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Since Greene, this court has rejected similar charges of misconduct where the government supplied counterfeit credit cards to detect which merchants would accept them. See Citro, 842 F.2d at 1153. In a case where an FBI agent bribed a state senator, we found no misconduct. See United States v. Carpenter, 961 F.2d 824, 829 (9th Cir.1992). Most recently, we declined to dismiss an indictment where the government established fake bank accounts and wired money to Mexican banks suspected of money laundering. See United States v. Gurolla, 333 F.3d 944, 948-49 (9th Cir.2003). We noted that the outrageous misconduct claim is limited to “extreme cases,” id. at 950, for example those characterized by “dominant fomentation” or “aggressive solicitation” of criminal activity. REDACTED Here, the FBI did not actually create a criminal enterprise. It constructed a fake travel agency Web site, and Agent Hamer lied about the arrangements he had made for the group. Like the agent who bribed the legislator in Carpenter, Agent Hamer engaged in fictional criminal conduct and lied about being able to facilitate access for Mayer. See also United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986) (refusing to dismiss indictment where prison authorities may have encouraged but did not actually aid jailbreak attempt). Moreover, the agent did not pay for Mayer’s trip, coerce him into buying a ticket, or plant the idea of traveling for illicit sexual conduct in Mayer’s mind. While Mayer points out there
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"clear predisposition, his conviction was reversed: This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own • affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred. Id. at 381 (footnote deleted). Based on Twigg, the Eastern District of Pennsylvania recently acquitted two subjects of the “Abscam” undercover operation. United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980) (appeal pending). The court found as a matter of law that the defendants had no predisposition to commit the offenses, and had been entrapped by the government. Id. at 1200. The court further found that the governmental involvement violated due process even if defendants were predisposed to commit the crimes. Id. at 1204-05. Government agents had posed as representatives of an Arab sheik who desired to build a hotel complex in Philadelphia. The defendants, members of the City Council, agreed to assist the project because it would benefit the city. Government agents offered bribes as an additional inducement. Defendants had not requested money, and had made it clear none was necessary. The agents insisted the sheik would be unwilling to proceed with the project unless the payments were accepted. Defendants accepted the money, but did not agree to do anything inconsistent with their obligation to promote the interests of the city. 501 F.Supp. at 1200. The government’s conduct in the present case does not rise to the level of outra-geousness reflected in Twigg and Jannotti. Treating the evidence in the light most favorable to the government, as we must, we find the government’s involvement reflected neither the dominant fomentation of Twigg nor the aggressive solicitation of Jannotti. If the conduct of the government was in some respects overzealous, it was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d at 789. The convictions"
] |
[
"scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d 1187 (9th Cir.2008), the defendant was already wanted for a prior bank robbery; had engaged in several drug deals with a government informant; and had planned his second bank robbery in detail and on his own accord, going so far as to identify a target bank and recruit someone on the inside of the bank to help. It was only after the defendant enlisted a government informant to be his getaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. Id. at 1192. In each of these cases, the government targeted an existing scheme or suspected an individual of wrongdoing before initiating a sting operation. An Alternative Approach The majority opinion scarcely offers an explanation for why it has declined to use the Bonanno test. The test is good law. Under the Bonanno test, the government’s conduct is not outrageous when: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. Williams, 547 F.3d at 1199-1200 (quoting Bonanno, 852 F.2d at 437-38 and evaluating whether the government’s conduct is outrageous by methodically considering each of the five factors). The origin of the test lay in United States v. Bogart, 783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). Systematically evaluating a number of outrageous government conduct cases, Bogart",
"de novo. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.1988). For a due process dismissal, the Government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); Citro, 842 F.2d at 1152. The Government’s involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish. Citro, 842 F.2d at 1153. The police conduct must be “repugnant to the American system of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984)). In short, a defendant must meet an extremely high standard. The courts have upheld all of the following: Use of false identities by undercover agents, Shaw, 796 F.2d at 1125, and United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir.1984); the supply of contraband at issue in the offense, Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976); the commission of equally serious offenses by an undercover agent as part of the investigation, United States v. Stenberg, 803 F.2d 422, 430 (9th Cir.1986); the introduction of drugs into a prison to identify a distribution network, United States v. Wiley, 794 F.2d 514, 515 (9th Cir.1986); the assistance and encouragement of escape attempts, United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); use of a heroin-using prostitute informant whose own activities were under investigation and who engaged in regular intercourse with the defendant, United States v. Simpson, 813 F.2d 1462, 1465-71 (9th Cir.1987). Although drug agents’ encouraging 18-year-old patients in drug-treatment centers to deal drugs is not the most constructive enforcement method, it does not rise to the level of outrageous conduct necessary to constitute a due process violation. Here, Popp showed a tendency for dealing drugs independent of any action on the part of the DEA:",
"(9th Cir.1985). Law enforcement conduct becomes constitutionally unacceptable when “the police completely fabricate the crime solely to secure the defendant’s conviction.” United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987). The facts of the present case do not support a claim of outrageous government conduct. At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals. Valentino’s acts of supplying Winslow with beer and food, and paying for the trip to Seattle and the bomb components, did not constitute outrageous government conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir.) (undercover agent’s conduct in proposing and explaining details of credit card scheme to defendant and in supplying him with counterfeit credit cards did not constitute a due process violation), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). Valentino did not suggest or set up the plan from which the conspiracy evolved. See United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986) (supplying opportunity for defendant to arrange drug sale was not outrageous government conduct because informant did not set up the source from which the defendant would purchase the drugs). While it is true that Valentino was paid $90,000 by the FBI as compensation for his undercover activity, “the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals.” United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). Nor did the arrests of Nelson and Win-slow before the intended Seattle bomb was assembled, but after its components had been purchased, amount to outrageous government conduct. “Police are not required to delay arrest until innocent bystanders are imperiled.” United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990). MOTION FOR MISTRIAL AND EVIDENTIARY OBJECTIONS A. Motion for Mistrial Nelson, Winslow and Baker argue that their convictions should be reversed on all counts because the district court erred in denying their motions for a",
"United States v. Bonanno, 852 F.2d 434, 437-38 (9th Cir.1988) (citing Bogart, 783 F.2d at 1435-38). These factors have not been used consistently, however, nor as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003) (not citing or employing the Bonanno factors and instead rejecting the defendants’ outrageous government conduct claim on the more general principle that “the government did not initiate the criminal activity, but rather sought to crack an ongoing operation”). Because we are to resolve every case on its own particular facts, we take account of the Bonanno factors in our analysis but only as part of our consideration of all the circumstances as a whole. . The dissent points out that in most of our decisions rejecting claims of outrageous government conduct the government targeted an existing scheme or suspected an individual of wrongdoing before initiating the sting operation. We agree with the dissent that the absence of those conditions here supports the defendants’ outrageous government conduct claim. In light of our precedent, however, we cannot say that this one factor alone establishes a due process violation. In at least two cases, we have rejected outrageous government conduct claims where, as here, the government initiated a sting operation without targeting an existing scheme or suspecting an individual of wrongdoing. In Bagnariol, the government approached persons involved with lawful gambling enterprises authorized under state law. See Bagnariol, 665 F.2d at 880-81. In United States v. Emmert, 829 F.2d 805 (9th Cir.1987), a confidential informant approached a college student about locating a substantial supply of cocaine for a buyer in the area. The government had no individualized suspicion of the college student as someone who was a drug user or dealer. Rather, the investigators approached him merely because they believed he attended a party at which cocaine was used and he in turn led them to his college roommate, Emmert. See id. at 807, 812. We found sufficient proof that Emmert was contemplating criminal activity simply by his agreement to engage in the criminal activity proposed by the government. See id. at",
"as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached itself to one that was already established and ongoing. See Williams, 547 F.3d at 1200 (noting that government merely persuaded the defendant to substitute a stash house robbery for the planned bank robbery he had initially proposed to the government agent); Mayer, 503 F.3d at 747 (noting that the defendant was the first to broach the subject of traveling internationally to have sex with boys); United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992) (“At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals.”); United States v. Wiley, 794 F.2d 514, 516 (9th Cir.1986) (“The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it.”). In the case before us, the government does not contend it had any individualized suspicion of any of the defendants as being involved in stash house robberies when it dispatched the Cl into the field to find persons willing to do such a robbery.",
"(1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access to the briefcase a government agent introduced the owner of the briefcase, Michael Wolstencroft, to Sybol Kennedy, a female private investigator who worked for the agent. Wolstencroft and Kennedy spent time together in Kennedy’s apartment, where Wolstencroft left his locked briefcase while the two went out to eat at a restaurant. While one government agent acted as a “lookout” at the restaurant, other agents entered the apartment with a key furnished by Kennedy, took the briefcase to a locksmith who made a key for it, opened the briefcase and photographed documents in it that led to evidence used to convict Payner. Payner, of course, did not have standing to object to the search. The district court found that the United States “knowingly and willfully participated” in the illegal search. Nonetheless, the Supreme Court refused to affirm the use of the courts’ supervisory power to suppress the evidence. It agreed with a government argument that even though the evidence was tainted with gross illegalities, “such an extension of the supervisory power would enable federal courts to",
"indicated they were already involved in continuing illegal transactions involving wildlife.”), superseded by statute on other grounds as stated in United States v. Atkinson, 966 F.2d 1270, 1273 n. 4 (9th Cir.1992). In some cases where the government did not suspect a particular individual, it has focused on a category of persons it had reason to believe were involved in the type of illegal conduct being investigated. An example is Garzar-Juarez, 992 F.2d 896, involving an investigation of illegal firearm trafficking at swap meets. The government received a tip that a Hispanic male at a swap meet near Casa Grande, Arizona, had illegally sold an assault-type firearm. On that information alone, an undercover agent went to the Casa Grande swap meet looking for Hispanic males and came upon the defendant, who appeared to be selling firearms in numbers exceeding those of a professed “gun collector.” The government then lured him into a faked sale of illegal weapons. See id. at 899-900. See also Emmert, 829 F.2d at 812 (targeting student who attended a cocaine party as one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981) (targeting politicians, political operatives and persons in the gaming business in investigation of political corruption). Known criminal characteristics of defendants. Closely related to the question of individualized suspicion is whether a defendant had a criminal background or propensity the government knew about when it initiated its sting operation. See, e.g., Williams, 547 F.3d at 1200 (noting that before the government suggested a stash house robbery, the defendant was introduced to the government “as a middleman drug dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.2007) (“While Mayer points out there was no ongoing criminal enterprise that the government was merely trying to join, Mayer was certainly a willing and experienced participant in similar activities [traveling internationally for sex with boys].” (citation omitted)). Government’s role in creating the crime. Also relevant is whether the government approached the defendant initially or the defendant approached a government agent, and whether the government proposed the criminal enterprise or merely attached",
"some overt act or specific act in the statute before us, unlike the general conspiracy provision”). Section 286, like the RICO conspiracy provision, does not require an overt act. . That statutory provision directs that: \"Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.” 18 U.S.C. § 287. . The circuits, however, do not have unanimous agreement as to the appropriate standard. For instance, the Ninth Circuit sets quite a high standard and states that “[t]o be false, a claim must not only be inaccurate but consciously so.\" United States v. Barker, 967 F.2d 1275, 1278 (9th Cir.1991). In contrast, the Eighth Circuit has used the seemingly lesser standard of whether the defendant had the “intent to deceive.” United States v. Martin, 772 F.2d 1442, 1444 (8th Cir.1985). . Dedman, however, may have had grounds for claiming that the second count of the indictment was duplicitous. A duplicitous indictment is one that charges separate offenses in a single count. The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both. Adverse effects on a defendant may include improper notice of the charges against him, prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, in exposure to double jeopardy, and of course the danger that a conviction will result from a less than unanimous verdict as to each separate offense. Duncan, 850 F.2d at 1108 n. 4. We held in 1993 that \" 'Congress, in enumerating several different types of fraudulent conduct in Section 1001, did not create separate and distinct offenses,' \" United States v.",
"substances, or prostitution, the Government must prove more than an isolated incident; it must prove a business enterprise. On the other hand, if the underlying offense involves extortion, bribery, or arson, then the business enterprise limitation does not apply- In this case, the underlying offense involved extortion. Thus, the Government was not required to prove a business enterprise. The defendants contend that this was error. They argue that the legislative history of the Travel Act demonstrates that the business enterprise limitation in subdivision (1) was intended to apply as well to subdivision (2). The defendants assert, and we agree, that a primary purpose of the Travel Act was to aid local law enforcement in combatting organized crime figures who could avoid apprehension by local officials by travelling interstate. See Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Nardello, 393 U.S. 286, 290-91, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Frequent references are made in the legislative history to “continuous course of conduct,” “business enterprises,” and “organized crime.” Nonetheless, the Supreme Court has noted that “the reach of the statute clearly was not limited to instances in which organized criminal activity in one State is managed from another State . . . .” Erlenbaugh v. United States, 409 U.S. 239, 247 n.21, 93 S.Ct. 477, 482 n.21, 34 L.Ed.2d 446 (1972) (Court’s emphasis). The evidence most helpful to the defendants’ contention can be found in testimony before the Senate Committee of the Judiciary, (reprinted in S.Rep.No. 644, 87th Cong. 1st Sess.1961). Attorney General Robert F. Kennedy stated that the “target” of the bill clearly is organized crime. The travel that would be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise. We are unconvinced that this evidence of legislative intent compels the result suggested by the defendants. Where the statutory",
"fraud on a small scale no doubt is very widespread in this country. Many professional or business people may not regard it a serious infraction of society’s rules to assist customers or patients in the small scale cheating of insurance companies. Yet, like the Second Circuit in Myers, which said it could not accept an “induce ment” argument that a proferred bribe was so large a congressman could not be expected to resist, 692 F.2d at 837-38, we cannot accept the notion that insurance cheating is so commonplace that it is improper for the government to try to catch and convict citizens who engage in it. We have held that the government need not have a reasonable suspicion of wrongdoing in order to conduct an undercover investigation of a particular person. United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir.1983). See also United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983). Cf. United States v. Swets, 563 F.2d 989, 991 (10th Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978) (government not required to show in entrapment case that it had reasonable grounds to believe defendant was engaged in unlawful activities). No issue of impermissible selective prosecution was raised in the instant case. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Ill We have also considered defendant’s conviction and the government agents’ conduct in light of our supervisory power over the administration of criminal justice. But the breadth of the Supreme Court’s language in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), requires us to conclude, despite the differences between Payner and the case at bar, that we may not fashion a “sub-constitutional” rule to permit dismissal of this case because of the government agents’ conduct. See United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). In Payner government agents sought to examine materials in a third party’s briefcase that they thought might incriminate defendant. To gain access"
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1015(b), to provide for the joint administration of the respective debtors’ estates. But joint administration should not be confused with consolidation. Consolidation results in the creation of one estate from two or more; joint administration does not, but is rather done for procedural convenience by avoiding the duplication of effort that would result if cases involving related debtors were to proceed separately. In re Blair, 226 B.R. 502, 505 (Bankr.D.Me.1998). See also Fed. R.Bankr.P.2009(e) (trustee shall keep separate accounts for each jointly administered estate). Therefore, for all the reasons just explained, the Debtor, Mr. Toland, is not entitled to claim an exemption in his wife’s vehicle. This holding is consistent with past decisions of a similar nature decided by this Court: REDACTED where title to vehicle reflected debtor as sole owner, debtor could not claim that son was intended owner; In re Smith, 310 B.R. 320, 323-24 (Bankr.N.D.Ohio 2004), a non-debtor spouse, whose wages did not contribute to a tax overpayments, had no interest in the ensuing refund which could operate to exclude it from the debtor’s bankruptcy estate. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that the Trustee’s Objection to the claim of exemption of the Debtor, James W. Toland, Sr., in the motor vehicle titled in the name of the Co-debtor,
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"owner. On the Chapter 7 schedules the Debtors listed the promissory note as a debt and the pickup truck as property of the estate. The Debtors also claimed the truck as an exemption from the estate. The Trustee objected to the claim of exemption, an Objection which was sustained by this Court on February 23, 1984. On December 21, 1983, the Trustee-Plaintiff filed this Complaint seeking a recovery of the truck which remained in the Debtors’ possession. At the Pre-Trial the Defendant-Debtor argued that her co-signature on the note was given in order to allow her son to purchase the truck. She further argued at the Pre-Trial that since her son was the only user of the vehicle, that he had made all the payments to the creditor, and that the intent of all parties involved was that the truck belonged to him, the truck should not properly be included in the estate. The record reflects that the time set on February 23, 1984, for the submission of arguments has expired and that only the arguments of the Trustee have been submitted. LAW The property which becomes part of the bankruptcy estate when a Petition is filed is addressed by 11 U.S.C. § 541(a) which states in pertinent part: “The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located ... all legal or equitable interests of the debtor in property as of the commencement of the case.” As correctly argued by the Trustee, in Ohio, legal title to motor vehicles is evidenced only by the name of the owner on a duly certified certificate of title. See, Ohio Revised Code § 4505.04. Accordingly, the only owner which this Court may recognize as the actual owner of the vehicle is the Debtor. Pursuant to the provisions of § 541(a), her legal title has become part of the bankruptcy estate. This conclusion is supported by the fact that the Debtors, by inclusion of the truck on their schedule of property, have admitted that it"
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"which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting",
"estates are administered jointly pursuant to section 302(b). They have not been substantively consolidated. See In re Blair, 226 B.R. 502, 506 (Bankr.D.Me.1998). While this legal conclusion may be a distinction without a difference in cases in which the spouses own jointly all assets and owe jointly all debts, it is relevant in cases in which one spouse owns significant amounts of separate property or owes significant amounts of debt upon which the other spouse is not obligated. In such cases, determining the proper apportionment of the spouses’ assets is important to the trustee and the creditors and also respects the fact that the Code anticipates married debtors in a joint case will make separate claims to exemptions. See Carlson, 394 B.R. at 497 (“Allowing debtors to ‘transform’ separate property to joint property, with the result being to allow a co-debtor spouse to claim an exemption in property she does not own, or to allow a non-debtor spouse to keep half a tax refund out of the debtor-spouse’s estate, is not equitable.”); see also 11 U.S.C. § 522(m). Contrary to the Debtors’ suggestion, the Trustee is not asking the Court to change its position on the apportionment of a joint asset. The law has always required the Court to respect the individual ownership of property by spouses in a joint case unless the cases have been substantively consolidated. Those bankruptcy courts adopting what is often referred to as the “majority” rule — that the refund should be divided based upon the withholding — have done so in reliance upon the fact that the applicable state law does not presume equal ownership of property by spouses. See Carlson, 394 B.R. at 494 (applying Minnesota law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). Georgia law, like that applicable in the Carlson case, has no presumption of equal ownership of property between spouses. See O.C.G.A. § 19-3-9 (“The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.”).",
"jointly administered estates); Fed. R. Bankr.P.2009(e)(trustee shall keep separate accounts for each jointly administered estate); Tisha Morris Federico, The Impact of the Defense of Marriage Act on Section 302 of the Bankruptcy Code and the Resulting Renewed Interest in the Equitable Doctrine of Substantive Consolidation, 103 Com. L.J. 82, 83-87 (1998). After substantive consolidation, “the consolidated estates create a single fund from which all of the claims of the consolidated debtors are satisfied.” Gilbert, supra, at 209. See also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Smith v. Mortgage Funding Corp. (In re Smith and Kourian), 216 B.R. 686, 687 n. 2 (1st Cir. BAP 1997); James F. Queenan et al., Chapter 11 Theory and Practice § 24.01 (1994). Of course, if substantive consolidation is appropriate, I must consider the U.S. Trustee’s dismissal motion in light of the Blairs’ consolidated assets and consolidated liabilities and must necessarily consider the totality of their joint circumstances in assaying whether granting them Chapter 7 relief would constitute a “substantial abuse.” Substantive consolidation is an equitable doctrine. See e.g., Reider v. FDIC (In re Reider), 31 F.3d 1102, 1105 (11th Cir.1994); Colonial Realty Co., 966 F.2d at 59; In re Smith and Kourian, 216 B.R. at 687 n. 2; see generally 4 Queenan, supra, §§ 24.01-24.22. Substantive consolidation of joint debtors’ separate estates is a matter within my discretion, see Fed. R. Bankr.P. 1015 advisory committee’s note, but that discretion must be exercised to effect a fair result to the parties whose interests will be affected (viz creditors). See In re Birch, 72 B.R. 103, 106 (Bankr.D.N.H.1987)(spouses’ estates would not be consolidated because to do so would affect the creditors of each differently and the estates were not inextricably entwined); In re Snider Brothers, 18 B.R. 230, 234 (Bankr.D.Mass.l982)(“[T]he only real criterion is ... the economic prejudice of continued debtor separateness versus the economic prejudice of consolidation.”). Absent substantive consolidation, Rodney’s creditors may look to Rodney’s assets (and, in Chapter 13 or outside bankruptcy, Rodney’s assets and",
"Unless otherwise noted, all references herein to \"section” refer to section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Federal Rule of Bankruptcy Procedure 1015(b) in relevant part provides: If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife ..., the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. . Although an old case, the opposing parties have offered no authority for this Court to question the holding in In re Dobbel’s Estate, 104 Cal. 432, 435, 38 P. 87 (1894), that the insurance proceeds are a spouse’s separate property even if purchased with community assets. . The Court declines to consider whether the Debtor is jointly liable for the partnership debts as this should be done in the context of the claims objection procedure. . The Court did find administratively consolidated cases where the court separately converted one of the cases. In re Sibarium, 107 B.R. 108, 109 (N.D.Tex.1989). .The trustee’s opposition states there are approximately $186,570.11 in partnership claims while the Court's claims register lists unsecured claims in an approximate amount of $133,-775.57, and the schedules reflect secured claims of $122,265.00, both amounts well within the confines of section 109(e)'s requirements for a chapter 13 debtor. Additionally, the filed schedules reflect that the Debtor has a regular monthly income of $5,537.00.",
"Inc.), 954 F.2d 1 (1st Cir. 1992), the First Circuit noted: Consolidation is permitted only if it is first established that the related debtors’ assets and liabilities are-so intertwined that it would be impossible, or financially prohibitive, to disentangle their affairs. The trustee may request consolidation to conserve for creditors the monies which otherwise would be expended in prolonged efforts to disentangle the related debtors’ affairs. Nevertheless, the bankruptcy court must balance the potential benefits of consolidation against any potential harm to interested parties. In re Hemingway Transp., Inc., 954 F.2d at 11 n.15 (citations omitted). The First Circuit in Hemingway added that because “[substantive] consolidation can cause disproportionate prejudice among claimants required to share the debtors’ pooled assets, the party requesting substantive consolidation must satisfy the bankruptcy court that, on balance, consolidation will foster a net benefit among all holders of unsecured claims.” 954 F.2d at 11-12 (footnote omitted). While noting that the First Circuit specifically has approved substantive consolidation of multiple debtors, but not substantive consolidation involving non-debtors, the court in Logistics Information Sys., Inc., 432 B.R. at 11, observed that the test adopted by the First Circuit in Hemingway is similar to the test set forth in Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987), in which the District of Columbia Circuit considered the following factors, all of which must be satisfied: “(1) the movant must show a ‘substantial identity between the entities to be consolidated;’ (2) the movant must also demonstrate that ‘consolidation is necessary to avoid some harm or to realize some benefit;’ and (3) if a creditor will be prejudiced, the benefits of consolidation must heavily outweigh the harm.” Logistics Information Sys., Inc., 432 B.R. at 12. The Logistics court also observed that the bankruptcy court, while employing the Auto-Train test, also considered substantive consolidation with reference to the standard for piercing the coipo-rate veil. Id. (citing, inter alia, Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 812 (1st Cir. B.A.P. 2005), in which the court applied the factors set forth in My Bread Baking",
"apparent entities into a single estate. The assets and liabilities of two or more entities are consolidated into a common fund of assets and a single body of creditors. In re Cooper, 147 B.R. 678, 682 (Bankr.D.N.J.1992). The purpose of the substantive consolidation is the equitable distribution of the debtor’s property among all its creditors. Union Savings Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 518 (2d Cir.1988). The Bankruptcy Court has the jurisdiction to order a substantive consolidation pursuant to its equitable powers granted in section 105(a) of the Bankruptcy Code. Although the section does not specifically authorize the consolidation of the assets of a non-debtor with the estate of a debtor, Courts have recognized this as a valid application of § 105(a). Munford, Inc., d/b/a/ Majik Market v. Toc Retail, Inc. (In re Munford, Inc.), 115 B.R. 390 (Bankr.N.D.Ga.1990); See also, Auto-Train Corp. v. Midland-Ross Corp., 810 F.2d 270, 276 (D.C.Cir.1987); see generally, In re Walway Co., 69 B.R. 967 (Bankr.E.D.Mich.1987); United States v. Fairfield Construction Co. (In re Fairfield Construction Co.), 1991 Lexis 1395. The corporate veil does not exist between the entities and must be disregarded. A debtor must not be accorded the protections of a corporate entity if the debtor itself has ignored the integrity of the corporation and has operated independent of the protections guaranteed to a corporate entity. Although the Sixth Circuit has not pronounced a standard for the allowance of substantive consolidation of two or more entities into a single estate, we may look to other circuits for guidance. At least two general tests have been articulated in other circuits. See In re Standard Brands Paint Co., 154 B.R. 563, 567-69 (C.D.Cal.1993). The first test was articulated by the D.C. Circuit in In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987). The Auto-Train standard relies upon a three part analysis: 1. The proponent must show a substantial identity between the entities to be consolidated, and 2. The proponent must show that consolidation is necessary to avoid some harm or to realize some benefit, and",
"appeals in Sumy was not faced with the issue presented by these cases. While the facts of Sumy fully support the remedy given to the chapter 7 trustee, the case is not support for the debtors’ position here. Sumy merely continues the long line of cases originating with Krakower that are designed to prevent and remedy a particular type of abuse — creating an exemption in bankruptcy that does not exist at state law by manipulating the filing of petitions in bankruptcy by the spouses. It was intended to prevent an abuse, not create a new one. Neither Reid nor Sumy support the debtors’ proposition that administration of entireties property is limited to joint creditors. Substantive Consolidation The manner in which the cases are administered — that is, whether they are administratively consolidated or substantively consolidated — may be important to both the debtors and to the creditors. There is a difference between administrative consolidation and substantive consolidation. Administrative consolidation, or joint administration, is justified on the grounds of convenience and efficiency. 2 Collier on Bankruptcy ¶ 302.06, at 302-17 (15th ed. rev., 2000). Joint administration permits a trustee to administer two cases together, however, the individual estates remain legally distinct entities. The rights of the debtors, the creditors and the trustee are not altered. In re Blair, 226 B.R, 502, 505 (Bankr.D.Me., 1998); McCulley, 150 B.R. at 360. When a trustee pays allowed claims, creditors of each estate may receive different dividends. This arises from two factors: the assets recovered in each estate and the allowed claims in each case. Some creditors will be creditors of only one estate while others may be joint creditors. Some assets liquidated by the trustee may have belonged to one debtor alone. Other assets may have been joint assets. This may result in two estates with different amounts of money available for distribution to creditors holding different claims, claims different as to amount and priority. While all creditors of the same class in each estate will receive the same pro rata distribution, usually creditors of the two estates will receive a different percentage",
"of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint ease under a chapter of this title constitutes an order for relief under such chapter. (b) After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated. 11 U.S.C. § 302. “Section 302(a) permits a married couple to file a joint petition. Section 302 is designed for ease of administration and to permit the payment of one filing fee. In re Crowell, 53 B.R. 555, 557 (Bankr.M.D.Tenn.1985). But, as the Debt- or points out, the joint petition actually creates two separate bankruptcy estates.” In re Estrada, 224 B.R. 132, 135 (Bankr.S.D.Cal.1998) (citations omitted). Unless the joint debtors’ estates are consolidated by the Court pursuant to § 302(b), the two estates remain separate. In re Estrada, 224 B.R. at 135. Rule 1015(b) of the Federal Rules of Bankruptcy Procedure supports the conclusion that the filing of a joint case creates two separate estates. Rule 1015(b) provides in part: Rule 1015. Consolidation or Joint Administration of Cases Pending in Same Court (b) CASES INVOLVING TWO OR MORE RELATED DEBTORS. If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wife .... the court may order a joint administration of the estates. Prior to entering an order the court shall give consideration to protecting creditors of different estates against potential conflicts of interest. ... Fed.R.Bankr.P. 1015(b)(Emphasis supplied). See also In re Goldstein, 383 B.R. 496, 500 (Bankr.C.D.Cal.2007). The Eleventh Circuit Court of Appeals adheres to the determination that the filing of a joint petition creates two separate estates. “The filing of a joint petition by a husband and wife does not result in the automatic substantive consolidation of the two debtors’ estates.... Used as a matter of convenience and cost saving, it does not cx-eate substantive rights.” In re Reider, 31 F.3d 1102, 1109 (11th Cir.1994). “Under joint administration, the estate of",
"granting the Blair’s motion would ensure that Rodney’s liabilities encompass Darlene’s (and hers, his). Discussion 1. Substantive Consolidation Rodney and Darlene filed their case jointly under § 302(a) which provides: A joint case under a chapter of this title is commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be a debtor under such chapter and such individual’s spouse. The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter. 11 U.S.C. § 302(b). However, as § 302(b) makes clear, the filing of a joint petition does not, by itself, consolidate the estates and their concomitant liabilities: “After the commencement of a joint case, the court shall determine the extent, if any, to which the debtor’s estates shall be consolidated.” § 302(b). One commentator has summarized the differences between joint administration and substantive consolidation as follows: Substantive consolidation must not be confused with the related procedure of joint administration. Joint administration is a procedure by which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort that would result if cases involving related debtors were to proceed separately. The most significant difference between joint administration and substantive consolidation is that joint administration requires the estate of each debtor to be kept separate and distinct. Joint administration does not affect the substantive rights of creditors and other interested parties. Thus, administrative efficiency is achieved without sacrificing the parties’ substantive rights. Conversely, substantive consolidation effects a merger of the consolidated debtors’ estates, which creates a single estate that is recognized throughout the remaining bankruptcy process. J. Stephen Gilbert, Substantive Consolidation in Bankruptcy: A Primer, 43 Vand. L.Rev. 207, 212 (1990)(footnotes omitted). See also Fed. R. Bankr.P. 1015(b)(court may order joint administration of estates of husband and wife); Fed. R. Bankr.P.2009(a)(sin-gle trustee may oversee",
"requisite property interest in a tax refund which would entitle such spouse to an exemption.”); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987) (“a joint filing does not change the ownership of property rights between taxpayers.”); In re Carey, 1993 WL 541461 *2 (Judge Williams, Bankr.N.D.Ohio) (“refund of taxes paid by one spouse, who files jointly with the other spouse, remain the property of the wage-earning spouse.”). But see Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000) (“in an appropriate case a non-income producing non-filing spouse, who is a homemaker that makes substantial contributions to the family, may be entitled to have a property interest in a joint tax refund check, notwithstanding that all the taxable income was generated by the debtor-spouse.”) Consequently, in this particular case, since the Debtor’s spouse did not contrib ute to any of the tax overpayments made in the year 2002, she has no property interest in any refund due therefrom which can be excluded from the Debtor’s bankruptcy estate. As a consequence, the Trustee, subject of course to any applicable exemptions, is conferred with the right to administer any refund that the Debtor is entitled to receive as the result of his 2002 year tax overpayment. As it concerns this decision, a few final observations. First, it is realized that pursuant to 26 U.S.C. § 6013(d)(3), a non-incoming producing spouse who signs a joint tax return is subject to joint and several liability for any tax owing. This predicament, however, is mitigated by the fact that the filing of a joint return is not mandatory, and as noted above, may confer upon both spouses certain tax advantages. The concern of joint and several liability is also alleviated by the fact that 26 U.S.C. § 6015 relieves an “innocent spouse” from any personal liability on a jointly filed tax return. Second, it is observed that this holding may also work against the bankruptcy estate in the reverse situation where a debt- or’s spouse, who is not in bankruptcy, is the only party contributing to the tax overpayment. Finally, it is noted"
] |
F.2d 934, 50 CCPA 1153. Appellant’s reply brief in rebuttal argues that since this is solely a question of law, rather than a question of technical facts, the issue may be raised here for the first time. We do not think the solicitor is correct in his contention. The section 102 (e) question may be properly raised here for the first time because we must determine whether the reference is available. The particular question, whether we may consider the Murray reference, must be settled prior to determining the legal effect of the disclosure of that reference. We find no compelling reason to overrule our recent decisions in In re Harry, supra, or In re Kander, 312 F.2d 834, 50 CCPA 928, REDACTED d 316, 44 CCPA 904, or go contrary to the Court of Appeals of the District of Columbia circuit, Hazeltine Research, Inc. v. Ladd, 340 F.2d 786, cert. granted 380 U.S. 960, 85 S.Ct. 1108. Thus Murray being available as prior art for a section 103 rejection, we look next to see whether that section is satisfied. Minion describes production of cortisone hemisuccinate by the same proc ess as appellant uses with hydrocortisone. Cortisone differs from hydrocortisone in having a keto group [0=C<] rather than a hydroxyl group [HO<X] at the 11 position. The hemisuccinate of cortisone is found by Minion to be four times as soluble in water as the
|
[
"application the art was fully aware of the substitution of Cl and CF3 potentiating groups in phenothiazines analogous to those now claimed by Zenitz. The examiner held, and the board agreed, that the substitution of CF3 for Cl in the phenothiazines disclosed by Cusic, would be obvious to one of ordinary skill in the art. Zenitz contends that the Cusic, Gulesich and Ullyot patents are not available as references for an obviousness rejection under Section 103 because they issued on applications which, although filed earlier than his, were copending therewith. Zenitz maintains that he could not have been aware of the Cusie or Gulesieh disclosures at the time he filed his application. This court has held in a number of decisions that a United States patent speaks for all it discloses as of its filing date, even when used in combination with other references. In re Kander, 312 F.2d 834, 50 CCPA 928; In re Gregg, 244 F.2d 316, 44 CCPA 904; In re Seid, 161 F.2d 229, 34 CCPA 1039. In re Harry, 333 F.2d 920, 51 CCPA, --, decided concurrently herewith, holds that 35 U.S.C. § 103 is in pari materia with 35 U.S.C. § 102(e) and points out that the latter section was intended to enact the rule of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651, wherein the court said: “ * * * The delays of the patent office ought not to cut down the effect of what has been done. The description shows that Whitford was not the first inventor. Clifford had done all that he could do to make his description public. He had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing Whitford to profit by the delay and make himself out to be the first inventor when he was not so in fact, when Clifford had shown knowledge"
] |
[
"as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases was it a point of law that we declined to consider but rather such things as the interpretation of a word (Herthel), the factual significance of a claim limitation, a question of operability, the construction of a claim (Panagrossi), and the propriety of actions of the examiner to which response could have been made in the Patent Office (Soli). Generally speaking, we decline to consider questions which could and should have been raised in- the Patent Office so that we have the benefit of the views of its trained personnel on matters within their special competence .and so that the Patent Office has the opportunity to furnish its position as expert on technical questions, the interpretation.of references, applications, and the like. We will, nevertheless consider a question of law, such as the availability of a reference, which is necessary to the determination of patentability. In re Schoenwaldt, 52 CCPA 1258, 343 F. 2d 1000, 145 USPQ 289, 290. Indeed, we believe we are in a position, to interpret our own opinion in Blout cmd Rogers",
"with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz<ine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, nor could they have done so as Blout and Rogers was not decided until more than four months after the board decision. The solicitor’s brief objects to our considering it on the usual ground that we do not generally consider points not raised below, citing In re Herthel, 36 CCPA 1095, 174 F. 2d 935, 82 USPQ 55, In re Panagrossi et al., 47 CCPA 904, 277 F. 2d 181, 125 USPQ 410, and In re Soli, 50 CCPA 1288, 317 F. 2d 941, 137 USPQ 797. We find nothing in those cases or in the two other cases cited in Herthel which precludes us from dealing with this point of law. In none of those cases",
"art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved only after considering the differences between the prior art and the claimed compositions chemically and in view of their pharmaceutical' properties. To do so we consider the cited references and what we believe they would teach one skilled in the art. Appellant agrees that cortisone-salicylate mixtures are anti-inflammatory agents, and that prednisone and prednisolone possess anti-inflammatory activity three to four times as great as cortisone or hydrocortisone. The disagreement revolves around interpretation of Holt et al. Appellant contends that Holt et al. do not “suggest” substitution of prednisone or prednisolone for cortisone, since their data áre “inconclusive” and warn of “toxic complications.” Further appellant argues that one skilled in the art, upon finding that prednisone and prednisolone possess enhanced potency without increased side effects, would cease looking for better anti-inflammatory agents. We do not agree with appellant’s interpretation of Holt et al., pertinent portions of which state (all emphasis onrs) : When planning this new study [including combined salicylate-cortisone therapy] we could find no report of combined treatment of this kind. We expected to reach",
"with undeveloped areas is at least partially completed prior to substantial permeation and development of the next inner emulsion layer by said liquid composition. In allowing it, the board pointed out that it is limited to control of diffusibility by layerwise permeation, which, the board said, “the art of reocrd * * * does not suggest * * As appellants’ brief correctly points out, the issues require an adjudication of the obviousness of each of the 30 appealed claims in view of the prior art but before we can do this we have to deal with Point 2 of that brief raising questions as to whether some of the references underlying the rejection are, in law, available as prior art. This question, as argued, falls into two parts. What References are “Prior Art” — Part I This first aspect of the question involves the issue recently before the United States Supreme Court in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ, 429 (1965). The Land, Rogers ’606, and Yutzy patents were all copending with the application on appeal. The statutory ground of rejection involved in this question is 35 USC 103 obviousness. Though appellants concede such references are “prior art” under section 102, they raised the old question whether, in view of the unavailability of the contents of pending applications under 35 USC 122, the patents issuing thereon are available as prior art to show obviousness under section 103, as of their filmg dates in the United States. See 35 USC 102(e). Appellants held this question open in their brief, filed May 7, 1965, because Haz<ine was then pending before the Supreme Court. December 8, 1965, the point was decided adversely to appellants. Patents otherwise available as references may be used singly or combined as of their U.S. filing dates to support section 103 rejections though copending with the application at bar. We so held in In re Harry, 51 CCPA 1541, 333 F. 2d 920, 142 USPQ 164 (1964). With respect to this case, that makes Yutzy clearly available as a reference, no other question being raised",
"family forms a homologous series, the constant difference between successive members being one carbon atom and two hydrogen atoms, e. g., CH4 (methane), C2H5 (ethane), etc. See notes 9-10 supra, for definitions of analogs and isomers. . See E. I. DuPont de Nemours & Co. v. Ladd, 117 U.S.App.D.C. 246, 328 F.2d 547 (1964); Parker v. Marzall, 92 F. Supp. 736 (D.D.C.1950); Application of Papesch, 315 F.2d 381, 50 CCPA 1084 (1963). . See, e. g., Application of Lohr, 317 F.2d 388, 50 CCPA 1274 (1963). . For recent discussion see Application of McLamore, 379 F.2d 985, 989-990 (C.C.P.A.1967); Application of Wagner, 371 F.2d 877 (C.C.P.A.1967); Application of Lunsford, 357 F.2d 380 (C.C.P.A.1966). . See Western, Is 35 U.S.C. § 103 Applicable to Chemical Compounds? 8 Idea 443 (1964); Note, 32 Geo.Wash. L.Rev. 429 (1963). . The Commissioner's position, here paraphrases the Board of Patent Appeals in Papeseh: Such proof of advantages is not seen to occupy a different relationship than proof of commercial success or of the “filling of a long-felt want” often considered as sufficient to establish patentability in cases where some doubt of unobviousness exists, but which have been consistently held as insufficient alone to override the holding of unpatentability in a clear case of obviousness. Papesch, supra, 315 F.2d at 386 (emphasis by court). It was rejected by the Papeseh court. It may well be true that in the field of chemistry, the discovery of useful properties will be the factor primarily responsible for commercial success or a solution to a long felt need, but that alone does not make it a secondary factor. . As was stated at a recent seminar on pharmaceutical invention, [t]ake away the concept of molecular modification and very few of our most outstanding drugs would be available today. Thus, the difference between morphine and codeine is a methyl group; between 11 desoxycorticosterone, which does nothing for humans, and cortisone, which does everything, is one oxygen atom. Seminar, Pharmaceutical Invention, 47 J. Pat.Oi'V.Soc’y 648, 682 (1965). . We are not unmindful that we are dealing in the area commonly referred to",
"“Salcort” combination. Since it is known thlat the steroids employed by appellant have the same effect as cortisone, except for being more potent,, it appears to us that it would be- obvious-to at least try -to substitute those steroids for cortisone in. combinations in which cortisone had been employed such as in the “Salcort” composition. The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art. See In re Libby, 45 CCPA 944; 1958 C.D. 324; 118 USPQ 94; 733 O.G. 294 ; 255 Fed. (2d) 412; and In re Gauerke, 1937 C.D. 119; 475 O.G. 3; 24 CCPA 725; 86 Fed. (2d) 330. We do not consider the contentions relative to the fact that Holt et al. did not employ controls or that the results there may have been considered somewhat uncertain material to our conclusion. Obviousness does not require absolute predictability. In re Moreton, 771 O.G. 621; 48 CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic",
"compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior art.” The solicitor states, “Whether the art recognized that the claimed combination ‘might demonstrate concert of action of its elements in the significant area of lessened adrenal atrophy’ is immaterial, since the sole issue in this appeal is whether it would have been obvious to substitute prednisone or pred-nisolone for cortisone in the combination of Salcort or Holt, and not whether it would be obvious that such substitution would produce lessened adrenal atrophy.” We do not entirely agree with this framing of the issue. This court has frequently stated that properties of chemical compounds must be considered in determining obviousness under 35 U.S.C. 103. In re Lambooy, 49 CCPA 985, 300 F. 2d 950, 133 USPQ 270; In re Petering and Fall, 49 CCPA 993, 301 F. 2d 676, 113 USPQ 275; In re Papesch, 50 CCPA 1084, 315 F. 2d 381, 137 USPQ 42. We think this also applies to such compositions as we have here, i.e., admixtures of two or more compounds. Therefore, the issue of obviousness in this case can be resolved",
"CCPA 928; 288 Fed (2d) 940; 129 USPQ 288. Further, the examiner had previously stated in his answer, The showings of record attempting to establish synergism in the claimed compositions are conceded to show improved results over the “Salcort” composition or Holt et al. combination therapy. * * * It is not believed that the issue here turns on the ability of an investigator to predict that the particular claimed steroids will be ’operable to give the improved result, 'but rather whether there is any reason to suppose that such steroids, generally, accepted in the art as being themselves improvements over cortisone acetate, would not be suitable. Applicant has not advanced any reason or presented any evidence that the prior art taught against prednisone or prednisolone in lieu of the cortisone of the “Sal-cort” or Holt et al. references. Therefore it would be expected that where the later available analogs of cortisone are known to be many times more physiologically active and otherwise to be preferred for lack of side effects over cortisone, that antirheumatic compositions containing said later available analogs would also be more active and have greater acceptability. Appellant argues that the Patent Office position is based on oversimplification of the problem of finding new anti-inflammatory agents with minimal side effects; that the mere existence of salicylate-cortisone tablets does not suggest substituting for cortisone the later-discovered more potent cortisone derivatives, prednisone and prednisolone; and that synergism attained by the new composition is unexpected. We affirm the rejection, however, since we believe the subject matter of the invention considered as a whole would have been obvious to one skilled in the art at the time the invention was made. But we do so on a rationale somewhat different from that of the Patent Office. Both the board and the solicitor consider the fact of superior pharmaceutical properties immaterial to determining obviousness. The board states, “The fact that the claimed composition produced certain heretofore undisclosed advantages does not, in our opinion, render the claims patentable. Since it is our view that the claimed combination is clearly taught by the prior",
"the chemical reaction to take place. Those familiar with spray drying know that dry products can be obtained even though a large amount of water may be present with the material to be dried. Appellant urges that his product does not have much sulfate as a contaminant. Though not mentioned by Friedrich et al., this seems to be merely an additional characteristic inherent in their process, In re Arnold et al., 50 CCPA 1166, 1963 C.D. 400, 794 O.G. 502, 315 F. (2d) 951, 137 USPQ 330. [Emphasis ours.] The board’s reference to “spray drying” appears to have been injected as something of which it was taking judicial notice, without having been mentioned in any reference of record. While Aydelotte et al. and Haywood both disclose spraying of some sort, neither spray dries. While we have heard of spray drying, it is not a technique of which we would feel free to take judicial notice. We are of the opinion that if the Patent Office wishes to rely on what “Those familiar with spray drying would know,” it must produce some reference showing what such knowledge consists of. So far as we can see, appellants do spray and their sprayed solution is dried. We are unable to find, however, any indication in the references that such a step would have the effect which appellants sought and found, namely, a reduction of the undesirable oxidation of sulfite to sulfate in an old reaction tending to produce sulfate when the reactant gas contained large amounts of oxygen. The board apparently thought that the minimizing of sulfate production would be mherent in the process of Friedrich et al. However, this is no support for a rejection for various reasons. Fried-rich et al. make no mention of it, as the board conceded. Their process is not appellants’ process. It is a reaction between solid, powered material and gas, the only water present being chemically combined water and hygroscopic water; appellants react sprayed solution and gas. As we pointed out in In re Adams, 53 CCPA 996, 356 F. 2d 998, 148 USPQ 742, the"
] |
King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; REDACTED Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an
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[
"This second judgment was affirmed on appeal. In re S. R. A., Inc., 219 Minn. 493, 18 N. W. 2d 442. Certiorari was sought under § 237 (b) of the Judicial Code.- It was granted because of the importance and uncertainty of the question of the right of a State to tax realty sold by the United States in possession of a buyer from the Government under a contract of sale with uncompleted conditions for execution and delivery of the muniments of title. 326 U. S. 703. The supremacy of the Federal Government in our Union forbids the acknowledgment of the power of any State to tax property of the United States against its will. Under an implied constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters. M’Culloch v. Maryland, 4 Wheat. 316, 425, et seq.; Van Brocklin v. Tennessee, 117 U. S. 151, 177; United States v. Allegheny County, 322 U. S. 174, 176-77. This postulate, as a matter of federal law, forces final decision of the validity of claimed exemptions under this immunity upon this Court. United States v. Allegheny County, supra, 183, and cases cited. The impact of state taxation on federal operations may be so close and threatening as to compel judicial intervention to declare the state tax invalid, as in the M’Culloch case, or so remote and incidental as to justify a federal court in refusing to relieve a taxpayer from a state tax. Alabama v. King & Boozer, 314 U. S. 1. The Ijne of taxability is somewhat irregular and has varied through the years.* * The right of a State to tax realty directly depends primarily upon its territorial jurisdiction over the area. The realty of petitioner had been conveyed to and used by the United States for the essential governmental activities which authorized the exercise of its exclusive legislative jurisdiction.' Exclusive legislative power is in essence complete sovereignty. That is, not only is the federal property immune from taxation because of the supremacy of the Federal Government but state laws, not adopted directly"
] |
[
"p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of",
"to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to one tract, case No. 38 at 516, the existence of the grant to Joaquin Sedillo was not shown except by a statement of January 11, 1734, that the tract conveyed “was acquired by his [affiant’s] father in part by grant in the name of His Majesty [The King of Spain] . . .” P. 514. In referring to the recognition of title in the private owners, this Court said, at 520: “Succeeding to the power and obligations of those Governments, must the United States do so? This is insisted by their counsel, and yet they have felt and expressed the equities which arise from the circumstances of the case. Whence arise those equities? That which establishes them may establish title. Upon a long and uninterrupted possession, the law bases presumptions as sufficient for legal judgment, in the absence of rebutting circumstances, as formal instruments, or records, or articulate testimony. Not that formal instruments or records are unnecessary, but it will be presumed that they once existed and have been lost. The inquiry then recurs, do",
"construe that law for themselves. The federal courts cannot be foreclosed by determinations of the Hawaiian law by the Hawaiian courts. They will lean heavily upon the Hawaiian decisions as to the Hawaiian law but they are not bound to follow those decisions where a claimed title to public lands of the United States is involved. The roots of respondents’ claim spring from Hawaiian law. As their claim to Palmyra continued after the United States acquired in 1898 whatever rights Hawaii then had, the validity of respondents’ claim must be judged, also, in the light of the public land law of the United States. The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. The doctrine first appeared in the field of incorporeal hereditaments but has been extended to realty. The rule applies to claims to land held adversely to the sovereign. The case from this Court most often cited is United States v. Chaves, 159 U. S. 452. In that case, there was evidence of the prior existence of the lost grant. The title of the claimants was upheld but this Court then stated, at p. 464, conformably to Fletcher v. Fuller, supra: “Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.” See United States v. Pendell, 185 U. S. 189, 200-201. A few years later, in United States v. Chavez, 175 U. S. 509, the problem of the lost grant again arose. In this case, as to",
"430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; S. R. A., Inc. v. Minnesota, 327 U. S. 558, 564. Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages",
"to establish a probability of the fact that in reality a grant was ever issued. It will afford a sufficient ground for the presumption to show that, by legal possibility, a grant might have been issued. And this appearing, it may be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.’ ” These principles were affirmed as applicable to grants of the kind we are considering in United States v. Chaves, 159 U. S. 452. Mr. Justice Shiras, speaking for the court, said: “ \"Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and",
"opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate.” Clark v. Graham, 6 Wheat. 577, 5 L. Ed. 334; Kerr v. Moon, 9 Wheat. 565, 570, 6 L. Ed. 161; McCormick v. Sullivant, 10 Wheat. 192, 202, 6 L. Ed. 300; Taylor v. Benham, 5 How. 233, 273, 12 L. Ed. 130; McGoon v. Scales, 9 Wall. 23,19 L. Ed. 545; Burbank v. Conrad, 96 U. S. 291, 298, 24 L. Ed. 731; Brine v. Insurance Co., 96 U. S. 627, 639, 24 L. Ed. 858; Schley v. Pullman Car Co., 7 S. Ct. 730, 120 U. S. 575, 580, 30 L. Ed. 789; Langdon v. Sherwood, 8 S. Ct. 429, 124 U. S. 74, 81, 31 L. Ed. 344; DeVaughn v. Hutchinson, 17 S. Ct. 461, 165 U. S. 566, 570, 41 L. Ed. 827; Clarke v. Clarke, 20 S. Ct. 873, 178 U. S. 186, 191, 44 L. Ed. 1028; Olmsted v. Olmsted, 30 S. Ct. 292, 216 U. S. 386, 393, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292; Munday v. Wisconsin Trust Co., 40 S. Ct. 365, 252 U. S. 499, 503, 64 L. Ed. 684. This is not only the law of the federal courts, but of the state courts as well, and it is our understanding that it is the law of all countries. This court had occasion to apply the rule in Hotel Woodward v. Ford, 258 F. 322, 169 C. C. A. 338. In Wharton on Conflict of Laws (3d Ed.) vol. 2, c. 7, the writer states that, under the Homan law, the English common law, and that of the United States, real estate in all jurisdictions and by an uninterrupted current of authority is held subject to the lex rei sit®. A “lease,” strictly speaking, as Blackstone defined it, “is a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for. life, for years, or at will, but always for a less",
"actual occupancy where the character of the property does not lend itself to such use. No other private owner claims any rights in Palmyra. From the evidence of title and possession shown in this record, we cannot say that the decrees below are incorrect. Judgment affirmed. Hawaii v. Mankichi, 190 U. S. 197. Hawaii v. Mankichi, 190 U. S. 197, 216. Declaration of Rights, 1839. Act to Organize Executive Departments and Joint Resolution, April 27, 1846, Hawaii, Statute Laws, 1845-46, vol. I, pp. 99, 277. Revised Laws of Hawaii, 1905, p. 1197 et seq. Thurston v. Bishop, 7 Haw. 421, dissent, n. at 454. The domain covered by the term seems to be not only the lands declared to be the private lands of the King by the Act of June 7, 1848, but also other unassigned lands later declared by legislative authority to be Crown Lands. Rev. Laws, Hawaii, 1905, p. 1227; Act of November 14, 1890, Laws, Hawaii, 1890, c. 75; Rev. Laws, Hawaii, 1905, p. 1229. Hawaii, Statute Laws, 1845-46, vol. I, p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved. The land in dispute in this case is not one of those specifically reserved by the King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428,",
"be applied as a presumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503. Nothing, it is true, can be claimed.by prescription which owes its origin to, and can only be had by, matter of record; but lapse, of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim .could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45. The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Roman law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession. Finally, the rule of the law of nations, that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected; the express provisions to that effect contained in the treaty between Mexico and the United States; the evidence of the fact of a grant, legal under the forms of Mexican law, and of a juridical possession given thereunder, and the strong presumption growing out of an exclusive and uninterrupted possession and enjoyment of more than half a century, bring us to concur in the decree of the court below. The objection that the Atlantic and JPacifio Railroad Company, as grantee from the United States, of a part of the tract in question, was a necessary party defendant,'has not been pressed",
"uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long-continued peaceable enjoyment, accompanied by the usual acts of ownership. So, after less than forty years’ possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held that the jury were properly instructed to presume that a patent had been duly issued. In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons.” 32 Stat. 691, § 12. 1 Greenleaf, Evidence (16th Ed.), § 45a. Fletcher v. Fuller, supra, 551; United States v. Chavez, supra, 464; United States v. Chavez, supra, 520. Fletcher v. Fuller, supra, 552; Whitney v. United States, 167 U. S. 529, 546; Jover v. Insular Government, supra, 633. “OPINION BOOK Attorney General’s Department Pages 598-600 Opinion No. 18 Honolulu, T. H., Feb. 11,1905 To His Excellency Geo. R. Carter, Governor of the Territory of Hawaii, Honolulu, T. H. Sra: In answer to your request of December 15th, 1904, for an opinion as to the jurisdiction of the Territory of Hawaii over the various small guano islands to the north-west of Kauai, I would reply as follows: After a careful investigation of the records in the office of the Secretary of the Territory, formerly the Foreign Office, and from other sources of information, I find that the authority of the Territory of Hawaii over these islands is as follows: It appears in the report of J. A. King, Minister of the Interior, dated the 2nd day of June, 1894, to Sanford B. Dole, President of the Republic of Hawaii, that formal possession was taken of Necker Island by the said J. A. King, representing the Republic of Hawaii, on May 22, 1894; it also appears by that report that the government of the Hawaiian Islands had sent Captain John Paty",
"possibility a right may be acquired in any manner known to the law. 1 Greenleaf Ev. 12th ed. § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 508. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not of itself furnish a conclusive- bar to the title of the sovereign, agreeably to the maxim, nullum tempus oeeurrid regi; yet if the adverse claim could have had a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly royal grants have been thus found by the jury, after an indefinitely long-continued peaceful enjoyment-accompanied by the usual acts of ownership. 1 Green-leaf Ev. § 45. “The principle upon which this doctrine rests is one of general jurisprudence, and is recognized in the Homan law and the codes founded thereon, Best’s Principles of Evidence, § 366, and was, therefore, a feature of the Mexican law at the time of the cession.” The application of these principles to the case at bar does not need many directing words. It is contended by the Government that no juridical possession is shown under the grant to the southern portion of the tract; that there is no grant shown to Sedillo of the northern portion of the tract; that admitting both are shown there is no evidence that the title which Don Diego Borrego received ■ in 1731 was conveyed to Clemente Gutierrez, who was shown to have had the possession claiming title in 1785. To infer all these things, it is argued, is to build presumption on presumption, and carry constructive proof too far. The argument is not formidable. The instances mentioned are of the same kind as those in the cited cases, and the principle of the cases is not limited or satisfied by the presumption"
] |
amend. . The court has recounted the standards applicable to a motion for summary judgment in more detail in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); REDACTED Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards are as follows. Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time,
|
[
"1238 (8th Cir.1990). On the other hand, the Federal Rules of CM Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of CM Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon____ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b)-(c) (emphasis added); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Reliance Ins. Co. v. Shenandoah S., Inc., 81 F.3d 789, 791 (8th Cir.1996); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S. S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publ’g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most"
] |
[
"Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Summary Judgment Rule 56. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith",
"parties’ various summary judgment motions. III. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. A. Requirements Of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.",
"applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedara6pids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh",
"who were in attendance at that meeting. When Michael Bush noticed that the document had not been signed by everyone in attendance, he had asked those managers who had not signed the memorandum to do so. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Carp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards for present purposes are as follows. 1. Requirements of Rule 56 Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether",
"Nicholas indicating Kopple’s intention with regard to the letter of intent. Kopple subsequently proposed to waive the representations and warranties and to close the stock purchase in accordance with the terms and conditions of the letter of intent. Schick rejected Kopple’s proposal. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c)Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,",
"to lift more than ten pounds, to stand for extended periods of time, and that her condition was permanent. On July 30, 1997, both Mr. Bushman and Mr. Howe scheduled a meeting with Wheaton, the substance of which is in dispute. Following the meeting, Wheaton was terminated by “Messenger Printing” at the behest of Bob Howe and Larry Bushman. II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to fed. R. Civ. P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-32 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A, 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, ansivers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. fed. R. Cw. P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77",
"Sioux City, Iowa, who argued the motions, and by George F. Madsen of Marks, Madsen & Hirschbaeh, also of Sioux City, Iowa. Defendant Cummins South was represented by Christopher L. Bruns of Elderkin & Pirnie, P.L.C., in Cedar Rapids, Iowa, who argued the motions, and by Jay Frank Castle of Holt, Ney, Zatcoff & Wasserman, LLP, of Atlanta, Georgia. Defendant Mayer did not appear for the oral arguments. Following the oral arguments, the court received from the parties supplemental deposition transcripts and citations to pertinent portions of those transcripts. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R.CivP. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stihvill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (ND.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered",
"presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”), and the court will proceed accordingly. See Skyberg, 5 F.3d at 302 n.2 (where the district court has made the posture of its disposition clear, the appellate court will “treat the case as being in that posture”). This court has considered in some detail the Eighth Circuit standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. #1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a motter of law. Fed.R.Civ.P. 56(b), (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material",
"also property of the State of Iowa.” The Woodbury County Employee Handbook contains a provision that provides that employees convicted of committing criminal acts involving moral turpitude are subject to discipline. At the time of her termination, Walsted had worked for Woodbury County for more than eight years, where she had performed her job duties satisfactorily and demonstrated good work attitude and enthusiasm for her position. Since her termination, Walsted has been employed as a motel housekeeper. 113 FEDERAL SUPPLEMENT, 2d SERIES II. STANDARDS FOR SUMMARY JUDGMENT This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff’d in pertinent part, 202 F.3d 1035 (8th Cir.2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff’d, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings",
"substantial upturn. Locomotives similar to FURX 7206 are now rent-. ing for $115 a day from First Union. There is a high demand for SD40-2 locomotives at this time, and First Union is not currently storing any SD40-2 locomotives. IC & E “cherry picked” the locomotives it leased from First Union. They were considered premium units. The lease agreement required IC & E to obtain casualty insurance relating to the leased locomo tives. IC & E obtained insurance with a $1,000,000 retention. II. LEGAL ANALYSIS A. Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may,"
] |
"ERISA preemption, for as we explain, the City does not act as a market participant in offering tax abatements."" (citing Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley , 37 F.3d 945, 955 n.15 (3d Cir. 1994) ). However, other district courts in this circuit, as well as other circuit courts, have applied the exception to insulate a municipality from ERISA's preemptive reach where the municipality acts as a proprietor, rather than a regulator. See Johnson v. Rancho Santiago Cmty. Coll. Dist. , 623 F.3d 1011, 1023 (9th Cir. 2010) (""Because we conclude that the District acted as a market participant, the plaintiffs' ERISA and NLRA preemption claims fail at the threshold.""); REDACTED (citing Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. , 159 F.3d 1178, 1183 (9th Cir. 1998) ); New Castle Cty. , 144 F.Supp.3d at 639 (""[T]here can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project.""); Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders , No. 93-5636 (JBS), 1994 WL 263851, at *20 (D.N.J. Jan. 31, 1994) (concluding that plaintiffs' ERISA preemption claim failed ""because the challenged state action"
|
[
"Harbor, the state’s actions in Gould could only be understood as an “attempt to compel conformity with the NLRA” that was “unrelated to the employer’s performance of contractual obligations to the State.” Boston Harbor, 113 S.Ct. at 1197. Following the logic of Gould, courts have found preemption when government entities seek to advance general societal goals rather than narrow proprietary interests through the use of their contracting power. Thus attempts by government entities to punish labor and benefits practices they disfavor by withholding contract work have been found preempted by the NLRA and ERISA. See Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1339 (D.C.Cir.1996) (executive order that barred federal government from contracting with companies that permanently replaced striking workers was preempted by the NLRA); Air Transport Association of America v. City and County of San Francisco, 992 F.Supp. 1149, 1179 (N.D.Ca.1998) (city ordinance barring contracts with employers that did not offer domestic partner benefits to its entire workforce was preempted by ERISA — city admitted that combating discrimination was ordinance’s primary goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically"
] |
[
"In general, Congress intends to preempt only state regulation, and not actions a state takes as a market participant. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc. (“Boston Harbor”), 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Engine Mfrs., 498 F.3d at 1042. This doctrine applies to claims of NLRA and ERISA preemption. See Boston Harbor, 507 U.S. at 227, 113 S.Ct. 1190 (NLRA); Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. (“MWD ”), 159 F.3d 1178, 1182 (9th Cir.1998) (ERISA). In assessing the plaintiffs’ preemption claims, we therefore must first determine whether the District acted as a regulator or as a market participant when it entered into the PSA. Because we conclude that the District acted as a market participant, the plaintiffs’ ERISA and NLRA preemption claims fail at the threshold. In general, state action falls within the market participant exception to preemption when the state entity directly participates in the market by purchasing goods or services. See Engine Mfrs., 498 F.3d at 1040 (describing the “single inquiry” in market participant cases as “whether the challenged program constituted direct state participation in the market”). But the line between non-preempted market participation and preempted regulation is not always so clear, and a state’s direct participation in the market will not always escape preemption. If a state’s direct participation in the market is “tantamount to regulation,” the market participant doctrine will not exempt the state’s action from preemption. Wis. Dep’t of Indus., Labor & Human Relations v. Gould, 475 U.S. 282, 289, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986). Thus, in Gould, the Supreme Court held that the NLRA preempted a state law forbidding state procurement agents from using state funds to do business with companies that had repeatedly violated the NLRA, even though the law constrained only the state’s own participation in the market. Id. at 283-84, 287, 106 S.Ct. 1057. The Court explained that the state law “on its face ... serves plainly as a means of enforcing the NLRA,” and that “[n]o other purpose could",
"likewise found the market participant exception inapplicable in comparable instances where a municipality's participation in a market effected concurrent regulation of pri vale parties in that market. See, e.g. Waste Mgmt. Holdgs., Inc. v. Gilmore, 252 F.3d 316, 345 (4th Cir.2001) (finding that Virginia “was not acting as a private participant in the waste disposal market” by regulating the conduct of others in that market) (citation omitted); USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1282 (2d Cir.1995) (\"[S]tates and local governments do not enjoy carte blanche to regulate a market simply because they also participate in that market.”). . Although this line of cases involves preemption analysis under the NLRA and other federal statutes, the Supreme Court’s discussion of the market participant exception in this context relies upon and conforms with its dormant Commerce Clause jurisprudence, and is instructive. See, e.g., Engine Mfrs. Ass'n v. So. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007) (\"After the development of the market participant doctrine in [] dormant Commerce Clause cases, the Supreme Court ... [has] applied the doctrine to protect proprietary state action from preemption by various federal statutes.”); Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tx., 180 F.3d 686, 691 (5th Cir.1999) (noting that the market participant exception originating in dormant Commerce Clause analysis \"has been recognized in preemption cases”); Metro. Taxicab Bd. of Trade v. City of New York, No. 08 Civ. 7837, 2008 WL 4866021, at *7 (S.D.N.Y. Oct. 31, 2008) (\"The market participant doctrine is an extension of a principle from the Commerce Clause ... and has been extended to preemption jurisprudence”) (citing Alexandria Scrap, 426 U.S. at 810, 96 S.Ct. 2488). . In Boston Harbor, the Supreme Court found that the NLRA did not preempt a bid specification by a Massachusetts agency requiring bidders to abide by a certain labor agreement because the government was acting as a market participant, rather than regulating labor-management relations. 507 U.S. at 229, 113 S.Ct. 1190 (explaining .that preemption doctrines apply only to state regulation). The Court emphasized that the cleanup project",
"Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support the training program and the related reporting, disclosure, and fiduciary responsibilities associated therewith. See 543 F.3d at 282. Given that the Code applies to ERISA and non-ERISA plans alike, and has no directive related to the funding sources of any apprenticeship program, I conclude that plaintiff has not met its burden to demonstrate its likelihood of success on the preemption issue. C. Irreparable Harm Plaintiff argues that, in the absence of injunctive relief, its members will be irreparably harmed because they “could lose work as well as the opportunity to meaningfully compete for contracts,” and this type of injury cannot be compensated by money damages. {See D.I. 15 at 10) Defendants reason that the Code simply provides incentives to participate in an apprenticeship program, and has done so since 2007; the fact that plaintiffs members choose not to participate in such programs cannot equate to irreparable harm. Plaintiffs position is not an unreasonable one, in light of the fact that not all trades have available State-approved training programs. Nevertheless, plaintiffs argument is based more on",
"a state or municipality takes in a proprietary capacity' — actions similar to those a private entity might take' — and actions a state or municipality takes that are attempts to regulate. The former type of action is not subject to preemption while the latter is. For example, in Building & Trades Council v. Associated Builders, 507 U.S. 218, 226, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), the Supreme Court held that a labor contract was not preempted by the National Labor Relations Act because it was not “government regulation” but rather “constitute^] proprietary conduct.” Id. at 232, 113 S.Ct. at 1199. More recently, in Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686 (5th Cir.1999), we considered whether a municipal ordinance and a contract entered into pursuant to that ordinance were preempted as “law[s], regulation[s], or other provision[s] having the force and effect of law.” Id. at 691. Analyzing the contract and the ordinance in the same manner, we held that neither was preempted because both were valid exercises of proprietary power rather than impermissible attempts to regulate. See id. at 693-94; see also Associated Gen. Contractors of America v. Metropolitan Water Dist. of S. Cal., 159 F.3d 1178, 1182-83 (9th Cir.1998) (holding that labor contracts between a state entity and private groups were not “laws” because they were not efforts to regulate but rather “reflect[ed] an owner’s desire to contractually assure peace and prosperity on particular projects”). Thus, the critical inquiry here is whether the use agreements represent a valid exercise of the cities’ proprietary powers. This question is easily resolved. The use agreements are essentially coextensive with the Ordinance, indicating in their breadth an intent to achieve everything achieved by the Ordinance. Cf. Cardinal Towing, 180 F.3d at 694 (looking to the scope of the contract and the activity it covered to determine whether it represented an attempt to regulate). They were enacted to effect the Ordinance, and the most recent version of the agreements directly links the airlines’ obligations to the terms of the Ordinance: “Airline agrees that it shall conduct",
"BIE-CA concedes, “[a]n inept proprietor is still a proprietor.” Appellant Br. at 46. The allegation, even if true, does not demonstrate that the City was regulating. We find persuasive the Ninth Circuit’s reasoning in Rancho Santiago, a similar case in which nonunion contractors challenged a pre-hire construction labor agreement: The plaintiffs further contend that the [PLA] does not advance an interest in efficient procurement because it presents several downside risks while offering no benefits in terms of costs, labor availability, or timeliness for the construction. Whether the [PLA’s] benefits outweighed its costs, however, bears only on whether the District made a good business decision, not on whether it was pursuing regulatory, as opposed to proprietary, goals. We must keep in mind that congressional intent is the touchstone of our preemption analysis, Engine Mfrs., 498 F.3d at 1040, and we have no reason to think that Congress intended to allow beneficial state contracts while preempting similar contracts in which the state got a bad deal. 623 F.3d at 1025. It bears repeating that BIECA’s theory of the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved",
"a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders, 1994 WL 263851, at *11-12 (D.N.J. Jan. 31, 1994), that the crucial factor is whether the Code requirements apply to every construction project in NCC or only to NCC’s own projects. The Code applies only to NCC’s own projects and, therefore, is sufficiently tailored to NCC’s proprietary interest. I also agree with the reasoning of the Sixth Circuit in Michigan DOL, to wit, even if a disputed State or local law mandates various apprenticeship conditions for bidding, preemption is not appropriate unless those mandates fall within the area that Congress intended ERISA to control exclusively. In this regard, there is no indication of record that contradicts the logic applied in Michigan DOL, that is: (1) States have long regulated apprenticeship standards and training; (2) ERISA has nothing to say about the standards to be applied to apprenticeship training programs; and (3) what triggers ERISA’s potential application to such laws is not the existence of an apprenticeship training program, but the existence of a separate fund to support",
"goal and its terms reached well beyond interaction with the city); Van-Go Transport Co., Inc. v. New York City Board of Education, 53 F.Supp.2d 278, 288 (E.D.N.Y.) (policy of refusing to conditionally certify replacement workers that was applied to all of department’s student transport contracts was preempted under NLRA). See also Keystone Chapter Associated Builders and Contractors, Inc. v. Foley, 37 F.3d 945, 955 n. 15 (3d Cir.1994) (noting in dicta that proprietary exception could not save minimum wage rule for state contracts since private parties would not ordinarily embrace a policy that increased the cost of contracting without regard to particular circumstances). Most government contracting decisions do not constitute concealed attempts to regulate, however. In order to function, government entities must have some dealings with the market. While the leverage a state can exert through its spending power and the absence of a true profit motive to restrain government action may create a temptation to take advantage of these interactions to pursue policy goals, the presence of the state in the market cannot automatically be assumed to be motivated by a regulatory impulse. Given the volume of, and obvious need for, interaction between the government and the private sector, the application of preemption in a manner that hobbles state and local governments’ purchasing efforts threatens severe disruption. Boston Harbor recognized this reality. In Boston Harbor, the Court confronted a situation in which a state agency was under a judicial order to complete a project within a set time frame. To prevent time-consuming work stoppages, the agency agreed to employ a union workforce in exchange for a no-strike guarantee. The Court distinguished Gould and found that such proprietary action was not subject to preemption by the NLRB. It found that the agency had focused on the government’s own interests — uninterrupted completion to assure compliance with the court order — and had done so by striking the type of labor bargain a private company might have sought in similar circumstances. In contrast to the state’s admitted desire to encourage labor compliance as a general matter in Gould, the agency was",
"the case is preemption: that the PLAs are not contracts but regulations and therefore are preempted by the NLRA. It is hard to see why, even if political favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs would be thereby transformed from contracts into regulations. See Rancho Santiago, 623 F.3d at 1026 (“Plaintiffs contend that the [PLA]’s primary purpose was to reward the unions that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA’s or ERISA’s preemptive scope to turn on state officials’ subjective reasons for adopting a regulation or agreement.”). CONCLUSION “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction.” Boston Harbor, 507 U.S. at 231-32, 113 S.Ct. 1190. The PLAs challenged here represent the City’s permissible proprietary choice; the City has behaved just as any other major landowner or developer might to secure labor for many of its construction projects. Because the PLAs are market activity and not regulation, the preemption claim must fail. The judgment of the district court is therefore AFFIRMED. . Since BIECA and UECA make essentially the same arguments, in the interests of simplicity we henceforth refer to the plaintiffs-appellants collectively as BIECA, except where it is necessary to distinguish particular arguments made on behalf of UECA. . BIECA’s argument that the City PLAs are not \"narrow” because they cover many projects spanning several years misunderstands the relevant meaning of \"narrow” or \"tailored\" in this context. A contract is \"specifically tailored to one particular job” within the meaning of Boston Harbor, 507 U.S. at 232, 113 S.Ct. 1190, if it governs the parties' behavior on the specific project or projects in the contract rather than on unrelated matters to which the state might not even be a party. Extracontractual effect is an indicator of regulatory rather than proprietary intent, so a provision that",
"at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement. In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction. Id. at 231-32, 113 S.Ct. 1190. The Third Circuit, in Hotel Employees & Restaurant Employees Union v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir.2004) (“Sage”), expanded on the above principle and articulated a two-step test for determining whether a government’s condition of funding constitutes market participation that falls within the Boston Harbor exception to preemption review: First, does the challenged funding condition service to advance or preserve the state’s proprietary interest in a project or transaction, as an investor, owner, or financier? Second, is the scope of the funding condition “specifically tailored” to the propriétary interest? ... If a condition of procurement satisfies these two steps, then it reflects the government’s action as a market participant and escapes preemption review. But if the funding condition does not serve, or sweeps more broadly than a government agency’s proprietary economic interest, it must submit to review under [in this case] labor law preemption standards. Id. at 216 (citation omitted). I acknowledge that the First Circuit’s analysis in Quincy is on all fours with the facts of record, as far as it goes. The Court in Quincy, however, did not address either the market participation theory (because the defendant in Quincy failed to raise it below, see 759 F.3d at 131) or the second prong of the Michigan DOL preemption test, that is, whether the mandatory language at issue fell “within the area that Congress intended ERISA to control exclusively,” 543 F.3d at 281. With respect to the former, under Sage’s two-step test, there can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project. As to the “specifically tailored” requirement, I agree with the reasoning in Lott Constructors,"
] |
that counsel misjudged the admissibility of the confession. The second claim upon which petitioner seeks relief is the sufficiency of the evidence presented at the second degree-of-guilt trial to support a finding of murder in the first degree. Petitioner cites several Pennsylvania state court decisions which establish standards for sufficiency of evidence to sustain a conviction. We do not believe that petitioner’s cases are on point, however. Allegations of insufficient evidence in a state court trial are generally not reviewable by writ of habeas corpus. Young v. State of Ala., 443 F.2d 854 [5th Cir. 1971] ; Freeman v. Stone, 444 F.2d 113 [9th Cir. 1971]; United States ex rel Cook v. Cliff, 341 F.Supp. 1038 [E.D.Pa.1972]; REDACTED d 1211 [3rd Cir. 1972]. Only where a conviction has no evidentiary basis or is based on a gross insufficiency of evidence is it subject to collateral attack in the federal courts. Freeman v. Stone, cit. supra, and cases cited therein; United States ex rel Spears v. Rundle, 268 F. Supp. 691, 700 [E.D.Pa.1967], aff’d, 405 F.2d 1037 [3rd Cir. 1969]. We find that some evidence was presented at the second degree-of-guilt trial from which the inference of a robbery-murder might properly be drawn. See Commonwealth v. Marsh, 448 Pa. 292, 296, 293 A.2d 57, 60 [1972] where the sufficiency of the evidence to support the first degree finding is discussed. Petitioner’s final claim is that the failure of
|
[
"resulted in the inconsistencies. We are not insensitive to the anxiety suffered by relator while awaiting trial in a capital case. However, considering the record as a whole, considering the length of the delay involved, the procedural chronology of the case, its complexity, and all the attendant circumstances, the Commonwealth acted as expeditiously as could reasonably be expected. Relator all during this time was represented by skilled and experienced counsel who competently and thoroughly explored every avenue of defense available to relator. There was no loss or destruction of evidence in this ease as appears in others which would have impaired relator’s ability to present an adequate defense. Considering the anxiety suffered by relator and the alleged prejudicial effects of the delays, when balanced against the reasons for the delays, their source, and the rights of public justice, the balance, we believe, is weighed against relator. We therefore, reject relator’s contention that he was denied the constitutional right to a speedy trial. Relator’s contention that the evidence was insufficient to sustain a conviction is without merit. A Federal Court may overturn a State conviction only where there is no evidence to support the verdict. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When the record establishes a basis for the conviction, it is not our province to review the sufficiency of the evidence or to substitute our judgment for that of the jury. United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3rd Cir. 1968), cert. denied 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Without more, there is testimony in the record which demonstrates relator’s direct participation in the rape of Natalie Tuchar and aiding and abetting his co-defendants during the course of the crimes committed. The evidence also is sufficient to meet the requirements of the Pennsylvania Felony Murder Rule, Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962) cert. denied 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed. 2d 87 (1963). We find relator’s remaining"
] |
[
"that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habeas corpus. Our inquiry, based upon the records before the court, is one which only considers whether there was any evidence to support the verdict, not the sufficiency of such evidence. The district court in United States ex rel. Simmons v. Commonwealth of Pa., 292 F.Supp 830, 833 (1968) said: * * * [T]he cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (C.A. 4, 1964). To permit a federal court acting upon a petition for a writ of habeas corpus to inquire further than this into allegations challenging the sufficiency of the evidence presented at the state criminal trial, would be to improperly convert the federal court into a substitute for a state appellate court. See, e. g. United States ex rel. Bower v. Banmiller, 232 F.Supp. 627, 628-629 (E.D.Pa., 1964). This court has followed this procedure in Wheeler v. Peyton, 287 F.Supp. 930, 931 (W.D.Va., 1968) and Cooper v. Peyton, 295 F.Supp. 21, 23 (W.D.Va., 1968). Also, the Fourth Circuit Court of Appeals in Grundler v. North Carolina, 283 F.2d 798, 802 (1960) expressed a similar concept. * * * [Njormally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials, are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus is not to serve as an additional appeal. In light of the above, the court concludes that the record amply demonstrates that",
"that Petitioner was guilty of first degree murder beyond a reasonable doubt. Petitioner next asserts that the evidence presented at trial was insufficient to support his convictions for robbery and murder nor was it sufficient to sustain the jury’s finding of the sole aggravating circumstance (i.e. murder in the course of robbery) supporting the death penalty. A claim of insufficiency of the evidence places a very heavy burden on the party seeking to challenge a verdict. United States v. Cooper, 121 F.3d 130, 133 (3rd Cir.1997). In evaluating the sufficiency of the evidence to sustain a conviction, the evidence at trial is considered in the light most favorable to the government. U.S. v. Veksler, 62 F.3d 544, 551 (3rd Cir.1995). It is not for a reviewing court to weigh the evidence or to determine the credibility of witnesses; the verdict of a jury must be sustained if there is substantial evidence to support it. U.S. v. Schramm, 75 F.3d 156, 159 (3rd Cir.1996), quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). A verdict will only be overturned if no reasonable juror could accept the conclusion of the defendant’s guilt beyond a reasonable doubt. Id. In application of the foregoing to the case at hand, we find that, in light of the instances of prosecuto-rial misconduct, trial counsel ineffectiveness and trial error, we cannot now find from the evidence properly admitted of record that the jury’s findings that Petitioner was guilty of the robbery of John Smith and of murdering him in the course of that robbery are supported by sufficient evidence. So saying, we would grant Petitioner habeas relief on this ground also. 7. Petitioner is entitled to habeas relief because the Commonwealth failed to provide his counsel with exculpatory material under Brady v. Maryland, failed to give adequate notice of its intention to seek the death penalty and because the death penalty was not proportionate in this case. Petitioner finally argues that his constitutional rights were violated entitling him to the issuance of a writ of habeas corpus by virtue",
"be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Only where the charge against a defendant is totally devoid of evidentiary support is his conviction unconstitutional under the due process clause of the fourteenth amendment. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Consequently, federal habeas relief under § 2254 is available to the state prisoner on the ground of insufficiency of the evidence only if there is no evidence whatever supporting conviction. It is also fundamental that federal courts possess only limited authority to consider state court evidentiary rulings in a habeas proceeding by a state prisoner. As Judge Webster, now a member of this court, observed in Parker v. Swenson, 332 F.Supp. 1225, 1229 (E.D.Mo.1971), aff’d, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973): This court will not review the wisdom of evidence rulings on petition of writ of habeas corpus. It will limit the scope of its inquiry to an examination of whether federally guaranteed rights have been violated. [Citations omitted.] Only where admission of evidence is so prejudicial as to constitute a denial of due process will federal courts intervene in state proceedings on petition for writ of habeas corpus. [Citations omitted.] Introduction at trial of evidence of prior crimes is a matter of state evidentiary law and thus will ordinarily not be subject to review in federal habeas corpus proceedings. The thrust of petitioner’s attack upon the sufficiency of the evidence is that no witness placed him at the scene of the Algona robbery and murder. Petitioner therefore asserts that there was no evidence, either direct or",
"only-attempt at collateral attack in the state court has been his petition for a writ of habeas corpus in the forum of his custody rather than through the post-conviction statute in the forum of his sentence. We think this interpretation a sound one and avoids any unnecessary collision with the questionable dicta found in State v. Reichel, supra. Judge Urbom has written an authoritative and soundly reasoned opinion rejecting the petitioner’s jurisdictional claim. We adopt his reasoning and affirm the denial to this claim. See Robinson v. Wolff, 349 F.Supp. 514 (D.C.Neb.1972). We likewise reaffirm his finding that the state record was not void of sufficient evidence to convict the petitioner of the first degree murder as charged. No. 72-1390 Subsequent to the district court’s dismissal, petitioner filed another habeas corpus petition. In this petition Robinson alleges that he is claiming a broader basis of attack than he argued in his original petition. He now asserts that there was insufficient evidence proved to sustain a conviction for any crime and that the trial court erred in failing to sustain a motion for acquittal. Judge Urbom dismissed this petition as being premised on the same ground raised in the first petition. In disposing of the claim in his first opinion the district judge limited his discussion to whether there was sufficient poof of premeditation to sustain a conviction of first degree murder. The court’s finding that there was sufficient proof to sustain a conviction for first degree murder adequately covers the alleged new ground of the second complaint. We do not understand Thompson v. The City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), relied upon by the petitioner, to justify federal review of a state court record to ascertain whether there exists sufficient evidence to make a prima facie case for a jury. The question of sufficiency of evidence depends upon state law and not the federal constitution. See Faust v. State of North Carolina, 307 F.2d 869 (4 Cir. 1962). The principle announced in the Thompson decision relates to a ease where the record is",
"a challenge to the sufficiency of the evidence to support a conviction are well established. We are to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See United States v. Skowronski, 968 F.2d at 247; United States v. Parker, 903 F.2d at 97; United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Gordon has not carried that burden with respect to either the conspiracy count or the substantive counts. In",
"erroneously or incorrectly.” Id. at 1522(Scalia, J. concurring). III. DISCUSSION I. Petitioner was denied due process of law by the denial of his motion for directed verdict on the charge of first degree murder and his conviction of second degree murder based on insufficient evidence. Petitioner first claims that there was insufficient evidence of premeditation and deliberation to submit the original first degree murder charge to the jury. Petitioner alleges that the trial court therefore erred in denying his motion for directed verdict. Petitioner further alleges that there was insufficient evidence to convict him of the crime of second degree murder. A. Standard of Review. A habeas court, “reviews claims that the evidence at trial was insufficient for a conviction by asking ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.2000); cert. den. 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000) (citing to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court’s application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F.Supp.2d 615, 632 (E.D.Mich.2000) (citations omitted). B. The individual claims. 1.The failure to direct a verdict on the first degree murder charge. Petitioner first claims that the trial court erred in denying his motion for a directed verdict and permitting the first degree murder charge to be submitted to the jury for their consideration. However, petitioner was convicted at trial of the lesser included offense of second degree murder and therefore acquitted of the higher first degree murder charge. The submission to a jury of a criminal charge constitutes harmless error where the habeas petitioner is acquitted of that charge. Daniels v. Burke, 83 F.3d 760, 765 fn. 4 (6th Cir.1996) (internal citations omitted). ■ Moreover, there was sufficient evidence of premeditation and deliberation to",
"implicate a federal constitutional right and is not subject to review in a habeas proceeding. See Schacks v. Tessmer, No. 00-1062, 2001 WL 523533, *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state court determination that second-degree murder conviction rendered bind-over sufficiency of the evidence challenge moot). Habeas relief is not warranted on this claim. E. Prosecutorial Misconduct/Admission of Alias Testimony Petitioner next asserts that he is entitled to habeas relief because the prosecutor erred by introducing evidence that Petitioner used an alias while living in Florida after fleeing Michigan. The United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). When addressing a claims of prosecutorial misconduct, the court must first determine whether the challenged statements were indeed improper. See United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). Upon a finding of such impropriety, the court must then “look to see if they were flagrant and warrant reversal.” Id. Flagrancy is determined by an examination of four factors: 1) whether the statements tended to mislead the jury or prejudice the accused; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused. See Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000) (citing Francis, 170 F.3d at 549-50); Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997). “[T]o constitute the denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and persistent that it permeates the entire atmosphere of the trial,’ or ‘so gross as probably to prejudice the defendant.’” Pritchett, 117 F.3d at 964 (citations omitted). In",
"“cause and prejudice” for his default and, thus, the claim is procedurally barred. However, to complete the record, on the merits, the claim is denied. The petitioner argues that “[a] review of the trial transcript would reveal that there was an insufficient quantum of evidence to support Mr. Rustici’s conviction on” the charge of Second Degree Murder on a theory of depraved indifference to human life. As with other grounds for relief raised in this petition, a petitioner who challenges the sufficiency of the evidence supporting his conviction “bears a heavy burden.” United States v. Griffith, 284 F.3d 338, 348 (2d Cir.2002) (citing United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001)). To obtain habeas corpus relief, the Court must find that, when viewing the evidence most favorably to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. Farrington v. Senkowski 214 F.3d 237, 240-41 (2d Cir.2000) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addition, the Court must defer to the jury’s determination of the weight given to conflicting evidence, witness credibility, and inferences drawn from the evidence. United States v. Vasquez, 267 F.3d 79, 90-91 (2d Cir.2001) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998)). A guilty verdict may not be disturbed if the jury has resolved these issues in a reasonable manner. See id. The Court’s “inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). A federal habeas court must “credit every inference that could have been drawn in the state’s favor ... whether the evidence being reviewed is direct or circumstantial.” Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.1988). Applying the above standard, the Court finds that the evidence amply supports the petitioner’s Second Degree Murder conviction. As",
"Apparently for this reason, a copy of the charge is not part of the record before this Court. . Allen v. Perini, 424 F.2d 134, 138 (6th Cir., 1970) ; accord, United States ex rel. Gallagher v. Brierley, 286 F.Supp. 773, 774 (E.D.Pa.1968). See also, Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970). That the burden of sustaining the admissibility of challenged evidence lies with the Government once the primary illegality has been established at a suppression hearing or trial, see, 3 G. Wright, Federal Practice and Procedure, Criminal § 677 at 138 (1969), is not significant here, since the isue in a habeas corpus case is- not whether the evidence passes muster when measured against the appropriate evidentiary rule. Habeas corpus in the federal courts is a remedy grounded on a federal statute, 28 U.S.C. § 2254 (Supp. V 1970), for relief from violations of the Constitution of the United States. Some federal courts look to state law to determine the party who must carry the burden. See e. g., Webb v. Beto, 415 F.2d 433, 436 (5th Cir. 1969), cert, denied, 396 U.S. 1019, 90 S.Ct. 587, 24 L.Ed.2d 511 (1970). However, even if Pennsylvania law does control such aspect of this federal habeas corpus action, Pennsylvania also places the burden of proof on the habeas petitioner. Commonwealth ex rel. Harbold v. Myers, 427 Pa. 117, 233 A.2d 261 (1967) (because Escobedo is not retroactive, a prisoner alleging coercion must demonstrate confessions were involuntary) ; Commonwealth ex rel. Storeh v. Maroney, 416 Pa. 55, 204 A.2d 263 (1964) (petitioner must show violation of constitutional rights). Also, the burden of proof does not shift merely because the petitioner is challenging the voluntariness of his confession. United States ex rel. Sabella v. Follette, 432 F.2d 572, 575 (2d Cir. 1970) ; Jones v. Russell, 396 F.2d 797 (6th Cir. 1968). . Counsel for petitioner has cited to us footnote 8 of WMteley, supra, which states that “an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the af-fiant when he sought the warrant but not",
"AINSWORTH, Circuit Judge: Appellant, an Alabama state prisoner, appeals from the District Court’s denial of habeas relief to set aside a 1966 conviction for second-degree murder. This is the second time the matter is before us. Following an unsuccessful appeal by Young to the Alabama Supreme Court, Young v. State, 283 Ala. 676, 220 So.2d 843 (1969), which considered and rejected all of the claims which appellant presents here, he sought habeas relief in the District Court which denied the writ. We remanded for considera-' tion on the merits because of the District Court’s erroneous conclusion that appellant had not exhausted his state remedies. Young v. State of Alabama, 5 Cir., 1970, 427 F.2d 177. On remand the District Court conducted a hearing and denied the relief sought. We affirm. In his habeas petition, appellant asserted as grounds for his release the following: 1. Improper jury instructions; 2. Insufficiency of the evidence; and 3. Unconstitutionality of an Alabama state statute [Title 30, Section 97(1) (1958)] under which the jury was allowed to separate and disperse overnight during the course of his trial. In denying the writ, the District Court made no findings relative to the first two claims asserted by petitioner. Young, on appeal, reasserts all of the alleged violations and additionally contends that the court erred in failing to make findings of fact on the issues of improper jury instructions and insufficiency of the evidence. Unless there is a clear showing that the errors complained of were so gross or the trial was so fundamentally unfair, habeas corpus will not lie to set aside a conviction on the basis of improper instructions, McDonald v. Sheriff of Palm Beach County, Florida, 5 Cir., 1970, 422 F.2d 839; Murphy v. Beto, 5 Cir., 1969, 416 F.2d 98; Gomez v. Beto, 5 Cir., 1968, 402 F.2d 766. Nor is alleged insufficiency of evidence reviewable by habeas corpus in federal courts. Summerville v. Cook, 5 Cir., 1971, 438 F.2d 1196; Fulford v. Dutton, 5 Cir., 1967, 380 F.2d 16. These alleged violations were presented to the Alabama Supreme Court and found to be"
] |
not be imposed on a municipality under § 1983. Id. at 691-92, 98 S.Ct. at 2036. The Supreme Court did not address directly whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. But numerous lower courts, including the Fourth Circuit, have understandably relied on Monell in holding that a corporate employer may not be made vicariously liable under § 1983. See Iskander v. Village of Forest Park, 690 F.2d 126, 130 (7th Cir.1982) (private store not vicariously liable under § 1983 for acts of its employees); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (same); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (same); REDACTED Nor is there any doubt that this sensible principle applies where, as here, the corporate employer is a hospital. See Temple v. Albert, 719 F.Supp. 265, 268 (S.D.N.Y.1989) (private hospital not vicariously liable under § 1983 for acts of its employees); Mitchell, 756 F.Supp. at 249 n. 9 (same). The record at bar shows that no actions by “employees” of the Hospital are alleged to have violated plaintiffs rights. Defendant Mathis is associated by contract with the Haymarket Correctional Facility, not with Prince William Hospital; the physicians who treated Mcllwain at the Hospital were private contractors, not employees of the Hospital. Even putting this aside, however, the factual record shows that the Hospital had no policy requiring the testing of
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[
"were “reasonable grounds to believe” that the offense was being committed. The statute relied on is not sufficient to bridge the gap between private and State action. Security employees are not thereby made State officers nor are they granted the authority to detain suspected shoplifters. Rather, the statute permits the assertion of a defense to certain causes of action founded upon State law. This “shopkeepers’ privilege” is insufficient to transform defendants’ conduct into acts under color of State law and to vest a federal court with jurisdiction over the subject matter. See Battle v. Dayton-Hudson Corp., 399 F.Supp. 900 (D.Minn.1975); Weyandt v. Mason’s Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968). Plaintiffs have failed to allege concerted activity with State officials which might make the security officers liable if they had been “willful participant^] in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). With respect to defendant Gimbels, the action is also dismissed on the ground that vicarious liability may not be imposed under § 1983. Draeger v. Grand Central, Inc., 504 F.2d 142 (10 Cir. 1974). Accordingly, defendants’ motion to dismiss the complaint is granted. SO ORDERED. . Jurisdiction is said to be conferred under 28 U.S.C. § 1343. All parties being residents of New York, there is no diversity jurisdiction under 28 U.S.C. § 1332. . DeCarlo v. Joseph Horne & Co., 251 F.Supp. 935 (W.D.Pa.1966), is not to the contrary. There the district court held that a State statute granted a store detective authority to make a legal arrest, not present at common law."
] |
[
"the Supreme Court has not directly said whether Monell applies to private corporations, and there are powerful reasons to say no. Yet we and all other circuits that have considered the question have said yes. Why? It’s not easy to say. Our opinion in Iskander and virtually all of the circuit opinions after Monell simply cite one or more prior cases that all seem to trace back to the terse Fourth Circuit opinion in Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982). The relevant portion of that opinion said in full: In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be' liable the statute demands of the plaintiff proof that the former “caused” the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. 2018. Continuing, the Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. 2018. No element of the Court’s ratio decidendi lends support for distinguishing the case of a private corporation. 678 F.2d at 506. There are good reasons to question the Powell conclusion. It overlooked the fact that Monell was focused on the Sherman Amendment, which would have imposed liability for mere failure to prevent harm caused by private citizens, not employees controlled by an employer. It also overlooked the fact that respondeat superior liability was already a well established part of the common law in 1871, so Congress could reasonably have expected the courts to apply the doctrine under § 1988. Perhaps most important, the Powell opinion simply overlooked the Monell Court’s special solicitude for municipalities and their budgets. These omissions counsel against",
"The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). We believe the same holds true for Charter: the hospital cannot be faulted for the conduct of its employees. Even if Mrs. Harvey could attribute liability to Charter directly and not vicariously, she is unable to state a claim for section 1983 relief. A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Taking the factual allegations of Mrs. Harvey’s complaint as true, which we must do when reviewing motions to dismiss, Walker Process Equip, v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), we see a",
"of municipal liability. In Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governmental bodies constitute “persons” within the meaning of § 1983, see id. at 688-89, 98 S.Ct. 2018. The Court, however, has consistently refused to impose § 1983 liability upon a municipality under a theory of respondeat superior. See Board of the County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Rather, under Monell and its progeny, a municipality is subject to § 1983 liability only when “it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999) (emphasis added). We have determined that “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual poli-cymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Id. (internal citations omitted). Municipal custom, on the other hand, may arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable",
"Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (Monell’s rationale extends to private businesses even though Monell itself dealt with municipal employers); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (private corporation may not be held vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (nothing in Mo-nell suggests that municipal immunity should not be extended to a private corporation acting pursuant to § .1983). However, courts decided these cases before Wyatt. The Supreme Court articulated two “mutually dependent rationales” in support of Mo-nell-type immunity. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). First, “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.” Second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” Id. In Sala v. County of Suffolk, the Second Circuit cogently explained the two rationales as follows: The first of these [rationales] is in large part peculiar to the context of individual official immunity [i.e., qualified immunity for individual officers]. The sense of injustice felt at the prospect of holding an individual officer liable in damages when he acted reasonably and in good faith is greatly diminished when the liability is to be affixed to a municipality, even if its responsible officials acted reasonably in the light of the then-existing law. Although “we are not insensitive to the financial plight of local governmental bodies” and wish to avoid “needlessly expanding] recovery at the expense of already overburdened taxpayers,” Turpin v. Mailet, [579 F.2d 152, 165 (2d Cir.) vacated on other grounds, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) ], “fiscal considerations alone cannot stand in the way of the vindication of constitutional rights.” Id. at 165 n. 38. But, the second rationale discussed in Scheuer [v. Rhodes, 416 U.S. 232, 94",
"U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed. 2d 611 (1978); (2) corporate defendants similarly are not vicariously liable under § 1983, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432-33 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985) (cert. petition of private defendant T.G. & Y. Stores); (3) municipal defendants in § 1983 claims receive no qualified immunity defense, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); and therefore corporate defendants to § 1983 suits likewise should not be able to claim qualified immunity. The basic premise underlying DeVargas’ argument is that because the courts have extended the principle that municipalities are not vicariously liable under § 1983 to include corporate defendants, we should similarly extend the rule that municipalities are not entitled to qualified immunity to private corporations. We reject this premise. The issue of whether parties should be held vicariously liable is completely distinct from whether parties should be entitled to qualified immunity. The Supreme Court’s holding in Monell was based on congressional intent that § 1983 liability not be imposed vicariously. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036. Although Monell addressed only the liability of municipalities, the rationale of its holding applies equally to corporate defendants. Lusby, 749 F.2d at 1433; Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982). In the area of § 1983 immunities, the critical distinction is not between employer and individual defendants, but between defendants that are governmental bodies and other defendants. “[Different considerations come into play when governmental rather than personal liability is threatened.” Owen, 445 U.S. at 653 n. 37, 100 S.Ct. at 1416 n. 37. When the Court has addressed immunity of government actors who may be personally liable, it has made it clear that immunity in some form is the norm. See Harlow, 457 U.S. at 818 & n. 30, 102 S.Ct. at 2738 & n. 30. Similarly, we have just held generally that when private parties act pursuant to contractual duties and perform",
"(7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a policy would satisfy the requirement that a plaintiff show that the institution is the driving force behind the constitutional violation. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858-59 (S.D.N.Y.1987). Yet another basis for liability against the Hospital would exist if plaintiff alleged that the Hospital received funding from or was controlled by the state to such an extent that its activities constitute state action for purposes of § 1983. See Davidson, M.D. v. Yeshiva University, 555 F.Supp. 75, 79 (S.D.N.Y.1982). Because plaintiff has made no such allegations, and because there is no vicarious liability against a private corporate employer under § 1983, the action against the Hospital is dismissed. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is granted in part and denied in part. SO ORDERED. . Plaintiff seeks to have the Officers dismissed from their employment at the Hospital and to have the American Medical Association consider the Doctor's actions. .",
"of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a",
"that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with final policymaking authority in the particular area involved, see Austin v. Paramount Parks, Inc., 195 F.3d 715, 728-29 (4th Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (plurality opinion)), the two Airborne employees involved in the Mejias’ arrest and prosecution do not appear to have been final corporate policymakers in the area of cooperation with law enforcement. Bezmen was Airborne’s regional security manager for the greater New York area only, while Gennarelli was the “cartage supervisor” for the particular Airborne office through which the controlled pickup was conducted. Other courts have held that corporate employees in similar positions are not final policymakers for § 1983 purposes. See, e.g., Austin v. Paramount Parks, 195 F.3d 715, 729-30 (4th Cir.1999) (holding that theme park’s manager of loss prevention was not a final policymaker); Smith v. United States, 896 F.Supp. 1183, 1186 (M.D.Fla.1995) (holding that facility manager of particular halfway house run by private corporation was not final policymaker); Miller v. Correctional Med. Sys., Inc., 802",
"arise when a particular practice “is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal quotation marks omitted). We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable under § 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders, 984 F.2d at 976; Iskander, 690 F.2d at 128. In her second amended complaint, Austin primarily alleged in support of her § 1983 claim that she suffered a deprivation of her federal constitutional rights as a result of Paramount’s policy of causing individuals suspected of passing bad checks at Kings Dominion to be detained, arrested, and prosecuted, even without probable cause, to deter other park guests from engaging in such conduct. At trial, however, Austin was unable to present any evidence to substantiate those allegations. Rather, Austin’s evidence focused on her alternative theory of § 1983 liability, also alleged in the second amended complaint, that Paramount failed to exercise due care in training employees who participated in the investigation, detention, and arrest of individuals suspected of passing bad checks at Kings Dominion, and that such failure manifested a conscious disregard for Austin’s rights. Indeed, the district court, in",
"on the part of defendant Galassi or the other defendants was done pursuant to official policy, custom, or usage, a predicate to municipal liability under Monell v. Dep’t of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Supreme Court in Monell rejected the theory of § 1983 municipal liability by virtue of the application of the doctrine of respondeat superior: We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38. Key to determining whether a municipality can be held liable under § 1983, then, is whether the injury complained of, here, invasion of privacy, resulted from “official policy” or “custom or usage.” The Court set out to clarify the meaning of “policy” in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986). Recognizing that a single act of municipal policymakers can give rise to § 1983 liability, the Court held that decisions by officials with “final authority to establish municipal policy with respect to the action ordered” will be deemed policy. Id. at 481, 106 S.Ct. at 1299. Authority to make municipal policy may be granted by legislative enactment or delegated by those who possess such authority, and whether an official has policymaking authority is a question of state law. Id. at 483, 106 S.Ct. at 1300; City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). Municipal custom, on the other hand, will arise where a course of conduct, though not formally approved through official channels, is so permanent and well settled as to virtually constitute law. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36 (quoting Adickes v. S.H."
] |
transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in REDACTED cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the
|
[
"21,1975. The last day for filing claims was, therefore, February 21, 1976. Although the County did not file a formal proof of claim with either the referee or the trustee, it did send a letter, dated December 11, 1975, to the trustee, enclosing two tax bills. The trustee received the letter, but did not forward it to the referee or take any other action with respect to it. On July 21, 1976, five months subsequent to the expiration of the time for filing a proof of claim, the County filed an application for leave to file a claim. The bankruptcy judge denied this motion on October 27, 1976. The County thereafter appealed to the district court which reversed the order of the bankruptcy court, and ordered that the County be permitted to file an amended proof of claim. The trustee appeals from this judgment. We have long applied the so-called rule of “liberality in amendments,” In re Patterson-MacDonald Shipbldg. Co., 293 F. 190, 191 (9th Cir. 1923); Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 (9th Cir. 1970) (per curiam). We must now decide whether delivery of the County’s letter to the trustee meets this test. In re Patterson-MacDonald Shipbldg. Co., supra, presented circumstances virtually identical to those of the case now before us. We held that the letter sent to the trustee in that case was sufficient to allow for amendment. We believe that, although the County’s letter is neither as precise, nor perhaps as pointed, as that which we allowed in Patterson-MacDonald, it, together with the enclosed tax bills, is a statement in writing that is signed by an agent of the creditor, and, “reasonably construed,” sets forth the claim, the “consideration” (or “ground of liability,” Official Form 15) therefor, that no payments have been made thereon, and that the sum is justly owing. The letter thus contains much of the pertinent information required by relevant statute, 11 U.S.C. § 93(a), Bankruptcy Rule, 301(a), and Official Form, 15. The question before us, of course, is not whether the letter sufficed as a formal proof of"
] |
[
"has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the bankruptcy court. The Ninth Circuit offered further explanation of its position on Rule 5005(b). In Anderson-Walker Industries, Inc., 798 F.2d 1285, 14 B.C.D. 1395 (9 Cir.1986), the Court • stated that Rule 5005(b) only requires an intent to file the paper and an erroneous delivery to an official, i.e., that the creditor intended for the paper to become a part of the bankruptcy court proceedings and to receive official action. The Court reasoned that a creditor who sends a paper to a court appointed trustee or other official, under circumstances that the sender can be",
"said to have acted with an expectation that it will receive an official response, has done so with the intent that the paper is being “filed”. The sender is simply in error, however, because the paper should have been filed with the bankruptcy court. The sender has thus intended to file, but has erroneously delivered the paper to the trustee. 798 F.2d at 1288, 14 B.C.D. at 1398. In the instant ease, the misdelivery exception of Rule 5005(b) has not been met even under the very liberal interpretation given the Rule by the Ninth Circuit. There is no indication that the Foreclosure Documents or the letter to the Debtor’s attorney were ever intended by the Bank to become a part of the bankruptcy proceedings or that any sort of official reaction was anticipated. In any event, this Court generally finds more persuasive the construction the Seventh Circuit has given Rule 5005(b) in Matter of Evanston Motor Co, Inc., 735 F.2d 1029, 10 C.B.C.2d 1137, (7 Cir.1984). There the Court held that even if a letter sent to the trustee met the requirements for a proof of claim, the misfiling exception had not been met where the sender had not actually intended that the letter be filed. The Seventh Circuit interpreted the language now appearing in Rule 5005(b) (unchanged from earlier Rule 509(c) considered by that Court) to be limited to those situations where a paper was erroneously delivered to, rather than merely received by, the trustee. This Court recognizes that trustees could receive certain papers as the result of mis-delivery that the sender may have intended to file with the Court or at least bring to the attention of the Court. However, in the instant case, the Court finds no intent by the Bank in writing to Debtor’s counsel, in moving to lift stay, or in filing foreclosure documents in state court, to bring a demand against the Debtor’s estate to the attention of the Bankruptcy Court, as is required for informal claimant status. See, e.g. In re Haugen Constr. Servs. Inc, 88 B.R. at 217-18; In re Mitchell, 82",
"was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the bankruptcy court. The Ninth Circuit offered further explanation of its position on Rule 5005(b). In Anderson-Walker Industries, Inc., 798 F.2d 1285, 14 B.C.D. 1395 (9 Cir.1986), the Court • stated that Rule 5005(b) only requires an intent to file the paper and an erroneous delivery to an official, i.e., that the creditor intended for the paper to become a part of the bankruptcy court proceedings and to receive official action. The Court reasoned that a creditor who sends a paper to a court appointed trustee or other official, under circumstances that the sender can be said to have acted with an expectation that it will receive an official response, has done so with the intent that the paper is being “filed”. The sender is simply in error, however, because the paper should have been filed with the bankruptcy court. The sender has thus intended to file, but has erroneously delivered the paper to the trustee. 798 F.2d at 1288, 14 B.C.D. at 1398. In the instant ease, the misdelivery exception of Rule 5005(b) has not been met even under the very liberal interpretation given the Rule by the Ninth Circuit. There is no indication that the Foreclosure Documents or the letter to the Debtor’s attorney were ever intended by the Bank to become a part of the bankruptcy proceedings or that any sort of official reaction was anticipated. In any event, this Court generally finds more persuasive the construction the Seventh Circuit has given Rule 5005(b) in Matter of Evanston Motor Co, Inc., 735 F.2d 1029, 10 C.B.C.2d 1137, (7 Cir.1984). There the Court held that even if a letter",
"with the trustee. Bankruptcy Rule 3002 unambiguously requires that a proof of claim be filed in accordance with Rule 5005. In turn, Rule 5005(a) expressly and specifically provides that proofs of claim and other papers required to be filed, with exceptions not pertinent here, shall be filed with the clerk in the district where the case under the Code is pending. In the instant case only the Bank’s motion to lift stay, which by itself does not constitute an informal proof of claim, was filed with the clerk of the bankruptcy court. The Foreclosure Documents and the letter to the Debtor’s attorney were never filed with the clerk of the bankruptcy court. This does not end the Court’s inquiry, however. The matter becomes somewhat more complicated when Rule 5005(b) and related decisions are considered. Rule 5005(b) provides that a paper intended to be filed, but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it",
"320 F.2d 584, 590 (9th Cir.1963). Franciscan Vineyards, at 183. In Franciscan Vineyards (a case under the former Bankruptcy Act), the creditor sent a letter to the bankruptcy trustee prior to the bar date, enclosing tax bills owed by the bankrupt — the Ninth Circuit found the letter to constitute an informal proof of claim, and also held that delivery of the letter to the trustee was sufficient and it was unnecessary for the letter to be filed with the court. Informal proofs of claim have continued to be recognized under the Bankruptcy Code, see: Anderson-Walker Industries, Inc. v. Lafayette Metals, Inc. (In re Anderson-Walker Industries, Inc.), 798 F.2d 1285 (9th Cir.1986) (letter to counsel for Chapter 7 trustee prior to claims bar date, stating that creditor was owed a certain amount and expected to be paid by the estate; the letter was held to constitute an informal proof of claim even though it was not filed with the bankruptcy court); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811 (9th Cir.1985) (complaint filed in state court post-petition, followed by correspondence to attorney for Chapter 11 debtor-in-possession and joint motion to transfer lawsuit to bankruptcy court, all prior to claims bar date; the combination of such documents was held to constitute an informal proof of claim even though none of them was filed with the bankruptcy court); Pizza of Hawaii, Inc. v. Shakey’s, Inc. (Matter of Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir.1985) (request for stay relief filed in Chapter 11 case prior to claims bar date, attaching copy of pre-petition complaint; the stay relief request was held to constitute an informal proof of claim). Creditor argues that, during the Chapter 11 case, White made the United States Trustee aware of the existence of Creditor’s State Court Complaint in several telephone conversations concerning the fact that the State Court action continued to be stayed by Debtor’s bankruptcy. However, Creditor does not contend that any document concerning his claim against Debtor was ever delivered to anyone connected with either the Chapter 11 case or the",
"to protect the bank’s interest in the estate of the debtor. Recent case law has evolved the equitable doctrine of an “informal” proof of claim. For a document to constitute an informal proof of claim, a three-prong test must be satisfied; the document must state an explicit demand showing: 1) the nature of the claim, 2) the amount of the claim against the estate, and 3) must evidence an intent to hold the debtor liable. In re Nucorp Energy, Inc. 52 B.R. 843 (Bkrtcy.N.D.Ca.1985). The Court believes that the filing of the adversary proceeding in this Court meets all the requirements as set out by the Court in Nucorp Energy. See also, In re Francisian Vineyards, Inc., 597 F.2d 181 (9th Cir.1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598, holding that for documents to constitute an infor mal proof of claim, they must state an explicit demand showing the nature, and amount of the claim against the estate and evidence an intent to hold the debtor liable. In the absence of prejudice to an opposing party, bankruptcy courts, as courts of equity should allow amendments to proofs of claim that relate back to the filing date of the informal claim when the purpose is to cure a defect in the claim as filed or to describe the claim with greater particularity. Warts v. Weller 653 F.2d 1288 (9th Cir.1981). Although no Fifth Circuit cases are on point, the Court notes two other Ninth Circuit cases, In re Pizza of Hawaii, Inc., 761 F.2d 1374 (9th Cir.1985) and In re Sambo’s Restaurants, 754 F.2d 811 (9th Cir.1985). In Sambo’s, the claimant’s filing of a wrongful death action, in District Court, prior to the bar date, together with correspondence from the claimant and the debtor to transfer the case to the Bankruptcy Court was held sufficient to constitute an amendable proof of claim, even though the wrongful death action was dismissed by the District Court. In Pizza, a creditor of the Chapter 11 debtor had filed an action against the debtors prepetition, and post-petition, had filed a Motion",
"Stewart, supra, this court, reiterating the test enunciated by the Ninth Circuit Court of Appeals, held that an informal proof of claim must be a written instrument, filed with the trustee or the court which brings to the attention of the court the nature and amount of the claim. Id., at 76. The document(s) must also evidence an intent to hold the debtor liable. In Re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985). Lees-Carney argues that its counterclaim in the River Grain, Inc., litigation was a written instrument which states the nature and amount of the claim and evidences an intent to look to the bankrupt for satisfaction. In support of this argument, Lees-Carney relies heavily upon In Re Sambo’s Restaurants, Inc., supra. In Sambo’s, a creditor had filed a wrongful death complaint in the U.S. District Court for the Northern District of Alabama against the debtor in possession. The bankruptcy case was pending in the Central District of California. Before the claims-bar date, a motion was filed in Alabama to transfer the Alabama case to the bankruptcy court in California. The creditor did not file a proof of claim in time. After the time limit, the creditor filed a motion for leave to amend an informal claim. In affirming the District Court’s reversal of the Bankruptcy Court’s order denying the motion, the Court of Appeals held that because Sambo’s was a debtor in possession, “communications to Sambo’s were the equivalent of communications to a trustee.” Id., at 815. In the instant case, the debtor is not a debtor in possession as the debtor was in Sambo’s. Also, neither the debtor nor the trustee in the instant case was a party to the lawsuit pending in the U.S. District Court for the District of Washington. Therefore, Lees-Carney’s answer and counterclaim in the River Grain, Inc. litigation does not constitute written notice to the trustee of the nature and amount of the claim. Lees-Carney next argues that Bankruptcy Rule 5005(b) does not require an intent to file the proof of claim in the district in which the bankruptcy case is",
"to the Debtor’s attorney constitute an informal proof of claim which can be amended to allow the Bank to state its claim with greater particularity. The Trustee urges that these documents do not pass the tests used in In re Sherret, 58 B.R. 750 (Bankr.W.D.La.1986), and that even if they did, the documents do not constitute an informal proof of claim because, with the exception of the motion to lift stay, they were not filed with the Court, or even the trustee, as is required by Bankruptcy Rule 5005. Analysis I shall first address the issue of whether or not the information provided in the documents relied upon by the Bank is sufficient to create an informal proof of claim. Under Bankruptcy Rule 3002, with certain exceptions not here relevant, the claim of an unsecured creditor cannot be allowed in a Chapter 7 case unless filed within 90 days after the first date set for the Sec. 341 meeting of creditors, and in accordance with Bankruptcy Rule 5005, which requires filing in the district where the bankruptcy case is pending. • However, the document does not have to be styled “Proof of Claim” or be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required. In re Lipman, 65 F.2d 366, 368 (2nd Cir.1933). Bankruptcy Rule 3001(a) provides that a proof of claim is a written statement setting forth a creditor’s claim and requires that it shall conform substantially to Official Form Nos. 19, 20, or 21. A number of decisions recognize that various pleadings, documents, or written communications, not styled “Proof of Claim” may under certain conditions nevertheless constitute valid informal proofs of claim. See, generally, In re A.H. Robins Co., Inc., 862 F.2d 1092, 18 B.C.D. 1034 (4th Cir.1988); Anderson-Walker Industries., Inc. v. Lafayette Metals, Inc., (In re Anderson Walker Industries., Inc.), 798 F.2d 1285, 14 B.C.D. 1395 (9th Cir.1986); Liakas v. Creditors Committee of Deja Vu, Inc., 780 F.2d 176, 178 (1st Cir.1986); Sambo’s Restaurants, Inc. v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811, 12",
"ways a creditor may manifest the necessary demand and intent to hold the estate liable. See, Levine v. First National Bank of Lincolnwood (In re Evanston Motor Co., Inc.), 26 B.R. 998 (N.D.Ill.1983) and cases cited at page 1001. Pleadings filed either in the bankruptcy case itself or filed in other litigation to which the debtor or trustee is a party have been held to be informal claims. See, Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir.1985) (relief from stay motion and other documents filed with court during claims filing period); In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985) (wrongful death complaint filed in violation of automatic stay and joint motion with debtor to transfer case to bankruptcy court constitutes informal claim). While other courts have looked to a creditor’s actions outside the bankruptcy case, this court finds the better rule to be that proceedings not filed in the bankruptcy case should not be considered when determining the existence of an informal claim. It is unfair to the debtor and other creditors to hold them knowledgeable of actions taken outside the bankruptcy case itself. Therefore, we look only to the motion for relief from stay which was filed in the bankruptcy case and the Sukmans’ state court foreclosure proceedings will not be considered. The Sukmans’ motion for relief from stay and abandonment sets forth the nature of their claim and its amount. It fails, however, to evidence an intent to hold the estate liable. The debtor contends that, in order to qualify as an informal claim, the Sukmans’ motion required a specific declaration of intent to hold the estate liable. Contrary to this contention, courts have held that intent to hold the estate liable may be implicit. Sun Basin Lumber Co. v. United States, 432 F.2d 48 (9th Cir.1970); County of Napa v. Franciscan Vineyards, Inc. (In re Franciscan Vineyards, Inc.), 597 F.2d 181 (9th Cir.1979) cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). However, no such implication is found here. The actions of",
"and the documents Shakey’s filed in the bankruptcy court constitute an amendable informal proof of claim. Our recent decision in In re Sambo’s Restaurants, Inc., 754 F.2d 811 (9th Cir.1985), governs this issue. In Sambo’s, the debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. While the automatic stay was in effect, the creditor in Sambo’s filed a wrongful death suit in a U.S. District Court. The debtor and the creditor then joined in a motion requesting the district court to transfer the case to the bankruptcy court. The district court denied the motion, and instead entered an order dis missing the case without prejudice to the creditor to petition to reinstate the action to pursue any matter unresolved by the bankruptcy court after the stay was dissolved. But the creditor never filed a formal proof of claim in the bankruptcy proceedings. Rather, after the date for filing had passed, she moved in the bankruptcy court for leave to amend what she characterized as an informal proof of claim established within the filing period. The bankruptcy court denied her motion, but the district court reversed. On appeal, we affirmed the district court in light of our “long-established liberal policy toward amendment of proofs of claim.” Sambo’s, 754 F.2d at 816. See Sun Basin Lumber Co. v. United States, 432 F.2d 48, 49 (9th Cir.1970) (per curiam); In re Franciscan Vineyards, Inc., 597 F.2d 181, 182 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). After examining the complaint the creditor filed in the U.S. District Court, the creditor’s correspondence with debtor’s counsel, and her joint motion with the debtor to transfer the case to the bankruptcy court, we found that these documents established an informal proof of claim because they “state an explicit demand showing the nature and amount of the claim against the estate, and evidence an intent to hold the debtor liable.” Sambo’s, 754 F.2d at 815. The documents Shakey’s filed in the instant chapter 11 case also establish an informal proof of claim. In its"
] |
this fact. Once the plaintiff conclusively proves an inability to perform past jobs due to an impairment, the Secretary has an obligation to demonstrate the availability of jobs that the plaintiff has the functional and vocational capacity to perform. Chicager v. Califano, 574 F.2d 161 (3rd Cir. 1978). To meet this burden the Secretary has promulgated medical-vocational regulations. These regulations, 20 C.F.R. §§ 404.-1501-404.1539 (1979), and the tables contained in Subpart P, Appendix 2 are a distillation of the Secretary’s vocational expertise, Freeman v. Harris, 509 F.Supp. 96 (D.S.C.1981). Incorporated within these regulations is extensive information from the same sources that a vocational expert would utilize and they were in fact designed to dispense with the need for vocational expert testimony. REDACTED Boyce v. Harris, 492 F.Supp. 751 (D.S.C.1980). This Court determines that the use of the aforementioned regulations satisfies the Secretary’s obligation and that the plaintiff’s third contention is therefore without merit. The last two issues raised by the plaintiff, the substantial evidence question and the full and explicit findings question, are interrelated. The AU must make full and explicit findings to enable the reviewing court to evaluate the basis of his decision. Hargenrader v. Califano, 575 F.2d 434 (3rd Cir. 1978). These findings delineate the evidence relied upon and explain why any evidence inconsistent with the AU’s conclusion was rejected. Id. The plaintiff’s subjective assessment as to the debilitating nature of her condition due to pain and physical dysfunction is evidence inconsistent
|
[
"the medical-vocational regulations are reasonably related to the purposes of the statute and that defendant has not exceeded the scope of its authority under § 405(a). As indicated more fully below, the Court further finds that the specific contentions asserted by plaintiff are without substantial merit and must be rejected. Plaintiff contends that the agency’s administrative notice of materials contained in studies and treatises constitutes an improper substitution for its burden of proof in cases in which it is determined that a claimant is unable to perform his or her previous work. The agency concedes that in such cases it has an obligation to demonstrate the availability of jobs that the claimant has the functional and vocational capacity to perform. See, e. g., Gray v. Finch, 427 F.2d 336 (6th Cir. 1970). As defendant correctly notes, however, the regulations are consistent with this judicial burden because they require complete consideration of a claimant’s individual circumstances. In place of vocational testimony that jobs exist or do not exist that a claimant can perform, the regulations have incorporated extensive information from the same sources that a vocational expert would utilize. In addition, this information is specifically related to previous individualized findings with respect to a claimant’s functional and vocational capacity. Thus the regulations meet the agency’s burden in a manner that may afford more consistent and uniform results. In support of his position that the regulations create an irrebuttable presumption, plaintiff relies on Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In Vlandis the Supreme Court struck down a Connecticut statute defining residency for purposes of university tuition rates on the ground that it created an irrebuttable presumption and thus violated due process principles. The short answer to this theory is that the regulations do not create any presumption that requires the exclusion of relevant, rebuttal evidence, but rather direct a conclusion that is based on consideration of all relevant factors and evidence. Claimants are given full opportunity to submit proof on each of the underlying, adjudicative facts. For example, a claimant can attempt to “rebut” or"
] |
[
"disabled within the meaning of the statute. Once the claimant has established an inability to return to his past relevant work, the burden of going forward with evidence shifts to the Secretary to show other jobs in the economy that the claimant is capable of performing. Where an exertional impairment is demonstrated, the Secretary may fulfill this burden-by reference to the medical-vocational guidelines contained in the Secretary’s regulations. 20 C.F.R. Section 404, Subpart P, Appendix 2; McCoy v. Schweiker, 683 F.2d 1138, 1141 (8th Cir.1982). The Secretary may not rely on these guidelines if the record indicates that the claimant suffers from a nonexertional impairment. 683 F.2d at 1148. In such cases, and in cases of exertional impairments which do not fit within the guidelines, the Secretary must use vocational expert testimony or other similar evidence in order to meet her burden of showing there are jobs in the national economy which the claimant is capable of performing. Id. It is apparent from the record that the ALJ found Parsons to be incapable of returning to his past relevant work as a pharmacist. D.R. at 11. After making this finding, the AU should have shifted the burden of going forward with evidence to the Secretary to demonstrate, through vocational expert testimony, jobs in the national economy which the claimant was capable of performing. See Smith, supra. This, however, was not done. The ALJ terminated his analysis with a finding that Parsons was not severely impaired. The Secretary argues that the court may not consider any medical, psychological, or psychiatric evaluations made after the expiration of the claimant’s insured status. We do not agree. While the Secretary is correct insofar as she contends that such evaluations must relate to the claimant’s condition prior to the expiration of his insured status, the mere fact that the examination was made following the expiration of insured status does not automatically make the examination irrelevant. In this case, there are strong correlations between the three most extensive psychological evaluations of Parsons, those of September 19, 1980, December 14, 1981 and May 3, 1982. While the",
"preclude the claimant from performing other work. Once the claimant’s capabilities are established, the second aspect of the Secretary’s burden is to demonstrate that there are jobs available in the national economy that realistically suit the claimant’s qualifications and capabilities. McMillian v. Schweiker, supra, 697 F.2d at 221; Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981). In determining whether there are jobs available that a claimant can perform, the Secretary must consider the claimant’s exertional and nonexertional impairments, together with the claimant’s age, education, and previous work experience. McMillian v. Schweiker, supra, 697 F.2d at 221; McCoy v. Schweiker, supra, 683 F.2d at 1146-1148. If the claimant’s characteristics identically match those contained in the Medical-Vocational Guidelines, Appendix 2, Subpart P, Part 404, Chapter III, Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 200.00-204.00 (1982) (hereinafter Appendix 2), the Secretary may meet the burden of showing there are jobs in the national economy that the claimant can perform by applying the “grid.” If the claimant’s characteristics do not match those in the regulations — either because the claimant is suffering from a nonexertional impairment or is precluded from doing the full range of a particular work classification or for any other reason — the Secretary is required to produce vocational expert testimony concerning whether there are jobs available that a person with the claimant’s particular characteristics can perform. See McDonald v. Schweiker, supra, 698 F.2d at 364-365; Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d 777, 780 (8th Cir.1982); McCoy v. Schweiker, supra, 683 F.2d at 1147-1148. Because there is no dispute that O’Leary cannot return to her previous work, on remand the evidence in the record must be evaluated with the burden placed on the Secretary to prove that the claimant, despite her diminished capabilities, can perform other work in the national economy. II. The Claimant’s Capabilities. The ALJ’s second error concerns his evaluation of O’Leary’s capabilities, particularly his evaluation of her pain. The AU stated that O’Leary’s testimony regarding her pain was “substantially rejected as a basis for disability",
"proving that he cannot return to his past work, the Secretary assumes the burden of proving the last step — that there is other work that the claimant can perform. Id. If the claimant can perform other work, he is considered not disabled. In reaching a conclusion on these issues, the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under § 205(g) of the Act, the Secretary’s factual findings are conclusive if supported by substantial evidence, which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977). It is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In short, this Court is not to decide the case de novo. Obviously, however, the Court is not required to accept the Secretary’s determination if the Secretary failed to apply proper legal principles or failed appropriately to consider evidence critical to a just determination of the claimant’s application. Parker, 626 F.2d at 231. Discussion I have reviewed the record in light of the standards set forth above, and I conclude that the Secretary’s determination that Rivera is not disabled must be",
"is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. The claimant carries the burden, encompassed by the first four steps, of proving disability. Rivera v. Schweiker, 717 F.2d at 722. If the claimant establishes that her impairment is sufficiently severe to prevent her from doing her past work and to limit significantly her ability to perform basic work activities, the burden shifts to the Secretary to prove the fifth step — that there is other work that the claimant could perform. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983); Rivera v. Schweiker, 717 F.2d at 722-23; Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). In assessing a claim of disability, the Secretary must consider objective and subjective factors, including the following: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by claimant or other witnesses; and (4) the claimant’s educational background, age, and work experience. Rivera v. Schweiker, 717 F.2d at 723; Parker v. Harris, 626 F.2d at 231; Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n: 2 (2d Cir.1972). A finding by the Secretary that a claimant has not shown disability is conclusive if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Aponte v. Secretary of Health and Human Services, 728 F.2d 588, at 591 (2d Cir.1984); Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983); Berry v. Schweiker, 675",
"to perform his former job, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment he is able to perform, Chicager v. Califano, 574 F.2d 161 (3rd Cir.1978), taking into consideration the claimant’s physical ability, age, education and work experience. 42 U.S.C. 423(d)(2)(A); 20 C.F.R. § 404.1520(f) (1986). In the instant case, the Secretary found both that Kangas had a severe impairment and that he was unable to perform his past relevant work. Although the Secretary found that there were other jobs in the national economy that Kangas could perform, Kangas urges on appeal that the Secretary nevertheless did not sufficiently carry his burden of proving that there is some other kind of substantial gainful employment that he is able to perform. We will now address Kangas’ contention that, because of his frequent need for hospitalizations, he cannot engage in any work activity on a sustained basis. The regulations defining residual functional capacity direct the Secretary to determine a claimant’s capacity for work on a “regular and continuing basis.” 20 C.F.R. Regulations No. 4, Subpt. P, § 404.-1545(b) (1986) (emphasis added). Similarly, the Medical-Vocational Guidelines for sedentary work refer to an individual’s “maximum sustained work capability.” 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 2, § 201 (1986) (emphasis added). Kan-gas contends that there was no substantial evidence to show that he is able to engage in any work on a “sustained,” “regular” or “continuing” basis. Before the Secretary was evidence that Kangas had been hospitalized six times in a sixteen-month period for problems with his lungs. The medical advisor, in uncontro-verted testimony, stated that Kangas “has had frequent lung infections requiring hospitalization, sometimes every two to three months.” Admin.Tr. at 14 (emphasis added). Each hospitalization requires a subsequent one to two week recovery period at home. Id. Despite this evidence, the Secretary found that Kangas could engage in substantial gainful activity because there was a wide range of sedentary work that he could perform. We believe that the Secretary failed to consider Kangas’ frequent need for hospitalization in his finding that",
"residual work capacity, the Secretary must consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant or others. Carroll, supra, 705 F.2d at 642; Parker v. Harris, 626 F.2d 225, 231 (2 Cir.1980); Marcus v. Califano, 615 F.2d 23, 26 n. 2 (2 Cir.1979). In particular, the Secretary is required to give considerable— and if uncontradicted, conclusive — weight to the expert opinions of the claimant’s own treating physicians. Donato v. Secretary of the Department of Health and Human Services of the United States, 721 F.2d 414, 419 (2 Cir.1983); Carroll, supra, 705 F.2d at 642; Aubeuf v. Schweiker, 649 F.2d 107, 112 (2 Cir.1981); Parker, supra, 626 F.2d at 231. Moreover, in making any determination as to a claimant’s disability, the Secretary must explain what physical functions the claimant is capable of performing. Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir.1960); Deutsch v. Harris, 511 F.Supp. 244, 249 (S.D.N.Y.1981). In Ferraris’ case, the ALJ heard testimony of Ferraris himself, his wife, and his treating physician, Dr. Liebman. In addition, reports were submitted by four consulting physicians. The ALJ set forth extensively the evidence he considered, which may be summarized briefly as follows. According to Dr. Liebman, the treating physician, his examinations revealed spasm throughout the lumbosacral spine with significant tenderness and restriction of movement. He estimated that Ferraris could walk only one to two blocks before resting, after which he possibly could walk another one to two blocks. Standing was limited to one and a half hour periods, separated by half hour rest periods. Sitting in one place was limited to one to two hours, followed by twenty minutes of movement before he could sit again. He could lift no more than one or two pounds at a time, and that only occasionally. Ferraris’ ability to bend, according to Dr. Liebman, was almost non-existent. In March 1978, Ferraris was examined by Dr. Irwin Nelson, a consulting physician designated by the Secretary. In his opinion Ferraris could sit, stand, walk, push and pull within “normal",
"an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). The burden of proving disability, encompassing the first four of these steps, is on the claimant. Id. The burden of proving the fifth step is on the Secretary. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). Objective and subjective factors are to be considered by the Secretary when evaluating a conclusion of disability. These factors include: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant’s educational background, age, and work experience. Id.; Gold, 463 F.2d at 41 n. 2. Upon review by this court of a final decision by the Secretary, pursuant to 42 U.S.C. § 405(g) (Supp. V 1981), the court will look to the above four areas to determine if there is substantial evidence to support the Secretary’s decision. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). The factual findings of the Secretary, if supported by substantial evidence on the record as a whole, shall be conclusive. Id.; see also Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972). Although the standard of review generally implies a deference to the expertise of the agency, the “courts retain a responsibility ... to reverse and remand if the Secretary’s decision is not supported by substantial evidence.” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981). Of course, a reviewing",
"perform his customary occupation, the burden of proof shifts to the Secretary to show that the claimant, given his age, education, and work experience, has the capacity to perform a specific job that exists in the national economy. Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975). If there are no findings as to the latter, the Secretary’s decision can be sustained only if there is substantial evidence that the claimant’s impairment does not prevent him from engaging in his previous customary occupation. Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Besseck v. Finch, 342 F.Supp. 957 (W.D.Va.1972). Before making a finding of the claimant’s ability or inability to engage in any substantial gainful activity, the Secretary must consider (1) the objective medical facts (clinical findings); (2) the medical opinions of the examining or treating physicians based upon those facts; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant’s background, work history, and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The claimant’s impairments “must be considered in combination and must not be fragmented in evaluating their effects.” Id. Further, the administrative law judge must explicitly consider the claimant’s subjective symptoms. DePaepe v. Richardson, 464 F.2d 92, 99 (5th Cir. 1972). While he has a right as finder of fact to reject such testimony entirely, failure to explicitly do so could lead to a conclusion that he failed to consider it at all. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). To so disregard the claimant’s subjective symptoms is error and grounds for reversal. DePaepe v. Richardson, supra; Black v. Richardson, 356 F.Supp. 861, 871 (D.S.C.1973). When the plaintiff Rose Smith was treated in 1965 and 1966, she was diagnosed as having a heart murmur, hypertension, and meningovascular syphilis, which was found to be the cause of right complete ophthalmoplegia. During her hospitalization in August of 1967, immediately before the expiration of her special earnings requirement status, she was diagnosed as having tuberculosis of the lymph nodes and intestines;",
"jobs in the economy that claimant can nonetheless perform.” Goodermote, 690 F.2d at 7; Vasquez v. Secretary of Health and Human Services, 683 F.2d 1, 2 (1st Cir.1982); Small v. Califano, 565 F.2d 797, 800 (1st Cir.1977). “Such a showing is met by reliance on the testimony of a vocational expert, or by applying the relevant medical-vocational guidelines” in 20 C.F.R. § 404 Subpart P, App. 2. Williford v. Secretary of Health and Human Services, 550 F.Supp. 248, 251 (D. Ohio 1982). Since the AU determined that Plaintiff’s impairment was non-exertional, he did not apply the Appendix 2 “Grid,” which regularly supplants the role of the vocational expert in cases of exertional impairments, to Plaintiff’s case. 20 C.F.R. § 404 Subpart P, App. 2, 200.00(e). Torres v. Secretary of Health and Human Services, 677 F.2d 167 (1st Cir.1982). Instead, the AU properly enlisted the services of a vocational expert to determine whether a job existed in the national economy which Plaintiff, given her age, education, work history and mental impairment could perform. 20 C.F.R. § 404.1561. Where the Secretary is required to meet the burden of proving that a job exists in the national economy, she cannot “establish specific vocational ability solely through medical evidence or by ‘administrative notice.’ ” Rather, such evidence should be predicated upon the testimony of a vocational expert. Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980). Since “[t]he vocational expert’s testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job,” Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.1981), Ms. Mullen, the vocational expert, examined Plaintiffs age, education, work history and her medical impairment. She determined that Plaintiff’s twelfth grade education and her lack of past relevant work or transferrable skills would enable her to do only unskilled work. Ms. Mullen ultimately concluded, however, based on the evidence in the record of Plaintiff’s impairment, that Plaintiff would be unable to work under the conditions present in unskilled jobs. Tr. at 165-166. Since the “preferred method of demonstrating that the claimant can perform",
"work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). A claimant “bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment,” but once the claimant makes such a showing “the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform'____” Id. Moreover, In assessing a claim of disability, the Secretary must consider objective and subjective factors, including the following: (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant or other witnesses; and (4) the claimant’s educational background, age and work experience. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). Accord, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under 42 U.S.C. § 405(g), the factual findings of the Secretary are conclusive if they are supported by substantial evi dence; they may not be rejected despite the existence of substantial evidence supporting the plaintiffs contentions. See, e.g., Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983). Of course, in the absence of substantial evidence the Secretary’s findings cannot stand. Substantial evidence is “more than a mere scintilla;” it is “such relevant"
] |
"512(k)(1)(A)]."" 17 U.S.C. § 512(k)(1)(B). ""Service provider” thus is defined more narrowly with respect to the ""conduit” safe harbor provision. . The parties do not dispute that Hurricane, OPG; and Swarthmore had valid section 512(i) policies. See, e.g., Complaint, p. 5:20-23 & Ex. D (email from Ralph E. Jocke), although there is no evidence in the record as to this point with respect to OPG and Swarth-more. The Court will assume without deciding that all parties had valid section 512(i) policies. . Although section 512(g) refers to section 512(c), it does not refer expressly to section 512(d). Courts nonetheless have held that the replacement procedure of section 512(g) applies to takedown pursuant to section 512(d). See, e.g., REDACTED . Plaintiffs appear to have conceded at oral argument that their claims for injunctive and declaratory relief are moot and that a decision on their claims for damages will be a sufficient adjudication of their rights. See Transcript of Law & Motion Hearing, February 9, 2004, pp. 5:21-23, 6:22-24, 7:6-12, 10:4-9. . The Court also notes that in view of Grok-ster, a general declaration that hyperlinking to infringing material does not amount to con-tributary infringement or subject one to vicarious liability would be improper. Although hyperlinking per se does not constitute direct copyright infringement because there is no copying, see, e.g., Ticketmaster Corp. v. Tickets.Com, Inc., 2000 WL 525390 (C.D.Cal, March 27, 2000), in some instances there may be a"
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[
"an interest in the content of that data.” Id. at 18 n. 19. The inclusion of section 512(d) which creates a “safe harbor” for copyright infringement resulting from the use of information location tools by service providers, which include directories, indexes, references, pointers and hypertext links, strongly suggests that the definition of service provider is meant to include services that only provide location service tools, as well as services providing internet access and such tools. See H.R. Rep. 105-551(11), at 58 (identifying Yahoo! as an example); cf. also 47 U.S.C. § 231(b)(3)(reaeh of Child Online Protection Act defined by similar categories). The Court adopts that reading and will not use Perfect 10’s proposed interpretation to evaluate Cybernet’s ability to invoke the protection of section 512’s safe harbors. Nevertheless, Cybernet has made this a more complicated issue than it probably should be by its insistence that it does not host any infringing images and no image files pass through any of its computers. Opp’n at 21. This appears to be part of an overall' strategy to deny that Cybernet is anything more than an age verification service, somehow beyond the reach of copyright law, with no responsibility for the actions taken on the sites of the individual webmasters. It may be a close question whether such a service qualifies as a “service provider.” For the moment, however, the Court will assume that Cybernet is a “service provider” as defined in section 512(k). b. Does Cybernet Meet the Minimal Qualifications of Section 512(i)? The initial hurdle Cybernet must meet in order to qualify for section 512(k)’s restrictions on injunctive relief is found in section 512(i). These provisions require an online service provider to develop, promulgate and reasonably implement a policy providing for termination in appropriate circumstances of repeat copyright infring-ers. 17 U.S.C. § 512(i). In crafting these policies, Congress has given a vague indication of what constitutes “appropriate” circumstances. In the House and Senate Reports considering this subsection, both used identical language. See Ellison v. Robertson, 189 F.Supp.2d 1051, 1053-54, 1064-65 (C.D.Cal.2002). The Committees each “recognize[d] that there are different degrees of"
] |
[
"DMCA Section 512 contains two definitions of the term \"service provider.” See 17 U.S.C. § 512(k). Because Veoh’s motion is based only on its claimed eligibility for safe harbor under Section 512(c), the broader definition under Section 512(k)(1)(B) applies. Under that provision, \"the term 'service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” 17 U.S.C. § 512(k)(1)(B). . The court takes judicial notice of the Wikipedia definition of \"IP address” as to the fact that an IP address may be shared by multiple users. This is not a matter that is subject to reasonable dispute. . Additionally, Section 512(c)(2) requires service providers to designate an agent to receive notification of alleged copyright violations. As noted above, there is no dispute that Veoh has done so. . Plaintiff claims that the user profile page for one of the users who submitted its works to Veoh indicates that the user was a 17-year old — i.e., someone who was not legally permitted to view Io’s works, much less upload them to defendant’s system. (See Ruoff Decl. ISO Plaintiff’s MSJ tf 21). Plaintiff did not raise this argument in support of its opposition to Veoh's motion as to the DMCA safe harbor. At any rate, there is no evidence to suggest that Veoh was aware of, but chose to ignore, this circumstance. . Briefly stated, California Penal Code section 65 3w prohibits the knowing possession of a \"physical embodiment” of an audiovisual work that does not identify the manufacturer and author. Cal. Pen.Code § 653w(a). . OCILLA Section 512(j) provides in rele vant part: With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: (i) An order retraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network. (ii) An order restraining the service",
"clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 936-37, 125 S.Ct. 2764. . There is no question in this case that Fung was authorized to and did speak on behalf of the corporate defendant, isoHunt Web Technologies, Inc. . 17 U.S.C. § 512(k) defines “service provider” more broadly for purposes of subsection (c) than it does for subsection (a). \"As used in [ ] section[s] other than subsection (a), the term 'service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” Id. § 512(k)(1)(B). . See supra pp. 1039-40. . We note that it is not clear from the language of § 512(c) or from the pertinent case law, whether exclusion from the § 512(c) safe harbor because of actual or \"red flag” knowledge of specific infringing activity applies only with regard to liability for that infringing activity, or more broadly. See Viacom Int'l, Inc., 676 F.3d at 31 (noting \"[t]he limited body of case law interpreting the knowledge provisions of the § 512(c) safe harbor”). However, as we shall explain, that issue does not arise with regard to the § 512(c)(1)(B), \"financial benefit/right to control” safe harbor. As we conclude that the § 512(c) safe harbor is not available to Fung on that ground as well, we need not question whether actual or red flag knowledge of specific infringing material or activity eliminates the § 512(c) safe harbor broadly, or only with respect to the known or objectively apparent infringing activity. . Our decisions interpreting the \"financial benefit” prong of § 512(c)(1)(B) derive almost entirely from our earlier decisions discussing \"direct financial benefits” in the context of vicarious liability for copyright infringement. Those cases also involved defendants who derived their revenue from consumers. In particular, our decision in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263-64 (9th Cir.1996), has been the starting point for our subsequent § 512(c)(1)(B) decisions. In Fo-novisa, we held that swap meet operators",
"argues that MP3tunes failed to reasonably implement a repeat infringer policy and is therefore ineligible for protection under subsection 512(i), which states: (i) Conditions for Eligibility.— (1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers .... 17 U.S.C. § 512(i). This requirement is a prerequisite for every DMCA safe harbor and is a fundamental safeguard for copyright owners. As described by Judge Posner, “[t]he common element of [the DMCA’s] safe harbors is that the service provider must do what it can reasonably be asked to do to prevent use of its service by ‘repeat infringers.’ ” In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir.2003); see also Columbia Pictures Indus., Inc. v. Fung, No. 06 Civ. 5578, 2009 WL 6355911, at *18 (C.D.Cal. Dec. 21, 2009). Other courts have described enforcement of this provision as essential to “maintain the ‘strong incentives’ for service providers to prevent their services from becoming safe havens or conduits for known repeat copyright infringers.” Perfect 10 v. Cybernet Ventures, 213 F.Supp.2d 1146, 1178 (C.D.Cal.2002). The key terms “reasonably implemented” and “repeat infringer” are not defined in the DMCA. Courts have held that implementation is reasonable if the service provider (1) has a system for responding to takedown notices, (2) does not interfere with the copyright owners’ ability to issue notices, and (3) under “appropriate circumstances” terminates users who repeatedly or blatantly infringe copyrights. See Perfect 10 v. CCBill, 488 F.3d 1102, 1109-1110 (9th Cir.2007). The purpose of subsection 512(i) is to deny protection to websites that tolerate users who flagrantly disrespect copyrights. See Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090, 1100-01 (W.D.Wash.2004). Thus, service providers that purposefully fail to keep adequate records of the identity and activities of their users and fail",
"worse than the latter. See id. at 243^14. Furthermore, if Congress had intended that the § 512(c)(1)(B) “right and ability to control” requirement be coextensive with vicarious liability law, the statute could have accomplished that result in a more direct manner. It is conceivable that Congress [would have] intended that [service providers] which receive a financial benefit directly attributable to the infringing activity would not, under any circumstances, be able to qualify for the subsection (c) safe harbor. But if that was indeed their intention, it would have been far simpler and much more straightforward to simply say as much. The Court does not accept that Congress would express its desire to do so by creating a confusing, self-contradictory catch-22 situation that pits 512(c)(1)(B) and 512(c)(1)(C) directly at odds with one another, particularly when there is a much simpler explanation: the DMCA requires more than the mere ability to delete and block access to infringing material after that material has been posted in order for the [service provider] to be said to have “the right and ability to control such activity.” Ellison v. Robertson, 189 F.Supp.2d 1051, 1061 (C.D.Cal.2002), aff'd in part and rev’d in part on different grounds, 357 F.3d 1072 (9th Cir.2004). Indeed, in the anti-circumvention provision in Title I of the DMCA, which was enacted at the same time as the § 512 safe harbors, Congress explicitly stated, “Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.” 17 U.S.C. § 1201(c)(2). “If Congress had intended to exclude vicarious liability from the DMCA [Title II] safe harbors, it would have done so expressly as it did in Title I of the DMCA.” Lee, supra, 32 Colum. J.L. & Arts at 242. Our reading of § 512(c)(1)(B) is further informed and reinforced by our concern that the statute would be internally inconsistent in other respects were we to interpret the “right and ability to control” language as UMG urges. First, § 512(m) cuts against holding that Veoh’s general knowledge that infringing",
"of ultimate liability under the various doctrines of direct, vicarious, and contributory liability. See H.R. Rep. 105-551(11), at 50 (July 22, 1998); S. Rep. 105-190, at 19 (May 11, 1998). Rather they limit the relief available against service providers that fall within these safe harbors. See 17 U.S.C. §§ 512(a),(b)(1),(c)(1),(d), & (j). Of these “safe harbors,” Cybernet only invokes the harbors provided by section 512(c), governing information residing on the systems or networks at the direction of users, and section 512(d), governing information location tools (“web browsers”). Moreover, these “safe harbors” could not apply prior to August 8, 2001, the date Cybernet adopted the policy it claims is aimed at compliance with the DMCA. See Costar Group, Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 698 n. 4 (D.Md.2001). a. Is Cybernet A “Service Provider”? Cybernet devotes a single sentence to arguing that it is a “service provider” as the term is defined in section 512(k)(l)(B). Opp’n at 25. This section defines a service provider as a “provider of online services or network access, or the operator of facilities therefor,” and includes entities “offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k). Section 512(k)(l)(B)’s definition has been interpreted broadly. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir.2001); Hendrickson v. Ebay, 165 F.Supp.2d 1082, 1087 (“eBay clearly meets the DMCA’s broad definition of online ‘service provider’ ”). Although there appears to be uniform agreement that the definition is broad, or at least broader than the definition of 512(k)(l)(A) concerning conduit-type services, the Court has found no discussion of this definition’s limits. Perfect 10 argues that section 512(c) was drafted with the limited purpose of protecting Internet infrastructure services in mind. Reply at 18. It contends that the definition for a provider of online services or network access does not include services that “participate in the selection or screening of that data or take",
"impose an affirmative duty on service providers to hunt out infringers does not mean, however, that copyright holders cannot investigate potentially infringing activities and notify providers under a \"reasonably implemented” section 512(i) policy. . Section 512(Z) provides that a service provider under subsection (a) may only be restrained from providing access to an infringer by terminating the account or from providing access to a specific, identified online location outside the United States. See 17 U.S.C. 512(Z )(B). There is no ability to order such a provider to take down material, presumably because such material is no longer on the system. See 17 U.S.C. 512(a)(4)(limiting time copy may reside on system to that \"reasonably necessary for the transmission, routing, or provision of connections”). In contrast, service providers, as the term is defined for the other three safe harbor provisions may be restrained from providing access to the material, providing system access to the infringer, or such other injunctive relief as may be considered necessary to restrain infringement at a particular location, if it is the least burdensome form of relief available to the service provider. See 17 U.S.C. § 512(Z)(A). . In response to the unstated premise of Cybernet’s arguments that enforcement of the Copyright Act would hurt its business, but not address the ultimate source of the infringement, the Court finds itself sympathetic to the observation in Playboy v. Webbworld: \"If a business cannot be operated within the bounds of the Copyright Act, then perhaps the question of its legitimate existence needs to,be addressed.” 968 F.Supp. at 1175. see also Napster II, 239 F.3d at 1026 (\"Although even a narrow injunction may so fully eviscerate Napster, Inc. as to destroy its user base ... the business interests of an infringer do not trump a rights holder's entitlement to copyright protection.”) . This case appears to offer an example of such behavior. In Perfect 10’s Third Amended Complaint, it identified a site, www.celeb-pics.com, as one of the problematic Adult Check sites. In its preliminary injunction papers, Perfect 10 now complains about the website www.newcelebpics.com. See Zadeh Decl., Ex. 79. Although issues",
"record before us, we cannot conclude that CCBill is a service provider under § 512(a). Accordingly, we remand to the district court for further consideration the issue of whether CCBill meets the requirements of § 512(a). D. Information Location Tools: § 512(d) After CCBill processes a consumer’s credit card and issues a password granting access to a client website, CCBill displays a hyperlink so that the user may access the client website. CCBill argues that it falls under the safe harbor of § 512(d) by displaying this hyperlink at the conclusion of the consumer transaction. We disagree. Section 512(d) reads: A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link. Even if the hyperlink provided by CCBill could be viewed as an “information location tool,” the majority of CCBill’s functions would remain outside of the safe harbor of § 512(d). Section 512(d) provides safe harbor only for “infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.” (Emphasis added). Perfect 10 does not claim that CCBill infringed its copyrights by providing a hyperlink; rather, Perfect 10 alleges infringement through CCBill’s performance of other business services for these websites. Even if CCBill’s provision of a hyperlink is immune under § 512(n), CCBill does not receive blanket immunity for its other services. E. Information Residing on Systems or Networks at the Direction of Users: § 512(c) Section 512(c) “limits the liability of qualifying service providers for claims of direct, vicarious, and contributory infringement for storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” H.R. Rep., at 53. A service provider qualifies for safe harbor under § 512(c) if it meets the requirements of §",
"operator of facilities therefor,” and includes entities “offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k). Section 512(k)(l)(B)’s definition has been interpreted broadly. See ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir.2001); Hendrickson v. Ebay, 165 F.Supp.2d 1082, 1087 (“eBay clearly meets the DMCA’s broad definition of online ‘service provider’ ”). Although there appears to be uniform agreement that the definition is broad, or at least broader than the definition of 512(k)(l)(A) concerning conduit-type services, the Court has found no discussion of this definition’s limits. Perfect 10 argues that section 512(c) was drafted with the limited purpose of protecting Internet infrastructure services in mind. Reply at 18. It contends that the definition for a provider of online services or network access does not include services that “participate in the selection or screening of that data or take an interest in the content of that data.” Id. at 18 n. 19. The inclusion of section 512(d) which creates a “safe harbor” for copyright infringement resulting from the use of information location tools by service providers, which include directories, indexes, references, pointers and hypertext links, strongly suggests that the definition of service provider is meant to include services that only provide location service tools, as well as services providing internet access and such tools. See H.R. Rep. 105-551(11), at 58 (identifying Yahoo! as an example); cf. also 47 U.S.C. § 231(b)(3)(reaeh of Child Online Protection Act defined by similar categories). The Court adopts that reading and will not use Perfect 10’s proposed interpretation to evaluate Cybernet’s ability to invoke the protection of section 512’s safe harbors. Nevertheless, Cybernet has made this a more complicated issue than it probably should be by its insistence that it does not host any infringing images and no image files pass through any of its computers. Opp’n at 21. This appears to be part of an overall' strategy to",
"direct, vicarious and contributory infringement, leaving copyright owners with limited injunctive relief. Corbis Corp., 351 F.Supp.2d at 1098-99. Further, the safe harbor provisions are not exclusive of any other defense an accused infringer might have. CCBill LLC, 488 F.3d at 1109 (“ ‘[Njothing in the language of § 512 indicates that the limitation on liability described therein is exclusive.’ ”) (quoting CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 552 (4th Cir.2004)). “Far short of adopting enhanced or wholly new standards to evaluate claims of copyright infringement against online service providers, Congress provided that OCILLA’s ‘limitations of liability apply if the provider is found to be liable under existing principles of law. ’ ” Ellison, 357 F.3d at 1077 (quoting S. Rep. 105-190, 19 (1998)). With these principles in mind, the court now considers whether Veoh is entitled to safe harbor with respect to the alleged infringing activity here. B. DMCA Threshold Requirements To avail itself of any of the four safe harbors, Veoh must first satisfy certain threshold requirements. That is, it must be a “service provider” (see 17 U.S.C. § 512(k)) and it must adopt, reasonably implement and inform subscribers of a policy providing that it may, in appropriate circumstances, terminate the accounts of repeat infringers. See 17 U.S.C. § 512(i)(1)(A); Ellison, 357 F.3d at 1080. Further, the service provider is obliged to accommodate, and must not interfere with, “standard technical measures” used by copyright owners to identify or protect copyrighted works. See 17 U.S.C. § 512(i)(1)(B); Ellison, 357 F.3d at 1080. Io does not dispute that Veoh is a “service provider” as defined by DMCA Section 512(k)(1)(B). Nor does it dispute that Veoh (a) has adopted and informed account holders of its repeat infringer policy and (b) accommodates, and does not interfere with, “standard technical measures” used to protect copyrighted works. However, Io contends that there is a triable issue whether Veoh implements its repeat infringer policy in a reasonable manner. The DMCA does not say what “reasonably implemented” means. Nonetheless, the Ninth Circuit has held that “a service provider ‘implements’ a policy if it has"
] |
available for inquiry, and the ease (or difficulty) of access to the requisite information. See Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1435 (7th Cir.1987); Century Prods., Inc. v. Sutter, 837 F.2d 247, 250-51 (6th Cir.1988); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir.1988) (en banc); see also Fed.R.Civ.P. 11, Advisory Committee’s Notes, 97 F.R.D. 198, 199 (1983). Litigants, like counsel, are to be held “to standards of due diligence and objective reasonableness — not perfect research or utter prescience.” Maine Audubon, 907 F.2d at 268. Furthermore, for Rule 11 purposes, a party’s pleading must be judged on the basis of what was reasonable when the pleading was filed rather than in hindsight. See REDACTED Davis v. Crush, 862 F.2d 84, 88 (6th Cir.1988). B. In this instance, the district court’s finding that appellant slighted his duty of reasonable inquiry is sufficiently supported by the record. The statements contained in the challenged pleading were demonstrably incorrect. For example, the court below pointed out that those patients who had been involuntarily committed to the GTC— and there were many — were most assuredly not free to depart “at any time they want.” The court also observed that, even as to voluntarily committed patients, there was a severe shortage of rehabilitation facilities, with the result that such patients, once cleared to leave, often remained confined to the GTC for years — a circumstance that, as a practical
|
[
"requires attorneys to take responsibility for the claims and defenses they represent; attorneys must make reasonable inquiry to assure that the claims, defenses and positions represented by them are well-grounded in both law and fact and are not intended to serve an improper purpose, such as harassment or delay. Under the rule, attorneys are also under a continuing obligation to ensure that the proceedings do not continue without a reasonable basis in law and fact. Robinson v. National Cash Register, 808 F.2d 1119, 1127 (5th Cir.1987); cf. Nemeroff v. Abelson, 704 F.2d 652, 658-59 (2d Cir.1983). The rule thus requires attorneys “to conduct [themselves] in a manner bespeaking reasonable professionalism and consistent with the orderly functioning of the judicial system.” Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1488, 1491 (1st Cir.1988) (quoting In re D.C. Sullivan Co., 843 F.2d 596, 598 (1st Cir.1988)), aff'd in part on rehearing en banc, 878 F.2d 1478 (1989). The appropriate standard for measuring whether a party and his or her attorney has responsibly initiated and/or litigated a cause of action in compliance with Rule 11, as amended in 1983, is an objective standard of reasonableness under the circumstances. Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600, 604-05 (1st Cir.1988); Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 756-57 (1st Cir.1988); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 873 (5th Cir.1988); Fed R.Civ.P. 11, advisory notes. Before Rule 11 was revised in 1983, the standard under Rule 11 was a subjective one of good faith. Kale, 861 F.2d at 757. Under revised Rule 11, however, subjective good faith is no longer enough to protect an attorney from Rule 11 sanctions. Robinson, 808 F.2d at 1127. A violation of Rule 11, as revised, might be caused by inexperience, incompetence, willfulness, or deliberate choice. Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987); Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3rd Cir.1987). In imposing sanctions under Rule 11 and measuring an attorney’s conduct under this objective standard, courts should exercise caution. Courts should avoid using the wisdom of hindsight and instead evaluate an"
] |
[
"to Rule 11 liability, an attorney must sign the pleadings or papers filed in the district court which are the focus of inquiry. Rathbun v. Warren City Schools (In Re Ruben), 825 F.2d 977, 984 (6th Cir.1987). The notes of the Advisory Committee on Rules explain that “[t]he new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule.” Fed.R.Civ.P. 11 Advisory Committee’s notes. They further state that “[t]he standard is one of reasonableness under the circumstances,” and that “[t]his standard is more stringent than the original good faith formula and thus it is expected that a greater range of circumstances will trigger its violation....” Ibid. If the court finds that this principle has been violated, Rule 11 provides that the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. Fed.R.Civ.P. 11 (emphasis supplied). The mandatory word “shall” is intended to remove the exercise of discretion by the court in imposing Rule 11 sanctions once it has found a violation. The notes of the Advisory Committee on Rules also state that “[t]he new language is intended to reduce the reluctance of courts to impose sanctions ... by emphasizing the responsibility of the attorney and reinforcing those obligations by the imposition of sanc-tions_” Fed.R.Civ.P. 11 Advisory Committee’s notes. To prevail in an appeal from the imposition of Rule 11 sanctions, an appellant “must show that the district court abused its discretion in finding that his conduct was not reasonable under the circumstances.” Century Products, Inc. v. Sutter, 837 F.2d 247, 250 (6th Cir.1988) (citations omitted). Relevant factors for determining whether the reasonable inquiry test has been met in a given case include: “the time available to the signor for investigation; whether the signor had to rely",
"is reviewed under an abuse of discretion standard because “of the district court’s more intimate knowledge of the facts of these cases.” Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir. 1988). Accord Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.1988) (en banc) (“After careful consideration of the policies behind Rule 11, we believe application of an abuse of discretion standard across-the-board to all issues in Rule 11 cases is the better approach.”); EBI, Inc. v. Gator Industries, Inc., 807 F.2d 1, 6 (1st Cir.1986) (“Our standard of review [in Rule 11 cases], of course, permits us to look only for abuse of discretion.”); Lieb v. Topstone Industries, Inc., 788 F.2d 151, 158 (3d Cir.1986) (“The consideration of counsel fees under ... Rule 11 ... is a matter for the informed judgment of the district court.”); Stevens v. Lawyers Mutual Liability Insurance Company of North Carolina, 789 F.2d 1056, 1060 (4th Cir.1986) (“a district court’s imposition of Rule 11 sanctions is ordinarily entitled to deference by this Court and may not be disturbed except for abuse of discretion”); O’Connell v. Champion International Corp., 812 F.2d 393, 395 (8th Cir. 1987) (“whether a violation [of Rule 11] has occurred is a matter for the [district] court to determine, and this determination involves matters of judgment and degree”); Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986) (“The district court’s imposition of a sanction under Rule 11 is subject to review for abuse of discretion.”). In order to facilitate appellate review and ensure that we have something before us so that we may apply the appropriately deferential standard of review, district courts must make specific findings of facts and conclusions of law. See Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1437 (7th Cir.1987). Here, Trikilis argues that the district court should have imposed sanctions on the plaintiffs and their attorneys because this action was filed and the litigation was conducted for several years with knowledge that he had a strong defense to their claims. As a result, Trikilis contends, he should be compensated",
"to the point of certainty. Nemmers v. United States, 795 F.2d 628, 632 (7th Cir.1986). “The amount of investigation required by Rule 11 depends on both the time available to investigate and on the probability that more investigation will turn up important evidence; the rule does not require steps that are not cost-justified.” Szabo Food Service, 823 F.2d at 1083. In Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1433 (7th Cir.1987), we noted several factors bearing on whether a signer’s inquiry into the facts was reasonable: whether the signer of the documents had sufficient time for investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or other paper; whether the case was accepted from another attorney; the complexity of the facts and the attorney’s ability to do a sufficient pre-filing investigation; and whether discovery would have been beneficial to the development of the underlying facts. 830 F.2d at 1435. Rule 11 provides two grounds for sanctions, namely, the “frivolousness clause” and the “improper purpose” clause. Id. at 1435. The frivolousness clause requires that the party or the attorney conduct a reasonable inquiry into the facts and the law relevant to the case. Id. The improper purpose clause ensures “that a motion, pleading, or other document may not be interposed for purposes of delay, harassment, or increasing the costs of litigation.” Id. at 1436. The standard for imposing sanctions under either prong of Rule 11 is an “objective determination of whether the sanctioned party’s conduct was reasonable under the circumstances.” Id. at 1435. We must determine only whether the arguments actually advanced by counsel were reasonable, and not whether reasonable arguments could have been advanced in support of counsel’s position. In re Ronco, Inc., 838 F.2d 212 (7th Cir.1988). Also, as we pointed out in Brown, the most important purpose of Rule 11 sanctions is to deter frivolous litigation and the abusive practices of attorneys. Id. at 1438; see also Flip Side Productions, 843 F.2d at 1036. This same policy",
"been deleted”); Ballard’s Serv. Center, Inc. v. Transue, 865 F.2d 447, 449 (1st Cir.1989) (after 1983 amendments, “purely subjective bad faith” no longer required). In a nutshell, the revisers sought to expand Rule 11 to reach groundless filings which failed the test “of objective reasonableness under the circumstances existing at the time [of filing],” Kale, 861 F.2d at 758, irrespective of the filing party’s state of mind. Discussion The court below construed amended Rule 11 to preclude sanctions unless an attorney or party not only failed to make a “reasonable inquiry,” but also did so without a “sinceref ] belie[f]” that the challenged pleading might be availing. We strongly disagree. Such an interpretation would make the “new” Rule 11 less useful than its predecessor in combating abusive practices and would thereby undermine the goal of the 1983 amendments. Providing an automatic escape hatch from the duty of reasonable inquiry for pleaders who, while oblivious to the facts or the law, nevertheless blunder ahead in subjective good faith, would eviscerate the amended Rule and skew its laudable aim. We do not believe that the drafters’ language requires the result which the district court decreed. Although the wording of the amended Rule may possibly be ambiguous in this respect, the historical context and advisory committee notes unquestionably override any syntactical uncertainties. Not surprisingly, then, the amended Rule has rather consistently been read by federal appellate courts to reach groundless but “sincere” pleadings, as well as those which, while not devoid of all merit, were filed for some malign purpose. See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d 332, 335 (6th Cir.1988); Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435-36 (7th Cir.1987); Hale v. Harney, 786 F.2d 688, 692 (5th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C.Cir.1985); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); see also Schwarzer, supra, at 185. We, ourselves, have arrived at the same conclusion, albeit without extended discussion. See Unanue-Casal v. Unanue-Casal, 898",
"whatever means is appropriate in a specific ease”' — so long as the factual basis is put on the record. Id. at 1524; see also McCarthy, 394 U.S. at 463 n. 6, 89 S.Ct. at 1169 n. 6 (quoting 1974 Advisory Committee Note to Fed.R.Crim.P. 11(f)); United States v. Baez, 87 F.3d 805, 809 (6th Cir.) (holding that a district court need not “elicit detailed narrative responses from defendants” to satisfy Rule 11(f)), cert. denied, — U.S. -, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996); 1 Charles Alan Wright, Federal Practice and Procedure § 174 (2d ed. 1982 & Supp.1998). And if “the charge is uncomplicated, the indictment detailed and specific, and the [defendant’s] admission unequivocal,” then the reading of the indictment and the admission of the facts described in it satisfies Rule 11(f). Godwin v. United States, 687 F.2d 585, 590 (2d Cir.1982) quoted in United States v. O’Hara, 960 F.2d 11, 13 (2d Cir.1992). The Sixth Circuit has held that Rule 11(f) was satisfied when the plea agreement set out a factual basis for the charged crime, and the defendant agreed that it was accurate. See Baez, 87 F.3d at 810. The district court’s obligations under Rule 11(f) continue until it has entered judgment. If it decides there was no factual basis for a guilty plea after accepting it, the court should vacate the plea and enter a plea of not guilty on behalf of the defendant. See Fed.R.Crim.P. 11(f) (“Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry-”) (emphasis added); 1 Wright, Federal Practice and Procedure § 174. Smith’s brief on appeal raises two related issues regarding the adequacy of his guilty plea under Rule 11(f). First, Smith argues that, without regard to whether a possible necessity defense was raised, the district court failed to determine adequately that there was a factual basis for the plea, as Rule 11(f) requires. We think that there was a clear factual basis for the guilty plea, as Smith’s counsel virtually acknowledged at oral argument. The second issue",
"laudable aim. We do not believe that the drafters’ language requires the result which the district court decreed. Although the wording of the amended Rule may possibly be ambiguous in this respect, the historical context and advisory committee notes unquestionably override any syntactical uncertainties. Not surprisingly, then, the amended Rule has rather consistently been read by federal appellate courts to reach groundless but “sincere” pleadings, as well as those which, while not devoid of all merit, were filed for some malign purpose. See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d 332, 335 (6th Cir.1988); Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435-36 (7th Cir.1987); Hale v. Harney, 786 F.2d 688, 692 (5th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C.Cir.1985); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); see also Schwarzer, supra, at 185. We, ourselves, have arrived at the same conclusion, albeit without extended discussion. See Unanue-Casal v. Unanue-Casal, 898 F.2d 839, 841 (1st Cir.1990). In sum, Rule 11, in its present incarnation, should be read as requiring sanctions “when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Eastway, 762 F.2d at 254 (emphasis in original). In other words, the “new” Rule contains not one, but two, grounds for sanctions: the “reasonable inquiry” clause, see, e.g., Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir.1988); Zaldivar v. City of Los Angeles, 780 F.2d 823, 830-31 (9th Cir.1986), and the “improper purpose” clause, see, e.g., Brown, 830 F.2d at 1435; Zaldivar, 780 F.2d at 831-32. While bad faith remains sanctionable, it is now not a sine qua non to a Rule 11 impost. Put bluntly, a pure heart no longer excuses an empty head. In this",
"the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. Fed.R.Civ.P. 11 (emphasis supplied). The mandatory word “shall” is intended to remove the exercise of discretion by the court in imposing Rule 11 sanctions once it has found a violation. The notes of the Advisory Committee on Rules also state that “[t]he new language is intended to reduce the reluctance of courts to impose sanctions ... by emphasizing the responsibility of the attorney and reinforcing those obligations by the imposition of sanc-tions_” Fed.R.Civ.P. 11 Advisory Committee’s notes. To prevail in an appeal from the imposition of Rule 11 sanctions, an appellant “must show that the district court abused its discretion in finding that his conduct was not reasonable under the circumstances.” Century Products, Inc. v. Sutter, 837 F.2d 247, 250 (6th Cir.1988) (citations omitted). Relevant factors for determining whether the reasonable inquiry test has been met in a given case include: “the time available to the signor for investigation; whether the signor had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether the signor depended on forwarding counsel or another member of the bar.” Id. at 250-51 (citation omitted). We have recently stated that the “[t]he court is expected to avoid using the wisdom of hindsight and should test the signor’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.” INVST Financial Group v. Chem-Nuclear Systems (In Re Garratt), 815 F.2d 391, 401 (6th Cir.1987) (quoting Fed.R.Civ.P. 11 Advisory Committee’s note to the 1983 Amendment). An objective standard of reasonableness under the circumstances must be the measure of counsel’s behavior. Century Products, 837 F.2d at 251, 253. The focus of any Rule 11 inquiry for the district court must be pleadings, motions, or other papers filed in the district court, as opposed to those filed in state courts or in federal Courts of",
"F.2d 1219, 1221-1222 (8th Cir.1987) (Rule 9011 can be applied by bankruptcy court even though it is not an Article III court). The primary purpose of both rules is to deter unnecessary filings for the benefit of the judicial system. Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077-1080 (7th Cir.1987). It is well established that “[t]he standard for imposing sanctions under Rule 11 is an objective determination of whether a sanctioned party’s conduct was reasonable under the circumstances.” Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435 (7th Cir.1987). See Dreis & Krump Mfg. Co. v. International Ass’n. of Machinists & Aerospace Workers, 802 F.2d 247, 255 (7th Cir.1986). Subjective bad faith is no longer the inquiry. See, e.g., Brown, 830 F.2d at 1435. Once the Court finds a Rule 11 violation, it is required to impose a sanction for the protection of the judicial process and to relieve the financial burden that baseless litigation imposes on the other side. Szabo, 823 F.2d at 1082; see also PainWebber Inc. v. Can Am Financial Group, Ltd., 121 F.R.D. 324, 329 (N.D.Ill.1988), aff'd, 885 F.2d 873 (7th Cir.1989); Mars Steel Corp. v. Continental Illinois Nat. Bank & Trust Co., 120 F.R.D. 53, 55 (N.D.Ill.1988), aff'd, 880 F.2d 928 (7th Cir.1989). Rule 11 contains two grounds for sanctions. The first ground is the “frivolousness clause.” Brown, 830 F.2d at 1435. The relevant inquiry for this ground has two prongs: (1) whether the attorney or party made a reasonable investigation into the facts; and (2) whether the attorney or party made a reasonable investigation of the law. In making a determination of whether the attorney or party made a reasonable inquiry into the facts of the case, the following five factors must be considered: (1) whether the signer of the documents had sufficient time for investigation; (2) the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion, or other paper; (3) whether the case was accepted from another attorney; (4) the complexity of the facts and the",
"of professional judgment, that is, no minimally competent professional would have so responded under those circumstances.”). By contrast, evidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim. Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996). Even among the medical community, the permissible bounds of competent medical judgment are' not always clear, particularly because “it is implicit in the professional judgment standard itself ... that inmate medical care decisions must be fact-based .with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical malpractice does not automatically give rise to a constitutional violation), and an action that reflects sub-minimal competence and crosses the threshold into deliberate indifference. One hint of such a departure is when a doctor refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005). Another situation that might establish a departure from minimally competent medi cal judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat",
"existing law; and that it is not interposed for any improper purpose, such as to harass or to cause delay or increase the cost of litigation. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. This Rule is an adaptation of Federal Rule of Civil Procedure 11 with some modification. Thus, cases interpreting the standard required by Fed.R.Civ.P. 11 are persuasive when one considers the appropriate standard to be used in conjunction with Bankruptcy Rule 9011. First, it is a generally accepted proposition that there is a definite duty to conduct a reasonable inquiry as to the factual basis asserted by the party who signed the particular document. Second, it is also generally accepted that the standard to be applied is objective, rather than subjective, and the subjective good faith of an attorney is no excuse. In re D. C. Sullivan Co., Inc., 843 F.2d 596 (1st Cir.1988); see Thomas v. Capital Security Services, Inc., 812 F.2d 984 (5th Cir.1987), on reh., en banc, Thomas v. Capital Security Services, 822 F.2d 511 (5th Cir.1987), 836 F.2d 866 (5th Cir.1988) (en banc); INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 401 (6th Cir.1987), cert. den., 484 U.S. 927, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987); Eastway Const. Corp. v. City of New York, 762 F.2d 243 (2d Cir.1985). As stated by the District Court in the case of Robert D. Sheret, d/b/a Twin Pines Sport Shop, 76 B.R. 935, 936 (W.D.N.Y.1987), “[sjubjective good faith does not provide a safe harbor against sanction.” The reasonableness of the investigation should be determined by the existing circumstances at the time the pleading or motion is submitted. In the present instance, there is hardly any doubt that even a cursory inquiry would have revealed"
] |
Marion, and Wolfson. Defendant Wolfson seeks summary judgment against APU on the ground that he is not hable to APU for any damages under CERCLA or any other theory of liability; Defendants Witben, Sereth, Wolsher, and Universal Marion seek similar relief in their summary judgment motion against APU. The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., provides for the clean up of hazardous substances that threaten the environment and human health. B.F. Goodrich Company v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992). The statute imposes strict liability for the costs associated with responding to the release or threatened release of the hazardous substance. B.F. Goodrich Co., supra, at 1198; State of REDACTED Liability for response costs may be imposed on various classes of responsible persons, including past and present owners or operators of facilities, transporters of hazardous substances, and those who generate or arrange for the disposal or treatment of hazardous substances. 42 U.S.C. § 9607(a). The statute also allows any individual or entity who has incurred response costs in connection with the clean up of hazardous waste sites to sue a responsible defendant for these costs. 42 U.S.C. § 9607(a)(4)(B). In addition, as CERCLA liability is joint and several, any one party found to be liable for response costs is potentially liable for the entire cost of responding to a hazardous waste site. B.F. Goodrich Co., supra, at 1198. To establish
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[
"History, supra, at 777; see also id. at 31,966 (Department of Justice view of Senate compromise discussing strict liability), reprinted in 1 CERCLA Legislative History, supra, at 780-81. Strict liability under CERCLA, however, is not absolute; there are defenses for causation solely by an act of God, an act of war, or acts or omissions of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with the defendant. 42 U.S.C. § 9607(b). Discussion A. Liability for Response Costs Under CERCLA We hold that the district court properly awarded the State response costs under section 9607(a)(4)(A). The State’s costs in assessing the conditions of the site and supervising the removal of the drums of hazardous waste squarely fall within CERCLA’s definition of response costs, even though the State is not undertaking to do the removal. See id. §§ 9601(23), (24), (25). Contrary to Shore’s claims, the State’s motion for summary judgment sought such costs, and Shore had ample opportunity for discovery. That a detailed accounting was submitted only at this court’s request for supplemental findings is immaterial; Shore had an opportunity to contest the accounting but failed to make anything more than a perfunctory objection. 1. Covered Persons. CERCLA holds liable four classes of persons: (1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility/ ! (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person. 42 U.S.C. §"
] |
[
"influence the dealers’ waste disposal practices. As this appeal comes to us on the district court’s grant of summary judgment in favor of the defendants-appellees, we must engage in a de novo review of the record. We will affirm the district court only if we agree that there is no genuine issue as to any material facts, and that the appellant is entitled to judgment as a matter of law. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992). A. CERCLA’s Statutory Scheme: CERCLA is a broad, remedial statute enacted by Congress in order to enable the Environmental Protection Agency (the “EPA”) to respond quickly and effectively to hazardous waste spills that threaten the environment, and to ensure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” S.Rep. No. 848, 96th Cong., 2d Sess. 13 (1980), U.S.Code Cong. & Admin.News 1980, 6119, reprinted in 1 CERCLA Legislative History at 320. Under CERCLA, the EPA is authorized to undertake remedial efforts to clean up hazardous waste spills and, where an “imminent and substantial endangerment to the public health exists,” to take legal action in order to compel potentially liable parties to undertake their own private clean-up efforts. Murtha, 958 F.2d at 1196; 42 U.S.C. § 9606(a). In enacting CERCLA, Congress established four groups of responsible parties, all of whom are liable regardless of intent, and provided a limited number of narrowly constructed defenses to CERCLA liability. 42 U.S.C. § 9607(a) and (b). Through this scheme of liability Congress envisioned a system that would permit the EPA to recoup its costs from a source of funds other than the taxpayers. It was Congress’ intent that CERCLA be construed liberally in order to accomplish these goals. Murtha, at 1198. In order to establish a prima facie case of CERCLA liability, a plaintiff must prove that (1) the defendant is a responsible party as defined by section 9607(a)(l)-(4); (2) that the site at issue is a “facility” as defined by section 9601(9); (3) that there has been a release of hazardous substances at",
"Potentially responsible persons are held strictly hable for cleanup costs incurred by any other person. B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Thus, under the plain language of the statute, it would appear that the Plaintiffs are potentially responsible under § 9607(a). CERCLA provides a limited number of affirmative defenses. “Liability under § 9607(a) is precluded only by a defense that the release or threatened release was caused solely -by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); see 42 U.S.C. § 9607(b). Despite the inapplicability of these defenses, the Plaintiffs set forth three theories as to why they are not potentially responsible parties: (1) the site was not a “facility” within the meaning of CERCLA until the Fire Company responded; (2) AMW was not an “operator” of the site within the meaning of CERC-LA; and (3) Antoniou was an innocent owner. a. “Facility” Defense The term “facility” is defined in section 101 of CERCLA. “Facility” means “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9). “Hazardous substance” is defined to include any element, compound, mixture, solution, or substance designated by the Environmental Protection Agency (EPA) as presenting substantial danger to the public health or welfare or the environment when released to the environment. Id. § 9601(14). Thus, to establish that a site is a “facility” under CERCLA, one need only show that a hazardous substance has been placed there or has otherwise come to be located at the site. The Plaintiffs’ argument that the site was not a facility under CERCLA defies logic. A critical element to the Plaintiffs’ claim for indemnification is that hazardous substances contaminated the site. The Plaintiffs admit that their business used and stored various types of hazardous chemicals, including sodium chromate, Ammonium Fluoride, Chromic Acid, Sodium",
"party is potentially responsible under CERCLA for costs associated with a toxic spill at a site, if: (1) the site is a “facility;” (2) a release or threatened release of a “hazardous substance” from the site has occurred; (3) the release or threatened release has caused the plaintiff to incur response costs; and (4) the defendant falls within at least one of the four classes of responsible persons described in § 9607(a) of . CERCLA. 42 ' U.S.C. § 9607(a); U.S. v. Alcan Aluminum Corp., 315 F.3d 179, 180 (2d Cir.2003). The four classes of responsible parties are (1) the current owner and operator of the facility; (2) the owner or operator of the facility at the time hazardous substances were disposed there; (3) any person who generated or arranged for the treatment or disposal of a hazardous substance at the facility; and (4) any person who transported hazardous substances to the facility. 42 U.S.C. § 9607(a)(l)-(4); see also Commander, 215 F.3d at 326; B.F. Goodrich Co. v. Murbha, 958 F.2d 1192, 1198 (2d Cir.1992). Potentially responsible persons are held strictly hable for cleanup costs incurred by any other person. B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Thus, under the plain language of the statute, it would appear that the Plaintiffs are potentially responsible under § 9607(a). CERCLA provides a limited number of affirmative defenses. “Liability under § 9607(a) is precluded only by a defense that the release or threatened release was caused solely -by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); see 42 U.S.C. § 9607(b). Despite the inapplicability of these defenses, the Plaintiffs set forth three theories as to why they are not potentially responsible parties: (1) the site was not a “facility” within the meaning of CERCLA until the Fire Company responded; (2) AMW was not an “operator” of the site within the meaning of",
"Costs. CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4). To establish liability, a plaintiff must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility”; (3) which caused the plaintiff to incur Response Costs; and (4) each of the defendants fits within one of the categories of potentially responsible parties (“PRPs”) identified under CERCLA § 107(a), 42 U.S.C. § 9607(a). A & N Cleaners, 788 F.Supp. at 1322. Among the four classes of PRPs under CERCLA § 107(a) are the current “owner and operator” of the facility. Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in CERCLA § 107(b), 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1197. Under the “Third-Party Defense” set forth in CERCLA § 107(b)(3), a defendant is not liable if it establishes that the release or threatened release was caused solely by: (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances [the “Due Care Requirement”], and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions [the “Precautionary Requirement”]. The second defense relevant to this case, the “Innocent Landowner Defense,” is actually a special ease of the Third-Party Defense. In 1986 Congress created an exception to the “no contractual relationship” requirement of the Third-Party",
"a ‘broad remedial statute,”’ B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996) (quoting B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992) (“Murtha I”)), cert. denied, — U.S. -, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998), enacted to assure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” Id. (quoting S. Rep. 848, 96th Cong., 2d Sess. 13 (1980), reprinted in 1 Senate Comm. On Env’t and Pub. Works, Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, at 305, 320 (1983)). “As a remedial statute, CERCLA should be construed liberally to give effect to its purposes.” Id. (citing Schiavone v. Pearce, 79 F.3d 248, 253 (2d Cir.1996)). CERCLA addresses in particular the costs of responding to the release or threatened release of “hazardous substances,” as that term is defined by CERC-LA § 101(14) (42 U.S.C. § 9601(14)). Towards that end, section 107 of the statute (42 U.S.C. § 9607) provides a private right of action for the recovery of such costs in certain circumstances. In determining liability under § 107, the quantity or concentration of the hazardous substance is not a factor. See United States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir.1993)(“Congress planned for the ‘hazardous substance’ definition to include even minimal amounts of pollution.”); Murtha I, 958 F.2d at 1200. Rather, in order to make out a prima facie case under § 107, a plaintiff must establish five elements. See Betkoski, 99 F.3d at 514; Alcan, 990 F.2d at 719-20; Murtha I, 958 F.2d at 1198. The plaintiff must prove that: First, the defendant falls within one of the four categories of potentially responsible parties set forth in § 107(a) (42 U.S.C. § 9607(a)). See Betkoski, 99 F.3d at 514. The categories include: (1) the owner and operator of ... a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise",
"conditions they created. Id. at 1112, quoted in Dedham, 805 F.2d at 1081. CERCLA establishes an “array of mechanisms” to achieve its objectives. Relevant here, the Government may take response action whenever there is a release or threatened release of “hazardous substances” and then sue certain persons for reimbursement of the cleanup costs. 42 U.S.C. § 9604. To establish liability, the Government must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility” ; (3) which caused the Government to incur response costs; and (4) each of the defendants fits within one of the categories of responsible parties identified under § 107(a) of CERCLA. 42 U.S.C. § 9607(a); CPC Infl, Inc. v. Aerojet-Gen. Corp., Ill F.Supp. 549 (W.D.Mich.1991). Among the four classes of potentially liable defendants under CERCLA § 107(a) are the current “owner and operator” of the facility, 42 U.S.C. § 9607(a)(1), and any person who at the time of disposal of any hazardous substance “owned or operated” any facility at which such hazardous substances were disposed. Id. § 9607(a)(2). These so-called “covered parties” are liable for “all costs of removal or remedial action incurred by the United States or a State not inconsistent with the national contingency plan,” if “there is a release, or a threatened release which causes the incur-rence of response costs, of a hazardous substance” from the facility. Id. § 9607(a)(4). Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in § 107(b), id. § 9607(b), has been satisfied, the liability of covered parties for costs incurred in the clean-up is strict. B.F. Goodrich Co. v. Harold Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir.1985); United States v. Monsanto Co., 858 F.2d 160, 167 & n. 11 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1198; O’Neil v. Picillo, 883 F.2d",
"operators of facilities at which hazardous substances were disposed,” 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir.1990), and where the environmental harm is indivisible, liability is joint and several, B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (citing O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir.1989)). To further its purposes, CERCLA “ ‘authorizes private parties to institute civil actions to recover the costs involved in the cleanup of hazardous wastes from those responsible for their creation.’ ” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir.2001) (en banc) (quoting 3550 Stevens, 915 F.2d at 1357). To establish a prima facie case in a private cost recovery action under CERCLA, a plaintiff must demonstrate that (1) the site on which the hazardous substances are contained is a “facility” under CERCLA’s definition of that term, ... (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred, ... (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan,” ... and (4) the defendant is within one of four classes of persons subject to the liability provisions of [42 U.S.C. § 9607(a) ]. Id. at 870-71 (quoting 3550 Stevens, 915 F.2d at 1358). Even if a plaintiff establishes a prima facie case, however, a defendant can avoid liability through one of the affirmative defenses provided in 42 U.S.C. § 9607(b). These defenses refer to situations in which the release of hazardous substances “was caused solely by an act of God, an act of war, or certain acts or omissions of third parties other than those with whom a defendant has a contractual relationship.” Murtha, 958 F.2d at 1198 (citing 42 U.S.C. § 9607(b)). The latter is variously referred to as the “innocent landowner,” “third-party,” or “innocent-party” defense. See Carson Harbor, 270 F.3d at 871; United States v. Honeywell Int’l, Inc., 542 F.Supp.2d 1188, 1199 (E.D.Cal.2008) (England, J.). Here, the City contends that plaintiff cannot satisfy either the first or fourth",
"other hazardous substances. CERCLA is a broad, remedial statute enacted by Congress in order to ensure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285 (2d Cir.1992) (quoting S.Rep. No. 96-848, at 13 (1980)). Under CERCLA, the Environmental Protection Agency (“EPA”) is authorized to undertake remedial efforts to clean up hazardous waste spills, and, where an “imminent and substantial endangerment to the public health exists,” to take legal action in order to compel potentially responsible parties to undertake their own private cleanup efforts. Gen. Elec. Co., 962 F.2d at 285; 42 U.S.C. § 9606(a). There are several aspects of CERCLA of immediate relevance here: • “CERCLA is a strict liability-statute, one of the purposes of which is to shift the cost of cleaning up environmental harm from the taxpayers to the parties who benefited from the disposal of the wastes that caused the harm.” In re Bell Petroleum Servs., 3 F.3d 889, 897 (5th Cir.1993); see also United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1378 (8th Cir.1989). • CERCLA by its terms has unlimited retroactivity. Indeed, every court of appeals to consider the question has concluded that Congress intended CERCLA to apply retroactively. See, e.g., Northeastern Pharm., 810 F.2d at 732; Monsanto, 858 F.2d at 174. • While the statute does cap those costs that may be imposed on current and former owners and other potentially responsible parties, those caps are quite high. See 42 U.S.C. § 9607(c). For example, the liability for the release of a hazardous substance from a facility is “the total of all costs of response plus $50,000,000 for any damages .... ” § 9607(c)(1)(D). • Costs may be imposed on any current or former property owner or other potentially responsible party. See Monsanto, 858 F.2d at 167. Under CERCLA’s liability provision, responsible parties include those who arrange for the treatment of hazardous substances. A party may be liable under CERCLA for the arrangement for treatment of any “hazardous substances owned or",
"waste spills and, where an “imminent and substantial endangerment to the public health exists,” to take legal action in order to compel potentially liable parties to undertake their own private clean-up efforts. Murtha, 958 F.2d at 1196; 42 U.S.C. § 9606(a). In enacting CERCLA, Congress established four groups of responsible parties, all of whom are liable regardless of intent, and provided a limited number of narrowly constructed defenses to CERCLA liability. 42 U.S.C. § 9607(a) and (b). Through this scheme of liability Congress envisioned a system that would permit the EPA to recoup its costs from a source of funds other than the taxpayers. It was Congress’ intent that CERCLA be construed liberally in order to accomplish these goals. Murtha, at 1198. In order to establish a prima facie case of CERCLA liability, a plaintiff must prove that (1) the defendant is a responsible party as defined by section 9607(a)(l)-(4); (2) that the site at issue is a “facility” as defined by section 9601(9); (3) that there has been a release of hazardous substances at the facility or that such a release is threatened; (4) that the plaintiff has incurred response costs in connection with that release; and that (5) the costs incurred and the response actions taken conform to the National Contingency Plan set up under CERCLA. Id. at 1198. Under CERCLA’s liability provision, responsible parties include generators of hazardous waste, present or past owners at the time of disposal of facilities where hazardous wastes are disposed of, transporters of hazardous wastes, and those who arrange for the disposal or transport of hazardous waste. 42 U.S.C. § 9607(a); Murtha, at 1198; Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990). The only issue raised on this appeal is whether the defendants-ap-pellees are liable as entities that arranged for the disposal of a hazardous substance. B. Arranger Liability Under § 9607(a)(3): Section 9607(a)(3) provides that, any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or"
] |
The applications are moot. Section 327(a) of the Code permits a trustee to employ professionals, including attorneys. 11 U.S.C. § 327(a). In the case of a committee appointed under section 1102 of the Code, section 1103(a) authorizes the committee to employ professionals, 11 U.S.C. § 1103(a), and section 328(a) authorizes the committee to employ professionals under section 327(a), 11 U.S.C. § 328(a). Under sections 330(a)(1)(A) and (B), the bankruptcy court is authorized to award reasonable compensation and reimbursement of expenses to any professional employed under sections 327 or 1103. 11 U.S.C. §§ 330(a)(1)(A), (B). Committee professionals seeking compensation — professionals like Wolf and Benoit — can apply to the court to have their compensation approved under section 330. See REDACTED In re Recycling Indus., Inc., 243 B.R. 396, 400 (Bankr.D.Colo.2000). But an application under section 330 is necessary and appropriate only “when a professional is seeking an award payable from the [bankruptcy] estate.” In re McDonald Bros. Constr., Inc., 114 B.R. 989, 994 (Bankr.N.D.Ill.1990). That is because “ ‘[t]he funds of a bankruptcy estate are trust funds. The Court has a duty to see that these funds are administered in a manner consistent with the intent of the Bankruptcy Code.’ ” Id. at 994 (quoting In re Ross, 88 B.R. 471, 475 (Bankr.M.D.Ga.1988)). When a professional will be compensated from a source other than the estate, the professional “need not, and should not,” apply to the bankruptcy court to have his
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[
"negotiated with the Committee for several weeks over the terms of their compensation for their work as financial advisors. After listening to the testimony presented at the November 19, 2007 hearing, it is clear that these terms were not the result of “bad drafting” or “mistake.” On the contrary, the parties appeared to have created a practical solu tion for the time: set the amount of monthly compensation now and address the issue of a success, completion or other “back-end” fee at a later date. For reasons explained below, the Court finds neither FTI’s nor Lazard’s requests for a success fee were “preapproved” in their retention applications under Bankruptcy Code Section 328. Furthermore, their request for a success fee also fails to meet the standard outlined under Bankruptcy Code Section 330. I. Review of FTI’s and Lazard’s Request for Success Fees A. FTI FTI was retained pursuant to Bankruptcy Code Sections 328(a) and 1103(a), which cover the compensation of professionals retained by a committee. Section 328(a), in pertinent part, authorizes, with court approval, a “committee appointed under section 1102 of this title,” to “employ ... a professional person under section 327 or 1103 ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis.” 11 U.S.C. § 328 (2008). Section 1103(a) authorizes a creditor’s committee, with court approval, to select and employ agents to represent to perform services on behalf of the committee. 11 U.S.C. § 1103 (2008). FTI was to be compensated pursuant to the procedures set forth in Section 330 of the Bankruptcy Code, although its monthly compensation and expenses would not be challenged except under the standard of review established in Bankruptcy Code Section 328(a). FTI Retention Order at p. 2. Under Section 328(a), professionals such as FTI, may obtain pre-approval of their compensation arrangements from the Court. The “pre-approval” affords the professional assurances the amount of compensation approved will not be modified by the Court unless it is proven that the amount was “improvident in light developments"
] |
[
"persons (a) ... [T]he trustee, with the court’s approval, may employ one or more ... professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 330 provides: Compensation of officers (a) ... [T]he court may award to ... a professional person employed under section 327.... (1) reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. . Rule 2014 provides: Employment of Professional Persons (a) Application for an order of employment An order approving the employment of ... professionals pursuant to § 327 ... shall be made only on application of the trustee ... stating the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debt- or, creditors, or any other party in interest. ... . We have found a handful of bankruptcy cases that seem to use \"court approval” under § 327 synonymously with \"court appointment.\" See, e.g., In re Northeast Dairy Co-op. Federation, Inc., 74 B.R. 149, 152 (Bankr.N.D.N.Y.1987); In the Matter of Ross, 88 B.R. 471, 475 (Bankr.M.D.Ga.1988); In re Amherst Mister Anthony's Ltd., 63 B.R. 292, 293 (Bankr.W.D.N.Y.1986). None of these cases involves the specific issue of whether expert witness fees may be assessed against a losing party in an adversary proceeding; rather they involve compensation of court \"appointed” professionals from the bankruptcy estate under 11 U.S.C. § 330. The use of the term \"appointment” in these cases was imprecise and they hardly constitute persuasive precedent in the cost-assessment context.",
"supplied). The Bankruptcy Reform Act of 1994 deleted the phrase “debtor’s attorney” from the statute. Section 330(a)(1)(A) now provides: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to section 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person[.] 11 U.S.C. § 330(a)(1)(A) (1994). Several courts have concluded that they no longer have any authority to award compensation to a debtor’s attorney as an administrative expense. See United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Serv., Inc.), 215 B.R. 18 (9th Cir. BAP 1997); In re Thomas, 195 B.R. 18 (Bankr.W.D.N.Y.1996); In re Fassinger, 191 B.R. 864 (Bankr.D.Or.1996); In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995); In re Kinnemore, 181 B.R. 520 (Bankr.D.Idaho 1995). They have also relied on the provisions of § 330(a)(4) to preclude allowance of a claim of a debtor’s attorney against the Chapter 7 estate. Section 330(a)(4) provides: (4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for — ■ (i) unnecessary duplication of services; or (ii) services that were not— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. (B) in a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4). Those courts have interpreted Congress’ failure to include a reference to Chapter 7 debtor’s counsel fees in (a)(4)(B) “to mean [that] the legislature intended to exclude such attorneys from compensation from the bankruptcy estate.” Kinnemore, 181 B.R. at 521; see also Fassinger, 191 B.R. at 865;",
"with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.... Sections 330 and 331 of the Bankruptcy Code and Fed.R.Bankr.P. 2016(a) set forth the procedural requirements for obtaining interim or final compensation for the services rendered by professionals whose employment previously has been approved by the court. Section 330(a) provides for a general award of compensation and states as follows: (1) After notice to the parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. To the extent a professional seeks compensation during the pendency of the bankruptcy case, i.e. “interim” compensation, the professional must further comply with the provisions of Section 331, which states as follows: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. See generally David & Hagner, P.C. v. DHP, Inc., 171 B.R. 429, 435 (D.D.C.1994) (stating that “Section 331 permits such compensation [awardable under Section 330] to be paid on an interim basis during the pendency of the bankruptcy case”), aff'd, 70 F.3d 637, 1995 WL",
"extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (emphasis added). Section 331 states: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. 11 U.S.C. § 331 (emphasis added). Finally, section 328(a) states in part: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. As these Code provisions indicate, generally, professionals whose services are retained pursuant to § 327 must file an application for compensation, which is subject to a noticed hearing, prior to allowance and payment of fees. See 11 U.S.C. §§ 330 and 331; In re Knudsen Corp., 84 B.R. 668, 672 (9th Cir. BAP 1988). However, the debtor’s counsel argues, and several courts have held that fee payments and application procedures whereby professionals may be paid each month without prior court approval of billing statements are permissible pursuant to § 328 of the Code which authorizes the employment of professionals on any reasonable terms and conditions, including retainers. See e.g. In re Knudsen Corp., 84 B.R. 668 (9th Cir. BAP 1988). In this case, the bankruptcy court found that the procedure for payment at issue is similar",
"those services that were performed after January 22, 2002. B. Employment under § 327 At the hearing on the Applications, however, all of the Creditors requested the nunc pro tunc approval of their employment by the estate. Generally, professional persons who are employed by the trustee pursuant to § 327 of the Bankruptcy Code may be awarded reasonable compensation for their services pursuant to § 330 of the Bankruptcy Code. Section 327(a) provides: 11 U.S.C. § 327. Employment of professional persons (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a)(Emphasis supplied). Section 330(a)(1) provides: 11 U.S.C. § 330. Compensation of officers (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(Emphasis supplied). The combined effect of these statutes is to authorize an award of compensation to professionals who have been employed by the trustee, and whose employment has been approved by the Court. As a general rule, however, professional persons are not entitled to any compensation for postpetition services if they did not obtain prior approval of their employment from the Court. In re Keller Financial Services of Florida, Inc., 248 B.R. 859 (Bankr.M.D.Fla.2000)(quoting In re Monument Auto Detail, Inc., 226 B.R. 219 (9th Cir. BAP 1998) and In re W.T. Mayfield Sons Trucking Co., Inc., 225 B.R. 818 (Bankr.N.D.Ga.1998)). See also In re Stoico Restaurant Group, Inc., 271 B.R. 655 (Bankr.D.Kan.2002). C. Retroactive approval In this",
"§ 330(a) does not permit the award of fees to Chapter 7 or Chapter 11 debtor’s attorneys. Thus, he argues, the bankruptcy court was not authorized to award fees to either E & H or JPL who served in that capacity. Even if section 330(a) does allow such an award of fees, Smith argues that the fee awards cannot be supported under the benefit analysis approach employed in Pfeiffer v. Couch (In re Xebec), 147 B.R. 518 (9th Cir.BAP 1992). We address these contentions in turn. Section 330(a) of the Bankruptcy-Code governs the compensation of officers and professionals working on a bankruptcy case. Prior to 1994, section 330(a) provided that: After notice to any parties in interest and to the United States trustee and a hearing, ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title [which authorizes the trustee or creditors’ committee to employ attorneys and other professionals], or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (1988) (emphasis added). Subsequently, Congress passed the Bankruptcy Reform Act of 1994(Reform Act). The Reform Act renumbered various provisions and substituted the following relevant provisions in section 330: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, ... the court may award to a trustee, an examiner, a professional person under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (a)(3)(A) In determining the amount",
"set forth in section 330 of the Bankruptcy Code. In relevant part, it provides: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to ... a professional person employed under section 327 (A) reasonable compensation for actual, necessary services rendered by the professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement of actual, necessary expenses. (3)(A) In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (4) (A) Except as provided in subparagraph (B) the court shall not allow compensation for- (i) unnecessary duplication of services or (ii) services that were not— (i) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. 11 U.S.C. § 330(a). An applicant bears the burden of proving the reasonableness of compensation from a bankruptcy estate. Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 267-68, 61 S.Ct. 493, 496-97, 85 L.Ed. 820 (1941). Fees should be awarded for services that were beneficial at the time rendered and, by inverse construction, reasonably likely to benefit the debtor’s estate. In re Ames Dep’t Stores, Inc., 76 F.3d 66, 71, 72 (2d Cir.1996) (quotation omitted). Notwithstanding section 330(a), the bankruptcy court may deny compensation pursuant to section 328(c) if it determines that counsel for the estate is not disinterested or represents or holds an interest adverse to the interests of the estate. See, e.g., Fellheimer, Eichen & Braverman, P.C, v. Charter Technologies, Inc., 57 F.3d 1215, 1228-29 (3d Cir.1995); In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 843, 845 (Bankr.C.D.Cal.1991). Similarly, the court may deny fees “on account of such attorney’s wrongdoing, negligence, or serious breaches of fiduciary obligations.”",
"detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). Unfortunately, the only statutory cap setting maximum fees regards bankruptcy trustee fees as provided in section 326. Section 328, however, provides a potential check on the compensation of professionals. Section 328(a) states: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. (Emphasis added). 11 U.S.C. § 328(a). Even though private compensation agreements are permissible under the Code, the Court retains the responsibility of ensuring that the compensation awarded to professional persons falls within the parameters prescribed by section 330. See In re Churchfield Management & Invest. Corp., 98 B.R. 893 (Bankr.N.D.Ill.1989). The burden of proof to show entitlement to the fees requested is on the applicant. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Association, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); Pettibone, 74 B.R. at 299-300; In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986). Several courts have denied or drastically reduced compensation in unsuccessful Chapter 11 cases. See In re King, 96 B.R.",
"abused its discretion or erroneously applied the law.” Boldt v. Crake (In re Riverside-Linden Investment Co.), 945 F.2d 320, 322 (9th Cir.1991). DISCUSSION The bankruptcy code contains specific provisions governing compensation of professionals. Section 330 provides: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328 and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney 11 U.S.C. § 330. The provision at issue here, governing professionals employed by a trustee, states: The trustee ... with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). Under section 328, where the bankruptcy court has previously approved the terms for compensation of a professional, when the professional ultimately applies for payment, the court cannot alter those terms unless it finds the original terms “to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” In re Confections by Sandra, Inc., 83 B.R. 729, 731 (Bankr. 9th Cir.1987); Seiler v. First Nat’l Bank of Babbitt (In re Benassi), 72 B.R. 44, 47-48 (Bankr.D.Minn.1987); see also Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 960 (9th Cir.1991) (citing Benassi; section 328 “applies where the court has validated a",
"which provides as follows: § 330. Compensation of officers. (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(1) and (2). Pursuant to Section 330 of the Bankruptcy Code, all professionals applying for fees must demonstrate that their services were actual, necessary and reasonable. The legislative history of section 330 expressly notes the Court’s correlative duty to closely examine the reasonableness and necessity of the fees incurred. Bankruptcy Rule 2016(a) in turn requires that “[a]n entity seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). The burden of proof to show entitlement to the fees requested is on W & S. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact, has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); In re Wyslak,"
] |
"is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid ""is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that ""[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments."" REDACTED ul. 79-284, 1979-2 C.B. 83; Rev.Rul 73-304, 1973-2 C.B. 42; Matter of Ribs-R-Us, 828 F.2d 199, 201 (3d Cir.1987)). ""An involuntary payment traditionally has been defined as 'any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.’ "" Id. (citing Amos v. Commissioner, 47 T.C. 65, 69, 1966 WL 1102 (1966) (emphasis in Pep-perman)). ""Most courts ... have concluded that payments made in the bankruptcy context are involuntary."" Id. (citations omitted). The Third Circuit “conclude(d) ... that payments made to the IRS out of a Chapter 7 debtor’s estate are involuntary.” Id."
