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FILED
14-0786
12/24/2014 1:23:20 PM
tex-3589887
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
CASE NO. 14–0786
_____________________________________________
IN THE SUPREME COURT OF TEXAS
_____________________________________________
WORLDWIDE CLINICAL TRIALS, a/k/a WTC CORPORATION,
Petitioner
V.
HERLINDA ARNOLD,
Respondent
_____________________________________________
On Petition for Review from the Fourth Court of Appeals,
San Antonio, Texas, Case No. 04–13–00609–CV
_____________________________________________
RESPONDENT’S MOTION FOR EXTENSION OF
TIME TO FILE RESPONSE TO PETITIONER’S PETITION FOR REVIEW
_____________________________________________
Respondent, Herlinda Arnold, requests a 30-day extension to file her response to
Petitioner’s Petition for Review and for good cause, would show as follows:
1. The Fourth Court of Appeals issued its opinion and judgment in the underlying
appeal, Case Number No. 04–13–00609–CV, on August 13, 2014.
2. After being granted three extensions of time, Petitioner filed its Petition for
Review with this Court on November 25, 2014.
3. Respondent’s response to Petitioner’s Petition for Review is December 24, 2014.
4. This is Respondent’s first request for an extension of time.
5. Respondent respectfully requests a 30–day extension to file its response so that
the undersigned attorneys can adequately prepare the response.
1
6. The undersigned attorneys have not had sufficient time to respond to Petitioner’s
Petition for Review due to the Thanksgiving holidays, taking time off for vacation and
hearings and obligations in other cases.
7. Pursuant to TEX. R. APP. P. 10.3, the undersigned attorneys conferred with
counsel for Petitioner, but have yet to receive a response from opposing counsel with
regard to whether he is opposed to this motion.
FOR THESE REASONS, Respondent prays that this Honorable Court grant this
Motion for Extension of Time to File Response to Petitioner’s Petition for Review and
extend the deadline for filing the response to January 26, 2014, and requests all other
relief to which she may be entitled.
Respectfully submitted,
Ecke and Poling, PLLC
By: ______/s/____________________
Joseph R. Ecke
SBN: 24082946
1203 Buena Vista #201
San Antonio, Texas 78207
Email: joe.ecke@gmail.com
Ph. (210) 645-5356
Fax (210) 775-6490
Law Office of Matthew S. Norris
By: ______/s/____________________
Matthew S. Norris
2
TBA No. 24076881
6243 IH-10 West, Suite 1010
San Antonio, Texas 78201
Email: mattnorrislaw@gmail.com
Ph. (210) 549-7633
Fax (210) 446-4482
ATTORNEYS FOR RESPONDENT
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above has been served to all interested
parties of record on this the 24th day of December 2014.
Sean Michael Reagan
sreagan@lpmfirm.com
9545 Katy Freeway, Suite 200
Houston, Texas 77024
______/s/____________________
Joseph R. Ecke
3
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251 Miss. 780 (1965)
171 So.2d 358
MUTUAL OF OMAHA INSURANCE COMPANY
v.
WALLEY
No. 43316.
Supreme Court of Mississippi.
February 1, 1965.
*781 Watkins & Eager, Jackson, for appellant.
Zachary & Weldy, Hattiesburg, for appellee.
*782 JONES, J.
Appellee, Walley, suffering with tuberculosis, sued appellant to recover sickness benefits on a policy which defined "sickness" as follows: "Sickness contracted while this policy is in force and more than 30 days (90 days in case of heart trouble, hernia, tuberculosis or any disease or disorder of the female generative organs) after the Policy Date."
The policy was dated July 2, 1962, so that the ninetieth day would be September 30, 1962. On September 23 appellee suffered a collapsed left lung. He was working at a hospital in Hattiesburg, but when he became sick he called his family doctor, Dr. Moak, at Richton. On September 24 an X-ray was taken and the collapsed lung was found. Thereupon he was sent to the hospital at Hattiesburg for treatment. X-rays were taken on September 24, 25, 26, 28 and 29. Each showed a spot on his right lung, which was first discovered on September 24.
The collapsed lung was recovering and re-inflating, but while treating the collapsed lung, the doctors were testing to discover the reason for the spot. Tuberculosis was one disease suspected but others were not excluded. A skin test was taken and proved negative; a sputum smear was also negative. A sputum culture was then had.
The appellee and his wife each testified that the sputum was gotten at the hospital on September 30. The doctor first thought it was taken October 1, but then admitted that he did not know whether it was obtained while appellee was in the hospital or after he went home. Appellee was discharged from the hospital on September 30, so it was uncontradicted that the sputum was coughed on September 30. However, evidently in an effort to follow the general rule hereafter stated, the court submitted to the jury the question as to whether the disease became manifest or active on *783 September 30 or October 1. The sputum was used not only for the smear test, but also to culture, which requires several weeks. By culture is meant, as we understand, a process which, if germs are present, causes them to grow and become visible. The spot on the lung, discovered September 24, led to the sputum culture.
On November 13, 1963, it was found that the active germs of tuberculosis were in the sputum obtained September 30. The doctors thereupon testified positively that appellee had active tuberculosis on September 30.
It is evident that the spot on the lung found September 24 was the manifest condition which led to the finding of the active germs in the sputum of September 30.
(Hn 1) The general rule is stated in 29A Am. Jur. Insurance § 1156 (1960): "Provisions Relation to Inception of Sickness, Disease, or Disability. Some insurance policies covering sickness and hospitalization exclude or limit liability in case of a disease originating before a certain time stated in the policy. Such clauses are valid and enforceable. (Hn 2) In accordance with the general rule that in determining what losses are covered by disease or sickness insurance, uncertain or ambiguous provisions will be construed most favorably to the insured, (Hn 3) the illness, disease, or disability will ordinarily be deemed to have its inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease, so that recovery can be had even though the infection or disease germs were present in the body prior to the expiration of the excluded period, if they were latent, inactive, and perhaps not discoverable." See also, 45 C.J.S. Insurance § 893.
The cases of Union Bankers Ins. Co. v. May, 227 Miss. 881, 87 So.2d 264 (1956) and Provident Life & Accident Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180 (1929), committed this Court to this general rule.
*784 (Hn 4) Stress is laid upon the fact there was no definite and positive diagnosis until November 13, 1962, when the 90-day period had passed. However, the condition which led to the final diagnosis and positive proof of tuberculosis became manifest and was found several days prior to the expiration of such period and the sputum containing the active germs was taken before such expiration.
In the case of Mutual Benefit Health & Accident Ass'n. v. Ramage, 293 Ky. 586, 169 S.W.2d 624 (1940), it was months after the expiration of the exclusion period that doctors saw or examined the insured and discovered that he had tuberculosis. There was a difference of opinion as to whether it was active or manifest before the effective date of the policy as to tuberculosis. The jury there found for the insured on the conflicting expert opinions. However, we quote the following from that case at page 626: "Under the wording of the policy the disease originates when it becomes active or there exists a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease as tuberculosis."
In the case now before us the jury returned a verdict for appellee and from the judgment rendered thereon appellant appealed.
Since there was in reality no conflict in the evidence, the lower court should have granted the peremptory instruction requested by appellant. We reverse the case and enter judgment here for appellant.
Reversed and judgment here for appellant.
Kyle, P.J., and Gillespie, Rodgers and Brady, JJ., concur.
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171 So.2d 169 (1965)
STATE of Florida, Appellant,
v.
MANATEE COUNTY PORT AUTHORITY, Appellee.
No. 33668.
Supreme Court of Florida.
January 20, 1965.
*170 Frank Schaub, Beadenton, for appellant.
Goodrich, Hampton & Boylston, Beadenton, for appellee.
THORNAL, Justice.
We have for review by appeal, a decree of the Circuit Court validating an issue of revenue bonds to finance the construction of "Port Facilities" in Manatee County.
We are called upon to consider the legality of the existence of the issuing agency and the sufficiency of the description of purposes to be accomplished by the financing program.
By resolution adopted June 24, 1963, the Board of County Commissioners of Manatee County designated itself as a Port Authority under Chapter 315, Florida Statutes, F.S.A. By a subsequent resolution, adopted July 8, 1964, the same Board, acting as the governing body of the Manatee County Port Authority, adopted a comprehensive resolution authorizing the issuance of revenue bonds to finance the construction and acquisition of port facilities in the Piney Point area of Manatee County. This resolution authorized the issuance of $750,000 in revenue bonds to be secured by a pledge of the income of the facilities, supported by an additional pledge of race track revenues payable to the county, pursuant to Chapters 550-551, Florida Statutes. It included an estimate of $100,000 per year as gross receipts from the facility and an annual income of $225,000 from race track revenue. The bonds are to be dated July 1, 1964 and mature July 1, 1999, subject to certain redemption privileges. By a subsequent resolution adopted July 17, 1964, the Board of County Commissioners, as such, approved and confirmed the bond resolution and specifically recognized the proposed securities as county obligations within the limits prescribed by the resolution. A motion to dismiss the petition for validation was denied. After hearing, the Circuit Judge entered a decree validating the issue. The State now seeks reversal of this decree.
Primarily, the State contends that the Manatee County Port Authority cannot issue the bonds because it has no separate existence as a legal entity. It further asserts that the petition and authorizing resolution failed to describe, with reasonable definiteness, the purpose for which the bond proceeds are to be used.
By its initial resolution the Board of County Commissioners constituted itself a Port Authority under the provisions of Chapter 315, Florida Statutes, F.S.A. Under this Act, and by the resolution, the Port Authority is not a separate governmental agency. Chapter 315, Florida Statutes, F.S.A., is obviously a general authorizing enactment to provide for the accomplishment of the public objectives therein described. When a board of county commissioners constitutes itself into a Port Authority under the act, it does not thereby purport to bring into being an autonomous governmental unit. The Manatee County Port Authority is not a separate political subdivision. It is, in reality, merely the Board of County Commissioners functioning under a different name for administrative purposes. The Commissioners simply take on additional duties as a Port Authority under the authorizing statute. Burton v. Dade County, Fla., 166 So.2d 445. These additional functions are logically incidental to the other functions of the Board as the governing agency of the county. We find no merit to the attack on the validity of the existence of the authorizing agency.
The bond resolution recites that it was adopted pursuant to Chapter 315, Florida Statutes, F.S.A. It clearly provides that its intended purpose is to accomplish the construction of the public facility described by statute. It authorizes the construction *171 of "Port Facilities" in the Piney Point area. It provides for land acquisition and the construction of port improvements. It is clear that it is contemplated that the port facilities to be constructed are those specifically defined by Section 315.02(6), Florida Statutes, F.S.A. Nowhere does it appear that there is any purpose to pledge the public credit for private functions in violation of Article IX, Section 10, Florida Constitution, F.S.A. The project to be constructed under the resolution is inseparably tied to the definition of "Port Facilities" defined by Section 315.02(6), supra. Any subsequent deviation from this definitive specification of port facilities would be in violation of the limitations built into the resolution itself. These port facilities defined by the statute and prescribed by the resolution, provide for the accomplishment of public purposes and objectives. The authorizing resolution, therefore, reasonably defines the proposed facility with sufficient specificity to identify the project. Similarly, it precludes any inference of an intention to devote the bond proceeds to a purely private enterprise. The project described in the resolution is clearly that defined as port facilities in Section 315.02(6), supra. The resolution thereby avoids the vice of indefiniteness condemned by State v. Suwannee County Development Authority, Fla., 122 So.2d 190.
It is further suggested that the record fails to support a conclusion that the proposed project is fiscally sound. We have held that the fiscal feasibility of a revenue project is an administrative decision to be concluded by the business judgment of the issuing agency. Such problems as the advisability of the project and its income potential, must be resolved at the executive or administrative level. They are beyond the scope of judicial review in a validation proceeding. Town of Medley v. State, Fla., 162 So.2d 257. We, therefore, disclaim any judicial responsibility for the fiscal integrity of the proposed project. As we stated in Medley, a decision on this aspect of revenue financing is one to be made by the people involved, acting through their proper executive or administrative officials. The function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises. Its objective is to put in repose any question of law or fact affecting the validity of the bonds. State v. Suwannee County Development Authority, supra; North Shore Bank v. Surfside, Fla., 72 So.2d 659. We note in passing that the resolution and validating decree expressly preclude any obligation of the ad valorem taxing power of the county.
We have examined other incidental procedural questions presented by the appeal. They do not justify a reversal. We consider an extensive discussion of them to be unnecessary.
Finding the validation decree to be without error, it is affirmed.
It is so ordered.
THOMAS, ERVIN and HOBSON (Ret.), JJ., concur.
DREW, C.J., dissents in part.
O'CONNELL, J., dissents.
CALDWELL, J., dissents with Opinion.
CALDWELL, Justice (dissenting).
I must dissent. The description and proof of the purposes for which the proceeds of the bond issue are to be used are fatally inadequate. The broad language of the resolution and the statute does not put the public upon sufficient notice of what is intended. The majority holding to the contrary clashes with the decision of this Court in State v. Suwannee County Development Authority, 122 So.2d 190, 193 (Fla. 1960) in which it was held:
"[C]ommon sense impels the conclusion that the issuing governmental agency should set forth in the petition *172 for validation of bonds or revenue certificates a description of the purpose for which the proceeds are to be used, which description should be sufficiently detailed to enable a member of the public and the state to determine whether the issuing agency can lawfully expend public monies therefor."
The vague and general statement as to the nature of the facilities proposed does not afford the public an opportunity to safeguard its essential interest in the development.
DREW, C.J., and O'CONNELL, J., concur.
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131 F.3d 144
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Eugene FITZHUGH, Appellant.
No. 97-3121.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 5, 1997.Filed Dec. 10, 1997.
Appeal from the United States District Court for the Eastern District of Arkansas.
Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
PER CURIAM.
1
Eugene Fitzhugh, previously sentenced to ten months of imprisonment and one year supervised release for a bribery conviction, appeals from the District Court's1 order denying his motion to reconsider his sentence based on his deteriorating health. Fitzhugh filed the motion during the pendency of his appeal from the ten-month sentence itself. Concluding it lacked jurisdiction to reconsider Fitzhugh's sentence, the District Court issued an order denying the motion.
2
Upon review of the record and the parties' submissions on appeal, we affirm the District Court for the reasons stated in its order. See 8th Cir. R. 47B.
1
The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas
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251 Miss. 847 (1965)
171 So.2d 517
ALEXANDER
v.
STATE
No. 43460.
Supreme Court of Mississippi.
February 8, 1965.
L.L. Puryear, Thomas V. Dixon, Senatobia, for appellant.
*848 G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
*849 BRADY, TOM P., J.
This is an appeal from the Circuit Court of Tate County, Mississippi by the appellant, who was convicted of the murder of one Ruby Jackson, another man, and was sentenced to serve a life term in the state penitentiary. The appellant employed counsel to represent him in the circuit court, and the court appointed the same counsel to represent him in this appeal, since appellant filed a pauper's affidavit.
A careful study of the record reveals the following facts: Appellant had been out all night drinking, and he was driving with his son on a road past where the deceased, Ruby Jackson, had driven some cows out of Jackson's cornfield, with the help of another, and was heading them down the road. Appellant was accommodating a friend named Willie T. Williams by carrying him toward his home, and the appellant stopped and spoke to one Emmit Jackson, who was herding the cattle, and told him to tell the deceased, Ruby Jackson, that he would be back in a few minutes. The record indicates that on a previous occasion Ruby Jackson had complained to appellant about some damage which appellant's mule had done in Ruby Jackson's cornfield. The appellant had deposited his friend, Williams, and had driven to Emmit Jackson's home when the appellant's son, Larry Alexander, came and asked to be permitted to use the car. Appellant permitted his son, Larry, to drive the car, and the record indicates that he instructed Larry to take him to the deceased's, Ruby Jackson's, home. Appellant and his son testify that he went in *850 order that he might pay the deceased for the damage which his mule had done to his cornfield.
