’s advice, Elofsson tried to contáct Moss. She had to ask Dorgan for Moss’ telephone number. She telephoned Moss sometime between June 15 and July 5. She identified herself to a woman who answered and asked if she could leave a message for Mr. Moss. She telephoned a second time a week later and asked a woman who answered if she could speak to Mr. Moss. Moss did not come to the telephone, and Elofsson left a message for him. She was not sure if it was the same woman with whom she had previously spoken. Neither Moss nor any of the other trustees ever asked to see her apartment. She continued to pay her rent to Levin; she delivered the rent to him a couple of times when she was downtown. Moss testified that no one told him that Mrs. Elofsson had called. Gloria Odens, a secretary employed by the defendant’s attorney, testified that she telephoned Mr. Levin on the instructions of her employer. Because Mr. Levin was not in his office she left a message with the girl at his office that she was “calling from Wayne and LeVine on behalf of Mrs. Elofsson and that it would be all right to come up and look at [Elofsson’s] apartment at 2450 Lake View at their convenience.” The judge later struck all of Odens’ testimony on the ground that it was not proper rebuttal. We believe this ruling was an abuse of discretion, but the defendant makes no issue of the ruling and the judge later accepted the testimony as though it was in the record. Levin admitted that he spoke to LeVine several times between the date of the fire and July 15. He did not relate the substance of any of the conversations. He also recalled speaking with someone from LeVine’s office. At the close of the evidence the judge made an analysis of the evidence and what we construe to be findings of fact. He said that he had a very difficult time deciding the case. If he ruled for the plaintiffs, the defendant was in a bad position, first, because she would be forced to sell under an adverse ruling; second, because the buyers would eventually learn of the adverse ruling. He recognized the animosity between the people involved and that at least one trustee “wants to kick her out. If he could kick her out tonight, he would.” (There was some evidence of previous disputes between Elofsson and at least one other tenant.) He said that any prospective buyer would find out and that she would be “forced to sell and they [would] squeeze her on the money *** so she [would be] put in a very adverse position.” The judge acknowledged that “it was not a reasonable time for them to inspect while [Mrs. Elofsson] was standing behind the door nude, so she told them to wait until she went and got dressed.” He said that after she got dressed, “She let them into the apartment. She led them, so I find it was a reasonable time for them to inspect. And she acknowledged their right.” However, they never determined the extent of the fire on that day within that short period of time. “Moss was looking for something to get her out. They didn’t like her, although there’s not much evidence about that *** but the trustees wanted her out. Maybe it was just Moss, but he was a trustee and maybe he was looking for things.” (Emphasis added.) He further acknowledged that Elofsson was in a state of anxiety and was not thinking in terms of the lease. He also recognized that “Moss grabbed onto it right away because he is in the real estate business and he maybe knew that that was a default” so Moss said, “okay and tossed his keys up and said ‘good-bye.’ He was gone in a minute. ‘You don’t want to let me in, good-bye,’ and [he] walked away and walked out, and he never tried to go back again. Maybe he knew legally he had her on a breach of the lease and she knew.” The judge again recognized that there were animosities between the people and concluded, “so [Elofsson] had to be above reproach like Caesar’s wife in regard to her legal obligations.” He believed that Elofsson went to Europe after the fire but ruled that because she had been the “last actor,” because she had stopped the inspection, “the volley-ball or the ball swung to her *** [T]he ball shifted to her to see to it that the apartment was accessible and to be inspected by proper authority.” He also indicated that he believed that Elofsson probably told Moss to contact her attorney to make an appointment to inspect her apartment, but he ruled that Moss was not obligated to do that. The judge also indicated that he believed that Elofsson attempted to telephone Moss twice, but he held that “she had to do more than that because Moss never came. Maybe he never came because he didn’t like her or he didn’t want to because he felt ‘I’m going to wait until this 30 days goes by after June 15th and we’re going to squeeze her, we’re going to sue her.’ So she sat by and she made the two calls. That was it.” (Emphasis added.) He believed Elofsson’s testimony that the plaintiffs’ employees came into the apartment. Specifically, one came in to read the meter which was a short distance from the sauna and that he could “kind of peek over to see what happened.” He said, “[T]hat was the inspection right there, but they were not the proper authorities to look, although they could have been delegated.” (Emphasis added.) But, he added, “There’s no evidence that the trustees delegated them to go and look and see that damage *** That was her obligation to prove of going forward [sic].” (We point out that Elofsson’s testimony that Dorgan examined thé fire damage was unrebutted.) The judge ruled that Elofsson had violated the lease by not giving the trustees the right to inspect and that “she should have been pushing hard. She could have gone down there and knocked on [Moss’] door and said, ‘Now, look, it’s six o’clock. I know you’re home’ or connected with the doorman and said, ‘Mr. Moss, I’m not giving you any written notice, but come on in and inspect.’ *** [S]he had to do something to overcome the weight of the notice that was pressing her. *** She had to do more.” Consequently, the judge found that Elofsson did not “effectively notify or arrange an inspection where common sense or knowledge, maybe legal knowledge, was required.” After that summation he ruled that Elofsson had breached her lease by failing to provide access and that the plaintiffs were entitled to possession. We find it impossible to reconcile the judge’s findings of fact and analysis of the evidence with his ultimate conclusion that the plaintiffs had established their right to a forfeiture. We also believe that he misconstrued the duties imposed on the parties by the lease and by the law. The judge, in effect, held that Moss had taken advantage of the situation that unexpectedly arose which was, in military parlance, a target of opportunity, and that Moss prepared to loose a cannonade. The judge’s holding is supported by the evidence. Of particular significance is Boboc’s testimony that only one week after the fire, long before any letter of termination was sent, Moss told him that he was going to be a witness. This testimony clearly indicates that Moss had made up his mind at that time to remove Elofsson by court action. In view of the judge’s observation of the obligations of Elofsson to act like “Caesar’s wife,” it is appropriate to discuss the obligations of Moss. During oral argument the plaintiffs’ attorney agreed with the statement made by the defendant’s attorney that Moss was a fiduciary to the defendant. But, he added, Moss was also a fiduciary to all the other beneficiaries. The plaintiffs argue that it was Moss’ duty to examine the fire damage for the benefit of the other beneficiaries; their safety was in question. As the plaintiff Levy put it, the trustees were concerned about their inability to see the damage because they could not tell if there were “systemic” problems that would affect the other people in the building. He said, “It wasn’t the amount of damage that was done, it was the threat to the life safety of everybody else who lived in the building.” Levy, who lived in the apartment just below Elofsson’s, took no steps to determine whether there was any “systemic” problem nor did he direct anyone else to inspect Elofs-son’s apartment. If, in fact, the trustees were concerned about any potential danger to the safety of the other residents, their complete inertia after the confrontation between Elofsson and Moss reflects a disregard for their fiduciary obligations to the other residents. Similarly, Moss’ perfunctory request to examine the premises and his precipitous departure do not speak well of his attitude toward the other residents. One concerned with their safety would have remonstrated with Elofsson or cajoled or begged her, or threatened her with the legal consequences. It is more reasonable that the trustees knew that there was no compelling reason to inspect the premises. With respect to Moss’ obligation to Elofsson, as a trustee he was a fiduciary to Elofsson as a matter of law. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 495, 147 N.E.2d 69, 73.) Regardless of the nature of the trust, the obligation of a trustee to a beneficiary is the same: The trustee is charged with equitable duties toward the beneficiary. It is the trustee’s duty to serve the interest of the beneficiary with complete loyalty, excluding all self-interest. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841.) It is our judgment that the judge’s findings, which, we repeat, are supported by the record, are not findings that Moss fulfilled his fiduciary obligation to Elofsson. The fiduciary obligation of Moss to Elofsson, however, should not becloud the primary issue, which is whether Elofsson breached the lease by refusing access at a reasonable hour. In our judgment, the record fails, as a matter of law, to show a willful breach of the agreement to permit access at reasonable hours. The term “reasonable hours” is not restricted to a reasonable time of day. Common sense dictates that it be construed to mean under “reasonable circumstances” as well. The request itself should be made in a reasonable manner. The judge acknowledged that Elofsson was in a state of anxiety and was not thinking in terms of the lease. Her mental state was understandable. We construe the judge’s remarks to mean that he believed Elofsson’s testimony as to what occurred between her and Moss and Levin. Her testimony does not disclose a refusal of access under the circumstances that would support a forfeiture. We also believe that, as a matter of law, Elofsson made it clear, before the notice of termination had been sent, that the premises were available for inspection. We further believe that, as a matter of law, the premises were inspected pursuant to the lease. Elofsson’s son, Christian, testified that he saw Boboc looking around in the sauna room with a flashlight about three or four days after the fire. Boboc and Duffy both admitted that they were in the apartment after the fire but could not remember why they went there. Christian Elofsson also testified that Dorgan was permitted to examine the fire damage at Dorgan’s request. Elofsson testified to the same effect. Dorgan never refuted that testimony. The judge’s remarks can be construed only as an acceptance of the testimony of Christian and Elofsson. The judge held, however, that any inspection by Boboc, Duffy or Dorgan was legally insufficient because there was no proof that the trustees had delegated authority to inspect to any of those employees. We do not understand the basis of the judge’s holding. We note that Article Second, paragraph 4, of the lease provides that the lessee shall “at all reasonable times allow the representatives of the lessors to enter and inspect the demised premises for the purpose of determining the necessity and character of any such repairs or other work.” (Emphasis added.) It does not make sense that representatives could examine the premises on certain occasions but only trustees could on other occasions. Any doubts in the language of the lease will be construed in favor of the lessee. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.) Significantly, the notice of termination was signed by an agent of the trustees. The trustees did not take the position that so important a step could not be delegated. Finally, we refer again to Moss’ testimony that he thought he instructed Boboc to inspect the apartment the day after the fire. In sum, the overwhelming evidence establishes that proper representatives of the plaintiff did inspect the premises. Even assuming for the sake of argument that the evidence established that the confrontation between Elofsson and Moss on the day of the fire constituted a breach on her part, and that the premises were not inspected by proper persons, we believe the judge also erred in concluding that the defendant was obligated to do more than she did after she received the notice of termination. There is nothing in the lease which spells out what steps a lessee must take to notify the lessor of attempts to cure any breach. Again, any ambiguity in the lease will be resolved in favor of the lessee. It would serve no purpose to prolong this decision by repeating the evidence which the judge apparently believed, and properly so. The record shows the defendant’s good-faith efforts to disabuse the trustees of any notion that she was denying them access to her apartment. Suffice it to say that her efforts were reasonable under the circumstances. A party seeking to enforce a forfeiture provision bears the burden of proving that the right to a forfeiture clearly and unequivocally exists and that the exercise of forfeiture does not result in injustice. (Bocchetta v. McCourt (1983), 115 Ill. App. 3d 297, 450 N.E.2d 907.) In addition to the failure of the plaintiffs to meet their burden of proof that there was a breach, entry of a forfeiture here will result in gross injustice. For these reasons, the judgment of the circuit court is reversed. Reversed. LaPORTA, P.J., and CERDA, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2441359/ | 968 N.E.2d 1070 (2012)
360 Ill. Dec. 317
PEOPLE
v.
MICKLES.
No. 109568.
Supreme Court of Illinois.
May 1, 2012.
Petition for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3160430/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 29, 2015 *
Decided December 7, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 15-1752
CHRISTOPHER GOODVINE, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 13-CV-1057
GEORGE MONESE,
Defendant-Appellee. Lynn Adelman,
Judge.
ORDER
Christopher Goodvine, a Wisconsin inmate, suffers from mental illness and has a
history of self-harm and suicide attempts. In this action under 42 U.S.C. § 1983,
Goodvine claims that a prison psychiatrist violated the Eighth Amendment by not
intervening to forestall a suicide attempt that left him seriously injured. The district
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1752 Page 2
court granted summary judgment for the defendant. Because we conclude that the
district court should have recruited counsel for Goodvine, we vacate the judgment and
remand for further proceedings.
Goodvine suffers from personality and mood disorders and has harmed himself
repeatedly. In August 2012 he was admitted to the Wisconsin Resource Center, a
mental-health treatment facility within the state’s Department of Corrections, after
overdosing on pain medication and lacerating his arms. Goodvine had been treated
previously at WRC by the defendant, psychiatrist George Monese. Dr. Monese
conducted an intake interview, classified Goodvine as a “high” suicide risk, and noted in
his report that Goodvine had been taking the antipsychotic drug Seroquel. Dr. Monese
also documented Goodvine’s account of chronic suicidal ideation but observed that
Goodvine tends to harm himself when he does not get his way.
A month later, Goodvine’s treatment at WRC had concluded. On October 1, 2012,
Goodvine told Dr. Monese that he was depressed about his impending discharge from
WRC and vowed to kill himself to avoid returning to a regular prison. Afterward, in his
progress notes, Dr. Monese questioned whether Goodvine’s acts of self-harm were
primarily volitional rather than impulsive.
Nine days later, on October 10, Goodvine surrendered a stash of Seroquel and
Tylenol pills that he had hoarded, he said, for a suicide attempt. After being briefed by
the nursing staff, Dr. Monese discontinued the Seroquel prescription. Four days after
that, on October 14, Goodvine prepared a will and also requested a standard “Do Not
Resuscitate” directive specifically covering October 16 and 17. The next morning, at
eight o’clock, Dr. Monese met in the dayroom with Goodvine, who wanted the Seroquel
prescription reinstated. Goodvine avers that before leaving he told Dr. Monese he was
“imminently suicidal” and likely would harm himself immediately if returned to his cell.
But Dr. Monese insists—as he then wrote in his progress notes—that Goodvine had
mentioned ongoing, though fleeting, thoughts of self-harm and said that he didn’t
intend to hurt himself right then. Dr. Monese’s notes say that, when confronted about
the will and Do Not Resuscitate directive, Goodvine had attributed them to an earlier
bout of depression.
After this meeting Goodvine was returned to his cell. Guards did not search him
or the cell, and he was not placed on heightened monitoring for suicide risk. Within
hours, Goodvine had covered his cell window and lacerated his right arm. A guard,
noticing the covered window, instructed Goodvine to uncover it and alerted medical
No. 15-1752 Page 3
staff. They found Goodvine still conscious, though blood was streaming down his arm
and pooling on the floor. Dr. Monese and paramedics attended Goodvine before he was
taken to the hospital. After an overnight stay he was released to WRC and then, two
days later, returned to prison.
Goodvine sued Dr. Monese, claiming that he violated the Eighth Amendment by
doing nothing to lessen the risk of self-harm after learning during the October 15
meeting that Goodvine was presently suicidal. The district court, after denying three
requests from Goodvine to recruit counsel, granted summary judgment for Dr. Monese.
The court reasoned that a jury could not find the psychiatrist liable for deciding against
additional precautions after the October 15 meeting, since the evidence is undisputed
that Dr. Monese did not believe Goodvine to be at immediate risk, and also that
Goodvine was being closely monitored by WRC staff.
On appeal, Goodvine challenges the adverse ruling at summary judgment and
also contends that the district court abused its discretion in not recruiting counsel.
Because we conclude that counsel should have been recruited for Goodvine, we do not
discuss the grant of summary judgment.
Though district courts may recruit counsel for indigent litigants, 28 U.S.C.
§ 1915(e)(1), there is no right to an appointed lawyer in civil litigation, Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014). But we have noted on several occasions that lawsuits
involving complex medical evidence typically are more difficult for pro se litigants, as
are cases involving a defendant’s state of mind. See Santiago v. Walls, 599 F.3d 749, 761
(7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc); Swofford v.
Mandrell, 969 F.2d 547, 552 (7th Cir. 1992); but see Romanelli v. Suliene, 615 F.3d 847, 852
(7th Cir. 2010) (rejecting categorical rule that claims of deliberate indifference are always
too difficult for pro se litigants). This case presents both challenges.
In declining to recruit counsel for Goodvine, the district court reasoned that the
detail, clarity, and organization of his complaint suggested not only that Goodvine was
capable of communicating with the court and the defendant, but also that he knew what
was necessary to prove his Eighth Amendment claim, that he could request discovery
from the defendant, and that he could present his own affidavits and evidence. These
factors certainly bear on Goodvine’s capacity to represent himself, but they have little to
do with the need for medical evidence. Goodvine may have understood the necessity of
showing that Dr. Monese departed from accepted professional standards when he did
not order greater restrictions after their meeting on October 15. See Henderson v. Ghosh,
No. 15-1752 Page 4
755 F.3d 559, 566 (7th Cir. 2014) (concluding district court abused discretion in not
recruiting counsel where inmate’s claim of deliberate indifference required expert
medical evidence and proof of defendant’s state of mind); Greeno v. Daley, 414 F.3d 645,
658 (7th Cir. 2005) (pointing out that inmate’s claim of deliberate indifference was
“legally more complicated than a typical failure-to-treat claim because” expert testimony
likely would be required to assess adequacy of treatment inmate had received). But
without a lawyer to assist him in locating expert testimony, Goodvine had no way to
assemble the necessary evidence. See Henderson, 755 F.3d at 566 (pointing out that, as an
inmate, plaintiff lacked ability to engage medical expert); Santiago, 599 F.3d at 762
(noting that presenting evidence of prison doctor’s state-of-mind “is one of the more
challenging aspects of section 1983 litigation”). Thus, the district court went beyond the
bounds of its discretion when it refused to recruit counsel.
Furthermore, Goodvine was prejudiced by the district court’s decision.
See Santiago, 599 F.3d at 765 (explaining that this court reviews totality of circumstances
to determine if there was reasonable likelihood that presence of counsel would have
altered outcome); Pruitt, 503 F.3d at 654 (noting that “[e]ven if a district court's denial of
counsel amounts to an abuse of its discretion, we will reverse only upon a showing of
prejudice”). Indeed, in granting summary judgment for the defendant, the district court
repeatedly cited a lack of evidence demonstrating that a minimally competent
psychiatrist would have taken additional steps to prevent Goodvine from harming
himself on October 15. But Goodvine could not produce this type of medical evidence
without assistance from a lawyer. See Junior v. Anderson, 724 F.3d 812, 816 (7th Cir. 2013)
(“All these gaps cry out for evidence that a lawyer could obtain but the plaintiff could
not.”); Pruitt, 503 F.3d 659–60 (explaining that litigant’s poor performance before trial or
inability to engage in necessary investigation may establish that appointing counsel
would have changed outcome).
The judgment is VACATED, and the case REMANDED for further proceedings
consistent with this order. | 01-03-2023 | 12-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2103362/ | 422 N.W.2d 324 (1988)
228 Neb. 275
CHIEF INDUSTRIES, INC., Appellee,
v.
HAMILTON COUNTY BOARD OF EQUALIZATION, Appellant.
No. 86-059.
Supreme Court of Nebraska.
April 21, 1988.
*325 Michael J. Owens, Hamilton Co. Atty., for appellant.
Norman H. Wright of Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.
*326 BOSLAUGH, CAPORALE, and GRANT, JJ., and RIST and CLARK, District Judges.
CLARK, District Judge.
This is an action on appeal from a finding of the Hamilton County Board of Equalization (hereinafter board), regarding the 1984 real property tax assessment of the taxpayer, Chief Industries, Inc. (hereinafter Chief). Chief owns and operates a trailer-manufacturing facility consisting of seven buildings located in Hamilton County near the city of Aurora. For tax year 1984, the Hamilton County assessor found the actual value of Chief's property to be $1,608,125. Chief appealed to the board on the bases that the valuation was set too high and that it was not equalized with other real property in Hamilton County, particularly agricultural land. The board affirmed the assessor's action, and Chief appealed to the district court.
Although Chief's appeal was premised on both theories presented to the board, at trial Chief conceded that its property was assessed at actual value and based its argument only on the issue of failure of the assessor to equalize the assessment with those on agricultural land in Hamilton County. Initially, at the board level, Chief sought a reduction to $1,206,093, i.e., a 25-percent reduction. However, after introduction of evidence at the district court trial, Chief was granted leave to amend its prayer to request a reduction of actual value to not greater than $737,808. The board cross-appealed to the district court, seeking an increase in the assessor's valuation.
At trial the district court determined that the actual value of Chief's property as of January 1, 1984, was $1,608,125, as determined by the assessor. The district court further found that the board had systematically valued agricultural land in Hamilton County at 50 percent of its actual value for taxation purposes and that the valuation of Chief's property must be equalized with the values of other real property in Hamilton County. The district court accordingly ordered that the valuation of Chief's property for 1984 be set at $804,062, and found that all taxes levied and/or collected on assessed values exceeding that figure were illegally levied and collected, were a denial of equal protection, and were ordered refunded.
On appeal, the board makes five assignments of error, which may be summarized as follows: (1) The court erred in allowing Chief to amend its petition at trial to reflect a request for a reduction in valuation of its property to an amount less than that originally stated in its protest filed before the board of equalization; (2) the court erred in allowing Chief to present evidence (a study conducted by William Fischer) which Chief had failed to disclose to the board in pretrial discovery; and (3) the court erred in finding that the board had failed to equalize the valuation of Hamilton County property and in reducing the assessment of Chief's property to 50 percent of its actual value.
We first note that an appeal from the district court concerning action by a county board of equalization is heard as in equity and reviewed de novo. Kearney Convention Center v. Board of Equal., 216 Neb. 292, 344 N.W.2d 620 (1984); Fremont Plaza v. Dodge County Bd. of Equal., 225 Neb. 303, 405 N.W.2d 555 (1987). A taxpayer may question the assessed value (actual value) of its real estate, the lack of proportionate and uniform valuation of the property, or both issues, in a proceeding before a board of equalization. Gordman Properties Co. v. Board of Equal., 225 Neb. 169, 403 N.W.2d 366 (1987); Fremont Plaza v. Dodge County Bd. of Equal., supra.
"Neb.Rev.Stat. § 77-1511 (Reissue 1986) restricts a taxpayer's appeal to a consideration of questions raised before the board of equalization, and the court is without power to adjudicate any other factual question or issue in the taxpayer's appeal." (Emphasis supplied.) (Syllabus of the court.) Gordman Properties Co. v. Board of Equal., supra.
The board cites Nebraska Telephone Co. v. Hall County, 75 Neb. 405, *327 106 N.W. 471 (1906), in support of its claim that Chief should not have been allowed to amend the dollar amount of relief sought. In that case, the taxpayer argued excessive valuation to the board based on capitalization of gross receipts. In the district court, the taxpayer argued that the use of pole value multipliers was erroneous because the pole count was incorrect. We held that the latter issue was not raised before the board and could not be raised in district court. Other cases have used a similar rationale. See Reichenbach Land & Loan Co. v. Butler County, 105 Neb. 209, 179 N.W. 1015 (1920), where the taxpayer failed to argue before the board but argued in district court that the value of bank stock and shares was not assessable at all. See, also, Reimers v. Merrick County, 82 Neb. 639, 118 N.W. 113 (1908), where the taxpayer argued before the board that the property in question was acquired after the assessment date, and in district court argued that the assessment statute was unconstitutional. Also, in Gordman Properties, supra, the taxpayer had consolidated appeals for the years 1983 and 1984. In the 1983 hearing, the issue before the board was based solely on the excessiveness of the assessment, but on appeal the taxpayer added the allegation that the value of its property had not been proportionately equalized with all other property. We held that this latter issue had not been presented to the board and therefore could not be considered on appeal. The distinction, though, is that in these cases there was a different issue presented before the court than was presented to the board. In the instant case, the issues presented in district court were the same as presented to the board, i.e., the alleged overvaluation of Chief's property and the failure of the assessor to equalize the value of Chief's property with other real property in Hamilton County. There was no change of issues, merely a change in the level of economic relief sought. The board's contention in this regard is without merit.
In regard to the board's assignment of error relating to admission of evidence not disclosed in pretrial discovery, it is noted that the trial court, after first sustaining the objection, conducted an evidentiary hearing in this regard. This hearing disclosed considerable confusion between counsel as to whether Fischer's data had been made available to the board. Following this hearing, the court reversed its ruling and allowed the evidence to be introduced. An offer of continuance of trial was declined by the board. Trial courts have broad discretion with respect to sanctions involving discovery procedures. Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985) ; Cardenas v. Peterson Bean Co., 180 Neb. 605, 144 N.W.2d 154 (1966). We cannot say the trial court abused its discretion in allowing this evidence to be admitted. Further, it would appear from the record that when the exhibit was reoffered, the board withdrew its objection. The board, therefore, cannot now be heard to complain of error in this regard.
At trial, Evelyn Zehr, the assessor for Hamilton County, was called as a witness for Chief. She testified that the method used to evaluate Chief's property was the Marshall Valuation Service manual, which was prescribed by the Nebraska Department of Revenue for use in valuing improvements, and that this publication was used uniformly throughout Hamilton County. Pursuant to the formula set out in this manual, she first arrived at new construction cost, then deducted depreciation. She also inspected the premises. Zehr found the actual value of Chief's property on January 1, 1984, to be $1,608,125.
Zehr further testified that the Nebraska Agricultural Land Valuation Manual was used exclusively for valuation of unimproved agricultural land. This manual, also prescribed by the Nebraska Department of Revenue, used a valuation technique of capitalization of earnings based on yield production of various types of soil and the geographical location of the land.
Zehr was aware of a Department of Revenue study based on 21 arm's-length sales of unimproved agricultural land which indicated a sales-assessment ratio of 47.74 between the assessment of such agricultural *328 land and comparable sales of such land; i.e., assessed values were at 47.74 percent of what the property sold for on the open market. There was no attempt by Zehr to correlate the land valuation manual process with the fair market value of unimproved agricultural property.