|
[
"U.S. at 275, 98 S.Ct. at 1800; In re Ribs-R-Us, 828 F.2d 199, 200-01 (3d Cir.1987). The IRS need not attempt to collect the withholding taxes from the employer before seeking to collect from the responsible person. Ribs-R-Us, 828 F.2d at 201; United States v. Pomponio, 635 F.2d 293, 298 (4th Cir.1980). However, under long-standing IRS policy, the government will retain only one satisfaction of the unpaid trust fund taxes, whether collected in part from each responsible person and the corporate employer, or entirely from one source. See Policy Statement P-5-60 (approved May 30, 1984), reprinted in Policies of the Internal Revenue Service Handbook, 1 CCH Administration, Internal Revenue Manual at 1305-14; see also Sotelo, 436 U.S. at 279-80 n. 12, 98 S.Ct. at 1802 n. 12. Thus, each responsible person will be relieved of separate liability to the extent that the corporation pays its trust fund taxes. Under another long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments. Rev.Rul. 79-284, 1979-2 C.B. 83; Rev.Rul. 73-304, 1973-2 C.B. 42; Ribs-R-Us, 828 F.2d at 201. This policy stems from the common law rule generally recognized between creditors and debtors that the debtor may indicate which debt it intends to pay when it voluntarily submits a payment to a creditor, but may not dictate the application of funds that the creditor involuntarily collects from it. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); In re R.L. Inge Dev. Corp., 78 B.R. 793, 794 (Bankr.E.D.Va.1987). An involuntary payment traditionally has been defined as “any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.”' Amos v. Commissioner, 47 T.C. 65, 69 (1966) (emphasis added). Most courts that have considered the issue have concluded that payments made in the bankruptcy context are involuntary. See In re Frank Meador Buick, Inc., 946 F.2d 885 (Table), 1991 WL 209824, at *3, 1991"
] |
[
"that appellant had the use of the Government’s money during the period of the reorgani zation proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid \"is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that \"[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments.\" United States v. Pepper-man, 976 F.2d 123, 127 (3d Cir.1992) (citing Rev.Rul. 79-284, 1979-2 C.B. 83; Rev.Rul 73-304, 1973-2 C.B. 42; Matter of Ribs-R-Us, 828 F.2d 199, 201 (3d Cir.1987)). \"An involuntary payment traditionally has been defined as 'any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.’ \" Id. (citing Amos v. Commissioner, 47 T.C. 65, 69, 1966 WL 1102 (1966) (emphasis in Pep-perman)). \"Most courts ... have concluded that payments made in the bankruptcy context are involuntary.\" Id. (citations omitted). The Third Circuit “conclude(d) ... that payments made to the IRS out of a Chapter 7 debtor’s estate are involuntary.” Id. In so determining, the court took into consideration the fact that \"the trustee was not free to withhold payment for taxes.” Id.",
"1986); In re A & B Heating & Air Conditioning, Inc., 53 B.R. 54 (Bankr.Fla.1985). In Amos v. Commissioner, 47 T.C. 65 (1966), the court set forth the following definition: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy of from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. In Muntwyler, the court found that a payment did not become involuntary “whenever an agency takes even the slightest action to collect taxes, such as filing a claim_” Id., at 1033. The court looked to the policy statements of the IRS in regard to a provision in the tax code, 26 U.S.C. Section 6672, which provide as follows: “The taxpayer, of course, has no right of designation in the case of collections resulting from enforced collection measures.” Based upon this policy statement, the court found that merely filing a claim did not amount to “enforced collection measures” sufficient to construe the payments as involuntary. Difficulty arises, however, when viewing transactions which occur in bankruptcy proceedings. While the reorganization includes legal proceedings, the actions of the debtor, at least in a Chapter 11 matter, are mainly voluntary. Several courts have addressed this problem and have reached different results. The court in In re Hartley Plumbing Company, Inc., 32 B.R. 8 (Bankr.Ala.1983), was faced with a situation similar to that presented herein, where the payments were voluntarily made by the debtor. The court found that due to the fact that the debtor could convert the case from a Chapter 7 to a Chapter 11 as a matter of right and could dismiss it if there was no showing of prejudice, the payments made to the IRS were voluntary, thereby entitling the debtor the right to designate the allocation of the payments. Further, where the bankruptcy court has approved a Chapter 11 plan which included such payments to the IRS, at least three courts have found the payments to be voluntary. See In re Lifescape, Inc., 54 B.R. 526",
"this undermines the purpose of Section 6672. Federal courts have struggled with the voluntary/involuntary distinction in the bankruptcy context and have come to different conclusions. We conclude that payments made by a debtor in possession after filing a petition for reorganization under Chapter 11, but prior to confirmation of a reorganization plan, are involuntary and the bankruptcy court does not have equitable jurisdiction to order otherwise. In Amos v. Commissioner of Internal Revenue, 47 T.C. 65, 69 (1966), the tax court defined involuntary payment: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of dis-traint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. The Seventh Circuit in Muntwyler observed that Amos and the cases decided after it “uniformly define an involuntary payment as one made pursuant to judicial action or some form of administrative seizure, like a levy.” 703 F.2d at 1033. In Muntwyler, the court held that payments to the IRS made by the trustee of an assignment for the benefit of creditors were voluntary because the only IRS action was the filing of a claim with the trustee, and therefore payments could be directed by the debtor to its trust fund liabilities. The court distinguished the assignment for the benefit of creditors from payments made in bankruptcy, because “court action is involved” in the latter. Id. The court stated that “[t]he Government might have been correct in its claim if the corporation had been in bankruptcy, which it was not.” Id. at 1034 n. 2. The Third Circuit followed the reasoning of Muntwyler in In re Ribs-R-Us. There, the court held that “payments on prepetition federal tax liabilities by a debtor pursuant to a plan of reorganization under Chapter 11 are involuntary [and therefore] the debtor cannot direct the allocation of such payments between the trust fund and non-trust fund portions of the debtor’s tax liabilities.” 828 F.2d at 199. In so doing, the Third Circuit relied on the opinion of the dissenting",
"of taxes pursuant to a Chapter 11 reorganization is “voluntary”. The district courts and bankruptcy courts have divided on this issue. In Amos v. Commissioner, 47 T.C. 65, 69 (1966), the Tax Court defined involuntary payment as follows: An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.; (emphasis added). Using this definition, the Seventh Circuit in Muntwyler v. United States, 703 F.2d 1030 (7th Cir.1983), held that payments to the IRS made by the trustee of an assignment for the benefit of creditors were voluntary because the only action by the IRS was the filing of a claim with the trustee and that therefore payments could be directed by the debtor to its trust fund liabilities. In reaching its conclusion, the court distinguished the assignment for the benefit of creditors from payments made in bankruptcy, viewing the latter situation as one in which “court action is involved.” Id. at 1033. The court stated that “[t]he government might have been correct in its claim if the corporation had been in bankruptcy which it was not.” Id. at 1034 n. 2. The issue arose before the Seventh Circuit again in In re Avildsen Tools & Ma chine, Inc., 794 F.2d 1248, 1250 (7th Cir.1986), on appeal from the district court’s holding that “since the corporation had made its payment to the IRS during the period of time it was reorganizing under Chapter XI of the Bankruptcy Act the corporation’s payment was not voluntary and thus the corporation had no right to direct the application of the payment to the type of liability it chose.” Id. at 1250. Because the Seventh Circuit affirmed on a different ground, the majority never reached the issue addressed by the district court. A concurring judge would have held that the debtor had no right to direct payment because the payment was involuntary. Id. at 1254 (Ripple, J., concurring). After briefing and argument",
"315 (2d Cir.1976). In Amos v. Commissioner, 47 T.C. 65 (1966), the Tax Court provided one frequently cited definition of “involuntary” in the voluntary-involuntary dichotomy: “An involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefore.” Id., 47 T.C. at 69. (emphasis ours). In Amos, supra, the Tax Court expressly cited O’Dell, supra, 326 F.2d at 456, as the minority view, (permits a creditor to direct the application of involuntary as well as voluntary payments as “involuntary”), and applied O’Dell to hold that the IRS’s district director could apply monies received from the taxpayer in a non-judicial setting, as the result of an IRS’s levy upon the taxpayer’s bank and insurance company, according to it’s policy since those payments were “involuntary.” We reject the IRS’s position that a mere unilateral prepetition administrative action, such as mailing a notice of levy, or the post-petition filing of a proof of claim, will ipso facto transfer a subsequent debt- or’s request for payment allocation in bankruptcy into an “involuntary” status which would permit the government to allocate according to it’s policy and prevent this Court from making the designation. As noted by the Seventh Circuit in response to the government’s contention that a claim, (submitted to a non-bankruptcy trustee in an assignment for the benefit of creditors matter), just like a levy, is an administrative action which is sufficient to render a taxpayer’s subsequent payment involuntary under Amos’ definition of involuntariness: “We Disagree. The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money as in a levy. No authorities support the proposition that a payment is involuntary whenever an agency takes even the slightest action to collect taxes, such as filing a claim",
"(7th Cir.1983). When the payment is considered “involuntary,” however, the IRS makes the allocation, applying the money first to non-trust fund taxes. Because the personal liability of the responsible persons provides an additional source for collection of trust fund taxes, this approach allows the government to maximize its total recovery. See Technical Knockout Graphics, Inc., 833 F.2d at 799. In Amos v. Comm’r, 47 T.C. 65, 69 (1966), the Tax Court gave the following definition of “involuntary payment:” “An involuntary payment' of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” In Muntwyler, a non-bankruptcy case, the Court of Appeals for the Seventh Circuit held that payments made under an assignment for the benefit of creditors were “voluntary” because there had been no court action or administrative action resulting in an actual seizure of property or money. See 703 F.2d at 1033. The Muntwyler court distinguished the assignment for the benefit of creditors from payments made in bankruptcy. Id. at 1034 n. 2. In Technical Knockout Graphics, a bankruptcy case, the Court of Appeals for the Ninth Circuit held that payments made by a debtor in possession after filing a Chapter 11 petition but prior to confirmation of a reorganization plan are involuntary payments. See 833 F.2d at 802. The Court of Appeals for the Third Circuit has held, similarly, that “payments on pre-petition federal tax liabilities by a debtor pursuant to a plan of reorganization under Chapter 11 are involuntary under the federal tax law [and therefore] the debtor cannot direct the allocation of such payments between the trust fund and non-trust fund portions of the debtor’s tax liabilities.” In the Matter of Ribs-R-Us, Inc., 828 F.2d 199, 199 (3d Cir.1987). The Court of Appeals for the Eleventh Circuit, on the other hand, has held that a bankruptcy court has discretion to decide on a case-by-case basis whether a debtor may allocate tax payments in a Chapter 11",
"3A Collier, Bankruptcy If 63.16 [1] at 1855 et seq. (14 ed. 1972). . The courts have recognized certain exceptions to the general rule that interest does not accrue after the petition in bankruptcy is filed and have allowed “post-petition” interest where (1) the alleged bankrupt proves solvent; (2) the security held by the creditor as collateral produces income after the filing of the petition; and (3) the security is sufficient to pay interest as well as the principal of the claim. United States v. Bass, 271 F.2d 129, 130 (9 Cir. 1959). See also, Columbia Aircraft Co. v. United States, supra; In re Lykens Hosiery Mills, 141 F. Supp. 895, 897 (S.D.N.Y.1956) ; 3A Collier, supra, at 1860 et seq. However, none of the above-stated exceptions are here applicable. . See also, discussion at 366 F.2d 407-10 (and tlie authorities cited therein) ; Bird & Sons Sales Corp. v. Tobin, 78 F.2d 371, 373 (8 Cir. 1935); 3A Collier, supra, ¶ 65.06 at 2294-9,5; 6 Remington, Bankruptcy Law § 287Í1 at 484 et seq. (5 ed., Henderson 1952 and Slupp.1973, Hayes). . In this regard, this Court is in accord with the view expressed by the Court of Appeals for the Third Circuit in the Time Sales case, 491 F.2d at 845, namely: [w]hen we are confronted with an instrument that satisfactorily indicates that subordinated creditors were put on notice that superior creditors may be entitled to interest up to the date of actual distribution ... we may then be called upon to determine whether the language of section 63(a)(1) and the policies underpinning the Bankruptcy Act permit the payment of post-petition interest from the bankrupt’s estate where some of the creditors have agreed to subordinate their claims against the bankrupt to those of other creditors. . 491 F.2d at 842. . Id. at 844. . Id. . The Court finds that the language contained in the involved subordination agreement is not of such nature as would preelude an interpretation of “interest” as employed therein so as to mean such interest as is usually allowable in bankruptcy proceedings, that",
"when a taxpayer makes voluntary payments to the Internal Revenue Service, it has a right to direct the application of payments to whatever type of liability it chooses. Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983); O'Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964). However, when payments are involuntary, the policy of the Internal Revenue Service is to allocate the payments as it sees fit. IRS Policy Statement P-S-60, reprinted in CCH Internal Revenue Manual at 1305-15. This rule has been uniformly followed by the Courts, see, e.g., Muntwyler, supra, United States v. DeBeradinis, 395 F.Supp. 944, 952 (D.Conn.1975), aff’d mem., 538 F.2d 315 (2d Cir.1976). The Government’s position is “that payments made in the course of bankruptcy proceedings are ‘involuntary’ and neither the Debtor-in-possession nor the court may direct their application to particular liabilities” (U.S. Memorandum, p. 2). On the other hand, the Debtor contends: that he voluntarily sought relief under Chapter 11 of the Bankruptcy Code; that he voluntarily sold his homestead to pay his creditors; that there was no order of sale, no report of sale nor an order confirming sale and finally that cases administered under the Act are substantially different from those under the Code. Accordingly, the Debtor argues his payment should be described as voluntary. The Government relies on one of the most frequently cited definitions of involuntary payments, that of the Tax Court in Amos v. Commissioner, 47 T.C. 65, 69 (1966) which held: “an involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The Government claims that this ease falls within the Amos definition of involuntariness because the proceeds were received “from a legal proceeding.” The Government bases its argument on the assumption that any payment in the course of a bankruptcy is involuntary. The court does not agree. Decisions from various courts in other circuits have fallen on both sides of the fence.",
"which debt he intends to pay when he voluntarily submits a payment to his creditor, but may not dictate the application of funds that the creditor collects from him. In re Energy Resources Co., Inc., Brief for Appellants [IRS], at 18 n. 11. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Hewitt v. United States, 377 F.2d 921, 925 (5th Cir.1967). The IRS adds that the Tax Court defined the “voluntary”/“involuntary” distinction authoritatively in Amos v. Commissioner, 47 T.C. 65 (1966), where it said, [a]n involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. Amos, 47 T.C. at 69. But see also Muntwyler, 703 F.2d at 1033 (“The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money, as in a levy.”) (emphasis in the original). The IRS argues that payments made by compromise pursuant to a Chapter 11 reorganization plan fall within the (rearranged) literal words of Amos (“payment received as a result of a legal proceeding in which the government is seeking to file a claim for its delinquent taxes”); it sees a payment made pursuant to a Chapter 11 plan as a payment made pursuant to a court order; and it distinguishes Muntwyler on the ground that the trustee there did not act pursuant to a court order, or a bankruptcy proceeding, thus taking the case outside the scope of Amos’s words “legal proceeding.” In essence, the IRS sees the words “voluntary” and “involuntary” as defining polar opposite points on a spectrum. At the “voluntary” end, one finds the taxpayer who discharges a debt before the IRS brings a legal proceeding against him. At the “involuntary” end, one finds the taxpayer whose",
"Heating & Air Conditioning, 823 F.2d at 463; Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Wood v. United States, 808 F.2d 411, 416 (5th Cir.1987). However, where the taxpayer “involuntarily” makes the payment, the IRS has granted the taxpayer no such freedom to designate the allocation; the IRS will decide how to apply the payment; and it will almost always decide to apply the payment to a non-trust fund tax debt first. See IRS Policy Statement P-5-60, reprinted in 1 Administration, Internal Revenue Manual (CCH) 1305-15; Slodov, 436 U.S. at 252 n. 15, 98 S.Ct. at 1788 n. 15; In re Technical Knockout Graphics, Inc., 833 F.2d at 801; In re Ribs-R-Us, Inc., 828 F.2d at 201; In re A & B Heating & Air Conditioning, 823 F.2d at 463; Muntwyler, 703 F.2d at 1032. These payment designation rules, says the IRS, are consistent with “the common law” policy, generally recognized between creditors and debtors, that the debtor may indicate which debt he intends to pay when he voluntarily submits a payment to his creditor, but may not dictate the application of funds that the creditor collects from him. In re Energy Resources Co., Inc., Brief for Appellants [IRS], at 18 n. 11. See O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964); see also Hewitt v. United States, 377 F.2d 921, 925 (5th Cir.1967). The IRS adds that the Tax Court defined the “voluntary”/“involuntary” distinction authoritatively in Amos v. Commissioner, 47 T.C. 65 (1966), where it said, [a]n involuntary payment of Federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor. Amos, 47 T.C. at 69. But see also Muntwyler, 703 F.2d at 1033 (“The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but"
] |
evaluations, continuing without regard to Fannie Mae’s clearly delineated criticism of his work. Fannie Mae’s opinion of plaintiff was legitimate and reasonable given the circumstances. The fact that he was concededly talented in the external aspect of his work does not preclude shortcomings in internal matters, and inadequacy in one area sufficiently justifies his termination. Kerwood, 494 F.Supp. at 1298 (plaintiff was extremely qualified in one respect, but his problems in management and administration warranted his termination). A court should focus on the specific quality the employer found lacking, determining whether the evaluation of that area was legitimate. As long as the employer’s rationale is genuine, there is no reason to examine other elements of plaintiffs work. REDACTED cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1995). See also Menard v. First Sec. Servs. Corp., 848 F.2d 281, 286 (1st Cir.1988). Plaintiff cites praise and support from his superiors at different times during his career at Fannie Mae, contending that the changing quality of his reviews “delegitimizes” the recent condemnation of his work, and serves as a guise for underlying discrimination. Mixed reviews of the employee over time do not affect the validity of the ultimate evaluation. The Court must consider reviews from the time of the termination, as earlier positive evaluations do not necessarily reflect the employee’s current abilities or qualifications. Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 336 (7th Cir.1980); Smith, 645
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[
"to someone first. There is, however, no mention of this incident in any of Ezold's evaluations. .In Lockhart, there was sufficient indirect evidence to support the jury’s verdict that age was the determinative factor in Lockhart’s discharge. This evidence included: (1) Lockhart had received satisfactory performance evaluations and merit salary increases in each year over his twenty-two year career with the company; (2) he had never received a reprimand or demotion; (3) the alleged reason for his discharge was discrepancies found in an audit of his office, however, he was never given an opportunity to explain these discrepancies prior to his termination; (4) his immediate supervisor testified that he was a good and dependable worker and that the standard company policy was to proceed through a series of reprimands before an employee would be dismissed; (5) the second person responsible for his termination also testified that Lockhart was never insubordinate and never deliberately violated company policy; and (6) there was evidence that the company had decided to undertake a major restructuring which resulted in the consolidation of several locations and the filling of new management positions by much younger and inexperienced individuals. 879 F.2d at 49-50. . It bears repeating in this final stage of discussion that Wolf’s impression of Ezold's legal analytic ability, informed but at the same time subjective, is the focal point in this case and that Wolf is entitled to form its own subjective judgment on that factor. Wolf is also entitled to be wrong in its judgment so long as it does not base its incorrect decision on unlawful sex discrimination or stereotype. . For hostile environment to be actionable under Meritor, it must be sufficiently severe or pervasive \"to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.\" Id. at 67, 106 S.Ct. at 2405 (quotation omitted); see abo Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971) (\"mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not sufficiently affect conditions of employment to violate Title VII), cert. denied, 406 U.S. 957, 92"
] |
[
"step of the McDonnell Douglas framework, we conclude that Fannie Mae met its burden in articulating a legitimate non-discriminatory reason for its termination of Paquin. Fannie Mae claims that Paquin’s termination resulted from substandard performance, as evidenced primarily by annual performance evaluations for the years 1991-1993. The evaluations indicated areas in which Paquin needed improvement. For example, the 1991 evaluation, while praising Paquin’s performance in external matters, stated “Paul must devote considerably more effort to raising the level of his and his staffs ‘internal’ performance.” JA 348. The 1991 evaluation concluded “Paul’s challenge next year will be to bring his internal management performance up to a level approaching the exceptional performance he continues to post in the external arena with investors and analysts.” JA 349. The 1992 evaluation stated that the year had been “a mixture of positives and negatives.” JA 350. The positive aspects “were concentrated in the area of external investor relations, where Paul and his staff continue to get extremely high marks.” Id. The negative aspect was that “Paul has not made as much progress as [the reviewer] had hoped for in what last year [the reviewer] had termed his ‘internal’ performance — departmental administration, attention to detail, planning and executing tasks in a timely fashion, and presentation design and speech writing.” Id. The evaluation set out three specific areas targeted for improvement— elimination of “repeated or blatant errors” in the Department’s work, increased creativity and greater insight into investor preferences and valuation processes. JA 350-51. In each of the three areas the evaluation included a specific instance during the past year that, according to the reviewer, manifested Paquin’s inadequate performance. The 1993 evaluation indicated that Paquin had failed to make much progress in two of the three areas and that in the third the reviewer postponed making a decision for another month. The evaluation was peppered with some strong criticisms. For example, a speech from Paquin’s Department was described as “unsophisticated, unfocused, and ... containing] not only overstatements and simplications [sic] but also outright inaccuracies.” JA 352. The reviewer concluded with the statements “I believe you",
"at 183, as well as contemporaneous written documents detailing inadequacies in performance. Defendant Exhs. E & E. Plaintiff challenges the accuracy of the criticisms of his work performance. However, plaintiffs perception of himself, and of his work performance, is not relevant. It is the perception of the decision-maker which is relevant. See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980); McDaniel v. Mead Corp., 622 F.Supp. 351, 360 (W.D.Va.1985); Rosengarten v. J.C. Penney Co., 605 F.Supp. 154, 157 (E.D.N.Y.1985). Plaintiff does not present a material issue of fact on the question of the quality of his work by merely challenging the judgment of his superiors. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Plaintiff also contends that all but one of defendant’s witnesses were unfamiliar with plaintiff’s work. However, plaintiff’s employers were entitled to rely on reports of plaintiff’s performance given by his immediate supervisor, Stauffer, and by others familiar with his work. See Snyder, 36 F.E.P. at 447. Plaintiff also relies on two letters of recommendation written by Stauffer after his termination blaming the termination on budgetary constraints. Plaintiff Exhs. 4 & 5. The Court, having examined these letters, finds they were written for the purpose of helping plaintiff obtain new employment and that they are deliberately vague as to plaintiff’s performance in the time period in question. Lastly, the fact that plaintiff submits he was unaware of his probationary status does not change the Court’s conclusion that plaintiff was not “qualified.” See Pace v. Southern Railway System, 701 F.2d 1383, 1391 n. 8 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983) (“Taking as true that appellant was unaware ... of the dissatisfaction with his performance, ... a basis of poor management and decision-making may be made out, but certainly no basis for an inference of discrimination”). Plaintiff also has not shown that he was replaced by a younger individual. Plaintiff alleges that he has met this requirement of a prima facie case because, after his",
"93 S.Ct. at 1825 (evidence that white employees engaged in comparable activity to that used to justify failure to rehire black employee “especially relevant” to show proffered reason is pretext for discrimination). For example, were the evaluations to reveal that other executives received written evaluations less favorable than those of Paquin but nonetheless received higher numerical scores, this would tend to discredit Fannie Mae’s explanation that Paquin was terminated for a legitimate non-discriminatory reason. Even under the deferential abuse of discretion standard, the performance evaluations are sufficiently important to Paquin’s case to warrant reversal. Cf. Hollander v. American Cyanamid Co., 895 F.2d 80, 84-85 (2d Cir.1990) (vacating award of summary judgment where district court refused to compel defendant to provide information about termination of employees similarly situated to plaintiff). Because we believe the district court erred in not granting Paquin’s Rule 56(f) motion, we reverse the district court’s grant of summary judgment and remand for further discovery. We emphasize two points on remand. First, discovery is to be limited to the production of performance evaluations of individuals at the senior vice president level at Fannie Mae for the years 1991-1993. We are aware of the extensive history of discovery disputes in which the parties have been embroiled from the outset of the litigation. Aside from the performance evaluations already discussed, we affirm the district court’s discovery rulings. We stress that it will not be open to Paquin on remand to seek additional discovery, the production of which the district court has previously refused to compel. Second, our remand does not automatically turn Paquin’s wrongful termination claim into a jury issue. Although we believe summary judgment was premature given Fannie Mae’s nondisclosure of performance evaluations of other senior vice presidents, summary judgment will be available to Fannie Mae upon renewed motion unless the evaluations indicate that Fannie Mae’s reliance on Paquin’s alleged poor performance was a pretext for discrimination. We have reviewed Paquin’s opposition to Fannie Mae’s summary judgment motion and are not persuaded by it — accordingly, were Paquin not entitled to limited additional discovery, we would affirm the district",
"detail. Accepting that Paquin did not make the statement, as we must on summary judgment, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a reasonable factfinder could not conclude, in light of the other performance shortcomings detailed in the evaluations, that Fannie Mae’s real reason for terminating Paquin was age-based. Next Paquin claims that Fannie Mae’s reliance on the three performance evaluations manifested procedural irregularities — and was therefore suspect — by unduly emphasizing the internal aspects of his job when his “performance objectives” were 90 per cent related to external matters. See Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984) (employer’s failure to follow own procedures probative of discrimination), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982) (same). As Fannie Mae points out, however, the “performance objectives” to which Paquin refers were developed in connection with a bonus plan and did not encompass the entire range of Paquin’s responsibilities. It is true that Paquin’s bonus plan objectives were used to evaluate him once in the past (in 1989). Assuming other employees continued to be evaluated entirely on their bonus plan objectives while Paquin was not, such a departure from procedure would still not be suspect. One of the asserted reasons for his termination is that Paquin failed to understand that external and internal matters must be considered in tandem. That is, if Paquin failed to communicate effectively developments in external matters to individuals inside the company, he was not doing his job properly. Paquin’s bonus plan objectives, therefore, were themselves consistent with Fannie Mae’s consideration of internal performance. Paquin also attacked Fannie Mae’s criticism of Paquin’s lack of “creativity” and his “stubbornness.” Paquin claims that the terms are age stereotypes that support an inference that Fannie Mae’s termination decision was age-related. We have held that a decision not “derived from stereotypical preconceptions about older people[],” Hayman v. National Academy of Sciences, 23 F.3d 535, 539 (D.C.Cir.1994), does not support an inference of age discrimination.",
"his alleged poor performance and that Fannie Mae was required to offer evidence of contemporaneous documents identifying specific deficiencies. The performance evaluations themselves, however, described general deficiencies bolstered by specific examples (for example, the 1992 evaluation identified a particular memorandum which, in the reviewer’s opinion, was incomplete). We have already concluded that the three performance evaluations satisfied Fannie Mae’s burden of proffering a legitimate nondiscriminatory reason. The burden then shifted to Paquin to produce evidence that could allow a reasonable factfinder to conclude that the evaluations were a pretext for discrimination. Paquin cannot meet his burden simply by claiming that Fannie Mae was required to produce more evidence of his poor performance. To accept Paquin’s position would contradict the Supreme Court’s clarification of the McDonnell Douglas framework in Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, according to which the burden of persuasion remains at all times on the plaintiff. Thus once the defendant employer has articulated a legitimate non-discriminatory reason, “whatever its persuasive effect,” Hicks, 509 U.S. at 511, 113 S.Ct. at 2749, the employer need not come forward with affirmative evidence showing its action was not discriminatory. Rather, it is the plaintiff who must offer evidence that the action was discriminatory. See id. Paquin next relies on the fact that his numerical evaluations were correlated in Fannie Mae’s computer system to letter descriptions. Thus a “4” meant “FE” or “frequently exceeds requirements.” A “3” meant “SM” or “successfully meets requirements.” Paquin argues that the labels raised a genuine issue of material fact as to his level of performance because they show that the three performance evaluations on which Fannie Mae relied judged him to “frequently exceed requirements” twice and to “successfully meet requirements” once. Whatever names one gives to the ratings, however, Paquin’s performance placed him by the end of 1993 near the bottom of the heap of senior vice presidents. Paquin also claims to have “rebutted each of the alleged deficiencies that Fannie Mae claimed justified his termination.” Appellant’s Opening Br. at 29. Rather than rebutting each of the numerous deficiencies, however, Paquin strains to create",
"of individuals at the senior vice president level at Fannie Mae for the years 1991-1993. We are aware of the extensive history of discovery disputes in which the parties have been embroiled from the outset of the litigation. Aside from the performance evaluations already discussed, we affirm the district court’s discovery rulings. We stress that it will not be open to Paquin on remand to seek additional discovery, the production of which the district court has previously refused to compel. Second, our remand does not automatically turn Paquin’s wrongful termination claim into a jury issue. Although we believe summary judgment was premature given Fannie Mae’s nondisclosure of performance evaluations of other senior vice presidents, summary judgment will be available to Fannie Mae upon renewed motion unless the evaluations indicate that Fannie Mae’s reliance on Paquin’s alleged poor performance was a pretext for discrimination. We have reviewed Paquin’s opposition to Fannie Mae’s summary judgment motion and are not persuaded by it — accordingly, were Paquin not entitled to limited additional discovery, we would affirm the district court. Because Fannie Mae has come forward with a legitimate non-diseriminatory reason for Paquin’s termination, the presumption that arises from Paquin’s prima facie case “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). At this point all that is left to decide is “the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him].’ ” Id. (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Paquin fired a salvo of arguments attempting to raise a triable issue of fact on the ultimate question of discrimination but produced insufficient evidence to permit a reasonable factfinder to come down on his side. We review Paquin’s arguments briefly, construing, at the summary judgment stage, all evidence in the light most favorable to him as the non-moving party. See United States v. General Motors Corp., 565 F.2d 754, 757 (D.C.Cir.1977). Paquin first argues that the year-end performance evaluations insufficiently documented",
"It is true that Paquin’s bonus plan objectives were used to evaluate him once in the past (in 1989). Assuming other employees continued to be evaluated entirely on their bonus plan objectives while Paquin was not, such a departure from procedure would still not be suspect. One of the asserted reasons for his termination is that Paquin failed to understand that external and internal matters must be considered in tandem. That is, if Paquin failed to communicate effectively developments in external matters to individuals inside the company, he was not doing his job properly. Paquin’s bonus plan objectives, therefore, were themselves consistent with Fannie Mae’s consideration of internal performance. Paquin also attacked Fannie Mae’s criticism of Paquin’s lack of “creativity” and his “stubbornness.” Paquin claims that the terms are age stereotypes that support an inference that Fannie Mae’s termination decision was age-related. We have held that a decision not “derived from stereotypical preconceptions about older people[],” Hayman v. National Academy of Sciences, 23 F.3d 535, 539 (D.C.Cir.1994), does not support an inference of age discrimination. Thus Pa-quin must show that Fannie Mae thought he lacked creativity because he was older. But Paquin’s evidence was limited to expert opinion testimony that factors such as “creativity” are sometimes based on age stereotypes. This is not enough. To prevail, Paquin must present evidence that the statements in fact spring from stereotypes. The context in which the statements were made — detailed evaluations of Paquin’s performance of management tasks one would expect to require creativity and flexibility — indicates they were based not on stereotypes but on objective assessments of job performance. Finally, Paquin argues that because he was more qualified than the person by whom he was replaced, a reasonable factfinder could conclude that Fannie Mae terminated him for discriminatory reasons. Although hiring a less qualified person can support an inference of discriminatory motive, see Harding v. Gray, 9 F.3d 150, 153-54 (D.C.Cir.1993), Paquin’s argument misses the mark. Paquin grounds his claim of superiority on his performance in external matters. But Fannie Mae never contested his qualifications in external matters; instead it insisted",
"court. Because Fannie Mae has come forward with a legitimate non-diseriminatory reason for Paquin’s termination, the presumption that arises from Paquin’s prima facie case “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). At this point all that is left to decide is “the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him].’ ” Id. (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Paquin fired a salvo of arguments attempting to raise a triable issue of fact on the ultimate question of discrimination but produced insufficient evidence to permit a reasonable factfinder to come down on his side. We review Paquin’s arguments briefly, construing, at the summary judgment stage, all evidence in the light most favorable to him as the non-moving party. See United States v. General Motors Corp., 565 F.2d 754, 757 (D.C.Cir.1977). Paquin first argues that the year-end performance evaluations insufficiently documented his alleged poor performance and that Fannie Mae was required to offer evidence of contemporaneous documents identifying specific deficiencies. The performance evaluations themselves, however, described general deficiencies bolstered by specific examples (for example, the 1992 evaluation identified a particular memorandum which, in the reviewer’s opinion, was incomplete). We have already concluded that the three performance evaluations satisfied Fannie Mae’s burden of proffering a legitimate nondiscriminatory reason. The burden then shifted to Paquin to produce evidence that could allow a reasonable factfinder to conclude that the evaluations were a pretext for discrimination. Paquin cannot meet his burden simply by claiming that Fannie Mae was required to produce more evidence of his poor performance. To accept Paquin’s position would contradict the Supreme Court’s clarification of the McDonnell Douglas framework in Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, according to which the burden of persuasion remains at all times on the plaintiff. Thus once the defendant employer has articulated a legitimate non-discriminatory reason, “whatever its persuasive effect,” Hicks, 509 U.S. at 511, 113 S.Ct. at 2749,",
"cites negative evaluations from Williams and St. Johns that contrast with the uniformly positive comments received by her higher rated peers. These explanations provide legitimate, nonretaliatory reasons for Carpenter’s downgrade. See Burdine, 450 U.S. at 257-58. Moreover, Carpenter has failed to show that Fannie Mae’s explanation was pretextual. We first reject her underlying contention that because she previously received a 5- and her performance has not changed, she had to have earned a 5- for 1997. See Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) (absent “error too obvious to be unintentional,” court respects employer’s “unfettered discretion” to evaluate employees) (citation omitted); Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir.1991) (rejecting argument based on past evaluations as theory “that things never change, a proposition clearly without basis in reality”), overruled in part on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Pre-1995 ratings were done by other supervisors and, of the vice presidents who received higher ratings than Carpenter in 1997, only one had been compared to Carpenter previously, receiving higher ratings than she in two previous years. We also find Carpenter’s claim that St. John’s and Williams’s criticisms were the product of collusion and fabrication without record support. See Randall v. Howard Univ., 941 F.Supp. 206, 213 (D.D.C.1996) (granting summary judgment where plaintiff offered no evidence to support theory that employees conspired against her), aff'd, 132 F.3d 1482 (D.C.Cir.1997). Rather, Carpenter’s admission that she had “little contact” with Williams may explain his view that she needed to assume greater responsibility and her failure to work directly with St. John on the Y2K project may similarly have led St. John to believe that she needed to be more “proactive.” 56(f) Aff. at 4, 5 ¶¶ 13, 17, JA 69, 70; see Valentino v. United States Postal Serv., 674 F.2d 56, 66 (D.C.Cir.1982) (management judgments regarding professionals often depend on subjective criteria). Although Carpenter infers retaliatory intent from her supervisors’ September 1996 comments, they also do not constitute evidence sufficient to allow a",
"Thus Pa-quin must show that Fannie Mae thought he lacked creativity because he was older. But Paquin’s evidence was limited to expert opinion testimony that factors such as “creativity” are sometimes based on age stereotypes. This is not enough. To prevail, Paquin must present evidence that the statements in fact spring from stereotypes. The context in which the statements were made — detailed evaluations of Paquin’s performance of management tasks one would expect to require creativity and flexibility — indicates they were based not on stereotypes but on objective assessments of job performance. Finally, Paquin argues that because he was more qualified than the person by whom he was replaced, a reasonable factfinder could conclude that Fannie Mae terminated him for discriminatory reasons. Although hiring a less qualified person can support an inference of discriminatory motive, see Harding v. Gray, 9 F.3d 150, 153-54 (D.C.Cir.1993), Paquin’s argument misses the mark. Paquin grounds his claim of superiority on his performance in external matters. But Fannie Mae never contested his qualifications in external matters; instead it insisted that his replacement surpassed him on the internal side — the area in which Paquin failed to improve after repeated warnings. B. Paquin’s Retaliation Claims An employer may not retaliate against an employee for conduct protected under the ADEA. The three elements of a retaliation claim are (1) the employee’s protected activity, (2) the employer’s action that has an adverse impact on the employee and (3) a causal relationship between the protected activity and the adverse action. See Passer v. American Chem. Soc’y, 935 F.2d 322, 331 (D.C.Cir.1991). Paquin claims Fannie Mae took two impermissible retaliatory actions against him. The first is Fannie Mae’s withdrawal of Paquin’s proposed severance package on March 17. The second is Fannie Mae’s removal of Paquin from its payroll on the same date. 1. Fannie Mae’s Withdrawal of the Severance Package Paquin claims that Fannie Mae unlawfully retaliated by withdrawing its proposed severance package in response to Pa-quin’s March 1, 1994 letter in which he claimed that his termination was based on age and that he was prepared to take"
] |
to believe he intended, to allow Defendant to keep the money in her cheeking account either as a gift, or as repayment for debts incurred and monies spent by Defendant. That is, Defendant seeks to have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. REDACTED In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the checking account in question, the letters discussed supra, and her own affidavit. In her affidavit she states that she paid Plaintiff the monies requested in his first letter, and that she spent the money in the checking account thinking that
|
[
"from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Justice White, concurring. I agree that the Court of Appeals was wrong in holding that the moving defendant must always support his motion with evidence or affidavits showing the absence of a genuine dispute about a material fact. I also agree that the movant may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be no factual dispute. But the movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a con-clusory assertion that the plaintiff has no evidence to prove his case. A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant’s task to negate, if he can, the claimed basis for the suit. Petitioner Celotex does not dispute that if respondent has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness’ possible testimony raises no genuine issue of material fact. Tr. of Oral Arg. 43, 45. It asserts, however, that respondent has failed on request to produce any basis for her case. Respondent, on the other hand, does not contend that she was not obligated to reveal her witnesses and evidence but insists that she has revealed enough"
] |
[
"have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catreet, 477 U.S., 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the checking account in question, the letters discussed supra, and her own affidavit. In her affidavit she states that she paid Plaintiff the monies requested in his first letter, and that she spent the money in the checking account thinking that Defendant was not claiming an interest the funds. Thus, Plaintiff makes two assertions. First, that Plaintiffs claim is invalid, and, second, that her actions were not fraudulent, and therefore the debt, if any, is not exempt from discharge under Bankruptcy Code § 523(a)(2)(A) as alleged by Plaintiff. While this adversarial proceeding is not the proee-durally proper proceeding to determine the validity of claims, the Court agrees on both counts, and finds no basis for the exception to discharge. The Plaintiff must prove five elements to succeed on its claim under § 523(a)(2)(A): (1) the Debtors made false representations, (2) the Debtors knew such representations to be false at the time they were made, (3) the representations were made with the intent to defraud the creditor, (4) the creditor must have reasonably relied on the representations,",
"The Plaintiff-Debtor argues against Defendant’s Motion for Summary Judgment because the question of “fair valuation” presents an issue of material fact which cannot be resolved by merely examining Lawrence & Erausquin’s schedules, or their balance sheet. LAW Summary Judgment is properly granted when the Movant can demonstrate that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056 and Fed.R.Civ.P. 56. However, Mov-ant must be able to demonstrate all the elements of a cause of action in order to prevail. In re Hartwig Poultry, Inc., 57 B.R. 549, 551 (Bankr.N.D.Ohio 1986). A Motion for Summary Judgment must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253 (Bankr.N.D.Ohio 1987). Under 11 U.S.C. § 547(f), the Debtor is presumed to have been insolvent in and during the ninety (90) days immediately preceding the date of the filing of the petition. This presumption is rebuttable. It simply imposes on the transferee the burden of going forward with evidence of solvency to meet or rebut the statutory presumption. In re Almarc Mfg. Inc., 60 B.R. 584, 585 (Bankr.N.D.Ill.1986); Matter of Georgia Steel, Inc., 58 B.R. 153, 156 (Bankr.M.D.Ga.1984); Matter of Brooks, 44 B.R. 963 965 (Bankr.S.D.Ohio 1984). If the evidence presented is sufficient to rebut the § 547(f) presumption, the party seeking to avoid the transfer must meet the burden of proof imposed by § 547(g) without the aid of the statutory presumption of insolvency. In re Almarc Mfg. Inc., supra at 586; In re Alithochrome Corp., 53 B.R. 906, 912 (Bankr.S.D.N.Y.1985). In a preference action, the burden of proof is on the moving party to prove all elements by a preponderance of the evidence. 4 Collier on Bankruptcy § 547.21[5] at 547-85 (15th Ed.1987); In re Alithochrome, supra at 909; In re Hillcrest Foods, Inc., 40 B.R. 360, 362 (Bankr.D.Me.1984); In re Vasu Fabrics, Inc., 39 B.R. 513 515 (Bankr.S.D.N.Y.1984). But see In re Ace Finance Co., 64 B.R. 688, 693 (Bankr.N.D.Ohio 1986) (burden of persuasion is on Movant",
"23 Wright & Graham, Federal Practice and Procedure, s 5303 at 176 (1980). 1994 WL 264263 at 6. Plaintiff misunderstands the scope of Rule 408. Rule 408 bars the admission of evidence only when the evidence is offered to show the following inference: that because a settlement offer was made, the offeror must be liable, because people don’t offer to pay for things for which they are not liable. As stated above, not only is this inference is often factually incorrect, allowing the admission of evidence to show such an inference would have the effect of deterring settlement negotiations. Thus, the Rule seeks to bar evidence admitted to show this inference. In the ease at bar, the letters are offered to show a different inference. Defendant seeks to have the evidence admitted to show that Plaintiff intended, or caused Defendant to believe he intended, to allow Defendant to keep the money in her cheeking account either as a gift, or as repayment for debts incurred and monies spent by Defendant. That is, Defendant seeks to have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catreet, 477 U.S., 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the",
"prevail on a motion for summary judgment when “[t]he pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 817, 822, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 369 (Bankr.N.D.Ohio 1999). For reasons of public policy, Congress chose to exclude from the scope of a bankruptcy discharge those debts incurred by a debtor to finance a higher education. In enacting this exception to discharge, however, Congress recognized that some student-loan debtors were deserving of the fresh-start policy provided for by the Bankruptcy Code. As a result, Congress provided that a debtor could be discharged from their educational loans if it were established that excepting the obligations from discharge would impose an “undue hardship” upon the debtor and the debt- or’s dependents. Grine v. Texas Guaranteed Student Loan Corp. (In re Grine), 254 B.R. 191, 196 (Bankr.N.D.Ohio 2000). Specifically, § 523(a)(8) states that: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (8) for an educational benefit overpayment",
"pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). With respect to this standard, the movant must demonstrate all the elements of his cause of action. R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). In making this determination, the Court is directed to view all the facts in a light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In addition, in cases such as this where the Parties have filed Cross Motions for Summary Judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden of establishing both the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 369 (Bankr.N.D.Ohio 1999). As the starting point for this discussion, an initial word on the overall course this proceeding has traveled is necessary. Since the Debtors filed their Complaint, more than eight years ago, a long and contentious history has followed. It suffices to say in this regard that this proceeding, originally assigned to Judge Mor-genstern-Clarren, but recently transferred to this Court, has involved a contorted history through which both of the Parties have been able to form a knot which would have made Alexander shudder. By way of example, in just terms of resources, this proceeding is alleged to have cost the Debtors approximately $100,000.00 in attorney fees, not to mention the substantial resources expended by the United States, for a case in which the Debtors’ actual damages are admittedly limited — no more than $1,500.00 for each of the Debtors. The extensive history of the case has also seen",
"by Bankruptcy Rule 7056, and provides in pertinent part: A movant will prevail on a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail, the movant must demonstrate all the elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). When a party contests the dischargeability of a debt under § 523(a)(6) this entails establishing that there are no triable issues regarding whether the debtor’s conduct was both willful and malicious. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir.1987); In re Clayburn, 67 B.R. 522 (Bankr.N.D.Ohio 1986). However, upon the moving party meeting the foregoing burden, the nonmoving party may not thereafter rest on his pleadings, but is instead required to set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In making the determination of whether the parties have met their respective burdens, the Court is directed to view all facts in the light most favorable to the party opposing the summary judgment motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). The essence of the Plaintiffs’ argument holds that the adjudication of the Debtor’s guilt under O.R.C. § 2903.11 for Felonious Assault, in connection with the automobile accident with Ms. Pickens, conclusively establishes that the Debtor’s conduct was both willful and malicious pursuant to § 523(a)(6). The Court does agree that on its face a conviction for Felonious Assault would seem to give rise to the type of behavior that would",
"summary judgment motion. [WJhere the movant is the defendant, or the party without the burden of proof on the underlying claim, the movant still has the initial burden of showing the court the absence of a genuine issue of material fact, but ... this does not require the movant to support the motion with affidavits or other materials that negated the opponent’s claim. In contrast, where ... “the party moving for summary judgment is the plaintiff, or the party who bears the burden of proof at trial, the standard is more stringent.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Neuman, 304 B.R. at 193 (quoting Adams v. Consol. Rail Corp., 1994 WL 383633, at *1 (E.D.Pa. July 22, 1994)). Thus, as the party with the burden of proof, BNYM must show that there are no material facts in dispute, that the undisputed facts satisfy each element of its claim and that the evidence is such that no reasonable factfinder would disbelieve it. For the Debtor to prevail on the Cross-Motion, she must demonstrate that (1) material facts are not in dispute and that she is entitled to judgment as a matter of law in that the undisputed facts negate at least one element of BNYM’s claim or (2) BNYM has not come forward with sufficient support at least one element of its claim. See, e.g., Newman, 304 B.R. at 194. V. DISCUSSION A. Overview The Debtor does not deny that she is obligated to repay the Note she signed when she entered into the mortgage loan transaction with Allied in 2005. Nor does she contest the amount of either the total secured claim or the pre-petition arrears stated in the Proof of Claim. Nevertheless, she objects to BNYM’s claim because she asserts that the Trust is not the party to whom she is obliged to pay under the Note, ie., she disputes the Trust’s right to enforce her repayment obligation under the Note. In effect, she contends that BNYM is not her “true” creditor. The Debtor’s argument is premised on the general, indisputable proposition",
"requiring application of the $1.2 million certificate of deposit which SIG claims it owns and by requiring performance of the Guarantees of the Senior Loan by Gurasich, Walden, West and the Topfers (hereinafter referred to collectively as “Guarantors”). Legal Analysis Under the Federal Rules of Civil Procedure, made applicable to this proceeding by Bankruptcy Rule 7056, a party will prevail on a motion for summary judgment when, “[t] he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In order to prevail, the movant must demonstrate all elements of the cause of action, but once that burden is established the opposing party must set forth specific facts showing there is a genuine issue for trial. R.E.Cruise, Inc., v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975); Anderson v. Liber ty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also In re Bell, 181 B.R. 311 (Bankr.N.D.Ohio 1995). Con-clusory allegations, however, will not establish an issue of fact sufficient to defeat summary judgment. Wilson Indus., Inc. v. Aviva America, Inc., 185 F.3d 492, 494 (5th Cir.1999). In cases such as this, where the parties have filed cross-motions for summary judgment, the Court must consider each motion separately, since each party, as a movant for summary judgment, bears the burden to establish the nonexistence of genuine issues of material fact, and that party’s entitlement to judgment as a matter of law. Thus, the fact that both parties simultaneously argue that there is no genuine factual issues does not in itself establish that a trial is unnecessary, and the fact",
"exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party’s claim. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In ruling on such a motion, the district court is to view the evidence in the light most favorable to the party opposing the motion, drawing all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See, e.g., Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d Cir.1988). The role of the court on a motion for summary judgment is not to try issues of fact but only to determine whether there are issues of fact to be tried. See, e.g., Anderson v. Liberty Lobby Inc., 477 U.S. at 255, 106 S.Ct. at 2513; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987). The drawing of inferences and the assessment of the credibility of the witnesses remain within the province of the finders of fact. In reviewing an appellate challenge to the granting of summary judgment, we are governed by the same principles. We review the record de novo, and we view the evidence in the light most favorable to the party opposing summary judgment. See, e.g., Healy v. Rich Products Corp., 981",
"106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the non-moving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14,18 (D.D.C.1993). B. Legal Standard for Discovery Under Rule 56(f) Under Rule 56(f), a court “may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that"
] |
that the remoteness of the search was the principle objection. Our conclusion is further supported by the final sentence in Preston, 376 U.S. at 368, 84 S.Ct. at 884, We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible. On this reading of Preston we cannot say that the search conducted here was illegal and not incident to an arrest. There is much support for our reading of Preston. See, for example, REDACTED and Arwine v. Bannan, 346 F.2d 458 (6th Cir. 1965). In Adams, 336 F.2d at 753, it was stated, But, as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. It should be emphasized, however, that the search here is upheld as incident to the arrest for breaking and entering. In Preston the Supreme Court questioned whether there could ever be “articles which can be the ‘fruits’ or ‘implements’ of the crime of vagrancy.” 376 U.S. at 368, 84 S.Ct. at 883. And in United States v. Tate, 209 F.Supp. 762, 763, 765 (D. Del.1962), it was
|
[
"hence there was no danger that, after being arrested, he “could have used any weapons in the car or could have destroyed any evidence of a crime Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Thus there was no emergency justifying-a search without a warrant. Preston did hold that a warrantless car search subsequent to an arrest was illegal, but there the search was not an incident to the arrest. It occurred at the police station to which both the parties arrested and the car had been brought. Thus the search “was too remote in time or place to have been made as incidental to the arrest * * Preston v. United States, supra, 376 U.S. at 368, 84 S.Ct. at 884. See also Smith v. United States, 118 U.S.App.D.C. -, 335 F.2d 270 (1964). We recognize, of course, the logic in appellant’s argument. After his arrest there was no danger from unseen weapons or of evidence disappearing from the locked trunk of the car. The status quo with respect to the trunk could have been maintained until a search warrant was issued, particularly since the ear itself was impounded by the police. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so. Affirmed. . Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41 (1954)."
] |
[
"to the vagrancy charge was seized. The Court determined that the search was not a contemporaneous one with the arrest, since the search was remote in time and place from the arrest, and there was no danger of the car being moved, since the men were under arrest and the car was in police custody. In Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964), cert. denied, 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727 (1965), this court distinguished Preston. Crawford, arrested as he was opening the trunk of his car, was taken away in a police car, and a few minutes later the police searched his car. This court held that the search was incidental to and contemporaneous with Crawford’s arrest and therefore not an unlawful search. Finally, in Arwine v. Bannan, 346 F.2d 458 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed. 123 (1965), Arwine was left in his car as a decoy for several hours after his arrest by the police, who hoped to lure his accomplice back to the car. Arwine’s ear was finally searched with Arwine in handcuffs present after the car was driven by the police from the scene of the arrest to a police garage. This court held that the search was incidental to Arwine’s arrest and was not unreasonable under the circumstances. We determined that the search was not remote in place because the place where Arwine was arrested was his car, not the location where the car was parked. We further held that the presence of the defendant while the car was searched as well as the arresting officers retaining possession of the car distinguished this case from Preston. See also, United States v. McKendrick, 409 F.2d 181 (2d Cir. 1969) (search made after car moved to police station not unreasonable); United States v. Powell, 407 F.2d 582 (4th Cir.), cert. denied, 395 U.S. 966, 89 S.Ct. 2113, 23 L.Ed.2d 753 (1969); United States v. Dento, 382 F.2d 361 (3d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967) (search conducted twenty",
"the accused. I refuse to accept the conclusion that, because the car was left outside when the accused were taken inside, the connection between them was so attenuated as to make it constitutionally unreasonable to search the car incident to the arrest. This case is just not Preston. Here, the car was searched contemporaneously with the arrest; it was searched at the police station at the time the accused were booked; and the vehicle was not in police custody. It was the converse of all these factors that induced the Supreme Court in Preston to hold the search and seizure illegal. This is evident from the following excerpt from its opinion: “. . . Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. See Stoner v California, 376 US 483, 11 L ed 2d 856, 84 S Ct 889. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. . . . Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v United States, supra, 267 US, at 153, 69 L ed at 551. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” [Preston v United States, 376 US 364, 367-368, 11 L ed 2d 777,",
"of the arrest, held that this did not establish a right incident to the arrest to search in the manner described: “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. Subsequent development of the Preston rule has not been without difficulty. In numerous cases the courts have held searches of automobiles conducted at the time and place of arrest (“contemporaneous searches”) to be pursuant to the arrest. In other cases where search has been widely separated in time and location from the arrest, the search has been condemned. In intermediate situations the courts have differed. Thus United States v. Cain, 332 F.2d 999 (6th Cir. 1964), held invalid a search of a car taken to police headquarters, conducted about two hours after the arrests. In Sisk v. Lane, 331 F.2d 235 (7th Cir. 1964), petition for cert. dismissed, 380 U.S. 959, 85 S.Ct. 1100, 13. L.Ed.2d 977 (1965), the Seventh Circuit indicated that a search of an auto towed to police headquarters, conducted immediately after the arrival of the car, was in violation of Preston, and in United States v. Nikrasch, 367 F.2d 740 (7th Cir. 1966), a search at police headquarters eight hours after arrest was struck down. But in Arwine v. Bannan, 346 F.2d 458 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123 (1965), a search at police headquarters was upheld where the defendant, after arrest, had remained in the car while it was being driven to headquarters and the search was begun immediately upon arrival at the station. And in Price v. United States, 121 U.S. App.D.C. 62, 348 F.2d 68, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125 (1965), a search at a police station was upheld where it was begun as soon as the car was driven to the station and the officers, at the time of the arrest, had seen the objects for which the search was conducted. The court commented,",
"illegal is, we think, wholly without merit. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), cars were searched after the defendants had been arrested and after the cars had been taken into custody and removed from the scene. In Preston the Court pointed out that the search was “too remote in time or place to have been made as incidental to the arrest”, and held the search illegal. 376 U.S. at 368, 84 S.Ct. at 884. However, it was made quite clear that the right of the police, without a search warrant, to make a contemporaneous search pursuant to a lawful arrest “extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested.” 376 U.S. at 367, 84 S.Ct. at 883. In Cooper, on the other hand, the search was upheld on the basis of its being “closely related to the reason petitioner was arrested, the reason his car had been impounded, and the rea son it was being retained.” 386 U.S. at 61, 87 S.Ct. at 791. In the instant case, we think the search was sufficiently contemporaneous with the arrest, notwithstanding the fact that the defendants were removed from the scene while the search was in progress. See Morris v. Boles, 386 F.2d 395 (4th Cir. 1967); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964). Moreover, the search was closely related to the offense for which the defendants were arrested, and the officers were charged by statute with a duty to seize the car. 49 U.S.C.A. § 782. See United States v. Haith, 297 F.2d 65 (4th Cir. 1961). Nor is it of controlling importance that the officers might have delayed their search until they procured a search warrant. Cooper reaffirmed the holding of United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 (1950), that the “relevant test is not whether",
"at another place. See Stoner v California, 376 US 483, 11 L ed 2d 856, 84 S Ct 889. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. . . . Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v United States, supra, 267 US, at 153, 69 L ed at 551. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” [Preston v United States, 376 US 364, 367-368, 11 L ed 2d 777, 84 S Ct 881 (1964).] [Emphasis supplied.] I would affirm the decision of the board of review, Preston v United States, 376 US 364, 11 L ed 2d 777, 84 S Ct 881 (1964). Adams v United States, 336 F2d 752 (CA DC Cir) (1964). Trupiano v United States, 334 US 699, 92 L ed 1663, 68 S Ct 1229 (1948). United States v Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430 (1950). United States v Summers, 13 USCMA 573, 33 CMR 105. United States v Ross, 13 USCMA 432, 32 CMR 432.",
"Consequently, I submit that it sanctions a practice that circumvents the Supreme Court’s decisions and unnecessarily upsets the desired balance. In carefully articulating those rules which limit the scope of vehicle searches, the Supreme Court has, I think, endeavored to reconcile the legitimate interests of society as a whole with the justified interest of a driver in the security and privacy of his automobile. In Preston, supra, for example, the post-impoundment exploratory search of a vehicle, in which four vagrancy suspects had been arrested, was held unconstitutional. The court wrote: “We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. at 368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777, 781. There are marked similarities between Preston and the case at hand. I can discern only one significant difference. That is that, here, there is the effort to justify the search on grounds that apparently were not urged in Preston. I do not underestimate the importance of this distinction. In a close case, resolving the question of whether a search is reasonable under the Fourth Amendment does indeed require that we “focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of private citizens.” Ca-mara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930, 939 (1968). In applying the appropriate test, I have concluded that in our case my Brothers have not correctly “balance [d] the need to search against the invasion which the search entails.” Id. at 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930, 940. While I can see the validity of some of those interests claimed to support careful so-called “inventory searches,” I can also see that those interests are put forth with overbreadth. If our attention is directed only to those interests, however valid, then we are led to the",
"Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.” See also United States v. Herberg, (U.S.Ct.Mil.App., decided Feb. 26, 1965). On appeal to the Supreme Court, our decision in the Preston case was reversed on the ground that the evidence obtained in the search of the car was inadmissible, being too remote in time or place to be treated as incidental to the arrest, and that it, therefore, failed to meet the test of reasonableness under the provisions of the Fourth Amendment. The law with regard to search of premises after a lawful arrest, as seen from the foregoing, has many windings; the question of the legality of such a search, with which we are here confronted, is a difficult one; and the various decisions of the Supreme Court do not easily conform to a general rule. In Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, it was held that although an arrest of a person, who was committing a felony in the discernible presence of a law-enforcement officer at a place where the officer was lawfully present, was a lawful arrest, nevertheless the seizure of contraband property in the presence of the officer at the time of arrest was not justified as incident to the lawful arrest where there was no excuse for a failure to obtain a search warrant. Mr. Chief Justice Vinson, joined by Mr. Justice Black, dissented on the ground that, in such a case, there was no need to secure a search warrant, saying: “To insist upon the use of a search warrant in situations where the issuance of such a warrant can contribute nothing to the preservation of the rights which the Fourth Amendment was intended to protect, serves only to open an",
"and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). We find no basis for so concluding, despite statements in concurring and dissenting opinions in Chapman, 365 U.S. at 618, 621-623, 81 S.Ct. at 780-781, rarely a safe guide to the holding of the majority. The Chapman case did not present the issue of a search incident to a lawful arrest. Preston, which did, cited the Rabinowitz decision, but proceeded on the ground that “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883, accord, James v. State of Louisiana, 86 S.Ct. 151 (Oct. 18, 1965); and the Court assumed that “the police had the right to search the car when they first came on the scene,” 376 U.S. at 367-368, 84 S.Ct. at 833. The rule that officers making a valid arrest of one or more occupants of an automobile can, without a warrant, then and there search the car including its trunk is reasonable not only because of necessity in many cases but because a speedy search may disclose information useful in tracking down accomplices still on the move. Although the narcotics offense for which Gorman and his associates here were arrested may not have been of the sort where such considerations are of great importance, it is undesirable to impose exceptions, necessarily difficult in practical application, on a rule so long established and so clearly understood by the police. Like the Court of Appeals for the District of Columbia, we are unpersuaded of the necessity, or the wisdom, of qualifying the rule so as to require officers lawfully arresting occupants of an automobile to make a considered and correct on-the-spot determination whether the circumstances of the arrest might render it feasible to secure a warrant before searching the car. See Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567 (1965). Gorman’s final point concerns the",
"of the crime would be endangered by taking the steps necessary to obtain a search warrant? We do not believe that Preston commands such a holding. if * “We do not consider that the fact that Crawford had left the scene when his automobile was searched prevented such search from being incidental to his arrest.” In Adams v. United States, 118 U.S. App.D.C. 364, 336 F.2d 752, 753, where the accused had been placed under lawful arrest, the car in which he was found was searched at the police station to which the party arrested and the car had been brought. The court, after mentioning the argument of appellant relying on the Preston case, and the logic of his argument relating to that case, however stated: “After his arrest there was no danger from unseen weapons or of evidence disappearing from the locked trunk of the car. The status quo with respect to the trunk could have been maintained until a search warrant was issued, particularly since the car itself was impounded by the police. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.” See also United States v. Herberg, (U.S.Ct.Mil.App., decided Feb. 26, 1965). On appeal to the Supreme Court, our decision in the Preston case was reversed on the ground that the evidence obtained in the search of the car was inadmissible, being too remote in time or place to be treated as incidental to the arrest, and that it, therefore, failed to meet the test of reasonableness under the provisions of the Fourth Amendment. The law with regard to search of premises after a lawful arrest, as seen from the foregoing, has many windings; the question of the legality of such a search, with which we are here confronted, is a"
] |
on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The moving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in' the record,” Greene, 164 F.3d at 675 (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” REDACTED Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. Legal Standard for Judicial Review of Agency Actions The Administrative Procedure Act (“APA”) entitles “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof.” 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731,
|
[
"fact. In performing our review of the District Court’s grant of summary judgment, we need only decide the materiality of the alleged fact that the officers handcuffed appellant before the administration of force. We find it unquestionably material. Our inquiry does not end here, however. Having found a material disputed fact, we must nonetheless uphold the grants of summary judgments if there is no genuine dispute as to the material fact. On this point, appellees argue that “[c]onclusory, unsubstantiated statements of an opposing party which are unsupported by specific facts are insufficient to overcome a summary judgment motion,” Br. for Appellee Murray at 21, citing Greene v. Dalton, 164 F.3d 671 (D.C.Cir.1999). Interestingly, appellant also cites Greene, for the accepted proposition that a “non-moving party’s affidavit [is] sufficient to defeat summary judgment in [the] face of contradicting testimony.” Appellant’s Reply Br. at 25. Appellant has the better of this duel, because Greene clearly states that a plaintiff may defeat a summary judgment granted to a defendant if the parties’ sworn statements are materially different. On this point, the court stated: In granting summary judgment for the Navy on Greene’s claim for sexual harassment, the district court quite clearly invaded the province of the jury. Greene submitted a sworn affidavit stating that Clause had harassed and raped her, and that the proffered diary suggesting otherwise was a forgery. If true, these allegations are indisputably sufficient to support a verdict against the Navy under Title VII. The allegations may, of course, be false. That is a question not for the court, however, but for the jury. As the party moving for summary judgment, the Navy bears the initial burden of identifying evidence that demonstrates the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On the record before us, however, we can determine neither the point at which Clause’s harassment became severe or pervasive nor when a reasonable person would have reported his behavior. A jury may resolve both these issues in favor of the Navy, but"
] |
[
"nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. The Plaintiffs Hostile Work Environment Claim 1. Legal Standard for Hostile Work Environment Title VII prohibits an employer from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Toward that end, an employer may not create or condone a hostile or abusive work environment that is discriminatory. Meritor Sav. Bank, FSB v. Vinson, 477",
"motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Ar-rington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. Legal Standard for FLSA Overtime Exemptions The FLSA requires that employers pay their employees one and a half times their “regular rate” for work in excess of forty hours per week, unless they are subject to certain enumerated exemptions. 29 U.S.C. § 207(a). As relevant here, the FLSA exempts from coverage those individuals “employed in a bona fide executive, administrative, or professional capacity.” Id. § 213(a). These overtime exemptions are “affirmative defense[s] on which the employer has the burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); accord Am. Fed’n of Gov’t Employees, AFL-CIO v. Office of Pers. Mgmt., 821 F.2d 761, 771 (D.C.Cir.1987) (noting that “the burden is on the employer to demonstrate the employee is in fact exempt”). The employer’s claim that an exemption applies “must be proved by clear and affirmative evidence or the employee must be given coverage under the Act.” Roney v. United States, 790 F.Supp. 23, 26 (D.D.C.1992); see also Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir.2007) (citing Roney,",
"its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene, 164 F.3d at 675 (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). 2. The Hostile Work Environment Claim a. Legal Standard for Hostile Work Environment Claims Title VII prohibits an employer from discriminating against any individual with respect",
"than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150,154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.Sd at 675. B. The Defendant’s Arguments are Not Barred by Estoppel As a preliminary matter, the plaintiffs contend that the defendant is estopped from arguing that the IDEA precludes attorney fees for education advocates. Pis.’ Supp. Br. at 7. The plaintiffs point to the defendant’s failure to raise its arguments in the due process hearings and the defendant’s partial payment for educational advocates’ attorneys’ fees. Id. at 8. The defendant does not contest these facts, but it asserts that “estoppel will not lie against the Government in the absence of a showing of ‘affirmative misconduct,’ ” and making partial payments does not amount to “affirmative misconduct.” Def.’s Reply at 11-12 (citing LaRouche v. Fed. Election Comm’n, 28 F.3d 137, 142 (D.C.Cir.1994)). Although the plaintiffs had the opportunity to address whether the defendant’s conduct amounted to “affirmative misconduct,” the plaintiffs failed to do so, simply restating their initial arguments and citing only to case law applying estoppel to private parties.",
"favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. 2. The Court Concludes that the Statutory Cap Limits the Plaintiffs Total Recovery of Compensatory Damages to $300,000 and that the Equitable Relief Available in this Case Is Limited to the Potential Recovery of Back Pay for the Period Preceding the Plaintiffs Resignation On January 25, 2011, the court granted the plaintiff leave to file a second amended complaint, which contained no new substantive allegations but clarified the nature of the relief sought by the plaintiff. See Minute Entry (Jan. 25, 2011); compare 1st Am. Compl. at 19-20 (requesting $300,000 in general damages per count, in addition to punitive damages) with 2d Am. Compl. at 19-22 (requesting $300,000 in compensatory damages per count, with the exception of counts seven and ten, as well as back pay, front pay, reinstatement and other remedies).",
"more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “failfed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). B. Legal Standard for Review of the DEA’s Suspension Order Pursuant to the APA The APA allows “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... [to be] entitled to judicial review thereof.” 5 U.S.C. § 702. The scope of judicial review under the APA is fairly limited. The agency action in review is “entitled to a presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The reviewing court may set aside agency actions, findings, and conclusions when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To determine whether agency action is arbitrary or capricious, the court must consider whether: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important",
"inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322,106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “supports] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. The Court Grants in Part and Denies in Part the Defendant’s Motion for Summary Judgment on the Plaintiffs Disparate Treatment and Retaliation Claims 1. Legal Standard for Race Discrimination Generally, to prevail on a claim of discrimination under Title VII, a plaintiff must follow a three-part burden-shifting analysis known as the McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003).",
"exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party’s claim. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In ruling on such a motion, the district court is to view the evidence in the light most favorable to the party opposing the motion, drawing all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See, e.g., Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d Cir.1988). The role of the court on a motion for summary judgment is not to try issues of fact but only to determine whether there are issues of fact to be tried. See, e.g., Anderson v. Liberty Lobby Inc., 477 U.S. at 255, 106 S.Ct. at 2513; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987). The drawing of inferences and the assessment of the credibility of the witnesses remain within the province of the finders of fact. In reviewing an appellate challenge to the granting of summary judgment, we are governed by the same principles. We review the record de novo, and we view the evidence in the light most favorable to the party opposing summary judgment. See, e.g., Healy v. Rich Products Corp., 981",
"party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in the record,” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993). B. Adverse Employment Actions 1. Legal Standard for Adverse Employment Actions To demonstrate employment discrimination under Title VII, a plaintiff must have suffered an employment action that had “materially adverse consequences affecting the terms, conditions, or privileges of [the plaintiffs] employment ... such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002). Within the context of Title VII, an “adverse employment action” is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). The action must result in “objectively tangible harm,” Forkkio, 306 F.3d at 1131, generally characterized by “direct economic harm,” Burlington",
"matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of persuasion on the relevant issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party may survive a motion for summary judgment by producing “evidence from which a jury might return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the motion is supported by affidavits, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Cray Communications v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir.1994) (moving party on summary judgment motion can simply argue the absence of evidence by which the non-movant could prove her case), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the [fact-finder] could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. Lacking direct evidence of discrimination, Plaintiff must satisfy the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prevail on her Title VII and ADA claims. First, Plaintiff must establish by a preponderance of the evidence a prima facie ease of discrimination. If Plaintiff meets the low burden of establishing a prima facie case by a preponderance of the evidence, an inference of discrimination arises, and the burden of production shifts to Defendant to offer legitimate, non-discriminatory reasons for the allegedly discriminatory acts. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets its burden of articulating a legitimate, non-discriminatory reason for the adverse employment action, the McDonnell Douglas presumption disappears. Id. at 255 n. 10, 101 S.Ct."
] |
executors of the will of Oliver Gould Jennings, paid the defendant, Collector of Internal Revenue for the District of Connecticut, an estate tax in the amount of $2,082,730.40 plus interest on certain deficiencies included therein. The executors had elected, under Section 811 (j) of the Internal Revenue Code, 26 U.S. C.A. Int.Rev.Code, § 811(j), to value the assets of the estate for estate tax purposes as of one year after the decedent’s death. In determining the total estate tax, the Commissioner of Internal Revenue included therein all interests and dividends received by the executors during the period between the death of the decedent and the optional valuation date, which increased that tax by $109,089.19, including interest. Subsequently, the Supreme Court in REDACTED . 631, 85 L.Ed. 940, 132 A.L.R. 1035, held that such income was not includible. In August, 1942, the plaintiffs filed with the defendant a claim for the refund of the amount paid as a result of the inclusion of that income. The claim for refund was rejected and the plaintiffs bring this suit. The ground for the rejection of the claim and the only defense to this suit is that there was not included in the decedent’s gross estate the value of certain property transferred in trust by him which should have been included under Section 302(c) and (d) of the Revenue Act of 1926 as amended, 26 U.S.C.A. Int.Rev.Acts, pages 227-229. The Government is barred by the three-year Statute of
|
[
"Mr. Justice Roberts delivered the opinion of the Court. In these cases we must decide whether, where an executor avails himself of the option extended by the estate tax law to value a decedent’s gross estate as of one year after the decedent’s death, rents, dividends, and interest received and accrued during the year are to be added to the value of the property to which they are attributable and included in the value of the gross estate. The question arises under § 302 (j) of the Revenue Act of 1926 as added by § 202 (a) of the Revenue Act of 1935. No. 274 is a suit against the Collector to recover an overpayment of tax. The complaint alleged that the decedent died August 30, 1936; that in the estate’s return the executors elected to have the value of the gross estate determined by valuing it as of one year after the decedent’s death; that the Commissioner included in the estate a sum which was not in fact the decedent’s property at the time of her death but represented income, namely, rents, dividends, and interest earned by the estate subsequent to the decedent’s death; that the executors paid the tax and their claim for refund was rejected. The Collector’s answer raised no material issue of fact. Each party moved for judgment on the pleadings. The-court dismissed the complaint. The Circuit Court of Appeals affirmed, one judge dissenting. In Nos. 510 and 511, the executor of two decedents who died respectively October 9, 1936, and April 3, 1937, elected in its returns to have the gross estates valued as of one year after death or as of date of disposition. In each case the executor collected interest and dividends upon bonds and stocks forming part of the estate at decedent’s death. The sums so collected were not reckoned in fixing the values of the estates, except such portion of them as accrued prior to death. The Commissioner determined deficiencies due to the failure to return them. The Board of Tax Appeals affirmed his action and the Circuit Court of Appeals"
] |
[
"SWAN, Circuit Judge. This is an action by the executors of the will of Oliver Gould Jennings, a resident of Connecticut whose death occurred on October 13, 1936, to recover such part of the estate tax paid by them to the defendant collector as had been illegally collected. Their right to a refund of the amount claimed is clear under Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, and was not disputed; but the defendant set up in defense an additional estate tax liability (greater than the alleged overpayment) based on the failure to include in the decedent’s gross estate the value of certain property which he had transferred in trust in 1934 and 1935. Although assessment of an additional estate tax was barred by the statute of limitations, the plaintiffs do not contend that they are entitled to a refund unless the tax legally due was overpaid. See Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293. Hence the question presented at the trial, and renewed here, is whether the value of the trust property should have been included in the gross estate. The district court held it includible under § 811(d) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 811(d). Accordingly judgment was given for the defendant, and the plaintiffs have appealed. In December 1934 the decedent set up two trusts: one for the family of his elder son, B. Brewster'Jennings, the other for the family of his younger son, Lawrence K. Jennings. The trust instruments were identical, except for the names of the beneficiaries and the property transferred. In discussing the terms of the trusts it will suffice to refer to the one set up for the elder son’s family. The trust was irrevocable and in so far as legally permissible its provisions were to be interpreted and enforced according to Connecticut law. It reserved no beneficial interest to the settlor. He and his two sons were named as the trustees; in casé a vacancy should occur provision was made for the appointment of a successor",
"CHASE, Circuit Judge. The plaintiffs, executors of the Estate of Dennis A. Blakeslee, paid to the defendant, Collector of Internal Revenue for the District of Connecticut, an estate tax computed in part by including in the gross estate the value of property which the decedent either had irrevocably transferred in trust on January 7, 1929 or had subsequently so transferred to the trust at different times before he died on April 5, 1933. A claim for refund was duly made and denied and this suit followed. Trial was by the court after the waiver of a jury. The principal issue on this appeal is whether the evidence supports the findings on which a judgment for the plaintiffs was entered. The inclusion of a part of the value of the trust property in the gross estate was first put by the Commissioner on the ground that it was required by Sec. 302 (c) of the Revenue Act of 1926, 26 U.S. C.A. Int.Rev.Acts, because the property was transferred to the trust to take effect in possession or enjoyment at or after his death but this ground was later abandoned and the inclusion defended as one of property transferred in trust in contemplation of death. The pertinent provisions of the trust instrument were that it should be irrevocable; that the trust should terminate at the end of fifteen years or upon the death of the survivor of the settlor and his wife if such death occurred within the fifteen year period; that upon termination the corpus should be distributed among the settlor’s six children whose interests were stated to be vested as of the date of the trust instrument; that the trustees should keep the property invested and out of the net income pay to the settlor each year the sum of $75,000 and, in the sole discretion of the trustees, such additional part of the net income as they might decide to pay over to him and which should not in any event exceed in the whole ninety per cent of such net income; that the remainder of the net income",
"GRIM, District Judge. The government has assessed additional estate tax against the plaintiff, which has been paid. In this action plaintiff is attempting to recover the amount of the additional estate tax assessed against it. The decedent died on July 25, 1950. During the year after death some securities owned by the estate increased in value. Others decreased in value and others did not change. The aggregate amount of the increases during that period exceeded the amount of the decreases by some $40,000. In determining values for estate tax purposes the Internal Revenue Code grants estates an option to have their assets valued as of the date one year after death if they so elect. This is termed the optional valuation date. The option can be exercised only if certain conditions are met: if the tax return is filed on time (within 15 months after death) and if the estate elects on the return to have the assets valued as of the optional valuation date. Once properly made, the election cannot be revoked after the expiration of the time for filing the return. When the election is made, all the assets of the estate must be valued as of the optional valuation date. Estates are not given the option to pick and choose one date or the other (date of death or one year after death) for each asset individually. In this case the estate tax return was filed on August 27, 1951, well within 15 months after death. The return form included this question: “Does the executor elect to have the gross estate of this decedent valued in accordance with values as of a date or dates subsequent to the decedent’s death as authorized by section 811 (j) of the Internal Revenue Code? (Answer ‘Yes’ or ‘No’)” The question was answered yes on the return. Since the aggregate value of the assets of the estate increased in value during the year after death, from an estate tax point of view the proper answer to the question should have been no instead of yes. It is because of the mistake",
"MAGRUDER, Chief Judge. Appellants are executors of the estate of Mary A. van Beuren, a resident of Rhode Island, who died in 1951. Upon examination of the estate tax return filed by the executors, the Commissioner assessed deficiencies in estate tax, one of which was based upon his determination that there should have been included in decedent’s gross estate, pursuant to § 811(d)(2) of the Internal Revenue Code of 1939, the value at the date of her death of the income to be derived from a certain inter vivos trust established by decedent on April 19, 1932. The executors paid the assessed deficiencies and filed claims for refund, which the Commissioner denied on March 7, 1957. Thereafter, the executors duly filed the present complaint in the United States District Court for the District of Rhode Island seeking recovery of the sums asserted to be due in the claims for refund. Named as defendants were the former Acting Collector of Internal Revenue and the District Director of Internal Revenue. As to certain items, the Commissioner conceded that the plaintiffs were entitled to a refund; and so the district judge gave judgment for the plaintiffs in the sum of $68,235.39, which was the total of the conceded items. But the Commissioner maintained the correctness of his determination as to the inclusion of the trust income, the one issue now in dispute, and the district judge, agreeing with the Commissioner, refused to give plaintiffs judgment for the greater amount claimed in their complaint, and entered a judgment dismissing the complaint “as to any relief in excess of the sum of $68,235.39, together with interest, as provided by law”. The plaintiff executors then took the present appeal from the aforesaid judgment. In enacting § 811(d)(2), the Congress was concerned to prevent an avoidance of the estate tax by the device of creating an inter vivos trust that purported to give away an interest, but where the grantor reserved in his own hands certain threads of control which rendered the gift in effect ambulatory until the date of the grantor’s death. Section 811(d)(2) is sweeping,",
"CHASE, Circuit Judge. The plaintiffs are executors of the will of Alfred W. Erickson, a resident of the City of New York who died November 2, 1936. They duly filed an estate tax returp and then elected, pursuant to the option provided by § 302(j) of the Revenue Act of 1926, as added by amendment by § 202 (a) of the Revenue Act of 1935, 26 U.S. C.A. Int.Rev.Acts, page 231, to have the value of the gross estate determined by a valuation as of one year after the date of decedent's death. Upon audit of the return, the Commissioner determined a deficiency by adding to the gross estate as reported the amount of the estate’s income during the year following the decedent’s death. The estate tax as thus determined was paid in 1939, the last payment being made on September 29th. The executors contended through their attorneys that this income was not lawfully includable in the gross estate and filed a claim on October 24, 1939, for the refund of the taxes assessed and paid because it bad been included. On November 24, 1939, an amended claim for the same refund was filed and on January 29, 1940, the Commissioner rejected both the original and the amended claim in full. The executors then brought suit against this defendant, who is the Collector of Internal Revenue for the Third District of New York, to recover the refund claimed. After the suit had been brought, the Supreme Court decided Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, on March 3, 1941. That decision left no defense to the suit, and in accordance with a stipulation of the parties it was dismissed with prejudice after the plaintiffs had been paid the amount of their claimed overpayment of the estate taxes with interest. The attorneys who filed the refund claim for the executors also brought the above mentioned suit for them and carried it to the conclusion stated. They charged, and were paid for their services after the completion of that work 818,346.18. The executors paid",
"return in which they elected, in accordance with Section 202(a) of the Revenue Act of 1935, to have the property of the estate valued for the purposes of the estate tax as of the “optional valuation date” rather than as of the date of the decedent’s death. Section 202(a) of the Revenue Act of 1935 amends Section 302 of the Revenue Act of 1926, 44 Stat. 70, 26 U.S.C.A. § 411, so as to provide for such an election in the following manner: “If the executor so elects upon his return * * * the value of the grbss estate shall be determined by valuing all the property included therein on the date of the decedent’s death as of the date one year after the decedent’s death, except that (1) property included in the gross estate on the date of death, and, within one year after the decedent’s death, distributed by the executor * * * or sold, exchanged, or otherwise disposed of, shall be included at its value as of the time of such distribution, sale, exchange, or other disposition, whichever first occurs, instead of its value as of the date one year after the decedent’s death * * * .” The obvious purpose of the section was to afford estates some relief from the hardships that might be imposed upon them if the estate tax had to be computed exclusively upon the basis of values existing on the date of the decedent’s death. The Committee’s reports show that Congress had in mind the situation faced by an executor who took office in a time of rapidly falling markets. In such situations, some executors found that their estates soon had diminished to an amount barely sufficient to pay an estate tax based upon values which had existed only at the time of their decedent’s death. This possible hardship the section sought to alleviate. In this action the executors seek to recover from the Collector the amount which they paid under protest as estate tax upon the income received by the estate during the interim between the date of their",
"for the residuary charitable trust, even if no deduction is allowed, is only 23% (100-77%) of the amount which would be available if the deduction were allowed. The Government urges that the income produced by the estate after the death of the decedent is not, for estate tax purposes, a part of the gross estate. It cites Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 to the effect that such income cannot be subjected to the estate tax, and Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940 holding that this is so even where the executors elect, under section 811 (j) of the Internal Revenue Code of 1939, 26 U.S.C. § 811 (j), to use the optional valuation date of one year after the testator’s death. Hence, the Government says, since the post mortem income is not a part of the gross estate, and since the charitable deduction is, according to sec. 812(d) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 812(d), to be a deduction from the gross estate, it would be illogical to allow a deduction from the gross estate of assets not included in it, and which would not be taxed as a part of it even if they went to a private devisee. The Government further urges that, from a practical standpoint, to allow a charitable deduction where it cannot be determined at the time of the decedent’s death would render any computation of the federal estate tax almost impossible. It cites the instant case in which when the estate tax return was made, no charitable deduction for the residuary gift was claimed, since there was no residue; when the first refund claim was filed, as of May 31, 1952, a charitable deduction of $95,436.93 was asserted; presently, because of the August 31, 1952 transfer of post mortem income to principal, a charitable deduction of $1,039,040.78 is asserted. The Government says that this process could go on indefinitely, so long as there were undistributed assets of the estate which might earn income. It",
"paid because it bad been included. On November 24, 1939, an amended claim for the same refund was filed and on January 29, 1940, the Commissioner rejected both the original and the amended claim in full. The executors then brought suit against this defendant, who is the Collector of Internal Revenue for the Third District of New York, to recover the refund claimed. After the suit had been brought, the Supreme Court decided Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035, on March 3, 1941. That decision left no defense to the suit, and in accordance with a stipulation of the parties it was dismissed with prejudice after the plaintiffs had been paid the amount of their claimed overpayment of the estate taxes with interest. The attorneys who filed the refund claim for the executors also brought the above mentioned suit for them and carried it to the conclusion stated. They charged, and were paid for their services after the completion of that work 818,346.18. The executors paid them on August 21, 1942, and on September 14, 1942, filed another claim for the refund of $7,668.69 with interest. This claim was based on a diminution of the gross estate in computing the net estate for tax purposes by deducting the amount of the payment to the attorneys as administration expenses deductible pursuant to § 303(a) (1) (B), as amended, 26 U.S.C.A. Int.Rev.Acts, page 232, and T. R. 80, Art. 34. The refund claim was rejected, however, on November 16, 1942, on the ground that the dismissal of the first suit with prejudice after the payment to the plaintiffs of the entire refund claimed was res adjudicata as to all overpayments of estate taxes and barred the allowance of the additional claim for refund. The plaintiffs brought this suit on November 23, 1942, to recover the claimed refund. A motion by the defendant to dismiss the complaint on the ground that it failed to state a cause of action was denied by the district judge then sitting in the motion part. The case was",
"upon shrinkage in the value of estates during the year following death. Congress enacted it in the light of the fact that, due to such shrinkages, many estates were almost obliterated by the necessity of paying a tax on the value of the assets at the date of decedent’s death.” Maass v. Higgins, 1941, 312 U.S. 443, 446, 61 S.Ct. 631, 632, 85 L.Ed. 940. . The Revenue Code, 26 U.S.C.A. (I.R.C. 1939) § 811(:') provides: “(j) Optional valuation. If the executor so elects upon his return (if filed within the time prescribed by law or prescribed by the Commissioner in pursuance of law), the value of the gross estate shall be determined by valuing all the property included therein on the date of decedent’s death as of the date one year after the decedent’s death * * * ” Treasury Regulation 105, Section 81.11(1) provides: “The election of the executor to have the gross estate valued in accordance with the method authorized by section 811(5), in order to be effective, must be made on the return filed within 15 months from the decedent’s death or within the period of any extension of time granted * * * In no case may the election be exercised, or a previous election changed, after the expiration of the time for the filing of the return.” . When the optional date is selected, all assets disposed of within a year after death must be valued as of the date of disposal. ' • . The executor has died and has been succeeded by an administrator d.b.n.c.t.a. . The current tax return form dated May, 1955, has been changed somewhat from the older form. It now presents the problem to the taxpayer thus: “An election to have the gross estate of the decedent valued as of the alternate date or dates is made by entering a check mark in the box set forth below. “ □ The executor elects to have the gross estate * * * valued * * * as of a date or dates subsequent to the decedent’s death * *"
] |
claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See REDACTED Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents
|
[
"POSNER, Circuit Judge. This appeal requires us to consider the meaning of the term “employee welfare benefit plan” in ERISA. The statutory definition is “any plan, fund, or program ... established or maintained by an employer or by an employee organization ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment [etc.].” 29 U.S.C. § 1002(1)(A). The plaintiff, an employee of United Community Center in Wisconsin, was enrolled in a medical insurance plan offered through her employer by a Blue Cross-Blue Shield subsidiary called Compcare. She brought a suit against Blue Cross-Blue Shield in a Wisconsin state court, charging that Compcare had both broken its contract with her, and acted in bad faith, in refusing to reimburse her for medical expenses incurred in connection with an unusual ailment that she had contracted. Why she sued Blue Cross-Blue Shield instead of Compcare, a corporation in its own right, is unclear; in any event the parties agreed to substitute Compcare for Blue Cross-Blue Shield as the defendant. Compcare removed the case to the district court on the ground that the plan in which the plaintiff was enrolled was an employee welfare benefit plan within the meaning of ERISA. The parties agree, as they must, that a suit for benefits allegedly due under an ERISA plan arises under ERISA, and therefore under federal law, and hence is removable to federal district court. 29 U.S.C. § 1132(a)(1)(B); H.R. Conf.Rep. No. 1280, 93d Cong., 2d Sess. 326-27 (1974), U.S.Code Cong. & Admin. News 1974, 4639, 6106-07; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 68, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Reiherzer v. Shannon, 581 F.2d 1266, 1269-72 (7th Cir.1978). They also agree that if the plaintiffs claim arises under ERISA, her state breach of contract claim is preempted. See 29 U.S.C. § 1144(a). It makes no difference that the defendant is the insurer rather than the employer. See Pilot Life Ins. Co. v. Dedeaux, 481"
] |
[
"plan; AFC employees paid the entire premium themselves. Second, participation in the life insurance plan was voluntary. Defendants appear to recognize this point in arguing that AFC employees “understood that they could benefit from participating in the AFC Plan without having to purchase Metropolitan life insurance.” Nevertheless, defendants contend that the plaintiffs themselves claim that participation in the life insurance program was not voluntary. Contrary to defendants’ contention, plaintiffs specifically allege that participation in the life insurance plan was voluntary. See Complaint ¶38. Plaintiffs claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See Brundage-Peterson v. Compcare Health Services Ins. Corp., 877 F.2d 509, 510 (7th Cir.1989) (an employer could distribute advertising brochures from insurance providers, answer questions concerning insurance, and deduct premiums from payroll and remain within safe harbor regulation); Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents a close question, the court is not con vinced that AFC endorsed the life insurance plan",
"are participants in that plan. They disagree with defendants, however, that the Metropolitan Life plan is also an ERISA plan. Section 1002(1) defines an “employee welfare benefit plan” as “any plan, fund, or program ... established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... benefits in the event of ... death.” Plaintiffs contend that the life insurance plan falls within the “safe-harbor” regulation promulgated by the Department of Labor, which excludes from ERISA’s scope employee benefit programs that entail little employer involvement. The “safe-harbor” regulation provides:. “[T]he terms ‘employee welfare benefit plan’ and ‘welfare plan’ shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employee or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs.” 29 C.F.R. § 2510.3—1(j). In order to fit within the “safe-harbor” regulation, a plan must meet all four criteria. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 241 n. 6 (5th Cir.1990); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). The court is of the view that the Metropolitan Life plan meets all four criteria. First, it is undisputed that AFC made no contributions to the life insurance",
"been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See Brundage-Peterson v. Compcare Health Services Ins. Corp., 877 F.2d 509, 510 (7th Cir.1989) (an employer could distribute advertising brochures from insurance providers, answer questions concerning insurance, and deduct premiums from payroll and remain within safe harbor regulation); Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents a close question, the court is not con vinced that AFC endorsed the life insurance plan within the meaning of the safe-harbor regulation. Determining whether the life insurance plan meets the fourth criterion, whether AFC received any consideration in connection with the life insurance program, is also a close question. AFC did not receive any compensation for payroll deduction services from the life insurance plan. However, when employees signed up for the insurance plan, AFC received tax savings from their simultaneous participation in the cafeteria plan. AFC also saved the expense of having its own managers go to its various divisions and explain the cafeteria plan; Metropolitan Life agents went to the various divisions instead at the expense of Metropolitan Life. The court is nevertheless convinced that benefit AFC received was too indirect and tenuous to conclude that the Metropolitan Life plan falls outside the safe-harbor regulation. B. Preemption ERISA’s preemption clause explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C.A. § 1144(a) (emphasis added). Because the court does not find for purposes of subject-matter jurisdiction that the",
"functions of the employee or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs.” 29 C.F.R. § 2510.3—1(j). In order to fit within the “safe-harbor” regulation, a plan must meet all four criteria. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 241 n. 6 (5th Cir.1990); Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). The court is of the view that the Metropolitan Life plan meets all four criteria. First, it is undisputed that AFC made no contributions to the life insurance plan; AFC employees paid the entire premium themselves. Second, participation in the life insurance plan was voluntary. Defendants appear to recognize this point in arguing that AFC employees “understood that they could benefit from participating in the AFC Plan without having to purchase Metropolitan life insurance.” Nevertheless, defendants contend that the plaintiffs themselves claim that participation in the life insurance program was not voluntary. Contrary to defendants’ contention, plaintiffs specifically allege that participation in the life insurance plan was voluntary. See Complaint ¶38. Plaintiffs claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have",
"program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-1(j) (1987). Group health insurance plans which meet each of these criteria are excluded from ERISA coverage. See Hansen v. Continental Ins. Co., 940 F.2d 971, 977 (5th Cir.1991). Moreover, the bare purchase of insurance, without any of the above elements present, does not constitute an ERISA plan, although it may be evidence of the existence of an ERISA plan. See Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989) (citing Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc)). An employer has not established an ERISA plan if he merely advertises a group insurance plan that has none of the attributes described in 29 C.F.R. § 2510.3-1(j). Kanne, 867 F.2d at 492. In this case, the Department of Labor regulations do not exclude plaintiffs from ERISA’s coverage. Fugarino has done far more than purchase a group health insurance policy and advise his employees of its availability. Fugarino pays the premiums for his employees and permits them to reimburse him. Moreover, the record shows that Fugarino pays the health insurance premium for at least one of his employees. E. Relying on the case of Taggart Corp. v. Life and Health Benefits Admin., Inc., 617 F.2d 1208 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), plaintiffs argue that the group health insurance policy in this case does not constitute an ERISA plan. Taggart, however, dealt",
"employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer. As this court noted in Kanne, behavior inconsistent with any one of the above criteria would constitute evidence of the establishment of a plan. 867 F.2d at 492. Cf. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1135 (7th Cir.1986) (where employer’s sole function was to present different insurers’ plans to employees and collect and remit premiums, employer did not “establish or maintain” plan), cert. denied, — U.S. -, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). The undisputed facts are that City presented the MONY plan to its employees not on a “take it or leave it” basis, but on a “take it or take it” basis. City not only endorsed the plan, it automatically provided the plan to all its employees. Moreover, City did not simply collect premium payments from its employees and pass them on to MONY; City paid the premiums itself directly to MONY. In short, City’s behavior was inconsistent with all of the three criteria cited above. Thus, a straightforward application of 29 C.F.R. § 2510.3-l(j) to the facts of this case forces the conclusion that City did in fact “establish or maintain” an employee welfare benefit plan and, since City is a political subdivision of a state, that plan qualified as a governmental plan under 29 U.S.C. § 1002(32) and was therefore exempt from ERISA coverage pursuant to 29 U.S.C. § 1003(b)(1). Fourth, MONY’s arguments ignore the express wording of ERISA’s definition of an employee welfare benefit plan. As noted above, such plans may be “established or maintained by an employer ... through the purchase of insurance_” 29 U.S.C. § 1002(1) (emphasis added).",
"fraud claims — payment of the life insurance benefit. Cf. Engelhardt, 139 F.3d at 1354. We therefore conclude that all of Butero’s claims are properly recast as claims for benefits due under any plan. That leaves only the first element to discuss — whether there is a relevant ERISA plan. The centerpiece of the plaintiffs’ argument on this point is a regulatory safe harbor from plan-ness, ’ 29 C.F.R. § 2510.3-l(j), and it is there that we start. The regulation excepts from the definition of “employee welfare benefit plan” certain “group or group-type insurance program[s]” “offered by an insurer to employees.” 29 C.F.R. § 2510.3 — l(j). For the program to qualify for the exception, four elements must be satisfied: (1) No contributions are made by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees ...; (3) The sole functions of the employer ... with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer ... receives no consideration in the form of cash or otherwise in connection with the program.... Id. There is no dispute here that elements (1), (2), and (4) are fulfilled. Element (3) is in dispute, but it is hard to see why. The regulation explicitly obliges the employer who seeks its safe harbor to refrain from any functions other than permitting the insurer to publicize the program and collecting premiums. Simply Fashion did a lot more. It picked the insurer; it decided on key terms, such as portability and the amount of coverage; it deemed certain employees ineligible to participate; it incorporated the policy terms into the self-described summary plan description for its cafeteria plan; and it retained the power to alter compensation reduction for tax purposes. So the safe harbor is barred. But that does not necessarily mean that the insurance policy is part of an ERISA plan. See, e.g., Brundage-Peterson v. Compcare Health Servs. Ins. Corp.,",
"creating a “safe harbor” from ERISA coverage. See 29 C.F.R. § 2510.3-Kj). A group insurance plan offered to employees is within the safe harbor regulation established by the Secretary of Labor and is exempt from ERISA coverage when: (1) No contributions are made by an employer or employee organization; (2) Participation in the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. Id.; see also Qualls, 22 F.3d at 843. It is well settled that when an employer provides a group insurance plan to its employees and satisfies all four requirements of the safe harbor regulation, the employer’s mere purchase of insurance does not, in and of itself, create an employee welfare benefit plan under ERISA. See Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (citing Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc)). Some tension may exist in our decisions, however, as to whether an employer’s failure to satisfy one of the four requirements of the safe harbor regulation is conclusive to determining whether a group insurance plan is an employee welfare benefit plan subject to ERISA coverage. We, therefore, begin our analysis by reviewing our case law on this issue. A. We first analyzed the Secretary of Labor’s safe harbor regulation and the issue of ERISA preemption in Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489 (9th Cir.1988). In Kanne, the insured prevailed against its insurer at trial on three state law causes of action and was awarded damages. See id. at 491. The issue of whether the insured’s",
"received tax savings when its employees participated in the cafeteria plan. For those employees who participated in the plan, AFC would have to pay less in federal taxes, such as matching FICA taxes. In addition, as an aside to the cafeteria plan, AFC also gave its employees an option to use their increased take-home pay to purchase life insurance from Metropolitan Life. AFC agreed to deduct the premium payments for the life insurance from the employees’ pay checks and to remit the premiums to Metropolitan Life. AFC would not pay any part of the life insurance premiums. Metropolitan Life would process all of the life insurance claims. In most instances, AFC allowed Metropolitan Life agents to explain both the cafeteria plan and the life insurance option to AFC employees on AFC premises during business hours. Metropolitan Life Agents also solicited life insurance during these presentations and enrolled AFC employees in both the cafeteria plan and the life insurance plan. According to the complaint, defendant Daniel Frith, acting as a Metropolitan Life agent, told the plaintiffs that the tax savings from the cafeteria plan would not be available to them unless they participated in Metropolitan Life’s plan. He also told the plaintiffs that the life insurance would be free to them. Plaintiffs claim that they signed up for the life insurance based on these representations. In fact, as explained above, AFC employees could have received the tax savings from participating in the cafeteria plan without purchasing life insurance. They simply would have received more take-home pay. II. DISCUSSION The question before the court is whether plaintiffs’ lawsuit has been properly removed to federal court as a case “arising under” the laws of the United States pursuant to 28 U.S.C.A. §§ 1441, 1331. Ordinarily, a cause of action arises under federal law only when the plaintiffs “well-pleaded complaint” raises a federal question. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 1548-49, 95 L.Ed.2d 55 (1987). The Supreme Court has determined, however, that the uniform regulatory scheme established by ERISA “so completely preempt[s]” the area of employee benefit",
"within the meaning of the safe-harbor regulation. Determining whether the life insurance plan meets the fourth criterion, whether AFC received any consideration in connection with the life insurance program, is also a close question. AFC did not receive any compensation for payroll deduction services from the life insurance plan. However, when employees signed up for the insurance plan, AFC received tax savings from their simultaneous participation in the cafeteria plan. AFC also saved the expense of having its own managers go to its various divisions and explain the cafeteria plan; Metropolitan Life agents went to the various divisions instead at the expense of Metropolitan Life. The court is nevertheless convinced that benefit AFC received was too indirect and tenuous to conclude that the Metropolitan Life plan falls outside the safe-harbor regulation. B. Preemption ERISA’s preemption clause explicitly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C.A. § 1144(a) (emphasis added). Because the court does not find for purposes of subject-matter jurisdiction that the life insurance plan is an ERISA plan, the court need not reach the second issue of whether plaintiffs’ state-law claims “relate to” the life insurance plan. However, because the parties agree that the cafeteria plan is an ERISA plan, the court must reach this second issue as to that plan. In general, a particular state-law claim “relates to” an ERISA plan if the state-law claim has a “connection with or reference to” an employee benefit plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). A state law may be preempted even if it has only an indirect effect on benefit plans. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 149, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990). However, if the state-law claim affects the plan in “too tenuous, remote, or peripheral a manner,” the state claim does not “relate to” the plan. Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. Plaintiffs claim that defendants fraudulently induced them to buy life"
] |
"work environment. Halstead must have been deliberately indifferent to this racially hostile work environment. Southard , 114 F.3d at 551 (citing Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 454 (5th Cir. 1994) (en banc) ). This is a ""stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action."" Id . (quoting Bd. of the Cty. Comm'rs of Bryan Cty., Okla. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Johnson thus must allege that ""repeated complaints of civil rights violations"" were followed by ""no meaningful attempt on the part of the municipality to investigate or to forestall further incidents."" REDACTED He has done so. There is no dispute that Halstead knew about the alleged harassment. Johnson says he met with Halstead soon after he filed the complaint with HR. The subsequent transfer of Johnson and Halstead's later apology corroborate this. So does the Coleman Report, as it found that a ""high ranking officer"" confirmed Johnson's account of his interactions with the Police Chief. The investigators also concluded that there was ""widespread knowledge"" of Johnson's situation, and that the ""Chain of Command"" knew about the ""hostile, intimidating, and bullying"" behavior. Johnson's allegations that Halstead did nothing to try and stop the harassment even though he knew about it-again corroborated by the outside investigation-also satisfy the second requirement for deliberate indifference."
|
[
"941 F.2d 119, 122-23 (2d Cir.1991). This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. See, e.g., Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986). A § 1983 plain- . tiff injured by- a police officer may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference. See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987); see id. at 326-27 (municipality “should not take a lais-sez-faire attitude toward the violation by its peace officers- of the very rights they are supposed to prevent others from violating”). To prove such deliberate indifference, the plaintiff must show that the need for' more or better supervision to protect against constitutional violations was obvious. See Canton v. Harris, 489 U.S. at 390, 109 S.Ct. at 1205. An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents. See, e.g., Ricciuti v. N.Y.C. Transit Authority, 941 F.2d at 123; Fiacco v. City of Rensselaer, 783 F.2d at 328 (“[w]hether or not the claims had validity, the very assertion of a number of such claims put the City on notice that there was a possibility that its police officers had used excessive force”). Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was “contrary to the practice of most police departments” and was “particularly dangerous” because it presented an unusually high risk that constitutional rights would be violated. See Dodd v. City of Norwich, 827 F.2d 1, 4-6 (2d Cir.), modified on reh’g on other grounds, 827 F.2d 1, 7 (2d Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); see also Oklahoma City v. Tuttle, 471 U.S. at"
] |
[
"520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting [City of Canton, Ohio u] Harris, 489 U.S. at 388, 109 S.Ct. 1197[, 103 L.Ed.2d 412] (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410, 117 S.Ct. 1382. In other words, the risk of a constitutional violation arising as a result of the inadequacies in the municipal policy must be “plainly obvious.” Id. at 412, 117 S.Ct. 1382; see also Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997). Gregory, 444 F.3d at 752-53. A plaintiff must show a “direct causal link between the custom and the constitutional deprivation; that is, she must show that the particular injury was incurred because of the execution of that policy.” Doe, 103 F.3d at 508 (internal quotation marks omitted); see also Fair v. Franklin Cnty., Ohio, 215 F.3d 1325 (6th Cir.2000) (table decision) (“Monell requires that a plaintiff identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.”) (internal quotation marks omitted). To show the existence of a municipal policy or custom leading to the alleged violation, a plaintiff can identify: (1) the municipality’s legislative enactments or official policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance of acquiescence of federal violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.2005) (citing Monell). In Baynes’ complaint, he asserted a § 1983 claim against Macomb County, arguing that the County “developed and maintained policies or customs exhibiting deliberate indifference to the Constitutional rights of persons within the county, which caused the violation of Plaintiffs rights.” Baynes specifically alleged that Defendant Macomb County “and its sheriffs’ department” implemented the following unconstitutional customs and practices: a. Tolerated and encouraged its police officer to harass its citizens by performing warrantless and unconstitutional searches/seizures on innocent citizens without any legal cause or",
"at 290, 292-93, 118 S.Ct. 1989. More specifically, to hold the District liable for such conduct, plaintiffs must show (1) “a district official with the authority to address the complained-of conduct and take corrective action had actual notice” of the discriminatory conduct and (2) was deliberately indifferent to the conduct amounting to “an official decision not to remedy the violation.” Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir.1999) (citing Gebser, 524 U.S. at 290, 118 S.Ct. 1989). “Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference .... ” Doe v. Dallas Ind. School Dist., 153 F.3d 211, 219 (5th Cir.1998)(same sex harassment case). In Geb-ser, the Court analogized the Title IX deliberate indifference standard to that pertaining to municipal liability under § 1983. 524 U.S. at 291, 118 S.Ct. 1989; see Doe v. Gooden, 214 F.3d 952, 955 (8th Cir.2000). In that context, the Supreme Court has said that “... ‘deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 408, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing City of Can ton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Essentially what is required in this ease is sufficient evidence to conclude the District turned a “blind eye” to a known or obvious risk that Skinner would sexually abuse children. Kinman, 94 F.3d at 467. The parties’ briefs do not go head to head on the required elements. The defendant District’s motion primarily challenges plaintiffs’ evidence regarding deliberate indifference. Plaintiffs’ resistance focuses on the notice element. (i) Notice Principal Farmer had the authority to address any misconduct by Skinner as shown by the investigations and actions taken by him in connection with the incident involving Ginny and those which preceded it. The significant facts for notice purposes are not those involving the abuse inflicted on Ginny. Ginny’s report was immediately taken up and Skinner did not",
"(declining to dismiss a Monell claim when the plaintiff alleged \"at least eight separate instances\" in which officers \"engaged in the type of misconduct that is alleged to have occurred here\"). Second, as to Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate, the City argues that Mr. Thomas cannot show that the City was deliberately indifferent to its officers' misconduct. Deliberate indifference \"is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.\" Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Board of Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Though no court within the Third Circuit has weighed in, several courts have held that a municipality cannot be deliberately indifferent to a right that is not clearly established. See Szabla v. City of Brooklyn Park , 486 F.3d 385, 393 (8th Cir. 2007) (\"[A] municipal policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.\"); see also Townes v. City of New York, 176 F.3d 138, 143-44 (2d Cir. 1999) ; Williamson v. City of Virginia Beach, 786 F.Supp. 1238, 1264-65 (E.D. Va. 1992) ; Zwalesky v. Manistee County, 749 F.Supp. 815, 820 (W.D. Mich. 1990). Because the rights at issue in the claims for Fourteenth Amendment malicious prosecution, Brady violations, and failure to investigate were not clearly established in 1994, the Court dismisses the Monell count as to these claims. The Court notes the narrowness of this conclusion: because the City concedes that Mr. Thomas has articulated a Monell claim for Fourth Amendment malicious prosecution and for Fourteenth Amendment fabrication of evidence, the Monell count itself survives. VIII. Punitive Damages Officer Gist argues that Mr. Thomas may not recover punitive damages in this § 1983 case. Not so. Punitive damages are available against an individual § 1983 defendant \"when the defendant's conduct is shown to be motivated by evil motive or intent,",
"an employee to do so, resolving [ ] issues of fault and causation is straightforward.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). But where the claim is that municipal action lawful on its face caused an employee to inflict constitutional injury, “rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. sit 405, 117 S.Ct. 1382. In City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Court held that municipal liability for a claim such as failure to supervise employee Edwards— plaintiffs’ theory in this case—requires proof that the failure “amounts to deliberate indifference to the rights of persons with whom the [employee] eome[s] into contact.” Municipal inaction must be the “moving force [behind] the constitutional violation.” Id. at 389, 109 S.Ct. 1197 (alteration in original) (quotation omitted); see Szabla, 486 F.3d at 390-91. Deliberate indifference in this context “is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410, 117 S.Ct. 1382. The issue is whether, “in light of the duties assigned to specific officers or employees the need for more or different training [or supervision] is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390, 109 S.Ct. 1197, quoted in Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998); cf. Cash v. Cty. of Erie, 654 F.3d 324, 337 (2d Cir. 2011) (failure-to-supervise claim), cert. denied, 565 U.S. 1259, 132 S.Ct. 1741, 182 L.Ed.2d 528 (2012). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quotation omitted). “In resolving the issue of",
"enough that the same standards of fault and causation should govern. A municipality, with its broad obligation to supervise all of its employees, is liable under § 1983 if it supervises its employees in a manner that manifests deliberate indifference to the constitutional rights of citizens. We see no principled reason why an individual to whom the municipality has delegated responsibility to directly supervise the employee should not be held liable under the same standard. 15 F.3d at 453. The court concluded that a supervisory official may be liable under section 1983 if that official, by action or inaction, demonstrates a deliberate indifference to a plaintiffs constitutionally protected rights. Id. at 454. Athough the deliberate indifference standard arose from a case alleging a violation of a substantive due process right, the standard applies to other underlying constitutional violations as well. Id., n. 8. The Supreme Court has recently reaffirmed that “ ‘deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of the County Commissioners of Bryan County, Oklahoma, v. Brown, — U.S.-,-, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997); see also, Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994)(de-liberate indifference is more than “more blameworthy than negligence”, but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result”). The “deliberate indifference” standard permits courts to separate omissions that “amount to an intentional choice” from those that are merely “unintentionally negligent oversight[s].” Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 756 (5th Cir.1993), quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992). Appellees assert that because Collins knew of the numerous, similar complaints of sexual harassment against Strain, and failed to' stop the harassment, Collins was deliberately indifferent to appellees’ constitutional rights. Collins asserts that his receipt of the EEO investigative reports cannot as a matter of law show that he acted with deliberate indifference to appellees’ rights, because the EEO office conducted independent investigations and",
"the relevant question is whether Duncan’s actions amounted to deliberate indifference. Cf. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456 n. 12 (5th Cir.) (en banc) (applying deliberate indifference standard for purposes of § 1983 analysis and recognizing that many good faith but ineffective responses may satisfy a school official’s obligations), cert, denied sub nom. Lankford v. Doe, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). We hold, as a matter of law, that they did not. See Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (equating deliberate indifference to “an official decision not to remedy the violation”). Thus, the district court correctly granted summary judgment in favor of DCSD on Plaintiffs’ Title IX claim. B. Section 1983 Plaintiffs claim that the district court erred by granting summary judgment and finding DCSD and Duncan not liable under section 1983 for Mency’s misconduct. A plaintiff seeking to impose liability on a municipality (school district) under section 1983 must identify a municipal “policy” or “custom” that caused a deprivation of federal rights. Board of County Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). But it is well established that a municipality may not be held liable under section 1983 on a theory of respondeat superior. See Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d’611 (1978). Instead, “recovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’ — -that is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). Moreover, it is not enough to identify conduct properly attributable to the municipality. A plaintiff must show that the municipal action was taken with the requisite degree of culpability, i.e., that the municipal action was taken with “ ‘deliberate indifference’ ” to its known or obvious consequences. Brown, 520 U.S. at 407, 117 S.Ct. at 1390 (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103",
"to hold a municipality liable under § 1983 must identify a municipal policy or custom that caused plaintiffs injury. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of County Comm’rs of Bryan County, supra (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). The plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404, 117 S.Ct. 1382. Similarly, a supervisor cannot be held liable under § 1983 for the acts of a subordinate on a respondeat superior theory. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995). Rather, supervisory liability must be based on the supervisor’s own acts or omissions. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The plaintiff must show that the supervisor’s behavior demonstrates deliberate indifference to conduct that is violative of a plaintiffs constitutional rights. Id. at 582 (citations omitted). “ ‘[Djeliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. at 410, 117 S.Ct. 1382. [A] supervisor cannot be liable for merely negligent acts. Rather, a supervisor’s acts or omissions must amount to a reckless or callous indifference to the constitutional rights of others... “An official displays such reckless or callous indifference when it would be manifest to any reasonable official that his conduct was very likely to violate an individual’s constitutional rights.” Febus-Rodriguez v. Betancourt-Lebron,",
"failure to prevent it, the Court crafted the “deliberate indifference” standard to distinguish between cases in which the city’s inaction could fairly be said to have caused the injurious action and those in which it could not. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Court held that a municipality sometimes can be liable for the actions of an employee that was not directed or authorized by the city, but that in such cases the deliberate indifference standard of fault will be superimposed on section 1983, which itself requires no particular state of mind other than that which is necessary to state a violation of the underlying constitutional right. Id. at 405, 109 S.Ct. 1197. “Deliberate indifference” is a “stringent standard of fault ... requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Comm’rs of Bryan Co. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). City of Canton was not a case where the policymaker was alleged to have directed or authorized the offending act (failure to provide medical care for pre-trial detainees) — the City was only alleged to have failed to train its employees so as to prevent them from committing the offending act. In the last of the major Supreme Court cases in this area, Board of Commissioners of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), the Court applied the deliberate indifference standard even though the plaintiffs claim characterized the county’s act as an affirmative act — wrongful hiring of a police officer who later used excessive force — rather than as an omission like failure to train. The important thing for our purposes is that the “policy” alleged in Brown did not authorize the injurious action — the policymaker sheriff did not authorize the use of excessive force; at most, the policy allowed the injurious action to happen. Justice O’Connor distinguished between cases where the deliberate indifference element was not necessary and those where it was,",
"the victim’s employment and create an abusive working environment that violates Title VII.’ ” Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.2000) (quoting Wallace, 80 F.3d at 1049 n. 9); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Felton, 315 F.3d at 485; Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997). “Hostile work environment” racial harassment occurs when an employer’s conduct “ ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.’ ” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a)). To survive summary judgment on a hostile work environment claim based on race, the non-movant must create a fact issue as to each of the following elements: “(1) racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working environment.” Walker, 214 F.3d at 625 (citing DeAngelis, 51 F.3d at 594); accord Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005); Felton, 315 F.3d at 485. Whether a work environment meets these criteria depends upon the totality of the circumstances. See Harris, 510 U.S. at 23, 114 S.Ct. 367; Harvill, 433 F.3d at 434; Hockman, 407 F.3d at 325; Septimus, 399 F.3d at 611; Walker, 214 F.3d at 625; DeAngelis, 51 F.3d at 594. To be actionable, the challenged conduct must be sufficiently severe or pervasive as to create an environment that a reasonable person would find hostile or abusive considering all the circumstances. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Septimus, 399 F.3d at 611; Felton, 315 F.3d at 485; Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002); Allen v. Michigan Dep’t of Corr., 165 F.3d 405, 410 (6th Cir.1999); Wright-Simmons v. City of Oklahoma City,",
"under Title IX to those underlying the deliberate indifference standard under § 1983. Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (citing Bd. of Cnty. Commis. of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (deliberate indifference standard described as “stringent” and “requiring proof that [the official] disregarded a known or obvious consequence of his action”)). Educational institutions may be liable for deliberate indifference to known acts of harassment by one student against another. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To be actionable an institution’s deliberate indifference must either have caused the harassment or made students vulnerable to it. Id. at 644-45, 119 S.Ct. 1661. A plaintiff must show that the institution had “substantial control over both the harasser and the context in which the known harassment occurs.” Id. at 645, 119 S.Ct. 1661. In order to avoid deliberate indifference liability an institution “must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 648-49, 119 S.Ct. 1661. The “not clearly unreasonable” standard is intended to afford flexibility to school administrators. Id. at 648, 119 S.Ct. 1661. The Court concluded in Davis that the plaintiff had presented a genuine issue of material fact on the issue of deliberate indifference by the allegation that the school board had “fail[ed] to respond in any way over a period of five months” to complaints by her and other female students. Id. at 649,119 S.Ct. 1661. Our court has previously considered deliberate indifference claims against a university based on sexual assault allegations in Ostrander v. Duggan, 341 F.3d 745 (8th Cir.2003). In that case, three University of Missouri students brought sexual assault complaints against fraternity members to the university’s Office of Greek Life. Id. at 748. Administrators met with the fraternity’s local advisor and wrote to its national president stating the university’s expectation that the chapter would investigate the allegations and provide educational programming about sexual assault to its members. Id. Applying the framework"
] |
peril; nevertheless as Rhodes and Hoptowit correctly direct, “the Eighth Amendment does not reflect what any of us in the judicial branch might believe to be desirable, but rather requires a mere minimum standard of life’s necessities.” Medical Care, Sanitation, Food, Clothing and Safety 7. Inadequate attention to medical care, clothing, facilities for hygiene, sanitation, food service, exercise, safety, access to programs, and visitation may implicate the Eighth Amendment if the State has been deliberately indifferent to inmates’ needs. Hoptowit. However none of the conditions found to exist at CMC alone amounts to an unnecessary and wanton infliction of pain. Id. Nor does the conduct of CMC with respect to any one of these conditions of confinement constitute deliberate indifference. See REDACTED Hoptowit. 8. I have considered the effect of each condition of confinement in the context of the prison environment. Because of the severity of the condition of shelter, each of the other conditions is more closely related than would otherwise be the case. See Wright, 642 F.2d at 1133. Those having to do with recreation, programs, in-cell confinement, and classification are most crucial. I conclude that so long as there is a margin of flexibility with respect to the shelter condition, and so long as there is adequate “extended space” to compensate for the deprivation of in-cell space, neither alone nor in context is there a constitutional violation. Penological Purpose 9. Because it was conceived as
|
[
"interfering with the treatment once prescribed. Regardess of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. In Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), for example, the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction had thwarted the first attempt. Writing for the plurality, Mr. Justice Reed reasoned that the second execution would not violate the Eighth Amendment because the first attempt was an “unforeseeable accident.” Id., at 464. Mr. Justice Frankfurter’s concurrence, based solely on the Due Process Clause of the Fourteenth Amendment, concluded that since the first attempt had failed because of “an innocent misadventure,” id., at 470, the second would not be “ ‘repugnant to the conscience of mankind,’ ” id., at 471, quoting Palko v. Connecticut, 302 U. S. 319, 323 (1937). Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Ill Against this backdrop, we now consider whether respondent’s complaint states a cognizable § 1983 claim. The handwritten pro se document is to be"
] |
[
"upder the eighth amendment is at an end jf it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related factors.” Hoptowit, supra, at 1246-1247 (Citations omitted, emphasis added). The appropriate approach in this case is to first examine specific conditions separately and then complete the analysis by analyzing the manner in which any violative condition interrelates to exacerbate other such conditions. This approach is in accord with Supreme Court precedent: Read in its entirety, the District Court’s opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum.... The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of maximum security personnel.” The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court’s conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment. Hutto v. Finney, supra, 437 U.S. at 685-687, 98 S.Ct. at 2570-71 (Citations omitted; emphasis added). I therefore do not apply the simplistic “totality of conditions” analysis decried by Wright v. Rushen, supra, but",
"S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). In determining whether a challenged condition violates “evolving standards of decency,” courts may consider opinions of experts and pertinent organizations. But these opinions will not ordinarily establish constitutional mini-ma. What experts may consider desirable may well constitute appropriate goals to which the other branches may aspire but they do not usually establish those minimums below which the Constitution establishes a prohibition. See Rhodes v. Chapman, supra, 101 S.Ct. at 2400 n.13. Indeed, they weigh less heavily in this determination than what the general public would consider decent. Id. D. Analytical Framework. In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, “ ‘[A]n institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.’” Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981) (Wright), quoting Wolfish v. Levi, supra, 573 F.2d at 125. In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the “totality of conditions” at a prison. Wright, 642 F.2d at 1132. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.” Id. at 1133. This is no more than a recognition that a particular violation may be the result of several contributing factors. “But the court’s principal focus must be on specific conditions of",
"numerous lower court decisions. To the extent that those cases are not inconsistent with Rhodes, they retain their vitality and will be looked to for guidance in the present case. The Eighth Amendment clearly requires states to furnish its inmates with “reasonably adequate food, clothing, shelter,' sanitation, medical care, and personal safety.” Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977). Those areas are generally considered as the “core” areas entitled to Eighth Amendment protections. They are the basic necessities of civilized life, and are, during lawful incarceration for conviction of a crime, wholly controlled by prison officials. Inmates must necessarily rely upon prison officials and staff to ensure that those basic necessities are met. A corollary to the state’s obligation to provide inmates with constitutionally adequate shelter is the requirement of minimally adequate living space that includes “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Other courts have held that adequate shelter must include adequate provisions for fire safety. Leeds v. Watson, 630 F.2d 674, 675-76 (9th Cir.1980); Ruiz v. Estelle, 503 F.Supp. 1265, 1383 (S.D.Tex.1980), aff’d in part, rev’d in part and remanded, 679 F.2d 1115 (1982); Gates v. Collier, 349 F.Supp. 881, 888 (N.D.Miss.1972), aff’d, 501 F.2d 1291 (5th Cir.1974). On the other hand, constitutionally adequate housing is not denied simply by uncomfortable temperatures inside cells, unless it is shown that the situation endan gers inmates’ health. Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir.1977). Similarly, high levels of noise are not, without more, violations of the Eighth Amendment. Hutchings v. Corum, 501 F.Supp. 1276, 1293 (W.D.Mo.1980). As noted by the Supreme Court in Rhodes, the Constitution simply does not require complete comfort and does not prohibit double celling per se. 452 U.S. at 349, 101 S.Ct. at 2400, 69 L.Ed.2d at 70. The Eighth Amendment, as noted, does require the maintenance of reasonably sanitary conditions in prisons, especially in the housing and food preparation and",
"eighth amendment violation. See Wright v. Rushen, 642 F.2d at 1133. Plaintiffs contend that Hoptowit v. Ray ignores related conditions by creating a per se rule that enforced idleness does not constitute cruel and unusual punishment. Plaintiffs argue that by applying Hoptow-it’s per se rule, the district court failed to consider related conditions that, when combined with enforced idleness, would create a cruel and inhuman situation. Plaintiffs’ arguments are unpersuasive for several reasons. First, related conditions are those conditions that combine to deprive a prisoner of a discrete basic human need. Hoptowit v. Ray, 682 F.2d at 1246. The discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Wright v. Rushen, 642 F.2d at 1132-33. Enforced idleness, taken alone, simply does not deprive a prisoner of any of these basic needs. See Hoptowit v. Ray, 682 F.2d at 1254-55. Second, plaintiffs do not identify any related conditions that would support a finding that enforced idleness created an eighth amendment violation in this case. Plaintiffs point to the violence and psychological pain that enforced idleness engenders. Related conditions, however, are not those that result from another condition, but those that in combination create a cruel and unusual punishment. See, e.g., Wright v. Rushen, 642 F.2d at 1134; Spain v. Procunier, 600 F.2d 189,199 (9th Cir.1979). In reality, plaintiffs urge us to hold as a matter of law that “lengthy enforced idleness does not comport with contemporary standards of decency, and that work, educational, and vocational programs are constitutionally mandated.” Plaintiffs, therefore, implicitly ask us to overrule Hoptowit v. Ray and create a per se rule to the contrary. Third, even if we held that enforced idleness in administrative segregation constitutes cruel and unusual punishment, it does not follow that mandating work programs is the appropriate remedy. An injunction must be narrowly tailored to cure the constitutional violation and must not intrude on the functions of state officials unnecessarily. We would violate this principle by holding as a matter of law that provision of work programs is the necessary remedy for",
"adequate medical treatment was violated by Dr. Organ. A plaintiff may state an Eighth Amendment claim when he alleges that prison officials denied, delayed, or interfered with necessary medical treatment with deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment claim.... Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quotations and citations omitted). Additionally, it is only that conduct which is incompatible with “the evolving standards of decency that mark the progress of a maturing society,” Estelle, 429 U.S. at 102, 97 S.Ct. 285, or constitute the “unnecessary and wanton infliction of pain,” id. at 104, 97 S.Ct. 285, that rises to the level of deliberate indifference toward an inmate’s serious medical needs. There is a two-pronged test that a plaintiff must satisfy to state a cognizable claim under the Eighth Amendment. The test contains both an objective and a subjective component. First, as to the objective prong, the medical condition for which the plaintiff alleges he was denied treatment must be “sufficiently serious” to raise Eighth Amendment concerns. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Ordinarily, a health condition is sufficiently serious to state a claim when it involves some urgency, risk of degeneration or death, or extreme pain. See id. Moreover, as noted above, a “sufficiently serious” deprivation occurs when a “prison official’s acts or omission ... results] in the denial of ‘the minimal civilized measure’ of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, as to the subjective prong, the plaintiff must allege that the charged official acted with a “sufficiently culpable state",
"necessarily violate the Eighth Amendment. The amendment is violated only where an inmate is deprived of “the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see Inmates of Occoquan, 844 F.2d at 835-41; Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). The denial of medical care, prolonged isolation in dehumanizing conditions, exposure to pervasive risk of physical assault, severe overcrowding, and unsanitary conditions have all been found to be cruel and unusual under contemporary standards of decency. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical care); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (prolonged isolation in unsanitary, overcrowded cell); Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985) (security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (overcrowding, sanitation), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Although prisoners are, undeniably, sent to prison as punishment, the prison environment itself may not be so brutal or unhealthy as to be in itself a punishment. Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.1977). In challenging the district court’s holding, defendants contend that double-celling is not per se unconstitutional. They rely on the Supreme Court’s holding in Rhodes v. Chapman, 452 U.S. at 348-49, 101 S.Ct. at 2400-01, that double-celling inmates, under the circumstances in the prison at issue there, did not violate the Eighth Amendment. See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (double-celling pre-trial detainees for short periods does not constitute punishment under due process clause); French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985) (practice of double-celling not per se unconstitutional); but see Battle, 564 F.2d at 395 (sixty square feet per inmate is constitutional minimum); Ramos, 639 F.2d at 568 (reaffirming Battle). However, in determining whether conditions of confinement violate the Eighth Amendment we must look at the totality of the conditions within the institution. The Supreme Court made this precept clear",
"in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measures of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency we recognized in Gamble. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S. 337, 346-347, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59 (1981) (Citations omitted). I adopt this careful and restrained analysis to the issues of this case. I also look to the guidance of Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) and Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), and apply the analytical framework provided in Hoptowit, supra: In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of human needs. As we have recently held, “[A]n institution’s obligation upder the eighth amendment is at an end jf it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison. There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related factors.” Hoptowit, supra, at 1246-1247 (Citations omitted, emphasis added).",
"F.2d 143 (3d Cir.1985) (inmate security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981) (overcrowding, sanitation). At a minimum, a correctional institution satisfies its obligations under the Eighth Amendment when it furnishes prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. See Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir.1988); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Segregated detention is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman or totally without penological justification. See Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir.1984); Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir.1969); Mims v. Shapp, 399 F.Supp. 818, 822 (W.D.Pa.1975). It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks. See Hutto, 437 U.S. at 685-86, 98 S.Ct. at 2570-71; O’Brien v. Moriarty, 489 F.2d 941, 944 (1st Cir.1974). Courts, though, have universally condemned conditions of segregation inimi-cable to the inmate-occupants’ physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners. See Hutto, 437 U.S. at 685-87, 98 S.Ct. at 2570-71; Peterkin, 855 F.2d at 1029-30. There is a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. Isolation may differ from normal confinement only in the loss of freedom and privileges permitted to other prisoners. See Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa.1978). The duration and conditions of segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards. Hutto, 437 U.S. at 686-87, 98 S.Ct. at 2571; Smith, 748 F.2d at 787. We find that Young",
"that, considered either alone or in combination, specifically amount to cruel and unusual punishment, there can be no Eighth Amendment violation. Likewise, the mere fact that conditions are interrelated does not justify a remedy that is more intrusive than necessary to correct the constitutional wrong. Such is the case even if the court is convinced that certain conditions, while not themselves unconstitutional, are either harsh, oppressive, or contrary to sound penological practices. See Rhodes, supra, 452 U.S. at 347, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. As important as what the Supreme Court decided in Rhodes is what it did not decide. The Court „did not rule that double celling may never amount to cruel and unusual punishment. Rather, the extensive analysis of related prison conditions makes it crystal clear that each case must be judged on its own unique facts. Furthermore, the Court did not purport to define what conditions of confinement, “other than those in Gamble and Hutto,” id., may constitute cruel and unusual punishment. That question, however, has been addressed in numerous lower court decisions. To the extent that those cases are not inconsistent with Rhodes, they retain their vitality and will be looked to for guidance in the present case. The Eighth Amendment clearly requires states to furnish its inmates with “reasonably adequate food, clothing, shelter,' sanitation, medical care, and personal safety.” Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977). Those areas are generally considered as the “core” areas entitled to Eighth Amendment protections. They are the basic necessities of civilized life, and are, during lawful incarceration for conviction of a crime, wholly controlled by prison officials. Inmates must necessarily rely upon prison officials and staff to ensure that those basic necessities are met. A corollary to the state’s obligation to provide inmates with constitutionally adequate shelter is the requirement of minimally adequate living space that includes “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239",
"521 (1976)] that deliberate indifference to an inmate’s medical needs is cruel and unusual punishment rested on the fact, recognized by the common law and by state legislatures, that “[a]n inmate must rely on prison authorities to treat his needs; if the authorities fail to do so, his needs will not be met.” These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle v. Gamble, we held that the denial of medical care is cruel and unusual punishment because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. In Hutto v. Finney [437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)] the conditions of confinement .. . constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivations of basic human needs. Conditions, other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measures of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency we recognized in Gamble. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S. 337, 346-347, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59 (1981) (Citations omitted). I adopt this careful and restrained analysis to the issues of this case. I also look to the guidance of Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) and Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), and apply the analytical framework provided in Hoptowit, supra: In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of human needs. As we have recently held, “[A]n institution’s obligation"
] |
meaning of A.R.S. § 44-2348 [re-numbered as A.R.S. § 47-2403]). . Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242 (5th Cir.1976). . Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38, 39 (9th Cir.1979)(the interest of unpaid cash seller is subordinate to the interest of a valid perfected security interest); Dixie Bonded Warehouse and Grain Co. v. Allstate Fin. Corp., 755 F.Supp. 1543, 1552 (M.D.Ga.1991)(a good faith purchaser's perfected security interest will be prior to an aggrieved seller’s interest); Lavonia Mfg. Co.v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985)(perfected secured creditors were good faith purchasers whose rights are superior to the rights of a reclaiming seller); REDACTED In re Victory Mkts., Inc., 212 B.R. 738, 741-42 (Bankr.N.D.N.Y.1997); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344-45 (Bankr.M.D.Fla.1992)(a lienholder with a pre-existing, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller). .The issue might have been addressed and resolved in Carbajal because the competing secured creditor in that case also failed to perfect its security interest. But there the reclaiming seller failed to make the
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[
"as previously noted, the reclaiming seller must establish the requirements of the relevant U.C.C. section and remains subject to its limitations. Pursuant to U.C.C. § 2-702(3), the seller’s right to reclamation is “subject to” the rights of a good faith purchaser from the buyer. Pester, 964 F.2d at 844; In re Leeds Building Products, Inc., 141 B.R. 265, 268 (Bankr.N.D.Ga.1992); Video King, 100 B.R. at 1016; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994); Victory Markets, 212 B.R. at 742. That the right of a reclaiming creditor is subordinate to that of a good faith purchaser does not automatically extinguish the reclamation right. Pester, 964 F.2d at 846. Rather, the reclaiming creditor is “relegated to some less commanding station.” Leeds, 141 B.R. at 268. Most courts have treated “a holder of a prior perfected, floating lien on inventory ... as a good faith purchaser with rights superior to those of a reclaiming seller.” See Victory Markets, 212 B.R. at 742 (citing, Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976)); In re Child World, Inc., 145 B.R. 5, 7 (Bankr.S.D.N.Y.1992); Blinn Wholesale Drug, 164 B.R. at 443; Isaly Klondike Co. v. Sunstate Dairy & Food Products Co. (In re Sunstate Dairy & Food Products Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Leeds, 141 B.R. at 268. See also House of Stainless, Inc v. Marshall & Ilsley Bank, 75 Wis.2d 264, 273, 249 N.W.2d 561, 567 (1977) (citing, In re Hayward Woolen Co., 3 U.C.C.Rep. Serv. 1107, 1111-12 (Bankr.D.Mass.1967); First-Citizens Bank & Trust Co. v. Academic Archives, 10 N.C.App. 619, 624, 179 S.E.2d 850, 853 (1971); Guy Martin Buick, Inc. v. Colorado Springs Nat. Bank, 184 Colo. 166, 519 P.2d 354, 358 (1974)). But see In re American Food Purveyors, Inc., 17 U.C.C.Rep.Serv. (CBC) 436 (Bankr.N.D.Ga.1974). Galey argues that the courts that have found parties with secured interests in inventory to be good faith purchasers have merely referred to the definitions of good faith purchaser under the U.C.C. § 1-201(19), (32), and (33). Galey"
] |
[
"Court decision in General Electric Credit Corp. v. Tidwell Industries, Inc., 115 Ariz. 362, 565 P.2d 868 (1977) (en banc). In that decision, the court held that an inventory and accounts receivable financer had the status of a protected “good faith purchaser” within the meaning of A.R.S. § 44r-2348 [U.C.C. § 2-403], and the secured lender’s interest in goods delivered to the buyer was superior to the interest of the unpaid cash seller of the goods. Id. at 365, 565 P.2d at 871. See, In re Samuels, 526 F.2d 1238 (5th Cir. 1976) (en banc) (held, interest of unpaid cash seller subordinate to interest of holder of perfected security interest in those same goods and proceeds received from the sale of those goods). Paper Bag argues that Talcott’s security interest never attached to the paper goods which were delivered to Fry’s because the goods never became inventory in the physical possession of Ace. We do not find this to be a material distinction. In substance, if not in form, the transaction at issue here is just the same as if the paper goods had been warehoused temporarily by Ace and then delivered to Fry’s. Delivery of goods to a third party pursuant to a buyer’s instructions is sufficient delivery to pass whatever rights and title the buyer might have had in the goods to the third party, just as if the delivery had been made by the buyer himself. Dairyman’s Cooperative Creamery Association v. Leipold, 34 Cal.App.3d 184, 188, 109 Cal.Rptr. 753, 755 (1973); Mason v. Rolando Lumber Co., 111 Cal.App.2d 79, 82, 243 P.2d 814, 815 (1952). Cf. State ex rel. Frohmiller v. Hendrix, 56 Ariz. 342, 346, 107 P.2d 1078, 1080 (1940) (held, delivery to buyer’s carrier pursuant to buyer’s instructions sufficient to pass title). Upon delivery of the goods to Fry’s, Ace had a right to receive payment for the paper goods, and, at that moment, Talcott’s perfected security interest in Ace’s new account receivable attached. AFFIRMED. . By separate suit, appellant obtained a judgment on November 29, 1976, against Ace for the full purchase price of",
"disguised statutory lien or preference. Although the Bankruptcy Code specifically authorizes an unpaid seller to reclaim merchandise under express limitations delineated in 11 U.S.C. § 546(c), that right may not be asserted to defeat the interests of previously perfected inventory lien creditors. The right of reclamation from a breaching buyer is subordinate to those of previously perfected lien creditors, who are regarded in the same fashion as good faith purchasers whose rights are also superior to those of reclaiming sellers. Collingwood Grain, Inc. v. Coast Trading Company (In re Coast Trading Co., Inc.), 744 F.2d 686 (9th Cir.1984); Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.1976) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). Indeed, the reclaiming sellers’ demand for the proceeds of the auction sale, to the extent of their unpaid bills, is not consistent with the reclamation right authorized under 11 U.S.C. § 546(c) and U.C.C. § 2-702. As stated by Judge Anthony M. Kennedy (now Mr. Justice Kennedy): Section 2-702 speaks only of reclaiming goods not of reclaiming proceeds. Section 2-702, therefore, does not in and of itself create a right to reclaim the proceeds of the resale of the goods. In re Coast Trading Co., Inc., 744 F.2d at 691. Because the reclaiming sellers have satisfied the prerequisites of 11 U.S.C. § 546(c), but are prevented from enforcing their reclamation rights against CIT’s superior status, they are entitled to an administrative expense priority claim in accordance with 11 U.S.C. § 546(c)(2)(A) which: (A) grants the claim of such a seller priority as a claim specified in Section 503 of this title 11 U.S.C. § 546(c)(2)(A). See In re Roberts Hardware Co., 103 B.R. at 399; In re AIC Photo, Inc., 57 B.R. 56, 60 (Bankr.E.D.N.Y.1985). An administrative expense claim under 11 U.S.C. § 503(b) is accorded a first priority status pursuant to 11 U.S.C. § 507(a)(1). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C.",
"right of reclamation. Absent some showing of bad faith, however, there is not much room to debate that a lienholder with a preexisting, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller. See, e.g., Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-1243 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20—546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.-702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller’s right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor. Since “or lien creditor” has now been removed from Section 672.702(3) of the Florida Statutes, Klondike contends its right of reclamation is not subject to Barclays’ rights. Klondike’s contention is without merit. Despite the removal of “or lien creditor” from Section 672.702(3) of the Florida Statutes, Klondike’s right of reclamation remains subject to Barclays’ rights because Barclays, as stated above, qualifies as a good faith purchaser. Section 672.702(3) of the Florida Statutes, however, does not extinguish Klondike’s right of reclamation but merely makes that right “subject to” Barclays’ perfected preexisting lien. Neither party has cited, nor has this Court found, any Florida cases interpreting Section 672.-702(3). There are, however, non-Florida cases interpreting the precise section of the Uniform Commercial Code (§ 2-702(3)) now before the Court. “ ‘[Sjubject to’ ... means the right is subordinate or inferior to the security interest ...” Pester Ref. Co. v. Ethyl Corp. (In re Pester Ref. Co.), 964 F.2d 842, 846 (8th Cir.1992). Section 672.702(3) of the Florida Statutes has the effect of placing Klondike’s rights behind, or subject",
"546(c) states that, “the right [to reclaim] is subject to any superior rights of other creditors”. This rather general statement has been specifically applied in several cases factually similar to the one at issue. In Stowers v. Mahon, 526 F.2d 1238 (5th Cir. 1976); cert. den. 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), the court considered reclamation claims by unpaid cash sellers of cattle in. bankruptcy proceedings. In a lengthy and complex Circuit Court panel dissent, adopted by the Fifth Circuit, the court concluded that the claims of these sellers were subordinate to those of the debtor’s secured lender (who had an after-acquired property clause). The court looked to Uniform Commercial Code Sections 2-403 and 2-507 as well as 2-702 to reach its decision that: “... under this provision [§ 2-403] the rights of an aggrieved cash seller are subordinated to those of the buyer’s good-faith purchasers, including Article Nine lenders ...” 526 F.2d at 1244. The same decision was reached in a Ninth Circuit opinion citing Stowers, Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38 (9th Cir. 1979). The same conclusion has also been reached in cases involving credit sellers. In In re Bowman, 25 UCC Rept.Srv. 738 (U.S.D.C., N.D.Ga.1978), the court again held that the debtor, even though a defaulting buyer, could pass title to a good faith purchaser, UCC § 403. Moreover, under UCC § 1-201(32) a secured creditor is a good faith purchaser and should therefore prevail over the reclaimants. See also, Kennett-Murray & Co. v. Pawnee National Bank, 598 P.2d 274 (Okla.1979). I therefore find and conclude that these cases are in point and controlling. Counsel for defendant, Shaffer-Haggart, Inc., have cited In re American Food Purveyors, Inc., 17 UCC Rept.Srv. 436 (U.S.D.C., N.D.Ga.1974) as a case holding for the reclaimants. However, in that opinion the court felt that it had equitable reasons for concluding that the secured lender was not a good faith purchaser. Moreover, American Food is the only opinion cited for this proposition and therefore I conclude that it is contrary to the great weight",
"the letter’s status as a satisfactory U.C.C. § 2-702 reclamation demand. B. Seller’s Reclamation Right When There Is A Perfected Security Interest In the Goods As straightforward as Section 546(c) reads, courts have split over whether the seller’s right of reclamation is still available when there is a creditor with a perfected security interest in the buyer/debtor’s inventory. Some courts have held that a seller’s reclamation interest is “extinguished” by a secured creditor claim, while other courts have held that the seller’s reclamation right is not extinguished but merely subordinated to the secured creditor’s claim. See For cases holding seller’s right is not extinguished: In re Leeds Building Products, Inc., 141 B.R. 265 (Bankr N.D.Ga.1992); In re Pester Refining Co., 964 F.2d 842, 846 (8th Cir.1992); In re Bosler Supply Group, 74 B.R. 250 (N.D.Ill.1987); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988); For cases holding seller’s right is extinguished: In re Shattuc Cable Corp., 138 B.R. 557 (Bankr.N.D.Ill.1992); In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984). This court finds that to extinguish Dynascan’s right of reclamation without granting an alternative remedy would provide an inequitable solution. Although Dy-nascan has fulfilled the requirements of § 546(c) to reclaim the goods, reclamation is impossible because the goods have already been sold. In In re Griffin Retreading Co., a strikingly similar situation was presented. 795 F.2d 676 (8th Cir.1986). In Griffin, the regular supplier of a tire retreading company shipped a supply of rubber to the tire company. Id. On the day after the shipment was received, the tire company filed for bankruptcy. Id. The supplier promptly demanded reclamation of the shipment pursuant to U.C.C. § 2-702, but the company failed to return the shipment and subsequently sold the goods in the ordinary course of business. Id. The Eighth Circuit Court of Appeals, in affirming the District Court, held that a reclaiming seller creditor that meets all the tests under § 546(c) for reclamation is entitled to either an administrative expense priority or secured lien when a right of reclamation is made impossible because the properly reclaimed goods were",
"and State Bank of New South Wales, Ltd. had prior perfected floating liens on the Debtor’s inventory on the date that Imperial asserted its right of reclamation. Imperial has not disputed this assertion, nor has it argued that either entity is not a good faith purchaser. Therefore, both C & S 'Wholesalers, Inc. and State Bank of New South Wales, Ltd. are deemed to have been good faith purchasers with rights superior to those of Imperial as a reclaiming seller as of September 20, 1995. See, e.g., Sunstate Dairy & Food Prods., 145 B.R. at 344. Since there are prior perfected security interests in the Goods that Imperial seeks to reclaim, Imperial’s claim is necessarily subordinated, but is not automatically extinguished. Rather, Imperial’s claim is relegated to “some less commanding station.” In re Wathen’s Elevators, Inc., 32 B.R. 912, 923 (Bankr.W.D.Ky.1983); see Leeds Bldg. Prods., 141 B.R. at 268; Pillsbury Co. v. FCX, Inc. (In re FCX, Inc.), 62 B.R. 315, 322 (Bankr.E.D.N.C.1986). What this “station” is, however, has been the subject of divergent judicial opinions. Some courts have held that where reclamation is denied, the seller is entitled to an administrative priority claim or a lien in the full amount of the reclamation claim. See, e.g., American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254-55 (N.D.Ill.1987); Sunstate Dairy & Food Prods., 145 B.R. at 345-6; Diversified Food Serv. Distribs., 130 B.R. at 430. Other courts have held that any right of a seller to reclamation is extinguished if there is a prior secured creditor, thereby precluding any remedy of an administrative priority claim or lien under Code § 546(c)(2)(A). See, e.g., In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984); In re Shattuc Cable Corp., 138 B.R. 557, 562 (Bankr.N.D.Ill.1992), overruled by In re Reliable Drug Stores, Inc., 70 F.3d 948 (7th Cir.1995). Yet another interpretation requires a seller to first establish its right of reclamation and then requires that the seller establish the value of that right in order to determine the amount of the administrative claim or",
"before the reclaiming sellers filed their present motion pursuant to 11 U.S.C. § 542(c). The reclaiming sellers now maintain that their right to the proceeds of sale, to the extent of their unpaid claims in the sum of $4,623.35, is superior to CIT’s perfected floating lien on Diversified’s inventory- The reclaiming sellers place great reliance on Ray-O-Vac v. Daylin, Inc. (In re Daylin, Inc.), 596 F.2d 853 (9th Cir.1979). However, that case was decided under the repealed Bankruptcy Act of 1938, as amended, and merely held that a reclaiming unpaid seller could assert U.C.C. § 2-702 and prevail over a debtor in possession or a trustee in bankruptcy. The Daylin case did not address the issue as to a reclaiming seller’s status vis-a-vis a previously perfected inventory lien creditor. The Daylin case was the forerunner to the adoption of 11 U.S.C. § 546(c) under the current Bankruptcy Code, which simply codifies the holding in that case and resolved a dispute under the former Bankruptcy Act as to whether a reclaiming seller’s rights amounted to a disguised statutory lien or preference. Although the Bankruptcy Code specifically authorizes an unpaid seller to reclaim merchandise under express limitations delineated in 11 U.S.C. § 546(c), that right may not be asserted to defeat the interests of previously perfected inventory lien creditors. The right of reclamation from a breaching buyer is subordinate to those of previously perfected lien creditors, who are regarded in the same fashion as good faith purchasers whose rights are also superior to those of reclaiming sellers. Collingwood Grain, Inc. v. Coast Trading Company (In re Coast Trading Co., Inc.), 744 F.2d 686 (9th Cir.1984); Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.1976) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). Indeed, the reclaiming sellers’ demand for the proceeds of the auction sale, to the extent of their unpaid bills, is not consistent with the reclamation right authorized under 11 U.S.C. § 546(c) and U.C.C. § 2-702. As stated by Judge",
"2-702; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994). The right to reclaim is limited by NYUCC § 2-702(3), however, which makes the seller’s right subject to the rights of a buyer in the ordinary course of business or other good faith purchaser. See Blinn, 164 B.R. at 443; Child World, 145 B.R. at 7. It is well-settled law that absent a showing of bad faith, a holder of a prior perfected, floating lien on inventory will be treated as a good faith purchaser with rights superior to those of a reclaiming seller. See Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Child World, 145 B.R. at 7; In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). In the case sub judice, Debtor asserts that C & S Wholesale Grocers, Inc. and State Bank of New South Wales, Ltd. had prior perfected floating liens on the Debtor’s inventory on the date that Imperial asserted its right of reclamation. Imperial has not disputed this assertion, nor has it argued that either entity is not a good faith purchaser. Therefore, both C & S 'Wholesalers, Inc. and State Bank of New South Wales, Ltd. are deemed to have been good faith purchasers with rights superior to those of Imperial as a reclaiming seller as of September 20, 1995. See, e.g., Sunstate Dairy & Food Prods., 145 B.R. at 344. Since there are prior perfected security interests in the Goods that Imperial seeks to reclaim, Imperial’s claim is necessarily subordinated, but is not automatically extinguished. Rather, Imperial’s claim is relegated to “some less commanding station.” In re Wathen’s Elevators, Inc., 32 B.R. 912, 923 (Bankr.W.D.Ky.1983); see Leeds Bldg. Prods., 141 B.R. at 268; Pillsbury Co. v. FCX, Inc. (In re FCX, Inc.), 62 B.R. 315, 322 (Bankr.E.D.N.C.1986). What this “station” is, however, has been the subject of divergent judicial",
"lieu of, not in addition to, any right to reclaim.” Collingwood Grain, lnc. v. Coast Trading Co., Inc. (In re Coast Trading Co., Inc), 744 F.2d 686, 692 (9th Cir.1984) (J.Kennedy). See also Griffin Retreading Co. v. Oliver Rubber Co. (In re Griffin Retreading Co.), 795 F.2d 676, 679 (8th Cir.1986); American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254 (N.D.Ill.1987); In re FCX, Inc., supra, 62 B.R. at 322-323. Code § 546(c) is the seller’s exclusive remedy against a debtor in bankruptcy. See Hitachi Denshi America, Ltd. v. Rozel Ind., Inc. (In re Rozel lnd., Inc.), 74 B.R. 643, 645 (Bankr.N.D.Ill.1987) (and cases cited therein); 4 COLLIER ON BANKRUPTCY, supra, ¶ 546.04 at 546.-20. LIC’s statutory rights as a seller of goods are grounded in the NYUCC. In order for Marine’s valid security interest, which was perfected upon attachment, see NYUCC, supra, at § 9-203, to prevail over LIC’s right of reclamation under the Code, Marine must be a good faith purchaser under NYUCC § 2-403. NYUCC at § 2-702(3). Since it is clear that Marine is a purchaser for value within the meaning of the Code, and the NYUCC, see Code §§ 101(37), (50); NYUCC, supra, at §§ 1-201(32), (33), (44)(b), its superior status turns on the issue of good faith. See id. at § 1-201(19); Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 211-212 (5th Cir.1983). LIC bears the burden of proving Marine’s lack of good faith. See In re Coast Trad ing Co., Inc., supra, 744 F.2d at 690; In re FCX, Inc., supra, 62 B.R. at 322. There is no evidence before the Court that Marine did not act in good faith in its dealing with the Debtor. Accordingly, the Court holds that Marine is a good faith purchaser under NYUCC § 2-702 and its floating lien on the Debtor’s now owned or after-acquired inventory is superior to LIC’s right of reclamation under code § 546(c). See In re FCX, Inc., supra, 62 B.R. at 318, 319 (and cases cited therein). See also"
] |
of this subparagraph. Id. § 552(a)(6). II. Mootness Defendants note that they released all responsive documents and that ONDA does not challenge either the adequacy of the search for responsive documents conducted by NOAA Fisheries or its reliance upon FOIA exemptions to withhold some documents. Defendants contend that ONDA’s claims are moot because of the release of the documents. Defendants also argue that ONDA’s assertion that the documents were time sensitive is undercut by its delay in bringing suit and its failure to raise all claims in the administrative appeal. The government relies on cases which hold that a claim for relief under FOIA becomes moot once the agency produces all responsive documents. See REDACTED Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir.1986) (agency eventually provided copies of all rules and regulations concerning corroborative evidence requirement for benefits). ONDA argues that its issue falls within the voluntary cessation exception to the mootness doctrine because NOAA Fisher ies and the other federal agencies produced the documents only after ONDA filed suit but before this court issued an order requiring production. Without a declaration that the prolonged delays are unlawful, ONDA is concerned that it will face the same situation again. Defendants contend that this narrow exception does not apply
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[
"at which plaintiff acknowledged she had received all the requested documents and no substantive controversy as to the documents remained. Plaintiff was concerned, however, that dismissing the case as moot might deprive her of the right to seek attorney’s fees under the FOIA. See 5 U.S.C. § 552(a)(4)(E). The district court assured plaintiff that she could still pursue her fee application even if the merits of the case were dismissed as moot and specifically reserved the fee issue in its final order on the merits. To be entitled to fees under § 552(a)(4)(E), plaintiff must establish that she substantially prevailed in the litigation and that a fee award is otherwise justified. See, e.g., Aviation Data Serv. v. FAA, 687 F.2d 1319, 1321 (10th Cir.1982) (discussing the criteria for awarding attorney’s fees under the FOIA). At the bottom of plaintiff’s appeal of the district court’s dismissal order is her fear that she will not be able to establish her entitlement to fees because “[t]he dismissal of the case as moot, prior to trial, may be interpreted as leaving the court to decide [plaintiffs] claim for attorneys’ fees without reference to the underlying cause of action,” Appellant’s Br. at 9. This fear is unfounded. Once the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot. Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir.1986); DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.1984); Webb v. Department of Health & Human Servs., 696 F.2d 101, 106 (D.C.Cir.1982). Plaintiff, however, argues that her claim for attorney’s fees was part of the merits of her FOIA action because the claim arose under the FOIA, itself. Therefore, plaintiff reasons, the action could not become moot so long as the attorney’s fee issue remained unresolved. The Supreme Court has rejected the principal tenet of plaintiffs argument: “[W]e think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The"
] |
[
"(1998) (citation and quotation marks omitted); see also Carter, 780 F.2d at 1481; Cornucopia Inst., 560 F.3d at 675-76. To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. Otherwise, there remains some “effective relief’ that can be provided the plaintiff, and the case is not moot. Siskiyou Reg’l Educ. Project, 565 F.3d at 559 (citation omitted). A FOIA claim is not moot, for example, if the agency produces what it maintains is all the responsive documents, but the plaintiff challenges “whether the [agency’s] search for records was adequate.” Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85-86 (D.D.C.2005); see also 5 U.S.C. § 552(a)(3)(C)-(D) (requiring agencies to conduct a search reasonably calculated to uncover all records responsive to the request). In that situation, there is still a live controversy regarding whether the agency is withholding records. See, e.g., Papa, 281 F.3d at 1013. The district court in this case held that when the VA offered the 157 emails to Yonemoto in his capacity as its employee, the agency was no longer withholding those records within the meaning of 5 U.S.C. § 552(a)(4)(B), and the claim was therefore moot. See Yonemoto III, 2009 WL 5033597, at *4. But the district court’s premise regarding the reach of § 552(a)(4)(B) was wrong, making its mootness conclusion wrong as well. Under the FOIA, Yonemoto was entitled to the records unencumbered by restrictions on further use or dissemination. Access as a VA employee entails restrictions on dissemination, and so does not provide the access granted by the FOIA. As to the first point, as the Department of Justice recognizes, “it is well settled that it is not appropriate for a court to order disclosure of information to a FOIA requester with a special restriction, either explicit or implicit, that the requester not further disseminate the information received.” Department of Justice Chdde to the Freedom of Information Act 721 (footnote omitted). This principle derives from the understanding that “FOIA provides every member of the public with equal access to public documents and, as such, information",
"pursuant to the FOIA only “if the agency has contravened all three components of this obligation.” Id.; see also Spurlock v. FBI, 69 F.3d 1010, 1015 (9th Cir.1995). As with other types of civil cases, a suit under the FOIA can be rendered moot by events subsequent to its filing. The remedy requested here is one typical in a FOIA action: that the court “enjoin the agency from withholding agency records and ... order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). As we have previously observed, “the production of all nonexempt material, ‘however belatedly,’ moots FOIA claims.” Papa, 281 F.3d at 1013 (quoting Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982)). That result obtains because once the defendant agency has fully complied with the FOIA’s production mandate, the plaintiff is no longer suffering or threatened with “an actual injury traceable to the defendant” that is “likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (citation and quotation marks omitted); see also Carter, 780 F.2d at 1481; Cornucopia Inst., 560 F.3d at 675-76. To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. Otherwise, there remains some “effective relief’ that can be provided the plaintiff, and the case is not moot. Siskiyou Reg’l Educ. Project, 565 F.3d at 559 (citation omitted). A FOIA claim is not moot, for example, if the agency produces what it maintains is all the responsive documents, but the plaintiff challenges “whether the [agency’s] search for records was adequate.” Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85-86 (D.D.C.2005); see also 5 U.S.C. § 552(a)(3)(C)-(D) (requiring agencies to conduct a search reasonably calculated to uncover all records responsive to the request). In that situation, there is still a live controversy regarding whether the agency is withholding records. See, e.g., Papa, 281 F.3d at 1013. The district court in this case held that when the VA offered the 157 emails to Yonemoto in his capacity as",
"the Court should find that Defendants “improperly delayed and withheld agency records.” Pl.’s Resp. to Second Mot. for Partial Summ. J. at 5. The Court refuses to find an improper withholding or delay on two grounds. First, this Circuit has established that a defending agency in a FOIA case is entitled to summary judgment if “the defending agency [can] prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C.Cir.1980) (internal citations and quotations omitted). Defendants in the present case have demonstrated that the twenty-three pages at issue were produced. Therefore, it follows from Weisberg that Defendants are entitled to summary judgment. Id. Second, this Court has held that “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.” Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982); see also Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.1993) (holding that “[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot”). Therefore, even if Defendants’ release of the USAF documents subjected Plaintiff to delay before producing the records, this Court cannot make a finding of improper delay or withholding of documents because the issue has become moot. Accordingly, the Court grants Defendants’ Second Motion for Partial Summary Judgment. IV. CONCLUSION For the aforementioned reasons, the Court shall GRANT in part and DENY in part [11] Defendants’ Motion for Partial Summary Judgment; GRANT in part and DENY in part [13] Plaintiffs Cross-Motion for Summary Judgment; and GRANT [17] Defendants’ Second Motion for Partial Summary Judgment. Defendants shall produce the following information to Plaintiff: 1) incentive payments to the contractor; 2) answers to NIH questions in the revised contract proposal; 3) the withheld NIH contract questions; and 4) redactions of the square footage of the APF, daily inventories of animals, floor plans and wiring diagrams,",
"not appear to challenge the adequacy of USCIS’s search for responsive documents or its reliance upon FOIA’s exemptions to withhold some documents, but disagrees that Defendants’ production was “complete.” As discussed at length infra Part D, the court finds that Defendants erred in concluding that all of the withheld documents are subject to a FOIA exemption. The nonexempt portions of the withheld documents render USCIS’s response incomplete and the expedited process request subject to judicial review. However, since Plaintiffs frame the denial of Hajro’s expedited request as being in breach of the Settlement Agreement, the court will address the merits of the denial in its discussion of the Settlement Agreement status and any violations flowing from its termination or alteration. See infra Part E. As to Plaintiffs’ other allegations based on timing, Defendants offer only a conclusory assertion that “[t]o the extent Plaintiff Hajro is challenging the timeliness of USCIS’s FOIA responses, those claims should be dismissed as barred by the statute or as moot.” Presumably this is similarly due to the fact that “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.” But as noted, the court finds that certain nonexempt records have yet to be released to Hajro. Additionally, Plaintiffs’ claims are not moot insofar as they raise the specter of a pattern or practice that remains unaddressed, even as the particular requests originally forming the basis for the challenge are no longer active. The government has not countered Plaintiffs’ evidence that USCIS failed to comply with the requirements of Sections 552(a)(6)(A) and (B) in Hajro and Mayock’s cases, or Plaintiffs’ contention that such failure to comply is symptomatic of USCIS’s policy for responding to FOIA requests for alien registration files. The likelihood that USCIS will repeat the same violations against Plaintiffs and in the broader application of its responses to such requests militates against a finding of mootness. D. Withholding of Non-Exempt Documents Under FOIA and the APA Plaintiffs’ remaining constitutional and FOIA-based claims stem from the allegedly",
"case, appellants’ challenges to the rules as applied, like the procedural challenge in Dow, were mooted by the agency’s curative actions. When courts apply the \"voluntary cessation” doctrine, they typically conclude that the case is not moot; in fact, it often should be more precisely stated that the entire case is not moot. . NRDC v. NRC, 680 F.2d at 814 (quoting California v. San Pablo & Tulare Railroad, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893)). . Id. at 815. . See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974) (proper to award declaratory relief when need for injunction has been removed but challenged governmental practice continues). . Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985). . No party to this case contends that the constitutional criteria of the doctrine have not been met. . Eagle-Picher Indus., Inc., 759 F.2d at 915. . Id. . Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 149, 87 S.Ct. at 1515. . Id.; see also Eagle-Picher Indus., Inc., 759 F.2d at 915; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 126 (D.C.Cir.1974) (en banc). . See Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C.Cir.1984); Continental Airlines, Inc., 522 F.2d at 124-25. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Although the meaning of the guidelines and regulation might be illustrated by their application to particular fee waiver requests, such illustrations are not necessary to appellants’ challenges. They contend that, even without application, the standards are facially inconsistent with FOIA and violate the APA, and are therefore illegal. It is these claims that we hereby hold ripe for review. . See Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124 (D.C.Cir.1974) (\"The label an agency attaches to its action is not determinative.”). Although it is not clear whether State and Interior were required to adopt the DOJ guidelines, they apparently have constructively",
"last surrendered all of the requested documents, the district judge on January 22, 1981, granted the government’s motion to dismiss or, in the alternative, for summary judgment. The trial judge also directed Perry’s counsel to submit a request for reasonable attorneys’ fees and costs. This appeal ensued. II. Appellant posits a variety of challenges to the government actions in this case, only two of which merit discussion here. We would simply note at this juncture that, however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform. Although “[tjhere may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention,” Lybar-ger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), the case at bar does not mandate such court action. Under 5 U.S.C. § 552(a)(4)(B), a federal court is authorized only to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld .. . . ” Thus, “[ojnce the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made.” Crooker v. United States State Department, 628 F.2d 9, 10 (D.C.Cir. 1980). We are not authorized to make advisory findings of legal significance on the character of the agency conduct vis-a-vis any requester of information. In sum, if we are convinced that appellees have, however belatedly, released all nonexempt material, we have no further judicial'function to perform under the FOIA. We turn now to the two arguments proffered by appellant that warrant limited discussion. First, arguing that relevant, nonexempt documents remain undisclosed, appellant contends that the affidavits submitted by appellees were insufficient to establish that the government search had been thorough and that all records had been released. Second, appellant contends that we should remand the case to the district court for a trial on his claim for damages under the Privacy Act. A. The Adequacy of the Affidavits Since",
"covered by his various requests. Still, Walsh went ahead with his suit, seeking a judicial declaration that he was entitled to those records, along with costs and attorney fees. The district court granted the VA’s motion for summary judgment, finding' that Walsh’s claim was moot. Walsh appeals the grant of the VA’s motion and the denial of his motion for summary judgment, arguing that his claim is not moot under the FOIA and that he is entitled to judicial review under the Administrative Procedures Act (APA). We review the district court’s decision de novo. See Allen v. City of Chicago, 351 F.3d 306, 311 (7th Cir.2003). In general, “[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.” Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.1993). See also Matter of Wade, 969 F.2d 241, 248 (7th Cir.1992) (“In FOIA cases, mootness occurs when requested documents have already been produced.”); DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.1984) (“Once the requested docu ments have been produced, the claim for relief under FOIA becomes moot.”); Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982) (\"[H]owever fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.”). Walsh contends that two related exceptions to the mootness doctrine apply to his claim: cases involving “voluntary cessation,” see Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 747 (7th Cir.1999), and actions that are “capable of repetition yet evading review,” see Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir.2000). Whether either doctrine applies to this case depends on the likelihood that Walsh will request additional documents and that the VA will again fail to produce them in a timely manner. See Milwaukee Police Ass’n, 192 F.3d at 747 (“Voluntary cessation of allegedly illegal conduct does not render a case moot unless the defendant can demonstrate that ‘there is no reasonable expectation that the wrong will be repeated.’ ” (quoting DiGiore v. Ryan, 172",
"has considered and released “[a]ll reasonably segregable nonexempt responsive records known to exist,” rendering moot any delay in response. Plaintiffs respond that USCIS’s recurring timing violations are by nature “inherently transitory” and thus qualify for an exception to the mootness doctrine. Plaintiffs point out that at the time of filing their opposition and cross-motion, Hajro had filed a second application for naturalization, in which a denial after hearing would require a FOIA request to obtain documents related to the hearing— likely raising these saihe issues again. Plaintiffs reason that the repetitive nature of these agency processes, as further demonstrated by Plaintiffs’ broader allegations of systemic FOIA violations, creates a reasonable expectation that the same violations will recur. Plaintiffs also argue that under FOIA itself, the district court has jurisdiction to review the denial of expedited processing because Defendants’ response to Hajro’s request is not yet “complete.” With respect to Plaintiffs’ second cause of action based upon the November 2007 denial of expedited processing of Hajro’s FOIA request, the court agrees with Defendants that Plaintiffs do not appear to challenge the adequacy of USCIS’s search for responsive documents or its reliance upon FOIA’s exemptions to withhold some documents, but disagrees that Defendants’ production was “complete.” As discussed at length infra Part D, the court finds that Defendants erred in concluding that all of the withheld documents are subject to a FOIA exemption. The nonexempt portions of the withheld documents render USCIS’s response incomplete and the expedited process request subject to judicial review. However, since Plaintiffs frame the denial of Hajro’s expedited request as being in breach of the Settlement Agreement, the court will address the merits of the denial in its discussion of the Settlement Agreement status and any violations flowing from its termination or alteration. See infra Part E. As to Plaintiffs’ other allegations based on timing, Defendants offer only a conclusory assertion that “[t]o the extent Plaintiff Hajro is challenging the timeliness of USCIS’s FOIA responses, those claims should be dismissed as barred by the statute or as moot.” Presumably this is similarly due to the fact that “however",
"417, 420-21 (1983). As a question of jurisdiction, mootness is an exception to “the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties.” F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983). The Supreme Court has explained that “jurisdiction, properly acquired, may abate if the ease becomes moot,” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) — which happens when it is unreasonable to expect “that the alleged violation will recur,” and when “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (citations omitted). In other words, a ease will be moot where it no longer presents a “live” controversy or the parties no longer have a “ ‘legally cognizable interest in the outcome’ ” of the litigation. See Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1019 n. 3 (Fed.Cir.2005) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)); see also Davis, 440 U.S. at 631, 99 S.Ct. 1379; Technical Innovation, 93 Fed.Cl. at 279; 15 James Wm. Moore et al., Moore’s Federal Practice § 101.90 (3d ed. 2009). Moreover, plaintiff must also demonstrate that it has been prejudiced by the Corps’s decision to conduct the third investigation, in the context of standing. See Info. Tech. & Appl’ns Corp. v. U.S., 316 F.3d 1312, 1319 (Fed.Cir.2003). In bid protests, prejudice “is a necessary element of standing,” and in all cases “standing is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,1369-70 (Fed.Cir.2002); see also Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378-79 (Fed.Cir.2009). Under the ADRA, an offeror has standing to challenge procurement decisions that affect its “direct economic interest,” see Am. Fed’n of Gov’t Employees, 258 F.3d at 1302 (borrowing the definition from 31 U.S.C. § 3551(2)), which in a pre-award protest requires alleging “a nontrivial competitive injury which",
"1429. Second, even though the specific action that the plaintiff challenges has ceased, a claim for declaratory relief will not be moot even if the “plaintiff has made no challenge to [an] ongoing underlying policy, but merely attacks an isolated agency action,” so long as “the specific claim fits the exception for cases that are capable of repetition, yet evading review, or falls within the voluntary cessation doctrine.” Id. (internal quotation marks and citations omitted). In Olmstead v. L.C. ex rel. Zimring, 521 U.S. 581, 594 n. 6, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that the challenge by two mental patients to their confinement in a segregated environment was not mooted by their post-complaint transfers because “in view of the multiple institutional placements [they had] experienced, the controversy they brought to court [was] capable of repetition, yet evading review.” (internal quotation marks and citations omitted); see also Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 578, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). Del Monte has chosen this second route by alleging that OFAC’s failure to act promptly on Del Monte’s August 2007 license application is capable of repetition yet evades review. Under the capable of repetition yet evading review exception to mootness, the plaintiff must demonstrate that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Clarke v. United States, 915 F.2d 699, 704 (D.C.Cir.1990) (en banc) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)) (alteration in original); see also Honig v. Doe, 484 U.S. 305, 318-20 & n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). When these “two circumstances [are] simultaneously present,” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the plaintiff has demonstrated an “exceptional circumstance! ],” id., in which the exception will apply, id.; see Clarke, 915 F.2d at 704. “Its theoretical justification is"
] |
misidentification____” While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Id. at 198 (citations and footnote omitted). This Court has adopted a procedure described in REDACTED as follows: In assessing the validity of a pretrial identification, this court follows a two-step analysis. The court first considers whether the procedure was unduly suggestive .... The defendant bears the burden of proving this element.... If the court does find that the procedure was unduly suggestive, it next evaluates the totality of the circumstances to determine whether the identification was nevertheless rehable.... Five factors that are considered in assessing the reliability of the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of observation; (8) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by
|
[
"rise to a very substantial likelihood of irreparable misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). It is the likelihood of misidentification that violates the defendant’s due process right. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). The due process concern is heightened when that misidentification is possible because the witness is called upon to identify a stranger whom she has observed only briefly, under poor conditions, and at a time of extreme emotional stress and excitement. See Manson v. Brathwaite, 432 U.S. 98, 112, 97 S.Ct. 2243, 2251-52, 53 L.Ed.2d 140 (1977); Simmons, 390 U.S. at 383-84, 88 S.Ct. at 970-71; United States v. Russell, 532 F.2d 1063, 1066 (6th Cir.1976). In assessing the validity of a pretrial identification, this court follows a two-step analysis. The court first considers whether the procedure was unduly suggestive. Thigpen, 804 F.2d at 895. The defendant bears the burden of proving this element. United States v. Hill, 967 F.2d 226, 230 (6th Cir.), cert. denied, — U.S. —, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992). If the court does find that the procedure was unduly suggestive, it next evaluates the totality of the circumstances to determine whether the identification was nevertheless reliable. Id.; see also Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83; Thigpen, 804 F.2d at 895. Five factors that are considered in assessing the reliability of the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of observation; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness when confronting the defendant; and (5) the length of time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83. The district"
] |
[
"384 [88 S.Ct. [967] at 971, 19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.” 409 U.S. at 198, 93 S.Ct. at 381 (footnote omitted). Because the possibility of “irreparable misidentification” is as great when the identification is from a tape-recording as when it is from a photograph or a line-up, we hold that the same due process protection should apply to either method. No litmus paper test is available to evaluate the constitutional adequacy of the identification procedures used in any particular case. Rather, as stated by the Supreme Court in Neil, the “central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382. This is, in essence, the test used by this Court in evaluating challenges to identification procedures. United States v. Baxter, 492 F.2d 150 (9 Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The Supreme Court decision in Neil and our decision in Baxter enumerate a number of factors to be considered in evaluating the “totality of the circumstances” of a specific case. In Baxter this Court gave careful consideration to the proper analysis of a photographic identification procedure claimed to be improperly suggestive. Although not all of the factors mentioned in Baxter apply to the identification of a tape-recorded voice, the general approach",
"coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. (Footnote omitted.) If this stood alone, it would strongly support a conclusion that the Court intended the “very substantial likelihood of misidentification” test to apply to show-up or photographic identifications that were impermissibly and unnecessarily suggestive as well as to later out-of-court or in-court identifications. However, Mr. Justice Powell also said, 409 U.S. at 198-99, 93 S.Ct. at 382: What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. . . . The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.",
"[88 S.Ct. 967, 19 L.Ed.2d 1247], While the phrase was coined as a standard of determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. Id. at 198, 93 S.Ct. at 381. The Court applied the “totality of the circumstances” test to determine if “the [showup] identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. at 382. The Court then set out the so-called Big-gers’ factors: [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382. Pierce contends that the “totality of the circumstances” rule of Stovall and Biggers is not the appropriate one to be applied in this case. Instead he argues for a per se exclusionary rule of identification testimony if a lineup is unduly suggestive. He asserts that even if Biggers sets the appropriate standard for showup cases, it should not be applied to lineup cases. According to Pierce’s theory a lineup is presented to a jury as a “laboratory experiment,” the results of which are generally more persuasive to a jury than the results of a showup, the inadequacies of which jurors can recognize for themselves. Pierce concludes that since this is presented as experimental laboratory evidence, that any undue suggestion is more prejudicial than a showup and therefore an exclusionary rule should be applied. The argument is not persuasive. Counsel for defendants are not precluded from bringing to a jury’s attention, either through testimony of the accused or others, any inadequacy in a lineup procedure. While it is to be hoped that both lineups and showups will be conducted in",
"though the station-house showup may have been suggestive, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, supra, 390 U.S., at 384, [88 S.Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentifieation which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. Suggestive confrontations - are disapproved because they increase the likelihood of misidentifieation, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifieation is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. “What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to petitioner, we do not think that the evidence must therefore be excluded. . . “We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifieation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.",
"lineup.” Id., at 5-6. Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidenti-fication. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of mis-identification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U. S. 263, 273 (1967); Mapp v. Ohio, 367 U. S. 643 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when",
"purposes of our analysis we assume that it was in fact suggestive to an unnecessary degree. It is firmly established, however, that due process does not require the suppression of all in-court identifications following unnecessarily suggestive pretrial identification procedures. United States v. Field, 625 F.2d 862 (9th Cir.1980). Rather, we must determine whether, in light of the totality of surrounding circumstances, the pretrial “identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). “It is the likelihood of misidentifieation which violates a defendant’s right to due process .... ” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Thus, even unnecessarily suggestive pretrial procedures do “not violate due process so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382, the Supreme Court set forth certain factors to be considered by determining whether identification testimony possesses sufficient indicia of reliability to justify its admission at trial: The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Against these five factors must be weighed the “corrupting effect” of the suggestive pretrial identification procedure. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253. In evaluating this corrupting effect, we give consideration to “the conduct on the part of the government agents tending to focus the witness’ attention on the defendant.” United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978) (footnote omitted). Applying the above analysis to the present case, we conclude that the identifi cation testimony of Larry Hill was",
"199, 93 S.Ct. at 382. Therefore, the Supreme Court has prescribed a two-step analysis for determining the admissibility of identification evidence. First, a defendant bears the burden of proving the identification procedure was impermissibly suggestive. Second, if the defendant proves that the identification procedures were impermissibly suggestive, the trial court must determine whether, under the totality of the circumstances, the testimony was nevertheless reliable. In Biggers, the Court listed five factors that must be considered when evaluating reliability: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4). the witness’s level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382-83. If the defendant fails to show that the identification procedures were impermissibly suggestive, or if the totality of the circumstances indicates that the identification was otherwise reliable, then no due process violation has occurred. “As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given to the identification.” United States v. Causey, 834 F.2d 1277, 1285 (6th Cir.1987). The Court in Biggers held that there was no substantial likelihood of misidentification in the case, so the identification testimony was properly admissible. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court reviewed a photographic show-up identification. The witness in that case was an undercover police officer who had been given a photograph of the defendant by another officer based on the witness’s description of the defendant. At trial, and without objection, the undercover agent identified the defendant as the offender eight months after the incident and also testified to the photo identification. The Court discussed the merits of a per se suppression rule prohibiting admission of pretrial identifications based on show-up identifications absent exigent circumstances. Ultimately, the Court adopted",
"in that case. The victim in the hospital was in very serious condition, and if that defendant were not the culprit then his chance for exoneration might be lost. The court found that the police followed the only possible procedure under the circumstances. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court dealt with the case of an identification by a rape victim of a man at the police station without the benefit of a photopack. After reviewing the case law, the Supreme Court stated: It is the likelihood of misidentification which violates a defendant’s right to due process.... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Id. at 198, 93 S.Ct. at 381-82. The Court held, however, that a court need not exclude testimony concerning an identification derived from unnecessarily suggestive procedures if the totality of the circumstances indicates that the evidence is reliable. Id. at 199, 93 S.Ct. at 382. Therefore, the Supreme Court has prescribed a two-step analysis for determining the admissibility of identification evidence. First, a defendant bears the burden of proving the identification procedure was impermissibly suggestive. Second, if the defendant proves that the identification procedures were impermissibly suggestive, the trial court must determine whether, under the totality of the circumstances, the testimony was nevertheless reliable. In Biggers, the Court listed five factors that must be considered when evaluating reliability: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the crime; (3) the accuracy of the witness’s prior description of the defendant; (4). the witness’s level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the crime and the confrontation. Id. at 199-200, 93 S.Ct. at 382-83. If the defendant fails to show that the identification procedures were impermissibly suggestive, or if the totality of the circumstances indicates that the identification was",
"based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. Thus, an in-court identification is inadmissible only if the lineup is unnecessarily suggestive — i. e., there is a very substantial likelihood of misidentification — and from the totality of the circumstances the suggestive out-of-court identification results in a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 1972, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.. Thus, the test utilized to determine whether an in-court identification is admissible is: (1) whether the confrontation procedure was unnecessarily suggestive; and, if so, (2) whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. In Neil the Supreme Court, in holding that a rape victim’s in-court identification and her testimony pertaining to her station-house showup identification were admissible, even though the station-house showup may have been suggestive, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, supra, 390 U.S., at 384, [88 S.Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentifieation which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. Suggestive confrontations - are disapproved because they increase the likelihood of misidentifieation, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifieation is"
] |
"filing, whether or not the filing is related to a specified transaction or event, if the statements either have become inaccurate by virtue of subsequent events, or are later discovered to have been false and misleading from the outset, and the issuer knows or should know that persons are continuing to rely on all or any material portion of the statements. This duty will vary according to the facts and circumstances of individual cases. Id. at 82,943. . Recently, the Supreme Court decided that Rule 10b-5 requires the disclosure of at least one particular contingent or speculative event— the possibility of merger — when the negotia tions surrounding that event become ""material” to the reasonable investor. See REDACTED In deciding this, the Court specifically endorsed a test the Second Circuit formulated in 1968: that materiality will "" ‘depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Basic, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). The Court was careful to point out, however, that its decision was limited to the context of merger negotiations and that it was not ""addressing] ... any other kinds of contingent or speculative"
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[
"of ‘no reason for the stock’s activity,’ and that ‘management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,’ information concerning ongoing acquisition discussions becomes material by virtue of the statement denying their existence. . . . “. . . In analyzing whether information regarding merger discussions is material such that it must be affirmatively disclosed to avoid a violation of Rule 10b-5, the discussions and their progress are the primary considerations. However, once a statement is made denying the existence of any discussions, even discussions that might not have been material in absence of the denial are material because they make the statement made untrue.” 786 F. 2d, at 748-749 (emphasis in original). This approach, however, fails to recognize that, in order to prevail on a Rule 10b-5 claim, a plaintiff must show that the statements were misleading as to a material fact. It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant. C Even before this Court’s decision in TSC Industries, the Second Circuit had explained the role of the materiality requirement of Rule 10b-5, with respect to contingent or speculative information or events, in a manner that gave that term meaning that is independent of the other provisions of the Rule. Under such circumstances, materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur Co., 401 F. 2d, at 849. Interestingly, neither the Third Circuit decision adopting the agreement-in-principle test nor petitioners here take issue with this general standard. Rather, they suggest that with respect to preliminary merger discussions, there are good reasons to draw a line at agreement on price and structure. In a subsequent decision, the late Judge Friendly, writing for a Second Circuit panel, applied the Texas Gulf Sulphur probability/magnitude approach in the specific context of preliminary merger negotiations. After acknowledging that materiality is something to"
] |
[
"material even if there is only a probability that the change will occur or if it is merely contingent upon future events. In Basic Inc., the Supreme Court considered the issue concerning when negotiation of a corporate merger would be considered material. The Court held that the materiality of a contingent event “will dépend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2nd Cir.1968) (en banc)). The Court then went on to consider the means by which a factfinder could determine the “probability” and “magnitude” of a potential merger. In this respect, the Court in Basic Inc. stated: Whether merger discussions in any particular case are material therefore depends on the facts. Generally, in order to assess the probability that the event will occur, a factfinder will need to look to indicia of interest in the transaction at the highest corporate levels. Without attempting to catalog all such possible factors, we note by way of example that board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries may serve as indicia of interest. To assess the magnitude of the transaction to the issuer of the securities allegedly manipulated, a factfinder will need to consider such facts as the size of the two corporate entities and of the potential premiums over market value. No particular event or factor short of closing the transaction need be either necessary or sufficient by itself to render merger discussions material. 485 U.S. at 239, 108 S.Ct. at 987. In Basic Inc., the Supreme Court specifically refused to adopt a bright-line test which would have considered the disclosure of facts pertaining to merger negotiations immaterial as a matter of law until the parties had reached an agreement-in-principle. Id. 485 U.S. at 236, 108 S.Ct. at 986. However, in cases decided after Basic Inc., a number of courts, including",
"“event is contingent or speculative in nature, it is difficult to ascertain whether the ‘reasonable investor’ would have considered the omitted information significant at the time.” Id. at 232, 108 S.Ct. at 983. The Court rejected the approach applied in this circuit under which preliminary merger negotiations were deemed immaterial as a matter of law until an “agreement in principle” as to the price and structure of the transaction had been reached. Id. at 233-34, 108 S.Ct. at 986 (rejecting Greenfield v. Heublein, Inc., 742 F.2d 751 (3d Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1189, 84 L.Ed.2d 336 (1985); Staffin v. Greenberg, 672 F.2d 1196 (3d Cir.1982)). According to the Court, the materiality of preliminary merger discussions should depend on the facts and involves the balancing of both the probability that the event will occur and the anticipated magnitude of the event. Id. at 238-39, 108 S.Ct. at 987 (citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). In Flynn v. Bass Bros. Enterprises, 744 F.2d 978 (3d Cir.1984), we considered the materiality of undisclosed asset appraisals in the context of a tender offer. In light of the policy change by the SEC, we held that asset appraisals and other soft information are not immaterial as a matter of law; rather, courts should ascertain the duty to disclose on a case-by-case basis, “weighing the potential aid such information will give a shareholder against the potential harm, such as undue reliance, if the information is released with a proper cautionary note.” Id. at 988. We listed seven factors a court should consider in evaluating the omitted information: 1) the facts upon which the information is based; 2) the qualifications of those who prepared or compiled it; 3) the purpose for which the information was originally intended; 4) its relevance to the stockholders’ impending decision; 5) the degree of subjectivity or bias reflected in its preparation; 6) the degree to which the information is unique; 7) and the availability to the investor of",
"and Kline v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Second Circuit used several different verbal formulations of materiality. Discussing an “insider’s” obligation to disclose under Rule 10b-5, it indicated that the duty “arises only in ‘those situations which are essentially extraordinary in nature and which are reasonably certain to have a substantial effect on the market price of the security * * *.’ ” SEC v. Texas Gulf Sulphur, supra at 848 (emphasis added). The Court also mentions the tests quoted above from List and Kohler v. Kohler, 319 F.2d 634, 642 (7th Cir. 1963). It shifted from the “would” of List to the standard of “may”: “Thus, material facts include not only information disclosing the earnings and distributions of a company but also those facts which affect the probable future of the company and those which may affect the desire of investors to buy, sell, or hold the company’s securities. “In each ease, then, whether facts are material within Rule 10b-5 when the facts relate to a particular event and are undisclosed by those persons who are knowledgeable thereof will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” SEC v. Texas Gulf Sulphur, supra, 401 F.2d at 849 (emphasis added). Discussing materiality in the context of Section 14(a) of the Securities Exchange Act of 1934 the Supreme Court utilized an even less stringent test than Texas Gulf, indicating that a “material fact” was one “of such a character that it might have been considered important by a reasonable shareholder who was in the process of deciding how to vote. This requirement [is] that the defect have a significant propensity to affect the voting process * * * ” Mills v. Electric Auto-Lite Company, 396 U.S. 375, 384, 90 S.Ct. 616, 621, 24 L.Ed.2d 593 (1970) (emphasis added in part). The use of “propensity” in the context of a proxy situation is particularly significant to the instant case",
"investor as having significantly altered the ‘total mix’ of information made available.” Id. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Thus, materiality is a “fact-specific inquiry,” which “depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Id. at 240,108 S.Ct. at 988 (footnote omitted). With respect to “contingent or speculative information or events,” materiality “ “will depend ... upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) en banc), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). In the midst of this discussion of the materiality requirement the Court also emphasized that in order to meet its burden under this first factor “a plaintiff must show that the statements were misleading as to a material fact,” id. (emphasis in original), and that “[t]o be actionable, of course, a statement must also be misleading.” Id. at 239 n. 17, 108 S.Ct. at 987-88 n. 17. Moreover, all averments of fraud are required by Fed. R.Civ.P. 9(b) to be “stated with particularity.” Where fraudulent projections are alleged, the plaintiff must therefore identify in the complaint with specificity some reason why the discrepancy between a company’s optimistic projections and its subsequently disappointing results is attributable to fraud. Borow v. nVIEW Corp., 829 F.Supp. 828, 833 (E.D. Va.1993), aff'd mem., 27 F.3d 562 (1994); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627-28 (7th Cir.), cert. denied, 498 U.S. 941, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990). Mere allegations of “fraud by hindsight” will not satisfy the requirements of Rule 9(b). Borow, 829 F.Supp. at 833 (citing Denny v. Barber, 576 F.2d 465, 470 (2d Cir.1978)); see also Greenstone v. Cambex Corp., 975 F.2d 22, 25-27 (1st Cir.1992)",
"concern about possible acquisition that many large companies frequently express”). As stated in Basic, the materiality of a possible future event “ ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulfur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). Basic instructed courts to assess the probability of an event by looking at the “indicia of interest in the transaction at the highest corporate levels” and by considering, inter alia, “board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries ... as indicia of interest.” 485 U.S. at 239, 108 S.Ct. at 987. Whether merger discussions in any particular case are material or immaterial will normally depend on the facts of the case. Id. The record in the present case did not disclose any genuine issue to be tried as to whether the September Releases at the time they were issued misstated or omitted any information that was material. Glazers’ contentions (a) that defendants sought by those releases to depress the market price of Formica stock by misrepresenting that the company was not available, and (b) that as of September 30 there was material activity by defendants looking toward an LBO, were not supported by evidence sufficient to take the matter to a jury. Glazers presented no evidence that could lead a rational juror to infer that a reasonable investor would have construed the September Releases as representations that the company was not available for acquisition. The second release stated explicitly that Formica would “consider any legitimate proposal to acquire the company.” One newspaper thus headlined the story “Formica for sale.” Arbitrageurs were reported as speculating on the price the company might bring in an acquisition. And Malcolm himself complained that the company’s refusal to entertain his offer was contrary to its “announcement",
"information was not sufficiently certain or significant to be considered material. We have never held—nor even hinted—that forward-looking information or intra-quarter data cannot, as a matter of law, be material. Nor has any other court for that matter, at least to the best of our knowledge. Indeed, both the Supreme Court’s landmark decision in Basic and preexisting Ninth Circuit authority confirm that so-called “soft” information can, under the proper circumstances, be “material” within the meaning of Rule 10b~5. In Basic—the very case that announced the governing standard for Rule 10b-5 materiality—the Supreme Court dealt specifically with preliminary merger negotiations, events it dubbed “contingent or speculative in nature.” Id. at 232, 108 S.Ct. 978. And although the Basic Court acknowledged that its decision did not concern “earnings forecasts or projections” per se, id. at 232 n. 9, 108 S.Ct. 978, it expressly adopted a “fact-intensive inquiry” to govern the materiality of “contingent or speculative information or events,” id. at 238-40, 108 S.Ct. 978. It held that, with respect to forward-looking information, materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur- and the anticipated magnitude of the event in light of totality of the company activity.” Id. at 238, 108 S.Ct. 978 (quoting Texas Gulf Sulphur, 401 F.2d at 849). The Court’s fact-specific approach fatally undermines Smith’s claim that forward-looking information cannot, as a matter of law, be material. Likewise, only recently, in Fehn, 97 F.3d 1276, we specifically invoked the Basic standard for “determining the materiality of a corporate event that has not yet occurred.” Id. at 1291. Even more to the point is Marx v. Computer Sciences Corp., 507 F.2d 485 (9th Cir.1974), a ease brought by disgruntled investors against a corporation under § 10(b) and Rule 10b-5. There, we stated unambiguously: Nor can there be any doubt that the forecast of earnings was a “material” fact. The applicable test of materiality is essentially objective: “... whether ‘a reasonable man would attach importance (to the fact misrepresented) in determining his choice of action in the transaction in question.’ ”",
"v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court addressed the question of how this standard of materiality applies to preliminary merger negotiations. The Court expressly rejected the view that merger negotiations are immaterial as a matter of law until the parties have reached an agreement-in-prineiple as to price and structure. Id. at 236, 108 S.Ct. at 986. Instead, Basic adopted the standard previously articulated by the Second Circuit in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Under that standard, “materiality “will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of company activity.’” 485 U.S. at 238, 108 S.Ct. at 987. In adopting this test, the Basic Court noted that it is a very fact-specific standard. Id. at 239-40, 108 S.Ct. at 987-88. Even before the Basic decision, the Second Circuit had held that this standard of materiality is applicable to Section 11 claims. See Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726, 731-32 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 700 (1988). More recently, this court has been among those to note that the flexible standard articulated in Basic governs questions regarding the materiality of contingent events. See, e.g., Seagoing Uniform Corp. v. Texaco, Inc., 705 F.Supp. 918, 929-30 (S.D.N.Y.1989); Kamerman v. Steinberg, 123 F.R.D. 66, 71 (S.D.N.Y.1988). Even under this standard, it does not appear that Nelson can establish a material omission. In order to grant Nelson the benefit of the doubt to which he is entitled, it is important to remember that Paramount and Viacom had reached an agreement in principle on some key issues prior to the breakdown in their negotiations. However, at the time of the registration statement at issue here, all Paramount knew with regard to Viacom was that negotiations had broken off but the two corporations were still “in contact.” Even if",
"the conclusion of an agreement in principle, the Court rejected that approach in favor of the Second Circuit’s view that “materiality ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Id. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d at 849). It turns upon whether “‘the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic Inc., 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). In light of this standard, both elements of the Basic Inc. test require careful consideration in this ease. The most difficult hurdle for plaintiff is with the likelihood component of the Basic Inc. test. This complaint alleges only that RCP “sought in 1993 to urge Mitsubishi” either to restructure the Loan or to acquire RCP (cpt ¶ 16) (emphasis added), not that it had done so, much less that Mitsubishi had indicated even the slightest interest in either possibility. Basic Inc. indicated that “[wjhether merger discussions in any particular case are material ... depends on the facts.” 485 U.S. at 239, 108 S.Ct. at 987. One must look to “indicia of interest in the transaction at the highest corporate levels” among other factors. Id. And while even tentative discussions of possibly transforming corporate events in some circumstances may be material, the same cannot be said of the unrequited desire of one party to engage in a transaction with another. Panfil v. ACC Corp., 768 F.Supp. 54 (W.D.N.Y.), aff'd, 952 F.2d 394 (2d Cir.1991) (table), is directly in point. The complaint in that case alleged that the defendants had violated the securities laws by failing to disclose that ACC “intended to pursue Rochester Telephone Company to facilitate a combination of these businesses.” Id. at 58. The District",
"Id. at 231-32, 108 S.Ct. at 983-84 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976)). Further, for an omission to violate Rule 10b-5, “ ‘there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic, 485 U.S. at 231-32, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 449, 96 S.Ct. at 2132). The mere fact that a company has received an acquisition overture or that some discussion has occurred will not necessarily be material. “Those in business routinely discuss and exchange information on matters which may or may not eventuate in some future agreement.” Taylor v. First Union Corp., 857 F.2d 240, 244 (4th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989); see also Jackvony v. Riht Financial Corp., 873 F.2d 411, 415 (1st Cir.1989) (finding immaterial “the type of concern about possible acquisition that many large companies frequently express”). As stated in Basic, the materiality of a possible future event “ ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” 485 U.S. at 238, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulfur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). Basic instructed courts to assess the probability of an event by looking at the “indicia of interest in the transaction at the highest corporate levels” and by considering, inter alia, “board resolutions, instructions to investment bankers, and actual negotiations between principals or their intermediaries ... as indicia of interest.” 485 U.S. at 239, 108 S.Ct. at 987. Whether merger discussions in any particular case are material or immaterial will normally depend on the facts of the case. Id. The record in the"
] |
said: “The ultimate purpose of the writers of the 1951 Manual was to set a balance between the various Service rules. * * * What they wished to accomplish, and we are in full accord was to allow the presumption of knowledge to apply only to that category of regulations or orders which are issued by commands of the highest dignity. * * * In this category they, of course, placed the Departments of the Army, Navy, and Air Force, and the Headquarters of the Marine Corps and Coast Guard.” 25 CMR at 459. See also U.S. v. Tinker, 10 U.S.C.M.A. 292, 27 C.M.R. 366 (1959); U.S. v. Ochoa, 10 U.S.C.M.A. 602, 28 C.M.R. 168 (1959); Paragraph 171a, MCM, 1969 REDACTED Thus, with the applicable Article of Coast Guard Regulations in evidence before him, the military judge was entitled to find both as a matter of fact and of law that it was a lawful general regulation. During the sentencing phase of the trial the accused made an unsworn statement in which he said that he was sorry for what he had done and that he would not do it again. The prosecution over defense objection was then permitted to elicit testimony from two of the accused’s superior petty officers that the accused had shown no contrition and had not expressed regret for his misconduct. This testimony was offered and received ostensibly as rebuttal to Fireman Friedman’s statement that he was sorry for
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[
"Guard member. The article in clear and unambiguous terms prohibits the possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances by persons in the Coast Guard and further implementation by subordinate commanders to give it effect as a code of conduct is not required. The article clearly defines the types of misconduct that could result in punitive action and places all concerned on notice that noncompliance may involve criminal sanctions. Thus, we are satisfied that Article 9-2-15 fulfills the requirements of a lawful general regulation enforceable under Article 92, UCMJ. U. S. v. Benway and U. S. v. McEnany, both supra; U. S. v. Louder, 7 M.J. 548 (A.F.C.M.R.1979) petition for review by U.S.C.M.A. denied 7 M.J. 328. Paragraph 171a, Manual for Courts-martial 1969 (Rev.), provides in part: “General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or by the Secretary of Defense, of Transportation, or of a military department * * *.” As indicated above, Coast Guard Regulations were promulgated by the Commandant in his own right and under authority delegated by the Secretary of Transportation. The Commandant undoubtedly had authority in either capacity to issue a general order or regulation applicable to all members of the Coast Guard. See U. S. v. Allen, 6 M.J. 633 (C.G.C.M.R.1978); U. S. v. Porter, 11 U.S.C.M.A. 170, 28 C.M.R. 394 (1960); U. S. v. Chunn, 15 U.S.C.M.A. 550, 36 C.M.R. 48 (1965). Coast Guard Regulations appear regular on their face and they are presumed to be lawful. U. S. v. Trani, 1 U.S.C.M.A. 293, 3 C.M.R. 27 (1952); U. S. v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956); U. S. v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). There is also a presumption that the Commandant’s actions in promulgating Coast Guard Regulations were performed regularly and legally in compliance with controlling statutory provisions. 29 Am. Jur.2d, Evidence §§ 171, 172; U. S. v. Allen, supra; Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1911); Sunday Lake"
] |
[
"face alleges a violation of section (1), Article 92, violation of a “lawful . . . regulation.” In discussing this Article, the Manual for Courts-Martial, supra, paragraph 171a, defines a general regulation as follows: ' “A general order or regulation is one which is promulgated by the authority of a Secretary of a Department and which applies generally to an armed force, or one promulgated by a commander which applies generally to his command. See 154a (4) (Ignorance of law) as to the necessity of proving actual - or constructive knowledge of general orders or regulations in certain cases.” Paragraph 154a (4) provides as set out below:. “Also, before a person can properly be held responsible for a violation of any regulation or directive of any command inferior to the Department of the Army, Navy, or Air Force, or the Headquarters of the Marine Corps or Coast Guard, or inferior to the headquarters of a'Territorial, theater, or similar area command (with respect to personnel stationed or having duties within such area), it must appear that he knew of the regulation or directive, either actually or constructively.” [Emphasis supplied] The clear import of the language of this latter paragraph, when viewed in the light of paragraph 171a, and applied to the situation involved in the instant case, is that commands inferior to the Headquarters of the Marine Corps, or theatre and similar areas of command, may issue lawful orders and regulations of general application — that is, general orders and regulations. This interpretation is buttressed by pre-existing law. Article 92(1) represents a consolidation of previous Army and Navy law. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 258; Index and Legislative History, Uniform Code of Military Justice, House Hearings, page 1227. Under the Articles of War and the older dispensation, offenses covered by the present Article 92(1) would have been punished under Article of War 96, 10 USC § 1568, conduct to the prejudice of good order and military discipline. With.the exception of violations of general orders issued by the Secretary of the Navy, offenses under the present",
"The fact that the regulation is aimed at more than one objective does not render it unenforceable for punitive sanctions. U. S. v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345 (1970). No single characteristic of a general order or regulation determines whether it applies punitively to members of a command or service. The order in its entirety must demonstrate that rather than providing general guidelines for the conduct of military functions it is basically intended to regulate conduct of individual members and that its direct application of sanctions for its violation is self evident. U. S. v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958); U. S. v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); U. S. v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972). The Court of Military Appeals has said that if a general order or regulation is to provide a course of conduct for servicemen and a criminal sanction for failure to abide by it the order or regulation should clearly state to whom the provisions are applicable and whether or not further implementation is required as a condition to its effectiveness as a criminal law. U. S. v. Scott, 22 U.S.C.M.A. 25, 46 C.M.R. 25 (1972). But failure of the order or regulation to warn explicitly that its violation may subject the violator to criminal sanctions will not foreclose prosecution under Article 92, U.C.M.J., if the prohibited conduct is described clearly and reasonable persons would have no difficulty in understanding what could not be done. U. S. v. Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958); U. S. v. McEnany, 19 U.S.C.M.A. 556, 42 C.M.R. 158 (1970). Neither the letter promulgating Coast Guard Regulations, introductory portions of the regulations nor individual articles of the regulations contain language indicating that the regulations are punitive. However, Article 2-2-1 quoted above commands that each member of the Coast Guard become acquainted with and comply with the regulations. Chapter 9 of the regulations is entitled “Regulations and Instructions of General Application” and it is clear from the language of article 9-2-15 that it applies to the individual Coast",
"Guard Regulations were promulgated by the Commandant in his own right and under authority delegated by the Secretary of Transportation. The Commandant undoubtedly had authority in either capacity to issue a general order or regulation applicable to all members of the Coast Guard. See U. S. v. Allen, 6 M.J. 633 (C.G.C.M.R.1978); U. S. v. Porter, 11 U.S.C.M.A. 170, 28 C.M.R. 394 (1960); U. S. v. Chunn, 15 U.S.C.M.A. 550, 36 C.M.R. 48 (1965). Coast Guard Regulations appear regular on their face and they are presumed to be lawful. U. S. v. Trani, 1 U.S.C.M.A. 293, 3 C.M.R. 27 (1952); U. S. v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956); U. S. v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). There is also a presumption that the Commandant’s actions in promulgating Coast Guard Regulations were performed regularly and legally in compliance with controlling statutory provisions. 29 Am. Jur.2d, Evidence §§ 171, 172; U. S. v. Allen, supra; Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1911); Sunday Lake Iron Co. v. Wakefield Tp., 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); U. S. v. Masusock, 1 U.S.C.M.A. 32, 1 C.M.R. 32 (1951); U. S. v. Taylor, 2 U.S.C.M.A. 389, 9 C.M.R. 19 (1953); U. S. v. Shenefield, 18 U.S.C.M.A. 453, 40 C.M.R. 165 (1965). No evidence has been found in the record and none has been brought to our attention indicating either that U.S. Coast Guard Regulations are illegal or that they were not issued in compliance with applicable statutory provisions. Thus, the presumption that they were issued regularly and are lawful has not been overcome. The substance forming the basis of the specification under which the accused was convicted of violating Coast Guard Regulations by the possession, sale, or other transfer of quaaludes never came into government hands. Consequently, there was no report of laboratory analysis or expert testimony identifying the substance. Instead the evidence consisted essentially of the testimony of an AM3 Yeakos. He had become a Coast Guard Intelligence informer and was the government’s principal witness on the",
"U.S.C. 631. The Commandant’s letter promulgating Coast Guard Regulations 7 February 1975 provides in part: “1. Purpose. This publication provides general rules concerning matters of major principle relating to the government of the Coast Guard.” * * * * “5. Discussion. In addition to prescribing general rules concerning matters of major principle, these Regulations also include, for the purpose of maintaining standardization of certain procedures and doctrines, rules of lesser importance which are reasonably permanent in nature. * * * ” Part 2 of Chapter 2 of the Regulations is entitled “Compliance and Applicability”. Article 2-2-1 of Part 2 pertaining to Coast Guard Personnel provides: “A. Each officer and enlisted person in the Coast Guard shall acquaint themselves with, comply with, and, only to the extent of their authority, enforce the laws of the United States, executive orders, these regulations, and the rules and instructions issued thereunder.” A regulation may be used as a basis for punishing violators if it is sufficiently definite to give notice of what conduct is necessary to avoid violating it. The fact that the regulation is aimed at more than one objective does not render it unenforceable for punitive sanctions. U. S. v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345 (1970). No single characteristic of a general order or regulation determines whether it applies punitively to members of a command or service. The order in its entirety must demonstrate that rather than providing general guidelines for the conduct of military functions it is basically intended to regulate conduct of individual members and that its direct application of sanctions for its violation is self evident. U. S. v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958); U. S. v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); U. S. v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972). The Court of Military Appeals has said that if a general order or regulation is to provide a course of conduct for servicemen and a criminal sanction for failure to abide by it the order or regulation should clearly state to whom the provisions are applicable and whether",
"the act committed by the accused was itself an offense and therefore unlawful and wrongful. United States v. Bunch, 3 U.S.C.M.A. 186, 11 C.M.R. 186 (1953); see also United States v. Irwin, 22 U.S.C.M.A. 168, 46 C.M.R. 168 (1973). We therefore hold that the specifications of Charge I state offenses and that the accused’s pleas of guilty were provident. In their other assignment of error appellate defense counsel assert that the military judge erred in admitting the testimony of the accused’s supervisor as to his duty performance and rehabilitation potential since the testimony was not proper rebuttal to defense evidence. We agree. After the findings of guilty, the trial counsel entered the data from the first page of the charge sheet, evidence of a prior Article 15 and the accused’s performance reports. He then announced that he intended to call one witness. The defense counsel objected “since the defense does not intend to raise the duty performance of the accused as even an issue, in mitigation or extenuation....” The military judge overruled the objection, stating: In that sentencing portion of a case is for all intents and purposes presentencing investigation conducted by the Federal Court System, perhaps even more so in a guilty plea where matters are not fully litigated before the court, I will allow the prosecution to present matters by calling a witness for the limited purpose of establishing factors that should be considered in the sentence. Prior to sentencing, the trial counsel may present to the court or military judge the personnel records of the accused reflecting his past conduct or performance. These records include only those which are maintained by the base personnel officer in accordance with Air Force regulations or directives. Air Force Manual 111-1, Military Justice Guide, para. 5-13, IMC 79-1, 5 March 1979. However, there is no authority to call witnesses to testify against the accused who pleaded guilty in the absence of evidence in mitigation and extenuation of the offenses of which he has been convicted or was otherwise relevant to the offenses charged. Here, the witness testified before the accused was",
"three months and to be discharged from the service with a bad conduct discharge. This sentence was approved by the convening authority and by the officer exercising general court-martial jurisdiction. Appellate defense counsel has asked us to disapprove the sentence to a bad conduct discharge because the accused was denied his right to a speedy review of his case; because the legal officer’s review was inadequate; and, because a sentence to bad conduct discharge is inappropriate for Seaman Recruit Clevidence. During our examination of the record, we also noted with respect to the legal officer’s review that it was signed by a law specialist other than the district legal officer who had not been designated in writing for the purpose as required by Section 0510-1 of the Coast Guard Military Justice Manual, CG-488. Article 65(b), UCMJ, 10 U.S.C. § 865(b), incorporating some of the requirements of Article 61, 10 U.S.C. § 861, provides that the record of a trial by special court-martial in which a sentence including a bad conduct discharge has been approved by the convening authority shall be sent to the officer exercising general court-martial jurisdiction over the command for review. Before acting on the record, the officer exercising general court-martial jurisdiction shall refer the record to his staff judge advocate or legal officer who shall submit his written opinion thereon. See also paragraph 85, Manual for Courts-Martial, 1969 (Rev.). The words “his staff judge advocate or legal officer” have been interpreted to mean the senior judge advocate or legal officer of the command. See U. S. v. Schuller, 5 U.S.C.M.A. 101, 17 C.M.R. 101 (1954); U. S. v. Callahan, 10 U.S.C.M.A. 156, 27 C.M.R. 230 (1959); U. S. v. Kema, 10 U.S.C.M.A. 272, 27 C.M.R. 346 (1959); Section 510-1, Coast Guard Military Justice Manual, supra. Alternatives must be available if the senior judge advocate or legal officer is absent or becomes disqualified. If more than one judge advocate or legal officer is assigned to the command the next senior may act in the absence of the staff judge advocate or legal officer. Additionally, for Coast Guard commands",
"Opinion of the Court Kilday, Judge: Upon his plea of guilty, accused was convicted by special court-martial for four specifications of unauthorized absence and two additional counts of breaking restriction, violative of Articles 86 and 134, Uniform Code of Military Justice, 10 USC §§ 886 and 934, respectively. The court-martial sentenced him to bad-conduct discharge, partial forfeitures and confinement at hard labor for six months, and reduction. Thereafter the record was reviewed by the convening authority. In his action, he took cognizance of an error at trial, as follows: “In the foregoing case ... it is noted that the president of the court asked the accused several questions after defense counsel had made an unsworn statement on behalf of the accused. This was error. There is no indication that the court was attempting to enter into the trial of the case, nor is there any indication that the court was questioning the accused’s explanation or expressing disbelief or hostility toward the ac cused. The error could affect only the sentence and under the circumstances it is considered that any prejudice which may have resulted can be corrected by a reassessment of the sentence.” In light of that incident, the convening authority purported to purge the error of prej'udice by reassessing accused’s punishment. He reduced the period of forfeitures and confinement to four months, but otherwise approved the findings and sentence. The officer exercising general court-martial jurisdiction and a board of review in the office of The Judge Advocate General of the Navy subsequently affirmed, and accused petitioned this Court for grant of review. We elected to hear argument on a single issue, to determine whether the convening authority’s action cured the error committed by the president of this special court. The right of an accused to make an unsworn statement in extenuation and mitigation during the sentence proceedings, in person or through counsel, and not subject to cross-examination, is well established. United States v Stivers, 12 USCMA 315, 30 CMR 315; United States v King, 12 USCMA 71, 30 CMR 71; Manual for Courts-Martial, United States, 1951, paragraph 75c (2).",
"you may find from the defendant’s signature at the bottom of his respective return that he had knowledge of the contents of that return. This instruction was given on the element of willfulness on the tax evasion count. He'was acquitted on this count, but willfulness is also an element of the false statement count. The phrasing may be subject to criticism since it suggests that evidence must be introduced to outweigh the inference of knowledge permissible from the signature. The instructions on the false statement count, however, indicated that carelessness or inadvertence was a defense. Reasonable doubt instructions were also given. Taking the instructions as a whole we find no likelihood that the jury felt compelled to infer knowledge from the signature, and no reversible error. See also United States v. Bass, 425 F.2d 161, 163 (7th Cir. 1970); United States v. Harper, 458 F.2d 891, 894 (7th Cir. 1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1772, 32 L.Ed.2d 132. D. Sentencing Disparity Lastly, Peskin contends that the disparity between his sentence and the sentences received by those who pleaded guilty indicated that he was penalized for exercising his right to a jury trial. Peskin received three years in prison on each count, the sentences to run concurrently. Other participants in the bribery transaction received sentences ranging from six months to two years. A sentence which reflects punishment for a defendant’s availing himself of his right to trial will be set aside, United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), but a disparity between a sentence imposed on a defendant who pleads guilty and on another who is convicted after trial is not, standing alone, enough to establish that the latter has been punished for exercising a constitutional right. United States v. Wilson, 506 F.2d 1252, 1259-60 (7th Cir. 1974). The trial judge commented at the time of sentencing on factors which he felt spelled out greater culpability for Mr. Peskin than his codefendants. We have no reason to find an abuse of discretion. The judgment appealed from is affirmed. . In 1968 zoning changes in Hoffman",
"subject to some restrictions on his activity. Moreover, as we have already observed, it is highly speculative that Hannan would have been paroled even if he had been deemed eligible for parole. Therefore, we perceive no occasion for granting appellant any relief beyond that which the Court of Military Review gave “in an abundance of caution.” Ill The decision of the United States Army Court of Military Review is affirmed. Judges COOK and FLETCHER concur. . Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. . Article 121, UCMJ, 10 U.S.C. § 921. . Article 133, UCMJ, 10 U.S.C. § 933. . Article 123, UCMJ, 10 U.S.C. § 923. . Article 39(a), UCMJ, 10 U.S.C. § 839(a). . The judge reserved his ruling on a defense motion to dismiss certain charges because of their alleged lack of service-connection. This motion was mooted by the findings of not guilty as to the affected charges. . The Army Clemency Board may waive the maximum service requirement or the minimum term of confinement, so that a theoretical possibility exists of immediate parole for a prisoner serving any term of confinement. United States v. Surry, 6 M.J. 800 (A.C.M.R.1978), pet. denied, 7 M.J. 62 (1979). . Immediately upon the conclusion of the trial, appellant had requested a deferment of confinement, but this request had been denied by the convening authority on September 24, 1979. . According to appellant, his military defense counsel, Major Clark, had also led him to believe that he would receive credit on his sentence to confinement with respect to time spent in pretrial arrest or restriction in lieu of arrest. Even if Clark gave this rash assurance — which we doubt — we are sure that this also was not the inducing cause of the guilty plea. . Appellant claims that he was misadvised by confinement officials that he was ineligible for parole. While technically this information may have been accurate, it ignores the possibility that he could obtain from the Army Clemency Board a waiver of the usual parole eligibility requirements. See United States v. Surry, supra."