The evidence is conflicting as to whether appellant knocked and was invited in or whether he went in without invitation, the witness Rossom testifying that the deceased told the appellant, "Go on back, I don't want you to come in my house." It is in conflict also with reference to the statements which appellant made when entering the deceased's home and with reference to the attitude of the appellant. The testimony is in conflict as to whether or not the appellant at this time had in his pocket an open knife which he had concealed, but which was seen at the time by the witness, Emmit Jackson, who was a relative of the deceased. Abusive vile and profane language was used by both the appellant and the deceased. Though the evidence is conflicting, nevertheless the record indicates that the appellant was obviously angry with the deceased for the complaints which the deceased had made about appellant's mule being in the cornfield, when the deceased had not complained about the stock of others which also had gotten into his cornfield. Emmit Jackson testified that once or twice the appellant, with his knife opened but concealed in his hand, started toward the deceased; that he told him, "Don't come across here with that knife like that," and that he then suggested to the deceased that he go outdoors with him, saying: "Now, I can't stop Dub (the appellant) ... Ruby, you come on. I can talk to you, but I can't talk to Dub ... I told Dub, I said, don't you come out here." The evidence is conflicting in that Emmit Jackson said he suggested this in order that he could talk to the deceased, in the hope that he might prevent a difficulty or violence. The appellant, on the other hand, testified that Emmit Jackson suggested that they go outside in order that they might there finish the thing, meaning, to fight it out to a finish. State's proof was that the appellant was at that *851 time concealing an open knife by holding it in his hand with the blade sticking up his sleeve but that the deceased had no weapon of any kind. Appellant admits that as he left the house he opened his knife and put it in his pocket with the blade open, stating that he feared what Emmit Jackson and the deceased might do to him.
On the outside a cursing match took place again and some very vile epithets were used by both the appellant and the deceased. The deceased finally told the appellant not to use certain vile language toward him again: "You call me that again, and I will slap the hell out of you." The appellant did so, and the record is in dispute as to whether or not the deceased slapped at the appellant, striking the bill of his cap with his left hand opened, or whether he struck at him with his closed fist and hit him on the side of his face and his eye. At any rate, the record discloses that the deceased was not armed, though there was lying on the ground two or three steps from him a hand ax; that the appellant sprang forward and struck the deceased one blow with the blade of his knife, plunging it into his heart. The deceased staggered back and slumped down, attempted to pick up the hand ax, was able to raise it a foot or more from the ground, and then fell and was caught by his friend, John Rossom, who had gone out of the house with him and the appellant.
The record shows that the deceased died almost instantaneously; he was picked up and carried and put into the appellant's car and the appellant and his son then took him to the office of Dr. Ethelyn Smith, who stated that the deceased was dead and had died almost instantaneously, there being very little bleeding, from a blow or an incision in his heart. The appellant employed counsel to represent him and then surrendered to the sheriff and was placed in jail. The appellant admitted to Dr. Smith that he had stabbed the deceased *852 and he admitted to the sheriff and the deputy also that he had stabbed the deceased. Immediately after he had stabbed the deceased and he had slumped to the ground, appellant stated to those persons present: "I wasn't aiming to hurt this boy. I said, he made me do it." The record also indicates further, though the appellant states he did not hear the deceased tell him to go home, that the deceased told the appellant to go home several times. It was undisputed that the deceased was unarmed at the time he was fatally struck by the appellant. The appellant concedes that the deceased had nothing in his hands.
Appellant filed a motion for a new trial, which was overruled, and this appeal was perfected. Appellant assigns two errors, the first being that the court erred in refusing to grant the appellant the following instruction:
"The Court instructs the jury for the defendant, that the law gives one the right when necessary or apparently necessary, to anticipate the attack of his adversary. One is not required to delay his self defense until his adversary is on equal footing with him. If the jury believes from the evidence that the deceased, Ruby Jackson, had made a physical assault upon the defendant, and that deceased was attempting to secure a dangerous weapon, or that his acts were such that the defendant had reason to believe that deceased was attempting to secure such a weapon with which to make an attack upon him and that he was in danger or reasonably thought he was in danger of losing his life or suffering great bodily harm at the hands of deceased, then the defendant had the right to use whatever means he could to stop deceased from inflicting such bodily harm and if the means used by defendant in preventing such onslaught caused the death of deceased, then defendant is not guilty and the jury will so find."
*853 (Hn 1) It is the contention of the appellant that the testimony justifies the granting of the instruction which the court refused and that the rights of the appellant were seriously imperiled by this refusal. The circuit court committed no error in refusing this instruction for several reasons, two of which will suffice to show that the instructions was erroneous. First of all, the testimony wholly fails to show that at the time the deceased struck or struck at the appellant he was attempting to secure a dangerous weapon or that his acts were such that, at the time, the defendant had reason to believe that the deceased was attempting to secure such a weapon. This portion of the instruction is unsupported by the testimony in this case. The testimony wholly fails to show that the deceased made any effort to pick up the hand ax until after he had been stabbed in the heart by the appellant. The fact that the deceased was in some proximity to the ax cannot be construed to constitute an attempt to secure and use it. Such an attempt requires an overt act on the part of the deceased prior to the time he was mortally stabbed by the appellant.
(Hn 2) The second reason why this instruction was properly refused is that the court had granted the appellant an instruction covering the law with reference to the right of a person to resist threats and physical force and to repel an assault and to defend himself. The appellant secured two instructions on this rule of law but one will suffice, which is as follows:
"The Court instructs the Jury for the defendant that the right of self defense is one of our inalienable rights. Any person assaulted by another has the right to repel such assault by such means and force as may to him be apparently and reasonably necessary. He should be judged in the light of the circumstances then apparent to him, rather than in the light of after developed facts.
*854 "If you believe from the evidence in this case that the defendant, J.W. Alexander, was not the aggressor, and that he was assaulted by threats and physical force by the deceased, Ruby Jackson, then the law of self defense is that the defendant then and there had the right to repel such threats and assaults by using such force as to him was then reasonable and apparently necessary to repel such assault on him and defend himself. If no greater force was under such circumstances then used by defendant, it is your duty to find the defendant not guilty.
"And in this respect, you are further instructed that if the defendant under such circumstances, did use greater force than was to him apparently reasonable and necessary to defend himself, and did so in the heat of passion and without malice and not in necessary self defense then he would be guilty of no greater crime than manslaughter; and in such event your verdict should be `We, the jury, find the defendant guilty of manslaughter.'"
Frierson v. State, 250 Miss. 339, 165 So.2d 342 (Miss. 1964); Whitehead v. State, 246 Miss. 530, 151 So.2d 196 (1963); West v. State, 233 Miss. 730, 103 So.2d 437 (1958); Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955); Thigpen v. State, 219 Miss. 517, 69 So.2d 241 (1954); Bramlett v. State, 37 So.2d 305 (Miss. 1948); Neilsen v. State, 149 Miss. 223, 115 So. 429 (1928).
(Hn 3) The second error assigned is that the court erred in overruling the motion of the appellant for a new trial on the grounds that the verdict of guilty was not supported by the evidence. The record is one of a typical homicide case where there are sharp conflicts in the testimony for the state and for the appellant and in which there is even inconsistency in one or more witnesses' testimony. Under the indictment, the proof of the state is sufficient, if believed by the jury, to convict the appellant of the charge of murder. The *855 state's evidence was sufficient to show that the appellant stabbed and killed the deceased without provocation and not in necessary self defense. The proof is uncontradicted that the deceased was unarmed at the time he was stabbed by the appellant. As we have consistently held, the jury is the sole judge of the credibility of the witnesses, the weight and the worth of their testimony. The jury has the right to believe a part of the witnesses' testimony and disbelieve other parts, and arrive at the truth as to what transpired. Bond v. State, 249 Miss. 352, 162 So.2d 510 (Miss. 1964); Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962); Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949). Cf. also Rogers v. State, 222 Miss. 609, 76 So.2d 702 (1955); Scott v. State, 185 Miss. 454, 188 So. 546 (1939); Woodward v. State, 180 Miss. 571, 177 So. 531 (1937), sugg. of error 178 So. 469 (1938); Witt v. State, 159 Miss. 478, 132 So. 338 (1931); Evans v. State, 159 Miss. 561, 132 So. 563 (1931); and Young v. State, 150 Miss. 787, 117 So. 119 (1928).
(Hn 4) After careful consideration, we are forced to the conclusion that the jury was justified in finding by its verdict that the appellant was guilty of murder. Therefore, the verdict of the jury and the judgment of the trial court is hereby affirmed.
Affirmed.
Kyle, P.J., and Gillespie, Jones and Inzer, JJ., concur.
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124 F.3d 223
Litton Industrial Automation Systemsv.Nationwide Power Corporation, Fitzgerald, Peters, Dakmak &Miller, P.C.; U.S. v. Magna Card, Inc., d/b/a HighlanderInternational Corporation, John F. Roscoe, III, BrooksSatellite, f/k/a Nationwide Power Corporation
NO. 95-2725
United States Court of Appeals,Eleventh Circuit.
Aug 28, 1997
M.D.Fla., 106 F.3d 366
1
DENIALS OF REHEARING EN BANC.
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533 P.2d 355 (1975)
IN THE MATTER OF PHILLIP ROBERT ZINZER, a Child.
STATE ex rel. Juvenile Department of Clackamas County, Appellant,
v.
Eugene ZINZER and Jeannie Zinzer, Parents, Respondents.
In the matter of Michael Henry Paulson, a Child.
State ex rel. Juvenile Department of Clackamas County, Appellant,
v.
Jeannie Zinzer, Mother, Respondent.
Court of Appeals of Oregon.
Argued and Submitted February 25, 1975.
Decided March 31, 1975.
William B. Reisbick, Milwaukie, argued the cause and filed the brief for respondents.
Betsy Welch, Deputy Dist. Atty., Oregon City, argued the cause and filed the brief for appellant.
Before SCHWAB, C.J., and FOLEY and LEE, JJ.
FOLEY, Judge.
On May 22, 1974, petitions were filed in the Circuit Court of Clackamas County, Juvenile Department, seeking termination of the parental rights of Eugene and Jeannie Zinzer to the child Phillip Zinzer and of Jeannie *356 Zinzer to the child Michael Paulson. After hearing, the petitions were dismissed. The Juvenile Department of Clackamas County appeals. ORS 419.561.
Our review of these cases is conducted in the same manner as an appeal in an equity suit, ORS 419.561(4), which means a de novo review upon the record, ORS 19.125(3).
The primary statute regarding the grounds for termination of parental rights is ORS 419.523, which provides in pertinent part:
"(1) The parental rights of the parents of a child within the jurisdiction of the juvenile court * * * may be terminated as provided in this section * * *
"(2) The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable in the forseeable [sic] future due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:
"(a) Emotional illness, mental illness or mental deficiency of the parent of such duration as to render it impossible to care for the child for extended periods of time.
"* * *
"(d) Physical neglect of the child.
"(e) Lack of effort of the parent to adjust his circumstances, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.
"(3) The rights of the parent or parents may be terminated * * * if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for one year prior to the filing of a petition. In determining such failure or neglect, the court shall consider but is not limited to one or more of the following:
"* * *
"(b) Failure to maintain regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent.
"* * *." (Emphasis supplied.)
The basis for termination "must be established by a preponderance of competent evidence." ORS 419.525(2). We now review the record.
Phillip Zinzer (Phillip) is now six years old and Michael Paulson (Michael) is now seven years old. Mrs. Zinzer is the mother of both Phillip and Michael; Mr. Zinzer is the father of Phillip and the stepfather of Michael. Mrs. Zinzer testified she does not know who is the father of Michael. In 1971 a health department official reported that the Zinzers were living in a trailer without water and electricity, that the home was maintained in a filthy condition, and that the children were not adequately clothed. In August 1971 an order was issued that the children be placed under the temporary care, placement, and supervision of the Children's Services Division (CSD) pending an investigation. At the time Phillip and Michael were picked up, a CSD foster-care worker noticed animal feces on the ground in the area of the home and food left out on the table; he found Michael with Mrs. Zinzer by an animal pen, and Phillip was found asleep in an outdoor toilet. In November 1971 Michael and Phillip were declared wards of the juvenile court and they have been under the legal care of CSD ever since.
The Zinzer's circumstances have not changed significantly between the time Michael and Phillip were first placed in *357 the custody of CSD and the time of the hearing on the petitions to terminate parental rights. Shortly before the hearing the Zinzers were living with Mrs. Zinzer's mother in a trailer house. At one time there were six people housed in the trailer. Garbage was piled up at the trailer house and the scene was described by a foster-care worker as "extremely nauseating."
The Zinzers had at least two addresses by July of 1974 and had six different addresses in 1973. They moved often because Mrs. Zinzer's mother was always moving and the Zinzers moved with her. For three weeks prior to the hearing Mr. Zinzer worked at junking cars, making about $50 the last week. For eight months prior to that he worked at trailer maintenance for about $300 a month but he quit because he thought his paycheck deductions were too large. The Zinzers have had marital problems and were separated at least once.
The Zinzers were examined twice by Dr. Russell Sardo, a clinical psychologist, and, at their request, were examined once by Dr. Marvin Greenbaum, a clinical psychologist. The evaluations of both doctors were fairly consistent. Mr. Zinzer was described as being essentially asocial and as having a personality pattern disorder called dissocial sociopathy. Dr. Sardo testified as to Mr. Zinzer's background and ability to understand and deal with children:
"* * * I saw Mr. Zinzer as a man who seemed to be quite lacking in judgment, showing almost no understanding whatsoever of the needs of young children.
"He appeared to be an individual who had been unable to sustain a relative responsibility of a constant way of life both in the period in which I had experience with him and in his past history."
Dr. Sardo's testimony was not contradicted and was in fact supplemented by the testimony of Dr. Greenbaum who was called as a witness by the Zinzers.
Mrs. Zinzer is a very limited woman. Dr. Sardo testified:
"A * * *
"It was my feeling that she is sustained primarily by Mr. Zinzer. That Mrs. Zinzer is a woman who lacks the capacity to function as an individual and will have to * * * function mainly on support of someone else. This is provided by Mr. Zinzer.
"* * * [On tests which were administered] Mrs. Zinzer scored in the lowest one-third which would place her [functioning] somewhere in the lower part of the educable retarded range * * *.
"Her typical responses seemed to be very flat without any indication of warmth or response of emotion.
"She showed a lack of capacity to understand most of what we were saying as indicated by her response when I spoke about the children, their needs and how these children had been harmed by the life pattern there and we spoke further about the existence that they were maintained in, their life patterns and therefore the logical conclusion was that the children would not benefit, as a matter of fact, they were harmed. I would say she nodded `yes', she agreed to that but it could not extend further. That, yes, she should either change or get rid of the children, that seemed to be lacking * * * [she has an] inability to comprehend.
"I specifically requested that I see them again the second time to elaborate my diagnostic implementation and I felt at that time that the evidence of retardation is probably on a functional basis. That is, this is not due to any physiological or organic limitation, but that this is a symptom of a probably almost life-long emotional problem which I think might best be described as a chronic degenerative process.
"It is evidenced that in general social, emotional, vocational and educational inadequacy and the likelihood is that there will be continued deterioration. This pattern fits the attitude of inadequacy and a simple psychological kind of test.
*358 "Q What in light of what I gather you are saying, number one, that she is retarded and number two, that she suffers from either, from a condition of simple schizophrenia or
"A Or presimple schizophrenia.
"Q What is in your opinion, Doctor, Mrs. Zinzer's capacity to provide the basic services, if you will, that a mother is expected to provide to small children?
"A I think she has no comprehension of these services. I think that functioning in terms of her own needs is probably quite taxing."
Again, Dr. Greenbaum's testimony was not contradictory and in many respects supplemented Dr. Sardo's statements.
The conduct or conditions of the parents cannot be examined in a vacuum for they are not absolute factors in terms of ORS 419.523. Rather, we must examine the Zinzers in light of the effect their circumstances have had and might have in the future upon Michael and Phillip; our primary consideration is the best interests of these children. State v. Blum, 1 Or. App. 409, 463 P.2d 367 (1970).
The evidence established that both Michael and Phillip had emotional problems. In school Michael had problems adjusting, and he was aggressive toward other children. In the first two of three foster homes he has been in he was extremely aggressive, had temper tantrums, had a short attention span, and had difficulty accepting discipline. Phillip has had even more problems, and had to be removed from his first foster home because he was continuously aggressive striking other children and stubbornly refused to accept discipline. He wet his bed every night and continuously wet his pants during the day, had temper tantrums and was unable to relate to children of his own age. He was referred to a mental health clinic. In January 1973 one psychologist warned that Phillip might have autistic and some schizophrenic tendencies and, if the right foster home weren't found, he might have to be institutionalized.
By the time of the July 1974 hearing both boys had shown significant improvement. Phillip had been in one foster home for a year and a half; he had begun to gain weight and to grow; he had stopped throwing tantrums; he did not wet his bed unless he "got worked up" and he was an affectionate child. Michael had been in one foster home since August 1973, and his foster parents testified he had been cooperative, happy and well-behaved.