Chief also presented testimony by Dennis Donner, manager of technical services for the Nebraska Department of Revenue for 10 years. Donner holds a bachelor's degree in business administration and has completed specific educational courses in appraisal, valuation, and statistical analysis. He has testified in state and federal courts concerning the use and credibility of the sales-assessment ratio.
Donner testified that part of his duties is the compilation of the annual sales assessment study referred to by Zehr. He defined the sales assessment study as a "measure that measures selling price compared to assessed value by county by classification of property." The information relied on to compile the study is derived from forms sent in by county assessors on arm's-length transactions involving sales of real estate according to classifications of property and the actual selling price thereof. This study is used by the State Board of Equalization and Assessment for intercounty equalization.
Donner further testified that land values in the Nebraska Agricultural Land Valuation Manual set out specific dollar figures that are assigned to different land classification groups and that assessors are required to use these values according to the soil survey in their respective counties. He testified that his sales assessment study for Hamilton County was based on 21 arm's-length sales and that this was a sufficient number of transactions to make the study valid. He felt that the sales-assessment ratio of unimproved agricultural land would be a good indication of the overall midpoint of the typical sale in relationship to assessed value, i.e., the ratio that is represented in the study (47.74 percent) for unimproved agricultural land is reflective of the entire agricultural unimproved spectrum in Hamilton County for January 1, 1984. He testified that if 100 percent valuation is the goal, agricultural land valuation in Hamilton County should be increased in accordance with the percentages indicated in his study.
William C. Fischer, a real estate appraiser for 22 years, a member of the American Institute of Real Estate Appraisers, and a member of the National Association of Realtors, also testified on behalf of Chief. Fischer supervised a study of open market transaction sales of Hamilton County agricultural land for a period extending from 8 months before to 8 months after January 1, 1984, to compare assessed valuation of such land with the actual sale prices. Every real estate transaction in the Hamilton County clerk's office was examined. Out of the 411 transactions examined, all which could not be considered open market transactions were discarded, and Fischer arrived at 31 arm's-length transactions for the purposes of the study. In regard to these 31 sales, the witness classified each property according to (1) actual consideration; (2) total assessed value; (3) percentage of assessed value to actual value; (4) breakdown of actual land value to assessed land value; and (5) improvements by actual and assessed values. Most of the 31 sales were verified by Fischer by consultation with the realtors or parties involved and by reference to Hamilton County records. Also, he had personally inspected most of the 31 properties.
He, further, did a land classification study to determine what classifications of soil were involved in the 31 sales. This information was obtained from the assessor's records. Fischer defined a sales-assessment ratio as being the assessed value divided by the total actual consideration on the verified sale. He also testified that the size of the parcels (40 to 280 acres) appeared to have no effect on the sale price. He did admit that if a person had to sell agricultural land as a larger tract, he probably would get less than if he sold it in smaller properties. In his opinion, most of the 31 properties probably were not economic units in and of themselves and that probably one-half of them were sold to next-door neighbors and the other half to *329 someone within a 5- to 10-mile radius. The results of Fischer's compilation were furnished to Gary Hoeltke, another witness, for his use in arriving at a sales-assessment ratio of agricultural lands.
Fischer then testified that he had appraised Chief's property using the three normal approaches: cost, market, and income. In his opinion, Chief's property's value under the cost approach was $1,675,000; under the income approach, was $1,600,000; and under the market data approach, was $1,640,000. He then correlated the three values into a final figure, basing his final figure on which approach he thought was the best approach or a combination of the three approaches. Fischer gave his opinion that the actual value of Chief's property on January 1, 1984, was $1,650,000.
Another expert witness for the plaintiff was Gary Hoeltke, a psychologist and a senior vice president of Selection Research, Inc., of Lincoln, Nebraska. Hoeltke's doctorate from the University of Nebraska-Lincoln is in educational psychology and measurement, with a specialty in statistics and research. Hoeltke examined and reviewed Fischer's study of 31 agricultural sales and found them to be representative of the land in the county, in that they comprised a "miniature Hamilton County" in terms of land classification within the county. Hoeltke then studied the 31 agricultural sales and compared them with the land classification charts of the Nebraska Agricultural Land Valuation Manual used by the assessor to derive an estimate of the sales-assessment ratio for agricultural lands included within that data. Hoeltke concluded that it was his opinion, with 95 to 99 percent confidence, that the average of the agricultural land would fall between 43 and 53 percent in terms of its sales-assessment ratio, with the median being approximately 47 percent. He further testified that six other arm's-length agricultural sales which had been excluded by Fischer also fell in the range of 43 to 53 percent. He pointed out that the study made by Donner was virtually identical to his own conclusions, i.e., 47.74 percent, based on 21 sales.
Hoeltke gave as his opinion that the 1984 sales-assessment ratio of all agricultural land in Hamilton County would be in the range of 43 to 53 percent.
The board then presented testimony of James P. Scott, an associate professor of decision science and chairman of the department of management, marketing, and information systems at Creighton University. Scott testified that he was familiar with the sales-assessment ratios and with the procedure employed by Donner, Fischer, and Hoeltke in gathering the statistical data used in their studies. He felt that data collected by Chief's witnesses were not sufficiently representative to be valid and also pointed out that the parcels sold were smaller than the average farm size in Hamilton County.
Scott suggested that a better procedure would be to take a random sampling of parcels of agricultural lands in the county and then have them appraised by certified appraisers. He felt that sales in the open market are not valid for giving a representative sample of lands which did not sell.
Frank W. Frost testified that he had appraised Chief's property for the board using the cost, market, and income approaches, and by actual inspection of the property. Using the cost approach Frost found the value of Chief's property to be $1,759,675; using the market approach he found it to be $1,675,750; and using the income approach it was found to be $1,677,000. After correlating these results he arrived at his opinion that the actual value of Chief's property was $1,700,000 on January 1, 1984.
Frost further testified he had examined Donner's study and Fischer's summary of 31 agricultural land sales. He criticized these studies on the grounds that the average agricultural land sale was 118 acres, whereas the average farm size in Hamilton County was 416 acres. Frost felt that the sale prices of smaller units of agricultural land might tend to distort rather than to verify the actual value of agricultural land, since such units were not "economic ... operating" units. He felt that if a farm is *330 assessed as a total operating entity, the sales-assessment ratio should be determined from a study of sales of such operating units. Frost testified that he did not consider sale price to be synonymous with actual value, and felt that only the income approach should be used to value agricultural land.
Frost did admit that farms have sold for years, all across Nebraska, in smaller units and that the sale of entire farm units is rare. He further agreed the sales-assessment ratio of "non-economic," or smaller, parcels is about 47 or 48 percent in Hamilton County.
The next witness for the board was Bruce Johnson, associate professor of agricultural economics at the University of Nebraska-Lincoln. Johnson stated that the average size of farms in Hamilton County was about 400 acres, including leased ground. He stated that the Nebraska Agricultural Land Valuation Manual is based on earning potential based on soil classification. He felt that a sales-assessment ratio is an imperfect measure when dealing with production property such as agricultural land. Johnson admitted, however, that the agricultural land market may be, in essence, an agricultural parcel market, i.e., where agricultural lands are not sold as whole farm units. Johnson agreed that in the marketplace for agricultural land, parcelization and/or consolidation by existing owners is not only the rule, but almost the absolute rule.
Chief then called Carl D. Novak, an evaluation specialist, as a rebuttal witness. Novak has a doctorate in educational psychology and measurement from the University of Nebraska-Lincoln. He gave his opinion that the data used by Donner, Fischer, and Hoeltke were accurate and probably were the best available. In regard to Scott's opinion that sales are not valid for giving a representative value of lands which did not sell, Novak states that obviously land not sold cannot have a sales-assessment ratio. Therefore, the only question is whether or not there is reason to believe only undervalued land sold. Novak found "very little" to persuade him that the sample was not representative merely because it was only farmland that was sold. This witness found that Fischer's sample was both adequate and representative, including in geographical distribution, in that the agricultural lands were randomly spread over the entire county.
Novak further felt that the opinion that sales of larger farm units would produce a higher sales-assessment ratio was not true and that, in fact, in the sample of 31 agricultural sales, the larger parcels have the lower sales-assessment ratios. He further stated that the statistical figure of the size of an average farm is misleading since it is arrived at by dividing the total number of acres by the number of farmers, e.g., if there were 860 farmers and if one farm was 260,000 acres, then the other 859 farms would be 100 acres each.
This witness testified that he independently verified Dr. Hoeltke's findings and found them to be valid.
Neb.Rev.Stat. § 77-201 (Reissue 1986) requires all tangible property and real property to be valued at its actual value for purposes of taxation. "`Actual value' has been held many times to mean exactly the same as market value or fair market value." Kearney Convention Center v. Board of Equal., 216 Neb. 292, 300, 344 N.W.2d 620, 624 (1984); Fremont Plaza v. Dodge County Bd. of Equal., 225 Neb. 303, 405 N.W.2d 555 (1987). The evidence in this case clearly reflects, in our opinion, that Chief's property was valued at its actual value by the assessor and that the trial court was correct in its finding in this regard.
Neb. Const. art. VIII, § 1, requires that "[t]axes shall be levied by valuation uniformly and proportionately upon all tangible property...."
In an appeal from an action of a county board of equalization, the taxpayer has the burden of proving the contention that the value of the taxpayer's property has not been fairly and proportionately equalized with all other property, resulting in a discriminatory, unjust, and unfair assessment. In such a case, there is a presumption *331 that a board of equalization has faithfully performed its official duties in making an assessment and has acted upon sufficient competent evidence to justify its action, which presumption remains until there is competent evidence to the contrary. Such presumption disappears when there is competent evidence on appeal to the contrary, and from that point on the reasonableness of the valuation becomes one of fact based on the evidence, with the burden of showing the valuation to be unreasonable resting upon the appellant. Gordman Properties Co. v. Board of Equal., 225 Neb. 169, 403 N.W.2d 366 (1987); Fremont Plaza v. Dodge County Bd. of Equal., supra.
In this case, the evidence shows that the assessor arrived at her valuation of agricultural lands in Hamilton County solely by using the Nebraska Agricultural Land Valuation Manual, which is based only on earnings potential arrived at by classification of soil. No attempt was made by the assessor to correlate this evaluation with other techniques of assessment. The evidence produced by Chief, based on studies by the state Department of Revenue and by its own experts and involving arm's-length transactions, clearly showed that agricultural land in Hamilton County was systematically undervalued in Hamilton County by 43 to 53 percent of its actual or fair market value. This evidence was sufficient to dispel the presumption that the assessor had properly performed her official duties in making the assessment. Chief's experts established by clear and convincing evidence that the two dissimilar methods used by her in the assessment of the different types of property resulted in the disparity between assessment of urban and agricultural properties in Hamilton County, and further that this disparity caused a discriminatory and unjust assessment of Chief's property.
The evidence offered by the board, while critical of the statistical methods used by Chief's experts and by Donner in his study for the Nebraska Department of Revenue, has failed to satisfactorily refute the evidence of Chief showing that its property was disproportionately assessed in relation to agricultural lands in Hamilton County.
The right of a taxpayer whose property alone is taxed at 100 percent of its true value is to have its assessment reduced to the percentage of that value at which others are taxed. See, Fremont Plaza v. Dodge County Bd. of Equal., supra; Kearney Convention Center v. Board of Equal., supra.
Applying that principle to this case, we find that the district court was correct in reducing Chief's assessment by 50 percent. The judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3157649/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
STEPHEN AGUIAR, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-0240 (ESH)
)
DRUG ENFORCEMENT ADMINISTRATION, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
On September 30, 2015, the Court granted defendant’s motion for summary judgment on
all issues except “the issue of whether the mapping software sought by plaintiff is an agency
record.” (Order, Sept. 30, 2015 [ECF No. 39].) The Court deferred ruling on that issue “to
allow defendant to supplement the record by filing an affidavit from someone with personal
knowledge that supports the description of the mapping software in its legal briefing, in
particular that the software is a commercially available mapping software and that the terms
upon which the DEA obtained the software preclude it from sharing it with other end users.”
(Id.) The Court also directed defendant to mail a copy of the CD with the GPS tracking data to
plaintiff and to notify the Court when it had done so. (Id.)
On November 10, 2015, defendant filed a supplemental declaration and notified the Court
that it had mailed plaintiff with a copy of the CD with the GPS tracking data on October 21,
2015. (See Def.’s Notice of Compliance with Court’s September 30, 2015 Order, Nov. 10, 2015
[ECF No. 43] & Exhibit 1 thereto (Supplemental Decl. of Katherine L. Myrick, Nov. 10, 2015
[ECF No. 43-1]).) Plaintiff filed a response that confirmed he had received the CD, but also
reported that he had been unable to read the information due to the absence of the necessary
software on the inmate computer in conjunction with prison regulations that limit his ability to
access a mapping program via the Internet. (Pl.’s Mot. to Reconsider Interlocutory Order at 2,
Nov. 19, 2015 [ECF No. 44].) Thus, in the event the Court concludes that the DEA’s mapping
software is not an agency record, plaintiff seeks an order directing the government to provide
him with “a means to read the unreadable data” on the CD. (Id. at 3.) Noting that the DEA and
the Bureau of Prisons are both part of the Department of Justice, plaintiff contends that the
computer located in the Unit Manager’s office at the prison is “essentially the U.S. Department
of Justice’s property,” giving this Court “authority to ensure that [p]laintiff is able to read the
data provided by [d]efendant.” (Id.)
On the question of whether the GPS mapping software is an agency record, the
supplemental declaration states the following:
7. Both the field office that conducted the investigation and surveillance of
plaintiff, and the DEA office responsible for the procurement of surveillance
equipment and systems were contacted with regard to plaintiff’s request.
8. The response from both offices was that DEA was not in possession or control
of any system or software that was responsive to plaintiff’s request.
(Supp. Myrick Decl. ¶¶ 7-8.) Defendant’s declaration. albeit for reasons different than those
contemplated by the Court’s Order, is sufficient to establish that the GPS mapping software used
by the DEA at plaintiff’s criminal trial is not an agency record. Accordingly, defendant is
entitled to summary judgment on that one remaining issue.
As for plaintiff’s request that the Court order the government to provide him with a
means to read the CD, the Court does not have the power to issue such an order in this FOIA
case. As noted, the DEA has fully complied with its obligations under the FOIA. See, e.g.,
Sample v. Bureau of Prisons, 466 F.3d 1086, 1089 (D.C. Cir. 2006) (“Once BOP, in its role as
FOIA respondent, has provided the records [sought by plaintiff], its FOIA obligation is
2
complete.”) Once the FOIA case is resolved, the fact that plaintiff is unable to access that
information in the manner he wishes due to prison restrictions is not a matter that can be
addressed by this Court. See id. (“If BOP – in its role as [plaintiff’s] custodian – then decides to
limited or prohibit access to the material, any question raised by that decision is not before us.”).
Accordingly, plaintiff’s motion asking the Court to reconsider its September 30, 2015 Order will
be denied.
A separate Order accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: November 24, 2015
3 | 01-03-2023 | 11-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2543805/ | 51 So.3d 468 (2011)
DURAN
v.
STATE.
No. 3D10-947.
District Court of Appeal of Florida, Third District.
January 5, 2011.
DECISION WITHOUT PUBLISHED OPINION
Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154926/ | 963 A.2d 167 (2008)
WALSH
v.
U.S.
No. 05-CF-630.
District of Columbia Court of Appeals.
November 5, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054765/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 11, 2004 Session
CITIZENS FIRST BANK v. ANDREW N. HALL
Direct Appeal from the Circuit Court for Morgan County
No. 6314C Hon. Russell Simmons, Jr., Circuit Judge
No. E2003-02678-COA-R3-CV - FILED JANUARY 24, 2005
The Trial Court entered Judgment for plaintiff on loan to defendant and set off the amounts of certain
forged checks on defendant’s accounts with bank against plaintiff’s recovery. We affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, J., joined.
Billy P. Sams, Oak Ridge, Tennessee, for appellant.
James Frank Wilson, Wartburg, Tennessee, for appellee.
OPINION
Plaintiff Bank brought action to recover on loan made to defendant. Defendant
counter-claimed, alleging that Bank had honored forged checks on his accounts and that he was
entitled to a set-off against the loan. The Trial Court, after hearing evidence, entered Judgment for
plaintiff on the loan in favor of the Bank, found in favor of defendant as to certain checks on his
counter-claim, but ruled in favor of the Bank on a $4,000.00 forged check drawn on defendant’s trust
account. Defendant has appealed to this Court.
Defendant has not presented a separate statement of the issues, as required by the
Rules, (Rule 27 Tenn. R. App. P.,) but the first sentence of his argument states:
Did the trial court err or apply the wrong standard of revue [sic] in determining that
Andrew N. Hall has not carried his burden of proof that he gave notice before the one
year?
The issue is inartfully drawn, but we frame the issue for review as to whether defendant’s failure to
review his bank statements, discover any irregularities and notify the Bank, precludes his counter-
claim against the Bank. The Bank has essentially raised this issue in its brief.
The Bank initially brought this action in Sessions Court on a promissory note
executed by the defendant, and was awarded Judgment on the note, plus attorney’s fees. Defendant
appealed the total Judgment of $12,358.68 to the Circuit Court, where defendant filed a counter-
claim setting out that he had “suffered the loss of $5,313.13 in funds wrongfully paid” to the forger.
In his counter-complaint he set forth the checks at issue, dated March 6, 2002 - $140.00, March 8,
2002 - $200.00, April 4, 2002 - $4,000.00, April 12, 2002 - $57.26, May 6, 2002 - $320.00, May 15,
2002 - $140.00, May 17, 2002 - $455.87. Defendant averred that he learned of the forgeries on or
about May 17, 2002 and immediately informed the Bank.
At the conclusion of the evidentiary hearing, the Trial Court ruled that plaintiff was
entitled to recover on its note against the defendant, and as to the counter-claim, said that the parties
agreed that the check in the amount of $455.87 could not be verified as having been cashed, and was
taken out of the claim, reducing the claim to $4,857.26.
The Trial Court continued that the evidence showed that the checks at issue were on
two accounts, one being a trust account and the others on an office account, and the evidence
“showed Andrew Hall first discovered irregularities in the trust account when a check on it was
dishonored. The check was presented on April 18, 2002 and returned on April 19, 2002. The Court
continued that when Andrew Hall was notified by the Bank he called the Bank and discovered that
a $4,000.00 check had been cashed on the account. The Court concluded that Andrew Hall has not
carried his burden of proof that he made claim on that check before the one year statute expired. The
Court further explained, “on discussion of the matter with the employee, Andrew Hall indicated he
fired the employee, but rehired her when she pleaded with him. He also had an agreement that she
would pay back the $4,000.00, which he claimed she never paid back. Andrew Hall did not enter
any testimony that he made a specific request to the Bank, either in writing or verbally to cover this
particular check.” The Court concluded he made no claim to cover this forgery until after he was
sued by the Bank.
The factual findings of the Trial Court are afforded a presumption of correctness, and
will not be overturned on appeal unless the evidence preponderates against them. See, Tenn. R. App.
P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). However, with respect to legal issues,
the review is de novo, with no deference to the conclusions of law made by the lower courts.
Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
The well-settled rule in forgery cases as between the customer and the bank, is the
-2-
bank must bear the loss where money has been paid as a result of a third party forging the drawer’s
signature on a check. Kaley et al v. Union Planters Nat’l Bank of Memphis, 775 S.W.2d 607, 609
(Tenn. Ct. App. 1988).
If the Bank can show that the depositor failed to exercise ordinary care with respect
to duties imposed in Tenn. Code Ann. 47-4-406(c), then it will not be liable on the forgeries. Tenn.
Code Ann. 47-4-406(d).
Inquiries as to the application of the Statute, T.C.A. § 47-3-406 are highly factual.
See, Bank/First Citizens Bank v. Citizen’s & Assoc., 825 S.W.3d 259 (Tenn. 2002). The evidence
does not preponderate against the Trial Court’s finding on the $4,000.00 check honored by the Bank.
The evidence establishes that it was the Bank’s procedure when notified of a forgery to have the
depositor make an Affidavit of Forgery. No such Affidavit was completed as to this check. While
defendant testified that he told a Bank employee over the phone that the $4,000.00 check was a
forgery, his actions support the Trial Judge’s conclusion that he did not make a claim against the
Bank for this forgery until this suit was filed. Hall testified that he became aware of the $4,000.00
check drawn on his trust account on Saturday, after April 4. He testified that he checked his mail
and that he had a statement from the Bank that a check he had written to the Juvenile Court Clerk
“had bounced”, which was in the amount of a little over $2,500.00. He then called the Bank to
enquire about why the check bounced, and the bank employee went over his account and advised that
Angela Davis had cashed the $4,000.00 check at a drive-in window for a loan. He testified that he
told the Bank employee that she had forged the check, but he then deposited money in the bank so
that the Clerk’s check would clear, and he fired his employee, Angela Davis, but then changed his
mind and “gave her another chance”. She agreed to repay him the $4,000.00.
The Bank insists that Hall’s negligence precludes any recovery, in that he hired a
known thief as an employee, didn’t take proper precautions, and then rehired her on the same date
he fired her for stealing from him. Also, he left his check books where dishonest employees could
easily access them. He failed to check and reconcile his bank statements in a timely manner, and in
his letter of June 5 to the Bank requesting copies of the checks, he did not explain why he needed
the checks. The Trial Court’s remarks did not address the issue of negligence and proximate cause
directly, rather, the Trial Court focused on defendant’s conduct in terms of whether timely notice was
given. Since the Court awarded a set-off for the office account checks, it is implicit in his ruling that
the plaintiff did not establish defendant’s conduct was negligent and the proximate cause of these
losses.
The Bank insists that Hall never made a claim for the $4,000.00 forgery until a year
had elapsed, and if a claim had been made, the Bank would have taken an Affidavit of Forgery and
credited Hall’s account. As stated earlier, the evidence does not preponderate against the Trial
Court’s finding on this issue. In sum, Hall, when learning of the forgery, did not make a claim
against the Bank but deposited monies to cover the overdraft and sought to recover from the forger.
He did not formally make a claim until the counter-claim was filed in this action.
-3-
On the Bank’s issue of whether Hall was entitled to credit for the remaining forged
checks, the evidence does not preponderate against the Trial Court’s findings. Tenn. R. App. P.
13(d). Hall testified that when he fired and rehired his employee, he did not know that she had
access to his account on which these checks were forged. Hall testified when he learned of these
forgeries, he closed the office account and opened another account with the Bank in late May, and
told the Bank employee about the forgeries in his office account. Hall testified that when he went
to the Bank in September of 2002 to renew his note, the President of the Bank asked him what was
going on, and that he told the President that he couldn’t pay off the note because checks forged on
his account had put him in the hole. While the Bank’s President disputes this testimony, the Court
obviously credited Hall’s recounting of this conversation because it commented that “a delay of three
months was not unreasonable” in giving notice to the Bank, which apparently referred to the
September 2002 meeting between the Bank’s President and Hall, and the Court additionally found
“that the reasons for the transaction were discussed, the notice was given to the Bank . . . the Bank
was notified as to the office account.” The evidence does not preponderate against the Trial Court’s
finding that the defendant was entitled to the set-off for those checks. Tenn. R. App. P. 13(d).
For the foregoing reasons, we affirm the Judgment of the Trial Court and remand,
with the cost of the appeal assessed one-half to Citizens First Bank and one-half to Andrew N. Hall.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
-4- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/25052/ | UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-10011
_______________________
TEDDY ROBINSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON,
Respondent-Appellee.
_______________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:98-CV-127-C)
_________________________________________________________________
August 14, 2001
Before DAVIS and JONES, Circuit Judges, and BARBOUR*, District
Judge.
PER CURIAM:**
Teddy Robinson, Texas prisoner # 506648, appeals the
district court’s denial of his motion under Federal Rule of Civil
*
District Judge for the Southern District of Mississippi, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Procedure 60(b)(1). Because we find that the district court’s
denial of Robinson’s motion was neither in obvious conflict with
any clear statutory mandate nor a fundamental misconception of the
law, we hold that the district court did not abuse its discretion
and affirm.
The procedural posture of this case is somewhat
convoluted. In December 1988, Robinson was convicted by a Texas
jury of first degree murder and sentenced to 99 years imprisonment.
On May 14, 1998, Robinson filed a 28 U.S.C. § 2254 application for
a federal writ of habeas corpus. Robinson argued that although his
§ 2254 application was filed more than a year after the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into
effect, it should not be treated as time-barred because, inter
alia, the prison law library’s failure to obtain a copy of AEDPA
until April 14, 1997 constituted a state-created impediment that
prevented the filing of a timely application. Robinson argued that
AEDPA’s one-year limitations period on the filing of habeas
applications should be equitably tolled in recognition of his lack
of access to AEDPA. The district court dismissed the § 2254
application as time-barred, noting that Robinson had failed to show
circumstances sufficient to warrant equitable tolling. Robinson
next filed a motion for a Certificate of Appealability (“COA”) in
2
the district court, which was denied. Robinson’s motion for COA
was subsequently also denied by this court.
Robinson’s next tactic was to invoke Federal Rule of
Civil Procedure 60(b) in an effort to have the judgment of
dismissal against his § 2254 application set aside.1 The district
court denied Robinson’s Rule 60(b) motion and then construed
Robinson’s notice appeal as an application for COA, which it
denied.
Finally, this court granted a COA on the issues of
whether the prison library’s failure to obtain a copy of AEDPA
until April of 1997 either warranted equitable tolling or
constituted a state-created impediment within the meaning of 28
U.S.C. § 2244(d)(1)(B). See Robinson v. Johnson, No. 00-10011 (5th
Cir. Sept. 26, 2000)(unpublished). Thus, this court must review
the district court’s denial of Robinson’s Rule 60 (b) motion.