] |
it lacks the retail concept. Even if defendant’s establishment is within the retail concept, he failed to prove that 75% of the annual dollar volume of his sales were recognized as retail in the industry. There was no evidence showing the precise percentage of his annual dollar volume of sales recognized as retail in the industry which was attributable to supplies and to equipment, respectively. 4. The burden was upon the defendant to prove that his employees were exempt from the provisions of §§ 206 and 207, 29 U.S.C.A., by the provisions of §§ 213(a) (1) and 213(a) (2), 29 U.S. C.A. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966); REDACTED Defendant did not meet his burden of proof. 5. Defendant violated the minimum wage and overtime compensation provisions of the Act by failing to pay his employees, Josephine McLoota and Victor Sidola, wages at rates equal to the minimum rate prescribed by § 206, 29 U.S.C.A., that is, one dollar and fifteen cents ($1.15) per hour from June 3, 1963 to September 3, 1963, and one dollar and twenty-five cents ($1.25) per hour from September 3, 1963 to January 1, 1965, and by failing to compensate these said employees at a rate equal to one and one-half (1%) times their regular rates for hours worked in excess of forty (40) in a workweek as prescribed by § 207, 29 U.S.C.A.
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[
"has conceded that there was compliance with the Act only after this suit was instituted. Under these circumstances a nice question is presented as to the propriety of granting injunctive relief. However, it is one which we do not decide for we think that it is a matter properly addressed in the first instance to the discretion of the trial judge, who had no occasion to rule on this issue when judgment was entered below. Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 213-215, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959). See Goldberg v. Thompson, 287 F.2d 421 (5 Cir. 1961); Mitchell v. Hodges Contracting Co., 238 F.2d 380, 381 (5 Cir. 1956). Cf. Mitchell v. Pidcock, 299 F.2d 281 (5 Cir. 1962). The judgment will be reversed and the case remanded for proceedings not inconsistent with this opinion. . Section 6, as amended, 29 U.S.C.A. § 206 (Supp.1961) (wages); Section 7, as amended, 29 U.S.C.A. § 207 (Supp.1961) (hours); Section 11(c), 29 U.S.C.A. § 211(c) (records). The 1961 amendments to Sections 6 and 7 are not effective in this action. . As amended, 29 U.S.C.A. § 213(a) (2) (Supp.1961). The retail and service exemption allegedly applicable in this case has been narrowed by the 1961 amendments to the Act. As operative here the subsection states that “the provisions of sections 6 and 7 shall not apply with respect to * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry”. 52 Stat. 1067 (1938), as amended, 63 Stat. 917 (1949). . The Secretary argues on appeal that Furman’s business is one which is outside the “retail concept” and thus not permitted to claim the exemption allowed"
] |
[
"point, however, we do not rely, as did the district court, on the absence of a retail concept in the magazine industry, a finding on which we express no opinion. Instead, we base our decision on the narrower ground that appellant does not maintain in his business the kind of “establishment” which Congress exempted under the Act. “Defendant’s sales are not recognized as retail sales in the particular industry, for there is no concept of retail selling or servicing in the magazine industry. [Citing Idaho Sheet Metal Works v. Wirtz, 1966, 383 U.S. 190, 86 S.Ct. 737, 745, 15 L.Ed.2d 694], In so holding, the Court deems these ‘student salesmen’ for magazine subscription services to be analogous to newspaper boys and there is no concept of retail selling or servicing in the newspaper industry. [Citing Idaho Sheet Metal Works v. Wirtz, supra; Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 759, 3 L.Ed.2d 815]. Where Congress intended that this type of business have an exemption, one is specifically provided by the law. See, for example, 29 U.S.C. § 213(d).” 282 F.Supp. 871, 875 (S.D.Fla.1968). I. We direct our attention first to the “retail establishment” exemption of § 13(a) (2). In its present form § 13 (a) (2) reads in pertinent part as follows: “The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to * * * any employee employed by any retail or service establishment * * * if more than 50 per cent of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203(s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000. * * * A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales",
"public agencies, and pointed out other facts directed at showing nonexemption under the guidelines. Despite this evidence, there is unclarity as to the precise percentages of dollar volume attributable to the various sales that the guidelines label nonretail. However, the burden of proof respecting exemptions is upon the company, as earlier indicated, and since we uphold the Secretary’s test, that burden has not been met. If Steepleton had alleged on appeal that it could meet the Secretary’s standards if they prevailed, even then we would hesitate to order a remand since the Secretary’s position has been known from the outset. In all events, Steepleton has not even claimed in this Court that the Secretary’s standards could be met. The judgment of the Court of Appeals in No. 30 is affirmed; the judgment of the Court of Appeals in No. 31 is reversed. It ⅛ so ordered. 52 Stat. 1060, as amended, 29 U. S. C. §§201-219 (1964 ed.). Sections 6-7, codified as §§ 206-207, respectively cover minimum wages and overtime pay. The commerce coverage of the Act, through a special definition of “production,” is drawn in generous terms. See §3 (j), codified as §203 (j). 52 Stat. 1067, as amended, 29 U. S. C. §213 (a)(2) (1964 ed.). The section provides that the minimum wage and overtime pay provisions of the Act shall not apply to: “(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— “. . . [meets one of four tests, designated ‘(i)-(iv)’ and framed with reference to another section of the Act]. “A 'retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” This requirement has been met by the companies in this case. Section 13 (a) (4) of the Act, added in 1949",
"U.S. at 495, 63 S.Ct. at 1250. II. RETAIL EXEMPTION Defendant contends that even if the plaintiff was engaged in commerce, Airways Parking was exempt from the minimum wage and hour provisions of the Act by virtue of the retail exemption provision of 29 U.S.C. § 213(a) (2). This section provides that the wage and hour sections of the Act, §§ 206 and 207, shall not apply to “(2) [A]ny employee employed by any retail or service establishment * * * if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203 (s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000 (exclusive of excise taxes at the retail level which are separately stated). A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of goods and services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” It is well understood that the exemption is to be narrowly and strictly construed. The burden is on the employer, the defendant in this ease, to show by a preponderance of the evidence that his employees are “unmistakably within the terms and spirit of the exemption.” Mitchell v. Kroger Co., 150 F.Supp. 30 (W.D.Mo. 1957), reversed and remanded on other grounds, 248 F.2d 935 (8th Cir., 1957). The purpose of this provision was to exempt from coverage those purely local retail establishments, like the corner drug store or grocer, which might do an interstate business by virtue of their location near state lines. Annot., 3 L.Ed.2d 1912 (1959). Congress felt that retail concerns of this nature did not sufficiently influence the stream of interstate commerce to warrant imposing the wage and hour requirements on them. A. H. Phillips Inc., v. Walling, 324 U.S. 490, 497, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). Plaintiff contends that the parking",
"S.Ct. 166, 93 L.Ed. 415 (1948). . In its present form, 29 U.S.C. § 213(a) (2) reads in pertinent part as follows: “(a) The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to— * * * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— (i) is not in an enterprise described in section 203 (s) of this title, or * * * Hi * (iv) is in such an enterprise and has an annual dollar volume of sales * * * which is less than $250,000. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * * *» No contention has been made that appellant qualifies for enterprise coverage. . We regard Hooper as strikingly similar factually to our present case. The district court’s holding in Hooper that there were two separate establishments was reversed on appeal, . It should be noted that plaintiffs do not contest the court’s finding that they were not covered during any portion of the suit period by virtue of work performed for defendant. . The rationale for shifting the burden of proving the employee’s engagement in commerce is the same as that commonly stated for shifting the burden of proving the extent and amount of uncompensated work performed by the employee: The employer is the party who has the duty under 29 U.S.C. § 211(c) to maintain employment records, and it is peculiarly in the position to furnish the most probative facts regarding the interstate commerce connections of its business and its employees. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-688, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946).",
"sales of goods or services is made within the State in which the establishment is located, and such establishment . . . has an annual dollar volume of sales which is less than $250,000 . . . .” A “retail or service establishment” is defined in that provision as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry . . . .\" Although the dollar volume of sales of the single enterprise consisting of all of the employment agencies owned by Walker either as sole proprietor or as a partner exceeded $250,000, none of the individual agencies ever exceeded $250,-000 annual gross volume of sales. To obtain the exemption, therefore, Walker need show only that the individual agencies were retail and service establishments within the meaning of the Act. Walker’s claim rests on two arguments: (1) that although an early administrative ruling held that employment agencies were not exempt, a 1949 amendment to Section 13(a)(2) broadened the scope of the exemption to include businesses such as his; and (2) that his businesses meet the statutory requirements because there is industry recognition that its sales are “retail sales or services.” The employer has the burden of proof in establishing facts requisite to an exemption, Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694, reh. denied, 383 U.S. 963, 86 S.Ct. 1219, 16 L.Ed.2d 305 (1966); Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61 (5th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1971), and the exemption provisions are to be narrowly construed against those seeking to assert them, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). From the beginning, the Fair Labor Standards Act of 1938 provided that retail establishments were exempt from the Act. The Department of Labor’s Wage and Hour Administrator issued in 1941 an interpretative bulletin which characterized “retail establishments” as those businesses",
"SIDNEY 0. SMITH, Jr., District Judge. This is an action brought by the Secretary of Labor to enjoin the defendant from violating the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act. While stipulating that it has employees engaged in commerce or in the production of goods for commerce and that the annual gross volume of sales of defendant enterprise is not less than $1,000,000, the defendant denies that it is subject to the provisions of the Act. (1) In this connection, it contends it is exempt from both minimum wage and overtime provisions by virtue of 29 U.S. C.A. § 213(a) (2), which provides an exemption with respect to: “[A]ny -employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment * * (ii) is in such an enterprise and is a hotel, motel, restaurant, or motion picture theater; * * *. “A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recog nized as retail sales, in the particular industry;” (Emphasis supplied) and by virtue of 29 U.S.C.A. § 213(a) (20), which provides such an exemption with respect to: “[A]ny employee of a retail or service establishment who is employed primarily in connection with the preparation or offering of food or beverages for human consumption, either on the premises, or by such services as catering, banquet, box lunch, or curb or counter service, to the public, to employees, or to members or guests of members of clubs.” (2) Defendant further contends that it is exempt from the current overtime provisions by virtue of 29 U.S.C.A. § 213(b) (8) which provides an exemption therefrom with respect to: “any employee employed by an establishment which is a hotel, motel, or restaurant,” and by virtue of 29 U.S.C.A. § 213(b) (18) which provides an exemption therefrom with respect",
"the record keeping, minimum wage, and overtime provisions and to restrain the continued withholding of wages alleged to be due under the Act. Following a non-jury trial, the district court held that the defendant had carried a “bare burden” of demonstrating that the station came within the Section 13(a)(2) exemption for certain retail or service establishments. The Secretary appeals from that judgment and Yates cross appeals from rulings of the district court which excluded the testimony of several witnesses. As sympathetic as we are to Mr. Yates’ claim that the Secretary’s decision to enforce the Act against him is nothing more than bureaucratic overkill, we are nevertheless obliged to reverse the judgment of the district court in obedience to the language of the Act as construed by the United States Supreme Court in Idaho Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), and out of respect for the discretion possessed by the Secretary of Labor to interpret and administer the Act. The minimum wage and maximum hour provisions of the Fair Labor Standards Act protect an employee who is “engaged in commerce or in the production of goods for commerce,” or is employed “in an enterprise engaged in commerce or in the production of goods for commerce,” 29 U.S.C. §§ 206(a), 206(b), 207(a)(1), 207(a)(2) (1970). An enterprise is defined by the statute to mean only those businesses whose “annual gross volume of sales made or business done is not less than $250,000.” 29 U.S.C. § 203(s)(l) (Supp. V 1975). Since the parties stipulated at trial that Gateway did not have that volume of sales, the statute applies to Gateway only if the employees of the gas station were “engaged in commerce.” In determining whether such an employee is so engaged the question is whether his work is “ ‘so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity.’ ” Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 212, 79 S.Ct. 260, 1264,",
"have something duplicated or reproduced. This itself indicates that appellant’s business operates in the level usually considered retail. We are of the opinion that the trial court placed too heavy a burden of proof upon appellant. He was not required to show unanimity of opinion on the part of authorities in every industry with which his business might be associated ; his burden was simply to show by a preponderance of the whole evidence that his services are “recognized” as retail in the “particular industry” with which he is found by the court to be identified. In the light of what has been said, we think appellant amply sustained that burden. Since it is not questioned that all of appellant’s services are rendered to customers located in Louisiana and that none of his services are for resale, it follows that the provisions of Section 13(a) (2) exempt appellant’s employees from the minimum wage provisions of the Act. Reversed. . 29 U.S.C.A. §§ 206 and 211. . “The provisions of Sections 6 and 7 shall not apply with respect to (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” Oct. 26, 1949, c. 736, 63 Stat. 917, 29 U.S.C.A. § 213. . Act of June 25, 1938, c. 676, 52 Stat. 1067. . Senators Taft and Donnell, members of the Labor and Public Welfare Committee, supplemented the Committee’s report with views of their own. After discussing the test established in Boland Electrical Co. v. Walling, supra, they said: “There is no sound basis to distinguish, in determining whether or not a sale is retail, between sales to customers for personal use and sales to customers for business use. Accordingly, it",
"be some interstate-foreign commerce, and the employees working in the interstate-foreign aspect may not get the wages otherwise ordered by the act. At the time of the alleged offenses, the act required, if applicable, the payment of a dollar an hour for the first forty hours of work in a week and a dollar and a half an hour for overtime. It is quite obvious that Dickenson, percentagewise, was on the borderline of whether he was entitled to the retail exemption. In pertinent part, Section 13(a), the retail exemption, provided: “SEC. 13(a) The provisions of sections 6 and 7 [the amounts to be paid as a minimum] shall not apply with respect to — (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or both) is not for resale and is recognized as retail sales or services in the particular industry.” It is settled that in a civil case the government must prove the work was done in commerce (interstate or foreign) or in the production of goods for it, but then, once coverage is proved, the defendant employer must prove by a preponderance of the evidence that he was a retailer under the act, meeting the percentage tests for exemption. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393. Defendant acquiesced in instructions placing the same burden (by a preponderance of the evidence) upon him here. We think the government concedes that Dickenson met the 50 per cent test, but the disagreement is over the 75 per cent test of section 13(a), supra. As to coverage, the dollar volume of scrap sold to other dealers as “commerce” (on which the employees with whom we are concerned worked) is very, very small. The three years of scrap sales were as follows: 1959, $285.25,",
"to actual hours worked, although supplemental affidavits providing specific facts underlying the conclusory assertions were sufficient to allow plaintiffs to advance beyond the summary judgment phase); compare Mount Clemens Pottery, 328 U.S. at 684, 688, 693, 66 S.Ct. 1187 (time clock records demonstrated that the employees had worked more than 40 hours per week). Because Gatto has not produced sufficient evidence demonstrating a genuine issue of fact as to her eligibility for overtime compensation, Defendants are entitled to summary judgment on Count I. B. The Retail or Service Establishment Exemption Even if Gatto had satisfied her burden of establishing eligibility for overtime compensation, Defendants would still be entitled to summary judgment based on the “retail or service establishment” exemption to the overtime requirements of the FLSA: No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.... 29 U.S.C. § 207(i). There is no dispute regarding two of the requirements for the exemption. Defendants maintain, and Gatto does not dispute, that Gatto’s regular rate of pay was in excess of one and one-half times the minimum hourly rate applicable to her under 29 U.S.C. § 206. (Defs.’ Mem. at 6- 7.) Nor does Gatto dispute that more than half of her pay represented commissions on goods or services. The parties do, however, dispute whether Gatto was employed by a “retail or service establishment.” Citing Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), Gatto contends that MSI cannot be a “retail or service establishment” because it is in the “financial industry.” (Pl.’s Resp. at 3.) For the following reasons, the court concludes that MSI is a “retail or"
] |
Cherrydale Farms Confections (“Final Scope Ruling: Cherrydale Farms Confections”) demonstrated the inconsistency in Commerce’s use of the Diversified, Products analysis, and, therefore, this case should be remanded for consideration under the (i)(2) factors. As set forth above, to determine whether merchandise is within the “class or kind” of merchandise described in an antidumping order, Commerce begins by examining the descriptions of the merchandise in the petition, the initial investigation, and the determinations of the Secretary and the ITC to determine whether such descriptions are dispositive. 19 C.F.R. § 353.29(i)(l) (1997). If the descriptions are dispositive, the regulation instructs Commerce to issue a final scope determination based upon these descriptions alone. See 19 C.F.R. § 353.29(i)(l) (1997); see also REDACTED If Commerce determines that the descriptions are not dispositive, an analysis under the Diversified Products factors is conducted. These factors are (i) the physical characteristics of the product; (ii) the expectations of the ultimate purchasers; (iii) the ultimate use of the product; and (iv) the channels of trade. 19 C.F.R. § 353.29(i)(2) (1997). Plaintiffs contention that Commerce should have used the factors set forth in United States v. Carborundum Co., 63 C.C.P.A. 98, 536 F.2d 373 (1976), is unpersuasive. The regulations set forth above, not Carborundum, provide the procedures and factors to
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[
"scope of a final antidumping duty order, the ITA may not modify the scope of that order. Alsthom Atlantique, 787 F.2d at 571. CONCLUSION For the foregoing reasons, the April 7, 1992 judgment of the CIT is AFFIRMED. . A nylon core flat belt is a continuous, multilayer strip made up of a core of oriented nylon sheet having on each surface a nylon, fabric or rubber layer. . 54 Fed.Reg. 25314 (the ITA published a correction to this order on August 4, 1989, 54 Fed.Reg. 32104, specifically excluding certain belts (not pertinent here) from the scope of that order). . Of interest, Commerce specifically provided for such an analysis in its recently promulgated regulation 19 CFR § 353.29(i). However, Commerce issued this regulation on March 9, 1990, 55 Fed.Reg. 9046, after the date of the ITA’s scope ruling. This regulation was therefore not applicable during any stage of the challenged proceeding. . 53 Fed.Reg. 28036 (the ITA republished the notice on August 4, 1988, 53 Fed.Reg. 29366, because some paragraphs were printed out of order in the first publication). . 54 Fed.Reg. 5114. . Nitta argues in this appeal that its nylon core flat belts were not covered by any of the tariff classification numbers in the ITA’s notice of the antidumping investigation. The Government counters that Nitta has never explained the basis for this assertion. .The telex reiterated that the actual description of the scope of the investigation was controlling, and that the merchandise covered by the investigation included \"flat belts, in part or wholly of rubber or plastic, and containing textile fiber (including glass fiber) or steel wire, cord or strand.” . Gates relied upon Diversified Products, 572 F.Supp. at 887 and Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 669 F.2d 692 (CCPA 1982) for this proposition. . 54 Fed.Reg. 15485. 10. Ernest Siegling and Siegling America, Inc. had also submitted to the ITA their viewpoints as to whether nylon core flat belts and another type of belt, spindle belting, should be excluded from the scope of the investigation."
] |
[
"Commerce was not required to examine the physical characteristics of the accused product, the expectations of the ultimate purchasers, the ultimate use of the accused product, or the channels of trade. See 19 C.F.R. § 353.29(i)(2). Wheatland’s argument that the Orders exclude only line and dual-certified pipe that is actually used as line pipe contradicts the unambiguous language of the Orders, which refer to the pipes’ principal use at the time of entry instead of actual use. See Final Scope Determination, 61 Fed.Reg. at 11,611 (“The phrase ‘of a kind used for’ is commonly used by Customs to signify the chief, or principal, use of a product and not its actual use.”). Wheatland also contradicts its statements during the antidumping investigations that they should cover pipe entering the United States under one of the tariff numbers pertaining to standard pipe and that pipe entering as line pipe would be outside the scope of the petitions. The International Trade Commission’s (ITC) reliance on these statements in conducting its injury analysis makes Wheat-land’s new position especially untenable. As a result of Wheatland’s representations, the ITC did not “examine the impact of imports of line pipe upon the domestic industry.” Id. It is possible that the ITC would not have found domestic injury if it had examined line pipe imports. Having argued that the orders should exclude line and dual-certified pipe regardless of actual use in order to obtain the antidumping duty orders, Wheatland cannot now urge a broader interpretation during enforcement of the orders. Cf. Coleco Indus., Inc. v. United States Int’l Trade Comm’n, 65 C.C.P.A. 105, 573 F.2d 1247, 1257 (1978) (“A patentee having argued a narrow construction for his claims before the United States Patent and Trademark Office (PTO) should be precluded from arguing a broader construction for the purposes of infringement.”). Accordingly, the court was correct to sustain Commerce’s scope inquiry under 19 C.F.R. § 353.29(i). Wheatland next argues that Commerce’s decision to conduct - this section 353.29(i) inquiry instead of one under section 353.29(g), which pertains to allegations of minor alterations, was arbitrary and/or an abuse of its",
"Diversified Prods, criteria of that regulation. The government and the Korean Producers counter that substantial evidence supports Commerce’s final scope determination. Commerce has the inherent authority to define the scope of an investigation. See Koyo Seiko Co., Ltd. v. United States, 17 CIT 1076, 1078, 834 F.Supp. 1401, 1403 (1993). This authority is codified in Commerce regulations. 19 C.F.R. § 353.29(1) (1996). Under this regulation, the starting point for determining whether merchandise is within the “class or kind” of merchandise described in an antidumping order is to examine the descriptions of the merchandise in the petition, the initial investigation, and the determinations of the Secretary and the Commission to determine whether such descriptions are dispositive of the matter. Id. § 353.29(i)(l). If Commerce determines that the matter is not dispositively resolved, an analysis under the Diversified Prods, factors is conducted. Id. § 353.29(i)(2). In the present case, Commerce first considered the language of the petitions and noted that the petitions (1) defined the subject merchandise as welded non-alloy pipes with certain physical criteria, (2) stated that the pipes and tubes in question were generally known as standard pipe, though they might also be called structural or mechanical tubing in certain applications, and (3) provided an illustrative list of typical uses for standard pipe and observed that the merchandise was most commonly produced to the ASTM A-53 specification for standard pipe. Final Scope Det, 61 Fed.Reg. at 11,609. Commerce noted that the petitions did not mention either line pipe or dual-certified pipe. Id. Furthermore, Commerce remarked that in the notice of initiation, it had adopted petitioners’ language to define the merchandise covered by the investigations, which also did not mention either line pipe or dual-certified pipe. Id. Commerce also noted that neither the petitions nor the initiation notice indicated that actual end use was a consideration in designating the scope of the investigations. Id. at 11,610. Based on the petitions and the notice of initiation, Commerce concluded that physical characteristics, not actual end uses, defined scope and neither document addressed, and thérefore neither definitely resolved, the treatment of line pipe or",
"Prods., 6 CIT 155, 572 F. Supp. 883. See 19 C.F.R. § 353.29a). The Diversified Products criteria are as follows: (1) general physical characteristics of the merchandise, (2) expectations of the ultimate purchaser, (3) the channels of trade in which the merchandise moves, (4) the ultimate use of the foreign merchandise, and (5) the cost of that merchandise. Diversified Prods., 6 CIT at 162, 572 F. Supp. at 889. The first of the so-called Diversified Products criteria is the general physical characteristics of the merchandise. As previously stated, in making its determination Commerce relied on Mark’s Handbook which clearly stated that needle bearings “have rollers whose length is at least four times the diameter.” AR (Pub.) Doc. 12. Commerce further determined that the ultimate use of the merchandise and expectations of the ultimate purchaser are dependent upon the physical characteristics of the bearing. AR (Pub.) Doc. 7 at 10. Regarding the channels of trade in which the product is sold, Commerce stated that “we have no reason to believe that the various types of bearings are sold in different channels of trade. The major target for all bearings producers and importers are original equipment manufacturers and distributors.” Id. Upon examining the administrative record in this case and all the evidence on the record including the section from Mark’s Handbook, it is clear to this Court that Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing. Conclusion In accordance with the foregoing opinion, plaintiffs’ motion for judgment on the agency record is denied as Commerce was justified in classifying bearing model 15BM2110 as a cylindrical roller bearing within the scope of the antidumping order on antifriction bearings from Japan. According to 19 C.F.R. § 353.29(i), [i]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not dispositive, the Secretary will further consider:",
"in Kyowa Gas stated: [t]he Department qualifies the utilization of these [Diversified Products] criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard.... The court is unable to accept this qualified application. Id. In addition, it would be impractical to apply today’s threshold test based upon the evidence available in 1976. Under the current law, Commerce analyzes four documents in reaching its determination of whether the merchandise description is dispositive or ambiguous. 19 C.F.R. § 353.29(i)(1). In 1976, out of the four documents only the petition existed. Moreover, in 1976, Treasury did not publish an official definition of stainless steel plate as Commerce would do today; therefore any documents which might be analogous lacked an anchoring description. These facts suggest that Treasury would not have relied upon the petition definition as the dis-positive factor in its antidumping scope determination, but instead it was merely one factor considered under the totality of the circumstances test. Thus, the court remands this matter to Commerce. First, Commerce must apply the 1976 standards to determine whether Treasury erred in its post-finding ruling. In reviewing Treasury’s actions Commerce must interpret ambiguous actions in accordance with the presumption of administrative legality and regularity. More over, at this stage, Commerce may not reweigh the evidence. If a court would find sufficient evidence to sustain Treasury’s decision, so must Commerce. Second, if Treasury erred, Commerce may correct the anti-dumping scope determination by applying the law in effect in 1976. Remand results are due within 45 days hereof. .Commerce issued two letter rulings. The first, dated July 11, 1995, concerned the scope of the 1973 dumping finding on stainless steel plate from Sweden with regard to three products, Stavax, Ramax and UHB 904L, when flat rolled. Stainless Steel Plate from Sweden, (Dep’t Comm. 1995) (final scope ruling and mem., flat rolled products) at 21; Pl.’s App., Ex. 2. The second, dated November 2, 1995, concerned the same 1973 scope finding with regard to the",
"clarify the scope of a prior dumping finding, but cannot change the scope of the determination. 12 CIT at 611, 689 F.Supp. at 1221. In Fuji Elec., the case involved a Treasury determination, a subsequent clarification by Treasury and, as here, a subsequent reexamination of the determination by Commerce. Id. at 610-11, 689 F.Supp. at 1219. . Commerce currently makes scope determinations pursuant to 19 C.F.R. § 353.29(i). . The four factors are: (1) the physical characteristics of the product; (2) the expectations of the ultimate purchasers; (3) the ultimate use of the product; and (4) the channels of trade. 19 C.F.R. § 353.29(i)(2); Diversified Prods., 6 CIT at 162, 572 F.Supp. at 889. See also 19 U.S.C. § 1677j (same factors utilized for analyzing later developed merchandise for anticircumvention purposes). . It is not clear to the court exactly how Treasury considered these factors. . In addition, classification of stainless steel by use is problematic. Kirk-Othmer 21 •Encyclopedia of Chemical Technology 552 (3d Ed.1983) (noting that classification of steel by use contradicts the standard industry practice, whereas classification of steel by chemical composition is preferred). . Because of this holding there is no need to address arguments relating to Commerce’s 1990 affirmation of the 1976 Treasury determination. . In Carborundum, the court found that it must consider all pertinent circumstances in classifying merchandise. Carborundum, 536 F.2d at 377; Star-Kist Foods, Inc. v. United States, 45 C.C.P.A. 16, 19, 1957 WL 8256 (1957). Specific, but not exclusive factors included: general physical characteristics of the merchandise, expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed), the use if any in the same manner as merchandise which defines the class, the economic practicality of so using the import, and the recognition in the trade of this use. Carborundum, 536 F.2d at 377; see also Maher-App & Co. v. United States, 57 C.C.P.A. 31, 37, 418 F.2d 922 (1969) (Baldwin, J. concurring); United States v. Baltimore &",
"product, not previously included, is of the class or kind of merchandise contemplated by the finding. Among the factors considered by the ITA are the general physical characteristics of the product; the expectations of the ultimate purchaser; the channels of trade in which the product is sold; the manner in which the product is advertised and displayed; and the ultimate use of the product. See Parts for Self-Propelled Bituminous Paving Equipment from Canada; Clarification of Scope and Preliminary Results of Administrative Review of Anti-dumping Finding, 46 Fed.Reg. 47806, 47807 (September 30, 1981). The foregoing criteria have been recognized and utilized by our appellate court as factors in determining whether an imported product belonged to a particular class or kind of merchandise for tariff classification purposes. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 587 (1976). This court in Diversified Products Corp. approved these criteria in determining whether a new product was within the class or kind of merchandise described in a prior antidumping finding. In the proceedings conducted by the ITA presently under review, the Commerce Department states in its notice of final results that it did not apply the aforementioned criteria in determining whether KyowaglasXA is within the scope of the 1976 anti-dumping finding. The Department qualifies the utilization of these criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard. When the record is replete with differing evidentiary facts upon which the criteria may be applicable, the court is unable to accept this qualified application. A determination by the ITA in a § 1675(a) review proceeding shall be accepted by the court if the administrative findings are supported by substantial evidence from the record and are not contrary to law. 19 U.S.C. § 1516a(b)(l)(B). The determinative findings of the administering authority must have a rational basis discernible to the court from the evidence in the record. Other",
"] criteria ‘essential factors’ to be used as ‘guidelines’ in making rulings on specific products. Id. (emphasis added). It is clear that by 1978, and by inference 1976, that Treasury utilized the same totality of the circumstances test in antidumping scope determinations as set forth in Carborundum. Second, the court notes that the 1976 standards are not identical to the standards applied currently. Specifically, the current threshold test of finding ambiguity in the documentary description of the merchandise as set forth under 19 C.F.R. § 353.29(i)(1) before resorting to Diversified Products or Carborundum type factors is not applicable under the 1976 standards. Neither party cites any support for the proposition that Treasury applied the threshold test in 1976. Moreover, the court in Kyowa Gas implies that Treasury did not apply the threshold test. See 7 CIT at 140, 582 F.Supp. at 889. As late as 1984, the threshold test was considered a recent invention of Commerce, implying that neither Commerce or Treasury had applied this test previously in antidump-ing scope determinations. Id. Specifically, the court in Kyowa Gas stated: [t]he Department qualifies the utilization of these [Diversified Products] criteria as a standard or test by conditioning their use upon a preliminary finding that the initial product description is “vague.” Neither precedent nor authority has been submitted to substantiate the newly enunciated ITA standard.... The court is unable to accept this qualified application. Id. In addition, it would be impractical to apply today’s threshold test based upon the evidence available in 1976. Under the current law, Commerce analyzes four documents in reaching its determination of whether the merchandise description is dispositive or ambiguous. 19 C.F.R. § 353.29(i)(1). In 1976, out of the four documents only the petition existed. Moreover, in 1976, Treasury did not publish an official definition of stainless steel plate as Commerce would do today; therefore any documents which might be analogous lacked an anchoring description. These facts suggest that Treasury would not have relied upon the petition definition as the dis-positive factor in its antidumping scope determination, but instead it was merely one factor considered under the totality",
"would be unfair to the participants to find that Treasury committed an error in the application of a policy not in existence at the time of the decision. Instead, the lawfulness of Treasury’s post-finding ruling must be assessed under the law and attendant scope determination standards in effect in 1976. First, it appears that in 1976 Treasury applied the same factors in scope determination cases as applied in the classification case United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A.1976). In Kyowa Gas Chemical Industry Co., Ltd. v. United States, 7 CIT 138, 140, 582 F.Supp. 887, 889 (1984), appeal after remand, 7 CIT 311, 1984 WL 3729 (1984), when ordered in a § 751 review to apply the applicable criteria used in antidumping scope determinations, Commerce applied the same criteria as set forth in Carborundum. In footnote 2 of Kyowa Gas, the court noted that even prior to 1984, [i]n determining whether the 1976 anti-dumping finding on Acrylic Sheet from Japan encompassed [a product] ... the Customs Service in 1978 considered these {Carborundum ] criteria ‘essential factors’ to be used as ‘guidelines’ in making rulings on specific products. Id. (emphasis added). It is clear that by 1978, and by inference 1976, that Treasury utilized the same totality of the circumstances test in antidumping scope determinations as set forth in Carborundum. Second, the court notes that the 1976 standards are not identical to the standards applied currently. Specifically, the current threshold test of finding ambiguity in the documentary description of the merchandise as set forth under 19 C.F.R. § 353.29(i)(1) before resorting to Diversified Products or Carborundum type factors is not applicable under the 1976 standards. Neither party cites any support for the proposition that Treasury applied the threshold test in 1976. Moreover, the court in Kyowa Gas implies that Treasury did not apply the threshold test. See 7 CIT at 140, 582 F.Supp. at 889. As late as 1984, the threshold test was considered a recent invention of Commerce, implying that neither Commerce or Treasury had applied this test previously in antidump-ing scope determinations. Id. Specifically, the court",
"this opinion is entered. Any comments or responses by the parties to the remand results are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date that the responses or comments are due. . The Department of Treasury was responsible for administering the antidumping law until 1979, when this responsibility was transferred to Commerce. . A revised version of 19 C.F.R. § 353.29(i) (1994) (Other Scope Determinations), was promulgated in 1990 to incorporate the factors set forth in Diversified Prods. Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983). The section states, in relevant part: [I]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not disposi-tive, the Secretary will further consider: (i) The physical characteristics of the product; (ii) The expectations of the ultimate purchasers; (iii) The ultimate use of the product; and (iv) The channels of trade. . In American NTN, 14 CIT at 327-28, 739 F.Supp. at 1562, ANTN argued that green turned rings that have not been heat treated were not within the scope of the 1987 TRB Order. ANTN relied on an ITC staff report that contained a description of \" 'unfinished bearing components;’ those being ‘the cones, cups and rollers that have been green machined and heat treated ... but that require final finishing.’ ” Id. at 323, 739 F.Supp. at 1559 (citation omitted). Commerce examined the 1986 Timken Petition and determined that it was ambiguous because it did not explicitly refer to green turned rings that are not heat treated. Id. at 327-28, 739 F.Supp. at 1562. The court then held that the ITC staff report language defining unfinished parts varied from the language of the 1986 Timken Petition. American NTN, 14 CIT at 329, 739 F.Supp. at 1563. . Koyo claims that Commerce discerned the hypothetical intent",
"and future reviews. Conclusion Commerce’s decision to use, and application of, the Diversified Products analysis was supported by substantial evidence on the record and fully in accordance with law. Consequently, Commerce properly found that Koyo’s forgings are within the scope of the 1987 TRB Order. This case is remanded for Commerce to explain a rationale for its decision to apply the 1995 Koyo Scope Ruling only to pending and future reviews. ORDER This case having been duly submitted for a decision and the Court, after due deliberation, having rendered a decision herein; now, in accordance with said decision, it is hereby ORDERED that this case is remanded to the Department of Commerce, International Trade Administration (“Commerce”), to explain a rationale for its decision to apply the Final Affirmative Determination in Scope Inquiry on Antidumping Duty Order on Tapered Roller Bearings and Parts Thereof From Japan, 60 Fed.Reg. 6519 (Feb. 2,1995) to only pending and future reviews; and it is further ORDERED that the remand results are due within ninety (90) days of the date that this opinion is entered. Any comments or responses by the parties to the remand results are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date that the responses or comments are due. . The Department of Treasury was responsible for administering the antidumping law until 1979, when this responsibility was transferred to Commerce. . A revised version of 19 C.F.R. § 353.29(i) (1994) (Other Scope Determinations), was promulgated in 1990 to incorporate the factors set forth in Diversified Prods. Corp. v. United States, 6 CIT 155, 572 F.Supp. 883 (1983). The section states, in relevant part: [I]n considering whether a particular product is within the class or kind of merchandise described in an existing order, the Secretary will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary and the Commission. (2) When the above criteria are not disposi-tive, the Secretary will further consider: (i) The physical characteristics of the product; (ii)"
] |
"the Fair Credit Reporting Act: an FTC Staff Report with Summary of Interpretations , FTC, 2013 WL 10954239, at *51 (July 2011). The FTC staff opinion letters are not formal rulemakings and not entitled to the level of deference given under Chevron U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for purposes of statutory construction. Christensen v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (comparing opinion letters and formal adjudication or notice-and-comment rulemaking). They are not binding authority, but are ""entitled to respect"" to the extent they have the ""power to persuade."" Id. (internal citations omitted); REDACTED The Court finds the FTC staff opinion letters persuasive for several reasons. They explicitly address the precise question before the Court, set out sound reasoning for their conclusions, and are consistent. The FTC also administers the FCRA, and possesses some degree of expertise in these matters. Most importantly, the FTC's interpretation of ""adverse information"" is consistent with the plain language of § 1681c(a)(5) and this Court's interpretation. Though they have limited precedential value, the FTC staff opinion letters support the Court's conclusion that college attendance dates and degree-conferral status are not ""adverse information."" For all of these reasons, the Court holds that the term ""adverse information"" as used within § 1681c(a)(5) is"
|
[
"or universities).” 16 C.F.R. pt. 600, app. D § 603(d)(7)(A) (emphasis added). The Federal Trade Commission also issued a Staff Opinion Letter in response to an inquiry from a public school district conducting reference checks of prospective employees. That letter explained “FCRA would not apply to any communication by a previous employer about the applicant’s job performance because [15 U.S.C. § 1681 (d)(2)(A)(I)] specifically exempts ‘experiences between the consumer and the person making the report’ from the definition of ‘consumer report’ in the FCRA.” Staff Opinion Letter from Fed. Trade Comm’n (July 10, 1992), 1998 WL 34328734. The Commentary and Letter are not formal rulemakings and not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Such documents, however, may be considered for their persuasive value. Id. That the experiences of the motor carrier may involve third parties does not mean they are no longer the first-hand experiences of the carrier. Employers completing TRFs were asked questions that only pertained to their first-hand knowledge gained by employing the consumer. The TRFs contain the same kind of information found in a typical letter of reference from a former employer and are not subject to the requirements of FCRA. B. Evidence of Industry Practice FCRA requires that “[wjhenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). The Federal Trade Commission has explained “when a consumer reporting agency learns or should reasonably be aware of errors in its reports that may indicate systematic problems ... it must review its procedures for assuring accuracy.” 16 C.F.R. pt. 600, app. D § 607(b)(3)(A). To demonstrate a “willful” violation pursuant to § 1681n(a), a plaintiff must prove the defendant demonstrated a “reckless disregard of statutory duty.” Safeco Ins. Co., 127 S.Ct. at 2208. At trial, the plaintiffs argued the defendants violated FCRA"
] |
[
"See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457, 481, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). In contrast, the FTC's interpretive rules are not necessarily subject to Chevron deference. See, e.g., Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (noting that interpretive rules and enforcement guidelines are \"not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers”). While the FTC’s rules, unlike many interpretive rules, were subject to notice and comment (i.e., the FTC published a notice of the proposed rules in the Federal Register and interested parties were permitted to submit written comments), these interpretations were not subject to the level of public participation mandated by the MMWA's provisions governing the promulgation of regulations. See 15 U.S.C. § 2309 (1994) (noting that to properly prescribe a rule under the MMWA, the Commission must \"give interested persons an opportunity for oral presentations of data, views, and arguments, in addition to written submissions”). Moreover, in light of the agency’s disclaimer that its interpretive regulations are not intended to have the force of law, see 42 Fed. Reg. 36111, 36112 (July 13, 1977) (noting that the interpretive regulations \"are not ... substantive rules and do not have the force or effect of statutory provisions” and that “like industry guides, they are advisory in nature”), it appears that these regulations are not entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron — style deference.”). Such interpretive regulations are \"entitled to respect,” but only to the extent that they \"have the power to persuade.” Id. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (internal quotations omitted)). . See supra note 7. . This report appears",
"after formal adjudication or notice-and-comment rulemaking pursuant to the Administrative Procedure Act by an agency, if the agency’s interpretation of an ambiguous statute contains a reasonable (but not necessarily the most reasonable) interpretation of an ambiguous statute. Id. at 842-44, 104 S.Ct. 2778. See also United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(“We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”). Where an agency offers an interpretation that is not the result of formal procedures such as adjudication or notice and comment rule-making, however, as in opinion letters, policy statements, agency manuals, ami-cus curiae briefs, and enforcement guidelines, that interpretation lacks the force of law and does not warrant Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)(and cases cited therein). Instead the agency’s interpretations are “entitled to respect,” “but only to the extent that those interpretations have the power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Christensen, 529 U.S. at 587, 120 S.Ct. 1655. Indeed such interpretations merit some deference because of the “specialized experience and broader investigations and information,” as well as the importance of uniformity in the agency’s administrative and judicial understanding of what a federal law requires available to the agency. Skidmore, 323 U.S. at 139-40, 65 S.Ct. 161. In sum, The weight [given to an agency’s] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Id. at 140, 65 S.Ct. 161. See also Samson v. Apollo Resources, Inc., 242 F.3d 629, 638 (5th Cir.)(“Opinion letters by the Department of Labor do not per se bind the court....",
"a report on a customer long after the transaction commenced.” “While these administrative interpretations are not products of formal rulemak-ing, they nevertheless warrant respect in closing the door on any suggestion that the usual rules of statutory construction should get short shrift for the sake of reading [‘legitimate business need’] in abstract breadth.” Washington State Department of Social & Health Service, v. Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (holding that “interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference”); United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (noting that administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference and that, following Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the agency position should be followed to the extent persuasive). In this case, the FTC’s repeated assertions that § 604(a)(3)(F)® primarily pertains to “eligibility” issues and does not create a unilateral right to look at someone’s credit report seems entirely consistent with the statutory language. The FTC has given the scope of § 604(a)(3)(F)® thorough consideration. Its views are certainly persuasive. Moreover, nearly every federal court addressing this issue has similarly held that the “legitimate business need” permissible purpose should be narrowly construed in the context of the other five enumerated purposes. See, e.g., Williams v. AT & T Wireless Services., Inc., 5 F.Supp.2d 1142 (W.D.Wa.1998); Trans Union Corp. v. FTC, 81 F.3d 228, 233-34 (D.C.Cir.1996); Duncan, 149 F.3d at 427; Mone v. Dranow, 945 F.2d 306 (9th Cir.1991); Ippolito v. WNS, Inc., 864 F.2d 440 (7th Cir.1988); Hovater v. Equifax, Inc., 823 F.2d 413 (11th Cir.1987); Houghton v. New Jersey Mfrs. Ins. Co., 795 F.2d 1144, 1149 (3rd Cir.1986). Bearing this principle in mind, the D.C. Circuit noted in the context",
"In the FTC’s own words, its Magnuson-Moss interpretations are “advisory in nature,” are not “substantive rules,” and lack “the force or effect of statutory provisions.” 42 Fed.Reg. 36112, 36112 (July 13, 1977). The FTC’s interpretations consequently may not be entitled to full Chevron deference, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), but “an agency’s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires,” United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citations and quotations omitted). We have looked favorably upon these very interpretations in the past, see Waypoint Aviation Servs. Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir.2006) (citing 16 C.F.R. § 700.1(d)), and we acquiesce to the parties’ requests to consult them here because they have “power to persuade,” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). An interpretation’s “power to persuade” is measured by numerous factors, including “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161; Joseph v. Holder, 579 F.3d 827, 832 (7th Cir.2009); see also Mead, 533 U.S. at 228, 121 S.Ct. 2164 (citing the degree of an agency’s care, consistency, formality, and relative expertise as factors affecting the “fair measure of deference” due). Those factors tilt strongly in favor of deference here. The FTC was responsible for implementing the Act. 15 U.S.C. § 2312(c); see also Carcieri v. Salazar, — U.S. —, — n. 5, 129 S.Ct. 1058, 1065 n. 5, 172 L.Ed.2d 791 (2009) (noting that a commissioner’s responsibilities relating to the implementation of the Indian Reorganization Act of",
"amended complaint stated a claim of violation of Title IX. We think the plaintiffs are incorrect on each contention. A. Deference to the 1979 Policy Interpretation Consistent with the precedent of this court and various other courts, we conclude that the Policy Interpretation is entitled to deference. Despite the plaintiffs’ assertions to the contrary, the facts in Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), are distinguishable from the facts at issue here. The Christensen court specifically dealt with an interpretation contained in an opinion letter, “not one arrived at after ... a formal adjudication or notice-and-comment rulemaking.” 529 U.S. at 587, 120 S.Ct. 1655. It is clear that the 1979 Policy Interpretation is far more than a mere opinion letter. Before it was published, a formal comment period was held and over 700 comments were received. 44 Fed.Reg. 71,413. HEW staff also visited eight universities to see how the policy would apply in practice. Id. We conclude that the Christensen “respect only” interpretation is not applicable to the Policy Interpretation. Rather, “[b]ecause Congress has not ‘directly spoken to the precise question at issue,’ we must sustain the Secretary’s approach so long as it is ‘based on a permissible construction of the statute.’ ” Auer v. Robbins, 519 U.S. 452, 457, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., et al, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The regulations and their interpretation should be accorded “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. We find, based upon our review of the regulations, the Policy Interpretation and established law, that neither the regulations nor the Policy Interpretation are unreasonable, arbitrary, capricious, or manifestly contrary to Title IX. See Chalenor v. Univ. of N. Dakota, 291 F.3d 1042, 1045-47 (8th Cir.2002); Neal v. Bd. of Trustees of the Cal. State Univs., 198 F.3d 763, 769-72 (9th Cir.1999); Boulahanis v. Bd. of Regents, 198 F.3d 633, 637-38 (7th Cir.1999); Horner",
"in light of the agency’s disclaimer that its interpretive regulations are not intended to have the force of law, see 42 Fed. Reg. 36111, 36112 (July 13, 1977) (noting that the interpretive regulations \"are not ... substantive rules and do not have the force or effect of statutory provisions” and that “like industry guides, they are advisory in nature”), it appears that these regulations are not entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron — style deference.”). Such interpretive regulations are \"entitled to respect,” but only to the extent that they \"have the power to persuade.” Id. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (internal quotations omitted)). . See supra note 7. . This report appears to be no longer obtainable. . See supra note 2. . The FTC requested comments on its rules and guides interpreting and implementing the MMWA \"as part of its regulatory review program, under which it reviews rules and guides periodically in order to obtain information about the costs and benefits of the rules and guides under review, as well as their regulatory and economic impact.” 64 Fed. Reg. 19700, 19700 (Apr. 22, 1999). “After careful review of the comments received in response\" to its request, the Commission decided to retain the interpretations and rules without change. Id. . It merits notice that the FTC’s justification for its prohibition on binding arbitration in the 1999 regulatory review proceeding is consistent with the rationale that the FTC advanced at the time of its original promulgation of tire legislative regulations. Accordingly, we are not precluded from giving appropriate consideration to the Commission's post-promulgation explanation by the Court’s precedents disapproving deference to \"post-hoc” agency justifications for regulatory interpretations. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401",
"v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). In Chevron, the Supreme Court held that courts must apply a two-pronged analysis to an agency’s interpretation of a statute that the agency has responsibility for administering. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. First, if the meaning of the statute is plain and not ambiguous, that meaning must be applied. Second, if the statute is ambiguous, the agency’s interpretation is accorded deference if the agency’s interpretation is reasonable. Id. However, “[i]nterpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). In this instance, both parties concede that the term “material difference” is ambiguous as applied to the facts at hand. Thus, the first prong of Chevron does not apply. Moreover, the second prong of the Chevron doctrine is not applicable because HUD’s interpretation expressed in Notice 95-12 does not have the binding legal force of a regulation. Compare America Online, Inc. v. United States, 64 Fed.Cl. 571, 580 (2005), with Cuyahoga II, 65 Fed.Cl. at 549-53. Interpretations such as those in HUD’s Notice 95-12 “ ‘are entitled to respect,’ ... but only to the extent that those interpretations have the ‘power to persuade.’ ” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). This limited form of deference, denominated “Skidmore deference,” considers “‘the thoroughness evident in [the agency interpretation’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). Importantly, “[a]n agency interpretation of a relevant provision which conflicts",
"opinion letters stating that certain categories of drivers apparently akin to the appellees in the case at bar were not within the MCA exemption, and were therefore subject to the FLSA’s overtime requirements. The District Court, in turn, relied on one of these DOL letters because the District Court found that the DOT shared the DOL’s interpretation. However, neither the 1974 Benkin letter nor the 1999 Fraser letter the District Court relied on has the formality and weight that would merit judicial deference. Some agency interpretations of statutes the agency administers are entitled to substantial judicial deference. Here, the ACCESS drivers contend that Mr. Benkin’s endorsement of a “through ticketing” test is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which requires judicial deference to an agency’s reasonable interpretation of an ambiguous statute entrusted to its administration. However, “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The informal and cursory Benkin letter falls into this category, and hence does not merit Chevron deference. The Fraser letter would similarly lack authority, even if the DOL had authority to interpret the MCA, which it does not. As this court has said, “[t]o grant Chevron deference to informal agency interpretations would unduly validate the results of an informal process.” Madison, 233 F.3d at 186. In the absence of Chevron deference, the ACCESS drivers contend that the Benkin letter is at least entitled to the lesser degree of deference called for by Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). However, Skid-more deference is available only based on an agency interpretation’s power to persuade. The general rule, where Chevron deference is not warranted, is that “[t]he weight of [an agency’s] judgment in a particular case will depend upon the thoroughness evident in its consideration,",
"credit report may be obtained in connection with a new business transaction is to determine the consumer’s “eligibility” — i.e., whether the business wishes to undertake a transaction with he consumer. In this regard, we note that the legislative history indicates that Congress intended the “permissible purposes” provisions of the FCRA to cover primarily “eligibility issues” (see, e.g., 116 Cong. Rec. 36,572 (statement of Rep. Sullivan)). FTC Informal Staff Opinion Letter, William Haynes (Mar. 2, 1998); see also FTC Informal Staff Opinion Letter, David Med-ine (Feb. 11,1998). In another case, the FTC considered an argument somewhat analogous to this one, where a landlord sought to obtain a credit report in connection with a tenant’s disputed debt. The FTC responded that § 604(a)(3)(F)(i) would certainly permit a landlord to procure a consumer report to evaluate a consumer’s rental application (that is, when the lease “transaction ... is initiated by the consumer.”) FTC Informal Staff opinion Letter, Clarke Brincker-hoff (July 7, 2000). However, the FTC noted, § 604(a)(3)(F)® “does not give any business the right to obtain a report on a customer long after the transaction commenced.” “While these administrative interpretations are not products of formal rulemak-ing, they nevertheless warrant respect in closing the door on any suggestion that the usual rules of statutory construction should get short shrift for the sake of reading [‘legitimate business need’] in abstract breadth.” Washington State Department of Social & Health Service, v. Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (holding that “interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference”); United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (noting that administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference and that, following Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89"
] |
Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: For the third time, we consider the district court’s determination that one of the defendants in the United States’ RICO action against cigarette companies waived its attorney-client privilege by failing to log a document sought in discovery. As we emphasized the last time around, “waiver of privilege is a serious sanction” that a court should impose only if a party behaves unreasonably or worse. See United States v. Philip Morris Inc., 347 F.3d 951, 954 (2003) (quoting REDACTED Because the record in this case does not reflect the kind of behavior that would satisfy this demanding standard, we reverse and remand with instructions to allow the defendant to log the document. I. In 1999, the United States sued several tobacco companies, including appellant British American Tobacco (Investments) Limited (“BATCo”), alleging in part that these companies had violated civil provisions of the RICO statute, 18 U.S.C. §§ 1961-1968, by conspiring to mislead the public about the addictive nature and health risks of smoking. As part of its comprehensive document production request, made in 2000, the government sought all documents relating to the companies’ record-retention and record-destruction policies from 1954 to the present. In response, BATCo raised
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[
"different factors comes down against imposing a waiver of the defendants’ attorney-client privilege and work-product protection. The court, therefore, sets aside the magistrate judge’s orders of March 30, 1995, and June 12, 1995. Be cause of the broad discretion that resides with the magistrate judge to manage the pretrial docket and to control discovery, the court is quite reluctant to enter this order. Were it not for the critical facts that the defendants faced an extraordinary burden in producing the documents to satisfy the plaintiff’s broad request and the expedited discovery schedule and that the waiver poses a serious litigation risk to the defendants in other cases that have been or are likely to be filed, the court would summarily affirm the magistrate judge’s decision. This ruling plainly complicates the current trial schedule. Despite the advanced stages of this case, the court does not want to prevent the plaintiff from bringing any substantial challenges to the documents found on the defendants’ first and amended privilege logs. The court directs the parties to meet immediately and confer over the defendant’s privilege logs in an effort to agree on whether the privilege objections should stand and, if so, whether the asserted privilege outweighs the plaintiffs need for the information. If an agreement cannot be reached, the parties shall contact the court by a conference call to see what arrangements can be reached for promptly resolving the disputed objections. IT IS THEREFORE ORDERED that the defendants’ objections (Dk. 178) and request for reconsideration (Dk. 109) are granted, and the magistrate judge’s orders filed June 12, 1995, (Dk. 156) and March 30, 1995 (Dk. 100) are set aside. . The plaintiff likewise failed to disclose on it’s privilege list provided on March 6, 1995, whether the claim was attorney-client privilege or the work-product doctrine. (Dk. 51, Ex. 2). . \"Rule 34 does not by its terms provide that objections will be deemed waived; rather, a waiver appears to be more in the nature of a sanction for more egregious conduct.” Scaturro v. Warren and Sweat Mfg. Co., Inc., 160 F.R.D. 44, 46 (M.D.Pa.1995). ."
] |
[
"Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: On the motion of British American Tobacco (Investments) Ltd. — BATCo—for an emergency stay pending its interlocutory appeal, we upheld our jurisdiction over the appeal, entered a stay of the district court’s orders requiring the production of a document — the Foyle Memorandum — and set the case down for expedited consideration. United States v. Philip Morris Inc., 314 F.3d 612 (D.C.Cir.2003). The issue is whether the district court should have ruled on the applicability of BATCo’s general objections before determining that the company had waived its claim of attorney-client privilege with respect to the Foyle Memorandum. I. The facts of the case are thoroughly set forth in the court’s opinion in Philip Morris Inc., from which we quote: “Appellee, the United States of America, initiated this lawsuit against BATCo and five other tobacco companies in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in ‘a pattern of racketeering activity’ to ‘conceal the health risks of cigarette smoking and the addictiveness of nicotine.’ The government further alleges, in relevant part, that defendants have ‘destroy[ed] and concealed] documents’ and taken ‘other steps to shield documents and materials from discovery.’ As a remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. “The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce ‘[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.’ On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in England (the ‘Guildford objection’). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains over one",
"Opinion for the Court filed by Circuit Judge SENTELLE.' Dissenting opinion filed by Circuit Judge RANDOLPH. SENTELLE, Circuit Judge: British American Tobacco (Investments) Ltd. (“BATCo”), seeks an emergency stay pending expedited appeal of the district court’s discovery orders requiring BATCo to produce an allegedly privileged document. In the alternative, BATCo seeks a writ of mandamus vacating the orders. BATCo contends that this Court has jurisdiction over its appeal under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). On the merits, BATCo argues that the district court erred by ruling that BATCo waived the attorney-client privilege, without first considering BATCo’s pending objections to the request for the allegedly privileged document. Because we agree that BATCo has demonstrated jurisdiction under the collateral order doctrine and satisfied the requirements for a stay, we grant its motion for a stay and dismiss the petition for mandamus as moot. I. Background Appellee, the United States of America, initiated this lawsuit against BATCo and five other tobacco companies in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in “a pattern of racketeering activity” to “conceal the health risks of cigarette smoking and the addictiveness of nicotine.” The government further alleges, in relevant part, that defendants have “destroy[ed] and eon-eeal[ed] documents” and taken “other steps to shield documents and materials from discovery.” As to remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce “[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.” On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in",
"BATCo had “knowledge and possession” of the Foyle Memorandum “by at least February of 2002,” BATCo was required under Federal Rule of Civil Procedure 26(e), to “identify and/or designate the document” as privileged at that time. Philip Morris, No. 99-2496, slip op. at 4 (D.D.C. July 2, 2002) (memorandum opinion accompanying order). Thus, the court concluded that BATCo’s failure to list the memo on the privilege log waived BATCo’s attorney-client privilege claim. Id. at 4-5. The court did not further address BATCo’s objections. BATCo requested that the district court stay its orders pending appeal. On July 10, 2002, the district court denied the motion for stay, reasoning that BATCo had not established appellate jurisdiction nor shown that it was likely to prevail on its challenge to the waiver ruling. Philip Morris, No. 99-2496, slip op. (D.D.C. July 10, 2002). The court also noted that BAT-Co would not suffer irreparable harm absent a stay, particularly given that many portions of the Foyle Memorandum have already been made public in McCabe. Id. at 2. By contrast, the district court found that a stay would substantially harm the government and undermine the public interest by jeopardizing the “extremely demanding” discovery schedule and July 15, 2003 trial date set by the court. Id. at 2-4. BATCo timely filed this appeal and sought an emergency stay pending expedited review, claiming that the district court should have ruled on its pending objections to producing the Foyle Memorandum, and at that time, given BATCo a chance to log the memo. II. Analysis In seeking a stay pending appeal, BATCo must show (1) that it has a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the stay is denied; (8) that issuance of the stay will not cause substantial harm to other parties; and (4) that the public interest will be served by issuance of the stay. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). We first consider our jurisdiction over BATCo’s appeal and then address, in turn, the requirements for an emergency stay. A.",
"Wright et al., Federal PRACTICE AND PROCEDURE § 2016.1 (2d ed.1994). Rule 26(b)(5) requires the party to note its privilege objection and to describe the document only when the document is “otherwise discoverable.” This means, as the 1993 Advisory Committee Notes to Rule 26(b)(5) explain, that if a broad discovery request includes an allegedly privileged document, and if there is an objection to the scope of the request, the court should first decide whether the objection covers the document. If the court finds that the document is within the scope of the objection, and the court overrules the objection, it must then give the party an opportunity to list the document on a privilege log pursuant to Rule 26(b)(5). “In short, if a party’s pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections.” Philip Morris, 314 F.3d at 621. On the other hand, if the court determines that the objection does not cover the allegedly privileged document, or that the objection was not made in good faith as Rule 26(g) requires (Fed.R.Civ.P. 26(g)), the court may then decide whether the party should be deemed to have waived the privilege. Waiver is not automatic, particularly if the party reasonably believed that its objections applied to the document. “As the federal rules, case law and commentators suggest, waiver of a privilege is a serious sanction most suitable for cases of unjustified delay, inexcusable conduct, and bad faith.” First Sav. Bank, F.S.B. v. First Bank Sys., Inc., 902 F.Supp. 1356, 1361 (D.Kan.1995); see 8 Charles Alan Wright et al., supra, at 234-35. BATCo presents three objections that, it claims, covered the Foyle Memorandum. Two are mentioned above: the Guildford objection and the third-party objection. The third is what we shall call the foreign objection: BATCo objected to producing documents “pertaining to the manufacture, advertising, marketing, promotion or sale of tobacco products not sold in the United States or activities of any kind undertaken for markets outside the United States.” During the emergency teleconference, BATCo specifically mentioned only its Guildford objection. The",
"light of increasing litigation against tobacco companies in the United States and Australia. Subsequent to the McCabe decision’s release, the government requested by letter that BATCo produce the Foyle Memorandum. BATCo responded that it had been “unable to locate the document[], or any evidence that plaintiff selected [it] for production.” On May 28, 2002, during the deposition of former BATCo CEO Ulrich Herter, government counsel requested the “immediate production” of the Foyle Memoran dum so it could be used to refresh Herter’s recollection. When BATCo’s counsel declined, government counsel initiated an emergency teleconference with the district court to determine whether BATCo was required to immediately produce the Foyle Memorandum. During the teleconference, BATCo contended that the document was covered by the Guildford objection and informed the Court that it did not even know if the document was in its possession. Moreover, BATCo argued that the Foyle Memorandum was protected by the attorney-client privilege. The district court did not address BATCo’s Guildford and third-party objections. Instead, the court ruled that BATCo had waived any claim of attorney-client privilege because the memo had not been listed in BATCo’s privilege log. The court added that BATCo was free to re-litigate the underlying facts of the order before the Special Master in the case. The following day, the district court issued a written order memorializing the telephone ruling and requiring BATCo to produce the memo “if the document is in the control or possession of BATCo,” and to make “all reasonable effort to locate” it. United States v. Philip Morris Inc., No. 99-2496 (D.D.C. May 29, 2002) (“Order 157”). On May 30, 2002, BATCo and the government twice appeared in telephonic conferences before the Special Master in which BATCo sought to attack Order 157. Although the argument in the first conference is not part of the record, BATCo appears to have raised its Guildford and third-party objections in this conference. See Oral Rep. and Recom. 56 at 35 (BAT-Co counsel raising objection in context of “reiterat[ing] what I said this morning”). It definitely raised them in the second conference. See id. at 35, 43.",
"privilege an opportunity to log the allegedly privileged documents. Id. In short, if a party’s pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections. BATCo claims that its Guildford and third-party objections apply to the Foyle Memorandum. Although there is some doubt whether these objections apply to the Foyle Memorandum, the United States did not raise this argument in opposing the present motion for stay. Moreover, there is no question that the objections were timely raised and at least facially seem to apply to the memo. If these objections are found to apply to the Foyle Memorandum, then the district court’s failure to address the objections, or if it overruled them, then its failure to give BATCo the opportunity to log the memo, was error. Therefore, under these circumstances, we find that BATCo is likely to succeed on its claim that the district court should have considered these objections before ruling that BATCo had waived its privilege. If BATCo succeeds on its appeal, it would be entitled to a remand for the district court to address BATCo’s objections as applied to the Foyle Memorandum. C. Irreparable Injury BATCo would suffer irreparable injury if a stay is denied. Although BATCo “has not asserted any specific irreparable injury that would occur” if it produced the Foyle Memorandum, Philip Morris, No. 99-2496, slip op. at 2 (D.D.C. July 10, 2002), the general injury caused by the breach of the attorney-client privilege and the harm resulting from the disclosure of privileged documents to an adverse party is clear enough. The government argues that we should disregard this harm because parts of the Foyle Memorandum have already been disclosed in the McCabe opinion. We disagree. The release of the McCabe opinion does not diminish the harm that would result from releasing additional privileged information. Moreover, the attorneys for the United States would be able to use the Foyle Memorandum to pursue new leads on discovery and witness questioning. Chase Manhattan Bank, 964 F.2d at 165. The implications of this use of privileged material",
"MEMORANDUM OPINION GLADYS KESSLER, District Judge. This civil action brought by the United States under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, is now before the Court on Plaintiffs Motion to Compel Defendant British American Tobacco (Investments) Limited’s (“BATCo’s”) Compliance [Dkt. No. 5847] and Defendant BATCo’s Motion for Reconsideration [Dkt. No. 5849]. Upon consideration of the respective Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiffs Motion to Compel is granted in part and denied in part and Defendant BATCo’s Motion for Reconsideration is granted in part and denied in part. I. BACKGROUND On August 17, 2006, this Court issued a lengthy opinion finding that all Defendants, including BATCo, “(1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962(d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962(c).” U.S. v. Philip Morris USA Inc., et al., 449 F.Supp.2d 1, 26 (D.D.C.2006). In particular, the Court held that Defendants “knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent statements, representations, and promises.” Id. at 852. On May 22, 2009, the Court of Appeals for the District of Columbia Circuit affirmed this Court’s judgment of liability and affirmed major provisions in its remedial order. U.S. v. Philip Morris USA Inc., et al., 566 F.3d 1095, 1150 (D.C.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3501, 177 L.Ed.2d 1090 (2010). Unlike the other Defendants, BATCo is a corporation organized under the laws of England and Wales with its principal place of business in England. Although BAT-Co’s scientists and officials did attend certain meetings with the other Defendants in the United States, “many of BATCo’s activities and statements took place outside of the United States.” Philip Morris, 449 F.Supp.2d at 43, 51-52, 82, 125, 228, 873. Accordingly, this Court held BATCo liable under RICO because “BATCo’s activities and statements furthered the Enterprise’s overall scheme to defraud, which had a tremendous impact on the United",
"Ohio-based multi-employer trust funds, by one estimate, pay health care costs of approximately 450,000 persons. The proposed class consists of all jointly-administered, multi-employer health and welfare trusts in Ohio and their respective trustees. The trust funds serve union members in industries, such as transportation and the building trades, where a unionist might have a series of employers throughout his or her career. See Doc. 153, Affidavit of Michael E. Withey. .Defendants are Philip Morris, Inc.; RJR Nabisco, Inc.; RJR Nabisco Holdings Corp.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Corp.; Lorillard Tobacco Co.; American Tobacco Co .; Liggett Group, Inc.; United States Tobacco Sales and Marketing Co., Inc.; and British-American Tobacco Co. Ltd. (“BATCo.”). .In addition to the argument that defendants waived any attorney-client privilege, plaintiffs also claim that these documents are not privileged under the “crime-fraud” exception to privileged communication statutes or rulings. A communication is excepted from the attorney-client privilege if it is undertaken for the purpose of committing or continuing a crime or fraud. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383, 700 N.E.2d 12 (1998). See also United States v. Collis, 128 F.3d 313, 321 (6th Cir.1997); State v. Mullins, 26 Ohio App.2d 13, 18, 268 N.E.2d 603 (4th Dist.1971) (\" 'A privileged communication may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society.’ ”). . State of Minnesota, et al. v. Philip Morris, Inc., et al., No. C1-94-8565 (Minn.Dist.Ct. Mar.7, 1997) (Fitzpatrick, J.). . The nearly 40,000 documents consist of an initial production of 864 \"Liggett” documents followed by the production of approximately 39,-000 other documents. . These documents are also available for purchase on CD-ROM through the United States Government Printing Office in Washington, D.C. Defendants now say these documents remain privileged. . The Liggett Group is a defendant in the present action and has also reached a tentative settlement agreement with the plaintiffs here. . Chairman Bliley wrote to the Philip Morris Companies, Inc. RJR Nabisco,",
"in September 1999 alleging that defendants violated the civil provisions of RICO, 18 U.S.C. §§ 1961-68 (2000), by engaging in “a pattern of racketeering activity” to “conceal the health risks of cigarette smoking and the addictiveness of nicotine.” The government further alleges, in relevant part, that defendants have “destroy[ed] and eon-eeal[ed] documents” and taken “other steps to shield documents and materials from discovery.” As to remedy, the government seeks, inter alia, disgorgement of defendants’ profits and recovery of the medical costs of the tobacco companies’ customers. The parties exchanged Comprehensive Requests for Production on August 22, 2000. The government requested that the defendants produce “[a]ll documents relating to record-creating, record-keeping, record-retention, record dissemination or distribution, and/or record-destruction policies, practices, and procedures ... in any part of your organization that has or had responsibility for ... research concerning smoking and health or addiction.” On November 6, 2000, BATCo responded to the government’s document requests, and objected, inter alia, to producing any documents created prior to August 19, 1994, except those contained in the Guildford Depository in England (the “Guildford objection”). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains'over one million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 (Minn.Super.Ct.1994). BATCo also objected to producing any documents in the possession of third parties if the documents were not also in BATCo’s possession, custody, or control (the “third-party objection”). In March 2002, the Supreme Court of Victoria, Australia, publicly released a decision regarding discovery in a case involving W.D. & H.O. Wills (“Wills”), an Australian subsidiary of British American Tobacco Australia Services Limited (“BA-TAS”), in which BATCo has a minority ownership interest. McCabe v. Brit. Am. Tobacco Austl. Servs., Ltd., (2002) V.R. 73. The decision quotes extensively from a March 1990 memorandum prepared for Wills by an attorney at the British law firm Lovell, White & Durrant (“Lovell”), in its capacity as counsel for Wills and BATCo (the “Foyle Memorandum” or “the memo”). See id. The Foyle Memorandum advises Wills on modifying its document retention policy in"
] |
as a defendant charged by the Commonwealth with the offense of raping the prosecutrix. Relator’s counsel was present at these confrontations. A pretrial identification confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification that it denies an accused due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Not merely a lineup but any pretrial confrontation must be scrutinized for its fairness. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). That a pretrial confrontation is unintentionally unfair or even accidental in its occurrence does not render it immune from constitutional infirmity. Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1180 (1969); REDACTED The preliminary hearing is particularly fraught with the dangers of suggestibility, intentional or otherwise, for it is in this setting that an accused is frequently presented to the victim or witness as one whom the State suspects as being guilty of an offense and, as here, guilty of the very offense to which the victim has been subjected or which the witness has observed. See Mason v. United States, supra, and United States v. Terry, supra. Where a proposed in-court identification is tainted by a prior constitutionally infirm pretrial confrontation, the proposed in-court identification is inadmissible in evidence. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149. And, if the defendant makes a timely challenge to
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[
"trial. Another identification problem raised at the suppression hearing involved an accidental confrontation between complainant and the appellant at a preliminary hearing shortly after the appellant’s arrest. This confrontation took place while complainant, accompanied by a police detective, was waiting for the hearing to begin in a hallway of the Court of General Sessions. The appellant was being led into the courtroom by a marshal, and as they passed near the complainant she spontaneously identified Terry as her assailant to the detective who was waiting with her. Cross-examination of the detective indicated that it was possible he had exchanged remarks with appellant immediately prior to this identification, so it, too, was excluded from evidence. At the same time, the court ruled that these two impermissible identifications did not preclude the complainant from making an independent in-court identification based upon her observation of the attacker at the time of the assault. In support of this result, the court pointed out that the complainant was in close proximity to her attacker for a period of approximately fifteen minutes, both on a public street in broad daylight and in a well-lighted room; the court also noted that she gave police a consistent description of her attacker, and had not wavered in her identification at any stage of the proceedings (Tr. 102). At the trial she unhesitatingly identified Terry as the man who had at tacked her (Tr. 102). We find that the trial court correctly assessed the relevant factors enumerated in United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and United States v. O’Connor, 282 F.Supp. 963, 965-966 (D.D.C.1968), aff’d, 137 U.S.App.D.C. 76, 420 F.2d 644 (D.C.Cir. Dec. 19, 1969), and that the showing of independent source is at least as strong as that which was upheld by this court in Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (D.C.Cir. July 9, 1969). With the two pretrial identifications excluded from evidence, there was little that the Government could have introduced as corroboration for the appellant’s identity other than the testimony of a police officer"
] |
[
"coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. (Footnote omitted.) If this stood alone, it would strongly support a conclusion that the Court intended the “very substantial likelihood of misidentification” test to apply to show-up or photographic identifications that were impermissibly and unnecessarily suggestive as well as to later out-of-court or in-court identifications. However, Mr. Justice Powell also said, 409 U.S. at 198-99, 93 S.Ct. at 382: What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. . . . The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.",
"in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” 388 U.S. at 301-302, 87 S.Ct. at 1972 (emphasis supplied). The Court went on to say that “The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned.” It affirmed defendant’s conviction only because the record revealed that “the showing of Stovall to [the eyewitness-victim] in an immediate hospital confrontation was imperative.” Id. at 302, 87 S.Ct. at 1972 (emphasis supplied). The clear thrust of Stovall is that, without justifying circumstances, a one-man showup is too unnecessarily suggestive to satisfy due process. A lineup must be conducted unless it will necessitate a delay which is likely to make identification impossible or less reliable; In Wade the Court pointed out that cross-examination at trial “cannot be viewed as an absolute assurance of accuracy and reliability [in courtroom identifications]. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself.” 388 U.S. at 235, 87 S.Ct. at 1936. In other words, we must insist on the fairest feasible identification procedures and not rely on the courts’ ability to gauge the psychological effects of more suggestive procedures. In light of Stovall and Wade, I must reject the majority’s assertion that I am making a new “constitutional pronouncement.” I would remand to the District Court to give the Government an opportunity to show that the failure to hold a lineup was justified. Due process requires this showing. . See United States v. Wade, 388 U.S. 218, 229-230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and materials cited therein. . In Stovall",
"the lineup is not open to the defendant. Still open, however, is defendant’s right to prove “that the confrontation resulted in such unfairness that it infringed his right to due process of law.” Stovall v. Denno, supra, at 299, 87 S.Ct. at 1971. The confrontation must be “so unnecessarily suggestive and conducive to irreparable mistaken identification” based upon “the totality of the circumstances surrounding it” that due process is denied. Id. at 302, 87 S.Ct. at 1972. In Stovall, the Supreme Court upheld a hospital bed identification of the defendant, who was the only person presented. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court applied the same test to a federal prosecution as it had in the ha-beas corpus review of the state court conviction in Stovall. Before apprehension, Simmons was identified from photographs and the witnesses later made in-court identifications. After examining the circumstances, discussing proper identification procedure, pointing out the hazards inherent in improper procedures, and admitting that the identification process was far from ideal, the Supreme Court determined the procedure was not such as to deny Simmons due process of law. The conviction was affirmed. The Court states: “[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 [87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199], and with decisions of other courts on the question of identification by photograph.” 390 U.S. 377, 384, 88 S.Ct. 967, 971. Facts significant in Simmons include the statement that the robbery took place in broad daylight; that the witnesses were able to plainly see the person identified as the robber for periods up to five minutes, and that the witnesses, notwith standing vigorous cross-examination, entertained no doubt about the",
"purposes of our analysis we assume that it was in fact suggestive to an unnecessary degree. It is firmly established, however, that due process does not require the suppression of all in-court identifications following unnecessarily suggestive pretrial identification procedures. United States v. Field, 625 F.2d 862 (9th Cir.1980). Rather, we must determine whether, in light of the totality of surrounding circumstances, the pretrial “identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). “It is the likelihood of misidentifieation which violates a defendant’s right to due process .... ” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Thus, even unnecessarily suggestive pretrial procedures do “not violate due process so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382, the Supreme Court set forth certain factors to be considered by determining whether identification testimony possesses sufficient indicia of reliability to justify its admission at trial: The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Against these five factors must be weighed the “corrupting effect” of the suggestive pretrial identification procedure. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253. In evaluating this corrupting effect, we give consideration to “the conduct on the part of the government agents tending to focus the witness’ attention on the defendant.” United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978) (footnote omitted). Applying the above analysis to the present case, we conclude that the identifi cation testimony of Larry Hill was",
"due process, a criminal defendant has the right not to be subjected to suggestive police identification procedures that create a “very substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). This does not mean that all suggestive identification procedures raise a constitutional issue. First, the challenged procedure must be “unnecessarily suggestive.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Second, it must lead to such inherent unreliability that it is inappropriate for a jury to determine the weight to give the evidence; unnecessary suggestiveness in and of itself does not violate due process. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, the “central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. 375. This reflects the fact that, “the primary evil to be avoided is a very substantial likelihood of irreparable misidentification.” Id. at 198, 93 S.Ct. 375 (internal quotations omitted); see also Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243 (“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony”). There was also relevant federal law that was unclear at the time petitioner’s state court conviction became final. In Neil v. Biggers and Manson v. Brathwaite, the Supreme Court set forth a list of five factors for lower federal courts to balance against suggestiveness when deciding whether a pre-trial identification, in addition to being “unnecessarily suggestive,” creates a “very substantial likelihood of irreparable misidentification.” Specifically, Justice Blackmun wrote in Brathwaite: The factors to be considered are set out in Biggers. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.",
"lineup.” Id., at 5-6. Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidenti-fication. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of mis-identification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U. S. 263, 273 (1967); Mapp v. Ohio, 367 U. S. 643 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when",
"based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. Thus, an in-court identification is inadmissible only if the lineup is unnecessarily suggestive — i. e., there is a very substantial likelihood of misidentification — and from the totality of the circumstances the suggestive out-of-court identification results in a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 1972, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.. Thus, the test utilized to determine whether an in-court identification is admissible is: (1) whether the confrontation procedure was unnecessarily suggestive; and, if so, (2) whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. In Neil the Supreme Court, in holding that a rape victim’s in-court identification and her testimony pertaining to her station-house showup identification were admissible, even though the station-house showup may have been suggestive, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, supra, 390 U.S., at 384, [88 S.Ct., at 971.] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentifieation which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. Suggestive confrontations - are disapproved because they increase the likelihood of misidentifieation, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentifieation is",
"defendant’s conduct. Accordingly, this proposition of law is not well-taken. Jells, 559 N.E.2d at 472. B. Legal Standard Pretrial identification procedures violate due process where the procedures are “unnecessarily suggestive and conducive” such that they risk “irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court held that identifications obtained through suggestive means may still be admissible if they are reliable. Id. at 196-97, 93 S.Ct. 375. In determining whether they are reliable, “the central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. 375. [T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Id. at 199-200, 93 S.Ct. 375. C. Analysis Although it is clear that the pretrial identification procedure was unduly suggestive, the Ohio Supreme Court did not unreasonably determine that the iden- tifícation was nonetheless reliable. The five factors to be weighed in determining reliability are: (1) the opportunity of the witness to view the perpetrator during the crime; (2) the witness’s degree of attention to the perpetrator; (3) the accuracy of the witness’s prior descriptions of the perpetrator; (4) the level of certainty demonstrated by the witness when identifying the suspect; and (5) the length of time between the crime and the identification. Neil, 409 U.S. at 199-200, 93 S.Ct. 375. We weigh these factors against the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Despite the impermissibly suggestive procedure, Wright’s identification of Jells was still sufficiently reliable. At trial, Wright testified that he was working as a security",
"Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see also, Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). The trial court, prior to admitting Doyle’s in-court identification testimony, held a hearing on petitioner’s motion to suppress during the course of Doyle’s testimony, but out of the presence of the jury (Tr. pp. 270-332) and suppressed the identifications made at the line-up, apparently concluding that the petitioner’s constitutional rights under Wade had been violated (Tr. p. 325). In considering the motion to suppress any in-court identifications, the trial court made several statements crucial to the issues herein. In response to a question by defense counsel as to whether the defendant had the burden of establishing that the improper line-up did in fact taint the in-eourt identification, the court responded, “It is the burden of the defense to do that.” (Tr. p. 154). When counsel for both sides suggested at the hearing that the burden of proof was upon the other, the court stated,",
"such improper lineups is inadmissible at trial. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The United States Supreme Court has been unwilling to prohibit the use of photographs for identification purposes, but has noted that the use of a single photograph may sometimes be so suggestive as to give rise to a substantial possibility of misidentification. In such a case, the identification will be treated in the same fashion as an improper lineup. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Where, however, a witness has an independent recollection of the accused arising from events other than the improper confrontation, an in-court identification may be permitted. In Simmons v. United States, supra, the court refused to hold that an in-court identification was necessarily tainted by improper pretrial use of photographs, stating (390 U.S. 377, 384, 88 S.Ct. 967, 971): “Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identifications at trial * * * will be set aside on that ground only if the * * procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irrepairable misidentification.” In determining whether there are reliable indications that a witness in fact has an independent recollection of the accused and is not basing his present recollection on what he saw at an improper lineup, courts have considered the following: (1) the length of time and the conditions under which a witness was able to observe the perpetrator during the commission of the crime: United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704 (1970); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016 (1969); Long v. United States, 137 U.S.App.D.C. 311, 424 F.2d 799 (1969); United States v. McNamara, 422 F.2d 499 (1st Cir.), cert. denied, 397 U.S. 1056, 90 S.Ct. 1403, 25 L.Ed.2d 674 (1970); United"
] |
the plan’s administrators or the recipients of its benefits. Stock option plans have been widely accepted as an effective means of re-invigorating executives whose profit-seeking zeal has been sapped by high personal tax rates. From the employee’s perspective, options have the advantage of allowing income to be deferred, with the gain ultimately realized taxed as capital gains. From the corporation’s standpoint, stock option plans may generate greater returns than simple pay increases by encouraging management to secure a proprietary interest in the corporation, and by tying executive compensation to corporate earnings and stock market performance. Moreover, by conditioning the employee’s right to exercise options on continued service to the corporation, stock option plans may help retain desired key personnel. See generally, REDACTED The exchange of higher for lower cost options violated the plan The creation and administration of stock option plans by corporations chartered in Delaware — as Revlon is — are governed by 8 Del.Code Ann. § 157, which provides: Subject to any provisions in the certificate of incorporation, every corporation may create and issue, whether or not in connection with the issue and sale of any shares of stock or other securities of the corporation, rights or options entitling the holders thereof to purchase from the corporation any shares of its capital stock of any class or classes, such rights or options to be evidenced by or in such instrument or instruments as shall be approved by the board of directors.
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[
"a year. These annual limitations were eliminated from the 1973 Program. Secondly, the 1973 Incentive Program expressly provided that an option granted under either plan may include a stock appreciation right, issued either at the time of grant of the option, or at a later date by an amendment to the option. The stock appreciation right (“SAR”) is described as follows in Section XII of the 1973 Proxy Statement (p. 50): “A stock appreciation right shall entitle the optionee to surrender to the Corporation unexercised the option in which it is included, or any portion thereof, and to receive from the Corporation in exchange therefor that number of shares having an aggregate value equal to the excess of the value of one share over the purchase price per share specified in such option times the number of shares called for by the option, or portion thereof, which is so surrendered.” The corporation is entitled to elect to settle its obligation by the payment of cash equal to the aggregate value of the shares it would otherwise have to deliver. Section XII provides that a SAR is exercisable only to the extent that the option in which it is included is still exercisable. With a modification not relevant here, the closing price of Exxon shares on the New York Stock Exchange on the trading day preceding the date of exercise of the SAR is used for purposes of valuation. To understand these incentive programs, their effect and purpose, some general observations may be helpful. The larger, more profitable American corporations which have achieved their success against overwhelming international competition, have done so through the efforts of highly skilled, experienced managerial and executive personnel who generally have little or no ownership of the business and no share in the customary rewards of shareholders. Keeping the high level of motivation of these employees, retaining their loyalty in the future, and protecting their skills, experience and specialized knowledge from raids by competitors or others, is the biggest single responsibility of top management, which naturally is also interested in its own compensation. Vengeful, progressive income"
] |
[
"analysis.”) (citing Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir.2003)). A. Breach of Contract and Promissory Estoppel 1. Affirmative Misrepresentation At the heart of both House’s breach of contract and promissory estoppel claims is the proposition that the Company represented to him that he would have ten years to exercise his ISOs. Even if the Company had affirmatively represented to House that he had ten years in which to exercise his ISOs even after terminating his employment, any such representations would have been contrary to the Plan approved by the Company’s board of directors, which only permitted a three-month period for the exercise of House’s ISOs after departure. As we describe below, Delaware law requires that the terms and conditions of stock options be governed by a written, board-approved Plan. 2. Delaware Corporate Law Pursuant to Delaware Law, “every corporation may create and issue ... rights or options ... such rights or options to be evidenced by or in such instrument or instruments as shall be approved by the board of directors.\" Del.Code Ann. tit. 8, § 157(a)(emphasis added). Delaware courts have observed that this rule was designed to serve the important policy goal of “preserving] the board’s broad authority over the corporation and ... protecting] the certainty of investors’ expectations regarding stock.” Grimes v. Alteon, Inc., 804 A.2d 256, 258 (Del.2002); see also STAAR Surgical Co. v. Waggoner, 588 A.2d 1130, 1136 (Del.1991) (“The issuance of corporate stock is an act of fundamental legal significance having a direct bearing upon questions of corporate governance, control and the capital structure of the enterprise. The law properly requires certainty in such matters.”). Here the Plan’s explicit three-month time limit for the exercise of ISOs held by employees who resign would thus supersede any other non-board-approved communications about the expiration of the ISOs. We note that Delaware courts have adhered to statutory requirements respecting stocks when denying claims for equitable relief — “even in situations when that might generate an inequitable result.” Liebermann v. Frangiosa, 844 A.2d 992, 1004 (Del.Ch.2002); see also STAAR Surgical Co., 588 A.2d at 1137 (directing that",
"actually granted, the corporation manipulates the option by listing an earlier date on which the market price of the stock was lower, which accordingly sets a lower (and more advantageous for the option holder) exercise price. See id. ¶¶ 3-4. Staples, a Delaware corporation with its principal executive offices in Framingham, Massachusetts, id. ¶ 23, grants stock options to strengthen its ability to attract and retain key officers, senior managers, and employees who are expected to contribute to the company’s growth and success. Id. ¶¶ 9, 12, 75. It does so pursuant to two stockholder-approved plans: the 1987 Stock Option Plan and the 1992 Equity Incentive Plan (collectively, “the Plans”). Id. ¶ 74. The Plans state that the exercise price of a stock option “may not be less than 100% of the fair market value of the Company’s Common Stock” on the date of the grant. Id. ¶¶ 77, 80. Fair market value is defined as “the last reported sale price per share of such series of Common Stock on the Nasdaq National Market on the date of grant.” Id. ¶ 80. Staples’s Compensation Committee has the sole authority to select the date on which a stock option is granted. Id. ¶ 87. Its decisions are made with the knowledge and approval of the Board of Directory (“Board”). Id. ¶ 83. Between 1994 to 2003, the Compensation Committee approved fifty-one stock option grants. Id. ¶ 85. Of these, eleven coincided with dates having particularly low stock prices. Id. In 2006, the practice of backdating stock options was publicly identified, spurring the Securities and Exchange Commission (“SEC”) to investigate the phenomenon. See id. ¶¶ 5, 10. Staples was not a target of any government inquiry, but it, like many other companies, decided to conduct an internal review of its accounting procedures. See id. ¶ 13, 70. On November 14, 2006, Staples released the results of its review of stock option granting practices from 1997 to the third quarter of 2006. Id. ¶ 13. As a result of the audit, Staples “recorded a $10.8 million expense ($8.6 million net of taxes) ...",
"measured by the difference between the option price and the fair market value of the stock. The corporation enjoys an income tax deduction for this same amount, but receives no deduction in connection with exercise by an employee of a qualified option. Neither the grant nor the exercise of a qualified or non-qualified option has any effect on the corporation’s stated earnings or its profit and loss statement. The stock delivered to the employee comes from the capital account; in the case of a qualified option, that account is debited for the market value of the shares and then credited for the amount of the cash paid in by the employee, so that the net debit or decline in corporate net worth is the spread between the option price of the shares and their market value. For a non-qualified option, the same adjustment is made with respect to the capital account, except that the decline in net worth is less, because the tax deduction which the corporation receives upon exercise is also credited to the capital account. In October 1970 the Board of Directors amended the 1968 Stock Option Plan. The purpose of this amendment, authorized by Section XX of the Program, was to take advantage of an IRS ruling which permitted the issuance of combination options. Such an option is a simultaneous grant of a qualified and a non-qualified option for the same underlying shares. While only one of the options could actually be exercised as to any particular optioned share, and once exercised, would reduce pro tanto the number of shares available under the other type of option, the combination option gives the individual greater flexibility in planning the tax and other financial consequences. He can defer his choice between a qualified or non-qualified option from the date of grant to time of exercise. However, due to a change in tax rulings, no combination options were issued by Exxon after January 1973. Of the 1,500,000 shares authorized under the 1968 Incentive Program,- 1,485,090 shares (approximately 99%) had been awarded by the end of 1972, five months prior to",
"On July 8, 1974, the Corporation publicly disclosed its intention to make a tender offer for the purchase of 2,300,000 of its shares at $25 per share, whereupon public trading in the stock resumed. The closing price for Zapata on July 8 was $24.50 per share. The purpose and effect of the eleventh-hour amendments to the stock option plan was to permit the Corporation’s six senior officers to benefit at Zapata’s expense. Under applicable federal tax laws an employee who exercises stock options such as those received by the six senior officers realizes ordinary income in the amount of the difference between the fair market price of the stock at the time the option is exercised and the option price paid for the stock (the “bargain spread”). I.R.C. § 83(a), Treas.Reg. § 1.421-6(d); see Commissioner of Internal Revenue v. LaBue, 351 U.S. 243, 76 S.Ct. 800, 100 L.Ed. 1142 (1956). The corporation, on the other hand, is entitled to deduct the bargain spread as a business expense, it being considered a form of compensation to its employees. I.R.C. § 83(h), Treas.Reg. § 1.421-6(f); see Divine v. Commissioner of Internal Revenue, 500 F.2d 1041, 1050-57 (2d Cir. 1974). By accelerating the exercise date of the last installment of the options and thus allowing the six officers to exercise their options prior to the foreseen imminent rise in the market price of Zapata stock, the Board permitted the six officers to save themselves a considerable amount of tax liability, and prevented the Corporation from enjoying a correspondingly higher tax deduction, assuming the six officers would have exercised their f > options on or after the originally scheduled date, July 14, 1974. Given the fact that the market price immediately after the announcement of the tender offer became, as anticipated, more than double the option price, this appears to be a safe assumption. DISCUSSION We first turn to appellants’ contention that defendants violated Rule 10b-5 by modifying Zapata’s stock option plan so that they could exercise their options immediately and profit at the Corporation’s expense. The Exchange Act “protects corporations as well as",
"were conservative in their expectations and predictions. To encourage such men, they are often granted stock options with the consent of the shareholders. While stock options now have a large attraction for their tax avoidance advantages (M. W. McCarthy, Chapter on Top Management’s Stake in the Securities Market, in H. B. Maynard, Top Management Handbook, 1040, 1048 (1960)), they still are granted on the assumption that the executives will retain and “increase their ownership interest” and that this will help motivate them to improve the company. A. P. Sloan, Jr., My Years With General Motors, 415 (1964). “Many stockholders feel that directors and officers should have a meaningful investment in the companies they manage. . . . The Exchange has encouraged the broadening of share-ownership through stock option . . . plans.” New York Stock Exchange, The Corporate Director and the Investing Public, 11 (1965). It is significant that the defendants in the case at bar, as a group, and particularly those actually running the corporation, substantially increased their holdings during the period about which plaintiffs complained. To take advantage of these options many managers must borrow. Some —as in the instant case — engage in a conservative plan of selling part of their stock after they have held their shares for six months to take advantage of tax benefits and to avoid liability under section 16(b) of the Securities Exchange Act, paying off their loans and exercising new options so that they gradually build up their holdings without assuming huge debts. Id. at 12. Cf., Abrams v. Occidental Petroleum Corp., 450 F.2d 157 (2d Cir. 1971). These insiders are also encouraged to issue information and to open their doors to analysts so that relations with money markets will remain good and so that money for plant expansion — amounting to yearly expenditures of hundreds of millions of dollars for some companies —will be available when needed. New York Stock Exchange, The Corporate Director and The Investing Public, 4-5 (1965); Report of the Special Study of the Securities Markets and Exchange Commission, H.R.Doe.No.95, 88th Cong., 1st Sess.; pt. 3, 65",
"the remaining claims, insofar as they are part of the same case or controversy from which the federal claim arises. B. Facts For the purposes of a motion to dismiss, this Court accepts allegations in the com plaint as true and draws all inferences in favor of the plaintiff. Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002). The facts below are recited in light of this standard. A stock option is the right to purchase stock in a corporation for a specified period of time at a fixed price (the “exercise price”). Am. Compl. [Doc. 35] ¶ 3. When the market price exceeds the exercise price, an option holder can profit by exercising his option, purchasing stock from the corporation, and reselling it at the (higher) market price. See id. The exercise price generally equals the stock’s market price on the date that the stock option is granted. Id. In order to increase the value of stock options, however, “backdating” is sometimes used. Instead of recording the date on which the option was actually granted, the corporation manipulates the option by listing an earlier date on which the market price of the stock was lower, which accordingly sets a lower (and more advantageous for the option holder) exercise price. See id. ¶¶ 3-4. Staples, a Delaware corporation with its principal executive offices in Framingham, Massachusetts, id. ¶ 23, grants stock options to strengthen its ability to attract and retain key officers, senior managers, and employees who are expected to contribute to the company’s growth and success. Id. ¶¶ 9, 12, 75. It does so pursuant to two stockholder-approved plans: the 1987 Stock Option Plan and the 1992 Equity Incentive Plan (collectively, “the Plans”). Id. ¶ 74. The Plans state that the exercise price of a stock option “may not be less than 100% of the fair market value of the Company’s Common Stock” on the date of the grant. Id. ¶¶ 77, 80. Fair market value is defined as “the last reported sale price per share of such series of Common Stock on the Nasdaq National Market on",
"their shares at low-price point. Furthermore, if a corporate decision will have a materially detrimental impact on the director, but not the corporation or its stockholders, a director can be considered interested. Ibid. Thus, a decision now to correct the grant dates would have a detrimental impact on the directors by removing the financial benefit of the backdating. The director may be required to pay back the difference in price between the true grant date and the purported grant date. The directors may even face legal exposure. Accordingly, if plaintiffs can plead with particularity that the directors received backdated grants, those directors will be considered interested. In Ryan v. Gifford, 918 A.2d 341 (Del. Ch.2007), a Delaware court held that knowing approval of backdated option grants by a board majority, along with intentional failure to disclose them in required financial disclosures, would excuse demand. The Ryan plaintiffs relied heavily on empirical analysis that compared the annualized returns calculated from the purported grant dates versus the annualized returns for the stock itself. This method was a way to measure how much financial advantage the recipient gained from receiving allegedly backdated options. The purported grant dates yielded a return higher than the stock’s annualized return by a factor of ten. Additionally, the plaintiffs there alleged that stock options were not granted pursuant to an overall plan, but were granted sporadically. Here, plaintiff has retained an independent expert who performed statistical analyses of Zoran’s options granting practices. Plaintiff also pleads facts regarding the stock-option plans under which the relevant grants were made. A. Accounting Treatment of Stock Options. At all times relevant to this action, the reporting of expenses associated with stock options was governed by Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees,” and Financial Accounting Standards Board Principle No. 123. The operation of these rules was summarized in In re CNET Networks Inc. S’holder Deriv. Litig., 483 F.Supp.2d 947, 954-57 (N.D.Cal.2007). Briefly, whether or not a company must recognize a compensation expense for stock options depends on a comparison of the option’s price and the stock’s market",
"validity of the sale was challenged by the minority shareholders. The Chancellor stated: “ * * * An examination of the cases to which special attention is directed by the complainants in this connection will disclose that the personal advantage accruing to the majority is in some way derived from, or intimately associated with, the corporate assets themselves.” 120 A. 491. See, also, Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5, in which an employee of a corporation, acquiring knowledge in the course of his employment that the corporation secretly intended to purchase large blocks of its capital stock in the market, cannot use such information for his personal gain. Delaware also places a high fiduciary duty upon interlocking directorates regarding transactions between the corporations. Keenan v. Eshleman, 1938, 23 Del.Ch. 234, 2 A.2d 904, 120 A.L.R. 227. However, Cahall v. Lofland, supra, has been followed uniformly by federal courts in interpreting the Delaware law on this subject. See Zahn v. Transamerica Corp., supra, 162 F.2d 36, 40, and cases there cited; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., supra, 193 F.2d 666, 668, 669, 671. . 17 Fletcher, Cyclopedia Corporation §§ 8318, 8326. For visitatorial powers of a state over foreign corporations, see Sections 8425-8145. . Shares of stock are much like other chattels. Apparently, when the action attacks a transfer of a chattel on the ground of fraud, the law of the state where the chattel is at the time of transfer determines the substantial validity of the transfer. Restatement, Conflict of Laws, § 257 and Comment a, provide: “Whether a conveyance of a chattel which is in due form and is made by a party who has capacity to convey it is in other respects valid, is determined by the law of the state where the chattel is at the time of the conveyance. “Comment: “a. Illegality and fraud. The validity of a conveyance of an interest in a chattel alleged to be void between the parties for such reasons as illegality of the transfer or illegality of the consideration or other",
"by the broad exemptions of employee stock purchase options granted by Rule X-16B-3. To illustrate, Director Y of Company X has the right to exercise stock purchase options. Let us assume that Company X announces to the public an impending merger or the negotiation of a large government contract, the news of which stimulates a significant increase in the market price of X’s stock. Director Y, with no intention of defrauding the public or the corporation, immediately thereafter exercises his options and acquires a substantial amount of stock in X. Within a short time thereafter Director Y, through access to inside information, learns that the anticipated merger or contract has fallen through. Before this information is communicated to the public, Y sells his recently acquired stock at the market peak. The public is subsequently informed and the market price of X stock declines accordingly. It would seem to us that such an opportunity for profit-taking by insiders in a temporary and artificially stimulated market would be minimized, in accord with the purpose of section 16(b), by a requirement that insiders who acquire corporate stock by the exercise of employee options pursuant to a plan such as that at bar must retain their stock for at least six months after its acquisition or, in the event of their failure to do so, must account to the corporation for the profits resulting from the sale thereof. The defendants argue that it is “improbable” that an option grantee would sell shares within six months after exercising his option because he would thereby lose the favorable tax treatment provided for him by section 130A of the Internal Revenue Code of 1939, now 26 U.S.C. § 421. But the improbability that individual benefits may flow from usurped authority does not make the usurpation any more permissible. The possible inhibiting effects of tax provisions upon the security transactions of insiders is a matter completely apart from that of defining the power of the Securities and Exchange Commission to promulgate a regulation that may permit an abuse sought to be eliminated by section 16(b) of the very",
"annual grants of stock options. Under the 1968 Incentive Program, after a decision to award stock options had been made by the granting authority (COED or BCC), an employee with a base salary of $50,000. or more (raised in 1973 to $60,000.) was contacted by the- Executive Compensation Staff and was allowed to choose between accepting a qualified option, a non-qualified option, or between 1970 and 1972, a combination option. Employees with salary below $50,000. were awarded non-qualified options, except that between 1970 and 1972 they too were given the choice between non-qualified and combination options. Qualified options, which were designed to fit Section 422 of the Internal Revenue Code, had a term of five years from the date of grant. Upon exercise, if the individual held the acquired stock for more than three years, any gain on the ultimate sale or exchange of that stock would qualify for long-term capital gains treatment. Non-qualified options had a ten year term from the date of grant. Upon exercise of the option, the individual realizes ordinary income measured by the difference between the option price and the fair market value of the stock. The corporation enjoys an income tax deduction for this same amount, but receives no deduction in connection with exercise by an employee of a qualified option. Neither the grant nor the exercise of a qualified or non-qualified option has any effect on the corporation’s stated earnings or its profit and loss statement. The stock delivered to the employee comes from the capital account; in the case of a qualified option, that account is debited for the market value of the shares and then credited for the amount of the cash paid in by the employee, so that the net debit or decline in corporate net worth is the spread between the option price of the shares and their market value. For a non-qualified option, the same adjustment is made with respect to the capital account, except that the decline in net worth is less, because the tax deduction which the corporation receives upon exercise is also credited to the"
] |
appeal. I. Abandonment Authorization [1,2] Under 15 U.S.C. § 717f(b), no natural gas company may abandon all or any portion of any source rendered by means of facilities subject to the jurisdiction of the FERC without Commission approval. This provision has been most recently construed by the Supreme Court in California v. Southland Royalty Co., —— U.S. —— , 98 S.Ct. 1955, 56 L.Ed.2d 505, a case which is directly relevant to the issue before us. Southland Royalty restated the established rule that once natural gas is “dedicated” to interstate commerce under a certificate of public convenience and necessity, that gas may not be withdrawn from the interstate market without prior Commission approval. 98 S.Ct. at 1958, citing REDACTED 156, 80 S.Ct. 1392, 4 L.Ed.2d 1623. The Tribe asserts this rules is inapplicable in this case because their royalty gas has never been dedicated to the interstate market. Their argument is premised on the fact that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s
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[
"private contracts the only stabilizing factor under the Act. Not only does this reading have nothing to do with the integrity of private contracts which Mobile underwrote, but it makes a severe incursion into the sources of that stability of natural-gas prices and supply to which that decision gave confirmation. Our consideration of this, as well as the rest of petitioner’s arguments, leads us to reiterate as our holding the clear implication of what we recently said in Cateo: An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which “gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without, remedy to protect himself.” 360 U. S., at 389. That remedy he has, as the Court there said, in the “change” power -under § 4 (d) when his contract has expired or where his contract permits its use during its term. Under a similar Act, this Court has held to the same effect as we hold today. Pennsylvania Water & Power Co. v. Federal Power Comm’n, 343 U. S. 414, 423-424. II. Once the power of the Commission to issue the certificate without time limitation is established, the other objections of the petitioner fall readily. It is contended that the Commission’s order, by requiring the petitioner to supply gas beyond the term of its contract, may, by requiring petitioner to produce more gas than it has contemplated, offend the provision of § 1 (b) of the Act that the Act does not apply “to the production or gath ering of natural gas.” The point was not raised before the Commission, and accordingly is not for our consideration here; and we might say in any event that the point is not for evaluation in this certification proceeding, but rather on the specific"
] |
[
"that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s arguments. The respondents in Southland made the identical claim as is made by the Tribe in this case, that is, “ ‘no man can dedicate what he does not own.’ ” 98 S.Ct. at 1960. The Supreme Court rejected this argument on the grounds that “dedicating gas to the interstate market . . . does not effect a gift or even a sale of that gas, but only changes its regulatory status.” Id. (footnote omitted). The basic thrust of the Court’s opinion was that the service obligation imposed by the Natural Gas Act is paramount to any private contractual arrangement. This obligation, once imposed, requires the flow of gas to the interstate market until abandonment authorization has been obtained. Id. at 1958. We hold that the FERC did not err in that portion of its ruling regarding abandonment. II. Price Ceiling Under applicable FERC regulations, a small producer is allowed to charge a higher price for its gas than the price ceiling set by the Commission for large producers. 18 C.F.R. § 157.40(c). The higher rates are in recognition of the generally higher risks, higher costs, and lower production of the small company. See generally FPC v. Texaco Inc., 417 U.S. 380, 94 S.Ct. 2315, 41 L.Ed.2d 141. In anticipation of potential abuse, however, the FERC provided that the higher rates would not be available to a small producer whose gas reserves “were acquired by the purchase of developed reserves in place from a large producer.” 18 C.F.R. § 157.40(c) (emphasis added). In the order before us the FERC held that the Tribe’s",
"an obligation to serve the interstate market because it was never ‘dedicated’ to an interstate sale” since “no man can dedicate what he does not own,” the Court pointed out that “gas which is ‘dedicated’ pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the ‘just and reasonable’ rates specified by § 4(a) of the Act.” California v. Southland Royalty Co., 436 U.S. at 527, 98 S.Ct. at 1960, 56 L.Ed.2d at 512. Thus it is clear that by “dedicating” gas to the interstate market a producer does not, by such dedication alone, dispose of gas that belongs to another, but only establishes its regulatory status. An attempt to literally apply the black letter concepts of Tiffany cannot be successful where inimical to the public interests protected by the Natural Gas Act discussed earlier. The dedication of all the gas to interstate commerce, done pursuant to the certificate issued under the i960 contract, fixed, as well, the applicable date for determining the rate chargeable for the subject gas. “Under the Commission’s rate structure, the applicable maximum price for a producer’s sale is determined ... by the moment at which the gas was first dedicated to the interstate market . . .” Permian Basin, 390 U.S. at 795, 88 S.Ct. at 1375. In short, since the 1960 contract dedicated the gas to interstate commerce and subjected it to the Commission’s regulatory authority, it follows that for regulatory purposes the gas is being sold under the 1960 contract, as the Commission ruled. The interpretation made is consistent with the legislative purpose of the Natural Gas Act. A contrary interpretation could open the door to a flood of attempts to defeat the regulatory purpose of the Commission by use of short term contracts. [T]he way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date,",
"public convenience and necessity, however, did not alone constitute dedication. Gas reserves under the certificate became dedicated to interstate commerce when physical delivery of gas commenced pursuant to the certificate. Tenneco Exploration, Ltd. v. FERC, 649 F.2d 376, 379-80 (5th Cir. 1981); Falcon Petroleum v. FERC, 642 F.2d 780, 784 (5th Cir. 1981); Conoco, Inc. v. FERC, 622 F.2d 796, 797 (5th Cir. 1980); Wessely Energy Corp. v. Arkansas Louisiana Gas Co., 593 F.2d 917, 920 (10th Cir. 1979) (per curiam). One of the most controversial decisions concerning the scope of the dedication obligation is California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). In that case, a producer acquired a fifty-year oil and gas lease, entered into a gas purchase contract with an interstate pipeline, obtained a certificate from the FPC, and initiated deliveries of gas. When the lease expired, the producer-lessee’s interest in the remaining reserves reverted to the owners of the re-versionary mineral interest. The reversion-er contracted to sell its share of production to an intrastate pipeline, but the FPC held that the previous interstate sales dedicated all the gas covered by the original lease, including the gas remaining at the termination of the lease, and therefore the gas could not be diverted to the intrastate market without Commission abandonment authorization. On appeal, the Fifth Circuit held that under Texas property law the producer-lessee could not dedicate the portion that the reversioners would own upon termination of the lease. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976). The Supreme Court reversed. It held that the earlier dedication covered all the natural gas reserves beneath the tract, and that diversion of the gas had to be authorized by the Commission. The majority relied on two alternative rationales to hold that the reversioners’ interest remained dedicated. 436 U.S. at 525-31, 98 S.Ct. at 1958-61. The first rationale is the successor in interest doctrine: if a lessee initiated an interstate sale pursuant to a certificate, all subsequent owners of the mineral rights, including leasehold reversioners, are bound by the",
"order was under review would not constitute a dedication of those reserves to the interstate market. El Paso Natural Gas Co., 54 F. P. C. 2821, 11 P. U. R. 4th 488 (1975). On respondents’ petition for review, the Court of Appeals for the Fifth Circuit reversed. Southland Royalty Co. v. FPC, 543 F. 2d 1134 (1976). The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and other respondents might own upon expiration of the lease. Because of the importance of the question presented to the authority of the Federal Power Commission, now the Federal Energy Regulatory Commission, we granted the petition for certiorari. 433 U. S. 907. We reverse. The fundamental purpose of the Natural Gas Act is to assure an adequate and reliable supply of gas at reasonable prices. Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 147, 151-154 (1960); Atlantic Refining Co. v. Public Serv. Comm’n of New York, 360 U. S. 378, 388 (1959). To this end, not only must those who would serve the interstate market obtain a certificate of public convenience and necessity but also, under § 7 (b) of the Act: “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the con tinuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” 15 U. S. C. § 717f (b) (1976 ed.). The Commission may therefore control both the terms on which a service is provided to the interstate market and the conditions on which it, will cease: “An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the",
"own industrial needs. The Tribe objects to both of these requirements 6n appeal. I. Abandonment Authorization [1,2] Under 15 U.S.C. § 717f(b), no natural gas company may abandon all or any portion of any source rendered by means of facilities subject to the jurisdiction of the FERC without Commission approval. This provision has been most recently construed by the Supreme Court in California v. Southland Royalty Co., —— U.S. —— , 98 S.Ct. 1955, 56 L.Ed.2d 505, a case which is directly relevant to the issue before us. Southland Royalty restated the established rule that once natural gas is “dedicated” to interstate commerce under a certificate of public convenience and necessity, that gas may not be withdrawn from the interstate market without prior Commission approval. 98 S.Ct. at 1958, citing Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 156, 80 S.Ct. 1392, 4 L.Ed.2d 1623. The Tribe asserts this rules is inapplicable in this case because their royalty gas has never been dedicated to the interstate market. Their argument is premised on the fact that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s arguments. The respondents in Southland made the identical claim as is made by the Tribe in this case, that is, “ ‘no man can dedicate what he does not own.’ ” 98 S.Ct. at 1960. The Supreme Court rejected this argument on the grounds that “dedicating gas to the interstate market . . . does not effect a gift or even a sale of that gas, but only changes its regulatory status.” Id. (footnote omitted). The basic thrust of the Court’s opinion was that the service obligation imposed",
"assigned the leases to International and possessed only an overriding royalty interest and an option to convert to a working interest at some uncertain future date. International, “having full ownership of the leasehold interest, had the right to dedicate, which it did, its entire interest to interstate commerce.” Phillips Petroleum Co. v. Federal Power Commission, 556 F.2d 466, 470 (10th Cir. 1977). “The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate.” California v. Southland Royalty Co., 436 U.S. at 525, 98.S.Ct. at 1959, 56 L.Ed.2d at 511. Moreover, the dedication of the entire gas reserve was for an unlimited period of time not affected by the length of the contract and interstate sales can not be discontinued without express authorization by the Commission. The Commission reasonably concluded that under the statute the obligation to continue service attached to the gas, not as a matter of contract but as a matter of law, and bound all those with dominion and power of sale over the gas, including the lessor to whom it reverted. . Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission’s permission. California v. Southland Royalty Co., 436 U.S. at 526-527, 98 S.Ct. at 1959-60, 56 L.Ed.2d at 512 (emphasis in original). Murphy claims that this does irreparable harm to property law in that it would permit one to dedicate gas that was owned by another. Murphy’s contention is that the gas could not have been previously dedicated, since Southwest, the farmout recipient, had no ownership interest in the gas that permitted it either to contract to sell or to dedicate it. This argument was expressly rejected by the Supreme Court in California v. Southland Royalty Co. There a lessee for a term of years sold gas in interstate commerce and accepted a certificate of unlimited duration from the FPC. In subsequent rate litigation, in countering the argument that the gas at issue “was never impressed with",
"to whom it reverted. . Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission’s permission. California v. Southland Royalty Co., 436 U.S. at 526-527, 98 S.Ct. at 1959-60, 56 L.Ed.2d at 512 (emphasis in original). Murphy claims that this does irreparable harm to property law in that it would permit one to dedicate gas that was owned by another. Murphy’s contention is that the gas could not have been previously dedicated, since Southwest, the farmout recipient, had no ownership interest in the gas that permitted it either to contract to sell or to dedicate it. This argument was expressly rejected by the Supreme Court in California v. Southland Royalty Co. There a lessee for a term of years sold gas in interstate commerce and accepted a certificate of unlimited duration from the FPC. In subsequent rate litigation, in countering the argument that the gas at issue “was never impressed with an obligation to serve the interstate market because it was never ‘dedicated’ to an interstate sale” since “no man can dedicate what he does not own,” the Court pointed out that “gas which is ‘dedicated’ pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the ‘just and reasonable’ rates specified by § 4(a) of the Act.” California v. Southland Royalty Co., 436 U.S. at 527, 98 S.Ct. at 1960, 56 L.Ed.2d at 512. Thus it is clear that by “dedicating” gas to the interstate market a producer does not, by such dedication alone, dispose of gas that belongs to another, but only establishes its regulatory status. An attempt to literally apply the black letter concepts of Tiffany cannot be successful where inimical to the public interests protected by the Natural Gas Act discussed earlier. The dedication of all the gas to interstate commerce, done pursuant to the certificate issued under the i960",
"natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from FERC. Section 7(b) of the Act, 15 U. S. C. § 717f(b), obligates certificated producers to continue supplying gas in the interstate market until FERC authorizes an abandonment. See United Gas Pipe Line Co. v. McCombs, 442 U. S. 529 (1979); California v. Southland Royalty Co., 436 U. S. 519, 523-524 (1978). Although the NGPA eliminated FERC’s authority to control abandonment of deregulated gas, “old” Hugoton gas remains under FERC’s § 7(b) control. Appellant’s claims are, first, that a producer’s available reserves are a factor in FERC’s decision whether to certificate interstate service, and that an abandonment of gas without FERC’s approval undercuts FERC’s certification process; and, second, that permanent cancellation of underages under paragraph (p) will lead to drainage from reserves dedicated to interstate commerce to wells operated by currently overproduced operators who supply the intrastate market, thus effectuating the permanent abandonment of gas reserves certificated to the interstate market. Insofar as appellant’s argument is that cancellation of underages pursuant to paragraph (p) will work an abandonment through the noncompensable drainage of dedicated reserves, and that Kansas therefore regulates in a field Congress has fully occupied, it is plainly meritless. This is so even if it is assumed that permanent cancellation of underage will in fact occur under paragraph (p), and that the KCC’s belief that purchasers will instead increase their takes proves to have been too optimistic. The KCC’s regulation governs the rights of producers to take gas from the Hugoton field, and determining rates of production is a matter squarely within the State’s jurisdiction under NGA § 1(b). Supra, at 510-511. FERC’s abandonment authority necessarily encompasses only gas that operators have a right under state law to produce. Appellant’s premise — that the reserves of dedicated leases may not be abandoned without FERC approval — thus fails to support the conclusion it draws, for exactly what the producible reserves underlying a lease at any given moment consist in is a question of state law, settled in Kansas by",
"an intrastate pipeline, but the FPC held that the previous interstate sales dedicated all the gas covered by the original lease, including the gas remaining at the termination of the lease, and therefore the gas could not be diverted to the intrastate market without Commission abandonment authorization. On appeal, the Fifth Circuit held that under Texas property law the producer-lessee could not dedicate the portion that the reversioners would own upon termination of the lease. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976). The Supreme Court reversed. It held that the earlier dedication covered all the natural gas reserves beneath the tract, and that diversion of the gas had to be authorized by the Commission. The majority relied on two alternative rationales to hold that the reversioners’ interest remained dedicated. 436 U.S. at 525-31, 98 S.Ct. at 1958-61. The first rationale is the successor in interest doctrine: if a lessee initiated an interstate sale pursuant to a certificate, all subsequent owners of the mineral rights, including leasehold reversioners, are bound by the dedication obligation of the original lessee as successors in interest to the working interest of the dedicating lessee. Alternatively, because the gas continued to flow in interstate commerce at the termination of the lease, that flow constituted a service that the reversioner can withdraw only with Commission approval. The Southland decision was handed down while this case was still under submission in the district court. Consequently, the outcome of this case changed as the complexion of the law changed. After digesting the Southland decision, and on the basis of that case, the district court concluded that the deep gas was subject to the original dedication obligation. The court then de termined which of the defendants had actually abandoned the interstate service without Commission authorization. It is only this latter portion of the determination that the NGA was violated that is challenged in this appeal. The district court held that the Moffett Group and Mid-Continent were not required to seek FPC approval prior to release of the leaseholds and thus were not in violation of the",
"(1965) (physical, molecular commingling of jurisdictional and nonjurisdictional gas will impose Commission jurisdiction over the otherwise nonjuris-dictional gas). Subclause II of the exclusion modifies the term “being sold” with the parenthetical qualification “within the meaning of the Natural Gas Act.” The “being sold” test thus adopts prior NGA case law, Note, The Meaning of the Southland Exclusion at 452, including the “commingling doctrine” of Lo-Vaca. . This interpretation is consistent with the ability of a producer to split his interest and dedicate only half to interstate commerce. See El Paso Natural Gas Co., FPC Opinion No. 737-A, 54 F.P.C. 917, 918 (1975), rev'd sub nom. Southland Royalty Co. v. FPC, 543 F.2d 1134 (5th Cir. 1976), rev’d sub nom. California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) (4-3 decision). There is accordingly no inconsistency in the Allied Chemical Group being a subsequent grantee of the reversioner, and thus free of the original dedication with regard to the deep gas lease reserves, and being a successor in interest to the original dedication with respect to the shallow gas lease reserves, which it has an interest in pursuant to a farmout from the Moffett Group. . This is because the NGPA definition of “committed or dedicated” and the NGPA’s exclusions from that definition are to be used only for purposes of applying the NGPA, and not for applying the NGA. Tenneco Exploration, Ltd. v. FERC, 649 F.2d 376, 380 (5th Cir. 1981). . Allied Chemical was plainly aware of this possibility since Allied’s attorneys investigated Columbia’s claim that the deep gas was dedicated before rejecting Columbia’s demands. . The doctrine of primary jurisdiction promotes proper relationships between the courts and administrative agencies. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S.Ct. 1978, 1986, 48 L.Ed.2d 643 (1976). It is a discretionary tool of the courts, a flexible concept to integrate the regulatory functions of agencies into the judicial decision making process by having agencies pass in the first instance on technical questions of fact uniquely within the agency’s expertise and experience, or in"
] |
Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining that portion of plaintiffs’ complaint seeking declaratory relief . . . .” 300 F. Supp., at 1146. That leaves us with the question whether an order granting or denying, only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U. S. 820, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. REDACTED cf. Zwickler v. Koota, 389 U. S. 241, 254. The provisions concerning three-judge courts, including the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful
|
[
"memorandum opinion, findings of fact and conclusions of law, and judgment. See 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment “is unconstitutional, both on its face and as applied to the plaintiff herein,” and “ [t]hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.” Thus, despite the amendment to Mendoza-Martinez’ complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401 (j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court. Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281, requiring three judges to hear in-junctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 “was a means of protecting the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. . . . The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy. This was the aim of Congress . . . .” Phillips v. United States, 312 U. S. 246, 250-251. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge’s order, and"
] |
[
"1968 election. That injunction was granted, and no appeal was taken by the state officials. As is plain from the opening words of its opinion in the present proceeding, the District Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining that portion of plaintiffs’ complaint seeking declaratory relief . . . .” 300 F. Supp., at 1146. That leaves us with the question whether an order granting or denying, only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U. S. 820, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154-155; cf. Zwickler v. Koota, 389 U. S. 241, 254. The provisions concerning three-judge courts, including the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term “injunction” as meaning “declaratory judgment.” We conclude, therefore, that this Court lacks jurisdiction of the appeal. A simple dismissal for want of jurisdiction, however, would leave the appellants with no recourse to appellate review, because they brought their appeal here rather than to the Court of Appeals and the time for appealing to the Court of Appeals has long since",
"construction of the requirements . . . would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket. Thus, in defining the scope of its jurisdiction under section 1253, the Court has stressed that Congress did not intend the three-judge court statutory scheme as “a measure of broad social policy to be construed with great liberality,” but intended it, rather, “as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U.S. at 251, 61 S.Ct. at 483; Mitchell v. Donovan, 398 U.S. at 431, 90 S.Ct. 1763. Based on this commitment to a narrow construction of section 1253, the Supreme Court has held that a three-judge court order granting or denying only a declaratory judgment may not be appealed to the Court under section 1253. Cases cited, p. 1276, supra. In Mitchell v. Donovan, supra, the Court was asked to review a three-judge court order dismissing a complaint challenging the constitutionality of the Federal Communist Control Act. In their complaint, plaintiffs had requested that the statute be declared unconstitutional and that an injunction be entered requiring the defendants to have the names of Communist Party candidates placed on the Minnesota ballot for the 1968 election. A three-judge court was convened and, without deciding the merits of plaintiffs’ claims, granted plaintiffs’ request for injunctive relief. Defendants did not appeal this order. Following the election, the three-judge district court determined that since the prayer for injunctive relief had been rendered moot by the passing of the 1968 election, there no longer remained a case or controversy. Accordingly, the court dismissed the complaint. Plaintiffs appealed the order to the Supreme Court under 28 U.S.C. § 1253. Noting that the “order appealed from does no more than deny the appellants a declaratory judgment striking down the Communist Control Act,” and that section 1253 “by its terms grants . jurisdiction only of appeals from orders granting or denying injunctions, the Court held that it lacked jurisdiction of the appeal. 398",
"three-judge court order granting or denying injunctive relief, Congress attempted to assure increased deference, greater deliberation, and more effective judicial review of those cases where the operation of federal or state-wide legislation was threatened. Phillips v. United States, 312 U.S. at 250, 61 S.Ct. 480, Swift & Co. v. Wickham, 382 U.S. 111, 127, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). Recognizing the congressional intent underlying the three-judge court statute, the Supreme Court has attempted to construe its jurisdiction under section 1253 in a manner consistent with both the congressional policy favoring accelerated review of three-judge court orders granting or denying injunctive relief and the equally significant congressional concern for minimizing the Supreme Court’s mandatory docket. Gonzalez v. Employees Credit Union, 419 U.S. at 98-99, 95 S.Ct. 289; MTM, Inc. v. Baxley, 420 U.S. at 804, 95 S.Ct. 1278. In Phillips v. United States, 312 U.S. at 250, 61 S.Ct. at 483, the Court stated: [Ijnasmuch as this procedure [three-judge court statutes] also brings direct review of a district court to this Court, any loose construction of the requirements . . . would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket. Thus, in defining the scope of its jurisdiction under section 1253, the Court has stressed that Congress did not intend the three-judge court statutory scheme as “a measure of broad social policy to be construed with great liberality,” but intended it, rather, “as an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U.S. at 251, 61 S.Ct. at 483; Mitchell v. Donovan, 398 U.S. at 431, 90 S.Ct. 1763. Based on this commitment to a narrow construction of section 1253, the Supreme Court has held that a three-judge court order granting or denying only a declaratory judgment may not be appealed to the Court under section 1253. Cases cited, p. 1276, supra. In Mitchell v. Donovan, supra, the Court was asked to review a three-judge court order dismissing a complaint challenging the",
"judgment is no.t an appealable order denying an injunction, at least where the denial is based upon the existence of a triable issue of fact. Switzerland Assn. v. Horne’s Market, 385 U. S. 23 (1966). However we need not decide whether the same treatment should be given to denials of summary judgment under § 1253, for we conclude that the only interlocutory orders that we have power to review under that provision are orders granting or denying preliminary injunctions. Since in our view the District Court here decided no question of preliminary-injunctive relief, we cannot review its order. Section 1253, along with the other provisions concerning three-judge district courts, 28 U. S. C. §§ 2281-2284 (a collectivity hereinafter referred to as the Three-Judge Court Act), derives from §266 of the Judicial Code of 1911, 36 Stat. 1162, which in turn derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As originally enacted, the Three-Judge Court Act required that no interlocutory injunction restraining the operation of any state statute on constitutional grounds could be issued, except by a three-judge court, and provided that “[a]n appeal may be taken directly to the Supreme Court of the United States from the order granting or denying . . . an interlocutory injunction in such case.” 36 Stat. 557. The Act grew out of the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. While broad and radical proposals were made to deal with the problem, including proposals to deprive the federal courts of all jurisdiction to enjoin state officers, Congress compromised on a provision that would deal with what was felt to be the worst abuse— the issuance of temporary restraining orders and preliminary injunctions against state statutes, either ex parte or merely upon affidavits, and subject to limited and ineffective appellate review. See Phillips v. United States, 312 U. S. 246, 250 (1941); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Note, The Three-Judge District Court and",
"court of appeals); compare Kennedy v. Mendoza-Martinez, 372 U. S. 144, with FHA v. The Darlington, Inc., 358 U. S. 84, 87 (whether three judges are required where only declaratory relief is requested); compare Swift & Co. v. Wickham, 382 U. S. 111, with Kesler v. Dept. of Public Safety, 369 U. S. 153 (whether a three-judge court is required when a complaint seeks to enjoin a state statute on the ground that it violates the Supremacy Clause). Read literally, § 1253 would give this Court appellate jurisdiction over even a single judge’s order granting or denying an injunction if the “action, suit, or proceeding” were in fact one “required . . . to be heard and determined” by three judges. But we have glossed the provision so as to restrict our jurisdiction to orders actually entered by three-judge courts. See Ex parte Metropolitan Water Co., 220 U. S. 539, 545. A single judge is literally forbidden to “dismiss the action, or enter a summary or final judgment” in any case required to be heard by three judges. 28 U. S. C. § 2284 (5). Read literally, this provision might be held to prohibit a single judge from dismissing a ease unless he has determined that it fails to meet the requirements of § 2281 or § 2282. See Berueffy, The Three Judge Federal Court, 15 Rocky Mt. L. Rev. 64, 73-74 (1942), and Note, 28 Minn. L. Rev. 131, 132 (1944). But we have always recognized a single judge’s power to dismiss a complaint for want of general subject-matter jurisdiction, without inquiry into the additional requisites specified in §§ 2281 and 2282. Ex parte Poresky, 290 U. S. 30, 31; Bailey v. Patterson, 369 U. S., at 33; Idlewild Bon Voyage Liquor Corp., 370 U. S., at 715; Goosby v. Osser, supra. While the literal terms of the three-judge-court statutes give us appellate jurisdiction over any three-judge-court order granting or denying an \"interlocutory or permanent injunction,” we have in fact disclaimed jurisdiction over interlocutory orders denying permanent injunctions, Goldstein v. Cox, 396 U. S. 471, and Rockefeller v. Catholic",
"the Federal Declaratory Judgment Act plainly evinces a congressional intent that the statutory term “injunction” in § 2283 not be read to include declaratory judgments. An analogous question was before us recently in Mitchell v. Donovan, 398 U. S. 427 (1970). There we were called on to decide whether an order of a three-judge court granting or denying a declaratory judgment may be appealed to this Court under 28 U. S. C. § 1253, which provides that with certain exceptions “any party may appeal to the Supreme Court from an order granting or denying . . . an . . . injunction in any civil action . . . required . . . to be . . . determined by a district court of three judges.” (Emphasis added.) The direct-appeal provision of § 1253 obviously reflects the particular sensitivity of granting or denying an injunction in those important cases required to be heard by three-judge courts. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). The Court clearly had those considerations in mind when it observed, “While there are similarities between injunctions and declaratory judgments, there are also important differences. . . . [T]his Court’s jurisdiction under [§ 1253] is to be literally construed. ... It would hardly be faithful to such a construction to read the statutory term ‘injunction’ as meaning ‘declaratory judgment.’ ” 398 U. S., at 430-431.",
"the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term “injunction” as meaning “declaratory judgment.” We conclude, therefore, that this Court lacks jurisdiction of the appeal. A simple dismissal for want of jurisdiction, however, would leave the appellants with no recourse to appellate review, because they brought their appeal here rather than to the Court of Appeals and the time for appealing to the Court of Appeals has long since passed. Accordingly, as in other cases where an appeal was improperly brought to this Court rather than the Court of Appeals, we vacate the judgment below and remand the case so that the District Court may enter a fresh order dismissing the complaint, thus affording the appellants an opportunity to take a timely appeal to the Court of Appeals for the Eighth Circuit. It is so ordered. Mr. Justice Black concurs in the result. Mr. Justice Blackmun took no part in the consideration or decision of this case. 48 Stat. 955, 28 U. S. C. §§ 2201-2202. The early history of the three-judge-court statute, then §266 of the Judicial Code, is summarized in Goldstein v. Cox, 396 U. S. 471, 476-477. The 1937 and 1948 amendments, both of which made substantial changes in the statute, appear at 50 Stat. 752 and 62 Stat. 968, respectively. One commentator has argued for the broader construction on grounds of policy and logical symmetry, see Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1,",
"to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three- judge district court “granting or denying ... an interlocutory or permanent injunction.” Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U. S. 471. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction — interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U. S. 820; Mitchell v. Donovan, 398 U. S. 427. All that the District Court did was to write a rather discursive per curiam opinion, ending with the paragraph quoted above. Although the Texas Legislature at its next session took no action with respect to Article 474, the District Court entered no further order of any kind. And even though the question of this Court’s jurisdiction under § 1253 was fully exposed at the original oral argument of this case, the District Court still entered no order and no injunction during the 15-month period that elapsed before the case was argued again. What we deal with here is no mere technicality. In Goldstein v. Cox, supra, we pointed out that: “This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since ‘any loose construction of the requirements of [the Act] would defeat the purposes of Congress . . . to keep within narrow confines our appellate docket.’ Phillips v. United States [312 U. S. 246], at 250. See Stainback v. Mo",
"again the Supreme Court has warned us that the three-judge court legislation is to be narrowly construed. Mitchell v. Donovan, 90 S.Ct. 1763 (June 15, 1970); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). The statute was patterned to prevent the possibility of a single judge bringing to a halt the appli cation of the legislative process. Its purpose is the protection of the legislative branch from, judicial interference. Goldstein v. Cox, 396 U.S. 471, 476-477, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), fixes three guidelines for district judges to follow in deciding whether to ask for the convention of a three-judge court. They are: (1) whether the constitutional question raised is substantial; (2) whether the complaint at least formally alleges the basis for equitable relief; and (3) whether the case presented otherwise comes within the requirements of the three-judge statute. Assuming, without deciding, that a substantial constitutional question has been raised, we, nevertheless, hold that the second requirement has not been met. The total lack of party jurisdiction of the district court to grant the injunctive relief as to § 462(a) and the inappropriateness of an injunction under the facts alleged concerning appellee’s resolution justified the dismissal by the district judge. The statutes under scrutiny are applicable only when injunctive relief is at issue. Three-judge courts are not required to grant declaratory judgments. Mitchell v. Donovan, supra; Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970); Goldstein v. Cox, supra; Kennedy v. Mendoza-Martinez, supra. Kennedy is instructive. There, the plaintiff amended his complaint late in the proceedings to add a prayer for injunctive relief to his request for a declaratory judgment. The Supreme Court held that, since the district judge decided the case solely on the issue of the declaratory",
"three-judge-court apparatus for one reason: to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge. But some of the literal words of the statutory apparatus bear little or no relation to that underlying policy, and in construing these we have stressed that the three-judge-court procedure is not “a measure of broad social policy to be construed with great liberality.” Phillips v. United States, 312 U. S. 246, 251. See also Kesler v. Dept. of Public Safety, 369 U. S. 153, 156-157; Swift & Co. v. Wickham, 382 U. S., at 124; Allen v. State Board of Elections, 393 U. S. 544, 561-562. The words of § 1253 governing this Court’s appellate jurisdiction over orders denying injunctions fall within this canon of narrow construction. Whether this jurisdiction be read broadly or narrowly, there will be no impact on the underlying congressional policy of ensuring this Court’s swift review of three-judge-court orders that grant injunctions. Furthermore, only a narrow construction is consonant with the overriding policy, historically encouraged by Congress, of minimizing the mandatory docket of this Court in the interests of sound judicial administration. Mercantile argues that § 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court’s jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits— such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention — are often of more than trivial consequence, that alone does not argue for our re>viewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion. But the facts of this case do not require us to"
] |
fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., REDACTED In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313,
|
[
"refund amount to the plaintiff. They also refused to grant the plaintiff a lien in the vehicle they bought with the refund. The issue is whether these actions constitute embezzlement. In this regard, the plaintiff contends that by purchasing another truck, concealing that purchase, and refusing to grant the plaintiff a lien in that new vehicle, there is sufficient evidence of fraudulent intent. The problem is that the plaintiff was not the owner of the refund. Fundamentally, embezzlement involves the appropriation of property belonging to another person or entity. Contella, 166 B.R. at 30. As a basic principle, therefore, one cannot embezzle one’s own property. Davis, 155 B.R. at 131. The plaintiff appears to concede that once the debtors bought the truck with the loan proceeds, the plaintiff possessed nothing more than a security interest in a vehicle owned by another. Where a creditor holds nothing more than a security interest in a debtor’s property, the relationship is insufficient to support a finding of embezzlement. As the court stated in In re Heath, 114 B.R. 310, 311-12 (Bankr.N.D.Ga.1990): [E]mbezzlement involves the appropriation or conversion of another’s property where the property was legally in the offending party’s possession. Here, it is undisputed that the [collateral was] owned by defendant subject to plaintiffs security interest. Defendant was in lawful possession of the [collateral] and plaintiffs security interest does not give plaintiff an absolute ownership interest nor does it defeat defendant’s ownership interest. Since the property at issue belonged to defendant and was not property of another, the debt here could not be for ... embezzlement. See also Contella, 166 B.R. at 30; Rigsby, 152 B.R. at 778-79; In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983). The plaintiff neither owned nor possessed the 1987 truck which was to serve as its collateral. As the owner of the collateral, the debtor remained the owner of its proceeds, even though both the collateral and its proceeds were subject to a security interest. Contella, 166 B.R. at 30. As such, the debtors could not embezzle from themselves, and the alleged conversion of the refund does not"
] |
[
"Nobel), 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In support of it claim, Bombardier argues that since Debtor allowed its secured property to be converted to her own purposes — by giving custody of it to her boyfriend, and by allowing the property to be lost, and apparently unrecoverable— Debtor embezzled its property. This argument fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., In re Conder, 196 B.R. 104, 111 (Bankr.W.D.Wis.1995); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In addition to accepting the reasoning that a security interest is not an ownership interest that can be embezzled, the court in Nobel explained an additional rationale for rejecting an embezzlement claim under 523(a)(4) where the property allegedly embezzled was property in which the debtor",
"priation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Where the creditor is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, at 30 (no embezzlement where Debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). Where title to the property is in the debtor, there can be no embezzlement. Id; Kibler, at 742. Here, there has been no showing of any wrongdoing on the Debtor’s part with respect to his tenancy of the premises at 175 Court Street. Nor has Barristers established any connection between Caulfield’s transfer of 192 Dean Street to Elliot, on the one hand, and the taking of any property from Barristers, lawfully or unlawfully, on the other. Therefore, the debt is not one “for ... embezzlement, or larceny.” Lastly, the Court declines Barristers’ invitation to find that the alleged fraudulent conveyance of 192 Dean Street supports a claim under Section 523(a)(4) independently of the elements normally required. The Court is unaware of any theory, and Barristers has pointed to none, by which the alleged fraudulent conveyance of 192 Dean Street more than 8 years prior to the filing and 6 years prior to Barristers’ judgment could render the unrelated judgment nondischargeable. Nor can Barristers attempt to avoid the fraudulent conveyance in this Court, as it already has such an action pending in another forum, and in any event, the Trustee and not Barristers is the proper party to assert it here. In re AP Industries, Inc., 117 B.R. 789 (Bankr.S.D.N.Y.1990); In re Daniele Laundries, Inc., 40 B.R. 404 (Bankr.S.D.N.Y.1984). In addition, although Barristers has not clearly articulated such a theory, to the extent that it is seeking a declaration that any debt which may be found to be owed to it as a result of a judgment to be rendered in its fraudulent conveyance action is nondis-chargeable, Barristers would still have to establish that that",
"fraudulent intent or deceit. Contella, 166 B.R. at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 at 533. Embezzlement involves the “appropriation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. at 30. But, even with respect to embezzlement, where a creditor (such as the bank here) is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, 166 B.R. at 30 (no embezzlement where debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). While the first two claims fail to state a cause of action, the third claim arguably survives by reason of the Debtor having failed to respond to paragraph 21 of the complaint. FRCP 8(d) provides, in pertinent part, as follows: Averments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading. Averments in a pleading as to which no responsive pleading is required or permitted shall be taken as denied or avoided. Paragraph 21 is a pleading as to which a responsive pleading was required and, as a consequence of Debtor’s failure to respond, he is deemed to have admitted it. As noted, that paragraph alleged that, “at the time of making the warranty, the warranty was false and known by defendant to be false.” While the third claim does not set forth with any specificity the false representation that was allegedly made, the Debtor’s admission of the allegations set forth in ¶ 21 arguably supplies that which was missing. That is, having admitted that he knew the warranty was false and that he knew it was false when made, the Debtor thus implicitly acknowl edges that he is aware of what constitutes the “false representation.” Reading the allegations that form the third claim for relief in the light most favorable to the bank, it sets forth a cause of",
"re Conder, 196 B.R. 104, 111 (Bankr.W.D.Wis.1995); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In addition to accepting the reasoning that a security interest is not an ownership interest that can be embezzled, the court in Nobel explained an additional rationale for rejecting an embezzlement claim under 523(a)(4) where the property allegedly embezzled was property in which the debtor had title but subject to a creditor’s security interest: It is true that this [type of] interest may be injured an if it was done with the requisite willfulness and malice may be the basis of a claim of non-dischargeability under § 523(a)(6). However, it could not be the basis of a claim based on embezzlement pursuant to § 523(a)(4) because the funds allegedly embezzled were not the funds of the [secured creditor]. It is hardly logical to assume that Congress intended that the two exceptions to discharge, one based on embezzlement, § 523(a)(4); the other on willful, malicious injury to property of an entity, 523(a)(6), were intended to be used interchangeably and both have the same operating elements and proof of the other. Nobel, 179 B.R. at 315-316; see also, In re Lloyd Phillips, 882 F.2d 302 (8th Cir.1989). Because Debtor has title to the Motorcycle a claim for embezzlement of the Motorcycle cannot he. Accordingly, Bombardier has failed to show that the Debtor’s conduct comes within Section 523(a)(4). Therefore, Bombardier’s motion on Count",
"310, 311-12 (Bankr.N.D.Ga.1990): [E]mbezzlement involves the appropriation or conversion of another’s property where the property was legally in the offending party’s possession. Here, it is undisputed that the [collateral was] owned by defendant subject to plaintiffs security interest. Defendant was in lawful possession of the [collateral] and plaintiffs security interest does not give plaintiff an absolute ownership interest nor does it defeat defendant’s ownership interest. Since the property at issue belonged to defendant and was not property of another, the debt here could not be for ... embezzlement. See also Contella, 166 B.R. at 30; Rigsby, 152 B.R. at 778-79; In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983). The plaintiff neither owned nor possessed the 1987 truck which was to serve as its collateral. As the owner of the collateral, the debtor remained the owner of its proceeds, even though both the collateral and its proceeds were subject to a security interest. Contella, 166 B.R. at 30. As such, the debtors could not embezzle from themselves, and the alleged conversion of the refund does not amount to embezzlement. Id.; see also Davis, 165 B.R. at 131. Furthermore, the plaintiff failed to demonstrate any fraudulent intent. Although the debtors did refuse to grant it a lien in the second vehicle, their actions and their testimony evidence nothing more than justifiable confusion over the respective rights of the parties. Mr. Conder testified that he believed the plaintiffs lien was “gone.” His statement regarding his belief at the time is uncontroverted and does not evidence fraudulent intent. His good faith is to some extent demonstrated by the fact that he made subsequent payments, albeit for only a couple of months. Presupposing for a moment that the debtors did misappropriate or convert the refund in some fashion, there was insufficient evidence of any fraudulent intent on the debtors’ part, and the claim of embezzlement must fail for this reason as well. Id. at 130; Kressner, 156 B.R. at 74; Rigsby, 152 B.R. at 778. The plaintiff also argues that the debtors’ actions constituted willful and malicious injury to its property rights. In essence, it",
"had title but subject to a creditor’s security interest: It is true that this [type of] interest may be injured an if it was done with the requisite willfulness and malice may be the basis of a claim of non-dischargeability under § 523(a)(6). However, it could not be the basis of a claim based on embezzlement pursuant to § 523(a)(4) because the funds allegedly embezzled were not the funds of the [secured creditor]. It is hardly logical to assume that Congress intended that the two exceptions to discharge, one based on embezzlement, § 523(a)(4); the other on willful, malicious injury to property of an entity, 523(a)(6), were intended to be used interchangeably and both have the same operating elements and proof of the other. Nobel, 179 B.R. at 315-316; see also, In re Lloyd Phillips, 882 F.2d 302 (8th Cir.1989). Because Debtor has title to the Motorcycle a claim for embezzlement of the Motorcycle cannot he. Accordingly, Bombardier has failed to show that the Debtor’s conduct comes within Section 523(a)(4). Therefore, Bombardier’s motion on Count II of its Complaint is entirely denied, and Debtor’s motion is allowed. Count III: Dischargeability Claim under § 523(a)(6) for Debtor’s Willful and Malicious Conduct Section 523(a)(6) of the Bankruptcy Code provides: (а) A discharge under section 727 does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or the property of another entity. 11 U.S.C. § 523(a)(6). A creditor seeking a determination of non-dischargeability under § 523(a)(6) must show three elements by a preponderance of the evidence: (1) that the Debtor intended to and caused an injury; (2) that the Debtor’s actions were willful; and (3) that the Debtor’s actions were malicious. Under § 523(a)(6) “willful” means a palpable intent to cause injury, not merely the commission of an intentional act that happens to result in an injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Section 523(a)(6) does not encompass “situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in",
"his own benefit and (2) that he did so with fraudulent intent or deceit. Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). To prove embezzlement, Plaintiff must show that Debtor appropriated the funds for her own benefit, and that it did so with fraudulent intent. Id. Absent intent to defraud, the misappropriation of property does not constitute embezzlement. In re Rigsby, 152 B.R. 776, 778 (Bankr.M.D.Fla.1993). Embezzlement under 523(a)(4) is defined as the fraudulent appropriation of the creditor’s property by the debtor to whom it has been entrusted or into whose hands it has lawfully come. Pierce v. Pyritz, 200 B.R. 203, 205 (N.D.Ill.1996); see also, Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989). Embezzlement differs from larceny only in that the original taking was lawful. In re Rose, 934 F.2d 901, 903 (7th Cir.1991). Therefore, by definition, before a creditor can make a claim of nondischargeability for embezzlement, it must show that the property allegedly embezzled by the Debtor was property of the creditor. Chrysler First Commercial Corp. v. Nobel (In re Nobel), 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In support of it claim, Bombardier argues that since Debtor allowed its secured property to be converted to her own purposes — by giving custody of it to her boyfriend, and by allowing the property to be lost, and apparently unrecoverable— Debtor embezzled its property. This argument fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., In",
"(citing In re Taylor, 58 B.R. 849, 855 (Bankr.E.D.Va.1986); In re James, 42 B.R. 265, 267 (Bankr.W.D.Ky.1984); In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983); In re Graziano, 35 B.R. 589, 595 (Bankr.E.D.N.Y.1983)). It may be that the Debtor appropriated funds of 10th Inning for his own benefit, but the Plaintiff has no standing to assert the rights of 10th Inning. Nor does the Plaintiff assert that it had a direct interest in the equipment sold or proceeds thereof. Even a security interest does not rise to a level of ownership sufficient to support a claim for embezzlement for purposes of Section 523(a)(4), In re Whiters, 337 B.R. 326, 333 (Bankr.N.D.Ind.2006) (citing First Nat’l Bank v. Phillips (In re Phillips), 882 F.2d 302, 304-305 (8th Cir.1989)); see also Bombardier Capital, Inc. v. Dobek (In re Dobek), 278 B.R. 496, 510 (Bankr.N.D.Ill.2002), and the Plaintiff was only an unsecured claimant with a claim that had not yet been reduced to judgment. If a security interest is not sufficient to support a claim of embezzlement, then the Plaintiffs rights as an unsecured creditor are certainly not sufficient. Section 523(a)(6) Claim Section 523(a)(6) provides that: “(a) A discharge under section 727 ... does not discharge an individual debtor from any debt-.... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity[.]” 11 U.S.C. § 523(a)(6). To determine the nondischargeability of a debt under section 523(a)(6), a creditor must prove three elements by a preponderance of the evidence: (1) the debtor intended to and caused an injury to the creditor’s property interest; (2) the debtor’s actions were willful; and (3) the debtor’s actions were malicious. In re Burke, 398 B.R. 608, 625 (Bankr.N.D.Ill.2008)(citing Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 641 (Bankr.N.D.Ill.2004); Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 356 (Bankr.N.D.Ill.2001)). The requirements of “willfulness” and “maliciousness” are distinct requirements in the statutory text and are usually treated as such by the courts. In re Brown, 2009 WL 2461241, at *7 (citing 4 COLLIER, 523.12[2]; Carrillo v.",
"supra. Here, Barristers has not shown that Caul-field has wrongfully taken any property which Barristers owned. In fact, there is no allegation or proof with respect to Caulfield’s tenancy at 175 Court Street. Embezzlement within the meaning of Section 523(a)(4) is also determined under federal common law, which defines it as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. 524, 532 (Bankr.E.D.N.Y.1991); In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a fraudulent intent or deceit. Contella, at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 B.R. 524, 533 (Bankr.E.D.N.Y.1991). Embezzlement involves the “appro priation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Where the creditor is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, at 30 (no embezzlement where Debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). Where title to the property is in the debtor, there can be no embezzlement. Id; Kibler, at 742. Here, there has been no showing of any wrongdoing on the Debtor’s part with respect to his tenancy of the premises at 175 Court Street. Nor has Barristers established any connection between Caulfield’s transfer of 192 Dean Street to Elliot, on the one hand, and the taking of any property from Barristers, lawfully or unlawfully, on the other. Therefore, the debt is not one “for ... embezzlement, or larceny.” Lastly, the Court declines Barristers’ invitation to find that the alleged fraudulent",
"property owned by the bank or that he did so with fraudulent intent. Rather, the thrust of the allegations is that the Debtor took the vessels as trade-ins from his company’s customers and thereby came into lawful possession of them. There is no allegation that he unlawfully took the vessels from anyone. If the bank had alleged embezzlement, the complaint might have stated a cause of action. Embezzlement within the meaning of § 523(a)(4) is also determined under federal common law and is defined as the “fraudulent appropriation of money by a person to whom such property had been entrusted or into whose hands it has lawfully come.” In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895)); In re Kressner, 155 B.R. 68, 74 (Bankr.S.D.N.Y.1993); In re Balzano, 127 B.R. at 532; In re Jardula, 122 B.R. 649 (Bankr.E.D.N.Y.1990). The objectant must show that the debtor misappropriated funds for his own purpose and that he did so with a fraudulent intent or deceit. Contella, 166 B.R. at 30. It differs from larceny in that the original taking of the property is lawful. In re Balzano, 127 at 533. Embezzlement involves the “appropriation of property belonging to another person or entity.” In re Kibler, 172 B.R. 740, 742 (Bankr.W.D.N.Y.1994); In re Contella, 166 B.R. at 30. But, even with respect to embezzlement, where a creditor (such as the bank here) is neither the owner of nor in possession of the assets, there can be no embezzlement, for “no person can embezzle from himself.” Contella, 166 B.R. at 30 (no embezzlement where debtor sold a tractor in which creditor had a security interest but failed to remit sale proceeds to creditor). While the first two claims fail to state a cause of action, the third claim arguably survives by reason of the Debtor having failed to respond to paragraph 21 of the complaint. FRCP 8(d) provides, in pertinent part, as follows: Averments in a pleading to which a responsive pleading is required ... are admitted when"
] |
theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. And as Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985) points out, the Doctrine also serves to guard: the adversary system’s interest.. .in ensuring that each side relies on its own wits in preparing their respective cases. Though the issue is not free from doubt, application of those principles to the present circumstances weighs against work product protection for the identities of the interviewees. As Teleflora argues, the identity of witnesses having knowledge of relevant facts is discoverable information. REDACTED It is not enough for AFS to say it has already provided Teleflora with the names of persons having knowledge of how Membership Obligation No. 2 was enforced — names gathered from its examination and analysis of Teleflora’s own prior discovery responses. True enough, what Teleflora now seeks is the fruit of AFS’s further investigation into matters potentially within the knowledge and control of Teleflora. But it is important to stress “potentially,” for in real world terms Teléflora (that is, its litigation team) obviously does not automatically have all the knowledge lodged somewhere in Teleflora the legal entity. Teleflora’s ability to distill the 200-person list, as tendered by AFS,- into the two names of persons with allegedly inculpatory information smacks of
|
[
"on the fact that the search for witnesses on the subject of commercial success has been carried on under the direction of their counsel and, thus, it is claimed that the entire subject comes under the protection of the work product rule. Rule 33 allows interrogatories to be directed to any matter that may be inquired into under rule 26. The latter rule provides that it is permissible to inquire into the identity and location of persons having knowledge of relevant facts. However, this interrogatory does not ask for the names and locations of persons having knowledge of relevant facts; it asks for the efforts that have been made to locate witnesses on this subject. This goes to the attorney’s preparation of his case for trial and therefore comes under the rule of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), which gives an attorney’s work product a qualified immunity from discovery. The Hickman Case states at page 511, 67 S.Ct. at page 393: “Proper preparation of a client’s case demands that he [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” In citing the principles as laid down in Hickman, the court in Uinta Oil Refining Company v. Continental Oil Company, 226 F.Supp. 495, 506 (D.Utah 1964) stated, “the detailed pattern of investigation and exploration in and of itself is not a proper subject for discovery.” What the defendants seek here goes to the exploratory efforts of the plaintiffs’ counsel in preparation for trial. In attempting to locate witnesses on a certain topic an attorney will often talk to numerous prospects; the work product rule was designed to prevent unlimited interference with such preparations. The plaintiffs will not be compelled to answer defendants’ interrogatory 211A. DEFENDANT’S MOTION TO COMPEL ANSWERS FROM MR. EWALD The defendants have moved pursuant to rule 37 to require Mr. Ewald, an employee of the plaintiffs, to answer certain questions asked him at a deposition held on July 20, 1967."