However, there have been several occasions when the problems of Michael and Phillip have resurfaced. During the time the boys have been under CSD care, visitation programs have been established as part of attempts to promote reunification of the Zinzers with Michael and Phillip. Between August 1971 and February 1972, Mr. Zinzer saw the children twice. In February the court set up a monthly visitation program, but between February 1972 and November 1973 the Zinzers visited the boys only nine times. The only known reasons were that the Zinzers were at long distances because they were moving frequently, and they had transportation problems. In November 1973 a period of more intense visitations began. The evidence indicated that Michael and Phillip became very upset as the visits occurred more frequently. Phillip could not sleep, started wetting his bed again, and became very insecure, wanting to have his foster parents with him in circumstances where he previously was willing to be alone. Michael became defiant, drew into a shell, and started acting up in school. He would refuse to visit. Michael's situation deteriorated so badly that the visits with the Zinzers were moved from his foster home to CSD offices, and then were temporarily discontinued. Phillip expressed a fear that the Zinzers would take him away, and at the request of his foster parents visits were also scheduled at CSD offices instead of at his home.
Evidence also established that there was relatively little interaction and affection shown between the Zinzers and Phillip or Michael, either during the visits within the *359 foster homes or during the visits at the CSD offices. The last visit with Michael was December 21, 1973, and visitations with Phillip were discontinued in March 1974.
After discussing the problems of Michael and Phillip, Dr. Sardo responded to questions about their needs:
"A These children do have problems. There has been, I think, a remarkable improvement in these children from the first time I saw them and from the descriptions that were given about their functioning and their behavior when they first entered foster placement. I think remarkable is the only appropriate term.
"I think, well, I feel unequivocally that the children need to have a permanent identification with the family. That that family be sensitive and perceptive enough to their needs and committed enough to them as individuals, the capacity to love and to care, that they will be able to remain invested with these children and deal with their problems as they arrive.
"They obviously have to have a fairly high frustration threshold because these children will test them and then it will be frustrating. They obviously have to have a capacity to respond with support and judgment and with affection and love even when frustrated.
"That, I think, considering their age is the most appropriate therapy that can be provided. It may be at some time in the future when they are a little bit older and in school that additional professional help might be warranted, but the professional help would have to be considered as auxiliary to the provision of an effective family environment.
"Q An approach to these children that you have just described, Doctor, can that be provided by either Mr. or Mrs. Zinzer or by them together?
"A No."
Dr. Greenbaum also testified that continuity and stability in their emotional and physical lives were most important to Phillip and Michael. In that context, Dr. Greenbaum thought Michael might be able to "tolerate" a visitation program beginning six months to a year in the future. Dr. Greenbaum thought Phillip to be "more vulnerable" and stated he would be more cautious in terms of establishing a visitation program. Dr. Greenbaum also expressed, on cross-examination, his opinion as to the ability of the Zinzers to care for the children:
"Q * * * Dr. Greenbaum, I would like to ask you whether Mr. and Mrs. Zinzer will be a substantial resource to these children and only in the following context. Can Mr. and Mrs. Zinzer provide for these children in their own home?
"A Allow me to turn your question around a little bit and see if you find the answers. I want to emphasize the word[s] `these children' and I want to emphasize the word[s] `at this time,' and I give the answer in this way.
"These children are children who are vulnerable to certain kind of situations. They are who, I think have experienced life situations which are depriving. I believe they place more strain, place, put more need upon the depth and continuity of parenting care than might youngsters who haven't had the experiences they have already had in life and are not reacting the way they are. To that end of the question, that is, could these children I believe that Mr. and Mrs. Zinzer at this time would not provide what I would be considering the type of care which would enable them to grow in the in a way that would not be destructive to them.
"* * *
"Q Doctor, speaking in very practical and realistic terms, what can happen in the foreseeable future that would make it possible for those children to live with these parents?
"A To make it healthy for the children, in other words?
*360 "Q Yes?
"A I will answer that by saying I don't think there is any practical way that that would change the present situation."
Dr. Sardo's testimony as to the capabilities of the Zinzers, in terms of the needs of the boys, sums up the evidence:
"Q Dr. Sardo, is there any service, social service that could be provided to Mr. and Mrs. Zinzer in their own home that in your opinion would permit them to be able to provide for these two children?
"A No, no, I don't. If we view even the needs of the children in the most basic terms, terms of providing basic physical needs, the appropriate service would be a homemaker who would in effect be providing most of the help, and there is no guaranty that this kind of functioning would sustain itself, but obviously the needs of the children are much more extensive than that and I can't see any way in which we could help these people acquire the sufficient desire and dedication and also the capacity to provide these." (Emphasis supplied.)
The trial court, in refusing to terminate parental rights, found that "[t]he termination of visitation privileges made it impossible for the parents to have any opportunity to show whether they desired [or were able] to maintain visitation * * *" and that "[t]ermination of visitation privileges made it impossible for the parents to indicate by their conduct what their parenting abilities may be." The trial court also found that the Zinzers "have some limitation on their mental acuity," but that mental ability and type of parental care are "relative things."
We interpret this case differently. The evidence established that Mrs. Zinzer suffers from an emotional illness and retardation, that Mr. Zinzer is somewhat mentally deficient, and that because of these factors it will be impossible for them to meet the needs of Michael and Phillip, even with extensive assistance. There is evidence that Phillip and Michael were physically and emotionally neglected before they were taken in custody by the CSD. In the context of the nearly three years which passed between the original custody order and the hearing on termination of parental rights, the Zinzers made only a minimal effort and were unable to readjust to make their circumstances, conduct, or condition compatible with being parents to the children. While it is true that visitation was terminated by CSD, this only occurred after two and one-half years of attempts to bring the Zinzers together with Michael and Phillip had failed and the visits appeared to be damaging to the boys.
Unlike State v. Grady, 231 Or. 65, 371 P.2d 68 (1962), where termination was not approved, there is very little evidence here that the Zinzers may be able to adequately resume their parental duties; in fact, the weight of evidence here is to the contrary. Unlike State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971), where termination was not allowed, there is clear and, in fact, largely uncontradicted evidence that not only the Zinzers' conduct but their condition as well has been seriously detrimental to Michael and Phillip.
The trial judge hesitated to terminate because he questioned whether the Zinzers were provided with sufficient time to adjust their circumstances and conduct. However, the record here provides substantial evidence that because of their condition the Zinzers cannot be expected to care for Michael and Phillip in the future. We conclude that this misfortune should not be visited upon the children and the evidence persuades us that termination is proper in this case. See State ex rel. Juv. Dept. v. Archuletta, 12 Or. App. 596, 506 P.2d 540, Sup.Ct. review denied (1973). See also State ex rel. Juv. Dept. v. Wade, Or. App., 99 Adv.Sh. 2247, 99 Adv.Sh. 3058, 527 P.2d 753, 528 P.2d 1382 (1974), Sup.Ct. review denied (1975); State ex rel. Juv. Dept. v. McMaster, 18 Or. App. 1, 523 P.2d 604, Sup.Ct. review denied (1974); State ex rel. Juv. Dept. v. Patton, 5 Or. App. 450, 485 P.2d 653 (1971). As we said in McMaster: *361 "`* * * The best interests of the [children] are paramount * * *.'" 18 Or. App. at 11, 523 P.2d at 608.
The preponderance of the evidence in this case supports the termination of parental rights, pursuant to ORS 419.523(1), (2) and (3), of Eugene and Jeannie Zinzer to Phillip Zinzer and of Jeannie Zinzer to Michael Paulson.
Reversed and remanded.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/407708/
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685 F.2d 1387
Laursenv.Veterans Administration
80-5988
UNITED STATES COURT OF APPEALS Eleventh Circuit
8/23/82
1
D.Fla.
AFFIRMED
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/381346/
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628 F.2d 604
24 Wage & Hour Cas. (BN 564, 202 U.S.App.D.C. 317,88 Lab.Cas. P 33,892, 1980 O.S.H.D. (CCH) P 24,309
NATIONAL ASSOCIATION OF FARMWORKERS ORGANIZATIONS, et al., Appellants,v.Ray MARSHALL, Secretary, Department of Labor.
No. 79-1587.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 13, 1980.Judgment Filed Feb. 15, 1980.Decided March 20, 1980.
Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 79-1044).
Diane B. Cohn, Washington, D. C., with whom William B. Schultz and Robert B. Stulberg, were on brief, for plaintiffs-appellants.
Ronald G. Whiting, of the Bar of the Supreme Court of Iowa, Washington, D. C., pro hac vice by special leave of court was allowed to argue for appellee.
Alvin Bramow, Deputy Associate Sol., Washington, D. C., was on brief, for Secretary of Labor.
Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and WILKEY, Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
BAZELON, Senior Circuit Judge:
1
This case presents a question familiar to this court1: How can an administrator set safety standards in the absence of adequate scientific evidence? The question here arises in the context of action by the Secretary of Labor (the Secretary) to implement section 13(c)(4)(A) of the Fair Labor Standards Act Amendments of 1977 (the 1977 Amendments). This provision permits the Secretary to waive restrictions on employment of 10 and 11 year olds in short season agricultural harvesting, but only if eight enumerated conditions are fulfilled as demonstrated by "objective data." 29 U.S.C.A. § 213(c)(4) (A) (1979).
2
One such condition, hereinafter described as "the pesticide condition," requires objective data that children will not be adversely affected by pesticides and chemicals used on crops.2 Without notice or comment, the Secretary promulgated a list of pesticides that would satisfy the statutory pesticide condition. The Secretary had no studies or data concerning the effect of any pesticide exposure on children. Because this statutory scheme so clearly requires objective proof of safety, we find the challenged regulations listing approved pesticides inconsistent with governing law. We also find the challenged regulations procedurally flawed as they were promulgated without the notice and comment procedures required under the Administrative Procedure Act (APA), 5 U.S.C. § 553. We therefore reverse the district court's denial of a motion for preliminary injunction, and remand for proceedings not inconsistent with this opinion.3
I. BACKGROUND
A. Statutory Framework
3
As a general rule, Federal law prohibits employment of children under 12 years of age.4 The 1977 Amendments permit employers to apply to the Secretary for a waiver of the child labor laws in order to employ 10 and 11 year olds for harvesting short-season crops. Such waivers can be granted under the Amendments only if the following conditions,5 among others, are met:
4
(ii) the employment of the individuals to whom the waiver would apply would not be deleterious to their health or well-being;
5
(iii) the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply.
6
29 U.S.C.A. § 213(c)(4)(A) (1979). These requirements are satisfied only if the Secretary makes findings "based on objective data submitted by the applicant." Id.
B. The Regulations
7
The history of the regulations at issue reveals an agency struggling to establish uniform standards in the face of little or no evidence. Initially, the Department of Labor attempted to set uniform evidentiary benchmarks to establish the requisite safety assurances for work with pesticide-treated crops. Thus, on April 4, 1978, the Department proposed that waivers permitting employment of 10 and 11 year olds would be granted only if employers produced evidence that their pesticides meet health and safety standards of the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), or other "comparable authority." 43 Fed.Reg. 14070 (April 4, 1978). This first agency action was the only one announced with advance notice and opportunity for public comment. The agency solicited responses in a two-day public hearing.
8
Comments and testimony on the April 4 proposal pointed to the complete absence of relevant health and safety standards for children exposed to pesticides.6 The EPA Assistant Administrator for Toxic Substances, a member of EPA's Scientific Advisory Panel for Pesticides, and one of the instant plaintiffs alerted the Department of Labor to the fact that neither the agencies cited in the regulation nor any comparable authority had set standards that would protect children from the adverse effects of pesticide exposure. The public and governmental response demonstrated that the state of knowledge was simply too inadequate to support safety standards.7
9
The final regulation was published in the Federal Register on June 21, 1978. The preamble acknowledged that the EPA's pesticide exposure standards8 "have not been shown to be safe for 10 and 11 year olds." 43 Fed.Reg. 26563 (June 21, 1978) (codified at 29 C.F.R. § 575.5 (1979)). Section 575.5(d) of the regulation provided that employers seeking a waiver to permit employment of 10 and 11 year olds would have to submit either (1) a statement that they do not use pesticides, or (2) data proving that 10 and 11 year olds can safely be exposed to the particular pesticides used. The regulation also indicated that it would remain subject to future modification in light of studies conducted by the Secretary or his designees.
10
After promulgation of the regulations a Federal district court in the State of Washington temporarily enjoined enforcement of the general statutory minimum age restrictions9 because the Secretary had failed to act on pending waiver applications before the June 1979 strawberry season. See Washington State Farm Bureau v. Marshall, No. C78-135T (W.D.Wash.1978). Although that suit ultimately was dismissed, some 3900 children under the age of 11 were employed during that strawberry harvest as a result of that court's action. Plaintiff's Br. at 13 n. 2 (citing Department of Labor Memorandum in J.A. Vol. A at A31).
11
At this point the Department apparently felt pressed to facilitate the processing of waiver applications by specifying safety standards. On June 15, 1978, the Secretary asked a private consulting firm, Clement Associates, Inc., to review existing scientific literature in an effort to develop criteria for evaluating waiver applications. Clement was directed to focus specifically on strawberry hand-harvesting in Washington and Oregon, and potato hand-harvesting in Maine. What followed was a series of Clement reports, triggering a series of agency modifications of its regulations, each published in the Federal Register without advance notice or opportunity for comment.10 Each of the Clement studies proposed the use of "preharvest intervals" or "minimum entry times" which provide for a time lag between the spraying of the pesticides and the entrance of harvesters on the fields.11 Each of the studies qualified its recommendations by observing they could "not assure safety" to the 10 and 11 year olds12 and consistently acknowledged the need for more exhaustive study including new studies, not merely reviews of existing literature.13 Nonetheless, the Secretary relied exclusively on these studies in his regulations implementing the waiver provision.
12
The first Clement study recommended "tentative" standards that essentially doubled the "preharvest intervals" set by the EPA for adults.14 The Department adopted this recommendation in an August 18, 1978 amendment of section 575.5(d) of its regulation.15 The Department approved 22 pesticides for use with "preharvest intervals" before children could enter the field. The list included one known carcinogen and other chemicals found dangerous by Clement.16 Although the Secretary did not provide advance notice or opportunity for comment before putting the regulations into effect, the EPA submitted comments challenging the adequacy of the standards. The EPA noted the special susceptibility of children to toxic effects from pesticides, and concluded "we don't believe the data available allows us to make a decision on the safety of children either in preharvest or reentry situations."17
13
The next Clement report was requested on March 19, 1979 some six months after the earlier report. Rather than seeking new field studies to address the special question of pre-adolescent health, the Department asked Clement to review the list of approved pesticides and to investigate additional pesticides. Ten days later, Clement issued a report addressing the carcinogencity of five pesticides. Shortly thereafter, the Department issued another rule removing three known carcinogens from the list of approved pesticides.18 This action was not based on new data, as the three chemicals had already been identified as carcinogens before the adoption of the August 18 rule.19
14
Clement then issued another report discussing 16 other pesticides it researched at the request of the Department.20 Although noting the dangerous health effects associated with some of these substances, Clement again merely recommended doubling EPA's preharvest intervals as a standard for children. The agency responded by adding these 16 substances to the approved list with minimum entry times established in the Clement report.21
C. Proceedings Below
15
Plaintiffs-appellants, two private non-profit organizations representing farmworker families,22 sought: 1) a finding by the district court that the Secretary's approval of pesticide use with pre-harvest intervals for 10 and 11 year olds violates the statutory waiver provision; 2) a declaratory judgment that the regulations violated the notice and comment provisions of the APA; and 3) injunctive relief enjoining the Secretary from applying the regulations that establish entry times for 10 and 11 year olds.
16
On May 21, 1979, the district court held a hearing on plaintiffs' motion for temporary relief.23 The government defendant presented two witnesses. The Assistant Administrator for the Wage and Hour Division described the agency's decisionmaking process. He said that the agency turned to Clement Associates when it found no federal agency had set satisfactory standards for children exposed to pesticides. He explained that it was on the basis of the Clement Associates reports and these reports alone24 that the agency issued the lists of approved pesticides with minimum entry times.25
17
The Department's second witness was a representative of Clement Associates. She explained that Clement's research team reviewed all available studies on known health effects of pesticides listed by the Department and also all existing standards for adult exposure. She further testified that the greater susceptibility of children was taken into account in the recommended entry times. She admitted on cross-examination, however, that further studies were needed to advance knowledge of the effects of pesticide exposure for children.26 But, she said, her group had only been asked by the Secretary to review the existing literature, none of which directly addressed the risk to children.