The denial of a Rule 60(b) motion is examined for abuse
of discretion, such that “[i]t is not enough that the granting of
relief might have been permissible, or even warranted, denial must
have been so unwarranted as to constitute an abuse of discretion.”
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
1
Fed. R. Civ. P. 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a
party or a party’s legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; . . .
3
In this circuit Rule 60(b) may be invoked “only to rectify an
obvious error of law, apparent on the record.” Hill v.
McDermott,827 F.2d 1040, 1043 (5th Cir. 1987). Thus, Rule
60(b)(1) “may be employed when the judgment obviously conflicts
with a clear statutory mandate or when the judicial error involves
a fundamental misconception of the law.” Id. As a sister circuit
has observed, the denial of a Rule 60(b) motion by the district
court will be reversed on appeal “only if we find a complete
absence of a reasonable basis and are certain that the district
court’s decision was wrong.” Johnston v. Cigna, 14 F.3d 486, 497
(10th Cir. 1993).
Proper invocation of Rule 60(b) therefore presents a very
high bar which Robinson does not clear. First, Robinson’s argument
that the lack of AEDPA in the prison library warrants equitable
tolling is clearly foreclosed by this court’s decision in Felder v.
Johnson, 204 F.3d 168, 171-173 (5th Cir. 2000). We noted that lack
of immediate access to AEDPA in a prison library is “not among
those ‘rare and exceptional’ conditions that warrant deviation from
both the express rules Congress has provided and the grace-period
we have already granted prisoners whose convictions were final
before AEDPA’s effective date. To hold otherwise would characterize
as ‘rare and exceptional’ circumstances that countless other
prisoners could claim as their own.” Felder, 204 F.3d at 173.
4
Second, the district court’s holding that the lack of
AEDPA in the prison library did not create a state created
impediment within the meaning of § 2244(d)(2) is not the sort of
fundamental mischaracterization of the law requiring reversal of its
denial of Robinson’s Rule 60(b) motion. While there is authority
from one circuit that the lack of AEDPA in a prison library may
constitute a state created impediment,2 the decisions of this court
do not support that position. A panel of this court recently
determined that the absence of AEDPA from a prison library was not
a state-created impediment where the petitioner was aware of the
existence of the statute but did not know its specifics. See
Balawajder v. Johnson, No. 99-10807 (5th Cir. April 5,
2001)(unpublished). This court has also repeatedly held that an
inadequate prison law library does not constitute a “rare and
exceptional circumstance” warranting equitable tolling. See Felder,
204 F.3d at 171-73; Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
2000); Fisher v. Johnson, 174 F.3d 710, 713-14 (5th Cir. 1999).
While none of these cases directly addresses the state created-
2
In the case of Whalem/Hunt v. Early, a panel of the Ninth Circuit
initially determined on the facts that the petitioner’s lack of access to AEDPA
was not responsible for the untimeliness of his habeas petition and that, as
such, no state-created impediment existed. 204 F.3d 907, 909 (9th Cir. 1999).
However, the en banc Ninth Circuit subsequently reversed the panel, holding that
there are circumstances in which an inadequate prison law library can constitute
a state-created impediment and remanding the case to the district court for
further fact finding to determine if this case presented such a situation. See
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)(en banc). We are not
aware of any other cases that have addressed the state-created impediment
argument in the context of prison libraries.
5
impediment argument, it would be incongruous to hold that the
absence of AEDPA from a prison library does not justify equitable
tolling but does constitute an impediment requiring such tolling.
The district court’s construction of the law was thus reasonable and
not an abuse of its discretion.
Because in denying Robinson’s Rule 60(b)(1) motion the
district court did not so misconstrue the law as to constitute an
abuse of its discretion, we affirm.
AFFIRMED.
6 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/25062/ | UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11239
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CARL GILL,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(5:96-CR-32-1-C)
August 10, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Carl Gill appeals the sentence following revocation of his
probation. We affirm in part, vacate in part and remand.
FACTS AND PROCEDURAL HISTORY
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Carl Gill pleaded guilty to two counts of interstate
transportation of child pornography and was placed on probation for
five years. Gill’s probation was subject to standard and special
conditions, including the condition that he participate in mental
health treatment services, as directed by the probation officer,
and that he contribute to the cost of treatment as determined by
the probation officer. In September 2000, the Government moved to
revoke Gill’s probation, contending that he had violated the
conditions of probation by committing theft, by lying to his
probation officer and by failing to report to his probation officer
that he had been terminated from his job and had secured a new job.
The district court revoked Gill’s probation and sentenced him to
18-month concurrent prison terms and three years’ supervised
release, stating orally in court the term of supervised release
would include standard and special conditions, but did not specify
any special conditions to be imposed.
ANALYSIS
a. Length of Imprisonment
Gill contends that the district court reversibly erred by
imposing concurrent 18-month sentences of incarceration, which is
twice as long as the sentence recommended by U.S.S.G. § 7B1.4. We
will uphold a sentence following a probation revocation unless it
is in violation of law or is plainly unreasonable. United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). The trial court’s
2
compliance with sentencing statutes is reviewed de novo. Id.
There are no applicable guidelines for sentencing after
revocation of probation. See U.S.S.G. Ch. 7, Pt.A.1 (“At this
time, the Commission has chosen to promulgate policy statements
only.”). Though the district court need not follow the policy
statements in U.S.S.G. § 7B1.4, it must at least implicitly
consider them and the sentencing factors set forth at 18 U.S.C. §
3553(a). Teran, 98 F.3d at 836. Based on our review of the
record, we conclude that the district court implicitly considered
the factors set forth in § 3553(a) in imposing Gill’s probation-
revocation sentences. Given that the sentences were within the
statutory maximum of the original offense to which Gill pleaded
guilty and there are no applicable Guidelines, Gill’s sentences
were not plainly unreasonable. Id. We find no merit in Gill’s
challenge to the length of his sentences of incarceration.
b. Conditions of Supervised Release
Gill argues on appeal that the special conditions imposed by
the district court violated his due process rights because he was
not given notice and opportunity to challenge their
appropriateness.
The district court’s written judgment, entered three days
after its oral pronouncement, included several special conditions,
none of which were set out during the oral sentencing. The first
special condition requires Gill to participate in mental health
3
treatment services and to contribute to the cost of such services
in an amount to be determined by the probation officer; this
condition is substantially the same as the one imposed on Gill’s
probation. The second special condition similarly requires Gill to
participate in sex-offender treatment and to contribute to the cost
of such treatment. The third special condition prohibits Gill from
possessing a computer modem or seeking employment which requires
the use of a computer without prior permission of the probation
officer. The fourth condition prohibits Gill from frequenting a
location or activity where persons under the age of 18 congregate,
or from having unsupervised contact with persons under the of 18,
without the permission of the probation officer. The fifth special
condition prohibits Gill from having “any pornographic matter, or
any matter that sexually depicts persons under the age of 18,”
including matter obtained from a computer. The sixth special
condition prohibits Gill from working or volunteering where persons
under the age of 18 congregate, without permission of the probation
officer.
A defendant has a constitutional right to be present at
sentencing. United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001); see also FED.R.CIRM.P. 43(a)(“The defendant shall be present
. . . at the imposition of sentence . . . .”). Therefore, when
there is a variation between the written sentence and an oral
pronouncement, the oral pronouncement controls. Martinez, 250 F.3d
4
at 942.
If there is merely an ambiguity between the two sentences, the
entire record must be examined to determine the district court’s
true intent. Id. The district court’s general reference to
“standard conditions,” while arguably ambiguous, was sufficient to
impose all standard conditions required by statute. Id. Further,
the reference to unspecified “special conditions” could reasonably
have been interpreted as an ambiguous reference to the special
conditions originally appended to Gill’s terms of probation. With
that in mind, we have examined the record and determined that the
court intended to require Gill to participate in mental health
treatment and to contribute to the cost of that service in an
amount to be determined by his probation officer, as set out in the
first special condition. However, the silence of the district
court as to any additional special condition amounts to a conflict
between the oral sentence and the written sentence, rather than an
ambiguity. We must therefore vacate those conditions and remand
the case with instructions to the district court to amend its
written judgment to delete the additional special conditions. Id.
CONCLUSION
For the foregoing reasons, we affirm Gill’s term of
imprisonment, and the standard conditions and first special
condition of supervised release. We vacate the remaining special
conditions and remand for correction of the written judgment.
5
AFFIRMED IN PART, VACATE IN PART, AND REMAND.
6 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/238502/ | 229 F.2d 693
56-1 USTC P 9227
U.S. TRUCK SALES CO., a corporation, Appellant,v.UNITED STATES of America, Appellee.
No. 12454.
United States Court of Appeals Sixth Circuit.
Jan. 23, 1956.
David Cobb, Washington, D.C., argued, A. P. Annan, Cleveland, Ohio, Cobb & Weissbrodt, Washington, D.C., on the brief, for appellant.
I. Henry Kutz, Washington, D.C., argued, H. Brian Holland, Ellis N. Slack, A. F. Prescott, Marvin W. Weinstein, Washington, D.C., Sumner Canary, U.S. Atty., Cleveland, Ohio, on the brief, for appellee.
Before SIMONS, Chief Judge, ALLEN and MILLER, Circuit Judges.
SHACKELFORD MILLER, Jr., Circuit Judge.
1
The appellant, U.S. Truck Sales Company, brought this action in the District Court to recover federal excise taxes, alleged to have been erroneously assessed and collected from it under the provisions of Section 3403 of the Internal Revenue Code, 1939, 26 U.S.C.A. § 3403, on sales of secondhand automobile trucks.
2
Following the filing of an answer by the appellee, the appellant filed a motion for summary judgment, supported by affidavits. The Government filed a motion for summary judgment in its favor. The facts were later stipulated. The District Judge overruled the motion of the appellant, sustained the motion of the appellee, and entered judgment dismissing the complaint, from which this appeal was taken. U.S. Truck Sales Co. v. United States, D.C., 129 F.Supp. 141.
3
The material facts are as follows: Prior to June 1, 1944, the White Motor Company manufactured in the United States certain 6-ton White prime mover trucks which it sold to the United States. Since the trucks were shipped from the United States to Europe, where they were used by the United States military forces, the sales were exempt from Manufacturers' Excise Taxes. Section 3442(3) Internal Revenue Code, 1939, 26 U.S.C.A. § 3442 (3), exempts sales of trucks for the exclusive use of the United States or any State or territory thereof. The White Motor Company accordingly paid no Manufacturers' Excise Tax on these sales of trucks. In January 1951, the trucks were sold in Germany by a military surplus disposal agency of the United States to a Joint Venture, of which the appellant, an Ohio corporation, was a member. At the time of this purchase the trucks had been used for military purposes and were in a worn condition.
4
The Joint Venture, immediately after purchase of these trucks, imported them into the United States, where it sold the trucks and parts taken from them in an 'as is' or 'used' condition. These sales were made in June through October of 1951. The Joint Venture did not charge to, or collect from, any of the purchasers any federal tax upon the sales. Demand was made by the Collector of Internal Revenue upon the Joint Venture for the payment of the Manufacturers' Excise Tax on these sales in the amount of $1,979.28. The appellant paid $494.82, being one-fourth of the amount demanded, and thereafter filed its claim for refund, which was disallowed. This action followed.
5
Section 3403 of the Internal Revenue Code of 1939, under which the tax was assessed and collected, provides in part as follows: 'There shall be imposed upon the following articles sold by the manufacturer, producer, or importer, a tax equivalent to the following percentages of the price for which so sold: (a) Automobile truck chassis, automobile truck bodies, * * *. A sale of an automobile truck * * * shall, for the purposes of this subsection, be considered to be a sale of the chassis and of the body.' The specified rate at the time of the sales was 5%, which was on November 1, 1951 raised to 8%, and on April 1, 1955 reduced to 5%.
6
Since the appellant was an importer, a strict, literal reading of the statute makes the sales taxable. However, from 1937 to September 3, 1951, the United States did not collect this tax on sales by importers of secondhand trucks originally manufactured and sold in the United States. This construction of the statute and administrative practice followed a Sales Tax Ruling of the Bureau of Internal Revenue in 1937 known as S.T. 867, which was issued after, and put into effect its construction of, the decision of the Supreme Court in Indian Motorcycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277. It clarified and modified S.T. 514 which related to the taxability of sales of secondhand motorcycles by a manufacturer who accepted them as trade-ins on new motorcycles. It pointed out that the language in S.T. 514 made no distinction between original and successive sales and pointed out that from a practical standpoint Congress intended to do no more than tax the first sale in the United States, as indicated by the language of the opinion of the Supreme Court in the Indian Motorcycle Co. case. The ruling closed with the following statement:
7
'In view of the foregoing, it is held that, unless the used motorcycle accepted as a trade-in is so altered or rebuilt prior to its use or resale by the manufacturer or producer as to lose its identity, no tax other than that imposed upon the original sale attaches with respect thereto, irrespective of the number of times it is subsequently used or resold by the original or any other manufacturer or producer. In other words, payment, without credit or refund, of the tax on one use or sale establishes immunity with respect to subsequent use or resale, provided no change of identity has been effected prior to such use or resale. In determining the taxability of a subsequent use or sale, an original sale which is tax exempt has the same effect as an original tax-paid sale. S.T. 514, supra, is modified accordingly.'
8
Under this construction of the statute and this Sales Tax ruling, the Bureau, for a period of fourteen years thereafter, did not collect a tax on sales by the manufacturer of a secondhand or used truck or on sales by the importer of a secondhand or used truck originally manufactured and sold in the United States. The controversy in the present case was created when the Bureau issued a later sales tax ruling on September 3, 1951, known as S.T. 938. S.T. 938 stated that advice had been requested whether Manufacturers' Excise Taxes were applicable to sales in the United States by the importer of articles named therein which had previously been shipped out of the United States tax-free, the articles in question being surplus property disposed of by the United States in a foreign country to a person who later sold them in the United States. It made the following ruling: 'It is held that the sale in the United States by the importer of any of the articles named in Subchapter A of Chapter 29 of the Code, which had previously been shipped out of the United States tax-free under any of the sections of the Code authorizing exemption, constitutes a taxable sale of the articles with respect to which the importer is liable for tax, regardless of the manner in which the articles were disposed of in the foreign country.' (Emphasis added.) It pointed out that in S.T. 867 the question involved the taxability of successive sales of a taxable article by the manufacturer or producer thereof subsequent to his original sale, whereas in the situation involved in S.T. 938 the question related to the taxability of the sale of a taxable article by the importer thereof, subsequent to an original exempt sale of the article by the manufacturer thereof. It closed by stating-- 'To the extent that certain statements in S.T. 687 may be regarded as inconsistent with the foregoing, they are modified to conform thereto.'
9
The taxes in question were collected under the ruling in S.T. 938. It clearly covers the transactions in the present case. Appellant contends that S.T. 938 is not a correct ruling as to the applicability of Section 3403 Internal Revenue Code, in that it erroneously enlarges the scope of the Manufacturers' Excise Tax. The ruling can not change the statute. If it is not a correct construction of Section 3403 Internal Revenue Code, it should be disregarded. Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528; Bartels v. Birmingham, 332 U.S. 126, 132, 67 S.Ct. 1547, 91 L.Ed. 1947.
10
In support of its contention that S.T. 938 is erroneous and invalid, appellant relies principally upon the opinion of the Supreme Court in Indian Motorcycle Co. v. United States, supra, 283 U.S. 570, 51 S.Ct. 602. In that case the Supreme Court was construing Section 600 of the Revenue Act of 1924, which is the predecessor to the Manufacturers' Excise Tax involved in this case and not materially different in its wording. The question involved was not the same question which is involved in the present case, but in making its decision the Supreme Court discussed the nature and characteristics of the tax. It pointed out that it was an excise tax imposed on the sale of the article involved. The opinion analyzed it as follows:
11
'We think it is laid on the sale, and on that alone. It is levied as of the time of sale and is measured according to the price obtained by the sale. It is not laid on all sales, but only on first or initial sales-- those by the manufacturer, producer or importer. Subsequent sales, as where purchasers at first sales resell, are not taxed'.
12
Appellee contends that the foregoing language and views are dicta and not controlling on the decision in this case. Nevertheless, its general analysis of the tax in question carries weight. In several cases since then the case has been cited in support of the ruling that the statute levies a tax on only the first or initial sale. White Motor Co. v. United States, 3 F.Supp. 635, 639, 77 Ct.Cl. 752; Indian Motorcycle Co. v. United States, 9 F.Supp. 608, 610, 80 Ct.Cl. 594; Charles Peckat Mfg. Co. v. Jarecki, 7 Cir., 196 F.2d 849, 851. In Broad Motors Co. v. Smith, D.C.E.D.Pa., 86 F.Supp. 4, at page 6, the Court construed Sec. 3403, as follows: 'The levying of such taxes apply without exception to 'new articles.' That is, these taxes apply to the first sale of a taxable article by the manufacturer, producer, or importer thereof. These taxes have no application to 'used' or 'second-hand articles' even though the 'used' or 'second-hand articles' may be sold by the manufacturer, producer or importer, who had made the taxable sale of the original article. Indian Motorcycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277; S.T. 867, * * *.'
13
The ruling of the Court of Claims in Lupfer & Pemick v. United States, 66 Ct.Cl. 134, certiorari denied 278 U.S. 643, 49 S.Ct. 79, 73 L.Ed. 557, supports the position of the appellee under facts very similar to those in this case. But that case was decided before Indian Motorcycle Co. v. United States, supra, which the same court has cited in the two opinions hereinabove referred to since its earlier ruling in Lupfer v. United States.
14
The Government, in fact, still follows the construction given to the statute in Indian Motorcycle Co. v. United States, supra, in so far as manufacturers and producers are concerned. The tax is not collected on resales by them after the trucks have been reacquired in the United States and are sold as secondhand articles. But by S.T. 938 it is attempting to tax the sale of a secondhand truck by one who brings it back to the United States after its original sale in the United States and shipment to a foreign country.
15
We agree with the construction given to the statute by the Supreme Court in Indian Motorcycle Co. v. United States, supra, that the tax is an excise tax and imposed only on the initial sale in the United States. The tax is not imposed on the second sale in the United States of the same article. This is also the construction given to the statute by Congress in 1951 when it considered increasing the excise tax rate from five to eight percent. The Committee reports of both the House and Senate stated that the tax was not imposed on secondhand cars. Since secondhand cars in a large measure represented purchases made by the lower income groups, the reports pointed out that the tax increase would not bear heavily on those groups. House Report No. 586, June 18, 1951 and Senate Report No. 781, September 18, 1951, Pages 1826 and 2073, U.S. Code Congressional and Administrative Service, 82nd Congress, 1st Session, 1951.
16
If it is the second sale in the United States that is exempt from the tax, it should make no difference by whom the second sale is made. We find nothing in the statute justifying the construction that the second sale is exempt when made by certain persons, but taxable when made by others. The statute uses the words 'manufacturer, producer, or importer' in a collective sense, without indicating any difference in tax liability between them. In discussing the requirement in the statute that the tax be paid by 'the manufacturer, producer, or importer,' the Supreme Court said in Indian Motorcycle Co. v. United States, supra, '* * * we think this requirement is intended to be no more than a comprehensive and convenient mode of reaching all first or initial sales.'
17
To construe the statute as contended for by the Government would require either a tax on the second sale in the United States, which we have indicated was not its purpose, or a tax based on importation. The Supreme Court also rejected this alternative. Referring to the use of the word 'importer,' it pointed out that it was used in conjunction with 'manufacturer' and 'producer' for the purpose of covering all initial sales and did not 'reflect a purpose to base the tax in any way on manufacture, production, or importation;' that importation, as such, already was otherwise taxed; and that in its opinion 'the words relied on fall short of expressing a purpose to subject it to a further tax.' On the other hand, the purpose of the statute to tax only the first sale in the United States is carried out by construing the word 'importer' as one who imports a taxable article which was manufactured and initially sold outside of the United States and so not subject to the taxing statute until imported and sold for the first time in the United States. In our opinion, that is the proper construction to be given to the statute.
18
This conclusion is consistent with the administrative interpretation given to the statute by the Treasury Department for a period of approximately fourteen years. Appellee correctly points out that administrative interpretation based on certain rulings of less dignity than Regulations and Treasury Decisions is not to be accorded the weight given to Regulations. Higgins v. Commissioner, 312 U.S. 212, 215-216, 61 S.Ct. 475, 85 L.Ed. 783; Helvering v. New York Trust Co., 292 U.S. 455, 468, 54 S.Ct. 806, 78 L.Ed. 1361. Even if the administrative interpretation has been long in force, it does not prevent the promulgation of a regulation changing for the future the earlier practice where the new regulation comports with the plain meaning of the statute. American Chicle Co. v. United States, 316 U.S. 450, 455, 62 S.Ct. 1144, 86 L.Ed. 1591; Langstaff v. Lucas, D.C., 9 F.2d 691, 693, affirmed 6 Cir., 13 F.2d 1022. However, interpretation of a statute in light of a contemporaneous Supreme Court decision by the agency charged with its enforcement, which is adhered to over a long period of time without challenge by the Government in the courts, is entitled to great weight. United States v. American Trucking Associations, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345; Boutell v. Walling, 327 U.S. 463, 470-471, 66 S.Ct. 631, 90 L.Ed. 786; Walling v. Wall Wire Products Co., 6 Cir., 161 F.2d 470, 475, certiorari denied 331 U.S. 828, 67 S.Ct. 1351, 91 L.Ed. 1843; Koepfle v. Garavaglia, 6 Cir., 200 F.2d 191, 193. The cogent reasons which are necessary to change such an interpretation are not disclosed by the record. Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121. The new ruling contained in S.T. 938 has been promptly challenged and has not acquired any seasoned or settled administrative practice. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 88 L.Ed. 635.
19
The judgment is reversed and the case remanded to the District Court for further proceedings consistent with the views expressed herein. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2548061/ | 85 So. 3d 488 (2012)
BARNUM
v.
STATE.
No. 1D11-4650.
District Court of Appeal of Florida, First District.
April 10, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2173382/ | 813 F.Supp.2d 210 (2011)
Kenneth W. JONES, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
Civil Action No. 11-203 (JEB).
United States District Court, District of Columbia.
September 28, 2011.
*211 Kenneth W. Jones, Cleveland, OH, pro se.
Thomas McLean Nanni, Social Security Administration Office of the General Counsel, Baltimore, MD, Christie L. Iannetta, Vorys, Sater, Seymour & Pease LLP, Washington, DC, David Arthur Campbell, III, Liana Rose Hollingsworth, Vorys, Sater, Seymour & Pease LLP, Cleveland, OH, for Defendants.
MEMORANDUM OPINION
JAMES E. BOASBERG, District Judge.
Pro se Plaintiff Kenneth Jones has filed a Complaint that is largely incomprehensible. As best the Court can discern, his principal claim appears to relate to a denial of Social Security benefits. As he has failed to exhaust his administrative remedies relating to such benefits, the Court will grant certain Defendants' Motion to Dismiss. Since other Defendants have filed an Answer, as opposed to seeking dismissal, the case will proceed against them.
I. Background
Plaintiff is no stranger to the courts. As the Northern District of Ohio noted years ago: "Plaintiff has established a pattern of filing complaints in this court and others [that] are patently frivolous and vexatious and [that] appear calculated to harass the court and abuse the judicial process." Jones v. United States, No. 03-1597 at 8 (N.D.Ohio Oct. 15, 2003), quoted in Jones v. United States, 2009 WL 859840, at *2 (Fed.Cl. March 27, 2009). His behavior continues here.
Filed in January 2011, Plaintiff's Complaint names as Defendants an unusual collection: the United States, the United States Court of Federal Claims, the United States District Court for the Northern District of Ohio, the Social Security Administration (collectively, "Federal Defendants"), as well as Bryant & Stratton College and its employee Clifford Wallace (jointly, "B & S Defendants"). He cites myriad federal statutes in a jumbled series of allegations, pleadings, and exhibits, which seem to concern Social Security survivor benefits and his disenrollment from Bryant & Stratton. See ECF No. 1 (containing assorted pleadings).
The relevant proceedings for purposes of this Motion began on Dec. 4, 2008, when Plaintiff filed a claim with the Social Security Administration for widower's insurance benefits. See Mot., Exh. A (Declaration of Patrick J. Herbst) at 2; id., Exh. 1 (Application Summary for Widow's or Widower's *212 Insurance Benefits). On Jan. 31, 2009, the claim was denied. See Complaint, Exh. 7 (Notice of Disapproved Claim dated Jan. 31, 2009). The claim was again denied at the reconsideration level on Apr. 4, 2009. Herbst Decl. at 2; id., Exh. 2 (Notice of Disapproved Claim dated Apr. 4, 2009). Plaintiff then filed a request for a hearing on June 8. Herbst Decl. at 2; id., Exh. 3 (Request for Hearing). For some reason, that hearing was not scheduled to be held until April 11, 2011. Herbst Decl. at 3. Plaintiff, however, chose to file the present suit on Jan. 24, 2011.
While the B & S Defendants have answered, the Federal Defendants have now moved to dismiss for lack of subject matter jurisdiction and venue.[1]
II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C.Cir.2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). For this reason, "`the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005); see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C.Cir.2005) ("given the present posture of this casea dismissal under Rule 12(b)(1) on ripeness groundsthe court may consider materials outside the pleadings"); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).
III. Analysis
Defendants seek the dismissal of Plaintiff's Complaint on the dual grounds that he failed to exhaust his administrative remedies and cannot establish venue in this Court. As the Court agrees with the first basis for dismissal, that is the only one that requires analysis.