] |
[
"interests of his clients. ' In performing his various duties, however, it is es sential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Similar considerations are expressed in the Hickman Circuit Court opinion. Judge Goodrich suggests that “[t]hose members of the public who have matters to be settled through lawyers and through litigation should be free to make full disclosure to their advisers and to have those advisers and other person's concerned in the litigation free to put their whole-souled efforts into the business while it is carried on. The soundness of this policy is not capable of laboratory demonstration. Enunciated and applied as it necessarily is by members of the guild which derives incidental benefit from its application, it is open to the gibes of the cynical. We believe it is sound policy; we know that it is irrefutably established in the law.” 153 F.2d at 223 (footnotes omitted). Consistent",
"strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy",
"a client’s case demands- that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly- though roughly termed by the Circuit Court of Appeals in this case ás the ‘Work product of the lawyer.’ “We do not mean to say that all written materials obtained or prepared ■ by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. * * But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.” At the outset it will be noted that the Hickman case purports to apply only to the “work product” of the lawyer. In Vol. 4, •Moore’s Federal Practice, Second Edition, it is said at page 1136: “The fact that statements of witnesses are obtained, or other information acquired by a claim agent does not bring the rule of the Hickman case into play even if the claim agent is a lawyer. In Thomas v. Pennsylvania R. Co. (D.C.N.Y., 7 F.R.D. 610) defendant resisted discovery of statements of witnesses taken by a claim agent on the ground that they were taken on behalf of the attorney for the defendant. Judge Inch said: T do not agree with this effort to give this claim agent the immunity properly",
"the. adversary process: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to. be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Id. at 510-11, 67 S.Ct. at 393-94. It is clear from the Supreme Court’s articulation of the policy of the work product immunity that it is the work product of the attorney preparing for litigation that requires protection from discovery. See United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). In a more recent district court case it was stated that: any report or statement made by or to a party’s agent (other than to an attorney acting in the role of counsellor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment",
"been guided in applying the work product doctrine by the Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). There the Court said: Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of any attorney. Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper ' preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, corre spondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of eases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonpriv-ileged facts remain hidden in an attorney’s file and where production of those facts is essential to the",
"timeless and oft cited statements of Mr. Justice Murphy in Hickman v. Taylor elucidate the fundamentals of the work product doctrine: Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Hickman, 329 U.S. at 511, 67 S.Ct. at 393-94. This doctrine has been codified as to tangible items in Rule 26(b)(3), Fed.R.Civ.P. which states in pertinent part: a party may obtain discovery of documents and tangible things otherwise discoverable under 'subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party",
"as those concepts are used in these rules. Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their coun sel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with",
"the discovery devices attempted to obtain statements of witnesses and other information secured by adverse counsel, the court held that it is improper “to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” Id. at 505, 67 S.Ct. at 391. “Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id. at 511, 67 S.Ct. at 393-394. Spaulding v. Denton, 68 F.R.D. 342 (D.Del. 1975). In holding that some reports of a marine surveyors firm investigating the sinking of a yacht were work product, the court cited the Rule 26(b)(3) codification of work product immunity, as authority for the application of the doctrine to materials prepared by non-lawyers. Burlington Industries v. Exxon Corp., 65 F.R.D. 26 (D.Md.1974). Plaintiff, in a patent infringement action, resisted discovery, asserting work product immunity. In setting out the rules under which a Master would appraise the applicability of plaintiffs claims of privilege, the court stated: “The work product doctrine assures an attorney that his private files shall, in the absence",
"of demonstrating the protection is justified. Hickman, 329 U.S. at 509, 67 S.Ct. 385; see also United Phosphorus, 164 F.R.D. at 248 (discussing analogous provision). On the other hand, the opinion work product doctrine precludes discovery of the mental impressions, conclusions, opinions or legal theories of an attorney. The reason for this is that “proper preparation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman, 329 U.S. at 510-11, 67 S.Ct. 385. Accordingly, an attorney’s memory, notes and impressions of oral statements of witnesses interviewed in the course of preparing for litigation are also a form of opinion work product which merits special protection. Upjohn Co. v. United States, 449 U.S. 383, 400-01, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (holding that to extent not covered by attorney-client privilege, evaluation of witness statements protected by attorney work product doctrine). The selection and compilation of documents by counsel in preparation for pretrial discovery and litigation has repeatedly been held to fall within the highly protected category of opinion work product. Shelton, 805 F.2d at 1329 (holding adversary is precluded from forcing an attorney to identify the items relied upon to develop its legal theories of the case); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985). As outlined earlier, Sparton wants Mr. Allahut to identify and explain his rationale for relying upon the group of background contractual and technical items he reviewed in preparing to negotiate the proposed settlement agreement and subsequent revisions thereto. Plaintiff also wants to know about Mr. Allahut’s communications with government employees and contractors. Obviously Mr. Allahut’s mental impressions and legal strategy could be disclosed if he was compelled to testify about the evidence he considered reliable with regard to the issues and the Navy’s defenses in this litigation. Shelton, 805 F.2d at 1329; Sporck, 759 F.2d at 315; see also Hickman, 329 U.S. at 510-11, 67 S.Ct. 385. The specific subset of items Mr. Allahut relied upon, out of",
"the parties’ agreement. The United States requested the production of all documents exchanged between the Plaintiffs experts and the Plaintiffs attorneys. Energy Capital objected because these documents include material protected by the work-product doctrine. This case presents another occurrence of the intersection between the work-product doctrine and the discovery of expert-related information. B. Work-product doctrine Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.... Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). “The work product of the lawyer covers the ‘written materials obtained or prepared by an adversary’s counsel with an eye toward litigation.” It includes “interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs.’ ” Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592 (3rd Cir.1984) (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947)). “Opinion work product includes the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative"
] |
on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. REDACTED Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all
|
[
"spasms, muscle weakness, diminished reflexes, and pain, all of which support his opinion. Laboratory reports showing spondyloarthrosis, arthritis in the lumbar and lumbosacral facet joints, and some narrowing of the [spinal] canal also support the opinion. The claimant’s normal neurological report does not negate the reality of his other back problems but merely limits them to non-nerve related damage. A medical opinion based on objective tests results, an evaluation of the patient’s medical history, physician observations of the patient, and physician evaluation of the patient’s subjective complaints of pain, as is the case here, “is medical evidence supporting a claim of disabling pain, even if the objective test results, taken alone do not fully substantiate the claim.” Nieto v. Heckler, 750 F.2d 59, 61-62 (10th Cir.1984). Here, the medical opinion of disability is not based on pain alone but is also based on actual loss of strength and flexibility in the back and legs. It constitutes substantial evidence of the inability to perform other work in the national economy on any kind of regular and sustained basis. The AU was not justified in discounting the views of the treating physician as to the claimant’s deteriorating condition and instead relying on the treating physician’s earlier expectation that the claimant would be able to return to work that did not require heavy lifting. The record discloses that after the fusion operation, post-recuperation onset of acute back strain followed by a new injury, both requiring hospitalization and producing a poor recovery, altered Dr. Hayes’ opinion of claimant’s employment prognosis, yet the AU continued to rely on the old prognosis. Such reliance in the face of continuing and supportable evidence of severe back impairment was not justified. Nor was the AU’s acceptance of Dr. Hayes’ opinion that the claimant could do no prolonged standing or walking while rejecting his opinion that the claimant could do no lifting. Cf. Jozefowicz v. Heckler, 811 F.2d 1352, 1358-59 (10th Cir.1987) (good cause, including specific, legitimate reasons required for rejecting part while accepting other part of treating physicians’ medical opinions). The only other evidence that the claimant could"
] |
[
"disability does not mandate finding of disability by Secretary). The treating physician opined that plaintiff was totally disabled at step three. Clearly, this opinion is not binding on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. Harris v. Secretary of Health & Human Servs., 821 F.2d 541, 544 (10th Cir.1987) (ALJ not justified in discounting treating physician’s new opinion that claimant’s condition was deteriorating, thus changing physician’s prior opinion that claimant would be able to return to work). Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all to taking such medication a maximum of twice a day. Plaintiff also testified his usual activities included fixing breakfast for himself and his son and doing some housework. He testified his back, shoulder, and neck act up when he walks too much and he cannot lift his arms over his shoulders. The treating physician consistently opined that plaintiff would not be able to return to his prior work and recommended that plaintiff pursue",
"the opinions of treating physicians.” Arroyo v. Secretary of Health and Human Services, 932 F.2d 82, 89 (1st Cir.1991); accord Keating v. Secretary of Health and Human Services, 848 F.2d 271, 276 (1st Cir.1988) (“treating physician’s conclusions regarding total disability may be rejected by the Secretary especially when, as here, contradictory medical advisor evidence appears in the record”). “Controlling weight” is typically afforded a treating physician’s opinion on the nature and severity of an impairment where it is “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the claimant’s case. 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2). The relevant regulations further permit the ALJ to downplay the weight afforded a treating physician’s assessment of the nature and severity of an impairment where, as here, it is internally inconsistent or inconsistent with other evidence in the record including treatment notes and evaluations by examining and nonexamining physicians. 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Dr. Stern examined Arruda only once in January 2001. Such a brief review warrants less weight than a review given by a physician such as Dr. Patrick who has a more longstanding relationship with Arruda and a more in depth knowledge of her ailments. See 20 C.F.R. §§ 404.1527(d)(2)(i) & 416.927(d)(2)® (“the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion”). In addition, Dr. Stern’s two page letter to Dr. Patrick wherein he notes that Arruda “walked slowly but steadily” and had normal power in her lower extremities (Tr. 273-274) contravenes his assessment in the physical capacity evaluation form that she could never lift or carry even up to five pounds of weight. (Tr. 267); see 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Dr. Stern’s conclusions relative to the inability to sit, stand and walk are also inconsistent with the report itself which, as the ALJ recognized, only characterizes Arruda’s pain as “moderate” as opposed to “severe.” (Tr. 268). Finally, Dr. Stern’s physical capacity evaluation form is a brief list of checked answers to form questions unaccompanied",
"of the claimant’s impairments including the claimant’s symptoms, diagnosis and prognosis, and any physical or mental restrictions. See id. §§ 404.1527(a)(2), 416.-927(a)(2). The Secretary will give controlling weight to that type of opinion if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. See id. §§ 404.1527(d)(2), 416.927(d)(2). A treating physician may also proffer an opinion that a claimant is totally disabled. That opinion is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the Secretary. Id. §§ 404.1527(e)(2), 416.927(e)(2). In contrast to the situation in the Second Circuit, see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993) (new regulations are valid and binding on court even though they are at variance with prior circuit precedent), in this circuit the regulations have merely codified existing law. See Sorenson v. Bowen, 888 F.2d 706, 711 (10th Cir.1989) (Secretary must give substantial weight to treating physician’s opinion), Williams, 844 F.2d at 758 (treating physician’s conclusion regarding disability does not mandate finding of disability by Secretary). The treating physician opined that plaintiff was totally disabled at step three. Clearly, this opinion is not binding on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. Harris v. Secretary of Health & Human Servs., 821 F.2d 541, 544 (10th Cir.1987) (ALJ not justified in discounting treating physician’s new opinion that claimant’s condition was deteriorating, thus changing physician’s prior",
"10 pounds occasionally. (T at 324). In addition, Dr. DiGiovanni, a treating orthopedic specialist, opined that Plaintiff was limited to sedentary work in a July 2007 note. (T at 266). Dr. Kenny, another treating orthopedic specialist, indicated on several occasions that Plaintiff was totally disabled. (T at 284, 287, 289, 292, 294, 305, 309, 312). Plaintiff contends that the ALJ did not properly weigh these medical opinions when rendering his RFC determination. Under the “treating physician’s rule,” the ALJ must give controlling weight to the treating physician’s opinion when the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. 20 C.F.R. § 404.1527(d)(1) — (6); see also de Roman, 2008 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). In this case, the ALJ discussed the medical evidence, discounted the assessments of the treating physicians, and rendered a detailed, function-by-function assessment concerning Plaintiffs RFC. (T at 17-22). This Court finds the ALJ’s determination supported by substantial evidence, as outlined below. Plaintiff consulted Dr. Robert Mantica, an orthopedist, for pain management. In a February 2009 progress note, Dr. Manti-ca assessed that Plaintiff had “some type of soft tissue injury in his back.” (T at 387).",
"testimony about his pain and muscle weakness because “his allegations were not reasonably consistent with the medical evidence.” The ALJ noted, for instance, that Gudgel damaged his credibility “when he acknowledged that he normally did not use the wheelchair in which he appeared at the hearing.” Our review of the Social Security Administration’s decision to deny disability benefits is limited to determining whether the decision “is supported by substantial evidence” in the record. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir.2000). Substantial evidence is such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir.2000) (internal quotations omitted). A treating physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2). More weight is given to the opinion of treating physicians because of their greater familiarity with the claimant’s conditions and circumstances. Clifford, 227 F.3d at 870; 20 C.F.R. § 404.1527(d)(2). Gudgel contends that the ALJ improperly credited Dr. Hutson’s testimony over the medical opinion of Drs. Baker and Koopman. Gudgel argues generally that the ALJ improperly rejected his treating physicians’ opinions without finding contradictory evidence in the record. Gudgel also argues that the ALJ should not have rejected Dr. Baker’s opinion without first allowing him to provide additional evidence to support the post-polio diagnosis. An ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice. Moore v. Barnhart, 278 F.3d 920, 924 (9th Cir.2002). Dr. Baker, a doctor trained in treating neurological disorders such as post-polio syndrome, had the opportunity to physically examine Gudgel on three occasions and to run a battery of tests on him. After conducting these examinations, Dr. Baker concluded that both clinical and diagnostic results supported the diagnosis. The ALJ did not explain how the evidence in the record contradicts Dr. Baker’s diagnosis of",
"determine if the Secretary’s finding of no disability is supported by substantial evidence. 736 F.2d at 366; Allen v. Califano, 613 F.2d 139 (6th Cir.1980). The majority rests its decision to reverse the Secretary’s determination on the judgment of plaintiff’s treating physician', Dr. DelVecchio, that plaintiff was 100% disabled, and other medical proof indicating limitation of motion and pain due to a continuing back problem, restricted lung capacity, and evidence of an arthritic knee condition. A review of the entire record, however, shows a considerable amount of medical evidence that conflicts with his treating physician’s opinion. The opinion of a treating physician is entitled to greater weight than that of a doctor who has seen the claimant only once. Stamper v. Harris, 650 F.2d 108, 111 (6th Cir.1981); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). The treating physician’s opinion, however, is not binding on the Secretary, especially when other evidence brings into question its basis and reliability. See 20 C.F.R. § 404.-1527; see also Mongeur v. Heckler, 722 F.2d 1033 (2d Cir.1983); Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir.1973); accord Laffoon v. Califano, 558 F.2d 253, 255-56 (5th Cir.1977). Although Dr. DelVecchio opined that plaintiff was 100% disabled, his diagnosis was inconsistent and conflicting. On June 7, 1977, during a post-hernia operation examination, DelVecchio noted that plaintiff had “minimal arthritis ... in both knees.” He further noted that “physical therapy ... helped his back considerably ... and [he] was sent home without any medication.” At that time, DelVecchio recommended that plaintiff go on a diet and “get some exercise, either bicycle [sic] or jogging.” On June 27,1977, DelVecchio noted that patient came in for an examination with his back in “a thirty degree flexion position.” Yet in a letter to the Bureau of Disability Determination DelVecchio noted that plaintiff “came in all bent over at a 60 degree angle with severe lower back pain requiring physical therapy.” He further stated that plaintiff “had a markedly straightened lumbar spine,” even though x-rays made by and analyzed by Dr. Stupar at DelVecchio’s request had shown “slight straightening of",
"a matter of law. Chamberlain is correct when asserting that medical reports of a treating physician are ordinarily entitled to greater weight than the opinion of a consulting physician. See Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.1989) (citing Ward v. Heckler, 786 F.2d 844, 846 (8th Cir.1986)). However, a treating physician’s opinion is “not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.” Id. The weight given'a treating physician’s opinion is limited if the opinion consists only of conclusory statements. Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.1994) (citing Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991)). Dr. Elmendorf failed to discuss the degree of Chamberlain’s decreased range of motion, nor did his report cite any objective medical tests or diagnostic data to support his conclusions that Chamberlain was unable to bend or stoop and was totally disabled. All of Chamberlain’s various x-rays disclosed no abnormalities, and the range of motion exams administered by Drs. Mokhtar and Lee revealed Chamberlain’s ability to occasionally bend or stoop. Also, the ALJ specifically questioned Chamberlain regarding his ability to bend or stoop, to which Chamberlain replied only that he had trouble using the bathroom. Dr. Elmendorfs conclusions regarding Chamberlain’s abilities differ significantly with the evidence in the record as a whole, especially when considering that Dr. Elmendorfs conclusions were drawn only six weeks after Dr. Lee’s. Further, the ALJ did credit Dr. Elmendorfs findings that were consistent with the record. The ALJ followed the substantial evidence in the record and rightly discounted Dr. Elmendorfs con-elusory findings of Chamberlain’s inability to bend or stoop and his total disability. B. Subjective Complaints of Pain Chamberlain contends that the ALJ improperly relied upon inconsistencies in the non-medical record when discounting Chamberlain’s testimony regarding his pain and functional restrictions. The record is clear that the ALJ considered objective medical evidence as well as Chamberlain’s own statements and representations. An ALJ may not disregard a claimant’s subjective pain allegations solely because they are not fully supported by the objective medical evidence. Sullins v. Shalala, 25 F.3d 601,",
"is not inconsistent with the other substantial evidence in [the claimant’s] case record,” it will be given controlling weight. See id. But when the opinion of a treating physician is not supported by medical evidence and is inconsistent with the substantial evidence in the claimant’s record, the ALJ will not give the opinion controlling weight. See id. Instead, the ALJ will determine independently the weight to give the opinion on the basis of the following factors: the length, frequency, nature and extent of the treatment relationship; the degree to which the medical signs and laboratory findings support the opinion; the consistency of the opinion with the record as a whole; and the specialization of the physician. See 20 C.F.R. § 404.1527(d)(2), (3), (4) & (5). In this case, the ALJ was not persuaded by Mr. Smith’s description of his symptoms and limitations and found that Dr. Baraglia’s opinion, which was largely based upon Mr. Smith’s subjective complaints, was entitled to little weight. Upon review of all the evidence in the record, the ALJ decided to credit the opinion of Dr. Bharti, the consulting physician, over that of Dr. Baraglia. The ALJ was entitled to make this determination. See Reynolds v. Bowen, 844 F.2d 451, 455 (7th Cir.1988) (“[Wjhile the treating physician’s opinion is important, it is not the final word on a claimant’s disability.”); accord Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir.1995) (“[A] treating physician’s opinion is not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.”) (quotations and citations omitted). Nothing in the regulatory scheme or the precedent of this court “mandates that the opinion of a treating physician always be accepted over that of a consulting physician, only that the relative merits of both be duly considered.” Books, 91 F.3d at 979. In this case, the ALJ took into account the relevant criteria in determining the weight to give Dr. Bar-aglia’s opinion and provided sufficient explanation for his decision. See 20 C.F.R. § 404.1527(d)(2) (requiring the ALJ to provide good reasons for the weight given to the claimant’s treating",
"given controlling weight under certain circumstances. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.1994). A treating physician’s opinion generally is favored over that of a consulting physician. Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir.1987). However, “[t]he treating physician rule governs the weight to be accorded the medical opinion of the physician who treated the claimant ... relative to other medical evidence before the fact-finder, including opinions of other physicians.” Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir.1987) (quotation omitted) (emphasis added). Dr. Maron’s report was the only medical evidence submitted pertaining to the relevant time period. Plaintiffs later treating physicians did not express an opinion as to whether he was disabled during this time period. Therefore, the treating physician rule does not dictate that Dr. Maron’s report be given little or no weight. There is substantial evidence supporting the ALJ’s finding that plaintiffs onset date was after June 30,1989. The date an impairment forces a claimant to stop working is of great significance in determining the onset date. Ruling 83-20 (West’s Soc.Sec.Rptg.Serv.Rulings 1983-91, at 50). Plaintiff was able to work through October 1989. This fact, coupled with Dr. Maron’s opinion that plaintiff could perform moderate work as of April 1989, provides substantial evidence for the ALJ’s finding. The second issue is whether the ALJ improperly analyzed plaintiffs subjective complaints of disabling pain. We recently held that an analysis of the credibility of subjective complaints of disabling pain is inadequate if the ALJ merely states a conclusion that pain is not disabling without making express findings with reference to relevant evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995). Although it appears the ALJ’s pain analysis in the present case suffers from the same infirmity as in Kepler, we need not resolve the issue because plaintiff never testified he was disabled by pain be fore June 30,1989. Rather, he testified that he was beset by totally disabling pain when he finished his furniture building job. Appellant’s App. at 75. Other evidence of record establishes that the furniture building job ended",
"opinion that claimant would be able to return to work). Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all to taking such medication a maximum of twice a day. Plaintiff also testified his usual activities included fixing breakfast for himself and his son and doing some housework. He testified his back, shoulder, and neck act up when he walks too much and he cannot lift his arms over his shoulders. The treating physician consistently opined that plaintiff would not be able to return to his prior work and recommended that plaintiff pursue a vocational rehabilitation plan. Plaintiff testified he is pursuing such a plan and is taking computer courses. The ALJ acted in accordance with the regulations in not accepting the treating physician’s opinion that plaintiff is disabled. The ALJ’s reliance on the grids was not error as the ALJ found plaintiffs testimony regarding his pain not fully credible. See Williams, 844 F.2d at 755 (credibility determinations are province of the ALJ); see also Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir.1988) (presence of nonexertional impairment does not preclude use of grids if nonexertional impairment does not further limit claimant’s ability to perform work). The ALJ’s determination is supported by substantial evidence in the record. The judgment of the United States District Court for the District of New Mexico is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . Because the new regulations"
] |
in his direct appeal to this Court, one based on the statute of limitations and the other based on the statutory meaning, under RICO, of “enterprise.” At trial, Brennan raised the latter argument, but not the former. Because Brennan failed to raise these issues earlier, we must first ask whether he is procedurally foreclosed from doing so now in this collateral proceeding. This question requires consideration of longstanding rules governing procedural foreclosures, along with the more recent development of the cause and prejudice test. a. Procedural Foreclosure of Claims in § 2255 Proceedings As a general rule, the failure to raise a nonconstitutional or nonjurisdictional claim on direct review has long precluded assertion of the claim in a collateral proceeding. See REDACTED Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at
|
[
"allowed to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178 (1947). For this reason, non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Id., at 178-179; Davis v. United States, 417 U. S. 333, 345-346, and n. 15 (1974). Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted “ 'a fundamental defect which inherently results in a complete miscarriage of justice,’ ” id., at 346, quoting Hill v. United States, 368 U. S. 424, 428 (1962). In construing broadly the power of a federal district court to consider constitutional claims presented in a petition for writ of habeas corpus, the Court in Fay also reaffirmed the equitable nature of the writ, noting that “[discretion is implicit in the statutory command that the judge . . . 'dispose of the matter as law and justice require.’ 28 U. S. C. §2243.” 372 U. S., at 438. More recently, in Francis v. Henderson, 425 U. S. 536 (1976), holding that a state prisoner who failed to malee a timely challenge to the composition of the grand jury that indicted him cannot bring such a challenge in a post-conviction federal habeas corpus proceeding absent a claim of actual prejudice, we emphasized: “This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S. 391, 425-426.” Id., at 539. Compare, e. g., United States v. Re, 372 F. 2d 641 (CA2), cert. denied, 388 U. S. 912 (1967); United States v. Jenkins, 281 F. 2d 193 (CA3 1960); Eisner v. United States, 351 F. 2d 55 (CA6 1965); De Welles v. United States, 372 F. 2d 67 (CA7), cert denied, 388 U. S. 919 (1967); Williams v. United States, 307 F. 2d 366 (CA9 1962); Armstead v. United States, 318 F. 2d 725 (CA5"
] |
[
"challenge to his RICO conspiracy conviction is built completely on the alleged invalidity of Count One, we similarly uphold his conviction under Count Two for violation of 18 U.S.C. § 1962(d). 2. The Statute of Limitations and the Meaning of “Enterprise” Brennan raises two other challenges to his RICO convictions which he did not raise in his direct appeal to this Court, one based on the statute of limitations and the other based on the statutory meaning, under RICO, of “enterprise.” At trial, Brennan raised the latter argument, but not the former. Because Brennan failed to raise these issues earlier, we must first ask whether he is procedurally foreclosed from doing so now in this collateral proceeding. This question requires consideration of longstanding rules governing procedural foreclosures, along with the more recent development of the cause and prejudice test. a. Procedural Foreclosure of Claims in § 2255 Proceedings As a general rule, the failure to raise a nonconstitutional or nonjurisdictional claim on direct review has long precluded assertion of the claim in a collateral proceeding. See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). In such circumstances, as, for example, where a subsequent change in the law has resulted in a petitioner’s “conviction and punishment [having been imposed] for an act",
"direct appeal. We believe that Brennan’s enterprise argument is neither constitutional nor jurisdictional in nature. Brennan’s claim amounts to the contention that he was convicted under an erroneous interpretation of a statutory term. As Judge Friendly said in United States v. Travers: [W]e must take Sunal as meaning that when the error is one which can be rectified by proper construction of a criminal statute without resort to the Constitution, a claim that a conviction was had without proof of all the elements required by the statute is not a constitutional claim as that phrase is used in respect of collateral attack. 514 F.2d 1171, 1177 (2d Cir.1974) (relying also on Davis, 417 U.S. at 345, 94 S.Ct. at 2304); see also Sunal, 332 U.S. at 182-83, 67 S.Ct. at 1592-93; United States v. Angelos, 763 F.2d 859, 861 (7th Cir.1985) (assessing collateral reviewability of “issues of a nonconstitutional, nonjurisdictional character” where petitioner’s claim was that the conduct for which he was convicted was not a crime). Brennan’s enterprise argument appears to be that he was convicted for “an act that the law does not make criminal.” See Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Such a characterization might suggest turning for guidance to cases where a change in the law subsequent to the petitioner’s direct appeal creates “exceptional circumstances” making procedural foreclosure of a petitioner’s nonconstitutional claim inappropriate. See id.; see also Sunal, 332 U.S. at 180, 67 S.Ct. at 1591 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)); Loschiavo, 531 F.2d at 663; United States v. Coke, 404 F.2d 836, 846-47 (2d Cir.1968) (in banc). Recognizing the seriousness of such a situation, we have on occasion used “due process” language. See Loschiavo, 531 F.2d at 666; cf. United States v. Liguori, 438 F.2d 663, 669 (2d Cir.1971) (assessing effect on conviction of subsequent constitutional decision). Nevertheless, we believe that where such cases concern the interpretation of a statute, they can be collaterally reviewed under the discretionary exception to the general rule that non-constitutional and nonjurisdictional claims are forfeited",
"is precluded from raising it now in a collateral attack. As a general proposition, of course, claims based upon constitutional errors or on a lack of jurisdiction, in the broad sense of the court’s power to adjudicate the is sues, are not barred from being raised on collateral attack even though no direct appeal had been taken, Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939); while a non-constitutional claim which is not raised on direct appeal may properly be rejected as grounds for § 2255 relief. Davis v. United States, supra, 417 U.S. at 345-46, 94 S.Ct. at 2304, 41 L.Ed.2d at 118; Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227, 237 (1969); United States v. Wright, 524 F.2d 1100, 1102 (2 Cir. 1975); United States v. West, 494 F.2d 1314 (2 Cir.), cert. denied, 419 U.S. 899, 95 S.Ct. 180, 42 L.Ed.2d 144 (1974); United States v. Coke, 404 F.2d 836, 846-47 (2 Cir. 1968). That the general rule is not absolute is indicated by what the Supreme Court said in Sunal v. Large, supra. “The rule which requires resort to appellate procedure for the correction of errors ‘is not one defining power but one which relates to the appropriate exercise of power.’ That rule is, therefore, ‘not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” 332 U.S. at 180, 67 S.Ct. at 1591, 91 L.Ed. at 1988. The latest cases which discuss the general rule and variations on its use are Davis v. United States, supra, and, in this Circuit, United States v. Travers, supra, in which Judge Friendly, writing for the court, made a careful and thorough analysis of its application. In the present case Loschiavo, following his conviction and sentence, took an appeal; but he did not squarely raise the issue of the Government’s failure to prove the essential element that",
"1590-91, 92 L.Ed. 1982 (1947). A non-constitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under § 2255 absent exceptional circumstances. See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Suveges v. United States, 7 F.3d 6, 10 (1st Cir.1993) (applying cause and prejudice standard to procedural default of jurisdictional claim). The Supreme Court has on four occasions considered whether a particular nonconstitu-tional, nonjurisdictional claim was properly brought under § 2255. See Hill, 368 U.S. at 428, 82 S.Ct. at 471 (denial of allocution' at sentencing in violation of Fed.R.Crim.P. 32(a) is not a “miscarriage of justice”); United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (error under Fed.R.Crim.P. 11 in procedure for taking a guilty plea not a “miscarriage, of justice”); Addonizio, 442 U.S. at 184-90, 99 S.Ct. at 224CM1 (subsequent change in U.S. Parole Commission’s parole policies not sufficient to constitute basis for collateral attack). In one of these cases, the Court found that the error did justify collateral attack. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (subsequent change in substantive law making defendant’s former behavior lawful does constitute sufficient basis for collateral attack). While the above cases are not on all fours, we think it obvious that Knight’s two claims fall far short of the “miscarriage of justice” standard. Knight’s first claim is essentially that the district court made an erroneous finding of fact which led to the misapplication of the sentencing guidelines. Knight’s second claim is that the district court abused a discretion explicitly committed to it by the sentencing guidelines; Neither claim is based upon an “exceptional circumstance.” Rather, each alleges ordinary errors that could and should have been raised by Knight on direct appeal. And even assuming error was committed, the error would not amount to a “complete miscarriage of justice.” Knight’s eventual sentence was 78 months, within the range that would have been imposed even if",
"infra, we have no occasion to examine whether the deliberate bypass test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), remains the proper standard for the procedural foreclosure of constitutional or jurisdictional issues not raised on direct appeal by federal prisoners. See Norris v. United States, 687 F.2d 899, 902-04 (7th Cir.1982) (finding deliberate bypass test replaced by cause and prejudice test). . In light of the obvious risk of confusion, we note that this Davis case is unrelated to Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), cited supra and infra. . Because we find Brennan’s argument procedurally foreclosed, we do not examine another barrier that could preclude collateral relief, whether the claim would fall within the narrow realm of nonconstitutional or nonjurisdictional claims cognizable under section 2255. See Wright v. United States, 732 F.2d 1048, 1056-57 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); Fiumara v. United States, 727 F.2d 209, 213 (2d Cir.), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). The same comment applies to Brennan’s enterprise argument, discussed infra. . We note that Brennan’s enterprise argument would be considered forfeited even if the cause and prejudice test governed because he has not shown any cause for failing to raise this issue in his direct appeal. . In holding Brennan's enterprise argument to be nonconstitutional in nature, we have considered and rejected his attempt to \"magnify” the importance of his statutory interpretation through references to separation of powers concerns. See Br. of Appellant at 18-21. . In this appeal, Brennan does not frame his challenge to his Travel Act and extortion convictions in terms of misjoinder, as he apparently did in the district court. See 685 F.Supp. at 887. Nevertheless, we note that the district court properly rejected the prejudicial \"spillover\" argument framed in those terms.",
"See Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). In such circumstances, as, for example, where a subsequent change in the law has resulted in a petitioner’s “conviction and punishment [having been imposed] for an act that the law does not make criminal,” id. at 346, we have refused to apply the general rule denying relief because of a procedural default. See, e.g., Ingber, 841 F.2d at 454; United States v. Loschiavo, 531 F.2d 659, 663-67 (2d Cir.1976). With respect to constitutional or jurisdictional claims, we have adhered to the rule that a section 2255 petitioner may raise such claims even though they were not raised on direct appeal, unless there is some showing of deliberate delay or bypass. See Pacelli, 588 F.2d at 363-65; see also Grimes v. United States, 607 F.2d 6, 10 (2d Cir.1979). In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state prisoner who had failed to comply at trial with the state’s contemporaneous objection rule would have to satisfy the “cause and prejudice” test in order to obtain federal collateral review of the defaulted constitutional claim. While broadening the application of a test that had been articulated in Davis v. United States, 411 U.S.",
"apply to all nonconstitutional and nonjurisdictional arguments would seemingly constitute an expansion of the availability of collateral review. This would be an anomalous result because Fra-dy and the Supreme Court’s other cause and prejudice decisions were surely not intended to expand the availability of collateral review to those who have failed to raise claims at the first opportunity to do so. See Frady, 456 U.S. at 178, 102 S.Ct. at 1599 (Brennan, J, dissenting) (criticizing the majority’s “further step down this unfortunate path” of “progressive emasculation of collateral review of criminal convictions”); see also Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir.1986) (“underlying policy” of cause and prejudice test is to require prisoners to present claims first to “the forum initially available, primarily because of the costs associated with granting a writ of habeas corpus”), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987). We therefore choose to adhere to the traditional rule that nonconstitutional and nonjurisdictional claims are generally procedurally foreclosed to a section 2255 petitioner if not raised on direct appeal. We believe that Brennan’s enterprise argument is neither constitutional nor jurisdictional in nature. Brennan’s claim amounts to the contention that he was convicted under an erroneous interpretation of a statutory term. As Judge Friendly said in United States v. Travers: [W]e must take Sunal as meaning that when the error is one which can be rectified by proper construction of a criminal statute without resort to the Constitution, a claim that a conviction was had without proof of all the elements required by the statute is not a constitutional claim as that phrase is used in respect of collateral attack. 514 F.2d 1171, 1177 (2d Cir.1974) (relying also on Davis, 417 U.S. at 345, 94 S.Ct. at 2304); see also Sunal, 332 U.S. at 182-83, 67 S.Ct. at 1592-93; United States v. Angelos, 763 F.2d 859, 861 (7th Cir.1985) (assessing collateral reviewability of “issues of a nonconstitutional, nonjurisdictional character” where petitioner’s claim was that the conduct for which he was convicted was not a crime). Brennan’s enterprise argument appears to be that he",
"(1974); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). However, non-constitutional issues are proper for collateral attack only when some type of extraordinary discrepancy is alleged. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Supreme Court stated in reference to the failure of the trial court to ask a defendant if he had anything to say before sentencing: It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. 368 U.S. at 428, 82 S.Ct. at 471. Thus, it has developed that non-constitutional claims are not proper for collateral review unless a “fundamental defect” is asserted which would lead to a “complete miscarriage of justice”. The Supreme Court has re-enunciated this rule on several occasions. Most recently, in Stone v. Powell, 428 U.S. 465, at 477 n.10, 96 S.Ct. 3037, at 3043, 49 L.Ed.2d 1067 (1976), the Court observed that, “Despite the expansion of the scope of the writ, there has been no change in the established rule with respect to non-constitutional claims.” See also Davis v. United States, 417 U.S. 333, at 345, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Sunal v. Large, 332 U.S. 174, at 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Here, the statutory issue of notice does not present the “exceptional circumstances” constituting the type of fundamental defect contemplated in Hill. While Marshall’s § 2255 motion was pro se, he was represented by counsel on his prior direct appeal to this court. Thus, no allegation can be made that the equities of this case require us to now hear this issue by way of § 2255. Further, notice was provided by the government in this case and it was sufficient",
"at 1077 n. 10, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962) (\"[e]ven those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice’\"); United States v. Capua, 656 F.2d 1033, 1037-1038 (5th Cir.1981) (alleged defects in jury-selection procedure); Smith v. United States, 635 F.2d 693, 695 (8th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67 L.Ed.2d 368 (1981) (alleged error concerning presence of witness). . Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109, 118 n. 15 (1974); United States v. McCollom, 664 F.2d 56, 59 (5th Cir.1981), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982); United States v. Capua, supra note 94, 656 F.2d at 1037 (dicta). . Grimes v. United States, 607 F.2d 6, 10-11 (2d Cir.1979); Pacelli v. United States, 588 F.2d 360, 362-364 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); Hunt v. United States, 456 F.2d 582, 583 (3d Cir.1972); Randall v. United States, 454 F.2d 1132, 1133 (5th Cir.1972), cert. denied, 409 U.S. 862, 93 S.Ct. 151, 34 L.Ed.2d 109 (1972). But see Norris v. United States, 687 F.2d 899, 904 (7th Cir. 1982) (even constitutional claims are barred in § 2255 proceeding by failure to appeal unless cause- and-prejudice test is satisfied); Ramsey v. United States, 448 F.Supp. 1264, 1268-1274 (N.D.Ill. 1978) (same). . Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227, 238 n. 8 (1969). See Chin v. United States, supra note 84, 62 F.2d at 1093 (defendant deliberately failing to raise point on direct appeal could not urge on it collateral attack); United States v. Renfrew, 679 F.2d 730, 731 (8th Cir.1982) (collateral attack barred where defendant dismissed direct appeal on issues); United States v. Barnes, 520 F.Supp. 946, 961 (D.D.C.1981). This"
] |
by distraint. Section 3224, Rev. St. (26 USCA § 154) “is general and should not be construed as abrogating, by implication, the other equitable principle which permits suit to restrain collection where not only is the exaction illegal but there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence.” Miller v. Standard Nut Margarine Co., 284 U. S. 498, 52 S. Ct. 260, 76 L. Ed. 422. As to commissioners’ authority or official obligation to collect a tax depending upon an assessment by the commissioners, see title 26 USCA §§ 102 and 104. And see authority for injunction when collector is exceeding his authority. Frazer v. Russell, Fed. Cas. No. 5067; REDACTED Nichol v. Gaston (C. C. A.) 281 F. 67, 73. The court has reached the conclusion that the “special excise tax” of $1,000 provided by section 206, tit. 26 USCA, is a penalty attaching upon proof of violation of state or local law prohibiting the sale of liquor, and cannot be enforced without giving the individual charged an opportunity to be heard under due process. Let a decree be presented in conformity with this opinion.
|
[
"an additional penalty of $500 on retail dealers and $1,000 on manufacturers. The payment of such tax or penalty shall give no right to engage in the manufacture or sale of such liquor, or relieve anyone from criminal liability, nor shall this Act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws. <, , ' “The commissioner, with the approval of the Secretary of the Treasury, may compromise any civil cause arising under this title before- bringing action in court; and with the approval of the Attorney General he may compromise any such cause after action thereon has been commenced.” • The defendant claims that all of these items are taxes, are collectible as such, by proceedings under warrant'for distraint, and are taxes within the meaning of that term as used in section 3224, R. S. The plaintiffs claim that all of the items or elements are in fact penalties, though some of them are called taxes, that none of them are collectible by proceedings under a warrant for distraint, and they are not taxes within the purview of section 3224, R. S. A tax has been defined as: “Ail enforced contribution for tlie payment of public expenses.” Houck v. Little River Drainage District, 239 U. S. 254, 265, 36 Sup. Ct. 58, 61 (60 L. Ed. 268). And again: “Generally speaking, a tax is a pecuniary burden laid upon individuals or property for the puroose of supporting tlie government.\" New Jersey v. Anderson, 203 U. S. 483, 492, 27 Sup. Ct. 137, 140 (51 L. Ed. 284). A penalty involves the idea of punishment. U. S. v. Reisinger, 128 U. S. 398, 402, 9 Sup. Ct. 99, 32 L. Ed. 480; Huntington v. Attrill, 146 U. S. 657, 667, 13 Sup. Ct. 224, 36 L. Ed. 1123. And its character is not changed by the mode in which it is inflicted, whether by suit or criminal prosecution. U. S. v. Chouteau, 102 U. S. 603, 611, 26 L. L. Ed. 246. In view of the foregoing tests, and from a careful reading"
] |
[
"for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” This restraint against injunc-tive action is not absolute. The Supreme Court has recognized this modification : “ * * * in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. This court has held that any exception to the universality of the application of section 7421 of the Internal Revenue Code must turn upon “present extraordinary and entirely exceptional circumstances.” John M. Hirst & Co. v. Gentsch, 6 Gir., 1943, 133 F.2d 247, 248. We stated there that the “circumstances that are to be considered extraordinary or exceptional have never, of course, been catalogued.” In my judgment, departure from the clear statutory prohibition is not warranted in the present circumstances. Inasmuch as the United States District Court had no jurisdiction over the subject matter in the tax phase of this proceeding, it is unnecessary to consider whether there was personal jurisdiction over the several taxing authorities and whether the rulings of the Commissioner as to the effect of section 337 of the Internal Revenue Code are correct. I am in accord with the conclusion of Judge MILLER, for the reasons stated by him, that post-bankruptcy interest should not be allowed to the public holders of the bonds and debentures of Kentucky Fuel Gas Corporation. The order of the United States District Judge dismissing the Trustee’s petition for adjudication of the tax liability for lack of jurisdiction should, in my judgment, be affirmed.",
"is no overassessment of employment taxes.” While the result is questioned, there has been no contention or holding that such review does not constitute a fair and adequate administrative remedy. Properly interpreted, Miller v. Standard Nut Margarine Company, supra, is not an attempt of the judiciary to emasculate by implied exceptions the clear .and explicit prohibition of jurisdiction ■contained in the statute. The theory of •that case is that the exaction was not a true tax, but simply an “attempted exaction by a tax official under the guise of an assessed tax.” That theory was thus stated by Judge Walker for this Court, and was explicitly adopted by the Supreme Court: “And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” (Emphasis supplied.) Miller v. Standard Nut Margarine Company, 1932, 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. That Miller v. Standard Nut Margarine Company presented such an exceptional case as to amount to an abuse of jurisdiction by the tax officials is made ■apparent in the extended and able analysis of that case in Homan Mfg. Co. v. Long, 7 Cir., 1957, 242 F.2d 645, 651-653. In no other case has the Supreme Court permitted an injunction to restrain the assessment or collection of a tax. The cases are collected and discussed in 9 Mertens Law of Federal Income Taxation, Zimet Revision, Section 49.212, where it is stated: “With just one exception, those cases in which the Supreme Court has permitted injunctions restraining Government officials were all cases in which the Court held that the purported tax sought to be restrained was in reality not a tax but a penalty, and the Court said that the statutory prohibition did not apply to the collection of penalties. The decision in Miller v. Standard Nut Margarine Company is the only case in which",
"its decision has become final. The Act expressly provides that the Court may enjoin the collection of a tax pending such proceeding. Section 272(b) prohibits the Commissioner from assessing or collecting any part of a deficiency disallowed by final decision of the Tax Court. The taxes which the Commissioner is now attempting to collect were, in effect, disallowed .by the final decision of the Tax Court and come directly within the prohibitions of § 272(a) (1) and § 272(b) which authorize the Court to grant an injunction. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 263, 76 L.Ed. .422, the Supreme Court said: “* * * And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the'illegality of an exaction in the guise of a tax there exists special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * *” See: Midwest Haulers, Inc. v. Brady, 6 Cir., 128 F.2d 496; Hirst & Co. v. Gentsch, 6 Cir., 133 F.2d 247. The rule in Ohio is that a judgment entered pursuant to a settlement agreement is res adjudieata. Eells v. Shea, 20 Ohio Cir.Ct.R. 527, affirmed 66 Ohio St. 683, 65 N.E. 1128. The enforcement of a judgment, which has been paid, may be enjoined. Betz v. Betz, 4 Ohio App. 264. It is claimed that the taxpayer has an adequate remedy at law by paying the tax and suing for a refund. He ought not be required to do this where a settlement agreement has been entered into in good faith which has been carried into effect by a decision of the Tax Court and fully executed by payment. The defendant had attached the taxpayer’s salary under the warrant of distraint and if he continued to work long enough he could ultimately pay the tax ■out of his earnings and then bring suit for a refund. See Deft’s Ex. No. 3, par. 4 for statement of assets. This Court will not",
"“ * * * no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court”. U.S.Code, Title 28, § 1341 provides that, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” In spite of the' broad, sweeping language of these statutes, it had been uniformly held that they are but a restatement of the principle that equity will not interfere by injunction with the collection of taxes unless some special or extraordinary circumstance is present, justifying its interposition. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 517, this doctrine was summarized as follows: “And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector.” This rule has been generally recognized and applied by the Federal courts. Numerous exceptions to the comprehensive ban against injunctions to restrain the collection of taxes have been developed by judicial decisions. As a result these statutes may be said to be more honored in the breach than in the observance. Upon a showing of considerations that appeal to the discretion of a court of equity, a suit for an injunction may be entertained and a determination of the validity of the tax made in such summary and expeditious manner. One of the many exceptions to the prohibition comprizes cases in which it is sought to collect the tax from a person other than the original taxpayer, as for instance, a transferee of the taxpayer’s property, or a person who has assumed his liability. This case is within this exception. Accordingly, the Court is of the opinion that this action may be maintained and will proceed to",
"established beyond dispute and that there are special and extraordinary circumstances which justify the injunction. For this purpose they rely on Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and the application of the doctrine of that case by this Court in Yoke v. Mazzello, 4 Cir., 202 F.2d 508, and Shelton v. Gill, 4 Cir., 202 F.2d 503. The nature of a case which would justify the court in issuing an injunction despite the prohibition of the statute is illustrated by the facts in Miller v. Standard Nut Margarine Co., where the Government attempted to collect a tax on a product under the Oleomargarine Tax Act although it had been previously determined by the courts and by the Commissioner of Internal Revenue himself that the act was inapplicable, and where the special and extraordinary circumstance was shown that the imposition of the tax with penalties would destroy the taxpayer's business. No such situation is found in the case at bar. The matter in dispute was whether certain automobile expenses and automobile rentals were personal to the taxpayers or were incurred in the operation of a corporate business which they controlled and were, therefore, deductible. The taxpayers allege in their bills of complaint that the expenses pertained to the business but this is merely their conclusion which is disputed by the Government and is not supported by any impartial determination. Obviously, the partisan opinion of the taxpayers does not establish the illegality of the tax for the purposes of in-junctive relief. Furthermore, the case is totally lacking in the “special and extraordinary circumstances sufficient to bring the case within some acknowledged heading of equity jurisprudence.\" (See Miller v. Standard Nut Margarine Co., 284 U.S. 509, 52 S.Ct. 263, 76 L.Ed. 422.) Not only was the illegality of the tax uncertain but the taxpayers had abundant means to test the validity of the assessment. They had an adequate remedy at law. They could have consented to the extension of the period of limitations and demonstrated their position in informal conferences with the tax authorities,",
"Revised Statutes (U.S.C., Title 31, ,§ 192) in respect of any such tax.” We think that this holding should not be sustained since the circumstances clearly bring the cases within the rule established by the Supreme Court in Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422, and by subsequent decisions that Sec. 3653 is general in its terms and should not be construed as abrogating the equitable principles which permit suits to restrain collection where the exaction is illegal and there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisdiction. It may be noted, at the outset, that the broad prohibition of Sec, 3653(a) against the maintenance of any suit to restrain the collection of any taxes is directed at the person liable for the taxes and is not intended to preclude the courts from affording protection to one not liable to the taxes whose property may be in danger of seizure and sale by the taxing authorities. See Tower Production Co. v. Jones, D.C.Okl., 45 F.Supp. 593; Id., 10 Cir., 138 F.2d 675; Tower Production Co. v. U. S., 61 F.Supp. 411; Id., 3 Cir., 153 F.2d 304; National Iron Bank v. Manning, D.C., 76 F.Supp. 841; Adler v. Nicholas, 10 Cir., 166 F.2d 674; Hubbard Investment Co. v. Brast, 4 Cir., 59 F.2d 709. The right to proceed against a transferee of the taxpayer ■ conferred by Sec. 311, I.R.C., and the prohibition against suits to restrain the assessment or collection of the liability of the transferee set out in Sec. 3653(b) do not give the government any greater rights against the transferee or restrict the power of the courts, to any greater extent than would be the case if the taxpayer himself were involved. Indeed, in the pending cases, the government confronts the difficulty that the plaintiffs, by the admitted facts, are not transferees of the taxpayer within the meaning of the statute. It has been uniformly held by the Tax Court that the mere distribution of assets does not of itself",
"properly refused the injunction and dismissed the bill, not, however, because of the provisions of section 3224 of the Revised Statutes (26 USCA § 154). That section forbids the maintenance of a suit, the purpose of which is to restrain the “assessment or collection of any tax.” It has no application to a suit instituted, not to restrain the assessment or collection of a tax, but the sale of property which does not belong to the taxpayer and is not subject to distraint and sale for taxes assessed against him. Long v. Rasmussen (D. C.) 281 F. 236; Pool v. Walsh (C. C. A. 9th) 282 F. 620; Owensboro Ditcher & Grader Co. v. Lucas (D. C.) 18 F.(2d) 798; Trinacia Real Estate Co. v. Clarke (D. C.) 34 F. (2d) 325; Livingston v. Becker (D. C.) 40 F.(2d) 673. And see Miller v. Standard Nut Margarine Co. of Florida, 284 U. S. 498, 52 S. Ct. 260, 76 L. Ed.-. If therefore, this were a ease where property equitably belonging to one person were being sold in satisfaction of taxes assessed against another, the statute relied upon would afford no reason for refusing relief. The ease presented, however, is not such a ease; for complainant has not satisfactorily established its ownership of the property. On the contrary, the record title is shown to be in Hubbard and there is certainly no sufficient proof to establish a resulting trust in favor of complainant, which must be established by proofs clear and convincing that the person claiming the equitable title actually paid the purchase price. See Straley v. Es- ser, 117 Va. 135, 83 S. E. 1075; Lench v. Lench, 10 Ves. 571. Here the allegation is merely that the investment company put up stock as collateral to the purchase money note; and Hubbard in his testimony does not recall whether it was he or the company that executed the note. If he made the purchase and assumed the obligation for the purchase money, it would not create an equitable estate in the company that it later paid installments of interest",
"284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422. That Miller v. Standard Nut Margarine Company presented such an exceptional case as to amount to an abuse of jurisdiction by the tax officials is made ■apparent in the extended and able analysis of that case in Homan Mfg. Co. v. Long, 7 Cir., 1957, 242 F.2d 645, 651-653. In no other case has the Supreme Court permitted an injunction to restrain the assessment or collection of a tax. The cases are collected and discussed in 9 Mertens Law of Federal Income Taxation, Zimet Revision, Section 49.212, where it is stated: “With just one exception, those cases in which the Supreme Court has permitted injunctions restraining Government officials were all cases in which the Court held that the purported tax sought to be restrained was in reality not a tax but a penalty, and the Court said that the statutory prohibition did not apply to the collection of penalties. The decision in Miller v. Standard Nut Margarine Company is the only case in which the Supreme Court clearly held that although no penalty was involved, the circumstances were so special and extraordinary as to render inapplicable the statute prohibiting the maintenance of a suit to restrain the collection of taxes.” The rationale of Miller v. Standard Nut Margarine Company, supra, cannot be extended to bring within some supposedly implied exception cases like the present one without emasculating the prohibition contained in the statute. That much was recognized by Judge Sanborn, speaking for the Eighth Circuit, in a case which seems to me directly in conflict with the holding of the majority in the instant case: “It is true that where a complainant demonstrates that what purports to be a tax is merely an exaction in the guise of a tax and that there are special and extraordinary circumstances which bring the case under some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collection of the pseudo-tax. Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 76 L.Ed. 422. The validity",
"— * * * no suit for the purpose of restraining the assess- or collection of any tax shall be maintained in any court.” In construing the foregoing section, the Supreme Court, in Miller v. Standard Nut Margarine Co., 1932, 284 U.S. 498, 509, 52 S.Ct. 260, 263, 76 L.Ed. 422, said: “Independently of, and in cases arising prior to, the enactment of the provision (Act of March 2, 1867, 14 Stat. 475) which became R.S., § 3224, this court in harmony with the rule generally followed in courts of equity held that a suit will not lie to restrain the collection of a tax upon the sole ground of its illegality. The principal reason is that, as courts are without authority to apportion or equalize taxes or to make assessments, such suits would enable those liable for taxes in some amount to delay payment or possibly to escape their lawful burden and so to interfere with and thwart the collection of revenues for the support of the government. And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * * This court has given effect to section 3224 in a number of cases. Snyder v. Marks, 109 U.S. 189, 191, 3 S.Ct. 157, 27 L.Ed. 901; Dodge v. Osborn, 240 U.S. 118, 121, 36 S.Ct. 275, 60 L.Ed. 557; Dodge v. Brady, 240 U.S. 122, 36 S.Ct. 277, 60 L.Ed. 560. It has never held the rule to be absolute, but has repeatedly indicated that extraordinary and exceptional circumstances render its provisions inapplicable. Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Dodge v. Osborn, supra, 240 U.S. 121, 36 S.Ct. 275; Dodge v. Brady, supra. Cf. Graham v. Du Pont, 262 U.S. 234, 257, 43 S.Ct. 567, 67 L.Ed. 965; Brushaber v. Union Pacific R. Co., 240 U.S.",
"manufacture and sell would not be taxable as oleomargarine, and, upon receipt of [Commissioner’s] letter, commenced manufacture and sale of the product.” Afterward the product of Standard Nut Margarine was declared taxable by the Commissioner who demanded and threatened to collect a tax on it. “The enforcement of the Oleomargarine Act * * * would impose a tax that [Standard Nut Margarine Co.] would be unable to pay, would subject it to heavy penalties and the forfeiture of its plant, together with the materials and manufactured product on hand, and would destroy its business.” 284 U.S. 498, 506-507, 52 S.Ct. 260, 262. We might also point out the stronger detailed factual background, of the Miller case, reported as Miller v. Standard Nut Margarine Co. of Florida, 5 Cir., 1931, 49 F.2d 79 where the Court of Appeals affirmed the decree perpetually enjoining the collector. Affirming the Fifth Circuit’s decision, the majority of Justices in the Supreme Court said: “Independently of, and in cases arising prior to, the enactment of the provision * * * which became Rev.St. § 3224 [now § 7421], this court, in harmony with the rule generally followed in courts of equity, held that a suit will not lie to restrain the collection of a tax upon the sole ground of its illegality. The principal reason is that, as courts are without authority to apportion or equalize taxes or to make assessments, such suits would enable those liable for taxes in some amount to delay payment or possibly to escape their lawful burden, and so to interfere with and thwart the collection of revenues for the support of the government. And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. [Citing.] Section 3224 is declaratory of the principle first mentioned and is to be construed as near as may be in harmony"
] |
look to the mandatory abstention provisions as a guide to whether they should exercise discretionary abstention. If most of the elements of mandatory abstention are present, they are inclined to exercise discretionary abstention. See Counts v. Guaranty Savings & Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In REDACTED the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at n. 15. The second element of mandatory abstention requires that the proceeding be based upon a state law cause of action. This is clearly the case here. Plaintiffs seek damages arising out of their purchase of
|
[
"The court always retains jurisdiction to review and interpret its own orders. However, even though jurisdiction continues until the case is closed and is also found through section 1142(b) to resolve post-confirmation matters, that does not necessarily mean that the bankruptcy court is compelled to hear and decide every dispute that occurs after a plan is confirmed. Accordingly, abstention is appropriate under these specific circumstances. B. PROCEDURE FOR ABSTENTION: This Report and Recommendation has been forwarded to the district court sua sponte. The importance of these issues as they relate to case administration, and in particular as they relate to these parties and the continuing plethora of pleadings filed, compel this court under 11 U.S.C. § 105 to expeditiously resolve these issues before more effort is expended by this court and counsel. For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. See e.g. Bankruptcy Rule 7012(h) (sic); In re Ryther, 799 F.2d 1412 (9th Cir.1986). Abstention of a particular proceeding is set forth in 28 U.S.C. § 1334(c): (1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can"
] |
[
"for mandatory abstention and states: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11, but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Although this adversary proceeding does not contain all of the elements necessary for mandatory abstention, an examination of the elements of the mandatory abstention provision guides the Court in determining whether to exercise discretionary abstention under § 1334(c)(1). Courts often look to the mandatory abstention provisions as a guide to whether they should exercise discretionary abstention. If most of the elements of mandatory abstention are present, they are inclined to exercise discretionary abstention. See Counts v. Guaranty Savings & Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In In re Terracor, 86 B.R. 671, 677 (D.Utah 1988), the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at",
"U.S.C. § 1334(c)(2)(emphasis added). There are six requirements for mandatory abstention: (1) a timely motion is made; (2) the proceeding is based upon a state law claim or state law cause of action; (3) the proceeding is related to a case under Title 11; (4) the proceeding does not arise under Title 11; (5) the action could not have been commenced in a federal court absent jurisdiction under 28 U.S.C. § 1334; and (6) an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. Woods v. Passodelis, 234 B.R. 52, 64 (Bankr.W.D.Pa.1999) (citing In re Taylor, 115 B.R. 498, 500 (E.D.Pa.1990)). Bankruptcy courts must abstain from a proceeding when all six requirements are present. In re Passodelis, 234 B.R. at 64. Mandatory abstention may be granted only upon motion by a party and not sua sponte by the court. Moreover, mandatory abstention applies only to non-core proceedings under requirements three and four. In the case at bar, there was no motion for mandatory abstention and the proceeding is core. Therefore, mandatory abstention plainly does not apply here. E. Permissive Abstention The permissive abstention statute provides: Except with respect to a case under chapter 15 of title 11, nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. 28 U.S.C. § 1334(c)(1). Unlike mandatory abstention, the motion requirement is conspicuously absent from the permissive abstention statute. Accordingly, by implication, a bankruptcy court may permissively abstain sua sponte. See, e.g., Gober v. Terra + Corp., 100 F.3d 1195, 1207 n. 10 (5th Cir.1996) (“Permissive abstention may be raised by the court sua sponte.”)', Scherer v. Carroll, 150 B.R. 549, 552 (D.Vt.1993) (“... [Questions of abstention and remand may be addressed sua sponte by the Bankruptcy Court.”); Richmond Tank Car Co. v. CTC Invs., 119 B.R. 124, 125 (S.D.Tex.1989) (sua sponte considers whether to abstain). Another critical distinction",
"Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In In re Terracor, 86 B.R. 671, 677 (D.Utah 1988), the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at n. 15. The second element of mandatory abstention requires that the proceeding be based upon a state law cause of action. This is clearly the case here. Plaintiffs seek damages arising out of their purchase of a home constructed on property contaminated by a broken sewer main. They allege fraud, negligent misrepresentation, breach of contract, breach of fiduciary duty, violation of the Kansas Consumer Protection Act, and unjust enrichment. While they also allege violation of the Resource Conservation and Recovery Act, a federal statute, they seek only damages, a form of relief the statute does not provide them. They are dealing here with viable state law causes of action only. The third element of mandatory abstention requires that the adversary proceeding be “related to” a case under Title 11 but not arise under Title 11 or arise in a ease under Title 11. Matters “arising under title 11, or arising in a case under title 11” are “core proceedings.” See 28 U.S.C. § 157(b)(1). Core proceedings are those which have no existence outside of bankruptcy.",
"Both subsection (c)(1), discretionary abstention, and (c)(2), mandatory abstention, provide a basis for this decision. The elements of (c)(1) are met because collection of a debtor’s accounts receivable is a pure State law action. See Illinois-Calif. Express, Inc. v. Continental Ill. Nat’l Bank, 50 B.R. 232 (Bankr.D.Colo.1985). At best, this is a “related” proceeding which would not be before this Court absent the P & P bankruptcy filing. Therefore, in the “interest of comity” this Court can abstain. Secondly, and more importantly, abstention is appropriate here “in the interest of justice.” This bankruptcy district is experiencing a severe strain on its already scarce judicial resources in the current economic climate. Accordingly, adjudication of state law matters is clearly imprudent and as such abstention is appropriate. Furthermore, mandatory abstention pursuant to § 1334(c)(2) applies to this matter. While the standards for § 1334(c)(1) and (2) are generally the same, there is one difference in that (c)(2) contains language stating that the court “shall abstain if an action is commenced ... in a State forum ...” This Court, as did Judge Clark in Illinois-California Express, considers that element to be a technical nicety but not critical. See also In re Arnold Printworks, 61 B.R. 520, 526 (D.Mass.1986) in which Judge Freedman construed § 1334 and held “[t]hat there is not a State court case pending that is relevant, but to the Court’s mind, not dispositive.” Put simply, this matter should not be in this Court. It is not a “core” proceeding, it concerns only questions of State law, and would have never come before me absent P & P’s bankruptcy. As such, I abstain from hearing the instant case and hope that this opinion will send an unforgettable message to the bankruptcy bar of the district for future reference. It is, therefore, ORDERED that the Trustee’s complaint is dismissed because this Court abstains from hearing this matter for the reasons more fully stated herein. APPENDIX GRIN & BEAR IT by Fred Wagner (c) New America Syndicate, 1987 by permission of North America Syndicate, Inc.",
"and application of amendments]). Otherwise, abstention is mandatory for related matters where there is a timely motion of a party and a state court action has commenced. 28 U.S.C. § 1334(c)(2). “By requiring mandatory abstention, Congress has adopted a policy which clearly favors resolution of related state law causes of action in state courts.” In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984). Therefore, it is appropriate to examine the elements of the mandatory abstention provision for guidance in exercising discretionary abstention under 28 U.S.C. § 1334(c)(1). Section 1334(c)(2) provides: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under Title 11 but not arising under Title 11 or arising in a case under Title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. It is apparent that the breach of contract and declaratory judgment counts are state law causes of action which could not be commenced in a federal court absent Section 1334(b). There is also no reason to believe that these proceedings could not be timely adjudicated in a state forum. Hence, , the elements for mandatory abstention under Section 1334(c)(2) are present here except for the single criterion that a proceeding in the state forum has been commenced. Yet there need not be a case pending for discretionary abstention to apply. In re Smith-Douglass, Inc., 43 B.R. at 618 n. 5. Therefore, although mandatory abstention is not applicable to the present proceedings, most of the criteria that Congress set forth for making the abstention decision are met. It would thus be keeping with the policy Congress contemplated for this Court to abstain here. The decision to abstain is reinforced by the interest promoted by exercising respect for state law. It is apparent that this proceeding is based on state law causes",
"Systems, 41 B.R. 749 (Bankr.D.N.D.1984), while recognizing that mandatory abstention did not apply because the instant adversary proceeding had been filed prior to § 1334’s effective date, concluded that [ajbstention is mandatory under [§ 1334(c)(2)] where the case is: (1) based upon a state law claim or cause of action which although related to a Title 11 case did not arise under Title 11 or out of a Title 11 case and, (2) the case could not have been commenced in federal court absent the fact of a bankruptcy petition and, finally, (3) if the case were commenced in a state court it could be timely adjudicated. Dakota Grain Systems, 41 B.R. at 750. In another early case which considered the pending state court action question, State Bank of Lombard v. Chart House, 46 B.R. 468 (N.D.Ill.1985), the district court, quoting Dakota Grain Systems, found that “§ 1334(c)(2) mandates abstention in matters that would have been filed in state court rather than federal court but for a bankruptcy filing.” Chart House, 46 B.R. at 471; Dakota Grain Systems, 41 B.R. at 750. (Emphasis added). The courts both in Dakota Grain Systems and Chart House clearly imply that a pending state court action need not be filed prior to a motion for mandatory abstention. (A number of other courts, while accepting a pending state court action as an element for consideration in determining whether or not to mandatorily abstain, have concluded that this element is not dispositive in deciding whether or not to abstain. See, In re Illinois-California Express, Inc., 50 B.R. 232, 241 (Bankr.D.Colo.1985); In re Arnold, Printworks, 61 B.R. 520, 526 (D.Mass.1986); In re P & P Oil Fields Equipment, Inc., 71 B.R. 621, 623 (Bankr.D.Colo.1987)). After considering the case law in support of the pending state court action prerequisite and finding it to be highly suspect at best, this court analyzed several other relevant sources. This court’s review of the legislative history proved to be inconclusive, although it did seem clear that if a pending state court action was a prerequisite in the individual or collective minds of",
"determination to be made de novo by a district court judge since review of the bankruptcy judge’s decision is explicitly made subject to review under the standards applicable to non-core proceedings. Bankruptcy Rules 5011(b); 9033. The Rules leave a gap with respect to a sua sponte decision to abstain by the bankruptcy judge. Yet such sua sponte acts would not only appear to be within the broad authority given bankruptcy judges by 11 U.S.C. § 105, but necessary to make meaningful the fact that discretionary abstention, unlike mandatory abstention, need not be requested by a party. Since the district court will normally not have occasion to consider the desirability of discretionary abstention until it is largely academic because trial has been had, the only judge able to abstain sua sponte is the bankruptcy judge. Other courts have recognized sua sponte abstention as available. In re Terracor, supra, 86 B.R. 671, 677 n. 15; In re Vallis, 97 B.R. 124, 129 n. 1 (D.Mass.1989); (adopting report and recommendation of bankruptcy judge) In re World Financial Services Center, Inc., 81 B.R. 33, 39 (Bankr.S.D.Cal.1987); Matter of Dart & Bogue, Inc., 52 B.R. 594, 598 (Bankr.D.Conn.1985); In re Coan, 95 B.R. 87, 89 (Bankr.N.D.Ill.1988); see also, 1 Collier on Bankruptcy ¶ 3.01[3] at 3-74 (15 ed.1988). That the bankruptcy judge acts sua sponte would not, however, appear to change the character of the decision to abstain from one that, like non-core decisions, must be finally made by the district court. In re Container Transport, Inc., 86 B.R. 804, 806 (E.D.Pa.1988). Hence, this Court appears to be limited to recommending abstention and it so advised the parties. They were told that this Court was recommending to the District Court that it abstain from exercising its jurisdiction so that this dispute can be adjudicated in the state forum where it is pending. However, this Court made clear to the parties that this recommendation was predicated on the assumption that the matter would be reached for trial within a reasonable period of time. Should that not prove to be the case, the reasons dictating abstention will",
"concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case.... Wood v. Wood, 825 F.2d 90, 93 (5th Cir.1987) (emphasis added). Thus, unlike cases controlled by Colorado River, bankruptcy courts have broad discretion whether to abstain from adjudicating claims. D. Mandatory Abstention There are two types of abstention under 28 U.S.C. § 1334(c), mandatory and permissive. The mandatory abstention provision reads: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. 28 U.S.C. § 1334(c)(2)(emphasis added). There are six requirements for mandatory abstention: (1) a timely motion is made; (2) the proceeding is based upon a state law claim or state law cause of action; (3) the proceeding is related to a case under Title 11; (4) the proceeding does not arise under Title 11; (5) the action could not have been commenced in a federal court absent jurisdiction under 28 U.S.C. § 1334; and (6) an action is commenced, and can be timely adjudicated, in a state forum of appropriate jurisdiction. Woods v. Passodelis, 234 B.R. 52, 64 (Bankr.W.D.Pa.1999) (citing In re Taylor, 115 B.R. 498, 500 (E.D.Pa.1990)). Bankruptcy courts must abstain from a proceeding when all six requirements are present. In re Passodelis, 234 B.R. at 64. Mandatory abstention may be granted only upon motion by a party and not sua sponte by the court. Moreover, mandatory abstention applies only to non-core proceedings under requirements three and four. In the case at bar, there was no motion for mandatory abstention and the proceeding is core.",
"action is a prerequisite for mandatory abstention. See World Solar Corp. v. Steinbaum (In re World Solar Corp.), 81 B.R. 603, 609-12 (Bankr.S.D.Cal.1988) (concluding that a pending state court action is not a prerequisite for mandatory abstention); cf. Kolinksy v. Russ (In re Kolinsky), 100 B.R. 695, 704 (Bankr.S.D.N.Y.1989) (stating that a pending state action in an appropriate forum is an essential element for mandatory abstention). Some courts merely decide whether such an action can be filed on a timely basis in a state court of appropriate jurisdiction. World Solar Corp., 81 B.R. at 612. It is unnecessary to adopt either view at this time in light of this Court’s decision to exercise discretionary abstention. In the present ease, all of the elements of mandatory abstention are met except that a timely motion is lacking, and there is no pending state court action, if in fact that is a prerequisite for mandatory abstention. The Court finds, however, that even if it has jurisdiction, it should exercise discretionary abstention in light of the presence of these elements, along with the Court’s concern for judicial economy and the interest of comity with the state courts and respect for state law. Furthermore, since the Court has determined that these claims are “non-core” proceedings, this Court would not enter final orders and would be limited to submitting proposed findings of fact and conclusions of law to the district court for its de novo review, causing further duplication and judicial inefficiency. See 28 U.S.C. § 157(c)(1). These proceedings involve issues of state law, and respect for state law favors state courts interpreting the laws of the state forum. Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240 (Bankr.D.Colo.1985). “Where a state court proceeding sounds in state law and bears a limited connection to debtor’s bankruptcy ease, abstention is particularly compelling.” National Union Fire Insur. Co. v. Titan Energy, Inc. (In re Titan Energy, Inc.), 837 F.2d 325, 332 (8th Cir.1988) (citation omitted). This Court finds that it has no “related to” jurisdiction over these state law causes",
"from abstaining. The Debtor notes that the Bankruptcy Court for the Southern District of New York has held that a similar clause functioned as a waiver of a party’s right to mandatory abstention: Defendant’s contention that this Court should abstain from hearing and determining this adversary proceeding under either subsection of 28 U.S.C. § 1334(c) is confounded by the corporate parties’ agreement... “that all actions and proceedings relating to the interpretation, enforcement or breach of this agreement shall be litigated in the United States Bankruptcy Court for the Southern District of New York, White Plains Division.” This provision constitutes a waiver by the corporate defendants of any right to mandatory abstention. There can be no doubt that subsection (2) can be waived by any party, since it is a matter of choice whether or not to file a timely motion. In re AHT Corp., 265 B.R. 379, 387 (Bankr.S.D.N.Y.2001) (footnote omitted). Accordingly, the Debtor argues that Orica waived its right to seek abstention by assenting to the Agreement and its forum selection clause. However, Orica argues that the AHT case dealt only with mandatory abstention and there is no authority suggesting that Orica waived its right to obtain permissive abstention by assenting to the Agreement. Permissive abstention is governed by section 1334(c)(1) of title 28. It permits permissive abstention at the Court’s discretion. It does not require a motion and can be raised by a court sua sponte. Therefore, we conclude that although Orica waived its right to seek per missive abstention, this waiver does not prevent the Court from granting such relief. For the reasons stated above, we will exercise our discretion under section 1334(c)(1) and abstain from hearing this action. D. Post-confirmation Jurisdiction There is an additional reason we choose to abstain from considering this dispute. The Debtor asserts we have subject matter jurisdiction over this case. In its Reply, Orica disagrees. The Third Circuit has recently addressed the jurisdiction of a bankruptcy court to hear an action commenced after confirmation of a plan of reorganization. See, e.g., In re Resorts Int’l, Inc., 372 F.3d 154, 168 (3d"
] |
the District Court’s denial of his petition for post-conviction relief under 28 U.S.C. § 2255. In 1998, Mr. Brown was convicted of conspiracy to distribute cocaine base and sentenced to thirty years of imprisonment pursuant to the United States Sentencing Guidelines. On appeal, he argues that this sentence should be reversed because the jury did not decide the quantity of drugs involved in the conspiracy, a fact that produced a longer sentence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact other than a prior conviction that results in a sentence longer than the statutory maximum, must be proved beyond a reasonable doubt to a jury.) This Court’s decision in REDACTED cert. denied, — U.S. —, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002), forecloses Mr. Brown’s arguments. There, the Court held that a defendant may not raise an Apprendi claim for the first time on collateral review. Id. at 995. In addition, because Mr. Brown did not argue at trial that the jury must find the quantity of drugs involved in the conspiracy, he is procedurally barred from raising that argument in a post-conviction motion. Mr. Brown acknowledges the holding of Moss, but argues that the decision should be overruled. We are not at liberty to do so. See United States v. Prior, 107 F.3d 654, 660 (8th Cir.), cert. denied, 522 U.S. 824, 118 S.Ct. 84, 139 L.Ed.2d 41 (1997). Mr.
|
[
"HANSEN, Circuit Judge. Darius Moss appeals from the district court’s denial of his initial motion pursuant to 28 U.S.C. § 2255 to set aside his sentence. Moss argues his 360-month sentence for drug law violations was imposed in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantity was not charged in his indictment or submitted to the jury during trial. Because we conclude Moss is foreclosed from collaterally attacking his sentence based on Apprendi, we affirm the judgment of the district court. I. Moss was convicted in September 1996 of one count of conspiracy to possess with intent to distribute crack cocaine and one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At Moss’s sentencing hearing in July 1997, the district court found by a preponderance of the evidence that Moss was responsible for 1,644.3 grams of crack cocaine, which supported a combined base offense level of 38. The district court added two levels for obstruction of justice, see USSG § 3C1.1 (1995), and two levels for recklessly creating a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer, see id. § 3C1.2. Moss’s combined adjusted offense level of 42 and a criminal history category III resulted in a sentencing range of 360 months to life. The district court sentenced Moss at the bottom end of the range, imposing concurrent terms of 360 months on the conspiracy count and 240 months on the distribution count. Moss’s conviction and sentence was affirmed on direct appeal, see United States v. Moss, 138 F.3d 742 (8th Cir.1998), and Moss then filed the present § 2255 motion, which the district court denied. This court subsequently granted Moss a certificate of appealability on the issue of whether Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), applies to 21 U.S.C. § 841. The Supreme Court held in Jones that serious bodily injury under the federal"
] |
[
"PER CURIAM: Thomas Charles Brown appeals from the district court’s denial of his initial petition for relief under 28 U.S.C. § 2255. Brown argues that his sentence should be vacated because of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We hold that the new rule of criminal procedure announced in Apprendi does not apply retroactively on initial collateral review and affirm the district court’s dismissal of Brown’s habeas petition. I. Thomas Charles Brown was charged by indictment on July 29, 1993, with conspiracy to possess with the intent to distribute “1,000 kilograms or more of marihuana” in violation of 21 U.S.C. § 841(a)(1). Brown pleaded “not guilty” and was tried by a jury- The jury was charged in pertinent part as follows: In the Indictment, it is alleged that a particular amount of quantity of drugs was involved. The evidence in the case need not establish that the amount or quantity of drugs was as alleged in the indictment, but only that a measurable amount of drugs was in fact the subject of the acts charged in the indictment. Brown objected to that instruction insofar as the jury was precluded from finding the actual amount of marijuana alleged in the conspiracy. The objection was overruled, and the jury found Brown guilty. On October 26, 1994, the district court sentenced Brown to 216 months’ imprisonment, five years’ supervised release, and a $50 special assessment. Brown appealed his conviction and sentence arguing that the district court erred in so charging the jury, because drug quantity constituted an element of the offense which the jury was required to find beyond a reasonable doubt. See United States v. Castillo, 77 F.3d 1480, 1495-96 (5th Cir.1996). This court held that the jury was properly instructed and affirmed Brown’s conviction. Id. at 1496,1500. On April 22, 1997, Brown filed a § 2255 motion and after the Supreme Court decided Apprendi in 2000, sought leave to amend to include the argument that his sentence was constitutionally defective under Apprendi based on the erroneous jury instruction. The",
"and sentence on the ground that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Petitioner argues that his conviction and sentence are unconstitutional due to the recent decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court there held that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Based on Apprendi, Petitioner also argues that the United States Sentencing Guidelines are unconstitutional. The remaining two grounds in support of the motion are that Petitioner received ineffective assistance of counsel and the undersigned erred by enhancing Petitioner’s sentence due to his leadership role in the offense. III. DISCUSSION The Court first addresses the impact of Apprendi on Petitioner’s conviction and sentence. The bill of indictment charged the Petitioner with conspiring to manufacture and distribute cocaine base. The quantity of the drug involved in the conspiracy was not specified in the indictment; but, the bill of information alleged that in excess of 50 kilograms of base were involved. Based on the evidence at trial, the Probation Officer found that 602.3 grams of cocaine base and 93.7 kilograms of cocaine powder should be attributed to the Petitioner. Presentence Report, prepared October 14, 1997. Because of the amount of cocaine base attributed to the Petitioner, he faced a mandatory minimum sentence of not less than 10 years or more than life imprisonment. 21 U.S.C. § 841(b)(l)(A)(iii). As previously noted, the undersigned sentenced Petitioner to serve 384 months incarceration. This sentence was based on a finding by the Court from the preponderance of the evidence presented during the trial that the Petitioner knew or could reasonably foresee the drug quantities involved in the conspiracy as indicated by the probation officer. However, under the reasoning of Apprendi, the sentencing court may no longer make a finding of drug quantities by a preponderance",
"the range for his offense level. This sentence is below the statutory maximum for the offense. Alvarez claims that the district court’s determination of quantity increased the statutory maximum penalty to which Alvarez was exposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is wholly without merit. Apprendi held that other than a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Ap-prendi also stated that “ '[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)). But here the trial court’s determination of quantity did not increase the penalty to which Alvarez was exposed beyond the prescribed statutory maximum. As discussed, the statutory maximum for conspiracy to possess with intent to distribute more than five kilograms of cocaine is life. Without a jury determination of quantity, the maximum is 240 months (20 years) under § 841(b)(1)(C). Alvarez was sentenced to the minimum sentence allowed under the sentencing guidelines for his offense level of 36, 188 months, which falls below the statutory maximum authorized by the jury’s verdict. Defendant is not entitled to relief under Apprendi. See, e.g., United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc) (rejecting facial challenge to 21 U.S.C. § 841, which does not specify who shall determine drug quantity or identify the appropriate burden of proof), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002); United States v. Romero, 282 F.3d 683, 690 (9th Cir.) (rejecting Apprendi challenge to district judge’s determination of drug quantity because the resulting sentence did not exceed the maximum sentence authorized by the jury’s verdict), cert. denied, 537 U.S. 858, 123 S.Ct. 228, 154 L.Ed.2d 96 (2002); United States",
"21 U.S.C. § 841(b)(1)(A) prescribes mandatory sentences for “a violation” — including a conspiracy' — '“involving” certain threshold amounts of drugs. Id. Accordingly, the quantity instructions here did not improperly lead the jury to convict Robinson for the substantive acts of his co-conspirators. Similarly unavailing is Robinson’s suggestion that the quantity instructions violated the rule articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Here, the “fact” that increases the default penalty for a conspiracy to distribute drugs is the quantity of drugs involved in the conspiracy. The First Circuit has noted that Ap-prendi did not overrule the Supreme Court’s earlier decision that as long as (1) the jury finds beyond a reasonable doubt that a defendant participated in a conspiracy, and (2) the Court sentences him within the statutory maximum applicable to that conspiracy, the court may “determine both the amount and the kind of ‘controlled substances’ for which [the] defendant should be held accountable — and then ... impose a sentence that varies depending upon amount and kind.” Derman v. United States, 298 F.3d 34, 42 (1st Cir.2002) (quoting Edwards v. United States, 523 U.S. 511, 513-14, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998)) (emphasis in original). The jury need only determine that the defendant participated in a conspiracy involving “a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum.” Id. at 43. Most other circuits have agreed that Apprendi is satisfied where the jury finds, beyond a reasonable doubt, the quantity of drugs involved in the conspiracy as a whole under 21 U.S.C. § 841(b)(1)(A). See United States v. Phillips, 349 F.3d 138, 142-43 (3rd Cir.2003), vacated and remanded on other grounds sub nom. Barbour v. United States, 543 U.S. 1102, 125 S.Ct. 992, 160 L.Ed.2d 1012 (2005),",
"sentencing judge was not the same judge who conducted Ca-sas’s trial. Casas first argues that his sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury did not determine the drug quantity distributed by the conspiracy. See United States v. Perez-Ruiz, 353 F.3d 1, 14 (1st Cir.2003). He also argues Apprendi error because the jury made no findings with regard to the possession of a firearm in the conspiracy, Casas’s leadership role in the conspiracy, or his abuse of a position of trust. These arguments are without merit. Contrary to Casas’s assertion, the jury did make a specific drug quantity determination; the jury convicted Casas using a special verdict form on which it found that the conspiracy distributed 9,445 kilograms of cocaine. See id. at 15 (“The jury’s findings would be readily ascertainable if the court had required it to complete and return a special verdict form.”). As to the sentencing enhancements for firearms possession, leadership role, and abuse of a position of trust, Apprendi does not require that the jury make any determinations on these questions; the statutory maximum for Casas was life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846 (conspiracy involving at least five kilograms of cocaine triggers a maximum sentence of life imprisonment for all coconspirators). The additional enhancements do not implicate the rule of Apprendi. See United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir.2002) (“Apprendi’s prohibition applies only when the disputed fact enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum.” (internal quotations omitted)).” Casas, 356 F.3d at 125. In light of the above, Petitioner Casas is not entitled on collateral review to reliti-gate issues raised on direct appeal, absent an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that a § 2255 hearing is permitted on an issue previously addressed on direct appeal when there has been an intervening change in the law). Cf. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1993)",
"penalties under § 841 to those who conspire or attempt to commit an offense under § 841. See 21 U.S.C. § 846. It is well established that “[djrug quantity is not an element of a § 841 drug offense.” United States v. Smith, 308 F.3d 726, 740 (7th Cir.2002), see, e.g., United States v. Bjorkman, 270 F.3d 482, 490-91 (7th Cir.2001). Indeed, a jury need not make any finding of drug quantity for a conviction under § 841 to stand. Smith, 308 F.3d at 741. Thus, Patterson’s convictions for conspiracy and attempt under §§ 841 and 846 matched the charges for which he was indicted, notwithstanding the jury’s finding that the conspiracy and attempt involved more than 500 grams but less than five kilograms of cocaine, and the indictment charged a conspiracy and attempt involving approximately five kilograms of cocaine. Patterson also argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court relied upon the base offense level under U.S. Sentencing Guidelines Manual § 2D1.1(c)(2002) for five kilograms of cocaine — the quantity of cocaine charged in the indictment — and not the lesser quantity found in the jury’s special verdict, in calculating his sentence. “Apprendi holds that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.’ ” United States v. Jones, 248 F.3d 671, 676 (7th Cir.2001) (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). “However, a particular sentence does not implicate Ap-prendi ‘unless it exceeds a default statutory maximum.’ ” United States v. Johnson, 335 F.3d 589, 591 (7th Cir.2003) (quoting United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002)). As Patterson was sentenced to two concurrent sentences of 235 months for the convictions under §§ 841 and 846, and the maximum sentence provided by § 841(b)(1)(c) is twenty years, or 240 months, his sentence does not violate Apprendi. Patterson urges this court to hold that the Apprendi",
"McMILLIAN, Circuit Judge. Cordell Ray Simms appeals from a judgment of the district court entered upon a jury verdict finding him guilty of conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a) and 846. On appeal, Simms challenges the imposition of a 262-month sentence. We affirm. We first address Simms’s argument that the sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Apprendi). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. As Simms concedes, 21 U.S.C. § 841(b) imposes a maximum sentence of life imprisonment for convictions involving a conspiracy to distribute 50 grams or more of crack cocaine. Because Simms’s sentence is less than the statutory maximum, there is no Apprendi violation. See United States v. Hollingsworth, 257 F.3d 871, 875 (8th Cir.2001), cert. denied, — U.S. —, 122 S.Ct. 856, 151 L.Ed.2d 732 (2002) (Hollingsworth). Moreover, we note that “[t]he jury need not make an exact drug quantity finding to satisfy Apprendi.” Id. at 878. As here, a jury “need only make findings regarding ranges of quantities relevant to the varying statutory máximums under 21 U.S.C. § 841.” Id. Simms also argues that the district court erred in imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. “We review a district court’s factual findings in support of an obstruction of justice enhancement for clear error and its application of the sentencing guidelines to the facts de novo.” United States v. O’Dell, 204 F.3d 829, 836 (8th Cir.2000). Although § 3C1.1 is not intended to punish a defendant for testifying, “[a] defendant who commits perjury is subject to this enhancement.” Id. “A defendant commits perjury, if under oath, ‘[he or] she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion,",
". In Apprendi, the defendant had been convicted in a New Jersey court of possession of a firearm for an unlawful purpose, an offense punishable by imprisonment for between five to ten years. At his sentencing hearing, the district court judge found by a preponderance of the evidence that the defendant had committed the crime with a purpose to intimidate individuals because of their race. Under New Jersey’s hate crime law, this finding increased the defendant's sentence to imprisonment beyond the statutory maximum for the crime for which he was found guilty. The claim in Apprendi was under the Due Process Clause of the Fourteenth Amendment; the analogous Due Process Clause of the Fifth Amendment applies in the instant case. . The maximum penalties under subsections 841(b)(1)(A) and (B) are more severe if certain aggravating factors are present, such as being a prior felony drug offender, or if the use of the controlled substances results in death or serious bodily injury. The fact of a prior conviction was specifically excluded from the scope of the Supreme Court's decision in Apprendi. . In Rebmann, a defendant pleaded guilty to distribution of heroin in violation of 21 U.S.C. § 841. The guilty plea exposed the defendant to a maximum sentence of twenty years; but § 841 requires a factual determination as to whether the offense involved death or serious bodily injury, which would increase the maximum sentence to life imprisonment. 21 U.S.C. § 841(b)(1)(A). The district court determined that these criteria were met and sentenced the defendant to life imprisonment. Because this factual determination increased the defendant's maximum, it was made in violation of Apprendi. . For instance, according to Rossell’s PSIR, co-defendant Lopez Jackson indicated that he had sold Rossell about an ounce of powder cocaine every other week from July 1994 to July 1998. Rossell corroborated these amounts. (J.A. at 1885.) Taped phone conversations revealed that Jackson and Lopez exchanged quantities of more than an ounce of cocaine on two occasions. Additionally, another transaction was for ten ounces. Ros-sell submitted written objections to his PSIR, contesting the transaction involving ten",
"delivered to Robert Lohr through the gas station. The jury could reasonably infer that Vanessa Lohr was a part of the conspiracy from this evidence that she acted to advance its purposes. In light of the foregoing, we conclude that the jury’s verdicts with respect to the drug charges were amply supported by the evidence. 2. Sentencing Considerations Sherman, Diaz, and Robert Lohr contend that, because the district, court relied on drug quantities it determined using a preponderance of the evidence standard, they were sentenced in violation of the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Diaz also challenges the district court’s determination that his sentence was subject to a role enhancement as an organizer or leader of a conspiracy involving more than five people. a. Apprendi Claims Under Apprendi, “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348; see United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). The use of a judicially determined drug quantity as a basis for sentencing, however, is permissible so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). None of the defendants raised an Apprendi argument before the district court, and therefore we review their claims for plain error. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (per curiam). When a defendant is convicted of multiple counts, however, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” United States v. Sturgis, 238 F.3d 956, 960 (8th Cir.2001) petition for cert. filed, 70 U.S.L.W. 3239 (U.S."
] |
Government as a holder of a federal tax lien, the surety has generally prevailed. It has prevailed either upon the theory of subrogation or equitable lien or the theory that there was “no debt” owing to the defaulting contractor to which the federal tax lien could attach. In the cases next cited the-surety prevailed upon the theory of equitable lien related back. American Surety Co. v. City of Louisville Municipal Housing Commission, D.C.1945, 63 F.Supp. 486, affirmed Glenn v. American Surety Co., 6 Cir., 1947, 160 F.2d 977; New York Casualty Co. v. Zwerner, D.C.1944, 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.1953, 114 F.Supp. 702, 710. See also REDACTED upp. 792, affirmed, 4 Cir., 1954, 217 F.2d 275. In the case of Vincent v. P. R. Matthews Co., D.C.1954, 126 F.Supp. 102, the surety prevailed upon the theory of subrogation and equitable lien related back. It is to be noted that in all of those-cases there inhered the theory of relation-back and that none of them were reviewed by the United States Supreme Court. In the case of United States Fidelity & Guaranty Co. v. Triborough Bridge Authority, 1947, 297 N.Y. 31, 74 N.E.2d 226 (see Comment, 32 Minn.L.Rev. 645), the-surety prevailed both on the theory of equitable lien and that no debt was due. In the case of United States Fidelity & Guaranty Co. v. United States, 10 Cir., 1952, 201 F.2d 118, it was held that the surety on
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"an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard arguments based on the pleadings and affidavits submitted by the parties, and filed an opinion and order entering judgment in favor of the sureties. U. S. v. Crosland Construction Co., Inc., D.C., 120 F.Supp. 792. From that order and judgment the Government has appealed, but is pressing only the question stated above. The parties do not contend that the language of the bond is extended or limited by any contract provision or statute. The question is simply whether the Government’s claim is covered by the terms of the bond, quoted above. The relevant statutes and regulations are set out in the note below. From a consideration of all of them, we conclude, as did the majority of the Tenth Circuit in United States Fidelity & Guaranty Co. v. U. S., 201 F.2d 118: “ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120. That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S.,"
] |
[
"money. “It is not necessary to rely on the so-called ‘equitable doctrine of relation back.’ United States Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 113, 121. It suffices to say that the rights of the Internal Revenue Collector can rise no higher than those of its debtor whose right to property is sought to be levied upon. Alexandria Insulation Company forfeited its rights to the fund prior to the filing of the tax lien. It had no right to the fund. Therefore, the government does not. New York Casualty Co. v. Zwer-ner, D.C., 58 F.Supp. 473.” Id. at page 451. And, again in what seems to be an alternate ground for decision although not specifically so denominated, the Court of Appeals for the 10th Circuit, in United States Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 118, a case similar to the one at bar, said, referring to the case of United States v. Security Trust & Savings Bank, 1950, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53: “It is to be noted that both liens attached to property belonging to the defendant debtor, property that was his at all times. Such is not the case here. On the date of the execution of the subcontract the prime contractor had a specific right of ownership in any funds accruing to the subcontractor from the performance of his subcontract. The right to withhold these funds upon default was superior to any other claim against the fund as the property of the subcontractor. When the subcontractor defaulted and its surety, the appellant in this case performed it stepped,into the shoes of the prime contractor and was sub-rogated to all rights that it held against the subcontractor. Those rights related back to the date of the subcontract and were effective from the date thereof. This was in point of time prior to the perfection of the Government’s tax liens. Actually the defaulting subcontractor had no right to this fund. It owed the principal contractor more than was due to it from such principal",
"977; New York Casualty Co. v. Zwerner, D.C.Ill., 58 F.Supp. 473; United States v. Woodside, D.C.S.C., 34 F.Supp. 281. See also, United States v. Hooe, 3 Cranch 73, 2 L.Ed. 370, 375; Prince v. Bartlett, 8 Cranch 431, 12 U.S. 431, 434, 3 L.Ed. 614; Brent v. Bank of Washington, 10 Pet. 596, 611, 9 L.Ed. 547; Beaston v. The Farmers’ Bank of Delaware, 12 Pet. 102, 132, 9 L.Ed. 1017; and In re Baltimore Pearl Hominy Co., D.C.Md., 294 F. 921, reversed on other grounds, 4 Cir., 5 F.2d 553. This is not a proceeding involving the disposition of an insolvent’s estate; therefore, the “priority” statute has no application. Whether the sureties are liable on their bond for the taxpayer’s taxes resulting from performance of the hospital contract will now be determined. Taxes owed by the taxpayer are owed by virtue of law and not because of any contractual relationship. Central Bank v. United States, 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118. See, American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; Westover v. William Simpson Construction Co., 9 Cir., 209 F.2d 908. Sums withheld by the taxpayer from the wages of its employees do not constitute “wages” within the terms of a surety’s bond for wages. United States Fidelity & Guaranty Co. v. United States, supra; United States v. Zschach Const. Co., D.C.Okl., 110 F.Supp. 551 (holding that a surety’s bond is to indemnify the owner and not the United States for taxes). The sums retained by the hospital and assigned by the taxpayer to the sureties were for payment of materialmen and sub-contractors and no part of this sum was used to pay wages of employees of the taxpayer. But even if the sureties had paid wages owing to the employees of the taxpayer, the sureties still would not be liable for the taxes in this case. See, United States Fidelity & Guaranty Co. v. United States, supra; American Fidelity",
"the federal tax liens. The record indictates that most of these state liens are therefore entitled to priority on the old rule (again set forth in the New Britain case), “ ‘the first in time is the first in right.’ ” But, there is another feature in this case that, in our opinion, is totally decisive. In the Supreme Court decisions herein cited and relied on by the government, we find one constant factor. In each of those cases, the liens (federal and others) attached to property belonging to the defendant debtor, property that was his ail the time. Such is not the case here. The government’s debtor here is the contractor, who did not get the money. It is not necessary to rely on the so-called “equitable doctrine of relation back.” U. S. Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 118, 121. It suffices to say that the rights of the Internal Revenue Collector can rise no higher than those of its debtor whose right to property is sought to be levied upon. Alexandria Insulation Company forfeited its rights to the fund prior to the filing of the tax lien. It had no right to the fund. Therefore, the government does not. New York Casualty Co. v. Zwerner, D.C., 58 F.Supp. 473. We have read numerous decisions involving contractors’ bonds and attempts of the United States to recover taxes out of the balance in the hands of the owner. (Note: not the debtor, as in Supreme Court cases cited by the govemment). In each of these cases, the claim of the United States was denied. Thus, it must be here. An order in conformity with this opinion will be signed upon presentation. . U. S. Fidelity & Guaranty Company v. U. S., 10 Cir., 1952, 201 F.2d 118; General Casualty Company of America v. U. S., 5 Cir., 1953, 205 F.2d 753; West-over v. Simpson Construction Company, 9 Cir., 209 F.2d 908. . “Sec. 3670. Property subject to lien. “If any person liable to pay any tax neglects or refuses to pay the same",
"contractor. As between the Government and appellant surety who stepped into the shoes of the principal contractor, the Government could acquire no greater right to this fund than the subcontractor had.” 201 F.2d 118, at pages 121-122. The surety’s claim to the withheld funds is a question entirely apart from the issue of priorities, of course. It rests upon the doctrine of equitable subrogation that where a surety performs under a performance bond after the default of the contractor, it is entitled to an equitable lien on funds previously withheld by reason of the contractor’s default, at least to the extent of the surety’s expenses. See Lacy v. Maryland Casualty Co., 4 Cir., 1929, 32 F.2d 48 (see especially the discussion on pages 51-53); Farmers’ Bank v. Hayes, 6 Cir., 1932, 58 F.2d 34; American Fidelity Co. v. Delaney, D.C.Vt.1953, 114 F.Supp. 702, at page 711; United States Fidelity & Guaranty Co. v. U. S., supra, 201 F.2d at page 122. It is to be noted that this equitable doctrine is additional to and distinct from other rights of subrogation which the surety may have, be they derivative from the labor and materialmen it paid off, or derivative from the owner’s rights against the .contractor, if any. Some confusion was doubtlessly engendered by failure of counsel to distinguish among the. several equitable doctrines of subrogation which .may be involved in ,any complex fact situation. .Also, counsel for the surety seems to have taken too optimistic .a view of the effect of American Surety Co. v. Bethlehem National Bank, 1941, 314 U.S. 314, 62 S.Ct. 226, 86 L.Ed. 241, relating to the subrogation of the surety to the creditor’s remedies on the money claim against the debtor, Id., 314 U.S. at page 317, 62 S.Ct. at page 228, on the rights of the surety in this case. In any case, the surety’s right to the funds is a question entirely apart from the susceptibility of the funds to the federal tax liens. I have held that the funds are not so susceptible. Np priority .doctrine can make them otherwise, of course.",
"plaintiff has cited many where the surety’s rights have prevailed. The opinions in all but one of them were either filed before the Munsey Trust case or failed to mention it. The opinion which mentioned it, U. S. Fidelity & Guaranty Co. v. Triborough Bridge Authority, 297 N.Y. 31, 74 N.E.2d 226, distinguishes it from a case like that at bar on the ground that in the Munsey Trust case the fund held by the owner was “necessarily reduced” by the debts owed to the owner by the contractor. I cannot accept the premise. Such a reduction is far from “necessary”. Indeed, if the owner in the Munsey Trust case had thus reduced the fund, it would, in effect, have paid out the 10% which was to be withheld under the terms of the agreement and, as a result, would even under the federal law have discharged the surety. Globe Indemnity Co. v. Southern Pac. Co., 2 Cir., 30 F.2d 580. Thus, the Munsey Trust case is not based on any “necessary” reduction of the withheld fund by setoff but, just as the opinion said, upon unwillingness to “apply law relating to security to unappropriated sums which exist only aS a claim.” Even though the transactions involved in the case at bar took place in New York the Triborough case is not controlling authority. The question of priorities where federal tax liens are concerned is one of federal law. United States v. Kings County Iron Works, Inc., 2 Cir., 224 F.2d 232, 235, supra. Since there is thus no theory on which the surety in this case can be held to have a property interest in the withheld funds there is no occasion for discussing priorities. All the Government tax liens are superior to the claims of the surety, even those liens which accrued after payment of the laborers and materialmen by the surety. The State of New York as well as the Government seeks to assert tax liens in this case but, since they are admittedly subordinate to federal liens and the federal liens exceed in amount the withheld",
"of these unpaid material-men and sub-contractors under the terms of the performance bond. Upon the sureties’ performance under their bond obligation, they acquired an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547; Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278, certiorari denied 310 U.S. 634, 60 S.Ct. 1077, 84 L.Ed. 1404; Standard Acc. Ins. Co. of Detroit, Mich. v. Federal Nat. Bank, 10 Cir., 112 F.2d 692, affirmed on rehearing, 10 Cir., 115 F.2d 34; Exchange State Bank v. Federal Surety Co., 8 Cir., 28 F.2d 485, 488; Claiborne Parish School Bd. v. Fidelity & Deposit Co. of Maryland, 5 Cir., 40 F.2d 577, 579; Maryland Casualty Co. v. Dulaney Lumber Co., 5 Cir., 23 F.2d 378, 380; Fidelity & Deposit Co. of Maryland v. Union State Bank, D.C. Minn., 21 F.2d 102, 104; In re Van Winkle, D.C.Ky., 49 F.Supp. 711; United States Fidelity & Guaranty Co. v. John R. Alley & Co., D.C.Okl., 34 F.Supp. 604; Southern Surety Co. v. J. R. Holden Land & Lumber Co., 8 Cir., 14 F.2d 411, 413; American Fidelity Co. v. Delaney, D.C. Vt., 114 F.Supp. 702. It is superior to the Government’s lien for unpaid taxes. American Surety Co. of New York v. City of Louisville M. H. Comm., D.C.Ky., 63 F.Supp. 486, affirmed Glenn v. Ameri can Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702. The performance bond was executed on June 29, 1949; therefore, the sureties’ lien is superior to any lien arising thereafter, including the Government’s",
"Casualty Co. v. Dulaney Lumber Co., 5 Cir., 23 F.2d 378, 380; Fidelity & Deposit Co. of Maryland v. Union State Bank, D.C. Minn., 21 F.2d 102, 104; In re Van Winkle, D.C.Ky., 49 F.Supp. 711; United States Fidelity & Guaranty Co. v. John R. Alley & Co., D.C.Okl., 34 F.Supp. 604; Southern Surety Co. v. J. R. Holden Land & Lumber Co., 8 Cir., 14 F.2d 411, 413; American Fidelity Co. v. Delaney, D.C. Vt., 114 F.Supp. 702. It is superior to the Government’s lien for unpaid taxes. American Surety Co. of New York v. City of Louisville M. H. Comm., D.C.Ky., 63 F.Supp. 486, affirmed Glenn v. Ameri can Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702. The performance bond was executed on June 29, 1949; therefore, the sureties’ lien is superior to any lien arising thereafter, including the Government’s lien for taxes which dates from December 14, 1950. In addition to an equitable lien, the sureties have a written assignment of any funds remaining in the possession of the hospital under the provisions of the application for contract bond. Such a provision is valid and enforceable. Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Accordingly, the rights of the sureties to the funds remaining in the hands of the hospital were not determined solely by the assignment of January 5, 1952, but by the bond and application therefor (in view of the sureties’ performance under the bond) and by the sureties’ equitable lien. The Government’s rights to the funds in the hands of the hospital are no greater than the rights of the taxpayer. F. H. McGraw & Co. v. Sherman Plastering Co., D.C.Conn., 60 F.Supp. 504, affirmed, 2 Cir., 149 F.2d 301, certiorari denied 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 452; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118. Upon performance under its",
"Lane, 45 App. D.C. 176; Philadelphia National Bank v. McKinlay, 63 App.D.C. 296, 72 F.2d 89; Moran v. Guardian Casualty Co., 64 App. D.C. 188, 76 F.2d 438; and Pratt Lumber Co., Inc., v. T. H. Gill Co., D.C., 278 F. 783. But we are of opinion after examining all the authorities on the subject that the rule announced and applied in Schmoll, etc., v. United States, supra, that the surety does not acquire, such an equitable lien under its payment bond, is the correct rule. No case has been cited, and we have been unable to find one in which the Supreme Court has held that an equitable lien accrues in favor of laborers and materialmen or to a surety in the event he pays such claims on the balance due under a contract. Cf. Mankin v. United States for the Use of Ludowici-Celadon Co., 215 U.S. 533, 30 S.Ct. 174, 54 L.Ed. 315; Title Guaranty & Trust Co. of Scrantoh, Pennsylvania, v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72; United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S.Ct. 49, 54 L.Ed. 1107; Illinois Surety Co. v. United States to the use of Peeler, et al., 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609; United States Fidelity and Guaranty Co. v. United States, 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804; United States Fidelity & Guaranty Co. v. United States, 191 U.S. 416, 24 S.Ct. 142, 48 L.Ed. 242; American Surety Co. of New York v. Westinghouse Electric Mfg. Co. 296 U.S. 133, 138, 56 S.Ct. 9, 80 L.Ed. 105. As between laborers and materialmen or a surety on a payment bond, and general creditors, including the Government, of the defaulting contractor, the equity of such laborers and materialmen, or the surety, in the balance due under the contract, including the retained percentage, upon completion thereof, would be superior to the equity of such general creditors to such balance. However, we are of opinion that ■the Government’s statutory right of preference or priority for payment of debts due it",
"profit to the lender or investor, it is not profit within the doctrine of authorities exemplified by United States Fidelity and Guaranty Co. v. Worthington & Co., 5 Cir., 6 F.2d 502, certiorari denied 269 U.S. 583, 46 S.Ct. 119, 70 L.Ed. 424; Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Nor is it within the purview of those cases which deny to the surety the right to retain funds which accrue to it by reason of a favorable compounding of the debts of its principal as illustrated in Laber v. Gall, 71 App.D.C. 345, 110 F.2d 697; Martin v. Ellerbe’s Adm’r, 70 Ala. 326; Coggeshall v. Ruggles, 62 Ill. 401. The principle applied in rendering the presently assailed judgment, is the right of the sureties to be made whole, and profit is not involved. There remains the appellant’s final contention that the claim for interest is unsecured in that it arose after the levy of the tax lien. We agree with the district judge that a surety who makes good under his contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the",
"407, 408, 28 Sup. Ct. 389, 52 L. Ed. 547) that there could be no such subrogation without such a right, and that there was no such right. On page 410 of 208 U. S., on page 391 of 28 Sup. Ct. (52 L. Ed. 547), the court refers to and assumes that the government, after the bond was given, was still charged with “equitable obligations to see that the laborers and supply men were paid.” We are constrained to think that the decision necessarily rests upon the existence of this right, as one entitling these claimants to priority in payment out of the fund, and therefore as entitling the surety, as their equitable as-signee by subrogation, to the same priority. If the Hmmngsen and Belknap cases remain law, the equity of the surety prevails here. The holding of the recently decided Sehmoll and Munsey cases, both supra, are not in conflict with the holdings of the earlier Henning sen and Belknap cases in relation to the facts at bar. The distinguishing characteristic of the Schmoll and Munsey cases is that both involved the right of the Government to set off its claims arising independently of the contract against a surety who had paid laborers and materialmen and claimed an equitable lien against funds in the Government’s hands. This feature is recognized expressly in Justice Jackson’s Munsey opinion, 332 U. S. 234, 240. “From Prairie State Bank v. United States, 164 U. S. 227 to American Surety Company v. Sampsell, 327 U. S. 269, we have recognized the peculiarly equitable claim of those responsible for the physical completion of building contracts to be paid from available moneys ahead of others whose claims come from the advance of money. But in all those eases, the owner was a mere stakeholder and had no rights of its own to assertP [Italics supplied.] At pages 243 and 244 of the same opinion, it is stated that: It [the surety] argues that the implication of the several contracts among government, contractor and surety was that the moneys earned under the repair contracts would be"
] |
1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; REDACTED We do not think, however, that compensating a public interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the
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[
"Admin.News 1976, p. 5910. The economic factors relevant to the decision as to whether fee shifting in this case would be unjust must be weighed in light of this legislative intent. Should it be determined that counsel is entitled to fees here, the amount of the award must be adequate to provide an incentive “to attract competent counsel.” Senate Report at 6. The amount of fees awarded was intended to be governed by the same standards prevailing in other types of equally complex federal litigation, such as antitrust cases. Senate Report at 6. Subsequent cases have also recognized this need to provide economic incentives to the legal profession. See, e. g., Keyes v. School Dist. No. 1, Denver, Colo., 439 F.Supp. 393 (D.Colo.1977). See also Berger, Court Awarded Attorneys’ Fees: What is “Reasonable”?, 126 U.Pa.L.Rev. 281, 306-15 (1977). This is not to say that courts are not rightly concerned that windfall fees be avoided and that an otherwise reasonable fee not be made excessive by virtue of a fee agreement. See Farmington Dowell Products Co. v. Forster Mfg. Co., 421 F.2d 61, 87 (1st Cir. 1970); Senate Report at 6. In this case, the record is unclear on the exact terms of the fee agreement. However, we reiterate that a fee agreement is irrelevant to the issue of entitlement and should not enter into the determination of the amount of a reasonable fee. A private fee arrangement is not in itself “special circumstances which would render an award unjust,” and unless the court finds such circumstances, it may not deny fees in this case. If the court sets the fee amount and determines that counsel has already received remuneration equal to or above that amount and that the award will not go to compensate the plaintiff, it would be an abuse of its discretion to deny the award of fees solely on that basis. Such a decision would be undesirable as a “windfall” to the defendants, a frustration of the congressional policy of encouraging the private enforcement of civil rights actions, and perhaps an unwarranted interference with a voluntary attorney-client"
] |
[
"a legal services organization should be limited to the organization’s costs. In this case the defendants would have us take a new approach. We decline to do so, and take this opportunity to explain why we adhere to our previously stated views. First and foremost, we think that compensating public interest lawyers the same way as private practitioners is consistent with the legislative history of the Fees Act. The Senate Judiciary Committee Report, which states that fees are to be awarded according to the standards in Johnson v. Georgia Highway Express, Inc., draws no distinction between employees of public interest organizations and members of the private bar. S.Rep.No. 1011, 94th Cong., 2d Sess. 6, reprinted in [1976] U.S. Code Cong. & AdmimNews, pp. 5908, 5913. Indeed, the Senate Report cites with approval Davis v. County of Los Angeles, 8 EPD ¶ 9444 (C.D.Cal.1974), a Title VII case in which the court said, in determining the amount of attorney’s fees to award: [I]t is not legally relevant that plaintiffs’ counsel ... are employed by the Center for Law in the Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner , Id. at $$ 9444^5. The court made its award by calculating reasonable hourly rates and referring to the factors mentioned in Johnson v. Georgia Highway Express, Inc. Id. See also Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 486 (W.D.N.C.1975), also cited in the Senate Report. Likewise, the House Judiciary Committee Report, H.R.No. 1558, 94th Cong., 2d Sess. 8 n.16 (1976), cites civil rights cases squarely holding that fee awards may not be reduced because the prevailing party’s attorney is employed by a civil rights or tax exempt organization. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976) (award for services of Puerto Rico Legal Defense and Education Fund upheld); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974) (award to Lawyers Committee for Civil Rights Under Law reversed as too small). Furthermore,",
"Title VII for a reduced fee, Congress has recognized that payment of full fees will provide greater enforcement incentives. Full fee awards to public interest law firms help finance their work, both in the instant case, and in others. Indeed, fee awards (paid by proven discriminators) may help reduce the subsidies (paid from the public fisc) that some of these organizations receive. Third, to compute fees differently depending on the identity of the successful plaintiff’s attorney might result in two kinds of windfalls to defendants. The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established. Moreover, where a public interest law firm serves as plaintiff’s counsel (a law firm that, under the panel’s approach, will not obtain the full value of its services from the losing defendant) the defendant will be subject to a lesser incentive to settle a suit without litigation than would be the case if a high-priced private firm undertook plaintiff’s representation. Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980). That is so because the marginal cost of each hour of continued litigation would be reduced. Defendant’s counsel could inundate the plaintiff with discovery requests without fear of paying the full value of the legal resources wasted in response. We do not think that Title VII intended that defendants should have an incentive to litigate imprudently simply because of the fortuity of the identity of plaintiff’s counsel. Fourth, we note that the vast majority of courts that have considered this issue agrees with us that attorney’s fees should not be based on the costs of the successful party. Instead, fees should be based on the market value of the legal services rendered. Oldham v. Ehrlich, at 168-169 (8th Cir. March 12, 1980); Palmigiano v. Garrahy, at 599-603 (1st Cir. 1980); Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1255 n. 1 (2d Cir. 1979), aff’d, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980); Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir.",
"we think that allowing full compensation for the services of public interest lawyers serves the clearly expressed legislative purpose of encouraging private enforcement of civil rights laws. S.Rep.No. 1011, supra, at 5; H.R.Rep.No. 1558, supra, at 2. As the district court pointed out, the National Prison Project, like other such organizations, has finite resources, and a full fee award will enable it to undertake further civil rights litigation. Second, we note that other courts have recently and convincingly rejected the notion that fee awards under the Fees Act (42 U.S.C. § 1988) or comparable statutes should be reduced or keyed to an attorney’s salary when a prevailing party has been represented by a public interest organization. In Rodriguez v. Taylor, 569 F.2d 1231, 1247—48 (3rd Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), an ADEA case, the third circuit discussed this issue at length and concluded that the district court had abused its discretion in considering the salaries of legal services lawyers in setting fees. Other cases refusing to set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men’s Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978). We do not think, however, that compensating a public",
"Court’s use of Cravath rates to compensate these non-profit offices was so inordinately generous as to be unreasonable. In so ruling we do not suggest that the public interest lawyers who represented the Willowbrook class in this case are in any way less skilled or dedicated than Cravath’s lawyers. We have simply found that compensating these non-profit lawyers at Cravath rates would constitute a substantial windfall for the organizations involved. Windfalls are explicitly proscribed in the legislative history of section 1988, and we conclude that any award that includes such a large windfall must be considered unreasonable. The “windfall” aspect of the fees that have been awarded could be eliminated by determining the cost that each non-profit law office incurred to provide an hour of time of the various attorneys. Presumably, this calculation would involve dividing the attorney’s annual salary by his or her total number of productive hours per year and then adding a per-hour overhead cost, arrived at by dividing all non-salary costs for a year by the total of the productive hours in a year of all attorneys in the office. This cost-based approach would recognize that since the services of non-profit law offices are not allocated by a pricing mechanism, there is no real market billing rate that is precisely comparable for such offices. Indeed, cost-based fee awards have received increasing attention in recent years as an appropriate approach to all fee awards. See Copeland v. Marshall, supra, 641 F.2d at 908 (Wilkey, J., dissenting); Glover v. Johnson, 531 F.Supp. 1036 (E.D.Mich.1982); Page v. Preissner, 468 F.Supp. 399 (S.D.Iowa 1979); Alsager v. District Court of Polk County, 447 F.Supp. 572 (S.D.Iowa 1977). Alternatively, a modified cost-based approach could be used that would combine the non-profit office’s per-hour overhead cost with the value of an hour of an attorney’s time, the latter component to be derived from the salary an attorney of comparable skill and experience is paid by a private law firm. This approach would reduce the windfall inherent in the use of a private firm’s billing rate by. eliminating both the profit component and the",
"set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men’s Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978). We do not think, however, that compensating a public interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the defendant. We are not at this point convinced that this approach would yield a fairer calculation of attorney’s fees in a case like Copeland, and, for reasons stated above, we do not think a cost or salary related approach to computing attorney’s fees in a case like this would be legitimate. We note, in any event, that the panel decision in Copeland has been vacated,",
"F.2d 1024, 1026-27 (1st Cir. 1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Nevertheless, the defendants contend that the district court erred in failing to consider the salaries of the National Prison Project lawyers in Computing a reasonable fee. The district court understood the defendants to be arguing that the award for these lawyers’ services must be limited to the actual cost to the National Prison Project in litigating the plaintiffs’ lawsuits, as represented by the salaries paid counsel for the time spent on the cases. In rejecting this argument, the district court considered itself bound by decisions of this court, particularly Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978), to compensate counsel on the same basis as private practitioners. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18 (D.R.I. February 22, 1979). In addition, it found no support in other case law or the legislative history of the Fees Act for computing fees differently for a public interest organization and thought that lesser compensation would undermine certain purposes of fee awards: to deter illegal conduct, to encourage private enforcement of civil rights laws, and to attract competent counsel. Palmigiano v. Garrahy, supra, 466 F.Supp. at 736. The court also noted that the National Prison Project was prevented by its work in the present cases from applying its resources to other civil rights litigation; it added that the fee award in these cases would help to finance other such lawsuits. Id. Because the district court relied substantially on first circuit cases in refusing to give weight to counsels’ salaries, we begin by reviewing our own precedent. In King v. Greenblatt, supra, 560 F.2d at 1026-28, we announced that we would require courts awarding fees under the Fees Act to consider the twelve factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) and af firmed a fee award to private counsel that seemed reasonable under the Johnson criteria. A",
"increment by which the private firm’s overhead exceeds that of the non-profit office. By using the value of the non-profit attorney’s time instead of the cost of that time to his employer it would produce a fee reflecting the costs the non-profit office would likely have incurred to hire the attorney were it not for budgetary limitations. However attractive cost-based calculations of attorney’s fee awards for non-profit law offices might be as a means of avoiding windfall recoveries, we are not disposed to mandate them for several reasons. First, the case law in this area, including our own decisions in Torres and Beazer, has approved, almost without exception, the use of billing rates as a basis for calculating fee awards for non-profit law offices and has generally counseled against an invariable distinction between non-profit law offices and profit-making firms in calculating fee awards. Second, the windfall effect occurs primarily when non-profit law offices are compensated at the billing rates of profit-making law firms at the higher end of the market; these are the rates that can be expected to reflect a substantial profit component and a substantial premium for high rent and other costs. Third, cost-based fee awards, if required as a general matter, would burden the parties and the district courts with inevitable disputes about cost accounting. Indeed, the burden of calculating costs was one of the reasons that influenced the majority of the District of Columbia Circuit to reject a cost-based approach to fee awards. Copeland v. Marshall, supra, 641 F.2d at 896-900. We are thus confronted with this dilemma: use of billing rates for fees of non-profit law offices produces windfalls, which Congress disapproved; on the other hand, use of cost-based rates would conflict with our precedents and create administrative burdens if generally required, and such rates are needed to avoid significant windfalls only when billing rates are high. This statement of the problem suggests its own resolution: to award fees to nonprofit law offices at billing rates of comparable attorneys in the general run of cases as long as the billing rates are not so high",
"Angeles, 8 Empl.Prac.Dec. 5047 (C.D. Cal.1974), a Title VII case in which the court said: [I]t is not legally relevant that plaintiffs’ counsel ... are employed by the Center for Law In The Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner .... Id. at 5048-49. Similarly, the House Report endorsed other cases that said awards of fees to civil rights law firms should be equal to those awarded to members of the private bar. See H.R.Rep. No. 1558, 94th Cong., 2d Sess. 8 n. 16 (1976), and cases cited therein. Second, the purpose of the legislative scheme of the Civil Rights Act of 1964 will be served by computing fees based on a “market value” approach. The purpose of Title VIPs fee award provision, as we have seen, is to encourage the private enforcement of the civil rights laws. While some lawyers would assist in the private enforcement of Title VII for a reduced fee, Congress has recognized that payment of full fees will provide greater enforcement incentives. Full fee awards to public interest law firms help finance their work, both in the instant case, and in others. Indeed, fee awards (paid by proven discriminators) may help reduce the subsidies (paid from the public fisc) that some of these organizations receive. Third, to compute fees differently depending on the identity of the successful plaintiff’s attorney might result in two kinds of windfalls to defendants. The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established. Moreover, where a public interest law firm serves as plaintiff’s counsel (a law firm that, under the panel’s approach, will not obtain the full value of its services from the losing defendant) the defendant will be subject to a lesser incentive to settle a suit without litigation than would be the case if a high-priced private firm undertook plaintiff’s representation. Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980). That",
"interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the defendant. We are not at this point convinced that this approach would yield a fairer calculation of attorney’s fees in a case like Copeland, and, for reasons stated above, we do not think a cost or salary related approach to computing attorney’s fees in a case like this would be legitimate. We note, in any event, that the panel decision in Copeland has been vacated, that the case has been reheard en banc, and that a decision is still forthcoming. See Copeland v. Marshall, 48 U.S.L.W. 2017-18 (D.C.Cir. July 10, 1979). Judgments affirmed. . Two cases have been consolidated for appeal purposes. Palmigiano v. Garrahy was a successful class action challenging the overall conditions at the Rhode Island prisons as violative of the eighth amendment. 443 F.Supp. 956 (D.R.I.1977). In that case the district judge awarded $86,655.00 in attorney’s fees. 466 F.Supp. 732 (D.R.I.1979). Jefferson v. Southworth was a successful challenge to a prolonged “lock-up” at the state’s maximum security facility. 447 F.Supp. 179 (D.R.I.1978). In that case attorney’s fees of $28,828.75 were awarded. C.A. No. 77-544 (D.R.I., unpublished opinion filed February 22, 1979, and order entered March 9, 1979). . At a hearing about attorney’s fees in Palmigiano v. Garrahy, the state defendants argued to the district court that “it would be improper . to award these attorneys [the salaried employees of the National Prison Project] an amount in excess of their salary as computed and reflected in percentage",
"of its costs. We do not expect that even in the same community and at the same time each district judge will necessarily select the same “break point” as a presumptive maximum rate needed to avoid windfall fees to non-profit law offices. But we anticipate that the authority to place a ceiling on the appropriate private billing rate to be used in calculating fee awards for non-profit law offices will exert a moderating influence on those awards. This “break point” approach will avoid any distinction between non-profit law offices and profit-making firms in the general run of fee award claims where the billing rate of lawyers of comparable skill and experiences is below the figure that the judge would select as a “break point,” but at the same time it will permit the judge to reject use of billing rates above that figure, which would yield significant windfalls, contrary to an expressed legislative objective. With this approach in use, we think it appropriate to end the uncertainty as to whether the fees of non-profit law offices will or will not be proportionately reduced to reflect the share of their budgets reimbursed by public funding, and we conclude that such reductions should not be made. In this case, we have decided to apply the “break point” approach ourselves. See Beazer v. New York City Transit Authority, supra, 558 F.2d at 100-01 (revising amount of fee award); Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598 (7th Cir.1979) (same). In light of billing rates in New York City in 1980, the last year for which fees are claimed in this application, we think that an appropriate “break point” to be used in this case is $75 per hour. We do not intend to preclude district judges in other cases from selecting a “break point” somewhat above or below the figure we have selected in this case. We simply conclude that as of 1980 fees for the claimants in this case should not be calculated at rates higher than $75 per hour, instead of at rates ranging from $70 to $140 as used"
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'was made in good faith. In its counterclaim the defendant explicitly alleges that the controversy is “between citizens of different states and the value of the matter in controversy exceeds the sum or value of three thousand dollars ($3,000) exclusive of interest and costs, wherefore the defendant counter-claimant alleges that this Honorable Court has jurisdiction herein,” etc. Central Commercial Co. v. Jones-Dusenbury Co. (C.C.A.) 251 F. 13; American R. Co. of Porto Rico v. South Porto Rico Sugar Co., 293 F. 670 (C.C.A.1); Scott v. Donald, 165 U.S. 58, at page 89, 17 S.Ct. 265, 41 L.Ed. 632; Schunk v. Moline, etc., Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255, show the limitation of the rule. See, too, REDACTED 642, 643, 27 S.Ct. 297, 51 L.Ed. 656. The question whether the suit should be on the equity side of the court or the law side was not one going to the jurisdiction of the court as a federal court. As to it the agreement of the parties assented to by the court that the case should proceed on the equity side is controlling. William son v. Chicago Mill & Lumber Co., 59 F.(2d) 918 (C.C.A.8). The defendant’s next points are that the plaintiff’s breach of the agreement precluded her from recovering on it; and that her refusal to assist in the infringement suit terminated the agreement and relieved it from paying any further royalties. The District Judge ruled that “the threatened action
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[
"than $2,000; and (3) That the plaintiff in his petition had fraudulently stated the value of his land, the extent of his damages and the joint character of defendant’s action in entering and taking possession of his land, and had done this for the purpose of conferring jurisdiction upon the court. If. the last finding of fact was warranted by the evidence there is no néed of going further, because such a state of facts would demand a dismissal of the action. Ordinarily the plaintiff’s .claim with-'respect to the value of'the property taken from him or the amount of damages‘incurred by him through the defendants’ wrongful act measures for jurisdictional purposes the value of the matter in controversy, Smith v. Greenhow, 109 U. S. 669; Barry v. Edmunds, 116 U. S. 550; Scott v. Donald, 165 U. S. 58; Wiley v. Sinkler, 179 U. S. 58; unless, upon inspection of the plaintiff’s declaration, it appears that, as a matter of law, it is not possible for the plaintiff to recover the jurisdictional amount. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co., 93 U. S. 241; Vance v. Vandercook Company, 170 U. S. 468; North American Company v. Morrison, 178 U. S. 262. The rule that the plaintiff’s allegations of value govern, in determining the jurisdiction, except where upon the face of his own pleadings it is not legally possible for him to recover the jurisdictional amount, controls even where the declarations show that a perfect defense might be interposed to a sufficient amount of the claim to reduce it below the jurisdictional amount. Schunk v. Moline Co., 147 U. S. 500. In the last case the plaintiff’s petition prayed judgment on several promissory notes, of which some, amounting to $530, were due, and others, amounting to $1,664, were not due, the jurisdictional amount then, as now, being $2,000. In holding that the court had jurisdiction of the claim this court, by Mr^ Justice Brewer, said: “Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact"
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[
"of the amount in controversy and determines the question of jurisdiction; and it is indisputably the law that if the ultimate recovery is for less than the amount claimed, this is immaterial on the question of jurisdiction. Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632. From early days, the broad sweep of the rule has been subject to a qualification namely, that the plaintiff’s claim must appear to be made in good faith. Bowman v. Chicago & Northwestern Railway Co., 115 U.S. 611, 6 S.Ct. 192, 29 L.Ed. 502; Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255. Where it is plain that there is a mere pretense as to the amount in dispute, the amount of the claim will not avail to create jurisdiction, but where the plaintiff makes his claim in obvious good faith, it is sufficient for jurisdictional purposes; and this is so even where it is apparent on the face of the claim that the defendant has a valid defense. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, Milburn & Stoddart Co., supra; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656. In the last cited case, the Supreme Court said, 204 U.S. at page 644, 27 S.Ct. at page 300, that when a plaintiff in good faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden “to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is con cerning a subject of less than the jurisdictional value.” In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control ; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down",
"claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is not self-evidently greater or less than the federal amount-in-controversy requirement.” Id. at 158 (citation omitted). In such eases, “the defendant must prove, ‘more likely than not,’ that the plaintiffs claims meet the federal amount-in-controversy requirement .” Id. (granting a motion for reconsideration where the defendant satisfied its burden on removal of showing the plaintiffs claims exceeded the amount-in-controversy requirement) (citation omitted). The court applies that preponderance of the evidence standard herein, since the Plaintiffs’ claims for fraud (which would allow recovery of punitive damages) and for attorney’s fees make it impossible to say they seek to recover an amount self-evidently less than $75,000. See, Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990) (applying the preponderance of the evidence standard in finding the defendant had shown the case met the amount-in-controversy requirement). Thus, the court must remand this action unless AOL can show by a preponderance of the evidence that the Plaintiffs’ claims meet the amount-in-controversy requirement. II. LAW AND ANALYSIS A. Amount-in-Controversy in Class Claims 1. Aggregation of Class Claims The Plaintiffs do",
"303 U.S. 283, 289, 58 S.Ct. 586, 590, 32 L.Ed. 845, the court said: “It must appear to a legal certainty that the claim is really for less than the jursidictional amount to justify dismissal.” Dobie’s Federal Procedure says that the amount in controversy is always to be determined by the value to the plaintiff of the right that he in good faith asserts in his pleading, alleging the operative facts constituting his cause of action; and only the value of the right directly in issue in the particular suit, not the collateral effect of the judgment, may be considered in making up the necessary jurisdictional amount. Sec. 56, p. 133, 1928 Edition. See also 38 Harvard Law Review, p. 733. This is an action at law for a money judgment by an integral plaintiff against an integral defendant, and the amount in controversy is the amount of money sought in good faith to be recovered by the plaintiff. This is also an action for unliquidated damages, where the amount in controversy is ordinarily the sum claimed by the plaintiff in good faith; it is not the amount that he ultimately recovers. Wiley v. Sinkler, 179 U.S. 59, 65, 21 S.Ct. 17, 45 L.Ed. 84; Chesbrough v. North Trust Co., 252 U.S. 83, 40 S.Ct. 237, 64 L.Ed. 470. See also Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, where plaintiff’s property had been levied upon and carried away for a tax of $56.34; and the court said: “The plaintiff is not limited in his recovery to the mere value of the property taken. That would not necessarily cover his actual, direct, and immediate pecuniary loss.” A valid defense to a cause of action, apparent on the face of the complaint, does not diminish the amount that is claimed, nor determine what is the matter in dispute. Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 51 L.Ed. 656, 659. The amount recovered or the failure of the",
"exceeds, exclusive of interest or cost, the sum or value of $3,000, and of all controversies in which there is a separable controversy involving such jurisdictional amount and in which all of the parties on either side of such separable controversy are citizens or subjects of the character aforesaid. * * *” In construing the section, the Court of Appeals for the First Circuit, after reviewing the history of the various Acts defining the jurisdiction of this court, came to the conclusion that the Organic Act of 1917 “enlarges the classes of citizenship upon which the diversity jurisdiction of the District Court for Puerto Rico is based, over and above the diversity jurisdiction conferred generally upon district courts of the United States by § 24 of the Judicial Code * * *.” Ferrocarriles Del Este v. Bowie, 136 F.2d 527, at page 529. Thus under this enlarged or additional jurisdiction, not vested in the District Courts by Sec. 1332 of Title 28 U.S.C.A., it was held that this Court had jurisdiction of an action by a Spanish citizen not domiciled in Puerto Rico against a Canadian Corporation wherein the matter in controversy exceeded $3,000. Sanfeliz v. Bank of Nova Scotia, 1 Cir., 74 F.2d 338. See, also, Porto Rico Ry., Light & Power Co. v. Cognet, 1 Cir., 3 F.2d 21, and Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 40 S.Ct. 516, 64 L.Ed. 944. Under section 1332, Federal District Courts have no jurisdiction of suits between aliens, where no federal question is involved. Montalet v. Murray, 4 Cranch 46, 2 L.Ed. 545; Doidge v. Cunard S.S. Co., 1 Cir., 19 F.2d 500; Tsitsinakis v. Simpson, Spence & Young, D.C., 90 F.Supp. 578; Kavourgias v. Nicholaou Co., 9 Cir., 148 F.2d 96, 97. Under section 863, Title 48 U.S.C.A., this Court has such jurisdiction if all of the parties on either side of the controversy are not domiciled in PuertoRico. Also, under the same section, this-Court would have jurisdiction over a controversy between two citizens of the same-state, if all of the parties on either",
"defense. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, Milburn & Stoddart Co., supra; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656. In the last cited case, the Supreme Court said, 204 U.S. at page 644, 27 S.Ct. at page 300, that when a plaintiff in good faith asserts a claim in an amount within the jurisdiction of the Court, the Judge is forbidden “to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is con cerning a subject of less than the jurisdictional value.” In applying this test, it has been further recognized that while good faith is a salient factor, it alone does not control ; for if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount, the case will be dismissed for want of jurisdiction. Such is the doctrine laid down in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845. However, the legal impossibility of recovery must be so certain as virtually to negative the plaintiff’s good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved, for jurisdictional purposes, in favor of the subjective good faith of the plaintiff. In certain of the older cases, a somewhat different statement of the rule is found. It was formerly said that “if, from the nature of the case as stated in the pleadings, there could not legally be a judgment for an amount necessary to fhe jurisdiction, jurisdiction cannot attach.” Vance v. W. A. Vandercook Co., 170 U.S. 468, 18 S.Ct. 645, 647, 42 L.Ed. 1111. The possible difference between the two formulations was the subject of some discussion in Calhoun v. Kentucky-West Virginia Gas Co., 6 Cir., 166 F.2d 530, but the difference may be more apparent than real. Cf. Scott v. Donald, supra, 165 U.S. at page",
"1940, the defendant’s motion for summary judgment will be sustained, and judgment of dismissal entered thereon, with exception to the plaintiff. (b). But the court can not follow the defendant on the next step to which it is invited; for it considers that its jurisdiction remains unimpaired by the present dismissal of the second cause of action of the complaint, although the aggregate amount recoverable under the remaining seven causes of action is slightly less than $3,000.00. In cases where jurisdiction is derived from diversity of citizenship coupled with a controversy involving a statutory minimum amount, it is the sum actually claimed in good faith by the plaintiff when he files his complaint which determines the jurisdiction of the court and the fact that the plaintiff may not succeed in recovering all that he seeks in good faith will not affect the jurisdiction of the court. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, etc., Co., 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656; Hardin v. Cass County, C.C., 42 F. 652; Washington County v. Williams, 8 Cir., 111 F. 801; Board of County Commissioners v. Vandriss, 8 Cir., 115 F. 866; Service Finance Corporation v. Coppard, 5 Cir., 116 F.2d 488. Citations in great number might be added, but there seems to be no dissent upon the suggested point. It is true that where, through bad faith elements or causes of action are introduced for the manifest purpose of inflating a claim to a point above the jurisdictional minimum, jurisdiction will be denied. Bank of Arapahoe v. David Bradley 6 Co., 8 Cir., 72 F. 867. “By good faith is meant that the sum demanded in the pleading is the real matter put m dispute, and not so clearly fictitious as to make it legally certain that the amount alleged was merely to confer jurisdiction because clearly beyond reasonable expectation of recovery.” Miller Crenshaw Co. v. Colorado Mill & Elevator Co., 8 Cir., 84 F.2d 930, 932. Both as a general legal",
"it was originally filed. I. STANDARD FOR REMAND Initially, the court must determine the proper standard for determining whether it has jurisdiction over this case, and upon which party lies the burden of proving jurisdiction. The relevant jurisdictional statute confers upon this court the power to adjudicate “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a)(1). Generally, the party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. Gen’l Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (declaring that “the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”). In this case, then, it is AOL that bears the burden of proving jurisdiction, because the Plaintiffs would prefer to have stayed in state court, where they first filed their case. When a plaintiff originally files her claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is",
"where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). Although Ms. Kopp’s medical bills fall well below the requisite amount, she argues that in the circumstances of this case she could well recover punitive damages and damages for emotional distress that would exceed $75,000. We have held that “a complaint that alleges the jurisdictional amount in good faith will suffice to confer jurisdiction, but the complaint will be dismissed if it ‘appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.’ ” Larkin v. Brown, 41 F.3d 387, 388 (8th Cir.1994) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). If the defendant challenges the plaintiffs allegations of the amount in controversy, then the plaintiff must establish jurisdiction by a preponderance of the evidence. McNutt v. General Motors Ac ceptance Corp., 298 U.S. 178, 188-89, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Federated Mut. Implement and Hardware Ins. Co. v. Steinheider, 268 F.2d 734, 737-38 (8th Cir.1959). When the “legal certainty” standard announced in Larkin is combined with the burden of proof established in McNutt, it appears that the relevant legal rule is that the proponent of diversity jurisdiction must prove a negative by a preponderance of the evidence in order to avoid dismissal of his or her case. A leading, treatise, for example, suggests that the proponent of federal jurisdiction must show “that it does not appear to a legal certainty that the claim for relief is for less than the statutorily prescribed jurisdictional amount.” 14B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3702 (3d ed.1998). We have no quarrel with this formulation of the applicable law, but we think that the same principle can be stated just as readily in the affirmative: The district court has subject matter jurisdiction in a diversity case when a fact finder could legally conclude, from the pleadings and proof adduced to the",
"1000, 1002-03 (10th Cir.1995). The mere allegation of jurisdictional facts does not guarantee a litigant her day in court if the district court determines that those facts do not exist. However, that same line of cases also requires that any inquiry into the jurisdictional amount cease at the boundaries of the complaint. A possible defense, however good and likely to be pleaded in response to the complaint, does not matter. Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 299, 51 L.Ed. 656 (1907); Schunk v. Moline, Milburn & Stoddard Co., 147 U.S. 500, 505, 13 S.Ct. 416, 417, 37 L.Ed. 255 (1893); 14A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and PROCEdure § 3702 at 33-35 (West, 2d ed. 1985); see also St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. at 590 (“The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim.”) Thus, [although there might be a perfect defense to the suit ..., yet the fact of a defense, and a good defense, too, would not affect the question as to what was the amount in dispute.... In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute.... Schunk, 147 U.S. at 504-05, 13 S.Ct. at 417; see also Smith, 204 U.S. at 642-43, 27 S.Ct. at 300; Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994); Ochoa v. Interbrew America, Inc., 999 F.2d 626, 628-29 (2d Cir.1993); Jihaad v. O’Brien, 645 F.2d 556, 561 (6th Cir.1981); Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997-98 (6th Cir.1976); James v. Lusby, 499 F.2d 488, 492 (D.C.Cir.1974); Riggins v. Riggins, 415 F.2d 1259, 1262 (9th Cir.1969); Anderson v. Moorer, 372 F.2d 747, 750 (5th Cir.1967); Burks v. Texas Co., 211",
"the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. See also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (stating that party invoking federal jurisdiction must allege facts essential to show jurisdiction and court may demand evidence supporting such facts). We reiterate that the burden of proving jurisdiction lies with the removing defendant. A conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant’s burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.1994) (concluding that removing defendant did not meet burden of proving amount in controversy where it offered “nothing more than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant must make “affirmative showing ... of all the requisite factors of diversity jurisdiction”). In this case, it is not facially apparent from Williams’ complaint that the amount in controversy exceeds $75,000. We therefore look to Best Buy’s notice of removal. Although the notice of removal clearly asserts that the jurisdictional re-' quirement is satisfied, the only fact alleged in support of that assertion is that Williams refuses to stipulate that her claims do not exceed $75,000. There are several reasons why a plaintiff would not so stipulate, and a refusal to stipulate standing alone does not satisfy Best Buy’s burden of proof on the jurisdictional issue. Thus, the pleadings are inconclusive as to the amount in controversy. Where the pleadings are inadequate, we may review the record to find evidence that diversity jurisdiction exists. See Sun Printing & Publ’g Ass’n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 697, 48 L.Ed. 1027 (1904); Rice v. Office of Servicemembers’ Group Life Ins., 260"
] |
"applicable Army regulations. We thus conclude the ABCMR did not act arbitrarily and capriciously in refusing to upgrade Green’s discharge from undesirable to honorable. Privacy Act Claim On appeal, the Secretary argues Green’s’ Privacy Act claim is barred by the statute of limitations. We agree. An action to enforce rights under the Privacy Act must be brought “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the Privacy Act when the individual knows or has reason to know of the alleged error in the individual’s record and the individual is harmed by the alleged error. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987); REDACTED Green knew of the alleged error in his record in 1981 when he first sought to have his discharge upgraded from undesirable to honorable. Green was also harmed by the alleged error in 1981 when he was denied medical treatment from the Department of Veterans Affairs hospital because he did not have an honorable discharge. On this basis,""we conclude Green’s Privacy Act claim arose in 1981. Because Green did not file-suit until December of 2001, his claim is barred by the Privacy Act’s two-year statute of limitations. III. Conclusion For the foregoing reasons, we will affirm the order of the district court."
|
[
"separately these two appeals, we note that the complaints in each underlying action were filed pro se, and, as did the district court, we find them somewhat difficult to track. No. 83-2426 (Privacy Act) As stated, the district court granted summary judgment in favor of the Department of Commerce as concerns Bergman’s cause of action based on the Privacy Act. The gist of Bergman’s initial complaint was that the Department refused his request to amend and “correct” retroactively his employment records. 5 U.S.C. § 552a(g)(l)(C) allows an individual to sue whenever an agency fails to maintain an employment record “with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to ... benefits to the individual----” 5 U.S.C. § 552a(g)(l), (5) provides that an action under the section may be brought “within two years from the date on which the cause of action arises.” In ascertaining when Bergman’s cause of action arose, the district court held that it arose at the time: 1) an error was made in maintaining Bergman’s records; 2) Bergman was wronged by such error; and 3) Bergman either knew or had reason to know of such error. The district court held that in the instant case all three conditions were met, at the very latest, on October 25, 1977, when the Department notified Bergman in writing that the Department could not retroactively classify job positions, grant him “monetary relief,” or pay his legal fees or other expenses, or otherwise reconsider the 1973 Reduction in Force discharge. The underlying action in No. 83-2426 was not instituted until October 7, 1982, almost five years after the letter was sent to Bergman by the Department. We find no error in the district court’s analysis of this matter. In support of the action taken, see Oppenheim v. Campbell, 571 F.2d 660 (D.C.Cir.1978), where the D.C. Circuit held that a similar action, though not identical to the one asserted here by Bergman, arose when the plaintiff’s “right to resort to federal court was perfected.” See also R.R. v. Department of Army, 482 F.Supp. 770, 774,"
] |
[
"claims should be dismissed because they are (1) time barred by the statute of limitations, (2) the plaintiff failed to exhaust his administrative remedies, and (3) the plaintiff inappropriately used the Privacy Act to challenge the substantive decisions of the Army. a. Statute of Limitations Actions to enforce rights under the Privacy Act must be brought “within two years from the date on which the cause of action arises .... ” 5 U.S.C. § 552a(g)(5); see also Blazy v. Tenet, 979 F.Supp. 10, 22 n. 6 (D.D.C.1997) (citing Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987); Diliberti v. United States, 817 F.2d 1259, 1263-64 (7th Cir.1987) (concluding the two-year statute of limitations runs from the date the plaintiff knew or should have known of the maintenance of inaccurate records)). Failure to meet the two-year period may deprive a court of subject matter jurisdiction and thus bar the action. See generally Blazy, 979 F.Supp. at 22 n. 6. The defendant relies on Griffin v. United States Parole Comm’n, 192 F.3d 1081, 1082 (D.C.Cir.1999) to apparently argue that any claim filed after the two-year period is time barred. Griffin, however, was overruled by Chung v. United States Dep’t of Justice, 333 F.3d 273, 278 n. * (D.C.Cir.2003). Chung determined that a rebuttable presumption in favor of equitable tolling of the statute of limitations applies to a Privacy Act claim. Id. at 277-78. Equitable tolling applies most commonly when a plaintiff, despite all due diligence, cannot obtain vital information bearing on the existence of his claim. Id. at 278 (citing Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C.Cir.1998)). Consequently, a Privacy Act claim filed after the two-year period is not automatically time barred; equitable tolling of the statute of limitations may occur. The defendant argues that the plaintiffs Privacy Act claims are time barred. The plaintiff first claims that he was denied access to his medical records “while in the hospital-” (Pl.’s Compl. at pp. 2-3, ¶ 1). The defendant argues that any claim of the plaintiff under the' Privacy Act would have expired in October 2002 because he knew or",
"OPINION OF THE COURT BECKER, Chief Judge. This is an action by plaintiff Johnnie E. Green against Army Secretary Thomas E. White (“the Secretary”) seeking correction of Green’s military records. Because the District Court erred in finding that Green’s suit is time-barred, we reverse the order of the District Court dismissing the suit and remand for further proceedings. I. The case stems from Green’s 1950 discharge from the United States Army. Green entered Army service in January 1949 and was honorably discharged in December of the same year. He re-enlisted and served from December 1949 to July 1950. On July 7, 1950 Green was reported absent without official leave (“AWOL”) as of the previous day. He returned to duty on July 8th. As a result of his going AWOL, the Army dropped Green in rank and, on July 31,1950, gave him an undesirable discharge. Green asserts that his discharge “hearing” was perfunctory. He met with his First Sergeant and a Second Lieutenant. The Sergeant told Green he had “too many delinquent reports,” and asked him how he pleaded. Green responded that he pleaded “guilty with an explanation,” and he was then told to wait outside for a decision. When Green was called back in ten minutes later, the Sergeant told him that he had “pleaded guilty to being a delinquent person. And it is the decision of this Board that you be discharged, as an Undesirable Person.” The Army duly gave Green a “blue” discharge, which is a less-than-honorable discharge that deprives Green of most veterans’ rights. Thirty-one years later, in 1981, Green applied to the Army Discharge Review Board (“ADRB”) for review of his discharge and requested that his “Undesirable Discharge” be upgraded to “Honorable.” The Review Board rejected Green’s application and he then applied to the Army Board for Correction of Military Records (“ABCMR”) for review of this decision. In 1982 the ABCMR upheld the ADRB’s decision. Green filed petitions for reconsideration of the ABCMR’s ruling in 1983 and 1986 and was rejected on both occasions for a failure to submit new evidence. In May 1999, Green again",
"The Privacy Act i. Statute of Limitation Plaintiff’s complaint is barred by the two year statute of limitation under the Privacy Act. Plaintiff filed this action on August 4, 1995, seeking damages for alleged injuries which occurred from September 5, 1993 to October 20, 1994. However, the record indicates that the alleged violation, which gave rise to this Privacy Act cause of action, arose as early as February 5, 1993. Section 552a(g)(5) provides that a cause of action under the Privacy Act must be filed within two years of the alleged violation, or within two years after plaintiffs discovery of the alleged violation. The United States Court of Appeals for the District of Columbia Circuit has interpreted this to mean that the statute of limitation runs when the plaintiff knows or should know of the alleged violation. Tijerina v. Walters, 821 F.2d 789 (D.C.Cir.1987) (holding that in a normal Privacy Act claim, the cause of action does not arise and the statute of limitation does not begin to run until the plaintiff knows or should know of the alleged violation). Furthermore, this court has found that “new causes of action do not arise each and every time there is subsequent adverse determination based on the alleged incorrect records.” Szymanski v. U.S. Parole Comm., 870 F.Supp. 377, 378 n. 4 (D.D.C.1994), (citing Diliberti v. U.S., 817 F.2d 1259, 1264 (7th Cir.1987)). If the suit is not filed within two years, the court simply no longer has subject matter jurisdiction. Id. at 378. In the present case, plaintiff knew of defendant’s alleged violation of her rights under the Privacy Act for more than two years. The evidence in the record demonstrates that plaintiff was aware of the alleged omission in her Second File as early as February 5,1993. In a letter to Mr. Kelly, dated February 5, 1993, plaintiff wrote that “the fact that I am precluded from [camp placement] due to my escape history, I am requesting your assistance with locating my [First File] which would document a more recent furlough history and be more favorable to me.” This letter demonstrates",
"of two years after he first has reason to believe that the government is maintaining such a record to investigate whether there are reasonable factual and legal bases for bringing an action under the Privacy Act and then ultimately to file the suit. The plaintiff had the full two years to determine whether the rumors and hearsay could be substantiated. Section 552a(g)(5) does not afford him any further time. Finally, the plaintiff argues that the continuing violation doctrine should toll the statute of limitations. According to the plaintiff, the government’s use of the private records to force the plaintiff into early retirement from the civil service on December 81, 1983, was a new and continuing unlawful act, occurring well within two years of the filing of this suit on February 1, 1984. The Tenth Circuit in Bergman rejected the argument that a new cause of action arises upon “each and every subsequent adverse determination based on erroneous records.” 751 F.2d at 317. The plaintiff has not alleged any new unlawful conduct by the government; he has merely alleged a continuing adverse consequence of prior unlawful conduct. See, e.g., Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (“A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”); Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C.Cir.1978) (plaintiff’s claim accrues when he is “first harmed”). We fully agree with the Tenth Circuit that to subscribe to an argument such as the plaintiff advances “would, in practical effect, mean that the two-year statute would never run.” Bergman, 751 F.2d at 317. The plaintiff's Privacy Act suit is barred by § 552a(g)(5) and we therefore affirm the district court’s dismissal for lack of subject matter jurisdiction, although on another ground. . Section 552a(g)(5) also provides that where an agency has materially and willfully misrepresented material information required to be disclosed to an individual under the Privacy Act, an action may be brought “at any time within two years after discovery by the individual of the misrepresentation.\" By focusing on when the plaintiff first knew or had",
"courts of subject matter jurisdiction over the action.” Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A cause of action arises under the Privacy Act at the time that, (1) an error was made in maintaining plaintiffs records; (2) plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error. See Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984); see also Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987) (holding that the statute of limitations begins to run when plaintiff knew, or should have known of the alleged violation). Under this standard it is clear that plaintiffs claim is time barred. The prehearing assessment report is dated June 12, 1991, which is the latest date that an error could have been made in the documents that plaintiff challenges. If plaintiff was harmed by any errors in the documents, the harm occurred as a result of the August 9,1991 parole decision. Plaintiff claims that he knew or had reason to know of the error(s) in June 1993. The record shows however, that plaintiff knew or should have known of alleged violation at the latest by August 23, 1991. Because plaintiff did not file suit until February, 1994, the suit is not timely. The record shows that plaintiff knew or should have known about all the information that he maintains is incorrect by August 23, 1991. Plaintiff asserts that he is innocent of the 1988 prison drug infraction that is cited in the June 3, 1991 institutional progress report. Plaintiff reviewed this document on June 4, 1991 yet did not file this suit until 1994. The other information that plaintiff maintains is incorrect is in his 1987 presen-tence report and the June 12, 1991 prehear-ing assessment. This Court finds for two reasons that plaintiff knew or should have known of the information in those documents that he claims are incorrect more than two years before he filed suit. First, on May 7, 1991 plaintiff waived his right to inspect the files that were to be considered by the parole",
"Plaintiff’s Privacy Act Claim Is Untimely A civil action under the Privacy Act must be filed within two years from the date a claim accrues, see id. § 552a(g)(5), unless equitable tolling of the limitations period is 'warranted. See Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 n. 1 (D.C.Cir.2003). “The only exception to the rule arises if an agency ‘materially and willfully misrepresented any information,’ ” and in such circumstances, “the action may be brought at any time within two years after discovery by the individual of the misrepresentation.” Samtmann v. U.S. Dep’t of Justice, 35 F.Supp.3d 82, 88 (D.D.C.2014) (quoting 5 U.S.C. § 552a(g)(5)), aff'd, No. 14-5115, 2015 WL 236560 (D.C.Cir. Jan. 16, 2015) (per curiam). The FBI moves to dismiss Plaintiffs Privacy Act claim on the ground that it is barred by the two-year statute of limitations. See Def.’s Mem. at 7-8. FBI records reflect that the relevant Electronic Communication from file number 305D-ME-57442 was released to Plaintiff on May 24, 2010 in response to his Freedom of Information Act request, such that the two-year limitations period expired long before Plaintiff filed this action nearly four years later in 2015. Further, the FBI argues, tolling is not warranted because Plaintiff fails to allege facts to show that the agency willfully or intentionally misrepresented information pertaining to him or its criminal investigation of his‘activities: See id. at 8. ^ Plaintiffs cause of action arose when he knew or had reason to know of the alleged Privacy Act violation, See Ramirez v. Dep’t of Justice, 594 F.Supp.2d 58, 62 (D.D.C.2009). Presumably Plaintiff knew or had reason to know that the Electronic Communication contained false or inaccurate information upon receipt of records from the FBI-in response to his FOIA request. Plaintiff’s response to the FBI’s motion to dismiss does not mention the statute of limitations, set forth any. basis for equitable tolling, or proffer alleged facts .to support his wholly conclusory assertions of the FBI’s supposed willful and intentional misrepresentations. The court concludes that Plaintiffs Privacy Act claim is barred by the statute of limitation's and, therefore must",
"See Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Because Davis has chosen to sue the defendants only in their official capacity, his claims are barred. Davis next claims that the district court erroneously dismissed his Privacy Act claim for failure to exhaust administrative remedies. For Davis’s Privacy Act claim to survive dismissal, however, he must have brought it within the two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The statute of limitations starts to run when the plaintiff first knew or had reason to know of a violation. See Bowyer v. United States Dept. of Air Force, 875 F.2d 632, 635 (7th Cir.1989); see also Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). A Privacy Act claim is not tolled by continuing violations. See Diliberti, 817 F.2d at 1261. Davis claims that HUD attorney Crowder filed a Charge of Discrimination against him on January 17, 1996 based upon records improperly obtained from Brooks-Pittman and a falsified Final Investigative Report prepared by Burks. He also alleges that Crowder failed to verify any exculpatory information he provided prior to filing the Charge and that she then improperly transferred records used in preparing the Charge to the DOJ. Based upon these allegations, the district court found that Davis had reason to know that HUD was violating the Privacy Act at least as early as January 17, 1996, when Crowder filed the allegedly inaccurate Charge of Discrimination. Davis, however, waited more than two years before filing his complaint on February 27, 1998. Davis therefore failed to bring his claim within the time allowed by the statute of limitations. “Where the government’s consent as sovereign to be sued is conditioned upon the filing of suit within a specified period of time, strict compliance with that condition is a jurisdictional prerequisite.” Id. It was Davis’s burden to establish that the statute of limitations had been met in order to invoke the district court’s jurisdiction, see Bowyer, 875 F.2d at 635, and he has failed to do so. Because the district court properly dismissed this claim for lack",
"Act claim was time-barred and that, because the Privacy Act provides a comprehensive remedial scheme for harm caused by governmental disclosure of personal information, it was inappropriate for a court to imply a constitutional remedy for such disclosure under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Chung appeals both aspects of the district court’s ruling, but only our resolution of his Privacy Act issue merits treatment in a published opinion. II. Analysis Section 552a(b) of the Privacy Act, with certain exceptions not relevant here, prohibits a federal agency from releasing information about a person without his consent. 5 U.S.C. § 552a(b). The Act further provides: An action to enforce any liability created under this section may be brought ... within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so .misrepresented is material to the establishment of the liability of the agency ... the action may be brought at any time within two years after discovery ... of the misrepresentation. 5 U.S.C. § 552a(g)(5). The parties agree Chung’s claim arose in May 1998 when the press reports containing leaked information appeared. Chung did not file his lawsuit until August 2000, a little more than two months after the two-year deadline in the Privacy Act. We must decide whether Chung’s failure to meet the statutory filing deadline can (and, if so, should) be excused, as Chung claims, because he could not sue the Government, without jeopardizing his bid for leniency, until after he was sentenced in December 1998. A. Equitable tolling of the Privacy Act limitation In litigation between private parties, courts have long invoked waiver, estoppel, and equitable tolling to ameliorate the inequities that can arise from strict application of a statute of limitations. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). The applicability of those",
"know of the alleged violation). Furthermore, this court has found that “new causes of action do not arise each and every time there is subsequent adverse determination based on the alleged incorrect records.” Szymanski v. U.S. Parole Comm., 870 F.Supp. 377, 378 n. 4 (D.D.C.1994), (citing Diliberti v. U.S., 817 F.2d 1259, 1264 (7th Cir.1987)). If the suit is not filed within two years, the court simply no longer has subject matter jurisdiction. Id. at 378. In the present case, plaintiff knew of defendant’s alleged violation of her rights under the Privacy Act for more than two years. The evidence in the record demonstrates that plaintiff was aware of the alleged omission in her Second File as early as February 5,1993. In a letter to Mr. Kelly, dated February 5, 1993, plaintiff wrote that “the fact that I am precluded from [camp placement] due to my escape history, I am requesting your assistance with locating my [First File] which would document a more recent furlough history and be more favorable to me.” This letter demonstrates that plaintiff believed that her Second File was not complete and that she was actively seeking to amend it. Furthermore, plaintiffs complaint states that she continuously sought to access and amend her Second File from February 5, 1993 to October 20,1994, without success. Based on this evidence, the court concludes that plaintiff knew or should have known of the BOP’s alleged violation of plaintiffs rights under the Privacy Act as early as February 5,1993. Plaintiff, however, did not file the current action until August 4, 1995, two years and six months after she knew or should have known of the alleged violation. Thus, plaintiffs suit falls outside the statute of limitation of the Privacy Act. Accordingly, the court concludes that plaintiffs Privacy Act claims are barred by the two year statute of limitation. ii. Failure to State a Claim Even if plaintiffs complaint was timely filed, plaintiffs complaint fails to satisfy the four-prong test in an action for damages under the Privacy Act. To prevail in a Privacy Act cause of action, plaintiff must establish",
"a foreign country. We address each question in turn, reviewing de novo “the question of when a cause of action accrues[under the Privacy Act] and whether [such] a claim is barred by the statute of limitations.” See Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th Cir.2006). A Initially, we must determine whether Rouse’s complaint was filed within two years of the date his cause of action allegedly arose. We have held that a cause of action arises under the Privacy Act when the plaintiff “knows or has reason to know of the alleged violation.” Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990). Rouse “concedes that he was aware of many of the acts and omissions underlying the violations of the Privacy Act during the course of his imprisonment.” The record bears this out. By 1998, Rouse allegedly “began to realize that the Embassy personnel were deliberately manipulating the existence and content of his [Privacy Act waivers].” At the very latest, Rouse would have been aware of the basis for his most recent allegation against the Department when he received his “complete” file pursuant to a FOIA request in early 2002. Accordingly, when Rouse’s complaint was filed on September 27, 2005, it was filed more than two years after he knew or had reason to know of the alleged violations. B Before proceeding further, we must decide whether § 552a(g)(5) operates as'a statute of limitations or as a jurisdictional bar. If it is the former, the traditional defenses of “waiver, estoppel, and equitable tolling” apply. United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). If it is the latter, such defenses are inapplicable, and we lack subject matter jurisdiction over the case entirely. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). For many years, it was commonplace for courts to determine that time limits in statutes permitting suits against the government were jurisdictional in nature. See, e.g., Action on Smoking & Health v. C.A.B., 724 F.2d 211,"
] |
between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain. Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to. persons or other property. Even assuming that Delaval’s supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); REDACTED Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co.,
|
[
"For this reason, although we find encouragement in cases relied upon by Smith, as well as the recent decision in Lincoln Pulp & Paper Co. v. Dravo Corp., 436 F.Supp. 262 (D.Me.1977) (Pennsylvania law), we decline to treat any of them as precisely in point. Supportive California authority consists of Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App.2d 95, 104-05, 47 Cal.Rptr. 518, 524 (1965) (between parties of equal bargaining strength, risk of loss for defective product should be borne by buyer who, as a matter of business judgment, accepted risk associated with bargained-for price; rather than on seller, who neither agreed to bear loss nor was compensated for it). IV. Recovery Under Negligence Counts. Where the suit is between a nonperforming seller and an aggrieved buyer and the injury consists of damage to the goods themselves and the costs of repair of such damage or a loss of profits that the deal had been expected to yield to the buyer, it would be sensible to limit the buyer’s rights to those provided by the Uniform Commercial Code. See Keeton, Torts, Annual Survey of Texas Law, 25 Sw.L.J. 1, 5 (1971); Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan.L.Rev. 974, 996-97, 1012-14 (1966). To treat such a breach as an accident is to confuse disappointment with disaster. Whether the complaint is cast in terms of strict liability in tort or negligence should make no difference. There exists some authority supporting this view. See Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex.1978); Kaiser Steel Corp. v. Westinghouse Electric Corp., 55 Cal. App.3d 737, 127 Cal.Rptr. 838 (1976). In a somewhat curious way California law achieves this result by limiting the type of losses recoverable under an action in negligence. Economic losses are not recoverable under negligence. Seely v. White Motor Co., 63 Cal.2d 9, 18, 45 Cal.Rptr. 17, 23, 403 P.2d 145, 151 (1965) fixed the rule and it frequently has been followed. See Anthony v. Kelsey-Hayes Co., 25 Cal.App.3d 442, 446-A7, 102 Cal.Rptr. 113, 115-16 (1972);"
] |
[
"with prejudice by the District Court. Delaval then moved for summary judgment, contending that the charterers’ actions were not cognizable in tort. The District Court granted summary judgment for De~ laval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (1985). The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product’s quality, on the other hand, are protected by warranty law. Id., at 908, 909-910. The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines’ component parts, and the only risk created was that the turbines would operate at a lower capacity. Id., at 909. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F. 2d 1165, 1169-1170 (CA3 1981). Therefore, neither the negligence claim nor the strict-liability claim was cognizable. Judge Garth concurred on “grounds somewhat different,” 752 F. 2d, at 910, and Judge Becker, joined by Judge Higginbotham, concurred in part and dissented in part. Id., at 913. Although Judge Garth agreed with the majority’s analysis on the merits, he found no strict-liability claim presented because the charterers had failed to allege unreasonable danger or demonstrable injury. Judge Becker largely agreed with the majority’s approach, but would permit recovery for a “near miss,” where the risk existed but no calamity occurred. He felt that the first count, concerning the Stuyvesant, stated a cause of action in tort. The exposure of the ship to a severe storm when the ship was unable to operate at full power due to the defective part created an unreasonable risk of harm. We granted certiorari to resolve a conflict among the Courts of Appeals sitting in admiralty. 474 U. S. 814 (1985). Ill A Initially, we conclude that the fourth count should have been dismissed because Richmond Tankers, Inc., the charterer of the Bay Ridge, lacks standing to",
"on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); S. M. Wilson & Co. v. Smith International, Inc., 587 F. 2d 1363 (CA9 1978). Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F. 2d 1129 (CA9 1977); and Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F. 2d 171 (CA5 1975). Cf. Louisiana ex rel. Guste v. M/V Testbank, 752 F. 2d 1019 (CA5 1985) (en bane), cert. pending sub nom. White v. M/V Testbank, No. 84-1808. The charterers do not ask us to defer to the law of New Jersey, the forum State. Nor is application of state-law principles required here. New Jersey lacks any “pressing and significant” interest in the tort action. See Kossick v. United Fruit Co., 365 U. S. 731, 739 (1961). In any event, reliance on state law would not help the charterers’ case, since it mandates the same conclusion reached by the District Court and the Court of Appeals: that Delaval had no tort duty to the charterers. See Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N. J. 555, 579, 489 A. 2d 660, 672 (1985). The question is not answered by the Restatement (Second) of Torts §§ 395 and 402A (1965), or by the Uniform Commercial Code, see Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore",
"four counts allege strict liability in tort, based on the alleged defects in the turbines manufactured by Delaval for the STUYVESANT, the WILLIAMSBURGH, the BROOKLYN, and the BAY RIDGE, re spectively. The fifth count alleges negligence in the installation of the astern guardian valve of the BAY RIDGE. The second amended complaint invokes jurisdiction on the basis of Fed.R.Civ.P. 9(h) (admiralty), and the district court treated all of the counts of the complaint as being governed by federal maritime law. Delaval moved for summary judgment, arguing that the charterers’ claims were solely for economic loss, and that such loss was not recoverable in tort. In an opinion filed on October 5, 1982, the district court adopted the majority common-law position that losses caused by qualitative product defects are not recoverable in tort absent unreasonable risk of harm to persons or property other than the product. See Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981). The court granted summary judgment on counts one through four on the basis that the strict liability allegations failed to state a cause of action in admiralty with respect to any of the vessels. The district court denied summary judgment on the negligence claim at that time, but in an opinion and order filed on January 24,1983, reversed itself and granted Delaval’s motion for summary judgment in its entirety. We affirm. II. The first issue we must decide is whether the charterers’ claims are within the maritime jurisdiction of the federal courts. 28 U.S.C. § 1333(1) (1982). The district court found that all five counts were within maritime jurisdiction because the “nature of the vessels as mammouth oil tankers engaged in international commercial trade places them and the functioning vel non of their turbines close to the heart of federal admiralty concerns.” (A-259). We agree. In Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court set forth a flexible two-part test for determining whether a claim is maritime in character and hence within the admiralty jurisdiction of the federal courts. First, there",
"Tr. of Oral Arg. 36. Even so, the charterers should be left to the terms of their bargains, which explicitly allocated the cost of repairs. In the charterers’ agreements with the owners, the charterers took the ships in “as is” condition, after inspection, and assumed full responsibility for them, including responsibility for maintenance and repairs and for obtaining certain forms of insurance. Id., at 11, 16-17, 35; App. 86, 88, 99, 101, 112, 114, 125-126, 127. In a separate agreement between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain. Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to. persons or other property. Even assuming that Delaval’s supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); S. M. Wilson & Co. v. Smith International, Inc., 587 F. 2d 1363 (CA9 1978). Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F. 2d 1129 (CA9 1977); and Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F. 2d",
"Justice Blackmun delivered the opinion of the Court. In this admiralty case, we must decide whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss. The case requires us to consider preliminarily whether admiralty law, which already recognizes a general theory of liability for negligence, also incorporates principles of products liability, including strict liability. Then, charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts. I In 1969, Seatrain Shipbuilding Corp. (Shipbuilding), a wholly owned subsidiary of Seatrain Lines, Inc. (Seatrain), announced it would build the four oil-transporting supertankers in issue — the T. T. Stuyvesant, T. T. Williamsburgh, T. T. Brooklyn, and T. T. Bay Ridge. Each tanker was constructed pursuant to a contract in which a separate wholly owned subsidiary of Seatrain engaged Shipbuilding. Shipbuilding in turn contracted with respondent, now known as Transamerica Delaval Inc. (Delaval), to design, manufacture, and supervise the installation of turbines (costing $1.4 million each, see App. 163) that would be the main propulsion units for the 225,000-ton, $125 million, ibid., supertankers. When each ship was completed, its title was transferred from the contracting subsidiary to a trust company (as trustee for an owner), which in turn chartered the ship to one of the petitioners, also subsidiaries of Seatrain. Queensway Tankers, Inc., chartered the Stuyvesant; Kingsway Tankers, Inc., chartered the Williamsburgh; East River Steamship Corp. chartered the Brooklyn; and Richmond Tankers, Inc., chartered the Bay Ridge. Each petitioner operated under a bareboat charter, by which it took full control of the ship for 20 or 22 years as though it owned it, with the obligation after-wards to return the ship to the real owner. See G. Gilmore & C. Black, Admiralty §§4-1, 4-22 (2d ed. 1975). Each charterer assumed responsibility for the cost of any repairs to the ships. Tr. of Oral Arg. 11, 16-17, 35.",
"resumed its travels. II The charterers’ second amended complaint, filed in the United States District Court for the District of New Jersey, invokes admiralty jurisdiction. It contains five counts alleging tortious conduct on the part of respondent Delaval and seeks an aggregate of more than $8 million in damages for the cost of repairing the ships and for income lost while the ships were out of service. The first four counts, read liberally, allege that Delaval is strictly liable for the design defects in the high-pressure turbines of the Stuyvesant, the Williams-burgh, the Brooklyn, and the Bay Ridge, respectively. The fifth count alleges that Delaval, as part of the manufacturing process, negligently supervised the installation of the astern guardian valve on the Bay Ridge. The initial complaint also had listed Seatrain and Shipbuilding as plaintiffs and had alleged breach of contract and warranty as well as tort claims. But after Delaval interposed a statute of limitations defense, the complaint was amended and the charterers alone brought the suit in tort. The nonrenewed claims were dismissed with prejudice by the District Court. Delaval then moved for summary judgment, contending that the charterers’ actions were not cognizable in tort. The District Court granted summary judgment for De~ laval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (1985). The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product’s quality, on the other hand, are protected by warranty law. Id., at 908, 909-910. The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines’ component parts, and the only risk created was that the turbines would operate at a lower capacity. Id., at 909. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F. 2d 1165, 1169-1170 (CA3 1981). Therefore, neither the negligence claim nor the strict-liability claim was",
"damage’ in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.” Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P. 2d 324, 330 (Alaska 1981). The fifth count also alleges injury to the product itself. Before the high-pressure and low-pressure turbines could become an operational propulsion system, they were connected to piping and valves under the supervision of Delaval personnel. See App. 78, 162-163, 181. Delaval’s supervisory obligations were part of its manufacturing agreement. The fifth count thus can best be read to allege that Delaval’s negligent manufacture of the propulsion system — by allowing the installation in reverse of the astern guardian valve — damaged the propulsion system. Cf. Lewis v. Timco, Inc., 736 F. 2d 163, 165-166 (CA5 1984). Obviously, damage to a product itself has certain attributes of a products-liability claim. But the injury suffered — the failure of the product to function properly — is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain. B The intriguing question whether injury to a product itself may be brought in tort has spawned a variety of answers. At one end of the spectrum, the case that created the majority land-based approach, Seely v. White Motor Co., 63 Cal. 2d 9, 403 P. 2d 145 (1965) (defective truck), held that preserving a proper role for the law of warranty precludes imposing tort liability if a defective product causes purely monetary harm. See also Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F. 2d 280, 287, and n. 13 (CA3 1980) (citing cases). At the other end of the spectrum is the minority land-based approach, whose progenitor, Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 66-67, 207 A. 2d 305, 312-313 (1965) (marred carpeting), held that a manufacturer’s duty to make nondefective products encompassed injury to the product it self, whether or not the defect created an unreasonable risk of harm. See also LaCrosse v. Schubert, Schroeder & Associates, Inc.,",
"S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (“a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself’). That holding has been cited by this circuit and others to support a more general application of the doctrine. See, e.g., Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043 (6th Cir.1992); Hutton v. Deere & Co., 210 F.3d 389 (10th Cir.2000); King v. Hilton-Davis, 855 F.2d 1047 (3rd Cir.1988). In this diversity case between Parker and HDM, our task is to determine the most likely disposition of the issue under Ohio law. Bailey v. V&O Press Co., Inc., 770 F.2d 601, 604 (6th Cir.1985). Ohio developed its approach to the economic loss rule in two major stages. Ohio initially rejected the rule and allowed tort recovery for economic losses. See Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965); Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 326 N.E.2d 267 (1975). Then, in Chemtrol, the Ohio Supreme Court limited its previous holdings by applying the economic loss rule to parties in privity of contract, stating: a commercial buyer seeking recovery from the seller for economic losses resulting from damage to the defective product itself may maintain a contract action for breach of warranty under the Uniform Commercial Code; however, in the absence of injury to persons or damages to other property the commercial buyer may not recover for economic losses premised on tort theories of strict liability or negligence. 537 N.E.2d at 635. Thus, if the parties have a contractual relationship, they may not sue in strict liability or implied warranty for their economic damages, but instead must rely on the Uniform Commercial Code’s (“U.C.C.”) contractual remedies. The Chemtrol Court expressly declined to consider whether the economic loss rule should also apply to parties lacking privity, but cast doubt on previous Ohio Supreme Court holdings allowing such recovery: Accordingly, we also need not reconsider the question whether, absent privity of contract, a",
"OPINION OF THE COURT ROTH, Circuit Judge: Appellant Sea-Land Service, Inc. (Sea-Land) has appealed the district court’s grant of summary judgment in favor of General Electric Company (GE) on Sea-Land’s tort claims in admiralty for economic loss. The district court dismissed the case based on the holding of the Supreme Court in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), that under maritime law no claim lies for either negligence or strict products liability when a commercial party alleges injury only to a product itself, resulting in purely economic loss. Id. at 870-72, 106 S.Ct. at 2802. In this appeal, we must decide 1) whether a defective part, a connecting rod, that caused damage to its surrounding engine was separate property from the engine or was merely a component of the engine; 2) whether East River bars a tort claim for post-sale duty to warn under a negligence theory when the damage is purely economic; and 3) whether East River bars a tort claim for negligent repair when the damage is purely economic. The district court held 1) that the rod was not separate property from the engine, within the meaning of East River, and that East River precluded tort recovery for economic loss as a result of a product damaging itself; 2) that even when the injury is only economic, there is a post-sale duty-to-warn claim if a defendant-manufacturer had actual knowledge that the product was defective, but that GE did not have actual knowledge of the defective part prior to Sea-Land’s injury; and 3) that East River bars a tort claim for negligent repair when the damage is purely economic. I. Facts Sea-Land is a bareboat charterer of many vessels including the Sea-Land Enterprise. The Enterprise was constructed in 1980, and Sea-Land purchased it in 1988 from U.S. Lines. The Enterprise has two ship’s service generators, a ship’s service turbine generator and a ship’s service diesel generator (SSDG). The Enterprise’s SSDG is powered by a GE diesel engine. The diesel engine is made up of “life-cycle” parts, which",
"which a product injures only itself, causing purely economic losses, the appropriate avenue of relief is a breach of warranty action. It explained that “the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of the bargain — traditionally the core concept of contract law.” Id. at 2302. At issue in the case before us is whether the East River holding is applicable to fishermen. In footnote five of the opinion, the Court, after acknowledging the split in the Courts of Appeals on the issue at bar, noted: Most of the admiralty cases concerned fishing vessels. See Emerson G.M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468, 1472 (CA9 1984) (relying on solicitude for fishermen as a reason for a more protective approach). Delaval [the defendant in East River ] concedes that the courts, see Carbone v. Ursich, 209 F.2d 178, 182 (CA9 1953), and Congress, see 46 U.S.C. § 533, at times have provided special protection for fisherman. This case involves no fisherman. The East River opinion, therefore, left open the question of whether its holding was applicable to fishermen. We believe, however, that were the Court to address the issue, it would extend the East River holding to fishermen, and deny them recovery for purely economic losses in products-liability suits. It is true that a number of cases decided before East River relied on a “solicitude for fishermen” in allowing recovery for purely economic losses in products-liability actions brought by fishermen. In Emerson G.M. Diesel, Inc. v. Alaskan Enterprises, 732 F.2d 1468 (9th Cir.1984), cited in footnote five of the East River opinion, the court held that the defendant, the supplier of a defective hose incorporated into the diesel engine on plaintiffs fishing vessel, was strictly liable for plaintiffs repair costs and lost profits even though the defective product injured only itself. The court based its holding on “the familiar principle that seamen are favorites of admiralty and their economic interests entitled to the fullest possible legal protection.” Id. at 1472 (citing Carbone v. Ursich,"
] |
complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. FCRA Claim Plaintiff argues at length that AT & T reported inaccurate information to the CRAs because he never opened an account with AT & T. (Doc. No. 113-2 at 11-18) Whether true or not, these allegations are not germane. FCRA Section 1681s-2(a) requires furnishers of credit information, like Defendant, to provide accurate information to CRAs in the first instance. A private consumer like Plaintiff, however, may not bring a cause of action for an alleged violation of 1681s-2(a). 15 U.S.C. § 1681s—2(d); REDACTED Plaintiff undoubtedly is aware of this limitation, as demonstrated by the fact that he filed his claim under 1681s-2(b), which does permit private causes of action. Under Section 1681s-2(b), once a CRA (like Equifax, Experian or Trans Union) notifies a credit furnisher (like Defendant) of a dispute, the furnisher must: 1) conduct an investigation with respect to the disputed information; 2) review all relevant information received from the CRA; 3) report the results of the investigation to the CRA; and 4) if the information is found to be inaccurate or incomplete, report the results to all CRAs to which it originally provided the erroneous information. 15 U.S.C. § 1681s-2(b). Defendant AT & T moves for summary judgment arguing that
|
[
"1681s-2(a) prohibits any person from “furnishing] any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” Id. § 1681s-2(a)(1)(A). Congress expressly limited furnishers’ liability under § 1681s-2(a) by prohibiting private suits for violations of that portion of the statute. Id. § 1681s-2(c)(1). Section 1681s-2(b), the provision at issue in this case, outlines a furnisher’s duties when a consumer disputes the completeness or accuracy of information in their credit report. Under the FCRA, consumers generally notify CRAs of such disputes. See id. § 1681i(a)(1). Although a consumer may dispute credit information directly to a furnisher, as Chiang has done, the consumer has no private right of action if the furnisher does not reasonably investigate the consumer’s claim after direct notification. When a customer disputes credit information to a CRA, the CRA must advise the furnisher of that data that a dispute exists and provide the furnisher with “all relevant information regarding the dispute that the agency has received from the consumer.” Id. § 1681i(a)(2)(A). Once notified by a CRA, a furnisher must (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency. ...; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation ..., for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. Id. § 1681s — 2(b)(1); see also Lapine et al., supra § 153.06, at 153-96 to -97. Although a furnisher"
] |
[
"a plaintiffs claim against a CRA fails as a matter of law. Id. at 67-68. In other words, to carry his burden, the plaintiff had to demonstrate some causal relationship between the CRA’s allegedly unreasonable reinvestigation and the failure to discover inaccuracies in his account. We hold that plaintiffs suing furnishers under § 1681s-2(b) must make the same showing, for several reasons. First, a primary component of CRAs’ reinvestigation requirement, at issue in DeAndrade, is CRAs’ obligation to promptly notify a furnisher of challenged information of the consumer’s dispute so that the furnisher can conduct an investigation pursuant to § 1681s-2(b). See 15 U.S.C. § 1681i(a)(2)(A); see also Gorman, 584 F.3d at 1156 (“[T]he CRA’s ‘reasonable reinvestigation’ consists largely of triggering the investigation by the furnish-er.”). Given the considerable overlap between a CRA’s responsibility to reinvestigate and a furnisher’s duties under § 1681s-2(b), it would be inconsistent for plaintiffs to bear a weightier burden in suits against a CRA under § 1681i(a) than in suits against furnishers under § 1681s-2(b). The text and purpose of the statute support our interpretation. Section 1681i(a) mandates that a CRA reinvestigate reported information to determine whether the disputed data is “inaccurate.” Section 1681s-2(b) imposes essentially the same obligation on furnishers of information, requiring them to determine if furnished information is “incomplete or inaccurate.” “The FCRA is intended to protect consumers against the compilation and dissemination of inaccurate credit information.” DeAndrade, 523 F.3d at 67. In light of the parallel obligations imposed on CRAs and furnishers — and the narrow purpose of the amendments to the FCRA — that same rationale supports requiring a showing of actual inaccuracy in suits against furnishers. Practical considerations also point to our conclusion. As in DeAndrade, it is “difficult to see how a plaintiff could prevail on a claim for damages” based on an unreasonable investigation of disputed data “without a showing that the disputed information ... was, in fact, inaccurate.” Id. We emphasize that, just as in suits against CRAs, a plaintiffs required showing is factual inaccuracy, rather than the existence of disputed legal questions. Id. at 68.",
"We must decide (1) whether the failure to notify the CRAs that the delinquent debt was disputed is actionable under § 1681s-2(b), and if so, (2) whether Gorman introduced sufficient evidence on summary judgment to show that MBNA so notified the CRAs. a. Gorman’s Claim is Actionable If a consumer disputes the accuracy of credit information, the FCRA requires furnishers to report that fact when reporting the disputed information. Section 1681s-2(a)(3) provides: “If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.” As noted, however, the statute expressly provides that a claim for violation of this requirement can be pursued only by federal or state officials, and not by a private party. § 1681s—2(c)(1) (“Except [for circumstances not relevant here], sections 1681n and 1681o of this title[providing private right of action for willful and negligent violations] do not apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”); see also Nelson, 282 F.3d at 1059. Thus, Gorman has no private right of action under § 1681s-2(a)(3) to proceed against MBNA for its initial failure to notify the CRAs that he disputed the Four Peaks charges. Gorman does have a private right of action, however, to challenge MBNA’s subsequent failure to so notify the CRAs after receiving notice of Gorman’s dispute under § 1681s-2(b). In addition to requiring that a furnisher conduct a reasonable investigation of a consumer dispute, § 1681s-2(b) also requires a creditor, upon receiving notice of such dispute, to both report the results of the investigation and, “if the investigation finds that the information is incomplete or inaccurate, report those results” to the CRAs. § 1681s-2(b)(1)(C), (D). Gorman argues that MBNA’s reporting of the Four Peaks charge and delinquency, without a notation that the debt was disputed, was an “incomplete or inaccurate” entry on his credit file that MBNA failed to correct after its investigation.",
"apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”); see also Nelson, 282 F.3d at 1059. Thus, Gorman has no private right of action under § 1681s-2(a)(3) to proceed against MBNA for its initial failure to notify the CRAs that he disputed the Four Peaks charges. Gorman does have a private right of action, however, to challenge MBNA’s subsequent failure to so notify the CRAs after receiving notice of Gorman’s dispute under § 1681s-2(b). In addition to requiring that a furnisher conduct a reasonable investigation of a consumer dispute, § 1681s-2(b) also requires a creditor, upon receiving notice of such dispute, to both report the results of the investigation and, “if the investigation finds that the information is incomplete or inaccurate, report those results” to the CRAs. § 1681s-2(b)(1)(C), (D). Gorman argues that MBNA’s reporting of the Four Peaks charge and delinquency, without a notation that the debt was disputed, was an “incomplete or inaccurate” entry on his credit file that MBNA failed to correct after its investigation. As this claim alleges that obligations imposed under § 1681s-2(b) were violated, it is available to private individuals. The Fourth Circuit has recently held that after receiving notice of dispute, a furnisher’s decision to continue reporting a disputed debt without any notation of the dispute presents a cognizable claim under § 1681s-2(b). See Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 150 (4th Cir.2008). In Saunders, a consumer alleged that he incurred late fees and penalties as a result of a creditor’s own admitted accounting errors; the creditor, Branch Banking & Trust (BB & T), refused to waive the fees, and the consumer responded by withholding payments on the loan. Id. at 145-46. BB & T reported the loan to the CRAs as “in repossession status,” and, after suffering adverse credit decisions, the consumer contacted the CRAs to report the dispute. Id. at 146. The CRAs sent a notice of dispute to BB & T, triggering its obligations to investigate and verify the accuracy of the reported information under § 1681s-2(b)(l).",
"the statute support our interpretation. Section 1681i(a) mandates that a CRA reinvestigate reported information to determine whether the disputed data is “inaccurate.” Section 1681s-2(b) imposes essentially the same obligation on furnishers of information, requiring them to determine if furnished information is “incomplete or inaccurate.” “The FCRA is intended to protect consumers against the compilation and dissemination of inaccurate credit information.” DeAndrade, 523 F.3d at 67. In light of the parallel obligations imposed on CRAs and furnishers — and the narrow purpose of the amendments to the FCRA — that same rationale supports requiring a showing of actual inaccuracy in suits against furnishers. Practical considerations also point to our conclusion. As in DeAndrade, it is “difficult to see how a plaintiff could prevail on a claim for damages” based on an unreasonable investigation of disputed data “without a showing that the disputed information ... was, in fact, inaccurate.” Id. We emphasize that, just as in suits against CRAs, a plaintiffs required showing is factual inaccuracy, rather than the existence of disputed legal questions. Id. at 68. Like CRAs, furnishers are “neither qualified nor obligated to resolve” matters that “turn[ ] on questions that can only be resolved by a court of law.” Id. Finally, what is a reasonable investigation by a furnisher may vary depending on the circumstances. For instance, a more limited investigation may be appropriate when CRAs provide the furnisher with vague or cursory information about a consumer’s dispute. The statute is clear that the investigation is directed to the information provided by the CRA. A CRA’s notice informs a furnisher of “the nature of the consumer’s challenge to the reported debt, and it is the receipt of this notice that gives rise to the furnish-er’s obligation to conduct a reasonable investigation.” Gorman, 584 F.3d at 1157; see also 15 U.S.C. § 1681s-2(b)(1)(B) (requiring a furnisher to review “all relevant information” provided to it by a CRA). Accordingly, the central inquiry when assessing a consumer’s claim under § 1681s-2(b) is “whether the furnisher’s procedures were reasonable in light of what it learned about the nature of the dispute from",
"dispute verification form simply reflected Saunders’ delinquency on his account and thus was not “incomplete or inaccurate” as a matter of law. Second, BB & T maintains that even if its response violated its duties under § 1681s-2(b)(1), Saunders failed to present sufficient evidence of intent to establish a willful violation. Third, BB & T insists that Saunders did not have a legitimate excuse for nonpayment after the March communications and so merited the poor credit rating he received from the CRAs. We consider each argument in turn. 1. Despite the statutory text and precedent detailed above, BB & T contends that reporting a debt without reporting its disputed nature can never be deemed inaccurate as a matter of law. BB & T argues that furnishers need not report affirmative defenses raised by consumers and suggests that the consumer’s filing of a dispute with the CRAs renders any reporting on the dispute by the furnisher superfluous. According to BB & T, FCRA requires this result. BB & T relies on asserted critical differences between § 1681s-2(a) and § 1681s-2(b). The former imposes a duty on furnishers to provide accurate information, see § 1681s-2(a); inter alia, it requires furnishers to report consumer disputes, see § 1681s-2(a)(3). BB & T contends that the absence of a specific requirement to report consumer disputes in § 1681s-2(b) means that Congress did not intend for furnishers to report disputes to CRAs when responding to their requests for consumer dispute verification. This argument ignores the interplay of § 1681s-2(a) and § 1681s-2(b). The first subsection, § 1681s-2(a), provides that furnishers have a general duty to provide accurate and complete information; the next subsection, § 1681s-2(b), imposes an obligation to review the previously disclosed information and report whether it was “incomplete or inaccurate” upon receipt of a notice of dispute from a CRA. The second subsection thus requires furnishers to review their prior report for accuracy and completeness; it does not set forth specific requirements as to what information must be reported, because these requirements have already been set forth in the first subsection. No court has",
"also imposes duties on “fur nishers of information.” § 1681s-2. Under § 1681s-2(a), FCRA prohibits any person from furnishing information to a CRA that the person knows is inaccurate. Additionally, any person who “regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies” must correct and update the information provided so that it is “complete and accurate.” § 1681s-2(a)(2). At issue in this appeal are the additional duties a furnisher incurs under § 1681s-2(b) if a consumer disputes the accuracy of information that the furnisher reports. If a consumer notifies a CRA that he disputes the accuracy of an item in his file, FCRA requires the CRA to notify the furnisher of the dispute. § 1681i(a)(2). Upon receipt of this notice, a furnisher must: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; [and] (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.... § 1681s-2(b)(1). Thus, FCRA requires furnishers to determine whether the information that they previously reported to a CRA is “incomplete or inaccurate.” § 1681s-2(b)(1)(D) (emphasis added). In so mandating, Congress clearly intended furnishers to review reports not only for inaccuracies in the information reported but also for omissions that render the reported information misleading. Courts have held that a credit report is not accurate under FCRA if it provides information in such a manner as to create a materially misleading impression. See, e.g., Dalton v. Capital Associated Indus., Inc., 257 F.3d 409, 415 (4th Cir.2001); see also Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40-42 (D.C.Cir.1984) (reasoning that incomplete reporting can violate FCRA when it is “misleading”); Alexander v. Moore & Assocs., Inc., 553 F.Supp. 948, 952 (D.Haw.1982). Of particular relevance here, in Dalton we addressed the",
"who furnished information to a CRA receives notice from the CRA that the consumer disputes the information. See § 1681i(a)(2) (requiring CRAs promptly to provide such notification containing all relevant information about the consumer’s dispute). Subsection 1681s-2(b) provides that, after receiving a notice of dispute, the furnisher shall: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the [CRA] pursuant to section 1681i(a)(2) ...; (C) report the results of the investigation to the [CRA]; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other [CRAs] to which the person furnished the information ...; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1) ... (i) modify ... (ii) delete[or] (iii) permanently block the reporting of that item of information [to the CRAs]. § 1681s-2(b)(l). These duties arise only after the furnisher receives notice of dispute from a CRA; notice of a dispute received directly from the consumer does not trigger furnishers’ duties under subsection (b). See id.; Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir.2002). The FCRA expressly creates a private right of action for willful or negligent noncompliance with its requirements. §§ 1681n & o; see also Nelson, 282 F.3d at 1059. However, § 1681s-2 limits this private right of action to claims arising under subsection (b), the duties triggered upon notice of a dispute from a CRA. § 1681s-2(c) (“Except[for circumstances not relevant here], sections 1681n and 1681o of this title do not apply to any violation of ... subsection (a) of this section, including any regulations issued thereunder.”). Duties imposed on furnishers under subsection (a) are enforceable only by federal or state agencies. See § 1681s-2(d). Gorman alleges that MBNA violated several of the FCRA “furnisher” obligations. We hold that some of the alleged violations survive summary judgment and some do not. 2. MBNA’s “investigation” upon notice of dispute Gorman’s first allegation is that MBNA did not conduct a",
"against “[a] person” furnishing information “relating to a consumer” to a CRA “if the person knows or consciously avoids knowing that the information is inaccurate.” This prohibition is reinforced in subsection (1)(B) by a prohibition of furnishing inaccurate information after notice of actual inaccuracy from the affected consumer. Subsection (2) imposes a duty on regular furnishers of credit information to correct and update the information they provide so that the information is “complete and accurate.” Subsection (3) imposes a duty on such furnishers to notify CRAs if a consumer disputes the information furnished. Subsection (4) obliges furnishers to notify the CRA of the closure of a consumer’s account, and subsection (5) imposes a similar obligation to notify the CRA of delinquent accounts. Most of the provisions of § 1681s-2(a) are for the protection of consumers. There would be no doubt that a consumer could sue for their violation under sections 1681n & 0 were it not for §§ 1681s-2(e) and (d). Subsection (c) expressly provides that sections 1681n & 0 “do not apply to any failure to comply with subsection (a) of this section, except as provided in section 1681s(c)(l)(B) of this title.” The referenced section permits certain suits by States for damages. This limitation on liability and enforcement is reinforced by subsection (d) of § 1681s-2, which provides that subsection (a) “shall be enforced exclusively under section 1681s of this title by the Federal agencies and officials and the State officials identified in that section.” Consequently, private enforcement under §§ 1681n & 0 is excluded. We turn to subsection 1681s-2(b). This section specifies what happens after a CRA receives notice “pursuant to section 1681i(a)(2) ... of a dispute with regard to the completeness or accuracy of information provided by a person” to the CRA. The person, i.e., the furnisher of the disputed information, has four duties: to conduct an “investigation with respect to the disputed information;”, to review all relevant information provided by the CRA; to report the results of its investigation to the CRA; and if the investigation finds the information is incomplete or inaccurate to report those'",
"results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly-- (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. 15 U.S.C. § 1681s-2(b)(1). FCRA \"expressly creates a private right of action to enforce many of its terms.\" Boggio , 696 F.3d at 615. Pursuant to § 1681s-2(c), however, consumers are precluded \"from enforcing the requirement that furnishers, under § 1681s-2(a), initially provide complete and accurate consumer information to a CRA.\" Id . However, \"FCRA expressly creates a private right of action against a furnisher who fails to satisfy one of five duties identified in § 1681s-2(b).\" Id . at 618. A consumer is permitted to demonstrate that a furnisher negligently breached one of these duties, under § 1681o, or willfully breached one of them, under § 1681n. Id. Under § 1681s-2(b)(1), iServe and BSI were required, \"after receiving notice of a consumer dispute from a credit reporting agency, to conduct a reasonable investigation of their records to determine whether the disputed information can be verified.\" Johnson v. MBNA Am. Bank, NA , 357 F.3d 426, 431 (4th Cir. 2004). There is no issue that Pittman notified the CRAs of his dispute, or that Experian and Equifax notified the Servicers of the dispute. There is a question about whether the Servicers failed to reasonably investigate or rectify the disputed charge. The district court never reached this question, however, because it reached only the \"threshold question of whether there were reporting errors by iServe and BSI.\" (R. 96, Opinion, PageID # 2380.) The district court found that \"an error is an essential part of a[ ] FCRA claim.\" (Id. (citing Spence v. TRW, Inc."
] |
of his information but cannot meet the stringent prejudice requirements of the Due Process Clause. A. The Sixth Amendment Guarantee of a Speedy Trial. The right to a speedy trial arises only after (1) arrest or (2) official accusation. United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696 (1982); see also Doggett v. United States, — U.S. -, -, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520 (1992) (recognizing that the Sixth Amendment has no application before a formal criminal prosecution). The Supreme Court has adopted a narrow definition of official accusation, usually including only indictment and information. See United States v. Lovasco, 431 U.S. 783, 788, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977); REDACTED see also United States v. Juarez, 561 F.2d 65, 67 (7th Cir.1977). Lower courts have limited the definition to events serving the same function as an indictment. Favors v. Eyman, 466 F.2d 1325 (9th Cir.1972). Although Wisconsin employs unique pretrial procedures, the State nonetheless “officially charged” Pharm when it issued his information. Instead of requiring indictment by a grand jury, Wisconsin felony courts provide preliminary examinations, where a judge, rather than a jury, decides whether the State has probable cause to believe that the defendant has committed a felony. Wis.Stat. § 970.03; but see Wis. Stat. § 968.06 (in some cases, the courts may use both an indictment and an information). After finding probable
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[
"view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial” had passed statutes limiting the time within which such trial must occur after charge or indictment. Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused. The statutes vary greatly in sub stance, structure, and interpretation, but a common denominator is that “[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this.” Note, The Right to a Speedy Trial, 57 Col. L. Rev. 846, 848 (1957). No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint “[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . . .” The rule clearly is limited to post-arrest situations. Appellees’ position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions. III It is apparent also that very little support for appel-lees’ position emerges from a consideration of the purposes of the Sixth Amendment’s speedy trial provision, a guarantee that this Court has termed “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120 (1966); see also Klopfer v. North Carolina, 386 Ü. S. 213, 221-226 (1967); Dickey v. Florida, 398 U. S. 30, 37-38 (1970)."
] |
[
"move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64 [96 S.Ct. 303, 46 L.Ed.2d 205] (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Id. at-, 102 S.Ct. at 1501. While we recognize that MacDonald dealt with the constitutional right to speedy trial as opposed to the statutorily created rights in the Speedy Trial Act of 1974, the case does reflect the Supreme Court’s view that not only the sixth amendment but also the Act requires that charges be pending for the delay to violate a right to speedy trial. As noted in United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978), the “policy and purpose” of the Speedy Trial Act has “been to expedite the processing of pending criminal proceedings, not to supervise the exercise by a prosecutor of his investigative or prosecutorial discretion at a time when no criminal proceeding is pending before the court.” Id. at 456 (emphasis in original). The legislative history, while less than precise, does reflect an assumption by Congress that any arrested individual would also be a “charged” or “accused” individual. In the House Report’s general description of the time limits imposed by the bill the following comments were made: H.R.17409 provides that all defendants charged with criminal offenses be brought to trial within 100",
"404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). Limitations statutes, however, are not the only available protection against prejudice. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The particular provisions of the Speedy Trial Clause of the Sixth Amendment are available with respect to prejudicial delay after formal indictment or information, or actual arrest. Lovasco, 431 U.S. at 788, 97 S.Ct. at 2047; Marion, 404 U.S. at 313-22, 92 S.Ct. at 459-64; cf. Fed.R.Crim.P. 48(b). However, the Speedy Trial Clause is inapplicable where, as here, the delay concerns a period of time prior to indictment, information, or arrest. Where the possibility of prejudice derives from pre-indictment delay, the defendant in a criminal case must first resort to the applicable statute of limitations. Id. at 323, 92 S.Ct. at 464. Only where the applicable statute of limitations has failed to offer relief for pre-indictment delay, are claims of actual prejudice in violation of Due Process Clause of the Fourteenth Amendment ripe for judicial consideration. The Supreme Court has declared, however, that the “Due Process Clause has a limited role to play” in protecting against the prejudice of pre-indictment delay. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. See also Marion, 404 U.S. at 320, 92 S.Ct. at 463; United States v. Harrington, 543 F.2d 1151 (absent showing of substantial prejudice amounting to Fifth Amendment due process violation, prosecution is controlled by statute of limitations); United States v. Sample, 565 F.Supp. 1166, 1174 (E.D.Va. 1983) (statute of limitations is a legislatively determined safeguard against potential prejudice while due process is safeguard against actual prejudice). Marion, supra, and Lovasco, supra, establish the outlines of the due process analysis to be applied by courts in pre-indictment delay cases. In Marion, where defendants claimed potential prejudice from the passage of time between the commission of the crime and the indictment, the court noted: [W]e perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within",
"Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Moreover, the speedy trial clause does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Because Schaffer was neither arrested for violating federal law nor officially accused of doing so prior to his indictment on February 27, 2008, the protections of the Sixth Amendment were not triggered in this case before that date. Schaffer’s claims about pre-indictment delay must therefore be resolved in the context of the Fifth Amendment. The Supreme Court recognizes that the Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404 U.S. at 324-25, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In this circuit, dismissal for pre-indictment delay “is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Greene, 737 F.2d 572, 574 (6th Cir.1984) (quoting United States v. Brown, 667 F.2d 566 (6th Cir.1982) (per curiam)). Schaffer contends that he was prejudiced because his own recollection of what occurred in 2003 had obviously faded five years later. He also asserts that the Government’s evidence failed to “include any record of conversations” he had with Arvidson or “any record of their beliefs and understandings at the time regarding the manner, means, method and content of the information they obtained....” Despite these general allegations, Schaffer points to no examples of actual prejudice. He does not contend that he was unable to assist in his own defense, nor does he suggest that witnesses were unavailable or that specific evidence had been lost or destroyed. Simply put, Schaffer falls far short of demonstrating that he was actual ly and substantially prejudiced",
"The analysis is somewhat different under the Sixth Amendment. See United States v. White, 443 F.3d 582, 588 (7th Cir.2006) (explaining that the constitutional and statutory speedy trial rights “are related but distinct, so that a violation of one may be found without a violation of the other”). The constitutional right to a speedy trial is “triggered by an arrest, indictment, or some other official accusation.” Arceo, 535 F.3d at 684. Once the right is triggered, a claimed violation is assessed by considering “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first factor — the length of the delay — is not so much a factor as it is a threshold requirement: “without a delay that is presumptively prejudicial, .we need not examine the other factors.” White, 443 F.3d at 589. Delay approaching one year is presumptively prejudicial. Id. For Loera, this first hurdle is insurmountable. He admits that the delay between the second indictment and trial— a mere two-and-a-half months — falls far short. Yet, he says we should also consider the delay associated with the first indictment. We cannot do that. “The Speedy Trial Clause applies only to an accused,” United States v. Samples, 713 F.2d 298, 301 (7th Cir.1983), so when the first indictment was dismissed, Loera was “legally and constitutionally in the same posture as though no charges had been made,” United States v. MacDonald, 456 U.S. 1, 10, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). The delay following the second indictment must be measured independently, and from that perspective it fails. And to the extent Loera would have us find a constitutional violation on the delay after the first indictment alone, the time to make that argument was then, not now. As the district court noted, even though Loera mentioned the Sixth Amendment in",
"of ordinary delay as to foreclose the conclusion that the case was prosecuted with customary promptness and to raise a presumption that the delay may have been prejudicial. Doggett v. United States, — U.S. -, -, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (Doggett). Because the Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or indicted, United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1981), the length of the pre-indictment delay in this case is irrelevant to the issue of whether Manning has been deprived of his Sixth Amendment right to a speedy trial. See United States v. Roller, 956 F.2d 1408, 1413 (7th Cir.1992). The only delay relevant to the question of whether Manning was deprived of his Sixth Amendment right to a speedy trial is the 30 month delay between Manning’s indictment and the government’s formal extradition request. For purposes of this analysis, we assume, without deciding, that 30 months is long enough to warrant inquiry into the delay. To determine whether post-indictment delay has violated a defendant’s speedy trial rights under the Sixth Amendment, we usually consider the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Doggett, — U.S. at -, 112 S.Ct. at 2690, quoting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Whether Manning “must show actual prejudice depends on whether it is he or the government who is responsible for the de lay.” United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir.) (Aguirre), cert. denied, — U.S. -, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993). Because the district court’s finding that the government did not negligently cause the post-indictment delay was not clearly erroneous, Manning would be required to demonstrate actual prejudice to establish a violation of his Sixth Amendment right to a speedy trial. Id. We need not engage in this analysis, however, because Manning has waived his constitutional right to a speedy trial. If the delay can be attributed",
"S.Ct. 1497, 1501-02, 71 L.Ed.2d 696 (1982). In that case, the Supreme Court said: Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. 456 U.S. at 7, 102 S.Ct. at 1501. In any event, the magistrate determined that the petitioner's claim should be resolved as a due process claim and not one under the Speedy Trial Clause of the Sixth Amendment, and the petitioner has not taken exception to this procedure. . He submitted with his petition a supporting memorandum of law, which said that a federal court was \"bound by [the] presumption of correctness standard enunciated in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and under 28 U.S.C. Section 2254(d)(8) to overturn a State Court finding of fact when the finding is not fairly supported in the record\" (emphasis in original). . In Gouveia, the Supreme Court said: Thus, at bottom, the majority's concern is that because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate, given the problems inherent in investigating prison crimes, such as the transient nature of the prison population and the general reluctance of inmates to cooperate. But applicable statutes of limitations protect against the prosecution’s bringing stale criminal charges against any defendant, United. States v. Lovasco, supra, 788-89, 97 S.Ct. at 2047-48; United States v. Marion, supra, at 322, 92 S.Ct. at 464, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought with the statute of limitations, if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that",
"RIGHT Although the speedy trial provision of the sixth amendment and the due process clause of the fifth amendment both protect individuals against unreasonable prosecutorial delay, they cover distinct stages of the pre-trial process. The Su preme Court has stated that “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Thus, “[although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Marler does not complain of any undue delay in the period between his federal arrest and indictment and his federal trial. Instead, he claims that his sixth amendment right attached at the time of his state indictment, and that the 53-month interval between that indictment (September 24, 1979) and Marler’s federal trial on charges arising from the same incident (February 21, 1984) constituted a violation of his speedy trial right. The question before us, then, is whether under these circumstances a state indictment may trigger an individual’s speedy trial right so as to force the federal government to bring him promptly to trial on any federal charges that may arise from the same course of conduct. Marler argues that the state indictment, like a federal arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.” Marion, 404 U.S. at 320, 92 S.Ct. at 463. Because “[t]hese considerations",
"disclosed by the record, and the methods he contends the Government should have used to locate him to have avoided much of the sixteen month delay between his indictment and arrest. We accept the conclusion of the trial judge, as set forth below, that the Government was negligent in its efforts to locate defendant. . The Sixth Amendment guarantee of a speedy trial is inapplicable to this seven month period preceding defendant’s indictment. In United States v. Marion, 404 U.S. 307, 313-20, 92 S.Ct. 455, 459-463, 30 L.Ed.2d 468 (1971), the Supreme Court held that the “Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused....’” Events which trigger Sixth Amendment protection are “indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge____” Id. at 320, 92 S.Ct. at 463. See United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048-2049, 52 L.Ed.2d 752 .rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977); United States v. McManaman, 606 F.2d 919 (10th Cir.1979); United States v. Avalos, 541 F.2d 1100-08 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). The search of his home pursuant to a search warrant, defendant’s only contact with the authorities prior to his indictment, was insufficient to trigger the Sixth Amendment’s protection. . Of course, the constitutional claim of violation of the speedy trial guarantee is assessed, with respect to time, by the lapse of time from filing of an indictment or information or arrest on the charges, until trial. Marion, supra, 404 U.S. at 320-21, 92 S.Ct. at 463-164. We examine the question here in terms of only the 16-month portion of the delay because this is the time frame in which defendant makes his argument. . In Strunk, the Supreme Court held that in view of the important policies underlying the right to a speedy trial, dismissal is the only possible remedy for violation",
"- U.S. -, 102 U.S. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court held that a four year delay between dismissal of military charges for murder and a subsequent indictment did not establish a violation of the sixth amendment right to a speedy trial. The Supreme Court in MacDonald stated: In United States v. Marion, 404 U.S. 307, 313 [92 S.Ct. 455, 459, 30 L.Ed.2d 468] (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: “On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64 [96 S.Ct. 303, 46 L.Ed.2d 205] (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Id. at-, 102 S.Ct. at 1501. While we recognize that MacDonald dealt with the"
] |
with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See REDACTED States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In
|
[
"274 U. S. 380, 382; Stromberg v. California, ante, p. 359. In maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be charged by those ündertaking a public service, this Court has decided that the owner cannot constitutionally be deprived of his right to a fair return, because that is deemed to be of the essence of ownership. Railroad Commission Cases, 116 U. S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 596. So, while liberty of contract is not an absolute right, and the wide field of activity in the making of contracts is subject to legislative supervision (Frisbie v. United States, 157 U. S. 161, 165), this Court has held that the power of the State stops short of interference with what are deemed to be certain indispensable requirements of the liberty-assured, notably with respect to the fixing of prices and wages. Tyson Bros. v. Banton, 273 U. S. 418; Ribnik v. McBride, 277 U. S. 350; Adkins v. Children's Hospital, 261 U. S. 525, 560, 561. Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse. Whitney v. California,, supra,; Stromberg v. California, supra. Liberty, in each of its phases, has its history and connotation and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of that liberty. The appellee insists that the questions of the application of the statute to appellant’s periodical, and of the construction of the judgment of the trial court, are not presented for review; that appellant’s sole attack was upon the constitutionality of the statute, however it might be applied. The appellee contends that no question either of"
] |
[
"statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See Near v. Minnesota, 283 U. S. 697, 707-708. States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the. Arizona case the attorney general sought to distinguish the District of Columbia Act from the legislation then before us and insisted that the latter was a valid exertion of the police power of the State. Counsel for the California commission submitted a brief amicus curiae in which he elaborately argued that our decision in the Adkins case was erroneous and ought to be overruled. In the Arkansas case the state officers, appellants there, by painstaking and thorough brief presented arguments in favor of the same contention. But this court, after thoughtful attention to all that was suggested against that decision, adhered to it as sound. And in •each case, being clearly of opinion that no discussion was required to show that, having regard to the principles applied in the Adkins case, the state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment,",
"provisions of the act. The answer sought to sustain them by alleging that the business of a private employment agency is “vitally affected with a public interest” and subject to such regulation under'the police power of the state. The relator’s motion for judgment on the pleadings was sustained and it was ordered that a peremptory writ of mandamus should issue. We disagree with the Supreme Court of Nebraska. The statutory provisions in question do not violate the due process clause of the Fourteenth Amendment. The drift away from Ribnik v. McBride, supra, has been so great that it can no longer be deemed a controlling authority. It was decided in 1928. In the fol-lpwing year this Court held that Tennessee had no power to fix prices at which gasoline might be sold in the state. Williams v. Standard Oil Co., 278 U. S. 235. Save for that decision and Morehead v. Tipaldo, 298 U. S. 587, holding unconstitutional a New York statute authorizing the fixing of women’s wages, the subsequent cases in this Court haye given increasingly wider scope to the price-fixing powers of the states and of Congress. Tagg Bros. v. United States, 280 U. S. 420, decidedv,in 1930, upheld the power of the Secretary of Agriculture under the Packers and Stockyards Act to determine the just and reasonable charges of persons engaged in the business of buying and selling in interstate commerce livestock at a stockyard on a commission basis. In 1931 a New Jersey statute limiting commissions of agents- of fire insurance companies was sustained by O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251. A New York statute authorizing the fixing of minimum and maximum retail prices for milk was upheld in 1934. Nebbia v. New York, 291 U. S. 502. And see Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251. Cf. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511; Mayflower Farms v. Ten Eyck, 297 U. S. 266. In 1937 Adkins v. Children’s Hospital, 261 U. S.",
"employers, it would be fanciful to suppose that the regulation of women’s wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous em-' ployers. Men in greater number than women support themselves and dependents and because of need will work for whatever wages they can get and that without regard to the value of the service and even though the pay is less than minima prescribed in accordance with this Act. It is plain that, under circumstances such as those por trayéd in the “Factual background,” prescribing of minimum wages for women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See Near v. Minnesota, 283 U. S. 697, 707-708. States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration",
"ad,equate “to supply the necessary cost of living to women workers” and “to maintain them in health and to protect their morals.” 40 Stat. 963. The standard thus set up did not take account of the reasonable value of the service rendered. As this Court said, it compelled the employer “to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the emplqyee.” In the cases of Murphy v. Sardell, 269 U. S. 530, and Donham v. West-Nelson Co., 273 U. S. 657, the statutes of Arizona and Arkansas, respectively, were of a similar character, and both these cases were decided upon the authority of the Adkins case. New York and other States have been careful to adopt a different and improved standard, in order to meet the objection aimed at the earlier statutes, by requiring a fair equivalence of wage and service. That the difference is a material one, I think is shown by the opinion in the Adkins case. That opinion contained a broad discussion of state power,- but it- singled out as an adequate ground for the finding of invalidity that the statute gave no regard to the situation of the employer and to the reasonable value of the service for which the wage was paid. Upon this point the Court said (261 U. S. pp. 558, 559): “The feature of this statute which, perhaps more ,-than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with , his business, or the contract or the work the eim ployee' engages to do. The declared basis, as already pointed out, is .not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. The ethical right of every worker, man or woman, t.o a living wage may be conceded. One of the declared and important purposes of trade",
"Act now before us. The other was vetoed and did not~T5ecome law. They contained the same definitions of oppressive wage and fair wage and in general provided the same machinery and procedure culminating in fixing minimum wages by directory orders. The one vetoed was for an emergency; it extended to men as well as to women employees; it did not provide for the enforcement of wages by mandatory orders. It is significant that their “factual backgrounds” are much alike. They are indicated in the margin. These legislative declarations, in form of findings or recitals of fact, serve well to illustrate why any measure that deprives employers and adult women of freedom to agree upon wages, leaving employers and men employees free so to do, is necessarily arbitrary.. Much, if not all, that in them is said in justification of the regulations that the Act imposes in respect, of women’s wages applies with equal force in support of the same regulation of men’s, wages. While men are left free to fix their wages by agreement with employers, it would be fanciful to suppose that the regulation of women’s wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous em-' ployers. Men in greater number than women support themselves and dependents and because of need will work for whatever wages they can get and that without regard to the value of the service and even though the pay is less than minima prescribed in accordance with this Act. It is plain that, under circumstances such as those por trayéd in the “Factual background,” prescribing of minimum wages for women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment",
"Upon appeal the Court of Appeals of the District first affirmed that ruling but on rehearing reversed it and the case came before this Court in 1923. The judgment of the Court of Appeals holding the Act invalid was affirmed, but with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford dissenting, and Mr. Justice Brandéis taking no part. The dissenting opinions took the ground that the decision was at variance with the principles which this Court had frequently announced and applied. In 1925 and 1927, the similar minimum wage statutes of Arizona and Arkansas were held invalid upon the authority of the Adkins case. The Justices who had! dissented in that case bowed to the ruling and Mr. Justice Brandeis dissented. Murphy v. Sardell, 269 U. S. 530; Donham v. West-Nelson Co., 273 U. S. 657. The question did not come before us again until the last . term in the Morehead case, as already noted. In that case, briefs supporting the New York statute were submitted by the States of Ohio, Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey and Rhode Island. 298 U. S., p. 604, note. Throughout this entire period the Washington statute now under consideration has been in force. The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. \\ What is this freedom? The Constitution does 'not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the",
"Act of Congress in the Adkins case,-the state court is not construing the state statute. It is passing upon the effect of the difference between the two acts from the standpoint of the Federal Constitution. It is putting aside an admitted difference as -not controlling. It is holding, as the state court says, that “Forcing the payment of wages at a reasonable value does not make inapplicable the principle and ruling of the Adkins case.” That, it seems to me, is clearly a federal and not a state question, and I pass to its consideration. Third.—The constitutional validity of a minimum wage statute like the New York act has not heretofore been passed upon by this Court. ' As I have said, the required correspondence of the prescribed “fair wage” to •the reasonable value of the service which the employee performs stands.out.as an essential feature of the statutory plan. The statute for the District of Columbia which was before us in the Adkins case did not have thafeature. That statute provided for a minimum wage ad,equate “to supply the necessary cost of living to women workers” and “to maintain them in health and to protect their morals.” 40 Stat. 963. The standard thus set up did not take account of the reasonable value of the service rendered. As this Court said, it compelled the employer “to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the emplqyee.” In the cases of Murphy v. Sardell, 269 U. S. 530, and Donham v. West-Nelson Co., 273 U. S. 657, the statutes of Arizona and Arkansas, respectively, were of a similar character, and both these cases were decided upon the authority of the Adkins case. New York and other States have been careful to adopt a different and improved standard, in order to meet the objection aimed at the earlier statutes, by requiring a fair equivalence of wage and service. That the difference is a material one, I think is shown by the opinion in the Adkins case. That opinion",
"of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the. Arizona case the attorney general sought to distinguish the District of Columbia Act from the legislation then before us and insisted that the latter was a valid exertion of the police power of the State. Counsel for the California commission submitted a brief amicus curiae in which he elaborately argued that our decision in the Adkins case was erroneous and ought to be overruled. In the Arkansas case the state officers, appellants there, by painstaking and thorough brief presented arguments in favor of the same contention. But this court, after thoughtful attention to all that was suggested against that decision, adhered to it as sound. And in •each case, being clearly of opinion that no discussion was required to show that, having regard to the principles applied in the Adkins case, the state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment, we so held and upon the authority of that case affirmed per curiam the decree enjoining its enforcement. It is equally plain that the judgment in the case now before us must also be Affirmed. Briefs of amici curiae in support of the application were filed by the City of New York and the State of Illinois. Briefs on the merits supporting the New York Act, were filed by the State of Ohio, and by the States of Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey and Rhode Island. Briefs for affirmance were filed by thé New York State Hotel Association, National Woman’s Party, National Association of Women Lawyers, et al. Omitting the words in brackets, the' following is the factual background in the first section of the Act before us. Adding the words in brackets and omitting those in italics, there is indicated the background in the bill that was not approved. “The employment of [men and] women and minors in trade and industry in the state of New York at wages unreasonably low and",
"525, was overruled and a statute of'Washington which authorized the fixing of minimum wages for women and minors was sustained. West Coast Hotel Co. v. Parrish, 300 U. S. 379. In the same year, Townsend v. Yeomans, 301 U. S. 441, upheld a Georgia statute fixing maximum warehouse charges for the handling and selling of leaf tobacco.. Cf. Mulford v. Smith, 307 U. S. 38; Currin v. Wallace, 306 U. S. 1. The power of Congress under the commerce clause to authorize the fixing of minimum prices for milk was upheld in United States v. Rock Royal Co-operative, 307 U. S. 533, decided in 1939. The next year the price-fixing provisions of the Bituminous Coal Act of 1937 were sustained. Sunshine Coal Co. v. Adkins, 310 U. S. 381. And 'at this term we upheld the minimum wage and maximum hour provisions of the Fair Labor Standards Act of 1938. United States v. Darby, 312 U. S. 100. These cases represent more than scattered examples of constitutionally permissible price-fixing schemes. They represent in large measure a basic departure from the philosophy and approach of the majority in the Ribnik case. The standard there Employed, following that used in Tyson & Brother v. Banton, 273 U. S. 418, 430 et seq., was that the constitutional validity of price-fixing legislation, at least in absence of a so-called emergency, was dependent on whether or not the business in question was “affected with a.public interest.” Cf. Brazee v. Michigan, 241 U. S. 340. It was said to be so affected if it had been “devoted to the public .use” and if “an interest in effect” had been granted “to the public in that use.” Ribnik v. McBride, supra, p. 355. That test, labelled by Mr. Justice Holmes in his dissent in the Tyson case (273 U. S. at p. 446) as “little more than a fiction,” was discarded in Nebbia v. New York, supra, pp. 531-539. It was there stated that such criteria “are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices,”",
"specifically expressed in the enactment. Knights of Pythias v. Meyer, 265 U. S. 30, 32. Exclusive authority to enact carries with it final authority to say what the measure means. Jones v. Prairie Oil Co., 273 U. S. 195, 200. The standard of “minimum fair wage rates” for women workers to be prescribed must be considered as if both elements—value of service and living wage—were embodied in the statutory definition itself. International Harvester Co. v. Kentucky, 234 U. S. 216, 220. As our construction of an Act of Congress must be deemed by state courts to be the law of the United States, so this New York Act as construed by her court of last resort, must here be taken to express the intention and purpose of her lawmakers. Green v. Neal’s Lessee, 6 Pet. 291, 295-298. The state court rightly held that the Adkins case controls this one and requires that relator be discharged upon the ground that the legislation under which he was indicted and imprisoned is repugnant to the due process clause of the Fourteenth Amendment; The general statement in the New York Act of the fields of labor it includes, taken in connection with the work not covered, indicates legislative intention to reach nearly all private employers of women. The Act . does not extend to men. It does extend to boys and girls under the age of 21 years but there is here involved no question as to its validity in respect of wages to be prescribed for them. Relator’s petition for the writ shows that the charge against him is that as manager of a laundry he “disobeyed a mandatory order prescribing certain minimum wages for certain adult women employees of the said laundry.” The rights of. no other class of workers are here involved. Upon the face of the act the question arises whether the State may impose upon the employers state-made minimum wage rates for all competent experienced women workers whom they may have in their service. That question involves another one. It is:' Whether the State has power similarly to.subject to"
] |
was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district court. DISCUSSION In this diversity litigation, New York law controls. A reinsurance contract is governed by the rules of construction applicable to contracts generally. See Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 506, 1 S.Ct. 582, 596, 27 L.Ed. 337 (1882); London Assurance Corp. v. Thompson, 170 N.Y. 94, 99, 62 N.E. 1066 (1902); 19 G. Couch, Cyclopedia of Insurance Law § 80:48 (Rev.2d ed. 1983) (Couch). Thus, when the terms of the contract (“prompt notice”) are ambiguous, as here, reference to extrinsic evidence provides guidance to the parties’ intent. See REDACTED Such extrinsic evidence may in appropriate cases include industry custom and practice. See London Assurance, 170 N.Y. at 99, 62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice,
|
[
"fee. Because it found that the language of the contract was unambiguous, the district court refused to consider plaintiff’s proffer of extrinsic evidence of the parties’ intent. Hence, the $1 million discretionary bonus paid by the defendant to Sick in March of 1989 was not factored into the computation of the final fee owed plaintiff. Since ANC’s status as a party was derived as a successor-in-interest to Triangle, plaintiff’s unjust enrichment and quantum meruit claims were dismissed. Seiden appeals. We reverse. DISCUSSION A. Appellant challenges the grant of summary judgment to defendants, which it contends flowed from the trial court’s erroneous conclusion that the terms of the contract were unambiguous. It was the absence of ambiguity that the district court relied on in precluding the receipt of extrinsic evidence, which Seiden believes would have shed light on the original parties’ intent in signing the letter agreement of December 1986. The rules of construction in this area of contract law are well known. In reviewing a written contract, a trial court’s primary objective is to give effect to the intent of the parties as revealed by the language they chose to use. See Slatt v. Slatt, 64 N.Y.2d 966, 967, 488 N.Y.S.2d 645, 477 N.E.2d 1099 (1985). When the question is a contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity. See Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1320 (2d Cir.1975); Painton v. Company & Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971). Where the language used is susceptible to differing interpretations, each of which may be said to be as reasonable as another, and where there is relevant extrinsic evidence of the parties' actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate, see Heyman, 524 F.2d at 1320; Painton, 442 F.2d at 233; cf. Antilles Steamship Co., Ltd. v. Member of the American Hull Insurance Syndicate, 733 F.2d 195, 202 (2d Cir.1984) (Newman, J., concurring) (ambiguity in a contract, in the absence of relevant extrinsic evidence, presents a"
] |
[
"misrepresentation claim for failure to satisfy the requirements of Fed.R.Civ.P. 9(b). Christiania decided not to file a third amended complaint, and final judgment dismissing the action was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district court. DISCUSSION In this diversity litigation, New York law controls. A reinsurance contract is governed by the rules of construction applicable to contracts generally. See Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 506, 1 S.Ct. 582, 596, 27 L.Ed. 337 (1882); London Assurance Corp. v. Thompson, 170 N.Y. 94, 99, 62 N.E. 1066 (1902); 19 G. Couch, Cyclopedia of Insurance Law § 80:48 (Rev.2d ed. 1983) (Couch). Thus, when the terms of the contract (“prompt notice”) are ambiguous, as here, reference to extrinsic evidence provides guidance to the parties’ intent. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428-29 (2d Cir.1992). Such extrinsic evidence may in appropriate cases include industry custom and practice. See London Assurance, 170 N.Y. at 99, 62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 79 N.Y.2d 576, 582, 584 N.Y.S.2d 290, 594 N.E.2d 571 (1992) (North River). The district court found that Great American’s duty to provide notice accrued in April 1987, but that there were genuine issues of material fact as to whether the delay",
"for less than the full amount of underlying carrier’s liability). We decline to adopt therefore, as a matter of law, the proposition that a reinsured is absolved of the duty to notify a reinsurer that it appears likely the reinsurance contract will be involved until the amount or timing of such involvement is fixed with the precision afforded by monitoring claims on a paid basis. Although an ambiguous reinsurance contract is generally construed against the reinsurer, see 19 Couch § 80:49, “[b]eing an insurance company, the reinsured is held to a high degree of compliance with policy provisions which require prompt notice to the reinsurer when a loss occurs which may potentially be within policy coverage.” 19 Couch § 80:71. Accord Insurance Co. of Pennsylvania, 922 F.2d at 521; Gibbs, 773 F.2d at 18; see Ohio Casualty Ins. Co. v. Rynearson, 507 F.2d 573, 577 (7th Cir.1974); Employers’ Liability Assurance Corp. v. Travelers Ins. Co., 411 F.2d 862, 867 (2d Cir.1969). In sum, when the obligation to provide notice arose in this case cannot be determined on the face of the agreement without resort to extrinsic evidence, and the record, viewed in the light most favorable to Christiania, would permit a rational jury to find a reasonably diligent insurance company in defendant’s position would have thought itself required under the reinsurance certificates and industry practice to provide notice prior to April 1987. Although Christiania conceded it could demonstrate no prejudice as a result of the two-month delay from April to June 1987, it does not follow that if it is determined after a trial that Great American’s duty to provide notice arose at some point in time before April 1987, Christiania would not be able to demonstrate prejudice by virtue of the longer delay. II Misrepresentation We consider next the misrepresentation issue. The relationship between a reinsurer and a reinsured is one of utmost good faith, requiring the reinsured to disclose to the reinsurer all facts that materially affect the risk of which it is aware and of which the reinsurer itself has no reason to be aware. See Sun",
"determined on the face of the agreement without resort to extrinsic evidence, and the record, viewed in the light most favorable to Christiania, would permit a rational jury to find a reasonably diligent insurance company in defendant’s position would have thought itself required under the reinsurance certificates and industry practice to provide notice prior to April 1987. Although Christiania conceded it could demonstrate no prejudice as a result of the two-month delay from April to June 1987, it does not follow that if it is determined after a trial that Great American’s duty to provide notice arose at some point in time before April 1987, Christiania would not be able to demonstrate prejudice by virtue of the longer delay. II Misrepresentation We consider next the misrepresentation issue. The relationship between a reinsurer and a reinsured is one of utmost good faith, requiring the reinsured to disclose to the reinsurer all facts that materially affect the risk of which it is aware and of which the reinsurer itself has no reason to be aware. See Sun Mutual, 107 U.S. at 510, 1 S.Ct. at 599-600; Sumitomo, 75 N.Y.2d at 303, 552 N.Y.S.2d 891, 552 N.E.2d 139. In certain cases, the description of items covered under the original policy may be so imprecise as to warrant rescission of the contract because the rein-surer was not adequately apprised of the risk. See Merchants’ & Shippers’ Ins. Co. v. St. Paul Fire & Marine Ins. Co., 219 A.D. 636, 640-41, 220 N.Y.S. 514 (1st Dep’t 1927); see also Btesh v. Royal Ins. Co., Ltd., of Liverpool, 49 F.2d 720, 721 (2d Cir.1931). Christiania asserts the right to rescind the instant insurance contracts because ATVs were not listed as a separate category of products distributed by Honda. A fact is material so as to void ab initio an insurance contract if, had it been revealed, the insurer or reinsurer would either not have issued the policy or would have only at a higher premium. See Merchants’, 219 A.D. at 639, 220 N.Y.S. 514; 2 Dunham, § 29.06[l][b]. Materiality is ordinarily a question of fact, see",
"62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 79 N.Y.2d 576, 582, 584 N.Y.S.2d 290, 594 N.E.2d 571 (1992) (North River). The district court found that Great American’s duty to provide notice accrued in April 1987, but that there were genuine issues of material fact as to whether the delay before notice was actually given in June or July of 1987 made the notice untimely. Because Christiania conceded it was unable to demonstrate prejudice as a result of this delay, it was unnecessary for the district court to decide whether defendant’s notice was in fact untimely, and this count in the complaint was dismissed. We think the district court incorrectly concluded that, as a matter of law, the notice provisions in the reinsurance certificates were triggered no earlier than April 1987 when Great American decided to set reserves. A. Effect of Setting Reserves on Notice The primary functions served by prompt notice to a reinsurer are to enable it to set proper reserves covering anticipated losses, to decide whether it wishes to exercise its right to associate in the defense of a particular claim, and to establish premiums that accurately reflect past loss experience. See Unigard Security Ins. Co., Inc. v. North River Ins. Co., 762 F.Supp. 566, 581 (S.D.N.Y.1991) (Unigard); see also Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d",
"76 (1972). However, the New York Court of Appeals has held that the presumption is reversed for reinsurers; they generally must demonstrate that late notice was prejudicial in order to avoid obligations under a reinsurance contract. See Unigard Security Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 583, 584 N.Y.S.2d 290, 293, 594 N.E.2d 571, 574 (1992). While the Unigard court concludes that the insurance “no prejudice” rule does not apply to a failure to comply with the prompt notice requirement in a contract of reinsurance, the decision is of limited scope: “All we hold here is that the reinsurer must demonstrate how it was prejudicial and may not rely on the presumption of prejudice that applies in the late notice disputes between primary insurers and their insureds.” Id. at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (emphasis added). We address this question, it must be noted, under the specific prompt notice provision contained in clause C of the North River certificate. There is nothing in this provision or elsewhere in the North River certificate indicating that the parties intended that .the giving of notice should operate as a condition precedent. If the ordinary rules of contract were applied, the prompt notice provision in the North River certificate would not be construed as a condition precedent. Id. at 582, 584 N.Y.S.2d at 293-94, 594 N.E.2d at 574-75 (internal citations omitted). The Second Circuit subsequently has recognized that Unigard sets a default rule applicable only to reinsurance contracts that do not set prompt notice as a condition precedent. See Christiania, 979 F.2d at 273 (“For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, absent an express provision in the contract making prompt notice a condition precedent, it must show prejudice resulted from the delay”) (emphasis added). In the instant case, however, the prompt notice provision clearly indicates that it is intended to serve as a condition precedent. See supra at p. 127. It follows that Unigard does not require a showing of prejudice in order for Constitution",
"under an insurance policy because an insured’s compliance with the notice provision of an insurance policy operates as a condition precedent for coverage. Late notice serves as a complete defense to liability, regardless of whether the insurer was prejudiced by the delay. Security Mut. Ins. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). The principles established by Security Mutual and similar cases have been extended to claims involving excess insurance policies. The purposes of notice provisions are equally applicable to both primary and excess insurers. Prompt notice serves an “important function ... in furnishing even an excess carrier with an opportunity to participate in settlement discussions at a time when its input is most likely to be meaningful.” Am. Home Assurance Co. v. Int’l Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14, 17 (1997). However, while excess insurers have most of the rights and obligations of primary insurers, there is one essential distinction between them. Unlike primary insurers, excess insurers’ “coverage does not immediately attach after an occurrence, but rather attaches only after the primary coverage for the occurrence is exhausted.” Id. As noted above, DKM’s excess insurance policy with TIG dictates that, in the event of an occurrence which may result in a claim, or when a claim is made or a suit is brought, the insured must see to it that notice is provided to TIG “as soon as practicable.” App. 1211 a. Furthermore, in the event of claim or suit, the policy requires the insured to “[immediately send U.S. copies of any demands, notices, summons or legal papers received in connection with the claim or SUIT.” Id. In a case of excess insurance, the Second Circuit, applying New York law, has observed that a notice provision similar to the one found in TIG’s policy, which required notification to the excess insurer in the event of an occurrence, claim or suit, “obviously” does not require the “insured to give notice of suits that do not implicate the [excess] insurer’s policy.” Maryland Cas. Co. v. W.R. Grace & Co., 128",
"the insured to compel the insurer to bear the costs of defense in the underlying action. See Christiania Gen. Ins. Corp. v. Great American Ins. Co., 979 F.2d 268, 275 (2d Cir.1992); Utica Mut. Ins. v. Firemen’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984). Indeed, under New York law, “[a]bsent a valid excuse” the insured’s failure to provide notice “vitiates coverage.” E.g., In re Allcity Ins. Go. and Jimenez, 576 N.Y.S.2d 87, 88, 78 N.Y.2d 1054, 1055, 581 N.E.2d 1342, 1343 (1991). As this court has previously observed, notification provisions advance several important policies: They enable insurers to make a timely investigation of relevant events and exercise early control over a claim. Early control may lead to a settlement before litigation and enable insurers to take steps to eliminate the risk of similar occurrences in the future. When insurers have timely notice of relevant occurrences, they can establish more accurate renewal premiums and maintain adequate reserves. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). While this court offered this observation in the context of a dispute over compliance with a notiee-of-oceurrence provision, the considerations, particularly the concerns over an insurer’s capacity to conduct litigation and settlement negotiations, apply equally to notice-of-claim provisions. NYMU’s argument presents the question whether failure to comply with a policy’s notice requirements also constitutes a complete defense to a fourth-party complaint by a successive insurer against a previous insurer for contribution to the costs of the insured’s defense. Although we have found no New York cases directly on point, a comparison of cases involving disputes between insureds and insurers with eases involving disputes between co-insurers and cases involving disputes between parties to a reinsurance contract allow us to predict with reasonable certainty the result that the New York Court of Appeals would reach were it presented with this issue. See Travelers, 14 F.3d at 119. At least one New York court has held that an insurer may seek contribution from a co-insurer notwithstanding the insured’s failure to give prompt notice to the co-insurer where the insurer",
"which re- quire prompt notice to the reinsurer when a loss occurs which may potentially be within policy coverage.” Id. at 277 (citing 19 Couch on Insurance Sect. 80:71.) “New York courts have held that the question whether notice was given within a reasonable time may be determined as a question of law when (1) the facts bearing on the delay in providing notice are not in dispute and (2) the insured has not offered a valid excuse for the delay.” State of New York v. Blank, 27 F.3d 783, 795 (2d Cir.1994). In the instant action, there is no genuine dispute as to the underlying facts bearing on the delay (see supra at p. 129), and Stonewall has offered no excuse. Courts applying New York law routinely have found delays of less than ten months to be unreasonable as a matter of law. See Blank, 27 F.3d at 797 (citing, e.g., Utica Mutual Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121, 123 (2d Cir.1984) (deferring to trial court’s finding that six month delay was unreasonable); Power Auth. v. Westinghouse Electric Corp., 117 A.D.2d 336, 342, 502 N.Y.S.2d 420, 423 (1st Dept.1986) (53 days); Gov’t Employees Ins. Co. v. Elman, 40 A.D.2d 994, 338 N.Y.S.2d 666, 667 (2d Dept.1972) (29 days)); see also American Home Assur. Co. v. Republic Ins. Co., 984 F.2d 76, 78 (2d Cir.1993) (upholding a finding of 36 days as unreasonable). Here, the delay of over two years was unreasonable as a matter of law. Stonewall therefore failed to satisfy its obligation under the reinsurance contract to provide promptly to Constitution a definitive statement of loss. S. Prejudice Constitution need not demonstrate prejudice as a result of Stonewalls failure to provide a definitive statement of loss. Under New York law, an insured’s failure to comply with a notice provision serves as a complete defense regardless of prejudice to the insurer. See Olin Corp. v. Ins. Co. of North America, 966 F.2d 718, 722-23 (2d Cir.1992); see also Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d",
"contradict clearly unambiguous language contained in an insurance binder, see Am. Sur. Co. v. Patriotic Assurance Co., 242 N.Y. 54, 150 N.E. 599, 601 (1926) (holding that it was error to admit extrinsic evidence to contradict unambiguous description of location in insurance binder), it is just as well settled in New York that extrinsic evidence is admissible to determine the parties’ intentions with respect to the incomplete and unintegrated terms of a binder. See, e.g., Underwood v. Greenwich Ins. Co., 161 N.Y. 413, 55 N.E. 936, 938-39 (1900) (holding that because binder was not “in and of itself, ... such a complete and perfect instrument that it embodied] all the mutual stipulations of the parties ... [it] was open to explanation by parol proof as to the intention of the parties, and the established custom of the business”); see also Thomas v. Scutt, 127 N.Y. 133, 27 N.E. 961, 962-63 (1891) (noting that exception to general rule that parol evidence is inadmissible to contradict a written contract is where “the written instrument, [though] existing and valid, ... [is] incomplete, either obviously, or at least possibly, and ... parol evidence [is admitted], not to contradict or vary, but to complete, the entire agreement, of which the writing is only a part”). Indeed, the Silverstein Parties have relied on this exception to the parol evidence rule in the context of their disputes with other insurers. See, e.g., SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 2003 WL 289600, at *1 (S.D.N.Y. Feb 11, 2003) (agreeing with the Silverstein Parties that question of whether defendant-insurer Zurich’s binder “provid[ed] coverage on a ‘per occurrence’ basis [could] not be resolved without resort to extrinsic evidence”); Appellants’ Rule 54(b) Br. at 2-3 (arguing that due to the fact that “binders are a species of temporary, un integrated contracts,” a court must resort to extrinsic evidence of industry usage and custom to discern the expectations of the parties, particularly where, as here, the binders are “not remotely unambiguous”). In fact, in their brief appealing the district court’s grants of summary judgment in the Rule",
"e.g., Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 430 (2d Cir.1992). Under New York law, the question of ambiguity vel non must be determined from the face of the agreement, without reference to extrinsic evidence. Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998); see also Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir.2000) (construing New York law). “Contract language is ambiguous if it is ‘capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.’ ” Compagnie Financiere, 232 F.3d at 158 (quoting Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1095 (2d Cir.1993)); see Seiden Assocs., 959 F.2d at 428; Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). In deciding whether an agreement is ambiguous, [particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought. Kass, 91 N.Y.2d at 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 (quoting William C. Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524, 159 N.E. 418 (1927)). A contextual reading of the term “Monet” leads us to conclude that the term’s meaning is ambiguous and that it is used in a number of ways throughout the agreement that cannot be reconciled without resorting to parol evidence. As the Appellate Division for the First Department has explained, “[w]here ... there are internal inconsistencies in a contract pointing to ambiguity, extrinsic evidence is admissible to determine the parties’ intent.” Fed. Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 691 N.Y.S.2d 508, 512 (1st Dep’t 1999). In Federal Insurance Co., the court was faced with the question of whether a particular ■ wholly-owned subsidiary was covered under the terms of its parent company’s insurance policy. Despite that the policy expressly stated that it covered “each"
] |
creditor bank, proposed to respondent that ho might best get hack “on his feet” by appointing them a committee, temporarily, to mange' his affairs. But there was nothing improper in this, or nothing inconsistent with the trust company’s present position. As to the matter of disqualification of the three petitioning- creditors, Bankruptcy Act, § 59b (11 USCA § 95), provides that “three or more creditors who bjavo provable claims against any person * * may file a petition to have him adjudged a bankrupt.” Under some of the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See REDACTED But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was
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[
"or its value from such person.” Section 60a, of the act (section 9644) defines a preference as follows: “A person, shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing' of the petition, * * made a transfer of any of Ms property, and the effect of the enforcement of such .3 » * transfer will be to enable any one of Ms creditors to obtain a greater percentage of Ms debt than any other of such creditors of the same class.” It is conceded by the petitioning creditor that, if he has received a voidable preference, he cannot maintain his petition without surrendering or offering to surrender such preference before adjudication. It is therefore unnecessary to consider the question whether such a creditor may file such a petition without making a surrender of any voidable preference, previously obtained, a question which, in view of the distinction between the proving and the allowance of a claim in bankruptcy, and the consequent difference between the meaning of the terms “provable” and “allowable,” is not free from difficulty, and cannot, in my opinion, be regarded as authoritatively decided. Frederic L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445, 29 Sup. Ct. 332, 53 L. Ed. 591; Lesser v. Gray, 236 U. S. 70, 35 Sup. Ct. 227, 59 L. Ed. 471; In re Gillette (D. C.) 104 Fed. 769; In re Herzikopf (D. C.) 118 Fed. 101; In re Hornstein (D. C.) 122 Fed. 266; In re Fishblate Co. (D. C.) 125 Fed. 986; Stevens v. Nave-McCord Mercantile Co., 150 Fed. 71, 80 C. C. A. 25 (C. C. A. 8); In re Murphy (D. C.) 225 Fed. 392; In re Automatic Typewriter & Service Co., 271 Fed. 1 (C. C. A. 2). Passing, then, to the question whether, upon the facts disclosed by the record, this petitioning creditor'received a voidable preference prior to the time of the filing of his petition in bankruptcy, I am clearly of the opinion that such question must be answered in the negative."