18
The district court denied the motion for preliminary relief. The judge first determined that the statute demanded findings by the Secretary, "based on objective data, that the level and type of pesticides or other chemicals will not have an adverse effect on the health or well-being of the 10 and 11 year old hand harvesters employed under a waiver."27 He then noted that the "Clement reports found that the recommended standards do not within the limits of current scientific knowledge assure absolute safety."28 Nonetheless, the judge concluded that the regulations, based solely on the Clements reports, were not "arbitrary, capricious, or otherwise not in accordance with law."29
19
The core of the court's reasoning rested on its acceptance of the Department's view that the 1977 Amendments mandated the issuance of at least some waivers, so safety standards, no matter how arbitrary, had to be set. The court also reasoned that because absolute assurance of safety could never be obtained, the Secretary was justified in acting despite scientific uncertainty about the effect of pesticides on 10- and 11-year-old children.30
20
The district court also ruled on the merits of plaintiffs' procedural claim. The court held that the APA's "good cause" exception to notice and comment procedural requirements was satisfied by the Secretary's desire for expeditious issuance, in time for the harvest season.31 In support of that conclusion, the court also reasoned that the Secretary's continuing review procedures showed further good cause for suspending notice and comment as ongoing review of submissions from interested parties could be considered.32 This appeal followed.
II. ANALYSIS
21
The district court declined to grant a preliminary injunction by reasoning that the plaintiffs would lose on the merits.33 In so doing the court ignored three of the four factors required to be considered before issuance of a preliminary injunction.34 The court also wrongly evaluated the one factor it did consider: plaintiffs' likelihood of success on the merits. We analyze these matters at some length because of the importance of the issues presented and the broad reach of the district court's conclusions.
22
A. The Test for Granting Preliminary Injunctions
23
Over twenty years ago, this court articulated these four factors to be weighed by a court before granting a stay or a preliminary injunction:
24
(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? . . . (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? . . . (4) Where lies the public interest?
25
Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). These factors have assisted analysis ever since, and we see no reason to depart from them now.
26
The district court indicated no consideration of factors (2), (3), and (4) listed above, each of which weighs in plaintiffs' favor. Indeed each of these factors supports a preliminary injunction to preserve the status quo pending a decision on the merits,35 based on a balance of the equities between injuries to the parties and the public.36 Therefore, we address these factors.
27
1. Irreparable injury to plaintiffs.
28
Interlocutory injunctions are sometimes necessary to assure that rights sought are not so eviscerated during trial that final relief would be to no avail. The injury to plaintiffs, absent interim relief, must also be evaluated to permit a comparison with harms to other parties and to the public.
29
Here plaintiffs represent children37 who might work as hand harvesters if the Secretary is not enjoined from administering the waiver provision according to the challenged regulations. As a result, these children would be exposed to the pesticides and chemicals approved by the Secretary for use according to the listed "minimum entry times," intended to reduce risks of exposure.38
30
The risk of harm from such exposure pendente lite would not be eliminated even if plaintiffs ultimately were to win on the merits.39 Thus, plaintiffs convincingly make out a case of irreparable harm, absent interlocutory relief. In arguing that plaintiffs have not provided evidence of adverse effects to children, the government neglects the evidence in the record. The EPA, the agency most expert in hazards from pesticide exposure, identified some substances approved by the challenged regulations as "high-risk pesticides" and others as "highly toxic."40 The EPA further noted that the regulation's reentry intervals may not be sufficient in light of the complex nature of pesticide degradation.41 Further, OSHA and Clement Associates emphasized the known heightened susceptibility of pubescent children to harm from pesticide exposure.42 It is in this context that the EPA, OSHA, and Clement Associates all stressed the insufficiency of current scientific information to assist the setting of safety standards for children exposed to pesticides.43 These expert statements evidence insufficient knowledge of methods to combat known hazards. The hazards exist, and children's exposure to them constitutes the kind of irreparable departure from the status quo that necessitates interlocutory relief.44
31
2. Harm to other parties.
32
The obviously interested parties here are the defendant Department of Labor, and the agricultural employers, or the growers, who are advantaged by the availability of waivers under the Department's regulation that lists approved pesticides. A preliminary injunction enjoining application of that list would permit waiver only on satisfaction of the statutory requirement of "objective data" reviewed by the Department and provided by applicant employers establishing that employment conditions and pesticide exposure would not adversely affect 10 and 11 year olds.45 A foreseeable result is that fewer waivers would be granted. The proof process would be more difficult, and the case-by-case evaluation more time-consuming, than would simple application of the list of approved pesticides here under challenge.46
33
Growers seeking waivers thus would suffer from a diminished labor pool and would either be short on labor or have to pay more to attract employees. We assume that this result would indeed be burdensome, because under the statutory and regulatory schemes, waiver applications can be approved only based on objective data that the industry would suffer "severe economic disruption" without the child employees available through a waiver.47 We note also, however, that the industry obviously has survived without any 10- and 11-year-old hand harvesters during the extended period preceding the passage of the statutory waiver provision in 1977.48 With the restricted availability of waivers even subsequent to 1977,49 we must conclude that the industry would not be significantly harmed if the Secretary is enjoined from approving applications supported by statements of pesticides used.
34
The other interested party possibly harmed by a preliminary injunction is the defendant Department of Labor. The harm to it would be the suspension of its list of approved pesticides, and the pressure to respond to demands by both growers and child protection groups. These results do not constitute substantial harm for the purpose of delaying injunctive relief. Indeed, these consequences are no different from the Department's burdens under the statutory scheme. The Department could still seek sufficient information to support reliable safety standards, and the Department could also initiate notice and comment rulemaking for that same purpose. Especially when compared with the irreparable harm from children's exposure to known dangers, the foreseeable consequences to the Department of Labor and to growers are insignificant.
3. The Public Interest
35
The public interest is a uniquely important consideration in evaluating a request for a preliminary injunction. As the Supreme Court has held, "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved."50
36
Here, two competing problems for the public interest arise. First, how will the price of produce be affected if a preliminary injunction limits the availability of 10- and 11-year-old hand harvesters? Second, what health effects would 10- and 11-year-old children risk if allowed employment? Thus, consideration of the public interest requires us to replay the analysis of the two previous factors. We must ask what is the proper balance between the economic burdens to growers denied waivers, a burden ultimately shifted to consumers, and the irreparable harm to children exposed to pesticides and chemicals through employment allowed waivers? Once again, the balance must be struck in favor of the protection of children.51 Especially in the context of a motion for preliminary relief, equity requires protection against irreparable harm. Plainly, any possible reduction in the price of produce that might result from denying preliminary relief would be only short-term, and would never approach the value of the children's health to the nation.
37
In sum, we conclude that the three factors ignored by the district court clearly favor the plaintiffs. It may well be that a preliminary injunction was warranted even if the district court had correctly concluded that plaintiffs would not be likely to prevail on the merits. Even if that were the case, plaintiffs needed only to present a "serious legal question" for preliminary relief to be granted under the other circumstances of their case.52 Moreover, we conclude that the district court incorrectly assessed plaintiffs' likelihood of prevailing on the merits.
B. The Merits
38
"The duty to appraise the merits at the stage of preliminary injunction is a duty of appellate as well as trial courts."53 In addition, the mistaken premises of law behind the district court's denial of preliminary relief require review as they are bound to reappear during further proceedings in the case.54
39
Presented only with a motion for preliminary injunction, the district court assessed not only plaintiffs' likelihood of prevailing on the merits, but also issued conclusions of law.55 It found that the plaintiffs failed to demonstrate that the challenged regulations are arbitrary, capricious, or otherwise not in accordance of law. The court also concluded that the Secretary had "good cause" to waive the requisite notice and comment procedures. In reaching both conclusions, the district court incorrectly presumed that the existence of the waiver provision in the 1977 Amendments required the issuance of some waivers. This premise neglects the legislation's clear burden on both waiver applicants, and the Department of Labor to establish, through "objective data," the safety of employment conditions for 10- and 11-year-old children.56
40
1. The substance of the regulation.
41
The challenged regulations were issued amidst acknowledged uncertainty. Indeed, assuring safety in exposure to pesticides may be beyond the range of scientific certainty at present.57 At the same time, analytic tools are only beginning to take shape for comparing costs and benefits of safety regulations.58 The task for a court asked to review an administrative safety standard is to determine whether the basis for the standard satisfies the requirements of authorizing statute.59
42
Here, the district court concluded that the Secretary "could not delay the issuance of waivers until he received assurances that certain pesticides were absolutely safe or presented zero risk because the state of scientific knowledge could not in the near future, if ever, provide such assurances."60 The court's reasoning is flawed in at least three respects.
43
First, its concern with the problem of proving absolute safety obscures the simpler question posed by this case: did the Department meet the statutory requirement for issuing waivers in announcing a list of approved pesticides solely on the basis of the Clement reports? The statute requires a finding by the Secretary "based on objective data submitted by the applicant, that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply."61 The Secretary here chose to simplify the process by announcing a list of approved pesticides. This approach is compatible with the statute, but by law the Secretary still had to find that the pesticides and chemicals used would not adversely affect the child hand harvesters. Yet here the Secretary had no data even tending to point in that direction. The Secretary relied completely on the solicited Clement reports which, as we have discussed, expressly disclaimed any assurances of safety.62 None of the reports provides any data to show that even with the recommended entry times, pesticide exposure would not be adverse to children's health. Indeed, each Clement report recommended supervision and medical surveillance of children exposed.63
44
This is not a case in which there are data supporting the Secretary's view, but subject to criticism.64 The Secretary issued lists of approved pesticides solely on the basis of secondary reviews of the research literature which revealed that "most critical information required for evaluating potential hazards to children is lacking."65 The problem of proving absolute safety can in no way excuse the Secretary's failure to abide by the governing statute.
45
The reasoning of the district court is further flawed because of a factual error. The court concluded that "the state of scientific knowledge could not in the near future, if ever" provide requisite assurances of safety.66 In fact, the Clement reports acknowledged that their findings were limited in no small part by the time constraints imposed by its contracts with the Department.67 At the hearing on the motion for preliminary injunction, the witness from Clement testified that because of the time restrictions imposed by the contracts, Clement had never evaluated the basis for EPA pesticide standards,68 even though EPA notified the Secretary that its data did not cover the special case of pubescent children.69 The Clement witness also testified at the hearing that existing methodologies, applied to this special case, would be helpful, and feasible, "time permitting."70 Moreover, the EPA said the Department could and should "examine retrospectively the effects of past harvest practices (to determine) whether any adverse effects are observed."71 Nonetheless, the Department did not seek any new studies before issuing its lists of approved pesticides; it merely asked Clement to review existing literature, none of which dealt with children's exposure to pesticides.
46
Bolstered by the unsupported belief that no better evidence could be obtained, the district court concluded that the Secretary was justified in relying on "the best available evidence."72 This standard, while approved in other Department of Labor statutes, does not appear anywhere in the waiver provision.73 This provision instead specifies the need for "objective data" of no adverse health effects.74
47
Finally, the district court wrongly reasoned that the regulations had sufficient basis because absolute safety would be impossible to assure. Proof of an absolute the absence of danger is indeed beyond reach.75 Yet such a proposition must not permit a court to substitute its view for the statute's explicit requirements. Apparently, the district court believed the requirements set by statute are impossible to fulfill. But if there ever were an instance in which Congress did not delegate discretion to an agency to establish less than absolute safety standards, this might be that case. Congress permitted a limited exception to the prohibition against child labor by imposing most stringent conditions to assure safety. The proposed bill passed by the House required merely objective proof that the employment permitted through waivers "would not be deleterious to (the children's) health or well-being."76 The Senate, however, refused to pass the bill without adding the further condition to guard specifically against adverse health effects from pesticide exposure.77 The Senate sponsor of the initial language said new language was added "just to make sure that there is no danger whatsoever from any toxic material" encountered by children employed through waivers.78 Thus, neither the legislative history nor the language of the waiver provision provides any leeway. The directive is clear. Exceptions to the prohibition against child labor can be made only upon findings, based on objective data, that the employment will not have adverse effects on the children's health or well-being.
48
The district court similarly erred in concluding that a requirement of absolute safety "would in effect nullify the congressionally authorized waiver provision."79 In fact, a situation of "zero risk"80 from pesticides exists and is provided for in the regulations: fields where no pesticides are used.81 They explicitly provide that employers may support waiver applications by submitting "a statement that no pesticides or other chemicals were used on the crop to be harvested."82
49
Apparently unaware of this possibility, the district court reasoned that stringent safety requirements would result in no waivers, and thus violate Congress' intention to permit waivers.83 This reasoning turns the waiver provision on its head. Congress provided that the "Secretary may not grant such a waiver unless " the conditions of the statute are met.84 Congress authorized the waivers only after underscoring its commitment to protect children, especially from risks due to pesticide exposure. By conditioning waivers on the showing of proof that the work would not be deleterious or adverse to the children's health and well-being, Congress imposed tough barriers. Absent the requisite proof, Congress' intent would be violated if waivers are granted. Rather than turning the waiver provision into a nullity, plaintiffs' claim of statutory violation reflects exactly what Congress intended. Thus, plaintiffs' likelihood of prevailing on the merits is assured.85
2. Procedural violation
50
Issued pursuant to statutory authority,86 the regulations here at issue are standards governing conduct and rights. They are clearly rules subject to the notice and comment procedures required by the APA, 5 U.S.C. § 553.87 Yet only the initial regulation, which proposed reliance on EPA, OSHA and other existing pesticide standards, was subject to notice and comment.88 Because the comments revealed that existing pesticide standards did not cover children, the Department changed its regulation to provide that the applicant "will either have to submit a statement that no pesticides or other chemicals were used on the crops to be harvested or submit data which upon study by the Secretary or the Secretary's designees establishes safe reentry times for 10 and 11 year olds."89
51
Without advance notice or comment, the subsequent regulations issued by the Department first established and then modified the approved list of pesticides with minimum entry times. The district court found no procedural defect because "the public interest in the expeditious issuance of safety standards for the hand harvesting of crops with a short harvest season" falls within the "good cause" exception to the notice and comment requirement.90 The government here similarly defends the suspension of notice and comment to make the regulations effective during impending harvest seasons.91 The government argues that once in effect, the regulations (1) protect children and (2) assist waiver applicants with advance notice of acceptable pesticides.
52
These two purposes certainly support the promulgation of rules rather than merely a case-by-case administrative review of pesticides. But good cause to suspend notice and comment must be supported by more than the bare need to have regulations.92 Especially in the context of health risks, notice and comment procedures assure the dialogue necessary to the creation of reasonable rules.93 The government concedes that the challenged regulations are its first attempt to set protective standards for children employed under the agriculture waiver provision.94 This is exactly the kind of standard which especially needs the utmost care in its development and exposure to public and expert criticism.
53
The government also here advances the district court's reasoning that there was no procedural defect because the Secretary has agreed to accept additional data from interested parties even now that the regulations are in effect.95 This ongoing sensitivity to developing knowledge is to be encouraged; it is a normal requirement of competent administration.96 It does not, however, justify suspension of requirements otherwise mandated for the initial promulgation of regulations.
54
Finally, on a practical note, plaintiffs correctly observe that the time pressure posed by the impending harvest seasons was due in large part to the Secretary's own delays. The Department waited nearly seven months between the initial regulation promulgated through notice and comment and the first modification of it promulgated without the requisite procedures.97 During that time, the Department held meetings with state farm bureaus, growers, and congressional staff members.98 The Department apparently found it quite possible to consult with the interested parties it selected. In this light, we cannot sustain the suspension of notice and comment to the general public which includes parties, such as plaintiffs who are primarily concerned with the health of their children. The Department has failed to demonstrate that the requisite procedures were "impracticable, unnecessary, or contrary to the public interest."99
III. CONCLUSION
55
Because of the urgency of this expedited appeal, we issued a judgment immediately after oral argument.100 As explained more fully in this opinion, we reversed the judgment below because the district court misapplied the standard for granting a preliminary injunction. The district court was directed to enter a preliminary injunction in light of our evaluation of the merits. The irreparable harm to the children affected by the regulations and the fact that the regulations are marred by both procedural and substantive violations lead us to conclude that plaintiffs must prevail on the merits.
56
The matter here on appeal, of course, is the district court's denial of the motion for a preliminary injunction. Subsequent to the filing of this interlocutory appeal, the plaintiffs moved for summary judgment on the grounds that the district court had essentially disposed of the merits in its conclusions of law on the preliminary injunction motion. The district court denied summary judgment because the instant appeal divests the district court of jurisdiction.101 At oral argument before this court, both parties agreed that the merits of the case are ready for review. For this court now to restrict its attention to the preliminary injunction question would be to elevate form over substance. Because of the parties' agreement that the merits are ready for review, the district court's de facto decision on the merits, and the importance to the parties and the public of a final decision, our analysis has reached the merits.102 There is no doubt that the regulations violate both the procedural requirement of notice and comment, and the governing statute's requirement of "objective data . . . that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being" of the children affected by the waivers.103 The Department has committed itself to ongoing study to develop data specifically addressing the effect of pesticide exposure on pubescent children.104 Therefore, we have determined that in the interests of justice105 if not plain decency the preliminary injunction enjoining application of the challenged regulations106 must remain in effect long enough to permit the completion of appropriate notice and comment rulemaking by the Department. As a result, no waivers may be granted in reliance on the list of approved pesticides until the Department has had an opportunity to apply its developing knowledge, the entire interested public has had an opportunity to comment on new proposed regulations, and the Department has responded to those comments in publishing final rules.