Any individual who, like Plaintiff, is dissatisfied with "any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision. . . ." 42 U.S.C. § 405(g) (emphasis added). Congress has made clear that this is the only manner in which a decision by the Commissioner of Social Security may be challenged. § 405(h). What constitutes a "final decision" is defined through agency regulations rather than statutory text. See § 405(a); Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
The SSA's regulations set out how a final decision may be obtained from the *213 Commissioner. 20 C.F.R. § 404.900. First, an initial determination is made as to the person's eligibility or continued eligibility for benefits. § 404.902. A notice of this initial determination is issued, in which the claimant is informed that he must request reconsideration within 60 days of receipt of the notice. §§ 404.904, 404.909. Such reconsideration may take the form of a case review or a disability hearing, depending on what is at issue in the particular case. § 404.913. If dissatisfied with the result of the reconsideration, the claimant may once again appeal within 60 days of the receipt of the decision, this time by requesting a hearing before an administrative law judge. §§ 404.929, 404.933. Within 60 days of an unfavorable decision by an ALJ, the claimant may apply for review by the Appeals Council. §§ 404.967, 404.968. Review by the Council is discretionary, but the claimant must nonetheless petition for review in order to receive a final decision. See Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) ("If a claimant fails to request review from the Council, there is no final decision and, as a result, no judicial review in most cases."). If the Council elects to review the claim, its decision will be final. § 404.981. If the Council declines review, the ALJ's ruling will stand as the final decision, and the case will be ripe for judicial review. §§ 404.981, 404.955(b).
Plaintiffs are generally required to exhaust their administrative remedies before filing a suit in federal court. See Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.Cir.2003); Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C.Cir.1990). When it comes to judicial review of SSA decisions, exhaustion is a jurisdictional requirement because Congress has made it clear that only final decisions made by the Commissioner can be reviewed in federal court. 42 U.S.C. § 405(g). The Court thus cannot allow Plaintiff to go forward on his claim if it finds that he has not exhausted his administrative remedies. See I.A.M. Nat'l Pension Fund Ben. Plan C. v. Stockton TRI Indus., 727 F.2d 1204, 1208 (D.C.Cir.1984) ("Only when Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision. . . has the Supreme Court held that exhaustion is a jurisdictional prerequisite.").
In this case, it is undisputed that Plaintiff has only completed the first two steps of the four-step SSA administrative-review process. The Agency conducted a reconsideration hearing in response to his initial appeal, but Plaintiff filed suit before moving to step threei.e., a hearing before an ALJ. As a result, Plaintiff clearly failed to obtain a final agency decision. It is unclear why the delay occurred between Plaintiff's request for a hearing and its scheduling, but that does not alter Plaintiff's exhaustion requirements. As he has failed to satisfy those requirements, he cannot yet request review by the Court. See Sims, 530 U.S. at 107, 120 S.Ct. 2080 ("If a claimant fails to request review from the Council, there is no final decision and, as a result, no judicial review in most cases. In administrative-law parlance, such a claimant may not obtain judicial review because he has failed to exhaust administrative remedies.") (internal citations omitted).
Even if Plaintiff had exhausted his administrative remedies, this case could not remain in this Court because Defendants' venue argument under Fed.R.Civ.P. 12(b)(3) would prevail. Under § 405(g), Plaintiff may challenge a final decision by the Commissioner of the SSA only by filing suit in the "judicial district in which [Plaintiff] resides . . . or has his principal *214 place of business." Since it is clear from all of his pleadings that this is Cleveland, Ohio, the case would have to be transferred there. Finally, to the extent he asks this Court to review adverse decisions regarding him by other federal courts, such as the Northern District of Ohio, the United States Court of Appeals for the Sixth Circuit, or the Court of Federal Claims, this Court is obviously without jurisdiction to do so. See, e.g., 28 U.S.C. §§ 1254, 1291, 1295.
IV. Conclusion
Because the Court finds that Plaintiff has failed to exhaust his administrative remedies, the case will be dismissed. An Order consistent with this Opinion will be issued this day.
NOTES
[1] In considering this Motion, the Court has reviewed Plaintiff's Complaint, the Federal Defendants' Motion to Dismiss, Plaintiff's Opposition thereto, Defendants' Reply, and Plaintiff's Surreply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023696/ | JUSTICE SCARIANO delivered the opinion of the court; Following a bench trial before Judge James M. Schreier on August 25, 1988, the circuit court found defendant guilty of one count of possession with intent to deliver between 10 and 15 grams of a substance containing heroin in violation of section 401(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1985, ch. 56%, par. 1401(b)) and of one count of possession with intent to deliver less than 10 grams of a substance containing cocaine in violation of section 401(c) of the Act (Ill. Rev. Stat. 1985, ch. 56%, par. 1401(c)). Defendant’s convictions resulted in concurrent sentences of 8% years’ imprisonment on count I and seven years’ imprisonment on count II. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK GRIFFIN, Defendant-Appellant. First District (2nd Division) No. 1—88—2836 Opinion filed February 6, 1990. Defendant had been previously tried without a jury on November 5-6, 1987, before Judge Ralph Reyna, who found defendant guilty of the two offenses described above. After defendant’s first trial, his attorney withdrew from the case and was replaced by defendant’s present counsel, who filed a motion for a new trial. Among other charges, the motion alleged that defendant had been denied effective assistance of counsel, because his former attorney “did not communicate [with defendant] or in any way prepare for trial.” Judge Reyna granted the motion on January 29, 1988, and the matter was subsequently reassigned by the presiding judge to Judge Schreier. Defendant presents two issues for our review: first, whether the evidence was sufficient to convict, and second, whether the trial judge deprived him of a fair trial by reprimanding defense counsel and asking defendant questions tending to negate his credibility. We affirm. At the second trial, the State presented the testimony of Chicago police department officer Joseph Cannon; defendant and his mother testified for the defense. The parties stipulated that the recovered contraband tested positive for 3.36 grams of cocaine and for 14.61 grams of heroin. The court also received into evidence a certified copy of defendant’s conviction for attempted murder and armed robbery. Cannon testified that on January 15, 1987, he proceeded with a group of other officers to 204 North Central Avenue, Chicago, Illinois, to execute a warrant authorizing the search of the third-floor east apartment for cocaine and drug paraphernalia and a black male, 26 to 30 years old, 5 feet 8 inches tall, of medium complexion. After knocking at the back door of the apartment and announcing himself as a police officer, Cannon heard running footsteps inside. He then opened the door with a sledgehammer and, finding himself in the kitchen, saw defendant fleeing through the living room. According to Cannon, defendant jumped from the front balcony onto the roof over the building entrance, leaped down onto a lower balcony and ran into the first-floor apartment. At this point, Cannon ran down the back staircase and, having apprehended defendant outside the rear of the building, took him back to the third-floor apartment. Cannon handed the search warrant to defendant, who read it and said he understood its contents. During the search of the kitchen, the officer found, on top of the refrigerator, 37 tinfoil packets filled with brown powder and 14 white paper packets filled with white powder. He then placed defendant under arrest. After being advised of his Miranda rights, defendant told Cannon that he had been living in the apartment for about one week. In a search of defendant’s person, Cannon’s partner found no narcotics, but recovered a key which, according to Cannon’s testimony, fit the front door of the apartment. Cannon did not find a lease in the apartment or any gas or other utility bills in defendant’s i.ame. Prior to the search, however, the gas company had informed him that the gas had been shut off. While searching the living room, Cannon noticed two operating appliances: a kerosene space heater and an electric television set. Defendant’s mother, Willie Mae Williams, testified that at the time of defendant’s arrest she lived about two blocks from the 204 North Central Avenue address and that after defendant’s release from prison in January 1987, she made arrangements for him to live upstairs from her living quarters in return for paying the utility bills and having them put in his name. When on cross-examination Williams was shown gas and electric bills for the upstairs apartment covering various dates from January 7 to October 30, 1987, she admitted that the bills did not reflect when they were put in defendant’s name and acknowledged that the electricity bill for the months of January to April 1987 was for only $58, of which $33 represented a customer service charge. Williams also testified that she worked in a factory five and sometimes six days a week and that her living quarters did not have a staircase leading to the upstairs area where defendant lived. Defendant testified that until January 9, 1987, he had been incarcerated in a Federal correctional facility in Oxford, Wisconsin, and that between that date and the date of his arrest on January 15, 1987, he lived in the second-floor apartment above his mother’s. According to defendant, he never told the police he had been living for one week in the apartment on North Central Avenue, which, he testified, in fact belonged to his friend James Boyd, whom he had known for about 12 years at the time of trial. He denied having a key to this apartment and said the front door did not have a lock. While defendant was visiting Boyd on January 15, defendant’s testimony continued, after someone outside had sounded a car horn, Boyd left the apartment, and defendant remained inside to watch a movie on Boyd’s television set. During the movie, he heard a lot of noises at the back door, looked out the window and saw a uniformed police officer, leaving the apartment through the front door. Defendant entered the adjacent apartment, went downstairs and out the back door of the building, where he became engaged in a conversation with a uniformed police officer. At this point, several plainclothes officers jumped on defendant and arrested him, took him back to Boyd’s apartment, put him in a closet and questioned him. He denied leaving the apartment in the manner described by Officer Cannon. Defendant admitted lying under oath at his first trial. He said that previously he had testified that he did jump off the third-floor balcony onto the entrance roof and then onto the balcony on the first floor. He also admitted testifying that he kept four jogging suits in the apartment. According to defendant, his former lawyer instructed him to so testify in order not to contradict the police. Defendant claimed he fled the apartment when he saw the police because he “panicked,” but denied doing anything wrong or knowing that drugs were present in the apartment. Defendant begins by contending that the State failed to prove him guilty of the two narcotics offenses beyond a reasonable doubt because it failed to show that he had any knowledge, either actual or constructive, of the presence of contraband in the apartment. Defendant relies on a number of Illinois Supreme Court decisions which hold that where the evidence pointing to the guilt of an accused is purely circumstantial, it must be strong enough to exclude every reasonable hypothesis of innocence before the trier of fact may convict. (People v. Garrett (1975), 62 Ill. 2d 151, 163, 339 N.E.2d 753, 759; People v. Lewellen (1969), 43 Ill. 2d 74, 78, 250 N.E.2d 651, 654; People v. Ahrling (1917), 279 Ill. 70, 80, 115 N.E. 764, 767.) It is defendant’s contention that the judge was bound to acquit, because, based on the evidence, he could have found that defendant was indeed only an innocent and unsuspecting visitor at the apartment. In People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268, however, the supreme court has recently clarified the standard of proof in criminal cases by removing any obligation to exclude all reasonable hypotheses of innocence. The court explained in Eyler that language once used in pattern jury instructions purporting to create any such obligation merely served to obscure the firmly entrenched standard of “proof beyond a reasonable doubt.” (133 Ill. 2d at 191, 549 N.E.2d at 276; see also People v. Pintos (1989), 133 Ill. 2d 286, 291 (“reasonable doubt test *** should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial”).) Therefore, the proper standard for this court to apply in order to evaluate the sufficiency of the proof on appeal is whether the evidence, when viewed in the light most favorable to the prosecution, permits a rational trier of fact to find the elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461, 472-73, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781. To prove possession of a controlled substance, the State must show that defendant knew of its presence and that the substance was in defendant’s immediate and exclusive control. (People v. Valentin (1985), 135 Ill. App. 3d 22, 480 N.E.2d 1351.) Knowledge may be proved by evidence of defendant’s acts, declarations or conduct which fairly imply that he knew of the existence of the controlled substance at the place it was found. (People v. David (1986), 141 Ill. App. 3d 243, 489 N.E.2d 1124.) Absent circumstances creating a reasonable doubt, the fact that drugs are found on premises under defendant’s control alone will support a conviction for possession. (People v. Cruz (1984), 129 Ill. App. 3d 278, 472 N.E.2d 175.) Exclusive possession may be established even though possession is joint or other persons have access to the premises. (People v. Gant (1986), 150 Ill. App. 3d 180, 501 N.E.2d 355, appeal denied (1987), 114 Ill. 2d 549, 508 N.E.2d 731, cert. denied (1987), 484 U.S. 843, 98 L. Ed. 2d 91, 108 S. Ct. 134.) Because knowledge and possession are questions of fact, a reviewing court will not disturb the trier’s findings on those issues unless the evidence is so unbelievable, improbable or palpably contrary to the verdict that it creates a reasonable doubt as to defendant’s guilt. (People v. Valentin, 135 Ill. App. 3d 22, 480 N.E.2d 1351.) Finally, a reviewing court will not disturb the fact finder’s resolution of conflicting evidence unless it is clearly erroneous. People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1. A number of facts in the present case permit the inference that the North Central Avenue apartment was in defendant’s control: According to Officer Cannon, defendant, after being advised of his Miranda rights, told him that he had been living in the apartment for one week; Cannon also testified that his partner found a key on defendant’s person that fit the lock on the front door;1 during cross-examination, defendant admitted testifying in his first trial that he kept four running suits in the apartment; and finally, defendant does not contest that he was the only person in the apartment at the time of the raid. Although defendant testified at the second trial that the actual tenant of the apartment was his longtime friend James Boyd, the defense did not produce anyone named Boyd as a witness or furnish any other information about him. In considering Boyd’s absence, we draw attention to People v. Adams (1985), 109 Ill. 2d 102, 120-21, 485 N.E.2d 339, 345, cert. denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476, in which the supreme court permitted a negative inference from the accused’s failure to call a nonalibi witness who could shed light on a material issue and who was presumably within the accused’s control. Together with all other evidence tending to prove defendant’s guilt, the trier of fact may also consider evidence of defendant’s flight from police. (People v. Rossini (1962), 25 Ill. 2d 617, 185 N.E.2d 831.) In the present case, defendant does not rebut the State’s testimony that he fled the apartment when he saw the police; he merely denies having left in the spectacular manner described by Officer Cannon. Furthermore, it was the judge’s prerogative as a fact finder to disbelieve defendant’s proffered explanation that he panicked and fled at the sight of law enforcement officers because he had recently come home from prison. In fact, defendant’s credibility suffered several other critical blows at trial. First, the State introduced into evidence a certified copy of defendant’s conviction for attempted murder and armed robbery. Second, the State confronted defendant with prior inconsistent statements he had made at his first trial; defendant admitted that, contrary to his latest testimony, he had previously testified that he kept four jogging suits in the apartment and that he fled the apartment by leaping off the balcony. Finally, defendant admitted lying at the first trial despite knowing that he was under oath to tell the truth. Defendant tried to explain that he lied because his former attorney instructed him not to contradict the police; however, this explanation dealt a final blow to defendant’s veracity, for in his motion for a new trial after his first case he alleged that his former attorney never communicated -with him in preparation for the first trial. This massive evidence of mendacity persuades us that the circuit court acted reasonably in choosing to believe Officer Cannon’s version of the facts instead of defendant’s. Accordingly, with reference to the element of knowledge, we find that the prosecution amply met its burden of proof beyond a reasonable doubt. Defendant next contends that the behavior of the circuit judge at trial deprived him of a fair proceeding. First, defendant maintains in his brief that the circuit judge “stood up and screamed at defense counsel as counsel tried to make an objection.” The following colloquy during trial between Judge Schreier and defense counsel forms the basis of defendant’s contention: “Q. [Assistant State’s Attorney]: When you got back up to the apartment, your testimony is that they put you in the closet? A. [Defendant]: First they put me — we was in the dining room and they had me up against the wall, you know. They searched me, you know, they asked me — they got to ask me where some narcotics was at. I told them I don’t know nothing about narcotics. Q. Sir, please answer my question. MR. ARONSON [Defense attorney]: He is. Object, your Honor. THE COURT: Keep your voice down. Sit down. MR. ARONSON: I-. THE COURT: Sit down. Q. [Assistant State’s Attorney]: Please, sir — . THE COURT: Who do you think you are? Sit down. MR. ARONSON: I would like to make an objection, Judge. THE COURT: Overruled.” As the State points out, the record does not support defendant’s allegation that the judge “stood up and screamed.” The foregoing exchange with the court appears to be but a continuation of a similar exchange initiated by defense counsel which occurred earlier, at the very beginning of the State’s cross-examination of defendant. One of the inherent powers of the trial court is to preserve its own dignity by ensuring that the proceedings before it progress in a dignified and orderly fashion. (People v. Halprin (1983), 119 Ill. App. 3d 922, 457 N.E.2d 1010 (inherent power to initiate contempt proceedings).) In the present case, the circuit judge appears to have invoked this power to ensure the orderly cross-examination of defendant without defense counsel’s unnecessary interference. The record does not indicate that he thereby exceeded traditional bounds of courtroom decorum, especially here, where the absence of a jury minimized the danger of any unfair prejudice. Second, defendant charges that the circuit judge improperly interrupted defendant’s redirect examination by asking him questions seeking to discredit the veracity of certain statements in his motion for a new trial at the end of his first case. Defendant alleges that with these inquiries the judge flew into a “rage” intending to “besmirch the character and reputation of [defendant’s] present counsel,” and therefore deprived defendant of a fair trial before an impartial tribunal. Defendant’s objection rests on the following portion of his redirect examination: “Q. [Defense attorney]: And your former lawyer, how long did he meet with you to prepare for the case? MR. CUOMO [Assistant State’s Attorney]: Objection, Judge. THE COURT: Overruled. A. The same day of the trial. Q. And he defended you, didn’t he? A. Yes. Q. And after he told you what to say, you were convicted, weren’t you? MR. CUOMO: I’m going to object to this, Judge. THE COURT: Overruled. A. Yes. Q. And then you got another lawyer, didn’t you? MR. CUOMO: Objection, Judge. THE COURT: Sustained at this point, although I want to ask a question myself. With your new lawyer, did you file a motion for a new trial saying that your previous lawyer and you did not communicate or in any way, in any way prepare for trial? Did you and your new lawyer file that motion for new trial? A. Yes, we filed a motion. Q. And when you said that in any way your old lawyer did not prepare for trial — . THE COURT: Or communicate. Q. —or communicate with you, tell Judge Schreier what you meant by that. A. Each time I called him, you know, he would tell me, you know, to call him back, you know, and when I called him back he wasn’t there. THE COURT: What do you call, sir, your conversing with your old lawyer and going over what you should say at trial. What did you call that? A. That was before the trial. That was a couple of minutes before we had come in here. THE COURT: You call that communicating? Do you? Do you call that communicating? A. That’s communicating. THE COURT: Do you call it preparing for trial albeit perju-riously preparing for trial, preparing what you’re going to say. Do you call it that? A. (Inaudible.)” A trial court is free to examine witnesses in its discretion, provided it does not become an advocate, abandoning its function as an impartial tribunal. (People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817, 821.) Trefonas concerned a bench trial in which the judge extensively questioned two codefendants regarding conflicts between their signed statements and their testimony at trial. The supreme court held that, as a seeker of truth, the trial court was justified in making such inquiries. (9 Ill. 2d at 100, 136 N.E.2d at 821.) Similarly, in People v. Sudzus (1984), 121 Ill. App. 3d 387, 390, 459 N.E.2d 1099, 1101-02, this court found no prejudice to defendant in a bench trial where the trial judge asked him whether he had kept a record of sale for his automobile, a question relevant to the veracity of defendant’s previous testimony. We note particularly that the danger of prejudice due to judicial questioning decreases sharply in cases tried without a jury. (United States v. Kidding (7th Cir. 1977), 560 F.2d 1303, 1314, cert. denied sub nom. Brown v. United States (1977), 434 U.S. 872, 54 L. Ed. 2d 151, 98 S. Ct. 217.) The relevant inquiry in a non-jury trial is whether the tenor of the court’s questioning indicates that the court has prejudged the verdict before hearing all of the evidence. (560 F.2d at 1314.) In Kidding, the court found that in the absence of any evidence of prejudgment by the trial court, the fact that the judge asked two defendants a total of 56 questions spanning 12 pages of transcript did not mandate reversal. 560 F.2d at 1314. In the present case, the judge noticed a conflict between defendant’s testimony on redirect examination that his former attorney told him to lie and defendant’s allegation in his first motion for a new trial that the former attorney failed to communicate with him before trial. The judge then sought to elicit from defendant whether indeed there was such a conflict. Although ultimately this inquiry resulted in further impeachment, defendant’s credibility had already been so seriously damaged during cross-examination that it would be unrealistic to impute prejudice to the court. We find that the State more than adequately met its burden of proof in this case and that any alleged improprieties of the trial judge were harmless beyond a reasonable doubt. Accordingly, we affirm. Affirmed. HARTMAN and BILANDIC, JJ., concur. Despite defendant’s efforts both in this court and the trial court to argue that the State should have entered the key into evidence, defendant has provided no cases mandating such production. In fact, the law clearly holds that absent proof of intentional destruction, the existence of a tangible object may be proved even by circumstantial evidence. (People v. Lopez (1982), 107 Ill. App. 3d 792, 796, 438 N.E.2d 604, 507 (proof of illegal substance in narcotics prosecution).) Here, we have not only the benefit of Officer Cannon’s direct testimony about the key, but it is also notable that defendant failed to object to it at trial. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2103381/ | 309 S.W.3d 874 (2010)
Jerry PLUMMER, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 93394.
Missouri Court of Appeals, Eastern District, Division Four.
May 11, 2010.
JoAnn Rotermund, St. Louis, MO, for Appellant.
Shaun J. Mackelprang, Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
ORDER
PER CURIAM.
Jerry Plummer (hereinafter, "Movant") appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his first point on appeal, Movant alleges the motion court clearly erred when it declined to find plea *875 counsel ineffective for failing to explain the difference between a civil nonsupport proceeding and a criminal nonsupport proceeding, rendering his plea involuntary, unknowing, and unintelligent. In his second point on appeal, Movant claims the motion court clearly erred when it declined to find probation revocation counsel ineffective for failing to advocate on his behalf.
We have reviewed the briefs of the parties and the record on appeal and find the motion court's decision was not clearly erroneous. Hartman v. State, 130 S.W.3d 727, 728 (Mo.App. E.D.2004). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.
We affirm the motion court's denial of Movant's Rule 24.035 motion pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2509976/ | 717 S.E.2d 568 (2011)
STATE
v.
Keith D. WILSON.
No. 47P09-2.
Supreme Court of North Carolina.
August 25, 2011.
Keith D. Wilson, Tabor City, for Wilson, Keith D.
Amy C. Kunstling, Assistant Attorney General, for State of NC.
Peter S. Gilchrist, III, District Attorney, for State of NC.
The following order has been entered on the motion filed on the 20th of May 2011 by Defendant for Petition for Discretionary Review:
"Motion Dismissed by order of the Court in conference, this the 25th of August 2011." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2509987/ | 394 S.C. 36 (2011)
714 S.E.2d 313
In the Matter of Charles E. JOHNSON, Petitioner.
Not in source
Supreme Court of South Carolina.
August 19, 2011.
ORDER
On February 16, 2010, the Court definitely suspended petitioner from the practice of law for one (1) year. In the Matter of Johnson, 386 S.C. 550, 689 S.E.2d 623 (2010). In addition, the Court ordered petitioner to pay the costs of the proceedings and complete the South Carolina Bar's Legal Ethics and Practice Program (LEAPP). Id. Petitioner has now filed a petition for reinstatement.
The Committee on Character and Fitness (the CCF) recommends the Court grant the petition subject to the condition that petitioner be mentored by a member of the South Carolina Bar for a period of two (2) years. Neither the Office of Disciplinary Counsel (ODC) nor petitioner has filed exceptions to the CCF's recommendation.
The Court grants the petition for reinstatement subject to the following conditions:
1. petitioner shall enter into a mentoring agreement with an active member of the Bar for two years during which petitioner and the mentor shall meet on a monthly basis to discuss petitioner's law office management systems; and
2. the mentor shall submit quarterly reports concerning petitioner's law office management systems to the Commission on Lawyer Conduct.
IT IS SO ORDERED.
/s/ Jean H. Toal, C.J.
/s/ Costa M. Pleicones, J.
/s/ Donald W. Beaty, J.
*37
/s/ John W. Kittredge, J.
/s/ Kaye G. Hearn, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3167066/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1753
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff‐Appellant,
v.
AUTOZONE, INCORPORATED, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐00303‐WEC — William E. Callahan, Jr., Magistrate Judge.
ARGUED SEPTEMBER 30, 2015 — DECIDED JANUARY 4, 2016
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff‐appellant, the Equal Employ‐
ment Opportunity Commission (“EEOC”), filed suit against
defendant‐appellee, AutoZone, Incorporated (“AutoZone”),
for dismissing Margaret Zych (“Zych”) from AutoZone’s
Cudahy, Wisconsin, location in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,
the EEOC alleged that AutoZone failed to accommodate Zych’s
2 No. 15‐1753
lifting restriction and that Zych’s termination constituted
discrimination on account of her disability. After a five‐day
trial, the jury returned a verdict in favor of AutoZone, finding
that Zych was not a qualified individual with a disability or a
record of disability. The EEOC filed a motion for a new trial,
which the district court denied. The EEOC appealed. For the
reasons that follow, we affirm the district court.
I. BACKGROUND
AutoZone sells automobile parts in retail stores located
throughout the United States. AutoZone has a store located in
Cudahy, Wisconsin, which has a minimum staffing require‐
ment of two to three employees in the store at all times. In
2005, Zych began working at the Cudahy, Wisconsin,
AutoZone. In 2007, she was promoted to Parts Sales Manager
(“PSM”).
In July 2007, Zych injured her right shoulder while at work.
She underwent two years of physical therapy and treatment for
her shoulder. During those two years, she had several work
restrictions, which AutoZone accommodated. In June 2009,
Zych’s doctor permanently restricted her from lifting anything
with her right arm that weighed over 15 pounds. About one
month later, AutoZone discharged Zych because it was unable
to accommodate her permanent restriction.