] |
[
"of the petition, and are therefore disqualified; and, third, that one of these creditors, the Havre de Grace Banking & Trust Company, is estopped from filing the petition, because it endeavored to induce the respondent to make a general assignment to it, or its nominee, for the benefit of his creditors. Taking np first the question of estoppel, it seems clear that this is entirely without merit. There is evidence that the secretary of the Havre de Grace Banking & Trust Company, together with the president of another creditor bank, proposed to respondent that ho might best get hack “on his feet” by appointing them a committee, temporarily, to mange' his affairs. But there was nothing improper in this, or nothing inconsistent with the trust company’s present position. As to the matter of disqualification of the three petitioning- creditors, Bankruptcy Act, § 59b (11 USCA § 95), provides that “three or more creditors who bjavo provable claims against any person * * may file a petition to have him adjudged a bankrupt.” Under some of the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See In re Standard Detroit Tractor Co. (D. C.) 275 F. 952, 954. But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibition of the use of their claims by",
"the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See In re Standard Detroit Tractor Co. (D. C.) 275 F. 952, 954. But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibition of the use of their claims by preferred creditors until they surrender them, which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. “Such a preferred creditor may present or may join in a",
"preferred creditors until they surrender them, which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. “Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his preference before the adjudication. In re Hornstein (D. C.) 122 F. 206, 273, 277; In re Gillette (D. C.) 104 F. 769.” The question, therefore, becomes whether the petitioners, or any of them, have received voidable preferences, there being only the minimum number of petitioning creditors, three. The preferences alleged in the answer are that on May 2, 1927, Maeklem paid to one cf the individual petitioners $59 on account, and on July 11, 1927, to the other individual petitioner $133.59 on account; these petitioners knowing Maeklem was then insolvent. As to the third petitioner, the Havre de Grace' Banking & Trust Company, the claim is that it was prefeired by the payment on July 16,1927, of a note for $206.20, dated May 6, 1926, and also by payment of interest about the same time on another note which it held for $10,000. The court does not think that any of these payments can he called",
"his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his-preference before the adjudication. In re Hornstein, 122 Fed. 266, 273, 277; In re Gillette (D. C.) 104 Fed. 769. Such a creditor may not be counted against the petition, nor in computing the number of creditors that must join in the petition, unless he first surrenders his preference. But, if he surrenders lus preference before the adjudication, he may be counted after the surrender. In re Miner (D. C.) 104 Fed. 520; Collier on Bankruptcy (5th Ed.) 440, 481; In re Blount (D. C.) 142 Fed. 263, 266; Leighton v. Kennedy, 64 C. C. A. 265, 267, 129 Fed. 737, 739; In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In re Currier, Fed. Cas. No. 3,492. The decisions upon some of the questions which have been considered have not been uniform, and these conclusions have not been reached without a perusal of the opinions in the cases of In re Herzikopf (D. C.) 118 Fed. 101; In re Burlington Malting Co. (D. C.) 109 Fed. 777, 779; In re Romanow (D. C.) 92 Fed. 510; In re Rogers’ Milling Co. (D. C.) 102 Fed. 687; In re Schenkein (D. C.) 113 Fed. 421, 427; In re Fishblate Clothing Co. (D. C.) 125 Fed. 986; Brandenburg on Bankruptcy (3d Ed.) 922, 923. In the case under consideration, all the creditors except three had received voidable preferences which they had not offered to surrender. They were not entitled to be counted,“therefore, in computing the number of creditors for the purpose of determining how many must join in the petition. The petition of Martha Stevens disclosed the fact that there were less than 12 creditors who could be lawfully reckoned for this purpose, and it stated facts sufficient",
"evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was passed to provide, the prohibi- • tion of the use of their claims by preferred creditors until they surrender them which the act contains, the general scope of the law and all its provisions read and considered together, and the duty to give to it a rational and sensible interpretation, have forced our minds to the conclusion that it was the intention of Congress that creditors who hold voidable preferences should not be counted either for or against the petition for an adjudication in bankruptcy until they surrender their preferences. This intention, thus deduced, must therefore prevail over the technical rules of construction which counsel for the appellees invoke. The result is: A creditor who holds a voidable preference has a provable claim in the sense that he may make and file the formal proof thereof specified by the bankruptcy law; but he may not procure an allowance of his claim, he may not vote at a creditors’ meeting, and he may not obtain any advantage from his claim in the bankruptcy proceeding before he surrenders his preference. Such a preferred creditor may present or may join in a petition for an adjudication of bankruptcy. But he may not be counted for the petition unless he surrenders his-preference before the adjudication. In re Hornstein, 122 Fed. 266, 273, 277; In re Gillette (D. C.) 104 Fed. 769. Such a creditor may not be counted against the petition, nor in computing the number of creditors that must join in the petition, unless he first surrenders his preference. But, if he surrenders lus preference before the adjudication, he may be counted after the surrender. In re Miner (D. C.) 104 Fed. 520; Collier on Bankruptcy (5th Ed.) 440, 481; In re Blount (D. C.) 142 Fed. 263, 266; Leighton v. Kennedy, 64 C. C. A. 265, 267, 129 Fed. 737, 739; In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In",
"the master or the conclusions which he reached. The two requests for rulings of law demand attention. First, as to the number of creditors of the alleged bankrupt, it appears from the report that, shortly prior to the filing of the petition in these proceedings, the bankrupt paid off some twenty creditors, leaving less than twelve in number unpaid. Respecting some of these creditors it may be successfully claimed that they received a voidable preference, but it seems to be well settled that such creditors cannot be counted for the purpose of determining whether a petition may be brought by a single creditor under section 59b of the Bankruptcy Act, being Comp. St. § 9643 (Stevens v. Nave-McCord Co., 150 E. 71, 80 C. C. A. 25), at least until the creditor has surrounded his preference (In the Matter of Murphy [D. C.] 225 F. 392). Moreover, the alleged bankrupt did not comply with the provisions of section 59d, by filing with his answer a list, under oath, of all of the creditors. The master correctly held that the petitioner was entitled to bring this petition as a single creditor under section 59b. It further appears that the alleged bankrupt, after these proceedings were instituted, brought a suit for breach of contract against one Vaughan. A copy of the declaration was received in evidence without objection. The alleged bankrupt offered to prove that Vaughan was responsible; that a contract had been entered into between Vaughan and the alleged bankrupt; the nature of the contract, a breach of it, and that the claim was for substantially the ad damnum of $50,000 named in the writ. This evidence the master refused to receive on the question of insolvency. Apart from this alleged claim against Vaughan, the master found that the total assets amounted to nearly $20,000, and that the total liabilities approximated $50,000. It is obvious from his report that the master proceeded on the theory that the claim against Vaughan was of such a nature that it could not be considered as an asset, within the meaning of section la (15),",
"263 U.S. 244, at page 249, 44 S.Ct. 67, 68, 68 L.Ed. 287: “We therefore conclude that where a petition for involuntary bankruptcy is sufficient on its face, alleging that the three petitioners are creditors holding provable, claims and containing all the averments essential to its maintenance, other creditors having provable claims who intervene in the proceeding and join in the petition at any time dijring its pendency before an adjudication is made, after as well as before the expiration of four months from the alleged act of bankruptcy, are to be counted at the hearing in determining whether there are three petitioning creditors qualified to maintain the petition, it being immaterial in such case whether the three qualified creditors joined in the petition originally or by intervention.” Citing In re Stein (C.C.A.) 105 F. 749; In re Bolognesi (C.C.A.) 223 F. 771, 773; In re Romanow (D.C.) 92 F. 510; In re Mammouth Lumber Co. (D.C.) 109 F. 308; In re Mackey (D.C.) 110 F. 355; In re Plymouth Cordage Co. (C.C.A.) 135 F. 1000; Stevens v. Mercantile Co. (C.C.A.) 150 F. 71; Ryan v. Hendricks (C.C.A.) 166 F. 94; First State Bank v. Haswell (C.C.A.) 174 F. 209; In re Etheridge Furniture Co. (D.C.) 92 F. 329; In re Bedingfield (D.C.) 96 F. 190; In re Gillette (D.C.) 104 F. 769; In re Vastbinder (D.C.) 126 F. 417; In re Crenshaw (D. C.) 156 F. 638. See, also, in this circuit Hibel Fur Co. v. Strongin et al. (C.C.A.) 33 F. (2d) 30, 32. We think, therefore, that the District Court erred in holding that the original petition was invalid by reason of Annie B. Gilberte being estopped from signing the petition, and that the intervening creditors could not join and make up the deficiency in the number of creditors, even though their claims were filed after the four months’ period following the appointment of a receiver in the state court. Section 59f of the Bankruptcy Act (11 U.S.C.A. § 95 (f) authorizes creditors other than the original petitioners at any time to enter their appearance and join",
"an unlawful preference, which gave to the Bank of Batavia a greater percentage of its debt against Gillette, as an individual, than any other creditor. An important question in this case, however, and which was not presented to the special master, is whether the Bank of Batavia, which has accepted and retains an unlawful, preference, may petition to have the said Gillette & Prentice, from whom such unlawful preference was obtained, declared involuntary bankrupts. By section 59b of the bankrupt act it is provided that: “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” It is argued with much force that the true intent of the act contemplates that where a petition is filed by three creditors, and for any reason it is claimed that one of such creditors is disqualified from uniting in that petition, that fact -must be set forth by answer, in order that the facts denied may be submitted to the special master for examination; that the answer in this case, by not denying that the petitioners have provable claims against the co-partnership assets, admits the allegation, and it is too late, after the master has made his report and all the evidence has been taken, to raise this question; and that the Bank of Batavia has a provable debt against the co-partnership assets, whatever may be said of its claim against the individual assets of Gillette. Under the act of 1867, a person who committed an act of bankruptcy was adjudged a bankrupt on the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounted to at least $250. When under that act a person was adjudged a bankrupt, his assignee was empowered to recover back the",
"No. 11,522, it was held that: “A petition in involuntary bankruptcy which states the giving to the petitioner of an unlawful preference in respect to a debt, but does not surrender the preference, will be dismissed.” Section 59b and section 60 of the act of 1898 are similar to the provisions of the act of 1867, in the point under discussion, except that: uuder the act of 1898 three or more creditors who have provable claims are required to petition to have a person adjudged an involuntary bankrupt, while under the former act one or more persons were required for this purpose. By the amendment of 1874 jurisdiction is given in involuntary proceedings only in cases where a fourth in number and a third in value of the creditors unite in the petition. By section 57g of the present act it is provided, as we have seen, that \"the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences”; and it is held that an innocent creditor may keep a preference which he receives, but he is not permitted to share in the distribution of the bankrupt’s estate unless the preference received by such creditor is surrendered. Electric Co. v. Worden, 39 C. C. A. 582, 99 Fed. 400, 2 Nat. Bankr. N. 434. But compare In re Smoke (D. C.) 104 Fed. 289, 4 Am. Bankr. R. 434; In re Alexander (D. C.) 102 Fed. 464, 4 Am. Bankr. R. 376; and In re Piper, 2 Nat. Bankr. N. 7. The fact, therefore, that three or more creditors who have provable claims may tile a petition to have a person adjudged a bankrupt is strictly a jurisdictional one. The authorities under the act of 1867 bear out this contention. In Re Mason (D. C.) 99 Fed. 256, 2 N. B. R. 425, the court said: “Want of jurisdiction over the subject-matter may be taken advantage of at any time, and it may be collaterally attacked; but, where the objection goes merely to want of jurisdiction of the person or thing, there",
"the foregoing facts. If the 47 creditors who had received the preference ought not to be counted against the petitioner, there were less than 12 other creditors, her petition stated facts sufficient to warrant the adjudication she sought, and, whether Fowler and Deardorff should have been permitted to join her in her petition or not, its dismissal was error. Since a decision of this question in favor of the appellants will dis-' pose of this case and render all other issues immaterial, it will be first considered. The argument, in support of the contention that creditors who have secured a voidable preference must be counted in computing the number of creditors that must join in the petition, is that such parties have provable claims, and that every one who has a provable claim, and who is not excluded by section 59e (30 Stat. 562, 3 U. S. Comp. St. 1901, p. 3445), is a countable creditor under the bankruptcy law of 1898. It is that section 59b provides that “three or more creditors who have provable claims against any person * * * or if all of the creditors of such person are less than twelve in number, then one of such creditors * * * may file a petition to have him adjudged a bankrupt”; that section 1, subd. 9 (30 Stat. 544 [U. S. Comp. St. 1901, p. 3419]), declares that ‘creditor’ shall .include any one who owns a demand or claim provable in bankruptcy”; that section 59f authorizes “creditors other than original petitioners” to be heard in opposition to the prayer of the petition”; that section 18b (30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]) allows “the btCiiklupt or any creditor” to appear and plead to the petition; that section 57d (30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]) provides that “claims which have been duly proved shall be allowed * * * unless objection to their allowance shall be made’ by parties in interest * * * ”; that section 57g provides that “the claims of creditors who have received preferences shall"
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. Following our decision in Hassell, several courts articulated formulations to determine when a parent-subsidiary relationship is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP REDACTED EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980). . The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originally proposed, both the House and Senate version of the bill set the minimum number of employees
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[
"leading case in propounding the view is Williams v. New Orleans Steamship Association, 341 F.Supp. 613 (E.D.La. 1972) . In Williams, the District of Louisiana embraced an EEOC opinion to the effect that establishments which are part of an integrated enterprise may be treated as a single employer. The Williams court does not stand alone in this view. Taylor v. Armco Steel Corporation, 373 F.Supp. 885 (S.C.Tex.1973); United States v. Local 638, Enterprise Ass’n., 360 F.Supp. 979 (S.D.N.Y. 1973) . The most appropriate and definitive method for a determination as to whether a consolidation of separate entities is warranted involves a utilization of the National Labor Relations Board’s “single employer” standards. Baker v. Stuart Broadcasting Company, 560 F.2d 389 (8th Cir. 1977). This quadripartite test entails proof of: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). These standards are as appropriate for issues under Title VII as for problems under the Labor Management Relations Act, 1947, 29 U.S.C. §§ 141 et seq. The second basis upon which to establish the responsibility of Upjohn for acts of its subsidiary LPS involves issues of agency. As provided by the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day . . and any agent of such a person. Title VII of the Civil Rights Act of 1964 outlaws discrimination by an “employer” on the basis of an individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). Under these sections, if it may be shown that LPS operated as an agent of Upjohn, the liability for the discriminatory practices becomes the responsibility of Upjohn as “employer” and LPS as “agent”. The existence of the agency relationship may be inferred from the facts of the two parties’ interaction. A denial of the agency relation does not forestall the"
] |
[
"is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP Cases 1807 (N.D.Ga.1977); EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980). . The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originally proposed, both the House and Senate version of the bill set the minimum number of employees at eight. See H.R. 1746, 1st Sess. 117 Cong.Rec. 212, Reprinted in Subcommittee on Labor-Senate Committee on Labor and Public Welfare Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972) (hereinafter Legislative History) at 1; S. 2515 Section 2(b) introduced September 14, 1971, 92d Cong., 1st Sess. 117 Cong.Rec. 31702, Reprinted in Legislative History at 158. The Senators who spoke against the eight-employee provision echoed Senator Williams’s concerns as to the antidiscrimination principle. See Remarks of Senator Allen, 118 Cong.Rec. 2386 (1972), Legislative History at 1269; Remarks of Senator Fannin, 118 Cong.Rec. 2409 (1972), Legislative History at 1297; see also Remarks of Senator Cotton, 118 Cong.Rec. 2391 (1972), Legislative History at 1282.",
"of Local 18 and the IBEW or Local 18 acting as agent of the IBEW. We disagree. In Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977), the Eighth Circuit applied a four-prong test, used by the NLRB in labor cases, to determine whether two employing entities constitute a single employer for purposes of jurisdiction under Title VII. [T]he standard to be employed to determine whether consolidation of separate [employing] entities is proper are the standards promulgated by the National Labor Relations Board: (1) inter-relation of operations, (2) common management, (3) centralized control of labor relations; and (4) common ownership or financial control. Id. at 392; accord York v. Tennessee Crushed Stone Assoc., 684 F.2d 360, 362 (6th Cir.1982); Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir.1980); Williams v. Evangelical Retirement Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir.1979). Under this standard, appellees argue that there is no basis for considering Local 18 and the IBEW to be a single employer. Although Local 18 is chartered by the IBEW, it conducts its own labor relations, hires and fires employees on its own, elects its own officers, conducts its own collective bargaining, and has a separate treasury. We conclude, therefore, that Local 18 and the IBEW are not a single employer under the Stuart Broadcasting test. Appellant argues, nonetheless, that if the Local is an agent of the IBEW, a suit against Local 18 as agent of the IBEW meets the Title VII jurisdictional requirement. This position is supported by the language of the statute, 42 U.S.C. § 2000e(b), and indirectly by Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1215 (9th Cir.1980) (International liable for actions of Local only if Local is agent of International). In this case, however, appellant has not alleged or offered to prove any of the traditional indicia of an agency relationship (such as consent by the alleged agent that another shall act on his behalf, and control of the alleged agent by the principal). See, e.g., Nelson v. Serwold, 687 F.2d 278, 282 (9th Cir.1982); cf. Kaplan",
"subsidiary’s conduct as that of both. See Hassell v. Harmon Foods, Inc., 454 F.2d at 200; see also Watson v. Gulf & Western Industries, 650 F.2d 990, 993 (9th Cir.1981) (Absent special circumstances, parent is not responsible for subsidiary’s Title VII violations). For guidance in testing the degree of interrelationship, we look to the four-part test formulated by the NLRB and approved by the Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). Accord Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Williams v. Evangelical Retirement Homes of St. Louis, 594 F.2d 701, 703 (8th Cir.1979); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir.1977); see also EEOC v. American National Bank, 652 F.2d 1176, 1185 (4th Cir.1981), cert, denied, — U.S. —, 103 S.Ct. 235, 74 L.Ed.2d 186; cf. Dumas v. Town of Mt. Vernon, 612 F.2d 974, 980 n. 9 (5th Cir.1980). This Circuit has also adopted this test which assesses the degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. See, e.g. NLRB v. Borg Warner Corp., 663 F.2d 666 (6th Cir.) cert. denied, 457 U.S. 1105, 102 S.Ct. 2903, 73 L.Ed.2d 1313 (1981). While each factor is indicative of interrelation and while control over the elements of labor relations is a central concern, see Sheeran v. American Commercial Lines, 683 F.2d 970, 978 (6th Cir.1982), the presence of any single factor in the Title VII context is not conclusive. All four criteria need not be present in all cases and, even when no evidence of common control of labor relations policy is presented, the circumstances may be such that the Title VII single-employer doctrine is applicable. See Metropolitan Detroit Bricklayers v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir.1982); Local No. 627, Operating Engineers v. NLRB, 518 F.2d 1040, 1045-46 (D.C.Cir.1975), aff’d in relevant part sub nom. South Prairie Construction Co. v. Local 627, Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976); see",
"in determining single employer status. Cases treating two separate corporate entities as a single employer have placed heavy emphasis on the existence of common directors and officers. Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th Cir. 1977); Ratcliffe v. Insurance Company of North America, 482 F.Supp. 759 (E.D.Pa.1980); Dempsey v. Shoe Show, Inc., 19 FEP 1557 (M.D.N.C.1978); McLendon v. Continental Trailways, Inc., 18 FEP 1698 (N.D.Tex.1978); Hill v. Singing Hills Funeral Home, 77 F.R.D. 746, 748-49 (N.D.Texas 1978) . Here, in contrast, it is undisputed that Farmers Mutual and Gold Kist have separate boards of directors and separate corporate officers and that there are no common directors or officers. In Western Union Corp., 224 NLRB 274 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978), there was some overlap of officials between Western Union and its five subsidiaries, but the Board nevertheless refused to find common management. 3. No Centralized Control of Labor Relations: Of the four criteria applied in determining single-employer status, the most critical is the degree to which control of labor relations is centralized. EEOC v. Cuzzens of Georgia, 15 FEP 1807 (N.D.Ga.1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir. 1979); Western Union Corp., 224 NLRB 274 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978); Woodford v. Kinney Shoe Corp., 369 F.Supp. 911 (N.D.Ga.1973); Ratcliffe v. Insurance Company of North America, 482 F.Supp. 759 (E.D.Pa.1980); EEOC v. Sage Realty Co., 23 EPD ¶ 31,046 (S.D.N.Y.1980); McLendon v. Continental Trailways, Inc., 18 FEP 1698 (N.D.Tex.1978). Here it is undisputed that all Farmers Mutual employees were hired by its general manager, without any involvement by anyone with Gold Kist. There is evidence that there was a contractual agreement which gave Gold Kist certain rights of control, which were not exercised. It is well settled that the “control” required to meet the test, of centralized control of labor relations is not potential control, but rather actual and active control of day-to-day labor practices. The evidence in this case does not show actual and active control of day-to-day labor practices. Even when there is a considerable amount of control present, if it does",
"Corporation as a ‘sham’ entity in order to consolidate it with its parent corporations to satisfy the Title VII prerequisite of fifteen employees.” 498 F.Supp. at 862. The court reasoned that under Hassell v. Harmon Foods, Inc., supra, the formal corporate relations between Syntax and its parent were regular and unexceptional, and thus the separate corporate entities would be respected. Upon finding that the parent corporation had nothing more than a possible “awareness” of the identity, positions, and salaries of Syntax employees, the district court opined that there was no “centralized control of labor relations” as required under the four-part test articulated in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). As to the manufacturer’s representatives, the district court adopted the general common law rule for purposes of determining whether an individual is an employee. Under this standard, the court examined the purported control over the means, manner and details of the work performed. The lower court found that evidence of commission payments for accomplished results was an insufficient basis upon which to determine whether an employment relationship existed between Syntax and its manufacturer’s representatives under the common law test. The court concluded that the manufacturer’s representatives were more akin to independent contractors, than to employees. Thus, upon considering the total number of part-time and full-time persons employed by Syntax, the court determined that the minimum jurisdictional requirement of fifteen employees had not been met; therefore, this claim was dismissed for lack of subject matter jurisdiction. The district court also dismissed plaintiffs’ Fourteenth Amendment claim since no state action was alleged. No assignment of error is premised upon this basis of dismissal; accordingly, this portion of the lower court’s judgment is AFFIRMED. We also affirm the lower court’s dismissal of Stackpole since it was not charged in the administrative action before the EEOC. Accord Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). II. STANDARD OF REVIEW The lower court’s jurisdictional ruling was based upon",
"389 (8th Cir.1977), rests upon a finding that the two entities constitute a single or joint employer. The second rests on a finding that one entity, here the Association, is merely the agent or instrumentality of the other, an approach employed in EEOC v. ISC Financial Gorp., 14 Empl.Prac.Dec. ¶ 7729 (W.D.Mo.1977). See also Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 639 (N.D.Ga.1977). In examining those cases the court concluded that although an agency relationship did not exist, the Company and the Association could be considered a joint employer under Baker v. Stuart Broadcasting Company. The Court in Baker noted that there are four criteria for determining whether a consolidation of separate entities is proper for application of the standards promulgated by the National Labor Relations Board: (1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control. 560 F.2d at 392. The court concluded that the liberal treatment accorded the interpretation of Title VII warranted the use of like factors in determining whether two entities should be considered to be one employer under 42 U.S.C. § 2000e(b). Id. The trial court in the present case found that the Baker standard was useful by analogy in helping to analyze the relationship of the Company and the benefits Association. In applying the first standard, that is the interrelatedness of Company and Association operations, the trial court found a clear interrelationship in the operations of the two. With this conclusion we fully agree. Recently hired employees received information about the opportunity for Association membership, which is conditioned only upon employment with the Company, physical examination requirements and an agreement to join and pay the prescribed dues. The Association has no paid employees of its own but depends upon Association volunteers who are permitted to do their work on Company time and with the use of Company equipment and space. The trial court also pointed to the fact that the election of board members to the Association was handled through the Company’s facilities. The",
"York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978), aff’d in part, rev’d in part and remanded, 608 F.2d 1369 (2d Cir.1979). . Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-28 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). These four factors were first adopted by the Supreme Court for application in the area of labor relations in Radio Union v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Although we declined to apply the integrated enterprise standard in Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980), that case is readily distinguishable on its facts. Plaintiffs in Dumas sought under the four-part standard to integrate the Town of Mt. Vernon with either the county, or the state. As articulated, the standard is not readily applicable to governmental subdivisions, for it was “developed by the National Labor Relations Board to determine whether consolidation of separate private corporations is proper in determining the relevant employer for purposes of enforcing the National Labor Relations Act.” Owens v. Rush, 636 F.2d 283, 286 n. 2 (10th Cir.1980) (emphasis in original). . See note 3 supra & accompanying text. . See footnote 6, supra. See also Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 540-42 (5th Cir.1980), in which we held that the district court did not err in admitting evidence of past discriminatory acts in Title VII class actions challenging broad, established practices and policies. . Cf. EEOC v. Packard Electric Division, General Motors Corporation, 569 F.2d 315 (5th Cir. 1978), in which we found no clear error in the district court’s refusal to fully enforce broad EEOC investigative subpoenas of facility-wide “workforce break-outs.”",
"will ultimately prevail on the jurisdictional issues. Rather, we merely have set out the applicable legal principles needed to assess whether the plaintiffs have met the jurisdictional requirement of the Act. Since the district court had not originally employed this analysis, the judgment below is REVERSED and the case remanded for additional proceedings not inconsistent with this opinion. The judgment below is REVERSED and REMANDED for further proceedings not inconsistent with this opinion. . The district court opinion is reported at 498 F.Supp. 858. . At the time Hassell v. Harmon Foods, Inc., 454 F.2d 199 (6th Cir. 1972), was decided, the Civil Rights Act of 1964 required an employer to have a minimum of twenty-five employees before being subject to the Act. In 1972, the Act was amended to provide that the employment of fifteen employees subjected an employer to the requirements under the Act. See 42 U.S.C. § 2000e(b); see also footnote 3, ante, and accompanying text. . Following our decision in Hassell, several courts articulated formulations to determine when a parent-subsidiary relationship is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP Cases 1807 (N.D.Ga.1977); EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980).",
"Digital Corp. for accounting or bookkeeping serv ices, the affidavits assert that Digital Corp. does not control Digital GmbH’s sales goals or marketing strategies, and sales catalogues and advertising are done separately. On the basis of the defendants’ affidavits, there was no recognized theory upon which Digital Corp. could be held responsible under Title VII for the acts of Digital GmbH. The two companies would not, in our opinion, be a single enterprise or employer under the test developed by the National Labor Relations Board and applied by some courts in Title VII cases. E. g., Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (considering (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977); Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1183-84 (E.D.N.Y.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638 (N.D.Ga.1977). Nor would Digital Corp. be liable on the theory that the parent-subsidiary relationship is a sham, see Hassell v. Harmon Foods, Inc., 336 F.Supp. 432, 433 (W.D.Tenn.1971), aff’d, 454 F.2d 199 (6th Cir. 1972), or that Digital Corp. so controls Digital GmbH as to make Digital GmbH its agent, see Linskey v. Heidelberg Eastern, Inc., supra, at 1183-84; EEOC v. Upjohn Corp., supra, at 638. The district court was likewise correct in concluding that Mas Marques’ opposition papers did not suffice to create a genuine issue of fact concerning Digital Corp.’s liability. In his two “oppositions” to summary judgment, which were unsworn and unsupported by affidavits, Mas Marques asserted a close relationship between Digital Corp. and Digital GmbH, but his statements about the corporate relationship were conclusory (e. g., the companies are “one and the same,” their parent-subsidiary relationship is a “sham,” Digital Corp. “impermissibly controlled” Digital GmbH, Digital management “takes its orders from” Digital Corp.). Even reading the pro se opposition papers liberally, in accordance with Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d",
"916 (N.D.Ga.1973). The criteria and standards developed in other types of employment discrimination cases when dealing with similar problems in interpreting the definitions of employer have been applied to ADEA cases. See: Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (Title VII, 42 U.S.C. Sec. 2000e, et seq.) One such criteria has been the formula used by the National Labor Relations Board (NLRB) and adopted by the Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). Under this test the following factors are examined: (1) interrelation of operations, (2) common management, (3) common control of labor relations and (4) common ownership of financial control. Id. at p. 256, 85 S.Ct. at p. 877; Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir. 1980); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977). Another method used by the courts to deal with this situation is by examining the relationships between the organizations to see if there exists an agency relationship that could establish an employment nexus between them. The agency theory is based on the definition of the term employer by the ADEA as including an agent of an employer. The employment nexus is established when one of the corporations has been the agent of the other with respect to employment practices. Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., infra, at p. 728; Linkskey v. Heidelberg Eastern, ante, at 1183. Other courts have approached the problem as one analogous to the alter-ego theory developed in the law of corporations. Viewed in this light, the relations between the corporations have to be so intermingled as to demonstrate that separate existence is a “sham.” Mas Marques, ante, at 27; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725 (N.D.Ala.1981); Armbruster v. Quinn, 498 F.Supp. 858, 862 (E.D.Mich.1980); Hassell v. Harmon Foods, Inc., 336 F.Supp. 432 (W.D.Tenn.1971), aff’d 454 F.2d 199 (6th Cir. 1972). See also: Annotation 49 A.L.R.Fed. 900. By scrutinizing the corporate relationships"
] |
Township would have in his not applying for them. All of Plaintiffs remaining claims, therefore, pass the second step of the test and must be considered in the third. C. Did Retaliation Cause Defendants’ Actions Against Plaintiff, and Would Defendants Have Done the Same Absent Retaliatory Motives? The Court of Appeals for the Third Circuit has made clear that the final steps of the inquiry, present questions of fact, to be left for a jury. Baldassare v. New Jersey, 250 F.3d 188 (3d Cir.2001) (citing Green v. Philadelphia Housing Auth., 105 F.3d 882, 889 (3d. Cir.1997) (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); Watters v. City of Philadelphia, 55 F.3d 886, 892 n. 3; REDACTED cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.1985) (holding “second and third questions ... should be submitted to the jury”)). Therefore, the Court remains mindful of its duty to interpret the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in receiving Plaintiffs favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.2007). In doing so, however, it will not limit itself to the arguments of the parties but will consider
|
[
"and we therefore do not review the district court’s grant of summary judgment on that issue. . In Murray, plaintiffs speech concerned a furlough lottery instituted to determine which employees were to be laid off. The court held this \"was purely a labor relations matter, an arrangement of employees under which some would win and some would lose.” 741 F.2d at 438. Because the Murray facts are substantially different from those before us, we have no occasion to comment on how that case would be decided under this court’s precedent. . Because Stamler conceded for the purposes of the summary judgment motion that “all of these disciplinary actions about which Zamboni complains were in reprisal for his opposition to the reorganization plan and its ramifications upon him,” Appellees’ Brief at 7, we do not reach the issue of whether the protected activity was a substantial or motivating factor in the actions taken against Zamboni, or whether the same actions would have been taken even had Zamboni not engaged in protected conduct. See Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 224 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 844 (1981). We note that these inquiries, which follow a determination that speech is protected, are for the jury. See Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir.1985). . In addition to their other arguments, the individual defendants assert that they are immune from suit in their individual capacities under the qualified immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Although the district court did not reach this issue, the defendants argue that \"[t]he question of a public official’s qualified immunity is ... purely a question of law” which this court should determine. Appellee’s Brief at 45-46. Defendants’ argument that Zamboni’s First Amendment rights were not clearly established at the time the action occurred cannot be sustained in light of this court’s line of precedent on public employees’ protected speech. See, e.g., Czurlanis v. Altanese, 721 F.2d at 107; Trotman v. Board of Trustees"
] |
[
"v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Swineford, 15 F.3d at 1270. Finally, defendants may defeat plaintiffs claim by demonstrating “that the same action would have been taken even in the absence of the protected conduct.” Id. The district court did not reach the last two factors because it resolved the first factor in defendants’ favor as a matter of law. Accordingly, our discussion will focus on the first step, whether Green’s appearance in court was a protected activity. To qualify as a protected activity, Green’s court appearance must satisfy the Pickering balancing test. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the court appearance must constitute “speech ... on a matter of public concern.” Watters, 55 F.3d at 892. Second, the public interest favoring his expression “must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees.” Id. See also Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35 (“The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”); Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1366 (3d Cir.1993) (“On plaintiffs side of the balance, we must ... consider the interests of the public in plaintiffs speech.”). Determining whether Green’s appearance is protected activity under Pickering is an issue of law for the court to decide. See Waters v. Churchill, 511 U.S. 661, 667-69, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994). 1. A",
"his ter mination also rebutted employer’s claim that the professor would have been terminated regardless of his protected activities). We reject the officers’ contention that courts may never grant summary judgment on either the second or third steps of this analysis. Although we have often noted that the first prong of the First Amendment retaliation test presents questions of law for the court while the second and third prongs present questions of fact for the jury, e.g., Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004) (citing Baldassare, 250 F.3d at 195), only genuine questions of fact should be determined by the jury. For example, in Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 496 (3d Cir.2002), we held that judgment as a matter of law under Rule 50(b) should have been granted to the defendant where the plaintiff failed to present sufficient evidence that his protected activity was a substantial factor in his suspension. The same principle applies in the summary judgment context under Rule 56. E.g., Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995) (noting District Court concluded that plaintiff made sufficient showing that speech was substantial factor motivating termination to submit question to jury). In this case, the officers satisfied their evidentiary burden on the “substantial factor” prong and sufficiently rebutted the city’s evidence that they would have been terminated anyway. The officers’ strongest evidence suggests that several nonresident employees who did not participate in the 1997 lawsuit were not terminated despite the city’s knowledge or unrebutted suspicions that they lived outside the city. The District Court in its opinion gives an example of such an employee. After holding that the officers could not substantiate their claim that “similarly situated” employees were allowed to keep their jobs, the court held that Robert Murray had successfully done so. Murray alleged that his neighbor Robert Warner, a firefighter for the city, was not terminated even though they both lived outside the city. The court found that whether Warner actually lived outside the city and whether the city knew of Warner’s possible noncompliance were",
"U.S. at 668, 114 S.Ct. 1878; Green, 105 F.3d at 885. If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters, 55 F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). Lastly, the public employer can rebut the claim by demonstrating “it would have reached the same decision ... even in the absence of the protected conduct.” Doyle, 429 U.S. at 287, 97 S.Ct. 568; Swineford, 15 F.3d at 1270 (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)). The second and third stages of this analysis present questions for the fact finder and are not subject to review in this case. Green, 105 F.3d at 889 (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); see also Watters, 55 F.3d at 892 n. 3; Zamboni v. Stamler, 847 F.2d 73, 79 n. 6, 80 (3d Cir.) (noting whether protected activity acted as substantial or motivating factor in discharge and whether same action would have been taken regardless are questions for jury), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.1985) (holding “second and third questions ... should be submitted to the jury”). A. Matter Of Public Concern Our initial inquiry trains on whether Baldassare’s conduct in the investigation qualifies as a matter of public concern. Connick, 461 U.S. at 146, 103 S.Ct. 1684; Swineford, 15 F.3d at 1270-71. “A public employee’s speech involves a matter of public concern if it can ‘be fairly considered as relating to any matter of political, social or other concern to the community.’ ” Green, 105 F.3d at 885-86 (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). In this respect, we focus on the content, form, and context of the activity in question. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Watters, 55 F.3d",
"all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The Court need not determine whether the plaintiff will ultimately prevail; rather, it must determine whether the plaintiff can prove any set of facts to support his claim that would entitle him to prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The defendant carries the burden of establishing that no claim has been presented. Curry v. Huyett, 1994 WL 111357 *1 (E.D.Pa.). Has Plaintiff Alleged A § 1983 Claim? In order to state a claim under § 1983, a plaintiff must allege two things: 1) the violation of a right secured by the Constitution and laws of the United States; and 2) the commission of the deprivation by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572(1980); Buzzanco v. Lord Corp., 173 F.Supp.2d 376, 381 (E.D.Pa.2001); Breslin v. Brainard, 2002 WL 31513425 *3 (E.D.Pa.). As is shown below, the Plaintiff has plainly set forth the first requirement, but it is unclear whether she has adequately plead the second. Is a Constitutional Violation Alleged? The Complaint alleges that the County’s decision to serve the rule by publication when it had confirmed the Plaintiffs mailing address is constitutionally inadequate. Complaint, Count I. The County defends its action arguing the Pennsylvania rules of procedure provide for published service. Motion, 8. Does publication service pass constitutional muster when other, more direct methods, are available? Beginning with Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court has consistently made clear that service by publication alone failed the “elementary and fundamental requirement of due process ... which is to ... apprise interested parties of the pen-dency of the action and",
"claim by demonstrating that, absent the protected conduct, it would have taken the same adverse action. Id. (citations omitted). See also Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir.2008) (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). A determination of whether a plaintiff has engaged in activity protected by the First Amendment is a question of law. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006); Baldassare, 250 F.3d at 195. Conversely, the questions of whether a plaintiffs protected activity was a substantial or motivating factor in the retaliatory action and whether the defendant would have taken adverse action absent the protected activity are questions of fact. Id.; Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004). Therefore, the Court is confined at this stage to determining whether, viewing the evidence of record in a light most favorable to Plaintiff, a reasonable fact-finder could determine that her engagement in protected activity was a substantial or motivating factor in the retaliatory conduct or whether Defendants would have taken adverse action against Plaintiff regardless of her PHRC claim. See Baldassare, 250 F.3d at 195; Green v. Phila. Housing Auth., 105 F.3d 882, 889 (3d Cir.1997). 1. Substantial or Motivating Factor The determination of whether Plaintiffs participation in protected activity was a substantial or motivating factor for engaging in retaliatory conduct “embraces two distinct inquiries: ‘did the defendants take an action adverse to the public employee, and, if so, was the motivation for the action to retaliate against the employee for the protected activity.’ ” Schneck v. Saucon Valley School Dist., 340 F.Supp.2d 558, 568 (E.D.Pa.2004) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 800 n. 3 (3d Cir.2000)). The United States Court of Appeals for the Third Circuit has clarified the inquiry and has held that, in order to establish that retaliation was a substantial or motiving factor for purposes of a First Amendment retaliation claim brought pursuant to § 1983, the plaintiff is required to show that the defendants engaged in retaliatory action and “that there was a causal connection",
"of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In cases brought under 42 U.S.C. § 1983, the pleading requirements are somewhat stricter than usual. The Court of Appeals “ ‘has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.’ ” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988) (quoting Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam)), cert. denied, — U.S.-, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). To meet this requirement, the complaint need only avoid frivolity and provide the defendants enough notice to frame an answer. Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir.1988). The basic Rule 12(b)(6) standard is unchanged. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). A. Count I The governmental defendants attack Count I on several grounds. First, they maintain that allegations, here and elsewhere, against both the Borough of Wilson and the Wilson Police Department are redundant, because the Department is an administrative part of the Borough. Thus, they argue that the Department should be dismissed from this action. Second, they argue that, if the claim against Nace rests against actions taken in his official capacity, it merges with the claim against Wilson; hence, Wilson should also be dismissed. If, on the other hand, the claim against Nace rests on actions taken in his individual capacity, the complaint",
"§ 1983, the Court must engage in a three-step analysis. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006)); Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001). First, the plaintiff must establish that the activity in question was protected. Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir.2001) (citing Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993)). Here, Defendants do not challenge the fact that Plain tiffs speech was protected. (Docket No. 46 at 12-17). Second, the plaintiff is required to show that “the protected activity was a substantial or motivating factor in the alleged retaliatory action.” Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir.1995); Swineford v. Snyder County of Pa., 15 F.3d 1258, 1270 (3d Cir.1994)). Third, once a plaintiff has established these elements, the defendant-employer can then rebut the claim by demonstrating that, absent the protected conduct, it would have taken the same adverse action. Id. (citations omitted). See also Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir.2008) (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). A determination of whether a plaintiff has engaged in activity protected by the First Amendment is a question of law. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006); Baldassare, 250 F.3d at 195. Conversely, the questions of whether a plaintiffs protected activity was a substantial or motivating factor in the retaliatory action and whether the defendant would have taken adverse action absent the protected activity are questions of fact. Id.; Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir.2004). Therefore, the Court is confined at this stage to determining whether, viewing the evidence of record in a light most favorable to Plaintiff, a reasonable fact-finder could determine that her engagement in protected activity was a substantial or motivating factor in the retaliatory conduct or whether Defendants would have",
"of the [Housing Authority Police Department], [and] endanger[ ] the plaintiff.” (Appellee’s Br. at 10.) At the close of evidence at trial, the district court granted defendants’ Rule 50 motion for judgment as a matter of law on all claims. Green brought this appeal. In reviewing the district court’s judgment, we must determine whether ‘Viewing all the evidence which has been tendered and should have been admitted in the light most favorable to the party opposing the motion, no jury could decide in that party’s favor.” Watters v. City of Philadelphia, 55 F.3d 886, 891 (3d Cir.1995) (quoting Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993)). II. Discussion A. Section 1983 (First Amendment) On appeal Green contends his First Amendment right to free speech was violated because he was transferred in retaliation for his appearance as a character witness at Keller’s bail hearing. A public employee’s claim of retaliation for engaging in a protected activity is analyzed under a three-step process. See Pro v. Donatuccy 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliatory action. See Swineford, 15 F.3d at 1270. Finally, defendants may defeat plaintiffs claim by demonstrating “that the same action would have been taken even in the absence of the protected conduct.” Id. The district court did not reach the last two factors because it resolved the first factor in defendants’ favor as a matter of law. Accordingly, our discussion will focus on the first step, whether Green’s appearance in court was a protected activity. To qualify as a protected activity, Green’s court appearance must satisfy the Pickering balancing test. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the court appearance must constitute “speech ... on a matter of",
"F.3d 882, 885 (3d Cir.1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996). First, plaintiff must establish the activity in question was protected. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). For this purpose, the speech must involve a matter of public concern. Connick, 461 U.S. at 147, 103 S.Ct. 1684; Watters, 55 F.3d at 892. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state’s countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. Picketing v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811. (1968) (requiring courts to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”); Azzcuro, 110 F.3d at 976; Green, 105 F.3d at 885. These determinations are questions of law for the court. Waters, 511 U.S. at 668, 114 S.Ct. 1878; Green, 105 F.3d at 885. If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Watters, 55 F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). Lastly, the public employer can rebut the claim by demonstrating “it would have reached the same decision ... even in the absence of the protected conduct.” Doyle, 429 U.S. at 287, 97 S.Ct. 568; Swineford, 15 F.3d at 1270 (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)). The second and third stages of this analysis present questions for the fact finder and are not subject to review in this case. Green, 105 F.3d at 889 (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); see also Watters, 55 F.3d at 892 n. 3; Zamboni v. Stamler, 847",
"82 F.3d 63, 65 (3d Cir.1996); Pieckniek v. Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). Nonetheless, legal conclusions made in the guise of factual allegations are not given a presumption of truthfulness. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 846 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994). Although a court must assume the truth of all facts alleged, it is improper to presume a plaintiff can prove any facts hot alleged in the Complaint. Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). A court may dismiss a complaint for failure to state a claim “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993); In re Westinghouse Securities Litigation, 90 F.3d at 706 (dismissal only appropriate where “it appears certain the plaintiffs can prove no set of facts entitling them to relief’); Piecknick, 36 F.3d at 1255. A Federal court reviewing the sufficiency of a complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985), overruled on other grounds, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197-98, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989). As indicated, in the instant case, the Defendants seek to dismiss counts VI, XI and XII entirely and to dismiss counts I, III and V counts as against Doyle"
] |
"our unflagging ""obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression,' "" Bose Corp., 466 U.S. at 499, 104 S.Ct. 1949 (quoting N.Y. Times Co., 376 U.S. at 284-86, 84 S.Ct. 710 ); accord Metro. Opera Ass'n, v. Local 100, Hotel Emps. & Rest. Emps. Int'l Union, 239 F.3d 172, 176 (2d Cir. 2001). The injunction issued in this case, which prohibits the appellants from republishing six particular statements, is a paradigmatic example of a prior restraint: it is a ""judicial order[ ] forbidding certain communications ... issued in advance of the time that such communications are to occur."" REDACTED As such, it is subject to even more exacting requirements under settled First Amendment doctrine. See Tory, 544 U.S. at 738, 125 S.Ct. 2108 (treating post-trial injunction against republication of previously defamatory statements as prior restraint). There is a strong presumption that prior restraints on speech are unconstitutional. See N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam). So drastic a remedial device may only be imposed when it furthers ""the essential needs of the public order."" Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). A prior restraint cannot"
|
[
"well beyond the limits established by our cases. To accept petitioner’s argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments. The term “prior restraint” is used “to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions — i. e., court orders that actually forbid speech activities — are classic examples of prior restraints. See id., §4.03, at 4-16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future “malicious, scandalous or defamatory” publication. Id., at 706. Near, therefore, involved a true restraint on future speech — a permanent injunction. So, too, did Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971), and Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois.” 402 U. S., at 415 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U. S., at 311. See also New York Times Co. v. United States, 403 U. S. 713, 714 (1971) (per curiam) (Government sought to enjoin publication of the Pentagon Papers). By contrast, the RICO forfeiture order in this case does not forbid petitioner to engage in any expressive activi ties in the future, nor does it require him to obtain prior approval for any expressive activities. It only"
] |
[
"First Amendment and libel law, but find it unnecessary to ultimately determine these issues because we hold that the injunction must be vacated as its scope and meaning are unclear. When considering the validity of this injunction under the First Amendment, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The preliminary injunction here plainly constitutes a broad prior restraint on speech. It prohibits the Union from: engaging in fraudulent or defamatory representations regarding the MET and/or its donors, directors, officers and/or patrons; and ... threatening or harassing the MET and/or its donors, patrons, directors or officers; and ... blocking or otherwise obstructing or interfering in any manner with ingress to or egress from the Met.... A “prior restraint on expression comes ... with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (quoting Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Indeed, prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96’ S.Ct. 2791, 49 L.Ed.2d 683 (1976). When a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases. Madsen v. Women’s Health Ctr., 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (“Injunctions ... carry greater risks of censorship and discriminatory application than do general ordinances.”). An injunction must be obeyed until modified or dissolved, and its unconstitutionality is no defense to disobedience. See Walker v.",
"may by limited in order to ensure a fair trial, gag orders such as this one still exhibit the characteristics of prior restraints. See In re Dow Jones, 842 F.2d 603, 609 (2d Cir.1988); Levine v. United States District Court, 764 F.2d 590, 595 (9th Cir.1985). Prior restraints — “predetermined judicial prohibition restraining specified expression” — face a well-established presumption against their constitutionality. See Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980) (en banc) (citations omitted). In general, a prior restraint (usually directed at the press) will be upheld only if the government can establish that “the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest.” See Levine, 764 F.2d at 595 (citations omitted). The government must also establish that the order has been narrowly drawn and is the least restrictive means available. See id. (citations omitted). A. Appropriate Legal Standard The first element of the prior restraint analysis-the showing of harm necessary to justify the need for the restraint-requires some discussion in the present context because the gag order at issue here is directed at trial participants and not the press. The Supreme Court and other Courts of Appeals have recognized a “distinction between participants in the litigation and strangers to it,” pursuant to which gag orders on trial participants are evaluated under a less stringent standard than gag orders on the press. See Gentile, 111 S.Ct. at 2743-44; News-Journal Corp. v. Foxman, 939 F.2d 1499, 1512-13 & n. 16 (11th Cir.1991); Dow Jones, 842 F.2d at 608-09; Levine, 764 F.2d at 595. The genesis of this distinction lies in part in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), which concerned the massive publicity surrounding the trial of Dr. Sam Sheppard. The Supreme Court observed that during Sheppard’s trial, “bedlam,” in the form of reporters virtually taking over the courtroom and accosting witnesses as they left the building, “reigned at the courthouse.” See id. at 1518. The Court also noted that inadmissible (and often inaccurate) information had been leaked",
"“prior restraint on expression comes ... with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (quoting Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Indeed, prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96’ S.Ct. 2791, 49 L.Ed.2d 683 (1976). When a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases. Madsen v. Women’s Health Ctr., 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (“Injunctions ... carry greater risks of censorship and discriminatory application than do general ordinances.”). An injunction must be obeyed until modified or dissolved, and its unconstitutionality is no defense to disobedience. See Walker v. Birmingham, 388 U.S. 307, 314-21, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, [a] prior restraint ‘freezes’ it, at least for the time.” Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791. In contrast, a “criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.” Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791. Here, the preliminary injunction broadly prohibits the Union from making any statement that might, after it has been made, be construed as defamatory or even “harassing.” For example, the district court here imposed contempt sanctions on the Union when it found statements that were made after the initial May 4 state TRO to be defamatory, including the chants “No More Lies” and “Shame",
"as well, which are essentially ignored by the Court. To begin with, an injunction against speech is the very prototype of the greatest threat to First Amendment values, the prior restraint. As The Chief Justice wrote for the Court last Term: “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ . . . [Permanent injunctions, i. e., — court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States, 509 U. S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech §4.03, p. 4-14 (1984) (emphasis added in Alexander)) See also 509 U. S., at 572 (“[T]he [prior restraint] doctrine... encompasses injunctive systems which threaten or bar future speech based on some past infraction”) (Kennedy, J., dissenting). We have said that a “prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity,” Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971) (quoting Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 181 (1968)), and have repeatedly struck down speech-restricting injunctions. See, e. g., Youngdahl v. Rainfair, Inc., 355 U. S. 131 (1957); Keefe, supra; New York Times Co. v. United States, 403 U. S. 713 (1971); Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976); National Socialist Party of America v. Skokie, 432 U. S. 43 (1977); Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (statute authorizing injunctions); CBS Inc. v. Davis, 510 U. S. 1315 (1994) (Blackmun, J., in chambers) (setting aside state-court preliminary injunction against a scheduled broadcast). At oral argument neither respondents nor the Solicitor General, appearing as amicus for respondents, could identify a single speech-injunction case applying mere intermediate scrutiny (which differs little if at all from the Court’s intermediate-intermediate scrutiny). We have, in our speech-injunction cases, affirmed both requirements that characterize strict scrutiny: compelling public need and surgical precision of restraint. Even when (unlike in the present case) the First Amendment",
"they asked us for a remand to allow the judge to fill the gaps. I see no reason to order this remedy sua sponte. More fundamentally, the question whether an injunction is permissible at all in this context is a sensitive and difficult matter of First Amendment law. A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), and “permanent injunctions— i.e., court orders that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech — making any publication of the suppressed speech punishable as contempt — is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] ... the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir.2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir.2001); Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir.1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L.Rev. 157, 167-68 (2007); Michael I. Myerson, The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers, 34 Ind. L.Rev. 295, 308-22 (2001). The Supreme Court has not yet directly addressed whether injunctive relief",
"Cir.2005); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union, 239 F.3d 172, 176 (2d Cir.2001); In re G. & A. Books, Inc., 770 F.2d 288, 295-96 (2d Cir.1985); see also Alexander, 509 U.S. at 566-72, 113 S.Ct. 2766 (Kennedy, J., dissenting) (discussing the distinction between prior restraints and subsequent punishments and the utility of that distinction). It has long been established that such restraints constitute “the most serious and the least tolerable infringement” on our freedoms of speech and press. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); see also Tunick v. Safir, 209 F.3d 67, 91 (2d Cir.2000) (quoting Nebraska Press, 427 U.S. at 559, 96 S.Ct. 2791). Indeed, the Supreme Court has described the elimination of prior restraints as the “ ‘chief purpose’ ” of the First Amendment. Gannett Co. v. DePasquale, 443 U.S. 368, 393 n. 25, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (quoting Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)); see also Nebraska Press, 427 U.S. at 557, 96 S.Ct. 2791 (“ ‘The main purpose of the First Amendment is to prevent all such previous restraints upon publications as had been practiced by other governments.’ ” (brackets, emphasis and further internal quotation marks omitted) (quoting Patterson v. Colorado ex rel. Attorney Gen., 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907))). Any imposition of a prior restraint, therefore, bears “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); United States v. Salameh, 992 F.2d 445, 446-47 (2d Cir.1993) (per curiam). Moreover, because a “ ‘responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field,’ ” the protection against prior restraint carries particular force in the reporting of criminal proceedings. Nebraska Press, 427 U.S. at 559-60, 96 S.Ct. 2791 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350, 86 5.Ct. 1507, 16 L.Ed.2d 600 (1966)). A prior",
"subsequent prohibition of the activity would appear to constitute a content-based prior restraint. In Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), the Supreme Court stated: The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid' speech activities—are classic examples of prior restraints, [citation omitted]. Id. at 550, 113 S.Ct. at 2771. Such restraints on otherwise protected expression are heavily disfavored, both for their immediate effect in barring the protected speech at issue as well as for their “chilling effect” on prospective protected speech. See Alexander, supra at 572, 113 S.Ct. at 2782-83 (Kennedy J., dissenting); Vance v. Universal Amusement Co., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d 413 (1980) (per curiam); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971); and Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). While such a sweeping restriction might be acceptable were it necessary to maintain good order within the schools, the plaintiffs have not demonstrated that the dissemination of Bibles would materially and substantially interfere with operations of the Upshur County schools or the substantive rights of their students to an education. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508—509, 89 S.Ct. 733, 737-738, 21 L.Ed.2d 731 (1969). Instead, plaintiffs’ argument for restoration of the injunction pending appeal relies solely on the content of the speech, and its potential to deprive students, particularly younger students attending Upshur County’s elementary and middle schools, of their first amendment protection against government establishment of religion. They are concerned that younger students may misapprehend the neutral role of the schools in the planned Bible dissemination. Protection of this interest, however, does not demand the complete prohibition of all religious speech",
"expression and speech must be subjected by the courts to the closest scrutiny. See generally Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). This principle has been expressed by the Supreme Court in a variety of ways. To justify imposition <->f a prior restraint, the activity restrained must pose a clear and present danger, or a serious or imminent threat tó a protected competing interest. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). A system of prior restraints of expression bears a heavy presumption ¿gainst its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Southeastern Promotions, Ltd. v. Conrad, supra. Hence, the government carries a heavy burden of showing a justification for its imposition. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); and see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In Chase v. Robson, 435 F.2d 1059 (1970), the Court of Appeals for the Seventh Circuit ordered the issuance of a writ of mandamus directing the district court to vacate its order in a pending criminal case which read as follows: It is further ordered that counsel for both the Government and the defendants, as well as each and every defendant herein, make or issue no statements, written or oral, either at a public meeting or occasion, or for public reporting or dissemination in any fashion, regarding the jury or jurors in",
"opinion) (no express statement that the First Amendment interests were limited, but a standard less stringent than that governing prior restraints was adopted). But see Reliance Insurance Co. v. Barron’s, 428 F.Supp. 200, 204 (S.D.N.Y.1977) (in denying a request for a Rule 26(c) order restricting the dissemination of discovery materials, court characterized the proposed order as a prior restraint). See generally Note, Rule 26(c) Protective Orders and the First Amendment, 80 Colum.L.Rev. 1645, 1654-60 (1980) [hereinafter cited as Protective Orders ]; 92 Harv.L.Rev. 1550,1554-57 (1979). Prior restraints are rarely upheld because they are. viewed as “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976). They are usually associated with administrative licensing schemes and judicial orders that forbid one from communicating about particular matters. In re Halkin, supra, 598 F.2d at 183-84 & nn.14&15; see Nebraska Press Association v. Stuart, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). For example, an order barring the press from publishing anything about a lawsuit would most likely be termed a prior restraint. See Nebraska Press Association v. Stuart, supra. Although Rule 26(c) orders that restrict expression are similar in form to other orders that have been characterized as prior restraints, compare In re San Juan Star Co., supra, at 111 with Nebraska Press Association v. Stuart, supra, 427 U.S. at 542, 96 S.Ct. at 2794, the special nature of discovery as a source of information justifies a reduced level of scrutiny. In re San Juan Star Co., supra, at 115; In re Halkin, supra, 598 F.2d at 206-08 (Wilkey, J., dissenting); see Protective Orders, supra, at 1654 (one’s interest in disseminating information procured through discovery is similar to that of “persons who are under government control to a greater extent than the general public” and whose First Amendment “rights may be infringed to a greater extent than those of the general public” because of “the government’s need to maintain control over its own institutions”). First, a stringent standard that"
] |
(2) a likelihood of success on the merits or a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party’s favor. See, e.g., American Postal Workers Union, AFL-CIO v. United States Postal Service, 766 F.2d 715, 721 (2d Cir.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1262, 89 L.Ed.2d 572 (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). Thus, a showing of irreparable harm is a threshold requirement Plaintiffs must establish in order to obtain a preliminary injunction. 1. Irreparable Harm It is well established that, absent extraordinary circumstances, loss of income and/or other purely financial concerns do not constitute irreparable harm. E.g., REDACTED Thus, Plaintiffs must assert more than this to satisfy the irreparable harm standard. Plaintiffs contend that an injunction is warranted here in that “[ujpon information and belief, the threatened acts of retaliation will have a chilling effect on the exercise of First Amendment rights by Plaintiffs and other employees of [SUNY Oswego].” Id. at ¶ 10. Their basis for irreparable harm therefore appears to be that Defendants’ alleged retaliatory actions against Plaintiffs for having made discrimination claims against Defendants have produced, and will continue to produce, a “chilling effect” on their First Amendment rights. In support of this contention, Plaintiffs allege that “[t]he defendants ha[ve] discriminated against and harassed plaintiffs in order to silence them,” Plaintiffs’ Suppl. Memo,
|
[
"was left unresolved or that the plaintiff had not met her burden of proof. He ultimately concluded, “What is clear, however, is that the plaintiff has failed to make the requisite showing of irreparable harm,” id. at 18 (emphasis added). Since we conclude that this core ruling on irreparable injury warrants further consideration by the District Court, we prefer not to assess the probability of success on the merits at this stage and instead permit the District Judge to clarify his ruling on this point, in the event that, upon remand, he should conclude that irreparable injury warranting a preliminary injunction has been shown. With respect to irreparable injury, an absolute requirement for a preliminary injunction, Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976), we agree with Judge Zampano that the requisite irreparable harm is not established in employee discharge cases by financial distress or inabili ty to find other employment, unless truly extraordinary circumstances are shown. Sampson v. Murray, 415 U.S. 61, 91-92 & n. 68, 94 S.Ct. 937, 953 & n. 68, 39 L.Ed.29 166 (1974); EEOC v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980). However, the claim in this case is not simply that an employee has been discharged and thereby has suffered injuries normally compensable by money. In addition, the plaintiff asserts that the discharge was in retaliation for her prior claim of a Title VII violation by her employer. A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury. We do not, however, accept the EEOC’s suggestion that there is irreparable injury sufficient to warrant a preliminary injunction in every retaliation case — a view that has been rejected by the Sixth Circuit even when the EEOC was plaintiff and there was testimony that five employees would be “chilled” in testifying in plaintiff’s favor. EEOC v. Anchor Hocking Corp., 666"
] |
[
"Motion for Preliminary Injunction A preliminary injunction may issue only where the movant has shown “(1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation, and a balance of hard ships tipping decidedly toward the party requesting the preliminary relief.” Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). Ordinarily, violations of First Amendment rights are recognized as constituting an irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991). Plaintiffs have succinctly set forth sufficient allegations of a violation of their First Amendment rights to the free exercise of their religion to satisfy this first requirement for a preliminary injunction. Moreover, the balance of hardships tilts decidedly in the plaintiffs’ favor. Plaintiffs claim that they have no other way of practicing their religious beliefs other than by the very act which defendants forbid: the wearing of their beads. In contrast, and as is more fully discussed below, defendants have an alternative means to further their goal of institutional security and control, which would not significantly burden plaintiffs’ right to religious expression. They can simply permit plaintiffs to wear their beads under their clothing. The central question remaining, then, is whether plaintiffs have shown a likelihood of success on the merits or a sufficiently serious question going to the merits justifying the issuance of injunctive relief. For the reasons discussed below, I conclude that the plaintiffs have carried their burden on this second requirement for preliminary injunctive relief. III. The Religious Freedom Restoration Act Plaintiffs challenge the DOCS directive under the Religious Freedom Restoration Act of 1993 (“the Act”). The Act is of historical and legal significance because it reinstates the “compelling state interest” standard applicable to free exercise of religion claims previously eviscerated by the Supreme Court’s decision in Employment Division, Dept. of Human Resources",
"to salvage the situation, there is no assurance that it will be successful, in which case it could wind up in bankruptcy. (Id. at F-30) Discussion In order to obtain a preliminary injunction, the movant must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Moreover, a clear showing of a threat of irreparable harm is essential. E.g., Triebwasser v. American Tel. & Tel. Co., 535 F.2d 1356, 1359 (2d Cir.1976). Absent such a threat, there is no occasion to consider either the merits or the balance of hardships. Threat of Irreparable Injury Holford here complains of alleged past and prospective breaches of contract and, perhaps, torts by Cherokee—breach of the right of first refusal and interference with Holford’s ability to sell Cherokee brand Jeans that Cherokee has failed to accept. It thus already has damage claims against Cherokee, and it may have additional claims based on future events. In ordinary circumstances, Holford would have a full, complete and adequate remedy at law. Holford, however, maintains that Cherokee’s insolvency means that its damage remedy is illusory, at least in significant measure, and that it therefore is threatened with irreparable injury. The fundamental commercial and legal reality is that one pursuing a damage claim against an insolvent defendant is unlikely to recover the full amount of its alleged loss even if it prevails and becomes a judgment creditor. While there may be exceptions, unsecured creditors, particularly unsecured creditors whose claims are unliquidated and contingent, rarely recover one hundred cents on the dollar, whether the affairs of an insolvent are resolved through a consensual workout, a Chapter 11 reorganization or liquidation. Hence, anyone with a claim against an insolvent defendant is threatened with a loss that might be termed “irreparable.” The question is whether there are circumstances in which such a",
"for a Preliminary Injunction The requirements for issuance of a preliminary injunction in this Circuit are clear. For an injunction to issue, the movant must show: (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Standard & Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704, 707 (2d Cir.1982); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In addition, although “not explicitly mentioned” in this Circuit, the public interest may be considered in deciding whether to issue the injunction. Standard & Poor’s, supra, 683 F.2d at 711; Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). Addressing each of these criteria in turn, I find that a preliminary injunction should issue. (1) Irreparable injury would occur if defendant were permitted to pursue withdrawal liability against plaintiff. Plaintiff has lost its customers during the protracted strike, and will be unlikely to regain them in the face of a claim for withdrawal liability. Such a claim, whether valid or not, sends a signal to people in the industry that the company in question is out of business. The testimony of Trustee Finkle is instructive: having been informed only that the claim had been made against TIME-DC, he “assumed they were out of business” and “weren’t operating.” Finkle Deposition at 19-21. I find that this harm would exist even if plaintiff were compelled to arbitrate the withdrawal liability issue, because arbitration presumes that the Board of Trustees has determined that a permanent cessation of activities had occurred. In practical terms, then, arbitration signals to prospective customers that the company is out of business. (2) As the discussion of the labor dispute exception’s applicability indicates, see § III., supra, it is unclear whether plaintiff is likely to prevail on the merits. The preliminary injunction",
"452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973). To obtain a preliminary injunction, a party must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). With regard to the existence of irreparable harm, in Sampson v. Murray, 415 U.S. 61, 91-92, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974), the Supreme Court articulated a particularly stringent standard for irreparable injury in government personnel cases. Therein, a probationary government employee sought an injunction against her discharge pending administrative review, alleging that the deprivation of income for an indefinite period of time constituted irreparable injury. According to the Sampson Court, except in a “genuinely extraordinary situation,” irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties in obtaining other employment. Id. at 92 n. 68, 94 S.Ct. at 953 n. 68. We therefore agree with the district court that Danko’s financial difficulties resulting from his discharge are not sufficient to establish irreparable injury. Appellees contend and the district court found, however, that Danko’s discharge pending arbitration would have a chilling effect on the exercise of their first amendment rights and that such a chilling effect constitutes irreparable injury. Appellant admits that the chilling of first amendment rights would constitute irreparable injury. Katz v. McAulay, 438 F.2d 1058, 1060, n. 3 (2d Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972). Appellant argues, however, that appellees have failed to demonstrate that Danko’s discharge, pending arbitration, would in fact have a chilling effect on appellees’ first amendment rights. We conceive the question facing us concerning the existence of irreparable harm in the instant case as being twofold: whether appellees’ first amendment rights are implicated by Danko’s letter to Mystic; and, if so, whether Danko’s discharge pending arbitration sufficiently chills",
"appearing daily in the New York Times and the Wall Street Journal. New letters from each side to the shareholders have been published this week. Additionally, many newspapers published articles and commentary on the election, and both sides made press statements. DISCUSSION Preliminary Injunction To obtain a preliminary injunction plaintiff must establish irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. See Mitchell v. Cuomo, 748 F.2d 804, 807-08 (2d Cir.1984); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). Plaintiff argues that it will be irreparably harmed if the Court does not enjoin certification of a possible Committee victory. Plaintiff contends that if the dissidents are successful, they could take control of Pantry Pride and mismanage the company thereby jeopardizing the shareholders’ investment. Moreover, plaintiff maintains that once defendants take power, they would dismiss this action thereby causing securities violations to go unpunished. Plaintiff additionally contends that the personal interests motivating the proxy contest remain unrevealed. Although it is sympathetic to their position, the Court finds that plaintiff has not established irreparable harm; therefore, the motion for a preliminary injunction is denied. To establish irreparable harm plaintiff must show “the absence of an adequate remedy at law.” Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir.1981). As defendants correctly observe, the Court has the power, if defendants’ proxies are ultimately found to be in violation of the securities laws, to set aside the election, order defendants to re-solicit proxies, or grant other necessary relief. See J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964). Moreover, if defendants win and attempt to dismiss the lawsuit, the Court can appoint a “trustee” to continue this action. If plaintiff is ultimately correct in its arguments and were to prevail at a subsequent court-ordered election, litigation expenses might be recoupable. Finally, plaintiff’s claims are",
"the one named plaintiff who was still a student at the time of the decision. With the benefit of several thorough and highly pertinent decisions from Judge Muir and the Third Circuit in hand, we turn to the motion now before this Court. III. To obtain a preliminary injunction in this Circuit, the movant must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). Phillips v. Marsh, 687 F.2d 620 (2d Cir.1982). Mov ants’ burden is generally considered enhanced when the injunction sought would change the status quo. See, Holy Spirit Assn., Etc. v. Town of New Castle, 480 F.Supp. 1212, 1214 (S.D.N.Y.1979) (“The purpose of the preliminary injunction is to preserve the status quo between the parties pending a full hearing on the merits”); Patterson v. United Fed. of Teachers, 480 F.Supp. 550, 553 (S.D.N.Y.1979). The requirement of “irreparable harm” is satisfied in this case by the very nature of the claim. In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), the Supreme Court held that “(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Since plaintiffs have alleged deprivation of their First Amendment rights, irreparable harm must be presumed. See, Intern. Soc. for Krishna, Etc. v. City of N.Y., 484 F.Supp. 966, 970-71 (S.D.N.Y.1979); NY-PIRG v. Village of Roslyn Estates, 498 F.Supp. 922, 930 (E.D.N.Y.1979); St. Martin’s Press, Inc. v. Carey, 440 F.Supp. 1196, 1204 (S.D.N.Y.1977); see also, Katz v. McAulay, 438 F.2d 1058, 1060 n. 3 (2d Cir.1971). The next prong of the preliminary injunction standard, “likelihood of success on the merits”, involves the Court in evaluating the merits of plaintiffs’ claims. Clearly the claim of deprivation of first amendment speech rights is the most substantial ground for challenging the university regulation, and that",
"(Nassau County); Vazquez, 523 F.Supp. 1359 (Westchester County). III. ' To obtain preliminary injunctive relief, plaintiffs must show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Plaintiffs’ allegations that they have suffered and will continue to suffer constitutional deprivations from the conditions resulting from the overcrowding at the PSB jail satisfy the requirement of irreparable harm; deprivation of constitutional rights constitutes irreparable harm per se. See e.g., Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (and cases cited therein); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (S.D.N.Y.1970) (Weinfeld, J.). Plaintiffs have demonstrated a likelihood of success on the merits on their fourteenth amendment claim on behalf of pre-trial detainees that conditions of confinement amount to punishment, thereby making the granting of preliminary relief appropriate as to the pre-trial detainees. Continuous overcrowding resulting in inmates being housed in the corridors — particularly those not provided cots; inmates not being segregated — particularly persons not mentally unstable housed with the mentally unstable inmates on cell block 2A; and the lack of activities outside of the cell blocks cannot be said to comport with contemporary standards of decency. See Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Plaintiffs have therefore demonstrated serious questions going to the merits of their eighth amendment claim to make them fair ground for litigation. See Jackson Dairy, 596 F.2d at 72. Relief available to the pre-trial detainees would equally benefit the sentenced inmates. Therefore the balance of hardships on plaintiffs’ claim for relief under the eighth amendment tips decidedly toward the plaintiffs and entitles the sentenced inmates to preliminary in-junctive relief. Because of its invidious effect on numerous aspects of plaintiffs’ living conditions, Lareau, 651 F.2d at 100, the continuous overcrowding at the PSB as in recent months of 40-45 inmates over capacity must",
"amount of security required as a condition of the preliminary injunction. Chase filed a notice of appeal from the orders on March 30, 1979. The legal standard in the Second Circuit for preliminary injunctive relief clearly calls for a showing of (a) possible irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978). We agree with Chase that these prerequisites have not been established by KMW. In the first place, KMW has not shown that it will suffer possible irreparable injury absent the injunction. KMW claims a possible loss of $347,539.55. This circuit does not recognize as irreparable harm a loss that may be adequately redressed by a monetary award. Jackson Dairy, supra; Hudson Tire Mart, Inc. v. Aetna Casualty & Surety Co., 518 F.2d 671, 675 (2d Cir. 1975); Robert W. Stark Jr., Inc. v. New York Stock Exchange, Inc., 346 F.Supp. 217, 231 (S.D.N.Y.), aff’d, 466 F.2d 743, 744 (2d Cir. 1972); Shelley v. The Maccabees, 183 F.Supp. 681, 684 (E.D.N.Y.1960). Appellant claims, however, that the financial damage which it may suffer is irreparable, since it will have no real remedy, at least by way of resort to Iranian courts, if Chase were to pay a demand which appears to comply with the terms of credit but is in fact fraudulent. But this damage is purely conjectural. At the time the preliminary injunction was granted, Chase had received no demand for payment whatsoever; that a later demand would necessarily be fraudulent is at best speculative. “[Ijnjunctive relief can and should be predicated only on the basis of a showing that the alleged threats of irreparable harm are not remote or speculative but are actual and imminent.” State of New York v. Nuclear Regulatory Commission, 550 F.2d",
"indication in the case before us that the district court made such a determination. Since the district court’s decision was made on the basis of a paper record, without an evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction. See Jack Kahn Music Company v. Baldwin Piano & Organ Company, 604 F.2d 755 (2d Cir.1979). In our circuit a preliminary injunction will be issued when there is a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). In the present case this test has been met. The loss of Roso-Lino’s distributorship, an ongoing business representing many years of effort and the livelihood of its husband and wife owners, constitutes irreparable harm. What plaintiff stands to lose cannot be fully compensated by subsequent monetary damages. See Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1205 (2d Cir.1970) (right to continue twenty-year old dealership “is not measurable entirely in monetary terms”); Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1294 (E.D.N.Y.1979) (loss of business not compensable in monetary terms and not reducible to monetary value). It is equally clear that the equities tip decidedly in favor of Roso-Lino. It is unlikely that Coca-Cola will suffer greatly if the eleven-year relationship is continued for a short while. The two owners of Roso-Lino, on the other hand, stand to lose their business forever. Because the equities tip (rather heavily) in favor of granting a preliminary injunction, Roso-Lino need demonstrate only “serious questions going to the merits”, rather than “likelihood of success on the merits”. Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). That there are serious questions is clear from the parties’ conflicting stories of the reasons Coca-Cola had for",
"serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (quoting Bell & Howell: Mamiya Co. v. Mosel Supply Co., Corp., 719 F.2d 42, 45 (2d Cir.1983) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979))). II. Irreparable Harm As an initial matter, the Court finds that plaintiff has adequately demonstrated the potential for irreparable harm. “ ‘The loss of-First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Gay Veterans Association, Inc. v. American Legion, 621 F.Supp. 1510, 1515 (S.D.N.Y.1985) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976)). In the absence of an injunction, the plaintiff will not be able to conduct its protest parade on 5th Avenue on St. Patrick’s Day and thus will not be able to declare its message. Such an injury will be irreparable. The issue for the Court to determine therefore is whether plaintiff can demonstrate a likelihood of success on the merits, or sufficiently serious questions on the merits with the balance of hardships tilting in plaintiff’s favor. III. The Merits There is no question that ILGO has a First Amendment right to proclaim its message of pride in its Irish cultural heritage and in its homosexuality. But this right is not absolute. See Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir.1986), cert. denied, 480 U.S. 917, 107 S.Ct. 1371, 94 L.Ed.2d 687 (1987); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). First Amendment rights are subject to reasonable time, place and manner restrictions to further significant government interests. See Olivieri, 801 F.2d at 605. It is axiomatic that a restriction on First Amendment rights must: (1) be content-neutral, (2) be narrowly tailored to meet a significant governmental interest, and (3) leave open ample alternative means of communication. Olivieri, 801"
] |
"CNA on August 9, 2002, stating that it had not yet received the “anticipated follow up” to CNA's July 19, 2002 letter. (AR at 38). At that time, the California DOI again requested a copy of CNA’s complete claim file. (Id.). . Defendants do not rebut plaintiff's argument that CNA did not provide these letters to Dr. Truchelut for his review, and the court cannot find any indication in the record indicating that Dr. Truchelut did, in fact, review the letters. . The Ninth Circuit has used interchangeably the phrases “arbitrary and capricious” and ""abuse of discretion;” however, ""[a]ny difference between the two standards ... is in name only.” Hensley, 258 F.3d at 994 n. 4; see also REDACTED . In most cases when the de novo standard of review is applied, however, the court ""should only look at the evidence that was before the plan administrator ... at the time of the determination.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (internal quotation marks omitted); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090-91 (9th Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999) (same). . Under both Plans, ""We” refers to defendant"
|
[
"considering evidence that was not part of Equitable’s administrative record. Because Equitable did not abuse its discretion in terminating Taft’s disability benefits based solely upon that record, we reverse. REVERSED. . Equicor, a subdivision of Equitable, actually administered the plan for Equitable. . In several cases after the Supreme Court’s Firestone decision, we used the term “arbitrary and capricious\" to describe this deferential standard of review. See Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 894 (9th Cir.1990); Madden v. ITT Long Term Disability Plan, 914 F.2d 1279, 1284 (9th Cir.1990), cert. denied, 498 U.S. 1087, 111 S.Ct. 964, 112 L.Ed.2d 1051 (1991). Because we employed review in those cases consistent with the strictures of the abuse of discretion standard, however, our use of a different term was \"a distinction without a difference.” Cox v. Mid-America Dairymen, Inc., 965 F.2d 569, 572 n. 3 (8th Cir.1992). See Block v. Pitney Bowes Inc., 952 F.2d 1450, 1454 (D.C.Cir.1992) (“The distinction, if any, between 'arbitrary and capricious review' and review for ‘abuse of discretion’ is subtle.\"). . We express no opinion on the proper scope of a district court’s de novo review of an administrator’s decision. Compare Luby, 944 F.2d at 1184 (district court may examine all evidence when engaging in de novo review) with Perry, 900 F.2d at 966 (district courts limited to the administrative record even with de novo review). . Taft suggests that Dr. Ashby’s report is not part of the record because Equitable made its initial determination to terminate Taft’s benefits before it received the report. This contention is incorrect because Equitable did rely on Dr. Ashby’s report to reject Taft’s appeal of the initial determination. . Taft contends that Audell's report was clearly erroneous because the doctor thought he was examining Taft in connection with a workers' compensation proceeding. We disagree. Equitable's plan defined \"total disability” as an inability \"to engage in any gainful occupation for which [Taft] is or may reasonably become qualified by education, training, or experience.\" Disability determinations under California workers’ compensation law include consideration of \"the occupation of the injured"
] |
[
"of CNA’s complete file relating to plaintiffs claim. (Id.). CNA responded in writing to the California DOI on July 19, 2002, stating that it would refer plaintiffs file to a medical consultant for review. (Id. at 44). CNA also indicated that it would reevaluate plaintiffs claim and that a decision would be made “within the time frame allotted of 21 days.” (Id.). In reevaluating plaintiffs claim, CNA had Dr. Eugene Truchelut, an internist, review plaintiffs file. (AR at 42). This was the first time in its handling of plaintiffs claim that CNA sought to have plaintiffs records reviewed by a doctor. Prior to this time, defendant CNA only sought medical review from its own in-house nurses. (See, e.g., id. at 25, 56-60, 67-68 & 73-75). CNA provided a summary of plaintiffs file to Dr. Truchelut on its Physician Re view Form, stating only that plaintiffs “test results do not appear to be abnormal and [her] occupation includes data entry and review of medical records.” (AR at 40). CNA asked Dr. Truchelet to state his opinion as to whether the findings of plaintiffs physician, including restrictions of no work due to stress, would prevent plaintiff from performing the duties of her occupation. (Id.). On August 5, 2002, after reviewing plaintiffs claim, Dr. Truchelut submitted his report. (AR at 31-33). Notably, he indicated that no information was given regarding the physical demands of plaintiffs job and that the only description of plaintiffs job duties was “data entry and review of medical records,” (Id. at 31). Dr. Truchelut summarized plaintiffs medical history and concluded that “the recent medical records provided [ ] do not support an inability by [plaintiff] to perform the types of work activities which you refer to, at least from the physical standpoint.” (Id. at 32). Although he stated that plaintiffs “most recent Hotter monitor did not show evidence of significant arrhythmias, and her pacemaker was functioning normally,” he noted that “[t]he issue of psychological stress impacting on her occupational abilities is idiosyncratic, and not able to be quantified by these types of tests.” (Id. at 33). Based on the",
". The Ninth Circuit has used interchangeably the phrases “arbitrary and capricious” and \"abuse of discretion;” however, \"[a]ny difference between the two standards ... is in name only.” Hensley, 258 F.3d at 994 n. 4; see also Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 n. 2 (9th Cir.1993) (the terms \"arbitrary and capricious” and “abuse of discretion” used to describe the deferential standard of review in ERISA cases is \"a distinction without a difference”) (internal quotation marks omitted)). . In most cases when the de novo standard of review is applied, however, the court \"should only look at the evidence that was before the plan administrator ... at the time of the determination.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (internal quotation marks omitted); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090-91 (9th Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999) (same). . Under both Plans, \"We” refers to defendant CNA, and \"Your” refers to \"the employee to whom this certificate is issued and whose insurance is in force under the terms of the policy.” (AR at 157 & 192). . \"While [t]he Ninth Circuit has never explicitly defined the parameters or contours of what might suffice to constitute a breach of fiduciary duty in this context, it has without declaring an exhaustive list, stated that material, probative evidence may consist of inconsistencies in the plan administrator's reasons, insufficiency of those reasons, or procedural irregularities in the processing of the beneficiaries claims.\" Wible, 375 F.Supp.2d at 968 (internal quotation marks omitted) (plan administrator breached fiduciary duty by ignoring medical opinions, failing to obtain its own competent medical opinions, deliberately considering only evidence pointing to denial, and failing to conduct an adequate investigation prior to denying plaintiff's claim); see also Friedrich v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir.1999) (plan administrator's failure to follow its own policy and ERISA's mandatory procedures is sufficient to establish breach of fiduciary duty); Lang, 125 F.3d at 798-99 (inconsistencies in administrator’s denial of claim are",
"i.e.[,] internal medicine and cardiologist[,] have stated [that] I am disabled, due t[o] a diagnosis of Sick Sinus Syndrome. I have a pacemaker and tried to go back to work, but have had multiple problems with sinus taehycardia and arrythmias. I am on medication for the problems but stress seems to create the above problems. Both denial letters do not state any physician has reviewed the issues or contacted my physicians. This policy was offered by my employer along with my additional premium to help supplement my state disability. State disability has paid all along and has stated I am disabled based on my physicianfs’] information. (Id.). On July 5, 2002, plaintiff sent all correspondence relating to the denial of her claim to the California DOI. (Id. at 51). In response to plaintiffs complaint, the California DOI wrote to CNA on July 12, 2002, requesting that it reevaluate plaintiffs claim “and in no later than twenty-one (21) days inform [plaintiff] in writing of the results.” (AR at 49). The California DOI also requested a copy of CNA’s complete file relating to plaintiffs claim. (Id.). CNA responded in writing to the California DOI on July 19, 2002, stating that it would refer plaintiffs file to a medical consultant for review. (Id. at 44). CNA also indicated that it would reevaluate plaintiffs claim and that a decision would be made “within the time frame allotted of 21 days.” (Id.). In reevaluating plaintiffs claim, CNA had Dr. Eugene Truchelut, an internist, review plaintiffs file. (AR at 42). This was the first time in its handling of plaintiffs claim that CNA sought to have plaintiffs records reviewed by a doctor. Prior to this time, defendant CNA only sought medical review from its own in-house nurses. (See, e.g., id. at 25, 56-60, 67-68 & 73-75). CNA provided a summary of plaintiffs file to Dr. Truchelut on its Physician Re view Form, stating only that plaintiffs “test results do not appear to be abnormal and [her] occupation includes data entry and review of medical records.” (AR at 40). CNA asked Dr. Truchelet to state his opinion",
"standard of review. See Abatie, 458 F.3d at 964. IV. While de novo is the correct standard of review in this case, the district court abused its discretion by failing to conduct the proper analysis before admitting extrinsic evidence. If de novo review applies, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” Abatie, 458 F.3d at 963. Under de novo review, the district court should have determined whether Opeta was entitled to benefits based on the evidence in the administrative record and “other evidence as might be admissible under the restrictive rule of Mongeluzo.” Kearney, 175 F.3d at 1094. In Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, we resolved the question of the scope of review that a district court may employ upon de novo review of a plan administrator’s decision. 46 F.3d 938, 943-44 (9th Cir.1995). Agreeing with the Third, Fourth, Seventh, Eighth, and Eleventh Circuits, we held that extrinsic evidence could be considered only under certain limited circumstances. Id. We cited with approval the rule of the Fourth Circuit that the district court should exercise its discretion to consider evidence outside of the administrative record “ ‘only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’ ” Id. at 944 (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993) (en banc)) (emphasis added). We emphasized that “a district court should not take additional evidence merely because someone at a later time comes up with new evidence” and that “[i]n most cases” only the evidence that was before the plan administrator at the time of determination should be considered. Id. In Quesinberry, the Fourth Circuit provided a non-exhaustive list of exceptional circumstances where introduction of evidence beyond the administrative record could be considered necessary: claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of the terms",
"a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a). In reviewing the actions of a plan fiduciary under the arbitrary and capricious standard, “the Court must decide whether the plan administrator’s decision was rational in light of the plan’s provisions.” Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.2000) (citation and internal quotation omitted). “Stated differently, when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.” Id. (citation and internal quotation omitted). “The arbitrary [and] capricious standard is the least demanding form of judicial review of administrative action.” Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (citation omitted). The gravamen of Willis’ argument is that CNA determined that she was not totally disabled, for the purpose of receiving permanent LTD benefits, on the basis of reports rendered by non-examining physicians and a Vocational Rehabilitation Specialist of unverified credentials (Ms. Glass), and, in doing so, arbitrarily and capriciously discounted both the respective reports of her treating physician, Dr. Johnson, and a qualified Vocational Rehabilitation Specialist (Mr. Cody), which indicated clearly that she was totally disabled for such purpose, and the finding by the SSA that she was permanently and totally disabled. Furthermore, she takes issue with the fact that CNA made its determination in March of 1999, some 18 months before her initial 24-month LTD benefits period was to expire and before she was diagnosed with carpal tunnel, and that CNA did not reconsider its decision once the evidence of her carpal tunnel and updated medical reports were submitted as part of her appeal. (Doc. # 12 at 12-16.) For their part, the Defendants contend that the medical evidence indicates that Willis was mostly healthy, and at most restricted to a sedentary occupation, and that the independent reviews of her medical record conducted by Drs. Truchelut and Ryan support this conclusion, such that CNA had a “reasoned explanation” for concluding as",
"decision for an abuse of discretion. Under that standard, the district court correctly determined that additional evidence could not be considered. In Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469 (9th Cir.1994), this court explained that “[p]ermitting a district court to examine evidence outside the administrative record would open the door to the anomalous conclusion that a plan administrator abused its discretion by failing to consider evidence not before it.” Id. at 1472. Upon remand, however, the same bar against the introduction of additional evidence will not apply. As we explained in Kearney, when reviewing a genuine issue of fact de novo, the district court has discretion, subject to the guidelines set forth in Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938 (9th Cir.1995), to consider additional evidence. See Kearney, 175 F.3d at 1094-95. Under Mongeluzo, such evidence should be considered “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Mongeluzo, 46 F.3d at 944 (quoting Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir.1993) (en banc)) (internal quotation marks omitted). The district court might find this case to be one in which additional evidence would be helpful, particularly given that the credibility of Thomas’ physicians is at issue. See Quesinberry, 987 F.2d at 1027 (“Exceptional circumstances that may warrant an exercise of the court’s discretion to allow additional evidence include ... issues regarding the credibility of medical experts.... ”). We leave this determination to the district court. IV. Additional Issues Presented on Appeal Based on our conclusion that Thomas’ claim must be reviewed de novo, we find it unnecessary to consider several other issues raised on appeal. First, we do not consider whether the district court erred in concluding that Reliance did not abuse its discretion in denying her claim. Regardless, the claim is entitled to de novo review by the district court. Nor do we explore Thomas’ contention that we should apply a less deferential standard in a case such as this, where claim decisions are",
"at 949 n. 1. . By this, of course, we mean review on the record that was before the administrator unless \"circumstances clearly establish that additional evidence is necessary.” Kearney, 175 F.3d at 1090 (quoting Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995)) (internal quotations omitted). . The First Circuit has applied arbitrary and capricious review to a trust document that gave trustees \"without limitation . .. the power ... to ... promulgate and establish rules ... and formulate and establish conditions of eligibility” and to do all acts they deem necessary, having construed the power to create \"rules” governing \"conditions of eligibility” \"as carrying with it a similarly broad implied power to interpret those rules.” Diaz v. Seafarers Int'l Union, 13 F.3d 454, 457 (1st Cir.1994). The Second Circuit has indicated that \"magic words” such as \"discretion” and \"deference” are not \"absolutely necessary” for abuse of discretion review, but are certainly helpful. Compare Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 251-52 (2d Cir.1999) (holding that the phrase \"submit [ ] satisfactory proof of Total Disability to us” contained \"needless ambiguity”) with Ganton Technologies, Inc. v. National Industrial Group Pension Plan, 76 F.3d 462, 466 (2d Cir.1996) (Plan providing that trustees had authority to \"resolve all disputes and ambiguities relating to the interpretation of the Plan” sufficed to invoke review for abuse of discretion) and Jordan v. Retirement Committee of Rensselaer Polytechnic Institute, 46 F.3d 1264, 1269-71 (2d Cir.1995) (provision that Committee \"shall pass upon all questions concerning the application or interpretation of the provisions of the Plan” suffices to overcome the Firestone presumption). The Third Circuit (like the Ninth) follows the rule of \"contra preferentem” and has indicated that the grant of discretion should be \"clear and unequivocal.” Compare Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1254-58 (3d Cir.1993) (applying de novo review to language that \"[w]e will evaluate the proposed admission for certification of medical necessity and appropriateness under the terms of the Master Group Policy and send a letter documenting the recommendation to you”), with Mitchell",
"notices and opinion letters issued by the California DOI. Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965 (C.D.Cal.2005) (internal quotation marks omitted) (taking judicial notice of the February 26, 2004, opinion letter issued by the California DOI); see also Toth v. Automobile Club of California Long Term Disability Plan, 2005 WL 1877150 at *23 n. 237 (C.D.Cal. 2005) (taking judicial notice of the February 27, 2004, Notice issued by the California DOI). Furthermore, a court may take judicial notice of the final decisions of other district courts, including decisions regarding the applicable standard of review in ERISA disability cases. See Wible, 375 F.Supp.2d at 965 (a court may take judicial notice of “documents that are public records and capable of accurate and ready confirmation by sources that cannot reasonably be questioned”); Toth, 2005 WL 1877150 at *23 n. 237 (taking judicial notice of “the final decisions of other district courts regarding the effect of the February 27, 2004 Notice [by the California DOI] on the standard of review in ERISA disability cases,” including the final decisions in Fenberg, Firestone, Hansen, and the transcript of oral argument and tentative ruling in Rosten). Finally, the court notes that in the context of ERISA eases, a court is permitted to review evidence outside of the administrative record in order to determine the standard of review. Wible, 375 F.Supp.2d at 966. Based on the foregoing, the court grants each of the parties’ requests for judicial notice and takes judicial notice of the documents set forth above. II. STANDARD OF REVIEW. The parties disagree as to whether the court should review CNA’s termination of plaintiffs benefits under a de novo or abuse of discretion standard of review. “Although ERISA establishes a right to judicial review of benefits decisions, the statute does not set forth the appropriate standard of review for such determinations.” Hensley v. Northwest Permanente P.C. Retirement Plan & Trust, 258 F.3d 986, 994 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 815, 151 L.Ed.2d 699 (2002); see also Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108-09, 109",
"principles that ambiguities are construed contra proferentem, and that ambiguities are construed in favor of the insured. Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir.1995). We cannot conclude that Standard “unambiguously retained” discretion by means of the phrase “satisfactory written proof that you have become disabled,” because the phrase is subject to at least two reasonable constructions to the contrary. Thus we conclude that the district court was correct in its determination that Mr. Kearney’s claim should be reviewed de novo. II. The Record to be Reviewed. If a court reviews the administrator’s decision, whether de novo as here, or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review. Should the district judge review anything else? Standard moved for an order that the district court review only the materials Kearney had submitted to Standard. The district judge granted the order, following our decision in Mongeluzo, 46 F.3d at 943. In Mongeluzo, we held, following the Fourth Circuit in Quesinberry v. Life Insurance Company, 987 F.2d 1017, 1025 (4th Cir.1993) (en banc), that the district court had discretion to allow evidence that was not before the plan administrator “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review.” Mongeluzo, 46 F.3d at 944 (quoting Quesinberry, 987 F.2d at 1025) (internal quota tion marks omitted). Though we allowed consideration of additional evidence because of circumstances peculiar to that case, we emphasized that “a district court should not take additional evidence merely because someone at a later time comes up with new evidence” and “[i]n most cases” only the evidence that was before the plan administrator should be considered. Id. On appeal, Mr. Kearney argues that the district court ought to have taken additional evidence regarding the medical relationship between his cardiac condition and his cognitive ability. But the brief does not say what new evidence, nor was any specific new evidence proposed to the district court. The argument is merely a suggestion that the door be opened to whatever new evidence might"
] |
in such manner as to constitute clear arbitrariness or caprice, no constitutional rights are infringed.” Breeden v. Jackson, 457 F.2d 578, 580-581 (4th Cir.1972). Should a sentenced prisoner desire to allege an infringement of his constitutional rights based upon his treatment while in prison, he should raise the issue via an extraordinary writ. See generally Bell v. Wolfish, supra; Altizer v. Paderick, 569 F.2d 812 (4th Cir.1978); Shelton v. Taylor, 550 F.2d 98 (2d Cir.1977); Sellers v. Ciccone, 530 F.2d 199 (8th Cir.1976); Breeden v. Jackson, supra. It is not an issue properly contested in ordinary appellate proceedings because it relates neither to the validity of his conviction nor his approved sentence. United States v. Williams, 14 M.J. 994 (N.M.C.M.R.1982); REDACTED Furthermore, even had the accused’s case been finalized within a period of time that reflected reasonable diligence on the government’s part, and even if he had gained immediate entry to the USDB, his chances at obtaining clemency would have been no better than they were as a result of the regulatory consequences of the post-trial delay. For had both these contingencies occurred, the accused would have been presented with but a single opportunity to be considered for probation on 6 July 1983, after 6 months confinement, rather than a first opportunity on 10 May 1983, after 4 months confinement, to request his convening authority grant him immediate clemency relief in lieu of a 6 July 1983 probation hearing, a second opportunity on
|
[
"to his case is correct. His further assertion that the rule was not complied with, however, is without merit. Dunlap’s presumption that “a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the convening authority does not promulgate his formal and final action within 90 days of the date of such restraint after completion of trial”, Id. at 138, 48 C.M.R. at 754, was replaced with the test for prejudice in effect prior to Dunlap by the Court in United States v. Banks, 7 M.J. 92 (CMA 1979). The Dunlap rule, however, remains applicable to cases tried before 18 June 1979, the date of the Banks decision, even if the convening authority’s action was accomplished after that date. See, e. g., United States v. Johnson, 10 M.J. 213 (CMA 1981); United States v. Banks, supra at 94. Appellant was placed in post-trial confinement on 5 April 1978 and the convening authority’s action was accomplished on 3 July 1978. Thus, Dunlap’s' applicability is clear for both these events occurred prior to 18 June 1979, the date Banks was decided. The above dates, however, also indicate that Dunlap was complied with because the convening authority’s action was taken within 90 days after appellant was placed in post-trial confinement. This case was remanded for a new staff judge advocate’s review and convening authority’s action by this Court’s order of 15 February 1980. See United States v. Powis, 8 M.J. 809 (NCMR 1980). The convening authority’s action directed by our order was not accomplished until 23 December 1980, and appellant asserts that because this occurred more than 90 days after the remand, Dunlap requires that the charges against him be dismissed. Dunlap, however, is not applicable to such a delay at the appellate level for that holding was intended to protect an accused from unreasonable delay between the time he is placed in post-trial confinement and the date the convening authority first reviews his case. See United States v. Green, 4 M.J. 203, 204 (CMA 1978). Although Dunlap is not applicable to the delay"
] |
[
"he claims was imposed upon him in violation of the United States Constitution. He can be rearrested at any time the Board or parole officer believes he has violated a term or condition of his parole, and he might be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, of the procedural safeguards that normally must be and are provided to those charged with crime. It is not rele vant that conditions and restrictions such as these may be desirable and important parts of the rehabilitative process; what matters is that they significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ. Of course, that writ always could and still can reach behind prison walls and iron bars. But it can do more. It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the “custody” of the members of the Virginia Parole Board within the meaning of the habeas corpus statute; if he can prove his allegations this custody is in violation of the Constitution, and it was therefore error for the Court of Appeals to dismiss his case as moot instead of permitting him to add the Parole Board members as respondents. Respondent also argues that the District Court had no jurisdiction because the petitioner had left the territorial confines of the district. But this case is not like Ahrens v. Clark, 335 U. S. 188 (1948), upon which respondent relies, because in that case petitioners were not even detained in the district when they originally filed their petition. Rather, this case is controlled by our decision in Ex parte Endo, 323 U. S. 283, 304-307",
"judicial review. Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.1976). Nor did plaintiffs administrative segregation confinement violate his Fourteenth Amendment rights. “It is recognized that inmates are not entitled to a particular degree of liberty in prison, and that ordinarily a change in an inmate’s prison classification to administrative segregation does not deprive the inmate of liberty.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). Moreover, there is no right independently protected under the Due Process Clause to remain in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). A decision by prison officials to place an inmate in administrative segregation, therefore, does not implicate the Due Process Clause unless the confinement presents “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. Sandin, which applies retroactively, Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996), makes clear that an inmate’s segregated confinement is not such a deprivation. Summary judgment, therefore, is warranted on this claim. B. Pursuit of Charges Against Plaintiff Plaintiff next challenges defendant’s decision to allow the disciplinary hearing on plaintiffs aggravated sodomy charges to proceed. Plaintiff alleges that this decision violated his Due Process and Equal Protection rights under the Constitution. The court finds no merit in this claim. 1. Due Process [5] Plaintiff contends that defendant violated his Due Process rights by failing to identify the offense for which he was charged prior to transferring him to administrative segregation. The court rejects this argument. Although a prisoner may not be punished prior to an adjudication of guilt in accordance with due process of law, he is not entitled to the full panoply of rights available to citizens outside the prison walls. Sandin, 515 U.S. at 484-85, 115 S.Ct. at 2300-01 (citations omitted). An inmate does have a right to advance written notice of the charges levelled against him and a written statement of the underlying evidentiary foundation for those charges. Wolff v. McDonnell, 418 U.S. 539, 563-65, 94",
"time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). 2. Failure to Exhaust Can Produce Procedural Default Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the",
"320 F.3d 687, 690 (7th Cir.), cert. denied, 539 U.S. 960, 123 S.Ct. 2653, 156 L.Ed.2d 659 (2003). Before seeking a writ of habeas corpus in federal court, a petitioner must first exhaust the remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion serves an interest in federal-state comity by giving state courts the first opportunity to address and correct potential violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). For that opportunity to be meaningful, the petitioner must fairly present to each appropriate state court his constitutional claims before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732-33; Picard, 404 U.S. at 275, 92 S.Ct. at 512; Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir.1997). If the exhaustion doctrine is to prevent unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution, it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. Picard, 404 U.S. at 275-76, 92 S.Ct. at 512 (internal quotation marks and citations omitted). Presenting the “same claim” in state court that he later seeks to make in federal court means that the petitioner must alert the state courts that he is relying on a provision of the federal constitution for relief. Duncan v. Henry, 513, U.S. 364, 365-66, 115 S.Ct.",
"dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. III.Discussion Plaintiff claims violations of his federal constitutional rights arising out of defendant’s decision to (1) confine plaintiff to administrative segregation pending a disciplinary hearing; and (2) pursue an investigation and disciplinary hearing on the sodomy allegations made against plaintiff. The court will consider each claim in turn. A. Administrative Segregation Pending Hearing Plaintiff first alleges that defendant violated his Eighth and Fourteenth Amend ment rights by placing him in administrative segregation pending the outcome of his disciplinary hearing. The court disagrees. Assuming that the conditions of confinement do not involve unnecessary infliction of pain, a prison’s placement of an inmate in segregation does not constitute cruel and unusual punishment. Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir.1987). Prison administrators must be accorded broad flexibility in matters of internal security, Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 2299-2300, 132 L.Ed.2d 418 (1995), and absent a clear abuse of discretion, placement decisions are not subject to judicial review. Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.1976). Nor did plaintiffs administrative segregation confinement violate his Fourteenth Amendment rights. “It is recognized that inmates are not entitled to a particular degree of liberty in prison, and that ordinarily a change in an inmate’s prison classification to administrative segregation does not deprive the inmate of liberty.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). Moreover, there is no right independently protected under the Due Process Clause to remain in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). A decision by prison officials to place an inmate in administrative segregation, therefore, does not implicate the Due Process Clause unless the confinement presents “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. Sandin, which applies retroactively, Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996), makes clear that an inmate’s segregated confinement is not such a deprivation.",
"a constitutional violation. First, his bare suggestion that C/O Carr’s actions came in response to a civil action does not satisfy the causal nexus required by Adams and White, supra. Second, although plaintiffs allegations may suffice to show that C/O Carr may have been motivated by retaliation for plaintiffs utilization of the grievance procedure, a state grievance procedure does not confer any substantive right upon prison inmates. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988), cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988); Adams, supra. I thus find that retaliation for lodging complaints via such a grievance procedure does not state a claim under Hudspeth, supra, which requires that the retaliation come in response to the exercise of a fundamental right. Plaintiff also maintains, however, that C/O Carr infringed upon his right to free speech by retaliating against him for filing grievances. I disagree. Even assuming Hudspeth contemplates such a broad protection of an inmate’s constitutional rights, I am of the opinion that a supervisor in a prison context does not abuse his discretion when he terminates an inmate who disrupts the supervisory relationship by filing harshly worded grievances. Altizer v. Paderick, 569 F.2d 812 (4th Cir.), cert. denied, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 391 (1978) (prison work assignments are within the discretion of prison officials); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (the principle that inmates retain at least some constitutional rights must be weighed against the recognition that prison authorities are best equipped to make difficult decisions regarding prison administration). Accordingly, I shall also grant defendants’ motion for summary judgment as to plaintiffs claims of retaliation. The plaintiff is advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of the Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5) or 4(a)(6). The clerk of the Court is directed to send",
"on procedural rules indignantly condemned such a result: “It is monstrous to say in any case that a person must lose a valuable right simply because an officer of the court has blundered. That result is tolerated in civil cases only because it is conceived to be desperately necessary if litigation is to end. But ‘[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.’ [Sanders v. United States, 373 U.S. 1, 8 [83 S.Ct. 1068, 10 L.Ed.2d 148] (1963) ] * * *. [T]he proposition that a party must suffer for the mistake of his attorney * * * is not necessary in the context of the time for appeal in a criminal case. The government is not prejudiced by a slightly tardy appeal. Why should the defendant lose a valuable right to the advantage of no one simply because his attorney, an officer of the court, makes a mistake? The Supreme Court has already held that a defendant who ‘did all he could’ to effect timely filing of a notice of appeal was entitled to be heard. [Fallen v. United States, 378 U.S. 139, 144 [84 S.Ct. 1689, 12 L.Ed.2d 760] (1964) ]. What more can a defendant do than to entrust his rights to an officer of the court ? ” 9 Moore’s Federal Practice ¶ 204.19 (1969). See also, Morris v. Florida, 393 U.S. 850, 89 S.Ct. 84, 21 L.Ed.2d 120 (1968) (dissenting opinion of Mr. Justice Black); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) (dissenting opinion of Mr. Justice Black); Christoffel v. United States, 88 U.S.App.D.C. 1, 190 F.2d 585 (1950). In cases where an actual finding of lack of effective assistance of counsel has been made, courts have held that “[fundamental fairness requires that [the petitioner] be granted the rights which were lost to him through no fault of his own. * * * By continuing [his] imprisonment * * * the State courts have affirmatively deprived [him] of the due process constitutionally his",
"are stripped of the rights they still retain while incarcerated. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (finding that a prisoner must be provided due process before the revocation of “good time” credit for misconduct). In analyzing a procedural due process claim, we must first “determine whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Newman v. Beard, 617 F.3d 775, 782 (3d Cir.2010) (internal quotation marks and citation omitted). Although the interests protected by procedural due process are much broader than those protected by substantive due process, Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir.2003), if there is no constitutionally protected interest, our inquiry stops. If, however, we “determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it.” Newman, 617 F.3d at 783 (internal quotation marks and citation omitted). Evans does not contend that his life or property is at issue. The question is whether he has a constitutionally protected liberty interest at stake. As previously noted, Evans’s claimed interest was not defined with particularity, but it seems clear that the idea being pursued is that, in being systematically misled as to his true maximum release date, Evans had a legitimate expectation of being released on a particular date and his expectation matured into a constitutionally protected liberty interest. According to our precedent, a prisoner holds a liberty interest triggering due process protection in two instances: when “state statutes and regulations create a liberty interest in freedom from restraint that imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” and when “severe changes in conditions of confinement amount to a grievous loss that should not be imposed without the opportunity for notice and an adequate hearing.” Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir.2010) (internal quotation marks and citation omitted). We have characterized the first as a “so-called state-created liberty interest” and the",
"Herman, 983 F.2d 107 (8th Cir.1993), we stated that an inmate had a clearly established right to be released from prison once a judge’s order suspending his sentence became final, because at that point, “the state lost its lawful authority to hold Slone. Therefore, any continued detention unlawfully deprived Slone of his liberty, and a person’s liberty is protected from unlawful state deprivation by the due process clause of the Fourteenth Amendment.” Id. at 110 (emphasis added). Accordingly, we denied qualified immunity protection to the prison officials/defendants. Id. at 109-11. As in Young and Slone, Davis has alleged that the defendants deprived him of a protected liberty interest by continuing to confine him after he completed his sentence and was ordered immediately released. Other circuits have recognized this right as well. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir.2001) (“Moreover, ‘[t]he Supreme Court has recognized that an individual has a liberty interest in being free from incarceration absent a criminal conviction.’ ” (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992))); Armstrong v. Squadrito, 152 F.3d 564, 576 (7th Cir.1998) (concluding that the Due Process Clause guards against prolonged detentions without an appearance when a detainee complains of confinement following arrest pursuant to valid warrant); Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir.1990) (“[P]rison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so when a reasonable request is made.”); Golson v. Dep’t of Corrections, 914 F.2d 1491, 1990 WL 141470, *1 (4th Cir. Oct. 2, 1990) (unpublished table decision) (“Incarceration beyond the termination of one’s sentence may state a claim under the due process clause and the eighth amendment.”); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.1980) (finding claim based on continued confinement without valid judicial order was cognizable under § 1983 as a deprivation of due process); cf. Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993) (“Subjecting a prisoner to detention bé-yond the termination of his sentence has been held to",
"prisoner’s conditions of confinement after incarceration, prison officials violate the. Eighth Amendment through “the unnecessary and wanton infliction of pain.” Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quotations omitted). In this case, we join other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment. See, e.g., Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997). “[Sjexual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is simply not part of the penalty that criminal offenders pay for their offenses against society.” Boddie, 105 F.3d at 861 (citation and quotation omitted). Following Boddie, we conclude that there is an objective component of the inquiry, which requires that the injury be “objectively, sufficiently serious,” and a subjective component, which requires the prison official have a “sufficiently culpable state of mind.” See id. at 861 (citing Farmer, 511 U.S. at 834, 114 S.Ct. at 1977). However, under our circuit precedent about the nature of actionable injuries under the Eighth Amendment, an injury can be “objectively, sufficiently serious” only if there is more than de minimis injury. See Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.2002). On the facts as alleged in the complaint, however, Boxer has failed to meet this standard. We conclude that a female prison guard’s solicitation of a male prisoner’s manual, masturbation, even under the threat of reprisal, does not present more than de minimis injury. Accordingly, we affirm the dismissal of Boxer’s claim under the Eighth Amendment. B. Retaliation First Amendment rights to free speech and to petition the government for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir.1989) (per curiam). Boxer expressly claims that he was punished for complaining through the established grievance system about his treatment by Harris. Rl-11"
] |
"745 n.21 (5th Cir. 1996). Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before REDACTED dissenting)(arguing that the predominance requirement in Fed. R. Civ. P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996)(""The proper interpretation of the interaction between [Fed. R. Civ. P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.""). We did not directly address the propriety of such partial certification in Klav. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n. 5 (11th Cir. 2010)(alterations in"
|
[
"trials the issues of damages and, in some cases, causation, as web as: 1) all claims under the South Carolina Unfair Trade Practices Act; 2) all claims alleging civil conspiracy; 3) all claims involving violations of RICO; 4) all issues that qualify each plaintiff for a claim under the applicable Plan; and 5) all claims against the agents who sold the Plan. The need for these individualized separate trials is conceded. Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) — a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)— with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996); see also Allison v. Citgo Petroleum Corp., 151"
] |
[
"See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996): A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.... Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended. On the other hand, an opinion out of the Ninth Circuit Court of Appeals indicates that an issue-specific predominance test is appropriate. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (stating that “[e]ven if common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”) (citations omitted). The Seventh Circuit has not spoken on the matter. In the instant case, however, the Court finds that individual questions of law and fact predominate the putative common issues as well as the case as a whole; therefore, the Court need not resolve the matter for purposes of this Order.",
"Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1189-90, 1192 n. 8. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir.1999). The Eleventh Circuit has refrained from taking a side on this question: Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting)(arguing that the predominance requirement in Fed.R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castaño v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.’’). We did not directly address the propriety of such partial certification in Klay. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n. 5 (11th Cir.2010)(alterations in original). The Tenth Circuit also appears to have refrained from taking a side: Plaintiffs urge us to consider a \"hybrid” certification whereby the liability stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001). Compare Lemon v. Int’l Union of Operating Engr's, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir.2000), and Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir.1999), with Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in",
"matter as to which the Circuits have split. Id. The Fifth Circuit has adopted a “strict application” of Rule 23(b)(3)’s predominance requirement. Id. Under this view, “[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). The Ninth Circuit holds a different view. Pursuant to that court’s precedent, “[e]ven if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996); cf. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 439 (4th Cir.2003) (holding that courts may employ Rule 23(c) to certify a class as to one claim even though all of plaintiffs’ claims, taken together, do not satisfy the predominance requirement). We agree with the Ninth Circuit’s view of the matter. First, the plain language and structure of Rule 23 support the Ninth Circuit’s view. Rule 23(c)(4) provides as follows: When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. Fed.R.Civ.P. 23(c)(4) (emphases added). As the rule’s plain language and structure establish, a court must first identify the issues potentially appropriate for certification “and ... then” apply the other provisions of the rule, ie., subsection (b)(3) and its predominance analysis. See Gun-nells, 348 F.3d at 439 (reasoning that the rule’s language provides this “express command” that “courts have no discretion to ignore”). Second, the Advisory Committee Notes confirm this understanding. With respect to subsection (c)(4), the notes",
"in Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir.1996), that stated: \"The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Id. at 745 n. 21. Allhough we do not decide the question, we note that it would be an issue of first impression in this circuit and caution that an alternative understanding of the interaction of (b)(3) and (c)(4) to that set forth in Castano has been advanced elsewhere. See, e.g., Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (\"Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”); In re Tetracycline Cases, 107 F.R.D. 719, 727 (W.D.Mo.1985) (\"[T]he appropriate meaning of Rule 23(b)’s predominance requirement, as applied in the context of a partial class certification request under Rule 23(c)(4)(A), is simply that the issues covered by the request be such that their resolution (as a class matter) will materially advance a disposition of the litigation as a whole.”). . The Equal Employment Advisory Council, as amicus curiae on behalf of Metro North, advances an additional argument against partial class certification which, though speculative at this stage, nonetheless warrants mention: that partial certification would risk violating the Re-examination Clause of the Seventh Amendment. The Re-examination Clause provides in relevant part that \"no fact tried by a jury shall be otherwise reexamined in any Court of the United States.\" U.S. Const, amend. VII. Amicus curiae contends that given the number of members in the putative class, the district court is likely to try the remedial phase of each class member's claim before a separate jury from the one that considers the liability phase, and that, should this occur, overlapping factual issues would",
"23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) — a housekeeping rule that authorizes a court to certify for class treatment “particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)— with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to “[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421-22 (5th Cir.1998). In addition, the majority opinion attempts to shoehorn this case, even with its limited focus on a single issue, into the parameters of our distinguishable holding in Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir.1993), in which we affirmed the conditional certification of a class of asbestos litigants. In doing this, the majority fails to consider the broad complexities raised by the unaddressed issues in this litigation and fails to apply the later and more specifically applicable controlling ruling of the Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Finally, the majority fails meaningfully to address overt conflicts of interest existing among members of the conditionally certified class. For example, it does not attempt to explain how the conditionally certified class may include, on the one hand, employers seeking rescission of the insurance contract and the return of premiums paid, and, on the other hand, their employees seeking enforcement of the same insurance contract to",
"and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A)—a housekeeping rule that authorizes a court to certify for class treatment \"particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)—with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to \"[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996). Gunnells v. Healthplan Servs., Inc., 348 F.3d at 446-47. Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc., 253 F.3d at 1189-90, 1192 n. 8. See Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167-69 (2d Cir.2001); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir.1999). The Eleventh Circuit has refrained from taking a side on this question: Some have been critical of the piecemeal certification of class action status for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting)(arguing that the predominance requirement in Fed.R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castaño v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is",
"rule allows this Court to certify a class on any one particular issue in the case, so long as that issue meets all the requirements of Rule 23(a) and meets the criteria for one of the provisions of Rule 23(b). Defendants argue that such a reading of Rule 23(c)(4) would obliterate the predominance requirement by permitting a district court to “manufacture predominance through the nimble use .of subdivision (e)(4).” Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). In Castano the Fifth-Circuit held, [t]he proper interpretation of the interaction between subdivisions (b)(3) and (e)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (e)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended. Castano, 84 F.3d at 745 n. 21 (citations omitted). The Second Circuit has not addressed the issue directly, but noted in Robinson v. Metro-North Commuter Railroad Co., with respect to the interaction between (c)(4) and (b)(3), “[although we do not decide the question, we note that it would be an issue of first impression in this circuit and caution that an alternative understanding of the interaction of (b)(3) and (e)(4) to that set forth in Castaño has been advanced elsewhere.” Robinson, 267 F.3d 147, 167 n. 12 (2d Cir.2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) and In re Tetracycline Cases, 107 F.R.D. 719, 727 (W.D.Mo.1985)). The cases cited by the Robinson court held that certification of only common issues is permissible even where those common issues do not predominate over the individual issues found in the entire cause of action. See Valentino, 97 F.3d at 1234; Tetracycline, 107 F.R.D. at 727. This Court need not decide whether Rule 23(c)(4) permits",
"Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., dissenting) (arguing that the predominance requirement in Fed. R.Civ.P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) (\"The proper interpretation of the interaction between [Fed.R.Civ.P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.”). We did not directly address the propriety of such partial certification in Klay. . We emphasize the limited scope of our holding. We do not mean to suggest in any general sense that claims based alternatively on harm and conspiracy to harm are sufficiently distinct to prevent the application of res judicata if those claims are pursued separately. But, in this close case, our prior pronouncements about the gulf between these particular conspiracy and contract-based claims weigh heavily in our decision.",
"thus \"could not have been intended.” 84 F.3d at 745 n. 21. The Fifth Circuit’s approach attracted the adherence of a revered jurist on the Fourth Circuit-—although not the Fourth Circuit itself. The Honorable Paul V. Niemeyer, United States Circuit Judge for the Fourth Circuit, endorsed the Fifth Circuit’s view in an opinion concurring in part and dissenting in part from an opinion in which the Fourth Circuit adopted the opposing view: Despite the overwhelming predominance of these individualized issues and claims over the common issue that the majority now certifies for class treatment, the majority has adopted an inventive approach to Rule 23 that allows certification of a class where the predominance requirement of Rule 23(b)(3) is admittedly unmet in the context of the case as a whole. According to the majority, to require the certified issue in this case to predominate over the individualized issues in the action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and 23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A)—a housekeeping rule that authorizes a court to certify for class treatment \"particular issues” in a case that otherwise satisfies Rule 23(a) and 23(b)—with the effect of materially rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied to \"[a]n action,” see Fed.R.Civ.P. 23(b), but rather to any single issue, no matter how small. Not only does the majority’s approach expand Rule 23 beyond its intended reach, but it also creates a direct conflict with the Fifth Circuit which has held: A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996). Gunnells v. Healthplan Servs., Inc., 348 F.3d at 446-47.",
"questions of liability!!,]” the Plaintiffs cannot utilize rule 23(c)(4)(A) as the basis for class certification because that rule does not permit such certification in the absence of predominance. They rely primarily on the case of Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996), in support of their argument. In Castaño, the court noted that “[a] district court cannot manufacture predominance through the nimble use of subdivision (c)(4).” Id. at 745 n. 21. It further noted that “[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.” Id. at 745-746 n. 21. The court concluded by noting that the result of any other reading of rule (c)(4) “would be automatic certification in every case where there is a common issue, a result that could not have been intended.” Id. at 746 n. 21; accord Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421-422 (5th Cir.1998). Measured against this standard, which the Court finds persuasive, the Defendants’ argument carries the day. In this Court’s view, it would defy logic and run counter to the record before this Court to find, as is required by rule 23(b)(3), “that the questions of law or fact common to the members of the class predominate over any questions affect ing only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Militating against a finding of predominance are the findings of Judge McCoun with regard to the issue of liability. As he correctly determined, “[wjhile Plaintiffs’ theories of defectiveness and negligence are constant, the circumstances of this program were not, and the proof will likely involve distinct considerations of each shipment of Fyfanon, its storage, and the circumstance of each spraying.” Additionally, as Judge McCoun observed, “[t]he potential claims for damages are necessarily highly individualized as well[,]” based on considerations of the circumstances of each individual’s"
] |
which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); REDACTED Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out
|
[
"almost three years after the judgment was entered. Wood’s motion, therefore, cannot be granted under Rule 60(b)(3) Rule 60(b) also provides that a court may consider an independent action to set aside a judgment for fraud on the court. Although there is no time limit for these actions, they may be maintained only for extrinsic fraud. Independence Lead Mines Co. v. Kingsbury, 175 F.2d 938, 985 (9th Cir. 1949). Wood’s first amended complaint, and all proposed amendments, contained two grounds for setting aside the judgment: (1) Appellees conspired to have McEwen appointed special master and McEwen’s conflict of interest in the outcome, because of his involvement in the Santa Barbara Chamber of Commerce, precluded Wood from fairly presenting his claims, and (2) McEwen filed a false and perjured affidavit regarding Wood’s conduct during discovery which resulted in the dismissal. Judge Kelleher dismissed the action because of Wood’s conduct both before and after McEwen’s appointment and for Wood’s failure to comply with the court’s orders. Wood does not attempt to justify his refusal to comply with the court’s orders nor does he deny that he refused to permit discovery. Even if we could disregard Judge Kelleher’s grounds for dismissing the action, Wood’s allegations do not provide a basis to vacate the prior judgment. His allegation of McEwen’s membership in the Chamber of Commerce, an organization that was not even a party to the action, does not support an allegation of a conflict of interest and does not indicate either extrinsic fraud or fraud on the court. See Keys v. Dunbar, 405 F.2d 955 (9th Cir.), cert. denied, 396 U.S. 880, 90 S.Ct. 158, 24 L.Ed.2d 138 (1969); England v. Doyle, 281 F.2d 304 (9th Cir. 1969). Extrinsic fraud is conduct which prevents a party from presenting his claim in court. Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1384 (9th Cir. 1978). At the hearing at which Judge Kelleher considered McEwen’s report, Wood fully participated in the proceedings. Wood’s allegation of perjury does not raise an issue of extrinsic fraud. At most it raises an issue of intrinsic fraud and does not"
] |
[
"Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement in Gore’s perjury and no evidence to suggest that the normal, impartial operation of the court which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible____ Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed to",
"State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3) or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action",
"60.33, at 360; see Serzysko, 461 F.2d at 702, the requisite interference with the judicial machinery cannot be established and an independent action for fraud on the court therefore will not lie. In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant. Cf. Hazel-Atlas, 322 U.S. at 246, 64 S.Ct. at 1001; Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1357 (4th Cir.1982) (“[pjerjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible”), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). Notwithstanding Judge Leval’s determination that plaintiff alleged only perjury and nondisclosure as the basis for his independent action for relief, Gleason nevertheless contends that the new evidence before the district court was indicative of a broad conspiracy and cover-up which transcended mere perjury and nondisclosure. Thus, plaintiff claims that the district court erred in finding the alleged fraud to be intrinsic to the prior proceeding. Although we agree with plaintiff that relief from a judgment by way of an independent action need not be premised on a showing of extrinsic as opposed to intrinsic fraud, see Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1022 (3d Cir.) (“ ‘extrinsic’ — ‘intrinsic’ distinction which is based on a statement in United States v. Throckmorton, 98 U.S. (8 Otto) 61 [23 L.Ed. 93] (1878), was overruled, if it was ever the law, by Marshall v. Holmes, 141 U.S. 589 [12 S.Ct. 62, 35 L.Ed. 870] (1891)”), cert. denied, — U.S. -, 107 S.Ct. 3187, 96 L.Ed.2d 675 (1987); see also Serzysko, 461 F.2d at 702 n. 2; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868, at 240-41 (1973) (distinction between extrinsic and intrinsic fraud is “most unfortunate, if true. [It] rests on clouded and confused authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply. It ought not to persist as",
"alleged fraud to be intrinsic to the prior proceeding. Although we agree with plaintiff that relief from a judgment by way of an independent action need not be premised on a showing of extrinsic as opposed to intrinsic fraud, see Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1022 (3d Cir.) (“ ‘extrinsic’ — ‘intrinsic’ distinction which is based on a statement in United States v. Throckmorton, 98 U.S. (8 Otto) 61 [23 L.Ed. 93] (1878), was overruled, if it was ever the law, by Marshall v. Holmes, 141 U.S. 589 [12 S.Ct. 62, 35 L.Ed. 870] (1891)”), cert. denied, — U.S. -, 107 S.Ct. 3187, 96 L.Ed.2d 675 (1987); see also Serzysko, 461 F.2d at 702 n. 2; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868, at 240-41 (1973) (distinction between extrinsic and intrinsic fraud is “most unfortunate, if true. [It] rests on clouded and confused authorities, its soundness as a matter of policy is very doubtful, and it is extremely difficult to apply. It ought not to persist as a limit on independent actions” under Fed.R.Civ.P. 60(b).), an aggrieved party seeking relief under the saving clause of Rule 60(b) still must be able to show that there was no “opportunity to have the ground now relied upon to set aside the judgment fully litigated in the original action.” Serzysko, 461 F.2d at 702 n. 2; see Marshall, 141 U.S. at 596, 12 S.Ct. at 64; M.W. Zack Metal Co. v. International Navigation Corp., 675 F.2d 525, 530 (2d Cir.), cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 604 (1982); 11 Wright & Miller § 2868, at 239. The district court explicitly found that plaintiff had ample opportunity in the prior proceeding to uncover the alleged fraud, and the record supports the court’s determination. Accordingly, plaintiff’s contention in this regard is without merit. CONCLUSION For all of the foregoing reasons, the district court’s order granting defendant’s motion to dismiss for failure to state a claim upon which relief can be granted is affirmed.",
"Plaintiff asserts that Gore obtained final judgment in the original action through a preconceived scheme to use the judicial system to defraud the plaintiff. As is clear in the Advisory Committee Notes to the 1946 amendments to Rule 60(b), the term “independent action” in Rule 60(b) refers only to actions that “established doctrine” had held to be within the court’s power prior to enactment of the rules of procedures. The elements of such an action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.) cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3)",
"L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible____ Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed to by the normal adversary process. Great Coastal Express, 675 F.2d at 1357. In addition, the plaintiff cannot use an independent action as a vehicle for the relitigation of issues. Courts have consistently held that a party is precluded by res judicata from reliti-gation in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or defense in that action. Bankers Mortgage, 423 F.2d at 79. Plaintiff’s argument that Gore obtained his judgment in the original trial by use of perjured testimony to support its motion for relief in this action is an attempt to relitigate the credibility of a witness, an issue that was necessarily decided in the original trial. See Addington v. Farmer’s Elevator Mutual Insurance, 650 F.2d 663, 668 (5th Cir.1981). The court will grant the defendants’ motions to dismiss the complaint. Accordingly, the defendants’ motions for reconsideration are GRANTED. Defendants’ motions to dismiss the complaint are GRANTED. SO ORDERED, this 10th day of October, 1984. /s/ Richard C.",
"defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud[g]ing cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court.” Toscano v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners must show that an intentional plan of deception designed to improperly influence the Court in its decision has had such an effect on the Court. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245-246 (1944); Toscano v. Commissioner, 441 F.2d at 935; Keys v. Dunbar, 405 F.2d 955, 957-958 (9th Cir. 1969), citing Atchison, Topeka & Santa Fe Railway Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Kraasch v. Commissioner, 70 T.C. 623, 626 (1978); see Kenner v. Commissioner, 387 F.2d at 691-692. When the Court entered the decisions in the petitioners’ cases, it did so in accordance with the clearly expressed intention of the parties to the agreement, and although the petitioners now urge a different interpretation of the agreement, we have rejected their requested interpretation. We are still of the opinion that the decisions were entered in accordance with the agreement, and there has been absolutely no evidence of any fraud on the Court. In the alternative, the petitioners argue that the decisions in their cases are void because the opinion in Heinz indicates that they were denied due process and, therefore, the Court has the power to vacate such decisions. The decision and opinion in Heinz were limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement. The petitioners did not exercise their rights and failed to notify the Court of their due process claims until almost 2 years after our opinion in Gauntt. Additionally, there is no evidence that the Court of Appeals considered such a constitutional question. The phrase “due process” does not appear in its opinion and is",
"or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement in Gore’s perjury and no evidence to suggest that the normal, impartial operation of the court which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25",
"even in different territorial jurisdictions. “The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.- * * * There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely, ‘Interest reipublieas, ut sit finis litium,’ and ‘Nemo debet bis vexari pro úna et eadam causa.’ ” United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. We have not. overlooked the doctrine that courts of equity possess authority to set aside and annul judgments at law rendered between the same parties by courts of competent jurisdiction for fraud, but the fraud in such ease must he extrinsic or collateral. For example: “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him, away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side.” United States v. Throckmorton, supra. False and perjured testimony introduced by the prevailing party relative to the issue on trial does not afford ground for such relief in equity, for “in any ease, to justify setting aside a decree for fraud, whether extrinsic or intrinsic, it must appear that the fraud charged really prevented the party complaining from making a full and fair defense.” Chief Justice Taft in Toledo Scale Co. v. Computing Scale Co., 261 U. S. 421, 43 S. Ct. 464 (67 L. Ed. 719). “Mere false testimony, or forged documents, are not enough if",
"judgments; thus, only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees. Professor Moore’s definition is frequently cited: Fraud upon the court should ... embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. 7 Moore’s Federal Practice and Procedure ¶ 60.33. Cases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved. As an officer of the court, every attorney has a duty to be completely honest in conducting litigation. Professor Moore emphasizes this element of fraud in his treatise: [WJhile an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court. Id. The author cites two Supreme Court decisions that illustrate the role of attorney actions in the fraud on the court analysis. Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), in which the Supreme Court, did find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), in which the Court did not find fraud. While the actions taken in both cases were similar — false documents were put before the court — the attorney was implicated in Hazel-Atlas as one of the perpetrators, while the attorney in Throckmorton was not. 7 Moore’s Federal Practice at 60-358-59. See also Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir.1972), where the court of appeals as part of its finding"
] |
to the estate, and the no less legitimate expectation of the trustee-attorney to be either compensated for any extraordinary legal services at the rate customary for compensation of attorneys in bankruptcy proceedings or to be under no duty to render them. 3A Collier on Bankruptcy ¶ 62.12, at 1471, 1472 (14th ed. 1975, Supp.1978). If an attorney is appointed trustee and then discovers that the administration of the bankrupt estate requires “extraordinary legal services,” the trustee may obtain a court order permitting him or her or some other attorney to act as attorney. See Bankruptcy Rule 215(e). The Seventh Circuit has upheld a bankruptcy court’s award of fees at differential rates to an attorney who represented himself as trustee. REDACTED In that case, the court noted that the SEC and the Administrative Office of the United States Courts encouraged the practice of appointing, and compensating, the same person as receiver and attorney, for economy reasons. Id. at 1180. The Second Circuit Court of Appeals has expressed disapproval of appointment of counsel for an attorney-trustee, especially “in the case of small or medium sized estates heading for liquidation, since there is little reason why two people should have to familiarize themselves with the relevant facts at the estate’s expense.” In re Mabson Lumber Co., 394 F.2d 23, n. 3 at 24 (2d Cir. 1968). See also, Matter of Kinsbursky, 26 F.2d 91, 92 (W.D.Pa.1928) (referee did not abuse discretion in
|
[
"receive “any other or further compensation for his services” than that expressly authorized by the Act. 11 U.S.C. § 112. The 1938 amendment, however, changed the provision to permit receipt of compensation for services not required by the Act by adding the words “as required by this Act” to the quoted provision. See 4 Collier, Bankruptcy § 72.02 (14th ed.). In In re Ira Haupt & Co., 361 F.2d 164 (2d Cir. 1966), the Second Circuit held that a court could authorize a trustee to appoint his own law firm as counsel in administering a bankrupt estate that was not substantial. The court reasoned that since rendition of legal services by a receiver or trustee is not required by the Act, Section 112 would seem to permit the officer to receive compensation for serving as his own lawyer. In Haupt the amount of compensation was not in question. But from the text of the Haupt opinion we see no room for doubt that that court would approve a reasonable fee for the receiver’s or trustee’s services as attorney. And we see no reason why, in the relatively small estate before us, receiver-trustee Hey-man should not be reasonably compensated for the legal services rendered, since he was authorized to perform these services. The SEC recommends the practice of appointing, and compensating, the same person as receiver and attorney, for economy reasons. See Haupt, supra, at 169. And the practice is encouraged by the Administrative Office of United States Courts. Therefore, in so far as the district court’s opinion may be read as finding Heyman’s multiple service per se improper, we disagree. The district court found indications in the record before it that “many functions attributed to legal services [by Heyman] required no expertise;” and that “only in rare instances * * * when there is present such a confusion of functions” could a higher rate than $25 per hour be justified. The district court opinion does not specify the “many functions” which should not have been attributed to legal services. We have examined Schedules (F) and (G) which list the dates"
] |
[
"compensation for the performance of professional “legal” services; non-legal services are not compensable. See, Cle-Ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 874 (6th Cir. 1974); In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir. 1968); In re Hardwick & Magee, 355 F.Supp. 58, 71-74 (E.D.Pa.1973). A second fundamental principle governing the allowance of counsel fees is that an attorney is not entitled to compensation for the assumption of the duties of the Receiver or Trustee. In re Union Dredging Co., 225 F. 188 (D.Del. 1915). The rationale underlying this rule is twofold: first, the estate must not be depleted through a possible duplication of charges for the same service; and second, the assumption of the Receiver’s or Trustee’s duties by counsel would be in derogation of the statutory scheme. Applying these guidelines, Collier suggests that the estate should be chargeable with a reasonable allowance for attorneys’ fees: “wherever the officer (trustee or receiver) is by statute either directed or in his sound discretion permitted to act, and where the compliance with his duties or the exercise of his privileges require advice or assistance . . [footnotes omitted] 3A Collier on Bankruptcy, f 62.12[3] at 1475. The line between legal and non-legal services and between necessary legal services and ministerial duties of the Trustee, requiring only sound business judgment, is not easy to draw. Consequently, substantial latitude must be accorded the Bankruptcy Judge in the drawing process because he is best able to observe and evaluate counsel’s performance. To assist the judge in this process, counsel’s petition and supporting affidavit should describe with reasonable specificity the services for which compensation is claimed as well as the hours spent thereon. If such services could colorably constitute the type of services one would reasonably expect an attorney to perform under the circumstances, and are otherwise compensable, we think the Bankruptcy Judge is entitled to conclude therefrom that the petitioner has made out a prima facie showing that the services were compensable legal services, in the absence of an evidentiary showing to the contrary. Of course, the Bankruptcy Judge is free",
"lower limits on the award of attorney fees in bankruptcy cases. Matter of Hamilton Hardware Co., Inc., supra; also 2 Collier ¶ 330.05[2][a], 17. That rule 219(c)(3), R.B.P., provides that “... compensation may be allowed an attorney ... only for professional services.” 18. That for the services of an attorney to be chargeable as a cost of administration, the attorney must “exercise professional legal skill and expertise beyond the ordinary knowledge and skill of the trustee”, and the attorney cannot be compensated for the performance of the fiduciary duties of the trustee-client. In Re McAuley Textile Corp., 11 B.R. 646 (Bkrtcy.D.Maine, 1981); In Re Pajarito American Indian Art, Inc., supra; Matter of U. S. Golf Corp., supra; Matter of First Colonial Corp. of America, supra; CLE-Ware Industries, Inc. v. Sokolsky, supra; 2 Collier ¶ 327.01 (15th Ed. 1981); and 124 Cong.Ree. H11, 091 (daily ed. September 28, 1978) S17,-408 (daily ed. Oct. 6, 1978). 19. That the purpose of consolidating the functions of the trustee and attorney in one person is for the purpose of reducing the cost of administering the case. 2 Collier ¶327.03[5], citing In Re Mabson Lumber Co., 394 F.2d 23 (2nd Cir. 1968). 20.That: “The purpose of permitting the trustee to serve as his own counsel is to reduce costs. It is not included to provide the trustee with a bonus by permitting him to receive two fees for the same service or to avoid the maxima fixed in section 326. Thus, this subsection requires the court to differentiate between the trustee’s services as trustee, and his services as trustee’s counsel, and to fix compensation accordingly. Services that a trustee normally performs for an estate without assistance of counsel are to be compensated under the limits fixed in section 326. Only services that he performs that are normally performed by trustee’s counsel may be compensated under the maxima imposed by this section [328].” 2 Collier ¶ 327.03[5] (15th Ed. 1981), quoting H.R. Rep.No. 595,95th Cong., 1st Sess. 310-311 (1977). 21. That the Advisory Committee Note to Rule 215(e), R.B.P., explains: “It is not intended that such",
"creditors. Looking for analogous situations, arising under other provisions of the Bankruptcy Act, we find that it has been held that the attorneys for the petitioning creditors are not entitled to receive compensation from the estate for services or assistance rendered, either to the trustee or to the receiver after their appointment, unless specifically employed, by authority of the court, for that purpose. In re Roadarmour (C.C.A.6, 1910) 177 F. 379: Morse & Tyson v. Irving-Pitt Mfg. Co. (C.C.A.8, 1927) 18 F.(2d) 692; In re Floore (C.C.A.5, 1926) 16 F.(2d) 113; 6 Remington on Bankruptcy (3d Ed.) § 2692. And unpleasant though the task of rejecting claims of attorneys for services actually rendered in bankruptcy, when either not authorized or incurred in violation of the General Orders in Bankruptcy or of' rules of court, may have been,' at times, courts have performed it repeatedly and unhesitatingly. See Weil v. Neary (1929) 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; In re G. W. Giannini, Inc. (D.C.N.Y.1936) 14 F.Supp. 1005. One can readily see the wisdom of these rulings. Were the law otherwise, there would be no limit to the burden which might be placed upon an estate if attorneys for the bankrupt or individual creditors could, by doing work which it is not their duty to do, by assisting the trustee, without an order of court allowing their special employment, burden the estate with the added cost of performing work which it is the duty of others to perform. The bankruptcy court would lose control in the matter of fees. “Volunteers” would be numberless. And it is almost certain that in every estate of any size, the courts would be confronted with claims for “voluntary” assistance. Hence the practical wisdom of these rulings, sanctioned by our own Circuit Court, that the attorney for the bankrupt be not compensated for work which the bankrupt is not under legal obligation to do, but vuhich it is the duty of the receiver, trustee or their attorneys to perform. The facts in the instant case show the unwisdom of a departure from these",
"which the statute imposes upon the trustee. See e.g. In Re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir.1968); In Re Harman Supermarket, Inc., 44 B.R. 918, 920 (Bkrtcy.W.D.Vir.1984); In Re Auto Train Corp., 15 B.R. 160, 161 (Bkrtcy.D.C.1981). The function of an attorney for the trustee is to render to the estate those services which cannot and should not properly be performed by one who does not-have a license to practice law. See In Re Meade Land & Development Co., Inc., 527 F.2d 280, 284-85 (3d Cir.1975). See also House Report No. 95-595, 95th Cong., 1st Sess. 328-29 (1977); See Senate Report No. 95-989, 95th Cong., 2d Sess. 39 (1978), U.S.Code Cong. & Admin. News 1978, 5787. Although many trustees are attorneys at law admitted to practice in the jurisdiction in which they are residing, the allowance of statutory commissions for a trustee does not contemplate the trustee’s rendering legal services. The services that a trustee performs for an estate without the aid of counsel are compensable under Section 326 of the Code, while legal services rendered either by the trustee or his retained counsel are compensable under Section 328. [Where the Bankruptcy Court] has authorized a trustee to serve as his own attorney, the trustee is entitled to compensation as an attorney only to the extent that the trustee performed services as an attorney and not for performance of any of the trustee’s duties that are generally performed by a trustee without an attorney’s assistance. In re Whitney, 27 B.R. 352, 353-54 (Bkrtcy.D.Me.1983) [Emphasis added], 11 U.S.C. § 328(b). The demarcation between trustee services and attorney services should be clear and distinct. The specific subject matter and the nature of the problem that implicates legal services should be made apparent from the records.... In order for a trustee who retains himself as attorney for an estate to recover for legal services performed, as distinguished from the trustee’s statutory duties, the attorney must establish that the services claimed are not those generally performed by a trustee without the assistance of an attorney. In re Minton Group Inc.,",
"is to be determined on remand. We observe, however, that all of the five enumerated above, even if classified as professional services, appear to involve services in the administration of the bankrupt estate. As such, they are not compensable to counsel for the debtor. On remand, the District Court should review each of the items for which these attorneys request compensation to determine whether (1) they constitute professional services, and (2) if so, which counsel should be compensated for such services as falling within the scope of their respective duties. The compensation of attorneys for the debtor should be limited to legal services which it is the duty of the attorneys for the debtor to provide. In no event should compensation be allowed to any attorney for services other than professional services. The appellants’ third objection to the compensation award to the attorneys for the debtor is that the award represents compensation for duplicated services. The appellants contend that the total award was bound to skyrocket once the Bankruptcy Court permitted allowance of compensation to separate sets of attorneys for the debtor and the debtor-in-possession. Appellants cite several cases wherein courts reduced fees where it was found that separate sets of attorneys performing overlapping services burdened the estate. See, e. g., Official Creditors’ Committee of Fox Market, Inc. v. Ely, 337 F.2d 461 (9th Cir. 1964) ; In re Solar Mfg. Corp., 215 F.2d 555 (3rd Cir. 1954). With respect to the employment of several attorneys which results in duplication of services, 3A Collier on Bank ruptcy ¶ 62.12, at 1506 (14th ed. 1971) states: “Only one reasonable attorney’s fee is provided for, irrespective of the number of attorneys employed. There is no such statutory protection against duplication or multiplication of legal services rendered to the trustee or re-céiver. In this respect, however, the courts have reached results in harmony with the statutory principle. They have not only denounced duplication of services generally, applying as a sanction the denial of compensation, but they decided to allow in much the same way one attorney’s fee only, wherever several attorneys rendered the",
"guidelines in the bankruptcy context requires that at least two additional considerations be kept in mind. First, the strong policy of the Bankruptcy Act that estates be administered as efficiently as possible demands recognition. See In re Bemporad Carpet Mills, Inc., 434 F.2d at 990; Texas Bank & Trust Co. v. Crippen, 235 F.2d 472, 476 (5th Cir. 1956). Indeed it has been suggested that “[ejconomy is the most important principle” to be considered in awarding fees to the attorneys for the trustee. 3A J. Moore & L. King, Collier on Bankruptcy, ¶ 62.12[5], at 1483 (14th ed. 1975). This does not mean that the bankruptcy judge should be parsimonious — that would be a false economy which would discourage competent counsel from offering their services to trustees in bankruptcy — but rather that he should award an amount which is “at the lower end of the spectrum of reasonableness.” Jacobowitz v. Double Seven Corp., 378 F.2d at 404. Since attorneys assisting the trustee in the administration of a bankruptcy estate are acting not as private persons but as officers of the court, Official Creditors’ Committee of Fox Markets, Inc. v. Ely, 337 F.2d 461, 465 (9th Cir. 1964), they should not expect to be compensated as generously for their services as they might be were they privately employed. In re York International Building, Inc., 527 F.2d at 1069; Herzog, Fees and Allowances in Bankruptcy, 36 Conn.B.J. 374, 376-77 (1962). Second, there are a number of peculiarities of bankruptcy practice — such as the award of ad interim allowances and the possibility that some officers of the court may be furnishing services to the estate in more than one capacity — which could lead to the award of duplicative fees or compensation for non-legal services if overlooked. The Bankruptcy Act forbids such a result. 11 U.S.C.A. §§ 102,104 (1953 & Supp.1976); R. Bankruptcy Pro. 219. Determining a reasonable attorneys’ fee is a three-step process. In the first phase, the bankruptcy judge or district court must ascertain the nature and extent of the services supplied by the attorney. To this end,",
"fashioning this agreement was included in their application for allowance as attorneys for the debtor. It is clear that attorneys entitled to fees for services in bankruptcy and Chapter XI proceedings will have their fees reduced proportionately where their services were partly performed on behalf of private clients. 3A Collier on Bankruptcy ¶ 62.12, at 1493 (14th ed. 1971) states: “While an attorney’s association with other parties in interest does not necessarily prevent his appointment as counsel for the estate, yet it may cause him to suffer a reduction of his compensation out of the estate on the ground that certain services are considered to have been rendered for the benefit of his private clients rather than for the estate.” Further, Collier adds: “Where there is such a multiplicity of beneficiaries of one particular service, courts are anxious to see in the estate only a kind of secondary beneficiary of efforts made primarily for, and therefore to be compensated by, the directly interested creditors.” (footnote omitted.) Id. , Similarly, the record in this case indicates that a major portion, if not all, of the disputed 573y3 hours represents time spent by these attorneys rendering legal services for Levine and not for the debtor. On remand, these disputed items should be reviewed item-by-item before a determination is made as to which, if any, are properly chargeable to the debtor. No compensation should be allowed for any services found to have been rendered to Levine as an individual. The appellants’ second objection to the compensation award to the attorneys for the debtor is that the award represents compensation for ministerial and administrative services not properly compensable as professional services within the meaning of General Order 42. General Order 42 provides as follows: “No allowance of compensation shall be made to any attorney for a receiver, trustee or debtor in possession except for professional services.” The standards of professional services are set forth in 3A Collier on Bankruptcy H 62.12, at 1481-82 (14th ed. 1971): “The services for which an attorney for a receiver or trustee may claim compensation are scarcely more sus-ceptable",
"that many hours for which compensation is sought are not shown to have been devoted to the performance of professional legal services. Unless accompanied by unusual difficulties, the actual performance of fiduciary duties of the receiver and trustee in bankruptcy are their own responsibility not the responsibility of their counsel; including the obligation to reduce the estate to money, In re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir. 1968); Bankruptcy Act § 47(a)(1), 11 U.S.C. § 75(a)(1); Bankruptcy Rule 605(a), to pay routine bills, 3A Collier on Bankruptcy ¶ 69.09[1] 14th ed. at 1511, including taxes, In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915), to arrange insurance coverage for the estate, 3A Collier, supra ¶ 62.09[1], to examine books and records of the estate, see In re J. M. Wells, Inc., 575 F.2d 329, 331 (1st Cir. 1978); In re Mabson Lumber Co., Inc., supra at 24, and to sell real estate of the business as a going concern, In re Leader International Industries, Inc., 2 B.C.D. 588, 590 (E.D.Mich.1976); see also Bankruptcy Act § 70(f); 11 U.S.C. § 110(f). There were unusual difficulties in this case relating to various real and personal property sales that required legal expertise, involving tax loss carryovers, lien status determinations (perfection and priority), and problems relating to mortgage interest rates and moratoria. Other activities required legal expertise as well, particularly negotiations for postpetition payment and indemnity arrangements, and moratoria, as well as negotiating and arranging postpetition loans and certificates of indebtedness. See In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915). Although examining and objecting to claims is a statutory duty of the trustee, In re Cliff House Motor Hotel, 2 B.C.D. 460, 461 (W.D.Mo.1976); Bankruptcy Rule 218, the difficult problems here posed warranted the services of an attorney in evaluating the allowability, priority and secured status of claims. In those instances where insufficient explanatory information did not enable a determination of the precise nature of the services rendered, the court felt compelled to determine that the services were not compensable as legal services, see In re Hamilton",
"separate sets of attorneys for the debtor and the debtor-in-possession. Appellants cite several cases wherein courts reduced fees where it was found that separate sets of attorneys performing overlapping services burdened the estate. See, e. g., Official Creditors’ Committee of Fox Market, Inc. v. Ely, 337 F.2d 461 (9th Cir. 1964) ; In re Solar Mfg. Corp., 215 F.2d 555 (3rd Cir. 1954). With respect to the employment of several attorneys which results in duplication of services, 3A Collier on Bank ruptcy ¶ 62.12, at 1506 (14th ed. 1971) states: “Only one reasonable attorney’s fee is provided for, irrespective of the number of attorneys employed. There is no such statutory protection against duplication or multiplication of legal services rendered to the trustee or re-céiver. In this respect, however, the courts have reached results in harmony with the statutory principle. They have not only denounced duplication of services generally, applying as a sanction the denial of compensation, but they decided to allow in much the same way one attorney’s fee only, wherever several attorneys rendered the estate services that could have been rendered by a single attorney.” (footnote omitted) Counsel for the debtor and counsel for the debtor-in-possession cannot be compensated for rendering the same service. In the item-by-item review on remand of the applications submitted by both sets of attorneys, fees to debtor’s counsel should be limited to those legal services which they provided and which are within the scope of their duties. Similarly, the District Court should allow fees to counsel for the debt- or-in-possession for those legal services which they provided and which are within the scope of their duties. The appellants’ final objection to the compensation award to the attorneys for the debtor is that the Bankruptcy Judge abused his discretion in allowing $162,500 in fees since this amount was clearly excessive and inconsistent with the economical spirit of the Bankruptcy Act. In support of this objection, the appellants assert that counsel for the debtor requested compensation at an hourly rate of about $71 (2,517 hours for a requested $180,000). Further, these rates are alleged to be"
] |
"establish jurisdiction under subsection (a)(1). See Flora , 362 U.S. at 176-77, 80 S.Ct. 630. But given the procedural posture of this case, we leave a definitive holding on this issue for another day. 28 U.S.C. § 1340 provides: ""The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade."" As Judge Posner has observed, ""the elimination of the minimum amount in controversy from [28 U.S.C. § 1331 ] made [28 U.S.C. § 1340 ] ... [one of] so many beached whales, yet no one thought to repeal those now-redundant statutes."" REDACTED The Government's other two claims of error are that (1) the District Court unduly weighed Bedrosian's subjective motivations when assessing willfulness, and (2) it clearly erred in finding that Bedrosian did not know he owned a second foreign bank account in Switzerland. Given our disposition of the appeal, we need not directly address either of these claims and leave it to the District Court if it needs to do so on remand."
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[
"solve them. There may have been an equal number of problems that were not raised and therefore — because Congress is too busy to resolve problems that are entirely hypothetical — not provided for. It is perverse on the one hand to penalize draftsmen for having made detailed provision for the problems that were brought to their attention by denying them a helping judicial hand in the problem areas they did not foresee, and on the other hand to treat a lazily drafted statute, worded in generalities, as a broad delegation to the judiciary to create a sensible code of governance. The legal mind craves an orderly legal universe — a seamless web of rationality— in which every word in a statute or in a contract or in a judicial opinion has a unique and indispensable function and in which there are no gaps and no redundancies. Yet there are loads of gaps and redundancies in the law. Of specific relevance here, the elimination of the minimum amount in controversy from section 1331 made of the numerous special federal jurisdictional statutes that required no minimum amount in controversy (28 U.S.C. §§ 1337, 1340, and 1343 and many others) so many beached whales, yet no one thought to repeal those now-redundant statutes. It is apparent that Congress, while it gave careful consideration to a vast number of issues that might arise in the administration of the new federal pension law, overlooked a vast number of other issues— including that of declaratory judgment actions by ERISA plans containing coordination-of-benefits provisions. For such omissions, which seem neither deliberate nor consistent with administering the statute sensibly in accordance with its overall goals and structure, section 1331 would provide a suitable remedy, as held in Northeast Dept. ILGWU Health & Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147, 154-59, 164-66 (3d Cir.1985), and other cases illustrated by Airco Industrial Gases, Inc. v. Teamsters Health & Welfare Pension Fund, 850 F.2d 1028, 1033 and n. 5 (3d Cir.1988), and Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 988-91"
] |
[
"IRS claims for 1987 and 1988 even if there was a jurisdictional hook. Therefore, the remainder of the discussion, which details why it is inappropriate to exercise jurisdiction over the IRS claims, pertains only to the claims for the years 1989 and 1990. ii. Jurisdiction to Entertain Tax Claims Under 28 U.S.C. § 1340. Shabahang asserts that the Court may exercise subject matter jurisdiction over its tax claims under 28 U.S.C. § 1340. Specifically, Shabahang states that section 1340 “grants the district court or the Court of International Trade original jurisdiction in any civil action arising under Acts of Congress providing for internal revenue or revenue from imports, both present in the instant case.” Def.’s Br., at 8. This, however, is not the same language as that actually provided for in section 1340. The district courts shall have original jurisdiction of any civil action arising under Acts of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. 28 U.S.C. § 1340 (1994) (emphasis added). Contrary to Shabahang’s reading of the statute, it is plain that original jurisdiction over internal revenue matters lies with the district courts, not the Court of International Trade (except in those instances where Congress expressly assigns such matters to the jurisdiction of this court, which is not the case with respect to the instant IRS claims). Moreover, even if the Court were to assume that section 1340 provided an avenue to trigger original jurisdiction over the tax claims involving the IRS, section 1340 in and of itself does not create jurisdiction. Indeed, section 1340’s “general grant of jurisdiction does not constitute a waiver of sovereign immunity.” Murray v. United States, 686 F.2d 1320, 1324 (8th Cir.1982) (citations omitted). Rather, consent to suit must be based on some other provision of the Internal Revenue Code. Shabahang fails to identify any other provisions of the tax code that might provide a basis for jurisdiction. Consequently, it is apparent that this Court does not possess original jurisdiction under 28 U.S.C. § 1340 to entertain the outstanding",
"minimum amount in controversy. We agree with the District Court, however, that Penney must seek its relief against the government in the Customs Court. In 28 U.S.C. § 1582(a), as amended by section 110 of the Customs Courts Act of 1970, Pub.L. No. 91-271, 84 Stat. 274 (June 2, 1970), Congress has provided that the Customs Court shall have “exclusive jurisdiction” of all civil actions challenging an administrative decision, “including the legality of all orders and findings entering into the same,” when that decision involves, inter alia, the appraised value of merchandise, the classification and rate and amount of duties chargeable, all charges or exactions within the jurisdiction of the Secretary of the Treasury, or the exclusion of merchandise from entry or delivery under any provision of the customs laws. Also relevant is 28 U.S.C. § 1340, which provides : The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue or revenue from imports or tonnage, except matters within the jurisdiction of the Customs Court. Penney contends that neither provision bars its suit in the District Court, since its claim in no way concerns the substantive issues which require the expertise possessed by members of the Customs Court. It is therefore contended that the policy behind the grant of exclusive jurisdiction is absent in this case and that constitutional issues can and should be tried in the district courts. To be sure, the nature and extent of procedural due process that must be employed in an administrative proceeding is a question with which federal courts of general jurisdiction frequently deal. However, the procedural issues here arise directly from controversies over issues of substantive customs laws. Although it is conceivable that separate courts could deal with the separate procedural and substantive issues involved, such a result would significantly undermine Congress’ “complete system of corrective justice with respect to matters arising under the customs laws.” Cottman Co. v. Dailey, 94 F.2d 85, 88 (4 Cir. 1938). In interpreting legislation such as that involved in this case, “[e]ourts must * * *",
"contention disregards section 1340 of Title 28, which provides: “§ 1340. INTERNAL REVENUE; CUSTOMS DUTIES “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” Also applicable, and negating jurisdiction in this court, is section 1582(a) of Title 28, United States Code, which defines the jurisdiction of the Customs Court: “§ 1582. JURISDICTION OF THE CUSTOMS COURT “(a) The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery under any provisions of the customs laws; * * I agree with the observation made in Eastern States Petroleum Corp. v. Rogers, with respect to section 1331: “Section 1331 vests federal question jurisdiction in the district courts and, unlike § 1340, contains no exception relating to Customs Court jurisdiction. But we do not agree that Congress’ failure to provide an exception to § 1331 similar to that specified in § 1340 indicates an intent to open a loophole in its clear purpose to exclude customs cases from the district courts. When Congress provides a specific judicial remedy, relief may generally be accorded only through the specified procedure.” Particularly apposite to the question of jurisdiction is North American Cement Corp. v. Anderson, where Circuit Judge Edgerton wrote for a unanimous court. There, American cement manufacturers filed information with the Secretary of the Treasury and asked that he investigate whether cement imported from Norway was sold here at less than its fair value. The Secretary found to the contrary that Norwegian",
"the present appeal from the dismissal below. We think the District Court correctly decided that it lacked jurisdiction. Under the distribution of judicial power which Congress has established, the Customs Court has “exclusive jurisdiction to review on protest the decisions of any collector of customs * * 28 U.S.C. § 1583 (1958) (emphasis supplied) . Conversely, 28 U.S.C. § 1340 provides that “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for * * * revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” 28 U.S.C. § 1340 (1958) (emphasis supplied). This jurisdictional scheme is not limited to non-constitutional matters, for it is clear that the customs courts can and do, as in the two companion cases, pass upon constitutional questions. Horton v. Humphrey, D.C.D.C., 146 F.Supp. 819, 821 (3-judge court), affirmed per curiam, 1956, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed. 2d 157; Morgantown Glassware Guild, Inc. v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, certiorari denied, 1956, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87. Decisions of the Court of Customs and Patent Appeals are reviewable in the Supreme Court on writ of certiorari, 28 U.S.C. § 1256 (1958). Appellant contends, however, that the District Court has jurisdiction notwithstanding the exception in § 1340, since this is not a case “arising under any Act of Congress providing for * * * revenue from imports * * Rather, they contend it is a case “aris[ing] under the Constitution, laws, or treaties of the United States,” and thus within the ambit of 28 U.S.C. § 1331 (1958). Section 1331 vests federal question jurisdiction in the district courts and, unlike § 1340, contains no exception relating to Customs Court jurisdiction. But we do not agree that Congress’ failure to provide an exception to § 1331 similar to that specified in § 1340 indicates an intent to open a loophole in its clear purpose to exclude customs cases from the district courts. When Congress provides a specific judicial remedy, relief may generally be accorded only through",
"the complaint in intervention of the United States. The first question presented is one of jurisdiction, the defendant and the intervenor contending that the court lacks jurisdiction of a suit for refund of taxes when only a part of the tax assessed has been paid. The relevant statutory provisions, found in Title 28 U.S.C. § 1340, and Title 26 U.S.C. § 7422(a), 1954 I.R.C., are as follows: “§ 1340. Internal revenue; customs duties “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” “§ 7422. Civil actions for refund “(a) No suit prior to filing claim for refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.” The defendant and intervenor freely admit that the meaning of the word “tax” as used in Section 7422(a) is ambiguous enough to be open to construction by the court in determining whether or not a taxpayer may litigate his assessed liability after a partial payment; and urge that the legislative history of (1) the creation of the Board of Tax Appeals; of (2) the exempting of federal tax controversies from the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202; and of (3) the prohibition of suits to enjoin the collection of federal taxes together with certain pronouncements of the Supreme Court regarding the rights of taxpayers to judicial determination of their tax liabilities as well as the Supreme Court’s definition of the word “tax” in Snyder v. Marks, 1883, 109 U.S. 189,",
"Court below also denied as moot SCM’s motion for preliminary injunctive relief and further denied as moot the motions for leave to intervene of two proposed intervenors, Brother Industries, Ltd. and Royal Typewriter Company. II 28 U.S.C. § 1340 (1970) provides: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. 28 U.S.C. § 1582(b) (1970) provides: (b) The Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended. If the Customs Court has jurisdiction over SCM’s claim pursuant to section 516, then jurisdiction in the Customs Court is exclusive under 28 U.S.C. § 1582(b). However, that exclusive jurisdiction is limited to those claims which can be brought pursuant to section 516. Where no adequate remedy exists in the Customs Court for actions concerning customs matters, the federal district courts have jurisdiction. See, e. g., The Timken Co. v. Simon, supra; J. C. Penney Co. v. Department of Treasury, 439 F.2d 63, 68 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). It follows that it is necessary to examine section 516 to determine whether SCM’s claim is one which can be brought under that statute. Pursuant to section 516(a), an American manufacturer may file a petition with the Secretary either challenging the non-assessment of antidumping duties, if there has been no assessment, or challenging the amount of the special antidumping duties which have been assessed. If the Secretary agrees with the manufacturer’s assertion, he determines that duty should be assessed, if none has been assessed, and, if appropriate, determines the proper rate of duty to be assessed. The Secretary also informs the manufacturer of his determination. § 516(b). If the Secretary determines that the duty assessment was correct or that no antidumping duty should be assessed, he publishes that decision and so informs the manufacturer. The latter then has 30",
"where federal relief is not an available avenue of litigation at all, the absence of jurisdiction follows inexorably. In conclusion, Mottley, Wycoff, Thiokol, Allegheny, and LaChemise Lacoste all command dismissal of this action. Wycoff follows logically from Mottley and the procedural nature of the Declaratory Judgment Act. This circuit has expressly adopted its reasoning; this court must follow its dictates. Crown Cork’s action must be dismissed. Crown Cork’s belated reliance on 28 U.S.C. § 1340 does not alter this conclusion. Although in its complaint Crown Cork alleged jurisdiction under § 1331 only, in supplemental memoranda filed at the court’s request Crown Cork argued that 28 U.S.C. § 1340 also gave this court jurisdiction over its claim. Section 1340 provides that: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. (Emphasis supplied). Section 1340 has no requirement of jurisdictional amount. It therefore allows Crown Cork to defeat the Commission’s argument that this court lacks jurisdiction because Crown Cork failed to allege that the amount in controversy exceeded $10,000, as required by § 1331. However, § 1340 does not remove the need for determining whether the case “arises under” an Act of Congress — here, the Internal Revenue Code. The issue is precisely the same as the issue involved in determining the existence of general federal question jurisdiction under § 1331: the court must determine whether the action, not the defense, “arises under” the Internal Revenue Code. Clearly, the defense does; unfortunately for Crown Cork, the action does not. Thiokol supports this conclusion. In that case the plaintiff alleged that 28 U.S.C. § 1338(a), the provision which gives the district courts jurisdiction over all actions “arising under” the patent laws, gave the court jurisdiction over its claim. The court of appeals disagreed, applying the Wycoff analysis. 448 F.2d at 1330. By relying on Wycoff and thus applying the same analysis to both § 1331 and § 1338(a) actions, the court demonstrated that the words “arising",
"conferred upon the Court of International Trade by subsections (a)-(h) of this section ... the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (1M3) of this subsection and subsections (a)-(h) of this section. The parties appear to agree that the district court would have jurisdiction over the Lanham Act (Section 42) claim even if that claim fell within one of the categories listed in 28 U.S.C. § 1581. We fail to see why that would be so: if the Customs Courts Act implicitly modifies 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) by vesting exclusive jurisdiction over specified cases in the Court of International Trade, then it ought to follow that it modifies the Lanham Act’s jurisdictional provision, 15 U.S.C. § 1121, as well. We need not decide this issue, however, because we conclude that neither of the appellants’ claims falls within the categories of cases listed in 28 U.S.C. § 1581. . The Government argues that a protest would not be available to an importer challenging an exclusion of goods under Section 526 because it is a trademark law, not a \"customs law” and, therefore, the Court of International Trade and the Federal Circuit have no jurisdiction over cases arising under that Section. We believe, however, that even if 28 U.S.C. § 1581 covers the case of an importer’s challenge to Customs’ exclusion of goods under Section 526, it does not extend to a third-party’s challenge to Customs’ admission of goods. Thus, it is unnecessary for us to pass on this arcane point of Customs procedure. . The remainder",
"first to the issue of whether a proper basis of jurisdiction exists for hearing this cause. Because of the limited nature of a district court’s jurisdiction, the court may inquire into its jurisdiction sua sponte. Rice v. Rice Foundation, 610 F.2d 471 (7th Cir.1979). A. Jurisdiction Plaintiff asserts a total of seven bases for jurisdiction: 28 U.S.C. § 1340, a general jurisdiction statute; 26 U.S.C. §§ 7421, 7425, and 7428, which are all provisions of the Internal Revenue Code; and 42 U.S.C. §§ 1981, 1983, and 1986, all provisions of the Civil Rights Act. The court will analyze these bases in turn. 1. General Jurisdiction The general jurisdiction statute offered by plaintiff, 28 U.S.C. § 1340, provides: The district court shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. The question of whether plaintiff can rely on this provision as a basis for jurisdiction hinges on whether this statute itself provides plaintiff with a cause of action. The very language of the statute militates against such a construction. Section 1340 gives jurisdiction for an action arising under the Internal Revenue laws; as such, the suit must be based on some cause of action which the Internal Revenue Code recognizes and allows the plaintiff to bring. Absent some recognition of this kind of suit under the Internal Revenue Code, however, § 1340 will not create an independent basis for jurisdiction. Rather, § 1340 is designed merely to give a district court jurisdiction should it find a separate basis for the claim. As one court has noted, “Given the limitations which Article III of the Constitution places on the jurisdiction of the federal courts, it is doubtful that the various jurisdictional statutes [like § 1340] could do more than waive the congressionally imposed jurisdictional amount requirement.” Crown Cork & Seal Co. v. Pennsylvania Human Relations Comm., 463 F.Supp. 120, 127 n. 8 (E.D.Pa.1979). It appears that this case does not arise under the Internal Revenue Code.",
"government admits. In sum, the issue raised now clearly is concerned not with the validity or priority of the liens, but with their extinguishment in a manner not permitted by the statutes, and Section 1340 is therefore not applicable. Coson v. United States, D.C.Cal. 1958, 169 F.Supp. 671 does not help appellant. The court in that case assumed jurisdiction under Section 1340 because the question presented was whether or not a tax lien existed. Similarly, nothing in the court’s opinion in United States v. Boyd, 5 Cir., 1957, 246 F.2d 477, an action by the government under 26 U.S.C. § 7403, to enforce tax liens, implicitly or explicitly supports appellant’s position on the jurisdictional issue. See also United States v. Brosnan, D.C.W.D.Pa. 1958, 164 F.Supp. 357. Appellant is not without remedy. Congress has established administrative and judicial procedures by which federal tax liens may be discharged, 26 U.S.C. §§ 6325, 7403, and 7424, none of which have been followed in this case. The district court correctly ruled that it did not have jurisdiction under 28 U.S.C. § 2410(a), and since we find Section 1340, 28 U.S.C. to be inapplicable as well, Judgment will be entered affirming the judgment of the district court. . “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” . These two sections are substantially identical, and, insofar as relevant, provide as follows: “(a) Invalidity of lien without notice.— Except as otherwise provided in subsection (c), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate — .”"