57
Reversed and remanded.
APPENDIX
JUDGMENT
58
PER CURIAM.
59
This cause came on to be heard on the record on appeal from the United States District Court and was argued by counsel.
60
Section 13(c)(4)(A)(iii) of the Fair Labor Standards Act, 29 U.S.C. § 213(c) (4)(A)(iii) (1976), states that the Secretary may grant waivers to permit the employment of 10- and 11-year-old children only if he "finds, based on objective data . . ., that . . . the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of (the children)." The Clement Report of May 18, 1979, on which the Secretary relied in making his determination, however, was based on the assumption that his recommendations would provide only "reasonable protection" for the children. Further, we find that the Secretary lacked good cause to dispense with the notice-and-comment procedures required by the Administrative Procedure Act, 5 U.S.C. § 553. See Community Nutrition Institute v. Butz, 420 F. Supp. 751 (D.D.C.1976). Accordingly, judgment of the District Court denying a preliminary injunction must be reversed. In order to permit the Secretary to proceed expeditiously with the research which he is undertaking and the notice-and-comment rulemaking to establish appropriate standards for the forthcoming harvest, the judgment of this court and the mandate will issue immediately, with opinion(s) to follow.
61
On consideration of the foregoing, it is ORDERED and ADJUDGED by this Court that the judgment of the District Court appealed from in this cause is hereby reversed and that the District Court shall enter immediately a preliminary injunction as prayed for pending appropriate notice-and-comment rulemaking.
62
It is FURTHER ORDERED, that further proceedings in the District Court be stayed pending the above rulemaking.
1
See, e. g., AFL-CIO v. Marshall et al., 617 F.2d 636 (D.C. Cir. 1979); Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)
2
29 U.S.C.A. § 213(c)(4)(A)(iii) (1979), see infra p. 607
3
Subsequent to the filing of appeal, but prior to oral argument, plaintiffs moved for summary judgment, so the district court's decision on the merits would be subject to appeal. The district judge, however, refused to rule on their motion on the grounds that a trial court cannot continue consideration of a case once an interlocutory appeal has been taken. National Association of Farmworker Organizations v. Marshall, No. 79-1044 (D.D.C. Jan. 11, 1980) (Memorandum Order)
Although we respect the judge's reasoning, we agree with the parties that his ruling on preliminary relief in effect disposed of the merits. As both parties agreed during oral argument that the full case is ready for review by this court, and as the scope of the district court's preliminary ruling reaches all the merits, this court too reviews the merits of the issues presented. See infra p. 622.
4
16 is the minimum age for working in hazardous agriculture or working during school hours; 14 year olds may work in non-hazardous agriculture during non-school hours; 12 year olds may work in non-hazardous agriculture during non-school hours with written parental permission. Before the 1977 Amendments, younger children could only work with written parental consent on small farms not covered by the Fair Labor Standards Act. 29 U.S.C.A. § 213(c)(1) (1979)
5
Other conditions necessary for waiver include proof that individuals older than 11 are not available; that the industry has traditionally and substantially used employees under age 12 "without displacing substantial job opportunities for individuals over sixteen years of age"; 29 U.S.C. § 213(c) (4)(A)(v) (1976); and the crop to be harvested is short season and dependent on child labor
Once granted, waivers must require that employment only be during non-school hours; that the children commute daily between work and permanent residence; that the employment extend only during 8 weeks per calendar year; and that any other conditions set by the Secretary will be followed. 29 U.S.C. § 213(c)(4) (B) (1976).
6
These public responses led to further study by the Department. Plaintiffs cite a June 16, 1978 memorandum written by the Director of OSHA's Office of Carcinogen Identification and Classification warning against pesticide exposure of 10 and 11 year olds:
Epidemiologic information for pesticide effects on children of the peripubertal ages is nonexistent. . . .
(It is) impossible with reasonable certainty to determine that protection of adult workers exposed to pesticides is adequate, let alone children of peripubertal ages.
Memorandum to Grover Wrenn, Director, OSHA Health Standards Program, from Peter Infante, (June 16, 1978), reprinted in Joint Appendix (J.A.) Vol. A at A25-A28. The memorandum also noted that children of this age are "more vulnerable to environmental insult" than others, especially in light of their developing reproductive organs. Id.
7
The agency reported these comments and its resulting conclusions:
The Environmental Protection Agency, which is the Federal agency designated for determining safety standards for the use of pesticides and chemicals for agricultural workers, advised that the standards it has established for the reentry of agricultural workers after the application of pesticides were established for adult workers and not for the pubescent child. The agency has further advised that it had not and could not on the basis of its present knowledge establish any safe reentry times for 10 and 11 year olds. Several witnesses at the hearing also testified as to their personal experience as to the adverse effects of pesticides on children. Others argued that the regulations should accept the manufacturer's reentry times (based on EPA's standards) specified as being safe for 10 and 11 year olds. This suggestion was not adopted since it was established at the hearing that EPA safe reentry times were based on adult tolerance. Moreover, it was apparent from the testimony at the hearings that the currently established EPA and other federal standards have not been shown to be safe for 10 and 11 year olds. Accordingly till such standards are developed or until the Secretary obtains information establishing by objective data that specified reentry times are safe for 10 and 11 year olds, no waivers will be granted to an employer or group of employers who have used pesticides or other chemicals on the crops to be harvested. Therefore, the final applicant, in order to satisfy this condition, will either have to submit a statement that no pesticides or other chemicals were used on the crop to be harvested or submit data which upon study by the Secretary or the Secretary's designee establishes safe reentry times for 10 and 11 year olds.
43
Fed.Reg. 26564 (June 21, 1978). As the government points out in its brief, the agency also heard two congressmen testify that the proposed regulations would prove too restrictive and would thwart the congressional decision to make waivers available. Gov't Br. at 12 n.6
8
This court has held that EPA standards prescribing an agriculture worker's reentry into fields treated with pesticides precluded the setting of OSHA standards thereby establishing the EPA as the federal agency generally designated for determining safety standards for pesticide and agriculture chemicals. Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (D.C. Cir. 1975)
9
See note 4 supra (discussing 29 U.S.C. § 213(c)(1), (d))
10
The agency consistently adverted to the imminence of harvest seasons in finding notice and comment impracticable. E. g., 44 Fed.Reg. 24059 (April 24, 1979)
11
In setting minimum entry times for children, Clement relied on adult "preharvest intervals" rather than adult "reentry intervals." Noting that "preharvest intervals" usually are longer and more protective than "reentry intervals," Clement defined the two terms as follows:
2
Preharvest intervals (PHIs) are the minimum periods of time required after the crop is treated before it may be harvested. They are designed to ensure that crop residues do not exceed residue tolerances after the pesticide is applied under the prescribed conditions. Preharvest intervals are usually based on the results of residue dissipation studies under filed application conditions
3
Reentry intervals (REIs) are the minimum periods required after the crop is treated before field-workers are permitted to enter the field to harvest the crop or to perform other work. They are designed to protect the worker from injury resulting from exposure, usually via dermal absorption or inhalation to pesticide residues on the crop surfaces or in the soil. In principle they should be established by comparing the quantities of pesticide residue likely to be absorbed (derived from residue dissipation studies and dermal absorption measurements) with dose levels likely to be toxic (usually derived from acute or subacute toxicity studies). In practice, however, because of the complexity and uncertainty associated with such comparisons, reentry intervals are often based substantially upon accident histories
Clement Final Report at J.A. Vol. B. at 3-4. Clement called the interim standards it recommended for children "minimum entry times (METs)." Id. at 11.
The Department initially referred to "safe reentry times" and "preharvest intervals" in its regulations. In its April 24, 1979 announcement, the agency explained that these terms
do not express the standard here, i. e., the amount of elapsed time required from the last application of the pesticide or chemical to the entry to the 10- or 11-year-old hand harvester into the field. Therefore, this document deletes those terms wherever they appear and inserts the term, "minimum entry time."
44
Fed.Reg. 24059 (April 24, 1979)
12
E. g., Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A-33 at A50; Clement Associates, Inc., Safety Factors for Children Employed as Harvesters in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A55, A83; Clement Associates, Inc., Safety Factors for Children Employed as Hand Harvesters of Strawberries and Potatoes: Final Report (May 18, 1979), reprinted in J.A. Vol. B at 13 (hereinafter cited as Clement Final Report)
Clement also concluded:
much of the critical information required for evaluating potential hazards to children is lacking. Specifically, there is essentially no information about rates of exposure or absorption by children, nor is there a body of experimental data on the toxic effects of pesticides in preadolescent animals. Accordingly, although we have reviewed data on metabolism, residue dynamics, and toxicity for each pesticide, we have not attempted to use these data in a formal way to set standards. For the reasons given above, we conclude that basing standards on these factors systematically would not be possible without the generation of extensive new data.
Clement Final Report, J.A. Vol. B at 5-6.
13
The following language appears in both Clement Reports issued on August 7, 1978:
Establishment of Preharvest Intervals that would assuredly protect the health of 10- and 11-year-olds would require a thorough scientific review of existing data on residue dynamics, metabolism, and toxicity of each of the pesticides to preadolescents and adolescents.
J.A. Vol. A at A49, A81. The research group's final report included the following statement:
We wish to make clear that the suggested METs cannot assure safety to 10- and 11-year-old harvesters. Because of major uncertainties in the data, we have used scientific judgment in deriving the proposed METs. The METs have been established on the basis of currently available data and may be subject to change as more data become available. We therefore strongly urge that a program of additional research be instituted.
Clement Final Report, J.A. Vol. B at 13 (emphasis in original).
In each report, the research group also recommended medical surveillance of all children exposed to pesticides or chemicals because of waivers. J.A. Vol. A at A50, A83; J.A. Vol. B at 13.
14
J.A. Vol. A at A50, A83
15
43 Fed.Reg. 36623 (Aug. 18, 1978)
16
For example, in its initial report, Clement Associates proposed preharvest intervals of 1) two days for Benomyl, which it noted had "been found to damage testicular tissue in rats"; 2) three days for Captan, "found to be carcinogenic in mice"; 3) ten days for Endosulfan (or Thiodan) which Clement acknowledged "at low doses has been found to inhibit growth and cause mortality in young mice"; and 4) seven days for Carbaryl, "found to have dose-dependent neurological and behaviorial effects in humans." Clement Associates, Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (August 7, 1978) at J.A. Vol. A at A45-A51. Each of these preharvest intervals was set at least twice as long as the intervals set by available standards for adults
In its final report nearly a year later, Clement Associates found "convincing data" that Captan is carcinogenic and that Benomyl is "moderately or highly persistent and (has) serious toxic effects." Clement Report, J.A. Vol. B at 16. Therefore, Clement in its final report did not recommend minimum entry times for these and seven other substances with similar effects. At the same time, it increased the recommended delay period to 16 days for Endosulfan and 40 days for Carbaryl.
17
Letter from Edwin L. Johnson, Assistant Deputy Administrator for Pesticide Programs, EPA to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978), reprinted in J.A. Vol. A at A93
18
44 Fed.Reg. 22059 (April 3, 1979) (removing Dicofol, Captan, and Chlorthalonil)
19
Plaintiffs-appellants cite three National Cancer Institute Reports identifying the chemicals as carcinogens prior to the earlier April 18, 1978 rule. Plaintiffs' Br. at 17 n. 4 (citing NCI, "Bioassay of Captan for Possible Carcinogencity," Technical Report Series No. 15, 1977, transmitted by H. F. Kraybill of NCI, to Grover Wrenn of OSHA, July 27, 1977; NCI, "Bioassay of Dicofol for Possible Carcinogencity," Technical Report Series No. 90, 1978, transmitted by Ingeborg C. Blackwood of NCI to Eula Bingham of OSHA, April 25, 1978; NCI, "Bioassay of Chlorothalonil for Possible Carcinogenicity," Technical Report Series No. 41, 1978, transmitted by Ingeborg C. Blackwood of NCI to Eula Bingham of OSHA, June 7, 1978)
20
The Department also asked Clement Associates to research a 17th substance, "Benorex," but Clement Associates found no reference to it in the scientific literature it consulted. J.A. Vol. B at 2
21
44 Fed.Reg. 24058 (April 24, 1979); 44 Fed.Reg. 28663 (May 16, 1979). Also in these amendments, the Department created a new category for substances lacking sufficient data to set minimum entry times
The Washington and Oregon State Farm Bureaus filed suit to enjoin implementation of the regulation, this time attacking the removal of Captan and Benomyl from the approved list (Captan removed altogether; Benomyl lacking sufficient data to set minimum entry times). A preliminary injunction was granted but then vacated in that case. Washington State Farm Bureau v. Marshall, Civil Action No. C79-197T; appealed, No. 79-4342. Plaintiffs here participated in that suit as amici curiae.
22
The National Association of Farmworker Organizations is "a non-profit national coalition of farmworker-governed, community based organizations committed to the protection of the rights of farmworkers of the United States." Plaintiffs' Br. at 6. Northwest Rural Opportunities is "a non-profit membership organization founded to promote the rights of migrant and low-income seasonal farmworkers in the state of Washington." Id. at 7
23
Amended Complaint, June 1, 1979, reprinted in J.A. Vol. A at A107, A117. Plaintiffs moved in the alternative for a temporary restraining order or preliminary injunction. With the consent of the parties, the court treated the hearing as one solely on the request for a preliminary injunction to permit an immediate appeal. Transcript of May 21, 1979 Hearing (Tr.), J.A. Vol. A at A188
24
E. g., Tr. at 41, J.A. Vol. A at A169, A171 (testimony of Herbert Cohn)
25
The judge questioned the Department's counsel about the meaning of Clement Associates' disclaimer that its recommended standards could not assure safety to children. The Department's counsel responded:
We're dealing in a scientific area where, I think, everyone and certainly the scientists, first of all, will admit that there are no absolutes to be dealt with here and all we're suggesting is given the fact that Congress changed this law and seemed to indicate that there had to be some kind of standards applied, that we had to look at what data was available. . . . (Clement Associates) look(ed) at the data which was, in fact, available and then applying scientific judgment, came up with recommended entry times and since the Secretary is charged basically that, (sic) reasonably it is not arbitrary and capricious, again I submit that acting on the basis of that, fully recognizing that the hedges that must be contained for scientific purposes. His acting in just accepting that data as scientific data submitted to him is, in fact, adequate.
Tr. at 17, J.A. Vol. A at A145.
26
Tr. at 53-54, J.A. Vol. A at A186-187 (testimony of Mary Kornreich)
27
See National Association of Farmworker Organizations et al. v. Marshall, No. 79-1044 (D.D.C. May 4, 1978) (Findings of Fact and Conclusions of Law) (P 4, Conclusions of Law), J.A. Vol. A at A125-A126 (hereinafter cited as District Court Op.)
28
Id. at J.A. Vol. A at A126 (P 7, Conclusions of Law)
29
Id. at J.A. Vol. A at A127 (P 11, Conclusions of Law). It was on this basis of a definitive assessment of the merits that the district court found plaintiffs had not made the showing requisite to obtain preliminary relief. Id
30
The court concluded:
The Secretary's decision to issue waivers and set preharvest intervals in the face of some scientific uncertainty over the precise effects of pesticide exposure upon the health and well-being of 10 and 11 year old children was consistent with the congressional intent to provide for the employment of 10 and 11 year olds in the hand harvesting of short season crops. The Secretary, in issuing regulations, could not delay the issuance of waivers until he received assurances that certain pesticides were absolutely safe or presented zero risk because the state of scientific knowledge could not in the near future, if ever, provide such assurances. A requirement of absolute safety or zero would in effect nullify the congressionally authorized waiver provision.
Id. at J.A. Vol. A at A126-27 (P 8, Conclusions of Law).