Zych filed a charge with the EEOC, and on March 28, 2012,
the EEOC filed suit against AutoZone claiming that it failed to
accommodate Zych’s lifting restriction and illegally terminated
her employment. A jury trial was held from November 17‐21,
2014. At the close of AutoZone’s evidence, the EEOC moved
for judgment as a matter of law on the issue of whether Zych
No. 15‐1753 3
was “disabled” under the meaning of the ADA. The court
denied the motion.
Before the case was submitted to the jury, the EEOC offered
a proposed “team concept” jury instruction regarding how to
determine the essential functions of a job position. The pro‐
posed team concept instruction stated:
In team working environments, where team mem‐
bers per‐form tasks according to their capacities and
abilities, job functions that are not required of all
team members are not essential functions. Where
there is no required manner in which employees are
to divide the labor, the fact that one team member
may not be able to do all the tasks assigned to the
team does not mean that person is unable to per‐
form his or her essential functions.
The district court rejected the proposed instruction because
it found the instant matter was factually distinguishable from
prior cases dealing with the EEOC’s proposed team concept.
The judge said that the EEOC could argue this theory to the
jury in closing arguments. The EEOC did not do so; it argued
that the essential function of the PSM position was “customer
service,” and that lifting was just a “marginal function.”
The jury returned a special verdict finding that the EEOC
failed to prove by a preponderance of the evidence that Zych
was a “qualified individual with a disability or a record of
disability at the time that her employment was terminated.”
Following the verdict, the EEOC moved for a new trial. In
support of its motion, the EEOC argued: (1) the verdict was
against the manifest weight of the evidence; (2) the medical
4 No. 15‐1753
evidence established that Zych was disabled as a matter of law;
and (3) the jury instructions confused the jury. The district
court denied the motion.
II. DISCUSSION
The EEOC now appeals the district court’s denial of its
motion for a new trial. We address each of the issues raised by
the EEOC in turn.
A. Sufficiency of the Evidence Supporting the Jury
Verdict
We apply the “abuse of discretion” standard of review to
examine the district court’s denial of the EEOC’s motion for a
new trial on the basis that the verdict was against the manifest
weight of the evidence. Lewis v. City of Chicago Police Dep’t, 590
F.3d 427, 444 (7th Cir. 2009) (citation omitted). We will only set
aside the verdict and remand for a new trial if “no rational jury
could have rendered” the verdict. Smith v. Wilson, 705 F.3d 674,
677–78 (7th Cir. 2013) (citations omitted). This analysis involves
examining the evidence in the light most favorable to
AutoZone, while “leaving issues of credibility and weight of
evidence to the jury.” King v. Harrington, 447 F.3d 531, 534 (7th
Cir. 2006) (citation omitted).
To establish a prima facie failure to accommodate claim
under the ADA, the EEOC had to show that: (1) Zych was a
qualified individual with a disability; (2) AutoZone was aware
of her disability; and (3) AutoZone failed to reasonably
accommodate her disability. See James v. Hyatt Regency Chicago,
707 F.3d 775, 782 (7th Cir. 2013) (citation and quotation
omitted). In this case, the jury found that the EEOC failed to
No. 15‐1753 5
prove the first element, so the issue is whether a rational jury
could have found that Zych was not a qualified individual
with a disability.
Under the ADA, a “qualified individual” is someone who,
“with or without reasonable accommodation, can perform the
essential functions of the employment position” at issue. 42
U.S.C. § 12111(8) (emphasis added). In addition, EEOC
regulations clarify that essential functions are the “fundamen‐
tal job duties” of the position, as opposed to the “marginal
functions.” 29 C.F.R. § 1630.2(n)(1). Further, the employer’s
judgment, the amount of time performing the function at issue,
the work experience of prior employees in the same position,
and written job descriptions are among the relevant evidence
that can be considered to determine the essential functions of
a position. 29 C.F.R. § 1630.2(n)(3).
Here, Zych was unable to lift more than 15 pounds with her
right arm. Thus, if the evidence at trial showed that heavy
lifting was a fundamental duty of the PSM position, as op‐
posed to a marginal function, then a rational jury could have
found that Zych was not a qualified individual with a disabil‐
ity.
At trial, AutoZone presented testimony from former PSMs
at the Cudahy, Wisconsin, location regarding the lifting
requirements of a PSM. For example, Angel Maldonado
(“Maldonado”) testified that the PSM job functions included
lifting and moving the items at the store, as well as the items
brought in by the customers, at least 30‐40 times per day.
Maldonado agreed that lifting the products sold at the store
was a “regular part” of the job, and that when he initially
6 No. 15‐1753
received the PSM position, he understood that it involved
“heavy lifting.” Tabari Stewart (“Stewart”), another former
PSM at the Cudahy, Wisconsin, location, testified that it was a
regular aspect of customer assistance to retrieve an item from
the store, hold it for the customer to inspect, and even carry the
item to the customer’s car. In addition, the testimony at trial
established that the items at the store could weigh substantially
more than 15 pounds. For example, car batteries could weigh
anywhere from 25 to 75 pounds. Cases of antifreeze and motor
oil weighed around 30 pounds. AutoZone also established an
itemized list of other products within the store that weighed
over 15 pounds, such as brakes, rotors, brake drums, ready‐
mount struts, and radiators.
The testimony also brought out that the PSM position
involved performing customer service functions that required
heavy lifting, such as charging customers’ batteries, installing
car batteries, and recycling customers’ oil (which could weigh
up to 20‐30 pounds). The PSM had to organize “planograms”
as well. Planograms involve the way that the products are
arranged on the shelves throughout the store. Stewart testified
that the PSM sometimes had to conduct a “full reset”
planogram, in which all of the products (which could weigh
over 40 pounds each) had to be removed from the shelves, the
shelves re‐arranged, and then the products re‐stacked.
AutoZone further produced evidence regarding “truck
days.” Truck days occurred once a week, and involved
unloading items from delivery trucks in order to re‐stock the
supply at the store. Truck days involved moving both light and
heavy items, but even the light items could be heavier if they
were stored in “totes.” Stewart testified that truck days
No. 15‐1753 7
involved “nothing but lifting,” and that the PSM was expected
to lift along with all of the other AutoZone employees. In
addition to truck days, the PSM position was also responsible
for handling daily “hub deliveries,” which could also involve
heavy items that sometimes weighed over 20 pounds.
Finally, AutoZone introduced a written job description
regarding the physical functions involved with the PSM
position. Under “Arm Requirements,” it states that the position
requires “constantly” carrying items up to 50 pounds, but
“usually 10 to 20 pounds.” It also states the PSM must “fre‐
quently” lift items up to 75 pounds from floor to waist, and up
to 25 pounds horizontally. In addition, the position involves
“constantly” reaching or working with arms extended or bent,
and “frequently” twisting or rotating. Stewart testified that the
written job description accurately reflected the physical
requirements and tasks of the PSM, as did Maldonado who
agreed that it included the key duties of the position. While
Zych acknowledged that the written job description repre‐
sented the tasks that she performed as a PSM, she disagreed
with the phrase “constantly,” and stated that the position also
involved paperwork.
From the substantial evidence presented at trial, a rational
jury could have concluded that heavy lifting was a fundamen‐
tal duty of the PSM position, rather than merely a marginal
function. Since Zych could not lift more than 15 pounds with
her right arm, there was sufficient evidence for a rational jury
to find that she could not perform the essential functions of the
PSM position. Thus, a rational jury could find that Zych was
not a qualified individual with a disability. Therefore, the
verdict was not against the manifest weight of the evidence
8 No. 15‐1753
and the district court did not abuse its discretion in denying
the motion for a new trial.1
Also, the EEOC points out that Barry Kurta (“Kurta”),
another employee at the Cudahy, Wisconsin, AutoZone, had
a paralyzed left arm and could only lift objects with his right
arm. The EEOC argues that if Zych is not qualified because of
her lifting restriction with her right arm, then Kurta should be
deemed unqualified as well, and the fact that he is not means
that Zych should be deemed a qualified individual with a
disability. AutoZone responds that Kurta is a “red herring”; he
was a part‐time employee with a different position than Zych,
which meant that he would never be alone in the store.
Further, Kurta had no official lifting restriction, although there
was testimony that he needed help lifting objects that were too
awkwardly shaped to carry with one arm. Kurta also stated
that he did not do heavy lifting when he waited on customers.
But, there was testimony that he could lift heavy items such as
rotors and car batteries with one arm, and he participated in
lifting on truck days. In contrast, Maldonado testified that he
did not see Zych lift rotors or other heavy items with one arm.
As discussed above, regardless of Kurta’s status, there is
sufficient evidence in the record to support the jury’s verdict
that Zych was not a qualified individual with a disability. “Our
1
Since we are upholding the jury’s finding that Zych was not a “qualified
individual with a disability,” the issue of whether Zych was disabled as a
matter of law is moot and we need not discuss it. See Majors v. Gen. Elec. Co.,
714 F.3d 527, 533 (7th Cir. 2013) (“We don’t need to decide whether [the
plaintiff] has a disability, though, because there was no issue of fact as to
whether [she] was a qualified individual”).
No. 15‐1753 9
appellate function is completed when we are convinced that
there is an evidentiary basis in the record for the jury’s verdict
… ‘it [is] immaterial that the court might draw a contrary
inference or feel that another conclusion is more reasonable.’”
Rogers v. ACF Indus., Inc., 774 F.3d 814, 819 (7th Cir. 1985)
(citing Lavender v. Kurn, 327 U.S. 645, 652–54 (1946)). “The fact
that [the EEOC] presented evidence that is inconsistent with
the jury’s verdict does not mean that the verdict should be
reversed.” Lowe v. Consol. Freightways of Del., Inc., 177 F.3d 640,
643 (7th Cir. 1999) (citation omitted). Thus, while it may be
inconsistent for AutoZone to find that Kurta is qualified but
Zych is not, it does not mandate this court to set aside the
jury’s verdict.
B. Denial of Proposed Team Concept Jury Instruction
The EEOC acknowledges that the district court’s jury
instructions for determining an “essential function” of a job
correctly cite the applicable federal regulations. However, the
EEOC argues that the district court’s denial of its proposed
team concept instruction provided the jury with an “incom‐
plete and misleading” statement of the law, which confused
the jury and prejudiced the EEOC. We disagree.
“We review the district court’s refusal to give a jury
instruction only for abuse of discretion.” Rapold v. Baxter Int’l
Inc., 718 F.3d 602, 609 (7th Cir. 2013) (citation omitted). We
examine the jury instructions as a whole, and only reverse and
remand for a new trial if the instructions did not sufficiently
inform the jury of the applicable law and the instructions
prejudiced the EEOC. Id. (citations omitted). “Even if we
believe that the jury was confused or misled, we would need
10 No. 15‐1753
to find that the [EEOC] [was] prejudiced before ordering a new
trial.” Jimenez v. City of Chicago, 732 F.3d 710, 717 (7th Cir. 2013)
(citations omitted).
The EEOC relies exclusively on Miller v. Illinois Department
of Transportation, 643 F.3d 190 (7th Cir. 2011), to support its
argument that the district court had to allow its proposed jury
instruction. We agree with the district court that this case is
factually distinguishable from Miller.
In Miller, the plaintiff was a member of six‐person bridge
crew for the Illinois Department of Transportation (“IDOT”),
which was responsible for a wide variety of tasks. Miller, 643
F.3d at 192. Once the plaintiff began his employment with
IDOT, he informed his team leader that had a fear of heights
and that there were a few discrete tasks (such as “walk a
bridge beam”) that he could not do. Id. IDOT informally
accommodated the plaintiff by having another member of the
bridge crew perform the duties involving heights. Id. at 193.
IDOT also informally accommodated other members of the
bridge crew who could not perform other discrete tasks in a
similar manner. Id. These included one member who could not
weld, one who would not ride in the “snooper bucket,” and
another who would not spray bridges or mow the yards due
to his allergies. Id. The court found that “[o]n this record, a
reasonable jury could find that working at heights … was not
an essential function for [the plaintiff] as an individual member
of the bridge crew.” Id. at 198. The court also distinguished
prior cases in which reassigning an essential function to
another co‐worker did not constitute a reasonable accommoda‐
tion, and stated that “[w]hat sets this case apart from those
earlier cases is [plaintiff’s] evidence that it was in fact the
No. 15‐1753 11
normal course for individual members of the bridge crew to
substitute and reassign tasks among themselves according to
individual abilities, preferences, and limitations.” Id. at
199–200.
The EEOC argues that its proposed team concept instruc‐
tion was necessary because the staffing at the Cudahy, Wiscon‐
sin, AutoZone store presents a similar team work environment
as the IDOT bridge crew in Miller. The EEOC supports this
comparison by citing a passage from the AutoZone employee
handbook that states that employees should “ask for help
when needed” if lifting heavy objects. In addition, the EEOC
notes that employees at AutoZone were evaluated based on
“teamwork” and whether the employee “helps the team
succeed.” The EEOC also relies on testimony from multiple
AutoZone employees who acknowledged helping Zych (and
Kurta) lift heavy objects, as well as Zych’s own testimony that
before her injury other co‐workers had occasionally helped her
or “other women” lift heavy items that she or the other women
could not carry by themselves. Finally, the EEOC notes that
during truck days, Zych testified that she would often do the
scheduling and other paperwork that her co‐workers in the
PSM position did not know how to do, and in exchange those
co‐workers would do Zych’s lifting instead.
We disagree with the EEOC’s comparison between this case
and Miller. First, since it is common practice for employers to
promote cooperation and teamwork amongst their employees,
the fact that AutoZone uses teamwork as a criteria for evaluat‐
ing its employees did not mandate the district court to admit
the EEOC’s proposed jury instruction. Second, the evidence
presented does not show a distribution of labor system in
12 No. 15‐1753
which the “normal course” was for Zych to substitute and
reassign discrete tasks involving lifting certain heavy items and
in exchange other employees did not do discrete tasks that they
were unable to do. Rather, the record indicates that if Zych, or
anyone else, needed help lifting something, someone would
help them, which both the employee guidelines and common
courtesy dictate.
This case is more factually analogous to cases involving
lifting restrictions in which the proposed accommodation was
requiring someone else to do the lifting for the employee at
issue. Here, as in those cases, such an accommodation is not
reasonable because it is essentially delegating the PSM position
to another employee. See James, 707 F.3d at 778, 783 (finding it
was not a reasonable accommodation for a banquet steward at
a hotel with a lifting restriction to delegate lifting objects
involved with maintaining the banquet hall and transporting
food and equipment to another employee at the hotel); see also
Majors, 714 F.3d at 531, 534 (employee with lifting restriction
was not qualified for position that involved “intermittent
movement of heavy objects,” and having another employee do
the lifting was not a reasonable accommodation).
Furthermore, “a judge need not deliver instructions
describing all valid legal principles.” Gehring v. Case Corp., 43
F.3d 340, 343 (7th Cir. 1994). “Rather than describing each
possible inference of the evidence, the judge may and usually
should leave the subject of the interpretation of the evidence to
the argument of counsel.” Hasham v. Cal. State Bd. of Equaliza‐
tion, 200 F.3d 1035, 1051 (7th Cir. 2000) (citation omitted). In
this case, the EEOC’s proposed team concept instruction was
an attempt to have the jury draw an inference that heavy lifting
No. 15‐1753 13
was not an essential function of the PSM position because
Zych’s co‐workers could lift the items that Zych was unable to.
The district court was not obligated to promulgate such an
inference within the jury instructions. Rather, it was proper for
the district court to instead allow the EEOC to make its team
concept argument to the jury in its closing arguments.
Finally, the district court’s denial of the proposed instruc‐
tion did not prejudice the EEOC. We determine whether the
EEOC was prejudiced by examining “the instructions as a
whole, along with all of the evidence and arguments, to deter‐
mine whether the jury was misinformed about the applicable
law.” United States v. White, 443 F.3d 582, 587–88 (7th Cir. 2006)
(emphasis added) (quotation and citation omitted). Although
the district court denied the instruction, the judge allowed the
EEOC to argue its team concept theory to the jury during its
closing arguments. Yet, the EEOC abandoned this theory, and
instead claimed during closing arguments that heavy lifting
was a “marginal function” of the PSM position. Since the
EEOC decided not to present the team concept argument,
despite the district court expressly stating that it could, the
EEOC cannot now claim that it was prejudiced by the district
court’s refusal to admit its proposed jury instruction.2
2
The EEOC also notes that during deliberations the jury asked for
permission to express its views on AutoZone’s conduct. The EEOC
interprets this request to mean that even though the jury believed that
heavy lifting was an essential function, the jury wanted AutoZone to allow
Zych “to continue receiving help.” The EEOC claims that this indicates that
if the proposed jury instruction was admitted, it would have led the jury to
vote differently. Therefore, the EEOC claims it was prejudiced. This
(continued...)
14 No. 15‐1753
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
2
(...continued)
argument is pure speculation, and is insufficient to invalidate the jury’s
verdict. | 01-03-2023 | 01-04-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/560938/ | 932 F.2d 969
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Marty PHILLIPS, Plaintiff-Appellee,v.MICHIGAN DEPARTMENT OF CORRECTIONS, Robert Brown, Jr.,Director, Darryl Opicka, D.O., R.C.F., Craig Hutchinson,M.D., Medical Director, R.C.F., Lynn A. Green, M.D., DeputyMedical Director, M.D.O.C., Defendants-Appellants.
No. 90-1289.
United States Court of Appeals, Sixth Circuit.
May 10, 1991.
Before BOYCE F. MARTIN, JR. and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.
PER CURIAM.
1
Marty Phillips is a prisoner at the Riverside Correctional Facility in Ionia, Michigan. Phillips filed a complaint in September 1988 pursuant to 42 U.S.C. Sec. 1983 alleging that the defendant Michigan Department of Corrections was deliberately indifferent to her serious medical needs. Phillips sought a preliminary injunction. The district court heard testimony and granted Phillips' motion for a preliminary injunction and ordered the defendant to provide Phillips with 2.5 mg per day of the estrogen drug Premarin. Defendant appeals the district court's decision granting Phillips a preliminary injunction.
2
The facts of this case were aptly stated in the district court's published opinion. See Marty Phillips v. Michigan Dep't of Corrections, 731 F.Supp. 792 (W.D.Mich.1990). We feel no need to reiterate them again at this time. We are called upon in this case to judge the propriety of the district court's decision granting a preliminary injunction in favor of Phillips. In doing so, our role is very limited; we will only disturb a district court's decision granting or denying a preliminary injunction for an abuse of discretion. NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir.1989). We find no such abuse of discretion in this case, thus, the decision of the district court is affirmed.
3
We note that there is a strong likelihood that this case is now moot, or will become moot in the very near future. Phillips' underlying conviction was reversed by the Michigan Court of Appeals. The Michigan Supreme Court has recently denied the state's application for leave to appeal this decision. People v. Phillips, 437 Mich. 893 (1991), motion for reconsideration denied, No. 87355 (Mich. March 29, 1991). Presumably, Phillips will be transferred out of the custody of the Michigan Department of Corrections and into the custody of a Michigan trial court to await a new trial. This transfer, of course, will eliminate the controversy between the parties. However, because we have not been notified as to exact date of this transfer, we feel that fairness dictates that we render a decision.
4
Therefore, the decision of the district court granting Phillips a preliminary injunction is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2509997/ | 178 F. Supp. 2d 417 (2001)
Godfrey Van DeWEEVER, Plaintiff,
v.
EXECUTIVE PRODUCER, The Road to El Dorado, Dreamworks Skg, Dreamworks Pictures, Dreamworks Distributors LLC, Defendants.
No. 00 CIV. 4629(NRB).
United States District Court, S.D. New York.
December 20, 2001.
Godfrey Van DeWeever, New York City, Plaintiff, pro se.
Tom J. Ferber, Esq., Michael G. Goldberg, Esq., Pryor Cashman Sherman & Flynn LLP, New York City, for Defendants.
MEMORANDUM AND ORDER
BUCHWALD, District Judge.
Plaintiff, the author of a one-act play entitled "The Sacrifice," sued defendants for copyright infringement stemming from their production and release of the animated film, "The Road to El Dorado" ("El Dorado"). Defendants subsequently moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Because *418 we find that the two works are radically dissimilar and that any similarities between them relate to uncopyrightable elements, defendants' motion is granted.
BACKGROUND
Plaintiff is the author of The Sacrifice, a one-act play about Sir Walter Raleigh's search for gold in Latin America around the turn of the Seventeenth Century.[1]See Def.'s Mem. at 1. In the play's first scene, Raleigh interrogates Don Antonio del Berro, a Spanish governor in the New World about the riches of the "City of Manoa del Dorado" and tries to elicit directions on how to get there, but the latter admonishes him that "del Dorado ... is but a fable ... and perhaps no more real than the lamp of Alladin." The Sacrifice at 10. In the next scene, an undeterred Raleigh interviews a Portugese captain who claims that he had been taken prisoner by Indians who took him to "Manoa," a "city of pure gold" ruled by a king named "El Dorado." Id. at 28. Much to Raleigh's chagrin, however, the Indians who brought the Portugese captain to Manoa blindfolded him for the trip, and did the same when they sent him away from the city after his visit, thus preventing Raleigh from learning its whereabouts. Id. at 28-30. In the final scene, which takes place approximately fifteen years later, a seemingly insane Raleigh rues his failure to find Manoa del Dorado, shoots Walter Keymis (his first captain), and prepares for battle. Id. at 31-34. The general mood of The Sacrifice is dark and its themes seem to be failure, death, and despair.
El Dorado is, on the other hand, a lighthearted animated musical comedy intended for children. The plot centers around two mischievous Spanish con men who win a map showing the way to El Dorado, "the city of gold," in a crooked craps game. They accidentally stow away on Cortez's ship bound for the New World, and, through a series of misadventures, escape from the ship and row to shore in a dingy. Once on land, they recognize a landmark from the map, and embark upon a quest to find El Dorado with the intention to obtain as much gold as possible, then return to Spain. Eventually, with help from a pretty El Dorado native, they find the golden city and are welcomed by the natives who believe them to be gods fulfilling a prophecy.
All is not well in El Dorado, however, because the benevolent and corpulent Chief and the evil high priest are engaged in a divisive struggle for power. When the "gods" arrive, the Chief and priest both attempt to curry divine favor for their cause. The protagonists side with the Chief and the priest is banished from El Dorado, but meets Cortez in the jungle near the city. The priest promises to show Cortez the route to El Dorado in exchange for the latter's assistance in his plot to overthrow the Chief. In the climatic final scene, the con men escape with their lives, but no gold, and are forced to seal the city from the outside world in order to save it from Cortez and the priest.
DISCUSSION
"[A] court may determine non-infringement as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the *419 plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar." Warner Bros., Inc. v. American Broad. Cos., 720 F.2d 231, 240 (2d Cir.1983) (internal quotation marks, citation, and emphasis omitted).[2] Here, a comparison of The Sacrifice and El Dorado demonstrate beyond cavil both that any similarities between them relate only to noncopyrightable elements, and that the two works are not substantially similar.
We will consider the second proposition first. As the above description should make clear, the only similarity between the two plots is the search for the El Dorado (or Manoa), the lost city of gold, in Latin America in the Sixteenth and Seventeenth centuries. The protagonist of The Sacrifice is Sir Walter Raleigh, a historical figure who was an important member of the English Court at the turn of the Seventeenth century,[3] while the protagonists of El Dorado are two fictional Spanish con men. Raleigh's search for the lost city of gold ends in failure, while the con men of El Dorado succeed in finding the city. Finally, the "concept and feel" of the two works could not be more different. Williams v. Crichton, 84 F.3d 581, 589 (2d Cir.1996). The Sacrifice is a serious and tragic dramatic play intended for an adult audience, while El Dorado is an animated musical comedy intended for children. Any further discussion of these two radically different works would be superfluous. They are, in sum, substantially dissimilar, and no reasonable jury, properly instructed, could find that the two works are substantially similar. See Warner Bros., 720 F.2d at 240. This is a sufficient finding to require summary judgment for the defendants. Id.
Moreover, any similarities between the works relate solely to non-copyrightable elements, thus providing an independent ground for summary judgment. See Warner Bros., 720 F.2d at 240. Interpretations of historical events are "not copyrightable as a matter of law." Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978 (2d Cir.1980). As The Sacrifice is based on actual people and actual events,[4] the "scope" of the plaintiff's copyright is "narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain." Id. at 974. Therefore, since the plot and characters of The Sacrifice are interpretations of actual historical events, the only protectible elements of The Sacrifice are its concept and feel. In this regard, we reiterate that The Sacrifice is a dark tragedy and El Dorado is a light comedy, and, therefore, we conclude that the latter did not copy protectible elements *420 of the former. This finding is sufficient on its own to award summary judgment to defendants. See Warner Bros., 720 F.2d at 240.
CONCLUSION
Because we find that The Sacrifice and El Dorado are substantially dissimilar, and because we find that any similarities between them relate to uncopyrightable elements, defendants' motion for summary judgment is granted.
NOTES
[1] Defendants concede, for the purpose of the present motion, that plaintiff holds a valid copyright in The Sacrifice. See Def.'s Mem. at 1. Moreover, Sabrina C. Thomas, Section Head of the Public Services Section of the Library of Congress Photoduplication Service certified that The Sacrifice was granted copyright DU77457 on June 18, 1970.
[2] Of course, in making this determination, we are constrained by the well-established rules governing summary judgment. See, e.g., Pappas v. Giuliani, 118 F. Supp. 2d 433, 436-37 (S.D.N.Y.2000).