] |
of characteristics that indicated federal control); St. Michael’s Convalescent Hosp. v. State of Cal., 643 F.2d 1369, 1373-74 (9th Cir.1981) (rejecting argument that use of federal funds pursuant to federal regulations transformed entity into a federal agency); Rocap v. Indiek 539 F.2d 174, 177 (D.C.Cir.1976) (finding Federal Home Loan Mortgage Corp. to be a federal “agency” because it was federally chartered, its board of directors consisted of federally-appointed officers and it was subject to federal audits and daily supervision); DeHarder, 909 F.Supp. at 617 (finding Indiana Housing Finance Authority was not a federal agency because it was not federally-chartered, the state appointed its directors and it was subject to almost no federal supervision over its business transactions); REDACTED Dennie v. Univ. of Pittsburgh Sch. of Med., 589 F.Supp. 348, 352 (D.Vi.1984) (dismissing complaint because plaintiff alleged nothing to show substantial federal control or supervision over university hospital and medical school to characterize them as “federal” for Privacy Act purposes). Accordingly, Counts IV, V and VI of Plaintiffs’ amended complaint against the College are dismissed with prejudice. The Court adds that it has given Plaintiffs an opportunity to amend their complaint once before. And, while Fed. R.CivP. 15(a) states that leave to amend should be granted “when justice so requires,” a court generally will deny a motion to amend in instances of futility, undue
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[
"44 L.Ed.2d 450 (1975) (organization’s authority to make final decisions is indicative of government-controlled, FOIA agency status, although “each arrangement must be examined anew and in its own context”). Plaintiffs generally insist that because FOIA’s section 552(e) is narrower than the Privacy Act in the sense that it does not apply to state and local agencies, the precedential value of the FOIA cases is diminished. Pit. Reply Brief at 2. Indeed, while the FOIA cases are certainly relevant given the Privacy Act’s cross-reference to 552(e), the case law focuses on federal, FOIA scenarios rather than on factors relevant to identification of covered state and local agencies. Plaintiffs’ argument holds as a general matter of interpretation, but it is in some sense academic. Plaintiffs cannot and do not dispute that the relevant inquiry is the nature and extent of government control of and involvement in Rutgers’ operations. While distancing themselves from the defendants’ FOIA cases, plaintiffs agree that government control is the relevant inquiry and suggest that the same type of factors or criteria at issue in the FOIA cases are relevant. Extrapolating from Rocap v. Indiek, 539 F.2d 174 (D.C.Cir.1976), plaintiffs propose the following indicia of government agency status: (1) government charter; (2) government appointment of Directors; (3) close governmental supervision over business transactions; (4) government audit and reporting requirements; (5) express designation as an agency; (6) employees are considered public for a number of purposes; and (7) regulatory powers to make regulations and to carry out its functions. Pit. Reply Brief at 5. The parties and the court agreeing that the relevant inquiry is government control over and involvement in Rutgers’ operations, the court turns to a fact-specific assessment of Rutgers’ status as a government controlled corporation under the Privacy Act. Defendants stress the relevancy of Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir.1987) to this inquiry. In Kovats, the Third Circuit held that Rutgers was not a division of the State for purposes of receiving Eleventh Amendment immunity. In arriving at this conclusion, the court engaged in an extensive, particularized inquiry into Rutgers specific links"
] |
[
"Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976). While this federal control may be “manifested in various forms” and consists of a “confluence of several ‘federal’ characteristics,” Dennie has alleged no facts which make either defendant a federal agency. See Irwin, supra at 1055. Dennie does allege that both the Hospital and the Medical School were recipients of federal research grants from the BRH, and thus subject to federal supervision, but this in and of itself is not sufficient. In Forsham, supra the Supreme Court faced the issue of whether a university diabetes group which received all of its funding from the federal government was an agency subject to FOIA requirements. In holding that it was not, the Court plainly stated that “absent extensive, detailed and virtually day-to-day supervision,” the recipient of public funds does not become a federal instrumentality or an FOIA agency. Forsham, supra, at 180. As Dennie alleges no such comprehensive supervision, he cannot reach defendants on the sole basis of their being federal grantees. The Irwin, supra, court sets out several other factors to consider in determining whether an organization is a federal agency under § 552(e). The dispute there focused on a blood bank’s attempts to order the Red Cross to disclose financial records through the FOIA. In holding that the Red Cross was not a federal agency for FOIA purposes, the court looked to: 1) whether the federal government played a role in organizing the institution; 2) whether the United States particularly appropriated funds for the benefit of the institution; and 3) whether governmental officials directed the daily affairs of the institution. While recognizing that the Red Cross was subject to a certain amount of federal supervision, the Court found in the negative as to all the forementioned considerations and held the Red Cross not to be subject to the FOIA. Applying the Irwin criteria to the matter sub judice, we cannot help but conclude that there is no substantial federal supervision and control over the Hospital and Medical School, and thus, they are not federal agencies.",
"the entity is subject to extensive federal control. Dong v. Smithsonian Institution, 878 F.Supp. 244, 247 (D.D.C.1995). The application of these criteria in this ease demonstrates that the IHFA is not a federal agency as that term is used in FOIA. The IHFA is state, not federally, chartered. Most of its board of directors are appointed by Indiana’s governor; the rest are board members by virtue of their positions in state government. The Authority is subject to almost no federal supervision over its business transactions, the State having accorded it “all of the powers necessary or convenient to carry out and effectuate” its purpose. I.C. § 5-20-1-4. Indeed, at most, federal control over its functions is limited to the oversight of federal funds. In this respect, the case at bar is similar to St. Michael’s Convalescent Hosp. v. State of California, 643 F.2d 1369 (9th Cir.1981). In that case, the Ninth Circuit considered whether FOIA’s requirements applied to the California Department of Health Services (“DHS”), the agency responsible for administering California’s medicare program. Although DHS was plainly a state agency, the plaintiffs argued that because it received federal funds through Medicaid “and Medicaid’s pervasive statutory and regulatory scheme necessarily subjected] the DHS” to the provisions of the FOIA. Id. at 1373. The court, however, concluded that DHS was not an “agency” within the meaning of FOIA. In so doing, it rejected plaintiffs’ argument that the use of federal funds pursuant to federal regulations transformed DHS into a federal agency: Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. Id. at 1373-74. Thus, because plaintiffs did not contend that the federal government exercised the “ ‘extensive, detailed and virtually day-to-day supervision’ over the program that is needed to characterize the state bodies as federal agencies,” the court affirmed the district court’s dismissal of the",
"characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated as an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes of [its enabling act.]” (citation omitted). Rocap v. Indiek, 539 F.2d at 176. Under Rocap and its progeny, it is unnecessary to determine whether the Smithsonian is a government controlled corporation, a government corporation, or some other kind of establishment in the executive branch of the government because “regardless of its label,” it is the “threshold showing of substantial federal control or supervision” that “is required before an entity can be characterized as ‘federal’”. Irwin Memorial v. American National Red Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981). Applying these standards on a case-by-case basis, the Court of Appeals for our Circuit has concluded that FOIA’s definition of “agency” applies to a broad range of entities. For example, the court concluded that the Office of Science and Technology, the Defense Nuclear Facilities Safety Board, the Council on Environmental Quality, the Office of Personnel Management, and even the Federal Home Loan Mortgage Corporation all constitute FOIA agencies. Conversely, for reasons that do not apply here, the court determined that the Council of Economic Advisors the National Capital Medical Foundation, Inc. (serving as a Professional Standards Review Organization), and the Task Force on Regulatory Relief are not FOIA agencies, Ultimately the Court of Appeals for our Circuit has concluded that, with the “ ‘myriad organizational arrangements for getting the business of the government done’”, “‘any general definition [of the term agency] can be of only limited utility'” and, consequently, “ ‘the unavoidable fact is that each new",
"with substantial independent authority in the exercise of specific functions.” 448 F.2d 1067, 1073 (D.C.Cir. 1971); see also Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). In a different case more factually similar to this one, the D.C. Circuit emphasized the second of the two factors, and consequently found the Federal Home Loan Mortgage Corporation (“the Corporation”), to be an “agency” subject to the Privacy Act. Rocap v. Indiek, 539 F.2d 174, 176-77 (D.C.Cir. 1976). In holding that FOIA’s definition of agency applied to “hybrid governmental/private entities”, the Rocap Court found it compelling that, not only did the Corporation have a Federal Charter, but also was subject to “substantial federal control over its day-today operations.” Id. at 177. In the situation of a hybrid governmental/private entity, the court concluded, the proper inquiry to be made in determining if an entity constitutes an agency under FOIA and the Privacy Act is the amount of federal control. In making this determination, the Rocap Court engaged in the following analysis: The organizational structure of the Corporation exhibits many characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated as an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes of [its enabling act.]” (citation omitted). Rocap v. Indiek, 539 F.2d at 176. Under Rocap and its progeny, it is unnecessary to determine whether the Smithsonian is a government controlled corporation, a government corporation, or some other kind of establishment in the executive branch of the government because “regardless of its label,” it is the “threshold showing of substantial federal control or supervision” that “is required before an entity",
"of numerous entities, they have not developed any uniform test for making such a determination. See, generally, Richard P. Shafer, Annotation: The Meaning of the Term “Agency” for Purposes of the Freedom of Information Act, 57 AL.R.Fed. 295 (1994). Some courts, however, have enunciated that two factors are relevant to the determination of agency status: (1) whether the entity has “independent decisional authority”, and (2) whether the entity is subject to “day-to-day federal control”. Public Citizen Health Research Group v. Department of Health, Education and Welfare, 668 F.2d 537, 541 (D.C.Cir.1981), citing Washington Research Project, Inc. v. HEW, 504 F.2d 238 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). In some cases, the Court of Appeals for the D.C. Circuit has focused primarily on the first of the two factors above, and engaged in a “functional analysis”. For example, in Soucie v. David, the court conceded that the APA’s statutory definition of “agency” is not “entirely clear,” but concluded that the APA “apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions.” 448 F.2d 1067, 1073 (D.C.Cir. 1971); see also Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). In a different case more factually similar to this one, the D.C. Circuit emphasized the second of the two factors, and consequently found the Federal Home Loan Mortgage Corporation (“the Corporation”), to be an “agency” subject to the Privacy Act. Rocap v. Indiek, 539 F.2d 174, 176-77 (D.C.Cir. 1976). In holding that FOIA’s definition of agency applied to “hybrid governmental/private entities”, the Rocap Court found it compelling that, not only did the Corporation have a Federal Charter, but also was subject to “substantial federal control over its day-today operations.” Id. at 177. In the situation of a hybrid governmental/private entity, the court concluded, the proper inquiry to be made in determining if an entity constitutes an agency under FOIA and the Privacy Act is the amount of federal control. In making this determination, the Rocap Court engaged in the following analysis: The organizational structure of the Corporation exhibits many",
"we did not apply Soucie’s sole function test. Nevertheless, we still employed a functionalist framework, holding that the important Consideration regarding agency status was whether the relevant entity had “any authority in law to make decisions.” Id. at 248. As the IRGs made only recommendations, not final decisions, we found them not to be agencies. Subsequent to the 1974 amendments, we have had the opportunity to return to this issue. In Rocap v. Indiek, we held that the Federal Home Loan Mortgage Company (“FHMLC”) was a governmental controlled corporation under FOIA’s definition of agency. 539 F.2d 174, 180 (D.C.Cir.1976). While we noted that the presence of a federal charter was not dispositive regarding whether the FHMLC was a government controlled corporation, the FHMLC was “subject to such substantial.federal control over its day-to-day operations” that it fell under FOIA. Id. at 177. We rejected the FHMLC’s argument that an entity had to receive federal funds to be an agency because several agencies exist under the Act receiving no appropriated funds. Likewise, we dismissed the FHMLC’s contention that Civil Service Commission jurisdiction is a prerequisite to agency status, as many recognized agencies fall outside such jurisdiction. Id. at 179. We have also had recent occasion to apply a functional approach to an entity not within the President’s Executive Office, the Defense Nuclear Facilities Safety Board, although the approach was not controlling in that decision. In Energy Research Found., we held that the Board was an agency under FOIA. 917 F.2d at 584-85. While specifically disclaiming reliance on Soucie’s sole function test becáuse the Board was not within the President’s Executive Office, we concluded that even under the Soucie test, the Board was an agency. The Board “eonduct[ed] investigations, which has long been recognized as an incident of legislative power delegated to agencies by Congress.” Id. at 584 (internal quotations omitted). The Board also formally evaluated the Energy Department’s standards relating to defense nuclear facilities. Plaintiff presents a litany of arguments in support of her position that the Smithsonian is an agency both as an independent establishment and a government controlled corporation. We",
"was plainly a state agency, the plaintiffs argued that because it received federal funds through Medicaid “and Medicaid’s pervasive statutory and regulatory scheme necessarily subjected] the DHS” to the provisions of the FOIA. Id. at 1373. The court, however, concluded that DHS was not an “agency” within the meaning of FOIA. In so doing, it rejected plaintiffs’ argument that the use of federal funds pursuant to federal regulations transformed DHS into a federal agency: Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. Id. at 1373-74. Thus, because plaintiffs did not contend that the federal government exercised the “ ‘extensive, detailed and virtually day-to-day supervision’ over the program that is needed to characterize the state bodies as federal agencies,” the court affirmed the district court’s dismissal of the claim. Id., quoting Forsham v. Harris, 445 U.S. 169, 180, 100 S.Ct. 977, 984, 63 L.Ed.2d 293 (1980); see also Public Citizen Health Research Group v. Dept. of Health, Education and Welfare, 668 F.2d 537 (D.C.Cir.1981) (PSROs, privately incorporated organizations that used federal funds and operated pursuant to federal regulations, were not “agencies” within meaning of FOIA). The IHFA bears many similarities to the DHS. Both are creatures of state law. Both must meet certain statutory requirements set out by the federal government, but federal control over their functions is limited to oversight of federal funds. As Convalescent Hospital makes clear, however, the mere fact that an entity receives federal funds and is regulated to some extent by federal regulations does not bring it within the reaches of FOIA. The Court therefore finds that the IHFA does not fall within the purview of FOIA and, accordingly, plaintiffs’ motion to dismiss the federal FOIA claim is granted. E. This Court Lacks Subject Matter Jurisdiction over the Remaining State Law Claims. The Court’s jurisdiction over plaintiffs’ federal",
"any further indication of how state and local “agencies” are to be identified. Thus, most of the case law which interprets the scope of sections 552a, 552(e), and 551(1) does not differentiate between the potentially varied considerations of what constitutes a state or local “agency.” Defendants rely heavily on the FOIA and APA case law to support their argument that “[t]he Privacy Act requires a threshold showing of substantial governmental control or supervision over the day-to-day operations of an organization to result in ‘agency’ classification.” Def. Brief at 12-13. See Def. Brief at 14-18. Defendants are correct; the FOIA cases focus on ultimate government control. An entity has FOIA or Privacy Act agency status if the government is involved in and/or has authority over decisions affecting the ongoing, daily operations of the entity. See Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976) (FHLMC is a FOIA agency based on substantial federal control over day-to-day operations); Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248, 245-46 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975) (organization’s authority to make final decisions is indicative of government-controlled, FOIA agency status, although “each arrangement must be examined anew and in its own context”). Plaintiffs generally insist that because FOIA’s section 552(e) is narrower than the Privacy Act in the sense that it does not apply to state and local agencies, the precedential value of the FOIA cases is diminished. Pit. Reply Brief at 2. Indeed, while the FOIA cases are certainly relevant given the Privacy Act’s cross-reference to 552(e), the case law focuses on federal, FOIA scenarios rather than on factors relevant to identification of covered state and local agencies. Plaintiffs’ argument holds as a general matter of interpretation, but it is in some sense academic. Plaintiffs cannot and do not dispute that the relevant inquiry is the nature and extent of government control of and involvement in Rutgers’ operations. While distancing themselves from the defendants’ FOIA cases, plaintiffs agree that government control is the relevant inquiry and suggest that the same type of factors or criteria at issue",
"finding Freddie Mac a governmental entity are not relevant because both were decided before FIRREA restructured Freddie Mac and neither squarely addressed whether Freddie Mac was subject to constitutional provisions such as the Fifth Amendment. Rocap v. Indiek, 539 F.2d 174, 176 (D.C.Cir.1976) (Freddie Mac was a “Government controlled corporation” under 5 U.S.C. § 552(e) and subject to FOIA because corporation’s board “is composed of the three members of the Federal Home Loan Bank Board ... and its capital stock is non-voting and held solely by the twelve Federal Home Loan Banks”); McCauley v. Thygerson, 732 F.2d 978, 982 (D.C.Cir.1984) (Freddie Mac’s status for purpose of employment relations “ultimately turnfed] ... on functional considerations of the effect that application of broad notions of promissory estoppel would have in light of the congressional intent expressed in FHLMC’s enabling act”). Even the Seventh Circuit’s opinion in Mendrala is of little relevance, since its findings that Freddie Mac both was and was not a federal agency or instrumentality were expressly confined to the particular contexts of the Federal Tort Claims Act and the Merrill doctrine, respectively. Moreover, two district courts, in addition to the one that decided this case, have expressly found that Freddie Mac’s termination of a seller/servicer was not subject to the Fifth Amendment. Liberty Mortgage Banking, Ltd. v. Federal Home Loan Mortgage Corp., 822 F.Supp. 956, 958-60 (E.D.N.Y.1993) (Freddie Mac was private corporation rather than government agency; decision to terminate plaintiff as seller/servieer could not be deemed government action); FBMC Fin., Inc. v. Federal Home Loan Mortgage Corp., No. 91 cv. 1226-R (S.D.Cal.Sept. 26, 1991) (discussed in Liberty Mortgage, 822 F.Supp. at 960). In addition, two other circuits have held that the Federal National Mortgage Association (“Fannie Mae”) is not subject to the Fifth Amendment Due Process Clause. Northrip v. Federal National Mortgage Ass'n, 527 F.2d 23, 30 (6th Cir.1975) (corporation was federally chartered and regulated but stock traded on New York Stock Exchange and only 5 of 15 directors were appointed by President); Roberts v. Cameron-Brown Co., 556 F.2d 356, 359 (5th Cir.1977) (relying on Northrip and holding that",
"to secure such information from possibly unwilling official hands.” Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The Corporation’s “openness” therefore cannot relieve it from its obligation to publish and index those materials required by the Freedom of Information Act. IV. CONCLUSION The organizational structure of the Corporation exhibits many characteristics similar to those of other governmental entities subject to the Freedom of Information Act. It is federally chartered, its Board of Directors is Presidentially appointed, it is subject to close governmental supervision and control over its business transactions, and to federal audit and reporting requirements. In addition, the Corporation is expressly designated an “agency,” and its employees are officers and employees of the United States, for a number of purposes. Like other agencies, it is empowered “to make and enforce such bylaws, rules, and regulations as may be necessary or appropriate to carry out the purposes or provisions of [its enabling act].” 12 U.S.C. § 1452(b)(3). The existence of any one of these characteristics, by itself, would not be sufficient to trigger applicability of section 552(e), but these are the kinds of indicia of federal involvement and control which courts have generally relied upon in determining whether an entity is a federal agency. Taken together, we believe that the Corporation s federal characteristics dictate the conclusion that it is the kind of federally created and controlled entity which Congress sought to bring within the scope of the “Government controlled corporation” language of 5 U.S.C. § 552(e). For the above reasons, we conclude that appellant Federal Home Loan Mortgage Corporation is an “agency” for the purposes of the Freedom of Information Act. The order of the district court is hereby affirmed. So ordered. . In general terms, section 552(a)(1) requires any federal “agency” to publish in the Federal Register general descriptions of its organization, decisional procedures, substantive rules and policy. Section 552(a)(2) requires the agency to make available for public inspection and copying its opinions, statements of policy, interpretations, administrative staff manuals and instructions. . Rocap alleged in his Complaint that,"
] |
"marks and citation omitted). . 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960) (invalidating defendant’s Hobbs Act conviction where indictment charged interference with interstate commerce of sand but trial court permitted conviction based on interference with interstate commerce of steel); see also Hoover, 467 F.3d at 502 (reversing conviction for making false statement where indictment charged defendant lied to federal agent by stating only one person told him about a ""double flooring” problem when more than one person had actually done so, but trial judge instructed that defendant could be found guilty merely if he knew his statement was false rather than if more than one person told defendant about the problem). . REDACTED . Id. . 143 F.3d 923, 929 (5th Cir.1998) (addressing comment by witness about the defendant’s failure to testify). . 7 F.3d 1171, 1179 (5th Cir.1993) (internal quotation marks and citation omitted). . See Johnston, 127 F.3d at 398 (subjecting improper comments to harmless error analysis and considering the prejudicial effect of comments, the efficacy of curative instructions, and strength of evidence of guilt). . 118 F.3d 318, 325 (5th Cir.1997) (holding remark ""was an isolated comment, which did not 'strike at the jugular’ of the defense, and which the jury was immediately instructed to disregard""). . 158 F.3d 251, 260 (5th Cir.1998). . 747 F.2d 930, 942-43 (5th Cir.1984) (""That the jury was not inflamed is demonstrated by the"
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[
"the prosecutor’s references to the defendants’ failure to testify and their improper questioning of various law enforcement officials constitute serious misconduct, we must now determine whether those tactics east serious doubt upon the correctness of the jury’s verdict. Otherwise, the errors are harmless and do not justify reversal. United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994), cert. denied, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.Ed.2d 730 (1995). In examining the effect of the prosecutors’ impermissible comments, we consider three factors: “the magnitude of the prejudicial effect of the remark, the efficacy of any cautionary instruction, and the strength of the evidence of the defendant’s guilt.” United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir.1994), cert. denied sub. nom., 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). The prejudicial effect of the comment and gesture during Gatterson’s testimony was slight. The question was asked during the second week of a trial that lasted twenty-nine (29) days extending over a period of approxi mately eight weeks. The prejudice was also lessened because the question was asked during the government’s case-in-ehief. At that time the jury did not know that the defendants would not testify and would therefore be less inclined to construe the question as a comment on the defendants’ silence. The judge’s timely and thorough jury instruction further mitigated the effect of that improper comment. The prosecutor’s comment during closing argument was more prejudicial. It was a direct comment on defendants’ failure to testify, and it occurred only one day before the jury began deliberations. The prejudice was mitigated somewhat by the trial judge’s instruction prior to the commencement of jury deliberations that: The law does not require a defendant to prove his innocence or to produce any evidence at all and no inference whatever may be drawn from the election of a defendant not to testify. Yesterday morning when [the prosecutor] was giving — going over some of the instructions, she expected that I would give and remarked on one of these passages and [defense counsel] moved for a mistrial and I denied that"
] |
[
"the defendant’s right under the Fifth Amendment to a grand jury indictment.”). Stated another way, Hoover argues that while the indictment required the government to prove that he knew his statement was false because “more than one individual told him about the double flooring,” the court’s jury instruction allowed the government to obtain a conviction if it proved he knew his statement was false even if he knew it for some reason other than that more than one individual had told him about the double flooring of vehicles. Because Hoover objected at trial, we review the court’s jury instructions for an abuse of discretion. See United States v. Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). “The Fifth Amendment provides for criminal prosecution only on the basis of a grand jury indictment.” United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993); see U.S. Const, amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury .... ”). “It is a long-established principle of our criminal justice system that, after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself.” United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). This court has held that “[a]n implicit or constructive amendment ... occurs when it permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defendant on a materially different theory or set of facts than that with which she was charged.” United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005). This court has addressed constructive amendment issues on numerous occasions. See, e.g., United States v. Chambers, 408 F.3d 237, 247 (5th Cir. 2005) (reversing a conviction for being a felon in possession of ammunition, where the indictment charged possession of whole ammunition “in or affecting commerce” and the jury was allowed to convict based on the travel of component parts, rather than the whole, of",
"modify any element of the offense, the government contends that Hoover’s indictment was not constructively amended. In accordance with the Supreme Court’s decision in Stirone v. United States, when the government chooses to specifically charge the manner in which the defendant’s statement is false, the government should be required to prove that it is untruthful for that reason. 361 U.S. at 219, 80 S.Ct. 270. To allow otherwise would permit the jury to convict the defendant on a basis broader than that charged in the grand jury’s indictment. Hoover may have reasonably relied on the indictment and only prepared a defense that only one person had told him about the double flooring of vehicles, and, therefore, he did not knowingly make a false statement. However, based on the trial court’s jury instructions, the government could have sustained a conviction by showing that Hoover knew that his statement was false for any reason, rather than being limited to the reason provided in the indictment. Importantly, under the language in the jury instructions, the government only needed to prove that Hoover knew that more than one person had complained about double flooring, not that he knew that more than one person complained to him. For instance, the government could have shown that one person had told Hoover that two people had complained or that Hoover read two separate complaints. Therefore, we conclude that because the indictment charged Hoover with making one false statement, and the jury instructions allowed the jury to convict him for making a different false statement, the trial court constructively amended Hoover’s indictment. “Where the indictment has been constructively amended, by prosecution evidence wholly outside the proper scope of the indictment and/or by a jury charge authorizing a verdict of guilty thereon, but there is evidence within the proper scope of the indictment which supports the verdict, then the normal remedy is to reverse for a new trial.” Chambers, 408 F.3d at 247 n. 6; see Doucet, 994 F.2d at 172 (“Constructive amendment requires reversal of the conviction.”). Accordingly, we reverse Hoover’s false statement conviction and remand for further",
"indictment sufficiently stated the falsity and materiality elements under § 1001 and provided Hoover with notice of the offense charged. See United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th Cir. 2001) (stating that “the core idea underlying an indictment is notification”). We do note that this analysis is made under the plain-error standard of review. B. Constructive Amendment of the Indictment in the Jury Instructions Having determined that the indictment was sufficient under a plainly erroneous standard, we next consider whether the district court erred when it instructed the jury that it could convict Hoover if it found that he “stated that only one person had complained of ‘double flooring’ of vehicles and that such statement was intentionally false.” Hoover contends that by replacing the “truth and in fact” clause of the indictment with a generic intent instruction, the district court constructively amended the indictment and, in turn, violated his Fifth Amendment right to a grand jury indictment. See United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003) (“A constructive amendment violates the defendant’s right under the Fifth Amendment to a grand jury indictment.”). Stated another way, Hoover argues that while the indictment required the government to prove that he knew his statement was false because “more than one individual told him about the double flooring,” the court’s jury instruction allowed the government to obtain a conviction if it proved he knew his statement was false even if he knew it for some reason other than that more than one individual had told him about the double flooring of vehicles. Because Hoover objected at trial, we review the court’s jury instructions for an abuse of discretion. See United States v. Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). “The Fifth Amendment provides for criminal prosecution only on the basis of a grand jury indictment.” United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993); see U.S. Const, amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury .... ”). “It",
"PER CURIAM: On petition for rehearing, Ylda reasserts his contention that the trial judge’s jury instruction impermissibly broadened the elements of the offense charged in the indictment, thus constituting reversible error. Having again fully reviewed the evidence, we find no possibility that it permitted the jury to convict Ylda based on the extraneous elements of the offense interjected by the trial court’s charge. Therefore, the jury instruction, though improper, was harmless beyond a reasonable doubt and did not constitute reversible error. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court reversed a conviction for obstruction of interstate commerce under the Hobbs Act, 18 U.S.C. § 1951, because the indictment was improperly amended and the offense charged impermissibly enlarged by the trial court’s jury instructions. Although the indictment charged only an interference with sand imports, the trial judge, having first erroneously permitted the government to offer evidence regarding an interference with the exportation of steel, committed reversible error by instructing the jury that they could base their verdict on a finding that the defendant caused an interference with steel exports, a charge not alleged in the indictment. “[Bjecause of the [trial] court’s admission of evidence ... under its charge [the interference with steel exports] might have been the basis upon which the trial jury convicted [the defendant]. If so, he was convicted on a charge the grand jury never made against him.” Stirone v. United States, 361 U.S. at 219, 80 S.Ct. at 274, 4 L.Ed.2d at 258. Accordingly, to determine whether a trial court’s jury instruction has impermissibly altered the offense alleged in the indictment thus requiring reversal, the “crucial question ... is whether [the defendant] was convicted of an offense not charged in the indictment.” Stirone v. United States, 361 U.S. at 213, 80 S.Ct. at 271, 4 L.Ed.2d at 254. See Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). We have consistently adhered to both the holding and the reasoning articulated in Stirone. In United States v. Bizzard, 615 F.2d 1080 (5th Cir. 1980),",
"F.3d 605, 614 (7th Cir.2006). . 467 F.3d 496, 500 (5th Cir.2006) (internal quotation marks and citation omitted). . 321 F.3d 517, 521 (5th Cir.2003). . Hoover, 467 F.3d at 500-01 (internal quotation marks and citation omitted). . 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960) (invalidating defendant’s Hobbs Act conviction where indictment charged interference with interstate commerce of sand but trial court permitted conviction based on interference with interstate commerce of steel); see also Hoover, 467 F.3d at 502 (reversing conviction for making false statement where indictment charged defendant lied to federal agent by stating only one person told him about a \"double flooring” problem when more than one person had actually done so, but trial judge instructed that defendant could be found guilty merely if he knew his statement was false rather than if more than one person told defendant about the problem). . See Hoover, 467 F.3d at 500-01. . 127 F.3d 380, 396 (5th Cir.1997). . Id. . 143 F.3d 923, 929 (5th Cir.1998) (addressing comment by witness about the defendant’s failure to testify). . 7 F.3d 1171, 1179 (5th Cir.1993) (internal quotation marks and citation omitted). . See Johnston, 127 F.3d at 398 (subjecting improper comments to harmless error analysis and considering the prejudicial effect of comments, the efficacy of curative instructions, and strength of evidence of guilt). . 118 F.3d 318, 325 (5th Cir.1997) (holding remark \"was an isolated comment, which did not 'strike at the jugular’ of the defense, and which the jury was immediately instructed to disregard\"). . 158 F.3d 251, 260 (5th Cir.1998). . 747 F.2d 930, 942-43 (5th Cir.1984) (\"That the jury was not inflamed is demonstrated by the fact that one defendant was acquitted on all charges and three other defendants acquitted on at least one charge. This indicates to us that the jury carefully weighed the evidence against each defendant, acquitting when the evidence was insufficient.”). . 343 F.3d 423, 439 (5th Cir.2003). . 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) (stating that test for mental competency requires that",
"849 (1887); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984). Such amendments need not be explicit. An implied or constructive amendment also constitutes reversible error. Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74, Young, 730 F.2d at 223. Constructive amendments are reversible per se, as contrasted with varianc es between the indictment and proof that are evaluated under the harmless error doctrine. See Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74; Young, 730 F.2d at 223. “The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.” Young, 730 F.2d at 223 (citations omitted). The question we must decide is: was the jury permitted to convict the defendant upon a “set of facts distinctly different from that set forth in the indictment”? Id. at 223 (citations omitted). See also Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74. In Stirone, the defendant was indicted for a Hobbs Act violation for obstructing an interstate shipment of sand. The evidence adduced and the instructions to the jury, however, allowed the jury to base a guilty verdict on a finding that the defendant had interferred with a shipment of steel. The Court held: [Tjhere are two essential elements of a Hobbs Act crime: interference with commerce, and extortion.... The charges that interstate commerce is affected is critical since the Federal Government’s jurisdiction of this crime rests only on that influence. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another Stirone, 361 U.S. at 218, 80 S.Ct. at 274. In today’s case, the trial court permitted the government to argue that the jury could convict Chandler under the indictment charging her with embezzling $20,858.61 if the jury found that Chandler had taken smaller sums totalling $500 over a long period of time. When defense counsel objected, the court merely reminded the jury that counsel’s argument was not evidence and",
"Cir.2014). . See 28 U.S.C. § 1441(a). . See id. § 1441(b)(2). . Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc), cert. denied 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005) (internal quotation marks and citation omitted). . Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir.2007). . Smallwood, 385 F.3d at 573. . Id. (internal quotation marks and citation omitted). . Id. . Id. . Id. . Reece v. U.S. Bank Nat’l Ass'n, 762 F.3d 422, 424 (5th Cir.2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (U.S.2007)). This standard' is derived from Federal Rule of Civil Procedure 8. Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (\"The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ ”). . 125 Fed.Appx. 533 (5th Cir.2005) (unpulished). . Id. at 537 (‘‘[W]e must determine whether what plaintiffs did plead was sufficient____ See Lovick v. Ritemoney Ltd., 378 F.3d 433, 438 (5th Cir.2004) (stating that, under Rule 8(a), a complaint suffices if it gives the defendant ‘fair \"notice of what the plaintiff’s claim is and the grounds upon which it rests’) (internal quotation marks omitted); Penley v. Westbrook, 146 S.W.3d 220, 232 (Tex.Ct.App.2004) ('Texas follows a 'fair notice’ pleading standard, which looks to whether the opposing party, can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant at trial.’)”). . Id. ■ . 509 Fed.Appx. 340 (5th Cir.2013) (unpublished). . 544 Fed.Appx. 535 (5th Cir.2013) (unpublished). . Id. at 538. . King v. Jarrett, No. A-15-CV-00491-LY-ML, 2015 WL 5794021, at *9 (W.D.Tex. Oct. 1, 2015); see Holmes v. Acceptance Cas. Ins. Co., 942 F.Supp.2d 637, 645 (E.D.Tex.2013) (\"Based on the court’s research, the United States Court of Appeals for the Fifth Circuit has not resolved in a published decision the issue of whether to apply",
"S.Ct. 303, 66 L.Ed. 619; United States v. Miller, 2 Cir., 246 F.2d 486, 488-489, certiorari denied 1957, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261. . Cf. United States v. Bitz, 2 Cir., 1960, 282 F.2d 46. . Where a violation of a statute is charged, an indictment in the language of the statute is ordinarily sufficient, an exception being where the statute includes by implication an essential element of the offense. See United States v. Carll, 1881, 105 U.S. 611, 26 L.Ed. 1135; United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491; United States v. Williams, 5 Cir., 203 F.2d 572, certiorari denied 1953, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347; United States v. Achtner, 2 Cir., 1944, 144 F.2d 49. However, where the statute is couched in general terms, the indictment must particularize the offense sufficiently to inform the defendant of the accusation which he must meet. United States v. Hess, 1888, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516; United States v. Simmons, 1877, 96 U.S. 360, 24 L.Ed. 819. . See United States v. Debrow, 1953, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92; Singer v. United States, 3 Cir., 1932, 58 F.2d 74 (per curiam); Wilson v. United States, 2 Cir., 275 F. 307, certiorari denied 1921, 257 U.S. 649, 42 S. Ct. 57, 66 L.Ed. 416; United States v. Peelle, D.C.E.D.N.Y.1954, 122 F.Supp. 923. Cf. United States v. Shindler, D.C. S.D.N.Y.1952, 13 F.R.D. 292. . 1 CCH 1960 Fed.Sec.L.Rep. par. 7123. . Boyce Motor Lines v. United States, 1952, 342 U.S. 337, 343, 72 S.Ct. 329, 96 L.Ed. 367; Universal Milk Bottle Service v. United States, 6 Cir., 1951, 188 F.2d 959, 962-963 (per curiam). . The matter of materiality may ultimately resolve itself into a question of law or one of fact, or a mixed question of law and fact. Cf. United States v. Shindler, D.C.S.D.N.Y.1959, 173 F.Supp. 393, 395; United States v. Stark, D.C.D.Md.1955, 131 F.Supp. 190, 208. . See Edwards v. United States, 1941, 312 U.S. 473, 483, 61 S.Ct. 669, 85 L.Ed.",
"any errors. The Government also asserts that comments on excluded evidence were addressed to appellants’ own comments on it, that appellants, not the Government, misstated evidence, that the prosecutor did not express personal beliefs, and that the prosecutor did not attack appellants or their counsel. This court has developed a considerable body of law governing comments by the prosecutor on defendant’s failure to testify. The history of that development is recounted in United States v. Flannery, 451 F.2d 880, 881-82 (1st Cir. 1971), which supplies us with the still-controlling rule: [W]hen it is apparent on the record that there was no one other than himself whom the defendant could have called to contradict the testimony, we shall not endeavor to weigh prejudice, but shall rule [descriptions of evidence as “uncontradicted”] prejudicial as [a] matter of law, with a single exception. If the court interrupts the argument, instructs the jury fully on the defendant’s right not to testify and the jury’s obligation not to draw unfavorable inferences and; in addition, states to the jury that the U.S. Attorney was guilty of misconduct, we may find no prejudice’; otherwise we will reverse. Id. at 882. This rule is more narrow than appellants would like. In Flannery and its precursors, such as Rodrigiiez-Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969), cert. denied, 414 U.S. 869, 94 S.Ct. 180, 38 L.Ed.2d 115 (1973), and Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965), we were faced with situations where the prosecutor had referred explicitly to certain evidence as uncontradicted when the only source of contradiction was the defendant, who has a fifth amendment right not to take the stand. Such comments on defendant’s failure to testify, absent the curative instruction outlined in Flannery, were, we held, reversible error. Our subsequent decisions have turned on a careful examination of the prosecutor’s language and the evidence in the case. Where we have found the prosecutor’s argument not improper, we have found that the comment was “sufficiently circumscribed and did not necessarily implicate appellant’s assertion of his fifth amendment right.” United States",
"with a statement by an alleged accomplice implicating the defendant in an offense. The agent testified that while this damaging statement was being repeated to the defendant, the defendant nodded his head “up and down,” though at the end of the statement he denied complicity. This court ruled that, as a matter of law, the defendant’s concurrence in the damaging statement was too ambiguous, too lacking in evidentiary weight, to be properly submitted to the jury. See also Kelley v. United States, 99 U.S.App.D.C. 13, 236 F.2d 746 (1956); United States v. Gross, 276 F.2d 816 (2d Cir.), cert. denied, 366 U.S. 935, 81 S.Ct. 1659, 6 L.Ed.2d 847 (1960); Arpan v. United States, 260 F.2d 649 (8th Cir. 1958). . McCormick, Evidence § 246, at 527 (1954); Model Code of Evidence, Rule 507 and commentary. Compare State v. Davis, 61 N.J.Super. 536, 161 A.2d 552 (1960) (There must be “understanding of the incriminating meaning” of the attributed admission, 161 A.2d at 558) ; State v. Sweeny, 77 N.J.Super. 512, 187 A.2d 39 (1962); Commonwealth v. Sazama, 339 Mass. 154, 158 N.E.2d 313 (1959); Commonwealth v. Burke, 339 Mass. 521, 159 N.E.2d 856, 77 A.L.R.2d 451 (1959); People v. Briggs, 58 Cal.2d 385, 24 Cal. Rptr. 417, 374 P.2d 257 (1962). . See Dickerson v. United States, 62 App.D.C. 191, 193-194, 65 F.2d 824, 826-827 (1933); Sandez v. United States, 239 F.2d 239, 250 (9th Cir. 1956); State v. Bemis, 33 Cal.2d 395, 202 P.2d 82 (1949) (Traynor, J.); Note: Silence as Incrimination in Federal Courts, 40 Minn. L.Rev. 598, 605 (1956). . Quinn v. United States, 91 U.S.App.D.C. 344, 348, 203 F.2d 20, 24 (1952), rev’d on other grounds, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955). Cf. McNabb v. United States, 318 U.S. 332, 338 n. 5, 63 S.Ct. 608, 87 L.Ed. 819 (1943). . See Stewart v. United States, 101 U.S. App.D.C. 51, 56, 247 F.2d 42, 47 (1957) (en banc); Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 375 (1958); Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632 (1957); Barry v."
] |
Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm’n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see REDACTED d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States
|
[
"their two-year exile would cause an exceptional hardship on their two children who, because of their birth in this country, are United States citizens. The waiver was denied when the Immigration Service determined that no extraordinary hardship existed. Petitioners are further handicapped in their efforts to remain in this country by the provisions of 8 U.S.C.A. § 1151(b), which allows the admission as non-quota immigrants of immediate rel atives of United States citizens, but provides that in the case of parents, the citizen child who can confer this privilege must be twenty-one years of age. Since the Perdido children are one and two years old, the Perdidos cannot benefit from the immediate relative provisions of § 1151(b). The petitioners contend that as applied to them the two-year foreign residence requirement of § 1182(e) is unconstitutional. Their argument is that a deportation order against the parents of a citizen child deprives the child of a constitutional right. This argument has been raised and rejected on other occasions. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Mendez v. Major, 8 Cir. 1965, 340 F.2d 128. It is undisputed that the Perdido children have every right to remain in this country. The parents, however, enjoy no such right. They entered this country under a special program which requires a two-year absence before a participant is eligible for permanent residence. Entry into this country by aliens has always been a matter of Congressional discretion. Harisiades v. Shaugh-nessy, supra. The petitioners here took advantage of that discretion in order to come here for educational purposes. They cannot now complain because the privilege exception under which they arrived also requires that they depart for two years. Nor can they complain because the discretionary waiver of this requirement provided under § 1182(e) was denied. As the Supreme Court said in Hintopoulos, supra: “Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites"
] |
[
"an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil Service Comm’n, D.P.R., 1974, 376 F.Supp. 361, 366 (three-judge court), Congress has the power to define reasonable prerequisites to an alien’s exercise of the rights and duties of citizenship. We be lieve that preventing resident aliens from serving as jurors is rationally related to Congress’ legitimate power to define the extent of resident aliens’ rights prior to obtaining citizenship. Recently, the Supreme Court stated that a state may deny to aliens the opportunity to participate in the electoral process because of a “State’s historical power to exclude aliens from participation in its democratic political institutions” and its “constitutional responsibility for the establishment and operation of its own government,” Sugarman v. Dougall, supra, 413 U.S. at 648, 93 S.Ct. at 2850-2851. If a state has the inherent power to deprive aliens of the right to vote, Congress, with its broad powers in dealing with aliens, may validly require citizenship as a prerequisite to service on federal juries. Cf. Ramos v. United States Civil Service Comm’n, supra, 376 F.Supp. at 367 n. 9; Perkins v. Smith, supra, 370 F.Supp. at 139 n. 1 (concurring opinion). Since Congress may validly",
"to determine whether a more probing level of review would be appropriate. Article I, § 8, cl. 4, of the Constitution provides: “The Congress shall have Power... To establish an uniform Rule of Naturalization.” The Federal Government has “broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.” Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 419 (1948). See Graham v. Richardson, 403 U. S. 365, 378 (1971) (regulation of aliens is “constitutionally entrusted to the Federal Government”). The Court has traditionally shown great deference to federal authority over immigration and to federal classifications based upon alienage. See, e. g., Fiallo v. Bell, 430 U. S. 787, 792 (1977) (“it is important to underscore the limited scope of judicial inquiry into immigration legislation”); Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952) (“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”). Indeed, even equal protection analysis in this area is based to a large extent on an underlying theme of pre-emption and exclusive federal power over immigration. See Takahashi v. Fish & Game Comm’n, supra, at 420 (the Federal Government has admitted resident aliens to the country “on an equality of legal privileges with all citizens under nondiscriminatory laws” and the States may not alter the terms of this admission). Compare Graham v. Richardson, supra, and Sugarman v. Dougall, 413 U. S. 634 (1973), with Mathews v. Diaz, 426 U. S. 67 (1976), and Hampton v. Mow Sun Wong, 426 U. S. 88 (1976). Given that the States’ power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership",
"77 L.Ed.2d 317 (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Wfhile an alien seeking initial admission to the United States has no constitutional rights regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court has held that a permanent resident alien “continuously present” in the United States has a right to procedural due process in any proceedings to remove that alien from the country. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103 S.Ct. 321. At the core of the alien’s due process rights is the right to notice of the nature of the charges and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98, 73 S.Ct. 472, 97 L.Ed. 576 (1953). Removal proceedings under the INA are not criminal proceedings and are not summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th Cir.1997). Instead, removal proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien has the right to notice, the opportunity to present evidence and cross examine witnesses, and the right to do so with the assistance of counsel at a hearing before an immigration judge. Given these procedural safeguards, no judicial review is required to provide the process due to a permanent resident alien facing removal. See, e.g., Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109 F.3d 1185, 1196-97 (7th Cir.), cert. denied sub nom, Katsoulis v.",
"satisfied that the Government has a compelling state interest sufficient to uphold the statute as constitutional, there is another reason why aliens may be excluded from federal juries. Under Article I, section 8, clause 4 of the Constitution, Congress is granted the power “to establish an uniform Rule of Naturalization.” This specific grant of authority vests in Congress the plenary, unqualified power to determine which aliens shall be admitted to this country, the period they may remain, and the terms and conditions of their naturalization. Graham v. Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm’n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil Service Comm’n, D.P.R., 1974, 376 F.Supp. 361, 366 (three-judge court), Congress has",
"no compelling justification. In the court’s view, however, this mode of analysis is incorrect. The Supreme Court has consistently pointed out that Congressional power — and, by a proper delegation, Executive power — respecting aliens is quite broad, almost plenary. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1951); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1949); Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1951). This extensive power is based in part upon the following considerations enunciated by Mr. Justice Jackson: It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. [citations omitted]. Harisiades v. Shaughnessy, 342 U.S. at 588-589, 72 S.Ct. at 519. The broad power over aliens also stems from Article 1, § 8, Cl. 4 of the Constitution, wherein Congress is given the exclusive power, “To establish a uniform rule of naturalization”, and from Article 1, § 8, Cl. 18, wherein Congress is empowered to make all laws which are “necessary and proper” for carrying into execution its enumerated powers. Moreover, the plenary power of the Congress with respect to aliens is further illustrated by those Supreme Court cases which have struck down state statutes respecting aliens because these statutes conflicted with the federal power to regulate immigration and naturalization. E. g., Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1947); and cases cited therein at 334 U.S. 419, n. 6, 68 S.Ct. 1138. In the latter case, Mr. Justice Black spoke for seven members of the Court: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and",
"the Court stated that the government’s power to terminate its hospitality towards any class of aliens has been asserted and sustained as an essential element of international relations since the question first arose. Mr. Justice Frankfurter in his concurring opinion in Harisiades notes: But whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress. . . . But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens may be allowed to stay, are for Congress exclusively to determine even though such determination may be deemed to offend American traditions. ... (at page 597, 72 S.Ct. at page 523) It is firmly established that Congress has the power to exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to the country, establish regulations for sending out of the country such aliens as come here in violation of law and commit the enforcement of such provisions to the appropriate executive officers. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Carlson v. Landon, 342 U.S. 524; 72 S.Ct. 525, 96 L.Ed. 547 (1952); Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Uribe-Temblador v. Rosenberg, 423 F.2d 717 (9th Cir. 1970); Talanoa v. Immigration and Naturalization Service, 397 F.2d 196 (9th Cir. 1968). The Immigration and Nationality Act of 1952 originally provided in § 101(a) (27) (C) that a nonquota immigrant included: (C) an immigrant who was born in Canada, the Republic of Mexico, the Republic of Cuba, the Republic, of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, and the spouse or child of any such immigrant, if accompanying or following to join him; This section conferred a benefit on the majority of Western Hemisphere countries in",
"no alien so situated “can force us to admit him at all.” Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. The Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U. S. 698 (1893); Knauff v. Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife. That authorization, originally enacted in the Passport Act of 1918, continues in effect during the present emergency. Under it, the Attorney General, acting for the President, may shut out aliens whose “entry would be prejudicial to the interests of the United States.” And he may exclude without a hearing when the exclusion is based on confidential information the disclosure of which may be prejudicial to the public interest. The Attorney General in this case proceeded in accord with these provisions; he made the necessary determinations. and barred the alien from entering the United States. It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U. S. 86, 100-101 (1903); Wong Yang Sung v. McGrath, 339 U. S. 33, 49-50 (1950); Kwong Hai Chew v. Colding, 344 U. S. 590, 598 (1953). But an alien on the threshold of initial entry stands on a different footing: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Knauff v. Shaughnessy, supra, at 544; Ekiu v. United States, 142 U. S. 651, 660 (1892). And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case; “it is not within the",
"exclude aliens, to admit them only on such conditions as it seems fit to prescribe, and to expel those within its ■dominion is plenary. These powers inhere in its sovereignty and have been consistently recognized by the courts. Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146 (1892); Fok Young Yo v. United States, 185 U.S. 296, 22 S.Ct. 686, 46 L.Ed. 917 (1902) ; Kaoru Yamataya v. Fisher, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721 (1903) ; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952). In addition, Congress may designate such .agencies as it sees fit to carry out whatever policies of exclusion and expulsion it adopts and so long as such agencies do not transcend limits of authority or .abuse discretion reposed in them, their .judgment is not open to challenge or review by courts. Kaoru Yamataya v. Fisher, supra. In 1952, Congress en•acted the Immigration and Nationality Act (8 U.S.C. §§ 1101 et seq.), as a comprehensive, revised immigration, naturalization, and nationality code As an essential part of this legislative scheme, the Attorney General is given the responsibility of passing on the applications of aliens for the withholding or suspension of deportation. . In passing on such applications, the Attorney General must first make factual findings as to whether the statutory prerequisites of eligibility have been met. The correctness of the legal standards applied in making such factual determinations are fully reviewable in the courts. United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (1950); McLeod v. Peterson, 283 F.2d 180 (3d Cir. 1960); United States ex rel. Exarchou v. Murff, 265 F.2d 504 (2d Cir. 1959); Pagano v. Brownell, 227 F.2d 36 (D.C. Cir. 1955). Once the Attorney General finds that the alien is eligible for withholding or suspension of deportation, he must decide whether to exercise his discretion in the",
"affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Fong Yue Ting v. United States, 149 U. S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U. S. 651, 659-660; Fong Yue Ting v. United States, 149 U. S. 698, 713-714; Ludecke v. Watkins, 335 U. S. 160. Cf. Yamataya v. Fisher, 189 U. S. 86, 101. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e. g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. What was said in Lichter v. United States, 334 U. S. 742, 785, is equally appropriate here: “It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. . . . Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. ‘They",
"the control of another power.” Chae Chan Ping v. United States, 130 U. S. 581, 603-604 (1889). “The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively ... is settled by our previous ad judications.” Lem Moon Sing v. United States, 158 U. S. 538, 547 (1895). See also Fong Yue Ting v. United States, 149 U. S. 698, 711 (1893); Yamataya v. Fisher, 189 U. S. 86, 97-99 (1903); United States ex rel. Turner v. Williams, 194 U. S. 279, 289-290 (1904); Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 335-336 (1909); United States ex rel. Volpe v. Smith, 289 U. S. 422, 425 (1933). Since 1875, Congress has given “almost continuous attention ... to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control . . . .” Kleindienst v. Mandel, supra, at 761-762. It was only as the illegal entry of aliens multiplied that Congress addressed itself to enforcement mechanisms. In 1917, immigration authorities were authorized to board and search all conveyances by which aliens were being brought into the United States. Act of Feb. 5, 1917, § 16, 39 Stat. 886. This basic authority, substantially unchanged, is incorporated in 8 U. S. C. § 1225 (a). In 1946, it was represented to Congress that “[i]n the enforcement of the immigration laws it is at times desirable to stop and search vehicles within a reasonable distance from the boundaries of the United States and the legal right to do so should be conferred by law.” H. R. Rep. No. 186, 79th Cong., 1st Sess., 2 (1945). The House Committee on Immigration and Naturalization was “of the opinion that the legislation is highly desirable,” ibid., and its counterpart in the Senate, S. Rep. No. 632, 79th Cong., 1st Sess., 2 (1945), stated that “[t]here is no question but that this is a step in the right"
] |
"are binding on Debtor or his creditors, nor has the Court found that Debtor has satisfied all elements listed under § 1325(a). To the latter point, Creditor argues that cases addressing motions to dismiss based on a lack of good faith in filing the petition ""rely on whether a plan had already been confirmed, as opposed to the amount of time that had elapsed, in deciding whether to grant the motion to dismiss."" [Reply at 4 (citing In re Newman , 259 B.R. 914 (Bankr. M.D. Fla. 2001) ; Nicholes v. Johnny Appleseed (In re Nicholes) , 184 B.R. 82 (9th Cir. BAP 1995) ; In re Elstien , 238 B.R. 747, 754 (Bankr. N.D. Ill. 1999) ).] Creditor also cites REDACTED in which the bankruptcy court rejected an argument that a motion to dismiss under § 1307(c) was untimely under the local rules because the motion to dismiss was filed prior to plan confirmation. Finally, Creditor argues that a 2008 case stands for the proposition that § 1307(c) and § 1325(a) serve different purposes: The Sixth Circuit has further held that [§] 1307(c) is distinct from [§] 1325(a). ""In other words, consistent with the Love decision, cited with approval in footnote 11 of Marrama and followed by the Sixth Circuit in In re Alt , 305 F.3d at 420, this Court concluded that the debtor's conduct was such that she could survive a motion to dismiss for bad faith. Nevertheless,"
|
[
"file his motion to dismiss until October 22, 1997, after the 45-day plan objection period as outlined in LR 3015-2(D)(1) had passed. On its face, LR 3015-2(D)(1) is not applicable to motions to dismiss; the text speaks only of objections to plan confirmation. The court has found no cases that directly address the issue. Similarly, the bankruptcy code and rules do not place time limits on filing a motion to dismiss based on eligibility. Nowhere in 11 U.S.C. § 1307(c) is a time limit set for filing a motion to dismiss, nor is there a time limit set in 11 U.S.C. § 109(e) for determining eligibility. There are several cases, however, that address the validity of a motion to dismiss after a chapter 13 plan has been confirmed, finding that confirmation may be res judicata to eligibility issues raised thereafter. See In re Nikoloutsos, 199 B.R. 624 (Bankr.E.D.Tex.1996) (motion to dismiss filed three months after confirmation untimely); Jones v. U.S. (In re Jones), 134 B.R. 274 (N.D.Ill.1991) (motion to dismiss filed nineteen months after confirmation and ten months after discharge untimely); c.f. Franklin Federal Bancorp., FSB v. Lochamy (In re Lochamy), 197 B.R. 384 (Bankr.N.D.Ga.1995) (although motion to dismiss filed five days before confirmation, creditor’s failure to raise or preserve the motion at the confirmation hearing waived right to litigate eligibility under § 109(e)). However these eases are not similar to the situation before this court. In In re Nikol-outsos and In re Jones the creditor failed to file its motion to dismiss until after plan confirmation. In In re Lochamy where the motion to dismiss was filed only five days before the confirmation hearing, the plan was confirmed following, hearing where the creditor failed to raise the eligibility issue. The courts in those situations found that the creditors “sle[pt] on their rights,” In re Nikoloutsos, 199 B.R. at 627; In re Lochamy, 197 B.R. at 387, and “had ample opportunities to contest Debtors’ eligibility but failed to do so in a timely fashion.” In re Jones, 134 B.R. at 279. Not so here. Moseley appeared at the September 10,"
] |
[
"the motion to dismiss is that Kimes is not truly seeking dismissal under § 1307, but rather is attempting, belatedly, to object to confirmation of her plan under § 1325. (Powers’ Memorandum of Points and Authorities, Filed March 21,1991, P. 4, lines 6-7, P. 5-8, lines 28-16). She says: “[T]he most serious problem facing Movant, with his ‘lack of good faith’ argument, is the fact that this Motion was filed too late to test that issue,” because under § 1327(a) the terms of the confirmed plan bind both debtor and creditors. (Id. P. 5-6, lines 28-2). Powers goes so far as to assert that “[T]his Court has no jurisdiction to hear Movant’s allegations about the alleged lack of good faith_ The plan has already been confirmed without objection.” (Id. P. 8, lines 10-12, 15-16). In support of her argument Powers cites In re Szostek, 886 F.2d 1405 (3d Cir.1989), In re Gregory, 705 F.2d 1118 (9th Cir.1983), and In re Webre, 88 B.R. 242 (9th Cir. BAP 1988). These cases all stand for the proposition that if a creditor, having received notice of a Chapter 13 filing and plan confirmation hearing, fails to object to the confirmation of debtor’s plan, such failure constitutes an acceptance of the plan as confirmed, and thereafter, the order confirming the plan is res judicata as to all issues litigated and which could have been litigated. As will be seen below however, none of these cases is applicable to the question raised in our case, i.e., whether, because Powers’ plan is confirmed, Kimes is prohibited from bringing a motion to dismiss her case under § 1307. Powers first relies on Szostek, and repeats the Third Circuit’s approval of language from Collier, as follows: “[I]t is quite clear that the binding effect of a chapter 13 plan extends to any issue actually litigated by the parties and any issue necessarily determined by the confirmation order, including whether the plan complies with sections 1322 and 1325 of the Bankruptcy Code. For example, a creditor may not after confirmation assert that the plan was not filed in good",
"has objected to a finding of good faith both in filing the petition and the Plan. In our earlier cases, we have read 11 U.S.C. § 1307(c), which provides for dismissal of a Chapter 13 provision “for cause,” to include a dismissal premised on a debtor’s bad faith in filing the petition. See In re Love, 957 F.2d at 1354; In re Smith, 848 F.2d 813, 816 n. 3 (7th Cir.1988). Although Ms. Watson has not cited § 1307(c), her brief to this court asks us to reverse the bankruptcy court and conclude that neither the petition nor the Plan was filed in good faith. Most of her brief focuses on whether Mr. Smith’s Plan was proposed in good faith, as did almost all of the bankruptcy hearing. We turn first to the petition. On this record, only Mr. Smith’s pre-petition conduct bears on his good faith in filing the petition. Ms. Watson has not pointed toward anything leading up to bankruptcy that would point to a finding of bad faith other than Mr. Smith’s fraudulent conduct with respect to the underlying debt. We have held that simply availing oneself of the more liberal provisions of Chapter 13 to discharge a debt that is not dischargea-ble in Chapter 7 is not sufficient to constitute bad faith. See In re Smith, 848 F.2d at 819. We therefore shall focus our examination on whether the bankruptcy court clearly erred in its determination that the Plan was filed in good faith. Before a bankruptcy court confirms a debtor’s plan under Chapter 13, it must find that the plan was filed in good faith. See 11 U.S.C. § 1325(a)(3). “The provisions of 11 U.S.C. § 1325 ensure that a Chapter 13 plan ... will be properly scrutinized by the bankruptcy court before the plan is confirmed, mitigating the danger of abuse.” In re Young, 237 F.3d 1168, 1174 (10th Cir.2001). In considering whether a plan is filed in good faith, the court asks of the debtor: “Is he really trying to pay the creditors to the reasonable limit of his ability or is he",
"confirmation of a chapter 13 plan, that revocation must be sought within 180 days. § 1330(a). Also, as the Debtor argues, there is authority to the effect that if the basis for dismissal of a case arose before confirmation of the plan, and no motion to dismiss is filed until after confirmation, res judicata may bar dismissal. Section 1307(c) provides that “on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause ...” 11 U.S.C. § 1307(c). In addition to ineligibility under Section 109(c), lack of good faith in the filing of a chapter 13 petition is sufficient cause for dismissal of the case. In re Love, 957 F.2d 1350, 1354 (7th Cir. 1992). Where the amount claimed by a creditor is known by a debtor, but not disclosed in bankruptcy schedules, there is a question as the debtor’s good faith. See In re Redburn, 193 B.R. 249, 256 (Bankr. W.D.Mich.1996). Section 1327(a), however, provides that “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). As a general rule, a creditor’s failure to raise an objection at a confirmation hearing or to appeal from the order of confirmation will preclude the creditor from challenging the legality of the plan or its provisions at a later point in time. In re Chappell, 984 F.2d 775, 782 (7th Cir. 1993); In re Szostek, 886 F.2d 1405, 1410 (3d Cir.1989); Strong v. United States (In re Strong), 203 B.R. 105, 113 (Bankr. N.D.Ill.1996); In re Puckett, 193 B.R. 842, 845-46 (Bankr.N.D.Ill.1996). Were objections of this nature not precluded, creditors would be permitted an end run around the 180-day limit on",
"for the exclusive benefit of the Trustee and the Debtors’ attorney. The Creditor contends that the sole reason the Debtors have filed for Chapter 13 protection is to avoid payment of his judgment. He states that the bankruptcy was filed less than a month after the jury verdict and that no other creditors were pursuing the Debtors at the time. The Creditor believes that the Debtors’ Plan was not filed in good faith and should not be confirmed. The Debtors assert that they are merely taking advantage of the Chapter 13 discharge that Congress has afforded them. III. DISCUSSION One of the statutory requirements for a Chapter 13 debtor is that he or she must propose a payment plan that satisfies the list of requirements found in section 1325(a). Specifically, section 1325(a)(3) requires that the plan be proposed in “good faith.” However, the Bankruptcy Code itself never defines good faith. Not surprisingly, absent a statutory definition, the meaning of the term good faith has been the subject of extensive litigation. Without legislative guidance, the courts have developed their own system of determination. The issue of good faith manifests itself in two instances within a Chapter 13 proceeding. First, pursuant to section 1307(c) the court may dismiss a case or convert it for cause. A lack of good faith or bad faith filing has been found to constitute cause for conversion or dismissal. Second, in order to be confirmed, a Chapter 13 plan must be proposed in good faith. As explained by Judge Kenner in In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass. 2002), the same standard for finding good, or bad, faith may properly be used in both instances, the only distinction being who bears the burden of proof. Under section 1307(c), an objecting creditor bears the burden of proof, while under section 1325(a)(3), it is a debtor. Id. And when a debtor seeks the Chapter 13 discharge to discharge debt that would remain undischarged in a Chapter 7, that burden is especially heavy. Id. (citing In re Leavitt, 209 B.R. 935, 940 (9th Cir. BAP 1997); In re Haskell,",
"the plan was proposed in good faith as required by 11 U.S.C. § 1325(a)(3). But there are no findings addressed to § 1325(a)(3), and there is no order denying confirmation. To be sure, the court’s mention of our so-called Warren decision hints that it was not persuaded of the debtor’s good faith. Nevertheless, the record does not show that the court considered the totality of the circumstances and that, as required by Warren, it “conducted] more than a ministerial review related to payments in order that it may make an informed and independent judgment concerning whether [the] plan was proposed in good faith.” Fid. & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87, 95 (9th Cir. BAP 1988). Lacking a record that would enable us to have a complete understanding of the issues, we will not review the denial of confirmation of the initial plan. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1223 (9th Cir.1999). Nor, if the debtor modifies her plan, would such review be useful. If, on remand, the debt- or does not proceed diligently, she may become vulnerable to dismissal or conversion based on unreasonable delay prejudicial to creditors under § 1307(c)(1). The court will be free on remand to examine the debtor’s good faith under the totality-of-the-circumstances analysis and to determine whether there is some form of “cause” that would warrant either conversion or dismissal. CONCLUSION The Bankruptcy Code contemplates in § 1307(c)(5) that chapter 13 debtors be afforded more than one opportunity to confirm a chapter 13 plan before the case is dismissed or converted following denial of plan confirmation. As one of the elements of § 1307(c)(5) “cause” was missing, mere denial of confirmation did not constitute the requisite cause. We REVERSE the order dismissing the case and REMAND for further proceedings consistent with this decision. . THE COURT: First of all, there’s an issue as to eligibility, but let’s set that aside. Tr. 6/20/05, at 2. . THE COURT: Well, first of all, in the 20 years I've been on the bench I've approved such small",
"in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.” 11 U.S.C. § 1325(b)(1)(B). Closely related to the issue of whether a debtor has filed his plan in good faith is the question of whether a debtor filed his Chapter 13 petition in bad faith. In fact the distinction between 11 U.S.C. § 1307(c) and 11 U.S.C. § 1325(a)(3) is that under the former the objecting creditor bears the burden of proof whereas under the latter the debtor bears the burden. In re Dicey, 312 B.R. 456 (Bankr. D.N.H.2004). Numerous tribunals have dismissed Chapter 13 cases pursuant to 11 U.S.C. § 1307(c) as bad faith filings when the Debtor’s motivation in filing his Chapter 13 petition was to avoid payment of a singular debt. In re Virden, 279 B.R. at 410; In re Mattson 241 B.R. 629, 634 (Bankr.D.Minn.1999); In re Tornheim, 239 B.R. 677, 686-87 (Bankr.E.D.N.Y.1999); In re Ramji, 166 B.R. 288, 290 (Bankr.S.D.Tex.1993). In this case the Judicial Lien Creditor argues that the Debtors did not act in good faith in proposing their Plan and thus asserts their Plan is not confirmable pursuant to 11 U.S.C. § 1325(a)(3). The Judicial Lien Creditor has not, either in open court or in any of his written submissions, suggested that the Chapter 13 petition itself was filed in bad faith, an allegation which, if proven, would lead to dismissal of the Debtors’ Chapter 13 case. As such, at this time the Court must limit its determination to whether the Debtors met their burden of proving that their proposal of a single creditor Chapter 13 Plan was made in good faith. Nevertheless, the Court has the power to, and will, issue an order to show cause why the case should not be dismissed for lack of a good faith filing. 11 U.S.C. § 105(a); In re Fleury, 294 B.R. at 5. The Debtors filed their Chapter 7 petition on June 29, 2000 and shortly thereafter sought to voluntarily dismiss it to seek “relief in the state",
"declined to address the question of what effect a lack of good faith might have on the motion to dismiss. Grimes, 117 B.R. at 535. Another decision from the Ninth Circuit Court of Appeals, however, has ruled squarely on this issue. The court in Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994), made this succinct holding: “A Chapter 13 petition filed in bad faith may be dismissed ‘for cause’ pursuant to 11 U.S.C. § 1307(c).” In Eisen, a the bankruptcy court found bad faith under the “totality of circumstances” test based upon multiple filings by the debtor coupled with timing a filing in Chapter 13 to frustrate a state court action on the eve of trial, and upon misleading statements made in the debtor’s various schedules and statements of affairs. In affirming the lower courts, the Court of Appeals held without reservation that where bad faith warrants denial of confirmation of a Chapter 13 plan, so too does such bad faith warrant dismissal of the entire petition. Id. Section 1307 allows conversion or dismissal “whichever is in the best interest of creditors and the estate, for cause, including— ... (5) denial of confirmation of a plan under section 1325 of this title.” Other courts have also found lack of good faith sufficient to constitute cause for dismissal. For instance, in Gier v. Farmers State Bank of Lucas, Kansas (In re Gier), 986 F.2d 1326 (10th Cir.1993), the court upheld a bankruptcy court’s dismissal of a Chapter 13 petition under 11 U.S.C. § 1307(c). Gier, 986 F.2d at 1329 (citing the Seventh Circuit’s holding in In re Love, 957 F.2d 1350 (7th Cir.1992)). The court held that the fact finder must consider the totality of the circumstances in determining bad faith. Further, if bad faith be found, “although we agree that the rejection of a Chapter 13 plan [for lack of good faith] should not necessarily lead to dismissal, it is a factor for the bankruptcy court to consider as it determines whether to dismiss the petition pursuant to § 1307(c)” for cause. Id. Other factors present",
"93-95. Therefore, the plan in this case deserves particular scrutiny. Several Courts have found good faith on the part of Chapter 13 debtors attempting to discharge claims arising from intentional assault. See, e.g., In re Easley, 72 B.R. 948 (Bankr.M.D.Tenn.1987); In re Manes, 67 B.R. 13 (Bankr.E.D.Ark.1986). On the other hand, where wilful and malicious injury is combined with an absence of legitimate other creditors, a plan that offers minimal repayment, and a filing timed just prior to a crucial proceeding in another court, bankruptcy courts have found bad faith on the part of debtors. See, e.g., In re Cregut, 69 B.R. 21 (Bankr.D.Ariz.1986) (J. Mooreman). The Seventh Circuit has also examined the issue of pre-petition tortious conduct in the context of a Chapter 13 debtor’s good faith. In re Love, 957 F.2d 1350 (7th Cir.1992). In Love, the debtor exhibited a pattern prepetition of refusing to pay taxes and falsifying W — 4 forms. The Seventh Circuit explained that a good faith finding requires an intensive factual inquiry, and there is no presumption of bad faith where a debtor has engaged in egregious prepetition conduct. Id. at 1355. Because dismissal is a harsh remedy, the Seventh Circuit concluded that “the bankruptcy court should be more reluctant to dismiss a petition under Section 1307(c) for lack of good faith than to reject a plan for lack of good faith under Section 1325(a).” Id. Concluding that the bankruptcy judge had conducted an evidentiary hearing and carefully weighed the evidence before dismissing the Chapter 13 case for bad faith, the Seventh Circuit affirmed the dismissal in Love. Id. Several courts have adopted lists of factors to consider in evaluating a Chapter 13 debt- or’s good faith, whether in the context of a dismissal motion or plan confirmation. Factors include: 1. the nature of the debt, including whether the debt would be nondis-chargeable in a Chapter 7; 2. the timing of the petition; 3. how the debt arose; 4. the debtor’s motive in filing the petition; 5. how the debtor’s actions affected creditors; 6. the debtors’ treatment of creditors both before and after",
"the debtor is unable to do so, the case may be dismissed under § 1307(c)(5). While the confirmation requirements have, since enactment of the Code, always required a debtor to show that a chapter 13 plan is “proposed in good faith ...,” see 11 U.S.C. § 1325(a)(3), it was not until the adoption of BAPCPA in 2005 that a debt- or was also required to demonstrate that “the action of the debtor in filing the petition was in good faith” to achieve confirmation. 11 U.S.C. § 1325(a)(7). However, even prior to BAPCPA, a chapter 13 case could be dismissed when it was demonstrated to the court that the case was filed in bad faith or as an attempt to unfairly manipulate the Code. See e.g., Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir.1999); Risen v. Curry (In re Eisen), 14 F.3d 469 (9th Cir.1994); In re James, 260 B.R. 498 (Bankr.D.Idaho 2001). A. Good Faith Standard. Because BAPCPA effectively codified the good faith filing requirement previously employed in the case law, that case law is applicable to any analysis of § 1325(a)(7). And while this chapter 13 case is not before the Court at this time to determine whether Debtors’ plan should be confirmed, if the Court decides Debtors did not file their petition in good faith, they will, as a result, be unable to confirm any plan. Thus, it is appropriate for the Court to evaluate Debtors’ motives in resolving Trustee’s motion to dismiss. “Bankruptcy courts must determine a debtor’s good faith on a case-by-case basis, taking into account the particular features of each Chapter 13 plan.” In re Yochum, 96.2 I.B.C.R. 77, 78 (Bankr.D.Idaho 1996) (citing In re Porter, 102 B.R. 773, 775 (9th Cir. BAP 1989)). In addition, “[t]he bankruptcy court must consider the totality of the circumstances, including prepetition conduct, in deciding whether the debtor has ‘acted equitably.’ ” In re Tucker, 989 F.2d 328, 330 (9th Cir.1993) (emphasis supplied); see also In re Bowen, 349 B.R. 814, 816 (Bankr.D.Idaho 2005); In re Yochum, 96.2 I.B.C.R. at 78. Debtors bear the burden of"
] |
had used the proceeds from their trafficking in “controlled substances.” Ansaldi and Gates argue that the word “narcotics” has a specific meaning, given by 21 U.S.C. § 802(17), which does not include GBL. “Controlled substance,” on the other hand, refers to a larger class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. REDACTED A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element”
|
[
"challenge to his Section 924(c)(1) firearms conviction — that there was insufficient proof that a firearm was actually used during George Medina’s kidnapping — merits scant attention. George Medina gave an eyewitness account of what he saw — “He pushed my arm away and he told me not to act stupid, and he showed me that he had a gun through his shirt.... He let the handle stick out and I could see the form of it through his shirt.” This evidence was more than sufficient because, contrary to appellant’s argument, the government was not obliged to produce an actual firearm as evidence at trial. See United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986); see also United States v. Gregg, 803 F.2d 568, 571 (10th Cir.1986), cert. denied, 480 U.S. 920, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987). Patino also claims that the government impermissibly constructively amended the indictment during rebuttal summation, when it argued that the weapons mentioned in the firearms count included not only the gun George Medina saw when abducted on November 4,1990, but also the three additional guns distributed by Osorio and recovered after the arrests on November 11,1990. Patino argues that Count Six of the indictment charged him with using a gun only at the time of George Medina’s abduction, and, therefore, the prosecutor impermissibly expanded the indictment in referring to the three additional weapons. An indictment is constructively amended when the proof at trial broadens the basis of conviction beyond that charged in the indictment. United States v. Miller, 471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99 (1985). Constructive amendment of an indictment is a per se violation of the grand jury clause of the Fifth Amendment. United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988). However, an impermissible alteration of the charge must affect an essential element of the offense, United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985), and we have “consistently permitted significant flexibility in proof, provided that the defendant was given"
] |
[
"and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element” of the offense. Patino, 962 F.2d at 266. Although the case law draws a fine line between those alterations that create constitutionally impermissible amendments and those that are merely permissible variations, this case does not lie near that boundary line. Rather, Count Five of the indictment in this case is perfectly clear and was not at all altered in scope by the District Court’s instruction. Defendants’ argument is that narcotics is a narrower class than controlled substances, and therefore, to substitute the one for the other is to change the scope of the designated substance. Their premise is incorrect. Defendants are, of course, correct that the statutory definition of “narcotic drugs,” 21 U.S.C § 802(17), delineates a subset of the larger class of controlled substances. Defendants overlook the most straightforward reading of the indictment, however, which does not employ the statutory definition of narcotics, but rather the broader, colloquial meaning of the word — trading in an illicit pharmaceutical. A review of the indictment as a whole makes it clear that this is the appropriate reading. The indictment first lays out all the allegations concerning Defendants’ conspiracy to acquire and distribute GBL. This description of Defendants’ business of selling GBL is then incorporated by reference into the beginning of Count Five. Count Five’s reference to “narcotics trafficking” then admits of only one plausible reading — that it is referring to Defendants’ trade in GBL. Defendants’ argument that the District Court broadened the meaning of narcotics as defined by 21 U.S.C. § 802(17) is a strawman. If the word “narcotics” in the indictment had the statutory meaning, there might be a question whether the indictment was impermis-sibly broadened by the jury charge. That is not the case. Rather, the indictment described in detail Defendants’ trafficking in GBL and then referenced those events with the shorthand designation of “narcotics trafficking.” Thus, the term “narcotics trafficking” in the indictment unambiguously —",
"narcotics, but rather the broader, colloquial meaning of the word — trading in an illicit pharmaceutical. A review of the indictment as a whole makes it clear that this is the appropriate reading. The indictment first lays out all the allegations concerning Defendants’ conspiracy to acquire and distribute GBL. This description of Defendants’ business of selling GBL is then incorporated by reference into the beginning of Count Five. Count Five’s reference to “narcotics trafficking” then admits of only one plausible reading — that it is referring to Defendants’ trade in GBL. Defendants’ argument that the District Court broadened the meaning of narcotics as defined by 21 U.S.C. § 802(17) is a strawman. If the word “narcotics” in the indictment had the statutory meaning, there might be a question whether the indictment was impermis-sibly broadened by the jury charge. That is not the case. Rather, the indictment described in detail Defendants’ trafficking in GBL and then referenced those events with the shorthand designation of “narcotics trafficking.” Thus, the term “narcotics trafficking” in the indictment unambiguously — if inelegantly — referred to the sale of GBL. There is no obligation to read statutory definitions into every word of an indictment, particularly when the indictment as a whole makes clear that a different meaning is intended. b. Good Faith Defense A criminal defendant is entitled to a jury instruction on any defense for which there is a foundation in the evidence. United States v. Allen, 127 F.3d 260, 265 (2d Cir.1997). That being said, this Court will not overturn a verdict when an instruction is refused,' unless the proposed instruction (a) is legally correct, (b) has a basis in the record, and (c) is not present elsewhere in the instructions. Id. Gates and Ansaldi argue that the trial court erred in not granting their request to instruct the jury on the availability of a “good faith” defense to Counts Three, Four and Five of .the indictment. They argue that there was evidence in the record that they believed they were breaking no law by selling GBL. They point to several pieces of evidence",
"Issues a. Constructive Amendment Ansaldi and Gates ask us to vacate their convictions on Count Five of the indictment, on the ground that they were convicted in violation of the Fifth Amendment. Specifically, they argue that Judge Sey-bert improperly amended the indictment in her charge to the jury, thereby allowing the jury to convict Gates and Ansaldi of a crime not charged in the indictment. Count Five charges Defendants with a money laundering conspiracy. It alleges that they conspired to conduct financial transactions that affected interstate commerce, using the proceeds of unlawful activity. The last element is where the controversy lies. The indictment refers to “proceeds of specified unlawful activity, to wit: narcotics trafficking.” The District Judge, however, instructed the jury that they could return a guilty verdict if they found Defendants had used the proceeds from their trafficking in “controlled substances.” Ansaldi and Gates argue that the word “narcotics” has a specific meaning, given by 21 U.S.C. § 802(17), which does not include GBL. “Controlled substance,” on the other hand, refers to a larger class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. United States v. Patino, 962 F.2d 263, 265-66 (2d Cir.1992). A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment",
"class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. United States v. Patino, 962 F.2d 263, 265-66 (2d Cir.1992). A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element” of the offense. Patino, 962 F.2d at 266. Although the case law draws a fine line between those alterations that create constitutionally impermissible amendments and those that are merely permissible variations, this case does not lie near that boundary line. Rather, Count Five of the indictment in this case is perfectly clear and was not at all altered in scope by the District Court’s instruction. Defendants’ argument is that narcotics is a narrower class than controlled substances, and therefore, to substitute the one for the other is to change the scope of the designated substance. Their premise is incorrect. Defendants are, of course, correct that the statutory definition of “narcotic drugs,” 21 U.S.C § 802(17), delineates a subset of the larger class of controlled substances. Defendants overlook the most straightforward reading of the indictment, however, which does not employ the statutory definition of",
"charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991). Thus, a constructive amendment violates the Fifth Amendment right to be indicted by a grand jury, is error per se, and must be corrected on appeal even when the defendant did not preserve the issue by objection. See United States v. Floresca, 38 F.3d 706, 712-13 (4th Cir.1994) (en banc). However, not all differences between an indictment and the proof offered at trial, rise to the “fatal” level of a constructive amendment.. See Redd, 161 F.3d at 795. When different evidence is presented at trial but the evidence does not alter the crime charged in the indictment, a mere variance occurs. See id. A mere variance does not violate a defendant’s constitutional rights unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense. See id. Count Six charged Gerome and Jeron with using and carrying “a firearm, Model 17, 9 millimeter Glock handgun with a laser sight, [on or about October 11, 1995], during and in relation to a drug trafficking crime, ... specifically, distribution of a narcotic controlled substance,” in violation of 18 U.S.C. § 924(c), and aiding and abetting such, in violation of 18 U.S.C. § 2. (J.A. 26) (emphasis added). However, the government’s evidence linked the October 11, 1995 § 924(c) charge under Count Six, not to the charged predicate offense of distribution, but to the predicate offense of possession with intent to distribute. Specifically, the government presented evidence that after Detective Robinson’s attempted purchase of drugs (during which no firearm was used or carried) failed to consummate, the surveillance team arrested Gerome inside the barbershop and Jeron outside the barbershop. When the officers searched Jer-on’s car, they found under the passenger’s seat a firearm and under the driver’s seat twenty-nine plastic bags, some containing marijuana and some containing crack, for a total of 49.9 grams",
"369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (reiterating Bain's holding that “an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form”). “An indictment has been constructively amended when the trial evidence or the jury charge operates to broaden the possible bases for conviction from that which appeared in the indictment.” Rigas, 490 F.3d at 225 (internal quotation marks and alterations omitted). The jury charge must not “so alter[ ] an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment.” Id. at 227 (internal quotation marks omitted). A constructive amendment of an indictment is “a serious error,” United States v. Ansaldi, 372 F.3d 118, 126 (2d Cir.2004), and a per se violation of the Fifth Amendment, requiring automatic reversal, Rigas, 490 F.3d at 225-26. We reject McCourty’s constructive amendment claim because neither the trial evidence nor the jury charge altered Count Three of the Superseding Indictment. Count Three charges McCourty with only one offense of “possession of a controlled substance] with intent to distribute [the] controlled substance.” Count Three does identify two bases for this single offense; namely, the possession on one day of 5 grams or more of crack cocaine and the possession on the same day of an unspecified amount of cocaine. That the District Court distinguished the two bases of liability is of no consequence. No constructive amendment resulted when the District Court broke the single offense into two parts to be addressed by the jury. The Verdict Sheet’s identification of the apartment as the place of drug possession and the street as another location of drug possession does not alter any element of the single crime of drug possession, which occurred on May 11, 2006. Indeed, we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous. See, e.g., United States v. Sturdivant, 244 F.3d 71, 76 n. 4 (2d Cir.2001) (stating that, in a case involving",
"instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged. See United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985) (constructive amendment occurs when defendant is deprived of “substantial right to be tried only on charges presented in an indictment returned by a grand jury”) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (I960)); see also United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (There is “[a] constructive amendment to an indictment ... when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury.”). Thus, “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Stirone, 361 U.S. at 217, 80 S.Ct. at 273. “The key inquiry is whether the defendant was convicted of the same conduct for which he was indicted.” United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th Cir.1998). Constructive amendments “are per se reversible under harmless error review, [and] are presumptively prejudicial under plain error review.” Syme, 276 F.3d at 136. In Stirone, the indictment alleged that the defendant through extortion unlawfully interfered with interstate commerce in the importing of sand into Pennsylvania. Nevertheless, the evidence showed not only importation of sand, but also exportation of steel from Pennsylvania. Moreover, the district court charged the jury that the defendant’s guilt could rest on the effect of his conduct on interstate commerce with respect to either sand or steel. 361 U.S. at 214, 80 S.Ct. at 272. The Supreme Court held that this charge coupled with the evidence adduced at trial created an unconstitutional variance between the indictment and the proof, which “destroyed the defendant’s substantial right to be tried",
"by the district court in response to a question received from the jury during its deliberations constructively amended the indictment. A. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury_” U.S. Const. Amend. V. After the indictment is “returned[,] its charges may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Thus, the “court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Id. at 217, 80 S.Ct. 270. If a constructive amendment is found, the error is fatal and reversible per se. See id. at 219, 80 S.Ct. 270; see also United States v. Foster, 507 F.3d 233, 242 (4th Cir.2007). “A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented to the grand jury.” United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (en banc). Constructive amendments of an indictment are regarded “as fatal variances because ‘the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.’ ” Foster, 507 F.3d at 242 (quoting United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999)). In Stirone, for example, the Supreme Court held that a constructive amendment had occurred because the indictment charged the defendant with unlawfully interfering with interstate commerce in violation of the Hobbs Act based upon the defendant’s interference with sand shipments, but the district court instructed the jury that it could also convict based upon evidence allowed regarding future interstate steel shipments. See Stirone, 361 U.S. at 219, 80 S.Ct. 270. Thus, the defendant was tried and convicted of a charge not contained in the indictment and of which there",
"this discrepancy amounts to a constructive amendment of the indictment. A. Only the grand jury can broaden an indictment through amendment. United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.1997). A constructive amendment occurs when the government changes its theory during trial so as to urge the jury to convict on a basis broader than that charged in the indictment, or when the government is allowed to prove “an essential element of the crime on an alternative basis permitted by the statute but not charged in the indictment.” Id. (quoting United States v. Slovacek, 867 F.2d 842, 847 (5th Cir.1989)). In United States v. Young, 730 F.2d 221, 223 (5th Cir.1984), we explained that “[t]he accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.” If, however, the indictment “contained an accurate description of the crime, and that crime was prosecuted at trial, there is no constructive amendment.” United States v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.1998), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) No. 98-5534), cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5559), and cert. denied,—U.S.-, 119 S.Ct. 250,—L.Ed.2d-(1998) (No. 98-5560). We still must determine whether the variance, if any, was harmless. See United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir.1994). In this inquiry, “our concern is that the indictment notifies a defendant adequately to permit him to prepare his defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity.” Id. (internal quotation omitted). B. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Court found a constructive amendment when the indictment alleged that the defendant had unlawfully interfered with the importation of sand, but the court instructed the jury that it could base a conviction on interference with the exportation of steel. The Court explained that “when only one particular kind of commerce is charged to have been burdened a conviction must rest on that",
"the Indictment It is well settled that a defendant enjoys a Fifth Amendment right to be tried on felony charges returned by a grand jury indictment and that only the grand jury may broaden the charges in the indictment once it has been returned. Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). The district court may not broaden the charges by constructive amendment. Id. “A constructive amendment to the indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (quotation marks omitted). Sanders argues that the district court’s jury instructions impermissibly broadened the charges in the indictment by instructing that Sanders did “not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance.” For the reasons explained below, we conclude that this instruction is fully consistent with the statutory requirements and our precedent. As background, we begin with the language of the relevant statutes. Section 841(a)(1) provides that “it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added). As is evident from the statutory language, a person violates § 841(a) merely by knowingly possessing with intent to distribute a controlled substance. The § 841(a) offense is complete once the person commits the proscribed act and knows that the substance is a “controlled substance.” “[B]ecause the specific amount and type of drugs are not elements of the [§ 841(a)(1) ] offense, the government’s failure to prove the amount or type charged in the indictment does not merit reversal.” United States v. Baker, 432 F.3d 1189, 1233 (11th Cir.2005); see also United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir.1996); United States v. Gomez, 905 F.2d 1513, 1514-15 (11th Cir. 1990). At the outset, we also"
] |
781, 786 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d 994 (1989); United States v. Moya-Gomez, 860 F.2d 706, 752-54 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); United States v. Possick, 849 F.2d 332, 341 (8th Cir.1988); Aguilar, 849 F.2d at 97-99; United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), and cert. denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987); United States v. Schuster, 769 F.2d 337, 344-45 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); REDACTED United States v. Mourad, 729 F.2d 195, 202-03 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), and cert. denied, 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir. 1983) (per curiam). Curiously, the government’s opposition brief ignores the decisions of the courts of appeals on this subject. Instead, the government relies on Garrett v. United States, 471 U.S. 773, 785-86, 105 S.Ct. 2407, 2414-15, 85 L.Ed.2d 764 (1985), and United States v. Harris, 959 F.2d 246, 253-54 (D.C. Cir.), cert. denied, — U.S. -, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992), and cert. denied, — U.S. -, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992).
|
[
"2219-20, 53 L.Ed.2d 168 (1977); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983), we vacate the § 846 sentences for counts one and six, which run consecutively to the § 848 CCE sentence. However, we affirm the consecutive sentences for the violations of both § 848 and its predicate offenses. The Circuits have split on the issue whether consecutive sentencing for CCE and its predicate substantive offenses violate the double jeopardy clause. Compare United States v. Leifried, 732 F.2d 388 (4th Cir.1984), and United States v. Gomberg, 715 F.2d 843, 851 (3d Cir.1983), cert. denied sub nom. Spielvogel v. United States, — U.S. -, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), and United States v. Jefferson, 714 F.2d 689, 703 (7th Cir.1983), and United States v. Samuelson, 697 F.2d 255, 260 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984), and United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982), and United States v. Chagra, 669 F.2d 241, 261-62 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982) (finding double jeopardy violation), with United States v. Brantley, 733 F.2d 1429, 1437 (11th Cir. 1984), cert. denied, — U.S.-, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), and United States v. Mourad, 729 F.2d 195, 203 (2d Cir.) (finding no double jeopardy violation), cert. denied sub nom. Hargrave v. United States, — U.S. -, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984). The Supreme Court recently resolved the issue in Garrett v. United States, — U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The Court found that “[t]he language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses.” Id., at---, 105 S.Ct. at 2412. The Court noted that the “presumption when Congress creates two distinct offenses is that"
] |
[
"v. Middleton, 673 F.2d 31, 33 (1st Cir.1982) (same). . The circuits are uniform on this point. See eg., United States v. Aguilar, 849 F.2d 92, 98 (3d Cir.1988); United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Stallings, 810 F.2d 973, 974-5 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Worth noting, however, is that United States v. Jeffers, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) is sometimes cited as authority for the proposition that a § 846 conspiracy is a lesser-included offense of a § 848 CCE. See e.g., United States v. Osorio Estrada, 751 F.2d 128, 134 (2d Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985); United States v. Raimondo, 721 F.2d 476 (4th Cir.) (per curiam), cert. denied, sub nom, Bello v. United States, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Smith, 690 F.2d 748 (9th Cir. 1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983). In fact, the Jeffers Court never decided the issue; it was assumed, arguendo. Jeffers, 432 U.S. at 149-50, 153 n. 20, 97 S.Ct. at 2215-16, 2217 n. 20 (citations omitted) (\"[B]efore this case it was by no means settled law that § 846 is a lesser included offense of § 848 ... Even now, it has not been necessary to settle that issue definitively.”). . Not all courts agree that the § 3013 special assessment is punitive. For those that do, see, United States v. Davis, 845 F.2d 94, 97 n. 2 (5th Cir. 1988); United States",
"316 (7th Cir.1989)(same); United States v. Sholo-la, 124 F.3d 803, 811 (7th Cir.1997)(calling into doubt the appropriateness of review for \"clear error”). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(same); United States v. McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991)(en banc)(7-3 decision)(same); United States v. Buchanon, 72 F.3d 1217, 1222 (6th Cir.1995)(same). . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Michigan v. Chestemut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). . Up to seven officers made an appearance at Ms. Marsh’s residence that morning. However, before contraband was found in Tubbs's vehicle, there were no more than four officers present at any particular point in time.",
"Bello v. United States, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Schuster, 769 F.2d 337, 341 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Jefferson, 714 F.2d 689, 705 (7th Cir.1983), vacated and remanded, 474 U.S. 806, 106 S.Ct. 41, 88 L.Ed.2d 34 (1985); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Stallings, 810 F.2d 973, 974-75 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1631, 95 L.Ed.2d 204, and sub nom. Thomas v. United States, — U.S.-, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987); accord 8A J. Moore & M. Waxner, Moore’s Federal Practice ¶ 29.08[3], at 29-65 (Mar. 1988 rev.); see also United States v. Grayson, 795 F.2d 278, 284 (3d Cir.1986) (\"The [CCE] statute requires an agreement in a design or plan as well as concerted activity.’’) (citing Jef-fers, 432 U.S. at 148-49, 97 S.Ct. at 2214-15) (dictum), cert. denied, — U.S. -, 107 S.Ct. 1899, 95 L.Ed.2d 505, and sub nom. Robinson v. United States, — U.S. -, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987). . Garrett was not, in other words, a prosecution where conspiracy was charged twice — once as a crime in itself and, under the same set of facts, once as part of the continuing series of violations necessary to make out the crime of CCE. See generally Fernandez, 822 F.2d 382. . We note that in two other instances, federal courts of appeals appear to have presumed the validity of the due diligence exception, however, the decisions that those courts reached did not rely upon application of the exception. See United States v. Boldin, 772 F.2d 719, 732 (11th Cir.1985); United States v. Stricklin, 591 F.2d 1112, 1124, n. 5 (5th Cir.1979). . The government, in a",
"-, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984); United States v. Samuelson, 697 F.2d 255, 259 (8 Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984); United States v. Losada, 674 F.2d 167, 174 n. 4 (2 Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982); United States v. Phillips, 664 F.2d 971, 1013 (5 Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Chagra, 653 F.2d 26, 27-28 (1 Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982); United States v. Johnson, 575 F.2d 1347 (5 Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). . United States v. Webster, 639 F.2d 174, 181 (4 Cir.1981), modified on other grounds, 669 F.2d 185 (4 Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). . E.g., United States v. Sterling, 742 F.2d 521, 526-27 (9 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); United States v. Brantley, 733 F.2d 1429, 1436-37 (11 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). . We have previously stated in dicta that a § 846 conspiracy may not be used to prove the predicate violation required by § 848(b)(1), Lurz, supra, 666 F.2d at 76; accord United States v. Jefferson, 714 F.2d 689, 702 n. 27 (7 Cir.1983); but see United States v. Young, 745 F.2d 733, 748-52 (2 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Middleton, 673 F.2d 31, 33 (1 Cir.1982); cf. United States v. Michel, 588 F.2d 986, 1000-01 (5 Cir.) (no opinion on issue), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979), but we have also held that a distinct conspiracy may be used to prove the \"series” and other requirements of § 848(b)(2). Lurz at",
". United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979), and United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), rely on United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). Borelli cited United States v. Cohen, 145 F.2d 82, 90 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945). Cohen relied in part on United States v. Perlstein, 126 F.2d 789, 798 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942), which states only the presumption that the conspiracy continued. Perlstein cites Marino v. United States, 91 F.2d 691, 695 (9th Cir. 1937), cert. denied, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593 (1938), and Coates v. United States, 59 F.2d 173, 174 (9th Cir. 1932), which, as discussed earlier, rely on Hyde. United States v. Bastone, 526 F.2d 971, 988 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976), in affirming an “if you find” instruction on withdrawal, cited United States v. Cirillo, 468 F.2d 1233, 1239 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Chester, 407 F.2d 53, 55 (3d Cir.), cert. denied, 394 U.S. 1020, 89 S.Ct. 1642, 23 L.Ed.2d 45 (1969); and Hyde. Cirillo cites United States v. Cianchetti, 315 F.2d 584, 589 (2d Cir. 1963), and United States v. Stromberg, 268 F.2d 256, 263 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959), which rely on Cohen, Marino, and Hyde. None of these cases discuss the burden of proof. Chester cites Hyde and Deacon v. United States, 124 F.2d 352, 358 (1st Cir. 1941). Deacon endorsed an “if you find” instruction without reference to the burden of proof, citing Hyde; Stephens v. United States, 41 F.2d 440, 448 (9th Cir.), cert. denied, 282 U.S. 880, 51 S.Ct. 83, 75 L.Ed.",
"747, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 114, 84 S.Ct. 1509, 1512, 1514, 12 L.Ed.2d 723 (1964); United States v. Kolodziej, 706 F.2d 590, 598-99 (5th Cir.1983); Williams v. Maggio, 679 F.2d 381, 391 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). . See supra nn. 6 & 9. . Franks, 438 U.S. at 155, 98 S.Ct. at 2676. . Id. at 156, 98 S.Ct. at 2676. . Franks, 438 U.S. at 165, 98 S.Ct. at 2681; see Ventresca, 380 U.S. at 111, 85 S.Ct. at 747; Aguilar, 378 U.S. at 111, 114, 84 S.Ct. at 1512, 1514; Kolodziej, 706 F.2d at 598-99; Williams, 679 F.2d at 391. . See United States v. De Los Santos, 810 F.2d 1326, 1336 (5th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987); United States v. Webster, 750 F.2d 307, 323 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). . 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). . Malley, 475 U.S. at 341, 344-45, 106 S.Ct. at 1096, 1098 (portions of text, footnotes, and citations omitted); see Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . Anderson, 483 U.S. at 638, 107 S.Ct. at 3038 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817; Stevens v. Corbett, 832 F.2d 884, 890 (5th Cir.1987), cert. denied, - U.S. -, 108 S.Ct. 2018, 100 L.Ed.2d 604 (1988); United States v. Burzynski Cancer Research Institute, 819 F.2d 1301, 1310 (5th Cir.1987), cert. denied sub nom. Wolin v. United States, — U.S. —, 108 S.Ct. 1026, 98 L.Ed.2d 990 (1988). . Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. . Burzynski Cancer Research Institute, 819 F.2d at 1310; Saldana v. Garza, 684 F.2d",
"he does not bear burden); United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1978), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. James, 609 F.2d 36, 41 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979); United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975); United States v. Heckman, 479 F.2d 726, 729 (3d Cir. 1973). Seventh Circuit cases are collected in n.6 infra. One Second Circuit case, United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977), referred in passing to defendant’s “burden of production,” but without explanation. . United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979), and United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), rely on United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). Borelli cited United States v. Cohen, 145 F.2d 82, 90 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945). Cohen relied in part on United States v. Perlstein, 126 F.2d 789, 798 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942), which states only the presumption that the conspiracy continued. Perlstein cites Marino v. United States, 91 F.2d 691, 695 (9th Cir. 1937), cert. denied, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593 (1938), and Coates v. United States, 59 F.2d 173, 174 (9th Cir. 1932), which, as discussed earlier, rely on Hyde. United States v. Bastone, 526 F.2d 971, 988",
"cert. denied 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963), cert. denied 375 U.S. 904, 84 S.Ct. 195, 11 L.Ed.2d 145 (1964); Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948); Kenney v. Fox, 232 F.2d 288 (6th Cir. 1956); Reinke v. Richardson, 279 F.Supp. 155 (E.D.Wis.1968); Christman v. Commonwealth of Pa., 275 F.Supp. 434 (W.D.Pa.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967). . Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d 345 F.2d 797 (3rd Cir. 1965); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966). . See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff’d, 372 F.2d 378 (2d Cir. 1967), cert. denied 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973; Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss. 1964), aff’d, 352 F.2d 514 (5th Cir.) cert. denied 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Island Steamship Lines v. Glennon, 178 F.Supp. 292 (D.Mass.1959). While the Supreme Court has left the specific question open, see Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965); Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22, a majority of the circuits have held that 42 U.S.C. § 1983 does not create an exception to 28 U.S.C. § 2283. Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964) cert. denied, sub. nom. Chase v. McCain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert. denied 352",
"as issue of law rather than fact); United States v. Rodriguez, 888 F.2d 519, 522 n. 1 (7th Cir.1989) (listing cases disputing de novo review). .See, e.g., United States v. Yunis, 859 F.2d 953, 958 (D.C.Cir.1988); United States v. Burns, 15 F.3d 211, 216 (1st Cir.1994); Green v. Scully, 850 F.2d 894, 900 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990); United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Scurlock, 52 F.3d 531, 536 (5th Cir.1995); United States v. Rigsby, 943 F.2d 631, 635 (6th Cir.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992); United States v. Robinson, 20 F.3d 320, 322 (8th Cir.1994); United States v. Benitez, 34 F.3d 1489, 1495 (9th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1268, 131 L.Ed.2d 146 (1995); United States v. Muniz, 1 F.3d 1018, 1021 (10th Cir.), cert. denied, 114 S.Ct. 575, 126 L.Ed.2d 474 (1993); Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir.1995); Coleman v. Singletary, 30 F.3d 1420, 1426 (11th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1801, 131 L.Ed.2d 727 (1995). But see United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.), cert. denied, - U.S. -, 113 S.Ct. 436, 121 L.Ed.2d 356 (1992) (reviewing under clear error standard). . See Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764-65, 16 L.Ed.2d 895 (1966). See also Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). . See United States v. D.F., No. 94-2900, Government Br. at 17 (relying on Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985) and United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir.1994), for its position that the voluntariness",
"States v. Poindexter, 293 F.2d 329 (6 Cir. 1961), cert. denied 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962) ; Kitts v. United States, 243 F.2d 883 (8 Cir. 1957). . 407 F.2d at 55. . See also, e. g., Whalen v. United States, 367 F.2d 468 (5 Cir. 1966). The same result was reached prior to Prince in a case indistinguishable from the present case: Miller v. United States, 147 F.2d 372 (2 Cir. 1945). . See Miller v. United States, 147 F.2d 372, 374 (2 Cir. 1945). . United States v. Mayer, 235 U.S. 55, 67-69, 35 S.Ct. 16, 59 L.Ed. 129 (1914), (Hughes, J.). See also 2 Bishop, New Criminal Procedure § 1298 (2d ed. 1913). . Heflin v. United States, 358 U.S. 415, 421, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (Stewart, J. concurring). . 287 F.Supp. at 583-584. . United States ex rel. Speaks v. Brierley, 417 F.2d 597, 002 (3 Cir. 1969). . United States v. Sacco, 367 F.2d 368, 370 (2 Cir. 1960). . See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307-309, 51 S.Ct. 113, 75 L.Ed. 354 (1931). See also Note, 75 Yale L.J. 262, 313-17 (1965). . United States v. Adams, 362 F.2d 210 (6 Cir. 1966) ; Duggins v. United States, 240 F.2d 479, 482 (6 Cir. 1957) ; Ekberg v. United States, 167 F.2d 380, 388 (1 Cir. 1948). . Welty raises for the first time, on appeal, the contention that the conspiracy sentence under § 371 is invalid because there can be no consecutive punishment for conspiracy following the punishment for the substantive offense. The argument is without merit. Callanan v. United States, 264 U.S. 587, 593, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) ; Pereira v. United States, 347 U.S. 1, 11-12, 74 S.Ct. 358, 98 L.Ed. 435 (1954) ; Pinkerton v. United States, 328 U.S. 640, 643-645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ; McHenry v. United States, 308 F.2d 700, 704 (10 Cir. 1962). ."
] |
distributors who purchase from producers in other states. Thus it has been held that society’s interest in the privacy of personal correspondence is sufficient to preclude the obscenity conviction of an individual engaged in “swapping” pornographic films with acquaintances. United States v. Dellapia, 2 Cir. 1970, 433 F.2d 1252. The added interest in regulating wide-spread, inter-state commercial distribution networks is sufficient, however, to permit these statutes to stand. A few courts have already held that Stanley did not imply that the constitutional right to possess obscene matter privately prevents the Congress from forbidding the transportation of such material for the purpose of public sale. United States v. Melvin, 4 Cir. 1969, 419 F.2d 136; supplemental opinion in REDACTED d 1211; see, also, Gable v. Jenkins, N.D.Ga.1969, 309 F.Supp. 998. Assuming that Stanley precludes regulation of the interstate transportation of noncommercial pornography and that the literal terms of the statute would prohibit this act, the defendants here may not challenge the statute on the ground that it is overbroad. The Supreme Court has often permitted one whose conduct is not, itself, protected to challenge overbroad statutes that inhibit the exercise of First Amendment activities. E. g. Thornhill v. Alabama, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Dombrowski v. Pfister, 380 U.S. 479, 490-492, 85 S.Ct. 1116, 14 L.Ed.2d 22; see generally, Stedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). This permits a more
|
[
"prior decision that Fragus had no right to a prior judicial determination of obscenity in the ease at bar. II. The Supreme Court has now also affirmed the decision of a three-judge district court in Gable v. Jenkins, 309 F.Supp. 998 (ND. Ga., 1969) [CA 13001, October 24, 1969], 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970), holding that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) does not invalidate a Georgia statute, Ga. Code 26-2101, which prohibits the distribution of materials defined as obscene. Only one issue was presented in appellant’s original brief in this court — the necessity of a prior judicial determination of obscenity — and only that issue was discussed in the reply brief filed by the United States Attorney. The constitutionality of Title 18, § 1462, United States Code, was not raised in these briefs. Oral argument was waived in this case. However, by a written response to a question posed by this court by letter, following our preliminary summary calendar review procedures, appellant advanced a one-sentence submission that Stanley v. Georgia, supra, “requires no great stretch” to legitimatize the shipment of hard core pornography in interstate commerce in order to have it available for consumption in the privacy of one’s home. This contention has now been directly rejected by Gable v. Jenkins, supra, as to the right of the State of Georgia to proscribe distribution of obscenity.. There is no logical distinction between the permissibility of State intrastate regulation of such traffic and federal interstate control under § 1462. We therefore reaffirm our holding that this statute was constitutionally valid as it was applied under the facts of the case sub judice. This court has noted the recent holding of a three-judge district court in United States v. 37 Photographs, 309 F.Supp. 36 [C.D. Calif. January 27, 1970], which held that Title 19, § 1305, United States Code, which prohibits the importation of obscene pictures, is unconstitutional as applied to an importer of obscenity who frankly states he intends to reprint and broadcast such trash. We expressly"
] |
[
"to children or imposed on unwilling adults. The defendant urges that under Stanley the transportation and receipt of obscene matter for private use is constitutionally protected, and that only certain types of public distribution of obscene matter, as described in Redrup, may be subjected to governmental control. The United States, on the other hand, urges that Stanley did not purport to modify Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and that, on its limited facts, Stanley permits an individual to possess obscene materials in his own home, but it does not grant one a protected right to transport or receive such materials. In its per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), the court observed that in none of the cases which were then before the court “ * * * was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.” (p. 769, 87 S.Ct. p. 1415). Two courts of appeal have decided eases which tend to support the government’s position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, “Congress has the power to forbid interstate transportation of obscenity.” (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley. A three-judge court convened in the northern district of Georgia decided “to keep Stanley limited to its facts”. Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970). There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969) , restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26",
"avoid exposure to it.” (p. 769, 87 S.Ct. p. 1415). Two courts of appeal have decided eases which tend to support the government’s position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, “Congress has the power to forbid interstate transportation of obscenity.” (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley. A three-judge court convened in the northern district of Georgia decided “to keep Stanley limited to its facts”. Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970). There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969) , restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26 L. Ed.2d 788 (1970), a three-judge court asserted that it was “impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States [354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498] * * The court went on to say (p. 606): “Stanley expressly holds that obscenity is protected in the context of mere private possession and in our opinion further suggests that obscenity is deprived of this protection only in the context of ‘public actions taken or intended to be taken with respect to obscene matter’.” The court in Stein concluded that the Texas obscenity statute “as a whole is overbroad in that it fails to confine its application to a context of public or commercial dissemination.” (p. 607). Another court which considered the impact of Stanley is Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969), probable jurisdiction noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (1970), restored to calendar for reargument 399 U.S. 922, 90 S.Ct.",
"own conduct is constitutionally protected. United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. This rule has been relaxed in cases dealing with statutes affecting free expression. See United States v. Raines, supra, at 22, 80 S.Ct. 519 (dictum); Thornhill v. Alabama, 1940, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). However, even where free speech is involved, it may be that standing should not be granted unless the defendant’s conduct is at least arguably constitutionally privileged. Cf. Brown v. Louisiana, 1966, 383 U.S. 131, 143, 147-148, 86 S.Ct. 719, 15 L.Ed.2d 637 (concurring opinion of Mr. Justice Brennan); Dennis v. United States, 341 U.S. 494, 515-517, 71 S.Ct. 857, 95 L.Ed. 1137. We do not reach such questions. JULIAN, District Judge (dissenting). I do not agree with the majority. The constitutionality of the Massachusetts criminal obscenity statute is presently being litigated in the Massachusetts Courts. Pending final adjudication by the Supreme Judicial Court of the plaintiffs’ appeal from their conviction in the Superior Court for violating that statute, this Court should abstain from taking further action in this case and should not interfere with the enforcement of the statute by the Commonwealth by enjoining its public officials from prosecuting the plaintiffs for additional violations of the statute should they persist in exhibiting the film while their conviction still stands. It is my understanding that for the purpose of deciding the questions presently before us the Court assumes that the film involved in this litigation is in fact obscene within the meaning of the law. In fact, no evidence has been taken and no finding made on this issue by this Court. The Superior Court has found the film to be obscene. The plaintiffs’ reliance on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), is untenable. The case before us is governed by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The precise issue in Roth",
"dispute that “Lolita Col- or Special 18” is child pornography within 18 U.S.C. § 2252, nor does he address whether the pornography in question falls within the Ferber criteria of unprotected material. See Ferber, 458 U.S. at 764-765, 102 S.Ct. at 3358-59. Rather, Marchant argues that, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), establishes that the First Amendment shields knowing receipt of child pornography from criminal prosecution. Because Stanley protects the right to possess obscene material in the privacy of one’s own home, Stanley allegedly protects the right to possess child pornography in one’s own home. We are unable to locate any post-Ferber cases that directly address whether the Stanley right applies to child pornography, as well as to obscenity. Cf United States v. Garot and United States v. Janell Ruth van Y, 801 F.2d 1241, 1246 n. 5 (10th Cir.1986) (refusing to reach con stitutipnality of an Oklahoma statute prohibiting possession of child pornography because conviction was not based on possession); United States v. Thoma, 726 F.2d 1191, 1198 (7th Cir.1984) (implicitly assuming that Stanley applies to child pornography in determining that an investigation did not “impermissibly induce” defendant to leave the Stanley zone of protection), cert. denied 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). We too do not reach this question, because Stanley does not extend to knowing receipt, even if it does extend to child pornography. The Supreme Court’s determination in United States v. Orito, 413 U.S. 139, 141, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973), is controlling: “[T]he essence of Appellee’s contention is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning.” See also United States v. 12 200-ft Reels of Super 8mm. Film, 413 U.S. 123, 127, 129, 93 S.Ct. 2665, 2668, 2669, 37 L.Ed.2d 500 (1973) (the attempt to extend Stanley “overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding",
". For a further discussion of Stanley v. Georgia, see The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 147 — 154 (1969). . The fact that plaintiffs are economically motivated is of no significance. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In Interstate Circuit, Inc. v. Dallas, 1968, 390 U.S. 676 at 684, 88 S.Ct. 1298 at 1303, 20 L.Ed.2d 225, the Court spoke disapprovingly of the effect of the Dallas ordinance upon “one who wishes to convey his ideas through that medium [films], which of course includes one who is interested not so much in expression as in making money * * . There is an alternative possibility, that the Supreme Judicial Court would find the film not obscene. The Superior Court, in an elaborate opinion, has found otherwise. We are not moved by the thought that we should postpone permitting plaintiffs to exhibit their film on the ground that, after all, it is not obscene. . Normally standing is granted only when a defendant’s own conduct is constitutionally protected. United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. This rule has been relaxed in cases dealing with statutes affecting free expression. See United States v. Raines, supra, at 22, 80 S.Ct. 519 (dictum); Thornhill v. Alabama, 1940, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). However, even where free speech is involved, it may be that standing should not be granted unless the defendant’s conduct is at least arguably constitutionally privileged. Cf. Brown v. Louisiana, 1966, 383 U.S. 131, 143, 147-148, 86 S.Ct. 719, 15 L.Ed.2d 637 (concurring opinion of Mr. Justice Brennan); Dennis v. United States, 341 U.S. 494, 515-517, 71 S.Ct. 857, 95 L.Ed. 1137. We do not reach such questions. JULIAN, District Judge (dissenting). I do not agree with the majority. The constitutionality of the Massachusetts criminal obscenity statute is presently being litigated in the Massachusetts Courts. Pending final adjudication by the Supreme",
"639-40, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding statute prohibiting sale of obscene materials to minors); see also Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (stating that “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens”). Of particular importance here, the Supreme Court has consistently upheld restrictions on First Amendment freedoms to combat the “extraordinary problem[ ]” of child pornography. See Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). With these principles in mind, we address each of Matthews’ arguments in turn. III. Initially, Matthews presents an issue of first impression in this circuit: does the First Amendment permit a bona fide reporter to trade in child pornography to “create a work of journalism”? Matthews was convicted of violating the Protection of Children Against Sexual Exploitation Act. The statute prohibits the knowing interstate transportation, by any means including by computer, of “any visual depiction ... of a minor engaging in sexually explicit conduct” or the knowing receipt of such a depiction that has been “transported in interstate ... commerce ... by any means including by computer.” 18 U.S.C. § 2252(a)(1), (2). It contains no exception for transmission or receipt of child pornography with artistic, scientific, literary, journalistic, or other “legitimate” value. Nevertheless, Matthews maintains that the First Amendment entitles him to a defense to conviction under the statute. Matthews principally relies on New York v. Ferber, which involved a constitutional challenge to a state statute, in relevant respects identical to § 2252(a)(1) and (2). See 458 U.S. at 750-51, 102 S.Ct. 3348. In Ferber,the owner of a bookstore “specializing in sexually oriented products” asserted that a New York statute barring dissemination of materials depicting a child engaged in sexual conduct, regardless of whether such materials were obscene, violated the First Amendment. Id. at 751-52, 102 S.Ct. 3348. The Supreme Court unanimously upheld the statute, finding that, consistent with the First Amendment, a",
"including by computer, of “any visual depiction ... of a minor engaging in sexually explicit conduct” or the knowing receipt of such a depiction that has been “transported in interstate ... commerce ... by any means including by computer.” 18 U.S.C. § 2252(a)(1), (2). It contains no exception for transmission or receipt of child pornography with artistic, scientific, literary, journalistic, or other “legitimate” value. Nevertheless, Matthews maintains that the First Amendment entitles him to a defense to conviction under the statute. Matthews principally relies on New York v. Ferber, which involved a constitutional challenge to a state statute, in relevant respects identical to § 2252(a)(1) and (2). See 458 U.S. at 750-51, 102 S.Ct. 3348. In Ferber,the owner of a bookstore “specializing in sexually oriented products” asserted that a New York statute barring dissemination of materials depicting a child engaged in sexual conduct, regardless of whether such materials were obscene, violated the First Amendment. Id. at 751-52, 102 S.Ct. 3348. The Supreme Court unanimously upheld the statute, finding that, consistent with the First Amendment, a state could prohibit the distribution of material that depicted children engaged in sexual acts, even if that material was not obscene. Id. at 756-66, 102 S.Ct. 3348. Thus, the Court determined not only that child pornography, like obscene adult pornography, was without First Amendment protection, but also that a legislature is “entitled to greater leeway in the regulation of pornographic depictions of children” than in the regulation of adult pornography. Id. at 756, 102 S.Ct. 3348. The Ferber Court concluded that a legislature was entitled to “greater leeway” when enacting restrictions on child pornography, because child pornography generates a set of harms distinct from those generated by pornographic depictions of adults — harms related to the sexual abuse of children. The Court found that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757, 102 S.Ct. 3348. The\" First Amendment, the Court explained, does not prohibit a state from banning the dissemination of child pornography not “legally obscene under the Miller [v. California, 413 U.S. 15,",
"sanctions upon the mere [knowing] possession of obscene matter’ is constitutional.” The Court points out (pp. 560-561, 89 S.Ct. p. 1246) that neither Roth nor any subsequent decision dealt with that question but “dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter.” (Emphasis supplied.) And again at p. 567, 89 S.Ct. at p. 1249: “But that case [Roth] dealt with public distribution of obscene materials and such distribution is subject to different objections.” In note 10 on the same page the Court makes reference to the Model Penal Code § 251.4 (American Law Institute, Proposed Official Draft, 1962) which would also make commercial dissemination of obscene matter a criminal offense. The Court concludes by stating (p. 568, 89 S.Ct. p. 1250): “We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.” Thus the Supreme Court itself has declared in clear, unambiguous language that the holding in Roth has not been overruled by the decision in Stanley and is still the law. Accordingly, on the authority of Roth, I would reject as wholly unjustified the plaintiffs’ contention that the Massachusetts obscenity-statute is unconstitutional on its face. On the question of abstention the pertinent cases are Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, and Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. In both those cases the statutes under attack were held to be overbroad and susceptible of sweeping and improper application and therefore justifiably attacked on their face as abridging expression protected by the First Amendment. Additionally, though threatened with prosecution, the petitioner in neither case was then in fact being prosecuted for violating the challenged statute and consequently",
"taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the “line drawing” familiar in the judicial, as in the legislative process: “thus far but not beyond.” Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U. S. 351, 354-356 (1971); id., at 357-360 (Harlan, J., concurring). See also Miller v. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Fragus, 428 F. 2d 1211, 1213 (CA5 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F. Supp. 998, 1000-1001 (ND Ga. 1969), aff’d, 397 U. S. 592 (1970). Cf. Karalexis v. Byrne, 306 F. Supp. 1363, 1366 (Mass. 1969), vacated on other grounds, 401 U. S. 216 (1971). We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene material simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others. United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), and United States v. Reidel, supra, at 355. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, post, at 142-144. It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. “Stanley’s emphasis was on the freedom of thought and mind"
] |
claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. REDACTED In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; In re New York Investors, Inc., 2 Cir., 130 F.2d 90. Under General Order 44, 11 U.S.C.A. following section 53, an attorney for a receiver, trustee or debtor in possession can be appointed only upon order of the court granted upon a petition stating specified facts and the employment of the attorney must be for a specific purpose, unless the court is satisfied the case is one justifying a retainer. General Orders have the force of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243. This General Order cannot be by-passed by the creditors or their attorneys acting for the debtor without the consent of the court.
|
[
"SWAN, Circuit Judge. On July 13, 1939, Porto Rican American Tobacco Company filed a petition for reorganization under chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Its-attorney was the appellant; he had been retained as its counsel for this proceeding on June 23, 1939. The district court immediately approved the petition, appointed trustees for the debtor and allowed them. to retain an attorney to serve as their counsel. Thereafter two committees representing bondholders and two committees-representing Class A stockholders were created and permitted to intervene in the-proceeding. Each of these committees had its own attorney. In March 1940 the trustees proposed a plan of reorganization, which contemplated the formation of a. new corporation to continue the business, and the issuance of preferred stock to the debtor’s bondholders and a junior stock to-the debtor’s Class A stockholders. A. month later the trustees obtained an offer of $4,000,000 for the assets of Congress. Cigar Company (the debtor’s subsidiary), and they thereupon proposed an amended plan based upon acceptance of this offer. The amended plan was confirmed over the opposition of the stockholders’ committees, with whose attorneys the appellant cooperated. -From the order of confirmation the stockholders’ committees took an appeal, as did also the debtor. This court, affirmed the order. In re Porto Rican Am.Tobacco Co., 2 Cir., 112 F.2d 655. Thereupon the attorney for the debtor, the trustees and their counsel, the bondholders’ and stockholders’ committees and their counsel and various other persons who claimed to be entitled to compensation, filed their several petitions therefor in the district court. The appellant applied for an allowance of $260.27 for disbursements and $14,500 for services. The disbursements were practically all incurred in the debtor’s appeal from the order of confirmation ; the services represented approximately 600 hours of work by the appellant and his office associates from May 1939 to June 1940. The district court stated that the services “for which he may be compensated from the estate, consisted principally of filing the petition under chapter X on behalf of the debtor”; it awarded him only $750 for services"
] |
[
"and the Ball Foundation. The claim in question was in existence at the time of the institution of the reorganization proceedings. It was a chose in action which passed to the subsidiary debtor in possession and it was the duty of the subsidiary debtor in possession to collect it. The claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599; In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; In re New York Investors, Inc., 2 Cir., 130 F.2d 90. Under General Order 44, 11 U.S.C.A. following section 53, an attorney for a receiver, trustee or debtor in possession can be appointed only upon order of the court granted upon a petition stating specified facts and the employment of the attorney must be for a specific purpose, unless the court is satisfied the case is one justifying a retainer. General Orders have the force of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243. This General Order cannot be by-passed by the creditors or their attorneys acting for the debtor without the consent of the court. Since appellants do not bring themselves within the General Order in question, it is immaterial whether or not their services were beneficial to the subsidiary debtor. They are entitled to nothing here. Section 242 of the Bankruptcy Act, 11 U.S.C.A. § 642, provides that the judge may allow reasonable compensation",
"861; In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95. In these cases we in effect held that it was the duty of a trustee to perform all services requisite to the administration of the estate and that compensation could not be awarded from the estate to others than himself and his duly authorized attorneys’ and agents (1) unless they benefited the estate and (2) unless the trustee refused to act and formal authorization was procured from the court to proceed in his stead. In re Progress Lektro Shave Corporation, 2 Cir., 117 F. 2d at page 604. The cautious procedure of requiring a preliminary order as a condition of later entertaining an application for payment for services at the expense of estates was adopted in order to mitigate, if not completely avoid, the harassing importunities of numerous claimants for allowances out of the property of insolvent debtors, and to relieve the District Courts from the embarrassment of passing upon the merits of claims for compensation after all the services had been performed instead of determining initially whether the services were such as the trustees or their attorneys were bound to perform. The rule we have adopted clearly applies to compensation for all the services mentioned in subdivisions (a), (b) and (c), supra, except those in which the receivers, trustees, or their attorneys may have had personal interests so opposed to those of the creditors that only the latter would be likely to question what was allowed. It is said that the same reasoning should apply to Endelman’s allowances because the trustees refused to appeal from the order allowing them, though they were requested by the RFC to do so. But there was nothing to prevent an application by the RFC to the court for an order directing the trustees to appeal (and they were apparently appropriate persons to do so) or authorizing the RFC to do so in their stead. Under such circumstances, we think an application was necessary before the RFC was entitled to claim any compensation from the estate for appealing Endelman’s allowances. Compensation for opposing",
"provides: “No attorney for a receiver, trustee or debtor in possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to fender, the necessity for employing co.unsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court, may authorize his employment, and such employment shall be for specific- purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall appear that he failed to make diligent inquiry into the connections of said attorney. * * * ” It has been repeatedly held that an attorney is not entitled to compensation unless there has been full compliance with General Order 44. Albers v. Dickinson, 8 Cir., 127 F.2d 957 and cases there cited. Further, it appears that on May 23, 1945, the then district judge refused an allowance of $450 to the receiver’s attorney for services rendered up to that time “-for the reason that the Receiver has not filed herein any Petition for the appointment of an attorney for said receiver.” The district court, in",
"in effect, operating under General Order 44 in Bankruptcy. It is well-settled that unless counsel have been approved by the court, though their services were of value to the court in a Chapter X proceeding, they must be denied compensation. This Court, speaking through Judge Maris, in In re National Tool & Mfg. Co., 209 F.2d 256, 257, stated as follows: “It is clear that General Order 44 applies to reorganization proceedings under Chapter X of the Bankruptcy Act. It is equally clear that Mr. Mode was not appointed as an attorney for the trustees of the debtor in the manner required by General Order 44. It is settled that under these circumstances an attorney may not be compensated out of the debtor’s estate even though he may have rendered valuable services to the trustees. It follows that the district court was without authority to make the order appealed from.” In In re Progress Lektro Shave Corp., 2 Cir., 117 F.2d 602, the court stated, in denying compensation to counsel: “There is no question but that the appellant acted throughout in good faith and a denial to him of compensation is a harsh conclusion. However, the law is unquestionably settled that the order of the district court was correct.” Gochenour v. Cleveland Terminals Building Co., 6 Cir., 142 F.2d 991, 993, cert. denied 323 U.S. 767, 65 S.Ct. 120, 89 L.Ed. 614; Albers v. Dickinson, 8 Cir., 127 F.2d 957; Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 498; In re Pedisich, D.C., 103 F.Supp. 199; In re Robertson, 4 F.2d 248 (3rd Cir.). That the gaining of the necessary approval of the court was a requisite, there can be no doubt, since the final sentence of Section 328 of the Bankruptcy Act, 11 U.S.C., states: “Upon the filing of such amended petition, or of such creditors’ petition, and the payment of such additional fees as may be required to comply with section 132 of this Act, such amended petition or creditors’ petition shall thereafter, for all purposes of Chapter X of this Act, be deemed to have been",
"possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to render, the necessity for employing counsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court may authorize his employment, and such employment shall be for specific purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession— shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall appear that he failed to make diligent inquiry into the connections of said attorney. Nothing herein contained shall prevent the judge, in proceedings under section 77 of the Act, from authorizing the employment of attorneys who are attorneys of the corporation, or associated with its legal department, in connection with the operation of the business of the corporation by a trustee or trustees under subsection (c) of section 77, when such employment is found by the judge to be in the public interest in relation to such operation and is not adverse to the interests of the trustee or trustees or of the creditors of the corporation.” . Bankruptcy Rule 11-22 makes Rule 215 applicable in",
"judgment of the lower court will be affirmed. Judge VAN DUSEN concurs in the foregoing opinion. . General Order 44 in Bankruptcy reads as follows: APPOINTMENT OP ATTORNEYS No attorney for a receiver, trustee or debtor in possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the counsel whom he wishes to employ, the reasons for his selection, the professional services he is to render, the necessity for employing counsel at all, and to the best of the petitioner’s knowledge all of the attorney’s connections with the bankrupt or debtor, the creditors or any other party in interest, and their respective attorneys. If satisfied that the attorney represents no interest adverse to the receiver, the trustee, or the estate in the matters upon which he is to be engaged, and that his employment would be to the best interests of the estate, the court may authorize his employment, and such employment shall be for specific purposes unless the court is satisfied that the case is one justifying a general retainer. If without disclosure any attorney acting for a receiver or trustee or debtor in possession shall have represented any interest adverse to the receiver, trustee, creditors or stockholders in any matter upon which he is employed for such receiver, trustee, or debtor in possession, the court may deny the allowance of any fee to such attorney, or the reimbursement of his expenses, or both, and may also deny any allowance to the receiver or trustee if it shall ajipear that he failed to make diligent inquiry into the connections of said attorney. Nothing herein contained shall prevent the judge, in proceedings under section 77 of the Act, from authorizing the employment of attorneys who are attorneys of the corporation, or associated with its legal department, in connection with the operation of the business of the corporation by a trustee or trustees under subsection (c) of section 77, when such employment is found by the judge to be",
"awarded $18,000 for legal services in connection with the reorganization and in objections and exceptions to the claims of Midamerica Corporation and J. P. Morgan & Company against the subsidiary debtor. Abrams et al. v. Cleveland Terminals Building Co., 6 Cir., 136 F.2d 537. Section 243 of the Bankruptcy Act, 11 U.S.C.A. § 643, provides in substance that the judge may allow reasonable compensation for services rendered and reimbursement for proper costs and expenses incurred by creditors and the attorneys for them in connection with the administration of the estate. This section of the Act relates entirely to matters in connection with the reorganization of the debtor and proceedings on behalf of creditors and stockholders. It comprehends matters directly affecting the plan of reorganization and excludes those indirectly affecting it. Appellants, having been compensated for services rendered directly in connection with the reorganization, their claim here must me confined exclusively to beneficial services, if any, rendered to the subsidiary debtor in the prosecution of the claims against the Midamerica Corporation and its assignees, the Balls and the Ball Foundation. The claim in question was in existence at the time of the institution of the reorganization proceedings. It was a chose in action which passed to the subsidiary debtor in possession and it was the duty of the subsidiary debtor in possession to collect it. The claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. In re Porto Rican American Tobacco Co., 2 Cir., 117",
"have been made by the petitioning creditors themselves. In re Medina Quarry Co., 191 F. 815 (C. C. A. 2). Passing this, it is apparent that the position of an attorney for petitioning creditors has been misconceived. Apparently the appellants suppose that by acting upon the retainer of the receiver as his attorneys, they acquired that status and may recover on that basis. This is not true. The forty-fourth General Order in Bankruptcy (11 USCA § 53) provides that no attorney shall be appointed for a receiver, except by order of court and upon petition of the receiver, supported by the proposed attorney’s affidavit. Local Rule 4 of the Eastern District of New York is to the same general effect, though a little more stringent in form. A similar rule was before the Supreme Court in Weil v. Neary, 278 U. S. 160, 49 S. Ct. 144, 73 L. Ed. 243, where it was held that its disregard not only prevented the attorney from recovering any compensation, but even invalidated an agreement to share the fees of the attorney actually appointed by the court. The order and the rule were passed to control serious abuses and are to be strictly observed; without an order of court upon full presentation of the relation of the proposed attorney with all other interests involved, not only may he not be retained, but he can recover nothing, no matter how beneficial, or how arduous, his services. He is confined to such an allowance as may reward him for acting for the petitioning creditors, which in the ab sence of a contest on the petition involves only simple duties. The appellants argue that they may at least recover under section 64b (2), 11 USCA § 104 (b) (2), since their services have been the means of recovering a substantial amount for the estate. In this too they are mistaken. While that section does indeed justify such an award after motion to compel the receiver or trustee to undertake a litigation (In re Stearns Salt & Lumber Co., 225 F. 1 [C. C. A. 6]), this",
"creditors. Looking for analogous situations, arising under other provisions of the Bankruptcy Act, we find that it has been held that the attorneys for the petitioning creditors are not entitled to receive compensation from the estate for services or assistance rendered, either to the trustee or to the receiver after their appointment, unless specifically employed, by authority of the court, for that purpose. In re Roadarmour (C.C.A.6, 1910) 177 F. 379: Morse & Tyson v. Irving-Pitt Mfg. Co. (C.C.A.8, 1927) 18 F.(2d) 692; In re Floore (C.C.A.5, 1926) 16 F.(2d) 113; 6 Remington on Bankruptcy (3d Ed.) § 2692. And unpleasant though the task of rejecting claims of attorneys for services actually rendered in bankruptcy, when either not authorized or incurred in violation of the General Orders in Bankruptcy or of' rules of court, may have been,' at times, courts have performed it repeatedly and unhesitatingly. See Weil v. Neary (1929) 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243; In re G. W. Giannini, Inc. (D.C.N.Y.1936) 14 F.Supp. 1005. One can readily see the wisdom of these rulings. Were the law otherwise, there would be no limit to the burden which might be placed upon an estate if attorneys for the bankrupt or individual creditors could, by doing work which it is not their duty to do, by assisting the trustee, without an order of court allowing their special employment, burden the estate with the added cost of performing work which it is the duty of others to perform. The bankruptcy court would lose control in the matter of fees. “Volunteers” would be numberless. And it is almost certain that in every estate of any size, the courts would be confronted with claims for “voluntary” assistance. Hence the practical wisdom of these rulings, sanctioned by our own Circuit Court, that the attorney for the bankrupt be not compensated for work which the bankrupt is not under legal obligation to do, but vuhich it is the duty of the receiver, trustee or their attorneys to perform. The facts in the instant case show the unwisdom of a departure from these",
"fashioning this agreement was included in their application for allowance as attorneys for the debtor. It is clear that attorneys entitled to fees for services in bankruptcy and Chapter XI proceedings will have their fees reduced proportionately where their services were partly performed on behalf of private clients. 3A Collier on Bankruptcy ¶ 62.12, at 1493 (14th ed. 1971) states: “While an attorney’s association with other parties in interest does not necessarily prevent his appointment as counsel for the estate, yet it may cause him to suffer a reduction of his compensation out of the estate on the ground that certain services are considered to have been rendered for the benefit of his private clients rather than for the estate.” Further, Collier adds: “Where there is such a multiplicity of beneficiaries of one particular service, courts are anxious to see in the estate only a kind of secondary beneficiary of efforts made primarily for, and therefore to be compensated by, the directly interested creditors.” (footnote omitted.) Id. , Similarly, the record in this case indicates that a major portion, if not all, of the disputed 573y3 hours represents time spent by these attorneys rendering legal services for Levine and not for the debtor. On remand, these disputed items should be reviewed item-by-item before a determination is made as to which, if any, are properly chargeable to the debtor. No compensation should be allowed for any services found to have been rendered to Levine as an individual. The appellants’ second objection to the compensation award to the attorneys for the debtor is that the award represents compensation for ministerial and administrative services not properly compensable as professional services within the meaning of General Order 42. General Order 42 provides as follows: “No allowance of compensation shall be made to any attorney for a receiver, trustee or debtor in possession except for professional services.” The standards of professional services are set forth in 3A Collier on Bankruptcy H 62.12, at 1481-82 (14th ed. 1971): “The services for which an attorney for a receiver or trustee may claim compensation are scarcely more sus-ceptable"
] |
"States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention ""that the court should look to state law to determine whether a prior sentence counts for criminal history purposes”). . The two appellate courts that have set forth generic tests for measuring similarity are the Fifth and the Ninth Circuits. The Ninth Circuit test for determining whether an offense is similar to those § 4A 1.2(c) offenses excluded from a defendant’s criminal history was presented in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The Fifth Circuit’s approach, discussed in more detail in the text, was set forth by that court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also REDACTED . We note that the sentence of one month’s court supervision is a considerably lesser penalty than § 4A1.2(c)'s “triggering period” of at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the ""battery aspect"" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S."
|
[
"contention that testimony regarding the statements of others cannot be used to support the enhancement is not correct. We find no error in the district court’s decision to credit the testimony of Agent Wong and accept the factual conclusions of the PSI. We, therefore, affirm the enhancement of West’s sentence for obstruction of justice. Finally, West contends that a prior misdemeanor conviction for possession of gambling paraphernalia in Texas should not have been considered in determining his criminal history category. Under U.S.S.G. § 4A1.2(c), a prior misdemeanor conviction is considered in determining a defendant’s criminal history category unless it is an exempted offense or similar to one of the exempted offenses listed in the Sentencing Guidelines. These excluded offenses, and any similar offenses, are only considered in determining a defendant’s criminal history category if the sentence was at least one year in prison or thirty days probation or if the prior offense is similar to the offense for which the defendant is currently being sentenced. § 4A1.2(c)(1) lists “gambling” as one of the excluded offenses. West argues that possession of gambling paraphernalia is similar to the offense of gambling and, therefore, his prior offense should be considered an excluded offense. If possession of gambling paraphernalia is found to be similar to the offense of gambling, this prior misdemeanor conviction would not be considered because West’s sentence was only three days imprisonment and the prior offense is not similar to the current offenses of tax evasion. Thus, the issue is whether the offense of possession of gambling paraphernalia is similar to the offense of gambling under U.S.S.G. § 4A1.2. In United States v. Hardeman, this Court set up a “common sense” approach to determine whether a prior offense is similar to an exempted offense. We determined that “all possible factors of similarity” should be considered, including: a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates"
] |
[
"‘conviction’ for purposes of 18 U.S.C. §§ 922(g) & (h) is a matter of federal law”)); accord United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention \"that the court should look to state law to determine whether a prior sentence counts for criminal history purposes”). . The two appellate courts that have set forth generic tests for measuring similarity are the Fifth and the Ninth Circuits. The Ninth Circuit test for determining whether an offense is similar to those § 4A 1.2(c) offenses excluded from a defendant’s criminal history was presented in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The Fifth Circuit’s approach, discussed in more detail in the text, was set forth by that court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. West, 58 F.3d 133, 139 (5th Cir.1995) (engaging in Hardeman factor analysis). . We note that the sentence of one month’s court supervision is a considerably lesser penalty than § 4A1.2(c)'s “triggering period” of at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the \"battery aspect\" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). . A disposition of court supervision is a sentencing alternative employed in the discretion of the trial court. People v. Hall, 251 Ill.App.3d 935, 191 Ill.Dec. 161, 163, 623 N.E.2d 751, 753 (1993). When a plea of guilty is entered, the court may order supervision sifter it considers the circumstances of the offense and the “history, character and condition of the offender,” and after it determines that: \"(1) the offender is not likely to",
"§ 4A1.2(c). The Guidelines further provide that “[sentences for misdemeanor and petty offenses are counted” unless they fall within a narrow exception. Id. Section 4A1.2(c) does create a limited exception to this general presumption. For a small category of minor offenses — hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy — prior sentences “are never counted.” U.S.S.G. § 4A1.2(c)(2). For a larger category of offenses, a prior sentence is excluded if it was less than one year probation or thirty days imprisonment and if it was not similar to the instant offense. U.S.S.G. § 4A1.2(c)(l). For both categories, a prior sentence for an offense that is “similar” to a listed offense also may quali fy for the exclusion. U.S.S.G. § 4A1.2(c)(1)-(2). The Guidelines do not define “similar,” and this circuit has not interpreted the term. Other circuits have adopted a variety of approaches for determining whether two offenses are “similar.” Some circuits define “similar” to mean “similar elements.” E.g., United States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997); United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990); see also United States v. Martinez, 905 F.2d 251, 255 (9th Cir.1990) (Wallace, J., concurring). Under this approach, the court compares the elements of a prior offense to the elements of the relevant offense listed in Section 4A1.2(c). Other courts apply a multi-factored test to determine whether two offenses are “similar.” E.g., United States v. Booker, 71 F.3d 685, 689-90 (7th Cir.1995); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); Martinez, 905 F.2d at 253-54. Under this approach, courts examine factors such as “a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Hardeman, 933 F.2d at 281; see also Booker, 71 F.3d at 689 (considering the Hardeman factors). Courts using the multi-factored approach generally include the elements of the offense as",
"United States v. Unger, 915 F.2d 759, 763 (1st Cir.1990); see also United States v. Martinez, 905 F.2d 251, 255 (9th Cir.1990) (Wallace, J., concurring). Under this approach, the court compares the elements of a prior offense to the elements of the relevant offense listed in Section 4A1.2(c). Other courts apply a multi-factored test to determine whether two offenses are “similar.” E.g., United States v. Booker, 71 F.3d 685, 689-90 (7th Cir.1995); United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); Martinez, 905 F.2d at 253-54. Under this approach, courts examine factors such as “a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Hardeman, 933 F.2d at 281; see also Booker, 71 F.3d at 689 (considering the Hardeman factors). Courts using the multi-factored approach generally include the elements of the offense as one of the relevant factors. See, e.g., Booker, 71 F.3d at 689; Hardeman, 933 F.2d at 281. As Hardeman illustrates, the approach of the circuits to the similarity inquiry overlaps. Many circuits appear to recognize that the elements of the offense must play a significant role in determining whether two offenses are “similar” for purposes of Section 4A1.2(e). After all, offenses do consist of the essential elements of the crime. An emphasis on the elements comports with the plain meaning of “similar.” When two items are “similar,” they are “[n]early corresponding; resembling in many respects.” Black’s Law Dictionary 1240 (5th ed.1979). Thus, when two offenses are similar, their essential elements are “nearly corresponding” or “resembling in many respects.” By contrast, some of the factors used in the multi-factor tests leave the law indeterminate. For example, the Ninth Circuit considers, among other factors, whether conduct “is universally regarded as culpable.” Martinez, 905 F.2d at 254. It undertakes this inquiry by looking to the Model Penal Code and the laws of other jurisdictions. Id. at 253-54. But",
"at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the \"battery aspect\" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S. 906, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). . A disposition of court supervision is a sentencing alternative employed in the discretion of the trial court. People v. Hall, 251 Ill.App.3d 935, 191 Ill.Dec. 161, 163, 623 N.E.2d 751, 753 (1993). When a plea of guilty is entered, the court may order supervision sifter it considers the circumstances of the offense and the “history, character and condition of the offender,” and after it determines that: \"(1) the offender is not likely to commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.\" 730 ILCS 5/5-6-l(c). It is notable that these factors mirror those found in Hardeman. . Consistent with the goal of “avoiding unwarranted sentencing disparities among defendants with similar records,\" 28 U.S.C. § 991(b)(1)(B), we do not \"plumb the nuances,\" Unger, 915 F.2d at 962, of the Illinois definition of \"disorderly conduct.\" The parameters of a listed offense are \"a question of federal law, not state law.” Id. at 963 & n. 5 (noting agreement with the approach articulated by Judge Wallace, concurring in Martinez, that \"the question is one of federal law, pure and simple”). . Two federal appellate decisions have considered whether a criminal history point should be given for the crime of criminal damage to property. Each affirmed the district court’s assessment of a point for the",
"v. Martinez, 905 F.2d 251, 253 (9th Cir.1990). It maintains that such a method would run counter to the Sentencing Reform Act’s attempt to provide uniform treatment for similarly situated defendants. United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). The Government suggests instead that we compare the elements and purposes of each offense to determine whether they are similar. It contends that failure to obtain insurance demonstrates not simply indifference to the law, but indifference toward the public generally by leaving- other persons exposed to financial risk. This offense, it argues, contains this additional element which driving without a license does not, thus making them dissimilar. Cases in other circuits have rather strictly followed the listed offenses and have generally been reluctant to expand the number of offenses which are “similar” to those listed. The opinions, however, provide little in the way of guidance and they fail to establish any kind of analytical framework from which to approach this issue. Most simply state, usually in a paragraph or less, that the offense the defendant is charged with is not similar to a listed offense. See, e.g., Unger, 915 F.2d at 763 (“[ujnder no stretch of the imagination” can the conduct underlying prior juvenile offense for waywardness be considered similar to status offenses like loitering); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (rejecting argument that conviction for assault and criminal damage to property is similar to disorderly conduct or disturbing the peace); cert. denied, — U.S. -, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); United States v. Dillon, 905 F.2d 1034 (7th Cir.1990) (“While the exempted offenses listed by [defendant] are similar to the resisting arrest aspect of his prior offense, none of the exempted offenses is similar to the battery aspect of [defendant’s] prior conviction.”); United States v. Lewis, 896 F.2d 246, 250 (7th Cir.1990) (operating a motor vehicle while intoxicated is “under no stretch of the imagination” similar to any of the listed offenses). The only decision outlining a position in any",
"simply state, usually in a paragraph or less, that the offense the defendant is charged with is not similar to a listed offense. See, e.g., Unger, 915 F.2d at 763 (“[ujnder no stretch of the imagination” can the conduct underlying prior juvenile offense for waywardness be considered similar to status offenses like loitering); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (rejecting argument that conviction for assault and criminal damage to property is similar to disorderly conduct or disturbing the peace); cert. denied, — U.S. -, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); United States v. Dillon, 905 F.2d 1034 (7th Cir.1990) (“While the exempted offenses listed by [defendant] are similar to the resisting arrest aspect of his prior offense, none of the exempted offenses is similar to the battery aspect of [defendant’s] prior conviction.”); United States v. Lewis, 896 F.2d 246, 250 (7th Cir.1990) (operating a motor vehicle while intoxicated is “under no stretch of the imagination” similar to any of the listed offenses). The only decision outlining a position in any depth is the Ninth Circuit’s opinion in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The majority in that case adopted an approach which examines the level of culpability involved in the offenses being compared and the degree to which the unlisted offense indicates a likelihood of recurring criminal conduct. Judge Wallace in his concurring opinion took exception to the majority’s approach and stated that the court should simply compare the elements of the listed and unlisted offense to determine whether the two offenses are similar. See also Unger, 915 F.2d at 762 n. 5 (explicitly rejecting Martinez majority’s approach and accepting position of J. Wallace). He also noted that the method adopted by the majority is less useful when analyzing the offenses in subsection (c)(1), the section we address here, because that section contains offenses which do exhibit an element of culpable conduct. Id. at 256. The offenses listed in subsection (c)(2), in contrast, are rather innocuous offenses such as loitering or hitchhiking, offenses which are easily distinguishable from violations involving a greater",
"he raised no objection below to the inclusion of these two sentences in his criminal history score', our review is for plain error alone. E.g., United States v. Frazier, 213 F.3d 409, 417-18 (7th Cir.2000). The court did not plainly err by assigning a criminal history point to the sentence of conditional discharge. Section 4A1.2(c)(1)(A) provides that sentences for misdemeanor and petty offenses are counted in the criminal history' score, except that sentences for 15 identified offenses ranging from careless or reckless driving to trespassing' — and for other offenses similar to those listed — are to be counted in the criminal history computation only if “the sentence was a term of probation of at least one year oh a term of imprisonment of at least thirty days.” The parties assume that domestic battery, although not one of the crimes listed in the section 4A1.2(e)(l)(A), is an offense similar to those listed, such that his domestic battery sentence can only be counted if it required him to spend at least 30 days in jail or at least one year on probation. See generally United States v. Boyd, 146 F.3d 499, 501 (7th Cir.1998) (explaining how this circuit determines whether an offense is similar to those listed in the guideline). We have our doubts about the validity of that assumption, as Illinois conditions a conviction for domestic battery on proof that the defendant intentionally or knowingly in flicted bodily harm upon, or made physical contact of an insulting or provocative nature with, a family or household member. 720 Ill. Comp. Stat. 5/12—3.2(a); see United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (sentence for resisting arrest and battery on police officer properly counted pursuant to section 4A1.2(c)(1), as battery component of conviction was not similar to offenses listed in guideline); see also United States v. Horton, 158 F.3d 1227 (11th Cir.1998) (per curiam) (simple assault is not similar to offenses listed in guideline) (collecting cases). We may set that issue aside, however. Even assuming that domestic battery is similar to the listed offenses, Zuniga-Lazaro’s sentence would be excluded from the",
"past convictions, and that under a proper reading of § 4A1.2(c), his criminal history score should be only nine points. Before turning to the merits of this claim, we note that we review a district court’s interpretation and application of the Guidelines de novo, see, e.g., United States v. Zagari, 111 F.3d 307, 323 (2d Cir.1997), and its findings of fact for clear error, id. We also note that other circuits have uniformly found the classification of offenses as “similar” to the offenses listed in § 4A1.2(c) to be a matter of federal law, even though the prior offenses are defined and the sentences imposed under state law. See United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993); United States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir.1991); United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990). We agree, and hold that classification of unlisted offenses pursuant to § 4A1.2(e) is a matter of federal law. A. U.S.S.G. § 4A1.2(c) Chapter Four, Part A of the Guidelines sets out the procedure for calculating a defendant’s criminal history score. As the Introductory Commentary to the chapter explains, an assessment of criminal history is made because “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” The chapter begins with section 4A1.1, which gives an overview of the scoring system. Section 4A1.1, among other things, assigns between one and three points for each prior conviction based on the length of the sentence imposed. Section 4A1.2 further elaborates on the point system established by § 4A1.1. Subsection (c) of § 4A1.2 explains which prior sentences should be excluded from the criminal history score. Because the proper interpretation of this subsection is the only issue in this appeal, we quote it in its entirety: § 4A1.2(c). Sentences Counted and Excluded Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if",
"States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997), has traditionally guided courts in this judicial circuit in their analysis of similarity under § 4A1.2(c)(2). In Elmore, we were asked to determine whether a defendant’s prior convictions for possession of drug paraphernalia, assault, and harassment, should have been counted in his criminal history score, or whether they were “similar to” disorderly conduct, which the Guidelines explain should not be counted. Id. at 25. Stating that the “apparent concern of the Guidelines” was that courts might count an offense identical to those in the enumerated list, merely because the offense happened to go by a different name under state law, we held that courts should evaluate similarity by looking to the elements of the offense itself, rather than simply the name by which it is known. Id. at 27. We recognized in Elmore that not all of our sister Courts of Appeals shared our approach. We noted that when the Court of Appeals for the Fifth Circuit in United States v. Hardeman, 933 F.2d 278 (5th Cir.1991), was asked whether driving without insurance was “similar to” driving without a license, it used a multi-factor approach that looked to “all possible factors of similarity,” including the respective punishments, levels of culpability involved, and the degree to which commission of the offenses indicated a likelihood of recurring criminal conduct. Elmore, 108 F.3d at 27. In a similar inquiry, the Court of Appeals for the Seventh Circuit considered the Hardeman factors, but emphasized the “circumstances surrounding” and the “factual basis for” the defendant’s prior conduct, as well as the amount of punishment he actually received. United States v. Booker, 71 F.3d 685, 690 (7th Cir.1995). The Court of Appeals for the Ninth Circuit, in contrast, asked whether the conduct underlying a prior conviction was “universally regarded as culpable,” and whether it was a predictor of recurring criminal conduct. United States v. Martinez, 905 F.2d 251, 254 (9th Cir.1990). In 2007, the Sentencing Commission took note of the divergent approaches in the Courts of Appeals and published an amendment designed to unify them. The Guidelines",
"the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, the elements of the offense, the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. 933 F.2d at 281 (emphasis supplied). As the Fifth Circuit explained, this method allows the district court “to screen out past conduct which is of such minor significance that it is not relevant to the goals of sentencing.” Id. This non-exhaustive list of factors is intended to help the district court “take into account the relative severity of a prior offense as well as the degree to which it indicates the likelihood of future criminal behavior.” United States v. Gadison, 8 F.3d 186, 193 (5th Cir.1993). The First, Third, and Fourth Circuits subscribe to a more limited approach to the determination of similarity. These circuits endorse an interpretation of “similar” that focuses on the degree of commonality between the “elements” or “substance” of the conduct underlying the Listed Offenses and the conduct underlying potentially “similar” offenses. See United States v. Harris, 128 F.3d 850, 853-55 (4th Cir.1997) (crime of selling alcohol to a minor is not similar to the Listed Offenses because the crime does not “share common elements with any of the listed offenses”); United States v. Elmore, 108 F.3d 23, 26- 27 (3d Cir.1997) (rejecting defendant’s argument that his prior convictions for harassment, assault and possession of drug paraphernalia are similar to the Listed Offense of disorderly conduct); Unger, 915 F.2d at 762-63 (court should look to the “conduct underlying defendant’s three juvenile adjudications” to determine whether they were status offenses such as those listed under § 4A1.2(c)(2)). Of the remaining circuits, the Ninth has articulated the applicable test in two different ways. See United States v. Sandoval, 152 F.3d 1190, 1192 (9th Cir.1998). The first was adopted in United States v. Martinez (Clyde), 905 F.2d 251 (9th Cir.1990). There, the court analyzed the offenses listed in § 4A1.2(c)(2) and concluded that they “are excluded ... because they are of such minor significance"
] |
or four police officers (not including the officer who questioned Gaston) standing guard. There was no evidence to suggest that the police had any concern that these persons were armed, would be uncooperative, destroy evidence, or escape. Cf. Bautista, 684 F.2d at 1289-90. Under the circumstances, as “there was nothing to suggest that any of the officers were any longer concerned with their own physical safety,” Gaston was “in police custody.” New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984). Unlike in the only case cited by the government in which a statement was taken at the premises from a defendant in handcuffs at the time of the execution of a search warrant, REDACTED Gaston was not informed that he was not under arrest or that the handcuffs were for his and the officers’ safety. Second, the routine booking exception under Muniz applies only to questions that are necessary to assist the police in carrying out administrative functions. Muniz, 496 U.S. at 592-600, 602 n. 14, 110 S.Ct. at 2649-50, 2650 n. 14. In Muniz, the Supreme Court distinguished between routine booking questions “to secure the biographical data necessary to complete booking or pretrial services,” id. at 601, 110 S.Ct. at 2650 (citations omitted), and the type of question that, while related, goes beyond what is necessary for booking purposes. While the exception extends to questions “reasonably related to the police’s administrative concerns,” id.
|
[
"the questioning of Newton falls within the “public safety” exception to the normal requirements under Miranda carved out by the Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In Quarles, a woman told two police officers on patrol she had just been raped and that the perpetrator had entered a nearby supermarket. She gave the officers a detailed description of the man and advised them that he was carrying a firearm. After they entered the supermarket, the officers saw a man who fit the description who then fled toward the back of the store. The officers pursued the man, quickly apprehended him, and frisked him. No gun was found, but the officers observed that the suspect was wearing an empty holster. An officer handcuffed the suspect and, without giving the Miranda warnings, asked him where the gun was. The man “nodded in the direction of some empty cartons and re sponded, ‘the gun is over there.’” Id. at 652, 104 S.Ct. at 2629. The officers searched the empty cartons and found a firearm. At that point, the officers notified the suspect he was under arrest and read him the Miranda warnings. Quarles moved to suppress the statements and the gun. The Court held that “on these facts there is a ‘public safety’ exception to the requirement that Miranda warnings must be given before a suspect’s answers may be admitted into evidence.” Id. at 655, 104 S.Ct. at 2681. Under the exception, when officers ask “questions necessary to secure their own safety or the safety of the public,” the responses of a suspect may be admitted even if the Miranda warnings have not been administered. Id. at 659, 104 S.Ct. at 2633. The officers in Quarles had “every reason to believe” the gun was concealed somewhere in the supermarket. Id. at 657, 104 S.Ct. at 2632. It therefore posed a danger to the public and the police because “an accomplice might make use of it [or] a customer or employee might later come upon it.” Id. The limits of Quarles’ “public safety”"
] |
[
"are normally and reasonably related to police administrative concerns. See id. at 601-02, 110 S.Ct. 2638; Carmona, 873 F.2d at 573; accord Rodney, 85 N.Y.2d at 292-94, 624 N.Y.S.2d 95, 648 N.E.2d 471. In Muniz, the Supreme Court explained that “a routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services” and that permissible questions •include those that “appear reasonably related. to the police’s administrative concerns.” 496 U.S. at 601-02,110 S.Ct. 2638 (quotation marks omitted); see also United States v. Gotchis, 803 F.2d 74, 79 (2d Cir.1986); cf. Rodney, 85 N.Y.2d at 292-93, 624 N.Y.S.2d 95, 648 N.E.2d 471 (noting that “responses to routine booking questions-pedigree questions, as we have referred to them-are not suppressible even when obtained in violation of Miranda\" and that such questions avoid any ground for challenging the voluntariness of a statement made in response to the questions). Whether the information gathered turns out to be incriminating in some respect does not, by itself, alter the general rule that pedigree questioning does not fall under the strictures of Miranda. See Gotchis, 803 F.2d at 79 (affirming admission of defendant’s response to a pedigree question, even though the response helped establish defendant’s intent to commit the crime with which he was charged); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112 (2d Cir.1975) (affirming admission of defendant’s response to a pedigree question, even though the response helped establish the identity of defendant as the rapist in question). In thi~ case, the appellate division correctly determined that Arroyo's \"inquiry as to [Rosa's] actual hair color was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating respoitse~\" Rosa, 294 A.D.2d at 160, 743 N.Y.S.2d 400. Arroyo and Fitzgerald were engaged in a routine administrative process, and the booking. questions were presented to Rosa in the exact order that the questions appeared on the booking form and without any substantive deviation from the form of the questions presented. Spaces were provided on the form for the entry of basic",
"reasonably likely to elicit an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (citation omitted). “Routine booking questions,” or questions posed to secure the personal history data necessary to complete the booking process, are exempt from Miranda’s coverage. Id. This court has adopted the view that: “Ordinarily, ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). Thus, absent evidence that a defendant has particular susceptibility to the questioning or that the police used the booking questions to elicit incriminating statements from the defendant, routine biographical questions are not ordinarily considered interrogation. Id. at 1024. Whether the agents “interrogated” Clark is an issue of fact we review for clear error. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). Clark agrees that the questions posed by Agent Milhills sought only routine information for the booking form. He offers no evidence to support his conclusion that Agent Milhills used the questions as “mere pretext” to elicit incriminating information, nor does Clark offer any evidence to establish that he was particularly susceptible to that line of questioning. Moreover, some 15 minutes elapsed between the end of the booking questions and answers, and the incriminating statements Clark claims were inadmissible. Thus, we do not find that the district court clearly erred when it concluded that there was no interrogation. Because Clark was not interrogated, within the meaning of Miranda, during the ride to Grand Rapids, the statements he made that went beyond the scope of Milhills’s “booking questions” were voluntary utterances. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible into evidence.” Miranda, 384 U.S. at 478, 86 S.Ct. at 1629. B. Clark also asserts that the government’s rebuttal argument improperly referred to Clark’s failure to call the special agent who accompanied Clark and Agent Milhills to Grand Rapids. He claims that it constituted prosecutorial misconduct and denied him a",
"other than in response to the routine booking questions were voluntary. As a general rule, when a defendant is in custody, law officials must give him appropriate Miranda warnings before interrogation begins; otherwise, any statements resulting from the police interrogation will be inadmissible unless the defendant clearly and intelligently waived his rights. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Interrogation is defined as “questioning initi ated by law enforcement officials.” Id. at 444, 86 S.Ct. at 1612. This definition has been extended to the “functional equivalent” of express questioning and includes, “any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Custodial interrogation includes “words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have ... the force of a question on the accused’ ... and therefore be reasonably likely to elicit an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (citation omitted). “Routine booking questions,” or questions posed to secure the personal history data necessary to complete the booking process, are exempt from Miranda’s coverage. Id. This court has adopted the view that: “Ordinarily, ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). Thus, absent evidence that a defendant has particular susceptibility to the questioning or that the police used the booking questions to elicit incriminating statements from the defendant, routine biographical questions are not ordinarily considered interrogation. Id. at 1024. Whether the agents “interrogated” Clark is an issue of fact we review for clear error. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). Clark agrees that the questions posed by Agent Milhills sought only routine information for the booking form. He",
"upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s adminis trative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda. The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[Requiring a driver to perform physical [sobriety] tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” 377 Pa. Super., at 387, 547 A. 2d, at 422 (quoting Commonwealth v. Benson, 280 Pa. Super., at 29, 421 A. 2d, at 387). With respect to Muniz’s verbal statements, however, the court concluded that “none of Muniz’s utterances were spontaneous, voluntary verbalizations,” 377 Pa. Super., at 390, 547 A. 2d, at 423, and because they were “elicited before Muniz received his Miranda warnings, they should have been excluded",
"reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). “As long as the person to whom questions are put remains, free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Accordingly, “[a]n arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (emphasis in original). Examples of what might constitute a seizure include “the threatening presence of several officers, the display of weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In this case, twenty FBI agents surrounded him on the street and refused him permission to return to his own home, call his brother, or drive to the FBI office. The nature of these allegations raise a question as to whether “[a]s a practical matter, [he] was under arrest.” Florida v. Royer, 460 U.S. 491, 503, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A hearing is necessary to examine the totality of circumstances and determine whether and when he was arrested. Were the Agents Given Involuntarily? determining a dant’s statements to the police or other government agents were involuntary, courts must look at the totality of the circumstances surrounding the interrogation. See United States v. Ruggles, 70 F.3d 262, 264-65 (2d Cir.1995) (“In mak ing this review, we considered, as we are required, to do, ‘the totality of all the surrounding circumstances.’ ” (citation omitted)). Courts should consider the following factors: “the",
"(2000). But the Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory. See, e.g., Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 552-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). These requests are proper without regard to the absence of reasonable suspicion, the Court made clear in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), because “mere police questioning does not constitute a seizure.” As a result, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Ibid., quoting from Royer, 460 U.S. at 497, 103 S.Ct. 1319. See also California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (defining “seizure” as “taking possession,” a category that does not comprise questioning); Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen’ ”) (quoting from Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Most of these decisions concern questions asked of persons not under arrest (though often as a practical matter not free to walk away, see Bostick and Delgado). Are things different when the suspect is in formal custody? It is difficult to see why custody should turn an inquiry into a “seizure.” Posing a question still does not meet the",
"custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also Muniz, 496 U.S. at 600-01, 110 S.Ct. 2638; accord United States v. Carmona, 873 F.2d 669, 573 (2d Cir.1989); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.1988). The Supreme Court has explained that “any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining what the police reasonably should have known.” Muniz, 496 U.S. at 601, 110 S.Ct. 2638 (internal quotation marks omitted). 1 The collection of biographical or pedigree information through a law enforcement officer’s questions during the non-investigative booking process that typically follows a suspect’s arrest, however, does not ordinarily implicate the prophylactic protections of Miranda, which are designed to protect a suspect only during investigative custodial interrogation. Such interrogations customarily involve questions of a different character than those that are normally and reasonably related to police administrative concerns. See id. at 601-02, 110 S.Ct. 2638; Carmona, 873 F.2d at 573; accord Rodney, 85 N.Y.2d at 292-94, 624 N.Y.S.2d 95, 648 N.E.2d 471. In Muniz, the Supreme Court explained that “a routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services” and that permissible questions •include those that “appear reasonably related. to the police’s administrative concerns.” 496 U.S. at 601-02,110 S.Ct. 2638 (quotation marks omitted); see also United States v. Gotchis, 803 F.2d 74, 79 (2d Cir.1986); cf. Rodney, 85 N.Y.2d at 292-93, 624 N.Y.S.2d 95, 648 N.E.2d 471 (noting that “responses to routine booking questions-pedigree questions, as we have referred to them-are not suppressible even when obtained in violation of Miranda\" and that such questions avoid any ground for challenging the voluntariness of a statement made in response to the questions). Whether the information gathered turns out to be incriminating in some respect does not, by itself, alter the general rule that",
"1990707, at *7 (S.D.N.Y. May 7, 2008)); see also Innis, 446 U.S. at 300, 100 S.Ct. 1682 (“ “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”) (quoting Miranda, 384 U.S. at 478, 86 S.Ct. 1602). In addition, the “ ‘routine booking question exception ... exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services’ and that per missible questions include those that ‘appear reasonably related to the police’s administrative concerns.’ ” Rosa, 396 F.3d at 221 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (alterations in original)). The test for whether the questioning constitutes “interrogation” is objective, but the officer’s subjective intent in asking the question is relevant to the inquiry. See id. (“The test [for interrogation] is objective. The subjective intent of the agent is relevant but not conclusive.”) (parenthetically quoting United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983)); see also United States v. Carr, 63 F.Supp.3d 226, 238 (E.D.N.Y.2014) (“[W]hile the analysis is properly focused on what the officer objectively should have known to be reasonably likely to elicit an incriminating response, see Innis, 446 U.S. at 302, 100 S.Ct. 1682, the subjective intent of an officer in asking a question is a relevant, though not conclusive, part of that inquiry.”) “On a motion to suppress in a criminal trial, the defendant bears the burden of demonstrating the basis for the motion—in this case, that he was subject to custodial interrogation.” Carr, 63 F.Supp.3d at 235 (citing United States v. Funaro, 253 F.Supp.2d 286, 293-94 (D.Conn.2003)); see also United States v. Wyche, 307 F.Supp.2d 453, 457 (E.D.N.Y.2004) (“On a motion to suppress evidence in a criminal trial, once Wyche establishes a basis for his motion, the burden rests upon the Government to prove, by a preponderance of the evidence, the legality of the actions of its officers.”). “Once a basis has been established, ‘the prosecution has the burden of establishing by a preponderance of the evidence that",
"be custodial interrogation. The issue here is whether the INS and ATF questioning constituted interrogation for Miranda purposes. As a general rule, interrogation has been defined for this purpose as express questioning or its functional equivalent, which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2649, 110 L.Ed.2d 528 (1990) (plurality opinion) (quoting Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)) (emphasis supplied). As indicated by the emphasized language, there exists an exception to Miranda’s coverage for routine booking questions securing “biographical data necessary to complete booking or pretrial services,” Muniz, 496 U.S. at 601, 110 S.Ct. at 2649 (plurality opinion), although this exception does not apply to questions, even during booking, that are designed to elicit incriminatory admissions. Id. at 602 n. 14, 110 S.Ct. at 2650 n. 14. D’Anjou cites to authority in other circuits, primarily the Ninth, that has elaborated upon the booking exception and held that, in certain instances, questioning regarding identity, address or other routine background matters may both be anticipated to provide incriminating evidence and in fact do so, and that such questioning gains no shelter from the booking exception. United States v. Henley, 984 F.2d 1040 (9th Cir.1993); United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir.1990); United States v. Disla, 805 F.2d 1340 (9th Cir.1986). We do not reach the question of whether we should adopt this judicial gloss to the booking exception because we do not believe that the facts presented would support its application in this case. D’Anjou’s arguments center on Brigham’s questioning regarding his nationality and his address. In this instance, D’Anjou was a legal resident alien, and there was no incriminatory element of the questioning until D’Anjou began supplying false information regarding his citizenship and place of birth. Because the incriminatory element was created by D’Anjou himself through his non-truthful responses, this case is",
"Perkins, ante, at 296. However, “[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining” what the police reasonably should have known. Innis, supra, at 302, n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have . . . the force of a question on the accused,” Harryman v. Estelle, 616 F. 2d 870, 874 (CA5 1980), and therefore be reasonably likely to elicit an incriminating response. We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s adminis trative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn”"
] |
"review thereof."" 5 U.S.C. § 702. Actions subject to review encompass ""[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."" Id. § 704. ""[W]here a statute affords an opportunity for de novo district-court review"" of the agency action, though, APA review is precluded since ""Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the statute's review provision] and the APA."" El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health and Human Servs. , 396 F.3d 1265, 1270 (D.C. Cir. 2005) (citation and internal quotation marks omitted); see also REDACTED "" (quoting Bowen v. Massachusetts , 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted) ). Agency action is defined ""as 'includ[ing] the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.' "" Trudeau v. Fed. Trade Comm'n , 456 F.3d 178, 189 (D.C. Cir. 2006) (quoting 5 U.S.C. § 551(13) (alteration in original) ). Under the APA, a ""reviewing court shall decide all relevant questions of law"
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[
"despite this gap between the relief sought and the relief FOIA affords. 5 U.S.C. § 704. IV. Section 704 reflects Congress’ judgment that “the general grant of review in the APA” ought not “duplicate existing procedures for review of agency action” or “provide additional judicial remedies in situations where Congress has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted). Courts must, however, avoid lightly “construing] [section 704] to defeat the [APA’s] central purpose of providing a broad spectrum of judicial review of agency action.” Id. When considering whether an alternative remedy is “adequate” and therefore preclusive of APA review, we look for “clear and convincing evidence” of “legislative intent” to create a special, alternative remedy and thereby bar APA review. Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health Center v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)). Our cases have identified that intent—or its absence—through several means. For example, where Congress has provided “an independent cause of action or an alternative review procedure” in a purported alternative, we have found clear markers of legislative intent to preclude. El Rio, 396 F.3d at 1270. An alternative that provides for de novo district-court review of the challenged agency action offers further evidence of Congress’ will, given the frequent “incompatibility]” between de novo review and the APA’s deferential standards. Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir. 1990); El Rio, 396 F.3d at 1270 (“[W]here a statute affords an opportunity for de novo district-court review, the court has held that APA review was precluded because ‘Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” (quoting Environmental Defense Fund, 909 F.2d at 1501 (alteration in original))). That said, if the very existence of an alternative remedy is “doubtful,” Bowen, 487 U.S. at 905, 108 S.Ct. 2722, or “uncertain[ ],” El Rio, 396 F.3d at 1274, there is scant basis to displace APA review."
] |
[
"this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005). Thus, for example, relief will be deemed adequate “where a statute affords an opportunity for de novo district-court review” of the agen cy action. Id. at 1270. In such cases, the court has reasoned that “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C.Cir.1990)) (omission and alteration in original). Relief also will be deemed adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. In evaluating the availability and adequacy of alternative remedies, however, the court must give the APA “ ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.’ ” Id. at 1270 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Bowen v. Massachusetts, 487 U.S. at 904, 108 S.Ct. 2722. Appellants contend that the district court erred in two respects in holding that they could not bring a claim under the APA challenging the USDA’s failure to investigate their civil rights complaints: First, the district court misapplied Bowen by disregarding record evidence that under Section 741 there was no real adequate alternative remedy in a court for their failure-to-investigate claims; second, the district court mistakenly relied on this court’s precedents involving claims against an agency for failing to regulate third-party wrongdoers, and therefore failed to follow circuit ■ precedent that permits a plaintiff to bring an APA claim for the agency’s failure to follow its regulations in addition to a non-APA discrimination claim. Appellants emphasize that their survival as farmers depends in significant",
"agency action.” Cohen v. United States, 650 F.3d 717, 723 (D.C.Cir.2011) (en banc) (quoting Maryland Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n.l (D.C.Cir.1985)). The APA permits judicial review of any “[ajgency action made reviewable by statute,” as well as any “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704 (emphasis added). Section 704 thus excludes from APA review those agency actions for which there are alternative judicial remedies in place. As the Supreme Court has explained: At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action.... When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies. Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (footnotes omitted). The APA thus \"does not provide additional judicial remedies in situations where the CongTess has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722 (quoting Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). Instead, where Congress already has created a separate cause of action for review of agency action, “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court' specified by statute” unless, that proceeding is “inadequate].” 5 U.S.C. § 703. Although Section 704 disallows APA review of agency actions when other, adequate remedies are provided by statute, the Supreme Court has noted that this provision “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722. Therefore, when determining whether alternative remedies are adequate, “the court must give the APA ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing",
"the APA: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action with the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702 (emphasis added). The right of review is further subject to § 704, which provides in part: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. 5 U.S.C. § 704 (emphasis added). In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted the above emphasized portions of these statutes to allow district court review of a denial of federal Medicaid funds to the Commonwealth of Massachusetts. Addressing the requirement that the relief sought be “other than money damages,” the Court emphasized “the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with back pay, or for ‘the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.’ ” Id., 108 S.Ct. at 2731-32 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)) (emphasis added by Bowen Court). Adhering to this distinction, the Court found that plaintiff’s suit was not one “seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it [was] a suit seeking to",
"challenge to a pre-enforcement assessment because the case is not ripe for review under the APA. Section 704 of the APA provides that only “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court, are subject to review.” 5 U.S.C. § 704; see also Bowen v. Massachusetts, 487 U.S. 879, 901-903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); Tucson Airport, 136 F.3d 641, 645 (9th Cir.1998). NMB can point to no statute which provides for review of an importer initiated challenge to a pre-enforcement penalty assessment. Thus, the agency action complained of here is only reviewable under the APA if it constitutes “final agency action,” for which there is no other adequate remedy in a court. In order for an agency action to be deemed final at least two conditions must exist. “First, the action must mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks deleted). Although NMB is correct in asserting that the first requirement is met here, we find that the second requirement is not met and therefore review is not provided under the APA. Customs’ assessment of penalties pursuant to 19 U.S.C. § 1592 does not constitute a final agency action because it does not determine the rights or obligations of an importer, nor are there legal consequences flowing from the administrative determination that a penalty is owed. During the administrative review stages of a penalty assessment action, an importer is under no obligation to pay an assessed penalty. Such an obligation only arises after the CIT conducts a de novo review of all issues in a government initiated enforcement proceeding and determines whether a penalty is due and the amount of any such penalty. See 19 U.S.C. § 1592(e) (providing for de novo review by the",
"(footnotes omitted). The APA thus \"does not provide additional judicial remedies in situations where the CongTess has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722 (quoting Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). Instead, where Congress already has created a separate cause of action for review of agency action, “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court' specified by statute” unless, that proceeding is “inadequate].” 5 U.S.C. § 703. Although Section 704 disallows APA review of agency actions when other, adequate remedies are provided by statute, the Supreme Court has noted that this provision “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. at 903, 108 S.Ct. 2722. Therefore, when determining whether alternative remedies are adequate, “the court must give the APA ‘a hospitable interpretation’ such that ‘only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.’ ” Garcia v. Vilsack, 563 F.3d 519, 523 (D.C.Cir.2009) (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967))). Defendants assert that a special, time-honored statutory procedure exists for challenges to IRS actions: the tax refund suit. 28 U.S.C. § 1346 provides that a district court has original jurisdiction of “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been errone ously or illegally assessed or collected, or any penalty claimed to have been collected without authority[.]” 28 U.S.C. § 1346(a)(1). Under the Internal Revenue Code, however, no such suit may be brought until after the challenged tax has been paid and “a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the",
"(Brennan, J., concurring). Thus, before proceeding to the merits of Plaintiffs’ claim, the Court must - ensure that the agency action at issue here is reviewable under the APA. Subject to two exceptions described below, the APA provides an avenue for judicial review of challenges to “agency action.” See 5 U.S.C. §§ 701-706. Under Section 702, “[a] person suffering legal wrong bécause of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Section 702 contains two requirements. First, the plaintiffs must identify some “‘agency action’ that affects [them] in the specified fashion; it is judicial review ‘thereof to which [they are] entitled.’ ” Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting 5 U.S.C. § 702). “Agency action,” in turn, is defined in the APA as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). When, as here, judicial review is sought “not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ ” Lujan, 497 U.S. at 882, 110 S.Ct. 3177 (citing 5 U.S.C. § 704, which provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review”). To obtain review under Section 702, Plaintiffs must additionally show that they. are either “suffering legal wrong” because of the challenged agency action, or are “adversely affected or aggrieved by [that] action within the meaning of a relevant statute.” 5 U.S.C. § 702. A plaintiff claiming the latter, as the States do here, must establish that the “injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan,",
"... without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). The second form of relief is made available by Section 706(1) of the APA, which requires a reviewing court to “compel agency action unlawfully withheld.” Id. § 706(1). Sharkey asserts that jurisdiction vests under the Federal Question Statute, 28 U.S.C. § 1331, because her claim “arises under” the APA. Compl. ¶ 2. Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Darby v. Cisneros, 509 U.S. 137, 146, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (quoting 5 U.S.C. § 702). “[TJhe ‘right of action’ in such cases is expressly created by the [APA], which states that ‘final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,’ at the behest of ‘[a] person ... adversely affected or aggrieved by agency action.’ ” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 229 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (quoting 5 U.S.C. §§ 702, 704). Although the APA does not itself confer subject matter jurisdiction, see Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Federal Question Statute, 28 U.S.C. § 1331, confers jurisdiction over a suit that “arises under” a “right of action” created by the APA, see Bowen v. Massachusetts, 487 U.S. 879, 891 n. 16, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (“[I]t is common ground that if review is proper under the APA, the District Court ha[s] jurisdiction under 28 USC § 1331.”). Because Section 1331 confers jurisdiction on the district courts, a suit that arises under the APA is properly brought in district court. I.A Statutory Preclusion of Judicial Review In determining whether a suit can be brought under the APA, “[w]e begin with the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667, 670, 106 5.Ct. 2133, 90 L.Ed.2d 623",
"625. Following a remand of the APA failure-to-investigate claims, the district court reaffirmed its dismissal of those claims on the ground that Section 741 provided appellants an adequate remedy at law. See Love v. Connor, 525 F.Supp.2d 155; Order, Garcia v. Veneman, Civ. No. 00-2445. The district court certified its interlocutory ruling, and this court granted appellants’ petition for leave to appeal pursuant to 28 U.S.C. § 1292(b). II. The APA provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. In Bowen v. Massachusetts, 487 U.S. 879, 904, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), the Supreme Court interpreted § 704 as precluding APA review where Congress has otherwise provided a “special and adequate review procedure.” Id. at 904, 108 S.Ct. 2722 (internal quotations omitted). An alternative remedy will not be adequate under § 704 if the remedy offers only “doubtful and limited relief.” Id. at 901, 108 S.Ct. 2722. So understood, this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.Cir.2005). Thus, for example, relief will be deemed adequate “where a statute affords an opportunity for de novo district-court review” of the agen cy action. Id. at 1270. In such cases, the court has reasoned that “Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the review provision] and the APA.” Id. at 1270 (quoting Envtl. Defense Fund v. Reilly, 909 F.2d 1497, 1501 (D.C.Cir.1990)) (omission and alteration in original). Relief also will be deemed adequate “where there is a private cause of action against a third party otherwise subject to agency regulation.” Id. at 1271. In evaluating the availability and adequacy of alternative remedies, however, the court must give the APA “ ‘a hospitable interpretation’ such that ‘only upon",
"the case law. The scope of review section of the Administrative Procedure Act, 5 U.S.C. § 706, provides af follows: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or other wise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Emphasis added.) Thus there appear to be three principal standards of review in government employee dismissal cases suggested by the Administrative Procedure Act quoted above or by case law generally: (1) whether there has been procedural regularity, i.e., compliance with statutory and other requirements for the giving of notice, conduct of hearings, allowance of appeals and the like; (2) whether the agency action is arbitrary, capricious or an abuse of discretion (5 U.S.C. § 706(2) (A) ); or (3) whether the agency action is supported by “substantial evidence.” (5 U.S.C. § 706(2) (E).) The second and third tests I do not consider to be the same. While agency action which is arbitrary and capricious, or which constitutes an abuse of discretion, would no doubt be action which is “unsupported by substantial evidence,” the reverse"
] |
taxicab service having a capacity of not more than six passengers and not operated on a fixed route or between fixed termini.’ 3. “Each count fails to show FACTS that the operation is not one excluded from the provisions of Title 49 U.S.C.A. and-more especially paragraph b of Section 303 of Title 49 U.S.C.A.” Under the first contention of the defendants they submit that the government has failed to describe them as common carriers within the meaning of the law and urge that the information discloses that the defendants carried on a “private livery” business, and, as such, were not common carriers. The defendants rely on the following comment of the United States Supreme Court in the case of REDACTED It asserts the right to refuse the service and no doubt would do so if the pay was uncertain, but it advertises extensively, and, we must assume, generally accepts any seemingly “solvent customer. Still, the bargains are individual, and however much they may tend towards Uniformity in price, probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the station and hotels. There is no contract With a third person to serve the public generally. The question whether, as to this
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[
"it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. German Alliance Ins. Co. v. Kansas, 233 U. S. 389, The public does not mean everybody all the time. See Peck v. Tribune Co., 214 U. S. 185, 190. The rest of the plaintiff’s business, amounting to four-tenths, consists mainly in furnishing automobiles from its central garage on orders, generally by telephone. It asserts the right to refuse the service and no doubt would do so if the pay was uncertain, but it advertises extensively and, we must assume, generally accepts any seemingly solvent customer. Still, the bargains are individual, and however much they may tend towards uniformity in price probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the Station and hotels. There is no contract with a third person to serve the public generally. The question whether as to this part of its business it is an agency for public use within the meaning of the statute is more difficult. Whether it is or not, the jurisdiction of the Commission is established by what we have said, and it would not be necessary to decide the question if the bill, in addition to an injunction against taking jurisdiction, did not pray that Order No. 44 of the Commission be declared void. That order, after declaring that the plaintiff was engaged in the business of a common carrier within the meaning of the act and so was within the jurisdiction of the Commission, required the plaintiff to furnish the information called for in a circular letter of April 12, 1913. What this information was does not appear with technical precision, but we assume that it was in substance similar to a later requirement of a schedule showing all rates and charges in force for any service performed by the plaintiff"
] |
[
"highways thereof.” 49 Stat. 543, as amended, 54 Stat. 920, 49 U. S. C. § 302 (a) and (b). “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; or (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, shall the provisions of",
"part or to any bona fide employee or agent of such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits, or with a common carrier by railroad, express, or water. Sec. 203. . . . (b) Nothing in this part, except the provisions of section 204-relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; or (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission",
"carrier” is a person who provides motor vehicle transportation for compensation. 49 U.S.C. § 13102(12). Generally, the Secretary has jurisdiction over motor carriers that transport passengers “between a place in a State and a place in another State.” 49 U.S.C. § 10521(a)(1)(A). However, the R.I.C.A., 49 U.S.C. §§ 10101 et seq., exempts from regulation by the Secretary of Transportation, “a motor vehicle providing taxicab service and having capacity of not more than 7 passengers and not operated on a regular route or between specified places.” 49 U.S.C. § 10526(a)(2). Thus, if D.L.C.’s cars (none of which carries more than seven passengers or operates on a regular route or between specified places) are providing something called “taxicab service,” then the defendant is not entitled to the motor carrier exemption under the F.L.S.A. Because I have concluded that D.L.C. falls within the definition of the “business of operating taxicabs” as set forth by the Department of Labor in its Field Operations Manual, it is not necessary for me to reach this issue. But should I be wrong about the taxicab exemption, then I would have to conclude that defendant was entitled to the motor carrier exemption. I.C.C. exemptions, like F.L.S.A. exemptions, are to be interpreted narrowly. See, e.g., Mr. B’s Services, 934 F.2d at 120-122. Again, only a few courts have also considered—generally in the context of injunc-tive actions commenced by the Interstate Commerce Commission against car services—-whether certain taxi or limousine operators are “motor carriers.” They generally did so under the old Motor Carrier Act, which was worded slightly differently than the R.I.C.A. 49 U.S.C. § 303(b)(2) partially exempted from I.C.C. regulation “taxicabs, or other motor vehicles performing a bona fide taxicab service.” While the “bona fide taxicab service” language was in effect, the I.C.C. took the position that a bona fide taxicab service consisted solely of local operations, which is to say, within a municipality and its immediate environs. Whitman’s Black and White Cab Company, Inc., Common Carrier Application, 47 M.C.C. 737 (1948). The term “local” was thereafter defined by the I.C.C. to encompass a range of 70 miles or",
"but that, in issuing a permit to a contract carrier, it may specify only the “business of the contract carrier covered thereby and the scope thereof,” Section 209(b). This difference in language no doubt reflects Congress’ view of what would best serve the public interest. But there is nothing before us indicating that Congress intended to regulate only plaintiff’s “business,” and not its “service.” Its operations would seem to fall consistently into either plan of regulation, and we must look elsewhere for guidance as to the intent of Congress. Fifth, plaintiff points to Section 207 (a), which requires that common carriers operate over regular routes and between fixed termini, and argues that the proviso, authorizing special or charter operations by “such” carriers, shows an intent to restrict the meaning of common carriers to those which operate over regular routes and between fixed termini. But it is apparent that “such” refers to “common carrier of passengers by motor vehicle,” and it is clear from Section 203(a) (14) that carriers need not operate over fixed routes to come within the definition of common carriers. The fact that common carriers may be granted the right, under the last clause of Section 207(a), to engage in special and charter operations, does not indicate that such operations are not common carriage. It was, rather, made necessary by the first clause of the proviso (which broadly requires common carriage operations to be over regular routes), since charter and special operations are frequently over irregular routes. There remains the question whether plaintiff is a “common carrier” within the terms of Section 203(a) (14) or merely a “contract carrier” under Section 203(a) (IS). Plaintiff contends that there is no “holding out to the general public” where a carrier does not take all comers, but only those who, as a group, negotiate a charter of a bus for a particular journey (so-called charter operations) or those who individually purchase tickets for a particular journey as members of a group assembled by the carrier itself (so-called special operations), i. e., that the statutory definition of “common carrier” does not —",
"discloses that no one has ever been refused any of the three services which defendant purports to furnish. It is not likely that defendant or any of its competitors would have sufficient equipment to care for all the needs and demands of all the railroads in a city the size of Chicago, nor is it necessary, for an unsupplied demand will usually result in sufficient equipment for that purpose. Plaintiff seeks to distinguish between a contract carrier and any other type of carrier, and it urges that each phase of defendant’s business should be considered separately in order to determine the character of the cartage here involved, relying on Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann.Cas. 1916D, 765, and Rathbun v. Ocean Accident Corp., 299 Ill. 562, 132 N.E. 754, 19 A.L.R. 140. In the Kutz case the question was whether the plaintiff was a common carrier under the statute. The court held it was not. It was a livery corporation and asserted the right to refuse customers, a thing which the present defendant never did. There, also, was an exclusive dedication of equipment to a particular customer, which is not present in the instant case. In the Rathbun case there was an exclusive dedication to the customer, and there was no holding out of service to the public. Plaintiff further relies on Thomson v. United States, 321 U.S. 19, 64 S.Ct. 392, 394, 88 L.Ed. 513, in support of its contention that “pick-up and delivery” service is not a common carrier service. In that case an application was made by the railroad company to the Interstate Commerce Commission for rights under the “grandfather clause” as a motor carrier to render coordinated rail-truck freight service. The court held that under paragraph 206(a) of Part II of the Interstate Commerce Act, 49 U.SlC.A. § 306(a), such certificate could be awarded only to one who was a common carrier by motor vehicle. The court said: “ * * * Thus where a person holds himself out to the general public to engage in a",
"the power of regulation and requires the service and type of service which the regulatory authorities'determine to be necessary and convenient in the public' interest then some measure-of protection against indiscriminate and uncontrolled competition must be provided.. The injunction will be denied and the-complaint dismissed on the merits. “ * * * Provided, however, That no terms, conditions, or limitations (in the certificate) shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in 'the certificate, as the development of the business and the demands of the public shall require.” 49 U.S.O.A. § 303(a) (14) “The term ‘common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, tohether over regular or irregular routes, except * * * ” (Emphasis supplied.) 49 U.S.C.A. § 304(b) quoted supra in the body of this opinion. 49 U.S.C.A. § 303(a) “Except as otherwise provided in this section and in section 310a, no common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign: operation on any public highway,, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing sueh operations: Provided, however, That, subject to section 310, if any such carrier or predecessor in interest was -in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or toithin the- territory for which application is made and has so operated sinoe that time, or if engaged in furnishing seasonal service only, was in bona fide operation on June 1, 1935, * * * ” (Emphasis supplied.) 49 U.S.C.A. § 80S (a) “Any certificate issued under section 808 or 307 shall specify the service to be",
"this exemption is not available to Associated as applied to him. Defendants have concluded otherwise and seek summary judgment in their favor, arguing that their business falls within the taxicab exemption to the FLSA’s wage and overtime requirements. The FLSA exempts from its overtime provisions “any driver employed by an employer engaged in the business of operating taxicabs.” See 29 U.S.C. § 213(b)(17). The FLSA does not include any definition of the term “business of operating taxicabs.” Defendants rely on the definition provided in Chapter 24h of the Department of Labor Field Operations Handbook (1999 ed.) which states: 24h01 “ Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected. Defendants contend that its business falls directly within the parameters of this regulatory definition as applied in Cariani v. D.L.C. Limousine Service, Inc., 363 F.Supp.2d 637 (S.D.N.Y.2005), where the court, focusing on the above definition, found that the exemption applied to a limousine company where the company offered door to door services with the time and destination determined by the convenience of the customer, the ears did not adhere to fixed routes, the company did not have contracts with airlines and its fares were more or less equivalent to the fares of taxicab companies. Defendants contend that the business of Associated is similar to the limousine company in Cariani in that plaintiffs duties consisted of driving passengers to requested destination in sedan type vehicles (Lincoln Town Cars) without fixed routes. In addition, Associated is not a party to a contract for recurrent transportation, but rather operates on an event by",
"Supreme Court and the decree was affirmed by the Court of Appeals. 43 App. D. C. 120. The facts are agreed. The plaintiff is a Virginia corporation authorized by its charter, with copious verbiage, to build, buy, sell, let and operate automobiles, taxicabs, and other vehicles, and to carry passengers and goods by such vehicles; but not to exercise any of the powers of a public service corporation. It does business in the Dis trict, and the important thing is what it does, not what its charter says. The first item, amounting to about thirty-five hundredths of the whole, is done under a lease for years from the Washington Terminal Company, the owner of the Union Railroad Station in Washington, which we have mentioned as excluded from the definition of common carriers. By this lease the plaintiff has the exclusive right to solicit livery and taxicab business from all persons passing to or from trains in the Union Station, and agrees in its turn to provide a service sufficient in the judgment of the Terminal Company to accommodate persons using the Station, and is to pay over a certain percentage of the gross receipts. It may be assumed that a person taking a taxicab at the station would control the whole vehicle both as to contents, direction, and time of use, although not, so far as indicated, in such a sense as to make the driver of the machine his servant, according to familiar distinctions. The last facts however appear to be immaterial and in no degree to cast doubt upon the plaintiff’s taxicabs when employed as above stated being a public utility by ancient usage and understanding, Munn v. Illinois, 94 U. S. 113, 125, as well as common carriers by the manifest meaning of the act. The plaintiff is ''an agency for public use for the conveyance of persons’ &c.; and none the less that it only conveys one group of customers in one vehicle. The.exception of the Terminal Company from the definition of common carriers does not matter. The plaintiff is not its servant and does not",
"defines Class A carriers as: common carriers of passengers and/or property operating over a fixed route or between fixed termini in intrastate and interstate commerce, under Certificates of Public Convenience and Necessity. . Had the defendants argued, or had they established, that state law required all prices for identical services along the same route be uniform, this would be a very different case. We do not doubt that the five subject states are capable of entirely displacing the marketplace mechanism of setting prices with a system in which price competition plays no part. The states might have determined that their businesses and consumers would be best protected by a regulatory rate-making process that mandates uniform prices for a given service, typically based on a “just and reasonable” standard, than by the marketplace. Consequently, they could have replaced price competition with a state-mandated price-setting scheme in which intrastate common carriers would compete, but only by means other than price competition. The nature of the carrier’s participation in such a system regulated by legislative or administrative mandate would seem to be entirely different from the nature of its role in the marketplace. Where price competition is permitted (and protected), the individual participant attempts to lower prices so as to attract business from his competitors. Once prices are regulated, however, his participation in the price-setting “system” changes significantly, for his interest will usually lie in raising prices instead of lowering them. By charging a lower price he will ordinarily not gain an advantage over his competitors, who must always charge an identical price. Moreover, he will act in essentially the same manner regardless of whether he is alone or combining with other carriers, by attempting to convince the regulatory body to accept higher tariffs. Were prices made uniform by state mandate, we would question the applicability of an antitrust theory designed to stimulate price competition. Indeed it would be doubtful that such practices as are engaged in by the defendant conferences could correctly be said to be “in restraint of trade,” within the meaning of Section 1 of the Sherman Act. The parties",
"in the United States is transporting goods into New York. The simple response to this contention is that the language of the section is not so limited. Cf. Verbeem v. United States, 154 F.Supp. 431, 433 (E.D.Mich.1957), aff’d per curiam sub. nom., Amlin v. Verbeem, 356 U.S. 676, 78 S.Ct. 1006, 2 L.Ed.2d 1072 (1958). Such a construction would obviously reduce Commission supervision of improper extension of interstate operating authority precisely in those situations in which it is most likely to occur. Cf. United States v. Marshall Transp. Co., 322 U.S. 31, 64 S.Ct. 899, 88 L.Ed. 1110 (1944). Both the language of section 206(a) (7) (A) and its legislative history fail to support the distinction plaintiff urges. Moreover, plaintiff’s reliance on other Commission opinions is misplaced; they establish only that the term “carrier” in the former second proviso and under the relevant 1962 amendments means “motor” carrier, see Security Transp. Co.—Purchase —Security Truck Line, 93 M.C.C. 385 (1963); Monon Transp. Corp. Common Carrier Registration Application, 44 M.C.C. 325 (1945), and that the carriage must be of a regular commercial nature. See Howard’s Express, Inc.— Purchase—Exchange Trucking Corp., 97 M.C.C. 341 (1965) (mail); Peters Common Carrier Application, 73 M.C.C. 331 (1957) (exempt agricultural commodities). In fact, in one prior case involving similar facts, the Commission stated that second proviso operations were improper. See Fess Transp. Ltd., Common Carrier Application, 86 M.C.C. 625, 630 (1961) (dictum), modified on other grounds, 91 M.C.C. 924 (1963). And a related question has also been decided consistently; a second proviso carrier cannot transport goods into a foreign country because the second proviso limits operations to a single state. See Thomas Goodfellow, Inc., Common Carrier Application, 68 M.C.C. 672 (1956); Southwestern Motor Transp., Inc., Extension — Additional Routes, 61 M.C.C. 1 (1952). We conclude that since Scobie’s operates in foreign commerce between New York and Canada, it is a carrier under the Act, and since its operations in Canada are clearly outside New York, the Commission correctly held that Scobie’s was a “carrier engaged in operations outside” New York. Accordingly, if there was a common control"
] |
"See Doc. 1 at 2-3. ""[A] federal court sitting in diversity must apply the choice of law provisions of the forum state in which it is sitting."" Ace Prop. & Cas. Ins. Co. v. Superior Boiler Works, Inc. , 504 F.Supp.2d 1154, 1158 (D. Kan. 2007) ; see also Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This court is in Kansas, of course, so it applies Kansas choice of law provisions. When a contractual dispute contests the ""substance of [a party's contractual] obligation,"" Kansas courts apply the choice of law rule known as lex loci contractus , or ""the law of the state where the contract is made."" REDACTED And, in insurance policy disputes, ""Kansas courts generally find that the contract is made in the state where the policy is delivered."" PetroSantander (USA), Inc. v. HDI Glob. Ins. Co. , 308 F.Supp.3d 1207, 1211 (D. Kan. 2018) (applying Kansas law). Here, Prudential delivered the policy at issue to the Topeka, Kansas, address listed on the Certificate of Insurance. Doc. 1-1 at 1. So, the court applies Kansas contract law. 2. Contract Interpretation a. Kansas law Kansas law classifies contract interpretation and construction as issues of law that the court must decide. Kindergartners Count, Inc. v. DeMoulin , 249 F.Supp.2d 1233, 1242 (D. Kan. 2003) ; see also AMCO Ins. Co. v. Beck , 261 Kan."