31
Id. at J.A. Vol. A at A12 F. (P 9, Conclusions of Law)
32
Id. at J.A. Vol. A at A12 F. (P 10, Conclusions of Law)
33
District Court Op. at PP 9, 11, J.A. Vol. A at A127
34
See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958)
35
E. g., Doeskin Products v. United States Paper Co., 195 F.2d 356, 358 (7th Cir. 1952). This principle applies even if some harm has already been done where "(t)he granting of preliminary relief will tend to minimize any future harm until (the) suit is decided on the merits." Perry v. Perry, 190 F.2d 601, 603-4 (D.C. Cir. 1951)
36
E. g., Ohio Oil v. Conway, 279 U.S. 813, 815, 49 S. Ct. 256, 257, 73 L. Ed. 972 (1929) Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977); Dorfman v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969)
37
Plaintiff organizations aver that they represent farmworker families, including their children. The Department has not pointed to anything in the record to the contrary. Thus, we must accept this averment as true
38
See 29 C.F.R. § 575.5(d) (1979)
39
See Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972 (1929) (quoted in n. 52 infra ). Substantial risk of irreparable harm can be sufficient grounds for a preliminary injunction. See Guiness-Harp Corp. v. Joseph Schlitz Brewing Co., 613 F.2d 468 (2d Cir. 1980); Jacksonville Post Authority v. Adams, 556 F.2d 52, 58 (D.C. Cir. 1977). In the context of safety regulations, risk is itself the harm prohibited by law. Exposure to that harm thus is irreparable injury
40
Letter from Edwin L. Johnson, Assistant Deputy Assistant for Pesticide Programs, EPA, to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978), Plaintiffs' Exhibit 9 in support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A92 (hereinafter cited as EPA Letter)
41
Id. at J.A. Vol. A at A93
42
Some of the factors listed by OSHA included the "greater uptake of (pesticides) in the developing tissue and organ systems of younger aged children," "increased susceptibility to asthma," "increased susceptibility to agents that interfere with calcium metabolism," "increased susceptibility to agents that interfere with protein utilization," and "increased sensitivity to hormonal imbalances." Memorandum from Peter F. Infante, Director, Office of Carcinogen Identification and Classification, OSHA, to Grover Wrenn, Director, Health Standards Program, OSHA (June 16, 1978), Plaintiffs' Exhibit 3 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A26 (hereinafter cited as OSHA Memo)
Clement Associates similarly identified factors likely to make children "more susceptible than adults to the effects of toxic substances." Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), J.A. Vol. A at A42; Clement Associates, Safety Factors for Children Employed as Harvesters of Potatoes in Maine (Aug. 7, 1978), J.A. Vol. A at A64.
43
EPA Letter at J.A. Vol. A at A93 ("In our opinion, we don't believe the data available allows us to make a decision on the safety of children either in preharvest or reentry situations."); OSHA Memo at A28 (it is "impossible with reasonable certainty to determine that protection of adult workers exposed to pesticides is adequate, let alone children of peripubital ages"); Clement Final Report, J.A. Vol. B at 13 ("We wish to make clear that the suggested METs (minimum entry times) cannot assure safety to 10- and 11-year-old harvesters. Because of major uncertainties in the data, we have used scientific judgment in deriving the proposed METs.")
44
The government claims that the regulations limit the scope of harm to children because waivers can be granted only where 1) the children live within commuting distance to the place of employment and 2) the parents provide written consent. Gov't Br. at 34. Apparently, the first prong of this argument is that some group of children would never be affected by the waivers probably migrant youth. The persuasiveness of this argument escapes us. The second prong relies on the view that parents will protect children from the risk. That assumption flies in the face of the economic realities likely to induce child labor in the first instance
Moreover, both claims are beside the point. The issue is not how many children will be irreparably harmed but whether any children represented by the plaintiffs would be. On this record, the plaintiffs have established that the regulations would cause exposure of at least some children to known health risks.
45
29 U.S.C.A. § 213(c)(4)(A) (1979). This is the result even leaving in place the portion of the regulations that directs applicants to submit either A) "a statement that no pesticides or other chemicals were used on the crop to be harvested" or B) "data which upon study by the Secretary or the Secretary's designee establishes a basis for minimum entry time which would protect 10- and 11-year-old hand harvesters from adverse effects of the pesticide or chemical used." 29 C.F.R. § 575.5(d)(1)(i)(A), (B) (1979). These portions of the regulations survive our review. See n. 106 infra
46
29 C.F.R. § 575.5(d)(1)(i)(C) (1979). Under any circumstances, the other conditions for waivers would also have to be satisfied with objective data provided by the applicants. E. g., 29 C.F.R. § 575.3(b)(2)(ii) (proof required that "(w)ithout 10 and 11 year olds the industry would suffer severe economic disruption"); 29 C.F.R. § 575.3(b)(2)(v) (1979) (proof required that "(i) ndividuals 12 years and over are not available for employment")
47
29 U.S.C.A. § 213(c)(4)(A)(i) (1979); 29 C.F.R. § 575.3(b)(2)(ii) (1979)
48
Ever since 1966, health and safety requirements have restricted the availability of children under 16 years of age as agricultural workers. See 29 U.S.C.A. § 213(c)(2) (1979) (codifying the Fair Labor Standards Amendments of 1977, P.L. 89-601, § 203(d)):
The provisions of (the child labor prohibition) shall apply to an employee below the age of sixteen employed in agriculture in an occupation that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of sixteen, except where such employee is employed by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person.
Since 1974, children under 12 could be employed in agriculture only if 1) employed by their parents, or persons standing in the place of their parents or 2) employed with the consent of their parents, or persons standing in the place of their parents, on small farms exempt from the Fair Labor Standards Act, 29 U.S.C. § 213(c)(1)(A) (1976) (codifying Fair Labor Standards Act Amendments of 1974, P.L. 93-259, § 25).
The current provision, which requires objective data that pesticide exposure will not adversely affect 10- and 11-year-old child hand harvesters, was enacted in 1977. 29 U.S.C.A. § 213(c)(4) (1979) (codifying Fair Labor Standards Amendments of 1977, P.L. 95-151, § 8).
49
Few waivers have actually been granted since 1977. See Memorandum from Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor, to Ray Marshall, Secretary of Labor (June 14, 1978), Plaintiffs' Exhibit 13 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A96 (several hundred initial waiver applications denied, a few asked to provide more information). Due to a temporary restraining order issued by a district court in the State of Washington, some 3900 children aged 11 and under were employed during the June 1979 strawberry harvest. Plaintiffs' Br. at 13 n. 2 (citing Washington State Farm Bureau v. Marshall, No. C78-135T (W.D.Wash.1978), and Memorandum from Charles Pugh, Director, Office of Program Development and Accountability, Department of Labor, to Donald Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Oct. 13, 1978), Plaintiffs' Exhibit 4 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A31). Employers' reliance on this employment pool would surely be mistaken as it includes children beneath the statutory minimum age even under the waiver provision
50
Virginian Ry. Co. v. System Federation, 300 U.S. 515, 552, 57 S. Ct. 592, 601, 81 L. Ed. 789 (1937), quoted with approval, Yakus v. United States, 321 U.S. 414, 441, 64 S. Ct. 660, 675, 88 L. Ed. 2d 834 (1944)
51
This appears to be the balance struck by Congress. See infra p. 620
52
This court held in Washington Metropolitan Area Transit Comm'n v. Holiday Tours :
An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success.
559 F.2d 841, 844 (D.C. Cir. 1977). Similarly, the Supreme Court concluded that:
Where the questions presented by an application for an interlocutory injunction are grace, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted.
Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972 (1929).
53
Delaware & Hudson Ry. Co. v. United Transportation Union, 450 F.2d 603, 620 (D.C. Cir. 1971)
54
See id. at 619-620
55
District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law PP 9, 10 (Finding "good cause" to suspend notice and comment), P 11 (Finding "plaintiffs have not shown the Secretary's actions to be arbitrary, capricious, or otherwise not in accordance with the law")
56
See 29 U.S.C.A. § 213(c)(4)(A) (1979)
57
Nat'l Academy of Sciences, Science and Technology: A Five-Year Outlook 462 (1979)
58
Id. at 462-63; Nat'l Academy of Sciences, Decision Making in Regulating Chemicals in the Environment (1975). See W. Lowrance, Of Acceptable Risk 99 (1976)
59
See, e. g., Monsanto Co. v. EPA, 613 F.2d 947 (D.C. Cir. 1979); Indus. Union Dep't v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974)
60
District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8. The Clement expert testified before the district court that she knew "of no way to prove that any human being can be exposed to (pesticides) with absolute safety." Tr. at 51, J.A. Vol. A at A184
61
29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979)
62
Each report recounts the known hazards of specific pesticides and chemicals, the safety standards for adults (where existing), the current information on health effects from pesticides, the need to provide greater protection for children, and the disclaimer that Clement's interim recommendations "cannot assure safety to 10- and 11-year-old harvesters." Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A at A50; Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Potatoes in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A83; Clement Final Report, reprinted in J.A. Vol. B at 13
Clement indicated that the Department merely asked it "to propose reentry standards that will provide reasonable assurance of safety for 10- and 11-year-old fieldworkers engaged in the hand harvesting of potatoes and strawberries." Clement Final Report, J.A. Vol. B at 5 (emphasis added). This assignment itself departed from the statutory requirement of "objective data . . . that . . . (t)he level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being" of the 10- and 11-year-old fieldworkers. 29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979) (emphasis added).
63
E. g., Clement Final Report at 13
64
It bears noting, however, that the Secretary's action, taken without any evidence that the regulations would protect children exposed to pesticides, was in fact criticized by the agencies having expertise in the area. See EPA letter, J.A. Vol. A at A92; OSHA Memo, J.A. Vol. A at A88. Under such circumstances, the Secretary had a "heightened obligation" to demonstrate the propriety of his action. See State of Alaska v. Andrus, 580 F.2d 465, 475 n.44 (D.C. Cir. 1978), vacated in part sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922, 99 S. Ct. 303, 58 L. Ed. 2d 315 (1978)
In addition, EPA staff apparently found fault with the Clement reports' methodology. The Department of Labor received a letter including EPA staff criticisms that 1) both the EPA adult standards and Clement standards for children confused the risk of dermal and inhalation with the risk of chronic ingestion; and 2) the Clement studies did not address the pesticides generally applied just before potato harvests. Letter from Edwin L. Johnson, Assistant Deputy Administrator for Pesticide Programs, EPA, to Donald E. Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978). Plaintiffs' Exhibit 9 in Support of Plaintiffs' Motion for a Preliminary Injunction, reprinted in J.A. Vol. A at A92.
65
Clement Final Report, J.A. Vol. B at 5 (emphasis added). See also p. 607 n.6 supra (OSHA staff notes nonexistence of data on children and pesticides exposure). Thus, the district court neglected the apparent conflict between a statute that requires objective data of non-adverse health effects and regulations based on studies themselves disclaiming current scientific ability to assure safety
66
District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8
67
In the Final Report, Clement explained its methods were selected because of "the severely limited time available for this study." Clement Final Report, J.A. Vol. B at 6. See Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), reprinted in J.A. Vol. A at A34, Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of potatoes in Maine (Aug. 7, 1978), reprinted in J.A. Vol. A at A57
The time constraints were severe. The Department first contracted with Clement on June 1978. Clement submitted final reports less than two months later, on August 7, 1978, in time for the September potato harvest. The Department adopted the Clement recommendations on August 18, 1978. The Department next contracted with Clement on March 19, 1979, just before the spring strawberry harvest season. Clement issued one report on March 30, 1979, while recommendations were adopted by the agency on April 10, 1979. Then on April 20, 1979, Clement issued another report, followed by two more Department modifications of its regulations on April 24, and May 16, 1979. Clement issued its final, summary report two days later, on May 18, 1979.
68
Tr. at 49, J.A. Vol. A at A182 (testimony of Mary Kornreich)
69
Letter to Xavier M. Vela, Administrator, Wage and Hour Division, Department of Labor, from Steven D. Tellinek, Assistant Administrator for Toxic Substances, EPA (May 4, 1978), Plaintiffs' Exhibit 1 in support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A13
70
Tr. at 54, J.A. Vol. A at A187 (testimony of Mary Kornreich)
71
Letter to Eula Bingham, Assistant Secretary for Occupational Safety and Health, Department of Labor, from Steven D. Tellinek, Assistant Administrator for Toxic Substances, EPA (Aug. 4, 1978), Plaintiffs' Exhibit 8 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A88-A89
72
District Court Op. at 7, J.A. Vol. A at A126, Conclusions of Law P 8. We do not here conclude what amount of evidence could ever support a list of approved pesticides
73
Compare Occupational Health and Safety Act of 1970, 29 U.S.C. § 655(b)(5) (1976) (OSHA to promulgate health and safety standards on basis of "best available evidence") with 29 U.S.C.A. § 213(c)(A) (1979) (agricultural waivers from child labor prohibitions not to be granted unless Secretary "finds, based on objective data submitted by the applicant" that pesticide exposure would not adversely affect children)
74
29 U.S.C.A. § 213(c)(4)(A) (1979)
75
The possibility of only one counter-example, arising with future events or detectable with future methods, jeopardizes absolute assurances. The uncertainty with environmental risks at this time is especially large because experts do not yet fully understand the mechanisms by which risks are generated, transmitted, and responded to over time. See, e. g., Page, A Generic View of Toxic Chemicals and Similar Risks, 7 Ecol.L.Q. 207, 208-16 (1978). See generally C. Hempel, Aspects of Scientific Explanation 39 (1965) (hypothesis containing term "all" is not verifiable)
76
This position was codified at 29 U.S.C. § 213(c)(4)(A)(ii)
77
See S.Conf.Rep.No.95-497, 95th Cong., 1st Sess. 15, reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 3254, 3259
78
123 Cong.Rec. S16627 (daily ed. Oct. 7, 1977) (remarks of Sen. Hathaway)
The government nevertheless argues that Congress intended to invest discretion in the Secretary because the Senator proposing the added language explained it directed the Secretary to "give appropriate consideration to the problem of chemicals." Gov't Br. at 27 n.16 (quoting 123 Cong.Rec. S16635 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)). The plaintiffs correct this misconception in noting that the same Senator supported placing stringent conditions on the waivers "to insure that young children will not be exposed to the hazardous effects of pesticides and herbicides." Plaintiffs' Br. at 26 (quoting 123 Cong.Rec. S16626 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)).
79
District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 8
80
Id. at 7, J.A. Vol. A at A126, Conclusions of Law P 8
81
This situation was recognized and approved by the only portion of the regulations that was subject to notice and comment. 43 Fed.Reg. 26567 (June 21, 1978) (discussing changes to § 575.5(d) in light of comments received)
82
29 C.F.R. § 575.5(d) (1979)
83
See District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 8. During argument the judge indicated that requiring absolute safety in this area would be like requiring absolute safety in a nuclear plant, in which case, "you might have to shut down operations." Tr. at 49, J.A. Vol. A at A192. The judge also indicated concern that the Secretary had "neither the appropriations nor the resources to conduct through his own personnel the studies required." Id. at 57, J.A. Vol. A at A190
84
29 U.S.C.A. § 213(c)(4)(A) (1979) (emphasis added)
85
It is also clear that the statute provides no grounds to balance safety with cost, technological feasibility, or the employers' labor needs. Congress, not the courts, must act if such balancing considerations are to be included in the statutory scheme
86
See 29 C.F.R. § 575 (1979) (citing 29 U.S.C. §§ 212, 213, 218; Secretary of Labor's Order No. 1675, 40 Fed.Reg. 55913; Employment Standards Order No. 2-75, 40 Fed.Reg. 56743)
87
See, e. g., Pickus v. U. S. Board of Parole, 543 F.2d 240 (D.C. Cir. 1976); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974)
88
Compare 43 Fed.Reg. 26562 (June 21, 1978) with 44 Fed.Reg. 22061 (April 13, 1979); 44 Fed.Reg. 24059 (April 24, 1979), and 44 Fed.Reg. 29040 (May 18, 1979)
89
43 Fed.Reg. 26564 (June 21, 1978). The regulatory language initially adopted for this purpose is still part of the existing regulation. See Fed.Reg. 26567 (June 21, 1978) (§ 575.5(d)); 29 C.F.R. § 575(d)(1)(i)(A), (B) (1979)
90
District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 9
91
Gov't Br. at 29
92
See 5 U.S.C. § 553(b)(B) (1976). Although acknowledging that the emergency nature of legislation may provide good cause for promulgating immediately effective regulations, the Temporary Emergency Court of Appeals declined to find good cause for price control regulations issued without notice or comment. Tasty Baking Co. v. Cost of Living Council, 529 F.2d 1005, 1015 (Em.App.1975). Certainly the need for immediate regulations is no greater here, where children are assuredly protected by the statute until waivers are granted, and time for notice and comment can insure sufficiently protective regulations for issuing waivers
93
(W)hen a health-related standard such as this is involved, the good cause exemption may not be used to circumvent the legal requirements designed to protect the public by ensuring that interested persons will have the opportunity to bring to the agency's attention all relevant aspects of the proposed action and thereby enhance the quality of agency decisions
Community Nutrition Institute v. Butz, 420 F. Supp. 751 (D.D.C.1976). Where the knowledge base for rules is uncertain, public confidence is possible only if the procedures followed promote full and open debate.