[3] See, e.g., Marc Aronson, Sir Walter Raleigh and the Quest for El Dorado (Clarion Books 2000).
[4] Sir Walter Raleigh, the protagonist of The Sacrifice, was an Englishman who spent much of the latter years of his life searching for a lost city of gold. See Aronson; Time-Life Books, Lost Civilizations: The Search For El Dorado 22-25 (1994) (hereinafter Lost Civilizations). Other characters and plot elements in The Sacrifice are also based on historical facts. Don Antonio de Berro, another primary character in The Sacrifice, is likely based on Antonio de Berrio, one of Spain's governors in the New World, who was, in fact, questioned about the lost city by Raleigh. See Aronson at 126-27; Lost Civilizations at 18-23. Walter Keymis appears to have been based on Lawrence Keymis, a lifelong friend of Raleigh, who shot himself when it became apparent that Raleigh's search for the lost city of gold had failed. See Aronson at 165, 182-83. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3158129/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2860
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY SANFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:12-cr-10069-JES-JEH-1 — James E. Shadid, Chief Judge.
____________________
ARGUED OCTOBER 6, 2015 — DECIDED NOVEMBER 25, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. Chicago is a major destination city
for illegal drugs originating in Central and South America.
Interstate 55, which runs from LaPlace, Louisiana, to Chica-
go, is part of the network of north-south and west-east
highways used by drug dealers to deliver their illegal drugs
to the Windy City. See, e.g., National Drug Intelligence Cen-
2 No. 14-2860
ter, National Drug Threat Assessment 2006, “Drug Transporta-
tion Corridors,” www.justice.gov/archive/ndic/pubs
11/18862/transport.htm; Kathy Sweeney, “I-Team: I-55 Drug
Busts,” Feb. 11, 2014, www.kfvs12.com/story/24695389/i-
team-investigation-55-drug-busts (both visited Nov. 24,
2015). Drug dealers also use Interstate 55 to transport drugs
from Chicago to other cities, such as Peoria (southwest of
Chicago)—as we’re about to see.
Shortly after midnight on February 28, 2012, an Illinois
state trooper stopped a car that he had clocked speeding
southbound on I-55 between Chicago and Peoria at 83 miles
per hour—18 miles per hour over the speed limit. The stop
led to a search of the car and the seizure of 1.5 kilograms of
cocaine found in the search. Gregory Sanford, one of two
passengers in the car, was prosecuted in federal court for
possessing and intending to sell the cocaine that had been
found. He pleaded guilty after his motion to suppress the
evidence of the cocaine was denied, and was sentenced to 15
years in prison. But his plea was conditional, Fed. R. Crim. P.
11(a)(2), and allowed him to appeal to challenge the legality
of the search, as he has done. And since the conditional plea
did not purport to affect his right to appeal the sentence, he
has also appealed from the conditions of supervised release
imposed by the district judge.
The trooper who stopped the car for speeding quickly
learned that it had been rented 12 hours earlier in Peoria but
that neither the driver of the car nor either of its two passen-
gers had rented it or was authorized by the rental contract to
drive it. (Apparently Sanford’s brother had rented it.) The
trooper asked each of the three occupants for identification,
and having received it returned to his car to run a criminal-
No. 14-2860 3
history check on each of them. The check revealed that San-
ford and the other passenger were affiliated with the notori-
ous Gangster Disciples street gang, that Sanford had a rec-
ord of 19 arrests for a variety of offenses including drug of-
fenses, and that the other passenger had a recent arrest for
manufacturing cocaine. The trooper requested that a drug-
sniffing dog be fetched to check the stopped car for drugs.
The dog arrived, alerted, and the troopers (a second had ar-
rived 14 minutes after the stop, to provide backup, and had
been joined 5 minutes later by a third trooper, who brought
the drug-detection dog) opened the trunk of the car and
found the cocaine. They gave the driver a speeding ticket
and arrested all three occupants but later released them
when they denied knowledge of the drugs. Sanford, howev-
er, was re-arrested two months later, was indicted, and
pleaded guilty as we said to possession with intent to sell the
cocaine found in the car.
He contends that the search that revealed the cocaine was
illegal because the car he was riding in had been stopped for
speeding and therefore the driver should just have been giv-
en a speeding ticket and allowed to drive off. He insists that
the trooper had no right to look up the driver’s criminal his-
tory on the police car’s computer, let alone the criminal his-
tories of the passengers, for there was no reason to think
them responsible for the driver’s having been speeding. The
trooper acknowledged that he doesn’t usually search the
criminal histories of drivers or passengers during stops for
mere traffic violations, such as speeding. But he testified that
his suspicions had been aroused by a combination of facts
that he knew, or quickly learned when he stopped the car:
drug couriers often use cars rented by third parties; I-55 is a
known drug corridor; and the occupants were nervous and
4 No. 14-2860
evasive, reluctant to speak, and made poor eye contact (un-
like, the trooper testified, most persons in a car stopped by
police for a traffic violation). In addition, although to drive
from Peoria and Chicago and back again takes about four
hours, the travelers had spent very little time in Chicago—
enough time for a drug delivery or pickup, but not enough
for a normal visit.
The trooper checked the occupants’ criminal histories on
the computer in his car—a procedure permissible even
without reasonable suspicion, see United States v. Braca-
montes, 614 F.3d 813, 816 (8th Cir. 2010); United States v. Pur-
cell, 236 F.3d 1274, 1278–79 (11th Cir. 2001); United States v.
McRae, 81 F.3d 1528, 1535–36 n. 6 (10th Cir. 1996)—indeed a
procedure in itself normally reasonable, as it takes little time
and may reveal outstanding arrest warrants. After checking
for criminal histories the trooper waited for the arrival of the
dog that he’d requested be brought to check for the presence
of illegal drugs. While waiting he obtained additional suspi-
cious information from the driver. She claimed to have been
visiting Sanford’s hospitalized grandmother, but also said
that she and her passengers had left Peoria at 6 pm, which
meant that the visit would have been late at night. And she
couldn’t name the hospital.
The total time from the initial stop of the car until the dog
alerted for drugs was 26 or 27 minutes.
The district judge denied Sanford’s motion to suppress
the cocaine evidence mainly on two grounds: that as a pas-
senger in the car rather than the owner, a renter, or the driv-
er he had no standing to file such a motion, and that even if
he had standing the delay had not made the search unlaw-
ful. In the judge’s words,
No. 14-2860 5
I don’t see that there is standing to challenge the
search of the car given that he [Sanford] was a pas-
senger … . Nothing in his name, no valid license to
enter into the rental agreement, any indication oth-
er than his brother entered into the rental agree-
ment. I don’t think really the officer had any reason
to think that Mr. Sanford had an interest in the ve-
hicle other than the fact that he was told that his
brother rented the car. The rental agreement indi-
cated that there was no authorization available to
anybody else to drive the car. To the extent that his
brother renting the car and giving it to the defend-
ant caused some interest that may cause standing, I
believe still that the combination of the matters, the
facts as addressed by [the prosecutor], the speeding
created the probable cause to stop the car, and then
the—asking questions, the third-party rental in-
formation, gathering the information from that, the
computer screen info, was not any kind of an un-
reasonable extension of the stop, and then finally,
as the officer testified to something about the par-
ties given his experience, the late at night, again the
third-party rental information, and then the dog
sniff, created probable cause for the search. So the
motion would be respectfully denied.
We are mindful that the Supreme Court, in Rakas v. Illi-
nois, 439 U.S. 128, 139–140 (1978), said that it was better to
ask whether a person asserting a Fourth Amendment right
has a personal “interest” that the search infringed than
whether he has “standing” to challenge the search. But the
two formulas come to the same thing, and cases continue to
discuss Fourth Amendment “standing.” See, e.g., Brendlin v.
California, 551 U.S. 249, 259–60 (2007); United States v. Padilla,
508 U.S. 77, 80–82 (1993); Minnesota v. Olson, 495 U.S. 91, 101
6 No. 14-2860
(1990) (concurring opinion); United States v. Wilbourn, 799
F.3d 900, 908–10 (7th Cir. 2015); United States v. Walton, 763
F.3d 655, 660–66 (7th Cir. 2014); United States v. Miller, 799
F.3d 1097, 1103, 1107 (D.C. Cir. 2015); United States v. Angui-
ano, 795 F.3d 873, 878 (8th Cir. 2015). There is no practical
difference between the two usages.
The Fourth Amendment entitles people “to be secure in
their persons, houses, papers, and effects against unreasona-
ble searches and seizures.” The last three “theirs”—houses,
papers, and effects—have been understood compendiously
as “property” in a sense not limited to the enumerated terms
interpreted literally, and not even requiring ownership. E.g.,
Rakas v. Illinois, supra, 439 U.S. at 141–43. More to the point,
the Supreme Court has enlarged the scope of the Fourth
Amendment to include the protection of privacy. See Minne-
sota v. Olson, supra, 495 U.S. at 98–100 (“a houseguest has a
legitimate expectation of privacy in his host’s home” and
therefore “can claim the protection of the Fourth Amend-
ment”); United States v. Salvucci, 448 U.S. 83, 91–92 (1980)
(“while property ownership is clearly a factor to be consid-
ered in determining whether an individual’s Fourth
Amendment rights have been violated, property rights are
neither the beginning nor the end of this Court’s inquiry”
(citation omitted)). “[A] person can have a legally sufficient
interest in a place other than his own home so that the
Fourth Amendment protects him from unreasonable gov-
ernment intrusion into that place.” Rakas v. Illinois, supra, 439
U.S. at 142. Yet even if you had no formal or informal prop-
erty interest in the premises, you would still have grounds to
resist a search or seizure of your person, or of personal
property of yours that you might have with you in the room
in which you’re staying (even if you’re a guest rather than
No. 14-2860 7
an owner or tenant), or the car in which you’re riding. See,
e.g., Brendlin v. California, supra, 551 U.S. at 251; Wyoming v.
Houghton, 526 U.S. 295, 303–07 (1999); Ybarra v. Illinois, 444
U.S. 85, 91–92 (1979).
Sanford, though he’d not rented the car that the police
stopped, could be thought to have had a property interest in
it as a kind of subtenant. Although he’d driven it earlier that
day, he didn’t have a valid license–a situation that we said in
United States v. Haywood, 324 F.3d 514, 515–16 (7th Cir. 2003),
deprives a mere borrower of a rented car of standing to chal-
lenge a search of it. That decision, on which our subsequent
decision in United States v. Walton, supra, 763 F.3d at 666,
casts a shadow, may be due for reconsideration. It can be ar-
gued that if you rent a limousine, or it’s lent to you by a
friend, you have a possessory interest in it even though
you’re not expected to drive it—indeed, even if you not only
don’t have a valid driver’s license but have never learned to
drive. Sanford’s situation is analogous. He was a borrower
of the car.
For completeness we note the existence of a circuit split
over whether an unauthorized rental-car driver has a legiti-
mate expectation of privacy sufficient to establish standing
to challenge a search. Most circuits have ruled that pos-
sessing a rental car without the rental company’s permission
precludes standing. But two circuits disagree and this court
has yet to take sides (as noted in United States v. Walton, su-
pra, 763 F.3d at 662–63). Compare United States v. Kennedy,
638 F.3d 159, 164–68 (3rd Cir. 2011); United States v. Wellons,
32 F.3d 117, 118–19 (4th Cir. 1994); United States v. Boruff, 909
F.2d 111, 117 (5th Cir. 1990); and United States v. Obregon, 748
F.2d 1371, 1374–75 (10th Cir. 1984), with United States v.
8 No. 14-2860
Thomas, 447 F.3d 1191, 1198–99 (9th Cir. 2006); and United
States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998). The Sixth
Circuit takes the position that an unauthorized rental-car
driver may have standing in special circumstances, such as
where he has a valid license, he arranged the rental, and his
wife was listed as the authorized driver. United States v.
Smith, 263 F.3d 571, 586–87 (6th Cir. 2001).
We need not resolve Sanford’s standing as a borrower
and passenger because even if he lacks standing to challenge
the search on the basis of having a quasi-property right of
some sort in the car, he has standing to challenge the seizure
of his person (in the loose sense in which “seizure” is used in
Fourth Amendment cases) when the car was stopped by the
police. Therefore he has standing to challenge any search
that resulted from his seizure if the seizure was unlawful.
Brendlin v. California, supra, 551 U.S. at 256–59; United States
v. Wilbourn, supra, 799 F.3d at 908–10; United States v. Bueno,
703 F.3d 1053, 1055–62 and 1059 n. 3 (7th Cir. 2013), vacated
in part on other grounds, Gonzalez-Zavala v. United States, 133
S. Ct. 2830 (2013). Such a seizure, of driver and passengers
alike, occurs every time police stop a car that has a passen-
ger, but is lawful if there’s reason to think the driver is vio-
lating a traffic law, as in this case.
Recently, however, the Supreme Court has held that such
a seizure turns unlawful if it is prolonged in order to con-
duct a dog sniff (which requires bringing the dog to the sce-
ne of the stop, and therefore takes a while), without reason-
able suspicion that there are illegal drugs secreted in the
stopped vehicle. Rodriguez v. United States, 135 S. Ct. 1609,
1614–16 (2015). But there was reasonable suspicion in this
case (in contrast, in Rodriguez the Supreme Court remanded
No. 14-2860 9
for a determination of whether there had been reasonable
suspicion), given the factors listed earlier in this opinion that
had made the trooper suspicious. Cf. United States v. Finke,
85 F.3d 1275, 1280–82 (7th Cir. 1996); United States v. Winters,
782 F.3d 289, 298–303 (6th Cir. 2015); United States v. Davis,
636 F.3d 1281, 1291–92 (10th Cir. 2011). Since the criminal-
history check was justified, Sanford is left only to argue that
having finished the check the police dawdled in issuing the
ticket, thereby gratuitously extending the time in which San-
ford was trapped in the stopped car (“seized”). The trooper
who had stopped the car spent several minutes chatting with
a fellow trooper about sports and a euchre tournament while
twice stating (then quickly correcting himself) that he want-
ed to wait for the dog to arrive before completing the writing
of the ticket. The criminal histories that he uncovered in his
computer search made a compelling case to wait for the
dog—the trooper had reasonable suspicion of criminal activ-
ity at that point and so was justified in prolonging the stop
for a reasonable time to confirm or dispel, with the dog’s as-
sistance, his mounting suspicions. Only about eight more
minutes elapsed before the dog arrived. That was not an un-
reasonable amount of time to prolong the stop. See United
States v. Pettit, 785 F.3d 1374, 1378, 1383 (10th Cir. 2015) (rea-
sonable suspicion justified the trooper in prolonging the stop
by 15 minutes to wait for the arrival of the drug dog); United
States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007) (a 31-minute
wait for the drug dog to arrive was reasonable because there
was reasonable suspicion that drugs would be found in the
vehicle).
There is a further wrinkle. The car-rental contract prohib-
ited anyone from driving the car whom the contract didn’t
authorize to drive it, and none of the three persons in the car
10 No. 14-2860
was authorized. The trooper could therefore have called the
rental agency, alerted it to the situation, and in all probabil-
ity have been asked by the agency to impound the car, as in
United States v. Wellons, supra, 32 F.3d at 118–19. The trooper
didn’t do that (we’re not told why he didn’t), but the fact
that he could have, with predictable results, further attenu-
ates the defendant’s claim to have been unjustifiably seized.
So Sanford’s conviction was proper, but he also challeng-
es the conditions of supervised release that the district judge
imposed. The government acknowledges that this part of his
appeal has solid merit, and so agrees with Sanford that the
case should be remanded with instructions that the judge
reconsider the sentence he imposed, though just the condi-
tions of supervised release and not the prison term.
There are three problems with the conditions of super-
vised release that the judge imposed. First, the written
judgment contains thirteen so-called “standard” conditions
of supervised release that the judge did not mention at the
sentencing hearing. Those conditions must be stricken be-
cause only punishments stated orally, in open court, at sen-
tencing are valid. United States v. Johnson, 765 F.3d 702, 711
(7th Cir. 2014). Second, the judge did not attempt to justify
the conditions that he did impose at the sentencing hearing,
as required by United States v. Thompson, 777 F.3d 368, 373
(7th Cir. 2015). And third, a number of the conditions listed
in the written judgment suffer from a variety of infirmities
identified in decisions such as Thompson and United States v.
Kappes, 782 F.3d 828 (7th Cir. 2015), decisions rendered after
Sanford had been sentenced.
We need to consider whether the resentencing hearing
that we’re ordering should be limited to conditions of su-
No. 14-2860 11
pervised release, or whether the judge should be permitted
to alter the prison sentence that he imposed. The second
course generally is preferable, given the interplay between
the two types of sentencing. See, e.g., id. at 867. Although
conditions of supervised release take effect (as the name im-
plies) only upon the defendant’s release from prison, realis-
tically they are a form of custody, like parole, because they
impose significant limitations on a person’s freedom. Con-
sider for example the common condition of supervised re-
lease that requires the permission of the defendant’s proba-
tion officer to take a trip outside the federal judicial district
in which the defendant lives. See 18 U.S.C. § 3563(b)(14);
U.S.S.G. § 5D1.3(c)(1).
The more severe the conditions of supervised release, the
stronger the case for a lighter prison sentence; the less se-
vere, the weaker that case. Sanford was given a prison sen-
tence that, though long, was 82 months below the bottom of
his guidelines range. So were the district judge on remand to
lighten the conditions of supervised release that he imposed,
which he has now to reexamine, he might wish to lengthen
the prison sentence, as a kind of compensation. Conversely,
were he to impose more severe (and this time valid) condi-
tions of supervised release, he might wish to shorten San-
ford’s prison sentence somewhat. But Sanford and the gov-
ernment had agreed to the 180-month prison term as part of
his guilty plea, and the district judge’s acceptance of the plea
agreement will bind the district judge on remand just as it
does the parties. Fed. R. Crim. P. 11(c)(1)(C); see also Advi-
sory Committee Note, 1999 Amendments. “[O]nce the court
has seen the presentence report and given its approval, it is
not free to revisit the plea agreement simply because, for
whatever reason, the defendant later comes back to the court
12 No. 14-2860
for resentencing.” United States v. Ritsema, 89 F.3d 392, 401
(7th Cir. 1996). A contrary rule would deprive plea agree-
ments governed by Rule 11(c)(1)(C) of finality and indeed
render them illusory by depriving both sides of the benefits
they had anticipated from entering into such agreements.
United States v. Ritsema, supra, 89 F.3d at 400–01; see also
United States v. Ray, 598 F.3d 407, 408–11 (7th Cir. 2010);
United States v. Main, 579 F.3d 200, 202–04 (2d Cir. 2009);
United States v. Olesen, 920 F.2d 538, 539–43 (8th Cir. 1990).
Because the district judge accepted Sanford’s Rule
11(c)(1)(C) plea agreement, the judge is bound by the agree-
ment’s terms. And he can’t retract that acceptance even if
our remand makes the judge regret having accepted it. Unit-
ed States v. Ritsema, supra, 89 F.3d at 401. In short he can re-
vise the conditions of supervised release but he can’t alter
the term of imprisonment.
The judgment is therefore
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. | 01-03-2023 | 11-25-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3164428/ | Slip Op. 15 - 144
UNITED STATES COURT OF INTERNATIONAL TRADE
:
TOSCELIK PROFIL VE SAC ENDUSTRISI A.S., :
:
Plaintiff, :
:
v. : Before: R. Kenton Musgrave, Senior Judge
:
UNITED STATES, : Court No. 14-00211
:
Defendant. :
:
OPINION AND ORDER
[Remanding administrative review of respondent’s countervailing duty rate.]
Dated: December 21, 2015
David L. Simon, Law Offices of David L. Simon, of Washington DC, for the plaintiff.
Melissa M. Devine, Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington DC, for the defendant. With her on the brief were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin
E. White, Jr., Assistant Director. Of Counsel on the brief was David P. Lyons, Attorney, Office of
the Chief Counsel for Import Administration, U.S. Department of Commerce.
Musgrave, Senior Judge: The plaintiff, Toscelik Profil ve Sac Endustrisi A.S.
(“Toscelik”), a producer of subject merchandise for the Turkish domestic and export markets, filed
this action to contest Circular Welded Carbon Steel Pipes And Tubes From Turkey: Final Results
of Countervailing Duty Administrative Review; Calendar Year 2012 and Rescission of
Countervailing Duty Administrative Review, in Part, 79 Fed. Reg. 51140 (Aug. 27, 2014) (“2012
CVD Review”). The matter concerns Toscelik’s net subsidy rate, which was incorporated into the
2012 CVD Review results by reference to the prior 2011 CVD Review segment of the CVD
Court No. 14-00211 Page 2
proceeding.1 The plaintiff challenges the posture of the 2012 CVD Review due to its successful
litigation of the 2011 CVD Review. See Toscelik Profil ve Sac Endustrisi A.S. v. United States, 38
CIT ___, Slip Op. 14-126 (Oct. 29, 2014) (“Toscelik I”), remand results sustained, 39 CIT ___, Slip
Op. 15-28 (Apr. 1, 2015) (“Toscelik II”). The defendant, International Trade Administration, U.S.
Department of Commerce (“ITA” or “Commerce”), argues Toscelik failed to exhaust its
administrative remedies.
I. Background
Prior to publication of the review for year 2011, Commerce initiated the year 2012
review and selected Borusan Mannesmann Boru Sanayi ve Ticaret A.S. (Borusan) as the sole
mandatory respondent. Respondent Selection Memorandum at 4-5 (May 17, 2013), PDoc 17.
Toscelik participated in the proceeding by filing comments concerning respondent selection matters.
See Toscelik Respondent Selection Comments (May 13, 2013), PDoc 13.
Commerce published the 2011 CVD Review on October 30, 2013, assigning Toscelik
a subsidy rate of 0.83 percent. 78 Fed. Reg. 64917. On November 5, 2013, Toscelik appealed that
proceeding here. In its opening brief, Toscelik argued that certain deficiencies in the calculation of
a land benchmark rendered the 2011 subsidy rate invalid. See Pl. Mot. for Judgment Upon the
Admin. Record, Toscelik Profil ve Sac Endustrisi A.S. v. United States, No. 13-00371 (CIT Mar. 21,
2014), ECF No. 28.
1
Circular Welded Carbon Steel Pipes And Tubes From Turkey: Final Results of
Countervailing Duty Administrative Review; Calendar Year 2011, 78 Fed. Reg. 64916 (Oct. 30,
2013) and accompanying issues and decision memorandum (“2011 CVD Review”).
Court No. 14-00211 Page 3
On April 23, 2014, Commerce published its preliminary results of the 2012 review.
Circular Welded Carbon Steel Pipe and Tube Products from Turkey, 79 Fed. Reg. 22625 (Apr. 23,
2014) (prelim. determ.) (2012 Preliminary Results), and accompanying preliminary decision
memorandum (Apr. 17, 2014) (“PDM”), PDoc 109. Commerce calculated a de minimis rate for
Borusan. PDM at 1. However, in accordance with its practice, Commerce did not assign Toscelik
a de minimis rate as well; rather, Commerce assigned Toscelik the subsidy rate of 0.83 percent that
Toscelik had received in the 2011 CVD Review results. Id. at 7.
Pursuant to its regulations, Commerce provided 30 days for interested parties to
submit case briefs and five days thereafter to submit rebuttal briefs on the 2012 Preliminary Results.
79 Fed. Reg. at 22627. The government emphasizes that Toscelik did not file case or rebuttal briefs,
nor did Toscelik comment upon the 2012 Preliminary Results in some other form or request an
extension to submit arguments. See Admin. Record at 15-35, ECF No. 16.
In the 2012 CVD Review, published in August 2014, Commerce continued to apply
the 0.83 percent subsidy rate to Toscelik as in the 2012 Preliminary Results. 79 Fed. Reg. at 51141.
Commerce did not evaluate or address arguments regarding the subsidy rate Toscelik received
because the record contained no challenges to that rate. See id.; see also IDM at 3-4.
Thereafter, on February 13, 2015, in its final remand results concerning the 2011 CVD
Review, Commerce revised the land benchmark used to calculate Toscelik’s 2011 subsidy rate,
lowering Toscelik’s subsidy rate for the 2011 period of review from 0.83 percent to 0.44 percent.
Final Results of Redetermination Pursuant to Court Remand, Toscelik Profil ve Sac Endustrisi AS
Court No. 14-00211 Page 4
v. United States, No. 13-00371 (Feb. 13, 2015). Those results were sustained on April 1, 2015.
Toscelik II, Slip Op. 15-28.
II. Jurisdiction and Standard of Review
Toscelik has standing under 19 U.S.C. §1516a(d) and 28 U.S.C. §2631(c), and
judicial review concerns whether Commerce’s countervailing duty determinations are unsupported
by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. §
1516a(b)(1)(B)(i). See Royal Thai Government v. United States, 436 F.3d 1330, 1335 (Fed. Cir.
2006). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
Pursuant to 28 U.S.C. § 2637(d), the court “shall, where appropriate, require the
exhaustion of administrative remedies.” The court “generally takes a ‘strict view’ of the requirement
that parties exhaust their administrative remedies.” Corus Staal BV v. United States, 502 F.3d 1370,
1379 (Fed. Cir. 2007) (citations omitted).2
2
“A reviewing court usurps the agency’s function when it sets aside the administrative
determination upon a ground not theretofore presented and deprives the [agency] of an opportunity
to consider the matter, make its ruling, and state the reasons for its action.” Unemployment Comp.
Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946). Commerce’s regulations also require that
a party’s administrative review case brief “present all arguments that continue in the submitter’s
view to be relevant to [Commerce’s] final determination or final results, including any arguments
presented before the date of publication of the preliminary determination or preliminary results.” 19
C.F.R. § 351.309(c)(2); see also Dorbest Ltd. v. United States, 604 F.3d 1363, 1375 (Fed. Cir. 2010);
Mid Continent Nail Corp. v. United States, 37 CIT ___, ___, 949 F. Supp. 2d 1247, 1260-61 (2013);
Pakfood Public Co. v. United States, 34 CIT 1122, 1143-44, 724 F. Supp. 2d 1327, 1350 (2010).
“The exhaustion requirement in this context is therefore . . . a requirement explicitly imposed by the
agency as a prerequisite to judicial review.” Corus Staal, 502 F.3d at 1379. “Issues that are not
addressed in an administrative case brief filed with the agency are generally deemed abandoned.”
Mid Continent Nail, 37 CIT at ___ n.10, 949 F. Supp. 2d at 1261 n.10. “A violation of Commerce’s
regulation, therefore, supplies an independent ground for determining that an argument has not been
exhausted.” Samsung Electronics Co. v. United States, 72 F. Supp. 3d 1359, 1370 (2015).
Court No. 14-00211 Page 5
III. Discussion
Because Commerce recalculated via remand the subsidy rate underlying Toscelik’s
2011 rate, Toscelik’s opening brief argues that those results should extend to this 2012 review. See
Pl’s Br. at 4-6; Compl. ¶21. The government’s sole objection is that Toscelik failed to exhaust that
argument before Commerce in the first instance. See generally Def’s Resp.
The government posits that Toscelik “chose” not to exhaust even though the issue of
the 0.84 percent subsidy rate was “squarely in play” in the 2012 Preliminary Results. Def’s Resp.
at 6, referencing Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1380-81
(Fed. Cir. 2013) (“Bestpak”); QVD Food Co. v. United States, 34 CIT 1166, 1176, 721 F. Supp. 2d
1311, 1320 (2010), aff’d, 658 F.3d 1318 (Fed. Cir. 2011); Gerber Food (Yunnan) Co. v. United
States, 33 CIT 186, 197-98, 601 F. Supp. 2d 1370, 1381-82 (2009). The government contends that
the “same procedural posture existed administratively”, requiring exhaustion, as what Toscelik is
attempting to accomplish here judicially,3 see id. at 7-8, and that the 2012 CVD Review is an entirely
separate proceeding, id. at 8-9 (citation omitted). “Commerce is not required to consider information
beyond the administrative record in question”, id. at 9, referencing Essar Steel Ltd. v. United States,
678 F.3d 1268, 1277 (Fed. Cir. 2012),4 and “[t]he court may not force Commerce to reach outside
3
See, e.g., Pl. Br. at 4 (“Toscelik ha[s] preserved the issue by appealing from the 2012 final
results.”); Compl. ¶21 (“[i]nsofar as Commerce has expressly linked the final result of the 2012
review to the final result of the 2011 review, which is currently upon appeal, therefore, the final
results of the 2012 review should be determined in accordance with the outcome of Case. No.
13-00371”).
4
“If, upon the coming down of the order litigants might demand rehearings as a matter of
law because some new circumstance has arisen, some new trend has been observed, or some new
fact discovered, there would be little hope that the administrative process could ever be
(continued...)
Court No. 14-00211 Page 6
the administrative record in question even if a particular document or argument would, if raised at
the administrative level, be relevant to Commerce’s determination”, id. (citation omitted). The
government therefore argues “[i]t is . . . of no moment that the arguments Toscelik made in the 2011
review and ensuing litigation ultimately earned it a redetermined subsidy rate for 2011.” Id.
Distinguishing Toscelik’s reliance upon Maverick Tube Corp. v. United States, see 39
CIT ___, Slip Op. 15-59 (June 15, 2015) at 12, on that ground that Toscelik in fact pursued and
exhausted administrative remedies on the issue in that case,5 and distinguishing the remand order
relating to the 2011 CVD Review from Toscelik I on the bases that not only did Commerce’s request
for voluntary remand moot the exhaustion argument raised by one of the domestic industry
petitioners, see Toscelik I, Slip Op. 14-126 at 11 n.11, but also that in the original administrative
proceeding Toscelik had in fact advocated for the revised benchmark in its rebuttal brief in response
to petitioners’ case brief,6 the government in the end contends that Toscelik fails to support its
contention that any argument regarding the use of its 2011 rate would have been fruitless or that
Commerce would not have considered and addressed such arguments; that even given a substantial
likelihood that Commerce would have rejected them, “it still would have been preferable, for
purposes of administrative regularity and judicial efficiency” for parties “to make arguments in case
4
(...continued)
consummated in an order that would not be subject to reopening.” 678 F.3d at 1277 (citation
omitted).
5
See Oil Country Tubular Goods from Turkey, 79 Fed. Reg. 41964 (July 18, 2014) (final
determ.) and attached issues and decision memorandum at cmt. 11 (addressing Toscelik’s arguments
concerning the land benchmark calculated in the 2011 review of circular welded pipe from Turkey).
6
See Circular Welded Carbon Steel Pipes And Tubes From Turkey, 78 Fed. Reg. 64916
(Oct. 30, 2013) (final determ.), and accompanying IDM at cmt. 4.
Court No. 14-00211 Page 7
brief[s] and for Commerce to give its full and final administrative response in the final results.” See
Def’s Resp. at 12, quoting Corus Staal BV v. United States, 502 F.3d 1370, 1380 (Fed. Cir. 2007).
The government argues Toscelik has neither satisfied this “standard” nor explained how Commerce
would have been unwilling or unable to consider its arguments during the 2012 administrative
review; specifically with respect to Toscelik’s assertion that filing a case brief would not have
prompted Commerce to do “anything other than what was done at the preliminary phase”, Pl. Br. at
5, the government contends that this is “unsupported speculation” and that Toscelik provides no
other reason to presume that Commerce “would have overlooked” arguments on the 2012 rate.
Here, the government again emphasizes that during the 2011 review Toscelik took
administrative steps to oppose the 2011 subsidy rate and that the final results for the 2011 CVD
Review preceded the 2012 Preliminary Results by more than six months; however, Toscelik
“declined” to submit arguments on the 2012 Preliminary Results and therefore Toscelik “denied
Commerce the opportunity to consider its arguments concerning the 2012 Preliminary Results and
the petitioners the opportunity to comment upon Toscelik’s arguments”, i.e., Toscelik “failed to alert
Commerce during the review that it was at risk of applying a rate that could be changed following
a remand in Court. No. 13-00371.” Def’s Resp. at 13, quoting Indep. Radionic Workers of America
v. United States, 18 CIT 851, 863, 862 F. Supp. 422, 434 (1994) (“an administrative agency ‘is
obliged to deal with a large number of like cases’. . . . [and o]bjecting to [ITA’s] action in the second
administrative review at least would have put ITA ‘on notice of the accumulating risk of . . .
reversals’ in these multi-issue serial reviews”) (quoting United States v. L.A. Tucker Lines, Inc., 344
Court No. 14-00211 Page 8
U.S. 33, 37 (1952)). Restating its position, the government argues the futility exception should not
apply here “[i]n the interests of fairness to the agency[.]” Id. quoting id.
Toscelik raises several points in reply. First, Toscelik contends the government does
not dispute that the 0.83 percent rate that Commerce applied to Toscelik (namely, the 2011 CVD
Review results as they concerned Toscelik’s rate) was ultimately deemed unlawful and was corrected,
on remand, to de minimis 0.44 percent,7 i.e., the government does not dispute that the 0.83 percent
applied to Toscelik in the 2012 CVD Review is an incorrect rate, and that the government’s sole
argument is that Toscelik failed to exhaust its administrative remedies in the 2012 CVD Review.
Second, Toscelik argues it was under no obligation to file a case brief in this
proceeding because there was no administrative record created during the 2012 review concerning
Toscelik’s CVD rate, Commerce simply reached back and “plucked” its result from the final results
of the 2011 review without incorporating any substantive record concerning the underlying
calculation. There was therefore, Toscelik argues, no record on the basis of which it could frame
arguments in a case brief.
Third, Toscelik emphasizes it did not, and does not, argue that it was unlawful or
incorrect for Commerce to reach back to the previous review for its result, it argues that Commerce
reached back to a defective result, and that the defect could only be litigated, as it was, in an appeal
from the eleventh review, which would then become applicable to the twelfth review ipso facto.
7
See Toscelik II, Slip Op. 15-28; see also Circular Welded Carbon Steel Pipes and Tubes
from Turkey: Notice of Court Decision Not In Harmony With Final Results of Countervailing Duty
Administrative Review and Notice of Amended Final Results of Countervailing Duty Administrative
Review; 2011, 80 Fed. Reg. 43709 (July 23, 2015).
Court No. 14-00211 Page 9
Expanding on these points, Toscelik argues the present case is distinguished from all
those cited in the government’s response brief by the fact that there was no administrative record in
the present case against which Toscelik could raise arguments in a case brief. For example, if
Commerce had incorporated the calculations of the eleventh review into this twelfth, then Toscelik
could have argued that specific aspects of the calculation were in error, but Commerce simply took
the ultimate number from the final results of the eleventh review as the final result for Toscelik in
the twelfth review. Again: Toscelik does not claim that Commerce acted unlawfully in reaching
back to the eleventh review for its result in the twelfth or was required to incorporate any part of the
record of the eleventh review into the twelfth, nor does Toscelik take issue with Commerce’s policy
of applying to a non-mandatory respondent the result of the most recently completed review of that
company when such a result exists; Toscelik emphasizes its belief, generally speaking, that this is
a reasonable exercise of Commerce’s discretion and therefore unobjectionable.
Based on the foregoing, it is therefore difficult to discern what argument Toscelik
might have made in an administrative case brief to espouse a different outcome. Toscelik could not
argue against the “reach-back” policy, nor could it plausibly argue that Commerce should place the
twelfth review on hold until the flaws of the eleventh review were litigated, since Commerce is on
a statutory schedule that permits no such suspension. 19 U.S.C. §1675(a)(3). Nor could Toscelik
argue that the “facts” did not support the use of the 0.83 percent rate, since there were no facts
relevant to Toscelik that were actually determined in the twelfth review: the record in that respect
is a void. Nor could Toscelik argue that the results of the eleventh review were erroneous, because
such an argument is properly presented only in the eleventh review, where there was a record on
Court No. 14-00211 Page 10
which to base such an argument. The flaw in the final result of the 2012 CVD Review is not a flaw
of the twelfth review but rather a flaw of the eleventh, and there is no argument Toscelik could have
made during the twelfth review that could possibly have resulted in redress of the error of the
eleventh review. As such, the court agrees with Toscelik that the fact that there was no record on
which to base any argument translates into a “useless formality” defense against an exhaustion
argument; see Jiaxing Brother Fastener Co. v. United States, 34 CIT ___, ___, 751 F. Supp. 2d
1345, 1355-56 (2010). That is, it would have been useless for Toscelik to argue in the twelfth review
that Commerce could correct the error of the eleventh review, particularly when the eleventh review
was sub judice. It would also have been useless for Toscelik to assert that Commerce’s “reach-back”
policy was an abuse of discretion, when Toscelik agrees that the reach-back policy is lawful.8
The government asserts that “[i]n the review at issue in this case, Toscelik at a
minimum could have challenged Commerce’s application of the 0.83 subsidy rate, and the
methodology through which it was calculated, because that rate was being challenged in Court No.
13-00371.” Def’s Resp. at 6. However, the defending position is contrary to fact, as there was no
record in the twelfth review on which to predicate an attack on the facts or methodology underlying
the 0.83 percent rate of the eleventh review.
Similarly, the government asserts that “the issue Toscelik now presents to this Court
was ‘squarely in play[,]’ yet Toscelik chose not to file a case brief at all.” To the contrary, the
8
Cf. Diamond Sawblades Manufacturers’ Coalition v. United States, 35 CIT ___, Slip Op.
11-137 (Nov. 3, 2011) (noting the domestic industry coalition’s acknowledgment that it would be
“improper to preserve [the coalition’s] challenge to the LTFV determination by ‘challenging’ the
section 129 determination (with which [the coalition] avers it has no substantive contention), simply
in order to bring . . . revocation [of the antidumping duty order] under the ambit of [the coalition's]
challenge to the LTFV determination”).
Court No. 14-00211 Page 11
lawfulness of the eleventh review result was not squarely in play in the twelfth review; Commerce
selected the ultimate number, 0.83 percent, from the final results of the 2011 CVD Review, but there
was no record underlying that number against which to argue. The twelfth review is a purely
derivative action; it turns wholly on the lawfulness vel non of the eleventh review, and has no
independent authority or correctness. In other words, there was nothing in the twelfth review about
which to write a case brief.
The government also claims that Bestpak, supra, compels the conclusion that
Toscelik’s useless-formality defense is unavailing. However, the core issue in Bestpak concerning
exhaustion was whether that plaintiff’s failure to raise an argument concerning a particular invoice
that was part of the record under review constituted a failure to exhaust. That is distinct from the
present case in that the plaintiff in Bestpak had the administrative ability to argue that the invoice
of record supported its position and failed to take advantage of that, whereas in the case at bar there
is no factual record from which Toscelik could argue that the result was wrong. Indeed, in all the
cases cited by the government, there was a record on which the plaintiffs could have based the
arguments that were deemed to have been waived.
The remaining arguments of the government are unpersuasive. For example, the
government asserts that Toscelik’s “subsidy rate ‘had been squarely in play’ during the 2012
administrative review and was the reason for its court challenge of the 2011 Final Results”, Def’s
Resp. at 7, but it is difficult to discern the extent of what is meant by this. As Toscelik points out,
its subsidy rate was not literally “in play” during the 2012 review because Commerce selected only
Borusan as a mandatory respondent, and only Borusan’s rate was “in play” in the 2012 review.
Court No. 14-00211 Page 12
Insofar as the 2012 review was concerned, Toscelik’s rate was entirely derivative: if Borusan had
an affirmative rate, it would have applied to Toscelik; and if Borusan had a zero or de minimis rate,
then Toscelik’s eleventh-review results would apply. In neither case could it be said that Toscelik’s
subsidy rate was “in play” in the 2012 review, at least in the sense advanced by the government.
And it is also difficult to discern what is meant by “Toscelik’s rate . . . was the reason
for the [judicial] challenge of the 2011 Final Results.” That is true, of course, but the statement does
not appear relevant to the 2012 review. The statement seems to link the 2011 appeal to the 2012
review, but there was nothing Toscelik could possibly have argued in the 2012 review while the
2011 case was sub judice that could conceivably have affected the outcome of the 2012 review.
The government also notes, properly, that “Commerce is not required to consider
information beyond the administrative record in question”, Def’s Resp. at 9, but it is difficult to
discern how this truism furthers the argument here. Toscelik is not arguing that Commerce should
have reconsidered the 2011 calculations in (and that were not made part of the record of) the 2012
review, Toscelik is simply arguing that, when the 2011 result was found to be inaccurate, Toscelik
was entitled to the same accuracy in the twelfth review as it received in the eleventh. There was no
available argument at the administrative level on this point, as it could only be made on appeal.
Finally, the government argues that Toscelik “does not explain how Commerce would
have been unwilling or unable to consider its arguments during the 2012 review.” Def’s Resp. at 12.
However, it is fairly clear from the briefing that Toscelik has made its precise explanation repeatedly:
Toscelik could not argue that Commerce’s 2012 result was not supported by the record because there
was no record. Toscelik could not argue that Commerce’s 2012 result was not in accordance with
Court No. 14-00211 Page 13
law because Commerce’s “reach-back” policy is reasonable and, in any event, is not the gravamen
of this appeal. Similarly, it would have been, as Toscelik contends, “risible” for it to argue in a case
brief that Commerce should set aside its selection of the eleventh-review final result and instead
select the rate that was in Toscelik’s brief as plaintiff in its appeal of the eleventh review. Not only
is such an argument without a legal basis, but it is further hampered by the fact that Toscelik’s brief
to the court in the appeal from the eleventh review was not on the record in the twelfth review and
therefore could not have been considered by Commerce in the twelfth review even if Commerce may
have been otherwise inclined to do so. In fact, there was nothing Toscelik could have argued before
the agency that could possibly have changed the outcome of the review.
This is the essence of the futility exception to exhaustion. Any argument Toscelik
might have made would have had no impact on the final results. Other than providing repetitive
“notice” to Commerce that Toscelik disagreed with the final results of the 2011 CVD Review (a fact
of which Commerce was already well aware), any case brief would have been a useless formality,
without substance.
IV. Conclusion
The government apparently agrees that the amended final results of the 2011 review,
i.e., the de minimis 0.44 percent, are the most accurate measure of the result for Toscelik in the 2012
review. As discussed above, the government’s sole opposition to this result is that Toscelik did not
file a case brief in the 2012 review; however, Toscelik persuades that any such case brief would have
been a useless formality and an exercise in futility, and that the law does not require it to file such
a brief merely in order to preserve its right to appeal. In view of the foregoing, the matter must
Court No. 14-00211 Page 14
therefore be remanded for consideration of the application of the amended 2011 final result to this
2012 review.
The results of remand shall be due March 21, 2016. After filing thereof with the
court, the parties shall confer and report on proceeding further on the case, including a proposed
scheduling of further comments, if necessary.
So ordered.
/s/ R. Kenton Musgrave
R. Kenton Musgrave, Senior Judge
Dated: December 21, 2015
New York, New York | 01-03-2023 | 12-21-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3168831/ | Slip Op. 16-3
UNITED STATES COURT OF INTERNATIONAL TRADE
CC METALS AND ALLOYS, LLC, AND
GLOBE SPECIALTY METALS, INC.,
Plaintiffs,
Before: Leo M. Gordon, Judge
v.
Court No. 14-00202
UNITED STATES,
Defendant.
OPINION and ORDER
[Final determination of sales not at less than fair value sustained in part and remanded in
part.]
Dated: January 12, 2016
William D. Kramer and Martin Schaefermeier, DLA Piper LLP (US), of Washington,
DC for Plaintiff CC Metals and Alloys, LLC and Globe Specialty Metals, Inc.
Peter A. Gwynne, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant United States. With him on the
brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief
was Devin S. Sikes, Senior Attorney, U.S. Department of Commerce, Office of the Chief
Counsel for Trade Enforcement and Compliance of Washington, DC.
Sydney H. Mintzer and Jing Zhang, Mayer Brown LLP, of Washington, DC for
Defendant-Intervenors Kuznetsk Ferroalloys OAO, Chelyabinsk Electro-Metallurgical
Plant OAO and RFA International LP, Calgary (Kanada) Schaffausen.
Gordon, Judge: This action involves the U.S. Department of Commerce’s
(“Commerce”) final negative determination in the less than fair value investigation of
ferrosilicon from the Russian Federation. See Ferrosilicon from the Russian Federation,
Court No. 14-00202 Page 2
79 Fed. Reg. 44,393 (Dep’t of Commerce July 31, 2014) (final LTFV determ.)
(“Final Determination”); see also Issues and Decision Memorandum for the Final
Determination of the Antidumping Duty Investigation of Ferrosilicon from the Russian
Federation, A-821-820 (Dep’t of Commerce July 24, 2014), available at
http://enforcement.trade.gov/frn/summary/russia/2014-18059-1.pdf (last visited this date)
(“Decision Memorandum”).
Before the court is the USCIT Rule 56.2 motion for judgment on the agency record
of Plaintiffs CC Metals and Alloys, LLC, and Globe Specialty Metals, Inc. (“Plaintiffs”).
Pls.’ Br. in Supp. of Mot. for J. upon the Agency R. (Jan. 22, 2015), ECF No. 23 (“Pls.’
Br.”); see also Def.’s Resp. to Pl.’s Mot. for J. upon the Agency R. (Apr. 14, 2015), ECF
No. 38 (“Def.’s Resp.”); Br. of Def.-Intervenors in Opp. to Pls.’ Mot. for J. upon the Agency
R. (May 7, 2015) (“Def-Int.’s Resp.”); Pls.’ Reply Br. (May 29, 2015), ECF No. 49 (“Pls.’
Reply”). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act
of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),1 and 28 U.S.C. § 1581(c)
(2012).
Plaintiffs challenge Commerce’s date of sale selection and model matching
analysis, as well as Commerce’s treatment of certain revenue and expenses. For the
reasons that follow, the court sustains Commerce’s determination in part and remands to
Commerce the warehousing and imputed credit expense issues for further consideration.
1
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Court No. 14-00202 Page 3
I. Standard of Review
The court sustains Commerce’s “determinations, findings, or conclusions” unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing
agency determinations, findings, or conclusions for substantial evidence, the court
assesses whether the agency action is reasonable given the record as a whole. Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial
evidence has been described as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,
407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Substantial evidence has also been described as “something less than
the weight of the evidence, and the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). Fundamentally, though, “substantial evidence” is best understood as a word
formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and
Practice § 9.24[1] (3d ed. 2015). Therefore, when addressing a substantial evidence
issue raised by a party, the court analyzes whether the challenged agency action “was
reasonable given the circumstances presented by the whole record.” 8A West’s Fed.
Forms, National Courts § 3:6 (5th ed. 2015).
Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984), governs judicial review of
Court No. 14-00202 Page 4
Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A.,
555 U.S. 305, 316 (2009) (Commerce’s “interpretation governs in the absence of
unambiguous statutory language to the contrary or unreasonable resolution of language
that is ambiguous.”). And when reviewing Commerce’s interpretation of its regulations,
the court must give substantial deference to Commerce’s interpretation, Torrington Co. v.
United States, 156 F.3d 1361, 1363-64 (Fed. Cir. 1998), according it “‘controlling weight
unless it is plainly erroneous or inconsistent with the regulation,’” Thomas Jefferson Univ.
v. Shalala, 512 U.S. 504, 512 (1994) (citations omitted). See also Am. Signature, Inc. v.
United States, 598 F.3d 816, 827 (Fed. Cir. 2010) (citing Reizenstein v. Shinseki, 583
F.3d 1331, 1335 (Fed. Cir. 2009)) (explaining standard of review for agency
interpretations of its own regulations).
II. Discussion
A. Date of Sale
In general “an antidumping analysis involves a comparison of export price or
constructed export price in the United States with normal value in the foreign market.”
19 C.F.R. § 351.401(a) (2015); see also 19 U.S.C. §§ 1677a, 1677b. The date of sale for
a respondent's home market sales is part of the normal value calculation. See 19 C.F.R.
§ 351.401(a), (i).
During the proceeding, Commerce, consistent with its regulatory presumption,
selected invoice date as the date of sale for RFA International LP’s (“RFAI”) home market
sales, including RFAI’s “storage sales.” These “storage sales” are “bill-and-hold” type
transactions where RFAI’s affiliated producer Chelyabinsk Electrometallurgical Integrated
Court No. 14-00202 Page 5
Plant Joint Stock Company (“CHEMK”) stores customers’ ferrosilicon after the invoice is
issued for delivery at a later date. Plaintiffs argue that Commerce should not have
selected the invoice date as the date of sale for these storage sales because of
differences between the ferrosilicon described in the invoices and the ferrosilicon CHEMK
delivered.
Commerce “normally” uses invoice date as the date of sale. 19 C.F.R. § 351.401(i).
Commerce “may,” however, “use a date other than the date of invoice if [Commerce] is
satisfied that a different date better reflects the date on which the exporter or producer
establishes the material terms of sale.” Id. An interested party proposing something other
than invoice date must demonstrate that the material terms of sale were “firmly” and
“finally” established on its proposed date of sale. Antidumping Duties; Countervailing
Duties: Final Rule, 62 Fed. Reg. 27,296, 27,348-49 (Dep’t of Commerce May 19, 1997)
(“Preamble”); see generally Yieh Phui Enter. Co. v. United States, 35 CIT ___, ___, 791
F. Supp. 2d 1319, 1322-24 (2011) (describing in detail Commerce’s date of sale
regulation).
Plaintiffs’ argument attacks the “virtual” nature of CHEMK’s storage sales. See
Pls.’ Br. at 6-12. CHEMK does not set aside particular ferrosilicon from its ongoing
production when it completes a storage sale. Instead, CHEMK virtually “reserves” orders
so that ferrosilicon meeting the customer’s specifications is available when the customer
requests delivery. Some physical differences between the “as invoiced” and “as delivered”
product can and do emerge because CHEMK and its customers specify only certain terms
when the sale is invoiced. These are typically “base weight” (the weight of silicon
Court No. 14-00202 Page 6
contained within the ferrosilicon), grade (based on silicon content by percent), price, and
size. Home Market Verification Report, 8-9 (Dep’t of Commerce May 22, 2014), CD 151
(“Verification Report”).2 Plaintiffs note that the CONNUMs for a significant number of the
“as delivered” storage sales differ from their “as invoiced” counterparts. Pls.’ Br. at 8-9.
Plaintiffs also argue that using invoice date artificially reduces RFAI’s normal value,
thereby lowering its overall margin.
Problematically, Plaintiffs do not appear to understand the applicable standards
governing Commerce’s date of sale determinations. Plaintiffs never identify the date on
which Plaintiffs believe the material terms of sale are firmly and finally established. See
id. at 3-12. To prevail, Plaintiffs need to establish that Commerce erred by using invoice
date because the administrative record supports one and only one other date of sale on
which the material terms of sale are firmly and finally established. See Allied Tube &
Conduit Corp. v. United States, 24 CIT 1357, 1371-72, 127 F. Supp. 2d 207, 220 (2000)
(“Plaintiff, therefore, must demonstrate that it presented Commerce with evidence of
sufficient weight and authority as to justify its [date of sale] as the only reasonable
outcome.”). Here, CHEMK’s storage sales comprise numerous documents, addendums,
and circumstances other than mere issuance of an invoice. Commerce’s regulation
defaults to the invoice date precisely because this sort of complexity is prevalent in most
industries. Preamble, 62 Fed. Reg. at 27,348-49 (“[I]n most industries, the negotiation of
a sale can be a complex process . . . . In fact, it is not uncommon for the buyer and seller
2
“CD” refers to a confidential document contained in the administrative record.