|
[
"also for acting negligently. See Spencer v. Aetna Life & Cas. Ins. Co., 227 Kan. 914, 611 P.2d 149, 155 (1980). In Missouri, however, to hold an insurance company liable for bad faith refusal to settle the plaintiff must provide proof that the insurer acted in bad faith. See Ganaway v. Shelter Mut. Ins. Co., 795 S.W.2d 554, 556 (Mo.Ct.App.1990). The district court, in this diversity case, was initially correct in applying Kansas law to determine whether Kansas or Missouri law should govern Ms. Moses’ negligent or bad faith refusal to settle claim. See Mem’l Hosp. of Laramie County v. Healthcare Realty Trust, Inc., 509 F.3d 1225, 1229 (10th Cir.2007). In Kansas, an insurer’s duties are contractually based. See Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79, 90 (1990) (stating that “a wrongful failure to settle arises from the insurer’s contractual obligation to defend” and “[a]n action to enforce that obligation is accordingly based on breach of contract.”). Breach of this contractual duty, however, is determined by a tort standard of care. See id. Since 1957, Kansas courts “have used ‘negligence,’ ‘due care,’ and other tort expressions to describe the substance of what is a contract duty.” Id. This contract-tort fusion has created confusion in defining the duty of good faith, and in describing situations involving negligent or bad faith breaches of duties to settle and defend. See id. This case involves two issues regarding the district court’s choice-of-law determi nation arising out of the insurance contract. First, whether the district court erred in applying Missouri law to determine whether Allstate had a contractual obligation to act in good faith to settle. Second, whether the district court was wrong in applying Missouri law to the question of Allstate’s fulfillment of such obligation. 1. Law Governing the Existence of Allstate’s Contractual Obligation to Act in Good Faith to Settle Kansas courts follow the Restatement (First) of Conflict of Laws (1934) in addressing choice-of-law issues. See ARY Jewelers, L.L.C. v. Krigel, 277 Kan. 464, 85 P.3d 1151, 1161 (2004). The Restatement contains two general rules for contracts cases. See Restatement (First)"
] |
[
"that the district court should have disregarded the contractual choice of Kansas law and applied California law because, as the employee’s state of residence and performance under the contract, California has a materially greater interest in applying its law to invalidate the covenant not to compete, citing Restatement (Second) of Conflict of Laws § 187(2)(b) (1971 & Supp.1989). A diversity court must apply the choice-of-law rules of the forum state, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941), including the forum state’s rule as to whether a contractual choice-of-law provision is enforceable, see Interfirst Bank Clifton v. Fernandez, 853 F.2d 292, 294 (5th Cir.1988). In a case in which there was no contractual choice-of-law clause, the Kansas Supreme Court refused to follow the Second Restatement’s balancing of the competing policies of interested states and opted to adhere to the lex loci contrac-tus rule when it reflected Kansas public policy. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d 1259, 1267-70 (1989), cert. denied, — U.S. -, 110 S.Ct. 758, 107 L.Ed.2d 774 (1990); see also Missouri Pac. R.R. Co. v. Kansas Gas & Elec. Co., 862 F.2d 796, 798 n. 1 (10th Cir.1988). Although we could find no Kansas cases on point, we believe the Kansas courts would likewise refuse to weigh any conflict between Kansas’ and California’s laws and policies, if indeed there is conflict between them, and would apply Kansas law in this litigation as agreed to by the parties in their contract. Although the covenant at issue covers a broad geographic region, Equifax apparently is not attempting to enforce it to the full extent of its language. In similar circumstances, the Kansas Supreme Court has upheld the right to enforce an overly broad covenant to the extent reasonably necessary to carry out the protective intent of the parties. Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133, 137-38 (1950). We think it likely would do so in the circumstances before us. Defendant challenges Equifax’ likelihood of success on the merits",
"law governs plaintiffs claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (in diversity actions, federal court must apply the substantive law of the forum state). In making this determination, the court first applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Kansas adheres to a lex loci delicti approach, meaning that the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731, 735 (1985). The “place of the wrong” is the location in which the last event necessary to impose liability occurred. Id. Neither side addresses the choice-of-law issue. Defendants merely assume in their pleadings that Kansas law is applicable. Plaintiff, although noting that Clinical is a Kansas corporation and that TriSource is a Missouri corporation with its principal office in Missouri, also assumes that Kansas law governs this case. In Ling, the Kansas Supreme Court held that in an action seeking “damages for injuries sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state.” Id. 703 P.2d at 735. The supreme court made clear in Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089, 1092-93 (1987), that the Ling holding extends to all tortious conduct, both intentional and otherwise. With respect to contractual-based claims, lex loci contractus is the governing theory meaning that the law of the state in which the contract was made controls the interpretation of the contract. Safeco Ins. Co. v. Allen, 262 Kan. 811, 941 P.2d 1365, 1372 (1997). All relevant conduct in this ease transpired within Kansas borders. Wolf Creek and Clinical are both located in this forum and conduct all business here. Although TriSource performed its medical review analysis from its Missouri office, it notified plaintiff of its findings at his Kansas apartment and directed its conclusions to Wolf Creek’s Kansas facility. Under",
"note that Kansas law, not Oklahoma law, governs construction of the covenant. A district court sitting pursuant to diversity jurisdiction must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). The well-established law in the state of Kansas is that the place of contract formation governs breach of contract actions. General Electric Capital Corp. v. Selph, 718 F.Supp. 1495, 1496 (D.Kan.1989). See also Dow Chemical Corp. v. Weevil-Cide Co., Inc., 630 F.Supp. 125, 127 (D.Kan.1986) (In Kansas, the lex loci con-tractus rule means the law where the contract is made governs the contract); Simms v. Metropolitan Life Ins. Co., 9 Kan.App.2d 640, 642, 685 P.2d 321, 324 (1984) (“Under Kansas law, choice of which state’s law is applicable to the construction of a contract depends on where the contract is made.”). The parties do not dispute that the covenant was executed by Shackelford in Kansas while he was employed by Heatron in Kansas; thus we will apply Kansas law in resolving the issues before the court. Under Kansas law, a noncompetition agreement is valid and enforceable where three conditions are met. First, the agreement must be a valid and enforceable contract under general principles of contract law. Eastern Distributing Co. v. Flynn, 222 Kan. 666, 670, 567 P.2d 1371, 1376 (1977); H & R Block, Inc. v. Lovelace, 208 Kan. 538, 543-544, 493 P.2d 205, 210 (1972). Defendant challenges the general validity of the contract as unsupported by good consideration. A noncompetition clause must be supported by valid consideration to be enforceable. Puritan-Bennett Corp. v. Richter, 8 Kan.App.2d 311, 313, 657 P.2d 589, 591 (1983); Evco Distributing, Inc. v. Brandau, 6 Kan.App.2d 53, 626 P.2d 1192 (1981). Under Kansas law, there is a rebuttable presumption that contracts are supported by consideration. Uarco, Inc. v. Eastland, 584 F.Supp. 1259, 1262 (D.Kan.1984) (citing Ferraro v. Fink, 191 Kan. 53, 379 P.2d 266 (1963)). Defendant suggests that the covenant lacks adequate consideration because after defendant signed the agreement, he “received nothing in return for signing",
"state’s choice of law rules. Klaxon Co. v. Slentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Thus, the court must look to Kansas law to determine which state’s laws should be applied. With respect to plaintiffs contract claims, the question is easily resolved. The parties agree that pursuant to the choice-of-law provision in the Atchison Agreement, Ontario or Canadian law applies. The court is bound to apply the forum state’s rule as to whether a contractual choice-of-law provision is enforceable. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1360 (10th Cir.1990). Kansas courts have in the past permitted choice of law provisions to control and the court sees no reason why Kansas would not give effect to the provision of the Atchison Agreement under the circumstances of this case. See id. (applied Kansas law as agreed to by the parties in their contract); O.V. Marketing Assoc., Inc. v. Carter, 766 F.Supp. 960, 964 (D.Kan.1991); Ritchie Enter, v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1046 (D.Kan.1990) (citing National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 587 P.2d 870 (Kan.1978)) (Kansas recognizes parties’ agreement for the law of another state to govern their rights and duties so long as the transaction at issue has “a reasonable relation” to that state). With respect to plaintiffs tort claims, Kansas follows the lex loci delicti approach, meaning that the law of the “place of the wrong” controls. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985). Thus, the law of the state where the tort occurred applies. The “place of the wrong” is that place where the last event necessary to impose liability took place. Id. at 634-35, 703 P.2d 731; see also Restatement of Conflicts § 377 (1934). In a misrepresentation claim, the “last event” is the injury, so the law of the place of injury applies. Raymark Indus., Inc. v. Stemple, 714 F.Supp. 460, 464 (D.Kan.1988). When a person sustains a loss by misrepresentation, “the place of wrong is where the loss is sustained,” not where the misrepresentations were made. Id.",
"the federal courts are to apply state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). As to which state law applies, the issue is to be governed by the law of the forum state — the State of Delaware. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 1020, 85 L.Ed. 1477 (1941). In his motion, plaintiff advances a breach of contract claim, which is governed by state law. In the absence of other facts, then, the “most significant relationship” test for choice of law in contract actions would govern. See Travelers Indem. Co. v. Lake, 594 A.2d 38 (Del.1991). In this case, however, the parties have made their own choice of law, that is, they have contracted expressly for the Incentive Stock Agreement to be “construed and enforced in accordance with the laws of the state of Delaware.” D.I. 15 Ex. 1-C at 6. Delaware courts generally honor such provisions selected by contracting parties, so long as some material connection links the chosen jurisdiction to the transaction. Wilmington Trust Co. v. Wilmington Trust Co., 24 A.2d 309, 313 (Del.1942); Cooper v. Boss & Roberts, Inc., 505 A.2d 1305, 1306 (Del.Super.Ct.1986). See Restatement (Second) of Conflict of Laws § 187 (1971). That connection is clearly present here because defendants are all incorporated in Delaware. See A.I.C., Ltd. v. Mapco Petroleum, Inc., 711 F.Supp. 1230, 1237 (D.Del.), aff'd mem., 888 F.2d 1378 (3d Cir.1989) (upholding similar choice of law provision when defendant was incorporated in Delaware). The Court therefore will construe and enforce the Incentive Stock Agreement in accordance with the laws of the State of Delaware. C. Plaintiff’s Entitlement to the Issuance of Unrestricted Shares In Count III of his amended complaint, plaintiff alleges that by refusing to issue a new, unrestricted certificate representing his shares, defendant has materially breached the Incentive Stock Agreement. D.I. 7 at 18-19. Defendant maintains the agreement entitles it to repurchase those shares. D.I. 13 at 20. At the heart of the dispute is the meaning of several provisions of the",
"dismiss will be denied, but the issue may be addressed again at the summary judgment stage. In an action based upon diversity of citizenship, the relevant state law controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ben-Joseph v. Mt. Airy Auto Transporters, LLC, 529 F.Supp.2d 604, 606 (D.Md.2008). The district court must therefore apply the law of the forum state, including its choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In contract actions, Maryland courts generally apply the law of the jurisdiction where the contract was made. See, e.g., Allstate Ins. Co. v. Hart, 327 Md. 526, 611 A.2d 100, 101 (1992). In tort actions, Maryland adheres to the lex loci delicti rule, meaning it applies the substantive law of the state where the wrong occurred. Ben-Joseph, 529 F.Supp.2d at 606 (citing Erie Ins. Exch. v. Heffernan, 399 Md. 598, 925 A.2d 636, 648-49 (2007)) (other citations omitted). Parties generally may, however, contract around the choice-of-law rules. The Maryland Court of Appeals “has long recognized the ability of contracting parties to specify in their contract that the laws of a particular State will apply in any dispute over the validity, construction, or enforceability of the contract, and thereby trump the conflict of law rules that otherwise would be applied by the court.” Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 921 A.2d 799, 803 (2007) (citing Williams v. N.Y. Life Ins. Co., 122 Md. 141, 89 A. 97, 99 (1913)). This general rule is subject to two limitations. Maryland courts will not honor a choice-of-law provision if: (1) the chosen state has no substantial relationship to the parties or the transaction, or (2) “application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective",
"v. Honeywell Inc., 104 F.3d 1215, 1219 (10th Cir.1997). The choice of law is determined by the conflict of laws rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties have not addressed the choice-of-law issue in the briefs before the court. “Where the parties fail to raise the issue of choice of law, the Court need not raise the issue suet sponte, and the parties are deemed to have acquiesced in the application of the law of the forum.” Keles v. Yale Univ., 889 F.Supp. 729, 733 (S.D.N.Y.1995), affd, 101 F.3d 108, 1996 WL 115329 (2d Cir.1996); see also, GBJ Corp. v. Eastern Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir.1998) (stating that the court “need not address choice of law questions sua sponte ”). The court is not obliged to investigate whether a conflict of law issue exists, when the parties present no conflict between the laws of potentially interested states. In Kansas, furthermore, “[t]he general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred.” Shutts v. Phillips Petroleum Co., 235 Kan. 195, 221, 679 P.2d 1159, 1181 (1984), rev’d in part on other grounds, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); Grimmett v. Burke, 21 Kan.App.2d 638, 652, 906 P.2d 156, 166 (1995); Gray v. Amoco Prod. Co., 1 Kan. App.2d 338, 341, 564 P.2d 579, 583 (1977), rev’d in part on other grounds, 223 Kan. 441, 573 P.2d 1080 (1978); see also, Koch v. Koch Indus., Inc., 2 F.Supp.2d 1416, 1420 n. 3 (D.Kan.1998) (quoting Gray v. Amoco Production Co., 1 Kan.App.2d 338, 564 P.2d 579). Accordingly, the court applies the law of Kansas. “Kansas has substantial case law authorizing the piercing of a corporate veil if to do otherwise would work an injustice on third parties.” Perneo, Inc. v. Kansas Dep’t of Revenue, 258 Kan. 717, 723, 907 P.2d 863, 867 (1995). Kansas courts",
"contract. The court has reviewed the submitted copy of Jay West deposition exhibit 90 and the corresponding portions of the Jay West deposition which were provided in plaintiff’s supplemental response. As defendant’s contentions do not turn upon most of the facts found in those exhibits, the court sees little reason to outline the factual basis for plaintiff’s claims of fraudulent misrepresentation. CHOICE OF LAW Since this court is acting upon diversity jurisdiction, it must apply the choice of law rules of the forum state, Kansas. Klaxton Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Missouri Pac. R. Co. v. Kansas Gas & Elec. Co., 862 F.2d 796, 798 n. 1 (10th Cir.1988). The Uniform Commercial Code (Code), as adopted in Kansas, recognizes that parties may agree for the law of another state to govern their rights and duties so long as the transaction at issue has “a reasonable relation” to that state. K.S.A. 84-1-105(1). See National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 60-61, 587 P.2d 870 (1978). Massachusetts law will govern the contract claims in this case by virtue of the choice of law provision in the Basic Agreement. In a tort action, Kansas courts apply the doctrine of lex loci delicti, where the wrong occurred. Hawley v. Beech Aircraft Corp., 625 F.2d 991, 993 (10th Cir.1980); Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985). Where the wrong occurred is generally considered to be the place where the injury was suffered. Ling, 237 Kan. at 634, 703 P.2d 731. Under this doctrine, Kansas law would govern the plaintiff’s fraud claim. Defendant contends this doctrine should not be applied and, instead, the court should follow the parties’ choice of Massachusetts law found in the Basic Agreement. Defendant’s reason is apparent as Kansas law allows punitive damages on fraud claims while Massachusetts law does not. For the following reasons, the court holds that Kansas law will govern the plaintiff’s tort claims. First, even though Kansas courts have not specifically addressed whether a contract choice of law",
"default. Thereupon, the court will schedule a telephone status conference to establish procedures consistent with this order. IT IS SO ORDERED. . Only the facts pertinent to the currently pending motions are set forth in detail here. These facts are either uncontroverted or set forth in the light most favorable to plaintiffs. . Only the procedural history pertinent to the currently pending motions, i.e., related to the truck’s title, is set forth here. . C & C’s objections, and plaintiffs’ responses to those objections, all assume that Kansas law governs plaintiffs' first five claims. The court questions the correctness of those assumptions. A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice of law rules. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, this court looks to Kansas law to determine which state’s laws should be applied. Kansas adheres to the rule of lex loci delicti (the place of the injury) for claims involving tort law, see Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731, 735 (1985), and the rule of lex loci contractus (the place where the contract was made) for claims involving contract law, see Simms v. Metropolitan Life Ins. Co., 9 Kan.App.2d 640, 642, 685 P.2d 321 (1984). It appears possible, then, that at least some of plaintiffs’ claims are governed by Nebraska law. The court finds, however, that it need not decide this issue in order to rule on C & C’s objections to plaintiffs’ motion for leave to amend because Nebraska law on the recovery of attorney fees and prejudgment interest is similar in all relevant respects to Kansas law on these issues. See Quinn v. Godfather's Invs., Inc., 217 Neb. 441, 444, 348 N.W.2d 893 (1984) (\"As a general rule of practice in this state, attorneys’ fees are allowed to the successful party in litigation only where such allowance is provided by statute.”); Land Paving Co. v. D.A. Const. Co., Inc., 215 Neb. 406, 407, 338 N.W.2d",
"of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Fagan v. John Hancock Mutual Life Ins. Co., 200 F.Supp. 142, 143 (D.Kan. 1961). Plaintiff characterizes this suit as a tort action — contending that it wishes merely to enforce the injured workers’ initial right to recover against the manufacturer/defendants for their personal injuries. In tort actions, Kansas follows the rule of lex loci delicti — the law of the state where the tort occurred. Ling v. Jan’s Liquors, 237 Kan. 629, 634, 703 P.2d 731, 735 (1985). Plaintiff further notes that the workers were injured in Wisconsin rather than in Kansas. On the other hand, the insurer/defendants suggest that, at least as to them, the suit is more in the nature of a contract action. Plaintiff is attempting to enforce the insurer/defendants’ contracts of insurance with the manufacturer/defendants. In contract actions, Kansas applies the rule of lex loci contractus — the law of the state in which the contract is made. First National Bank of Beaver, Oklahoma v. Hough, 643 F.2d 705, 706 (10th Cir.1981). In Aetna Casualty & Surety Co. v. Gentry, 191 Okl. 659, 132 P.2d 326, 331 (1942), the Oklahoma Supreme Court applied the lex loci contractus rule in determining that insurance contracts executed in Kansas should be enforced in accordance with the Kansas statute under which they were written, rather than the contrary Oklahoma law. Although the state in which these insurance contracts were executed is not clear from the complaint, it would no doubt be either the manufacturer/defendants’ home state (Kansas) or the insurer/defendants’ home states (none of which was Wisconsin). The insurer/defendants thus contend that the Wisconsin direct action statute is irrelevant to this case. The parties have not extensively briefed this choice of law question. Certainly, neither position is legally frivolous. We see no need to resolve this dispute at the present time, however, since the ultimate result would be the same under either view. For purposes of this motion, we will simply assume that Wisconsin law would apply"
] |
v. United States, 674 F.2d 1155, 1158 (7th Cir.1982). . Brown v. Richardson, 395 F.Supp. 185, 191 (W.D.Pa.1975). . See the general discussion of the doctrine of governmental estoppel in Portmann v. United States, 674 F.2d at 1158-60; K. Davis, Administrative Law Treatise §§ 17.01, 17.03-17.04 (2d Ed. 1 Supp. 1982); Note, Equitable Estoppel of the Government, 99 Colum.L.Rev. 551 (1979). . See, United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir.1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964); Walsonavich v. United States, 335 F.2d 96 (3d Cir.1964); Simmons v. United States, 308 F.2d 938 (5th Cir.1962). . Schweiker v. Hansen, 450 U.S. at 785, 101 S.Ct. 1468. . Id. at 788, 101 S.Ct. at 1471. . See, REDACTED Yang v. INS, 574 F.2d 171, 174-75 (3d Cir.1978); Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976); Santiago v. INS, 526 F.2d 488, 491-93 (9th Cir.1975). . 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). This case involved a petition for citizenship brought by a native of the Phillipines who had served in the United States Army during World War II. The Nationality Act of 1940 provided that non-citizens such as Hibi, who had served in the armed services during World War II, could be naturalized without the usual requirements of residency and language proficiency. However, applicants were required to file naturalization petitions by December 31, 1946. Congress authorized the appointment of naturalization officers who travelled to
|
[
"that the judge ordered an investigation, however, and did not rule on petitioner’s application until it was completed, was not in error. Petitioner also asserts that he was eligible for suspension of deportation when he filed his application because his deportation would cause “extreme hardship” within the meaning of section 244(a)(1). Significantly, the petitioner cites no cases to support his assertion. The Supreme Court has stated that the term “extreme hardship” is to be defined in the first instance by the Attorney General and his delegates. INS v. Wang, 450 U.S. 139, 140, 101 S.Ct. 1027, 1029, 67 L.Ed.2d 123 (1981). This court may overturn the Board’s determination on this issue only if there was an abuse of discretion. Villena v. INS, 622 F.2d 1352, 1357 (9th Cir. 1980); Banks v. INS, 594 F.2d 760, 762 (9th Cir. 1979). It is well settled that economic detriment by itself does not constitute “extreme hardship.” Villena v. INS, 622 F.2d at 1358; Pelaez v. INS, 513 F.2d 303, 304-05 (5th Cir. 1975); Kasravi v. INS, 400 F.2d 675, 676 (9th Cir. 1968); Kwang Shick Myung v. INS, 368 F.2d 330, 331 (7th Cir. 1966). The Board has determined that the petitioner’s situation does not amount to extreme hardship; we cannot say that this determination was an abuse of discre tion. Neither the Board nor the immigration judge erred in finding the petitioner ineligible for a suspension of deportation. III. Petitioner’s final argument is that the Service is estopped from deporting him because of the delays involved in both of its investigations. Petitioner must show that the Service’s conduct amounted to affirmative misconduct. INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973); Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Moreover, he must show that the misconduct was prejudi cial to him. Shon Ning Lee v. INS, 576 F.2d 1380, 1382 (9th Cir. 1978); Sun Il Yoo v. INS, 534 F.2d 1325, 1329 (9th Cir. 1976). Unexplained delays by the Service in its administrative"
] |
[
"justify estoppel, although it continued to reserve decision on the resolution of this issue. Thus, the principle of these decisions is that courts must not apply the private law notion of estoppel to the Government and that the more restrictive circumstances under which estoppel of the Government might arise remain to be articulated. The response of the lower courts, while uncertain at times, has been generally consistent with this view. While emphatic rejections of estoppel against the Government occasionally appear in passing phrases, see Dix v. Rollins, 413 F.2d 711, 716 (8th Cir. 1969); Udall v. Oelschlaeger, 389 F.2d 974, 977 (D.C.Cir.), cert. denied, 392 U.S. 909, 88 S.Ct. 2056, 20 L.Ed.2d 1367 (1968), no court of appeals has ruled that estoppel would be unavailable in all circumstances. On the contrary, no fewer than eight circuits, including this one, have stated that there are some circumstances in which the Government will be estopped. Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976); Walsonavich v. United States, 335 F.2d 96 (3d Cir. 1964); Tuck v. Finch, 430 F.2d 1075 (4th Cir. 1970); Simmons v. United States, 308 F.2d 938, 945 (5th Cir. 1962); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975); Massaglia v. Commissioner, 286 F.2d 258, 262 (10th Cir. 1961) (dictum); Semaan v. Mumford, 335 F.2d 704, 706 (D.C. Cir. 1964). The principle is particularly well-established in this Circuit. See Corniel-Rodriguez, supra; Miller v. United States, 500 F.2d 1007 (2d Cir. 1974); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) (conclusion that plaintiff’s waiver of citizenship was not binding for reason of duress supported by erroneous nature of Government advice to plaintiff); Tonkonogy v. United States, 417 F.Supp. 78 (S.C.N.Y.1976). These decisions have not purported to evolve a standard for determining when the Government is estopped. That task requires further analysis of the cases, those that have upheld an estoppel and those that have not. In Merrill the Supreme Court refused to apply the private law notion of estoppel to the Government because the",
"and reliability in their dealings with their Government. [Emphasis in original and added] The Court in Community Health Services discussed various examples of governmental misconduct in which equitable estoppel was denied or granted depending on the facts, including Immigration and Naturalization Service v. Miranda, 459 U.S. 14, 17, 19, 103 S.Ct. 281, 282, 283, 74 L.Ed.2d 12 (1982) (“The Court of Appeals thus correctly considered whether as an initial matter, there was a showing of affirmative misconduct.”); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981) (‘“It is the duty of all courts to observe the conditions defined by Congress for charging the public treasury.’ ”) (quoting Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947)). 467 U.S. at 60 n. 12, 104 S.Ct. at 2224 n. 12. The Court in Community Health Services stated that “at least two of our cases seem to rest on the premise that when the Government acts in misleading ways, it may not enforce the law if to do so would harm a private party as a result of government deception.” Id. (citing United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 675, 93 S.Ct. 1804, 1817, 36 L.Ed.2d 567 (1973) (evidence of misleading information by government is pertinent to defense of whether it was reasonable to rely thereon); and Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed. 729 (1951) (finding “misleading circumstances” the Court held that “elementary fairness” required estoppel)). There are varied circumstances in which equitable estoppel has been imposed by the courts against the government. Among the circuits, see, e.g., Meister Brothers, Inc. v. Macy, 674 F.2d 1174, 1177 (7th Cir.1982) (“the ‘public has an interest in seeing its government deal carefully, honestly and fairly with its citizens’ ”) (quoting United States v. Wharton, 514 F.2d 406, 412-13 (9th Cir.1975); Corniel-Rodriguez v. Immigration and Naturalization Service, 532 F.2d 301, 307 (2d Cir.1976) (refusing “to sanction a manifest injustice occasioned by the Government’s own failures”); United States v. Lazy FC",
"to stand behind its lawful written agreements in order to prevent manifest injustice. See, e. g., Walsonavich v. United States, 335 F.2d 96, 100-101 (3d Cir. 1964). A governmental agency may change its policy in managing a program of statutory benefits, and persons having contact with the program will be bound by the lawful new policy even though relying upon the former interpretation. Thus, in Denena’s Heirs v. Communication Splicing & Engineering Co., 474 F.2d 1249, 1250 (3d Cir. 1973), a governmental agency was held to not be estopped from enforcing a new reporting and payment policy for employers in a workmen’s compensation insurance program by assessing a penalty for noncompliance, even where the agency’s forms still reflected the old policy with which the employer complied. Furthermore, the Supreme Court has indicated at least a strong reluctance to find equitable estoppel against the government in the absence of “affirmative misconduct” in Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). In Hibi, a citizen of the Philippines petitioned in 1967 for citizenship under a special statute which conferred this opportunity upon certain aliens who served in the U. S. Armed Forces during World War II. Such a petition was required to be filed by December 31, 1946, but the U. S. Immigration and Naturalization Service failed both to advise Philippine citizens of this special right and to provide a naturalization agent in the Philippines during the limited period of eligibility. The government was held to not be estopped from asserting the statute of limitations under these facts, with the majority stating: While the issue of whether “affirmative misconduct” on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315 [81 S.Ct. 1336, 6 L.Ed.2d 313] (1961), no conduct of the sort there adverted to was involved here. Id. at 8, 94 S.Ct. at 21. Whether the Supreme Court has engrafted a requirement that affirmative misconduct be shown before estoppel may be found against the government remains unclear; such a fixed",
"employee would estop the government from insisting upon compliance with a valid regulation. Id. 450 U.S. at 788, 101 S.Ct. at 1470; see also Montana v. Kennedy, 366 U.S. 308, 314-315, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961) and United States Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973). Thus, the Court’s opinions leave open the possibility that some kind of affirmative misconduct might estop the government. The Court in Hansen noted the existence of conflicting lines of authority regarding equitable defenses against the government. While it did not disapprove the other authority, it aligned itself with one of these approaches. Id. 450 U.S. at 788, 101 S.Ct. at 1470. Lacking any guidance from Sixth Circuit decisions, this Court considers that this approved line of authority offers the best guidance regarding the law of equitable - defenses against the government. This area of law is most fully developed in cases decided by the Ninth Circuit, one of whose cases was cited with approval by the Supreme Court in Hansen. This Court turns to consider the law as developed in Ninth Circuit decisions. The rule has emerged in Ninth Circuit cases that the government can be estopped only on the basis of affirmative misconduct. Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491 (9th Cir.1975), cert. denied 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); California Pacific Bank v. Small Business Admin., 557 F.2d 218, 224 (9th Cir.1977); United States v. Ruby Co., 588 F.2d 697 (9th Cir.1978); Vickars-Henry Corp. v. Bd. of Governors of the Federal Reserve System, 629 F.2d 629, 635 (9th Cir.1980); see also Sweeten v. United States Dept. of Agr. Forest Service, 684 F.2d 679 (10th Cir.1982). As it has been developed in the cases, the “affirmative misconduct” limitation is two-pronged. Hansen v. Harris, 619 F.2d 942 (2d Cir.1980), rev’d sub. nom. Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Friendly, J. dissenting). The first prong — that estoppel against the government be based upon affirmative conduct —",
"We have never held the particular formulation of equitable estoppel applied against the Government there to be applicable in an immigration case, nor do we need to reach that question here. Whatever the rule of estoppel may be in immigration cases, it can only be invoked if the governmental conduct complained of amounts to “affirmative misconduct” as that term was used in INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). We find no “affirmative misconduct” on the facts now before us. In Hibi the Supreme Court reversed a decision of this circuit, 475 F.2d 7 (9th Cir. 1973), which had held the Government to be estopped from asserting delay in filing as a basis for rejecting a petition for naturalization. Hibi had sought naturalization in 1967 under §§ 701-05 of the Nationality Act of 1940 which provided for naturalization of non-citizens who had served honorably in the Armed Forces of the United States during World War II. Hibi, a native of the Philippines, was a member of this class but his 1967 petition did not meet the Act’s requirement that all petitions be filed no later than December 31, 1946. He asserted estoppel against the Government based on the Government’s “failure to advise him, during the time he was eligible, of his right to apply for naturalization, and from [INS’s] failure to provide a naturalization representative in the Philippines during all of the time [Hibi] and those in his class were eligible for naturalization.” 414 U.S. at 7-8, 94 S.Ct. at 21. There is no doubt that the course of conduct pursued by INS to the detriment of Hibi was a serious breach of duty by Government officials. We stated that the Government had “denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply” and that the conduct of the responsible officials was “in derogation of their duty to carry out an Act of Congress.” 475 F.2d at 10, 11. The dissent of Mr. Justice Douglas in Hibi characterized this conduct as “the deliberate — and successful",
"430 F.2d 1075 (4th Cir. 1970); Simmons v. United States, 308 F.2d 938, 945 (5th Cir. 1962); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975); Massaglia v. Commissioner, 286 F.2d 258, 262 (10th Cir. 1961) (dictum); Semaan v. Mumford, 335 F.2d 704, 706 (D.C. Cir. 1964). The principle is particularly well-established in this Circuit. See Corniel-Rodriguez, supra; Miller v. United States, 500 F.2d 1007 (2d Cir. 1974); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) (conclusion that plaintiff’s waiver of citizenship was not binding for reason of duress supported by erroneous nature of Government advice to plaintiff); Tonkonogy v. United States, 417 F.Supp. 78 (S.C.N.Y.1976). These decisions have not purported to evolve a standard for determining when the Government is estopped. That task requires further analysis of the cases, those that have upheld an estoppel and those that have not. In Merrill the Supreme Court refused to apply the private law notion of estoppel to the Government because the Government’s policies, unlike those of a private party, have general social significance. These policies, the Court reasoned, should not be at the mercy of an errant government official. When a private organization is involved, the only consideration in deciding an estoppel question is the relative equities between that organization and the party whom it has misled. But society has an overarching interest in the substantive policies established by its government. That interest justifies (though reasonable minds might differ as to whether it compels) adherence to those policies, even when the reason a person finds himself outside the scope of the pertinent policy stems in part from conduct of a government official. Even then, estoppel might be available, as the Supreme Court indicated in Montana and we held in Corniel-Rodriguez, if the governmental conduct on which the claimant relied was affirmative misconduct. See United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); cf. Semaan v. Mumford, supra (Government estopped from denying employee permanent status after having misled him to believe that such status",
"U.S. at 788, 101 S.Ct. at 1470-71, 67 L.Ed.2d 685, citing INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973) (per curiam), and Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961). See also Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed.2d 729 (1951) (no need to evaluate facts on basis of estoppel of Government). Hansen itself is not otherwise helpful here because the decision seems to rest to some degree on the fact that the estoppel “threaten[ed] the public fisc.” 450 U.S. at 788 n.4, 101 S.Ct. at 1471 n.4, 67 L.Ed.2d 685. The immigration question in this case does not. In addition, the alleged error by the INS in the instant case was a misinterpretation of a binding federal regulation, not of a nonbinding one as in Hansen. Some federal courts of appeals have stated that reliance on affirmative misconduct by the Government may create an estoppel against the Government in immigration cases. See Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976); de Hernandez v. INS, 498 F.2d 919, 921 (9th Cir. 1974) (per curiam). Other decisions have held against the Government on what amounts to an estoppel theory without actually mentioning estoppel. See Mashi v. INS, 585 F.2d 1309, 1315 (5th Cir. 1978); Tejeda v. INS, 346 F.2d 389, 392-94 (9th Cir. 1965); McLeod v. Peterson, 283 F.2d 180, 187 (3d Cir. 1960). Although this “reliance-on-misconduct” rule serves the useful function of balancing the interest of the United States as a sovereign controlling its borders against the interest of individuals, it has led to unproductive efforts to define “affirmative misconduct,” Santiago v. INS, 526 F.2d 488, 492-93 (9th Cir. 1975) (in banc), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551, 559 (1979). For example, probably because the Ninth Circuit held that delay by the INS amounted to affirmative misconduct, Miranda v. INS, 638 F.2d 83, 84 (9th Cir. 1980), the Supreme Court vacated the",
"a petition for naturalization pursuant to the Nationality Act. In his petition, Hibi contended that the United States should be estopped to enforce the December 31, 1946 deadline, since the government had failed during Hibi’s period of eligibility to encourage him to make a timely petition for naturalization. . For a classic and oft-cited statement of the requirements of an equitable estoppel, see J. Pomeroy, Equity Jurisprudence § 805 at 191— 92: 1. There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, and, thus relying, he must be led to act upon it. 5. He must in fact act upon it in such a manner as to change his position for the worse .... . See 450 U.S. at 788-89 n.4, 101 S.Ct. at 1471 n.4. Among the cases distinguished by the Schweiker Court were United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964); and Walsonavich v. United States, 335 F.2d 96 (3rd Cir. 1964). For a discussion of these cases, see Schweiker, 450 U.S. at 792-93, 101 S.Ct. at 1473 (Marshall, J., dissenting). . The Secretary also ruled that the land office had no authority to accept Brandt’s amended offer, since another bid had been filed in the interim, thus destroying Brandt’s priority. See 427 F.2d at 55. . Act of Aug. 12, 1970, Pub.L.No.91-375, 84 Stat. 719,",
"at 421-22, 110 S.Ct. 2465 (citing Heckler, 467 U.S. at 60, 104 S.Ct. 2218; INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973)); see Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961); Tefel v. Reno, 180 F.3d 1286, 1302-03 (11th Cir.1999); Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir.1987). Accordingly, all federal circuit courts of appeal require a showing of affirmative misconduct on the part of the government before the doctrine of estoppel may be invoked against a governmental entity. See Tefel, 180 F.3d at 1303 (citing United States v. Javier Angueira, 951 F.2d 12, 16 (1st Cir.1991); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.1998); Fredericks v. Commissioner, 126 F.3d 433, 438 (3d Cir.1997); United States v. Agubata, 60 F.3d 1081, 1083 (4th Cir.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996); Fano, 806 F.2d at 1265; United States v. Guy, 978 F.2d 934, 937 (6th Cir.1992); Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1138 (7th Cir.1988), amended on other grounds, 866 F.2d 228 (7th Cir.1989); United States v. Schoenborn, 860 F.2d 1448, 1451 (8th Cir.1988); Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.1989), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990); Penny v. Giuffrida, 897 F.2d 1543, 1547 (10th Cir.1990); LaRouche v. Federal Election Comm’n, 28 F.3d 137, 142 (D.C.Cir.1994); Henry v. United States, 870 F.2d 634, 637 (Fed.Cir.1989)). Thus, “courts have applied the elements of traditional equitable estoppel against the government rather narrowly.” Marine Shale Processors, 81 F.3d at 1349. The Fifth Circuit has noted that “to state a cause of action for estoppel against the government, a private party must allege more than mere negligence, delay, inaction, or failure to follow an internal agency guideline.” Fano, 806 F.2d at 1265; see Moosa, 171 F.3d at 1003; REW Enters., Inc. v. Premier Bank, N.A.,",
"101-03, 96 S.Ct. 1895, 1904-05, 48 L.Ed.2d 495 (1976); Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1068 n.5, modified, 548 F.2d 715 (7th Cir. 1976); Haitian Refugee Center v. Civiletti, 503 F.Supp. at 470-73. The Court agrees with the defendants that it has no constitutional authority to determine the nation’s foreign policy, but, by the same token, the Court cannot constitutionally avoid its duty to hear due process challenges to governmental action simply because those challenges touch on foreign relations. Cf. Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980), cert. granted, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981) (court considered immigrant’s claim that statute violated separation of powers doctrine); Olejario v. United States, 629 F.2d 204 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (political question doctrine did not bar jurisdiction of claim by naturalization applicant that executive branch had violated Congress’ intent to grant citizenship to certain Filipino nationals); see generally Baker v. Carr, 369 U.S. 186, 211-13, 82 S.Ct. 691, 706-07, 7 L.Ed.2d 663 (1962). The Court therefore concludes that it has jurisdiction over the parties and subject matter of this action pursuant to 28 U.S.C. § 1331 and 8 U.S.C. § 1329. Venue is properly laid over all causes of action pursuant to 28 U.S.C. § 1391(b) & (e)(1), (2). V. MOTION FOR PROVISIONAL CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23(b)(2), plaintiffs move this Court for a provisional certification of the following classes of persons: All citizens and nationals of El Salvador eligible to apply for political asylum under 8 U.S.C. § 1158 who (a) have been or will be taken into custody pursuant to 8 U.S.C. § 1357 by agents of the Immigration and Naturalization Service; or (b) subsequent to June 2, 1980, requested, or will in the future request, political asylum within the United States prior to being served with an order to show cause pursuant to 8 C.F.R. § 242.1, whose applications for"
] |
evidence of the sergeant and the other police officer who accompanied him that George was not actually arrested, in the sense of being taken into custody, until the officers told him to accompany them to headquarters. In the first footnote to the Upshaw opinion, the Supreme Court said, “On this issue of physical violence the jury found against the petitioner, and therefore this issue is not involved in this ease.” 835 U.S. 410, at page 411, 69 S.Ct. 170. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 335 U.S. at page 413, 69 S.Ct. at page 172. Id., 335 U.S. 413, 69 S.Ct. 171. 18 U.S.C.A. We said in REDACTED .App.D.C. 353, 354, 158 F. 2d 649, 650, * * we recognize that in many instances the circumstances may dictate that some delay ensues between arrest and commitment amounting to one,, two or many hours, * * EDGERTON, Circuit Judge (dissenting). The chief question is whether the court erred in admitting confessions made while appellants were held by the police, after arrest on suspicion without warrants and before commitment. A police sergeant testified, and the government concedes, that George Garner’s arrest took place at his home at 7:35 or 7:40 p. m. I understand this to mean he was taken into custody then. I know of no evidence to the contrary. George was taken to police headquarters between 9 and 9:45 p. m. He made an oral confession about
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[
"an open charge. No effort was made by the arresting officers to take the men before a committing magistrate until about 5:00 or 5 :30 o’clock p. m. when an unanswered telephone call was made to the United States Commissioner’s office. From the time appellant was taken to headquarters until approximately midnight he was questioned continuously concerning the crimes during which time he repeatedly denied participation. Around midnight appellant made an oral confession which was reduced to writing between 1:45 and 2:45 o’clock a. m. This confession was agreed to by the second defendant. The third party arrested was released at this time. Subsequent to this confession, the appellant and the second defendant were taken to the restaurant where they described to the police officers and restaurant proprietor how they had entered the premises and pointed out correctly the place from which the whiskey had been taken. It is the contention of the Government that this last independent demonstration is a thing apart from the written confession and therefore relieves it of the rule of the McNabti case. But at the time of the later demonstration the defendant was still in custody, the demonstration immediately followed the written confession and if the confession was the result of illegal detention the later admissions were equally so'. They must stand or fall together. As in the McNabb decision, the Government’s case here is dependent upon the admissions obtained from the accused and if that evidence is inadmissible the judgment must be reversed. The record discloses a series of occurrences specifically condemned by the Supreme Court. For the evidence shows that in taking the accused parties from the place of arrest, to police headquarters both the United States Commissioner’s Office and the Municipal Court were by-passed. While we recognize that in many instances the circumstances may dictate that some delay ensues between arrest and commitment amounting to one, two or many hours, such is not the case here.- The Commissioner and several other committing magistrates before whom the accused might have been taken for a hearing had their offices on or near the"
] |
[
"supra, 318 U.S. at page 344, 63 S.Ct. at page 614. In Upshaw v. United States, supra, 335 U.S. at page 412, 69 S.Ct. at page 171, Mr. Justice Black held that the Mc-Nabb rule was to apply to voluntary as well as involuntary confessions. The purpose of the requirement for prompt commitment was to prevent “secret interrogation of persons accused of crime.” But as pointed out in United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, this cannot be an absolute rule. If it were, a voluntary confession of the commission of a crime to an arresting officer immediately after arrest would be inadmissible. As Mr. Justice Reed points out in his dissent in the Upshaw case (note 38, at page 436 of 335 U.S., at page 183 of 69 S.Ct.), the Notes to Rules of Criminal Procedure, as prepared under the direction of the Advisory Committee, state at page 30 with reference to the phrase “within a reasonable time” that such language was intentionally used so as to save confessions, “where the delay in committal was brief and reasonably explained * * (Emphasis added.) In the Mallory case, the period of detention was shorter (seven to ten hours) than in McNabb and Upshaw, but the availability of numerous committing magistrates was greater. The “arraignment could easily have been made in the same building in which the police headquarters [and Mallory] were housed.” 354 U.S. at page 455, 77 S.Ct. at page 1360, 1 L.Ed.2d 1479. In the Ginoza case, Ginoza was arrested on Thursday afternoon at about 3:15 P.M., and about fifteen minutes later he was taken to the federal building for searching. After approximately an hour’s questioning, Ginoza confessed. A call was made to the United States Commissioner, whose office was five blocks away, but he had gone home. No effort was made to contact the Commissioner at his home. No attempt was made to reach the two United States judges whose courts and chambers were in the federal building. There was another hour’s questioning, and further damaging admissions by Ginoza. Between",
"say, as I did there, that the police might have attempted to legitimatize the confession by giving the prisoner, in advance of interrogation, the advisory statement which the commissioner would give him under Rule 5(b). But no advisory statement was made here; and, even if it had been, it could not, in the circumstances of this case, have saved the confession from exclusion under McNabb. The delay in taking appellant before a committing officer was the deliberate choice of the police and not the result of unavoidable circumstances. The arrest occurred during regular business hours and in taking appellant to police headquarters immediately thereafter police passed within earshot of many of the approximately 50 officers, authorized by law to commit accused persons. Clearly the delay was “unnecessary” in the usual sense of the word. In Akowskey v. United States, 81 U.S.App.D.C. 353, 158 F.2d 649 (1946), the arrest was made between 3:30 and 4:00 p. m. and “No effort was made by the arresting officers to take the men before a committing magistrate until about 5:00 or 5:30 o’clock p. m. when an unanswered telephone call was made to the United States Commissioner’s office.” We said: “The Commissioner and several other committing magistrates before whom the accused might have been taken for a hearing had their offices on or near the axis connecting the place of arrest and the place of detention. It is only reasonable to conclude that the parties could have been transported to the office of one of these officials in less time than it took to get to police headquarters. It is furthermore both by law and practice true that application for hearing might have been made to any of these committing magistrates at any hour. It follows that the detention was inexcusable and illegal at the outset.” 81 U.S.App.D.C. at page 354, 158 F.2d at page 650. In the present case the majority hold the delay “not unreasonable,” because there were three suspects. They say “it is inconceivable that [the police] should be required to lodge charges against any suspect until their investigation has developed",
"We conclude that it does, because, like the McNabbs, appellant confessed as a result of being “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning. Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before * * * [an] officer empowered to commit persons * * Rule 5 (b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them. Emphasing that this required procedure “checks resort to those reprehensible practices known as the ‘third degree’ * * 318 U.S. at page 344, 63 S.Ct. at page 614, the Supreme Court in McNabb established a rule of evidence excluding confessions “secured through * * * flagrant disregard of the procedure which Congress has commanded * * Id., 318 U.S. at page 345, 63 S.Ct. at page 615. In describing the circumstances in which the commitment requirements were violated there, the Court mentioned not only that the McNabbs had not been brought promptly before a magistrate, but in addition described the unremitting and obviously oppressive interrogation to which they had been subjected. Id., 318 U.S. at pages 344-345, 63 S.Ct. at pages 614-615. Thereafter, in United States v. Mitchell, the Court said, “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case * * 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140. Mr. Justice Reed, concurring in the result, considered this “a desirable modification of",
"ultimately to establish his guilt. He was not to be taken to headquarters to be subjected to a “process of inquiry” to determine whether or not he should be charged. Mallory held simply that a suspect “is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” (Emphasis supplied.) In short, police are not to arrest a suspect and then “use an interrogating process at police headquarters in order to determine whom they should charge.” Thus Mallory squarely accords with Upshaw v. United States where the “petitioner was illegally detained for at least thirty hours for the very purpose of securing these challenged confessions.” Similarly, Mallory is to be reconciled with United States v. Carignan which explained that “Mitchell’s confession, made before commitment, but also before his detention had been illegally prolonged, was admitted as evidence because it was not elicited ‘through illegality.’ The admission, therefore, was not ‘use by the Government of the fruits of wrongdoing by its officers.’ Upshaw v. United States, supra, 335 U.S. at page 413, 69 S.Ct. at page 172, [93 L.Ed. 100].” Applying the rule of Mallory then, as I read it, after making a valid arrest the officers had failed to arraign Trilling “without unnecessary delay” at an hour when reasonably they could, and as the law requires, should have arraigned him. They detained him for the very purpose of eliciting from him “damaging statements” upon which ultimately to establish his guilt of the six charges of breaking and entering and theft, respectively, involved in the counts under consideration. They had no other evidence to establish his guilt as to these counts. Thus Trilling’s detention in order to procure the challenged confessions was illegal. Because that detention was illegal and actually produced the disclosures, the confessions constituted “fruits of wrongdoing.” Therefore they were improperly received in evidence, and these convictions must be Reversed. BURGER, Circuit Judge, concurring with Judge DANAHER: I think the result reached by Judge",
"Inexcusable detention for the purpose of illegally extracting evidence from an accused, and 'the successful extraction of such in-culpatory statements by continuous questioning for many hours under psychological pressure, were the decisive factors in the McNabb case which led us to rule that a conviction on such evidence could not stand.” And Mr. Justice Reed, concurring in the result of the Mitchell opinion, said, 322 U.S. at page 71, 64 S.Ct. at page 898: “As I understand McNabb v. United States, 318 U.S. 322, 63 S.Ct. 608, 87 L.Ed. 819, as explained by the Court’s opinion of today, the Mc-Nabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. * * * ” In Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, the Supreme Court said the McNabb rule is “that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological * * *.’ ” With respect to the Upshaw statement of the McNabb rule we said in Garner v. United States, 84 U.S.App.D.C. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502: “Under this rule, however, there still remains open in every case the question whether the detention was illegal; that is, whether the delay in presenting the prisoner to a magistrate was unnecessary. For Rule 5(a) of the Federal Rules of Criminal Procedure does not command that an arrested person be taken before a magistrate ‘forthwith.' It provides that the officer ‘shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.’",
"him promptly before a committing magistrate. Only last June, in reversing a conviction this court had affirmed, the Supreme Court said: “The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. * * * It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate * * Mallory v. United States, supra, 354 U.S. at pages 454, 456, 77 S.Ct. at pages 1359, 1360. The decision and opinion were unanimous. The Court pointed out that in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, it had “held that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted ‘willful disobedience of law.’ In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” Mallory v. United States, supra, 354 U.S. at page 453, 77 S.Ct. at page 1358. The McNabb case was decided in 1943. Again in 1948, in reversing a conviction this court had affirmed, the Supreme Court expressly adhered to the “rule that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate * * Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100.",
"application of the rule of the Mallory case (Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479), which dealt with a confession obtained after prolonged questioning by police from a defendant (apparently arrested without a warrant) before being taken before a committing magistrate and without being warned that he might keep silent and that any statement made by him might be used against him. This, the Supreme Court held was a violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., requiring that an arrested person be taken before a committing magistrate “without unnecessary delay,” and rendered the confession inadmissible. In the instant case, according to the Government’s evidence, the defendant was arrested under a warrant late in the evening of August 20, 1958, and was interrogated between 8:30 and 9 o’clock the following morning. The statement was completed about 9:30 A.M. The agent who took the statement testified that he advised the defendant of his rights, at or about the time of the arrest, and said: “I advised him I was an agent of the F.B.I.; I was telling him that he didn’t have to talk to me if he didn’t want to; that I would desire to take a signed statement from him but he didn’t have to sign it; that he had the right to consult an attorney and that anything that he said could be used against him in a court of law at a later date.” There was no evidence as to the availability or nonavailability of a United States Commissioner prior to 9:30 A.M. of August 21, 1958. The Supreme Court has not yet held that a statement voluntarily made by a defendant, lawfully arrested, to the arresting officer between the time of arrest and before being brought before a committing magistrate is, for that reason alone, inadmissible in evidence. Compare, United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140, and Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100. There is, in the instant ease, in",
"from the bank, and the toy gun was also connected to the holdup. After the recovery of the evidence in appellant’s parents’ home, the F.B.I. agents brought him to local police headquarters. There, according to the agents, he voluntarily signed an extensive written confession covering the crime in some detail. Appellant was not brought before a magistrate until the next afternoon. As noted in our prior opinion: “The Government’s and appellant’s versions of the relevant facts — as developed in the pre-trial documents and trial testimony —were diametrically opposed. * * * Appellant * * * testified that he was ‘grabbed ... in the back of [his] pants,’ threatened with physical violence, slapped in the face when he refused to confess orally, and tricked or beaten into signing the written confession ; moreover, he denied consenting to the ‘search’ of his mother’s home.” 115 U.S.App.D.C. at 45, 317 F.2d at 109. II. The law requires an arresting officer to bring an accused before a magistrate “as quickly as possible.” Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Naples v. United States, 113 U.S.App.D.C. 281, 284, 307 F.2d 618, 621 (1962) (en banc). We must decide whether appellant was “promptly taken before a judicial officer as the law required,” or was “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take [his] before a judicial officer.” Upshaw v. United States, supra Note 5, 335 U.S. at 413, 69 S.Ct. at 171, explaining McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). A basic purpose of Rule 5(a), F.R.Cr.P., is to make certain that a person arrested is advised by a judicial officer of his constitutional right to counsel and of his privilege against self-incrimination “without unnecessary delay.” If the police detain an accused “until he ha[s] confessed,” and only then, “when any judicial caution ha[s] lost its purpose, * * * arraign him,” Mallory v. United States, supra, 354 U.S. at 455, 77 S.Ct. at 1360, the confession is inadmissible",
"and made a confession. In the case at bar, the judge said the defendant admitted the elements of the crime from the outset of his arrest by federal officers. The principal issue concerning the admissibility of the confession is whether the defendant was taken before the nearest available commissioner “without unnecessary delay” after his arrest. This is a requirement of Rule 5(a) of the Federal Rules of Criminal Procedure. This rule must be construed in the light of the teachings of the Mallory case where the Court held that the police process used in the arrest of the defendant was in violation of Rule 5(a) of the Criminal Rules. At. p. 453 of 354 U.S., at p. 1359 of 77 S.Ct., 1 L.Ed.2d 1479, the Court said: “In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” The rule of the Mallory case was first announced in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. The basis of the rule was a statute (Sec. 595, Title 28, U.S.C., 1942) the substance of which is now Rule 5(a) of the Criminal Rules. In Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, the court followed McNabb and stated the rule of McNabb as follows: (335 U.S. p. 413, 69 S.Ct. p. 172, 93 L.Ed. 100) “ * * * that a confession is inadmissible if made during illegal detention due-to failure promptly to carry a prisoner before a committing magistrate, whether- or not the ‘confession is the result of torture, physical or psychological * * (Emphasis added.) The Court applied the McNabb rule im Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. In that case-defendants were arrested by state officers, of Tennessee and subjected to detention! and long hours of questioning before being turned over to federal officers for arraignment. Tennessee had a statute-similar to the federal statute, the substance of which is now embraced in Rule-5(a) of"
] |
plain error in the court’s grant of discretion to the probation officer with respect to the defendant’s possible participation in sex-offender treatment. 2. Reasonableness. This brings us to the defendant’s attack on the reasonableness of the sex-offender treatment condition. Refined to bare essence, the defendant argues that supervised release is intended primarily to serve rehabilitative ends and the sex-offender treatment condition fails to serve those ends; that the district court did not provide a sufficient justification for imposing the condition; and that the condition is an unwarranted deprivation of liberty, unsupported by the record. Since this claim of error was preserved below, our review is for abuse of discretion. See United States v. Smith, 436 F.3d 307, 310 (1st Cir.2006); REDACTED We begin with first principles. A sentencing court is authorized to impose any condition of supervised release that is reasonably related to one or more of the permissible goals of sentencing. See 18 U.S.C. § 3583(d)(1) (cross-referencing 18 U.S.C. § 3553(a)(1) and (a)(2)(B) through (D)); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005); USSG § 5D1.3(b)(l). These goals include deterrence, rehabilitation, and protection of the public. See 18 U.S.C. § 3583(d)(1). The risk of recidivism among convicted sex offenders is “frightening and high,” McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and sex-offender treatment has been linked to reduced recidivism, see United States v. Morales-Cruz, 712 F.3d 71, 75 (1st
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[
"are, however, several limitations on a district court’s power to fashion special conditions of supervised release. We list a few. First, a special condition must in fact be tailored to the circumstances: it can involve “no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release. U.S.S.G. § 5D1.3(b)(2). Second, the condition imposed must be consistent with .any pertinent policy statements from the Sentencing Commission. Id. Finally, the trial court’s decision to impose the challenged condition must have adequate evidentiary support in the record. Brown, 235 F.3d at 6; United States v. Thurlow, 44 F.3d 46, 46 n. 3 (1st Cir.1995) (per curiam). Given York’s criminal history and in light of the record in this case, which includes a threat of violence by York against yet another woman, the district court was well within its discretion in requiring York to participate in the sex offender treatment program. The condition that he attend sex-offender treatment is plainly related to his criminal history: York has twice been convicted for sexually assaulting young girls, including one conviction only a year before he mailed his threatening letter to A.S. See United States v. Peterson, 248 F.3d 79, 84 (2d Cir.2001) (approving a special release condition of sex-offender treatment for a defendant convicted of bank larceny where the defendant had been convicted of a sex offense in state court five years earlier). York’s proven recidivism, moreover, makes the condition reasonably related to another permissible purpose of supervised release: protecting the public from further crimes by the defendant. In McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), the Supreme Court observed that convicted sex offenders who reenter society are “much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33, 122 S.Ct. 2017. Furthermore, treatment programs of the kind the district court has required York to attend may “enable sex offenders to manage their impulses and in this way reduce recidivism.” Id. The district court’s remarks during sentencing make clear that the court believed that"
] |
[
"'in a sex offender treatment program, and participation if further ordered, was reasonably related to the purposes of supervised release. See York, 357 F.3d at 20. As noted, such purposes include the need to deter further criminal conduct, the need to protect the public from further crimes by the defendant, and the need to provide the defendant with needed training or effective correctional treatment. See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l). The condition here was reasonably related both to the need, while Prochner was still under supervision, to protect the public from future potential crimes by Prochner (who had already committed a serious crime, albeit of a different kind) and the need to provide Prochner with whatever treatment he might need. Finally, the special condition relative to sex offender treatment did not involve, in Prochner’s case, any greater deprivation of liberty than is reasonably necessary for the purposes of supervised release. See 18 U.S.C. § 3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). The district court did not require Prochner to register as a sex offender. The government reasonably interprets the court’s order as directing Pro-chner to participate in a sex offender treatment program only if, after a sex offender evaluation, the Probation Office and the Court conclude that participation is appropriate. When the district judge imposed the sentence, he recommended that Prochner be designated to a facility where he could undergo a sex offender evaluation. The court further stated that Prochner would only be required to participate, “if directed to do so by the Probation Office and the Court.” In conclusion, the treatment condition is not unreasonable nor do we think the court committed plain error in imposing it. 2. Contact with Minors Prochner also complains about the special conditions limiting his contact with minors during the term of supervised re lease: (1) the condition prohibiting Pro-chner “from engaging in an occupation, business or profession that would require direct supervision of children under the age of 18”; and (2) the condition prohibiting him from “hav[ing] any unsupervised contact with anyone under the age of 18.” As noted, he registered no complaint",
"If we were reviewing the conditions based on a preserved objection, the substantive question would be whether these conditions were both reasonably related to the history and characteristics of the defendant and whether they would serve a permissible purpose such as deterring criminal conduct, protecting the public, or providing the defendant with needed treatment. “ ‘[Tjhe critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release!]]’ [and] .... the fact that a condition of supervised release is not directly related to [the] crime of conviction does not render that condition per se invalid.” United States v. York, 357 F.3d 14, 20 (1st Cir.2004) (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)). This court has previously ruled that such conditions of supervised release may be imposed when the instant offense of conviction is not a sex offense but the defendant had a conviction for a sex offense. York, 357 F.3d at 14; accord United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005). Sebastian had previously been convicted of a sexual assault serious enough to warrant a ten-year sentence. That eight of those years were suspended does not detract from the gravity of the offense: two years in prison is not a trivial amount and the additional eight years under a suspended sentence may reflect a concern about long-term behavior. Pertinently, the Supreme Court has recognized that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’ ” Smith v. Doe, 538 U.S. 84, 105, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)). The Smith Court approved a state sex-offender-registration statute and noted, Empirical research on child molesters, for instance, has shown that, “[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release,” but may occur “as late as 20 years following release.” National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997).",
"the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). Moreover, the court’s decision to impose the condition must have adequate evidentiary support in the record. York, 357 F.3d at 20; Brown, 235 F.3d at 6. While the record contains no direct evidence that Prochner has engaged in inappropriate conduct with minors, we find record support for imposition of the requirement that Prochner undergo evaluation for possible sex offender treatment. Prochner’s work history shows frequent contact with young boys. He was a YMCA youth sports director, and he ran a soccer program and a snowboarding program. Entries in the journal Prochner possessed at the time of his arrest indicate that he may have had, or, at minimum, desired to have, sexual relationships with adolescent males. Prochner took the position that these entries were simply literary expressions. A report by Prochner’s mental health expert and an evaluation by a clinical social worker, however, suggest that Prochner has a potential problem with adolescent males. Given this evidence, the court could reasonably believe that Prochner might pose a threat to children, and that evaluation for participation",
"Sex Offender Treatment Program Prochner now argues that the district court erred in imposing the special condition that he participate, if so directed by the Probation Office and the Court, in a sex offender specific treatment program, because his conviction did not involve a sex-related offense and he has never been accused of sexual assault. A sentencing judge has the authority to impose any condition of supervised release that is “reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant.” York, 357 F.3d at 20; see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. § 5D1.3(b)(1). Although these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G.",
"undergo psychosexual evaluation and any necessary treatment and not possess sexually explicit materials. A district court may impose any condition of supervised release “it considers to be appropriate” so long as certain requirements are met. 18 U.S.C. § 3583(d). First, the condition must be “reasonably related” to one of four factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. Id. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). Second, the condition cannot impose any “greater deprivation of liberty than is reasonably necessary” to advance deterrence, protect the public from the defendant, and advance the defendant’s correctional needs. See id. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the condition must be consistent with the policy statements issued by the Sentencing Commission. Id. § 3583(d)(3). Weatherton contends that the conditions in question are not reasonably related to his FEMA fraud conviction, that his 1979 rape conviction is insufficient to support the need for the conditions, and that his 2007 arrest warrant cannot provide a basis for the conditions because it is an unsubstantiated allegation which the government abandoned as a basis for revocation. Because district courts must consider the defendant’s history and characteristics, they may take into account “a defendant’s prior conviction for a sex offense when imposing sex-offender-related special conditions when the underlying conviction is for a non-sexual offense.” United States v. Deleon, 280 Fed.Appx. 348, 351 (5th Cir.2008); see United States v. Dupes, 513 F.3d 338, 344 (2d Cir.2008) (upholding sex-offender related special conditions as part of sentence for securities fraud where they were reasonably related to defendant’s “history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him”); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005) (“[T]he fact that the special condition of sex offender treatment is not related to the crime of conviction does",
"release imposed by the district court. She argues that the district court abused its discretion in imposing special condition one, which requires her to participate in sexual offender treatment, and special condition three, which forbids direct contact with minors absent written approval from her probation officer and prohibits her from entering areas children frequent. “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Jorge-Salgado, 520 F.3d 840, 842 (8th Cir.2008) (internal quotation marks omitted). “The district court is afforded wide discretion in imposing conditions on a defendant’s supervised release so long as they meet the requirements of 18 U.S.C. § 3583(d).” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). Section 3583(d) requires that any special conditions imposed must be “reasonably related” to “the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medicinal or other correctional needs.” See United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (internal quotation marks omitted). In addition, such conditions must “involve[ ] no greater deprivation of liberty than is reasonably necessary” to achieve these purposes and must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” § 3583(d). Richart contends that special conditions one and three are unwarranted under § 3583 because the district court’s factual finding that Richart physically and sexually abused the children in her care was clearly erroneous. See United States v. Douglas, 646 F.3d 1134, 1136 (8th Cir.2011) (recognizing that we review the district court’s factual findings at sentencing for clear error). She concedes that if the district court did not clearly err in finding that she physically and sexually abused the children in her care, then the special conditions were proper. At sentencing, the district court overruled Richart’s objection to the allegations in the PSR that Richart physically and sexually abused the children in her care based on the testimony of Agent Lowe. Lowe’s testimony was as",
"register under SOR-NA, there was no suggestion that the defendant had chronically failed to comply with sex-offender registration requirements, as here. See United States v. Rogers, 468 Fed.Appx. 359, 362-64 (4th Cir.2012) (per curiam). IV. The judgment of the district court is affirmed. TORRUELLA, Circuit Judge (Dissenting). Because I find that the district court’s imposition of the special condition of supervised release — participation in a sex offender treatment program with accompanying requirements — is not “reasonably related to the factors set forth in section 3553(a)(1),” namely, the “nature and circumstances of the offense and the history and characteristics of the defendant,” I am forced to dissent. 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); see also U.S.S.G. § 5D1.3(b). Nor do I find that the challenged condition is “sufficiently related to one or more of the permissible goals of supervisory release,” United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000), which include: (1) the need to deter the defendant from further criminal conduct; (2) the need to protect the public from further crimes by the defendant; and (3) the effective educational, vocational, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(l); see also 18 U.S.C. § 3583(d)(1). First, the imposed special condition is not tailored to the nature and circumstances of the offense or to Morales-Cruz’s criminal history and characteristics as required under U.S.S.G. § 5D1.3(b)(2). The Government offered no evidence regarding Morales-Cruz’s “characteristics” that touch on either past sexual behavior or misconduct, so my review will focus on whether the special condition was reasonably related to his criminal history. While Morales-Cruz has prior convictions, his conviction for attempted sexual assault on an adult female victim occurred approximately eighteen years before the instant SORNA conviction and is too remote in time to be reasonably related to the imposition of the special condition here. There is ample precedent from sister circuits rejecting the imposition of special conditions where the sex offense conviction is temporally remote. See United States v. Dougan, 684 F.3d 1030, 1036 (10th Cir.2012) (imposition of special condition of sex offender treatment vacated where most recent sexual offense",
"presentence investigation report. III. In United States v. York, 357 F.3d 14 (1st Cir.2004), this court set forth the legal criteria for imposition of supervised release conditions, as well as for appellate review of those conditions. We stressed that “the facts of [a defendant’s] underlying offense and criminal history are pertinent to the district court’s choice of supervised release conditions”: This is so by statute. Under 18 U.S.C. § 3583(d), the district court may impose any special condition of supervised release that it considers “appropriate,” provided that the condition satisfies certain specified criteria. One such criterion is that the condition imposed be “reasonably related to the factors set forth in section 3553(a)(1).” Id. § 3583(d)(1). Section 3553(a)(1), in turn, requires the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” See also U.S.S.G. § 5D1.3(b). Id. at 17. In York, we noted that there were limitations on the district court’s power to fashion conditions of supervised release. Id. at 20. The critical test is whether the condition is reasonably related to one or more of the goals of supervised release. Id. The district court here specifically made that link. It stated that Morales-Cruz had a lack of control, did not respect others, needed to be deterred, and that the community needed protecting from him. Morales-Cruz argues that failure to register is not a sex offense, though he acknowledges that sex offender treatment may be imposed in a case in which the underlying crime is not a sex offense. See id. at 19-20. Contrary to Morales-Cruz’s main argument, the court appropriately considered his failure to register under SORNA in three jurisdictions, and “[t]he condition that he attend sex-offender treatment is plainly related to his criminal history,” id. at 21, as well as to his present offense. SORNA requires sex offenders to “register, and keep the registration current, in each jurisdiction where the offender resides,” 42 U.S.C. § 16913(a), by providing certain “information to the appropriate official for inclusion in the sex offender registry,” id. § 16914(a), and by appearing in person at",
"as directed by the probation officer.” Jorge-Salgado filed a timely notice of appeal. II. DISCUSSION “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). We recognize that the district court is afforded wide discretion in imposing supervised release conditions. Id. The district court must impose certain conditions that are mandated by federal law and may impose other discretionary conditions to the extent they meet certain statutory requirements. See 18 U.S.C. § 3583(d); Boston, 494 F.3d at 667. Jorge-Salgado argues that the district court abused its discretion by requiring him to register as a sex offender as a condition of supervised release because the condition is not reasonably related to the offenses of conviction. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.2001) (holding that the district court abused its discretion in imposing conditions of supervised release that were tailored for a prior sex offense conviction because the conditions were not reasonably related to the current offense of armed bank robbery). He then argues that registration as a sex offender was not a mandatory condition under federal law because SORNA was not determined to be retroactively applicable until after he was sentenced. Congress enacted SORNA on July 27, 2006. It provides that “[t]he court shall order, as an explicit condition of supervised release for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act.” Pub.L. No. 109-248, § 141(e) (codified as amended at 18 U.S.C. § 3583(d)). Congress envisioned that this requirement could apply retroactively: “The Attorney General shall have the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.... ” 42 U.S.C. § 16913(d). On February 28, 2007, the Attorney General issued a regulation that required SORNA to “apply to all sex offenders, including sex offenders convicted"
] |
dismiss is, therefore, denied. . “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal Agency having responsibility for the investigation of the offense as to which the application is made . . . .”18 U.S.C. § 2516(1) (1970). . Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). . United REDACTED . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
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[
"set bail or to stay the commitment order pending appeal. See 28 U.S.C. § 1826(b). On-the witnesses’ emergency motions, this court found the constitutional questions raised too substantial to justify characterizing the appeals as frivolous and ordered the witnesses admitted to bail. Appellants contend that the procedure attempted by the grand jury violated their fifth amendment privilege against self-incrimination. This is not the law. United States v. Wade, 388 U. S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); cf. Gilbert v. California, 388 U.S. 263, 265-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). They further contend that the procedure violated their sixth amendment right to counsel. That contention is also without merit, particularly in view of the option extended to the appellants under which their attorneys would be permitted to be present. Cf. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Appellants also urge that the compelled production of voice exemplars for the grand jury upon its subpoena violates their rights. under the fourth amendment. This argument raises an important and seemingly novel question. It is now settled that the fourth amendment is applicable to the grand jury process. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). That case dealt with the production of documents under a subpoena duces tecum. The Court believed that a grand jury “order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment.” Id. at 76, 26 S.Ct. at 379. Applying the test of reasonableness, the Court held the subpoena to be overbroad, stating that, “A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.” Id. at 77, 26 S.Ct. at 380. Since Hale v. Henkel, courts have struck down grand jury subpoenas which were unreasonable under the fourth amendment. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L."
] |
[
"and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made * * * 18 U.S.C. § 2516(1). . The author agrees with Judge Bright’s concurring opinion in United States v. Brick, 502 F.2d 219 (8th Cir. 1974), that an evidentiary hearing would dispel the residual doubts as to the compliance with Title III. Section 2516(1) requires: * * * [Tjhat the authority * * * be exercised before the application is presented to a federal judge. * * * It would ill serve the congressional policy of having the Attorney General or one of his Assistants screening the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on the assumption that proper authorization to apply for intercept authority had been given. United States v. Giordano, 416 U.S. 505, 523, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341, 358 n. 12 (1974) (Emphasis included.). He would go a step further and remand for such a hearing, but a majority of this Court has decided that a remand is unnecessary. . 18 U.S.C. § 2518(8)(d) reads as follows: (d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of— (1) the fact of the entry of the order or the application; (2) the date of the entry and",
"Wiretaps The federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522 (1994 & Supp.2000), establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). First, a duly authorized law enforcement officer must obtain approval from the United States Attorney General or a specifically designated Assistant Attorney General in order to apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1). Second, once such approval is obtained, the officer must present to the judge a written application for a wiretap. See 18 U.S.C. § 2518(1). Third, the judge must make certain enumerated findings and may issue an ex parte order containing specified elements. See 18 U.S.C. § 2518(3). Title III further provides for the suppression of all evidence derived from a wiretap if “the communication was unlawfully intercepted,” or “the order of authorization or approval under which it was intercepted is insufficient on its face,” or “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). Defendants move to suppress the intercepted communications on the grounds that: (1) the Government’s Applications and Affidavits are facially insufficient and failed to satisfy the “necessity” requirement set forth in 18 U.S.C. §§ 2518(1)(c) and (3)(c); (2) the Affidavits contained material misrepresentations and omissions that negate or vitiate the “necessity” and probable cause findings; (3) the Applications, Orders and the First Affidavit contained several ‘technical violations’ of the wiretap statute; (4) the Application and Order for the First Wiretap failed to name certain intereeptees; (5) the Government failed to properly “minimize” the intercepted communications; and (6) the Government failed to demonstrate probable cause for each interceptee. These arguments will be addressed seriatim. IV. The ‘Necessity’ Requirement A wiretap authorization order is presumed proper and the defendants have the burden of overcoming that presumption. United States v. Vanmeter, 278 F.3d",
"specifying the procedure to be followed in authorizing an application to a court of competent jurisdiction for such orders. One provision is 18 U.S.C. § 2516(1), which provides in pertinent part that “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, . . . .” The other relevant sections are §§ 2518(1) (a) and 2518(4) (d), which require that the application to the court and the court order name the officer authorizing the application. After appellants’ counsel learned for the first time during the pendency of their appeal of certain disclosures made by the Government with respect to procedures followed by it in seeking interception orders in other cases, notably United States v. Robinson, 40 U.S.L.W. 2454 (5th Cir. 1972); United States v. Baldassari, et al., 338 F.Supp. 904 (M.D.Pa.1972); and United States v. Cihal, 336 F.Supp. 261 (W.D.Pa.1972), appellants suggested to us that letters authorizing applications to the district court for two interception orders in this case, one dated May 4, 1971 and the other May 12, 1971, which bore the purported signature of Assistant Attorney General Will Wilson, had not in fact been signed by him but had been signed by a deputy who affixed Wilson’s name to the letters. With respect to the May 4, 1971 wiretap order, it is undisputed that the application for the order was personally authorized by the then Attorney General of the United States, John N. Mitchell. On May 3, 1971, he initialed a memorandum to Will Wilson, Assistant Attorney General, specially designating Mr. Wilson pursuant to § 2516 to authorize Milton J. Carp, Attorney in Charge of the Organized Crime and Racketeering Section of the Department of Justice, to apply to the district court for an order permitting the interception of wire communications on two Yonkers telephones. Thereupon Henry E. Petersen, Deputy Assistant",
"1968, 18 U.S.C. § 2510 et seq., which permits wiretaps and other electronic surveillance as aids to crime detection. However, as a result of “the development of facts unknown until-the case was before” the court of appeals, the appeal was regarded as presenting “only the question of who may initiate an application to engage in such secret electronic surveillance under the authorization proviso of that legislation.” This provision, 18 U.S.C. § 2516(1), reads in pertinent part as follows: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made. . . . Affidavits before the court indicated that Sol Lindenbaum, Executive Assistant to the Attorney General of the United States, had approved actions designating Will Wilson, then Assistant Attorney General in charge of the Criminal Division, to authorize a designated field official to apply to a federal judge for interception orders under 18 U.S.C. § 2518, and that Henry E. Petersen, then a Deputy Assistant Attorney General in the Criminal Division, had signed Will Wilson’s name “in conformity with the standard procedure of dispatching such a letter in every case in which Will Wilson had been specially designated on an ad hoc basis to authorize” the application. Pointing to a statement in S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2185, concerning § 2516(1) which we quote in the margin, the court ruled that, despite the general power of the Attorney General to delegate authority, 28 U.S.C. § 510, the purpose of the statute in regard to wiretaps had been subverted by what it considered a routine method of handling authorizations to apply for them in the Criminal Division of the Department of Justice, and reversed convictions",
"made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application!.] . The affidavit of Attorney General Mitchell read as follows: I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972. On January 8, March 10, April 19, and May 13, 1971, I personally initialed memo-randa authorizing applications for interception orders in this case. Copies of these memoranda are attached. Each memorandum also constituted a notification to the Assistant Attorney General of the Criminal Division that I had performed the discretionary act of authorizing an application to a judge of competent jurisdiction for the specified interception order. . Title III requires that: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made * * * 18 U.S.C. § 2516(1). . The author agrees with Judge Bright’s concurring opinion in United States v. Brick, 502 F.2d 219 (8th Cir. 1974), that an evidentiary hearing would dispel the residual doubts as to the compliance with Title III. Section 2516(1) requires: * * * [Tjhat the authority * * * be exercised before the application is presented to a federal judge. * * * It would ill serve the congressional policy of having the Attorney General or one of his Assistants screening the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on",
"department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10) (a). The defendants' motion to suppress considered herein is made on the basis that the conditions imposed by 18 U.S.C. § 2516(1) were not followed: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications. . . ”. The defendants contend that neither the Attorney General, nor any Assistant Attorney General specially designated by the Attorney General, authorized the application to a Federal judge for the order authorizing or approving the interception of the communications involved herein. The application made to the Federal judge in the instant case contained a letter dated August 25, 1970, on the letterhead of the Department of Justice, Assistant Attorney General, Criminal Division, bearing the written signature “Will Wilson” above the typewritten designation “Will Wilson, Assistant Attorney General.” The letter recites: “Accordingly, you are hereby authorized, under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an order pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation to intercept wire communications from the above-described two telephones for a period of fifteen (15) days.” In response to the defendants’ request to compel admissions of fact",
"found in an open safe. On December 22, 1982, an indictment was filed in the Central District of California. On February 10, 1983, the Honorable Manuel Real denied defendants’ motions to suppress and, based on stipulated facts, convicted Camp and Harp on all charges except attempting to distribute heroin. A timely appeal was noticed on March 3. II Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 211-25, 18 U.S.C.A. §§ 2510-2520 (1983), prescribes the procedure for securing judicial authority to intercept wire communications in certain criminal investigations. Section 2516(1) confers power on the “Attorney General, or any Assistant Attorney General specially designated by the Attorney General” to “authorize an application to a Federal judge ... for ... an order authorizing or approving the interception of wire or oral communications” by federal investigative agencies seeking evidence of specified serious offenses. 18 U.S.C.A. § 2516(1) (1983) (emphasis added). The Supreme Court has held that this statute does not empower the Executive Assistant to the Attorney General to authorize wiretap applications, even where the Attorney General has specifically wanted him to do so. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The Ninth Circuit reached the same conclusion earlier. United States v. King, 478 F.2d 494 (9th Cir.1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). The Supreme Court reasoned: Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced a clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications____ The mature judgment of a particular responsible Department of Justice official is interposed as a critical precondition to any judicial order. Giordano, 416 U.S. at 515-16, 95 S.Ct. at 1826-27. The Court quoted applicable legislative history: Paragraph (1) [i.e. § 2516(1)] ... centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid",
"analysis places an unjustifiable burden on limited judicial resources. Dawson v. Cow-an, 531 F.2d 1374 (6th Cir. 1976). . The trial judge ordered the investigation because there were strong indications that the first mistrial, when the jury was unable to reach a verdict, may have involved jury tampering. . In pertinent part, 18 U.S.C. § 2516(1) states that The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . Order No. 495-72: By virtue of the authority vested in me by 28 U.S.C. 509, 510, 5 U.S.C. 301, and 18 U.S.C. 2516, the Assistant Attorney General in charge of the Criminal Division is specially designated to exercise the authority conferred by Section 2516 of Title 18, United States Code, to authorize applications to a Federal judge of competent jurisdiction for orders authorizing the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which such application is made, when such interception may provide evidence of any of the offenses specified in Section 2516 of Title 18, United States Code. The authority delegated herein to the Assistant Attorney General in charge of the Criminal Division shall be exercised by him only during my absence in Europe from November 12, 1972, to November 26, 1972, inclusive, and shall expire at the end of the latter day. November 8, 1972 /s/ Richard G. Kleindienst Attorney General . Order No. 495-72 is set out in full in note 7, supra. . 18 U.S.C. § 2518(1) requires: (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation",
"to and from facilities described in the letter for a period of 15 days. These documents satisfied the probable cause requirements for issuing an intercept order and the recitations contained in them indicated that authorization to apply for the order had been granted as a result of procedures which complied with the requirements of 18 U.S.C. §§ 2516 and 2518. Section 2516 provides in part as follows: (1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, . . . .” On the motion to suppress evidence gained from these wiretaps it was shown that neither the Attorney General nor any assistant attorney general specially designated by him had authorized the application which resulted in the first wiretap order. Instead, Sol Lindenbaum, Executive Assistant to Attorney General John N. Mitchell, affixed Mr. Mitchell’s initials to a memorandum addressed to Acting Assistant Attorney General Petersen authorizing the application. It is maintained by the government that this procedure satisfies the requirements of § 2516 because Lindenbaum, was the “alter ego” of the Attorney General. On the other hand, appellants argue that the procedures of §§ 2516 and 2518 were carefully worked out by Congress and that one of the most important considerations was that the person approving authorization for wiretap applications not only be identifiable, but also be politically responsible. The Attorney General and all assistant attorneys general are appointed with the advise and consent of the Senate whereas the appointment of the executive assistant to the Attorney General is not subject to Senate confirmation. The Supreme Court has recently held that evidence which is obtained from an interception order based on the procedures followed in obtaining the first authorization in this case is subject to suppression. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, (decided May 13, 1974).",
"et seq., and (2) the government impermissibly failed to minimize the intercepted wire communications. The government’s interception of phone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire, or electronic communications shall be in writing, under oath, and shall contain certain information including a “full and complete statement of the facts and circumstances relied upon by the applicant ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a)-(d); see also United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that “normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” which is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587-88 (D.C.Cir.1978). “An issuing judge’s finding of necessity is reviewed for abuse of discretion.” United States v. Ei-land, 398 F.Supp.2d 160, 173 (D.D.C.2005). The statute also requires that “[ejvery [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.” The minimization"
] |
claim for intentional infliction of emotional distress against Gibbons and Puhek, but insufficient as to Rogich, Young, and Campbell. Mazzeo alleges that Gibbons forcefully pinned her against a wall and told her he was going to rape her. Mazzeo also alleges that Puhek made death threats against her and her child that caused her to move out of her home and fear for her and her child’s safety. The Court concludes that these allegations are sufficient to survive Defendants’ Motions to Dismiss. III. Motion to Strike Under Rule 12(f) a “court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Matter is “immaterial” if it has no bearing on the controversy before the court. REDACTED Allegations are “impertinent” if they are not responsive to the issues that arise in the action and that are admissible as evi dence. Id. “Scandalous” matter is that which casts a cruelly derogatory light on a party or other person. Id. A court need not wait for a motion from the parties; it may act on its own to strike matter from a pleading. Fed.R.Civ.P. 12(f)(1). In this rare instance, the Court feels compelled to sua sponte strike certain portions of the Complaint. Mazzeo’s pleading includes inappropriate commentary and dramatic flourishes, deviating from the directive that she need provide only “a short and plain statement of’ her claims. See Fed.R.Civ.P. 8(a)(2). In the Court’s view, a significant portion of the Complaint
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[
"26, 1999, Defendants filed their Form 10 which revealed that they needed to raise additional funds. (See Compl. at ¶ 63-64.) At the news of financial difficulties, the company’s stock plunged 37 percent to $7.3125 on heavy trading of 412,000 shares. (See PI. Suppl. Mem., Ex. B.) The Court concludes that the facts .alleged in the complaint are plainly sufficient to allege a cause and effect relationship between disclosures of unexpected events and an immediate response in the stock price. Therefore, Plaintiffs have fulfilled the fifth factor in the Cammer test and, thus, have adequately pleaded the element of reliance. Thus, it appears to the Court that Plaintiffs have sufficiently alleged the elements of a claim of securities fraud at this stage in the proceedings. D. Defendants’ Motion to Strike Federal Rule of Civil Procedure 12(f) provides that in its answer to the pleadings, the moving party may request that the court “order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “Immaterial” means that the matter has no bearing on the controversy before the court. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) rev’d on other grounds, 510 U.S. 517, 534-35, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). If there is any doubt as to whether the allegations might be an issue in the action, courts will deny the motion. See id. “Impertinent” has been defined as allegations that are not responsive or irrelevant to the issues that arise in the action and which are inadmissible as evidence. See id. “Scandalous” includes allegations that cast a cruelly derogatory light on a party or other person. See Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984). In the present case, Defendants request that the Court strike several portions of the complaint that make reference to either the past activities of Defendants Magliarditi and Rebeil, the circumstances of the separation of Defendants and Deloitte and Touche, or the “reverse merger.” (See Mot. to Strike Mem. at 1-2.) Just as with a motion to dismiss for failure to state a claim, the Court must"
] |
[
"that it cannot avail as a defense, or if under any contingency it may raise an issue. * * * I am not in any sense passing on the facts, but it seems to me that they do raise an issue and can be availed of as a defense. * * * “The allegations of the several portions of the defendant’s answer, which plaintiff seeks to strike, are not impertinent or scandalous, but are material to the several defenses alleged and must be considered by the court.” In another case, when the same judge was sitting, in Sano Petroleum Corporation v. Shell Oil Co., D.C.E.D.N.Y., 3 F.R.D. 181, 182, the court said this: “Motions to strike under Rule 12(f) * * * are not favored, and usually will be granted only when the allegations have no relation to the controversy, and a failure to strike will unduly prejudice the adverse party.” Again, in Westmoreland Asbestos Co. v. Johns-Manville Corp., D.C.S.D.N.Y., 30 F.Supp. 389, 392, there was a statement as follows: “The defendants move for an order, pursuant to Rule 12(f) of the Rules of Civil Procedure to strike certain specified matter from the complaint on the ground that it is redundant, immaterial, impertinent and scandalous. “In Securities and Exchange Commission v. Time-trust, Incorporated et al., D.C., 28 F.Supp. 34, * * * it was held that the mere presence of redundant and immaterial matter, not affecting the substance, is not in itself sufficient ground for granting a motion to strike such matter from the complaint. Further, that where no harm will result from immaterial matter not affecting the substance, the court should hesitate to disturb a pleading. “The motion to strike certain specified matter from the complaint should be denied with two exceptions.” Y. (3) Impertinent. In 1 Moore, Federal Practice, page 660, the learned author made this statement: “It should be noted that under sub-division (f) [of Rule 12] a court should hesitate to strike matter unless it clearly appears to be ‘redundant, immaterial, impertinent and scandalous’. Thus, where certain evidential facts, when read with the bill as a",
"Response, we deem no action necessary on this point. However, for purposes of clarity, to the extent, if any, that Plaintiff claims relief under the Act, such claims shall be dismissed. MOTION TO STRIKE Lastly, Defendants made a motion under Fed.R.Civ.P. 12(f) to strike immaterial, redundant, impertinent and/or scandalous material in the Complaint. Motions under Rule 12(f) are viewed with disfavor and are rarely granted. Augustus v. Board of Public Instruction of Escambia County, Florida, 306 F.2d 862, 868 (5th Cir.1962). Further, the Rule 12(f) motion is not an authorized nor a proper way to dismiss portions of a complaint. Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197, 201 (S.D.N.Y.1967); South v. United States, 40 F.R.D. 374, 376 (W.D.Miss.1966). This Court finds that Defendants’ Rule 12(f) motion to strike is inappropriate and should be denied. CONCLUSION Accordingly, this Court will enter an order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing Count II (abusive discharge) as it pertains to public policies encouraging free choice surrounding pregnancy and encouraging family unity and the maintenance of family discipline, Count IV (tortious breach of the covenant of good faith and fair dealing), Count V (tortious interference with contractual relations), Count VI (negligence), Count VII (intentional or reckless infliction of emotional distress), and Count VIII (equitable estoppel) for failure to state a claim upon which relief can be granted. . Under 42 U.S.C. § 2000e(k), \"on the basis of sex” includes \"because of or on the basis of pregnancy.” . Note, however, that if a somewhat different factual pattern is proved instead, the result may be different. Plaintiff has alleged that Defendants' unstated policy was to fire all senior female employees to prevent payment of pension benefits. Male employees, she asserts, were not subject to this policy. If that discriminatory practice is proved, it will state a Title VII claim and Plaintiff will, for the reasons given in Paragraph A above, be precluded from asserting her wrongful discharge claim.",
"is unjustifiably prolix and that it contains much argumentative, redundant, immaterial and impertinent matter. It does state a cause of action. It is plain in the sense that it states understandingly a cause of action in equity based upon alleged fraud and conspiracy. It is not “a short and plain” statement of a claim, nor is each averment in the pleading “simple, concise, and direct.” The diligence of the draftsman is apparent, but it seems that this has led to the inclusion of many improper allegations. It is urged that neither under the present nor the former applicable Equity Rules is there any provision authorizing the striking of an entire complaint. It is not necessary to decide this question, though it is believed that the court has this authority. Polk v. Mutual Reserve Fund Life Ass’n, C.C., 119 F. 491; Id., C.C., 128 F. 524; Kelley v. Boettcher, 8 Cir., 85 F. 55. The motion to strike the entire complaint is denied. This applies to the separate averments. It is sufficient to pass upon the 'motions to strike certain specific paragraphs and portions of the complaint, and the basis for decision thereon is found in Federal Procedure Rule 12 (f) and the inherent authority of the court. This rule permits striking from any pleading “any redundant, immaterial, impertinent, or scandalous matter * * This follows former Equity Rule 21, save that it adds the word “immaterial,” which in some instances may and in others may not have been included in the word “redundant.” The particular applications of this rule to the matters hereinafter decided will be noted. It is not the purpose or the duty of the court to re-draft a pleading. The matter in law presents many difficulties, and much time has been occupied in the effort to show wherein the faults in this pleading lie. Certain allegations are to be entirely stricken as in violation of the rule and numerous paragraphs are directed to be re-drawn because it is impracticable to eliminate certain improper parts. My conclusions are that: 1. Paragraph VIII (c) should be stricken, as repetitious.",
"under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Based on the pleadings in these cases, the Court found it appropriate to consider Plaintiffs’ class allegations sua sponte and thus issued the aforementioned Order to Show Cause. Plaintiffs claim to satisfy certification requirements under either 23(b)(2) or (3). Rule 23(b) states, in pertinent part: A class action may be maintained if Rule 23(a) is satisfied and if: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation con cerning the",
"Defendants assert that plaintiff has abused informa pauperis status by filing a frivolous or malicious lawsuit. Pursuant to 28 U.S.C. §§ 1915(a) and (d), the district court may, in its discretion, dismiss an in forma pauperis action if the court determines that the plaintiff instituted the suit to harass the defendant or if the action has no rational basis in law or. fact. In the instant case, this Court is unable to find that plaintiff brought her action to harass defendants or that she lacked reason to -believe that she had a valid Title VII claim. - While plaintiff never reported her allegations of harassment, it is not this Court’s duty to determine whether or not the alleged acts occurred, or if she had a rational basis for thinking that defendants discriminated against her. III. The Request to Strike Allegedly Scandalous and Immaterial Matter in the Complaint Pursuant to Fed.R.Civ.P. 12(f), defendants seek to strike immaterial and scandalous ma terial in the complaint and to amend the caption by removing the names of the individual defendants. The Court will address this matter, since the request remains at issue regardless of the dismissal of the suit. While the Court recognizes that plaintiffs sexual harassment claims arise from unproven and unreported events that allegedly occurred over twenty years ago, the Second Circuit has stated clearly that district courts should be wary when deciding whether to grant a Rule 12(f) motion on the ground that the matter is impertinent and immaterial. See Lipsky v. Com. United Corp., 551 F.2d 887, 893 (2d Cir.1976). Accordingly, courts must deny such á motion, “unless it can be shown that no evidence in support of the allegation would be admissible.” Id. at 893; see also Gleason v. Chain Service Restaurant, 300 F.Supp. 1241 (S.D.N.Y.1969), aff'd, 422 F.2d 342 (2d Cir.1970). In the instant matter, that is simply not the case, for plaintiff certainly could testify as to the alleged harassment. Therefore, the exception enabling the striking of such material is not applicable. IV. The Request to Seal the File Defendants also seek to seal the complaint. The",
"F.2d 1343, 1349 (11th Cir.1988))). The DESCO Defendants’ argument that the Court should not strike the negative defenses because Lane has not shown prejudice is unavailing, because a movant is not required to show prejudice to prevail on a motion to strike. Rule 12(f) states: (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). The rule does not require that a movant show prejudice, and the advisory committee notes do not contemplate such a requirement. Moreover, the United States Court of Appeals for the Ninth Circuit has expressly rejected requiring a movant to show prejudice to prevail on a motion to strike. See Atlantic Richfield Co. v. Ramirez, 176 F.3d 481, 1999 WL 273241, at *2 (9th Cir.1999) (“Rule 12(f) says nothing about a showing of prejudice and allows a court to strike material sua sponte. We decline to add additional requirements to the Federal Rules of Civil Procedure when they are not supported by the text of the rule.” (citations omitted)). Moreover, the United States Court of Appeals for the Tenth Circuit has not included prejudice among the elements a litigant must show to prevail on a motion to strike. On the contrary, in Burrell v. Armijo, 603 F.3d 825 (10th Cir.2010), in which the Tenth Circuit recently affirmed a district court’s granting a defendant’s motion to strike part of a plaintiffs complaint, the Tenth Circuit did not require the movant to show prejudice: [T]he district court granted the defendants’ motion under Fed.R.Civ.P. 12(f) and struck several paragraphs of the complaint. See Fed.R.Civ.P. 12(f) (authorizing a court to strike any portion of a pleading that is “redundant, immaterial, impertinent, or scandalous”). On appeal, the Bur-rells argue that the district court erred in granting the motion to strike because the stricken paragraphs are related to their claims.",
"10 through 23, Inclusive, and Paragraph 60 (Partial) of the First Amended Complaint and Paragraph 6 of the First Amended Complaint’s Prayer for Relief, which is currently before this Court. On May 19, 2000, TUC filed a Motion to Dismiss: (1) First and Second Causes of Action to the Extent Predicated upon Events which Occurred Outside the Applicable Limitations Period; (2) Third Cause of Action for Breach of Contract/Third Party Beneficiary in its Entirety; and (3) Fourth Cause of Action to Extent Restitutionary Relief is Sought on Behalf of the General Public, which is also currently before this Court. II. Discussion A. Standard 1. Motion to Strike Under FRCP 12(f), a party may move to strike “any redundant, immaterial, impertinent, or scandalous matter from the pleadings.” This includes striking “any part of the prayer for relief when damages sought are not recoverable as a matter of law.” Bureerong v. Uvawas, 922 F.Supp. 1450, 1459 n. 34 (C.D.Cal.1996). Motions to strike are generally viewed with disfavor and are not frequently granted. Pease & Curren Ref., Inc. v. Spectrolab, Inc., 744 F.Supp. 945, 947 (C.D.Cal.1990). Further, courts must view the pleadings under attack in the light more favorable to the pleader. California v. United States, 512 F.Supp. 36, 39 (N.D.Cal.1981). Motions to strike “are generally not granted unless it is clear that matter to be stricken could have no possible bearing on the subject matter of litigation.” LeDuc v. Kentucky Cent. Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992). Indeed, “a case should be tried on the proofs rather than the pleadings.” Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th Cir.1957). 2. Motion to Dismiss In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) the Court must assume that plaintiffs’ allegations are true, and must construe plaintiffs’ complaint in the light most favorable to plaintiffs. United States v. City of Redwood City, 640 F.2d 963, 967 (9th Cir.1981). Moreover, even if the face of the pleadings indicates that recovery is unlikely, the plaintiff is still entitled to offer evidence in support of the complaint. Scheuer v. Rhodes,",
"submitted responsive papers and the Court held oral argument on August 12, 2015. Counsel for ACME also submitted a motion to strike the declarations and exhibits attached to Plaintiffs’ response to the Order to Show Cause. The Court will first address the Amended Complaint’s class action allegations and then the pending motions to dismiss named Plaintiffs’ underlying claims. II. Plaintiffs’ Class Allegations The Court has the authority to strike class allegations at the pleading stage under Fed.R.Civ.P. 12(f) if the complaint demonstrates that a class action cannot be maintained. Smith v. Merial Ltd., No. 10-439, 2012 WL 2020361, at *6 (D.N.J. June 5, 2012). This Court has addressed and stricken class allegations at the pleading stage on defendants’ motions pursuant.to Fed.R.Civ.P. 12(f) when it becomes clear from the complaint that plaintiffs cannot meet the certification requirements of Rule 23. Id. at *4; see also Advanced Acupuncture Clinic, Inc. v. Allstate Ins. Co., No. 07-4925, 2008 WL 4056244 at *10 (D.N.J. Aug. 26, 2008) (granting motion to strike class allegations when it became clear injunctive relief under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the",
"Mintz has moved this court to strike paragraph 55 of the complaint as “scandalous matter” under Rule 12(f) of the Federal Rules. I have decided to deny this motion. Paragraph 55 states in relevant part: On information and belief, just prior to that [administrative] hearing, defendants Farrell and Mintz attempted to suborn perjury from witnesses scheduled to attend the aforesaid DOC hearing. Their subornation was done in furtherance of defendants’ conspiracy. I start with the proposition that “[mjotions to strike alleged redundant, immaterial, impertinent or scandalous matter are not favored. Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.” 2A Moore’s Federal Practice ¶ 12.21 at p. 2429 (1983) (footnotes omitted). Defendant argues that paragraph 55 is scandalous in that it “improperly and excessively impugn[s] his moral character” without factual basis. Scandalous pleading for purposes of Rule 12(f) must “reflect cruelly” upon the defendant’s moral character, use “repulsive language” or “detract from the dignity of the court.” Id. at p. 2426 (footnote omitted). I do not believe that paragraph 55 should be stricken under this standard. To be scandalous such “degrading charges [must] be irrelevant, or, if relevant, [must be] gone into in unnecessary detail____” Id. at 2427. I find paragraph 55 to be neither unnecessarily derogatory nor irrelevant to charges alleged by plaintiff in this action. In sum, I have concluded, first, that plaintiff’s claims are timely under New Jersey’s six year statute of limitations; second, that her claims are not barred by the equitable doctrine of laches; third, that she does not proceed under Title VII but instead states a claim for relief under the Equal Protection Clause of the Fourteenth Amendment; fourth that the complaint alleges a deprivation of plaintiff’s, rights by defendants acting “under color of state law” for purposes of 42 U.S.C. § 1983; fifth, that plaintiff is a member of a class protected by § 1985(3); and sixth, that she has properly alleged a conspiracy, motivated by class-based discriminatory animus, to deprive her of her rights to",
"because there is no suggestion that she is in \"immediate danger of sustaining some direct injury.\" (Id. ) In response, Plaintiff argues that she adequately asserted claims under both the FLSA and the IMWL, and that her request for declaratory relief is proper. (R. 52, Pl.'s Resp. to Mot. to Dismiss at 2.) Defendant separately moves to strike Plaintiff's affirmative defenses. (R. 48, Def.'s Mot. to Strike.) Defendant argues that Plaintiff's affirmative defenses are either legally invalid or not adequately pleaded. (Id. at 1-2.) In response, Plaintiff contends that her affirmative defenses are legally viable and properly pleaded. (R. 57, Pl.'s Resp. to Mot. to Strike at 6.) Both motions are now fully briefed and ripe for adjudication. LEGAL STANDARD To survive a motion to dismiss under Rule 12(b)(6), a complaint must \"state a claim to relief that is plausible on its face.\" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). \"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint does not need detailed factual allegations, but \"a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.\" Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation, internal quotation marks, and alteration omitted). Under Federal Rule of Civil Procedure 12(f), \"[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.\" FED. R. CIV. P. 12(f). Motions to strike are \"generally disfavored\" because they may unnecessarily delay the proceedings. Siegel v. HSBC Holdings, plc. , 283 F.Supp.3d 722, 730 (N.D. Ill. 2017) (citation omitted). However, a motion to strike is proper \"when it serves to remove unnecessary clutter\" and thereby expedites the case. Id. (citation omitted). Affirmative defenses subject to a motion to strike"
] |
meaning of those terms in the RICO statute. However, on the sole ground that plaintiffs were required, but failed, to allege “a separate, distinct racketeering enterprise injury”, the district court dismissed the complaint. It did not reach the arbitration question. On appeal, therefore, we are presented with the narrow issue of whether, in order to state a claim under § 1964(c), a plaintiff must allege “a separate, distinct racketeering enterprise injury”. We are not considering whether plaintiffs must allege a connection to organized crime, cf. Moss v. Morgan Stanley, 719 F.2d 5, 21 (2d Cir. 1983), cert, denied, — U.S.-, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984), whether plaintiffs must show some “competitive injury” as a result of defendants’ actions, cf. REDACTED Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir. 1982), affd in part and rev’d in part on other grounds, 710 F.2d 1361 (en banc), cert, denied, — U.S.-, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983), or whether the statute requires a criminal conviction of the predicate offenses, or of a RICO offense, before a civil RICO claim can be maintained, see Sedima, S.P.R.L. v. Imrex Co., at 497; cf. USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982); Farmers Bank of Delaware v. Bell Mortgage Cory., 452 F.Supp. 1278, 1280 (D.Del.1978). DISCUSSION In 1970 congress enacted the Organized Crime Control Act, Pub.L.
|
[
"the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that are also crimes under state law. There is no argument that Congress acted beyond its power in so doing. That being the case, the courts are without authority to restrict the application of the statute. United States v. Turkette, 452 U.S. at 586, 587, 101 S.Ct. at 2531 (1981). In view of this legislative history, it is not surprising that most courts in this and other circuits have had little trouble in entertaining RICO civil actions for damages flowing from the operation by otherwise “legitimate” business people of enterprises through a pattern of mail fraud and securities law violations. See, e.g., Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), pet. for reh. en banc granted, Sept. 17, 1982 (upholding finding that defendant mortgage lender, insurance company, developer, accountants, attorneys and corporate directors caused compensable RICO damages through operation of retirement community through, inter alia, mail fraud); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982) (upholding injunction in civil RICO action founded on corporate promoter’s breach of fiduciary duty); Parnes v. Heinold Commodities, Inc., 487 F.Supp. 645 (N.D.Ill.1980) (RICO action stemming from mail fraud in commodities trading); Heinold Commodities, Inc. v. McCarty, 513 F.Supp. 311 (N.D.Ill.1979) (commodities fraud); Hanna v. Norcen Energy Resources, Ltd., [Current] Fed.See.L.Rep. (CCH) ¶ 98,742 (N.D.Ohio 1982) (RICO action against corporation and its investment banking firm upheld); Engl v. Berg, 511 F.Supp. 1146 (E.D.Pa.1981) (upholding action against mortgage company in securities fraud RICO claim); Spencer Companies v. Agency Rent-A-Car, Inc., [1981] Fed.Sec.L. Rep. (CCH) ¶ 98,361 (D.Mass.1981) (alleged fraud in misleading public statement in corporate takeover actionable under RICO); Computer Terminal Systems, Inc. v. Gross, 1982-1 Trade Cas. (CCH) ¶ 64, 531 (E.D.N.Y. 1981) (action against company officers involving kickback scheme). But see Wagner v. Bear, Stearns and Co., Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 94,032 at 94,913 (N.D.Ill.1982); Moss v. Morgan Stanley, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 99,045 at 94,982 (S.D.N.Y.1983); Adair v. Hunt International Resources Corp., 526 F.Supp. 736 (N.D.I11.1981); Waterman Steamship Corp. v. Avondale"
] |
[
"Development, Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill. 1980) (“plaintiff must allege how it was injured competitively by the RICO violation in order to state a cause of action under § 1964(c).”); Harper v. New Japan Securities Int’l, 545 F.Supp. 1002, 1007 (C.D.Cal.1982); Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1137 (D.Mass.1982); Landmark Savings & Loan v. Loeb Rhoades, Homblower & Co., 527 F.Supp. 206, 208 (E.D.Mich.1981); see also Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c), 76 Nw.U.L. Rev. 100, 125-33 (1981). But see Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.), aff’d in part and rev’d in part on other grounds, 710 F.2d 1361 (8th Cir. 1983) (en banc); D’lorio v. Adonizio, 554 F.Supp. 222, 231 (M.D.Pa.1982); Hellenic Lines Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981); see also Blakey & Gettings, Racketeer InBuenced and Corrupt Organizations (RICO); Basic Concepts — Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-43 (1980); Strafer, Massumi & Skolnick, Civil RICO in the Public Interest: “Everybody’s Darling,” 19 Am.Crim. L.Rev. 655, 689-707 (1982). The district court subscribed to this interpretation of section 1964(c), but never explained its understanding of a racketeering enterprise injury. We need not decide whether such an interpretation is proper because we find that plaintiff has not satisfied the threshold burden of showing that he suffered any injury “by reason of” defendants’ unlawful conduct. . Similarly, the Act’s legislative history supports a rejection of this “organized crime” element. During the House debates on RICO, Congressman Biaggi proposed an amendment that sought to limit the application of RICO to Mafia and La Cosa Nostra organizations. 116 Cong.Rec. 35,343 (1970). The amendment was vigorously attacked on constitutional grounds. Congressman Celler objected that such terms were “imprecise, uncertain, and unclear” and that mere membership in an organization should not be punished. Id. at 35,343-44 (1970). Congressman Poff (the bill’s sponsor in the House) objected that such an amendment might violate the Supreme Court’s rulings that struck down statutes which created status offenses, such as Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469,",
"other instances amount to a pattern of racketeering activity as defined and prohibited in RICO ...” Furthermore, plaintiffs must also allege an enterprise distinct from the pattern of racketeering activity in order to state a claim for a violation of section 1962(c). Even if the Court accepts plaintiffs’ argument that they have properly alleged that defendants formed an enterprise to deny valid insurance claims, that allegation does not assert an enterprise with a separate economic existence from the alleged pattern of racketeering. In United States v. Turk-ette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1980), the Supreme Court stated: “The enterprise” is not “the pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the government. In Moss v. Morgan Stanley, Inc., 553 F.Supp. 1347,1360 (S.D.N.Y.1983), the court observed: [T]he requirement of United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981), that the plaintiff must establish that the enterprise is an entity separate and apart from the pattern of racketeering activity makes clear that a violation of RICO is not set forth simply by alleging that the enumerated felonies of Section 1961 have been committed. If the enterprise that the plaintiff is relying upon is the criminal partnership of the defendants, the plaintiff must establish that there is something more to this partnership than the commission of the underlying felonies. For example, a developed infrastructure for the criminal partnership, used to help carry out its goals and enforce its aims, would suffice to give the group an adequate separate identity to meet the requirement of Turkette; supra. However, if all that the criminal partnership consists of is the commission of the requisite felonies, no violation of Section 1962 can be shown. Proof that the criminal partnership was an “on-going organization, formal or informal,” with its associates functioning “as a continuing unit,” Turkette at 583, 101 S.Ct. at 2528, will suffice to meet",
"for standing to bring a civil RICO damage action is an allegation that the plaintiff has suffered a racketeering enterprise injury.... A racketeering enterprise injury might occur, for example, if a civil RICO defendant’s ability to harm the plaintiff is enhanced by the infusion of money from a pattern of racketeering activity into the enterprise. A number of courts have adopted the requirement that a RICO plaintiff plead a racketeering enterprise injury. See, e.g., Sedima S.P.R.L. v. Imrex Co., Inc., 574 F.Supp. 963 (E.D.N.Y.1983); In re Action Industries Tender Offer, 572 F.Supp. 846 (E.D.Va.1983); Friedlander v. Nims, 571 F.Supp. 1188 (N.D.Ga.1983); Harper v. New Japan Securities International, Inc., 545 F.Supp. 1002 (C.D.Cal.1982). A roughly equal number of courts have rejected the requirement that there be some showing of special racketeering enterprise injury before the plaintiff can recover under § 1962(c). See, e.g., Sutliff Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir.1984); Bennett v. Berg, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 527, (1983), affirming, 685 F.2d 1053 (8th Cir.1982); In re Longhorn Securities Litigation, 573 F.Supp. 255 (W.D.Ok.1983); Crocker National Bank v. Rockwell International Corp., 555 F.Supp. 47 (N.D.Cal.1982). Those courts that have accepted the racketeering enterprise injury requirement have done so chiefly for two reasons. Some courts have found that Congress, in requiring that a civil RICO plaintiff prove injury “by reason of § 1962,” explicitly used language nearly identical to the language found in § 4 of the Clayton Act. Since the Supreme Court has interpreted the “by reason of” requirement of § 4 of the Clayton Act to require that a plaintiff prove anti-trust injury, not just “general” damage, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. 429 U.S. 477, 488-89, 97 S.Ct. 690, 697-98, 50 L.Ed.2d 701 (1977), these courts have held that RICO’s remedies should similarly be restricted to a special kind of injury, racketeering enterprise injury. See, e.g., Harper v. New Japan Securities International, Inc., 545 F.Supp. at 1007. Other courts have restricted RICO’s scope to plaintiffs who allege racketeering enterprise injury on the basis of the",
"v. Morgan Stanley, Inc., 719 F.2d 5, 22 (2d Cir.1983) (rejecting district court’s view that plaintiff in private RICO action brought under 18 U.S.C. § 1964(c) was required to allege facts showing that the enterprise had an “ ‘independent economic significance from the pattern of racketeering activity’ ” (quoting 553 F.Supp. 1347, 1363 (S.D.N.Y.1983))), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). Thus, prior to the Supreme Court’s 1985 decision in Sedima and our interpretation of Sedima in United States v. Ianniello, 808 F.2d 184 (2d Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 3229, 97 L.Ed.2d 736 (1987), this circuit had liberally construed the RICO pattern element as not requiring, in connection with § 1962(c), that the predicate acts be “specifically” related to each other, so long as they were related to the conduct of the affairs of the enterprise, and as not requiring, in connection with § 1962(b), that the predicate acts be separated in time or place or be parts of separable episodes or in furtherance of different schemes. In the meantime, as discussed below, this Court gave more restrictive interpretations in civil RICO cases to other preconditions to recovery, which led to the Supreme Court’s decision in Sedima. B. Sedima’s Footnote lfy and Ianniello’s Interpretation of It In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346, the Supreme Court considered for the first time the civil action provisions of RICO, reversing a decision of this Court which held that a civil action could not be maintained unless (1) the defendant had already been convicted of a predicate racketeering act or of a RICO violation, and (2) the plaintiff could show special racketeering injury. See Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), rev’d, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984) (plaintiff required to show injury flowing from “pattern” rather than from individual racketeering acts), vacated and remanded, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985). The Sedima Court",
"the “by reason of” language, cf. Sedima S.P.R.L. v. Imrex Co., supra, 741 F.2d at 494 that arguably seems to require a link to organized crime, see id., at 509 (Car-damone, J., dissenting), the majority’s approach here creates the risk that even Mafia defendants will not be subject to the civil liability that Congress so clearly envisioned. For this reason, and because the requirement is generally undefined, a host of recent decisions have rejected the racketeering enterprise injury requirement. See, e.g., Kirschner v. Cable/Tel Corp., 576 F.Supp. 234, 244 (E.D.Pa.1983) (racketeering enterprise injury requirement has been “uniformly rejected” as contrary to statutory language and legislative intent); Ralston v. Capper, 569 F.Supp. 1575, 1580 (E.D.Mich.1983) (racketeering enterprise injury requirement “undefined”); Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1240 (S.D.N.Y.1983) (racketeering injury has no basis in language of statute or legislative history and would exclude from section 1964 even the conduct of a firm infiltrated by organized crime); Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 567 F.Supp. 1146, 1157 (D.N.J.1983) (“this judicially imposed requirement of a ‘racketeering enterprise injury’ seems artificial and unwarranted by the language of the RICO statute.”); Kimmel v. Peterson, 565 F.Supp. 476, 493-95 (E.D.Pa.1983) (racketeering enterprise injury is indistinguishable from competitive or commercial injury requirement and would allow certain targeted behavior to escape section 1964’s reach). See also Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1169 (5th Cir.1984); Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 653-54 (7th Cir.1984); Bennett v. Berg, 685 F.2d 1053, 1059 n. 5 (8th Cir.1982), aff'd in part on rehearing en banc, 710 F.2d 1361, cert. denied, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983) (implicitly rejecting racketeering enterprise injury requirement). IV REASONS FOR DISAGREEMENT WITH MAJORITY I fail to see how the complaint lacks any element required by the statute. In my view the complaint sufficiently alleges that Rhodes, Braten and Soifer conducted their crooked corporate “shell game” through a pattern of racketeering activity by way of bankruptcy fraud and state law felonies. It is claimed in the complaint that the RICO enterprise operated",
"the district court here did not explain what the requirement is. Whether a claim under section 1964(c) requires a racketeering injury has recently been one of the most hotly disputed RICO issues in the federal courts. The district courts in this circuit have disagreed on the issue, and district courts in other circuits are also divided. Although we have not tried to count eases, there does not appear to be a clear weight of authority at the district court level either for or against the racketeering injury requirement. Among the courts of appeals, the situation is more complicated. In Schacht v. Brown, 711 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, -, 104 S.Ct. 508, 509, 78 L.Ed.2d 698 (1983), the leading Seventh Circuit case on civil RICO, we rejected several arguments which are closely related to the racketeering injury question. After oral argument in this case, the Second Circuit issued three decisions which, together, amount to an en banc ruling by the Second Circuit in súpport of some sort of racketeering injury requirement. Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), cert. granted, 83 U.S. 917, 105 S.Ct. 901, — L.Ed.2d — (1985); Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984); Furman v. Cirrito, 741 F.2d 524 (2d Cir.1984). By contrast, several recent decisions by this and other courts assume that injuries resulting from the predicate acts of racketeering satisfy RICO’s requirements. Sutliff, Inc. v. Donovan Companies, supra, 727 F.2d at 653-54; Alcorn County v. U.S. Interstate Supplies, Inc., supra, 731 F.2d at 1169; Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1288 (7th Cir.1983); Bennett v. Berg, 685 F.2d 1053, 1058-59 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (8th Cir.), cert. denied, — U.S.-, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Courts on both sides of the racketeering injury dispute have claimed that they are merely following the “plain” meaning of section 1964(c). Compare Bankers Trust Co. v. Rhoades, supra, 741 F.2d at 517 (plain meaning requires a distinct RICO injury), with Furman v. Cirrito, supra, 741 F.2d at",
"the individual predicate acts of racketeering. Therefore, I must resolve the question left open in General Accident. Neither defendant’s arguments on the present motion nor the case law since the date of the General Accident opinion have, in my view, strengthened the arguments in support of a racketeering enterprise injury requirement. Consequently, I retain the view expressed in that opinion that civil RICO liability does not depend upon pleading or proof of a unique injury other than the injury caused by the predicate racketeering acts. For the reasons stated in General Accident and the decisions cited therein which have reached the same conclusion, I conclude that a racketeering enterprise injury is not essential to pleading or proof of a civil RICO claim. c) Need to establish a link to organized crime Defendant also contends that a civil RICO plaintiff must establish a nexus between the RICO claim and organized crime. E.g., Gilbert v. Prudential-Bache Securities, Inc. (CCH) Fed.Sec.L.Rep. ¶ 91,-573 (E.D.Pa.1984) interlocutory appeal pending No. 84-1283 (3d Cir.); American Savings Ass’n v. Sierra Federal Savings & Loan Ass’n, 586 F.Supp. 888 (D.Colo.1984); Bruns v. Ledbetter, 583 F.Supp. 1050 (S.D.Cal.1984); Hokama v. E.F. Hutton & Co., 566 F.Supp. 636 (C.D.Cal.1983); Noland v. Gurley, 566 F.Supp. 210 (D.Colo.1983) ; Adair v. Hunt International Resources Corp., 526 F.Supp. 736 (N.D.Ill.1981); Barr v. WUI/TAS, 66 F.R.D. 109 (S.D.N.Y.1975). See also Aliberti v. E.F. Hutton & Co., 591 F.Supp. 632 (D.Colo.1984) . However, as plaintiffs note, every appellate court which has considered this issue to date, has concluded that no nexus between the claim and organized crime need be pleaded or proven. E.g., Owl Construction Co. v. Ronald Adams Contractor, 727 F.2d 540 (5th Cir.1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983); Schacht v. Brown, 711 F.2d 1343 (7th Cir.1983) , cert. denied, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983); Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (1983), cert. denied sub nom. Prudential Insurance Co. v. Bennett, — U.S. -, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). In addition, the great majority",
"Violations of § 1962(c). The defendants argue that the plaintiff’s claim that Agency, Frankino and Smith violated § 1962(c) by operating Econo-Car II through a pattern of racketeering activity must also be dismissed. The defendants contend that the amended complaint does not state a cause of action because it does not allege that the plaintiff was a victim of a “racketeering enterprise injury.” According to the defendants, a RICO complaint fails to state a cause of action unless it alleges injury above and beyond the injury suffered by virtue of the defendants’ commission of predicate acts of racketeering. The “something more” that the plaintiff must plead is “racketeering enterprise injury.” In arguing that a RICO plaintiff must prove that it has suffered this special kind of injury, the defendant relies, inter alia, on Landmark Savings & Loan v. Rhoades, 527 F.Supp. 206, 208-09 (E.D.Mich.1981), which held that: [Sjomething more or different than injury from predicate acts is required for a plaintiff to have standing to recover treble damages under the RICO statute... What is required for standing to bring a civil RICO damage action is an allegation that the plaintiff has suffered a racketeering enterprise injury.... A racketeering enterprise injury might occur, for example, if a civil RICO defendant’s ability to harm the plaintiff is enhanced by the infusion of money from a pattern of racketeering activity into the enterprise. A number of courts have adopted the requirement that a RICO plaintiff plead a racketeering enterprise injury. See, e.g., Sedima S.P.R.L. v. Imrex Co., Inc., 574 F.Supp. 963 (E.D.N.Y.1983); In re Action Industries Tender Offer, 572 F.Supp. 846 (E.D.Va.1983); Friedlander v. Nims, 571 F.Supp. 1188 (N.D.Ga.1983); Harper v. New Japan Securities International, Inc., 545 F.Supp. 1002 (C.D.Cal.1982). A roughly equal number of courts have rejected the requirement that there be some showing of special racketeering enterprise injury before the plaintiff can recover under § 1962(c). See, e.g., Sutliff Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir.1984); Bennett v. Berg, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 527, (1983), affirming, 685 F.2d",
"must be caused by a RICO violation and not simply by the commission of a predicate offense .... RICO’s civil remedy provision permits a recovery to “any person injured in his business or property by reason of a violation of Section 1962,’’ ... that is, where the distinctive RICO violation contributed to plaintiff’s injury, i.e., where the plaintiff suffered directly a racketeering enterprise injury at the hands of those sought to be reached by the Organized Crime Control Act of 1970. 553 F.Supp. at 1361. In so stating, the district court joined a growing number of courts that have limited standing under 18 U.S.C. § 1964(c) to those “plaintiffs alleging something more, or different, than direct injury resulting from the predicate acts that constitute the racketeering activity. Instead, a plaintiff must allege a commercial or ‘racketeering enterprise’ injury.” Johnsen v. Rogers, 551 F.Supp. 281, 284-85 (C.D.Cal.1982) (footnote omitted); see Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 457 (7th Cir.), cert. denied, - U.S. -, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982); North Barrington Development, Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill. 1980) (“plaintiff must allege how it was injured competitively by the RICO violation in order to state a cause of action under § 1964(c).”); Harper v. New Japan Securities Int’l, 545 F.Supp. 1002, 1007 (C.D.Cal.1982); Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1137 (D.Mass.1982); Landmark Savings & Loan v. Loeb Rhoades, Homblower & Co., 527 F.Supp. 206, 208 (E.D.Mich.1981); see also Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c), 76 Nw.U.L. Rev. 100, 125-33 (1981). But see Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.), aff’d in part and rev’d in part on other grounds, 710 F.2d 1361 (8th Cir. 1983) (en banc); D’lorio v. Adonizio, 554 F.Supp. 222, 231 (M.D.Pa.1982); Hellenic Lines Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981); see also Blakey & Gettings, Racketeer InBuenced and Corrupt Organizations (RICO); Basic Concepts — Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-43 (1980); Strafer, Massumi & Skolnick, Civil RICO in the Public Interest: “Everybody’s Darling,” 19 Am.Crim.",
"address each section of the civil RICO statute and determine whether Plaintiff' has properly averred any other RICO violation. “[T]o bring a claim under 18 U.S.C. § 1962(a), a plaintiff must allege an injury from the use or investment of the racketeering income that is separate and distinct from injuries allegedly caused by the defendant’s engaging in the predicate acts.” Fogie v. THORN Americas, Inc., 190 F.3d 889, 896 (8th Cir.1999). In Fogie, the Eighth Circuit held that the district court properly dismissed a claim brought under § 1962(a) for lack of standing under Rule 12(b)(6) because “plaintiffs have not and apparently cannot allege an injury from a use or investment distinct or separate from the predicate acts they allege.” Id. Plaintiff has not alleged any facts in the Complaint or in her other pleadings to show that she sustained an injury arising out of the defendants’ use or investment of racketeering income. Accordingly, Plaintiff has failed to state a claim under 18 U.S.C. § 1962(a). Likewise, Plaintiff has failed to state a claim under § 1962(b), which prohibits a person from acquiring an interest in an enterprise through a pattern of racketeering activity, because she has not alleged any facts indicating that a defendant obtained an interest in an enterprise through racketeering. Cf. Informa tion Exchange Sys., Inc. v. First Bank Nat’l Ass’n, 994 F.2d 478 (8th Cir.1993) (affirming the trial court’s dismissal of the § 1962(b) claim even though the plaintiffs alleged that defendants took over his business because the plaintiff failed “to demonstrate both the requisite predicate acts and the requisite relatedness of those acts.”). Defendants believe that Plaintiff is attempting to assert a violation of 18 U.S.C. § 1962(c), and the Court agrees. “To state a claim under § 1962(c), a plaintiff must establish: (1) the existence of an enterprise; (2) conduct by the defendants in association with the enterprise; (3) the defendants’ participation in at least two predicate acts of racketeering; and (4) conduct that constitutes a pattern of racketeering activity.” In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d"
] |
see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See REDACTED Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party; summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in
|
[
"appealed the bankruptcy court decision to the district court, which first held that the question of whether Weinschneider’s claim against Burton was part of the bankruptcy estate raised an issue of fact, precluding summary judgment. The district court went on, however, to find that the release and covenant not to sue signed by the Trustee in 1996 were not fraudulently induced by Weinsch-neider and that those documents, by their terms, barred the Trustee’s suit. The court therefore entered judgment in favor of Weinschneider, and the Trustee brought this appeal. We affirm the judgment of the district court. II. ANALYSIS We review the bankruptcy court's factual findings for clear error, while conclusions of law by both the bankruptcy court and the district court are reviewed de novo. In re Image Worldwide, Ltd., 139 F.3d 574, 576 (7th Cir.1998). The disposition of cross-motions for summary judgment is reviewed de novo, with all the facts and the inferences therefrom viewed in a light most favorable to each nonmoving party. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). Summary judgment in favor of one party is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this appeal, the Trustee first argues that the district court erred in reversing the bankruptcy court’s determination that Weinschneider’s claim against Burton and its principals was part of the bankruptcy estate. The bankruptcy court found that Weinschneider’s claim arose out of activities rooted in his prebankruptcy past, holding that the claim was therefore part of the bankruptcy estate. The district court disagreed, finding that, for summary judgment purposes, an issue of material fact had been raised with respect to whether Weinschneider’s interest in Burton was secured pre- or post-bankruptcy. We need not consider such intricate questions of timing, however, as the second issue"
] |
[
"overpayments and funds received as educational benefits, scholarships, or stipends, see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See Hoseman v. Weinschneider, 322 F.3d 468, 473 (7th Cir.2003); Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party; summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in the Code ... and are narrowly construed in favor of the debtor.” DeKalb County Div. of Family & Children Servs. v. Platter (In re Platter), 140 F.3d 676, 680 (7th Cir.1998) (internal citations omitted). In interpreting statutory provisions, we begin with the language of the statute itself. See In re Merchants Grain, Inc., 93 F.3d 1347, 1353 (7th Cir.1996). Section 523(a)(8) excepts from discharge any “debt ... for an educational loan made ... by a governmental unit,” but the statute leaves the term “loan” undefined. We therefore must turn to",
"333, 375-76 (1984). The 1990 amendments further expanded the exception to cover certain educational benefit overpayments as well as obligations to repay funds received as educational benefits, scholarships, or stipends. See Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65 (1990). The 1998 amendments are not relevant to the instant cases, which were initiated in 1997, because they apply only to cases commenced after October 7, 1998. See Higher Education Amendments of 1998, Pub.L. 105-244, § 971(b), 112 Stat. 1581, 1837 (1998). II Extension of a “Loan” A. Definition of Loan Not Met With the policy concerns and relevant legislative history firmly in hand, we turn to the facts of these two cases to see if in either we can discern the kind of educational loan the statute envisions as an exception to discharge. Cazenovia and St. Rose maintain that by allowing Renshaw and Regner, respectively, to attend classes without paying tuition, the colleges extended to them an educational loan excepted from discharge by § 523(a)(8). The students do not dispute that their class attendance was educational. Instead, they contend that whatever services or goods the college gave them did not constitute a “loan” within the meaning of the statute. The analysis of any statute must begin, of course, with its plain language, at least where its language is plain. See Patterson v. Shumate, 504 U.S. 753, 757-59, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); Mansell v. Mansell, 490 U.S. 581, 588, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Because Congress did not define the term “loan” for § 523(a)(8), we must interpret it according to its settled meaning under the common law. See NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981); see also In re Merchant, 958 F.2d 738, 740-41 (6th Cir.1992). The classic definition of a loan was articulated by our Court scores of years ago in In re Grand Union Co., 219 F. 353, 356 (2d Cir.1914). We paraphrase it as follows: To constitute a loan there must be (i) a contract,",
"523(a)(8), 92 Stat. 2549, 2591 (1978), codified at 11 U.S.C. § 523(a)(8). In 1990, Congress lengthened from five to seven years the period beyond which government-assisted student loans became automatically dischargeable. Pub.L. No. 101-647, § 3621, 104 Stat. 4789, 4964-65 (1990), amending 11 U.S.C. § 523(a)(8)(A). Then, in the Higher Education Amendments of 1998, Congress eliminated this time limitation, making “undue hardship” the only exception to non-dischargeability. Pub.L. No. 105-244, § 971(a), 112 Stat. 1581, 1837 (1998). We apply a totality-of-the-circumstances test in determining undue hardship under § 523(a)(8). Reviewing courts must consider the debtor’s past, present, and reasonably reliable future financial resources, the debtor’s reasonable and necessary living expenses, and “any other relevant facts and circumstances.” Long, 322 F.3d at 554. The debtor has the burden of proving undue hardship by a preponderance of the evidence. The burden is rigorous. “Simply put, if the debt- or’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged.” Id. at 554-55. Undue hardship “is a question of law, which we review de novo. Subsidiary findings of fact on which the legal conclusion is based are reviewed for clear error.” In re Reynolds, 425 F.3d 526, 531 (8th Cir.2005). II. When this case was tried in February 2007, Jesperson was forty-three years old, in good health, and unmarried, with two sons from different relationships living with their mothers. He began college in 1983, attended three schools over the next eleven years, and graduated from the University of Minnesota-Duluth in 1994. He began law school in 1996, changed schools in 1997, completed his legal education in 2000, and passed the bar on his first attempt in February 2002. At the time of trial, he owed ECMC $304,463.62 in principal, interest, and collection costs on eighteen student loans, and he owed Arrow Financial Services $58,755.26 on seven other student loans. He has never repaid any part of any loan. The bankruptcy court found that Jesper-son’s “record of work experience is besmirched by a",
"4933, 4965 (1990). Also in 1990, Congress added these restrictions on student loan discharge to bankruptcy cases filed under Chapter 13. Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007, 104 Stat. 1388,1388-28 (1990). In 1998, Congress amended § 523 of the Bankruptcy Code to its current form, eliminating the option for student loan discharge after seven years. Higher Education Amendments of 1998, Pub.L. No. 105-244, Title IX, § 971(a), 112 Stat. 1581, 1837 (1998). Accordingly, now student loans may not be discharged in Chapter 7 or 13 cases, except for the one nar row circumstance when “excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8) (emphasis supplied). Undue Hardship. To prove “undue hardship,” the debtor must establish three elements: (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. Polleys, 356 F.3d at 1307 (citing Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987)). The burden of demonstrating “undue hardship” falls on the debtor. Woodcock v. Chemical Bank, NYSHESC (In re Woodcock), 45 F.3d 363, 367 (10th Cir.1995). Under the Bankruptcy Rules, the debtor must prove the elements of “undue hardship” in an adversary proceeding. Fed. R. Bankr.P. 7001(6) (defining a “proceeding to determine the dischargeability of a debt” as an adversary proceeding). An adversary proceeding is a subpart of a bankruptcy case that has all the trappings of civil litigation. Like a civil trial, adversary proceedings (1) are governed by discovery rules, id. R. 7026, (2) can be adjudicated by summary judgment, id. R. 7056, (3) are subject to the award of costs, id. R. 7054(b), and (4) are appealable, id. R. 8001(a). Furthermore, and more significantly for this case, the notice requirements",
"the scope of 11 U.S.C. § 523(a)(8) by deleting language limiting dischargeability protections to loans issued by nonprofit institutions of higher education. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 375. 1990 Amendments In 1990, Congress expanded the period of repayment from five to seven years. Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(2), 104 Stat. 4933. Finally, the Student Loan Default Prevention Initiative Act of 1990 applied § 523(a)(8) to Chapter 13 cases. The Debate Continues In 1994, Congress again created a commission to review bankruptcy laws. In its October 20, 1997 report, the National Bankruptcy Review Commission recommended to Congress that the exception to discharge for student loans be eliminated: The Commission recommends that Congress eliminate section 523(a)(8) so that most student loans are treated like all other unsecured debts. In so doing, the dischargeability provisions would be consistent with federal policy to encourage educational endeavors. The Recommendation would also address the numerous application problems that have resulted from the current nondisehargeability provision. No longer would Chapter 13 debtors who made diligent efforts to repay be penalized after completing a plan with thousands and thousands in compounded back due interest. Litigation over “undue hardship” would be eliminated, so that the discharge of student loans no longer would be denied to those who need it most. Report of the National Bankruptcy Review Commission, § 1.4.5 (October 20, 1997). Judicial Interpretations of the Word “Loan” One of the most oft-cited definitions of “loan” can be found in the Second Circuit’s opinion in In re Grand Union Co., 219 F. 353 (2d Cir.1914). In In re Grand Union Co., the Second Circuit defined a loan as: [A] contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows. ‘In order to constitute a loan there must be a contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such",
"on student loan programs, Congress has consistently expanded § 523(a)(8). The legislative developments are thoroughly explored in Johnson v. Missouri Baptist College (In re Johnson), 218 B.R. 449, 453-54 (8th Cir. BAP 1998), and are also discussed in Renshaw, 222 F.3d at 87-88. In brief, Congress has expanded § 523(a)(8) in the following ways: In 1979, Congress effectively equalized the treatment of loans administered by for-profit educational institutions and non-profit educational institutions by amending the language of the provision; under the original version, only loans administered by non-profit educational institutions were covered. See Bankruptcy Act — Student Loan Debts, Pub. L. No. 96-56, § 3(1), 93 Stat. 387 (1979). Also, deferment periods were excluded from the calculation of the repayment period. See id. § 3(2). In 1984, Congress amended the language to include educational loans from “nonprofit institutions” rather than only “nonprofit institutions of higher education.” See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76. In 1990, Congress expanded the exception to cover educational benefit overpayments and funds received as educational benefits, scholarships, or stipends, see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See Hoseman v. Weinschneider, 322 F.3d 468, 473 (7th Cir.2003); Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party;",
"of any applicable suspension of the repayment period) before the date of the filing of the petition....'\" Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621, 104 Stat. 4964-65 (emphasis added). .\"Section 1328(a)(2) of title 11, United States Code, is amended by striking 'section 523(a)(5)’ and inserting 'paragraph (5) or (8) of section 523(a).’ \" Student Loan Default Prevention Initiative Act of 1990, Pub.L. No. 101-508, § 3007(b), 104 Stat. 1388-28 (emphasis added). . One justification for the nondischargeability of student loans focuses on the special status of student borrowers. Since they lack the normal indicia of creditworthiness — income and collateral — most students would not even qualify for a loan. \"[E]ducational loans are different from most loans. They are made without business considerations, without security, without cosigners, and relying for repayment solely on the debtor’s future increased income resulting from the education.\" H.R.Rep. No. 95-595, at 133 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6094. At least one commentator has argued for limitations on the dischargeability of student loans because students, unlike other debtors, retain the subject matter of the loan transaction in the form of an income-generating degree: The concept of bankruptcy is to give those who aren't able to meet their obligations an opportunity to throw both their assets and liabilities into a legal proceeding wherein their creditors liquidate the bankrupt’s assets and share in the distribution of the revenues in proportion to the unpaid credit extended to the bankrupt. The bankrupt is intended to come out \"whole” but not with the assets. In the case of student borrowers, the asset acquired by the credit extended is a college degree, a license to practice, increased learning, a capacity to perform specific tasks and often a more socially adjusted individual. When the bankrupt walks away with these assets, how can there be a true bankruptcy? Letter from Kenneth R. Reeher, Commonwealth of Pennsylvania Higher Education Assistance Agency to Hon. Don Edwards (January 28, 1976).",
"the petition; or (B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.... Bankruptcy Reform Act of 1978 § 523(a)(8), 92 Stat. at 2590-91. Congress has amended § 523(a)(8) a number of times. In 1979, to avoid disparities in the treatment of loans from different sources (i.e., for-profit as opposed to non-profit lenders) with respect to their dischargeability in bankruptcy, it broadened the subsection to cover “any educational loan made, insured, or guaranteed by a governmental unit, or made under any program ... funded by a governmental unit or nonprofit institution of higher learning.” Bankruptcy Act — Student Loan Debts, Pub.L. No. 96-56, § 3(1), 93 Stat. 387 (1979); S.Rep. No. 96-230, at 1-2 (1979), reprinted in 1979 U.S.C.C.A.N. 936, 936-37. In 1984, Congress expanded the exception to apply to loans made under a program funded by any nonprofit insti tution and made stylistic changes to the section. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76 (1984). The 1990 amendments further expanded the exception to cover certain educational benefit overpayments as well as obligations to repay funds received as educational benefits, scholarships, or stipends. See Federal Debt Collection Procedures Act of 1990, Pub.L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65 (1990). The 1998 amendments are not relevant to the instant cases, which were initiated in 1997, because they apply only to cases commenced after October 7, 1998. See Higher Education Amendments of 1998, Pub.L. 105-244, § 971(b), 112 Stat. 1581, 1837 (1998). II Extension of a “Loan” A. Definition of Loan Not Met With the policy concerns and relevant legislative history firmly in hand, we turn to the facts of these two cases to see if in either we can discern the kind of educational loan the statute envisions as an exception to discharge. Cazenovia and St. Rose maintain that by allowing Renshaw and Regner, respectively, to attend classes without paying tuition, the colleges extended to them an educational loan excepted from discharge by § 523(a)(8). The students",
"summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in the Code ... and are narrowly construed in favor of the debtor.” DeKalb County Div. of Family & Children Servs. v. Platter (In re Platter), 140 F.3d 676, 680 (7th Cir.1998) (internal citations omitted). In interpreting statutory provisions, we begin with the language of the statute itself. See In re Merchants Grain, Inc., 93 F.3d 1347, 1353 (7th Cir.1996). Section 523(a)(8) excepts from discharge any “debt ... for an educational loan made ... by a governmental unit,” but the statute leaves the term “loan” undefined. We therefore must turn to the traditional understanding of the term “loan” under common law. See NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (“Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.”); In re Clark, 738 F.2d 869, 872 (7th Cir.1984) (“Absent a persuasive reason to the contrary, we are to attribute to the words of a statute their common meaning.”). This court has not previously addressed the scope of the term “loan” in § 523(a)(8). The Second and Third Circuits, however, have determined that unpaid student debts like Ms. Chambers’ do not qualify as educational loans. See Boston Univ. v. Mehta (In re Mehta), 310 F.3d 308 (3d Cir.2002); Renshaw, 222 F.3d at 82. Their analysis is instructive. Renshaw involved a consolidated appeal of two separate eases. In the first case, Cazenovia College v. Renshaw, the student signed a “Reservation Agreement” with the",
"funds received as an educational benefit, scholarship or stipend .... 11 U.S.C. § 523(a)(8). The current version of § 523(a)(8) is significantly broader than the exception originally enacted. In 1978, Representative Alan Ertel sponsored the amendment creating the original § 523(a)(8). He stated in debate that “the purpose of this particular amendment is to keep our student loan programs intact.” 124 Cong. Rec. H1791 (daily ed. Feb. 1, 1978). Representative Ertel noted that by allowing dischargeability of student loans “we are penalizing students who are coming along through the system.” Id. at H1792. Legislators debating the merits of the exception from discharge similarly discussed concerns with the funding of the student loan program. Id. at H1792-98. As enacted, the original exception covered debt “to a governmental unit, or a nonprofit institution of higher education, for an educational loan” unless the loan became due more than five years before the date on which the petition was filed. Pub. L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591, 11 U.S.C. § 523(a)(8) (1978). Despite this original focus on student loan programs, Congress has consistently expanded § 523(a)(8). The legislative developments are thoroughly explored in Johnson v. Missouri Baptist College (In re Johnson), 218 B.R. 449, 453-54 (8th Cir. BAP 1998), and are also discussed in Renshaw, 222 F.3d at 87-88. In brief, Congress has expanded § 523(a)(8) in the following ways: In 1979, Congress effectively equalized the treatment of loans administered by for-profit educational institutions and non-profit educational institutions by amending the language of the provision; under the original version, only loans administered by non-profit educational institutions were covered. See Bankruptcy Act — Student Loan Debts, Pub. L. No. 96-56, § 3(1), 93 Stat. 387 (1979). Also, deferment periods were excluded from the calculation of the repayment period. See id. § 3(2). In 1984, Congress amended the language to include educational loans from “nonprofit institutions” rather than only “nonprofit institutions of higher education.” See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 454(a)(2), 98 Stat. 333, 375-76. In 1990, Congress expanded the exception to cover educational benefit"
] |
show cause. If he has, then his conviction under Arizona law qualifies as a deportable offense. Finally, we note that IIRIRA § 309(c)(4)(B)’s bar on ordering the taking of additional information under 28 U.S.C. § 2347 is not relevant here. Section 2347 concerns a party’s appeal to our court to adduce additional evidence, for example, where new evidence about a well-founded fear of persecution is discovered. See Ghaly v. INS, 58 F.3d 1425, 1431-32 (9th Cir.1995) (declining to consider N.Y. Times article and evidence that petitioner qualifies for suspension of deportation); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 n. 2 (9th Cir.1983) (declining to consider Amnesty International Report, U.S. State Department Advisory, and periodical articles concerning political turmoil in Guatemala). Cf. REDACTED Here, the additional evidence is necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to
|
[
"ORDER Mohammed Riad Altawil (“Petitioner”) moves this court (1) to reconsider its order, filed December 12, 1997, striking the Petitioner’s Supplemental Excerpt of Record (“Supplemental Excerpt”), or in the alternative (2) for Leave to Adduce Additional Evidence and to Remand to the Board of Immigration Appeals (the “Board”). The Immigration and Naturalization Service (“Respondent”) has requested the court to consider Petitioner’s motion to be a request, pursuant to Rule 16(b) of the Federal Rules of Appellate Procedure, to supply an omission from the record. Respondent has stipulated to the addition of the transcript to the administrative record. Respondent opposes the motion as to all other documents included in the Excerpt of Record. In light of this stipulation, we deem Petitioner’s motion to be a request to supply an omission from the record pursuant to Rule 16(b). We hereby grant that request, solely as to the hearing transcript, and will consider the hearing transcript to be a supplemental record for purposes of the petition. Under 8 U.S.C. § 1105a(a)(4), the petition must “be determined solely upon the administrative record upon which the deportation order is based.” (emphasis added). The documents contained in the Supplemental Excerpt were not part of the administrative record upon which Petitioner’s deportation order was based. We therefore deny his motion to reconsider the motion panel’s order. Petitioner moves this court, alternatively, for leave to adduce additional evidence and requests a remand to the Board. This request is premised upon out-of-circuit ' authority applying 28 U.S.C. § 2347(c). Under Section 309(c)(4)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, in the case of an alien in deportation proceedings in which a final order of deportation was entered on or after October 31, 1996, “a court may not order the taking of additional evidence under section 2347(c) of title 28, United States Code.” Pub.L. 104-208, Division C, Title III § 309(c)(4)(B), 110 Stat. 3009. The final order of deportation in Petitioner’s case was issued after October 31, 1996. We therefore deny Petitioner’s request for leave to adduce additional evidence and remand to the Board because we"
] |
[
"this offense, Cardenas had been accorded first time offender treatment under any law. If he has not, then he is not deportable as charged in the order to show cause. If he has, then his conviction under Arizona law qualifies as a deportable offense. Finally, we note that IIRIRA § 309(c)(4)(B)’s bar on ordering the taking of additional information under 28 U.S.C. § 2347 is not relevant here. Section 2347 concerns a party’s appeal to our court to adduce additional evidence, for example, where new evidence about a well-founded fear of persecution is discovered. See Ghaly v. INS, 58 F.3d 1425, 1431-32 (9th Cir.1995) (declining to consider N.Y. Times article and evidence that petitioner qualifies for suspension of deportation); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 n. 2 (9th Cir.1983) (declining to consider Amnesty International Report, U.S. State Department Advisory, and periodical articles concerning political turmoil in Guatemala). Cf. Altawil v. INS, 179 F.3d 791, 792 (9th Cir.1999) (relying on section 309(e)(4)(B) to deny petitioner’s request to adduce additional evidence). Here, the additional evidence is necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to possession of drug paraphernalia as a lesser offense. He claims that the drug paraphernalia correlated with the marijuana and in fact he was found with less than 30 grams of marijuana. He argues that under the statute, therefore, he fits into the exception in section 241(a)(2)(B)(i) for personal use. Generally, however, we do not look at the facts underlying the conviction; rather, we examine the actual law under which a defendant was",
"791, 792-93 (9th Cir.1999) (denying transitional alien’s request for leave to adduce additional evidence and to remand to the Board thereon since IIRIRA § 309(c)(4)(B) precludes the reviewing court from “ordering] the taking of additional evidence by the Board under 28 U.S.C. 2347(c)”). Section 2347(c) pertains to an application in the court of appeals “for leave to adduce additional evidence” that “is material” and for which “there were reasonable grounds for failure to adduce the evidence before the agency.” 28 U.S.C. § 2347(c) (1994). Thus, IIRI-RA’s prohibition of remanding for the consideration of “additional evidence” pertains to non-record evidence that is introduced in the first instance before a reviewing-court. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir.2000) (“Section 2347 concerns a party’s appeal to [this] court [asking permission] to adduce addi-. tional evidence, for example, where new evidence about a well-founded fear of persecution is discovered.”). This court has not yet examined how § 1105a(a)(4) and § 2347(c) function in cases in which IIRIRA § 309(c)(4)(B) applies. Thus, we have surveyed the landscape of decisions granting judicial notice in immigration cases. In an en banc decision, the Ninth Circuit reasoned that § 1105a(a)(4) permits a court of appeals to “review out-of-record evidence only where (1) the Board considers the evidence; or (2) the Board abuses its discretion by failing to consider such evidence upon the motion of an applicant.” Fisher v. INS, 79 F.3d 955, 964 (9th Cir.1996). Based on this rule, Fisher refused to notice State Department Country Reports that could have been, but were not, offered below. See id. at 964. In later decisions, the Ninth Circuit retreated from Fisher. See, e.g., Rising v. INS, 124 F.3d 996, 998-99 (9th Cir.1997) (taking judicial notice of official INS forms not contained in the administrative record); Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir.2000) (taking judicial notice of dramatic developments in the proposed country of deportation arising between the BIA’s decision and appellate review). But see Hernandez v. INS, 229 F.3d 1157 (table), 2000 WL 831811, *1 (9th Cir.2000) (unpublished mem.) (denying alien’s request to file sup",
"necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to possession of drug paraphernalia as a lesser offense. He claims that the drug paraphernalia correlated with the marijuana and in fact he was found with less than 30 grams of marijuana. He argues that under the statute, therefore, he fits into the exception in section 241(a)(2)(B)(i) for personal use. Generally, however, we do not look at the facts underlying the conviction; rather, we examine the actual law under which a defendant was convicted to determine whether the law relates to controlled substances. See Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir.1997); see also Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.1999) (“The inherent nature of the crime of conviction, as defined in the criminal statute, is relevant in this determination; the particular circumstances of [the respondent's] acts and convictions are not.’’). . We address the issue of expungement under Manrique even though it appears to have been waived by Cardenas, as it relates to our subject matter jurisdiction. See, e.g., Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (subject matter jurisdiction cannot be waived); DeSaracho v. Custom Food Machinery, Inc., 206 F.3d 874, 878 n. 4 (9th Cir.2000). . In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), we held that if an alien would have qualified for first offender treatment under federal law prior to the 1996 amendments to the immigration laws, he can still qualify for first offender treatment after the",
"those in place at the time of the appeal to the BIA in this case. See 8 C.F.R. § 3.2 (2002). However, neither the substantive nor procedural changes are applicable to this case. Deportation proceedings were initiated against Ramirez-Alejandre on May 4, 1990. The BIA issued its decision on June 6, 2000. Therefore, this case is governed by the transitional rules of IIRIRA. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Accordingly, Ramirez-Alejandre remains eligible for suspension of deportation under pre-IIRIRA law and the new remedy of cancellation of removal is not applicable. Because the new procedural regulations were promulgated after the BIA issued the instant decision in this case, they also are not relevant to the issues presented in this case. IIRIRA altered our review of the BIA decisions in suspension of deportation cases. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778-79 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133 F.3d at 1152. IIRIRA also precluded appellate courts from remanding cases to the BIA for the taking of additional evidence under 28 U.S.C. § 2347(c). Altawil v. INS, 179 F.3d 791, 793 (9th Cir.1999). Notwithstanding these statutory limitations on judicial review, we retain the power to review constitutional due process challenges to immigration decisions. Sanchez-Cruz, 255 F.3d at 779. This review is de novo. Id. In deciding whether agency procedures comport with due process, we do not defer to the agency. See Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (noting that administrative agencies have great latitude in crafting rules of procedure only “[a]bsent constitutional constraints”). Now that we have set the historical context, we turn to the specifics of this case. II Ramon Ramirez-Alejandre is forty-four years",
"the IJ’s discretionary determination in light of this finding. II Under the Immigration Reform and Illegal Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), deportation proceedings initiated prior to April 1,1997, for which a final order of deportation is issued after October 30, 1996, are subject to the “transitional rules of judicial review.” Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir.1997); IIRIRA § 309(c)(4). Because deportation proceedings were initiated against Reyes-Melendez on December 30, 1996 and a final order of deportation was issued on February 26, 2002, the transitional rules apply. “Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation ... has met the statutory eligibility requirement of ‘extreme hardship.’ ” Sanchez-Cruz v. INS, 255 F.3d 775, 778 (9th Cir.2001) (citing Kalaw, 133 F.3d at 1152); see also IIRIRA § 309(c)(4)(E). We also lack jurisdiction to review the Attorney General’s discretionary decision whether to grant suspension once eligibility is determined. Sanchez-Cruz, 255 F.3d at 779; Kalaw, 133 F.3d at 1152. IIRIRA also precludes appellate courts from remanding cases to the BIA for the taking of additional evidence under 28 U.S.C. § 2347(c). Altawil v. INS, 179 F.3d 791, 793 (9th Cir.1999). Notwithstanding these statutory limitations on judicial review, we retain the power to review constitutional due process challenges to immigration decisions. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003) (en banc). We review de novo due process challenges to final orders of deportation. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We will grant a petition for review from a BIA decision on due process grounds “if the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Colmenar, 210 F.3d at 971 (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir.1986)). The alien must also show prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation. Id. Because the BIA had jurisdiction under 8 C.F.R. § 3.1(b)(2), and because Reyes-Melendez filed a timely petition, we",
"present new facts or evidence that may entitle the alien to relief from deportation.”). Recently, in Ramirez-Alejandre v. Ashcroft, 320 F.3d 858 (9th Cir.2003) (en banc), we reversed the BIA’s determination that it could not consider new evidence of extreme hardship on appeal, noting that the BIA had taken a “schizophrenic” approach, sometimes considering new evidence, sometimes remanding to the IJ, and sometimes following Fedorenko, in concluding that it could not consider new evidence. Id. at 865-66. We also noted that, under applicable law at the time, a motion to reopen was the only formal mechanism for introducing new evidence after the BIA’s decision. Id. at 867. Given this limitation and the inconsistent approach taken by the BIA, Ordonez’s belief that BIA’s legal rulings precluded him from submitting additional evidence provides a reasonable explanation for not submitting the evidence earlier. Thus, the BIA’s alternative ruling that Ordonez’s evidence did not warrant consideration was an abuse of discretion violative of his due process rights. CONCLUSION Based on the foregoing, we hold that the IJ’s oral notice to Ordonez of the consequences of failing to voluntarily depart was insufficient as a matter of law and that the BIA erred in refusing to consider the additional evidence Ordonez offered to support his motion to reopen. The petition for review is GRANTED, the decision of the BIA is REVERSED, and the cause REMANDED for further proceedings consistent with this opinion. . Because deportation proceedings were commenced against Petitioner prior to April 1, 1997, and the final order of deportation was entered after October 30, 1996, the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) apply to his case. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000). Therefore, we have jurisdiction over his petition under 8 U.S.C. § 1105a, as amended by IIRI-RA § 309(c)(4). Id.; see also Pedro-Mateo v. INS, 224 F.3d 1147, 1149 (9th Cir.2000). . Because Ordonez challenges the notice as inadequate, Respondent's reliance on Shaar v. INS, 141 F.3d 953 (9th Cir.1998), is misplaced. In that case, it was undisputed that the aliens received",
"2347); Osaghae, 942 F.2d at 1161-62; Makonnen v. INS, 44 F.3d 1378, 1384-86 (8th Cir.1995); Becerra-Jimenez v. INS, 829 F.2d 996, 1000-02 (10th Cir.1987); Bernal-Garcia v. INS, 852 F.2d 144, 147 (5th Cir.1988); Dolores v. INS, 772 F.2d 223, 226-27 (6th Cir.1985) (per curiam); Coriolan v. INS, 559 F.2d 993, 1002-04 (5th Cir.1977) (taking judicial notice of non-record Amnesty International report to find that the report established dramatic changes in country conditions which merited reversal and remand under § 2347(c) for further consideration of the alien’s asylum claim). But see Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213-14 (9th Cir.1983) (holding that it is improper to apply § 2347(e) where an asylum applicant presents new evidence for the first time on appeal, because remanding under § 2347(c) amounts to an order to reopen, and a court should not generally compel the INS to reopen proceedings). In transitional cases, however, IIR-IRA § 309(c)(4)(B) directs that “a court may not order the taking of additional evidence under section 2347(c) of title 28.” See Altawil v. INS, 179 F.3d 791, 792-93 (9th Cir.1999) (denying transitional alien’s request for leave to adduce additional evidence and to remand to the Board thereon since IIRIRA § 309(c)(4)(B) precludes the reviewing court from “ordering] the taking of additional evidence by the Board under 28 U.S.C. 2347(c)”). Section 2347(c) pertains to an application in the court of appeals “for leave to adduce additional evidence” that “is material” and for which “there were reasonable grounds for failure to adduce the evidence before the agency.” 28 U.S.C. § 2347(c) (1994). Thus, IIRI-RA’s prohibition of remanding for the consideration of “additional evidence” pertains to non-record evidence that is introduced in the first instance before a reviewing-court. See Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir.2000) (“Section 2347 concerns a party’s appeal to [this] court [asking permission] to adduce addi-. tional evidence, for example, where new evidence about a well-founded fear of persecution is discovered.”). This court has not yet examined how § 1105a(a)(4) and § 2347(c) function in cases in which IIRIRA § 309(c)(4)(B) applies. Thus, we have surveyed the landscape",
"8 U.S.C. § 1105(a) (repealed 1996). In 1996, Congress passed IIRIRA, which substantially restricted the scope of judicial review. Of importance to this case, section 309(c)(4)(E) of IIRIRA, which governs requests for suspension of deportation made pursuant to section 244 of the INA, provides that “there shall be no appeal of any discretionary decision under ... section 244 of the Immigration and Nationality Act.” Section 309(c)(4)(E) is part of the transitional rules of IIRIRA that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30,1996. See IIRIRA § 309(c)(1); see also Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (“As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA’s transitional rules apply.”). The INS commenced deportation proceedings against Castillo in 1994. The BIA entered a final order of deportation in 1997. The case is, therefore, governed by the transitional rules of IIRIRA. We hold, however, that section 309(c)(4)(E) of IIRIRA does not bar this court from exercising, jurisdiction over Castillo’s claim, as neither the BIA nor the IJ made a discretionary decision “under ... section 244 of the Immigration and Nationality Act.” IIRIRA § 309(c)(4)(E). It is uncontroverted that the Attorney General’s decisions on section 244 motions to suspend deportation are wholly discretionary and not appealable. In Kalaw, we held that because the ultimate grant of suspension of deportation by the Attorney General is wholly discretionary, “under IIRIRA’s transitional rules, there is no direct judicial review of the Attorney General’s ultimate decision not to suspend deportation proceedings.” Kalaw, 133 F.3d at 1152. A BIA decision to deny suspension of deportation, however, is still subject to review under some circumstances. In Kalaiv, we held that as to “those elements of statutory eligibility [for section 244 suspension of deportation] which do not involve the exercise of discretion, direct judicial review remains.” Id. at 1150. Kalaw then analyzed the three statutory requirements found in INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994) — (1) seven years",
"8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the pendency of a request for relief-in that case, a motion to reopen deportation proceedings filed just prior to the departure date-failed to constitute an “exceptional circumstance” justifying a failure to timely depart. This Petition for Review followed. II. Because Barrios was placed in deportation proceedings prior to April 1,1997, and his final order of deportation was entered by the BIA after October 31, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”). See Sandoval v. Reno, 166 F.3d 225, 229-31 (3d Cir.1999) (applying IIRIRA’s transitional rules to jurisdiction). We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the BIA’s legal conclusions de novo, with appropriate deference to the agency’s interpretation of the underlying statute in accordance with administrative law principles. Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d Cir.2001). We are also mindful of “ ‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’ ” INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting INS v. Cardoza — Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). III. Barrios argues that he is eligible for an adjustment of status based on his marriage to a United States citizen. He further argues that he filed the motion to reopen with the BIA in a timely manner, prior to his voluntary departure date, and that the administrative delay of the BIA in adjudicating his motion should not deprive him of the relief to which he is entitled. Insofar as Matter of Shaar compels a contrary conclusion, he argues that it should",
"based on the BIA’s dismissal of his motion to remand (not the motion to reopen), and because we conclude that, in light of the violation of Castillo’s constitutional rights that occurred at his hearing, due process requires that he be afforded the benefit of the law that was applicable at the time of that hearing, we decline to exercise our discretion to consider the BIA’s holding that NACARA’s timing rale is triggered by an order to show cause and should generally apply retroactively. STANDARD OF REVIEW The BIA’s denial of a motion to remand is reviewed for abuse of discretion. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999). Claims of due process violations in deportation proceedings are reviewed de novo, see Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), as are the BIA’s determination of purely legal questions. See, e.g., Ratnam v. INS, 154 F.3d 990, 994 (9th Cir.1998). ANALYSIS I. Jurisdiction Prior to the passage of IIRIRA, most orders of deportation were subject to direct judicial review. See INA § 106(a), 8 U.S.C. § 1105(a) (repealed 1996). In 1996, Congress passed IIRIRA, which substantially restricted the scope of judicial review. Of importance to this case, section 309(c)(4)(E) of IIRIRA, which governs requests for suspension of deportation made pursuant to section 244 of the INA, provides that “there shall be no appeal of any discretionary decision under ... section 244 of the Immigration and Nationality Act.” Section 309(c)(4)(E) is part of the transitional rules of IIRIRA that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30,1996. See IIRIRA § 309(c)(1); see also Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (“As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA’s transitional rules apply.”). The INS commenced deportation proceedings against Castillo in 1994. The BIA entered a final order of deportation in 1997. The case is, therefore, governed by the transitional rules of IIRIRA. We hold, however, that section 309(c)(4)(E)"
] |
the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the absence of abuse. REDACTED cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the
|
[
"a period of more than a week. We do not underestimate the importance of requiring timely compliance with pre-trial orders. On the other hand, a trial court should not adhere blindly to the letter of the order “no matter what the reason” for a party’s non-compliance. We note that the magistrate expressly exonerated defendant from any implication of bad faith in failing to “timely” list the witness and found that such failure was not a trial tactic. Cf. De Marines v. KLM Royal Dutch Airlines, 580 F.2d 1192 (3 Cir. 1978). On the premise of the magistrate’s ruling, a party could never obtain a new trial on the ground of post-trial newly discovered evidence either under Rule 59 or under Rule 60(b)(2), FRCP. Granted that “a motion for new trial on the ground of newly discovered evidence is viewed with disfavor” (Edgar v. Finley, 312 F.2d 533, 536 (8 Cir. 1963)), a denial of such a motion is nevertheless reversible if the trial court abused its discretion. In the present case, the new evidence was discovered before the trial commenced, so that the time and expense of a new trial could have been avoided had the evidence been allowed or a con tinuance been granted had plaintiff requested one. As appears supra, we have concluded that under the circumstances of this case, the court abused its discretion in denying defendant’s request to amend its witness list by adding the name of Gerry Ballard and in refusing thereafter to grant defendant a new trial. Reversed and remanded for a new trial. . The Honorable R. E. Longstaff, United States Magistrate of the United States District Court for the Southern District of Iowa. . Initially, plaintiff theorized that the heater’s control valve which was manufactured by Honeywell, Inc. (an original co-defendant) was defective and malfunctioned, causing an improper flow of gas and delayed ignition within the heater. When tests by plaintiff’s experts failed to find such a defect, Honeywell was dropped as a defendant, and the “dust-particle” theory was developed. In the opinion of defendant’s experts the “dust particle” theory was “quite"
] |
[
"Discussion, a. The Rule 60(b) Motion. After the Tribe became aware of Lone Dog’s grand jury testimony, it moved for relief from judgment on the grounds of newly discovered evidence under Fed.R. Civ.P. 60(b)(2), fraud of an adverse party under Fed.R.Civ.P. 60(b)(3), and fraud upon the court under Fed.R. Civ.P. 60(b)(6). The trial court held that Rule 60(b)(2) was inapplicable to the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the absence of abuse. Dabney v. Montgomery Ward & Co., Inc., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980),",
"upon a showing of exceptional circumstances. Atkinson v. Prudential Ins. Co., 43 F.3d 367 (8th Cir.1994). Relief under Rule 60(b) is within the sound discretion of the district court. Id. at 371. We will not disturb that Court’s decision absent a cleat-abuse of its discretion. Ibid. More specifically, motions under Rule 60(b)(2) on the ground of newly discovered evidence are viewed with disfavor. Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983). A movant may prevail on a Rule 60(b)(2) motion by showing: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Baxter Int’l Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). We conclude that Mitchell failed to show due diligence, and that this new evidence is unlikely to produce a different result from that previously reached by the ALJ. The new evidence offered by Mitchell is a Psychological Screening Evaluation conducted by Arkansas Rehabilitation Services. The evaluation reflects that Mitchell “is not literate,” and places “[h]is reading comprehension at the second grade level.” He asserts that the evaluation indicates that his educational level is marginal, which “would mandate a conclusion that he was disabled pursuant to the Vorn out worker rule.’ ” See 20 C.F.R. §§ 404.1562, 416.962. He offers the following explanation for his delay in submitting the evidence: the evaluation did not exist at the time of the administrative hearing; he was not represented by counsel at the hearing; and he was unable to recognize the need to present evidence with regard to his literacy or education level. In denying Mitchell’s motion, the District Court concluded that Mitchell was not diligent in presenting the evidence and expressed a belief that the evaluation was not credible. We agree. Like the District Court, we are not persuaded by Mitchell’s claim that the delay is due to the fact that he",
"absence of abuse. Dabney v. Montgomery Ward & Co., Inc., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980), quoting, Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970); see United States v. Walus, 616 F.2d 283, 288 (7th Cir.1980). Thus, the Rule is intended “to prevent the judgment from becoming a vehicle of injustice”. Walus, 616 F.2d at 288. According to Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir.1980), quoting, Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir.1965), the Rule is to be given a liberal construction” and “is to be construed liberally to do substantial justice.” See Edgar, 312 F.2d at 538. In order to obtain relief under Rule 60(b)(2), on grounds of newly discovered evidence, the moving party must establish that: (1) the evidence was discovered after trial; (2) it exercised due diligence to obtain the evidence for trial; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that a new trial probably would produce a new verdict. United",
"from the operation of the judgment.” Fed.R.Civ.P. 60(b)(2), (3), and (6). Relief under Rule 60(b) is “an extraordinary remedy that allows the court ‘to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.’ ” Hoover v. Valley West D M, 823 F.2d 227, 230 (8th Cir.1987) (quoting Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984)); see also Design Classics, Inc. v. Westphal (In re Design Classics, Inc.), 788 F.2d 1384, 1386 (8th Cir.1986). Granting or denying a motion under Rule 60(b) is within the discretion of the trial court and may only be reviewed for an abuse of discretion. Design Classics, 788 F.2d at 1386. 1. Jurisdiction While courts have differed on the question, see 11 Charles Alan Wright et al., Federal Practice and Procedure § 2873, (2d ed.1995), the law in this circuit is clear. A motion for relief from a judgment or order filed after a notice of appeal from the same order has been taken may be considered on its merits and denied, but not granted, by the trial court. Brode v. Cohn, 966 F.2d 1237, 1240 (8th Cir.1992) (citing Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991)). The trial court may also indicate its willingness to grant such an order and instruct the parties to seek an order staying further proceedings on appeal and remanding the case to the trial court for a ruling on the motion. Winter v. Cetro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991). Accordingly, the bankruptcy court had jurisdiction to hear appellants’ motion for relief from the September 20 order and to deny it, which it did. 2. Asserted Grounds for Relief from the Judgment Essentially, Appellants’ arguments fall within Rule 60(b)(2) and (b)(3) because they allege the discovery of new evidence and the existence of fraud. In order to obtain relief under (b)(2), the moving party must show that “(1) the evidence was discovered after trial;",
"because Lone Dog still claimed the Fifth Amendment and thus was held to be an “unavailable witness”. Fed.R.Civ.P. 32(a)(3) ; Fed. R.Evid. 804(a)(1). On September 18, 1981, Lone Dog appeared as a witness before a federal grand jury. He testified that, prior to the time the contract between the Tribe and A & P was signed, Strain approached Lone Dog, told him he intended “to make some money off the contract”, and would be inclined to give some of this money to Lone Dog. Lone Dog was shown each of the checks which Strain had made out to Lone Dog, and testified as to what each allegedly had bought. Lone Dog then testified that the •six checks which reflected purchases of hay actually were “payoffs”. He also testified that a seventh check which reflected a purchase of a pick-up truck was partially a payoff. Lone Dog testified that he had neither sold nor delivered any hay to Strain. Finally, he testified that Attorney Strain had advised him to give false testimony during the deposition. II. Discussion, a. The Rule 60(b) Motion. After the Tribe became aware of Lone Dog’s grand jury testimony, it moved for relief from judgment on the grounds of newly discovered evidence under Fed.R. Civ.P. 60(b)(2), fraud of an adverse party under Fed.R.Civ.P. 60(b)(3), and fraud upon the court under Fed.R. Civ.P. 60(b)(6). The trial court held that Rule 60(b)(2) was inapplicable to the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the",
"district court in connection with such a motion will not be reversed on appeal save for abuse. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977; Hale v. Ralston Purina Co., 432 F.2d 156, 159 (8th Cir. 1970); 11 Wright & Miller, Federal Practice & Procedure, § 2857. The authors just cited have said that “motions under Rule 60(b) involve a nice balance between the interest in finality and the desire to achieve justice. . . .” 11 Wright & Miller, § 2872, p. 261. And, several years ago in Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969), we said that Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” The district court characterized the plaintiff’s Rule 60(b) motion, as first amended, as being based on the Rule’s Ground (1), mistake, and Ground (4), voidness of judgment. Plaintiff’s motion, as amended, did not refer in terms to Ground (6) heretofore mentioned. As to the plaintiff’s claim that the judgment was entered and satisfied under a “mistake of law” on the part of plaintiff’s counsel as to the effect or possible effect of the judgment and satisfaction, the district court observed correctly that this court has held consistently that relief from a judgment is not to be granted under Rule 60(b) simply because its entry may have resulted from incompetence or ignorance on the part of an attorney employed by the party seeking relief. Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir. 1975); United States v. Thompson, 438 F.2d 254, 256 (8th Cir. 1971); Hoffman v. Celebrezze, supra. Aside from that, the district court held that relief could not be granted upon Ground (1) of the Rule because the motion was not filed within one year after the entry of the judgment. As to the claim of plaintiff that the judgment in the Burkle case was “void” so that plaintiff would be entitled to relief upon Ground (4), the district judge pointed out that when the judgment was entered the district court had jurisdiction of the",
"observed in the body of the text, plaintiffs filed their motion within the ten day time period as required for a Rule 59(e) motion. . Motions pursuant to Rule 60(b)(2), asserting newly discovered evidence, are, in any event, viewed with disfavor. Mitchell, 48 F.3d at 1041 (citing Dabney v. Montgomery Ward & Co., 692 F.2d 49, 52 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983)). A person moving for relief pursuant to Rule 60(b)(2) must establish the following: (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result. Mitchell, 48 F.3d at 1041; Atkinson, 43 F.3d at 371; Baxter Int’l, Inc. v. Morris, 11 F.3d 90 (8th Cir.1993). These requirements plaintiffs manifestly cannot meet here. . Because plaintiffs’ complaint alleges causes of action for fraud, the “fraud” ground of Rule 60(b)(3) must be distinguished from the plaintiffs’ fraud cause of action. To prevail on a motion under Rule 60(b)(3), \"the movant must show, with clear and convincing evidence, that the opposing party engaged in a fraud or misrepresentation that prevented the movant from fully and fairly presenting its case.” Atkinson, 43 F.3d at 367 (citing Paige v. Sandbulte, 917 F.2d 1108, 1109 (8th Cir.1990)) (emphasis added). The fraud plaintiffs allege is the basis for their cause of action; plaintiffs do not allege that any fraud prevented them from fully or fairly presenting the action here prior to dismissal of the complaint pursuant to Rule 12(b)(6). . This court has found no other authority holding that an investment may constitute a security even though the \"common enterprise” requirement of the Howey test has not been met. Indeed, two of the authorities cited in Maheu for the proposition that an investment vehicle may constitute a security even if there is no pooling arrangement or common enterprise antedate Howey. See Maheu, 282 F.Supp. at 429 (citing Securities and Exchange Comm’n v. Payne, 35 F.Supp.",
"because it demonstrates that Morris could not be trusted to keep Baxter’s proprietary information secret. The district court disagreed and denied Baxter’s Rule 60(b) motion without an evidentia-ry hearing. II. DISCUSSION Rule 60(b) “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances.” United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam), cert. denied, 484 U.S. 836, 108 S.Ct. 117, 98 L.Ed.2d 76 (1987). To prevail on its Rule 60(b)(2) motion, Baxter needed to establish: “(1) the evidence was discovered after trial; (2) [Baxter] exercised due diligence to discover the evidence before the end of the trial; (3) the evidence is material and not merely cumulative or impeaching; and (4) a new trial at which the evidence was introduced would probably produce a different result.” Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990). Motions under Rule 60(b) are within the discretion of the district court and we reverse the district court’s denial of a Rule 60(b) motion only when the court clearly abused its discretion. Id.; Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.) (motions under Rule 60(b) are viewed with disfavor), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Baxter asserts that Morris gave misleading testimony at his deposition to keep Baxter from discovering the MPX Plan and that “[f]or the District Court now to suggest that Baxter erred in accepting the testimony of a sworn witness and for failing to assume guile and intrigue on behalf of Dr. Morris is preposterous.” Appellants’ Brief at 11. The only portion of Morris’ deposition that Baxter cites to support its contention is an exchange regarding Morris’ possible employment opportunities at AVL Scientific Corp. (“AVL”). Baxter alleges that this exchange is a veiled reference to MPX. Morris explained by affidavit in response to Baxter’s allegations that MPX was to be an independent company which would license patent technology from AVL and that he did not consider starting an independent company to be an employment opportunity with AVL. Affidavit of",
"Cline v. Hoogland, 518 F.2d at 778. Rule 60(d) provides for extraordinary relief on a showing of exceptional circumstances. While it may operate indirectly to allow appellate review of a decision not timely appealed, it is not a substitute for appeal. Horace v. St. Louis Southwestern Railroad, 489 F.2d 632, 633 (8th Cir.1974); Hoffman v. Celebrezze, 405 F.2d 833, 836 (8th Cir. 1969). Fox’s appeal from denial of the Rule 60(b) motion raises virtually the same issue that would have been posed if he had timely appealed the dismissal for want of prosecution: Whether the showing of excusable neglect was such that refusal to grant relief from the dismissal constituted an abuse of discretion. Fox thus raises judicial error in the original judgment, contending the court erred in dismissing his case because he showed good cause for delay. The Rule 60(b) motion failed to present reasons not previously presented and considered by the court in its decision to dismiss. This alone is a controlling factor against granting relief. See Cline v. Hoogland, 518 F.2d at 778-79. This circuit has not allowed relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence. See CRI, Inc. v. Watson, 608 F.2d 1137, 1143 (8th Cir.1979); Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir.1969). This is not the case here. To prevent its use as a substitute for appeal, we have required a Rule 60(b) motion alleging judicial inadvertence to be made within the time period allowed for appeal. CRI, Inc. v. Watson, 608 F.2d at 1143; Hoffman v. Celebrezze, 405 F.2d at 836-37; see 7 Moore’s K 60.22[3] at 260-61 (2d ed. 1979). This was not done here. Fox filed his motion for reconsideration on June 22, 1979; the time period for filing a notice of appeal had expired on June 20, 1979. Belated filing of a Rule 60(b) motion cannot be used to circumvent jurisdictional time limits on appellate review. See Silas v. Sears, Roebuck & Co., 586 F.2d 382, 386 (5th Cir.1978); Demers v. Brown, 343 F.2d 427 (1st Cir.), cert. denied, 382 U.S. 818, 86 S.Ct. 40, 15",
"79 L.Ed.2d 56 (1984); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir.1985). Thus, in order to maintain the instant federal action, appellees must invoke Rule 60(b) to vacate part of the initial judgment. To do that successfully, the rules governing 60(b) must be satisfied. We turn to those rules. Ill FED.R.CIV.P. 60(b) Rule 60(b) sets forth the grounds on which a court, in its discretion, can rescind or amend a final judgment or order. It provides, in pertinent part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, ...; or (6) any other reason justifying relief from the operation of the judgment. Properly applied Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments. House v. Secretary of Health and Human Services, 688 F.2d 7, 9 (2d Cir.1982); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir.1981). In other words it should be broadly construed to do “substantial justice,” see Seven Elves, 635 F.2d at 401, yet final judgments should not “be lightly reopened.” Id.; Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.1984). The Rule may not be used as a substitute for a timely appeal. United States v. O’Neil, 709 F.2d 361, 372 (5th Cir.1983); Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir.1967). Since 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances. Ben Sager Chemicals Intern, v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.1977); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Rinieri, 385 F.2d at 822. A motion seeking such relief is addressed to the sound discretion of the district court with appellate review limited to determining whether that discretion has been abused. Griffin,"
] |
NIES, Circuit Judge. This appeal is from the final judgment and order of the Court of International Trade in REDACTED vacated in part, No. 86-05-00606 (Ct. Int’l Trade Order Dec. 24, 1987) (Tsoucalas, J.), which required the Department of Commerce, International Trade Administration (ITA), to reinstate an antidumping duty order imposed on Korean carbon steel plate imports. The facts underlying this proceeding are set out in detail in the opinion of the Court of International Trade, familiarity with which is presumed. Briefly, the ITA issued an antidumping order, pursuant to 19 U.S.C. § 1673-1673g (1982 & Supp. IV 1986), covering steel plate from Korea. See 49 Fed.Reg. 33,298 (Aug. 22, 1984). Thereafter, the governments of the United States and Korea entered into a Voluntary Restraint Agreement (VRA) pursuant to the Steel Import Stabilization Act of 1984 (SISA), Pub.L. No.