94
Gov't Br. at 31
95
Id. at 29. See District Court Op. at 8, J.A. Vol. A at A127, Conclusions of Law P 10
96
See Public Service Comm'n v. FPC, 511 F.2d 338 (D.C. Cir. 1975)
97
See supra pp. 608-610
98
Affidavit of Miriam B. Huntley, Executive Assistant to the Assistant Secretary of Labor for the Employment Standards Administration, submitted in Washington State Farm Bureau v. Marshall, Civ. No. C79-197T (W.D.Wash.) (May 25, 1979), Plaintiffs' Exhibit 14 in Support of Plaintiffs' Motion for Preliminary Injunction, reprinted in J.A. Vol. A at A98
99
See 5 U.S.C. § 553(b)(B) (1976) (criterion of good cause exception to notice and comment requirement)
100
National Association of Farmworker Organizations v. Marshall, 628 F.2d 604 (D.C. Cir. 1980)
101
Memorandum Order, National Association of Farmworker Organizations v. Marshall, Civ. No. 79-1044 (D.D.C. Jan. 11, 1980)
102
See Appendix. For similar treatment by this court, see Kosty v. Lewis, 319 F.2d 744, 749 (D.C. Cir. 1963), cert. denied, 375 U.S. 964, 84 S. Ct. 482, 11 L. Ed. 2d 414 (1964). See also Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 600 (7th Cir. 1972) (directing district court to enter summary judgment for plaintiff in review of denial of preliminary injunction). Such treatment, although unusual, is especially called for where "(i)t would be a waste of judicial resources to remand . . . for trial." Id. See also Susquehanna Corp. v. American Sulphur Co., 423 F.2d 1075 (5th Cir. 1970) (dismissing suit although trial court granted preliminary injunction)
103
29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979)
104
E. g., 44 Fed.Reg. 24058 (April 24, 1979):
(A)s previously stated by the Secretary, the Department of Labor has undertaken a continuing study of the use and effect of pesticides and other chemicals used in short season crops in order to establish minimum entry times for specified pesticides and chemicals for use on specified crops.
At oral argument, the Department's counsel indicated that the EPA was entering an agreement to assist in developing pesticide exposure standards for 10 and 11 year olds.
105
See 28 U.S.C. § 2106 (1976)
106
The regulations to be enjoined list the pesticides approved for use with specified minimum entry times. 29 C.F.R. § 575.5(d)(1)(i)(C); (d)(2) (1979). Our judgment leaves intact the portion of the regulation directing applicants to submit either a statement that they use no pesticides or data permitting the Secretary or his designee to determine the safety factors from exposure to pesticides used. See 29 C.F.R. § 575.5(d)(1)(i)(A), (B) (1979). This portion was subject to notice and comment, and is clearly authorized by the statutory waiver provision. See supra p. 607
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890 N.E.2d 803 (2008)
JONES
v.
STATE.
No. 45A03-0711-PC-511.
Court of Appeals of Indiana.
July 16, 2008.
RILEY, J.
Disposition of case by unpublished memorandum decision. Affirmed.
BAKER, C.J. Concurs.
ROBB, J. Concurs.
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10-30-2013
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72 So.3d 753 (2011)
SHORES
v.
STATE.
No. 1D11-4642.
District Court of Appeal of Florida, First District.
October 5, 2011.
DECISION WITHOUT PUBLISHED OPINION
Habeas Corpus denied.
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685 F.2d 443
Jones, In re
81-4254
UNITED STATES COURT OF APPEALS Ninth Circuit
7/6/82
1
N.D.Cal.
AFFIRMED
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685 F.2d 446
Soo Nam Kimv.Dahlin
81-4459
UNITED STATES COURT OF APPEALS Ninth Circuit
5/28/82
D.Hawaii
AFFIRMED
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08-23-2011
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124 F.3d 223
Herbert Johnsonv.City of Fort Lauderdale
NO. 96-4052
United States Court of Appeals,Eleventh Circuit.
Aug 18, 1997
S.D.Fla., 114 F.3d 1089
1
DENIALS OF REHEARING EN BANC.
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04-17-2012
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116 F.3d 1484
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Myron KOERNER, Appellant,Marvin T. RUNYON, Postmaster General of the United StatesPostal Service, Appellee.
No. 97-1106.
United States Court of Appeals, Eighth Circuit.
Submitted: June 12, 1997Filed: June 24, 1997
Appeal from the United States District Court for the Western District of Missouri.
Before BOWMAN, FLOYD R. GIBSON, and MORRIS, SHEPPARD, ARNOLD, Circuit Judges.
PER CURIAM.
1
Myron Koerner, the plaintiff below, appeals the order of the District Court1 granting the motion of the defendant, the Postmaster General, for summary judgment in this action brought under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b (1994). Koerner challenges the court's decision in a variety of ways. Having reviewed the case, we conclude that the District Court did not err. Koerner has offered no
2
evidence to show that he is "otherwise qualified" for either of the existing positions in question or that reasonable accommodation is possible. We reject as legally meritless his argument that the Postal Service had a duty to create for him a position comparable to the high-level management position he once held. Similarly, he has shown no basis upon which a court could find that he was a victim of unlawful discrimination. Accordingly, the order of the District Court is
3
AFFIRMED. See 8th Cir. Rule 47B.
1
The Honorable D. BROOK BARTLETT, Chief Judge, United States District Court for the Western District of Missouri
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234 P.3d 983 (2010)
348 Or. 461
STATE
v.
DILLARD.
(S058411).
Supreme Court of Oregon.
June 24, 2010.
Petition for Review Denied.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6478
CHARLES CECIL THOMAS,
Plaintiff - Appellant,
versus
MICHAEL W. BUTLER; GERALD W. JOHNSON; OFFICE
OF THE SHERIFF,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-04-
2994-1-AMD)
Submitted: August 19, 2005 Decided: September 8, 2005
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles Cecil Thomas, Appellant Pro Se. John Francis Breads, Jr.,
LOCAL GOVERNMENT INSURANCE TRUST, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Cecil Thomas appeals the district court’s order
summarily dismissing his complaint in which he alleges that law
enforcement officers of the “Leonardtown Police Department” and the
“Office of the Sheriff” of St. Mary’s County, Maryland,
impermissibly seized his vehicle. We affirm.
In 2004, Thomas filed a complaint in state court against
Detective Michael W. Butler, Detective Gerald W. Johnson, the
“Office of the Sheriff,” and “Leonardtown, Maryland,” in which he
described a tort claim arising from the alleged illegal seizure of
his vehicle by “the Leonardtown Police” in “February of 2003.”
When Thomas later amended his complaint to state a claim under the
Fourth Amendment, based on the impermissible search and seizure of
his Ford Explorer, the Defendants removed the case to federal
district court. Ultimately, the district court granted the
Defendants’ motion for summary judgment and dismissed Thomas’
complaint in its entirety.
Citing Younger v. Harris, 401 U.S. 37, 45-46 (1971),
Thomas appeals, asserting that (1) the district court erred in
exercising jurisdiction over the subject matter; and therefore, (2)
the district court erred when it refused to remand his case to the
state court. Pursuant to Younger, 401 U.S. at 45-46, a federal
court may not award declaratory or injunctive relief that would
affect pending state criminal proceedings absent extraordinary
- 2 -
circumstances involving a great and immediate threat to federally
protected rights, such as bad faith prosecution, a patently
unconstitutional statute, or a biased state tribunal. Under
Younger, abstention is therefore appropriate if: (1) there are
ongoing state judicial proceedings; (2) the proceedings involve
important state interests; and (3) the state proceedings offer an
opportunity to present and resolve federal and constitutional
claims. Employers Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134
(4th Cir. 1995) (citing Middlesex County Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982)); Martin Marietta Corp.
v. Md. Comm’n on Human Relations, 38 F.3d 1392, 1396 (4th Cir.
1994). This court reviews a district court’s decision to abstain
for abuse of discretion. Shannon, 65 F.3d at 1134. Because Thomas
does not expressly seek to enjoin or dispute the settlement of his
forfeiture action, we find Younger inapplicable to the instant
appeal.
Thus, removal was proper under 28 U.S.C. § 1441(b)
(1994), because the district court has jurisdiction over civil
actions arising under the laws of the United States without regard
to the citizenship or residence of the parties. Jurisdiction over
Thomas’ state law claims was proper under § 1441(c). Based on our
careful review of the record, we find that the district court did
not abuse its discretion in dismissing Thomas’ entire complaint.
Moreover, if Thomas wishes to challenge the settlement of the
- 3 -
forfeiture action as unfair in any way, he is free to pursue such
relief in the appropriate state court.
Accordingly, we affirm the district court’s order
summarily dismissing Thomas’ complaint and denying his request for
remand to state court. 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
- 4 -
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2008
No. 07-14694 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80727-CV-ASG
ZURICH AMERICAN INSURANCE COMPANY,
a Foreign corporation,
Plaintiff-Counter-Defendant-Appellee,
versus
FRANKEL ENTERPRISES,
a Foreign corporation,
Defendant-Appellant,
NICHOLAS C. PEDANO, an individual,
MARY B. PEDANO, an individual,
Defendants-Counter-Claimants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 18, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Frankel Enterprises (“Frankel”) and Nicholas and Mary Pedano (“Pedanos”)
appeal from the district court’s grant of summary judgment to Zurich American
Insurance Company (“Zurich”). Because we find that the district court correctly held
that there was no genuine issue of material fact, such that summary judgment was
appropriate, we affirm the judgment of the district court.
I. FACTS
The Pedanos purchased a house from Frankel Enterprises in 1992.1 The house
suffered from roof leaks, and although Frankel attempted to repair the defects, the
leaks continued. After the homeowner’s association pressure-washed the Pedanos’
roof in 2000, water infiltrated the house, allegedly causing property damage and
mold. The Pedanos filed suit against Frankel, alleging that his negligent construction
and repairs led to the water leakage.
Frankel was listed as an additional insured on a commercial general liability
policy issued by Zurich with a $1 million each occurrence policy limit. Frankel
1
Because this appeal is from a grant of summary judgment, we view the evidence in the
light most favorable to the nonmoving party. See Gitlitz v. Compagnie Nationale Air France,
129 F.3d 554, 556 (11th Cir. 1997). Accordingly, the facts as recited here are viewed in the light
most favorable to appellants.
2
notified Zurich of the Pedanos’ lawsuit, and Zurich responded with a letter
committing to participate in Frankel’s defense but reserving all rights under the
policy. Zurich hired a lawyer, Michael Kraft (“Kraft”), to defend Frankel. In later
correspondence, Zurich stated that it believed some of the Pedanos’ claims fell
outside of the policy coverage. However, Zurich continued to provide Frankel with
Kraft as defense counsel.
In April 2004, the parties in the Pedanos’ lawsuit participated in court-ordered
mediation. Present at the mediation were Frankel’s representative, counsel for
Frankel, Kraft, the Pedanos and the Pedanos’ lawyer. A representative for Zurich
attended the mediation by phone, but spoke only with Kraft. As a result of mediation,
Frankel and the Pedanos reached a settlement of $1.8 million. Under the agreement,
Frankel would assign his insurance claim with Zurich to the Pedanos. Zurich did not
expressly consent to this settlement, although Kraft did not state to anyone in the
mediation that Zurich objected to the settlement.
After the mediation, Zurich informed Frankel that it did not consider itself
bound to the settlement because Frankel had entered the settlement without Zurich’s
express consent.2 In August 2004, Zurich filed a declaratory judgment action,
2
The policy contained several clauses regarding the insured’s obligations in the event of a
lawsuit and settlement negotiations:
3
seeking a judgment that Zurich was not bound by the settlement agreement because
Frankel had failed to obtain Zurich’s authorization to enter into the settlement. After
a period of discovery, the district court granted summary judgment to Zurich. Frankel
and the Pedanos now appeal.
II. DISCUSSION
We review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to the non-moving party and applying the same legal standards
as the district court. Gitlitz, 129 F.3d at 556. Summary judgment is appropriate when
the pleadings and other evidence demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law.
2. Duties in The Event of Occurrence, Claim or Suit. . . . .
c. You and any other involved insured must: . . .
3. cooperate with us in the investigation or settlement of the claim or
defense against the “suit”; and
d. No insured will, except at the insured’s own cost, voluntarily make a
payment, assume an obligation, or incur any expense, other than for first
aid, without our consent.
3. Legal Actions Against Us
No person or organization has a right under this Coverage Part:
a. To join us as a party or otherwise bring us into a “suit” asking for damages
from an insured; or
b. To sue us on this Coverage Part unless all of its terms have been fully
complied with.
A person or organization may sue us to recover on an agreed settlement or on a final
judgment against an insured obtained after an actual trial; but we will not be liable for
damages that are not payable under the terms of this Coverage Part or that are in excess of
the applicable limit of insurance. An agreed settlement means a settlement and release of
liability signed by us, the insured and the claimant or the claimant’s legal representative.
4
Fed. R. Civ. P. 56(c).
In this case, the district court found that there was no genuine issue of material
fact regarding whether Zurich consented to the settlement, entitling Zurich to
judgment as a matter of Florida law. The district court’s holding was based in large
part on one of Frankel’s responses to Zurich’s requests for admission. Asked to admit
that “Frankel did not obtain Zurich’s authorization to enter into the Memorandum of
Settlement reached during the April 22, 2004 mediation,” Frankel replied “admitted.”
As a result, the district court held, appellants could not assert that there was a genuine
issue of material fact regarding Zurich’s consent to the settlement.
On appeal, appellants challenge the district court’s determination that there is
not a genuine issue of material fact, and also assert that Zurich should be estopped
from arguing that Frankel was not authorized to enter into the settlement. We
consider each of these arguments in turn below.
A. Genuine Issue of Material Fact Regarding Zurich’s Authorization
Appellants argue that there is a genuine issue of material fact regarding
whether Zurich authorized the settlement because the request for admission was
ambiguous and Kraft acted as Zurich’s agent in the mediation. Federal Rule of Civil
Procedure 36 governs requests for admissions. Under the rule, “[a] matter admitted
. . . is conclusively established unless the court, on motion, permits the admission to
5
be withdrawn or amended.” Fed. R. Civ. P. 36(b). If the answering party finds a
request for admission wanting, the party may object to the request, stating the grounds
for objection. Fed. R. Civ. P. 36(a)(5). Thus, Rule 36 itself contains two procedures
for responding to problematic requests for admission: raising an objection or moving
the court to withdraw or amend the admission.
In this case, Frankel neither objected to the request for admission regarding
Zurich’s authorization in his response nor filed a motion with the court seeking to
withdraw or amend his response. Therefore, under Rule 36, Frankel’s admission that
he did not obtain Zurich’s authorization before entering into the settlement agreement
is conclusively established. Even though appellants argue that Kraft’s conduct in the
mediation could allow a jury to conclude that Zurich was consenting to the
settlement, we cannot ignore Frankel’s admission.3 See Hughes v. Vanderbilt Univ.,
215 F.3d 543, 549 (6th Cir. 2000) (holding that plaintiff’s statement in her initial
pleading that information about the alleged medical experiments was widely
publicized in 1994 “constitute[d] an admission that a reasonable person should have
been aware of the claims at issue by that date” despite plaintiff’s subsequent,
3
We note that appellants argue for the first time on appeal that Zurich’s request for
admission was ambiguous. In general, this Court does not entertain arguments raised for the first
time on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). We see no reason
to deviate from that general rule in this case. Therefore, we do not reach the merits of appellants’
ambiguity argument here. Moreover, we note that appellants have failed to identify in what
manner the admission is ambiguous.
6
conflicting affidavit). Similarly, we cannot accept the argument that Kraft was acting
as Zurich’s agent in the settlement negotiations. Under Florida law, any defense
counsel hired to represent the insured is an independent contractor, and the insurer
is not vicariously liable for counsel’s acts and omissions. See Aetna Cas. & Sur. Co.
v. Protective Nat’l Ins. Co. of Omaha, 631 So. 2d 305, 308 (Fla. Dist. Ct. App. 1994).
Because Frankel admitted that he did not obtain Zurich’s authorization before
agreeing to the settlement, there is no genuine issue of material fact and Zurich is
entitled to judgment as a matter of law.
B. Estoppel
Appellants also argue that Zurich should be estopped from arguing that the
settlement was unauthorized. Under Florida law, equitable estoppel is to be applied
with great caution, and each element must be proven with clear and convincing
evidence. Watson Clinic, LLP v. Verzosa, 816 So. 2d 832, 834 (Fla. Dist. Ct. App.