Court No. 14-00202 Page 7
themselves to disagree about the exact date on which the terms became final. However,
for them, this theoretical date usually has little, if any, relevance. From their perspective,
the relevant issue is that the terms be fixed when the seller demands payment . . . .”). By
failing to identify the date on which the material terms of sale are firmly and finally
established, Plaintiffs leave the court no option but to sustain Commerce’s choice of its
regulatory presumptive invoice date as the date of sale.
With that said, the court does address some of Plaintiffs’ date of sale arguments
that are relied upon by Plaintiffs in their subsequent model match issue. Chief among
them is Plaintiffs’ argument about which terms are material. During the investigation
Commerce concluded (and Plaintiffs do not dispute) that the material terms of sale were
grade, price, base weight, and size. Decision Memorandum at 14 (listing grade, price,
and base weight as material terms); Verification Report at 8 (discussing size). Each of
these terms “are finalized” on CHEMK’s invoices. Id.; see also Def.’s Br. at 11-13
(summarizing specific examples on the record). With one exception discussed below
(size), these material terms did not change after invoicing. CHEMK’s storage agreements
explicitly stipulate “that the customer agrees to receive merchandise that was commingled
whilst in storage, as long as the merchandise it receives is the same grade, size, and
base quantity as invoiced.” Verification Report at 8-9. CHEMK’s customers paid for and
subsequently accepted later delivered merchandise despite some variances in physical
characteristics, but price, grade, and base weight remained the same, as did size, except
in a few instances (discussed below). Decision Memorandum at 14-15. The reasonable
conclusion, which Commerce reached, is that characteristics other than price, grade, size,
Court No. 14-00202 Page 8
and base weight are not material terms. Decision Memorandum at 17-22; Final Analysis
Memorandum, 2-4 (Dep’t of Commerce July 25, 2014), CD 162 (“Final Analysis
Memorandum”).
Plaintiffs argue that “chemical composition” is also a material term. Plaintiffs
reference one confidential sale outside the period of review in which a customer made a
request regarding chemical composition. Plaintiffs also note that CHEMK issues
certificates detailing chemical composition before delivery. Pls.’ Br. at 10-12. There were
also other “rare[]” instances where customers specified maximum tolerances for elements
other than silicon. Verification Report at 9. Plaintiffs also argue that the number of
changes in the “product characteristics” after the invoice date demonstrate that the terms
of sale became finalized on some other date. Pls.’ Br. at 8, 15, 17-20. Despite changes
in chemical composition, however, all of CHEMK’s customers “received the identical
commercial grade of merchandise that was invoiced and eventually delivered without
incident.” Id. at 14-15. So as Commerce noted, whatever changes to “chemical
composition” occurred, they “were not commercially relevant because record evidence
shows that the customers paid for the merchandise and did not reject or return the
merchandise.” Id. at 14-15. This is an important, and ultimately decisive point.
CHEMK did have a number of storage sales in which the size of ferrosilicon
changed between time of invoice and delivery. These sales represented a relatively small
portion of CHEMK’s storage sales, Final Analysis Memorandum at 2-4, and without a
more definitive quantification from Plaintiffs, the court, like Commerce, cannot identify
how Plaintiffs’ argument about the changes in size have any noticeable impact on the
Court No. 14-00202 Page 9
margin calculation. Decision Memorandum at 22 (“Petitioners have not provided any
alternative quantitative calculations showing exactly how using the ‘as delivered’ subset
of sales, accounting for 18 percent of those home market sales, in the margin calculation
program would have resulted in an affirmative determination.”). To reiterate again, the
court sustains Commerce’s reasonable selection, in accordance with its regulatory
presumption, of the invoice date as the date of sale.
B. Model Matching
Plaintiffs’ goal in challenging Commerce’s date of sale selection is to increase (or
at least alter) the universe of home market sales used to calculate RFAI’s margin. Pls.’
Br. at 3, 9. To that same end, Plaintiffs challenge Commerce’s model-matching analysis.
Specifically, Plaintiffs argue that Commerce’s use of the “as invoiced” product
characteristics of CHEMK’s home market storage sales instead of the “as delivered”
product characteristics deviates from past practice and is unreasonable.
Commerce determines dumping margins by comparing export price or constructed
export price to normal value. Commerce sets normal value at “the price at which the
foreign like product is first sold . . . for consumption in the exporting country.” 19 U.S.C.
§ 1677b(a)(1)(B)(i). “[F]oreign like product” is either identical merchandise, similar
merchandise, or reasonable comparable merchandise. Id. § 1677(16); see Samsung
Elecs. Co. v. United States, 39 CIT ___, ___, 72 F. Supp. 3d 1359, 1376 (2015)
(summarizing the model matching provision). Where a given export sale lacks a
corresponding identical home-market sale, Commerce looks to similar merchandise.
Where an export sale lacks a corresponding identical or similar home market sale,
Court No. 14-00202 Page 10
Commerce then turns to reasonably comparable merchandise. See id. The process by
which Commerce identifies “foreign like product” in accordance with the statute is called
“model-matching.” Koyo Seiko v. United States, 551 F.3d 1286, 1289 (Fed. Cir. 2008).
“[A]n agency must either follow its own precedents or explain why it departs from
them.” See generally, 2 Richard J. Pierce, Administrative Law Treatise § 11.5, at 1037
(5th ed. 2010). Plaintiffs aver that Commerce departed from past practice by failing “to
make product comparisons based on the physical characteristics of the merchandise
actually delivered to the customer.” Pls.’ Br. at 13-14 (citing Stainless Steel Sheet and
Strip in Coils from France, 64 Fed. Reg. 30,820, 30,830 (Dep’t of Commerce June 8,
1999) (final LTFV determ.) (“SSSS from France”)). The court does not agree. Commerce
in SSSS from France noted that its practice is to use the product characteristics of
delivered merchandise over invoiced merchandise “in cases where the grades reported
in [specific CONNUM fields covering the grade of invoiced and delivered merchandise]
differ.” SSSS from France, 64 Fed. Reg. at 30,830 (emphasis added); see also Pls.’ Br.
at 14 (quoting the same language in SSSS from France). Commerce below reasonably
distinguished SSSS from France, explaining that the grade did not change between
invoicing and delivery for any of CHEMK’s storage sales. Commerce explained further
that, unlike SSSS from France, the differences in product characteristics here were not
“commercially relevant” since they involved immaterial terms like chemical composition
and total weight. Decision Memorandum at 22. Commerce’s use of the invoiced product
characteristics therefore did not run afoul of SSSS from France.
Court No. 14-00202 Page 11
Plaintiffs’ substantial evidence challenge largely tracks their arguments in
opposition to Commerce’s date of sale selection. See Pls.’ Br. at 15-21. Plaintiffs highlight
what they allege is a significant number of post-invoice changes in characteristics that
they believe to be material, and argue that Commerce should have used the “as delivered”
product characteristics for model match. See id. Unfortunately for Plaintiffs, for the same
reasons described above, Commerce reasonably found that any differences between the
“as delivered” and “as invoiced” merchandise are not material. See Decision
Memorandum at 17-22. Plaintiffs have no good answer to the fact that CHEMK’s
Customers were invoiced, made payment, and then subsequently accepted the “as
delivered” merchandise (with whatever changes in characteristics), leading Commerce to
conclude that the “as delivered” merchandise was “commercially equivalent” to the “as
invoiced” merchandise. Id. at 21-22.
Plaintiffs also failed to quantify the actual numerical effect of the small proportion
of sales in which one material characteristic (size) did change post-invoice. The court
notes that size, although a material term, ranked last in priority for the purposes of
comparison to U.S. sales on Commerce’s list of relevant physical characteristics.
Decision Memorandum for Preliminary Determination of the Antidumping Duty
Investigation of Ferrosilicon from the Russian Federation, A-821-820, at 12 (Dep’t of
Commerce Mar. 4, 2014), available at http://enforcement.trade.gov/
frn/summary/russia/2014-05251-1.pdf (last visited this date). The relative unimportance
of size for model-matching purposes weakens Plaintiffs’ position that using “as delivered”
Court No. 14-00202 Page 12
sales has a material effect on RFAI’s margin, which again, Plaintiffs failed to specifically
quantify. See Decision Memorandum at 22.
The court therefore sustains Commerce’s use of “as invoiced” sales characteristics
in its model-matching analysis.
C. Warehouse Expense and Revenue
As described above, RFAI’s affiliated producer CHEMK warehouses some
ferrosilicon at its production facility after completing a sale. Commerce found that
CHEMK’s warehousing produced both movement expenses deductible from normal value
and, to a greater extent, revenues that could increase normal value. In accordance with
its established practice, Commerce capped CHEMK’s warehousing revenue at the level
of warehousing expenses, resulting in no net effect on normal value. Decision
Memorandum at 26; see also Issues and Decision Memorandum for Final Results of
Antidumping Duty Administrative Review of Circular Welded Carbon Steel Pipes and
Tubes from Thailand, A-549-502, at 10-13 (Dep’t of Commerce Oct. 23, 2013), available
at http://enforcement.trade.gov/frn/summary/thailand/2014-25611-1.pdf (last visited this
date) (describing and applying movement expense capping practice). Plaintiffs challenge
Commerce’s deduction of CHEMK’s warehousing expense as inconsistent with law,
thereby indirectly challenging Commerce’s decision to cap CHEMK’s warehousing
revenue.
The statute directs Commerce to deduct from normal value “the amount, if any, . .
. attributable to any costs, charges, and expenses incident to bringing the foreign like
product from the original place of shipment to the place of delivery to the purchaser.”
Court No. 14-00202 Page 13
19 U.S.C. § 1677b(a)(6)(B)(ii). Commerce’s regulations specify that movement expenses
include any transportation and other associated expenses, including “warehousing
expenses that are incurred after the merchandise leaves the original place of shipment.”
19 C.F.R. § 351.401(e)(2) (emphasis added). The “original place of shipment” is
“normally” the production facility. Id. § 351.401(e)(1). Plaintiffs argue that Commerce
violated the regulation because CHEMK incurred warehousing expenses before the
merchandise left the production facility.
Commerce’s interpretation of its regulation is generally of controlling weight unless
it is plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452,
461 (1997); Am. Signature, Inc. v. United States, 598 F.3d 816, 827 (Fed. Cir. 2010).
Commerce acknowledges that CHEMK incurred its on-site, post-sale warehousing
expenses before the goods left the production facility. Decision Memorandum at 26. The
regulation specifies that Commerce will deduct warehousing expenses that are incurred
“after” the merchandise leaves the production facility. 19 C.F.R. § 351.401(e). Commerce
explained that CHEMK’s on-site warehousing “qualif[ies] . . . as a movement-related
expense, because the Preamble states that the Department will deduct all movement
expenses (including all warehousing) that the producer incurred after the goods left the
production facility.” Decision Memorandum at 26 (referring to Antidumping Duties;
Countervailing Duties, 62 Fed. Reg. 27,296, 27,345 (Dep’t of Commerce May 19, 1997)
(final rule) (“Preamble”)) (emphasis added). Just like the regulation, the Preamble refers
to warehousing expenses incurred “after” goods have left the production facility. Id. And
Court No. 14-00202 Page 14
here the goods did not leave the production facility. Commerce’s application of its
regulation therefore appears inconsistent with both the regulation and the Preamble.
Defendant’s counsel, for its part, explains that the on-site warehousing described
in the regulation and Preamble covers pre-sale warehousing, not CHEMK’s post-sale
warehousing at issue here. Def.’s Resp. at 30-31. Although, the regulation does not
specifically address whether such post-sale warehousing may qualify as a deductible
movement expense, the court cannot defer to the post hoc rationalizations of agency
counsel. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962).
Commerce itself did not discuss the “post-sale” vs. “pre-sale” distinction. The court
therefore must remand this issue to Commerce for further consideration.
D. Imputed Credit Expenses
Commerce adjusts normal value to account for differences in the circumstances of
sale in the United States and foreign markets. 19 U.S.C. § 1677b(a)(6)(C)(iii). Commerce
typically makes such an adjustment to account for differences in credit terms by
“imput[ing] a U.S. credit expense and a foreign market credit expense on each sale.”
Imputed Credit Expenses and Interest Rates (Dep’t of Commerce Feb. 23, 1998),
available at http://enforcement.trade.gov/policy/bull98-2.htm (last visited this date). “The
imputed credit expense represents the producer's opportunity cost of extending credit to
its customers. By allowing the purchaser to make payment after the shipment date,” on
either home market sales or U.S. sales, “the producer forgoes the opportunity to earn
interest on an immediate payment. Thus, the imputed credit expense reflects the loss
attributable to the time value of money.” Mitsubishi Heavy Indus., Ltd. v. United States,
Court No. 14-00202 Page 15
23 CIT 326, 330, 54 F. Supp. 2d 1183, 1188 (1999), after remand, 24 CIT 275, 97 F.
Supp. 2d 1023 (2000), aff’d, 275 F.3d 1056 (Fed. Cir. 2001). Plaintiffs challenge the
interest rate Commerce selected to calculate RFAI’s home market imputed credit
expenses.
Commerce’s announced policy is to select “a short-term interest rate tied to the
currency in which the sales are denominated” that is “base[d] . . . on the respondent’s
weighted-average short-term borrowing experience in the currency of the transaction.”
Import Administration Policy Bulletin 98.2: Imputed Credit Expenses and Interest Rates
(Dep’t of Commerce Feb. 23, 1998), available at http://enforcement.trade.gov/
policy/bull98-2.htm (last visited this date) (“Policy Bulletin 98.2”). “In cases where a
respondent has no short-term borrowings” in the same currency as its foreign
transactions, however, Commerce selects a proxy rate “on a case-by-case basis using
publicly available information, with a preference for published average short-term lending
rates.” Id.
RFAI’s affiliated producer CHEMK used “factoring” arrangements to finance
receivables on home market sales denominated in rubles during the period of review.
Factoring is a recognized form of financing that involves the sale of receivables at a
discounted rate. Issues and Decision Memorandum for the Final Results of the
Antidumping Administrative Review of Welded Carbon Steel Standard Pipe and Tube
Products from Turkey, A-489-501, at 14 (Dep’t of Commerce Dec. 23, 2013), available at
http://enforcement.trade.gov/frn/summary/turkey/2013-31344-1.pdf (“Pipe and Tube from
Turkey Memorandum”). Despite these arrangements, however, RFAI reported in its
Court No. 14-00202 Page 16
Section B questionnaire response that CHEMK had no-short term borrowings in rubles.
As a consequence, Commerce selected Russian short-term interest rates described in a
publicly available source as a proxy for RFAI’s own short-term borrowing experience. See
Decision Memorandum at 27-29; see also Policy Bulletin 98.2.
After the Preliminary Results but before verification, RFAI notified Commerce in a
“minor corrections” submission that it believed CHEMK’s factoring arrangements could
be used to derive a rate that more accurately described its short-term borrowing
experience. Decision Memorandum at 28-30; see, e.g., Pipe and Tube from Turkey
Memorandum at 14 (using respondent’s factoring arrangements to derive a rate “based
on the weighted-average interest rate paid by the [respondent] for short-term loans in the
currency of the sale” in accordance with Policy Bulletin 98.2). RFAI also provided
Commerce with a letter from a Russian bank describing the rates applicable to CHEMK’s
factoring arrangements in support of its position. Commerce accepted RFAI’s submission
as information that “corroborate[d], support[ed], or clarifie[d]” its initial Section B response
and verified that the supplied rates were accurate. Decision Memorandum at 30.
Commerce thereafter used an average of the rates applicable to the sales it verified as
the rate for RFAI’s imputed credit expenses. Id. at 32.
Plaintiffs first argue that Commerce should have rejected RFAI’s minor corrections
submission because the interest rates it described constituted new information. The court
does not agree. Commerce’s established practice is to accept new information when it
“corroborates, supports, or clarifies information already on the record.” Ass'n of Am. Sch.
Paper Suppliers v. United States, 32 CIT 1196, 1217 (2008) (quoting CITIC Trading Co.
Court No. 14-00202 Page 17
v. United States, 27 CIT 356, 373 (2003)). Here, RFAI reported the existence of the
factoring arrangements with respect to certain sales in its original Section B questionnaire
response. As Commerce explained, “in reviewing [during verification] the payment details
of each sales trace where factoring occurred, the factoring arrangement with the customer
was an intrinsic detail of the actual payment for ferrosilicon purchases.” Decision
Memorandum at 30. Commerce therefore reasonably found that RFAI’s minor corrections
submission, which described interest rates intrinsic to the transactions it already reported,
“corroborate[d], support[ed], or clarifie[d]” information already on the record. See Decision
Memorandum at 30.
Plaintiffs next argue that Commerce’s use of the factoring arrangements to derive
an interest rate for RFAI’s imputed credit costs is unreasonable because the factoring
rates represent “the short-term interest rates at which the bank was willing to loan money
to CHEMK’s customers, rather than the rate at which the bank would loan money to
CHEMK.” Pls.’ Br. at 32. The court again does not agree. Commerce’s announced
practice, which Plaintiffs do not challenge, is to use factoring arrangements as a source
for short term interest rates. As Commerce explained:
An accurate measure of a company’s opportunity cost should include all of
its sources of short-term funds, including factoring. Since factoring is a
recognized method of financing receivables, the discount from face value
can be used to establish credit expense. [Commerce] has previously
recognized that factoring is a method of financing a receivable.
Decision Memorandum at 31 (quoting Pipe and Tube from Turkey Memorandum at 14);
see also Decision Memorandum for the Final Determination in the Less Than Fair Value
Investigation of Polyethylene Terephthalate Film, Sheet, and Strip (PET Film) from India,
Court No. 14-00202 Page 18
at cmt. 8 (Dep’t of Commerce May 6, 2002), available at
http://enforcement.trade.gov/frn/summary/india/02-12295-1.txt (last visited this date).
Commerce’s decision here to use CHEMK’s factoring arrangements to derive an interest
rate for RFAI’s imputed credit costs therefore reflects the routine and reasonable
application of its past practice.
Finally, Plaintiffs argue that Commerce’s selection is inconsistent with Policy
Bulletin 98.2 because the rate is based on the simple average of the interest rates
applicable to the subset of transactions Commerce analyzed during verification rather
than a weighted average. Pls.’ Br. at 31; Pls.’ Reply at 15-17; see Policy Bulletin 98.2
(explaining that Commerce will select a rate “base[d] . . . on the respondent’s weighted-
average short-term borrowing experience in the currency of the transaction”). Commerce
announced its selection for the first time in the Decision Memorandum and other materials
released on the same day. See Decision Memorandum at 32 (citing Final Analysis Memo
(Dep’t of Commerce July 25, 2014), CD 162). CC Metal’s first opportunity to challenge
Commerce’s selection as inconsistent with Policy Bulletin 98.2 was in its brief before the
court. This means the agency has not had the opportunity to consider this argument in
the first instance. Defendant’s response presents the post hoc rationalizations of agency
counsel to which the court may not defer. See Burlington Truck Lines, 371 U.S. at 168-
69. There may be some merit in Plaintiffs’ contention: Commerce described its selection
as “the average of factoring-related interest rates that [it] verified,” which does not appear
to be a weighted average as described in Policy Bulletin 98.2. See Decision Memorandum
at 32; see also Def.’s Resp. at 36 (referring to the rate as a “simple average short term
Court No. 14-00202 Page 19
rate”). The court therefore remands for Commerce to consider Plaintiffs’ contention that
the selected rate is inconsistent with Policy Bulletin 98.2 because it is a simple average
rather than a weighted average.
E. Inbound Movement Expenses
The statute permits Commerce to reduce constructed export price by “the amount,
if any, included in such price, attributable to any additional costs, charges, or expenses,
and United States import duties, which are incident to bringing the subject merchandise
from the original place of shipment in the exporting country to the place of delivery in the
United States.” 19 U.S.C. § 1677a(c)(2)(A). Commerce’s regulations explain further that,
if a party cannot report such expenses on a transaction-specific basis, Commerce “may
consider allocated expenses[,] . . . provided [Commerce] is satisfied that the allocation
method used does not cause inaccuracies or distortions.” 19 C.F.R. § 351.401(g)(1). A
party advancing an allocation method must demonstrate to Commerce’s satisfaction that
“the allocation is calculated on as specific a basis as is feasible” and that “the allocation
methodology used does not cause inaccuracies or distortions.” 19 C.F.R. § 351.401(g)(2).
RFAI reported that it incurred certain movement expenses—sampling, brokerage
and handling, customs charges, and inland transport—incident to shipping ferrosilicon to
the United States (“U.S.”). RFAI also reported that it could not report those expenses on
a transaction-specific basis and proposed an allocation methodology that tied to the
quantity of ferrosilicon RFAI sold in the U.S. Commerce accepted RFAI’s methodology,
explaining that “RFAI reported in an as specific manner as it could” and because “there
Court No. 14-00202 Page 20
is nothing to indicate or support the conclusion that there are distortions or inaccuracies.”
Decision Memorandum at 36-37, 41-42.
Plaintiffs challenge Commerce’s decision to accept RFAI’s methodology for
allocating movement expenses in calculating constructed export price. Specifically,
Plaintiffs argue that four different types of movement expenses should have been
allocated by the quantity of ferrosilicon RFAI shipped to the U.S. during the POR rather
than the quantity of ferrosilicon RFAI sold in the U.S. during the POR. According to
Plaintiffs, RFAI’s methodology produces inaccuracies and distortions, and is not “as
specific as possible.” Pls.’ Br. at 37-39.
In the court’s view, Commerce’s acceptance of RFAI’s allocation methodology over
Plaintiffs’ proposed alternative was reasonable. Plaintiffs contend that RFAI’s
methodology “is distortive because it understates the amounts of the expenses actually
incurred.” Pls.’ Br. at 37. Plaintiffs do not, however, support this contention with anything
other than the unremarkable observation that their preferred denominator is smaller than
that used in RFAI’s allocation methodology. Are there inaccuracies in RFAI’s reported
sales volume? Are there discrepancies between the results of RFAI’s allocation
methodology and other data on the record? Apparently not, as Commerce noted.
Decision Memorandum at 41 (“[T]here is nothing to indicate or support the conclusion
that there are distortions or inaccuracies” in RFAI’s allocation methodology.).
As to Plaintiffs’ preferred allocation methodology, Commerce verified that RFAI
assigned lot numbers to bulk shipments of ferroalloy (not just ferrosilicon) from the third
country to the United States and generated new lot numbers once the ferroalloy products
Court No. 14-00202 Page 21
(including ferrosilicon) reached the United States port, such that the lot numbers created
in the third country are no longer relevant for the final sale to the U.S. customer.
Consequently, as Commerce explained, the four movement expenses at issue “do not
correspond, by discrete lot number, to the quantity of merchandise that shipped from the
intermediary warehouse[e] during the [period of investigation].” Decision Memorandum at
36, 41. Put more simply, RFAI’s books and records did not tie these four movement
expenses to the quantity shipped during the period of investigation. Commerce also
explained that Plaintiffs’ preferred methodology would itself cause inaccuracies and
distortions because RFAI shipped its ferrosilicon along with non-subject ferroalloy
products. Decision Memorandum at 41. Because Plaintiffs’ methodology did not tie to
RFAI’s books and records and had the potential to cause inaccuracies and distortions,
Commerce reasonably concluded that RFAI’s allocation was “as specific as RFAI was
able to provide.” See id. at 36-37, 41-42.
The court therefore sustains Commerce’s decision to accept RFAI’s movement
expense allocation methodology.
III. Conclusion
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Determination is sustained with respect to the
date of sale, model matching, and inbound movement expense issues; it is further
ORDERED that this action is remanded to Commerce to clarify or reconsider, as
appropriate, the warehousing expense and imputed credit expense issues; it is further
Court No. 14-00202 Page 22
ORDERED that Commerce shall file its remand results on or before
March 14, 2016; and it is further
ORDERED that, if applicable, the parties shall file a proposed scheduling order
with page limits for comments on the remand results no later than seven days after
Commerce files its remand results with the court.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 12, 2016
New York, New York | 01-03-2023 | 01-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4520511/ | Fourth Court of Appeals
San Antonio, Texas
March 27, 2020
No. 04-20-00058-CV
IN THE MATTER OF THE ESTATE OF KENNETH CURTIS ANDREWS, DECEASED
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 18-04-0239-CVW
Honorable Sid L. Harle, Judge Presiding
ORDER
After this court granted the court reporter’s first request for an extension of time to file
the reporter’s record, it was due on March 19, 2020. See TEX. R. APP. P. 35.1. After the due
date, court reporter Karen Schoeve filed a second notification of late reporter’s record. She
provided a status report but did not request a specific number of days’ extension.
The request is GRANTED. The reporter’s record is due on April 20, 2020. See id. R.
35.3(c) (limiting an extension in an ordinary appeal to thirty days).
If the reporter’s record is not filed with this court by April 20, 2020, any requests for
additional time to file the record must be accompanied by a signed, written status report.
The report must describe the transcript by day with the date, description, page counts, and
remarks for each day. The page counts must include the total number of pages, the number of
pages edited, proofread, and formatted into the required electronic form (including bookmarks).
The report may describe any unusual aspects of the record. The report must describe any
problems the court reporter reasonably believes may delay the completion of the record beyond
the requested date.
A preferred form for the status report, with an accompanying example, is attached to this
order.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of March, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 03-30-2020 |
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