|
[
"Opinion TsouCALAS, Judge: This action is before the Court, pursuant to US-CIT R. 56.1, on cross-motions for judgment on an agency record. It raises a question of first impression regarding the Commerce De partment’s authority to revoke an outstanding antidumping duty order. Background On August 22, 1984, the International Trade Administration of the Department of Commerce (hereinafter \"ITA” or \"Commerce”) issued an antidumping order covering steel plate from the Republic of Korea. 49 Fed. Reg. 33,298 (1984). Thereafter, on May 8, 1985, the governments of the United States and Korea entered into a voluntary restraint arrangement (\"VRA”) covering steel plate as well as other steel products. In return for quantitative restrictions on imports, the VRA contemplated that existing antidumping or countervailing duty orders on covered products be terminated. After receiving \"model letters” supplied by Commerce, a majority of U.S. steel producers wrote to the agency expressing their desire that the antidumping order at issue here be revoked. Based upon the lack of interest of the domestic industry, Commerce proceeded to publish notice of its intention to review the order, pursuant to § 751(b) of the Tariff Act of 1930, 19 U.S.C. § 1675(b), and its tentative determination to revoke. 50 Fed. Reg. 50,648 (1985). Following a hearing, Commerce terminated a previously commenced administrative review of the antidumping order and issued final notice of revocation. 51 Fed. Reg. 13,042 (1986). At all times, plaintiff, Gilmore Steel Corp. (\"Gilmore”), has opposed revocation of the order. Issue The issue presented is whether Commerce, over the opposition of the petitioner in the underlying antidumping investigation, may properly revoke an antidumping duty order solely on the basis of the expression of a lack of support by a majority of the domestic industry. Discussion The antidumping law, in relevant part, provides that Commerce: may revoke, in whole or part, a countervailing duty order or an antidumping duty order, or terminate a suspended investigation, after review under this section. Tariff Act of 1930, § 751(c), 19 U.S.C. § 1675(c) (1982 & Supp. III 1985). The Court in Manufacturas Industriales de Nogales, S.A. v. United States, 11 CIT"
] |
[
"NIES, Chief Judge. Intrepid appeals from the order of the United States Court of International Trade in Intrepid v. Pollock, 712 F.Supp. 212 (Ct.Int’l Trade 1989) (Tsoucalas, J.), denying its motions under 15(a) and (d) of the Rules of the Court of International Trade for leave to supplement and amend its complaint, and dismissing its action sua sponte. We reverse the rulings on the motions, vacate the judgment, and remand for proceedings on the merits. I Intrepid imported certain welded steel pipes (BS-1387) from Thailand into Puerto Rico between July 1987 and February 1988. Although not originally required on the July shipment, the International Trade Administration of the Department of Commerce (ITA) subsequently directed the United States Customs Service to suspend liquidation and to obtain cash deposits for estimated duties on such imports, pursuant to certain outstanding ITA antidumping and countervailing duty orders. In February 1988, Intrepid made a request to the ITA for exclusion of its steel pipes from the scope of the antidumping duty order. Before a ruling was made on its request to ITA, Intrepid commenced suit in the Court of International Trade on April 12, 1988, against the District Director of Customs and the United States asserting that the BS-1387 pipe was not within the scope of the outstanding orders; that the original orders did not adequately describe the class of investigated merchandise; that it had costed the merchandise on the basis of entry without duties which had not been required in July; and that it would be irreparably harmed if it had to deposit cash pending liquidation. Asserting jurisdiction under 28 U.S.C. § 1581(i) (1988), it sought to enjoin Customs from collecting cash deposits, as opposed to requiring a bond, for estimated duties pertaining to the imported steel pipes and such other relief as was just. Its motion for a temporary restraining order and a preliminary injunction was denied on April 15, 1988. In early January 1989, the court requested a status report from the parties. The government responded that in the interim Customs did permit Intrepid to post a bond, rather than to deposit",
"Declaration of Eric J. Sinrod in Support of Motion for Judgment Upon an Agency Record, Exhibit A, Voluntary Restraint Arrangement at 2. A letter from the Deputy United States Trade Representative, which is part of the VRA, further provides that: if revocation does not take place within a reasonable period of time, the Government of the United States of America will agree to the termination of the Arrangement with respect to those products subject to the remaining order. In determining what constitutes a reasonable period of time, due consideration shall be given to the reason for the delay. Declaration of Eric J. Sinrod in Support of Motion for Judgment Upon an Agency Record, Exhibit A, Letter from Robert E. Lighthizer to Kim Chulsu at 4 (May 8, 1985). Gilmore claims that the majority of Korean steel plate imports are targeted to the West Coast and that the other domestic parties do not produce steel plate in that region of the country. Hence, according to Gilmore, a majority of the domestic industry is willing to forego the fair pricing protection provided by the antidumping order with respect to steel plate in favor of quantitative restrictions on other steel products. See Plaintiff’s Motion for Judgment Upon an Agency Record at 15. See Tariff Act of 1930, § 751(a), 19 U.S.C. § 1675(a) (1982 & Supp. Ill 1985). Prior to amendment, see Trade & Tariff Act of 1984, Pub. L 98-573 § 611(a)(2), 98 Stat 3031 (1984), § 1675(a) provided automatically for annual administrative review ol an antidumping order Under current law, which is effective with respect to antidumping investigations initiated on or after Oct. 30, 1984, see § 626(b)(1), 98 Stat. at 3042, such review is conducted only upon request. The Court refers to this regulation solely to present defendant’s position. Therefore, no consideration is given to whether Commerce’s decision is more properly considered to be a revocation based upon application by a party to the proceeding, see § 353.54(b), or whether Commerce has complied with the three year waiting period specified in § 353.54(c) See also Matsushita Elec. Indus. Co. 6",
"Opinion Tsoucalas, Judge: This consolidated action is before the Court on plaintiffs’ (Gold Star Co. Ltd., et al., and Samsung Electronics Co., Ltd., et al.) (hereinafter \"Gold Star” and \"Samsung” respectively) motion for summary judgment on the administrative record pursuant to Rule 56.1 of the Rules of this Court. Plaintiffs challenge the legality of the Department of Commerce, International Trade Administration’s (\"ITA” or \"Commerce”) scope clarification ruling. Public Record Documents 13, 15. (hereinafter \"P.R. Doc.-.”). The ruling included separately imported color picture tubes (\"CPTs”) and printed circuit boards (\"PCBs”), when subsequently assembled together, within the scope of the antidumping duty order concerning Color Television Receivers from Korea, 49 Fed. Reg. 18,336 (Dep’t Comm. 1984) (antidumping duty order) (hereinafter \"CTV Order”). Defendants oppose plaintiffs’ motion contending that Commerce based its decision upon substantial evidence in the record and did nothing more than lawfully clarify the scope of the existing CTV Order. Background Commerce and the United States International Trade Commission (\"ITC”), in separate investigations, determined that color television receivers from Korea were being sold at less than fair value and were materially injuring a United States industry. 49 Fed. Reg. 18,336-37. On June 1, 1984, Samsung submitted a letter to Commerce requesting a binding determination as to the applicability of the CTV Order to the importation of certain television components and subassemblies. P.R. Doc. 1. On January 9, 1986, Commerce directed Customs officials to suspend liquidation of, but not collect cash deposits on, printed circuit boards and color picture tubes pending resolution of whether those items were covered by the CTV Order. See P.R. Docs. 13-15. Commerce subsequently notified the interested parties on January 23, 1986 of the suspension of liquidation and afforded the parties an opportunity to respond via comments submitted by February 5, 1986 on any matters they wished considered. See P.R. Doc. 2. Plaintiffs and intervenors filed timely comments. Commerce determined it had sufficient information and the authority to clarify the CTV Order based on the comments it had received from the interested parties. The comments submitted to Commerce contained the relevant excerpts from and references to documents",
"NIES, Chief Judge. These appeals challenge the antidumping duties imposed on color television receivers from Korea imported between October 19, 1983 and April 30, 1984. The decisions from the Court of International Trade to be reviewed are Daewoo Electronics Co. v. United States, 712 F.Supp. 931 (Ct. Int’l Trade 1989) (“Daewoo I”); Daewoo Electronics Co. v. United States, 760 F.Supp. 200 (Ct. Int’l Trade 1991) (“Daewoo II”); and Daewoo Electronics Co. v. United States, 794 F.Supp. 389 (Ct. Int’l Trade 1992) (“Daewoo III”). We affirm in part, reverse in part, vacate the judgment and remand for entry of a judgment in accordance with this decision. I. Background, Appellants Daewoo Electronics Co. Ltd., Samsung Electronics Co., Ltd., and Goldstar Co., Ltd. (collectively “the Korean companies”), are leading importers of color television receivers into the United States' from Korea. Petitions by the International Union of Electronic, Electrical, Technical, Salaried, and Machine Workers, AFL-CIO, the International Brotherhood of Electrical Workers of America, and the Independent Radionic Workers of America and Industrial Union Department, AFL-CIO (collectively “the Unions”) and by Zenith Electronics Corp., resulted in an antidumping investigation into the Korean television receivers imported between October 19, 1983 and April 30, 1984. On December 28, 1984, the International Trade Administration of the Department of Commerce (“ITA”) published the final determinations of its first administrative review, concluding that dumping' margins of 14.88 percent, 12.23 percent and 7.47 percent existed on U.S. sales of Daewoo, Samsung, and Goldstar products respectively. Color Television Receivers from Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed.Reg. 50420, 50431 (1984). As a result of rulings of the Court of International Trade in the successive appeals and remands, the dumping duties were revised upward to 48.18 percent, 30.36 percent, and 33.95 percent for Daewoo, Samsung, and Goldstar, respectively which the trial court approved. The Korean companies, the Unions, and the United States have each appealed from the judgment of the Court of International Trade raising numerous issues. We address the propriety of the following holdings in the Daewoo opinions: ’ that 19 U.S.C. § 1677a(d)(1)(C) of the antidumping",
"DAVIS, Circuit Judge. This is an appeal by the United States from a decision of the United States Court of International Trade (CIT) holding that the International Trade Administration (ITA or agency) of the Department of Commerce (Commerce) is required under section 776 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677e(a) to verify information submitted to it by a foreign manufacturer during a periodic review of an outstanding antidumping duty order. We affirm. I On August 28,1973, the Assistant Secretary of the Treasury published a finding of dumping with regard to stainless steel wire rods from France. 38 Fed.Reg. 22961 (1973). These rods thus became subject to the imposition of an antidumping duty in an amount equal to the difference between the foreign market value and the purchase price for such rods, pursuant to the Anti-dumping Act of 1921, as amended, 19 U.S.C. § 160(a). The Antidumping Act of 1921 was subsequently replaced, effective January 1,1980, by a new antidumping law enacted as part of Title VII of the Tariff Act of 1930, as amended. Title I of the Trade Agreements Act of 1979, Pub.L. 96-39, 93 Stat. 144, 146-193. Section 106 of the new Act provided that “findings in effect on the effective date of this Act ... shall remain in effect, subject to review under [the new] section 751 of the Tariff Act of 1930” (providing for periodic reviews). 93 Stat. 193. In addition, the responsibility for administering the antidumping law and acting as the “administering authority” under section 751 (codified at 19 U.S.C.,§ 1675) was transferred from the Treasury Department to the Secretary of Commerce, effective January 2, 1980. At Commerce, the anti-dumping law’s administration was delegated to the ITA. Final results of the ITA’s first administrative periodic review under section 751(a), 19 U.S.C. § 1675(a), with regard to stainless steel wire rods from France, were published on November 9, 1981, covering January 1974 through June 1980. The final results of this review were not challenged in court, although the domestic manufacturers apparently did raise in a prehearing brief the question now before",
"by Zenith Electronics Corp., resulted in an antidumping investigation into the Korean television receivers imported between October 19, 1983 and April 30, 1984. On December 28, 1984, the International Trade Administration of the Department of Commerce (“ITA”) published the final determinations of its first administrative review, concluding that dumping' margins of 14.88 percent, 12.23 percent and 7.47 percent existed on U.S. sales of Daewoo, Samsung, and Goldstar products respectively. Color Television Receivers from Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed.Reg. 50420, 50431 (1984). As a result of rulings of the Court of International Trade in the successive appeals and remands, the dumping duties were revised upward to 48.18 percent, 30.36 percent, and 33.95 percent for Daewoo, Samsung, and Goldstar, respectively which the trial court approved. The Korean companies, the Unions, and the United States have each appealed from the judgment of the Court of International Trade raising numerous issues. We address the propriety of the following holdings in the Daewoo opinions: ’ that 19 U.S.C. § 1677a(d)(1)(C) of the antidumping law requires that ITA make an econometric analysis of tax incidence in foreign markets {Dae-woo I); that the ex factory price must be used for tax adjustments of the U.S. price {Daewoo II); and that under 19 U.S.C. § 1673f(a) a bond deposit may not cap the amount of liability for antidumping duties {Daewoo III). The identical issue of the multiplier effect of 19 U.S.C. § 1677a(d)(l)(C) raised in the Korean companies’ appeal was rejected in the recently decided appeal, Zenith Electronics Corp. v. United States, 988 F.2d 1573, 1581 (Fed.Cir.1993), which is controlling here. In addition, our disposition of the tax incidence issue moots two other issues: -first, the Korean Companies’ appeal from the holding of Daewoo II, 760 F.Supp. at 204-07, rejecting the ITA’s finding of full tax pass-throiigh in the Korean receiver market; and second, the Unions’ challenge of’ the ITA’s use of best information available pursuant to 19 U.S.C. § 1677e(c) to adjust the USP. Daewoo III, 794 F.Supp. at 391-92. II. Adjustment for Taxes Levied On Home Country Sales Only",
"of,” as it pertains to the statutory requirements for filing a petition to initiate a countervailing or antidumping duty investigation, is a permissible construction. Whether we would come to the same conclusion, were we to analyze the statute anew, is not the issue. 2. The Court of International Trade held that its decision was consistent with this court’s holding in Oregon Steel. We agree, but with a caveat — the issue in this action begins at the opposite end of the spectrum from the issue in Oregon Steel, a case which could be read to support either outcome here. Although we reverse the decision of the Court of International Trade, our decision, too, is consistent with Oregon Steel. In Oregon Steel, the court faced a situation in which Commerce, responding to a petition, initiated an investigation and later issued an antidumping duty order covering certain steel plate imports from Korea. The United States and Korea later entered into a Voluntary Restraint Agreement under which Korea agreed to import restrictions conditioned on revocation of the anti-dumping order. Commerce accordingly surveyed the domestic industry, and found that six of seven domestic producers of steel plate favored the Agreement over the antidumping order. Only Oregon Steel Mills, Inc., at that time known as Gilmore Steel Corp., continued to favor the anti-dumping duty order. Oregon Steel, 862 F.2d at 1542, 7 Fed.Cir.(T) at 23. Commerce proceeded to revoke the anti-dumping order in light of the lack of industry support for its continued existence. Oregon Steel Mills appealed to the Court of International Trade, which ordered the reinstatement of the order. This court reversed, holding that “just as industry support underlies the merits of an order,” Commerce may revoke an order for lack of industry support. Oregon Steel, 862 F.2d at 1545, 7 Fed.Cir.(T) at 27-28. The court noted that “[w]e do not need to define ‘lack of support’ with precision in this case. The lack of industry support here is overwhelming. Moreover, the industry is not simply indifferent, but has expressed á positive desire to eliminate the antidumping order in order to secure other",
"MICHEL, Circuit Judge. ORDER This appeal is from the judgment of the United States Court of International Trade dated January 14, 1988 (.Zenith II). The United States seeks review of that court’s Opinion and Order dated April 24, 1986, Zenith Electric Corp. v. United States, et al., 633 F.Supp. 1382 (Ct. Int’l Trade 1986) (.Zenith I), which reversed the final determination of the International Trade Administration, Department of Commerce (Department), in an administrative review under 19 U.S.C. § 1675(a) (1982 and Supp. II 1984), 50 Fed.Reg 24,278 (1985), of an anti-dumping order, T.D. 71-76, Television Receiving Sets, Monochrome and Color, from Japan, 36 Fed.Reg 4597 (Dep’t Comm. 1971), and remanded the case to the Department for redetermination. Background In accordance with the antidumping laws in effect in 1982, after an affirmative determination of antidumping duties, the International Trade Administration (ITA) was required annually to redetermine the amount of the duty, i.e., the margin by which the foreign market value of merchandise subject to the antidumping order exceeds the United States price. 19 U.S.C. § 1675(a) (1982). Various adjustments are made to the U.S. price before the adjusted U.S. price is subtracted from foreign market value. One of these adjustments was disputed in this case: the amount of any taxes imposed in the country of exportation directly upon the exported merchandise or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; .... 19 U.S.C. § 1677a(d)(l)(C) (1982) (emphasis added). Although the Department had admitted in other, earlier determinations that the “addition to section 772(d)(1)(C) of the ‘but only to the extent’ language, intended that [the Department] measure absorption and limit the addition to the tax passed through,” Color Television Receivers from Korea, 49 Fed.Reg 7620, 7624 (Dep’t Comm.1984) (final determination of sales at less than fair value), it further stated that because of “informational difficulties,” id., “it [was]",
"Memorandum and Order on Plaintiffs Motion for Injunctive Relief WATSON, Judge. Plaintiffs have moved for a preliminary injunction enjoining the defendant from enforcing the Commerce Department’s International Trade Administration’s (ITA) Early Determination of Antidumping Duties (Early Determination) made pursuant to 19 U.S.C. § 1673e(c), as well as returning dumping margins to the pre-Early Determination levels. Plaintiffs allege that the ITA’s Early Determination was not made in accordance with the law, resulting in the improper reduction of dumping margins from the approximately 65 percent level determined to exist in the ITA’s Antidumping Duty Order to a revised level of approximately 6 percent proclaimed by the ITA in the Early Determination in question. This Court finds that the plaintiffs are not entitled to an injunction that would return dumping margins to their pre-Early Determination level because such a remedy constitutes the ultimate relief plaintiffs are seeking. The Court does however, enjoin liquidations of the two August, 1983 entries that are encompassed within the ITA’s Early Determination review. Plaintiffs on September 30, 1982 filed petitions with the ITA and the International Trade Commission (ITC) alleging that carbon steel wire rod from Brazil was being sold in the United States at less than fair market value. The ITA and ITC made affirmative final determinations (48 Fed. Reg. 43202 (1983) and 48 Fed.Reg. 51178 (1983)) and an Antidumping Duty Order was published by the ITA in the Federal Register on November 16, 1983. 48 Fed. Reg. 52110 (1983). This Antidumping Duty Order directed United States Customs officers to require cash payment of estimated duties of 49.61 percent for future importations of carbon steel from Cosigua and 76.49 percent when importations from Belgo-Mineira occur. On November 19, 1983 Cosigua and Belgo-Mineira requested that the ITA make an Early Determination and waive the cash deposit requirement mandated by the ITA’s Antidumping Order. The ITA published notice of its intent to make an Early Determination on December 19, 1983. 48 Fed. Reg. 56098 (1983). Subsequently the ITA published its Early Determination of anti-dumping duty on April 10, 1984. 49 Fed. Reg. 14156 (1984). 19 U.S.C. § 1673e(c) requires"
] |
supra, seems particularly apposite because there the pleading offered had to do with state ment in a cause of action against both the operator of a street car and the operator of an automobile where, upon death of the automobile driver, a new action was filed against the street car operator alone and in the second action the former pleading was introduced. Here, plaintiff stated a cause against the drivers of two automobiles but on trial virtually abandoned the action against one driver (Smith) and a verdict was directed for that defendant. Stolte has never been overruled or even spoken of in a disapproving fashion in any of this Court’s subsequent opinions. Indeed, its principle was reaffirmed in REDACTED Most of the authorities in other circuits are in accord. In Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir. 1956), for example, it was said that “[b]y the weight of authority even withdrawn or superseded pleadings are admissible.” Id. at 547 (footnote omitted). To the same effect is Continental Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (emphasis supplied): As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy
|
[
"dismiss that case. The supporting affidavit of defendant’s president stated: “The respondent has abandoned its advertising that the smoke from its ‘Philip Morris’ brand of cigarettes is less irritating to the throat than the smoke from cigarettes of the other leading brands. It has also abandoned the use of the hygroscopic agent mentioned in the said order and which was the basis of the said advertising. It has also abandoned any advertising representing that the smoke from its said cigarettes will not leave an after-taste. “It is not the intention of respondent to resume said advertising or the use of the said hygroscopic agent.” Plaintiff sought unsuccessfully to introduce the motion to dismiss and supporting affidavit in effect as admissions against interest. Additionally, plaintiff offered, again basically as admissions against interest, the testimony of defendant’s former Director of Research (dead at the time of this trial) adduced in 1943 in the same proceeding before the Federal Trade Commission. In denying both offers — ■ i. e., the motion to dismiss the Federal Trade Commission complaint and the testimony of the Director of Research, the trial court expressed the opinion that such evidence did not constitute admissions against interest and was not relevant to establish any pertinent fact. In taking issue with the trial court’s exclusion of the offered evidence, plaintiff relies upon the general rule, undisputed here, that any statement made by a party to an action which is against his own interest and which in its nature tends to establish or disprove any material fact in the case is competent to be put in evidence against him in the trial of the action. 31A C.J.S. Evidence § 272; 20 Am.Jur., Evidence § 544. Under this principle, an admission in a pleading in one action may be received in evidence against the pleader on the trial of another action to which he is a party, in favor of a party to the latter action, provided the admission is relevant and material to the issues being litigated. See 31A C.J.S. Evidence § 303; 20 Am. Jur., Evidence § 630; cf. Albertson"
] |
[
"courts (Darling Shops of Tennessee v. Brack, 8 Cir., 95 F.2d 135, 141) and in Minnesota (Bakkensen v. Railway Co., 184 Minn. 274, 238 N.W. 489, 490; Carpenter v. Tri-State T. & T. Co., 169 Minn. 287, 289, 211 N.W. 463, 464; Vogel v. Osborne & Co., 32 Minn. 167, 20 N.W. 129), but generally (20 Am.Jur. 532, Sec. 630; Annotations in 14 A.L.R. 22 and 90 A.L.R. 1393). In this respect the Bakkensen case, supra, seems particularly apposite because there ■ the pleading offered had to do with statement in a cause of action against both the operator of a street car and the operator of an automobile where, upon death of the automobile driver, a new action was filed against the street car operator alone and in the second action the former pleading was introduced. Here, plaintiff stated a cause against the drivers of two automobiles but on trial virtually abandoned the action against one driver (Smith) and a verdict was directed for that defendant. Appellees urge various reasons why the exclusion of this evidence was not error. We have examined each of them. We find no merit in any of them and see no useful purpose in discussing them in this opinion for such exclusion is clearly error. To avoid misapprehension on retrial, it is advisable to state the scope and effect of this evidence. There are admissions in pleadings which are conclusively binding upon the party making them. There are other such admissions of milder character which are not conclusive but which are proper evidence as constituting statements against interest. The latter class of admissions in pleadings occupies the same place in a trial as other admissions against interest no matter how made. The admission involved here is of this latter class. We deem it unnecessary to discuss the considerations which differentiate these two classes of admissions because appellants properly and wisely concede that such is .the character of this admission — that it is simply “competent and cogent evidence” against appellee. What has been said as to the error in excluding this evidence applies to",
"cognizable as an admission in another, [citations omitted] Furthermore, the trial court properly ruled that while such evidence was admissible it was not a judicial admission, and thus not binding or conclusive. [citations omitted] One of Slate’s pleadings — its affirmative defense in 80 C 6038 — was in a lawsuit other than this one, so that Enquip is on all fours. As for the other — Slate’s now-withdrawn third-party complaint against Allied in this action — Enquip confirms that the same principle applies (id.): Such an opportunity [to explain the purported admission to demonstrate that there is an issue of material fact] is particularly necessary in a complex third-party situation such as this one where claims pleaded in the alternative are sought to be used as admissions. See Continental Insurance Co. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (prejudicial error to allow a third-party cross claim to be used as an admission in the same suit). In Continental Insurance the Court of Appeals for the Fifth Circuit held it prejudicial error to allow a third-party cross-claim to be used as an admission in the same suit (439 F.2d at 1298): Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Civil Procedure in that inconsistent pleadings under Rule 8(e)(2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Rule 8(e)(2) is clearly implicated by the rule allowing an inconsistent pleading to be an admission in the same case, at least in the context of three-party disputes. And there is no magic, as Metro would have it, in a party’s having to label its inconsistent pleadings “alternative” or “hypothetical” to invoke the principle underlying the Rule. Enquip establishes that when Slate, in a separate action, engaged in the inconsistent pleading presented here, such inconsistency has become admissible against Slate, but",
"of liability on the part of Coates & Dorsey and strongly intimating that although the cross-claim against Continental had been dismissed, Coates & Dorsey would ultimately prevail, so that if the jury returned a verdict against Coates & Dorsey the cost of the judgment would be passed on to Continental. As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy are met. Raulie v. United States, 10 Cir., 1968, 400 F.2d 487; Ross v. Philip Morris & Company, 8 Cir., 1964, 328 F.2d 3; Great American Indemnity Company v. Rose, 5 Cir., 1957, 242 F.2d 269; Borel v. United States Casualty Company, 5 Cir., 1956, 233 F.2d 385; Fuller v. King, 6 Cir., 1954, 204 F.2d 586. See Rule 8-04(b) (4), Proposed Federal Rules of Evidence (1969). Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e) (2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other. Giannone v. United States Steel Corporation, supra, 238 F.2d at 544, n. 4; McCormick on Evidence, § 242, pp. 509-510 (1954); Note, 17 Tex. Law Rev. 191 (1939). It would seem that this principle would also include inconsistent positions taken in pleadings in a complicated joinder situation, involving, as here, the contingent liability of third parties. See Hines v. Trager Construction Co., Fla.Dist.Ct.App., 1966, 188 So.2d 826, 829, cert. den. Fla., 194 So.2d 618. The",
"new trial because of alleged prejudicial argument of plaintiff’s counsel; the failure to grant a new trial because of claimed excessiveness of the verdict, and the failure of the court to properly declare the law in its instructions to the jury. Each reviewable assignment has received our careful consideration, and we fail to perceive that the action of the court complained of resulted from abuse of discretion or resulted in prejudicial error. Rule 61 of the Federal Rules of Civil Procedure provides that error in either the admission or exclusion of evidence, or error in any ruling or in anything done or omitted by the court, shall not be grounds for setting aside a verdict or for vacating or otherwise disturbing a judgment, “unless refusal to take such action appears to the court inconsistent with substantial justice.” There being no error, the judgment of the lower court is Affirmed. . The court instructed the jury that plaintiff was not negligent in the operation of his automobile at the time of the accident. No exception was taken to this charge. . See Stolte v. Larkin, 8 Cir., 110 F.2d 226, 232, where the Court stated : “That statements in pleadings in the nature of admissions against interest are admissible is established not only in federal courts (citing cases), but generally (citing authority) .” See also 31 C.J.S. Evidence §§ 301, 302. . Taped statements of participants previously played to jury, and transcripts of those tapes. . Plaintiffs attorney, referring to defendants’ counsel, stated: “They defend cases all over this state.” Defendants claimed this injected insurance into the case and was grounds for mistrial. . The question of the alleged excessiveness of a verdict, raised by motion for new trial, is addressed to the sound discretion of the trial court and is not reviewable upon appeal. See American Surety Co. v. Schottenbauer, 8 Cir., 257 F.2d 6, 13-14.",
"those decisions involved the question of whether a plaintiff could amend a complaint to cure a purported factual mistake. In Sovereign Bank, a party attempted to take a legal position on appeal that was contradicted by an allegation in its complaint, and we held that the allegation was a binding judicial admission. See Sovereign Bank, 533 F.3d at 181. In Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing because, inter alia, factual concessions in her own complaint revealed the basis for appellants’ standing. See Parilla, 368 F.3d at 275. Even if Plaintiffs’ allegations in the original complaint constituted judicial admissions, it does not follow that they may not amend them. This Court and several of our sister courts have recognized that judicial admissions may be withdrawn by amendment. See Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir.1956) (recognizing that “withdrawn or superseded pleadings” do not constitute judicial admissions); see also, e.g., InterGen N.V. v. Grina, 344 F.3d 134, 144-45 (1st Cir.2003) (“An amended complaint supersedes the original complaint, and facts that are neither repeated nor otherwise incorporated into the amended complaint no longer bind the pleader.”); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir.2002) (“When a party has amended a pleading, allegations and statements in earlier pleadings are not considered judicial admissions.”); Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.1996) (“When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission....” (citation and internal quotation marks omitted)); Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 101 (5th Cir.1993) (“To the extent that Hibernia did make a ‘judicial confession[ ]’ [in its original complaint,] that confession was amended away.” (citations omitted)). Indeed, effectively disallowing amendment by looking to the original pleading is contrary to the liberal amendment policy embodied in Rule 15. Nor was dismissal warranted because Plaintiffs sought to “take a contrary position ... to avoid dismissal.” W. Run, 2012 WL 1739820, at *6. Plaintiffs routinely amend complaints to correct factual inadequacies in response to a motion to dismiss.",
"v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985)). This approach “ensures that a particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir.1990); see also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed.2008) (“A liberal policy toward allowing amendments to correct errors in the pleadings clearly is desirable and furthers one of the basic objectives of the federal rules — the determination of cases on their merits.”). Although the District Court acknowledged these principles, it reasoned that “a plaintiff is not permitted to take a contrary position in a complaint in order to avoid dismissal.” W. Run, 2012 WL 1739820, at *6. The District Court relied on two of our decisions for this proposition: Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir.2008), and Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269, 275 (3d Cir.2004). See W. Run, 2012 WL 1739820, at *6. But neither of those decisions involved the question of whether a plaintiff could amend a complaint to cure a purported factual mistake. In Sovereign Bank, a party attempted to take a legal position on appeal that was contradicted by an allegation in its complaint, and we held that the allegation was a binding judicial admission. See Sovereign Bank, 533 F.3d at 181. In Parilla, we denied the appellee’s motion to dismiss an appeal for lack of standing because, inter alia, factual concessions in her own complaint revealed the basis for appellants’ standing. See Parilla, 368 F.3d at 275. Even if Plaintiffs’ allegations in the original complaint constituted judicial admissions, it does not follow that they may not amend them. This Court and several of our sister courts have recognized that judicial admissions may be withdrawn by amendment. See Giannone v. U.S. Steel Corp., 238 F.2d 544, 547 (3d Cir.1956) (recognizing that “withdrawn or superseded pleadings” do not constitute judicial admissions); see also, e.g., InterGen N.V. v. Grina, 344 F.3d 134, 144-45 (1st Cir.2003) (“An amended complaint supersedes the",
"complaint. Although the third party defendant’s motion be so treated, it is the opinion of this Court that it should be denied. Rule 14(a) permits a defendant, with leave of court, to implead any person “who is or may be liable to him for all or [any] part of the plaintiff’s claim against him”. Whether third party defendants may be brought in and retained is a matter addressed to the court’s discretion. Baltimore & O. R. Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481; General Taxicab Ass’n v. O’Shea, 1940, 71 App.D.C. 327, 109 F.2d 671; Union Nat. Bank of Youngstown, Ohio v. Superior Steel Corp., D.C.W.D.Pa.1949, 9 F.R.D. 128; U. S. v. Jollimore, supra. Although the District Court for the Eastern District of New York in Falcone v. City of New York, supra, adopts the opposite view, the weight of authority supports the view that the granting of leave under Rule 14 is a matter of judicial discretion. Judge Burns of this Court granted the defendants’ motion for leave to join the third party defendant. Since this was a matter addressed to his discretion and for the further reason that, as provided in Rule 14(a) the third party plaintiffs assert a claim against the third party defendant for all of the plaintiff’s claim against them, this Court could vacate the original order only on a showing of abuse of discretion. No such showing exists here. Furthermore, the order should not be vacated for the reason that the motion was not a timely one. As previously indicated, the third party defendant filed a request for admissions under Rule 36 as well as an answer to third party plaintiffs’ complaint. Subsequent to the filing of an answer to the admissions by one of the third party plaintiffs, the third party defendant filed the motion. Although there is no provision in the rules relating to the time of filing a motion to vacate, the reasoning underlying the requirement of Rule 12(b) that a motion to dismiss be made before pleading is applicable here and may be considered by the court in",
"therefore, held in Sunnen that a change in the applicable law between the first suit and the second prevented the operation of collateral estoppel. Usually the doctrine has its application in situations involving two civil causes of action, but a criminal judgment which is final may have collateral estoppel effect in a subsequent civil suit involving an identical issue. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (1951); IB J. Moore, supra, ¶ 0.418 [1]. For example, courts have held that a taxpayer, who is convicted of a willful attempt to defeat or evade a particular tax, is estopped in a subsequent civil proceeding from contesting the issue of deficiency of payment due to fraud. See Moore v. United States, 360 F.2d 353 (4 Cir. 1965), cert. denied 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Amos v. Commissioner of Internal Revenue, 360 F.2d 358 (4 Cir. 1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5 Cir. 1964), cert. denied 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944, (1965); Vestal & Coughenour, Preclusion/Res Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev. 683, 706 (1966) ; cf. United States v. Carlino, 400 F.2d 56 (2 Cir. 1968). But it is well established that the converse of this proposition is not true. When a jury acquits, it decides only that an accused is not proven guilty of the offense charged beyond a reasonable doubt, and the Commissioner is not foreclosed thereby from attempting to show fraud in the civil counterpart against the same defendant by a fair preponderance of the evidence. Helvering v. Mitchell, supra, 303 U.S. at 397-398, 58 S.Ct. 630. This burden of proof factor alone is sufficient to demonstrate that the “bundle of legal principles” applicable in a civil suit differs significantly from that in a criminal trial. The difference in applicable legal principles is no less apparent if a taxpayer, like Neaderland, is found not guilty of criminal fraud charges by the judge on a motion",
"United States v. Schneider, 139 F.Supp. 826 (S.D.N.Y.), where the judge said: “Relitigation in a civil action of an issue determined adversely to the defendant in a prior criminal proceeding is foreclosed, whether the prior determination was based on the verdict of a jury [citing cases], or on a plea of guilty. [Citing cases]. Indeed, where the prior conviction resulted from a plea of guilty there would appear to be greater warrant for application of the doctrine since the defendant has admitted the truth of the charges contained in the indictment.” See also, O’Neill v. United States, 198 F.Supp. 367 (E.D.N.Y.). In United States v. Accardo, 113 F.Supp. 783 (D.N.J.), affirmed and adopted in 208 F.2d 632 (3d Cir.), the question was given extensive consideration where a plea of guilty to a felony was applied by estoppel in a proceeding to revoke defendant’s naturalization. The parties were there again the same. See also, Local 167 of Int’l Bhd. of Teamsters, etc. v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Sell v. United States, 336 F.2d 467 (10th Cir.). In Palma v. Powers, 295 F.Supp. 924 (N.D.Ill.E.D.), the trial court considered the effect of a conviction on a State gambling charge upon a federal civil rights action brought against police officers and a telephone company alleging a conspiracy to terminate plaintiff’s telephone service. The issue in the civil action centered around the question whether the telephone had been used for illegal purposes. The defendants pointed to the gambling conviction of one of the plaintiffs as proof of this. The court applied the doctrine of issue preclusion, examined the record in the criminal action, and found the issue of illegal use of the telephones was litigated in the criminal action and would not be relitigated. As to the legality of the search (evidence obtained thereby was admitted in the criminal action), the court noted that the issue was not controverted at trial and the items were admitted. The judge found the fact that the matter was not contested, while other matters were, was of significance. The matter of",
"the trial so that [it] could attempt to meet that burden. A new trial will be granted and [Diamond] will be given an opportunity to do so. Finally, as an additional ground for the new trial, the district court declared the verdict against the weight of the evidence. At the second trial the jury, although instructed that Diamond had to prove an affirmative defense to payment of the draft, found for Diamond, and the Goldsmiths appeal from the judgment entered on that verdict. As a threshold matter we observe that Diamond has not argued before us that, should we find the grant of a new trial improper, it is still entitled to judgment notwithstanding the verdict in the first trial. We may not consider issues not raised on appeal. E.g., Borough v. Duluth, Missabe & Iron Range Railway, 762 F.2d 66, 68 n. 1 (8th Cir.1985); Kizzier Chevrolet Co. v. General Motors Corp., 705 F.2d 322, 325 n. 2 (8th Cir.), cert. denied, — U.S. -, 104 S.Ct. 153, 78 L.Ed.2d 141 (1983). I. The district court in finding authority in Rule 50 of the Federal Rules of Civil Procedure for its grant of a new trial apparently relied upon the language that “[i]f a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” Fed.R. Civ.P. 50(b). This language, however, by its very terms gives a court discretion to order a new trial absent a motion therefor only where the moving party otherwise would have been entitled to judgment notwithstanding the verdict. Peterman v. Chicago, Rock Island & Pacific Railroad, 493 F.2d 88, 92 (8th Cir.) (citing Jackson v. Wilson Trucking Corp., 243 F.2d 212 (D.C. Cir.1957)), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974); see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2538, at 606 (1971). The discretion thus granted is addressed to the protection of the party whose judgment can be set aside"
] |
"§ 111, such ruling would be ""substantial.” Engrafting such a statutory award on a Massachusetts common law remedy is, however, a matter for the courts of the Commonwealth, not this court. See Pyle v. South Hadley Sch., 55 F.3d 20, 22(1st Cir.1995). . The Court thus approves an in-court hourly rate of $ 240 for Zurokowsky's counsel. While such a rate is fully justified in this case inasmuch as counsel is one of the foremost practitioners in this field and, indeed, is sought out to teach the bar concerning these issues, see Suing the Government: Section 1983 in 1998 (Massachusetts Bar Institute, Nov. 1998), there is the danger that as one judge sees another approve a particular hourly rate, see, e.g., REDACTED citing Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 105 (D.Mass.1998) (Saris, J.) and McLaughlin v. Boston School Committee, 976 F.Supp. 53, 60 (D.Mass.1997) (Garrity, J.), court-awarded attorney’s fees will climb faster than the actual economics of the legal marketplace. The Court notes that the most recent Massachusetts Bar Association study places the average Massachusetts hourly rate at $135, William T.G. Litant, ""MBA survey reports lawyer incomes stagnant,” 5 MBA Lawyers Journal (April 1998) at 1, and an even more current PricewaterhouseCoopers study of in-house counsel hourly rates fixes the fully loaded national average at $159. Pricewaterhou-seCoopers, 1998 Law Department Spending Survey: Executive Summary at 4. More troubling is the fact even in death penalty litigation — surely the most stark form"
|
[
"basis of statutory -authority .... is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.”). The starting point for such an analysis is the now-familiar “lode-star” calculation. See Stowe v. Bologna, 417 Mass. 199, 203, 629 N.E.2d 304, 307 (1994) (“The basic measure of reasonable attorney’s fees is a ‘fair market rate for the time reasonably spent preparing and litigating a case.’ ”) (quoting Fontaine, 415 Mass. at 326, 613 N.E.2d at 891). “Fair market rate” is the “reasonable hourly rate of compensation prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” McLaughlin, 976 F.Supp. at 60. Berger’s affidavit asserts that his usual and customary hourly rate for legal services is $200.00 per hour. See Berger Aff. at 1. This figure lies within the range of rates for attorneys with his experience in Southeastern Massachusetts, which Berger reckons to be between $175.00 and $250.00 per hour. See id. As pointed out in Berger’s affidavit, the hourly rate of $200.00 for an attorney with over twenty-five years of membership in the Massachusetts Bar Association is likely to be on the thrifty side of rates for comparable attorneys in Boston, the place\" where litigation occurred. See id.; see also Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 105 (D.Mass.1998) (Saris, J.) (finding rates for “partners in trial firms with experience in civil rights cases [to be] between $200 and $275 per hour” and noting that “[rjates in excess of $300 per hour for Boston trial attorneys ... have been approved in this District”). In light of these comparisons, the Court, like Harrelson, sees no reason to challenge Connolly and Adao’s proffered figure of $200.00 per hour for Berger’s counsel. With respect to hours billed, “[t]he judge should begin his inquiry with the amount of time documented by the plaintiffs attorney.” Stowe, 417 Mass. at 203, 629 N.E.2d at 307. Berger provides in his affidavit a log detailing 355.70 hours of his own time, as"
] |
[
"taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour. Id. Ex. B. The requested rates of $190 and $70 per hour appear too steep for the services of a third-year associate and a law student. Indeed, other courts within this district have awarded lower fees to similarly qualified individuals. E.g., Alfonso, 66 F.Supp.2d at 197 (awarding hourly rate of $130 to associate); Guckenberger, 8 F.Supp.2d at 107-08 (approving hourly rate of $140 for junior attorney and hourly rate of $60 for law clerks and paralegals); Murray v. Shaw Indus., Inc., 990 F.Supp. 46, 48 (D.Mass.1997) (approving hourly rate of $125 to $140 for associate counsel). Accordingly, this Court reduces Scheck-ner’s rate to $120 and Massey’s rate to $60 per hour. The Court also reduces the attorneys’ hourly rates based on the type of work performed. “It has become established practice in this Circuit to distinguish between ‘core’ and ‘non-core’ work when determining attorneys’ fees awards.” Connolly, 33 F.Supp.2d at 96 (citing Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 [1st Cir.1993]). “[Cjore work includes legal research, writing of legal documents, court appearances, negotiations",
"217 (D.Mass.2004). The Court will continue not to recognize the distinction between “core” versus “non-core” work by establishing one reasonable rate to apply to the lodestar calculation. Taking into account Bernstein’s ten years of experience in employment law, the length, complexity, and outcome of the case, the rates awarded to civil rights attorneys in the Boston area recently, and the affidavits attesting to Bernstein’s impressive skills and accomplishments, the Court concludes that $250.00 is a reasonable hourly rate. “While prior cases do not necessarily provide precedent regarding the reasonableness of the fees awarded, they nevertheless provide a reflective picture of what is happening in the market.” McDonough, 353 F.Supp.2d at 188 (citing System Mgmt., Inc., 154 F.Supp.2d at 210). The case law confirms that $250.00 is a reasonable hourly rate for an attorney in Boston with experience comparable to that of Bernstein. See, e.g., McDonough, 353 F.Supp.2d at 188 (awarding $200.00 to attorney with over eleven years in the relevant field); Martino, 230 F.Supp.2d at 205-06 (awarding $200.00 as hourly rate for civil rights attorney); System Mgmt., Inc., 154 F.Supp.2d at 210 (approving an hourly rate of $235.00 for an attorney with twenty-four years of experience and an hourly rate of $200.00 for an attorney with eleven years experience); Ciulla v. Rigny, 89 F.Supp.2d 97, 104 (D.Mass.2000) (awarding civil rights attorney hourly rate of $200.00); Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass. 1999) (Saris, J.) (awarding civil rights attorney an hourly rate of $250.00). b. Attorney Monica Pastorok Pastorok requests an hourly rate of $200.00 as second chair. Pl.’s Mem. ¶ 4. Pastorok graduated from New York University Law School in 1984 and has been practicing in Massachusetts since 2001. Pastorok Aff. ¶¶ 1, 3. She practiced corporate law for five years in New York with the law firm of Wilkie Farr & Gallagher. Id. ¶ 6. Pastorok avers that she performed “extensive trial preparation” and legal research and wrote submissions for this suit since 2004. Id. ¶ 8. Pastorok’s experience in employment law is substantially less than that of Bernstein. While Bernstein has spent ten years concentrating in",
"reasonable in Boston, Massachusetts, where plaintiffs counsel practices, they should be reduced to reflect the billing rates of attorneys practicing in Springfield, Massachusetts, where the litigation occurred. Notably, defendant does not provide affidavits suggesting that plaintiffs counsel’s rates are inflated. Furthermore, plaintiffs counsel has been a member of the Massachusetts Bar for over ten years and brings considerable experience to this case. This court has previously expressed the view that a request up to $250 may represent a reasonable hourly rate for an experienced attorney, even if prevailing rates are somewhat lower than in other parts of the state. See Stanton v. Southern Berkshire Reg’l Sch. Dist., 28 F.Supp.2d 37, 42-43 (D.Mass.1998). Nothing in this case changes that view. Accordingly, this court is satisfied with the hourly rates billed by plaintiffs counsel. Because the vast majority of hours worked by counsel were billed at the 1998 rates, this court will, for simplicity’s sake, use those rates in reaching the lodestar figure, i.e., $230 for lead counsel, $200 for the associate, and $100 for the paralegal. The number of hours billed by plaintiffs counsel, however, is more problematic. According to counsel’s affidavit in support of the application for fees and costs, lead counsel billed approximately 263 hours, his associate billed approximately 50 hours, and the paralegal 5.25 hours. Lead counsel’s hours are excessive. As already noted, experienced counsel is entitled to an hourly billing rate reflecting the expertise he has developed over the years; it is equally true, however, that his experience should enable him to handle a case in fewer hours than another lawyer with less experience. See id.; see also Pearson v. Fair, 980 F.2d 37, 47 (1st Cir.1992) (noting that a firm’s high hourly rates presuppose familiarity and expertise and should reduce the number of attorneys necessary). Moreover, some tasks in this case could more efficiently have been assigned to less experienced attorneys. This is not a case in which the court can point to a single or several billing entries and declare that counsel billed far too many hours for particular tasks. Rather, it is this court’s",
"The court is satisfied that the rates charged by Bridgewater’s counsel are reasonable, and represent prevailing market rates for services of the kind that counsel performed here. Yankee suggests that the rates charged by Boston counsel are too high, and that local Springfield rates should prevail. However, this was an intellectual property case. The First Circuit has held that where the client reasonably hires counsel from outside the community to perform specialized work, a reasonable rate in the attorney’s city of origin will be awarded. Maceira, 698 F.2d at 40; see also Stanton v. Southern Berkshire Reg’l Sch. Dist., 28 F.Supp.2d 37, 42 (D.Mass.1998). Bridgewater, a South Carolina company, can certainly be forgiven for looking to a large Boston law firm to defend an intellectual property suit in Springfield. Yankee itself does not argue that the claimed rates are greater than those billed in the Boston legal market generally during the course of this lawsuit. In fact, the rates ($135 to $200 for associates and $300 to $320 for partners) are quite reasonable for the Boston area. See Guckenberger v. Boston University, 8 F.Supp.2d 91, 105 (D.Mass.1998) (approving rates ranging from $140 to $325 for civil rights attorneys); Arthur D. Little Int'l, Inc. v. Dooyang Corp., 995 F.Supp. 217, 224 n. 1 (D.Mass.1998) (finding rate of $325 per hour reasonable for litigation partner in large Boston firm). These rates will therefore be used in calculating the lodestar amount. Yankee does not specifically challenge the rates charged for the South Carolina attorneys who worked on this case, which range between $150 and $225 per hour. The court will accept them as reasonable. b. Hours Reasonably Spent. The court must next determine the number of hours reasonably spent in the litigation and multiply it by the reasonable hourly rate. The court must calculate the time counsel spent on the case and subtract duplicative, unproductive or excessive hours. See Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001). In calculating such hours, the court begins with counsel’s actual billing sheets. As noted above, counsel billed for 6,541.1",
"fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour.",
"rate for Notts’s work. See, e.g., Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.1999) (approving hourly rate of $200.00 for civil rights attorney with twenty-five years of experience); McLaughlin by McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (awarding hourly rate of $200.00 for civil rights attorney). The Court rejects the argument that Notts's hourly rate should be enhanced to reflect his risk in taking the case on a contingent fee basis, as the Supreme Court has held that such enhancements are not appropriate. See City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Lipsett 975 F.2d at 943. Calculating the reasonable number of hours spent by Notts on the litigation in question as 375.275 total hours, and using a rate of $200 an hour, the Court finds the lodestar figure for Notts to be $75,055.00. b. Mary Sullivan Mary Sullivan requests an hourly rate of $175.00, the rate she charged Mar-tino. In support of this request, she states that she has worked since 1983 at Segal, Roitman, & Coleman, a labor and employment firm, first as an associate and then as a partner. Sullivan Affidavit, ¶ 3. She also asserts that $175.00 per hour was the rate charged by the firm for individual employment cases during the time that she represented Martino. Id. at ¶ 4. The MBTA does not dispute that $175.00 per hour is a reasonable rate for Sullivan, and the Court so finds. Accordingly, the lodestar figure for Sullivan is $1,645.00 (9.4 hours of work multiplied by $175.00). c. Andrew Kisseloff Andrew Kisseloff requests an hourly rate of $200.00, the rate that he charged for his brief work on Martino’s case. In support of this request, however, he states only that he has practiced law in Massachusetts since 1977 and that he once received attorney’s fees at the rate of $250.00 per hour. PL’s Mot., Ex. 5, Kisse-loff Affidavit, ¶¶ 2-3. The MBTA, accurately noting that the Court has been “told very little” about Kisseloffs background and qualifications, urges the Court to award him an",
"instructions) was not used ultimately for its assigned task does not necessarily imply that its development was not helpful to counsel in addressing other aspects of the case. See Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 102 (D.Mass.1998) (Saris, J.) (declining generally to parse out hours spent on unsuccessful claims). Thus, the Court did not delete any hours submitted to it in Schwartz’s affidavit in calculating the lodestar. (b) Hourly Rates Although the hours submitted by Schwartz are reasonable, the Court is less persuaded by Schwartz’s proposed hourly rates. Schwartz offers little to assist the Court in determining the prevailing market rate in Boston for experienced civil rights attorneys, associates, and law clerks. Schwartz’s submission from Massachusetts Lawyers Weekly, which reports hourly rates from Boston law firms, does not inform the Court as to the prevailing market rate for lawyers offering services similar to those provided by Schwartz, Scheckner, Massey, or Alpert. See Guckenberger, 8 F.Supp.2d at 105. Thus, the Court, in an effort to maintain a modicum of consistency with other awards of attorneys’ fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be",
"Boston area. See Guckenberger v. Boston University, 8 F.Supp.2d 91, 105 (D.Mass.1998) (approving rates ranging from $140 to $325 for civil rights attorneys); Arthur D. Little Int'l, Inc. v. Dooyang Corp., 995 F.Supp. 217, 224 n. 1 (D.Mass.1998) (finding rate of $325 per hour reasonable for litigation partner in large Boston firm). These rates will therefore be used in calculating the lodestar amount. Yankee does not specifically challenge the rates charged for the South Carolina attorneys who worked on this case, which range between $150 and $225 per hour. The court will accept them as reasonable. b. Hours Reasonably Spent. The court must next determine the number of hours reasonably spent in the litigation and multiply it by the reasonable hourly rate. The court must calculate the time counsel spent on the case and subtract duplicative, unproductive or excessive hours. See Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001). In calculating such hours, the court begins with counsel’s actual billing sheets. As noted above, counsel billed for 6,541.1 hours of work in this case. Yankee strenuously objects to this amount of time. Indeed, their attitude toward justifiable fees is illustrative of their “take no prisoners” approach to this entire litigation. Although the Supreme Court has advised that “[a] request for attorney’s fees should not result in a second major litigation,” Yankee has attempted to do just that, by seeking to file interrogatories demanding billing information from opposing counsel, and even asking for leave to depose them. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Yankee has also taken an unreasonably sharp position about the amount of time necessary for Bridgewater to defend against this aggressive suit. For example, Yankee labels literally all the time billed by Attorney Albert and his colleagues in preparing Bridgewater’s able Reply at the summary judgment stage as “[ujnproduc-tive, duplicative or excessive time reviewing, drafting, editing, or filing.” See Highlighted and Annotated Billing Sheets, Docket No. 209, Ex. C, Billing Sheets dated April 5, 2000. Never mind that this clear and well-organized 50-page brief was filed in response to",
"beginning to reflect that return to older virtues and good sense. See, e.g., Brill, Fickle Fees, American Lawyer 1 (September 1983). As this case demonstrates, attorneys with great expertise may obtain excellent results without running up an inordinate number of hours with the aid of large staffs. Their fee should reflect their ability to save hours; they should not be penalized for being efficient. B. Rate Plaintiffs seek compensation at $175 per hour for the time of both Mr. Schneps and Mr. Lottman. The proper hourly rate to be applied in a section 1988 attorneys fees application is one “normally charged for similar work by attorneys of like skill in the area.” Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2d Cir.1980) (quoting City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977)). That amount should not produce a windfall to the attorneys. See New York Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1149. In the case of non-profit organizations, fees should be calculated under the like skill standard up to the “break point” when a higher fee would provide such a windfall. Id. at 1152. Defendants claim that to compensate the lawyers in this case at $175 an hour would provide a windfall and in addition they assert that Mr. Lottman falls into the category of a public interest lawyer governed by the standards set forth in NYSARC. NYSARC, however, dealt with non-profit organizations, the Legal Aid Society, and the American Civil Liberties Union. Id. at 1154. Mr. Lottman was not employed by such an organization for work on this case. He was associated with an independent attorney. He paid his secretary separately and did much of his work out of Mr. Schneps’s office. For purposes of this case, he must be deemed a sole practitioner. Mr. Schnepps’s regular hourly rate was $100 in 1978, $125 in 1980, and currently it is $150. He seeks compensation at the rate of $175 per hour because of the contingent nature of this litigation and because of its complexity. Mr. Lottman does not"
] |
"counts of money laundering, and was sentenced to 18 months' incarceration. Robbins pleaded guilty to 24 counts of misprision of a felony, 18 U.S.C. § 4, and was sentenced to eight months’ home confinement. . See United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir.2013) (‘‘[T]he already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim.”); United States v. Pratt, 568 F.3d 11, 18 (1st Cir.2009) (""[T]he particularly stringent form of plain error review we apply to an unpreserved challenge to the sufficiency of the evidence asks whether the conviction resulted in a 'clear and gross injustice.' ” (citation omitted)). Other circuits, however, simply ""characterize the review as one for plain error only.” REDACTED Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam)). . Although Foley's brief focuses on the presence or absence of ""Mr. Foley’s signature” from the HUD-1 form, Foley does not argue that the HUD-ls signed by Sean Robbins as settlement agent were also insufficient because they did not contain Foley's signature. Rather, Foley’s challenge focuses solely 'on the seven HUD-ls in which the signature block was left altogether blank. . Again, however, Foley's challenge would likewise fail under plain error. See infra at 15. . Congress subsequently amended the statute in May 2009 to define ""proceeds” as ""any property derived from or obtained or"
|
[
"indicated in open court that his client would be willing to plead guilty to and accept responsibility for the drug possession count, but for the government's refusal to drop the gun possession charge (which would, in effect, double Luciano's sentence). . At trial. Agent Bernal described the “bad boy” figure as “an individual with a crew cut ... giving the finger.” The stamp is used to identify the heroin as a particular “brand.” . At trial, Agent Bernal testified that these sundry items are used by heroin dealers to process heroin from the rock-hard substance imported from overseas into the powder form that is sold on the street. . Luciano does not challenge on appeal his conviction for the first count of the indictment — the drug possession charge. .Section 924 provides in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years.... 18 U.S.C. § 924(c)(1)(A) (emphasis added). . While our review for \"clear and gross injustice” may sound akin to plain error review's \"miscarriage of justice” standard, see United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), we have generally avoided framing the review of unpre-served insufficiency claims in terms of \"plain error,” as the cases cited in the text attest. But see United States v. Pena-Lora, 225 F.3d 17, 26 (1st Cir.2000) (using \"clear and gross injustice” standard for reversal when reviewing unpreserved insufficiency claim for “plain error”). Other circuits characterize the review as one for plain error only. See, e.g., United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam). . Subparagraph (c)(2) provides: For purposes of this subsection, the term \"drug trafficking crime” means any felony punishable under the Controlled Substances Act"
] |
[
"saw the evidence differently and found Foley guilty on all counts. The case then proceeded to sentencing, where the district court imposed a below-Guidelines sentence of 72 months’ incarceration and also ordered restitution in the amount of $2,198,204. This appeal followed. II. A. Sufficiency of the Evidence 1. Wire Fraud Foley first contends that the evidence was insufficient as to all but five of the 33 wire fraud counts. With respect to the seven counts arising from unsigned HUD-1 forms, Foley contends that without a signature there was no misrepresentation and thus no wire fraud. . Because two lending companies, Taylor, Bean & Whitaker and Fremont, nevertheless extended loans based on these unsigned HUD-1 forms, Foley further argues that there was also insufficient evidence as to the 21 counts involving signed HUD-ls sent to these companies, reasoning that the presence or absence of a signature was not material to the lenders’ decisionmaking. Although the parties do not dispute that Foley moved for acquittal on the wire fraud counts under Fed.R.Crim.P. 29 both at the close of the government’s case and after the trial, they nevertheless disagree as to the proper standard of review for this claim. Under our precedent, although a general sufficiency-of-the-evidence objection preserves all possible sufficiency arguments, a motion raising only specific sufficiency arguments waives unenumerated arguments. United States v. Lyons, 740 F.3d 702, 716 (1st Cir.2014); United States v. Marston, 694 F.3d 131, 134 (1st Cir.2012). We have suggested that a general sufficiency objection accompanied by specific objections preserves all possible sufficiency objections. See Marston, 694 F.3d at 135 (finding “good reason in case of doubt” to treat such motions as general, because “[i]t is helpful to the trial judge to have specific concerns explained even where a general motion is made; and to penalize the giving of examples, which might be understood as abandoning all other grounds, discourages defense counsel from doing so and also creates a trap for the unwary defense lawyer”). At the close of the government’s case, Foley’s counsel moved for judgment of acquittal on all counts. Defense counsel then proceeded to state:",
"carrying on the fraud. We thus find no merger of crimes, and hence no reason to apply Santos’s narrower definition of “proceeds” as profits. B. Evidentiary Issues Foley next sets his sights on three of the district court’s adverse evidentiary rulings. Foley preserved all three challenges; our review is accordingly for abuse of discretion. United States v. Muñoz-Franco, 487 F.3d 25, 62 (1st Cir.2007). 1. Robbins’s Testimony Sean Robbins testified on direct examination that he had pleaded guilty to 24 counts of misprision of a felony. When asked to define “misprision,” Robbins responded: Misprision means that I had knowledge of crimes committed by Mr. Foley at the Law Office of Marc Foley; namely, mortgage fraud. It means I didn’t report those crimes to the authorities, and it also means that I concealed those crimes by having disbursement authorizations signed by Lisa Reed, which were essentially an agreement to conceal the nature of the transaction from the lenders. Defense counsel immediately objected and moved to strike this testimony. The district court denied this motion. Foley contends that the district court abused its discretion in failing to strike this testimony as -unfairly prejudicial under Fed.R.Evid. 403. More specifically, Foley argues that “[i]t was not for Sean Robbins to inform [the jury] that Mr. Foley was guilty of mortgage fraud based on the facts as he knew them,” and that Robbins’s testimony was “particularly problematic” because Robbins, an attorney, “would be in a better position than the average person to know whether mortgage fraud had been committed.” We have made clear that “the fact of [a witness’s] guilty plea and the plea agreement properly may be elicited to dampen the effect of an anticipated attack on the witness’s credibility.” United States v. Dworken, 855 F.2d 12, 30 (1st Cir.1988); see also United States v. Richardson, 421 F.3d 17, 40-41 (1st Cir.2005). We have accordingly upheld the admission of evidence concerning a co-conspirator’s guilty plea, even though it similarly invites an inference of the defendant’s- guilt, when such evidence is accompanied by appropriate limiting instructions. See Dworken, 855 F.2d at 29-30; see also United",
"Pratt, 568 F.3d 11, 18 (1st Cir.2009) (\"[T]he particularly stringent form of plain error review we apply to an unpreserved challenge to the sufficiency of the evidence asks whether the conviction resulted in a 'clear and gross injustice.' ” (citation omitted)). Other circuits, however, simply \"characterize the review as one for plain error only.” United States v. Luciano, 329 F.3d 1, 5 n. 6 (1st Cir.2003) (citing United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam)). . Although Foley's brief focuses on the presence or absence of \"Mr. Foley’s signature” from the HUD-1 form, Foley does not argue that the HUD-ls signed by Sean Robbins as settlement agent were also insufficient because they did not contain Foley's signature. Rather, Foley’s challenge focuses solely 'on the seven HUD-ls in which the signature block was left altogether blank. . Again, however, Foley's challenge would likewise fail under plain error. See infra at 15. . Congress subsequently amended the statute in May 2009 to define \"proceeds” as \"any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9); see also id.-§ 1957(f)(3) (incorporating § 1956’s definition of \"proceeds”). . We are not swayed by Foley’s argument that \"[t]he charged scheme was to quickly obtain fraudulent mortgage loans in order to pay Elizabeth Reed for the properties at 135 Neponset Avenue” and that under the language of the indictment \"[i]t was part of the scheme to defraud that Foley and [Reed] caused mortgage loan proceeds ... to be disbursed from Foley's bank account to [Reed].” Our focus is on the charged crimes and not on the overarching scheme. See Kennedy, 707 F.3d at 566 (“If the entire scheme had come to a halt upon [the defendants’] receipt of the funds, the defendants would still have been guilty of the crime of wire fraud — which illustrates that the subsequent disbursements to the shell corporations have no bearing on the completion of the crime of",
"22, 39 (1st Cir.2014). Foley points out that in contrast to his 72-month sentence, “Lisa Reed, the mastermind of the scheme and the person who profited from it, received a sentence of 18 months,” while Sean Robbins was not incarcerated at all. Foley further avers that he was less culpable than the lawyer defendants in Appolon and Innarelli, both of whom also received 72-month sentences. While Foley’s involvement was limited to the submission of false HUD-ls over the course of several weeks, the defendant in Innarelli also prepared false title documents and did so as part of a conspiracy spanning three years. Similarly, the lawyer in Appolon falsified loan applications and purchase-and-sale agreements as well as HUD-ls. Foley’s proffered comparisons carry little weight. First, three of these other defendants — Robbins, Reed, and the Innarelli defendant — opted to plead guilty and are therefore dissimilarly situated to Foley. See Floyd, 740 F.3d at 39. Robbins and Reed also played different roles in the conspiracy: Robbins worked largely at Foley’s direction, while Reed, even if the “mastermind of the scheme,” was not a lawyer and therefore did not sully “the integrity and public trust in the bar,” a factor which the district court stressed in sentencing Foley. Although the lawyer defendant in Appolon did go to trial, we do not think that his additional misrepresentations made him so much more culpable as to render Foley’s equivalent sentence an abuse of discretion. More broadly, we reject Foley’s premise that because we upheld a different judge’s sentence for a more culpable defendant in an unrelated case, the same sentence is therefore an proposed congeners were sentenced by the same judge as Foley. As we stated in United States v. Saez, 444 F.3d 15, 19 (1st Cir.2006), when “different judges sentence] two defendants quite differently, there is no more reason to think that the first one was right than the second.” Moreover, we recognized that such comparisons raise significant “practical objections”: A single judge sentencing two defendants for the same offense has the information before him and knows his own reasoning. By contrast, to",
"authorization” form for each of the loan closings, reducing Reed’s sale proceeds by the amount of the purported down payment. When a lender required additional proof of a buyer’s down payment, Foley instructed Reed to prepare bogus checks indicating that the buyer had actually brought funds to the closing. Foley then directed his paralegal to draw a check from his IOLTA in the amount due from the borrower and to later redeposit that check as “cash from buyer,” creating the illusion that Foley had received money from the borrower. Foley was charged with 33 counts of wire fraud, 18 U.S.C. § 1343, and five counts of money laundering, id. § 1957, for his role in these transactions. At trial, Foley mounted a defense of “good faith” in the face of damning testimony from Robbins and Reed, both of whom testified against him pursuant to plea agreements. The crux of Foley’s defense was that he honestly believed that the money would be forthcoming from the buyers and that Robbins and Reed lacked credibility. The jury, however, saw the evidence differently and found Foley guilty on all counts. The case then proceeded to sentencing, where the district court imposed a below-Guidelines sentence of 72 months’ incarceration and also ordered restitution in the amount of $2,198,204. This appeal followed. II. A. Sufficiency of the Evidence 1. Wire Fraud Foley first contends that the evidence was insufficient as to all but five of the 33 wire fraud counts. With respect to the seven counts arising from unsigned HUD-1 forms, Foley contends that without a signature there was no misrepresentation and thus no wire fraud. . Because two lending companies, Taylor, Bean & Whitaker and Fremont, nevertheless extended loans based on these unsigned HUD-1 forms, Foley further argues that there was also insufficient evidence as to the 21 counts involving signed HUD-ls sent to these companies, reasoning that the presence or absence of a signature was not material to the lenders’ decisionmaking. Although the parties do not dispute that Foley moved for acquittal on the wire fraud counts under Fed.R.Crim.P. 29 both at the close",
"collected from the borrowers, and it was a lie about what was paid to the seller. [Foley] had those false HUD-ls sent to the clients. The lenders’ money was released based on those lies. That theory was amply supported by trial evidence showing that after each closing, Robbins gave Foley’s paralegal the unsigned HUD-ls to be sent to the lenders, which in turn accepted the forms and funded the loans. We accordingly reject Foley’s contention that the government’s case rested solely on the stroke of a pen. To the extent that Foley takes issue more broadly with what he characterizes as the government’s “claim! ] that the mere submission of an unsigned HUD-1 to a lender can be a fraudulent misrepresentation even though there is a required certification on the form,” he points to no cases imposing such a “certification” requirement under § 1343. On the contrary, we and other circuits have rejected comparable attempts to narrow the scope of analogous statutes. See United States v. Ayewoh, 627 F.3d 914, 922 (1st Cir.2010) (interpreting identical language in the bank fraud statute, 18 U.S.C. § 1344, and holding that “the misrepresentation element of § 1344 is fulfilled by any intentional act or statement by an individual that falsely indicates, explicitly or implicitly, that he has authority to withdraw money from a bank,” including the entry of a credit card number into a point-of-sale device); see also United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 390 (1st Cir.2011) (“So long as the statement in question is knowingly false when made, it matters not whether it is a certification, assertion, statement, or secret handshake; False Claims liability can attach.” (quoting United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1172 (9th Cir.2006)) (internal quotation marks omitted)); United States v. Zwego, 657 F.2d 248, 250 (10th Cir.1981) (holding that 18 U.S.C. § 1014, criminalizing false statements in connection with loan and credit applications, extends to both written and oral statements); United States v. Sackett, 598 F.2d 739, 741-42 (2d Cir.1979) (same). We therefore find no clear and",
"gross injustice or plain error in Foley’s conviction. Foley’s secondary argument that the lenders’ acceptance of unsigned HUD-ls in turn demonstrates a lack of materiality as to the signed forms rests on the same misguided premise that the signature was the sole misrepresentation. As we have explained, both the signed and unsigned HUD-ls falsely indicated the receipt of “cash from borrower.” That the loan companies were apparently willing to extend loans based on unsigned HUD-ls hardly compels the additional inference that the loans would still have been extended even without the misrepresentations as to the receipt of down payments. On the contrary, Foley himself acknowledges the testimony of three lending company employees that the loans would not have closed if the lenders had known that the “cash from borrower” was in fact never obtained. That was more than enough evidence for the jury to conclude that these misrepre■sentations were material to the lenders’ decisions. 2. Money Laundering Foley also attacks his five money laundering convictions under 18 U.S.C. § 1957, arguing that the government failed to adduce evidence that the underlying transactions involved “criminally derived property” within the meaning of the statute. Foley concedes that he failed to renew this sufficiency challenge after trial and that our review is accordingly for clear and gross injustice only. See Marston, 694 F.3d at 134. Section 1957 punishes individuals who “knowingly engage[ ] or attempt[ ] to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity.” 18 U.S.C. § 1957(a). “Criminally derived property” is in turn defined as “any property constituting, or derived from, proceeds obtained from a criminal offense.” Id. § 1957(f)(2). At the time of the transactions at issue here, the statute provided no definition of “pro ceeds.” In United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), a divided Supreme Court grappled with alternate definitions of “proceeds” as “receipts” versus “profits” of a crime. Citing the rule of lenity, a plurality of the Court adopted the “profits” definition. Id. at 514, 128",
"Foley’s signature was the fraud,” such that the only relevant statement was “the certification on the HUD-1 that Mr. Foley had collected cash from the buyer at the closing.” The prosecution did indeed allude in both its opening and closing arguments to the significance of the settlement agent’s signature, stating, e.g., that “by signing the HUD-ls for these loans, the defendant certified to the mortgage company that he did collect the funds” and that the “HUD-1 when it said I have or will disburse in accordance with this HUD-1 is patently false.” Nevertheless, the government advanced a broader theory than Foley suggests. Signed or unsigned, each of the HUD-ls misrepresented the amount of “cash from borrower,” falsely indicating that the borrower had brought some amount of cash to the closing when in fact no funds were ever transferred. In its closing argument, the prosecution accordingly described the HUD-1 form as a lie to the mortgage company when it was sent to the lender to get the funds released. It was a he about what was collected from the borrowers, and it was a lie about what was paid to the seller. [Foley] had those false HUD-ls sent to the clients. The lenders’ money was released based on those lies. That theory was amply supported by trial evidence showing that after each closing, Robbins gave Foley’s paralegal the unsigned HUD-ls to be sent to the lenders, which in turn accepted the forms and funded the loans. We accordingly reject Foley’s contention that the government’s case rested solely on the stroke of a pen. To the extent that Foley takes issue more broadly with what he characterizes as the government’s “claim! ] that the mere submission of an unsigned HUD-1 to a lender can be a fraudulent misrepresentation even though there is a required certification on the form,” he points to no cases imposing such a “certification” requirement under § 1343. On the contrary, we and other circuits have rejected comparable attempts to narrow the scope of analogous statutes. See United States v. Ayewoh, 627 F.3d 914, 922 (1st Cir.2010) (interpreting identical",
"settlement agent. More importantly, the 343 Centre Street transaction occurred over a year before the scheme for which Foley was convicted, which (according to the indictment) ran “from in or about December of 2006 to in or about January of 2007.” That is in stark contrast to Hensley, which involved a unitary scheme spanning a mere two weeks. Id. at 278. Furthermore, the indictment expressly delimited the scheme to “the financing of residential real estate purchases of condominiums at 135 Neponset Avenue.” We accordingly vacate the district court’s award of $118,104 in restitution to Argent Mortgage. IV. For the foregoing reasons, we affirm Foley’s conviction and incarcerative sentence. We affirm in part and vacate in part the district court’s restitution order, and remand for further proceedings consistent with this opinion. .As we further elaborated in United States v. Appolon, 695 F.3d 44, 53 n. 3 (1st Cir.2012): The Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601-2617, requires that a HUD-1 settlement statement be used in every real estate s'ettlement \"involving a federally related mortgage loan in which there is a borrower and a seller.” 24 C.F.R. § 3500.8(a). Among other things, the HUD-1 form is meant to \"conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement.\" 12 U.S.C. § 2603. . For instance, if the \"cash to seller” amount was $100,000, the mortgage loan amount $75,000, and the \"cash from borrower” amount $25,000, then Foley would write Reed a check for $75,000 and Reed would sign a disbursement authorization reducing her proceeds by the remaining $25,000. . Reed pleaded guilty to 40 counts of wire fraud and 13 counts of money laundering, and was sentenced to 18 months' incarceration. Robbins pleaded guilty to 24 counts of misprision of a felony, 18 U.S.C. § 4, and was sentenced to eight months’ home confinement. . See United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir.2013) (‘‘[T]he already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim.”); United States v.",
"the standard more favorable to a defendant. To justify reversal of a conviction under that standard, there must be (1) error, (2) that “affect[s] substantial rights” — i.e., that is prejudicial. Fed.R.Crim.P. 52(a); see Olano, 507 U.S. at 731, 734, 113 S.Ct. 1770. To meet the plain error standard, both of these requirements must be satisfied and the error must also be “plain.” Fed.R.Crim.P. 52(b); see Olano, 507 U.S. at 734, 113 S.Ct. 1770. Even then, although a court of appeals has discretion to correct an error, there is a fourth consideration: “[T]he court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (citations omitted). And, critical to our analysis here, the Supreme Court has indicated that it is “not likely an error can have that effect where the evidence against the defendant is ‘overwhelming.’ ” United States v. Gartmon, 146 F.3d 1015, 1024 (D.C.Cir.1998) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718 (1997)). Because Perkins did not object to the district court’s jury instructions at trial, his claim of error would ordinarily be reviewed under the plain error standard. He correctly points out, however, that this circuit has applied harmless error review to post-Bailey claims of instructional error even when defendants did not raise them at their pre-Bailey trials. See, e.g., United States v. Toms, 136 F.3d 176, 180-81 (D.C.Cir.1998); United States v. Smart, 98 F.3d 1379, 1393 (D.C.Cir.1996); see also United States v. Hudgins, 120 F.3d 483, 486-88 n. 3 (4th Cir.1997). In those cases, we have relied on the circuit’s “supervening-decision doctrine,” which permits appellate review as if an objection had been made below when prevailing circuit law at the time of the trial would have made such an objection futile. See Toms, 136 F.3d at 180 & n. 5; Smart, 98 F.3d at 1393; United States v. Lin, 101 F.3d 760, 771 (D.C.Cir.1996). Thus in Toms, where the trial court instructed the jury without objection that the “government need not show"
] |
in acts of unfair competition against Artus by manufacturing and selling plain, unmarked color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. REDACTED This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that the design is non-functional and not essential to the use of either article, that the configuration of the article copied may have a secondary meaning which identifies the maker to the trade, or that there may be confusion among purchasers as to which article is which or as to who is the maker, may be relevant evidence in applying a State’s law
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[
"patent. An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so. What Sears did was to copy Stiffens design and to sell lamps almost identical to those sold by Stiffel. This it had every right to do under the federal patent laws. That Stiffel originated the pole lamp and made it popular is immaterial. “Sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.” Kellogg Co. v. National Biscuit Co., supra, 305 U. S., at 122. To allow a State by use of its law of unfair competition to prevent the copying of an article which rep resents too slight an advance to be patented would be to permit the State to block off from the public something which federal law has said belongs to the public. The result would be that while federal law grants only 14 or 17 years’ protection to genuine inventions, see 35 U. S. C. §§ 154, 173, States could allow perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards. This would be too great an encroachment on the federal patent system to be tolerated. Sears has been held liable here for unfair competition because of a finding of likelihood of confusion based only on the fact .that Sears’ lamp was copied from Stiffel’s unpatented lamp and that consequently the two looked exactly alike. Of course there could be “confusion” as to who had manufactured these nearly identical articles. But mere inability of the public to tell two identical articles apart is not enough to support an injunction against copying or an award of damages for copying that which the federal patent laws permit to be copied. Doubtless a State may, in appropriate circumstances, require that goods, whether patented or unpatented, be labeled or that other precautionary steps be taken to prevent"
] |
[
"color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. Sears, Roebuck & Co. v. Stiffel, 376 U.S. 225, 231-32, 84 S.Ct. 784, 788-89, 11 L.Ed.2d 661 (1964). This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that the design is non-functional and not essential to the use of either article, that the configuration of the article copied may have a secondary meaning which identifies the maker to the trade, or that there may be confusion among purchasers as to which article is which or as to who is the maker, may be relevant evidence in applying a State’s law requiring such precautions as labeling; however, regardless of the copier’s motives, neither these facts nor any others can furnish a basis for imposing liability for or prohibiting the actual acts of copying or selling. 376 U.S. 234, 238, 84 S.Ct. 779, 782, 11 L.Ed.2d 669 (1964). While federal (patent) law prevents a state from prohibiting the copying and selling of unpatented articles, it does not preclude a state, either statutorily or judicially, from requiring that those who make and sell copies must take precautions to adequately identify their products. SK&F Co. v. Premo Pharmaceutical Lab., 625 F.2d 1055, 1964 (3d Cir. 1980); Ives Laboratories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631,",
"unmarked colored shims on at least three occasions. Alert Manufacturing and Chicago Wilcox, both competitors of plaintiff, have agreed through consent judgments and settlement agreements to distinguish their products by placing stars and dots on their shims. A third manufacturer, General Gasket, completely changed its color scheme and still remains competitive. Lastly, purchasers of shims have periodically referred complaints to Artus concerning the quality of shims which they erroneously believed, based upon color observation only, to be plaintiffs product. Of course, the fact that two competitors use similar or even identical marks for their respective products, and that buyers are likely to become confused, does not establish secondary meaning. Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 305 A.2d 22 (1973). However, if a buyer associates a mark with the plaintiff, such as plain, unmarked colored shims with Artus, secondary meaning is present and the law will afford protection. Gum, Inc. v. Gumakers of America, Inc., 136 F.2d 957, 959 (3d. Cir. 1943). In the case sub judice, there is evidence that shim customers, as well as manufacturers, associate plain, unmarked colored shims with Artus. Artus and Nordic agree that plaintiff continues to be the exclusive source of plain, unmarked colored plastic shims. The deposition testimonies of Kaercher, Carlin and Mishne attest to recognition of specific plain, unmarked colored shims as emanating from Artus. Nordic admits that it intentionally adopted the Artus colors in plain, unmarked style to become successful in the marketplace. This intentional simulation by Nordic supports plaintiffs argument that Artus succeeded in creating consumer recognition and goodwill for its product which Nordic desired to appropriate. RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir. 1979); Socony-Vacuum Oil Co. v. Rosen, 108 F.2d 632, 636 (6th Cir. 1940). We hold that Artus’ 14 unmarked colors have acquired a secondary meaning in the relevant market. (C) Even if we assume that plaintiff’s color scheme is functional, a conclusion which we reject, Nordic’s intentional imitation supports at least a presumption that the similarity will cause customer confusion. Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281",
"distributing and selling plain, unmarked color-coded shims, identical in appearance to those manufactured, advertised and sold by Artus, with the intention of trading upon the goodwill established by Artus in the marketplace. Artus further contends that its plain, unmarked color-coded system is nonfunctional, has acquired secondary meaning, and is thereby deserving of protection as a matter of law. Nordic rejoins that it has a legal right to identical use of plaintiff’s plain color-coded system since the colors are functional and Nordic has adequately labeled its shims to designate their origin and to eliminate any possible likelihood of confusion. On September 17, 1980, Nordic moved for summary judgment. Presently before the court is Nordic’s motion for summary judgment and Artus’ renewed motion for judgment. For the reasons hereinafter set forth, defendant’s motion will be denied and plaintiff’s renewed motion for summary judgment will be granted in part. II. Discussion This case presents the question of whether Nordic has been and continues to engage in acts of unfair competition against Artus by manufacturing and selling plain, unmarked color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. Sears, Roebuck & Co. v. Stiffel, 376 U.S. 225, 231-32, 84 S.Ct. 784, 788-89, 11 L.Ed.2d 661 (1964). This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that",
"so long as attachment occurs before the junior competitor enters the market. Wright, supra at 318, citing Barton v. Rex-Oil Co., 2 F.2d 402, 405 (3d Cir. 1924). The word secondary refers only to second in time, for the additional association with source meaning often overtakes the original or first-in-time meaning of the symbol, mark, or device. Levi-Strauss & Co. v. Blue Bill, Inc., 632 F.2d 817, 820 (9th Cir. 1980). In the instant case, several factors support plaintiff’s claim of secondary meaning. First, viewing the above factors, Artus has continuously utilized the same, original, plain, unmarked color-coded system for its shims from 1940 to the present; it has a large customer following of approximately 2500 to 3000 customers and has sold more than 40,000,000 plain, unmarked color-coded plastic shims in the marketplace; it has and continues to advertise extensively both in the United States and abroad; and its advertisements essentially relate to the color system as a means of identification. Secondly, Artus has been successful in preventing others from marketing and selling identical plain, unmarked colored shims on at least three occasions. Alert Manufacturing and Chicago Wilcox, both competitors of plaintiff, have agreed through consent judgments and settlement agreements to distinguish their products by placing stars and dots on their shims. A third manufacturer, General Gasket, completely changed its color scheme and still remains competitive. Lastly, purchasers of shims have periodically referred complaints to Artus concerning the quality of shims which they erroneously believed, based upon color observation only, to be plaintiffs product. Of course, the fact that two competitors use similar or even identical marks for their respective products, and that buyers are likely to become confused, does not establish secondary meaning. Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 305 A.2d 22 (1973). However, if a buyer associates a mark with the plaintiff, such as plain, unmarked colored shims with Artus, secondary meaning is present and the law will afford protection. Gum, Inc. v. Gumakers of America, Inc., 136 F.2d 957, 959 (3d. Cir. 1943). In the case sub judice, there is evidence that shim customers,",
"OPINION ZIEGLER, District Judge. I. History of Case On October 15, 1940, plaintiff, The Artus Corporation, (“Artus”), obtained an exclusive license under a United States patent for a novel shim for spacing milling machinery parts. Included in the patent was the claim that the shim material would be colored, but no specific colors were claimed. Within one month of securing the patent, Artus adopted the following colors to indicate various thicknesses of the shims: silver, amber, purple, red, green, tan, blue, transparent matte, brown, black, pink, yellow, white and coral. Artus has continuously and consistently utilized these plain colors in the advertising, manufacturing and selling of its shims. In October, 1974, defendant, Nordic Company, (“Nordic”), began to manufacture and sell plain, unmarked color-coded shims. These shims differed from those of Artus in color selection. Nordic’s marketing attempt was initially unsuccessful and it abandoned its choice of colors and adopted Artus’ plain, unmarked color-coded system with identical thicknesses. Repeated requests by Artus to Nordic to discontinue use of the unmarked color scheme have been ignored. Artus instituted this action on December 23, 1977, alleging infringement of proprietary rights due to unfair competition in the manufacture and sale of plain, unmarked color-coded shims, gasket shim stock and spacers. On January 24, 1978, Nordic answered and denied infringement and simultaneously set forth affirmative defenses and a counterclaim. In defense, Nordic contends that plaintiff’s plain color-coded system for shims is available for privileged imitation and thus not entitled to protection, and also that the action is barred by unclean hands and laches. In its counterclaim, defendant alleges that Artus has unlawfully attempted to monopolize the trade in the industry. Following discovery, Artus moved for summary judgment. The court denied the motion on January 31, 1980, due to the existence of a genuine issue of a material fact. Thereafter, Artus amended its complaint and additionally charged Nordic with acts of. unfair competition and deceptive trade practice under Section 43(a) of the Lanham Act. 15 U.S.C. § 1125(a). Specifically, Artus alleges that Nordic has been and continues to engage in unfair trade practices and competition by",
"and other colors are substituted, nothing of substantial value is lost in the goods themselves. SK&F Co. v. Premo Pharmaceutical Lab., 625 F.2d 1055, 1964 (3d Cir. 1980); Restatement of Torts, Section 742, Comment a (1938). We therefore conclude, as a matter of law, that Artus’ plain, unmarked colors are nonfunctional and entitled to protection if secondary meaning has attached. (B) The issue of secondary meaning is generally a factual one and often a matter of inference. John Wright, Inc. v. Casper Corp., supra, 419 F.Supp. 292, 317-318. Proof of secondary meaning is difficult since there are no precise guidelines and no single determining factor. Each case must be decided on its own facts with considerations given to such elements as: (a) length and exclusivity of use, (b) sales level, (c) extent of advertising and promotion, and (d) similarity of the markets or products in the likelihood of causing confusion. American Footwear Corp. v. Genera] Footwear Company, 609 F.2d 655, 665 (2d Cir. 1979). No particular length of time is required to establish secondary meaning so long as attachment occurs before the junior competitor enters the market. Wright, supra at 318, citing Barton v. Rex-Oil Co., 2 F.2d 402, 405 (3d Cir. 1924). The word secondary refers only to second in time, for the additional association with source meaning often overtakes the original or first-in-time meaning of the symbol, mark, or device. Levi-Strauss & Co. v. Blue Bill, Inc., 632 F.2d 817, 820 (9th Cir. 1980). In the instant case, several factors support plaintiff’s claim of secondary meaning. First, viewing the above factors, Artus has continuously utilized the same, original, plain, unmarked color-coded system for its shims from 1940 to the present; it has a large customer following of approximately 2500 to 3000 customers and has sold more than 40,000,000 plain, unmarked color-coded plastic shims in the marketplace; it has and continues to advertise extensively both in the United States and abroad; and its advertisements essentially relate to the color system as a means of identification. Secondly, Artus has been successful in preventing others from marketing and selling identical plain,",
"(1973). Artus has the burden of proving that its plain, unmarked color scheme is entitled to protection against imitation, and the Nordic’s plain, unmarked color scheme is so similar that confusion is likely. Stroehmann Bros. v. Manheck Baking Co., 331 Pa. 96, 200 A. 97 (1938). Artus is not required to prove actual palming-off; a showing of likelihood of confusion is sufficient. Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 649 (3d Cir. 1958). To establish a claim for unfair competition under Pennsylvania law, two elements must be present: (1) the public’s recognition that a plaintiff’s mark or feature is identified with his product and distinguishable from those of others, i. e., a secondary meaning, and (2) activities that cause a likelihood of confusion among relevant purchasers. L’Aiglon Apparel, Inc. v. Lana Labelle, Inc., 214 F.2d 649 (3d Cir. 1954). The first element can be shown primarily in two ways: (a) the mark is inherently distinctive, (i. e., trademark in the classic sense), or (b) even if not inherently distinctive, the feature has acquired a secondary meaning in the minds of customers. John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 317 (E.D.Pa.1976), modified on other grounds, 587 F.2d 602 (3d Cir. 1978); McCarthy, supra, Section 15:4, at 524. Nordic contends, and Artus concedes, that Artus’ original decision to color its various shims was functional. The coloring was, and still is employed to denote thickness. It decreases the probability of “thickness” error and saves the user set-up time. Since coloring affects handling, it is in this context functional. Section 742 of the Restatement of Torts defines functionality as follows: A feature of the goods is functional, under the rule stated in 741, if it affects their purpose, action or performance, or the facility or economy of processing, handling or using them; it is non-functional if it does not have any of such effects. If the right to color was at issue, Artus concedes that Nordic would be entitled to employ colors to denote shim thickness. That concession is mandated by Ives Laboratories, Inc. v. Darby Drug Co., Inc.,",
"supra, 601 F.2d at 643. “Where the features are functional there is normally no right to protection or relief .... If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright .... ” However, Artus objects to the use of a particular combination of unmarked colors, without adequate distinguishing characteristics or labeling, and not to the use of colors, per se. Artus’ use of plain, unmarked colors serves to distinguish its product from that of other manufacturers and sellers, just as the use of Artus’ colors with the application of dots and stars distinguish the products of other manufacturers from Artus. Artus contends that the particular selection and arbitrary application of 14 varying unmarked colors is nonfunctional and, over the course of 25 years, it has developed a secondary meaning in the minds of its customers. We agree. Color alone or indiscriminately applied to the overall configuration of a product may not function as a trademark. However, when it is applied to goods in some definite, arbitrary manner or design, it can so function if it is used in the manner of a trademark and it is recognized in the industry as identifying and distinguishing the source of the product in connection with which it is used. In re AFA Corp., 196 U.S.P.Q. 772, 774-75 (T.T. & A.Bd. 1977). Moreover, when a feature of the item is arbitrary, the feature may become a trademark even though it serves a useful purpose. Ives Labortories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631 (2d Cir. 1977); Truck Equipment Service Co. v. Fuehauf Corp., 536 F.2d 1210 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). As in Ives, we reject Nordic’s argument that Artus’ system should be denied protection because of functionality and the risk of monopoly. The use of a specific color scheme by Artus bears no relationship to the shim’s ability to perform as a spacer in milling machinery. A shim can be any",
"as well as manufacturers, associate plain, unmarked colored shims with Artus. Artus and Nordic agree that plaintiff continues to be the exclusive source of plain, unmarked colored plastic shims. The deposition testimonies of Kaercher, Carlin and Mishne attest to recognition of specific plain, unmarked colored shims as emanating from Artus. Nordic admits that it intentionally adopted the Artus colors in plain, unmarked style to become successful in the marketplace. This intentional simulation by Nordic supports plaintiffs argument that Artus succeeded in creating consumer recognition and goodwill for its product which Nordic desired to appropriate. RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060 (2d Cir. 1979); Socony-Vacuum Oil Co. v. Rosen, 108 F.2d 632, 636 (6th Cir. 1940). We hold that Artus’ 14 unmarked colors have acquired a secondary meaning in the relevant market. (C) Even if we assume that plaintiff’s color scheme is functional, a conclusion which we reject, Nordic’s intentional imitation supports at least a presumption that the similarity will cause customer confusion. Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 758-59 (2d Cir. 1960). Section 729 of the Restatement of Torts, Comment f, at 594-95, provides: A latecomer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. * * * But such an intent raises a presumption that customers will be deceived. See also, My-T Fine Corp. v. Samuels, 69 F.2d 76, 77 (2d Cir. 1934). The test for customer confusion is not whether the products can be differentiated when subjected to a side-by-side comparison, but whether they create the same general overall impression. Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341 (E.D.Pa.1972), aff’d, 480 F.2d 917 (3d Cir. 1973); Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 762. If the similarities in appearance are unduly confusing to the average customer, the defendant has trespassed upon the plaintiff’s rights unless he has taken reasonable steps to indicate the source of the product to prevent deception. Confusion may consist of misleading customers or potential",
"take from the goods ... something of substantial value.” Id. at 933, 140 USPQ at 582. In addition to registration under section 2 of the Lanham Act, color marks have been protected by courts under section 43(a) of the Act and under state laws of unfair competition. For example, in Artus Corp. v. Nordic Co., Inc., 512 F.Supp. 1184, 213 USPQ 568 (W.D.Pa.1981), Artus adopted an arbitrary color scheme for its shims utilizing a different color to represent each of fourteen shim thicknesses. Nordic, a competitor, copied the color scheme. The court rejected Nordic’s argu ment that Artus’ color scheme should be denied protection because of functionality and the risk of monopoly, and granted an injunction to prevent a likelihood of confusion in the marketplace. The colors of cube puzzles have been protected, when such colors were found to have acquired a secondary meaning and were primarily non-functional in nature. See, e.g., Ideal Toy Co. v. Plawner Toy Mfg. Corp., 215 USPQ 610 (D.N.J.1981), modified, 685 F.2d 78, 216 USPQ 102 (3d Cir.1982). When these requirements were not met, protection has been denied. See, e.g., Olay Co., Inc. v. Cococare Products, Inc., 218 USPQ 1028, 1045 (S.D.N.Y.), aff'd mem. 742 F.2d 1439 (2d Cir.1983) (pink color of beauty lotion had not acquired a secondary meaning); Water Gremlin Co. v. Ideal Fishing Float Co., Inc., 401 F.Supp. 809, 812, 188 USPQ 388, 391 (D.Minn.1975) (color coded fishing floats had not acquired a secondary meaning). Trademark status of the colors of pharmaceutical products has been vigorously litigated, and although some judicial decisions proceeded on a theory of “palming off”, many have afforded relief against imitation of capsule or tablet colors when the facts established that such features were non-functional and had acquired a secondary meaning in the marketplace. See, e.g., Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., Inc., 547 F.Supp. 1095, 215 USPQ 769 (D.N.J.1982), aff'd per curiam, 719 F.2d 56 (3d Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1444, 79 L.Ed.2d 763 (1984), grant of perm. inj. aff'd, 747 F.2d 844, 224 USPQ 349 (3d Cir.1984). Following this pattern the Board"
] |
Treichler v. Comm’r, Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). Benefits may be awarded where “the record has been fully developed” and “further administrative proceedings would serve no useful purpose.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001), Specifically, benefits should be awarded where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d 1273 at 1292; REDACTED Here, the ALJ failed to provide a legally sufficient reason to discount Comrie’s and Eather’s opinions. See infra, I. Blakesley has already had two hearings before this ALJ regarding the period at issue, including one hearing after Blakesley was awarded benefits on re-application for the period beginning July 9, 2012. See AR 684. Once again, the ALJ has failed to issue a decision that is free of legal error and supported by substantial evidence in the record. Second, there are no outstanding issues. Both Comrie and Eather agreed that Blakesley should be limited to superficial and occasional public contact. See AR 340, 571. The Commissioner identifies no opinion that contradicts those opinions. Third, crediting Comrie’s and Eather’s opinions as
|
[
"the record. See Chambliss, 269 F.3d at 522 (AU need not give great weight to a VA rating if he \"adequately explain[s] the valid reasons for not doing so\"). III In this case, the VA determined that McCartey was 80% disabled due to his depression and lower back injury. The AU failed to consider the VA finding and did not mention it in his opinion. We hold that the AU erred in disregarding McCartey's VA disability rating, and accordingly, the Commissioner's decision must be reversed and remanded. We have discretion to remand a case either for additional evidence and findings or for an award of benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996). We may direct an award of benefits if the record has been fully developed and further administrative proceedings would serve no useful purpose. Id. Such a circumstance arises when: (1) the AUJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant’s evidence. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (crediting treating physician’s testimony and awarding benefits); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989) (crediting subjective symptom testimony and awarding benefits); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995) (same); Stewart v. Heckler, 730 F.2d 1065, 1068 (6th Cir.1984) (crediting VA finding of disability and awarding benefits). In this case, the VA’s disability finding was supported by several hundred pages of medical records. The record is fully developed and, giving great weight to the VA disability rating, a finding of disability is clearly required. See Smolen, 80 F.3d at 1292. Therefore, we hold that McCartey was disabled throughout the relevant period, and we reverse and remand to the district court with instructions to remand to the ALJ for payment of benefits. REVERSED and REMANDED. . Because we reverse on this ground, we"
] |
[
"of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose. Id. In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (crediting treating physician’s uncontroverted testimony and awarding benefits); Swenson, 876 F.2d at 689 (crediting subjective symptom testimony and awarding benefits); Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988) (same). In this case, the ALJ’s reasons for discrediting Smolen’s subjective symptom testimony, the physicians’ opinions, and the lay testimony were legally insufficient. There are no outstanding issues to preclude us from making a disability determination on the merits. The record is fully developed and, considering the evidence that the ALJ improperly discredited, a finding of disability is clearly required. Smolen has already waited over seven years for her disability determination, and additional proceedings would only delay her receipt of benefits. Therefore, we find that Smolen was disabled throughout the relevant period, and reverse and remand for determination of benefits. REVERSE and REMAND. Costs to Appellant. . The Commissioner's revised regulations, which became effective November 14, 1991, adopt the same basic scheme for evaluating subjective symptom testimony as this two-step analysis. See 20 C.F.R. § 404.1529. Under the new regulations, the Commissioner first determines whether there is a medically determinable impairment that could reasonably be expected to cause the claimant’s symptoms (the Cotton test). See 20 C.F.R. § 404.1529(a) and (b). The Commissioner then evaluates the intensity and persistence of the claimant’s symptoms, considering evidence beyond the claimant's own testimony, including SSR 88-13 factors discussed infra pp. 1284. See 20 C.F.R. § 404.1529(c)(incorporating SSR 88-13); 56 Fed.Reg. 57928, 11/14/91 (SSR 88-13 incorporated into federal regulations). At",
"evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman, 211 F.3d at 1178; see also McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002); Smolen, 80 F.3d at 1292. Where the Harman test is met, we will not remand solely to allow the ALJ to make specific findings regarding excessive pain testimony. Rather, we take the relevant testimony to be established as true and remand for an award of benefits. Varney, 859 F.2d at 1401; see also Reddick v. Chater, 157 F.3d 715, 728 (9th Cir.1998) (quoting Varney); Lester, 81 F.3d at 834 (same); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989) (same); but cf. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003) (holding that the court has flexibility in crediting petitioner’s testimony if substantial questions remain as to her credibility and other issues must be resolved before a determination of disability can be made). The district court held that the ALJ erred in discounting Benecke’s credibility and the evaluations of her treating physicians. We agree. The record provides little support for the ALJ’s credibility finding. In discrediting Benecke’s testimony about the severity of her symptoms, the ALJ relied largely on Benecke’s ability to carry out certain routine tasks. As described above, Benecke’s daily activities are quite limited and carried out with difficulty. “This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). Likewise, the ALJ erred in discounting the",
"a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 1292. The Smolen test does not apply here because there are “out-standing issues that must be resolved before a determination of disability can be made.” As stated above, Dr. Caillouette’s statement regarding Lin-genfelter’s disability is ambiguous, and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required so that the ALJ may either interpret Dr. Caillouette’s statement or hold additional hearings to determine the proper interpretation. We have generally applied the Smolen test only in eases where the evidence in the record strongly supports a finding of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002) (stating that the VA rating of disability, which the ALJ did not consider, was supported by several hundred pages of medical records and must be given “great weight”; hence “a finding of disability is clearly required”); Smolen, 80 F.3d at 1291-92 (noting that the claimant offered “extensive testimony” that was supported by two physicians’ opinions and the rest of the record, and that “the overwhelming evidence ... required the ALJ to find [claimant] disabled”); Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir.1989) (finding that the claimant’s testimony “was supported by substantial medical evidence,” and that the only expert testified that the claimant would not be able to engage in any work). In this case, to the contrary, the weight of the medical evidence in the record contradicts both the degree of Lingenfelter’s claimed disability and the medical opinions of Lingenfelter’s treating physicians. The Smolen test was designed to expedite the resolution of disability applicants’ claims, but should not be employed in cases where it would be likely to result in the wrongful award of benefits.",
"Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion ‘as a matter of law.’ ” Lester, 81 F.3d. at 834, quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989). We built upon this rule in Smolen by positing the following test for determining when evidence should be credited and an immediate award of benefits directed: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d at 1292. The Commissioner attacks Appellant’s reliance on Lester by arguing that the record in that case contained no evidence capable of supporting the rejection of the medical opinions, while here, according to the Commissioner, there is such evidence. However, even assuming arguendo that there is material in the record upon which the ALJ legitimately could have rejected Dr. Fox’s testimony, the Commissioner’s attempt to distinguish Lester is not well founded. In Varney v. Secretary of Health and Human Services (Varney II), 859 F.2d 1396 (9th Cir.1988), this court addressed the propriety of adopting the Eleventh Circuit’s practice of accepting a claimant’s pain testimony as true when it is inadequately rejected by the ALJ. In language which is equally applicable here, we stated: Requiring the ALJs to specify any factors discrediting a claimant at the first opportunity helps to improve the performance of the ALJs by discouraging them from reaching] a conclusion first, and then attempt[ing] to justify it by ignoring competent evidence.... [¶ And] the rule [of crediting such testimony] ensures that deserving claimants will receive benefits as soon as possible.... .. Certainly there may exist valid grounds on which to discredit a claimant’s pain testimony.... But if grounds for such a finding exist, it is both reasonable and desirable to require the ALJ to articulate them in the original decision. Id. at 1398-99.",
"<• TASHIMA, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the ALJ erred in discrediting Treichler’s medically determinable pain and symptom testimony based on a boilerplate credibility determination. I part company, however, with the majority’s remand for further proceedings. I would, instead, remand for the award of benefits. I, therefore, dissent from Part IV of the majority opinion. I. Under the credit-as-true rule, a reviewing court may “credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004). Under our precedent, we must remand for an award of benefits if these three factors are met, unless the record discloses that there is “serious doubt” that the claimant is actually disabled. Garrison v. Colvin, 759 F.3d 995, 1023 (9th Cir.2014). Here, each of these factors is satisfied and there is no serious doubt that Treichler is actually disabled. First, the ALJ failed to provide “legally sufficient reasons” for rejecting Treichler’s pain and symptom testimony. Id. at 1022. As the majority holds, the ALJ committed legal error in rejecting Treichler’s testimony based on boilerplate. Maj. Op. at 1102-03. Second, there are “no outstanding issues that must be resolved before a determination of disability can be made.” Garrison, 759 F.3d at 1019 (quoting Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988) (internal quotation marks omitted)). We have remanded for additional proceedings when “critical portions of [a treating physician’s] testimony ... were not before the ALJ at all but were presented only to the Appeals Council,” Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.2000), or when “no vocational expert has been called upon to consider all of the testimony that",
"983 [157 L.Ed.2d 967 (2004) ], we must reverse the district court’s decision to the extent it affirmed the ALJ’s credibility determination.” 775 F.3d at 1099. IV. Brown-Hunter argues that in light of the ALJ’s error, we must credit her testimony as true and remand to the district court with instructions to remand to the agency for an immediate award of benefits. A remand for an immediate award of benefits is appropriate, however, only in “rare circumstances.” Id. Before ordering that extreme remedy, we must first satisfy ourselves that three requirements have been met. First, we must conclude that “the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.2014). Second, we must conclude that “the record has been fully developed and further administrative proceedings would serve no useful purpose.” Id. This requirement will not be satisfied if “the record raises crucial questions as to the extent of [a claimant’s] impairment given inconsistencies between his testimony and the medical evidence in the record,” because “[t]hese are exactly the sort of issues that should be remanded to the agency for further proceedings.” Treichler, 775 F.3d at 1105. Importantly, we are “to assess whether there are outstanding issues requiring resolution before considering whether to hold that the claimant’s testimony is credible as a matter of law.” Id. This is because “a reviewing court is not required to credit claimants’ allegations regarding the extent of their impairments as true merely because the ALJ made a legal error in discrediting their testimony.” Id. at 1106. The touchstone for an award of benefits is the existence of a disability, not the agency’s legal error. To condition an award of benefits only on the existence of legal error by the ALJ would in many cases make “ ‘disability benefits ... available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’ ” Id., quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Third, we must conclude that “if the improperly .discredited evidence were credited as true, the",
"because the relief requested, a direct award of benefits, was not granted. See Forney v. Apfel, 524 U.S. 266, 271, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998). We have jurisdiction under 28 U.S.C. § 1291, and we review the decision to remand for further proceedings for abuse of discretion. Treichler, 775 F.3d at 1100. All other issues are reviewed de novo. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). III. When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits. Treichler, 775 F.3d at 1099. Where an ALJ improperly rejects a claimant’s pain testimony as incredible without providing legally sufficient reasons, the reviewing court may grant a direct award of benefits when certain conditions are met. Varney, 859 F.2d at 1400-01. The three-part analysis for such conditions is known as the “credit-as-true” rule. Garrison, 759 F.3d at 1019. First, we ask whether the “ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Id. at 1020. Next, we determine “‘whether there are ‘outstanding issues that must be resolved before a disability determination can be made,’ ... and whether further administrative proceedings would be useful.” Treichler, 775 F.3d at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004). When these first two conditions are satisfied, we then credit the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability. Id. The application of the Varney rule for a direct award of benefits was intended as a rare and prophylactic exception to the ordinary remand rule when there is no question that a finding of disability would be required if claimant’s testimony were accepted as true. Id. As emphasized in Treichler, the three-step Varney rule may result in a direct award of benefits only if the first two conditions are satisfied and further administrative proceedings would not be useful. Even if we reach the third step and credit the claimant’s",
"discretion to remand for further proceedings, rather than for benefits. See Connett v. Barnhart, 340 F.3d 871, 874-76 (9th Cir.2003) (citing cases and reaffirming that the reviewing court retains discretion to remand for further proceedings even when the ALJ fails “to assert specific facts or reasons to reject [the claimant’s testimony”); see also Garrison, 759 F.3d at 1021 (noting that a district court retains the flexibility to “remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.”). Ill We turn now to Treichler’s claim that the ALJ erred in ruling that Treichler’s statements about the limiting effects of his medical problems were not credible. The ALJ must make two findings before the ALJ can find a claimant’s pain or symptom testimony not credible. 42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability” absent additional findings). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.’ ” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell, 947 F.2d at 344). Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996). Because the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,” Chenery Corp., 318 U.S. at 87, 63 S.Ct. 454, the agency must explain its reasoning. Consequently, to ensure our appellate review is meaningful, Bunnell, 947 F.2d at 346, we require the ALJ to “specifically identify the testimony [from a claimant] she or he finds not to be credible and ... explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.2001). That means",
"the ALJ may not reject this opinion without providing ‘specific and legitimate reasons’ ” for doing so that are “supported by substantial evidence in the record.” Orn, at 632 (citation omitted); see also Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1148. The decision of an ALJ fails this test when the ALJ completely ignores or neglects to mention a treating physician’s medical opinion that is relevant to the medical evidence being discussed. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). Such cases should be remanded to the agency for proper consideration of the evidence. See id. at 1408-09. V The opinion of the Court concludes that Lingenfelter is entitled to an award of benefits under the Smolen test. The test states that the district court should credit evidence or testimony that was rejected during the administrative process and remand for an immediate award of benefits where: “(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 1292. The Smolen test does not apply here because there are “out-standing issues that must be resolved before a determination of disability can be made.” As stated above, Dr. Caillouette’s statement regarding Lin-genfelter’s disability is ambiguous, and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required so that the ALJ may either interpret Dr. Caillouette’s statement or hold additional hearings to determine the proper interpretation. We have generally applied the Smolen test only in eases where the evidence in the record strongly supports a finding of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002) (stating",
"138 F.3d 1150, 1152 (7th Cir.1998). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 399-400, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In making a substantial evidence determination, the court will review the record as a whole, but will not reevaluate the facts, reweigh the evidence or substitute its own judgment for that of the Commissioner. Griffith 138 F.3d at 1152; Brewer v. Cha- ter, 103 F.3d 1384, 1391 (7th Cir.1997). That being said, the ALJ must “build an accurate and logical bridge between the evidence and the result.” Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000). With respect to credibility determinations, the ALJ is in the best position to observe the demeanor and veracity of the testifying witnesses. Griffith 138 F.3d at 1152. The court will not disturb the ALJ’s weighing of credibility so long as those determinations are based on some support in the record and are not “patently wrong.” Id.; Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994). However, the district court is required to critically review the evidence and not simply rubber-stamp the Commissioner’s decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.2000). III. Discussion “Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act.” Estok v. Apfel, 152 F.3d 636, 638 (7th.Cir.1998). Under section 423(e)(l)(B)(l), it is well established that to receive benefits, a disability must have begun or had its inception during the period of insured status. Bastian v. Schweiker, 712 F.2d 1278, 1280 (8th Cir.1983); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert.denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). The Seventh Circuit has established that a claimant has the burden of establishing that he is disabled within the meaning of the Social Security Act on or before the date his insured status expired. Estok v. Apfel, 152 F.3d 636, 640 (7th Cir.1998); Meredith v. Bowen, 833 F.2d 650 (7th Cir.1987); Owens v. Heckler, 770 F.2d 1276, 1280 (5th"
] |
three claims now before the court on the grounds that federal habeas review is barred by adequate and independent state procedural grounds and that the claims are, at any rate, without merit. Discussion (1) Petitioner was deprived of the opportunity to present a meaningful defense. a. Review of petitioner’s claim is not barred by an adequate and independent state ground. Considerations of finality, federalism, and comity dictate that a federal habeas court may not review a state court decision that rests on an adequate and independent state procedural default unless the habeas petitioner can show “cause” for the default and “prejudice attributable thereto” or demonstrate that the failure to consider the federal claim will result in a “fundamental miscarriage of justice.” REDACTED accord Coleman v. Thompson, 501 U.S. 722, 730-31, 750, 111 S.Ct. 2546, 2554, 2565, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87-90, 97 S.Ct. 2497, 2503-04, 2506-08, 53 L.Ed.2d 594 (1977). In applying this rule, “the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent [a federal court] from reaching the federal claim: ‘[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.’ ” Harris, 489 U.S. at 261-62, 109 S.Ct. at 1042 (quoting Caldwell v. Mississippi, 472 U.S. 320, 328, 105
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[
"federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: “[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the ease.” Ibid. Furthermore, ambiguities in that regard must be resolved by application of the Long standard. Id., at 328. B The adequate and independent state ground doctrine, and the problem of ambiguity resolved by Long, is of concern not only in cases on direct review pursuant to 28 U. S. C. § 1257, but also in federal habeas corpus proceedings pursuant to 28 U. S. C. §2254. Wainwright v. Sykes made clear that the adequate and independent state ground doctrine applies on federal habeas. 433 U. S., at 81, 87. See also Ulster County Court v. Allen, 442 U. S. 140, 148 (1979). Under Sykes and its progeny, an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the ha-beas petitioner can show “cause” for the default and “prejudice attributable thereto,” Murray v. Carrier, 477 U. S. 478, 485 (1986), or demonstrate that failure to consider the federal claim will result in a “‘fundamental miscarriage of justice.’” Id., at 495, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982). See also Smith v. Murray, 477 U. S. 527, 537 (1986). Conversely, a federal claimant’s procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default. See Caldwell v. Mississippi, 472 U. S., at 327; Ulster County Court v. Allen, 442 U. S., at 152-154. Moreover, the question whether the state court indeed has done so is sometimes as difficult to answer on habeas review as on direct review. Just as this Court under § 1257 encounters state-court opinions that are unclear on this point, so too do the federal courts under §2254. Habeas review thus presents the same problem of ambiguity that this Court resolved in Michigan v. Long. We"
] |
[
"Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This is true whether the state law ground is substantive or procedural. Id. If a state prisoner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750, 111 S.Ct. 2546. That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 128-29,102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal habe-as corpus review if the State court relied on that procedural bar. Murray v. Carrier, 744 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle, 456 U.S. at 128-29, 102 S.Ct. 1558; Boyle v. Million, 201 F.3d 711, 716 (6th Cir.2000). The failure to raise a constitutional issue on direct appeal is subject to the cause and prejudice standard of Wain-might v. Sykes. Murray, 477 U.S. at 485, 106 S.Ct. 2639; Mopes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.1994). The failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). As is well-established (although sometimes muddled by courts), two types of procedural barriers might preclude federal review of claims in a habeas petition. The first type, procedural default, is a judicially created rule, grounded in fealty to comity values and requiring federal courts to respect state court judgments that are based on an “independent and",
"of his jury instruction claim. It is well established that federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is barred “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “A state' procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). “For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotation marks and citations omitted). In this case, Oklahoma’s procedural rule barring post-conviction relief for claims petitioner could have raised on direct appeal constitutes an independent and adequate ground barring review of petitioner’s jury instruction claim. See Odum v. Boone, 62 F.3d 327, 331 (10th Cir.1995); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir.1993). Petitioner therefore is not entitled to habeas review of his jury instruction claim unless he can show cause and prejudice justifying his state procedural default. Petitioner claims that his failure to raise the jury instruction issue on direct appeal was attributable to his appellate counsel’s deficient performance. “Attorney error amounting to constitutionally ineffective assistance of counsel constitutes ‘cause’ for a procedural default.” Hickman, 160 F.3d at 1272. “Because the same legal standards govern petitioner’s underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim.” Id. at 1273. III. “Claims of ineffective assistance of counsel present mixed questions of law and fact which we review de novo.” Newsted v. Gibson, 158 F.3d 1085, 1090 (10th Cir.1998). To prevail on an ineffective",
"of the issues he raises on appeal. We therefore set forth the standard for procedural default here. The Supreme Court has stated that “in all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas corpus review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added). A federal habeas petitioner can proeedurally default a claim by “failing to obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner’s claim.” Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). When the state procedural rule prevents the state court from hearing the merits of the claim, procedural default occurs when 1) a petitioner failed to comply with the rule, 2) the state actually enforced the rule against the petitioner, and 3) the rule is an “adequate and independent” state ground foreclosing review of a federal constitutional claim. Willis v. Smith, 351 F.3d 741, 744 (6th Cir.2003). Failure to comply with well-established and normally enforced procedural rules usually constitutes “adequate and independent” state grounds for foreclosing review. See id. at 745. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner’s case. See Sykes, 433 U.S. at 87, 97 S.Ct. 2497. A showing of cause requires more than the mere proffer of an excuse. Rather,",
"S.Ct. 3469, 77 L.Ed.2d 1201 (1983), for ambiguous state court references to procedural bar. Thus, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985)). However, as the Supreme Court made clear in Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), this presumption that a state court decision relies on federal grounds in the absence of a clear statement to the contrary only arises if “the decision of the last state court to which the petitioner presented his federal claims ... fairly appear[s] to rest primarily on federal law or to be interwoven with federal law.” Id. Ill S.Ct. at 2557. As we reiterated in Shafer, that state court finding must be an “adequate and independent state ground.” Shafer v. Stratton, 906 F.2d at 508. Accordingly, given the Utah Supreme Court’s clear reliance on procedural bar, if that court’s holding of procedural bar constitutes an adequate and independent state ground, and if Andrews fails to demonstrate cause for his procedural default and prejudice therefrom, or a fundamental miscarriage of justice, this court will not reach the merits of the claims so barred. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. at 255, 109 S.Ct. at 1038-39; Dugger v. Adams, 489 U.S. at 401, 109 S.Ct. at 1211-12; Murray v. Carrier, 477 U.S. at 487, 106 S.Ct. at 2644-45; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497. 1. Adequate and Independent State Ground. Andrews argues the Utah Supreme Court has failed to consistently apply the procedural bar rule it applied in Andrews VI, with the result that the court’s finding of procedural default is not an “adequate” state ground. He asserts that procedural default is always excused",
"postconviction proceedings absent a showing of “good cause.” Id. We must infer from that clear statement a refusal to reach the merits of all issues presented to it, including Andrews’ ineffectiveness claims. Under the procedural default rule developed in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and subsequent cases: where a state court finding of procedural default is an adequate and independent state ground, the procedural default bars federal habeas review of the claims unless the petitioner can demonstrate “cause” for his procedural default and “prejudice attributable thereto,” or that the failure to considér the federal claim will result in a “fundamental miscarriage of justice.” Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.1990) (quoting Murray v. Carrier, 477 U.S. at 485, 106 S.Ct. at 2643-44); see also Dugger v. Adams, 489 U.S. at 411-12 n. 6, 109 S.Ct. at 1217-18 n. 6. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), adopted the “plain statement” rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), for ambiguous state court references to procedural bar. Thus, “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985)). However, as the Supreme Court made clear in Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), this presumption that a state court decision relies on federal grounds in the absence of a clear statement to the contrary only arises if “the decision of the last state court to which the petitioner presented his federal claims ... fairly appear[s] to rest primarily on federal law or to be interwoven with federal law.” Id. Ill S.Ct. at 2557. As we reiterated in Shafer, that state court finding must be an",
"defaults on his “federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this court set forth a four-step analysis for determining whether a petitioner’s federal constitutional claims are barred by the petitioner’s failure to follow a state procedural rule. “Whether a state court rested its holding on procedural default so as to bar federal habeas review is a question of law,” reviewed de novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). This court looks to the last explained state-court judgment when answering that question. Id. III. DISCUSSION A. Ineffective Assistance of Counsel While Wickline asserts a number of grounds for relief in his petition, the parties focused primarily on one issue at oral argument — alleged ineffective assistance of trial counsel. We will therefore address that issue first. Wickline claims that his trial counsel was ineffective in several areas, most notably in the alleged failure to investigate or present mitigating evidence. Under Strickland v. Washing ton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a violation of the right to effective assistance of counsel has two components: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. Review of counsel’s performance is highly deferential and requires that courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.",
"state court’s application of clearly established federal law to the facts of the prisoner’s case was objectively unreasonable.” Id. B. The State argues that nearly all issues on appeal have been procedurally defaulted, and the district court concluded that several of the claims that remain at issue were procedurally defaulted. Thus, we set forth the general standard for determining whether an issue is procedurally defaulted at the outset. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.” Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.2010) (en banc); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). The “cause” standard in procedural-default cases requires the petitioner to show that “some objective factor external to the defense impeded counsel’s efforts” to raise a claim in the state courts. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (internal quotation marks omitted). Such factors may include interference by officials, an attorney error rising to the level of ineffective assistance of counsel, or a showing of a factual or legal basis for a claim that was not reasonably available. Id. at 493-94, 111 S.Ct. 1454. “[A] procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the ‘cause",
"has not met a state procedural requirement. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); see also Ulster County Court v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). If a default occurs, federal relief is foreclosed because the default constitutes an independent and adequate state ground on which the decision rests. See Liebman & Hertz, supra, § 23.1 n. 9. On both direct review and habeas review, the Supreme Court has held that it will not consider an issue of federal law from a judgment of a state court if that judgment rests on a state law ground that is both “independent” of the merits of the federal claim and an “adequate” basis for the court’s decision. See Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989); see also Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 635-36, 22 L.Ed. 429 (1874). Without the independent and adequate state ground doctrine, habeas petitioners would be able to avoid the exhaustion requirement by failing to satisfy a state’s procedural rules, rendering the defaulted state remedies unavailable. See Coleman, 501 U.S. at 732, 111 S.Ct. at 2555. Thus, “[t]he independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases,” id., by requiring petitioners to satisfy a state’s procedural rules and exhaust their state remedies or face the penalty of having their claims barred from federal habeas review. B. When the district court heard Boerckel’s petition, this Court believed that a federal habeas petitioner forfeited the right to habe-as relief if he did not seek review in a state’s highest court of all the claims presented in his habeas petition. See Nutall v. Greer, 764 F.2d 462, 463-64 (7th Cir.1985); see also Lostutter v. Peters, 50 F.3d",
"to hear habeas petitions from state prisoners are barred from reviewing federal questions which the state court declined to hear because the prisoner failed to meet a state procedural requirement. Lambrix v. Singletary, - U.S. -, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). In such cases, the state judgment is said to rest on independent and adequate state procedural grounds. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Wamwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Considerations of comity and federalism bar the federal court’s review. Lambrix, — U.S. at - - -, 117 S.Ct. at 1522-23 (“A State’s procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system.”). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). Without the “independent and adequate state ground” doctrine, federal courts would be able to review claims the state courts never had a proper chance to consider. Lambrix, — U.S. at -, 117 S.Ct. at 1523. There are, however, exceptions to the bar on habeas review if the prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 749-50, 111 S.Ct. at 2565. Here, although the state did not raise the procedural default issue in the federal habeas court until a motion for reconsideration, the district court ruled that it would consider the procedural default argument on its merits, in the interests of comity. As the district court properly noted, it has the authority to consider the procedural default issue sua sponte. Ortiz v. Dubois, 19 F.3d 708 (1st Cir.1994), cert. denied, 513 U.S."
] |
at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly, in REDACTED the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to
|
[
"is a “party in interest” under ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B). The Act prohibits certain transactions between ERISA plans and their parties in interest. Some of the allegations in the complaint, if true, establish that Frommer participated in such “prohibited transactions” with the Funds by receiving excessive compensation for legal services, obtaining a loan from the Funds, and engaging in similar activities in violation of ERISA §§ 406(a)(1), 408(b), 29 U.S.C. §§ 1106(a)(1), 1108(b). Because these transactions are illegal under the Act, the district courts are authorized by section 502(a)(3) “to redress such violations.” See McDougall v. Donovan, 539 F.Supp. 596, 598-99 (N.D.Ill.1982) (section 502(a)(3) permits court to order equitable relief against party in interest who engages in a prohibited transaction). It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is therefore no reason to exempt parties in interest from this remedial provision when they engage in transactions prohibited by the Act. Conclusion We hold that plaintiffs have stated a claim for relief against Frommer under ERISA sections 406(a)(1) and 502(a)(3). Accordingly, if plaintiffs prevail on the merits, they will be entitled to whatever equitable relief — including the issuance of an injunction or the imposition of a constructive trust upon property improperly received by Frommer — as the district court may deem appropriate. Plaintiffs cannot state a claim against Frommer under section 409(a), however, because he is not a fiduciary; thus they have no remedy against him for damages under ERISA. The judgment of the district court is AFFIRMED IN PART, REVERSED IN PART AND REMANDED for proceedings in accordance with this opinion. The parties shall bear their own costs on appeal. ."
] |
[
"a frivolous breach, suggested that the Secretary could maintain a suit under that provision against a party in interest who participated in a transaction prohibited under section 406(a)(1). The court observed: Congress proscribed several “acts or practices” in ERISA’s substantive provisions that involve nonfiduciaries_ See Mertens, — U.S. at - & n. 4, 113 S.Ct. at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly, in Nieto v. Ecker, 845 F.2d 868 (9th Cir.1988), the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to exempt parties in interest from this remedial provision when the engage in transactions prohibited by [ERISA]. Id. at 873-74. Third, we agree with the Secretary that the parallel tax provisions support his position that nonfiduciaries may be held liable for their participation in prohibited transactions.",
"in Nieto v. Ecker, 845 F.2d 868 (9th Cir.1988), the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to exempt parties in interest from this remedial provision when the engage in transactions prohibited by [ERISA]. Id. at 873-74. Third, we agree with the Secretary that the parallel tax provisions support his position that nonfiduciaries may be held liable for their participation in prohibited transactions. Section 4975 of the Internal Revenue Code, 26 U.S.C. § 4975, imposes taxes on certain persons who participate in prohibited transactions. Section 4975(h) provides that the Secretary of Treasury is required to notify the Secretary of Labor before sending a notice of deficiency with respect to such taxes in order to give the latter a “reasonable opportunity to obtain a correction of the prohibited transaction....” Since “correction of the prohibited transaction” implies an order of restitution directed to the party who participated in the transaction with the plan, this provision buttresses the Secretary’s position. For all of these reasons, we hold that the Secretary can bring an action under section 502(a)(5) against a nonfiduciary who participates in a transaction prohibited by section 406(a). Finally, we disagree with EMA’s contention that even if section 406(a)(1) regulates the behavior of some nonfiduciaries, it does not reach nonfidueiaries that are not parties in interest. As we previously explained, see supra pages 279 to 281, section 406(a)(1)(D) applies to transactions between a plan and a third party when the",
"a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (\"A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . .” (emphasis added)). We reject, however, the Seventh Circuit’s and Salomon’s conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfidueiary party may not be held liable under § 502(a)(3), one of ERISA’s remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued. Section 502 provides: “(a) . . . \"A civil action may be brought— “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan.” 29 U. S. C. § 1132(a)(3). This language, to be sure, “does not . . . authorize ‘appropriate equitable relief’ at large, but only ‘appropriate equitable relief’ for the purpose of ‘redressing any] violations or . . . enforcing] any provisions’ of ERISA or an ERISA plan.” Peacock v. Thomas, 516 U. S. 349, 353 (1996) (quoting Mertens, supra, at 253 (emphasis and alterations in original)). But § 502(a)(3) admits of no limit (aside from the “appropriate equitable relief” caveat, which we address infra) on the universe of possible defendants. Indeed, § 502(a)(3) makes no mention at all of which parties may be proper defendants — the focus, instead, is on redressing the “act or practice which violates any provision of [ERISA Title I].” 29 U. S. C. § 1132(a)(3) (emphasis added). Other provisions of ERISA, by contrast, do expressly address who may be a defendant. See, e.g.,",
"liable for a fiduciary’s breach of duty and that such a theory was rejected in Mer-tens. While this argument is not without force, we are ultimately persuaded that it is based on an unduly narrow interpretation of sections 406(a)(1) and 502(a)(5). First, we note that Mertens itself seemed to imply that section 406(a) imposes duties on nonfiduciar-ies who participate in prohibited transactions. After observing that “ERISA contains various provisions that can be read as imposing obligations upon nonfidueiaries,” — U.S. at-, 113 S.Ct. at 2067, the Court cited section 406(a), 29 U.S.C. § 1106(a), as an example and stated that this provision prohibits a nonfiduciary party in interest from “offer[ing] his services” to a plan or “en-gag[ing] in certain other transactions with the plan,” id. at-n. 4, 113 S.Ct. at 2067 n. 4. Second, EMA’s and Local 98’s position is inconsistent with the analysis of two other courts of appeals. In Rowe, the First Circuit, while refusing to accept the argument that the Secretary could sue a nonfiduciary under section 502(a)(5) for knowingly participating in a frivolous breach, suggested that the Secretary could maintain a suit under that provision against a party in interest who participated in a transaction prohibited under section 406(a)(1). The court observed: Congress proscribed several “acts or practices” in ERISA’s substantive provisions that involve nonfiduciaries_ See Mertens, — U.S. at - & n. 4, 113 S.Ct. at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly,",
"For example, ERISA sections 502(a)(3) and 502(a)(5) authorize suits to enjoin or obtain other equitable relief for “any act or practice” violating either the statute or the terms of a plan, without restricting the types of parties who may be so sued. ERISA section 3(lj)(B), moreover, broadly defines the “parties in interest” unth whom plans are prohibited to enter into certain transactions under section j06(a). Significantly, however, Congress expressly limited the scope of sections 502(a)(3) and 502(a)(5) to equitable remedies, and likewise limited section 409(a) to provide a right of action only against fiduciaries. It is telling that, despite textual treatment of non-fiduciaries in various other parts of the ERISA scheme, provisions [§§ 409 and 502(a)(2)] relevant to appellant’s theory contain no textual support for a claim for monetary damages against non-fiduciaries. We cannot infer that Congress’s silence is accidental in an area where Congress has already said so much out loud. Id. at 1581-82 (citations omitted) (emphasis supplied). Construing first §§ 409 and 502(a)(2), Useden holds only that non-fiduciaries cannot be sued for breach of fiduciary duties because § 409 contains no references to non-fiduciaries and because Congress expressly limited liability in §§ 409 and 502(a)(2) to fiduciaries. In reaching this holding, Useden then contrasts §§ 409 and 502(a)(2) with §§ 406 and 502(a)(5) and answers in dicta the very different question posed here regarding who can be sued for equitable relief under § 502(a)(5) for engaging in stock transactions prohibited by § 406. In short, who can the Secretary sue for acts that violate ERISA § 406? Useden directly points to a “party in interest” who participates in a prohibited transaction in violation of § 406 as an example of a non-fiduciary against whom relief may be sought under § 502(a)(5). Id. at 1581. This is precisely the Secretary’s claim against the Ficklings in this case. In addition to pointing out ERISA’s textual treatment of “parties in interest” in § 406, Useden goes further and concludes these “parties in interest” can be sued for equita ble relief under § 502(a)(5) because § 502(a)(5) does not restrict the type",
"406 “that can be read as imposing obligations upon nonfiduciaries....” Id. at 253-54, 113 S.Ct. at 2067. As an example of a provision that imposes such an obligation, the Supreme Court cited § 406(a)’s prohibition on “parties in interest” offering services or engaging in other transactions with the plan. Id. at 254 n. 4, 113 S.Ct. at 2067 n. 4. The Supreme Court further stated that professional service providers “must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by § 406, and pay related civil penalties or excise taxes....” Id. at 262, 113 S.Ct. at 2071-72 (citations omitted). While Mertens involved service providers, the concept that “parties in interest” can be sued for disgorgement of profits for participating in a transaction prohibited by § 406 is no less applicable to other non-fiduciary “parties in interest,” such as the Ficklings. See 29 U.S.C. § 1002(14)(B) (ERISA § 3(14)(B)) (including service providers within the definition of “parties in interest”). Even though disgorgement of profits may produce money, Mertens makes it clear that disgorgement of profits is a distinctly equitable remedy different from the legal remedy of compensatory damages for breach of fiduciary duty. See Mertens 508 U.S. at 260, 113 S.Ct. at 2070-71. The Court’s definition of appropriate equitable relief under § 502(a)(5) clearly encompasses the fruits of a prohibited transaction from “parties in interest” like the Ficklings. In sum, under § 502(a)(5), the Secretary may sue the Ficklings as “parties in interest” for equitable relief for engaging in a prohibited transaction with SCNB in violation of § 406. Therefore, the district court erred in granting summary judgment to the Ficklings. IV. PRIVATE LITIGANTS’ SETTLEMENT DOES NOT BAR SECRETARY’S ACTION The Ficklings and SCNB next contend that the Knop private settlement bars the Secretary’s action against them. This issue requires us to examine the Secretary’s special statutory role in seeking relief and assessing civil penalties for ERISA violations. A. Secretary’s Statutory Role In § 502(a), Congress granted the Secretary an independent and unqualified right to sue and seek redress for ERISA violations because ERISA plans significantly affect the",
"S.Ct. at 2070, and we therefore believe that the analysis of the one provision should apply equally to the other with respect to the question at issue. We therefore hold that section 502(a)(5) does not authorize suits by the Secretary against nonfiduciaries charged solely with participating in a fiduciary breach. B. We now turn to the Secretary’s argument that section 502(a)(5) authorizes him to sue a nonfiduciary who participates in a transaction prohibited by section 406(a)(1). In response to this argument, EMA and Local 98 seem to suggest that the Secretary cannot obtain relief from them even if the transactions at issue are found to be prohibited under section 406(a)(1) of ERISA. Section 406(a)(1) provides that “[a] fiduciary with respect to a plan shall not cause the plan to engage in a [prohibited] transac-tion_” 29 U.S.C. § 1106(a)(1) (emphasis added). Since this language appears on its face to apply only to fiduciaries and not to other parties who participate in prohibited transactions, EMA and Local 98 maintain that the Secretary is attempting to make them liable for a fiduciary’s breach of duty and that such a theory was rejected in Mer-tens. While this argument is not without force, we are ultimately persuaded that it is based on an unduly narrow interpretation of sections 406(a)(1) and 502(a)(5). First, we note that Mertens itself seemed to imply that section 406(a) imposes duties on nonfiduciar-ies who participate in prohibited transactions. After observing that “ERISA contains various provisions that can be read as imposing obligations upon nonfidueiaries,” — U.S. at-, 113 S.Ct. at 2067, the Court cited section 406(a), 29 U.S.C. § 1106(a), as an example and stated that this provision prohibits a nonfiduciary party in interest from “offer[ing] his services” to a plan or “en-gag[ing] in certain other transactions with the plan,” id. at-n. 4, 113 S.Ct. at 2067 n. 4. Second, EMA’s and Local 98’s position is inconsistent with the analysis of two other courts of appeals. In Rowe, the First Circuit, while refusing to accept the argument that the Secretary could sue a nonfiduciary under section 502(a)(5) for knowingly participating in",
"for equitable disgorgement of their profits received from engaging in a prohibited transaction in violation of § 406. More importantly, a recent Supreme Court decision supports Useden’s analysis of § 406. In Mertens v. Hewitt Assocs., 508 U.S. 248, 260-61, 113 S.Ct. 2063, 2070-71, 124 L.Ed.2d 161 (1993), the Supreme Court acknowledged in dicta that non-fiduciaries may be sued and required under § 502(a)(5) to disgorge ill-gotten plan assets or profits obtained through participation in transactions prohibited by § 406. The Supreme Court explained that “the ‘equitable relief awardable under § 502(a)(5) includes restitution of ill-gotten plan assets or profits....” Mertens, 508 U.S. at 260, 113 S.Ct. at 2070-71. The Supreme Court held that non-fiduciaries may not be liable for the legal remedy of compensatory damages for breach of fiduciary duties because ERISA contains no provision requiring non-fiduciaries to avoid participation in a fiduciary’s breach of fiduciary duty. However, the Supreme Court also contrasted the lack of any ERISA provision regarding a non-fiduciary’s participation in a fiduciary’s breach with other ERISA provisions, such as § 406 “that can be read as imposing obligations upon nonfiduciaries....” Id. at 253-54, 113 S.Ct. at 2067. As an example of a provision that imposes such an obligation, the Supreme Court cited § 406(a)’s prohibition on “parties in interest” offering services or engaging in other transactions with the plan. Id. at 254 n. 4, 113 S.Ct. at 2067 n. 4. The Supreme Court further stated that professional service providers “must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by § 406, and pay related civil penalties or excise taxes....” Id. at 262, 113 S.Ct. at 2071-72 (citations omitted). While Mertens involved service providers, the concept that “parties in interest” can be sued for disgorgement of profits for participating in a transaction prohibited by § 406 is no less applicable to other non-fiduciary “parties in interest,” such as the Ficklings. See 29 U.S.C. § 1002(14)(B) (ERISA § 3(14)(B)) (including service providers within the definition of “parties in interest”). Even though disgorgement of profits may produce money, Mertens makes it clear that disgorgement",
"liable under § 502(a)(3) for participating in a §406 transaction and entered summary judgment in favor of Salomon. In doing so, the Seventh Circuit departed from the uniform position of the Courts of Appeals that § 502(a)(3) — and the similarly worded § 502(a)(5), which authorizes civil actions by the Secretary — does authorize a civil action against a non- fiduciary who participates in a transaction prohibited by § 406(a)(1). See LeBlanc v. Cahill, 153 F. 3d 134, 152-153 (CA4 1998) (§ 502(a)(3)); Landwehr v. DuPree, 72 F. 3d 726, 734 (CA9 1995) (same); Herman v. South Carolina National Bank, 140 F. 3d 1413, 1421-1422 (CA11 1998) (§ 502(a)(5)), cert. denied, 525 U. S. 1140 (1999); Reich v. Stangl, 73 F. 3d 1027, 1032 (CA10) (same), cert. denied, 519 U. S. 807 (1996); Reich v. Compton, 57 F. 3d 270, 287 (CA3 1995) (same). We granted certiorari, 528 U. S. 1068 (2000), and now reverse. H-4 We agree with the Seventh Circuit’s and Salomon’s interpretation of § 406(a). They rightly note that § 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (\"A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . .” (emphasis added)). We reject, however, the Seventh Circuit’s and Salomon’s conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfidueiary party may not be held liable under § 502(a)(3), one of ERISA’s remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued. Section 502 provides: “(a) . . . \"A civil action may be brought— “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or"
] |
place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. REDACTED As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80
|
[
"the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. See also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (stating that party invoking federal jurisdiction must allege facts essential to show jurisdiction and court may demand evidence supporting such facts). We reiterate that the burden of proving jurisdiction lies with the removing defendant. A conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant’s burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564, 567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir.1994) (concluding that removing defendant did not meet burden of proving amount in controversy where it offered “nothing more than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant must make “affirmative showing ... of all the requisite factors of diversity jurisdiction”). In this case, it is not facially apparent from Williams’ complaint that the amount in controversy exceeds $75,000. We therefore look to Best Buy’s notice of removal. Although the notice of removal clearly asserts that the jurisdictional re-' quirement is satisfied, the only fact alleged in support of that assertion is that Williams refuses to stipulate that her claims do not exceed $75,000. There are several reasons why a plaintiff would not so stipulate, and a refusal to stipulate standing alone does not satisfy Best Buy’s burden of proof on the jurisdictional issue. Thus, the pleadings are inconclusive as to the amount in controversy. Where the pleadings are inadequate, we may review the record to find evidence that diversity jurisdiction exists. See Sun Printing & Publ’g Ass’n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 697, 48 L.Ed. 1027 (1904); Rice v. Office of Servicemembers’ Group Life Ins., 260"
] |
[
"incarcerated in Wisconsin. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974) (“A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). These standards give great weight to plaintiffs assessment of the value of plaintiffs case. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir.1994). The Ninth Circuit has described the general “mechanical” rule courts apply when a plaintiffs complaint specifies an amount of damages: At common law, a statement of the amount claimed was required [to appear in every complaint], and was an upper limit on recovery. In",
"In this case it does not appear to a legal certainty that the amount in controversy is less than the jurisdictional limit, therefore, the $50,000.00 requirement is met. B. Diversity Plaintiff argues that Defendant Allstate must be deemed a citizen of the State of Texas because of Title 28 U.S.C. § 1332(c)(1) which provides: In any direct action against the insurer of a policy or contract of liability insurance ... such insurer shall be deemed a citizen of the State of which the insured is a citizen ... Section 1332(c)(1) and its legislative history clearly show that an action by an insured against his own insurer is not a “direct action.” Adams v. State Farm Automobile Insurance Company, 313 F.Supp. 1349 (N.D.Miss.1970). Plaintiff is suing her own insurance company in this case, therefore Defendant is not deemed a citizen of this state and diversity exists between the parties. Accordingly, it is ORDERED that Plaintiff’s Motion for Remand is hereby DENIED. It is further ORDERED that Plaintiff’s request for costs of the Motion for Remand is hereby DENIED.",
"matter be remanded to state court because the district court did not have subject matter jurisdiction over his action. Mitchell maintains that the $75,000 jurisdictional amount required to establish diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a) has not been demonstrated. Mitchell did not file a motion to remand on this ground in the district court. Nevertheless, we have an independent obligation to determine whether we have jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412, 1422 (11th Cir.1995). Accordingly, we must determine whether the district court had subject matter jurisdiction over this action. A district court has subject matter jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a). There is no dispute that the parties are diverse. Mitchell is a citizen of Alabama because he maintains that his domicile was Alabama before he was incarcerated in Wisconsin. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974) (“A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against",
"F.2d 1098 (11th Cir.1992). III. DISCUSSION A. Burden of Proof Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court. 28 U.S.C. § 1441(a). A removing defendant has the burden of proving the existence of federal jurisdiction. We first decide what burden of proof the defendant must bear in demonstrating the amount-in-controversy requirement of diversity jurisdiction where the plaintiff has made an unspecified demand for damages. This Court recently examined the burden of proving the amount in controversy for diversity jurisdiction: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding $50,000. Such a case will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paid’s Indemnity Corp. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over $50,000. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Burns v. Windsor Insurance Co., 31 F.3d 1092, 1094 (11th Cir.1994). In Bums, we held where a plaintiff has specifically claimed less than the jurisdictional amount in state court, a defendant, to establish removal jurisdiction, must prove to a “legal certainty” that the plaintiff would not recover less than $50,-000 if she prevailed. Id. at 1095. The rationale is that although a defendant has a right to remove in certain cases, a plaintiff is still master of her own claim. Id. Noting an attorney’s twin duties to investigate his client’s case and be candid with the court, we reasoned that a pleading containing a specific demand of damages and signed by a lawyer was due deference and a presumption of truth. Id. We concluded the defendant’s burden was a “heavy one” and the legal",
"U.S.C. § 1441. In either a case originally filed in, or one removed to, federal court, [t]he party seeking to invoke the jurisdiction of the federal courts has the burden of proving its existence by showing that it does not appear to a legal certainty that its claim is for less than the jurisdictional amount. 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3702, at 19 (2d ed.1985). Accordingly, in a removal case, the defendant, rather than the plaintiff, has the burden of proving that the jurisdictional requirements for removal are met. Griffin v. Holmes, 843 F.Supp. 81 (E.D.N.C.1993) (cit ing Kirchner Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir.1993)). For a removal, this means defendant must prove to a “legal certainty” that plaintiffs’ claim exceeds $75,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). However, a plaintiffs right to select the forum for its claim is stronger that a defendant’s right to remove. Therefore, any doubts about removal must be resolved in favor of remand. Griffin, 843 F.Supp. at 84; Burns, 31 F.3d at 1095. In this case, the jurisdictional dispute only involves the amount in controversy, and not diversity of citizenship. The amount in controversy is normally determined from the face of the pleadings. St. Paul, 303 U.S. at 289-90, 293, 58 S.Ct. 586, 82 L.Ed. 845. In this case, no specific amount is alleged in the complaint. Therefore, it will not aid in determining whether the action meets the jurisdictional amount in controversy. This is because, under North Carolina pleading rules, in negligence actions, claims in excess of $10,000 may only so state. That is how plaintiffs plead their demand for judgment. When federal jurisdiction is not plain from the face of a plaintiff’s complaint, the defendant must offer evidence in support of its claim that the controversy satisfies the federal jurisdictional amount. The court makes its determination on the basis of the existing record. 14A Wright, supra,",
"it was originally filed. I. STANDARD FOR REMAND Initially, the court must determine the proper standard for determining whether it has jurisdiction over this case, and upon which party lies the burden of proving jurisdiction. The relevant jurisdictional statute confers upon this court the power to adjudicate “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a)(1). Generally, the party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. Gen’l Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (declaring that “the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”). In this case, then, it is AOL that bears the burden of proving jurisdiction, because the Plaintiffs would prefer to have stayed in state court, where they first filed their case. When a plaintiff originally files her claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is",
"the defendant must prove to a legal certainty that the plaintiffs damages are not less than $75,000, DiTullio v. Universal Undenoriters Ins. Co., 2003 WL 21973324, at *3-*4 (E.D.Pa.2003); and (3) remanding a ease “because ambiguity exists and doubt remains regarding the sufficiency of the amount in controversy.” Stuessy v. Microsoft Corp., 837 F.Supp. 690, 692 (E.D.Pa.1993). Many of the variations are purely se-mantical and we have found no case where the result would have been different had one of the variations described been used. However, we think it would be helpful if consistent language were used by the District Courts within this Circuit. The Supreme Court has discussed the nature of a defendant’s burden of proof in a removal case. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) the plaintiff, in seeking a remand to the state court, amended the complaint after removal to allege damages less than the federal jurisdictional amount. The Court stated that the rule for determining whether the case involves the requisite amount as whether from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount. Id. at 289, 58 S.Ct. 586. If not, the suit must be dismissed. Some courts have found inconsistencies between Red Cab and McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In the latter case, the Supreme Court held that the party alleging jurisdiction [must] justify his allegations by a preponderance of the evidence. McNutt, 298 U.S. at 189, 56 S.Ct. 780. In that case, although a challenge to the amount in controversy had been raised in the pleadings, no evidence or findings in the trial court addressed that issue. In that respect, Red Cab differs because these factual findings had been made. Rather than reading articulations of the standard as variations, we believe that",
"all the plaintiff needs to do is allege an amount in excess of $75,000 and he will get his way, unless the defendant is able to prove “to a legal certainty” that the plaintiffs claim cannot recover the alleged amount. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Woodmen of World Life Ins. Soc’y v. Manganaro, 342 F.3d 1213, 1216-17 (10th Cir.2003). On the other hand, if the in-state plaintiff wishes to remain in state court, all it needs to do is to refrain from alleging any particular sum in its prayer for relief (assuming that is permitted, as it often is, under state rules of civil procedure), and, according to this and most other courts, the defendant is required to prove jurisdictional facts by a “preponderance of the evidence” such that the amount in controversy may exceed $75,000. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001) (citing cases). Thus, when the proponent of federal jurisdiction is the party that does not need it, mere allegations suffice; but when the proponent of federal jurisdiction is the party in whose interest diversity jurisdiction was created, actual proof of jurisdictional facts is required, at a stage in the litigation when little actual evidence is yet available. This set of rules bears no evident logical relation either to the purpose of diversity jurisdiction, or to the principle that those who seek to invoke federal jurisdiction must establish its prerequisites. See generally Alice M. Noble-Allgire, Removal of Diversity Actions When the Amount in Controversy Cannot be Determined from the Face of Plaintiffs Complaint: The Need for Judicial and Statutory Reform to Preserve Defendant’s Equal Access to Federal Courts, 62 Mo. L.Rev. 681 (1997). The requirement that a defendant must prove facts in support of the amount in controversy by a “preponderance of the evidence,” which derives from McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), raises a further puzzle: in most removal cases, there is little “evidence” one way",
"claim in federal court, the sum claimed by the plaintiff controls for the purpose of assessing whether the amount-in-eontroversy requirement contained in 28 U.S.C. § 1332(a)(1) is satisfied, so long as the amount claimed appears to have been made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Such a case will not be dismissed for lack of diversity jurisdiction unless the defendant can demonstrate to a “legal certainty” that the plaintiff was in error regarding the claimed amount-in-controversy. Id. at 289, 58 S.Ct. at 590. The “legal certainty standard” also applies when the plaintiff originally files her complaint in state court alleging a specific amount of damages and the defendant removes the case to federal court. Gafford v. General, Elec. Co., 997 F.2d 150, 157 (6th Cir.1993). Normally, then, if a plaintiff claims in good faith an amount-in-controversy exceeding $75,000, federal jurisdiction is obtained. The standard differs, though, “where the plaintiff seeks to recover some unspecified amount that is not self-evidently greater or less than the federal amount-in-controversy requirement.” Id. at 158 (citation omitted). In such eases, “the defendant must prove, ‘more likely than not,’ that the plaintiffs claims meet the federal amount-in-controversy requirement .” Id. (granting a motion for reconsideration where the defendant satisfied its burden on removal of showing the plaintiffs claims exceeded the amount-in-controversy requirement) (citation omitted). The court applies that preponderance of the evidence standard herein, since the Plaintiffs’ claims for fraud (which would allow recovery of punitive damages) and for attorney’s fees make it impossible to say they seek to recover an amount self-evidently less than $75,000. See, Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990) (applying the preponderance of the evidence standard in finding the defendant had shown the case met the amount-in-controversy requirement). Thus, the court must remand this action unless AOL can show by a preponderance of the evidence that the Plaintiffs’ claims meet the amount-in-controversy requirement. II. LAW AND ANALYSIS A. Amount-in-Controversy in Class Claims 1. Aggregation of Class Claims The Plaintiffs do"
] |
Dhupelia) and alleged everything included in the complaint at issue here. Shortly after dismissing this case, the district court consolidated the remaining complaints and enlisted counsel to assist Young. Even a lawyer, though, could not forestall the eventual grant of summary judgment for the defendants, and when Young appealed we ultimately dismissed his appeal under Circuit Rule 3(b) for failure to pay the required docketing fee. It is plain, then, that this fourth complaint would promptly be dismissed on grounds of claim preclusion if we were to reinstate Young’s complaint and remand to the district court. See, e.g., Cent. States, S.E. & S.W. Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002); REDACTED Bethesda Lutheran Homes and Services, Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001). AFFIRMED.
|
[
"§ 1132(c)(3). The district court dismissed Simon’s ERISA claims on the grounds of res judi-cata and collateral estoppel, noting that Simon had brought a similar claim against the ALLCARE Plan in an earlier lawsuit filed in the Central District of California. In that case, Simon sued 1600 defendants, including the ALLCARE Plan, for recovery of ERISA claims assigned to him by Humanistic and other health care providers. The district court dismissed Simon’s suit on the ground that Simon — as a third party claim assignee who was not a health care provider — did not have standing to sue under ERISA, and the Ninth Circuit affirmed. See Simon v. Value Behavioral Health, Inc., 955 F.Supp. 93 (C.D.Cal.1997), aff'd, 208 F.3d 1073 (9th Cir.2000). The district court in the present case noted that Simon was raising the same issues against the same defendant and his claims therefore were barred by res judicata and collateral estoppel. The district court allowed Simon to amend his complaint in order to allege violations of state and common law such as breach of contract, prom issory estoppel, fraud, conspiracy, and deceptive trade practices. The district court then dismissed those claims as untimely or preempted by ERISA. On appeal Simon devotes much of his brief to arguing that the decisions of the Central District of California and the Ninth Circuit that he lacked standing to sue under ERISA were incorrect. Simon’s argument misses the point. The doctrine of res judicata bars relitigation of a claim for relief decided on the merits in a previous suit involving the same parties or their privies. See Bethesda Lutheran Homes & Serv., Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001); Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir.1995). Simon does not dispute that this suit raises the same ERISA claim against the ALL-CARE Plan as his suit filed in the Central District of California and therefore offers nothing to dispel us of the conclusion that res judicata bars his ERISA claim. Furthermore, res judicata also bars Simon’s state and common law claims because Simon could have"
] |
[
"(7th Cir.1997). It bars a subsequent suit if the claim upon which the suit is based arises from the “same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment.” Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir.1999). The three requirements of claim preclusion under federal law are: (1) an identity of parties or their privies; (2) an identity of causes of action; and (3) a final judgment on the merits. Central States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002). When these elements are satisfied, the judgment in the earlier suit bars further litigation of issues that were either raised or could have been raised therein. Kratville v. Runyon, 90 F.3d 195, 197-98 (7th Cir.1996). Although the basic rule is that claim preclusion is an affirmative defense, 18 Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4405 (1981), the Court of Appeals for the Seventh Circuit has held that a court may raise an affirmative defense on its own if it is clear from the face of the complaint that the defense applies. Gleash v. Yuswak, 308 F.3d 758, 760-61 (7th Cir.2002). In Borzych, 03-C-0575-C, June 11, 2004,1 dismissed plaintiffs claims with prejudice upon stipulation of the parties. Such a dismissal is treated as a final judgment on the merits for purposes of claim preclusion. 18 Moore’s Federal Practice, § 131.30[3][c] (3d ed.2004). See also Matter of Energy Coop., Inc., 814 F.2d 1226, 1234 (7th Cir.1987) (“suit was dismissed ‘with prejudice,’ indicating that the order barred any subsequent suits on the same cause of action.”). Cf. 18 Moore’s Federal Practice § 132.03[2][I] (3d ed.2004) (consent judgments do not satisfy the “actually litigated” requirement necessary under the doctrine of issue preclusion, or non-mutual claim preclusion). I conclude that the earlier suit prevents plaintiff from raising this claim in this case. Plaintiff will not be allowed to proceed against defendants Frank or Casperson on his claim that the denial of the texts “Tower of Wotan” and",
"only conclusory allegations as against those two defendants. We agree with Arthur Young and Raymond that the complaint includes only conclusory allegations of fraudulent concealment as against Arthur Young and Raymond. Rule 9(b), Fed.R.Civ.P., requires that the elements of fraud be pleaded with particularity. Accordingly, we affirm the judgment of the district court to the extent that it dismissed the complaint with respect to Arthur Young and Raymond, but we hold that on remand Summer be granted leave to amend to assert more particularized allegations as against Arthur Young and Raymond, if he can do so. See 2A Moore’s Federal Practice, K 9.03 (indicating that dismissal for failure to comply with Rule 9(b) is almost always with leave to amend). III. THE OTHER ISSUES ON APPEAL Our disposition necessarily supplants the district court’s determination that the complaint was without merit and that the defendants were entitled to attorney’s fees. We therefore vacate the award of attorney’s fees, which also makes it unnecessary for us to address the issues on cross-appeal relating to the amount of attorney’s fees. Likewise, we reinstate the pendent state claims. IV. CONCLUSION We affirm the district court’s dismissal of the § 11 and § 12(2) claims as against all defendants. As against all defendants except Arthur Young and Raymond, we reverse the district court’s dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims and remand for further proceedings not inconsistent with this opinion. As to Arthur Young and Raymond, we affirm the dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims, but direct that leave to amend be granted. The district court’s award of attorney’s fees is vacated. The pendent state claims are reinstated. All costs of this appeal shall be taxed against appellees. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . The allegations of concealment are not contained within each and every count of the complaint; however, the allegations are contained at various points in the complaint. We believe it would be contrary to the liberal reading which we must give to a complaint",
"summary judgment for the defendants instead of dismissing the due process claim. Curiously, following the district court’s dismissal of the balance of his third amended complaint, Young filed a motion for summary judgment on the claims that had been dismissed. Young had not sought leave to file such a motion and the district court granted defendants’ motion to strike it as an untimely and thus improper filing. The district court subsequently denied Young’s motion to reconsider the order striking his motion for summary judgment. Young’s appeal acknowledges that the balance of his third amended complaint was dismissed pursuant to F.R.C.P. Rule 12(b)(6), yet throughout his brief he characterizes this as an appeal of the district court’s denial of his motion for summary judgment. However that motion was struck and Young has not pursued any argument that the district court abused its discretion by doing so. DeBruyne v. Equitable Life Assur. Soc. of the U.S., 920 F.2d 457, 470 (7th Cir.1990) (denial of motion to reconsider reviewed under abuse of discretion standard). Because the court struck Young’s motion for summary judgment there is no denial of plaintiffs motion for summary judgment for this court to consider. Thus, we consider Young’s appeal of the district court’s dismissal of the third amended complaint and its entry of summary judgment for the defendants on the due process claim to the extent those issues were properly before the court. II. A. Jurisdiction Before we consider whether the district court correctly decided the issues before it, we must ascertain whether those issues were in fact properly before the court. If the court lacked subject-matter jurisdiction over the claim then even an appropriate analysis on the merits is moot. And because jurisdiction cannot be waived by the parties, we must confront the issue even where (as here) the parties have not. Levin v. Attorney Registration and Disciplinary Comm’n, 74 F.3d 763, 766 (7th Cir.1996); Ritter v. Ross, 992 F.2d 750, 752 (7th Cir.1993) (raising jurisdictional question sua sponte), cert. denied, — U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994). The jurisdictional impediment to this case is",
"598 F.2d 1050, 1051 (7th Cir.1979). He has not intimated how he intends to cure those deficiencies; nor has he offered a proposed amended complaint. In fact, the instant motion and memorandum strongly suggest that many if not all of the same defective claims would be resurrected were we to launch still another round of pleading. I do not think it would be an appropriate exercise of discretion to permit this, and I do not think the authorities in this circuit mandate it, particularly where the plaintiff is represented by counsel. See, e.g., Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1243-44 (7th Cir.1983); Jafree, supra, at 644-45. A plaintiff who has three lawyers working for him is not entitled to the same solicitude as one who is pro se, and in the former situation there are stricter limits on allowing a plaintiff to file complaint after complaint until he finally hits on something that will withstand a motion to dismiss. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (pleadings filed by pro se prisoner litigants held to “ ‘less stringent standards than formal pleadings drafted by lawyers’ ”) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); U.S. General, supra, at 1053; Hernas v. City of Hickory Hills, 517 F.Supp. 592, 593 (N.D.Ill.1981); Crumpacker, supra, at 330 & n. 7; Sell, supra, at 321; Palmer v. Coons, 581 F.Supp. 1160, 1162 (D.Va.1984). The second prong of the plaintiff’s motion for reconsideration concerns the sanction imposed under the amended version of rule 11. The plaintiff’s lawyers say such a sanction is not appropriate because they did extensive research before filing the amended complaint and thought they had adequate legal grounds for the multitude-of claims they made. They also point to the statement in the advisory committee’s notes which says the rule is not intended to chill an attorney’s enthusiasm or creativity. These arguments lack merit. In deciding to award a sanction in the amount of only one third of the defendants’ fees and costs",
"Inc., 209 F.3d 1064, 1067 (8th Cir.2000); Badger Pharm., Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 625 (7th Cir.1993); Davis, 929 F.2d at 1517; Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 (11th Cir.1982); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978), vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979); 3 Moore’s Federal Practice ¶ 15.08(7) (1974). The Fourth Circuit has described this rule as “an exception to the general rule of waiver.” Young, 238 F.3d at 573. We find the reasoning in some of those cases and in some of our own criticizing our rule to be persuasive. First, our current rule is unfair to litigants. For the plaintiff whose complaint has been dismissed, the rule is not merely overly “mechanical,” see 6 Wright & Miller, supra, § 1476; it creates a “Hobson’s choice[,j ... a patently coercive predicament” between amending the complaint— thereby forgoing the chance to appeal the dismissal of some claims — and appealing the dismissal of the claims in the original complaint — thereby forgoing the chance to add or replead claims that the plaintiff would otherwise be allowed to add. In re Atlas Van Lines, 209 F.3d at 1067; see Davis, 929 F.2d at 1518 (“[A] rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit to the opposing party.”) (footnote omitted). In practice, however, the choice for counsel is between failing to preserve issues for appeal and risking sanctions by realleging dismissed claims. See Parrino, 146 F.3d at 704. The risk of sanctions is not merely hypothetical. See, e.g., Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir.2011) (affirming district court’s inherent power to control its docket by dismissing entire complaint for failure to follow instructions given with leave to amend); Johnson ex rel. Wilson v. Dowd, 345 Fed.Appx. 26, 30 (5th Cir.2009) (approving Rule 11 sanctions for counsel who realleged claims against",
"After the district court dismissed Long’s claims, Long immediately filed an identical suit for damages in an Illinois Circuit Court. In that case, the defendants also filed a motion to dismiss Long’s complaint, asserting, in part, that the suit could only be brought before the original judge who signed the eviction order. The state court rejected this argument and denied the relevant portion of the defendants’ motion to dismiss. In reaching this outcome, the court concluded that Long’s complaint demonstrated that the defendants engaged in “fraud that actually prevented Long from participating in trial and circumvented a trial on the merits of her eviction.” Accordingly, the court concluded that Long was properly before the court “because a void judgment may be attacked at any time, in any court, either directly or collaterally.” II. Analysis As we shall see, the district court in this case was presented with very difficult and close questions of law. The defendants in this case contend that the district court properly dismissed Long’s suit for two reasons. The defendants first assert that the district court correctly dismissed Long’s suit for lack of subject matter jurisdiction based on the Rooker-Feldman doctrine. Alternatively, the defendants argue that even if the district court could exercise subject matter jurisdiction over Long’s complaint, the principle of res judicata prevents the district court from addressing her claims. A. Standard of Review When reviewing a dismissal for lack of subject matter jurisdiction, we note that a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Rueth v. United States EPA, 13 F.3d 227, 229 (7th Cir.1993). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979)). We review a district court’s dismissal of an action under Rule 12(b)(1) de novo. See Selbe v. United States, 130",
"because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees — resulting in two lawsuits instead of just one. III. CONCLUSION We hold the failure of Appellees to offer judgment prevented the mooting of Appellants’ FDCPA claims. The district court erred in concluding Appellees’ offers of settlement were for full relief such that Appellants’ cases were mooted. We reverse the district court’s dismissal of Appellants’ claims for lack of subject matter jurisdiction, and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . Upon Appellants’ motion, we consolidated the three cases. . Appellees are ER Solutions, Inc., ARS National Services, Inc., and Collection Information Bureau, Inc. . \"A debt collector can be held liable for an individual plaintiffs actual damages, statutory damages up to $1,000, costs, and reasonable attorney’s fees.” Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.2009) (citing 15 U.S.C. § 1692k(a)(1)-(3)). . Zinni also alleged ER Solutions violated the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55-559.785. ER Solutions offered to settle Zinni's FCCPA claim for $1,001, plus reasonable attorneys' fees and costs. The district court declined to exercise supplemental jurisdiction over this issue. .In its brief, ER Solutions asserts \"[wjhile not a part of the record, ER Solutions notifies the Court that it tendered",
"F.2d 112, 118 (3d Cir.1993). “In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). All reasonable inferences are drawn in favor of the plaintiff. Kost, 1 F.3d at 183. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000); In re OODC, LLC, 321 B.R. 128, 134 (Bankr.D.Del.2005) (“Granting a motion to dismiss is a ‘disfavored’ practice.”). 2. Rule 8(a) Rule 8(a) of the Federal Rules of Civil Procedure requires only that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a). The statement must provide the defendant with fair notice of the claim filed against it. See, e.g., Williams v. Potter, 384 F.Supp.2d 730, 733 (D.Del.2005) (“Vague and conclusory factual allegations do not provide fair notice to a defendant.”) citing United States v. City of Phila., 644 F.2d 187, 204 (3d Cir.1980). 3. Rule 9(b) Dismissal Where a complaint asserts a claim for fraud, however, the standard for pleading is higher. The complaint must set forth facts with sufficient particularity to apprise the defendant of the charges against him so that he may prepare an adequate answer. In re Global Link Telecom Corp., 327 B.R. 711, 718 (Bankr.D.Del.2005). To provide fair notice the complainant must go beyond merely parroting statutory language. Id.See also In re Circle Y of Yoakum, Texas, 354 B.R. 349, 356 (Bankr.D.Del.2006). A bankruptcy trustee, as a third party outsider to the debtor’s transactions, is generally afforded greater liberality in pleading fraud. Global Link, 327 B.R. at 717. B. Berkshire and Trickey’s Motion to Dismiss 1. Breach of Fiduciary Duty Berkshire and Trickey contend that the Trustee fails to state a claim for breach of fiduciary duty against",
"are competent in determining when state-law claims are preempted by federal law, removal to a federal forum based on the doctrine of complete preemption has been the exception, not the rule. Recognizing that the complete preemption doctrine works to trump the well-pleaded complaint rule as well as the maxim that a plaintiff is the master of the complaint and may avoid a federal forum by relying exclusively on state law, the Supreme Court expanded the doctrine only “hesitatingly” when there was a clear showing of congressional intent to permit removal. BLAB T.V., 182 F.3d at 856. Since we find no clear congressional intent to permit removal under §§85 and 86 of the NBA, we therefore hold that while these sections may provide a defense to state-law usury claims, they do not accomplish complete preemption so as to permit removal. We therefore REVERSE the district court’s order denying the plaintiffs’ motion to remand and REMAND to the district court for further proceedings consistent with this opinion. . In a tax refund anticipation loan, a customer receives the amount of her anticipated tax refund, less fees charged by the lender and the tax preparation service, and in return authorizes the government to deposit the tax refund directly into an account at the bank to repay the loan. . The plaintiffs alleged that the defendants charged excessive interest in violation of Alabama Code § 8-8-1 and the common-law usury doctrine. In addition to the usury claims, the complaint included claims for intentional misrepresentation, suppression of material facts, and breach of fiduciary duly. . Section 85 provides, \"Any [national bank] may take, receive, reserve, and charge on any loan or discount made ... interest at the rate allowed by the laws of the State ... where the bank is located....” 12 U.S.C. § 85. .Section 86 provides, The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has",
"County Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984)). “In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). All reasonable inferences are drawn in favor of the plaintiff. Kost, 1 F.3d at 183. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000); In re OODC, LLC, 321 B.R. 128, 134 (Bankr.D.Del.2005) (“Granting a motion to dismiss is a ‘disfavored’ practice ....”). 2. Rule 8(a) Rule 8(a) of the Federal Rules of Civil Procedure requires only that a Complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The statement must provide the defendant with fair notice of the claim filed against it. See, e.g., Williams v. Potter, 384 F.Supp.2d 730, 733 (D.Del.2005) (“Vague and conclu-sory factual allegations do not provide fair notice to a defendant.”) (citing United States v. City of Phila., 644 F.2d 187, 204 (3d Cir.1980)). 3. Rule 9(b) Dismissal Where a complaint asserts a claim for fraud, however, the standard for pleading is higher. The complaint must set forth facts with sufficient particularity to apprise the defendant of the charges against him so that he may prepare an adequate answer. In re Global Link Tele-com Corp., 327 B.R. 711, 718 (Bankr.D.Del. 2005). To provide fair notice, the complainant must go beyond merely parroting statutory language. Id. See also In re Circle Y of Yoakum, Texas, 354 B.R. 349, 356 (Bankr.D.Del.2006). A bankruptcy trustee, as a third party outsider to the debt- or’s transactions, is generally afforded greater liberality in pleading fraud. Global Link, 327 B.R. at 717. B. Greenwich’s Motion"
] |
"been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage, Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they ""suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing REDACTED LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28."
|
[
"circumstances, a plaintiff must look to other service of process provisions, notably those specified in Fed.R.Civ.P. 4 or incorporated therein from state law to satisfy this requirement. 2. Applying Section 12 to the Jurisdiction Defendants In view of this construction of Section 12’s service of process provision, we cannot sustain the district court’s exercise of personal jurisdiction over CORD and the nine remaining hospital defendants. The district court expressly ruled that these jurisdiction defendants did not satisfy Section 12’s venue provision because they did not transact business in the district. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 263-71. Plaintiffs do not challenge this venue ruling on appeal. Accordingly, for the reasons just discussed in the previous subsection of this opinion, we. conclude that, because plaintiffs cannot establish venue in the Western District of New York under Section 12, they cannot avail themselves of that statute’s worldwide service of process provision to establish personal jurisdiction in that district. We, therefore, affirm dismissal of plaintiffs’ Second Amended Complaint against CORD and the hospital defendants for lack of personal jurisdiction. B. Neither the Clayton Act nor 28 U.S.C. § 1391(b) Supports Venue in the Western District of New York with Respect to ABEM Although ABEM did not raise a personal jurisdiction challenge in the district court, and does not do so on appeal, it does challenge the district court’s conclusion that venue over this action properly resides in the Western District of New York. See Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 258-63. Accordingly, it submits that lack of venue provides an alternative ground for affirming the judgment of dismissal. We agree. Because ABEM’s venue challenge is based upon essentially undisputed facts, we review the district court’s venue determination de novo, see Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir.2005), and conclude that venue is not proper under either the Clayton Act or the general venue statute. 1. Venue Under Section 12 of the Clayton Act The district court concluded that plaintiffs’ claims against ABEM were properly venued in the Western District of"
] |
[
"be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they \"suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 423 (2d Cir. 2005), LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant",
"the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant to assertions of specific jurisdiction. Id. at 759 n.13. . While LGMF suggests that English law may govern whether the Court may pierce LGMF’s corporate veil, LGMF has not provided any indication that there is a \"true conflict of laws” between English law and New York law on this point. In the absence of a true conflict, the Court will apply New York law. See Int’l Equity Invs., Inc., 475 F.Supp.2d at 458-59 (applying New York law to veil-piercing analysis in the absence of any identified conflict between New York and English law). Likewise, although Plaintiffs suggest that Federal common law, rather than New York law may govern, there is no discernable difference with respect to the issues here. See Wajilam Exports (Singapore) Pte. Ltd. v. ATL Shipping Ltd., 475 F.Supp.2d 275, 284 n.10 (S.D.N.Y. 2006) (Federal common law and New York law of veil-piercing are not \"meaningfully” distinct); see also Lakah, 996 F.Supp.2d at 260 (\"the Second Circuit’s common law standard [for veil piercing] is taken directly from New York law”).",
"akin to a claim of \"insider trading,” and even if they were, the Fixing Members have not argued that the facts, viewed in the light most favorable to the Plaintiffs, demonstrate that the Fixing Members were trading on information that was \"lawfully obtained.” . The SAC’s relatively thin principal-agent allegations reflect in part the posture of this case. None of the Jane Doe defendants, presumably employees of the Fixing Members, has been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage. Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Members violated the CEA and did so acting within the scope of their employment. . The first Interim Lead Plaintiffs filed a complaint in this action on July 25, 2014. See Complaint, Nicholson v. Bank of Nova Scotia, No. 14-cv-5682 (VEC) (S.D.N.Y. July 25, 2014) (Dkt. 1). . Defendants argue that Plaintiffs cannot claim ignorance of the alleged manipulation because four of the named Plaintiffs filed class action lawsuits in 2010 and 2011 against HSBC and others for suppressing silver prices. Defs.’ Mem. at 49 n.34. As with the 2008 CFTC investigation, however, those complaints involved substantially different misconduct, which apart from alleging price suppression, had nothing to do with the manipulation of the Silver Fixing alleged here. . Defendants’ argument that the Plaintiffs were on inquiry notice due to obvious \"red flags” regarding the lack of accountability and oversight over the Silver Fixing is misplaced. Defs.' Mem. at 48. Just as these structural factors were not sufficient to constitute \"plus factors” in support of Plaintiffs’ con spiracy claims, neither are they sufficient to put Plaintiffs on inquiry notice. . Notably, Plaintiffs do not claim to be clients of UBS who suffered losses as a result of UBS front-running their orders or trigger-mg their stop loss orders. See UBS FINMA Report at 12. Rather Plaintiffs allege that they \"suffered harm in the sales they conducted on days where the price of silver was artificially lower because of Defendants’ manipulative conduct” in artificially suppressing the price of silver",
"can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the PM Fixing are simply inadequate to create a plausible inference of conspiracy. Plaintiffs’ CEA claims fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played a role in the Fixing Banks’ conspiracy to suppress gold prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the down ward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conelusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Banks’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken",
"alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed the Fix Price are sufficient for CEA standing purposes. Compare In re Amaranth Natural Gas Commodities Litig., 269 F.R.D. 366, 379-80 (S.D.N.Y. 2010) (in the context of CEA class certification, “case law suggests that because plaintiffs transacted at artificial prices, injury may be presumed”) with LIBOR II, 962 F.Supp.2d at 620-21 (no standing where Plaintiffs failed plausibly to allege that they transacted on days on which prices were artificial or that the alleged artificiality was adverse to their positions). VI. Plaintiffs Adequately Allege Price Manipulation Plaintiffs assert claims under CEA Sections 9(a)(2) and 6(c)(3), 7 U.S.C. §§ 9(3), 13(a)(2), and CFTC Rule 180.2, which makes it unlawful for “any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce.” Although manipulation claims that sound in fraud are evaluated under the more stringent pleading requirements of Fed. R. Civ. P. 9(b), In re Amaranth Nat. Gas Commodities Litig., 730 F.3d 170, 180-81 (2d Cir. 2013), courts in this District have generally found that “fraud is not a necessary element of a",
"(or could be) named as defendants on that basis. Finally, while FINMA fined UBS for misconduct in the FX and precious metals markets, nothing in FINMA’s findings plausibly supports Plaintiffs’ conspiracy allegations here. In particular, FINMA’s findings that UBS shared order information with “third parties” and engaged in front-running and other conduct against its clients’ interests, does not support Plaintiffs’ allegation that UBS conspired with the Fixing Banks (or others) to manipulate the Gold Fixing. SAC ¶¶ 301-02. At best, Plaintiffs allege that UBS engaged in parallel conduct by offering (along with the Fixing Banks) below-market quotes that coincided with downward swings in the price of gold around the PM Fixing. SAC ¶¶ 250-67. But allegations of parallel conduct “must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557, 127 S.Ct. 1955; see also In re Elevator Antitrust Litig., 502 F.3d at 51 (“[Similar pricing can suggest competition at least as plausibly as it can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the PM Fixing are simply inadequate to create a plausible inference of conspiracy. Plaintiffs’ CEA claims fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played a role in the Fixing Banks’ conspiracy to suppress gold prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the down ward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conelusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Banks’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is",
"likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken place, however, a plaintiff need only make a prima facie showing of jurisdiction—through “legally sufficient allegations”—to survive a Rule 12(b)(2) motion. In re Parmalat Sec. Litig., 376 F.Supp.2d 449, 452 (S.D.N.Y. 2005). The Court will construe “all pleadings and affidavits in the light most favorable to the plaintiff’ and resolve “all doubts in the plaintiffs favor.” Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citations omitted). On the other hand, the Court need not accept either party’s legal conclusions as true, nor will it draw “argumentative inferences” in either party’s favor. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Plaintiffs contend that the Court has personal jurisdiction over the Fixing Banks (and LGMF) under Federal Rules of Civil Procedure 4(k)(1) and 4(k)(2) or under the Sherman Act and the CEA. Pl.’s Mem. Opp. LGMF at 5, 8, 9. LGMF concedes that personal jurisdiction under the CEA extends to the fullest extent permitted by the Due Process Clause. LGMF Mem. at",
"single case from this District in which a court has done so at the pleading stage. Moreover, disregarding all such analyses here would effectively foreclose Plaintiffs’ ability to state an antitrust claim for manipulation of the Gold Fixing unless they had direct evidence, which is generally not required at the pleading stage. See Anderson News, 680 F.3d at 183-84. While the Court evaluates Plaintiffs’ analysis-based allegations ■with as much scrutiny as any other, such allegations cannot be wholly disregarded. In short, the Court finds that Plaintiffs have plausibly alleged an antitrust conspiracy from 2006 through 2012 with respect to the Fixing Banks. Plaintiffs adequately allege that the Fixing Banks, horizontal competitors in the relevant markets for physical gold and gold derivatives, conspired artificially to suppress the Fix Price, causing Plaintiffs to suffer losses on their Gold Investments. Because Plaintiffs have sufficiently pled a per se violation, they “need not separately plead harm to competition.” In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F.Supp.3d at 594 (citing Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)). The Fixing Banks’ Motion to Dismiss Plaintiffs’ antitrust claims is, therefore, denied with respect to Plaintiffs’ claim for conspiracy in restraint of trade from 2006 through 2012 and otherwise granted with respect to the balance of the Class Period. V. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” LIBOR II, 962 F.Supp.2d at 620 (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’",
"551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)). The Fixing Banks’ Motion to Dismiss Plaintiffs’ antitrust claims is, therefore, denied with respect to Plaintiffs’ claim for conspiracy in restraint of trade from 2006 through 2012 and otherwise granted with respect to the balance of the Class Period. V. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” LIBOR II, 962 F.Supp.2d at 620 (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed",
"contract, project or transaction. Because there was no purchaser on the other side of the Fixing auction, and because Plaintiffs allege no additional facts in support of their bid rigging claim, the Fixing Members’ Motion to Dismiss Plaintiffs’ bid rigging claim is granted. VI. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” In re LI-BOR-Based Fin. Instruments Antitrust Litig. (LIBOR II), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013) (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Members argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they transacted in the “moments immediately before and after the Silver Fix.” Defs.’ Mem. at 45. But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the Fixing window. SAC ¶¶ 173-76 & Figs. 33-34. While the Fixing Members correctly point out that Plaintiffs’ allegations of “persistence” are in tension with their allegations that the Fixing marked a uniquely dysfunctional period of the trading day, Defs.’ Mem. at 45, they are not necessarily incompatible. Viewing the allegations in the light most favorable to the Plaintiffs, the Court could find that the Plaintiffs have adequately alleged that, on days that Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold a particular quantity of silver futures on specifically identified dates when Defendants are"
] |
number of Title VII cases, beginning with Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), could perhaps be cited in support of such liability, including our own Doe on behalf of Doe v. St. Joseph’s Hospital, 788 F.2d 411, 422-23 (7th Cir.1986), and that Title VII precedents have been influential in the interpretation of the age discrimination law. But the cases in question are ones in which the defendant so far controlled the plaintiffs employment relationship that it was appropriate to regard the defendant as the de facto or indirect employer of the plaintiff, as where a hospital prevents a nurse from being employed by a hospitalized patient. Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987); REDACTED Indirect employment is a more limited theory of liability than aiding and abetting. A consultant who advised an employer on how to get rid of its older employees without creating evidence of a violation of the age discrimination law would be an aider and abettor but not an indirect employer, for he would not control the employment relationship, as the hospitals in the Sibley and Doe cases did. We need not hold definitively that aider and abettor liability does not exist under the ADEA (though only an aider and abettor who is itself an employer, albeit not the employer of the employee discriminated against, could possibly be squeezed into the statute). It would make no difference in this case. For
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[
"of nature or otherwise fantastic, or irreconcilably in conflict with indubitable documentary or physical evidence, stipulations of fact, admissions, or evidence of equivalent certainty. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). None of these circumstances is present in this case. Even if we could say that Lehner was lying, this would not carry the day for Bullard-indeed, might advance his case very little. Lehner was not an employee o Sercon. Since his employer, Bethlehem Steel Corporation, is not a defendant, we need not decide whether Bethlehem might have been the indirect employer of both Lehner and Bullard and hence both a proper defendant in a Title VII suit (see the discussion of that issue in Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987)) and one chargeable with responsibility for Lehner's conduct. Whether Lehner had good or bad, racist or innocent, reasons for choosing Bullard to lay off when it became necessary to lay off a member of the crew at the coke ovens, the layoff of Bullard was beyond Sercon's control. Sercon's culpability, if any, depends on what it did when confronted by Lehner's action. Sercon apparently was doing other work at Bethlehem's Burns Harbor plant that Bullard could have been assigned to; if the reason, or a reason, for not assigning him-for instead placing him on permanent layoff status-was that he was black, Ser-con was guilty of racial discrimination. Bullard argues that since there is no evidence that Sercon itself regarded him as a slow or otherwise substandard worker, its failure to reassign him to work elsewhere in the plant when Lehner ejected him from the coke ovens must have been based on his race. But this is a non sequi-tur. The fact that a black worker is fired or laid off without good cause does not establish racial discrimination. It may in some cases be evidence of discrimination, see, e.g., Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir.1987); cf. Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 18 (7th"
] |
[
"§ 2000e(b). We therefore need not decide when, if ever, an employer covered by the statute can be held liable for conduct toward someone who is not its employee; but we note in passing that Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir. 1973), and Doe v. St. Joseph’s Hospital, 788 F.2d 411, 421-25 (7th Cir.1986), cases which support liability for interference by hospitals on grounds of sex (or other grounds deemed discriminatory by Title VII) with their patients’ retaining a nurse or doctor, are distinguishable. They involve an indirect employer-employee relationship between the hospital and the nurse (or doctor); there is no such relationship between a referral agency and the workers it refers. That leaves the question whether Altru was an employment agency. It was if it “regularly [undertook] ... to procure employees for an employer or to procure for employees opportunities to work for an employer.” 42 U.S.C. § 2000e(c) (emphasis added). The reference is to the statutory definition of employer. Since — according to affidavits that Shrock failed to rebut in the manner prescribed by Fed.R.Civ.P. 56 — Altru refers nurses only to individual patients and to persons (mainly doctors) acting on behalf of individual patients, and since neither patient nor doctor is a Title VII employer, the district court was unquestionably correct in granting Altru’s motion for summary judgment and dismissing the complaint. We turn to the cross-appeal. In light of Judge McMillen’s statement that Altru was probably entitled to an award of attorney’s fees (not under 42 U.S.C. § 1988, though, for that statute does not apply to Title VII, but under 42 U.S.C. § 2000e-5(k), a materially identical provision), Judge Plunkett’s action in denying, without any statement of reasons, the modest award requested ($2,524.50) puzzles us. The fact that Shrock was a Title VII plaintiff would not automatically disentitle Altru to an award of attorney’s fees; a defendant in a Title VII suit is entitled to such an award if the plaintiff’s suit is “frivolous, unreasonable, or without foundation.” Christians-burg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54",
"not an employee of the hospital and, thus, was an independent contractor — would have effected precisely the opposite result from that reached in Doe’s majority opinion. On the other hand, it could be argued that a physician who enjoys hospital staff privileges does, under certain factual situations, share an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection. Cf. Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987) (implying that Doe and Sibley may be factually distinguishable from the rule that Title VII does not cover independent contractors in that there may be an “indirect employer-employee relationship” between the hospital and the physician or nurse). Dr. Alexander attempted just this at summary judgment by arguing that on the basis of the undisputed facts, he was an employee of Rush North Shore as a matter of law. Dr. Alexander’s claim, however, is untenable in light of our employee/independent contractor analysis in Ost. There, we applied a common law test, which “involves the application of the general principles of agency to the facts,” Knight, 950 F.2d at 378, in order to determine whether Ost, a limousine driver, was an employee of the dispatching company or an independent contractor. Ost, 88 F.3d at 437-38. The test requires us to focus on five factors: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations. Ost, 88 F.3d at 438 (quoting Knight, 950 F.2d at 378-79). “Of [the] several factors to be considered, the employer’s right to control is the most important when determining whether an individual is an employee or an independent contractor.” Knight, 950 F.2d at 378; accord Ost, 88 F.3d at 438. Thus, “[i]f an employer has the right to control and direct the",
"Congress an intention to ere- ate, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer. Id. The court distinguished such “aiding and abetting” cases from cases such as Sibley, where the defendant, though not the plaintiffs employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiffs defacto or indirect employer. Id. In cases involving a defacto employer, the relationship of the parties should be regarded as an employment relationship and the provisions of the ADEA should apply to the de facto employer. Id. A de facto employment theory, the court noted, is a more limited and tenable theory than an “aiding and abetting” theory which would impose liability on any employer who adversely affects a plaintiffs employment with a third party. Id. This court finds the reasoning of the Seventh Circuit both persuasive and consistent with the Third Circuit’s position that the lack of an employment relationship between the plaintiff and the defendant will preclude liability under Title VII. See School District of Philadelphia, 911 F.2d at 891. It is also similar to the line drawn by the Ninth Circuit, which has subjected a defendant to the provisions of Title VII based on the degree of control it exerted over the hiring and supervision of the employer’s employees. See Ass’n of Mexicart-American Educators v. California, 231 F.3d 572, 582 (9th Cir.2000). Therefore this court holds that, in order to state a claim under the ADEA, a plaintiff must allege an actual or de facto employment relationship — past, present or prospective — with the defendant. In the present matter, Tyrrell has alleged only that he was a student at HACC. A community college does not have such control over a student’s work life that it can be considered his de facto employer. See Mangram v. General Motors, 108 F.3d 61 (4th Cir.1997) (distinguishing employees from students in a training program). Consequently, Tyrrell’s ADEA claim against HACC must be dismissed for failure to state a claim upon which relief",
"to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l) (emphasis added). It is clear from the language of the statute that Congress intended that the rights and obligations it created under Title VII would extend beyond the immediate employer-employee relationship. In Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), the District of Columbia Circuit faced a situation somewhat analogous to the one presented here. That case involved allegations by a self-employed male nurse that a hospital had refused to refer him to female patients in need of nursing services. Despite the absence of an employment relationship with the hospital, the plaintiff brought an action against the hospital under Title VII. In finding that the plaintiff had stated a claim the court of appeals held that parties other than a plaintiff’s actual or potential employer could be liable under Title VII if they control the plaintiff's access to employment and deny that access based on unlawful criteria. 488 F.2d at 1342. The court stated: Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Id. at 1341. This court and other courts have followed Sibley. Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir.1988). In Doe v. St. Joseph’s Hospital, 788 F.2d 411 (7th Cir.1986), the defendant hospital had suspended",
"strict employment relationship requirement that would immunize from liability the discrimination condemned in Sibley. In EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir.1995), the court rejected the proposition that the ADEA applied to “employers” other than the employer of the plaintiff. EEOC v. State of Illinois, 69 F.3d 167, 169 (7th Cir.1995). The court argued that it makes little sense to assume that Congress extended liability only to persons who happen to be employers of third parties, rather than to all persons who improperly exercise control over a plaintiff’s employment: We think it very doubtful that laws which forbid employers to discriminate create a blanket liability to employees of other employers for interference with their employment relationships. It might be a good idea to impose liability on those who aid or abet violation of those laws, but what sense would it make to confine liability to persons or firms who happen to be employers? Since it would make little sense that we can see ..., we find it implausible to impute to Congress an intention to ere- ate, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer. Id. The court distinguished such “aiding and abetting” cases from cases such as Sibley, where the defendant, though not the plaintiffs employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiffs defacto or indirect employer. Id. In cases involving a defacto employer, the relationship of the parties should be regarded as an employment relationship and the provisions of the ADEA should apply to the de facto employer. Id. A de facto employment theory, the court noted, is a more limited and tenable theory than an “aiding and abetting” theory which would impose liability on any employer who adversely affects a plaintiffs employment with a third party. Id. This court finds the reasoning of the Seventh Circuit both persuasive and consistent with the Third Circuit’s position that the lack of an employment relationship between the plaintiff and the defendant",
"employer may not discriminate against a “qualified individual with a disability ... in regard to” specified enumerated aspects of employment. 42 U.S.C. § 12112(a). A number of cases, although not in this circuit, have interpreted analogous provisions of Title VII to apply to actions taken by a defendant against a plaintiff who is not technically an employee of that employer. For example, in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973), the court applied Title VII to a hospital which refused to assign a private male nurse to female patients even though the nurse was technically not an employee of the hospital but was an employee of a particular patient. We do not want to be understood as holding at this time that there is automatic coverage wherever one who is an employer of a requisite number of persons takes some action that affects the employee of another entity; a great deal may depend on circumstances. At the same time, we think it premature to rule out the possibility that when additional facts are developed, a claim under Title I analogous to that in Sibley might be made out. See also Christopher v. Stouder Memorial Hospital, 936 F.2d 870, 875 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991) (interpreting Title VII, court stated that “a plaintiff is protected if the'defendant is one who significantly affects access of any individual to employment opportunities”) (internal quotations and citations omitted); Doe on Behalf of Doe v. St. Joseph’s Hosp., 788 F.2d 411, 422 (7th Cir.1986) (argument that plaintiff is not an employee of defendant employer is not disposi-tive under Title VII because “[t]here are no indications that [language proscribing discrimination by an employer against] ‘any individual’ should be read to mean only an employee of an employer”). Plaintiffs alleged that defendants were “covered entities” for purposes of the ADA. Because the district court prematurely dismissed plaintiffs’ complaint without affording them an opportunity to address the issues upon which the district court relied for its dismissal, the record is not sufficiently complete for us to determine",
"the ADEA for the Agency Defendants, Plaintiffs assert that, even if Agency Defendants are not employers or employment agencies, they are liable because their alleged refusal to refer older writers for employment interferes with Plaintiffs’ employment opportunities. Plaintiffs’ argument is premised on the holdings in The Ass’n of Mexican-American Educators (“AMAE\") v. California, 231 F.3d 572 (9th Cir.2000) and Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973). These cases stand for the proposition that an entity may be liable under Title VII even if it is not a direct employer of the plaintiff, if it “interferes with an individual’s employment opportunities with another employer.” AMAE, 231 F.3d at 580 (quoting Gomez v. Alexian Bros. Hospital, 698 F.2d 1019, 1021 (9th Cir.1983)). In order for such liability to exist, however, the entity must have “actual ‘[c]ontrol over access to the job market.’ ” AMAE at 581 (quoting Sibley, 488 F.2d at 1341). In AMAE, the Ninth Circuit held that Title VII applied to the State of California, even though it was not the direct employer of the local school district, because of the level of control it exerted over the school district. In particular, California administers an allegedly discriminatory statewide examination, which all teachers must pass before being allowed to teach in California public schools. In Sibley, the court held that a hospital was liable for sex discrimination under Title VII for its refusal to refer a private male nurse for employment with female patients. The court described the employment structure of private nurses in the District of Columbia as follows: “[H]ospi-tal patients who require the services of a private nurse ask the Nursing Office of the hospital to communicate their need to one of the registries operating in the District ... When a patient at [defendant hospital] makes such a request, he or she is informed that neither the hospital nor the registry to which it will refer the offer of employment can discriminate on the basis of race, age or sex. The patient’s request is telephoned to the Professional Nurses’ Official Registry, which matches the request with the",
"order to maintain this action. Many courts reject the notion that Title VII requires a certain type of relationship between the defendant and a plaintiff suing under 42 U.S.C. § 2000e-2(a)(l). See Pardazi v. Cullman Medical Ctr., 838 F.2d 1155, 1156 (11th Cir.1988) (interfering with employment opportunity with third party suffices); Doe ex rel. Doe v. Saint Joseph’s Hosp., 788 F.2d 411, 422-25 (7th Cir.1986) (particularly at pleading stage the absence of an employment relationship is not dispositive); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983) (allowing claim to proceed even if plaintiff remains employed by his employer when defendant’s discriminatory decision to reject employer’s contract proposal causes plaintiff to lose opportunity to work as a director at defendant’s hospital); Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1340-43 (D.D.C.1973); but see Rivas v. Federacion de Asociacions Pecuarias, 929 F.2d 814 (1st Cir.1991) (Age Discrimination in Employment Act case). Title VII makes it an unlawful employment practice for an “employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). The statute does not specify that the employer committing the unlawful employment practice must employ the injured individual. If the Court were to accept Chrysler’s position that it is not a proper defendant, Chrysler could allow a hostile work environment to exist because of the peculiar circumstances of its relationship with Canteen, although it could not do so if King were in its own service. See Sibley, 488 F.2d at 1341. Chrysler cites cases from this circuit and others that refer to the need for an employment relationship, but these cases decide different issues. For example, the statute prohibits interference with plaintiff’s “employment.” Hence, plaintiff must have an employment relationship with some entity, not necessarily defendant. Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986). Chrysler relies on cases that address whether plaintiff is anyone’s employee, Knight v.",
"“employees”). Consequently, it remains uncertain whether an employee may bring suit under section 623(a) against an employer other than his own. This issue is also unsettled in the parallel Title VII context. In a leading case, the District of Columbia Circuit held that any employer possessing control over the plaintiffs access to employment with a third party may be liable under Title VII: [I]t would appear that Congress has determined to prohibit [an employer] from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973). Sibley involved a nurse who was paid directly by his patients but whose conduct and ability to secure clients were under the control of the defendant hospital. Id. A number of courts have followed Sibley, finding Title VII applicable wherever a defendant employer has control over the plaintiffs access to employment, even where the plaintiff is not employed by the defendant, but by a third party. See, e.g., Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291, 294 (11th Cir.1988) (endorsing Sibley); Hudson v. Radnor Valley Country Club, 1996 WL 172054, *4 (E.D.Pa.) (“A Title VII plaintiff may sue a defendant with whom he had no actual or prospective employment relationship if that defendant controlled the plaintiffs access to employment and then foreclosed that employment by unlawfully discriminating against the plaintiff.”) However, it does not appear that the Third Circuit has adopted Sibley’s expansive construction of the term “employer.” In United States v. Bd. of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882, 891 (3d Cir.1990), the Third Circuit held that the Commonwealth of Pennsylvania was not an “employer” of public school teachers — and hence was",
"basis of her membership in a protected class. 788 F.2d at 422-23 (relying on Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and Puntolillo v. New Hampshire Racing Comm’n, 375 F.Supp. 1089 (D.N.H.1974)). The partial dissent argued that it was impossible for the hospital to have interfered with Doe’s employment opportunities because, under the common law meaning of “employee,” Doe was not employed by her patients any more than she was employed by the hospital. Doe, 788 F.2d at 427 (Ripple, J., concurring in part and dissenting in part). The partial dissent maintained that Doe was instead an independent contractor and, thus, that she was precluded from bringing her suit against the hospital because she did not fall under Title VII’s protection. Id. To this, the majority responded that perhaps the common law employee/independent contractor dichotomy was inappropriate as applied to antidiscrimination legislation. Id. at 424-25 & n. 28. The majority concluded that dismissal of Doe’s claim was inappropriate even though she could not demonstrate an employer-employee relationship with either her patients or the hospital, so long as she could show that the hospital interfered in some way with her economic possibilities. Id. at 425. Doe’s conceptual underpinnings, however, can no longer hold fast after our more recent decisions in Knight v. United Farm Bureau Mut. Ins. Co., and Ost v. West Suburban Travelers Limousine, Inc. The Knight case concerned an insurance agent who brought a Title VII sex discrimination action against the insurance company with which she was affiliated. 950 F.2d at 377. Similarly, Ost involved an airport limousine driver who brought a Title VII sex discrimination claim against her dispatching company after the company terminated its business relationship with her. 88 F.3d at 436. In deciding both Knight and Ost, we looked — contrary to Doe’s assertion that the common law employee/independent contractor framework is inapplicable to a Title VII action — to whether under a test of common law agency principles the plaintiff was an employee of the defendant or an independent contractor. Knight, 950 F.2d at 378-81; Ost, 88 F.3d at 437-40. We then affirmed"
] |
that prosecutors enjoy absolute immunity in discharging that responsibility, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity. See Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); REDACTED cert. denied, 442 U.S. 930, 99-S.Ct. 2861, 61 L.Ed.2d 298 (1979). While the Supreme Court did not accept or reject the validity of this distinction in Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-995, it appeared willing to endorse the distinction in Harlow. 102 S.Ct. at 2735 n. 16. Since the duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function, Hardin is not entitled to absolute immunity in this case. This conclusion is buttressed by directly applying the criteria which the Supreme Court has found to be relevant in adjudicating immunity questions. A decision on immunity must be: Predicated upon a considered inquiry into the immunity historically accorded the
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[
"if it determines the record warrants such a ruling in light of this opinion or to allow Nevada Bell’s good faith defense to go to the jury. See Fountila v. Carter, 571 F.2d 487, 489-90 (9th Cir. 1978); Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1187, 1140 (9th Cir., cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974). IV. Appeal of Washoe Officials A. Prosecutorial Immunity The district court correctly concluded that Rose and Hicks did not enjoy the quasi-judicial immunity against suit afforded prosecutors performing quasi-judicial functions. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held a prosecutor immune from a § 1983 suit when respondent’s activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. Id. at 430 — 31, 96 S.Ct. at 995 (footnotes omitted). Although the Supreme Court did not consider immunity for activities which are not quasi-judicial, this court has held that if the prosecutor “committed acts, or authoritatively directed the commission of acts, which ordinarily are related to police activity as opposed to judicial activity, then the cloak of immunity should not protect them.” Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir. 1965). See Sykes v. California, 497 F.2d 197, 200-01 (9th Cir. 1974). The district judge found that Hicks and Rose acted in an administrative and not a judicial manner. He observed that they did not simply render legal advice to the Sheriff’s office, but instead joined in implementing the wiretap. The district judge noted, for example, that the court order authorized wiretapping by the District Attorney’s Office as well as by the Sheriff’s Office. We believe that the district judge properly concluded that the Imbler immunity did not apply. B. Good"
] |
[
"to absolute immunity can at most enjoy the protection of qualified immunity. See Harlow, 457 U.S. at 807, 102 S.Ct. at 2732. In restricting absolute immunity to those functions intimately associated with the judicial process, courts have made use of the distinction between prosecutorial and judicial duties and duties which are administrative or investigatory. Although the Supreme Court has not expressly adopted this distinction, see Imbler, 424 U.S. at 430-31, 431 n. 33, 96 S.Ct. at 994-95, 995 n. 33, the Court has left standing appellate court cases which have utilized it. Id., at 430 n. 31, 96 S.Ct. at 995 n. 31. Recently the Court has recognized that it has “at least implicitly drawn the same distinction” in its cases, Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982), and has continued to rely on the distinction in its own immunity analysis. See, e.g., Forrester v. White, 484 U.S. 219, 227,108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (“This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to peform.”). Moreover, “the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity.” Windsor v. The Tennessean, 719 F.2d 155, 164 (6th Cir.1983) (citing Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir.1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979)). The distinction has",
"from suit for “activities intimately associated with the judicial phase of the criminal process.... ” Id, at 430, 96 S.Ct. at 995. Adopting a functional approach, the Court held that the prosecutor, who was alleged to have knowingly used perjured testimony, was immune for conduct “in initiating a prosecution and in presenting the State’s case....” Id. at 431, 96 S.Ct. at 995. Imbler left open, however, the issue whether a prosecutor was entitled to absolute, qualified, or no immunity for investigative acts. Since Imbler, the Third Circuit has indicated that a prosecutor is entitled to only qualified immunity under § 1983 for investigative or administrative acts. See Rose, 871 F.2d at 343; Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-94 (3d Cir.1980); Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir.1979), cert. denied sub nomine Mitchell v. Forsyth, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Accord Mitchell v. Forsyth, 472 U.S. 511, 520-24, 105 S.Ct. 2806, 2812-14, 86 L.Ed.2d 411 (1985). In the instant case, although the .Attorney General defendants may have “acted within their official roles as officers of the Department of Law and Public Safety,” Defendants’ Reply Brief in Support of Motion for Summary Judgment at 10, it is clear that they were acting in their investigative capacities. Nothing in the record suggests that defendants were investigating G-69 with the intent to seek an indictment as to him, although they may have been using his information to indict others. The relationship is best characterized as investigative or administrative; the interactions between plaintiffs and defendants were such that defendants are entitled only to qualified immunity. 3. Qualified Immunity With respect to qualified immunity, plaintiff must show that defendants violated some clearly established right. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court further refined Harlow’s clearly established law standard in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987): The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal",
"articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to peform.”). Moreover, “the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity.” Windsor v. The Tennessean, 719 F.2d 155, 164 (6th Cir.1983) (citing Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir.1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979)). The distinction has continued to be a pivotal part of immunity analysis in this Circuit. See, e.g., Manion v. Michigan Bd. of Medicine, 765 F.2d 590 (6th Cir.1985); Joseph v. Patterson, 795 F.2d 549 (6th Cir.1986); Grant v. Hollenbach, 870 F.2d 1135 (6th Cir.1989). In accord with this approach, we have recognized that social workers who initiate judicial proceedings against those suspected of child abuse or neglect perform a prosecutorial duty, and so are entitled to absolute immunity. Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989) (family service worker who filed juvenile abuse petition absolutely immune from liability); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (state employees responsible for prosecution of child neglect and delinquency petitions entitled to absolute immunity). Other federal courts have resolved similar problems in the same fashion. See, e.g., Coverdell v. Dept. of Social and Health Services, 834 F.2d 758, 762-64 (9th Cir.1987) (absolute immunity for social worker who obtains ex parte court order directing seizure of child); Malachowski v. City of Keene, 787 F.2d 704, 712 (1st Cir.), cert. denied, 479",
"547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). A prosecutor is absolutely immune for activities which are “intimately associated with the judicial process” such as initiating and pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). However, the same immunity traditionally does not extend to a prosecutor’s actions which may be classified as administrative or investigative. Id. at 430-31, 96 S.Ct. at 994—96; Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982). Witnesses, including public officials and private citizens, are immune from civil damages based upon their testimony. Briscoe v. La Hue, 460 U.S. 325, 341, 345-46, 103 S.Ct. 1108, 1120-21, 75 L.Ed.2d 96 (1983). In deciding questions of immunity, the Court has taken a functional approach after considering the history of common law immunity. Thus, in Butz v. Economou, 438 U.S. 478, 508, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), the Court determined that agency officials who initiate and prosecute enforcement proceedings subject to agency adjudication are entitled to absolute immunity. The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation. Because the judicial system often resolves disputes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which required him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (10th Cir.1989), prosecutors and witnesses. Cf. Mitchell, 472 U.S. at 523, 105 S.Ct. at 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function. Absolute immunity has its costs because those with valid claims against dishonest or malicious government officials are denied relief. Imbler, 424 U.S. at 427, 96 S.Ct. at 993; Valdez, 878 F.2d at 1289.",
"S.Ct. at 995, 47 L.Ed.2d at 143-144 (\"[w]e have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that casts him in the role of an administrator or investigative officer rather than that of an advocate\"). . Id. at 430 & n. 31, 96 S.Ct. at 995 & n. 31, 47 L.Ed.2d at 143 & n. 31 (citing Guerro v. Mulheam, 498 F.2d 1249, 1256 (1st Cir.1974); Hampton v. City of Chicago, 484 F.2d 602, 608-609 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir.1965)). . Imbler v. Pachtman, supra note 160, 424 U.S. at 431, 96 S.Ct. at 995, 47 L.Ed.2d at 144. . Id. at 431 n. 33, 96 S.Ct. at 995 n. 33, 47 L.Ed.2d at 144 n. 33. . E.g., McSurely v. McClellan, 225 U.S.App. D.C. 67, 77, 697 F.2d 309, 319 (1982); Briggs v. Goodwin, supra note 156, 186 U.S.App.D.C. at 188-189, 569 F.2d at 19-20; Marrero v. City of Hialeah, 625 F.2d 499, 506 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.), cert. denied, — U.S. -, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985). . Gray v. Bell, supra note 160, 229 U.S.App. D.C. at 185-186, 712 F.2d at 499-500. . See generally Note, Supplementing the Functional Test of Prosecutorial Immunity, 34 Stan.L. Rev. 487, 489-504 (1982) (collecting cases). . E.g., McSurely v. McClellan, supra note 176, 225 U.S.App.D.C. at 77, 697 F.2d at 319 (\"a prosecutor receives absolute immunity only when he acts ... in his role as a participant in the judicial phase of the criminal process’’); Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (finding plea negotiations are absolutely protected: “[t]he plea negotiation is ‘an essential component’ of our system of criminal justice”) (quoting Santobello v. New York, 404",
"2913 n. 37, but never explicitly addressed. Nonetheless, it has been suggested that the functional approach established in Butz fairly compels the conclusion that a prosecutor is not entitled to absolute immunity for conduct outside of his advocatory role. See Marrero v. City of Hialeah, 625 F.2d 499, 506-10 (5th Cir.1980), cert. denied, 450 U.S. 913,101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Without fully embracing the functional lines that lower courts have drawn in. deciding when prosecutors are and are not entitled to absolute immunity, the Supreme Court has noted that lower courts have uniformly read Imbler not to extend beyond advocatory conduct, Harlow v. Fitzgerald, 102 S.Ct. at 2735 n. 16; see Stepanian v. Addis, 699 F.2d 1046 (11th Cir.1983);’ McSurely v. McClellan, 697 F.2d 309 (D.C.Cir. 1982) (per curiam); Taylor v. Kavanagh, 640 F.2d 450 (2d Cir.1981); Mancini v. Lester, ¿30 F.2d 990 (3d Cir.1980) (per curiam); Marrero v. City of Hialeah, 625 F.2d 499; Daniels v. Kieser, 586 F.2d 64 (7th Cir.1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Atkins v. Lanning, 556 F.2d 485 (10th Cir.1977) (per curiam); Walker v. Cabalan, 542 F.2d 681 (6th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1647, 52 L.Ed.2d \"357 (1977). But cf. Keating v. Martin, 638 F.2d 1121 (8th Cir.1980) (per curiam) (prosecutor held absolutely immune for all acts within the scope of his duty). The Court also has observed that some such functional limitation is implicit in Butz, Harlow v. Fitzgerald, 102 S.Ct. at 2735. . See also Deliums v. Powell, 660 F.2d 802, 805 (D.C.Cir.1981) (“In line with its origins, the scope of prosecutorial immunity is limited to performance of ‘quasi-judicial’ functions.”); United States v. Heldt, 668 F.2d 1238, 1276 (D.C.Cir.1981) (per curiam) (“Unless the defendant can complain of some action taken by the prosecutor outside of his quasi-judicial capacity, such suit will generally be barred by absolute immunity.”), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).",
"of advice to police during investigation); Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir.1980) (“a prosecutor who assists, directs or otherwise participates ... in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities of ‘deciding which suits to bring and ... conducting them in court’ ”) (quoting Imbler, 424 U.S. at 424, 96 S.Ct. at 992), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Although this Court has often stated that a prosecutor is not entitled to absolute immunity when engaged in purely investigative activities, this Court has never been asked to clarify the gray areas between prosecutorial and investigative activity. See, e.g., Mancini v. Lester, 630 F.2d 990, 993 (3d Cir.1980) (per curiam); Helstoski v. Goldstein, 552 F.2d 564, 566 (3d Cir.1977); cf. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979) (qualified immunity for Attorney General’s decision to authorize war-rantless electronic surveillances during investigation and remand for further fact-finding on entitlement to absolute immunity), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Further, no court, to our knowledge, has ever considered prosecutorial immunity in the context of a civil forfeiture. We look for guidance to the decisions of other federal courts granting or denying absolute or qualified immunity to prosecutors seeking search or arrest warrants. There is a conflict among the cases addressing absolute immunity in the context of the prosecutorial decision to seek an arrest or search warrant. See generally Annotation, Immunity of Prosecutor From Suit, 67 A.L.R. Fed. 640 (1984 & Supp.1990). In Joseph v. Patterson, 795 F.2d 549 (6th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987), the Josephs asserted that the prosecutor’s conduct — making false statements to support a complaint, arrest warrant and a search warrant, participation in an unlawful search, and malicious prosecution — constituted investigative activities not protected by absolute immunity. Id. at 553. The court found that the decision to file a criminal complaint and seek issuance of an arrest warrant were quasi-judicial duties involved",
"is essential for the conduct of public business.” Butz, 438 U.S. at 507, 98 S.Ct. at 2911. Federal officials seeking absolute immunity “bear the burden of showing that public policy requires an exemption of that scope.” Id. at 506, 98 S.Ct. at 2911; see also Harlow, 102 S.Ct. at 2733, 2735-36. Although the Supreme Court has held that the function of advocating for the conviction of criminal defendants is of such a nature that prosecutors enjoy absolute immunity in discharging that responsibility, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity. See Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied, 442 U.S. 930, 99-S.Ct. 2861, 61 L.Ed.2d 298 (1979). While the Supreme Court did not accept or reject the validity of this distinction in Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-995, it appeared willing to endorse the distinction in Harlow. 102 S.Ct. at 2735 n. 16. Since the duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function, Hardin is not entitled to absolute immunity in this case. This conclusion is buttressed by directly applying the criteria which the Supreme Court has found to be relevant in adjudicating immunity questions. A decision on immunity must be: Predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. [Imbler, 424 U.S. at 421, 96 S.Ct. at 748.] In addition, this court must consider public policy",
"995, 47 L.Ed.2d 128 (1976). Imbler provided the basis for the development of a functional approach to the immunity question. The Court held that absolute immunity from § 1983 liability exists for those prosecutorial activities “intimately associated with the judicial phase of the criminal process ... . ” Id. at 430, 96 S.Ct. at 994; Butz v. Economou, 438 U.S. 478, 510-11, 98 S.Ct. 2894, 2912-13, 57 L.Ed.2d 895 (1978). These protected “quasi-judicial” activities, Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir. 1979), include the initiation of a prosecution and the presentation of the Government’s case. Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995. Absolute protection does not extend, however, to a prosecutor’s investigative or administrative acts, id. at 431 n.33, 96 S.Ct. at 995 n.33. Accordingly, we have recognized that where prosecutors act in this capacity, only the qualified “good faith” immunity that protects, for example, police officers, is available. Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, - U.S. -, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); see also Hampton v. Hanrahan, 600 F.2d 600, 631-32 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam). The task of determining whether a particular activity is better characterized as “quasi-judicial” and subject to absolute immunity, or “investigative” and subject to only qualified “good faith” immunity requires more than the mechanical application of labels. An examination of the functional nature of prosecutorial behavior, rather than the status of the person performing the act, is determinative. Imbler, supra, 424 U.S. at 430, 96 S.Ct. at 994; Briggs v. Goodwin, 569 F.2d 10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Thus, a prosecutor is insulated from liability where his actions directly concern the pre-trial or trial phases of a case. For example, the swearing of warrants to insure a witness’s attendance at trial, Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979), the falsification of evidence",
"stated that an “interlocutory appeal is not available where the immunity issue turns on disputed questions of fact,” and that our jurisdiction over such an appeal depends on whether, in light of the nature of the asserted immunity defense, the availability of that defense can be decided as a matter of law. 855 F.2d at 958. The availability of a defense of absolute prosecutorial immunity depends on the nature of the acts allegedly performed rather than on the office itself, for, as the district court observed, it is established that prosecutors have absolute immunity for some of their acts but only qualified immunity for others. See, e.g., Robison v. Via, 821 F.2d 913, 918-20 (2d Cir.1987); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981). With respect to the initiation of a prosecution and other actions “intimately associated with the judicial phase of the criminal process,” the prosecutor enjoys absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). On the other hand, no more than a qualified immunity is available with respect to acts of a prosecutor that are administrative or investigative in nature. See Taylor v. Kavanagh, 640 F.2d at 452-53; Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); see also Imbler v. Pachtman, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33 (“At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.”). This Court, while recognizing that “neither Imbler nor Kavanagh purported to draw bright lines between quasi-judicial absolutely immune conduct, on the one hand, and investigative and administrative quali-fiedly immune behavior, on the other,” Powers v. Coe, 728 F.2d 97, 104 (2d Cir.1984), has held that only the qualified immunity defense may be asserted against a claim that a prosecutor has disclosed information or evidence to the"
] |
Keogh Plan, Pension and Profit Sharing Plan, and IRA are reasonably necessary for his support and that of his dependents and thus are exempt pursuant to K.R.S. 427.150. That statute provides: (1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) ... assets held, payments made, and amounts payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... Neither party has raised the issue that any of these three plans or account are not included under the statute. Following REDACTED which held that an IRA account was exempt, we find that the plans and account in this case are included under K.R.S. 427.150. The disputed issue is whether the entire cash values of these funds are reasonably necessary for the support of the debtor and his dependents. First, the Court notes that the objecting party has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). Tretter has the burden of proving that the amount claimed exempt (cash value — $69,072.86) is not reasonably necessary for the support of the debtor and his dependents upon his retirement, illness or disability. Secondly, exemption statutes are entitled to a construction liberal to the debtor. In re Worthington, supra at 739;
|
[
"MEMORANDUM AND ORDER G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the Court on the objection of the trustee to two claimed exemptions of the debtor, specifically an exemption of the cash surrender value of life insurance policies and exemption of an Individual Retirement Account (IRA). On February 19, 1982, the debtor filed a voluntary petition under the provisions of Chapter 7 of the Bankruptcy Code. Pursuant to that petition, on Schedule B-4 the debtor claimed as exempt the cash surrender value of life insurance policies pursuant to KRS 427.110 in the total amount of $3,568.00, and an Individual Retirement Account pursuant to KRS 427.150 in the amount of $5,959.68. These exemptions are claimed under the Kentucky Revised Statutes since the Commonwealth of Kentucky pursuant to the election granted by the Bankruptcy Code, 11 U.S.C. § 522(b), opted out and adopted a state exemption scheme. The exemptions here in issue are claimed under state statutes which provide in pertinent part: KRS 427.110(1): “(1) Any money or other benefit to be paid or rendered by any assessment or cooperative life or casualty insurance company is exempt from execution or other process to subject such money or other benefit to the payment of any debt or liability of a policyholder.” KRS 427.150: “(1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) Assets held, payments made, and amount payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... ” The first issue is whether the cash surrender value of policies owned by the debtor is exempt pursuant to KRS 427.110. This statute does not restrict “any money or other benefit to be paid...” as exemptible only upon death but rather it denotes an exemption extending to the debtor on any monetary value or benefits accruing by virtue of ownership. Thus, the loan values or the cash surrender values by"
] |
[
"that of his dependents and thus are exempt pursuant to K.R.S. 427.150. That statute provides: (1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) ... assets held, payments made, and amounts payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... Neither party has raised the issue that any of these three plans or account are not included under the statute. Following In re Worthington, 28 B.R. 736 (Bankr.W.D.Ky.1983), which held that an IRA account was exempt, we find that the plans and account in this case are included under K.R.S. 427.150. The disputed issue is whether the entire cash values of these funds are reasonably necessary for the support of the debtor and his dependents. First, the Court notes that the objecting party has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). Tretter has the burden of proving that the amount claimed exempt (cash value — $69,072.86) is not reasonably necessary for the support of the debtor and his dependents upon his retirement, illness or disability. Secondly, exemption statutes are entitled to a construction liberal to the debtor. In re Worthington, supra at 739; Doethloff v. Penn Mutual Life Insurance Co., 117 F.2d 582 (6th Cir.1941). The facts show that the debtor was a 58 year old orthopedic surgeon at the date of filing; he is now 61 years of age. The statement of affairs discloses that Dr. Fisher earned from his professional service corporation in the two years preceding his petition, $437,500.00 (1981), and approximately $564,000.00 (1982). Additionally, Dr. Fisher had outside income from his racehorse investments, rents, royalties, and interest of $74,239.00 in 1982, and $49,-300.00 in 1981. To determine if the reasonably necessary test has been met, the court must examine all of the facts and circumstances including the debtor’s age, earning capacity, present and future financial",
"plan.” Accordingly, while a right to receive a payment under any contract is not exempt under 11 U.S.C. § 522(d)(10)(E) unless such rights are on account of illness, disability, death, age, or length of service, a right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan is exempt under 11 U.S.C. § 522(d)(10)(E) even though such rights are not on account of illness, disability, death, age, or length of service. ... TO THE EXTENT REASONABLY NECESSARY FOR THE SUPPORT OF THE DEBTOR ... The party objecting to an exemption has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). In the present case, Honda Finance must prove that the amount claimed exempt — $17,017.56—is not reasonably necessary for the support of the Debt- or and his dependents. See In re Fisher, 63 B.R. at 651 (Bankr.W.D.Ky.1986). In Matter of Kochell, 732 F.2d 564, 566 (7th Cir.1984) the Court of Appeals upheld the Bankruptcy Court’s findings that the funds in question were not reasonably necessary for support under 11 U.S.C. § 522(d)(10)(E). The Court of Appeals stated: While Congress has limited pension plan exemptions to amounts “reasonably necessary for the support of the debtor,” the statute does not elaborate on the proper interpretation of that phrase. The legislative history indicates that the federal exemptions are derived in large part from the Uniform Exemptions Act, promulgated by the Commissioners of Uniform State Laws in 1976. H.R.Rep. No. 595, 95th Cong. 1st Sess. 361, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 6317. Section 6 of the Uniform Exemptions Act defined the phrase “property to the extent reasonably necessary for the support of [the debtor] and his dependents” as “property required to meet the present and anticipated needs of the individual and his dependents as determined ... after consideration of the individual’s responsibilities and all of the present and anticipated property and income of the individual, including that which is exempt.” One commentator has suggested that the limitation was added to prevent officers of large corporations and professionals from placing large amounts",
"profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless— (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose; (ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, pr 409 of the Internal Revenue Code or 1954.... 11 U.S.C. § 522(d)(10)(E). The party objecting to an exemption has the burden of proving that the exemption is not properly claimed. Federal Rule of Bankruptcy Procedure 4003(c); In re Hickenbottom, 143 B.R. 931 (Bankr.W.D.Wash.1992). Moniz asserts that the Debtor’s IRA is not a “similar plan or contract” to stock bonus or profit-sharing plans or annuities. The Trustee makes the same argument and further states that the IRA is not “reasonably necessary” for the Debtor’s future support. The Trustee adds that since the Debtor does not have a present right to payments from the IRA, § 522(d)(10)(E) does not apply. The Trustee and Moniz cite, inter alia, In re Clark, 711 F.2d 21 (3d Cir.1983) (Keogh plan not exempt because debtor had no present right to receive payments), In re Heisey, 88 B.R. 47 (Bankr.D.N.J.1988) (IRA not exempt because the debtor had no present right to receive payments), and In re Pauquette, 38 B.R. 170 (Bankr.D.Vt.1984) (IRAs not “similar plans” because debtor has control of the funds). The Debtor relies upon In re Chiz, 142 B.R. 592 (Bankr.D.Mass.1992) to support his claim that his IRA is exempt from the estate as a “similar plan” provided that his IRA is found to be reasonably necessary for his support. In In re Cilek, 115 B.R. 974 (Bankr.W.D.Wis.1990), the court addressed four rationales used by courts to deny debtors exemptions in IRAs: 1) the debtor has “no present rights to receive payments,” In re Heisey, 88 B.R. 47 (Bankr.D.N.J.1988); 2)",
"debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) . “(d) The following property may be exempted under subsection (b)(1) of this section: ****** (10) The debtor's right to receive— ****** (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” . The Minnesota case of In re Rosen, 52 B.R. 96 (Bktcy.Minn.1985) assumed without deciding the issue that a Keogh plan was exempt under M.S.A. § 550.37 subd. 24 under the language of the statute in effect prior to July 1, 1985. . The age at which the Schlees’ son is no longer a \"dependent\" need not be decided for purposes of this order. . Social Security payments are not particularly large in most cases. No evidence was introduced showing this Debtor’s potential monthly benefit. In any event, for purposes of this Order I am assuming receipt of a Social Security benefit of unknown amount. Whatever the amount of the benefit is would not change my decision.",
"MEMORANDUM-OPINION G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the Court on the objection of the creditor, O.J. Tretter, to certain exemptions claimed by the debt- or, Dr. V.L. Fisher. By Order entered March 4,1986, the parties agreed to submit this issue on written memoranda, which memoranda are now of record. The debtor filed his petition for relief on December 30, 1983. He claimed as exempt the following interests in dispute in this case: (1) an IRA with a face value of $1,186.05; (2) Keogh Plan, with a face value of $6,000.00; and (3) Profit Sharing Plan and Trust, with a face value of $93,386.81, subject to setoff of $31,500.00 for a loan to debtor, for a balance of $61,886.81, thus making the total net value of the funds $69,072.86. The creditor, O.J. Tretter, was joined as creditor by amendment to the petition on February 9, 1984. The meeting of creditors was held February 3, 1984. Tretter’s objection is dated-mailed on March 8, 1984, but is marked filed with the Court on March 14, 1984. The creditor objects to the exemptions on the basis that they are not reasonably necessary for the debtor’s support as required by K.R.S. 427.150. The debtor responds by arguing that: (1) the creditor’s objection was not timely filed pursuant to Bankruptcy Rule 4003(b) and that required notice was not given; and (2) that the debtor’s interest in his Keogh Plan, Pension and Profit Sharing Plan, and IRA are reasonably necessary for his support and are thus exempt pursuant to K.R.S. 427.150. We address first the procedural objection that this objection to the exemptions was not filed within the time required by Bankruptcy Rule 4003(b). Rule 4003(b) outlines the manner of objecting to claims of exemptions and states: The trustee or any creditor may file objections to the list of property claimed as exempt within thirty days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list unless, within such period further time is granted by the Court. Copies of the objections shall",
"or future payments, or payments received. by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) (Emphasis added.) Since present and future pension benefits are included within the ambit of the statute, I think it is obvious that the Court is to consider present and future needs of a debtor in determining the exemptibility of pension funds also. Here, the debtor is 56. He has a wife and dependent child. He has no present means of funding a new retirement plan. He has health problems. He has a limited income potential. Given these factors, Schlee is unlikely to be able to provide for his future retirement needs if his present pensions are not exempt. III. The final issue in this case is whether the pensions, or any part of them, are “reasonably necessary for the support of the debtor and any dependent of the debt- or”. The trustee as objector must prove that the Keogh funds are not reasonably necessary to Mr. Schlee’s support. Bankruptcy Rule 4003(c). Case law has generally interpreted this phrase under § 550.37 subdivision 24 and 11 U.S.C. § 522(d)(10)(E) in light of the standards set forth in the case of Warren v. Taff, (In re Taff), 10 B.R. 101 (Bktcy.Conn.1981) since the language of both statutes is the same. The Taff case requires a Court to review a debtor’s other income sources and other exempt property. The Court must consider the debtor’s age, present employment, future employment prospects and general health. In re Werner, 31 B.R. 418 (Bktcy.Minn.1983). The amount “reasonably necessary” for support of a debtor is an amount “sufficient to sustain basic needs, not related to his former status in society or the lifestyle to which he is accustomed but taking into account the special needs that a retired and elderly debtor may claim.” In re Taff at",
"assets is evidenced by the fact that he is the trustee of both plans, and is further evidenced by the fact that he transferred $300,000.00 of plan funds to his personal account. With regard to the IRAs, the Court assumes that, as with most IRA’s, debtors can withdraw the funds at any time as long as they are willing to pay the current taxes plus a penalty on the withdrawn funds. In view of the degree of control debtors may exercise over the plans and IRAs, the Court can only conclude that neither satisfy the requirements for a spendthrift trust. II. Debtors’ Exemptions under Illinois Law A. Exemption for Retirement Plans Having determined that the pension and profit sharing plans and the IRAs are property of the bankruptcy estate, the Court must next decide whether debtors are entitled to claim those assets as exempt. Debtors contend that they may exempt both the plans and IRAs pursuant to Ill.Rev.Stat. ch. 110, 1112-1006(a), which provides, in part, as follows: A debtor’s interest in or right, whether vested or not, to the assets held in or to receive pensions, annuities, benefits, distributions, refunds of contributions, or other payments under a retirement plan is exempt from judgment, attachment, execution, distress for rent, and seizure for the satisfaction of debts if the plan (i) is intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986.... III.Rev.Stat. ch. 110, II 12-1006(a). Blunt, Ellis & Loewi and the Trustee object, contending that the Illinois exemption statute is preempted by ERISA. Debtors, in response, claim that the objections to exemptions were not timely filed and should therefore not be considered. B. Timeliness of Objections Section 522(i) of the Bankruptcy Code provides: The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a",
"provide for future family needs. If Mr. Schlee’s age and his inability in his remaining employable years to amass a new retirement fund are taken into account, his Keogh funds, from the evidence adduced at the hearing and the affidavits, appears to be reasonably necessary for the Schlee family support. In re Miller, supra; In re Rosen, supra; In re Donaghy, 11 B.R. 677 (Bktcy.S.D.N.Y.1981). The objector must show that the Debtor’s basic living needs in the future can be met in some way other than through Mr. Schlee’s present pension funds. I do not think this evidence was produced. THEREFORE, IT IS ORDERED that the pension funds listed as exempt property on Debtor’s B-4 Schedule are exempt assets under M.S.A. § 550.37 subdivision 24 and the trustee’s objection to the exemption is denied. . M.S.A. § 550.37 states: \"Subdivision 1. The property mentioned in this section is not liable to attachment, garnishment, or sale on any final process issued from any court. * * * * * * * Subd. 24. EMPLOYEE BENEFITS. The debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.” (West Supp.1986) . “(d) The following property may be exempted under subsection (b)(1) of this section: ****** (10) The debtor's right to receive— ****** (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” . The Minnesota case of In re Rosen, 52 B.R. 96 (Bktcy.Minn.1985) assumed without deciding the issue that a Keogh plan was exempt under M.S.A. § 550.37 subd. 24 under the language of the statute in effect prior to July 1, 1985.",
"virtue of 26 U.S.C. § 72(t). Accordingly, it must be concluded that the IRA is included in the bankruptcy estate as of the filing of the bankruptcy petition. B. Is The IRA Exemptible Pursuant To 11 U.S.C. § 522(d)(10)(E)? Once the bankruptcy estate has been created, an individual debtor may claim certain property included therein as exempt pursuant to 11 U.S.C. § 522, which provides in relevant part as follows: (d) The following property may be exempted under subsection (b)(1) of this section: .... (10) the debtor’s right to receive— ... (E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.... According to debtor, he should be permitted to exempt the entire declared value of his IRA because it may be reasonably necessary in the future for his and his dependents’ support. This argument, like the previous argument, is without merit. Debtor may not exempt the IRA pursuant to 11 U.S.C. § 522(d)(10)(E) for a variety of reasons. As has been noted, debtor is only 52 years of age. He is not receiving any distribution from the IRA at this time and cannot do so without incurring a substantial tax penalty because he has not yet reached 59V2 years of age. The Third Circuit has held that payments under a Keogh plan are exemptible pursuant to § 522(d)(10)(E) only if the debtor has a present right to receive payments. A future right to receive such payments is not so exemptible. See In re Clark, 711 F.2d 21, 23 (3d Cir.1983). Some courts outside of this circuit have been critical of In re Clark and have declined to follow it. See In re Cilek, 115 B.R. 974, 978-79 (Bankr.W.D.Wis.1990). This court, however, is constrained to adhere to the holding of In re Clark where it is applicable. It is immaterial that this debtor seeks to exempt an IRA, as opposed to a Keogh plan. The rationale of",
"parties have complied with the Court’s order, and there appear to be no facts in dispute. II. FACTS The parties agree that the value of the IRA is $3,115.00, that the Debtor is below the age at which he may withdraw from the IRA for retirement purposes, and that the Debtor does not presently depend upon the IRA for support. From the pleadings in the Debtor’s file, the Court notes that the Debtor, who has been employed at Polaroid for eighteen years as an administrative assistant, reports on Schedule J that his net monthly income is $1,428.70 and that his monthly expenses total $1,275.00. Though the Debtor owns his car, he does not own a home. The remainder of his property consists of exempt household goods. The Court lacks information about the Debtor’s age, health and job security. III. DISCUSSION Section 522(d) of the Bankruptcy Code provides [t]he following property may be exempted under subsection (b)(1) of this section: ... (10) The Debtor’s right to receive— ... (E) a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless— (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose; (ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, pr 409 of the Internal Revenue Code or 1954.... 11 U.S.C. § 522(d)(10)(E). The party objecting to an exemption has the burden of proving that the exemption is not properly claimed. Federal Rule of Bankruptcy Procedure 4003(c); In re Hickenbottom, 143 B.R. 931 (Bankr.W.D.Wash.1992). Moniz asserts that the Debtor’s IRA is not a “similar plan or contract” to stock bonus or profit-sharing plans or annuities. The Trustee makes the same argument and further states that the IRA is not “reasonably necessary”"
] |
Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing REDACTED Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be
|
[
"of UNC’s liability for damages caused by the Churchrock spill. Whether this action should be extended to reach a proposed class of defendants and whether a final injunction and declaratory judgment on the subject of Navajo Tribal Court jurisdiction should be issued remain to be determined. . UNC Resources, Inc., is the parent corporation of United Nuclear Corporation and UNC Mining & Milling Services, Inc., is its subsidiary. All are plaintiffs herein and are referred to collectively as “UNC.” . UNC also challenges the Tribal Court’s jurisdiction on other grounds, which need not be considered here. . The Indian Civil Rights Act (ICRA) is not a grant of tribal jurisdiction; it only specifies some rights that must be preserved if jurisdiction over non-Indians is ever conferred on the tribes. 435 U.S. at 195-96 n. 6, 98 S.Ct. at 1014 n. 6. It is noteworthy that the ICRA, while providing expressly for federal review of tribal criminal prosecutions through habeas corpus proceedings, by its terms creates no means through which a party to a civil suit in tribal court can invoke federal protection of his rights. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); but see Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3305 (U.S. Oct. 28, 1980) (No. 80-613). Nor does it appear under current statutes and case law that appeal or other recourse lies from a tribal court to any court outside the tribe. In the absence of a route to the United States Supreme Court, where the scope of federal rights under the Supremacy Clause must ultimately be decided, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), it is difficult to understand how a United States citizen who is not a tribal member could be required, in the absence of a contractual relationship or actual or implied consent, to appear as a civil defendant in a tribal court. . The Navajos propose a balancing of interests and argue that UNC’s stake in"
] |
[
"Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be brought within this court’s limited exception to the doctrine of tribal sovereign immunity of Dry Greek, because that decision is distinguishable from the present case. The Pueblo contends that Dry Creek must be narrowly interpreted within the doctrinal confines of Santa Clara, and as such it merely held that federal jurisdiction existed because no other remedy was available due to the denial of access to tribal forums. As to the availability of tribal remedies in this case, the Pueblo maintains that a Tribal Court and Tribal Council existed and each possessed jurisdiction and authority to address the Whites’ complaints. The Pueblo further contends that the Whites never attempted to avail themselves of these trib al forums, choosing instead to go directly to federal court. The Pueblo further asserts that the Whites failed to avail themselves of administrative remedies available with the Department of Interior which held the purchased property in trust for the Pueblo. II. Santa Clara is an opinion by the Supreme Court of the United States. The action was brought in federal court against the Santa Clara Pueblo tribe by a female member of the tribe who married a Navajo Indian and had several children. Two years prior to her marriage, the Pueblo passed a membership ordinance barring membership in the Pueblo to children of female members who marry outside the tribe, while permitting membership to children of male",
"445 F.2d 1382, 1394 (5th Cir.1971). This latter case held that a party was not barred from seeking judicial review of an administrative agency determination for failure to exhaust an uncertain, informal administrative remedy, at the time unreported in the Federal Register. Furthermore, the Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M.1981) (holding Navajo tribal Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be brought within this court’s limited exception to the doctrine of tribal sovereign immunity of Dry Greek, because that decision is distinguishable from the present case. The Pueblo contends that Dry Creek must be narrowly interpreted within the doctrinal confines of Santa Clara, and as such it merely held that federal jurisdiction existed because no other remedy",
"1670, 56 L.Ed.2d 106 (1978) holding that federal courts do not have jurisdiction to hear claims against Indian tribes under the ICRA except in habeas corpus proceedings; and Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), reh. den., 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385. There this court announced an exception to Santa Clara when it held that federal jurisdiction existed under the facts of the case. The Whites contend that their suit in federal court against the Pueblo of San Juan Tribe is not barred by the doctrine of sovereign immunity, because they satisfy the three requirements for federal court jurisdiction, allegedly enumerated by this court in Dry Creek. The Whites argue those requirements are: 1. involvement of a non-Indian in the action. 2. the alleged deprivation of an individual’s real property interests; and 3. the absence of an adequate tribal remedy. The Whites interpret Dry Creek as limiting the language of Santa Clara quoting: ... the reason for the limitation [against suing Indian tribes] and the references to tribal immunity [in Santa Clara ] also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian. Dry Creek, supra, at 685. Accordingly the Whites maintain the federal district court possessed jurisdiction to hear their claims against the Pueblo for deprivation of civil rights under the ICRA, because non-Indians were involved and because the controversy did not merely involve internal tribal affairs. The Whites also maintain that even if Dry Creek is interpreted narrowly to permit federal jurisdiction only in the absence of trial remedies, such federal jurisdiction exists under the facts of this case. The Whites allege that the Tribal Code of Law and Order for the People of San Juan, establishing the Tribal Court, was not properly adopted and published. Consequently, they contend, they cannot be barred from federal court for failure to exhaust the tribal remedies, citing Genuine Parts Company v. Federal Trade Commission,",
"Clara quoting: ... the reason for the limitation [against suing Indian tribes] and the references to tribal immunity [in Santa Clara ] also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian. Dry Creek, supra, at 685. Accordingly the Whites maintain the federal district court possessed jurisdiction to hear their claims against the Pueblo for deprivation of civil rights under the ICRA, because non-Indians were involved and because the controversy did not merely involve internal tribal affairs. The Whites also maintain that even if Dry Creek is interpreted narrowly to permit federal jurisdiction only in the absence of trial remedies, such federal jurisdiction exists under the facts of this case. The Whites allege that the Tribal Code of Law and Order for the People of San Juan, establishing the Tribal Court, was not properly adopted and published. Consequently, they contend, they cannot be barred from federal court for failure to exhaust the tribal remedies, citing Genuine Parts Company v. Federal Trade Commission, 445 F.2d 1382, 1394 (5th Cir.1971). This latter case held that a party was not barred from seeking judicial review of an administrative agency determination for failure to exhaust an uncertain, informal administrative remedy, at the time unreported in the Federal Register. Furthermore, the Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M.1981) (holding Navajo tribal",
"the substantive rights against Indian Tribes created by the ICRA had to be vindicated through tribal forums which are obliged to apply the statute and recognize the rights. Santa Clara, supra, at 65, 98 S.Ct. at 1680. Accordingly federal law requires a waiver of tribal immunity in tribal courts for action under the ICRA. The Pueblo Code explicitly permits such waiver when required by federal law. Code, Chap. I, Section III. It is also clear that the Code specifically asserts civil jurisdiction over non-Indians within the Pueblo boundaries. The Whites contend that the Code’s attempted extension of civil authority over non-Indians is ineffective, because it requires non-Indians to consent to the assertion of jurisdiction and to stipulate that they agree to be bound by the Tribal Court’s decisions. Apparently, the Whites believe it is improper to compel them to consent to the Tribal Court’s jurisdiction; however, this is the inescapable consequence of Santa Clara. When they refused to comply with the tribal adjudicatory procedure based on their objection to the adequacy of the procedure, as is shown to have occurred here, we find ourselves powerless to pursue the remedy in federal court as proposed by the Whites. This would be contrary to the restrictive holding by the Supreme Court in Santa Clara. The judgment of the district court is, therefore, affirmed. . The protections afforded to “any person” under the ICRA are not limited to American Indians, but apply also to non-Indians. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir.1975) (Dry Creek I) appealed after remand on other grounds, 623 F.2d 682 (1980); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz.1968).",
"Memorandum of Authority in Response to the Defendant’s Motion for Summary Judgment and Motion to Dismiss (ROA at 66). No explanation for their apparent failure to make a request prior to the initiation of this action in federal court is given. The receipt of the Tribal Code certainly put the Whites on notice of the possible existence of a forum for the hearing of their complaint. However, it is uncontested that they made no affirmative steps to seek redress through the tribal judiciary. The Whites chose instead to continue this action in federal court, claiming that their refusal to pursue a tribal remedy is excusable on the basis of futility. But this is not the law in the Tenth Circuit; speculative futility is not enough to justify federal jurisdiction. The tribal remedy must be shown to be nonexistent by an actual attempt before a federal court will have jurisdiction. The contention of the Whites that a valid tribal remedy is nonexistent is a contention without any merit. In Santa Clara, the Supreme Court held that the substantive rights against Indian Tribes created by the ICRA had to be vindicated through tribal forums which are obliged to apply the statute and recognize the rights. Santa Clara, supra, at 65, 98 S.Ct. at 1680. Accordingly federal law requires a waiver of tribal immunity in tribal courts for action under the ICRA. The Pueblo Code explicitly permits such waiver when required by federal law. Code, Chap. I, Section III. It is also clear that the Code specifically asserts civil jurisdiction over non-Indians within the Pueblo boundaries. The Whites contend that the Code’s attempted extension of civil authority over non-Indians is ineffective, because it requires non-Indians to consent to the assertion of jurisdiction and to stipulate that they agree to be bound by the Tribal Court’s decisions. Apparently, the Whites believe it is improper to compel them to consent to the Tribal Court’s jurisdiction; however, this is the inescapable consequence of Santa Clara. When they refused to comply with the tribal adjudicatory procedure based on their objection to the adequacy of the procedure, as",
"which relief may be granted. The district court dismissed the Whites’ claims and found that they failed to state a valid claim under the ICRA, and alternatively, that the doctrine of sovereign immunity barred the action. The court denied the Whites’ subsequent motion to stay dismissal pending pursuit of tribal remedies. The Whites now appeal the dismissal of their claims and in the alternative, the court’s refusal to retain jurisdiction and stay dismissal until pursuit of tribal remedies. Inasmuch as it appears from the weight of authority that the jurisdictional issue of sovereign immunity is dispositive of this appeal, the parties’ positions regarding this issue only will be discussed here. Accordingly, the parties’ contentions regarding whether the activities complained of rise to the level of civil rights deprivations under the ICRA will not be discussed. The position of the Whites is that they acknowledge that resolution of the tribal sovereign immunity issue involves an application and reconciliation of the decision of the Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) holding that federal courts do not have jurisdiction to hear claims against Indian tribes under the ICRA except in habeas corpus proceedings; and Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), reh. den., 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385. There this court announced an exception to Santa Clara when it held that federal jurisdiction existed under the facts of the case. The Whites contend that their suit in federal court against the Pueblo of San Juan Tribe is not barred by the doctrine of sovereign immunity, because they satisfy the three requirements for federal court jurisdiction, allegedly enumerated by this court in Dry Creek. The Whites argue those requirements are: 1. involvement of a non-Indian in the action. 2. the alleged deprivation of an individual’s real property interests; and 3. the absence of an adequate tribal remedy. The Whites interpret Dry Creek as limiting the language of Santa",
"Id. Accordingly, absent explicit waiver of immumty or express authorization by Congress, federal courts do not have jurisdiction to entertain suits against an Indian tribe. Id. at 58-59, 98 S.Ct. 1670; Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y, 163 F.3d 1150, 1153 (10th Cir.1998). Mr. Walton argues that the District Court has jurisdiction pursuant to the ICRA, 25 U.S.C. §§ 1301-1303, and pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDEAA”). We address each statute in turn. A. The Indian Civil Rights Act In Santa Clara Pueblo, the Supreme Court held that the ICRA does not authorize the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty. See 436 U.S. at 59, 98 S.Ct. 1670. Further, the ICRA does not create a private cause of action against a tribal official. Id. at 72, 98 S.Ct. 1670. The only exception is that federal courts do have jurisdiction under the ICRA over habeas proceedings. Id. at 58, 70, 98 S.Ct. 1670 (citing 25 U.S.C. § 1303) (stating that “the only remedial provision expressly supplied by Congress” is the writ of habeas corpus). These holdings appear to conclusively resolve the jurisdictional issue in this case— at least with respect to Mr. Walton’s non-habeas claims — but two years after Santa Clara Pueblo, in Dry Creek, this Court recognized a limited exception to the rule in Santa Clara Pueblo. In Dry Creek, the plaintiffs, non-Indians, sought to build guest accommodations on a tract of land that they owned but that was located within an Arapahoe and Shoshone reservation. 623 F.2d at 684. After obtaining the approval of the reservation’s superintendent, the plaintiffs began construction on the Dry Creek Lodge. Id. Once the lodge was completed, however, the two tribes’ Joint Business Council permitted an Indian family to barricade a road on the family’s property that had been the sole means of access to the lodge. Id. Dry Creek Lodge and the other plaintiffs sought relief with the tribal court, but the tribal judge refused to hear their case, stating that",
"14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 at 186-90 (1985) (absence of consent of United States is jurisdictional defect). . The ICRA provides that federal habeas corpus relief is \"available to any person, in a court of the United States, to test the legality of his detention by order of an Indian Tribe.” 25 U.S.C. § 1303 (1982). . Dry Creek Lodge involved non-Indian plaintiffs who owned land in fee simple within the boundaries of the Shoshone and Arapahoe Indians’ Wind River Reservation. The superintendent of the Reservation promised the plaintiffs that access to a lodge they proposed to build would not be a problem, but after it was built the tribes blocked the sole road from the lodge to the highway. The tribes subsequently refused the plaintiffs access to the tribal court. . In White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir.1984), non-Indians who owned land within the Pueblo’s boundaries invoked the ICRA and Dry Creek Lodge exception in their suit against the Pueblo for blocking the sale of their land to other non-Indians. This court rejected the plaintiffs’ reliance on Dry Creek Lodge, noting that ”[n]ecessarily the Dry Creek opinion must be regarded as requiring narrow interpretation in order not to come into conflict with the decision of the Supreme Court in Santa Clara.\" Id. at 1312. Consistent with construing Dry Creek to \"provide a narrow exception to the traditional sovereign immunity bar from suits,” we held that an \"aggrieved party must have actually sought a tribal remedy, not merely have alleged its futility.\" Id. See also Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir.1982), where we held that tribal sovereign immunity barred a suit pursuant to the ICRA brought by a non-Indian in federal court to settle a contract dispute with the Apache Tribe, even though the plaintiff alleged lack of access to tribal courts. The plaintiff relied heavily on Dry Creek Lodge, but we held it distinguishable because \"[tjhat case involved particularly egregious allegations of personal restraint and deprivation of",
"a requirement that the exhaustion of tribal remedies is a prerequisite to federal jurisdiction, but instead, that tribal remedies, if existent, are exclusive. Judged in this light the Pueblo are immune from this suit for damages under the ICRA and the district court’s dismissal of the action is to be affirmed. It is to be noted that in Dry Creek the plaintiffs made an actual attempt to pursue a remedy in the tribal forum. But access was denied. This in itself is a distinguishing factor from Santa Clara. Nonetheless in the Dry Creek case it was also pointed out that it was outside of internal tribal affairs and concerned itself with an issue with a non-Indian. Dry Creek, supra, at 685. This language just referred to was considered important by the parties in this case; however, there can be no expansive interpretation of Dry Creek without opening up the scope of lawsuits against tribes. Throughout our history the tribes have been regarded as not being constrained by the Constitution’s limitations on federal and state authority. Santa Clara, supra; Tal-ton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896). The Talton case holds that the fifth amendment did not restrict the governmental powers of the tribes. Additionally, the judicial doctrine of tribal sovereign immunity has long protected Indian tribes from suit in state and federal courts. Tribal immunity, like all aspects of tribal sovereignty, is subject to the superior and plenary control of Congress. But until Congress expressly acts, we are governed by Santa Clara. Exercising that plenary authority in 1968, Congress passed the ICRA which provides individual persons with statutory rights similar, but not identical, to many of the parallel constitutional protections enjoyed by individuals against the state and federal governments. The ICRA, prior to Santa Clara, was looked upon as a general waiver of tribal immunity from civil actions in federal courts. The Supreme Court in Santa Clara reversed these decisions and held that the ICRA was not to be interpreted as an unequivocal congressional general waiver of tribal immunity in federal courts. Santa Clara, supra,"
] |
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