2002). In order to succeed with a defense of equitable estoppel, the party claiming
estoppel must prove that: “(1) the party against whom estoppel is sought must have
made a representation about a material fact that is contrary to a position it later
asserts; (2) the party claiming estoppel must have relied on that representation; and
(3) the party seeking estoppel must have changed his position to his detriment based
on the representation and his reliance on it.” Id. In this case, appellants cannot prove
7
the first element. Zurich made no representation, through Kraft or otherwise, that it
authorized Frankel to enter into the settlement. As a result, Zurich is not estopped
from arguing that Frankel was not authorized to enter into the settlement.
Accordingly, the judgment of the district court is
AFFIRMED.4
4
Appellants’ request for oral argument is DENIED.
8
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04-26-2010
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-KA-00109-SCT
WILLIAM LYNN PRESLEY
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/13/1998
TRIAL JUDGE: HON. WALTER M. O'BARR
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: THOMAS L. MUSSELMAN
ATTORNEYS FOR APPELLEE: OFFICE OF ATTORNEY GENERAL
BY: LEE MARTIN
THOMAS BUCHANAN HOOD
KEITH MILLER
DISTRICT ATTORNEY: CRIMINAL-FELONY
NATURE OF THE CASE:
DISPOSITION: AFFIRMED - 06/14/2001
MOTION FOR REHEARING FILED: 7/13/2001; denied 8/23/2001
MANDATE ISSUED: 8/30/2001
BEFORE BANKS, P.J., WALLER AND COBB, JJ.
WALLER, JUSTICE, FOR THE COURT:
¶1. William Lynn Presley pled guilty to eight (8) counts of embezzlement and was sentenced to twenty (20)
years on each of the eight (8) counts, with ten (10) years suspended on each, to be served concurrently.
The conviction and sentence arise out of a misuse of public funds while Presley served as Chancery Clerk
of Jackson County, Mississippi. Presley appeals an order of the circuit court denying his motion to enforce
his plea agreement and raises two issues: (1) the procedural treatment of motions to enforce a plea
agreement; and (2) his claim that he is entitled to a lower sentence because he provided information to law
enforcement authorities pursuant to a "pledge of cooperation" contained in a plea agreement.
FACTS AND PROCEEDINGS BELOW
¶2. Presley was indicted in the Jackson County Circuit Court on twenty-eight (28) counts of embezzlement
in the aggregate amount of $1.28 million. After pleading not guilty to the charges, he entered into a
memorandum of understanding ("MOU") with the State and the United States in which he agreed to plead
guilty to eight (8) counts of embezzlement, cooperate in ongoing state and federal prosecutions, and resign
as Chancery Clerk. In return, the State agreed, depending upon Presley's cooperation, to recommend a
sentence of not more than three (3) years to run concurrently with any federal sentence he might receive and
dismiss the remaining state charges. As stated above, this recommendation was conditioned upon Presley's
"full cooperation," and the State retained the sole discretion to determine if Presley had fully cooperated. If
the State, in its discretion, determined that Presley had not fully cooperated, the State agreed to recommend
not more than twelve (12) years.
¶3. After signing the MOU, on July 14, 1998, Presley changed his plea of guilty before Circuit Judge
Walter O'Barr, who was specially appointed by this Court after all of the Jackson County circuit judges
recused themselves. Sentencing was set for August 13, 1998. During the change of plea hearing Judge
O'Barr specifically stated that he did not join in the plea agreement and would not be bound thereby.
¶4. Presley met with state and federal agents on several occasions and gave information which incriminated
himself and others on federal charges. He alleges that he was prepared to take a lie detector test, but he
was never requested to do so. As agreed to in the MOU, the remaining state charges were dismissed.
However, on August 5, 1998, shortly before sentencing, the District Attorney faxed a letter to Presley's
counsel stating that, in the opinion of the FBI and the Attorney General's Office, Presley had not complied
with his "pledge of cooperation."
¶5. At the sentencing hearing the State announced that Presley had failed to cooperate with the prosecution,
and it therefore did not recommend a three-year sentence because this recommendation was conditioned
on Presley's full cooperation. Judge O'Barr, who again stated that he was not bound by the plea agreement,
sentenced Presley to serve twenty (20) years on each of the eight (8) counts to run concurrently. He then
suspended ten (10) years on each count.
¶6. On September 2, 1998, twenty days after the sentencing and two days before the term of court ended
on September 4. Presley filed a motion to enforce the plea agreement. On September 3, Judge O'Barr died
without having ruled on Presley's motion. We appointed Judge William F. Coleman, Jr., to hear the motion
on July 30, 1999.
¶7. After a hearing, Judge Coleman found that the State had failed to prove that Presley had not
cooperated with the investigation, but denied the motion, finding that the term of court for which he (Judge
Coleman) had been appointed had expired, and that he therefore did not have jurisdiction to hear the
motion.
DISCUSSION
I. WHETHER THE TRIAL COURT COULD CONSIDER A MOTION TO ENFORCE
PLEA AGREEMENT FILED AFTER SENTENCING AND BROUGHT FOR HEARING
AFTER THE TERM OF COURT HAS ENDED.
¶8. The State claims that, because Presley did not file a motion to enforce plea agreement prior to the
sentencing hearing, Presley waived his right to file such a motion. There is no Mississippi case, statutory law
or rule on point, but there are rules of criminal procedure and case law in other jurisdictions which address
this issue.
¶9. In Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), on direct appeal
from a New York state court, the defendant withdrew his not guilty plea and entered a plea of guilty after
entering into a plea agreement. Between the entry of the plea and sentencing, another prosecutor took over
the case. At sentencing the new prosecutor claimed not to know anything about the plea agreement with the
first prosecutor. The defendant immediately objected, but the court nevertheless sentenced him to the
maximum term. The United States Supreme Court held, "when a guilty plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Id. at 262, 92 S. Ct. at 499. The Court concluded that:
the interests of justice and appropriate recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty will be best served by remanding the case to the
state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the
discretion of the state court, which is in a better position to decide whether the circumstances of this
case require only that there be specific performance of the agreement on the plea, in which case
petition should be resentenced by a different judge, or whether, in the view of the state court, the
circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea
of guilty.
404 U.S. at 262-63, 92 S. Ct. at 499.
¶10. In State v. Woyan, No. 96CA1772, 1997 WL 426117 (Ohio Ct. App. July 21, 1997), the
defendant pled guilty on April 24, 1996. On September 11, 1996, the defendant filed a motion to enforce
plea agreement, and on September 13, he filed a motion to withdraw his guilty plea. The appellate court
cited a state criminal procedural rule as providing:
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or
imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his plea.
¶11. The court noted that its rule was similar to Fed. R. Crim. P. 32(d),(1) which has been interpreted as
follows:
Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely
allowed and treated with liberality, . . . still the decision thereon is within the sound discretion of the
trial court. . . . Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse
of discretion. . . . One who enters a guilty plea has no right to withdraw it. It is within the sound
discretion of the trial court to determine what circumstances justify granting such a motion.
Id. at 3 (quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir. 1978)). Under the federal
rule, a motion for withdrawal of a plea may be made at any time before sentencing and, on a sufficient
showing, even after sentencing. 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d
§ 537, at 188 (1982). See also United States v. Watson, 548 F.2d 1058, 1063 (D.C. Cir. 1977)
("There is no time limitation on when relief can be sought under Rule 32(d).").
¶12. The State points out that "a judge may not alter or vacate a sentence once the term of court in which
the defendant was sentenced has ended." Dickerson v. State, 731 So. 2d 1082, 1085 (Miss. 1998). In
Dickerson, we treated a "Motion to Enter Correct Sentencing Order and/or Correct Sentencing Order,
Suggestion of Law, and Appropriate Relief" as a "motion to obtain relief from a final judgment." Id. at 1085.
We held that, although the motion was filed prior to the end of the term of court in which the sentence was
imposed, the defendant failed to set the motion for hearing prior to the end of the term. His claim on appeal
was denied as a result. Id. at 1086. It is clear that, "in the interests of justice," the merits of Presley's claims
should be considered and the sentencing court should have jurisdiction over them so that "manifest injustice"
may be avoided, even though his motion to enforce plea agreement was filed after sentencing.
¶13. With respect to the term of court issue, we find Miss. Code Ann. § 11-1-16 (1991) clearly gives a
circuit court authority to consider a pending motion after a term has ended. Dickerson v. State is therefore
overruled to the extent it is inconsistent with this statute.
¶14. In Griffin v. State, 565 So. 2d 545 (Miss. 1990), the circuit judge, in ruling on post-trial motions,
granted a new trial on two counts in the indictment but denied a new trial on the one remaining count. After
an appeal had been filed, the two defendants escaped and fled the jurisdiction. When they were recaptured
the State moved the circuit court to vacate the order granting the new trial and reinstate the sentences on the
two counts. After a lengthy discussion, we held that "the dispositive portion of the order setting aside the
Griffins' convictions had all the finality of a final judgment, and clearly the passage of the next term of court
deprived the circuit court of any further authority to reinstate them." Id. at 550. We find that this holding is
correct if and only if there was no motion pending from the term of court in which the sentence was
imposed.
¶15. In a case where a circuit judge revisited, pursuant to a sua sponte motion for reconsideration, a
defendant's post-trial motions after an appeal was filed, we held that the circuit court had no jurisdiction to
suspend a sentence after an appeal was filed, and
the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and
at the time the trial judge announces and imposes sentence. If no appeal is perfected and defendant
begins to serve the sentence imposed, the time has passed for the trial judge to suspend the sentence
under § 47-7-33.
Denton v. Maples, 394 So. 2d 895, 897, 898-99 (Miss. 1981).
¶16. Griffin and Denton do not need to be overruled because (1) the trial court lacked jurisdiction to
reconsider a sentence due to the perfection of the appeal; and (2) there was no motion pending from the
term of court in which the sentence was imposed to activate the applicability of § 11-1-16.
¶17. The case of Mississippi Comm'n on Judicial Performance v. Russell, 691 So. 2d 929 (Miss.
1997), wherein a circuit judge modified the sentences of four convicted felons, is distinguishable because the
felons had been sentenced by other circuit judges in two instances, the felons had begun serving time in all
four instances, no hearings were held in two instances, the felons' attorneys were never contacted in two
instances, the State was never contacted in one instance, we had affirmed the conviction in one instance,
and the elapsed time between two of the sentencings and the modifications were 4 years and 13 years.
There was no motion pending at the end of the term in which sentencing was imposed in any of the four
cases.
¶18. We have held that, in the absence of a statute authorizing a modification of a sentence, "once a case
has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment."
Harrigill v. State, 403 So. 2d 867, 868-69 (Miss. 1981). Our holding in the case sub judice does not
change the Harrigill holding because § 11-1-16 gives the circuit court the power to rule on a pending
motion outside the term of court. Also, it is worthwhile to note that § 11-1-16 was adopted two years after
Harrigill was decided.
¶19. Of course, our holding that a circuit court cannot rule on motions which are not pending at the end of
the term of court when sentencing was imposed does not apply to U.C.C.C.R. 10.05, which provides that
a motion for a new trial should be filed within ten days of the entry of judgment. Therefore, if the judgment is
entered on the last day of the term of court, a defendant still has ten days in which to file such a motion.
II. WHETHER THE STATE BREACHED THE MEMORANDUM OF
UNDERSTANDING AND DUE PROCESS CONCERNS.
¶20. Presley contends that (1) the State cannot unilaterally renege on a plea agreement on which a
defendant has relied to his detriment; (2) the burden is on the State to prove by a preponderance of the
evidence that the defendant breached the agreement and the breach was sufficiently material to warrant
rescission; (3) the State never filed a formal motion to rescind the agreement as required by law; and (4) he
is entitled to specific performance of the agreement. Presley cites to United States v. Castaneda, 162
F.3d 832, 836 (5th Cir. 1998):
When the government believes that a defendant has breached the terms of [an agreement] and wishes
to be relieved of performing its part of the bargain[,] due process prevents the government from
making this determination and nullifying the agreement unilaterally. Instead, the government must prove
to the court by a preponderance of the evidence that (1) the defendant breached the agreement, and
(2) the breach is sufficiently material to warrant rescission.
¶21. A plea agreement is basically a binding contract between the prosecution and the defendant that, if the
defendant does a, b, and c, the prosecution will do d, e, and f. If the defendant, relying on the promise of
the prosecution to recommend a lenient sentence, pleads guilty as part of what he has promised to do, and
the prosecution later unilaterally rescinds the contract, the defendant has already, in reliance on the contract,
acted to his detriment. The defendant should at least be given the opportunity, before sentencing, to
withdraw his plea.
¶22. Professor Charles Alan Wright has written that the granting of a motion to withdraw is within the
discretion of the trial court, but withdrawal
should be permitted if it was induced by fraud, mistake, imposition, misrepresentation, or
misapprehension by the defendant of his legal rights. . . .
The defendant may withdraw his plea of guilty when the prosecution has either coerced him by threats
or persuaded him by deceit to enter such a plea. . . .
***
Cooperation with government authorities is not alone sufficient to require the granting of a
motion to withdraw a guilty plea, but where the defendant shows that his cooperation was
induced by government representations which were repudiated, the motion should be
granted. In any event, the court has discretion to permit withdrawal of the guilty plea where
defendant has cooperated with the government.
Wright, § 537, at 190, 191, 197 (emphasis added & footnotes omitted). A dispute as to the terms of a plea
bargain agreement and whether the government breached the agreement required that evidentiary hearing
be conducted in connection with defendant's motion to withdraw plea of guilty. United States v.
Gonzalez-Hernandez, 481 F.2d 648, 650 (5th Cir. 1973).
¶23. However, in the case sub judice, the Court finds that Judge O'Barr's sentencing must be affirmed.
Even though the State did not formally notify, by the filing of an appropriate motion, Presley of its intent to
rescind the MOU, it did send a letter to Presley's attorneys advising them that it would not recommend the
three-year sentence for each count. mentioned in the MOU. Presley therefore cannot credibly argue that he
was not on notice that the State would not recommend the minimum sentence. Indeed, as discussed below,
the State was not required to give notice of its recommendation because, even though it determined that
Presley had not "fully cooperated," it recommended a sentence within the range mentioned in the MOU.
¶24. Even though the State did not recommend the minimum sentence mentioned in the MOU, it did reserve
the right to decide unilaterally whether Presley had "fully cooperated" with its investigation . Furthermore,
the MOU stated that the State would recommend twelve (12) years on each count if the State determined
that Presley had not "fully cooperated." The State therefore fulfilled its contractual obligation under the
MOU by recommending the twelve (12) years for each count. A hearing was held before sentencing was
imposed wherein Presley was given the opportunity to cross-examine an FBI agent as to the reasons why
the District Attorney did not think that Presley had fully cooperated with law enforcement officers. Finally,
throughout the entry of the plea and the sentencing hearing, Judge O'Barr repeatedly stated that he would
not be bound by the MOU and that he would impose any sentence he deemed to be appropriate. Judge
O'Barr was not a party to the MOU and could, under law, impose any sentence which was contemplated
under the appropriate statute.
¶25. We finally find that Judge Coleman's finding of cooperation is error based on the plain terms of the
agreement giving the State "sole discretion" to determine cooperation and further, on Judge O'Barr
specifically stating he was not bound by the plea agreement. Also, Judge O'Barr was in a better position to
judge the credibility of the State's witness on Presley's purported cooperation. Judge O'Barr presided over
the hearing when the State's witness testified, and Judge Coleman merely had the record of the hearing to
consider.
CONCLUSION
¶26. For these reasons, William Lynn Presley's sentence and fines imposed by Judge O'Barr are affirmed.
In addition, the order denying Presley's motion to enforce plea agreement is affirmed, albeit for different
reasons than those given by Judge Coleman.
¶27. CONVICTION OF EIGHT COUNTS OF EMBEZZLEMENT AND SENTENCE OF
TWENTY YEARS, WITH TEN YEARS SUSPENDED, ON EACH COUNT IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAYMENT OF INTEREST OF
$56,277.34, INVESTIGATION EXPENSES OF $38,165.16, AND OTHER COSTS,
AFFIRMED. SENTENCES ARE TO RUN CONCURRENTLY WITH EACH OTHER.
PITTMAN, C.J., BANKS, P.J., MILLS, COBB, DIAZ AND EASLEY, JJ., CONCUR.
McRAE, P.J., AND SMITH, J., NOT PARTICIPATING.
1. (d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or nolo contendere may be
made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his plea.
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